New York State Court of Claims

New York State Court of Claims

RUSHING v. THE STATE OF NEW YORK, #2007-010-002, Claim No. 101013


The Court found that defendant was liable for the delay in treatment and diagnosis of claimant’s TB while incarcerated.

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:
By: Schneider, Kaufman & Sherman, P.C.Howard B. Sherman, Esq., Of Counsel
Defendant’s attorney:
Attorney General for the State of New YorkBy: Wanda Perez-Maldonado, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 21, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


In 1999, during claimant’s incarceration at Tappan Correctional Facility (Tappan), claimant was treated for pericarditis presumably caused by tuberculosis (TB). Claimant also underwent surgery to relieve the pressure around his heart caused by his illness. Claimant contends that his medical condition resulted from his exposure to Inmate A[1] and that defendant was negligent in its failure to remove Inmate A from general population prior to September 14, 1998. Claimant also contends that defendant was negligent in its failure to provide him with timely medical treatment. Defendant maintains that the New York State Department of Correctional Services (DOCS) properly treated Inmate A. Further, while claimant’s medical records refer to presumed TB pericarditis, defendant contends that claimant had idiopathic pericarditis, which is not attributable to TB. Accordingly defendant maintains that claimant’s illness was not attributable to his exposure to Inmate A.

Tappan is a medium security facility on the grounds of Sing Sing Correctional Facility (Sing Sing) where inmates are housed in dormitory style quarters. From July 26, 1998 to September 14, 1998, claimant was housed in a dormitory adjacent to Inmate A’s dormitory. On September 14, 1998, Inmate A was transported to St. Agnes Hospital (St. Agnes) and, on September 22, 1998, he was diagnosed with active TB. Claimant testified that he and Inmate A had frequent contact prior to his diagnosis. They played dominos, talked, watched television, showered and cooked together everyday. Claimant spent little time with John Simmons, another inmate who was diagnosed with TB in 1999.

Claimant maintains that he became ill in late October 1998 and reported to sick call with complaints of fever, chest pains, bloody sputum, and coughing. Claimant’s Ambulatory Health Record, however, indicates that claimant’s first sick call visit related to respiratory complaints was on December 3, 1998 (Ex. 3, p 7). Claimant testified that he went to sick call approximately 10 times prior to the end of February 1999. During that period, claimant lost 45 pounds.

Claimant stated that he had stabbing chest pains and was admitted to St. Agnes Hospital on February 26, 1999. He was tested for TB and, on March 3, 1999, he had heart surgery to relieve the pressure around his heart. He was administered pain medication after the surgery. Thereafter, claimant was twice readmitted to St. Agnes because of stabbing chest pain. He has two scars on his chest from the surgery. Claimant’s symptoms improved after a six-month regimen of medication.

Since 2002, claimant has not received any treatment for his chest or heart and has regained the lost weight. Presently, claimant’s only complaint is a recurring cold that lasts three weeks out of every month. He has not gone to any doctors for heart or chest pain.

Robert E. Fiore, who was employed at Sing Sing from 1997 to May 2000 as a Regional Infection Control Nurse, testified that in this position, he acquired knowledge of all diagnosed cases of active TB at Sing Sing during 1998 and 1999. DOCS policy on the prevention, detection, containment and treatment of TB is contained in Claimant’s Exhibit 6 and Fiore explained that, as a means of preventing the spread of TB, every inmate is screened upon entry into the correctional system. The screening consists of a Purified Protein Derivative (PPD) skin test and a chest x-ray. Pursuant to policy item 1.18, inmates receive a PPD test annually. A positive reaction to the PPD test (a swelling of greater than five millimeters) indicates that an individual has been exposed to TB and has a latent infection. A person who has a positive PPD will always test positive. Therefore, repeat PPD tests are not given to such inmates. Fiore noted that there is a difference between a latent TB infection and the active TB disease. Active TB is marked by symptoms of fever and coughing. To confirm a diagnosis of active TB, sputum specimens are evaluated for Acid-Fast Bacillus (AFB) by means of smear and culture tests. While awaiting the culture test results, DOCS policy is to place the inmate in a respiratory isolation room.

