New York State Court of Claims

New York State Court of Claims

LONG v. THE STATE OF NEW YORK , #2006-010-028, Claim No. 107435


Award for injury to inmate claimant’s zygomatic arch. Delay in treatment contributed to claimant’s pain and suffering

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Terry Jane Ruderman
Claimant’s attorney:
ROBERT W. NISHMAN, ESQ.By: Schneider, Kaufman & Sherman, P.C. Howard B. Sherman, Esq., Of Counsel
Defendant’s attorney:
Attorney General for the State of New YorkBy: Judith McCarthy, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 14, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


On May 30, 2002, during claimant’s incarceration at Sing Sing Correctional Facility (Sing Sing), claimant was hit on the left side of his face by an errant softball and sustained comminuted depressed fractures of his left zygomatic arch. Claimant alleges that defendant failed to provide him with adequate medical care. Specifically, claimant contends that the delay in surgically addressing his fractures until more than six months post-injury necessitated a more complicated surgery, caused him increased pain and suffering, and resulted in permanent harm.

Claimant testified that on the evening of May 30, 2002, he was taken to the Sing Sing infirmary where he was observed by a doctor via a video-monitor connection. Claimant remained at the infirmary overnight and was given ice and pain medication. The next morning, x-rays were taken at the facility and revealed fractures of claimant’s zygomatic arch. Claimant was transported to St. Agnes Hospital (St. Agnes) where he was seen by a doctor and additional x-rays were taken. Claimant spent the night at St. Agnes and the next day he was discharged to the Sing Sing infirmary. At the infirmary, claimant was given ice and pain medication. Additionally, claimant’s blood sugar was monitored because he was diabetic.

On June 3, 2002, claimant was released from the infirmary and returned to general population. Claimant continued to feel pain. He had difficulty eating and this affected his blood sugar levels. On June 5, 2002, claimant went to see Dr. Soni, a dentist at Sing Sing, because claimant had difficulty opening and closing his mouth. Claimant explained that he had to stick food into his mouth with his fingers in an attempt to eat (T:31; Ex. B, p 2).[1] Claimant testified that even water dripped out of his mouth because he could not keep his mouth closed properly (T:31). According to claimant, Soni “really didn’t do anything. She didn’t want to go in and look inside my mouth because of the fact of the break. She didn’t want to like mess it up” (T:31-32). Claimant explained to Soni the trouble he was having with food and Soni suggested claimant drink Ensure and Carnation Instant Breakfast. According to claimant, he saw Soni numerous times over several weeks, but Soni never really examined claimant or treated him (T:37-38). On June 19, 2002, claimant was examined by another dental care provider at Sing Sing. Claimant’s condition had not improved and he continued to experience pain and had difficulty eating and moving his jaw. Therefore, claimant asked Soni if he could be seen by a doctor at Westchester County Medical Center. Claimant also testified that he could not sleep on his left side and could not open his mouth. He had also lost 25 to 30 pounds since his injury.

In August 2002, claimant was examined by Dr. Brady at the Westchester County Medical Center dental clinic. Dr. Brady requested a CAT scan of claimant. After the CAT scan was done in September, claimant was seen by Dr. Brady and Dr. Webster and they scheduled claimant for surgery. The surgery was performed on December 5, 2002 at the Westchester County Medical Center. After the operation, claimant was sick to his stomach and was vomiting. He was administered Percocet for pain. He remained at the Medical Center for six days. He was then discharged to the Sing Sing infirmary where he continued to be monitored and received pain medication for four to five days. Claimant testified that his mouth was very sore and he could not really move it at all. Claimant was returned to general population and had follow-up visits with Dr. Brady and Dr. Webster. As part of his ongoing physical therapy, claimant was prescribed a course of exercises to be performed three to four times a day. Soni, the dentist at Sing Sing, continued to see claimant for six months post-surgery and monitored his jaw.

