New York State Court of Claims

New York State Court of Claims

MARRERO v. STATE OF NEW YORK, #2008-018-598, Claim No. 106833


The failure to timely diagnose Decedent’s parotid cancer turned a curable cancer into an incurable cancer. The Court finds Defendant 100% liable for the death of Decedent due to the untimely diagnosis of parotid cancer.

Case Information

1 1.The Court has changed the name of the decedent sua sponte because of privacy issues surrounding the claim.
Claimant short name:
Footnote (claimant name) :
The Court has changed the name of the decedent sua sponte because of privacy issues surrounding the claim.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant’s attorney:
WOLF & FUHRMAN, P.C.By: Eliot M. Wolf, DPM, Esquire
Defendant’s attorney:
Attorney General of the State of New York
By: G. Lawrence Dillon, Esquire Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 10, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks damages for the pain and suffering and wrongful death of the Decedent as a result of the alleged malpractice of the Defendant. Decedent, was incarcerated at Marcy and Otisville Correctional Facilities when the alleged malpractice occurred between November 1998 and June 7, 2000. He was also treated at University Hospital, a State hospital in Syracuse, New York. On June 7, 2000, Decedent was diagnosed with parotid gland cancer, and he was released from State custody on November 2, 2000. He died June 10, 2001. Decedent was deposed on April 16, 2001, and that testimony was received into evidence as Exhibit 3.

The facts, as found by the Court, are not in dispute, and Defendant acknowledges that there was a delay in having the Decedent examined by an otolaryngologist (ears, nose and throat doctor - hereinafter ENT) which was a departure from the standard of care. Despite Defendant’s stipulation, the Court will set forth all of the facts as they bear upon causation, the injuries, and damages.

Decedent was incarcerated by the Department of Correctional Services in January 1996 at age 45. At that time, he weighed 300 lbs., had smoked since he was 10 years old, and was insulin-dependent with diabetes. He contracted Hepatitis A, B, and C, and as of July 2000, suffered congestive heart failure and high blood pressure.

During his deposition, Decedent testified that he first experienced a problem with his jaw in late 1996 while at Marcy. He said he had pain but didn’t go to the infirmary until early 1997. A nurse gave him ibuprofen. He testified that a week or two later he returned to the infirmary and asked to see a doctor. Decedent recalled seeing Dr. Vadlamudi, a facility doctor at Marcy, several times. Decedent’s deposition reflects he had difficulty remembering the dates of his medical appointments and the sequence of events. The Court has found that the medical records present the most accurate picture of the progression of Decedent’s medical care during his incarceration and thereafter.

The medical records in evidence[2] reflect that Decedent visited the infirmary frequently at Marcy, but the first time he complained of a problem with his jaw was on November 6, 1998. The note reflects “swollen L side neck gland raised area roughly the size of a 50¢ piece.” His left eardrum was dull with some redness. He complained it was throbbing during the night. He was treated conservatively and given Motrin. He returned, four days later, complaining of an earache. A lump was noted on the left side of his neck. Thereafter, on January 12, 1999, he complained of pain and swelling below the angle of the left side of his jaw. The left side of his face was notably swollen, and the question of an abscess or enlarged node was posed. No oral lesions were found and the lump was found palpable. Antibiotics were prescribed.

Again, on March 1, 1999, Decedent complained of lower left jaw pain. Again, there was notable swelling that was painful to the touch with no signs of infection at the gum line. The facility physician, Dr. Vadlamudi, examined the area and found the left mandible area slightly tender with no palpable masses or oral lesions. Motrin was ordered and HIV testing was recommended.

Decedent returned to the infirmary on April 22, 1999, with complaints of a swollen left jaw. On examination, Dr. Vadlamudi found a 1½ x 1½ cm., palpable oral lesion, posterior left tongue, and an enlarged hard node in the left neck area at the angle of the jaw. No other nodes were noted. Dr. Vadlamudi ordered an ENT consultation.

Decedent complained of left neck pain again in May, and Dr. Vadlamudi again noted a lesion on the left side of Decedent’s tongue with pain. The node felt hard and Dr. Vadlamudi requested that the ENT consultation be expedited.