Fiore explained that, since TB is spread through airborne particles, contact investigations are conducted to evaluate anyone who may have been exposed to active TB. Individuals are given a PPD test and examined for possible signs of active TB. Pursuant to DOCS policy, investigations begin with close contacts and then extend to lower-risk groups in a concentric circle approach. A baseline PPD is obtained and 12 weeks later, the longest time it takes to convert from a negative to a positive PPD response, another test is administered. The testing extends in stages to progressively lower-risk groups until the rate of conversion is less than one percent.

In 1996, Inmate A had a positive PPD test and was treated with a six-month regimen of prophylactic isoniazid (INH) and vitamin B6. This medication is routinely given for latent TB infections. On July 30, 1998, Inmate A presented at sick call with complaints of fever, chest pain and coughing. His physical examination revealed a temperature of 99.4 degrees and clear lung fields (Ex. 5, p 13). He was advised to decrease smoking and increase his fluids. Inmate A was next seen 32 days later at sick call on August 31, 1998. He was not examined by a doctor at either visit.

When questioned at his examination before trial about the July 30, 1998 sick call visit, Fiore characterized 99.4 degrees as a low grade fever and referred to Inmate A’s fever multiple times. At trial, however, Fiore testified that he had been wrong when he repeatedly referred to 99.4 degrees as a fever. Fiore was asked at trial whether a person who presents with fever, a positive PPD, complaints of chest pain and coughing should have follow-up care. Fiore responded affirmatively and stated that the failure to have follow-up care would be a departure from medically acceptable standards. Fiore, however, distinguished such a case from Inmate A’s situation because he did not have a fever. Only a temperature greater than 99.6 should be considered a fever and Fiore insisted that a follow-up visit was not indicated for Inmate A because he had a temperature of only 99.4. Fiore maintained that Inmate A was properly treated symptomatically. His lung fields were clear and it was appropriate to advise him to decrease smoking and increase his fluid intake.

On October 1, 1998, DOCS initiated a contact investigation at Sing Sing based on Inmate A’s diagnosis of TB. The period of infectivity was determined as July 16, 1998 (two weeks prior to Inmate A’s first complaint) to September 14, 1998 (when Inmate A was transferred). In the first step of a contact investigation health professionals visit the site and assess the housing arrangements. In this case, Inmate A had been housed in a dormitory-style setting with 50 beds in a large open area measuring approximately 75 to 100 feet by 75 feet. Claimant resided in an adjacent dormitory separated from Inmate A’s dormitory by a wall and an open correction officers’ station, described as a pass through measuring 10 feet by 3 feet. Initially, 44 employees and the 27 inmates assigned to the beds surrounding Inmate A were PPD tested and examined; this was completed by November 16, 1998. The testing was thereafter expanded twice to the next group of beds until the conversion rate was zero. The trace investigation was completed by February 12, 1999 (Ex. B). Claimant was not a subject of the trace investigation because he was housed in the adjacent dormitory.

On April 1, 1999, DOCS initiated a contact investigation at Sing Sing based upon a diagnosis of TB of another inmate, John Simmons (Ex. C). Claimant was not a subject of that investigation either because he was already being treated with a TB drug regimen referred to as RIPE (rifampin, isoniazid, pyrazinamide, ethambutol).

Claimant’s medical records reveal that, on March 1, 1999, his TB skin test was positive while his sputum smear and tissue exam were negative. His chest x-ray was abnormal (Ex. A, p 7). Referring to claimant’s medical records, Fiore testified that, on March 3, 1999, claimant was operated on at St. Agnes for emergency pericardial fenestration. A biopsy obtained was negative for AFB. Claimant was started on RIPE for presumptive extrapulmonary TB of the pericardium (Ex. A, p 68). There was no clinical or microbiological indication of pulmonary involvement. Claimant’s medical records further reveal that as of March 30, 1999, he was treated for empiric pericarditis TB. While his AFB smear test remained negative, he had a productive cough, shortness of breath, and chest pain. Fiore explained that the terms empiric or presumptive meant that the symptoms, while characteristic of a disease, are not confirmed by the biological evidence.