In May 2003, claimant received medical clearance and was transferred to Clinton Correctional Facility. He visited the dentist at Clinton two or three times, but has not had any medical treatment since he left Sing Sing and he stopped his physical therapy when he left Sing Sing. Claimant estimated that it took a year for his jaw to feel comfortable and that even today his jaw locks when he opens his mouth too wide. Claimant avoids apples and tries to chew on his right side when he eats meat, toast or hard fruit. He sometimes has slurred speech and spits when he speaks. Also, claimant still experiences sensitivity under his eye and pressure on his cheeks from sunglasses.

Dr. Frederick Meiselman, an oral and maxillofacial surgeon, offered expert testimony on behalf of claimant. Meiselman explained that claimant sustained a depressed segmental fracture of the left zygomatic arch in three places. The zygoma is the prominent portion of the cheek bone and the zygomatic arch is the extension of the zygoma to the skull. When the zygomatic arch is depressed inward, the space between the zygomatic arch and coronoid process of the mandible (part of the lower jawbone) is reduced, which prevents the jaw from opening and closing. Meiselman noted that claimant’s medical records from St. Agnes, dated May 31, 2002, evidenced that claimant had a depressed fracture of the zygomatic arch and “D/C [discharge] pt [patient] will follow with possible OR [surgery]” (Ex. 2, p 5).

Meiselman opined that the treatment indicated for claimant’s fracture was open reduction, as soon as possible, which meant no later than 10 to 14 days post-injury. He further explained that, ideally, surgery should be done within 24 to 48 hours because fibrous tissue, which could form bone, develops between the zygomatic arch and the coronoid process, thereby impairing the function of the lower jaw. Meiselman testified that, within two weeks post-injury, claimant could have had an extra-oral (outside the mouth) operation known as a Gillies approach. This 20 to 30 minute procedure consists of a small incision on the temporal scalp and a second incision in the temporal fascia. An instrument is then inserted through the incisions to pull the zygomatic arch up by popping it back into place. Within a few days of this type of surgery, the patient is fully functioning and eating a normal diet.

Meiselman explained that, due to the delay in treating claimant surgically, a Gillies approach was not available to claimant and therefore he had to endure two more extensive procedures, i.e., a coronoidectomy and a zygomatic arch implant. In the coronoidectomy, a portion of the coronoid process is removed, which allows the lower jaw to regain function. The zygomatic arch implant cosmetically reestablishes the contour of the face by use of a synthetic substance (Medpor). While Meiselman conceded that the surgery performed on claimant in December was proper, Meiselman noted that the operation took two hours and that is three to four times longer than a simple Gillies approach and thereby caused more trauma to the patient. Also, Medpor implants always pose a possibility of rejection by the patient. Meiselman also conceded that the post-operative physical therapy directed for claimant was proper (T:167).

Meiselman maintained that when the simple Gillies approach is performed, a patient achieves a 100 percent result with no sequella from surgery. Meiselman conceded that there are other ways to treat a fractured zygomatic arch; however any surgery performed after the first 14 days post-injury exposes a patient to greater post-operative morbidity. Meiselman opined that if claimant had been examined by an oral surgeon within 24 hours of the fracture, surgery could have and should have been performed at that time.

Meiselman conceded that the St. Agnes records which indicate “will follow with possible OR” (surgery) did not specify that surgery was necessary or that surgery should be done within a specified time period (Ex. C, p 2; T:209-11). Meiselman could not answer whether St. Agnes had deviated from good medical practice in their failure to operate on claimant because Meiselman was unaware of the hospital’s relationship with the New York State Department of Correctional Services (DOCS) or to an inmate patient (T:214). Meiselman further explained that with non-inmate patients who present to the emergency room with such an injury, an oral surgeon or other specialist would be called in to evaluate the patient and the patient would be admitted immediately and surgery would be scheduled within a day or two (T:215). Meiselman opined that a deviation from reasonable medical care had occurred after claimant was returned to Sing Sing. In his view, the facility was aware of claimant’s fracture and malfunction and somebody should have addressed claimant’s need for medical treatment. Meiselman noted that on June 19, 2002, when claimant was examined by an oral maxillofacial surgeon at the Sing Sing dental clinic, it was already beyond the time when the simple surgery could have been performed on claimant. Meiselman testified that not all dentists and all internists would know that there was a two-week window post-injury within which it was best to address claimant’s injury. When asked to specify where the deviation from medical care had occurred, Meiselman responded:
“[there are] multiple people to blame. I mean, he was referred back to the prison, the correctional institute, where they were obviously aware that he had fractures, and he was obviously in pain. He obviously had a dysfunction. He also had medical issues prior to all this, and it would be my assumption that somebody in the Department of Corrections Medical Department or Dental Department should have seen to it that this patient was – got definitive treatment within a reasonable period of time.”


