Claimant testified he was apprehended for shoplifting at the Irondequoit Mall
in Irondequoit, New York on October 25, 1999. At the time of the incident,
claimant was 51 years old and, according to his testimony, he was addicted to
both heroin and cocaine.
During the arrest,
Claimant stated he was kicked in his penis, as well as other spots on his body,
by a security guard. He was held in the Monroe County Jail in Rochester, New
York, from the date of his arrest until January 20, 2000. He testified that,
while he was there, he complained that his penis was swelling and that he was in
pain. He was taken to Rochester General Hospital and given an ultrasound. The
ultrasound showed two lumps on his penis.
Following his guilty plea, Claimant was moved to Ulster Correctional Facility
(“Ulster”). He stated that he complained to medical staff there
about his genitals and received treatment. He also was treated by staff at
Franklin Correctional Facility (“Franklin”) when he transferred
there from Ulster. His complaints related to a bleeding and swollen penis.
While he was at Franklin, the doctor there surmised that Claimant suffered from
Peyronie’s Disease. Also while at Franklin, Claimant stated he endured
erections on and off, some lasting as long at six or seven hours. It became
clear on cross-examination that Claimant experienced problems securing medical
treatment while at Franklin. He stated he was often “turned
around,” that is, sent back to his cell without being seen. He
“dropped a sick call slip” (a request to be seen by medical
personnel) about 13 times and he was actually seen only five or six times.
Claimant filed three or four grievances, the exact number was not clear,
relating to his inability to be seen by medical staff. All the grievances
appeared to have been related to the problems with his penis.
Toward the end of his stay at Franklin, Claimant was unable to urinate for a
drug test, even after drinking multiple glasses of water. As a result, he was
sent to a “box” (the Special Housing Unit) at Downstate Correctional
Facility. Claimant stated he bled from his penis “continuously”
while there. From Downstate Correctional Facility, he was transferred to
Fishkill Correctional Facility, where he was examined by a doctor. Claimant
stated that he was then sent to Oneida Correctional Facility
(“Oneida”) due to his medical issues.
Claimant testified he was at Oneida for only a few months. He complained to
the medical staff that he was bleeding and experiencing erections and pain.
Claimant was told there was nothing they could do for him and he was transferred
to Mid-State Correctional Facility (“Mid-State”) in October
Claimant’s medical complaints continued in the same manner at Mid-State,
from his admission until early November 2, 2000, when he saw Dr. Haas at the
Walsh Clinic at Mohawk Correctional Facility. Claimant testified that he told
Dr. Haas about the lumps in his penis and the bleeding but received no treatment
at that time. Then, in the early morning hours of November 11, 2000, Claimant
woke up experiencing chest pain and a “severe erection” that caused
him great pain. He tried to urinate but could not. Claimant stated that around
2:30 a.m. or 3:00 a.m. he went to the guard, requesting medical treatment.
Claimant said he was sent to the infirmary, but they did not know what was
happening and sent Claimant back to his cell. Claimant stated that the pain
grew worse, his stomach became bloated, and he still had the erection. Claimant
continued to experience the above symptoms throughout the day on November 11 and
was still experiencing the same symptoms on November 12. After breakfast on
November 12, a guard sent him back to the infirmary and this time he was seen by
a nurse. Claimant told the nurse he had a severe erection and had been
experiencing pain over the last two days. Claimant was again sent back to his
cell without seeing a doctor. He continued to experience the same symptoms but
now, in addition, his legs were hurting and his penis began to change
On November 13, Claimant again went to the infirmary in the morning but was
turned away by an officer. Claimant said he then went to the Program Committee
where the same officer that turned him away earlier at the infirmary was
present. At that point, Claimant could barely walk and the Warden happened to
see him and ordered that the Claimant be taken to the infirmary
Claimant testified that he went back to the infirmary a second time on November
13, after the Warden intervened, and he was seen by a nurse who gave him
nitroglycerin for his chest pains. Eventually, there was a television
conference with Claimant that involved a doctor from Syracuse and Claimant
explained his symptoms. The doctor on the television then ordered that Claimant
be brought to the hospital immediately.