Claimant was treated successfully with Biaxin and amoxicillin and continued on the RIPE drug regimen. Although the microbiologic testing failed to identify the AFB organism, he remained on the TB medications for six months. Claimant was never diagnosed with active TB, even though he was treated for symptoms associated with TB. Claimant’s medical records indicate that he was treated for “idiopathic pericarditis (?TB)” (Ex. A, p 101). A year later, on April 26, 2000, claimant’s medical records evidence that he had lower lobe pneumonia. Again, the assessment was that claimant had idiopathic chronic pericarditis and was s/p (status post) extrapulmonary pericardial TB (Ex. A, p 69).

Dr. Igal Staw offered expert testimony on behalf of claimant. Staw is board certified in internal medicine and pulmonary medicine. When presented with the facts surrounding Inmate A’s sick call visit of July 30, 1998, Staw stated that 99.4 degrees was a low grade fever and Inmate A presented with symptoms consistent with TB. Staw noted that acute bronchitis was a possibility and, therefore, the patient should have been started on an antibiotic. In his view, health teaching alone was insufficient. Also, the patient should have been directed to return to the infirmary in five to seven days; instead, Inmate A did not return until August 31, 1998, complaining of chest congestion. On that visit Sudafed and Tylenol were prescribed. Staw considered these drugs insufficient. As of August 31, 1998, Staw opined Inmate A required an antibiotic or more appropriate medication.

Inmate A presented at sick call on September 11, 1998. He had a productive cough, fever, weight loss, a positive PPD and a history of six months of treatment with INH and Vitamin B, coarse bronchi, and a temperature of 99.6. A chest x-ray was taken and amoxicillin was prescribed. According to Staw, this antibiotic is a good choice for initial symptoms; however a stronger medication was necessary given claimant’s history.

Staw opined that the failure to remove Inmate A from the general population until September 1998 constituted a departure from reasonable standards of medical care because he should have been removed immediately once TB was suspected (T:45).[2]

Referring to claimant’s medical records, Staw testified as to claimant’s treatment at Sing Sing and St. Agnes. On December 3, 1998, claimant presented at sick call at Sing Sing complaining of a sore throat for three days and a productive cough with yellow, green, blood streaked sputum. This was suggestive of infection and erosion of his breathing tube. Audible bronchi were noted. Bactrim was prescribed and the plan was to rule out bronchitis. Staw testified that this was a proper manner of treatment.

On December 28, 1998, claimant again presented at sick call. He complained of chest pain and had cold symptoms. On December 29, claimant had wheezing and a productive cough (Ex. 3, pp 8-9). Throughout January, (January 7, 14, 20, 22, 28, 29, 1999) claimant presented at sick call with complaints of a chronic cough, pleuritic chest pain (pain when breathing), shortness of breath, fever, and chills (Ex. 3, pp 10-13). Claimant’s complaints of coughing and green, brown sputum continued in February (February 9, 16, 26, 1999)( Ex. 3, pp 14-16). On February 28, 1999, claimant was admitted to St. Agnes with continuing respiratory complaints, a fever, and sweats. The plan was to rule out TB. By March 1, 1999, claimant had hemoptysis (spitting up blood) and a large pericardial effusion (fluid around the heart). It was suspected that claimant had pericarditis caused by the TB bacteria. On March 3, 1999, claimant underwent an operation to cut a window in his pericardium to drain the fluid from his chest and thereby relieve the pressure on his heart. Following surgery, claimant was administered Percocet for pain. Samples of the fluid and pericardial sac were taken to determine the presence of TB bacteria. These tests eventually proved negative. On March 9, 1999, claimant was released to the Sing Sing hospital.