Meiselman examined claimant in December 2005 and concluded that claimant had excellent symmetry of his cheekbones and his lateral and protrusive movements of his jaw were all within the normal range. However, claimant could only open his mouth more than 11 millimeters (mm) wide without incurring pain and a normal range for claimant would be 35 mm. Meiselman conceded that pain was subjective and that he observed claimant open his mouth 12 mm when examined by defendant’s expert (T:183). Meiselman also noted that, three days post-surgery, claimant could open his mouth more than 25 mm (T:198) and, approximately two months post-surgery, could open his mouth more than 35 mm (T:246-47). Claimant continues to have numbness in his left cheek and sensitivity to touch on the left side of his face. In Meiselman’s opinion, this minor sensory nerve damage occurred during the surgery. Meiselman further opined that if the sensitivity had not returned within 12 to 18 months post-surgery, then it would not be likely to ever be restored (T:166). According to Meiselman, had the Gillies approach been performed, these sensory impairments would not have occurred because the Gillies approach does not affect any of the neurological innervation to that area (id.). Meiselman attributed claimant’s difficulty eating certain foods and an inability to masticate to the development of scar tissue. He opined that, even with extensive physical therapy, claimant would not likely regain normal full mandibular functions (T:165). Meiselman concluded that the failure to perform surgery on claimant within the opportune time frame was a deviation of the standard of care (T:169).

Meiselman opined that if claimant had been seen by a maxillofacial surgeon on June 19, 2002, approximately three weeks post-injury, surgery would have been “definitely indicated and actually should have been done by this time” (T:243). If claimant had not been seen by a specialist, then it was a deviation not to seek out the opinion of a specialist (T:282).

Dr. Aman Bakshi, a primary care physician at Sing Sing, testified on behalf of defendant. Bakshi examined claimant and ordered an x-ray be taken on May 31, 2002. The x-ray revealed a comminuted depressed fracture of the left zygomatic arch. According to Bakshi, when an inmate suffers a fracture, it is Sing Sing’s routine procedure to send the inmate to the emergency room at St. Agnes “to have him seen by a specialist who deals with these things” (T:318). Bakshi explained, “[w]e don’t deal with it. They tell us what to do” (T:318). Bakshi completed the top half of a consultation request form. The form accompanies a claimant to the hospital and the consultant at the hospital reports on the bottom half of the form, which accompanies the claimant when he is returned to the facility. The report confirmed the diagnosis of the fracture and outlined as a plan, Tylenol PM for pain PRN (as needed), follow-up Dr. Petti (Ex. A, p 155). Bakshi explained that he never followed up with Petti because he was not affiliated with DOCS and Bakshi could not follow up with someone who is not affiliated with the facility (T:311-12). St. Agnes also returned another consultant form signed by Petti which indicated: patient stable; discharge with follow-up; “possible OR [surgery]” (Ex. A, p 476). Bakshi conceded that this was a vague plan, but made no effort to find out what specifically should be done. He testified that:
“[m]y understanding is what he wrote. The patient is stable and there was a possibility of operation in the future. He said the word possible OR. That’s all he said.” (T:317). ***

“When he say [sic] that the patient is stable that means the patient is stable, and there’s no -- you know, so -- and we admitted him for observation.”
(T:318). When claimant returned from St. Agnes, he was admitted to the Sing Sing infirmary for observation to follow his vital signs, administer pain relief, and provide a soft diet (T:319).