At the hospital, doctors took blood from Claimant’s penis but the
erection still did not go down. Claimant said he then had to go into surgery
for the purpose of inserting a shunt into his penis. Claimant stated that he
was in the hospital 2½ to 3 days, during which time the swelling in his
penis still did not go down. He was discharged from the hospital to the
Mid-State infirmary. Although his erection began to subside, the bleeding
started again and he was taken back to the hospital. Claimant testified that
another procedure was performed at the hospital, perhaps they made an adjustment
to his shunt, and several days later, although he was still swollen, the
erection continued to subside.
Claimant was released from State custody in January 2001. He continued to
bleed from his penis from the date of his second hospital discharge until then.
He testified that his Parole Officer referred him to Dr. Davis, a urologist at
Strong Memorial Hospital in Rochester, New York, when he noticed his drug test
showed blood in his urine. At this time, Claimant was still experiencing
bleeding, and also found that he was unable to achieve an erection. Dr. Davis
then became Claimant’s treating physician.
Claimant testified that, at present, he continues to bleed at night and that it
takes him a while to urinate. He has never achieved a full erection since the
incident, even with the use of medication. On occasion, he can have a partial
erection, but that occurs erratically and is difficult to sustain.
Michaelle V. Meyers, Nurse Administrator at Mid-State, testified for Defendant.
Ms. Meyers has been a Registered Nurse for 12 years and has been employed in her
current position for 8 years. She is familiar with the policy and procedures
regarding medical services available to inmates at Mid-State. Those policies
and procedures are consistent throughout the New York State Department of
Correctional Services’ facilities.
She testified that emergency sick call is available 24-hours a day, seven days
a week. An inmate can access emergency medical care by first telling the
officer on his housing unit that he needs immediate medical attention. The
officer would then contact medical staff on behalf of the inmate and a
determination would be made as to whether the circumstances constituted a
medical emergency. If deemed an emergency, the inmate is seen
Regular sick call occurs four days per week on Monday, Tuesday, Thursday and
Friday. An inmate who wishes to have medical attention would fill out a sick
call slip and give it to an officer the evening or night before a designated
sick call day. The slip then is given to the medical department and a list is
made of all inmates that submitted their names. This list is an inmate’s
authorization to go to medical in the morning. Sick call days commence at 6:00
a.m. and end when the number of inmates seeking attention have been
Ms. Meyers stated that a doctor is on duty at the facility Monday through
Friday from 7:00 a.m. until 2:00 p.m. Inmates requesting sick call may not
actually see a doctor, but they will at least see a nurse and no inmate is
turned away. She stated that there are inmates that sign up for sick call and
then refuse to go down to medical. In those instances, staff attempts to bring
them down. If they refuse to be seen, they must sign a form that states that
they realize this sort of behavior can be the basis for disciplinary action. A
note is made in an inmate’s chart every time he is seen or refuses to be
While Ms. Meyers had no personal recollection regarding Claimant’s
treatment, she could interpret his medical charts. The charts, or Ambulatory
Health Record (“AHR”), specifically Exhibit 1, indicate Claimant was
drafted into Mid-State from Oneida on October 19, 2000. Exhibit 1 indicates
that Ms. Meyers conducted the draft medical interview with Claimant. Her notes
in the chart on that day indicate Claimant had a history of hay fever and back
pain. There is no mention of any problems with penile pain in the October 19,
2000 note (Exhibit 1).
Shortly after Claimant’s arrival at Mid-State, he was sent out for a
urological consultation pursuant to a referral by a doctor at Oneida either on
October 2 or 4, 2000 (Exhibit 1). The paperwork was completed by Ms. Meyers at
Mid-State on October 25, 2000, with Dr. Cirelli listed as the referring
I note Exhibit 1 shows that, during his incoming draft interview for Oneida on
September 29, 2000, the nurse wrote that Claimant “c/o [complained of]
pain in his penis - See Consult.” No testimony explaining this note was
offered. I do not know if “See Consult” refers to a prior
consulting doctor’s report or whether the nurse is recommending that
Claimant see a consulting doctor in the future. In any event, Claimant
apparently saw a facility doctor on October 4, 2000 who observed the lesion on
Claimant’s penis and ordered a urology consultation. This consultation
did not occur and, 15 days later, Claimant was transferred to Mid-State.