Claimant was readmitted to St. Agnes on March 25-26 and April 26-28. There are multiple references in claimant’s medical records that he was diagnosed with and being treated for presumptive extrapulmonary TB of the pericardium (i.e., Ex A, pp 68, 69; Ex. A, pp 46, 55, 61, 68, 70). There is nothing in claimant’s medical records suggesting another possible diagnosis. Staw concluded that claimant suffered from TB pericarditis based upon the progression of his disease and his prior exposure to TB. Moreover, Staw noted that claimant responded positively to the prednisone and RIPE regimen, which is the conventional treatment for TB. In Staw’s view, the fact that the tests were negative in detecting the presence of the TB bacterium did not preclude a diagnosis of TB pericarditis because, in many cases, a negative test result is due to an insufficient number of bacteria in the culture.

Staw conceded that to make a definitive determination of TB, there must be granulomas, changes in the cells and a finding of AFB. In claimant’s case, there were no positive cultures of TB bacilli, no AFB in the pericardial smear, and no granuloma changes in the cells indicative of TB. Nonetheless, Staw insisted that even in the absence of these findings, a clinical diagnosis could still be made based upon the symptoms exhibited and the fact that claimant was in a prison setting, which is conducive to TB. Additionally, claimant had responded to the RIPE medications. Staw discounted the fact that claimant was also taking prednisone, but conceded that there was no definitive way of knowing which drug is attributable to benefitting claimant.

Staw maintained that if claimant had been treated promptly for TB, he would not have developed extrapulmonary TB and would not have required surgery. Staw also opined that, if claimant had frequent contact with Inmate A, it was more likely that Inmate A was the source from whom claimant had contracted TB and not another infected inmate with whom claimant had little contact. Staw testified that claimant has permanent scars from the operation and in the future will be more susceptible to colds and a reoccurrence of TB because TB predisposes individuals to damaged bronchi and increased mucous production.

Dr. Harish Moorjani testified that he is a board certified physician in internal medicine and infectious disease. Since 1994, he has provided infectious disease services for DOCS and from 1996 to 2003 worked as an infectious disease consultant at St. Agnes. Moorjani has diagnosed and treated approximately 20 inmates with TB. In addition to the correctional system, he has treated more than 1000 patients with TB and has diagnosed more than 500 patients with the disease. Since 1987, he has treated approximately 50 patients with pericarditis and five patients with pericarditis TB.

Moorjani testified that TB is an infection of the human body based on a specific bacteria and is contracted by inhaling. There is a distinction between having a latent TB infection, where the TB remains dormant, and an active case of the disease associated with the presence of typical symptoms. Generally, a combination of INH and vitamin B6 is administered for six months to prevent the latent infection from developing into the active disease. In terms of pericarditis, Moorjani explained that its diagnosis requires that fluid be aspirated and a biopsy done of the tissue. If pericarditis continues for an extended period, it results in the growth of fibrous tissue which constricts the heart.

Moorjani treated claimant at St. Agnes and was familiar with his records and condition. Moorjani reviewed the course of treatment claimant received at St. Agnes and testified that by March 2, 2003, claimant’s condition was worsening and he had a large pericardial effusion. At that time, Moorjani wrote “Impr: (Impression) ?TB pericarditis” (Ex. 1, p 23). He reached this conclusion because claimant stated he was exposed to TB in October 1998, his TB test was positive, and the abnormality was indicative of pericarditis. Moorjani also pointed to a series of other tests ordered to determine the underlying ideology of claimant’s disease.

Moorjani consulted with a pulmonologist and a cardiologist to manage claimant’s case. To address the inflamation which was causing cardiac compromise to claimant, surgery was performed to drain the fluid. After the procedure, the pericardial fluid and a biopsy of the tissue were tested for the presence of AFB. Moorjani testified that he wrote, “Impr: Presumed TB Pericarditis” in claimant’s hospital records (Ex. 1, p 72) because inflamation of the heart lining may be caused by TB and it was established that claimant had pericarditis, had been exposed to TB, and had a positive PPD. The plan was to treat claimant for TB and begin the RIPE regimen. Although claimant’s test results suggested no infectious ideology (Ex. 1, p 103), the anti-TB medications were continued as well as prednisone to treat the inflamation. Moorjani also ordered additional tests to look for noninfectious reasons for claimant’s pericarditis (Ex. 1, p 87). When claimant was discharged from St. Agnes on March 9, 1999, Moorjani wrote in the discharge summary, “Presumed TB pericarditis” (Ex. 1, pp 68-69). Moorjani explained that the culture was still pending and he believed it was probably extrapulmonary TB. Claimant had a cardiac catherization at Westchester Medical Center on March 11, 1999.