Claimant was discharged from the infirmary on June 3, 2002 with a soft diet and a request for follow-up with an oral surgeon “[that] month” (Ex. B, p 12). Bakshi explained that an oral surgeon only visits Sing Sing once a month for a scheduled clinic. Bakshi indicated on the form that he requested that claimant be seen “soon,” within “14 days” because Bakshi wanted claimant to be seen at the next possible clinic (id.). Bakshi did not indicate “emergency” or “urgent” because St. Agnes had indicated that claimant was stable (T:330). Bakshi further testified that, if claimant’s condition had been considered an emergency or urgent, then St. Agnes “would have kept the patient and done the surgery” (id.). Instead they returned the patient as “stable” and indicated “possible surgery” (id.). The bottom of the form noted “cancelled at provider request” (Ex. B, p 12). Bakshi could not explain what this meant. Claimant was seen by an oral surgeon at the facility on June 19, 2002 (T:347). Bakshi, as a primary care physician without any dental or oral surgery training, did not know if this was soon enough considering claimant’s fracture.

Dr. John Perilli, a general internist, testified that he has been employed as the Facility Health Service Director (also known as the Medical Director) of Sing Sing since December 2, 1999. Perilli is the highest medical authority at Sing Sing. He supervises all aspects of the medical department and nursing staff and has administrative supervision over the dental department. He reviews all consults and is personally involved in all infirmary cases.

Perilli explained the course of treatment that claimant received. On May 30, 2002, claimant was seen in the Sing Sing emergency room and, through an audiovisual hookup, Dr. Coggin at the Erie County Medical Center was consulted. Coggin diagnosed a contusion on the left side of claimant’s face, but determined that there was no eye entrapment and no entropion (inversion of the eyelid). Involvement of the eye is a particular concern with facial injuries. Coggin prescribed pain medication, ice packs and directed x-rays to be taken the following morning. Perilli testified that Sing Sing recognized that claimant had a zygomatic arch fracture and that the facility was limited in its ability to handle acute facial trauma. Therefore, plans were made to send claimant out for further evaluation and to confirm the diagnosis (T:392). A consultation form was prepared for claimant. Sing Sing fills out the top part of the form and the bottom part is completed by the outside consultant who does the examination. The entire form is then returned to Sing Sing with the patient. After claimant returned from St. Agnes, the bottom part of the consultation form indicated “follow up with Dr. Petti” (Ex. A, p 155; T:396).

Perilli explained that there was never any follow-up with Petti because he does not have a contract to provide care to Sing Sing inmates. Sing Sing employed three full time general dentists and had a contract with a Dr. Moore, an oral maxillofacial surgeon, to conduct an oral surgery clinic once a month. Specialists, like Moore, have no restrictions on their outside practices and, according to Perilli, are independent contractors.

Claimant returned from St. Agnes with two consultation forms which diagnosed the zygomatic arch fracture. After reviewing the forms and claimant’s x-ray, Perilli made the medical assessment that it was an isolated fracture, with no other facial trauma, no nerve root compression (T:418; Ex. A, pp 155). Perilli stated that, in the absence of nerve root compression, a zygomatic arch fracture is “not a life threatening fracture” and “it’s treated as a cosmetic defect” (T:498-99). In Perilli’s opinion, claimant’s condition was not an emergency requiring “urgent operative intervention” (T:419) or surgery within a two week period (T:497). The progress notes of claimant’s stay in the infirmary indicate that claimant was alert and orientated with no edema and clear eyes (Ex. A, p 478).

Perilli testified about the June 3, 2002 request form for an oral surgeon consult signed by Bakshi and requesting a consult “soon,” within “14 days” (Ex. B, p 12). Perilli’s signature also appeared on the document indicating that he had read it. All consults are reviewed by Corrections Physician Service (CPS), an HMO, contracted to evaluate, approve or deny requests. CPS arranges appointments. Perilli explained that “canceled at provider request” indicated that a medical clerk at Sing Sing had canceled the consult at Westchester County Medical Center because claimant was scheduled to see Moore at the Sing Sing oral surgery clinic on June 19, 2002 (T:428). While Perilli had approved the request for an earlier consult, he was “medically overruled” by somebody else in Albany (T:515).