Someone at Mid-State must have read the prior notes because a Patient Referral
Form was completed by Ms. Meyers on October 25, 2000 and indicates the service
was rendered on November 3, 2000. The consulting doctor’s report is a
separate document that is partially typewritten and partially handwritten. The
typewritten portion is virtually unreadable and I can make out very little
information and would only be able to guess at its impact. Dr. Haas’
handwritten notes on that page are self explanatory. He found Claimant had
Peyronie’s Disease and recommended no treatment at that time. Next to his
signature is the following: “11/200" - I believe I can safely assume the
note was written on November 2, 2000.
According to the AHR, medical staff at Mid-State did not have occasion to see
Claimant again until November 12, 2000. Based on the AHR, Ms. Meyers believes
that she saw Claimant at regular sick call on November 12 at 8:10 a.m., noting
Claimant complained of a three day erection, constipation and blood in his
urine, as well as headaches. Ms. Meyers testified that she offered to admit him
into the infirmary so Claimant could be examined by a doctor but that he
declined to be admitted and wanted to return to his dorm. As a result, Claimant
did not see a doctor on November 12, 2000. Although Ms. Meyers had the
authority to mandate his admission so he could be seen that day, she did not and
instead made a follow-up appointment for Claimant on November 13, 2000 with Dr.
Dr. Cirelli’s note for November 13, 2000 indicates that Claimant suffered
from priapism for three days as well as Peyronie’s Disease and recommended
an amyl nitrate and an “emergent urological consult” (Exhibit 1).
The note following is titled “EMSC - telemed (emergency sick call)”
at 5:45 p.m. that same day. It reflected a Telemed conference set up by a nurse
(not Ms. Meyers) where a doctor at the hospital examined Claimant through the
use of a television feed. Claimant was immediately taken to the hospital after
the Telemed conference.
The AHR note for November 12, 2000 in Exhibit 1 states plainly what Ms. Meyers
stated during her testimony. When Ms. Meyers was asked whether or not she
recalled if any doctors were on duty that day, she could not say. Her note
indicates “f/u - Dr. C 11/13/00" - she testified she made a follow-up
appointment with Dr. Cirelli for the next day. The AHR reflects that Dr.
Cirelli did see Claimant the following day, November 13, 2000 (although no time
was noted) and determined that Claimant had had priapism for three days and
needed an emergency urological consultation. A Telemed conference was attempted
that day at 4:00 p.m. but a connection could not be made. At 4:45 p.m., the
facility connected with Dr. Ellis at the Erie County Medical Center Emergency
Room (“ECMC ER”). Dr. Ellis ordered medication and transport of
Claimant to the State University of New York Upstate Medical Emergency Room
(“SUNY ER”) to see a urologist.
Another Patient Referral Form was completed documenting the November 13, 2000
Telemed conference with the ECMC ER and then Claimant was transported to the
SUNY ER. The reason for the referral was priapism with an onset at 3:00 a.m. on
November 11, 2000. The next form in Exhibit 1 appears to be generated from Dr.
Ellis at the ECMC ER and it recommended Claimant be transported to SUNY to see a
urologist named Dr. Fagan. This was completed on November 13, 2000 at 5:30
The next form is a New York State Department of Correctional Services Request
& Report of Consultation, completed on November 19, 2000. This appears to
be a description of what occurred at SUNY. Claimant’s AHR indicates that
he returned to the infirmary at Mid-State on November 16, 2000 at 4:00
The deposition transcripts of Dr. Taesoo Kim, M.D. (Exhibit 7) and Dr. Zahi N.
Makhuli, M.D. (Exhibit 8) were admitted into evidence at trial. Dr. Kim saw
Claimant on several occasions while Claimant was incarcerated at Franklin,
between April 25, 2000 and June 7, 2000, for knee pain and a rash. Dr. Kim
testified that his notes in the AHR do not mention any indication of priapism or
blood in Claimant’s urine. He stated he was aware that the Claimant had
Peyronie’s Disease because of a prior consultation report in the AHR. Dr.
Kim is not a board certified urologist, but he understood Peyronie’s
Disease develops as a result of trauma, affects erections and causes pain during
intercourse. As far as he was aware, it was not connected to priapism.