Claimant was readmitted to St. Agnes on April 26, 1999. At that time, Moorjani noted in claimant’s Admission History that he was presumed to have TB pericarditis and that the biopsy from the pericardial window showed “chronic granulomatous pericarditis” which was indicative of TB (Ex. 2, p 5). At trial, however, Moorjani testified that this finding was an error and that there was no evidence of granulomas. Moorjani never corrected the error in the written record. He maintains that his further writing on April 26, 1999 demonstrates that he was still considering other possibilities, i.e., “Presumed TB pericarditis vs idiopathic vs sarcoid” (Ex. 2, p 9). Nonetheless, on claimant’s discharge summary of April 28, 1999, Moorjani again wrote “Recurrent chronic idiopathic pericarditis ?TB” (Ex. 1, p 12) even though by that date all pathology tests had been completed establishing that there was no AFB. Moorjani maintained that claimant did not have TB pericarditis and that the care he received at St. Agnes conformed with good and accepted practices.

When questioned why claimant’s ambulatory health records continued to reflect claimant’s treatment for presumptive pericarditis TB even after the tests purportedly ruled out TB, Moorjani simply stated that the assumptions made were wrong. These he concluded were possibly based on his own incorrect notations (Ex. 3, pp 89, 92, 101, 109, 122). Moorjani testified that his plan of April 26, 1999, continuing claimant on INH, rifampin and vitamin B6 for “presumed tuberculous pericarditis” was also an error (Ex. 1, p 9).

Moorjani testified that claimant had chronic idiopathic pericarditis in addition to TB exposure. Moorjani acknowledged that claimant had latent TB and that he had been exposed to someone with TB, but Moorjani maintained that claimant did not have TB pericarditis.

When questioned about Inmate A, Moorjani testified that a patient presenting with Inmate A’s complaints on July 30, 1998, should receive symptomatic care. He was a young man with no underlying medical condition who appeared with upper respiratory issues that were acute and not more than three weeks in duration (T:383). In Moorjani’s view, Sing Sing’s treatment of Inmate A on July 30, 1998 was not a departure from good and acceptable medical practice and it was not necessary to place Inmate A in isolation.

From July 30, 1998 until his admission in St. Agnes, Inmate A was never seen by a doctor. Moorjani testified that Sing Sing’s treatment of Inmate A on August 31, 1998, September 11, 1998, and September 14, 1998 also constituted acceptable medical care.

Moorjani disagreed with Staw as to the likelihood that claimant would develop TB again. Moorjani testified that since claimant had a full course of TB therapy, this risk was negligible. Moorjani also maintained that there is no predisposition for respiratory infection from pericarditis.

Dr. Bruce Farber, the Chief of Infectious Diseases at North Shore University Hospital in Manhasset, New York, testified on behalf of defendant. He is board certified in internal medicine and infectious disease.

Farber testified that, based on his experience, only one percent of people infected with latent TB develop TB outside the lung and, of that group, only 10 percent involve the pericardium. If TB is outside the lung, the signs and symptoms are related to the organ affected. Farber agreed with Staw that the chances of contracting TB are greater in prison where a high percentage of the population is HIV positive and up to 30 percent of the population have latent TB and they are all within close proximity to each other (T:522-23).

