New York State Court of Claims

New York State Court of Claims

STEWART v. THE STATE OF NEW YORK, #2008-013-518, Claim No. 107914


The State was negligent in failing to remove cast from Claimant’s wrist as directed by physician, causing increased atrophy and a delay in occupational therapy. Claimant is awarded $1,250.00 for past and present 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):

Claimant’s attorney:
Defendant’s attorney:
Attorney General of the State of New York
BY: RICHARD B. FRIEDFERTIG, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 19, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


The claim herein was filed on June 23, 2003, and an amended claim was filed with permission of the Court on November 3, 2004. Claimant alleges that the medical staff at Wende Correctional Facility (Wende) “negligently caused the required medical care and medical protocol to be deficient in the attendance and maintenance toward claimant’s sustained injuries to his right-hand.” The gist of his claim is that after his right hand had four pins inserted and was placed in a plaster cast, it remained in the cast for some five plus months. Claimant contends that there was negligence by the medical staff at Wende in failing to follow an “order form” from the Erie County Medical Center (ECMC), consistent with “accepted medical practices within the qualified medical community.” At trial reference was made to and testimony addressed a number of exhibits which were appended to the claim and amended claim.

On or about August 13, 2002, Claimant testified that he was working at Wende and injured his right hand when he entered the mess hall dish room, slipped on a damp floor and fell forward. As he fell, he used his right hand to protect his face. His hand struck a dishwashing machine, his two middle fingers snapped in the middle against his face, and he incurred a laceration above his eye. He first went to the Regional Medical Unit (RMU) at Wende where a temporary cast was placed on his hand. He was transported to ECMC for x-rays where a temporary splint and ace bandage were provided, and he returned to Wende.

On or about August 15 or 16, 2002, he was transported back to ECMC for outpatient surgery. Four pins were inserted into his right hand, and a cast was placed on his hand from his wrist to his elbow. He was returned to Wende with a referral recommendation of medication and follow-up treatment and care. He was placed in his cell, allegedly without any medical or keeplock orders, for several months.

It was not until January 27, 2003, after he complained to an RMU nurse that the pins and cast were starting to hurt, that a return to ECMC was scheduled. The ECMC records (Exhibit C to the amended claim) reflect that on February 6, 2003, the cast and four pins were removed; x-rays revealed that the fractures had healed, and a doctor advised him that upon removal of the cast and pins, he should get aggressive occupational therapy, “ASAP.” The pins were removed on an outpatient basis, although Claimant did stay overnight in the RMU before returning to his cell. On March 6, 2003 he had a video-conference with an orthopedist at ECMC from the RMU. He still had some swelling and pain.

Claimant alleges, albeit without documentary support, that he was supposed to have eight weeks of occupational therapy (OT), with two sessions per week. I located no such reference in his medical records. There was nothing in the evidence offered at trial and nothing admitted into evidence to establish any prescription for eight weeks of such therapy. Thus, to the extent that the claim seeks damages for the alleged deprivation or loss of physical therapy and/or occupational therapy,[1] for four additional weeks, it must be denied.

Damages are also sought because his hand remained in the cast long after it should have been removed. All of these damages are alleged to be due to the negligence of staff at the Wende RMU, which was responsible for his medical care and treatment.

Claimant testified that the only continuing (permanent) problem with his hand is that he believed it has become arthritic. He has done, and continues to do, some exercises for his hand in his cell with a rubber ball. Claimant contends that he knows when it is going to rain or snow, and he knows when it is going to be cold, because of the pain he feels in his hand. He suggests as well that if he fails to do the exercises before a rainy or snowy day, then he cannot even use his hand to write, and he is right-hand dominant. While he suffers from stiffness, he can use his hand as long as weather conditions are not involved.

Claimant acknowledged that at no time was there ever an infection in his hand, before or after the removal of the cast. He acknowledged receiving occupational therapy for approximately a four-week period of time after the removal of the cast, as well as continuing to do related exercises, the squeezing of a rubber ball as provided by and suggested by the therapist, on a daily basis in his cell following the conclusion of occupational therapy up to the time of trial. He similarly self-massages his hand with baby oil in his cell to help alleviate pain and stiffness, and takes no pain medication. Significantly, there has been no diagnosis of arthritis by any medical professional. Claimant further acknowledged that there has been no medical diagnosis that his sensitivity to cold in his right hand is in any way attributable to the period of time that his hand remained in the cast, as opposed to the injury itself.

The Defendant introduced evidence, which Claimant disputed, implying that there was no slip and fall in the mess hall area, but rather that Claimant was involved in a fight which formed the basis of disciplinary proceedings against him and led to the imposition of certain penalties -- 60 days in the Special Housing Unit (Exhibit B). However, the essence of this claim relates to his medical care after the incident, and is unrelated to the nature or cause of the August 13, 2002 incident. It has no bearing on my evaluation of the evidence in the trial.

Dr. Jacqueline Levitt, a physician employed at Wende, testified with respect to Claimant’s medical records (Exhibits A-1 and A-2). She described a hematoma and a ¼-inch laceration near his eye, and a displaced fracture of his third and fourth metacarpal bones. Surgery was performed, a closed reduction and internal fixation, and four pins were inserted to provide stability. On January 27, 2003, the records reveal a note from a nurse on rounds that Claimant’s cast had remained on since August 2002 (Exhibit A-1 - p. 0061).

Dr. Levitt testified to two primary concerns with a cast: first, that one cannot see what is going on beneath the cast, and second, that the hand is immobile with a loss of strength. She acknowledged that whenever a cast is in place there will be atrophying of muscles, but it can be recovered to some degree with therapy. She noted the first occupational therapy note in the file on February 19, 2003 (Exhibit A-1 - p. 0143), which indeed does reference OT for eight more visits for four weeks, which seemingly refutes Claimant’s contentions that he was prescribed such therapy for eight weeks but only received four weeks.