Dr. Makhuli is a medical doctor employed by the SUNY in Syracuse, New York, the
hospital that performed the emergency assessment and procedures on November 13,
2000. Dr. Makhuli reviewed the note written by Dr. Fagan, Chief Resident, on
that date. The note referred to Claimant’s having suffered from priapism
for 48 hours. It made no mention of Peyronie’s Disease which Dr. Makhuli
stated did not mean Claimant did not have it, only that the physicians felt that
the cause of the problem, at that time, was priapism. Dr. Makhuli described the
procedure which began with injections of Lidocaine and epinephrine to bring down
the erection. When that did not work, the more invasive procedure was performed
and the Winters shunt was surgically implanted.
The medical notes indicate that Claimant was told what the possible side
effects were, including erectile dysfunction. Dr. Makhuli concluded that
Claimant had suffered severe priapism with extensive damage to the penis, based
on his low blood PH levels and the brisk bleeding from the penis during the
It is well settled that the State has a duty to provide reasonable and adequate
medical care to the inmates of its correctional facilities (Rivers v State of
New York, 159 AD2d 788, lv denied 76 NY2d 701). The State may be
cast in liability for injuries that result because its physicians fail to use
ordinary and reasonable care or to exercise their best judgment in applying the
knowledge and skill ordinarily possessed by practitioners in the field (Hale
v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804).
To establish a prima facie case of liability in a medical malpractice action, a
claimant must prove: 1) the standard of care in the locality where the treatment
occurred; 2) that the defendant breached that standard of care; and 3) that the
breach of the standard was the proximate cause of injury (Berger v
Becker, 272 AD2d 565). To sustain this burden, a claimant must present
expert testimony that the defendant’s conduct constituted a deviation from
the requisite standard of care (Berger v Becker, supra; Koehler v
Schwartz, 48 NY2d 807 [Expert testimony is necessary . . . unless the matter
is one which is within the experience and observation of the ordinary juror]).
Only expert medical proof can establish the necessary legal causation required
to impose liability and demonstrate that there was a deviation from good and
accepted standards of medical care (see Rossi v Arnot Ogden Med. Ctr.,
268 AD2d 916; Spicer v Community Family Planning Council Health Ctr., 272
AD2d 317; Lyons v McCauley, 252 AD2d 516, lv denied 92 NY2d
Expert medical testimony was submitted by both parties via
Claimant submitted the testimony
of Joseph Davis, M.D., a board certified urologist since 1964, currently the
Director of Urology at Cabrini Medical Center in New York City and Clinical
Professor of Urology at Mount Sinai School of Medicine. Defendant submitted the
testimony of William S. Oberheim, M.D., a board certified urologist since 1977,
currently in private practice specializing in urology. I find both witnesses to
be experts in their field and competent to provide the necessary testimony in
this medical malpractice claim.
Dr. Davis reviewed Claimant’s AHR and his hospital records, but did not
personally examine Claimant. He opined, with a reasonable degree of medical
certainty, that Mid-State’s medical staff’s failure to recognize
Claimant’s condition on November 12, 2000 as a medical emergency was a
departure from good and accepted standards of medical practice in the community
at that time. Frankly, I see nothing in Dr. Oberheim’s testimony that
contradicts that statement.
It was clear from the testimony of both experts that priapism is a painful
erection lasting at least four hours which, if treated at the four hour mark or
shortly thereafter, leaves the patient with a high likelihood of achieving full
recovery. Both experts identified priapism as an emergent condition requiring
the services of a urologist. Here, Claimant presented with an erection “x
3 days” at 8:10 a.m. on November 12, 2000, a medical emergency according
to the experts in this case (as well as Ms. Meyers, as she testified to on
cross-examination). I find that Defendant breached the standard of care in the
medical community in which Claimant was treated by failing to provide an
emergency urological consultation on November 12, 2000. However, this
particular omission was not the first breach of the standard.
Claimant’s testimony was that he woke up at 3:00 a.m. on November 11,
2000 with a painful erection and was unable to urinate. He followed the correct
procedure to request emergency sick call by going to the officer on his unit
with his problem. As is custom and practice, the officer called the infirmary
to report a sick inmate. According to Claimant, he was sent to the infirmary
then sent back to his cell because no one knew what to do. His symptoms got
progressively worse. After breakfast on November 12, 2000, an officer sent
Claimant to the infirmary and Claimant talked to Ms. Meyers. However, he was
again sent back to his cell.