Farber explained that pericarditis is an inflamation of the lining of the heart. Ninety percent of cases are caused by a viral infection and it is rare that the virus can be isolated; therefore the cause is often termed idiopathic or of an unknown cause (T:523-24). Farber explained that with “greater than 90 percent of people with pericarditis, you don’t make a diagnosis” (T:531). Ten percent are caused by cancer, TB, or another immune deficiency disease. It is most commonly diagnosed clinically by listening to the chest and hearing an abnormal scratching noise. Echocardiograms, chest x-rays and EKGs are also utilized.

TB pericarditis is caused by the invasion of the TB organism into the lining of the heart. It is diagnosed by a biopsy of the pericardial tissue, observing granulomas in the lung and pericardium. Farber further noted that TB pericarditis evidences itself as constrictive pericarditis which prevents the heart from beating. This condition can be detected through a cardiac catherization or an echocardiogram.

Based upon a review of claimant’s medical records, Farber opined that claimant never had TB pericarditis. While acknowledging that claimant had latent TB, Farber maintained that the pericarditis was unrelated (T:533). He reached this conclusion because claimant’s sputum test was negative, his chest x-ray showed no evidence of TB, the biopsy of the pericardial fluid and tissues indicated the absence of granulomas or the TB organism and claimant’s cardiac catherization revealed no evidence of constrictive pericarditis. Farber considered it reasonable to treat claimant initially for TB, even though eventually there was no support for the TB pericarditis diagnosis. The fact that claimant improved on the RIPE regimen did not mean that he had TB. He also benefitted from the steroid therapy, the pericardium window, and the passage of time.

Farber testified that the treatment claimant received from the first time he presented at the Sing Sing clinic on December 3, 1998 to his admission to St. Agnes on February 26, 1999 met acceptable standards of medical care. Farber stated that, in retrospect, claimant had pericarditis, but the disease is not easy to diagnose (T:534-35). Farber maintained that claimant was treated correctly in that he underwent every procedure medically recognized as reasonable to make a diagnosis. Farber further testified that claimant’s treatment at St. Agnes from February 26 to March 9, 1999 was not a departure from good medical care. He was prescribed the RIPE regimen and underwent an aggressive workup to confirm a diagnosis of presumptive TB pericarditis. Further, on March 11, 1999, he had a cardiac catherization. Farber also maintained that claimant’s subsequent stays at St. Agnes were not a departure from acceptable medical practice.

On cross-examination, Farber was asked to review the almost three-month time period during which claimant only saw a nurse or physician’s assistant on his multiple visits to the Sing Sing infirmary. Farber conceded that he probably would have wanted such a patient to be examined by a doctor (T:567). Farber noted that the prison population is more likely to be exposed to TB; therefore it was probably more important for a patient from such an environment to be seen by a doctor when exhibiting symptoms of TB as opposed to a patient not within a prison setting. Farber agreed, a productive cough with blood streaked, yellow-green sputum and chills can be indicative of TB. Nonetheless, Farber declined to view the failure to have claimant examined by a doctor as a departure from reasonable medical care. Farber conceded that every patient with pericarditis does not necessarily require a window operation and that if claimant had been diagnosed earlier, then the period of time during which he suffered would have been shorter and would have lessened the likelihood that he would have required the window operation (T:620-21).

Farber maintained that neither TB pericarditis nor pericarditis would lead to a higher incidence of colds or bronchitis. Pericarditis affects the lining of the heart and not the lungs or bronchi. Farber agreed that, generally, anyone with latent TB would always be at risk for active TB. However, since claimant had already taken TB medication for six months, he would have a lower risk of contracting the disease.

Farber testified that there is no scientific way to determine who exposed claimant to TB since he had contact with many inmates and civilians in addition to Inmate A and John Simmons.