The cast was removed and Claimant was returned to Wende on February 6, 2003. There was a video-conference meeting on March 6, 2003 (described as a “telemed encounter”) with the orthopedic hand surgeon, who wrote in the assessment/plan that Claimant had a satisfactory recovery to that point despite essentially no therapy, can have his own exercises, and if needed, there should be another consult by June 2003 (Exhibit A-1 - p. 0144). The records reveal the next complaint of pain and stiffness on April 16, 2003 (Exhibit A-1 - p. 0059). On April 28, 2003, an occupational therapy note reported that Claimant complained of continuing discomfort and stiffness with pain in his hand (Exhibit A-1 - p. 0142). On May 5, 2003, an occupational therapy note reported usual discomfort and stiffness, but noted increased tolerance to all exercises, increased strength with good progress, and decreased discomfort (Exhibit A-1 - p. 0140).

On May 7, 2003, an occupational therapy note reported a decrease in discomfort and stiffness (Exhibit A-1 - p. 0139). On May 12, 2003, an occupational therapy note reported Claimant’s continued use of a home exercise program (squeezing the rubber ball), increased strength and decreased discomfort in his right wrist and hand (Exhibit A-1 - p. 0138). On May 14, 2003, similar improvement and decreased discomfort was noted in an occupational therapy note (Exhibit A-1 - p. 0137).

On May 22, 2003, there was a discharge summary, with a final assessment of Claimant’s hand, noting that the goals were met, including decreased pain and discomfort, and occupational therapy was discontinued per the doctor’s order (Exhibit A-1 - p. 0134). In sum, it appears that Claimant’s level of pain and discomfort generally decreased and his strength generally improved in the period after removal of his cast and during his occupational therapy consultations.

Dr. Levitt found no complaints in the file from Claimant regarding the period of time that his hand remained in the cast between August of 2002 and January 27, 2003. She testified, after reviewing all the medical records, within a reasonable degree of medical certainty, that Claimant’s hand has healed and that his complaints of pain related to cold were more likely related to the original injury and not to the length of time his hand remained in the cast.

Dr. Levitt opined that there was no permanent loss of use of his hand due to the duration of casting, but that his recovery was prolonged, and, while his care and treatment was satisfactory, she would have had the cast removed earlier, albeit without his suffering any long-term problem because of that. She noted that Claimant should have come back for reevaluation within three or so weeks after the surgery on August 16, 2002. Indeed the Physician Order Form from ECMC for August 22, 2002 (Exhibit B to the Amended Claim) noted that “3-4 wks. call for appt.” There is no question that this was not followed, and that it was not until January 27, 2003, that Claimant was seen again at ECMC for reevaluation, and the cast was not removed until February 6, 2003. This demonstrates neglect by the Defendant’s employees and is compensable. The extended period with the cast, the increased atrophy of his hand and wrist due to the excessive period in the cast, and the delay in commencing occupational therapy, all served to cause Claimant pain and suffering.

However, with respect to allegations regarding arthritis, Dr. Levitt opined that she could not imagine why the fact the cast remained on for a period of five plus months would have been more conducive to the onset of arthritis, but she was not sure. This was the only competent testimony in this regard, and fails to demonstrate any causal relationship between the onset of arthritis (for which there has been no diagnosis in any event), and the duration of time that the cast remained on.

As I summarized earlier in this litigation, in Stewart v State of New York (UID #2004-013-047, Claim No. 107914, Motion Nos. M-67585, CM-67642, Sept. 24, 2004),[2] this claim sounds in ministerial neglect for the failure of medical personnel, whether it be a nurse administrator or other professional at Wende, to provide adequate medical care during the period in question.

Just as Claimant is not qualified as a medical expert to testify beyond his level of expertise, neither is he qualified to ascertain whether a post-surgical cast and pins inserted in his right hand have remained longer than medically appropriate without reevaluation as directed by the orthopedist, and there is a degree of responsibility on the Defendant’s medical staff to monitor post-surgical care of an inmate. They negligently failed to do so, and thus Defendant must answer in damages.

In the claim Claimant sought unspecified medical expenses for which no proof, or offer of proof, was presented and thus must be denied. Claimant also sought recompense for the loss of potential earnings of $500 bi-monthly until his 75th birthday. His age at the time of trial was 57 years of age, but there was no evidence or offer of proof to demonstrate any loss of wages or potential earnings, let alone showing that any alleged diminution of earning capacity was proximately caused by the delay in removing the cast and thus a delay in receiving occupational therapy. Claimant also sought damages for pain and suffering to his right-hand/fingers and wrist. While it is difficult to distinguish his pain and suffering from the injuries he sustained on August 13, 2002,[3] from the pain and suffering from the delay in reevaluating him and removing the cast some four months later than the orthopedist directed, that is what must be ascertained. Based upon all of the evidence, the testimony and my review of the medical records, I find that Claimant is entitled to an award for past and present pain and suffering of $1,250.00. I make no award for future pain and suffering, or for any cause of action that may sound in medical malpractice.

All motions not heretofore ruled upon are now denied. To the extent Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act §11-a(2).


December 19, 2008
Rochester, New York

Judge of the Court of Claims

  1. [1]Claimant, and occasionally the Defendant, used the terms occupational therapy and physical therapy somewhat interchangeably, and my references herein reflect that use.
  2. Decisions and selected orders of the New York State Court of Claims are available on the Internet at
  3. [3]As noted above, it matters not whether the same was the result of a fall as Claimant contends or from a fight as the disciplinary proceedings held (Exhibit B).