I do not doubt Ms. Meyers’ explanation of the regular sick call
procedures, nor her testimony concerning when doctors were present in the
facility, both of which occur only Monday through Friday. I believe her
testimony that she has no personal recollection of the facts and circumstances
relating to Claimant’s condition and treatment. She surmised, based on
her November 12, 2000 note, that Claimant had dropped a slip on November 11 for
sick call the next day. She surmised that if he had agreed to be admitted on
November 12, he would have been examined by a doctor that day. However, what
makes her testimony incredible, and lends greater credibility to
Claimant’s recitation of the events of November 11 and 12, 2000, is that
November 12, 2000 was a Sunday - there is no regular sick call on a Sunday so an
inmate cannot drop a slip on Saturday to be seen the next day as no doctors are
in the facility on the weekend. Claimant could not have seen a doctor on
Sunday, admitted or not, unless someone with the authority to do so gave him
emergency medical status. Ms. Meyers made the follow-up appointment with Dr.
Cirelli for the next day because that was when the doctor would be in the
facility - on a Monday. In light of Ms. Meyers’ testimony, I must
reconsider the events of November 11, 2000 - a Saturday.
The events of Saturday, November 11, 2000, as recounted by Claimant, appear
likely to have occurred. While I do not have corroborating evidence in the form
of a logbook or an officer’s testimony, nor an AHR note, I find Claimant
credible. I do note that the Patient Referral Form on November 13, 2000 states
the onset of priapism at 3:00 a.m. on November 11, 2000 (Exhibit 1). It is
credible to me that Claimant could go to the infirmary in the very early hours
of a Saturday morning and leave the infirmary with the understanding that no one
in the infirmary at the time knew what to do with a complaint of priapism.
Claimant knew what to do, he asked for emergency medical care from the proper
authorities and it was denied. These events constituted an additional, and
initial, breach of the general community medical standard. I find
Defendant’s breach of the community standard on November 11, 2000 to be
the proximate cause of Claimant’s injury.
The evidence that Claimant has suffered severe damage to his penis is
undisputed. The medical experts agree that the longer a priapism goes
untreated, the higher the probability that permanent damage to the penis will
occur. The question is whether the damage was caused by Claimant’s waiting
too long to alert the authorities or whether the authorities themselves waited
too long to respond to Claimant’s medical condition.
Claimant first became aware of priapism at 3:00 a.m. on November 11, 2000, when
he woke up from his sleep. This fact was testified to by Claimant at trial and
appears in the hospital notes in Exhibit 2, as well as in the patient Referral
Form completed by RN Rorick on November 13,
His first contact with the infirmary was in the morning of November 11, 2000
when Claimant followed the practice and custom of securing emergency medical
care by alerting the officer on his housing unit of his condition. Had he been
treated, Claimant would have had a high probability of having potency restored;
by Dr. Davis’ testimony, a 50% to 60% chance of recovery. His second
contact with the infirmary, on the morning of November 12, clearly constituted a
breach when Ms. Meyers failed to recognize Claimant’s condition as a
medical emergency. This occurred more than 24 hours but less than 48 hours
after the onset of priapism. According to Dr. Oberheim, had he been treated at
that time, Claimant had less than a 50% chance of recovery. Claimant’s
third trip to the infirmary, on November 13, put him at 48 hours or greater past
onset with a dismal chance of recovery. Both experts agree that impotency is
the likely outcome for untreated priapism patients.
I find Claimant would have had a 50% to 60% chance of having his potency
restored but for Defendant’s agents failing to recognize Claimant’s
medical emergency on November 11, 2000. At the very least, he would have had an
almost 50% chance of recovery the next morning, but for Ms. Meyer’s
failure to act.
Claimant testified at trial that since the events at Mid-State and after his
surgery, he has been unable to have an erection and has experienced some blood
dripping from his penis. He believes he has lost one long-term relationship
because of his condition. He describes himself as embarrassed and humiliated by
Claimant is awarded $200,000.00 for past pain and suffering and is awarded
$100,000.00 for future pain and suffering (Van Syckle v Powers, 106 AD2d
711, lv denied 64 NY2d 609; Kagan v State of New York, 221 AD2d
Any and all other motions on which the Court may have previously reserved, or
which were not previously determined, are hereby denied.
It is ordered that, to the extent Claimant has paid a filing fee, it is
recoverable pursuant to Court of Claims Act § 11-a(2).
LET JUDGMENT BE ENTERED ACCORDINGLY.