On cross-examination, Farber was asked to read the multiple references in claimant’s medical records to presumptive TB pericarditis. This diagnosis continued to be documented even after all the tests revealed the absence of the TB virus (Ex. 1, pp 9, 14, 20, 22, 23, 25, 27, 62, 69, 70, 72, 77, 91, 294, 295; Ex. 3, pp 89, 92, 95, 101, 105, 106, 111, 117, 118, 120, 122). In Farber’s opinion, there should have been better charting. Moorjani should not have written TB pericarditis after it was established claimant did not have the disease. Presumed TB pericarditis was a working diagnosis. According to Farber, after the cultures came back negative, someone should have synthesized the data.
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 proximate cause of the alleged injury (see Mullally v State of New York, supra; Kaminsky v State of New York, 265 AD2d 306). A departure from good and accepted medical practice cannot be inferred from expert testimony; rather the expert must expressly state, with a degree of medical certainty, that defendant’s conduct constitutes a deviation from the requisite standard of care (see Stuart v Ellis Hosp., 198 AD2d 559; Sohn v Sand, 180 AD2d 789; Salzman v Alan S. Rosell, D.D.S., P.C., 129 AD2d 833). It is also well established that:
“[w]here the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury”

(Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7; see also Bernstein v City of New York, 69 NY2d 1020; Marchetto v State of New York, 179 AD2d 947).

Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimant has failed to establish that defendant was negligent in its medical treatment of Inmate A. Specifically, the testimony of defendant’s expert, Dr. Moorjani, was persuasive (see Scariati v St. John’s Queens Hosp., 172 AD2d 817 [trier of fact was free to reject conflicting testimony regarding causation]). Moorjani testified that DOCS followed its own policy and procedures for the detection, containment, prevention and treatment of TB and did not depart from good and accepted medical standards. While claimant argues that Inmate A was admitted to St. Agnes in September with a two-month history of complaints, it is noted that such history was “obtained from Inmate A” and was not supported by any corresponding documented complaints in the facility’s records (Claimant’s brief at p. 2). Indeed, claimant concedes that the first entry in the facility’s records is for July 30, 1998 (id. at p 3). This is significant because Moorjani testified that he would not have considered Inmate A to have TB on July 30, 1998 because his symptoms had not been present for more than three weeks (T:383).

Both Moorjani and Fiore opined that Inmate A had properly received symptomatic care. While claimant argues that it was a departure from adequate medical care not to remove Inmate A from general population until September 14, 1998, the evidence is inconclusive and purely speculative as to whether such conduct, even if negligent, was a proximate cause in claimant’s medical condition even if claimant’s condition were attributable to TB (see Naughton v Arden Hill Hosp., 215 AD2d 810 [even assuming defendant committed malpractice in its failure to diagnose and admit patient to hospital, there was no proof of proximate cause, i.e., that, had the patient been admitted, the risk of a heart attack would have been prevented or lessened]; Brown v State of New York, 192 AD2d 936 [no proof that delay in treatment contributed to the loss of claimant’s larynx]). However, irrespective of the cause of claimant’s pericarditis, there was an undue delay in treatment which resulted in the need to perform surgery relieving the pressure to claimant’s heart. Indeed, defendant’s own expert, Dr. Farber, conceded that not every patient with pericarditis requires surgery and that if claimant had been diagnosed earlier, then it was less likely that he would have needed such procedure. He further testified that it was more important for a patient in a prison setting to be seen by a doctor because of the increased likelihood of exposure to TB as opposed to a patient not within such environment. This Court finds that had claimant received more timely care by a doctor and had the benefit of an earlier diagnosis, then, as conceded by Farber, the period of claimant’s suffering would have been shorter and claimant might not have required surgery.

Accordingly, the Court finds that defendant is liable for the delay in treatment and diagnosis which resulted in prolonged suffering to claimant, the necessity of surgery, recovery, and the resulting scars from the surgery.

The Court does not find, however, that claimant has sufficiently established a likelihood of claimant’s future susceptibility to colds and a recurrence of TB. Nor has claimant shown any other basis for an award for future damages.

Accordingly, the Court finds $200,000.00 to be reasonable compensation for claimant’s injuries.


March 21, 2007
White Plains, New York

Judge of the Court of Claims

[1]. To protect his confidentiality, an inmate diagnosed in September 1998 with active TB was referred to throughout the trial as Inmate A.
[2]. All references to the trial transcript are preceded by the letter “T.”