Claimant visited Sing Sing’s regular dental clinic on June 5, 2002. He was given antibiotics and put on a soft diet. On June 10, 2002, he was examined at the dental clinic and it was noted that there was no sign of diplopia (double vision) or fracture of the orbital floor. Claimant was kept on a soft diet and given Naprosyn (Ex. B, p 2). On June 19, 2002, claimant was seen by Moore, an oral maxillofacial surgeon. Moore is responsible for making recommendations to the staff dentists at Sing Sing. Moore found, in terms of pupils, no evidence of entrapment, and a depressed zygomatic arch. Under assessment, he wrote, “[h]ealing zygomatic [fracture]” and the plan noted that he had discussed with patient consideration for surgical intervention (Ex. B, p 11). There was no indication there was a need for immediate surgery (T:437).

On July 15, 2002, Soni wrote that she talked to Bakshi about sending claimant to an outside hospital. Claimant went to Westchester County Medical Center on July 30, 2002 and the oral surgeon requested a CAT scan; it was approved for early September. Soni spoke to the processing people in Albany to schedule surgery at the Westchester County Medical Center. Perilli explained that there are people in DOCS in Albany who serve as a liaison between CPS and Sing Sing to schedule surgery. On September 17, 2002, Soni called Brady directly at Westchester County Medical Center to try to expedite the surgery. Surgery was scheduled for October 25, 2002, but then cancelled by the Westchester County Medical Center. The surgery was rescheduled for December 2002.

After the surgery, claimant was directed to do jaw exercises twice a day. Claimant’s dental progress notes reveal that, on December 17, 2002, claimant was advised that he was doing the exercises too frequently and not allowing the area to heal (Ex. B, p 7). On December 13, 2002, Weber noted “normal healing” (Ex. A, p 163), and on the January 3, 2003 follow-up visit, he wrote, “[patient] much improved” (Ex. A, p 164). Brady assessed claimant’s condition on February 14, 2003 as “good healing. No problems detected” (Ex. A, p 162).

Perilli testified that he had read claimant’s x-ray. He knew that a zygomatic arch fracture was not life-threatening in the absence of nerve compression and, having seen hundreds of such fractures over the years, he thought it would be operated on eventually. As a general rule, he knew that if surgery is delayed it may result in the need for a more extensive operation. Perilli did not have any surgical or dental training and therefore relied on specialists.

Dr. David A. Behrman, a board certified oral maxillofacial surgeon, offered expert testimony on behalf of defendant. Behrman testified that there are a number of different approaches to zygomatic arch fractures, but that early treatment, before 10 to 14 days post-injury, is easier (T:546). Behrman stated that, even up to three weeks post-injury is still manageable (id.), but “I don’t think I would want to go much longer than that if I could avoid it” (T:547). He explained that after three weeks post-injury, it is harder to regain the natural support of the arch and to get the reduction to stay in place (id.). Behrman disagreed with Meiselman’s opinion that surgery should be performed as quickly as possible. Behrman explained that there is no emergency in this type of injury so you can wait for the swelling to subside a bit and get a better look at the face (T:547-48). Behrman disagreed with Meiselman’s opinion that with early intervention a patient would be on a normal diet in a few days. Behrman stated that, even with an early intervention, post-operative care required a restricted diet for four to six weeks so as to not put stress on the arch reduction (T:552). Behrman also testified that, if an early procedure is not performed, then the fracture can be later addressed functionally with a coronoidectomy and cosmetically with an implant. He described a coronoidectomy as a “simple procedure” (T:549-50). He also stated that, in many cases surgery is unnecessary because the fracture is not causing any functional problems (T:550-51).

Based upon Bakshi’s review of claimant’s medical records, Behrman testified that claimant was sent to St. Agnes for evaluation and treatment and the emergency room physician called in Dr. Petti, an oral and maxillofacial surgeon, for a consult. As noted in the record, Petti’s treatment plan was to discharge claimant and follow up with possible surgery (Ex. C, p 6). Behrman opined that at that point it was not clear whether Petti felt that surgery was necessary and there was no indication that claimant had to be evaluated for surgery within a particular time frame. According to Behrman, “[i]t’s the responsibility of the consultant specialist, the person who has been asked to take responsibility to do just that and manage the patient accordingly and be very clear in any statements, to follow up accordingly, to arrange tests accordingly, to do all of the things that they are supposed to do” (T:559). Behrman insisted that he would expect Petti to call the personnel at Sing Sing and not the other way around. Behrman concluded that Petti deviated from the standard of care by just “[dropping] the ball” and not following up on claimant (T:615). From his experience, Behrman would not expect a referring internist or regular dentist to know that there was a 10 to 14 day window within which it was most desirable to perform the surgery.

