New York State Court of Claims

New York State Court of Claims

COX v. THE STATE OF NEW YORK, #2007-010-023, Claim No. 109825


Inmate med mal delay in treatment awarded 56K.

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: Anthony C. Ofodile, Esq.Patrick O’keke, Esq.
Defendant’s attorney:
Attorney General for the State of New YorkBy: Vincent M. Cascio, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 13, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks damages for injuries he allegedly sustained as the result of medical malpractice committed during his incarceration at Sing Sing Correctional Facility (Sing Sing). On September 23, 2002, claimant presented at sick call complaining that he could not hear in his left ear.[1] Claimant also complained of pain in his left ear, a headache, and dizziness. Claimant’s ambulatory health records indicate that for the next four months, claimant returned to sick call on more than 20 occasions with similar complaints, including ringing in his ears. Claimant was treated at the facility with Sudafed, aspirin and Allegra. On January 30, 2003, claimant was examined by an ear, nose and throat (ENT) specialist. On February 20, 2003, an audiologist tested claimant’s hearing and concluded that claimant had “unilateral mild-severe” sensory nerve hearing loss (Ex. A, p 79). Presently, claimant wears a hearing aid.

Claimant contends that defendant’s delay in having claimant examined by a specialist resulted in claimant’s hearing loss, continued dizziness, pain and tingling in his ear. Defendant’s own expert concedes that claimant should have been tested and examined by an expert sooner and that the failure to do so was a deviation from the requisite standard of care. Defendant, however, disputes the impact of the delay and maintains that it had no effect on claimant’s physical condition because claimant has no significant hearing loss.

Claimant testified that he continues to suffer from the effects of a sudden hearing loss he sustained in 2002 and that he still cannot hear on his left side. Although he received a hearing aid in September 2003, claimant stated that he frequently asks people to repeat things and that communication with others is difficult. He also testified that he has constant ringing in his ear which affects his sleep and concentration. Additionally, loud sounds make him dizzy.

Dr. Stephen A. Falk provided expert testimony on behalf of claimant. Falk, a magna cum laude graduate of Tufts University, attended New York University School of Medicine and completed a residency in otolaryngology at Stanford University Medical Center in Stanford, California and a residency in general surgery at St. Joseph’s Hospital in Denver, Colorado. Falk is a Clinical Professor of Surgery and Family Medicine at the University of Rochester School of Medicine.

Falk testified that claimant sustained a sudden hearing loss from an idiopathic or unknown cause. Falk explained that claimant had a sensory inner ear problem that could not be diagnosed by looking at the eardrum, as was done in the facility clinic. Falk opined that claimant should have been examined by a specialist and should have had a hearing test within one to two weeks of his complaints to avoid any long term effects. Falk further noted that just because a problem is not diagnosable, does not mean it is not treatable. He stated that, even without a specific diagnosis, claimant could have been given prednisone which is a common course of treatment for inflammation of unknown causes in the ear. Prednisone is administered intravenously, by injection in the middle ear, or with pills. Falk testified that if claimant had been seen by an expert, claimant probably would have recovered 80 percent of his hearing loss and the ringing in his ears and balance difficulties would have been ameliorated or eliminated.

Falk further stated that clinically, there were objective tests administered which indicated that there was no evidence that claimant has been malingering. To the contrary, claimant had a negative result on a Stenger Test, a test specifically designed to determine if a patient is malingering. Additionally, the results of claimant’s pure tone and speech discrimination test correlated and claimant’s two audiogram tests, administered months apart, produced the same result.

Assessing claimant’s 96 percent score on his word discrimination test, Falk explained that this was not a threshold test. Rather, in such examinations, the words were spoken at a higher decibel level to determine whether an individual can discriminate between sounds.

Falk testified that claimant’s problems will continue throughout his lifetime. The loss of hearing in his left ear will make hearing difficult, particularly in noisy situations, and make it impossible for him to localize sound. Claimant’s ability to hear conversation, even with a hearing aid, will depend upon the background noise. Claimant can also expect to have persistent tinnitus (ringing in ears) and dizziness. A hearing aid would have no effect on the tinnitus or balance issues. Furthermore, there will always be a risk that something could happen to his right ear. Falk conceded, however, that claimant’s hearing loss was primarily in the higher range of frequencies which are not normally utilized in speech.

Dr. Robert J. Ruben, a graduate of Princeton University and the Johns Hopkins School of Medicine, testified on behalf of defendant. Ruben completed his internship and residency at Johns Hopkins and now teaches at the Albert Einstein College of Medicine and Montefiore Medical Center. After reviewing claimant’s medical records, Ruben concluded that claimant’s symptoms were consistent with sound trauma rather than sudden unknown hearing loss. Ruben explained that sudden unknown hearing loss is not associated with pain and usually results in a loss of hearing at all frequencies and not a loss at only higher frequencies. Sound trauma, Ruben stated, is consistent with contra lateral ear, that is the ear opposite to the dominant hand. Here, claimant was right hand dominant and had apparently used a firearm 10 to 15 years ago.

Ruben testified that claimant’s 96 percent word discrimination score indicated that while claimant may have sustained some hearing loss, he can understand conversation and, in the absence of any further exposure to sound trauma, his condition should remain static. Claimant’s hearing loss in the left ear is at high frequencies of 2000 to 8000, which are not utilized in speech. Ruben testified that he would not prescribe a hearing aid for claimant’s condition. Ruben concluded that claimant’s hearing loss was not related to the treatments that he received at Sing Sing, but rather noise trauma related to the firing of a 22-caliber firearm.

Ruben refused to consider the audiologist’s conclusion that claimant suffered a unilateral, mild to severe hearing loss, a disability. Ruben conceded that there was no evidence that claimant was a malinger. Ruben testified he would not have prescribed prednisone because claimant’s hearing loss was minimal and all medications have side effects.

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). Here, defendant has conceded that its delay in having claimant examined by a specialist was a departure from the requisite standard of medical care. 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 established by a preponderance of the credible evidence that the delay was a proximate cause of claimant’s condition, which could have been addressed had he been examined earlier by a specialist. Indeed, claimant’s expert testified that the ringing in claimant’s ears and balance difficulties could have been ameliorated or eliminated if claimant had been examined and treated by a specialist sooner, and that even without diagnosis, he could have been administered prednisone. The Court did not find persuasive the conclusory testimony of defendant’s expert that he would not have prescribed prednisone to claimant because all medications have side effects (see Scariati v St. John’s Queens Hosp., 172 AD2d 817 [trier of fact was free to reject conflicting testimony regarding causation]). The undisputed testimony of both experts was that claimant’s hearing loss was primarily in the higher range of frequencies, which are not normally utilized in speech.

The Court finds that claimant is entitled to $6,000 for past pain, suffering and impairment resulting from defendant’s negligence. In determining future damages, the Court has taken judicial notice of 1B NY PJI3d 1632 [2007] which indicates that a 34 to 35-year-old male has a life expectancy of 41.7 more years. Accordingly, claimant is entitled to $50,000 for his future pain, suffering, and impairment.

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 heretofore ruled upon are DENIED.


August 13, 2007
White Plains, New York

Judge of the Court of Claims

[1]. Previously, claimant had not experienced any hearing problems.