Behrman examined claimant at Sing Sing and noted that claimant still has decreased sensitivity on his left cheek and discomfort opening his mouth wide and pushing his jaw to the left. Behrman opined that claimant’s condition will remain the same unless he does additional exercises. Behrman attributed claimant’s current complaints to the surgery and the initial injury. He qualified his opinion by explaining that it was not possible to determine whether the surgery or the injury were the cause of his lack of sensitivity and limited range of movement. He stated that, even if claimant had surgery within the earlier window of opportunity, claimant’s results were normal sequelae of surgery and a common result from this type of injury. According to Behrman, the same sequelae would exist regardless of the timing of the surgery. Behrman stated that it is to be anticipated that, after a blow hard enough to break a zygomatic arch, a person will experience tightness and not be able to open his mouth as wide as in the past. Behrman measured claimant’s ability to open his mouth as 30 mm, which should be sufficient for any future dental work.

Behrman, like Meiselman, agreed that it was preferable to perform the operation within 10 to 14 days rather than after three weeks. He explained that at the earlier time it is easier to just pop the zygomatic arch out and not have to insert an implant. This simple procedure takes 15 to 20 minutes and the patient heals easily. There is no need to remove the coronoid process and the possibility of an infection from the implant is avoided.

The Sing Sing request for an oral surgery consultation dated July 7, 2002, signed by Soni, indicated “[patient] needs surgery at this time” (Ex. C, p 13). Behrman conceded that he would expect surgery to be performed, if possible, within two months. Behrman further conceded that it would have been preferable to operate before October 25, 2002, the first scheduled date for surgery, and certainly before the eventual date of the surgery in December 2002. Nonetheless, Behrman maintained that the date of the surgery did not negatively affect claimant’s outcome.

Behrman opined that the medical personnel at Sing Sing did not deviate from the standard of care. In his view, they are not trained to treat the problem and did all that could be expected of internists and regular dentists.
It is well settled that the State owes a duty of ordinary care to provide its charges with adequate medical care (see Mullally v State of New York, 289 AD2d 308; Kagan v State of New York, 221 AD2d 7, 8). To prove that the State failed in its duty and committed medical malpractice, claimant must establish by a preponderance of the evidence that the State departed from good and accepted standards of medical care and that such departure was a substantial factor or a proximate cause of the alleged injury (see Mullally v State of New York, supra; Kaminsky v State of New York, 265 AD2d 306). Claimant contends that defendant was negligent in its failure to schedule claimant for surgery in a more timely fashion and that the delay in failing to have claimant’s injury addressed surgically until six months post-injury caused claimant to endure increased pain and suffering and necessitated a more complicated surgical procedure and caused claimant permanent harm.

Defendant maintains that it did provide claimant with adequate medical care by promptly examining claimant and sending him to St. Agnes for further examination and treatment by a specialist. Defendant emphasizes that the records from St. Agnes indicate that Dr. Petti directed follow-up with possible surgery; however Petti did not indicate that the need for surgery was imminent, nor did he provide any time frame within which claimant should be followed up for further assessment as to the possibility of surgery. Defendant maintains that it properly relied on Petti’s evaluation as a specialist from St. Agnes, and, without any specified time directed by Petti, the June 19, 2002 follow-up visit with the oral surgeon, Dr. Moore, was timely and not warranted any earlier. Additionally, defendant notes that Moore, another specialist, did not feel that claimant’s condition was emergent and needed immediate surgery. Accordingly, defendant maintains that it again properly relied on the expertise of a specialist and the surgery performed in December 2002 was not unduly delayed. Defendant also argues that, if there was any departure from the standards of adequate medical care, then the departure is attributable to Dr. Petti and Dr. Moore, who are not State employees, and, therefore, defendant cannot be held liable for any negligence attributable to them. Finally, defendant argues that claimant has failed to show that any delay in scheduling claimant’s surgery was a proximate cause of claimant’s post-operative condition because it was just as likely that claimant would have had the same results even if the surgery had been performed within the optimum time period.

While there are instances where a defendant may avoid liability on the basis of its deferral to a specialist’s expertise (see Wasserman v Staten Is. Radiological Assoc., 2 AD3d 713), or on the basis of the negligence or malpractice of physicians who neither employed by defendant nor within defendant’s control (see Hill v St. Clare’s Hosp., 67 NY2d 72; Warden v Orlandi, 4 AD3d 239; Rivers v State of New York, 159 AD2d 788), this, however, is not such a case because defendant’s liability does not hinge upon a finding of negligence attributable to Dr. Petti and Dr. Moore. Rather, this Court finds that, without reaching the issue of whether Dr. Petti and Dr. Moore were negligent, the record supports a finding of negligence attributable to defendant for its own decisions and management of the treatment rendered to claimant during his incarceration (see Datiz v Shoob, 71 NY2d 867; see also Mandel v New York County Pub. Adm’r, 29 AD3d 869, 870-71 [“Although the mere referral of a patient by one physician to another does not generally render the referring physician liable for the negligence of the treating physician (citations omitted), joint liability may be imposed where the referring physician was involved in decisions regarding diagnosis and treatment to such an extent as to make them his or her own negligent acts”]).

Claimant has demonstrated a basis for holding defendant liable for its own continued care of claimant after he was examined only once by Petti in the emergency room at St. Agnes and then returned to defendant’s custody for possible follow-up surgery (see Oelschlagel v United Parcel Serv., 23 AD3d 359 [single examination by physician did not render him responsible for patient’s care subsequent to that consultation]). The Court is mindful that Petti did not specify a time period within which to follow up with claimant regarding the possibility of surgery. Nonetheless, claimant’s condition and repeated complaints of pain, difficulty eating, and significant weight loss should have prompted defendant to address the possibility that claimant might need surgery sooner and to schedule claimant for a follow-up visit with a specialist in a more timely fashion.

Accordingly, this Court finds that defendant was negligent in failing to send claimant for follow-up as was needed and that this delay contributed to claimant’s continued pain and suffering, and his lost opportunity for a timelier and less invasive surgical repair. Defendant’s expert conceded that early surgery provides for the option of a less invasive procedure with fewer potential risks. Claimant was not afforded that option because of defendant’s negligence in its management of claimant’s care while in its custody. Defendant’s expert further testified that he would not have wanted to delay surgery on claimant any longer than three weeks post-injury. Defendant’s expert also testified that he would have expected surgery to be performed before October 25, 2002 and certainly before the eventual date of surgery, six months post-injury. The Court finds the testimony of Sing Sing’s medical director to be cavalier in his characterization of claimant’s need for surgery and Perilli’s assumption that claimant would eventually be operated upon. The Court rejects defendant’s attempt to avoid all liability by shifting the blame on those whom defendant asserts are independent contractors for whom defendant may not be held liable (see Soltis v State of New York, 172 AD2d 919; Casucci v Kenmore Mercy Hosp., 144 AD2d 910). Rather, the Court finds the State must be held 100 percent liable for its own negligence in providing less than adequate care to claimant.

In assessing the amount of damages to be awarded claimant, the Court has considered that claimant’s post-operative reports indicate that he had good healing and that claimant has not needed any significant medical care since the surgery. The Court also notes that claimant’s ability to open his mouth without pain is somewhat subjective and his examinations by different doctors were not wholly consistent. Additionally, claimant’s own expert could not confirm claimant’s contention that his jaw locked. Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that defendant is 100 percent liable for claimant’s injuries and claimant is entitled to an award of $75,000 for his past pain and suffering and $15,000 for claimant’s future pain and suffering.

It is further ordered that, to the extent that claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act §11-a(2).

All motions not previously ruled upon are hereby DENIED.


November 14, 2006
White Plains, New York

Judge of the Court of Claims

[1]. References to the trial transcript are preceded by the letter “T.”