An ENT specialist, Dr. Emko, examined Decedent on June 16, 1999, and found:

48 year old male came with 6 month history of enlarged area around

left mandible angle and slight soreness. No pain in throat or tongue.

No difficulty swallowing or breathing. Good appetite, no weight loss.

Physical examination: Firm, slight large and thick mandible angle

especially in the inner side. No palpable neck node. Some fullness

of left tongue base. Flex-scope: slight fullness of left tongue.

Possible increased lingual tonsils. Rule out tumor. No limitations

of tongue movement. No ulcerations. 7CM0 CT neck, Att: Left

mandible angle and left tongue base.

Dr. Emko ordered a CT scan of Decedent’s neck with contrast with a follow-up appointment scheduled for a month. The CT report[3] identified the purpose of the CT scan was to rule out a tumor of the mandible, based on a six-month history of an enlarging hard mass in the left angle of jaw. The findings reflect:

These images demonstrate diffuse increased density involving the

right parotid gland predominantly in the superficial lobe and also

extending to involve the deep lobe of the parotid. On the left side,

the parotid gland appears of normal density. There is no evident

mass in or in relation to the left mandibular angle. On the right, the

parotid density is rather homogeneous and the gland is somewhat

enlarged and bulges slightly laterally. There is effacement of the

left parapharyngeal fat, but the internal jugular vein and the carotid

artery appear in normal position. There is no evident thickening of

the oropharyngeal wall nor can I define any evident abnormality of

the tongue.

A few scattered lymph nodes are noted in the jugular chain bilaterally

which are of normal size and configuration. More inferiorly, visceral

and nodal densities appear normal. There is no evident abnormality

involving the visualized osseous structures in the neck.


Diffuse increased density involving the right parotid gland with slight

outward bulging of the gland and slight effacement of the right para-

pharyngeal fat. There is no evidence for cervical lymphadenopathy.

The mild enlargement and diffusely altered density of the right parotid

gland could be related to a chronic parotitis.

The findings incorrectly identified an area of “increased density” on the right side instead of the left side of Decedent’s neck and jaw. A second ENT consultation, on August 11, 1999, with Dr. Sinacori, noted that the CT scan was negative for masses. He diagnosed “Probable diffuse intermittent swelling of parotids.” He recommended hydration and sucking on hard candies to keep saliva flowing.

At Decedent’s August 23, 1999 visit to the infirmary, a “parotid abscess” was noted. On September 21, 1999, the record reflects his left “node swollen.” On December 16, 1999, Decedent returned complaining of pain on the left side of his neck, and Dr. Vadlamudi examined him again on December 20, 1999, and described that Decedent had “mild swelling” with discomfort in the left parotid area without any obvious masses. Dr. Vadlamudi didn’t feel a follow-up ENT consultation was necessary at that time, although, Decedent wanted to see a specialist. Dr. Vadlamudi directed a recheck in two months. At the recheck on February 21, 2000, it was again noted that there was mild swelling at the left angle of the jaw with no masses. A follow-up ENT consultation was ordered.

Thereafter, in April 2000, Decedent was transferred to the Otisville Correctional Facility. In April, Decedent repeatedly went to the infirmary with swelling and pain on the left side of his jaw. He also complained by April 11, 2000, of numbness to his tongue and cheek, difficulty biting, swollen lower left jaw, tender to touch. An ENT referral was made on April 17, 2000. A CT scan was ordered with a direction to have Decedent return with the films. On May 19, 2000, Decedent returned to St. Agnes Hospital Otolaryngology Department for a follow-up examination. The CT scan showed left parotid swelling and a fine needle biopsy was ordered. On June 9, 2000, Decedent was diagnosed with a parotid adenocarcinoma, a year and seven months after his first complaint of a swollen left jaw. A left parotidectomy was to be scheduled within six weeks; however, chest X-rays performed in July 2000, revealed that the parotid cancer had metastasized to his lungs. A course of chemotherapy was commenced, and the parotidectomy was never performed.

On November 2, 2000, Decedent was paroled from Otisville Correctional Facility. He resided in a men’s shelter in Manhattan, next door to Bellevue Hospital, after his release from prison. During his deposition, Decedent described the pain and discomfort he suffered as a result of the cancer and the treatments. Decedent said he vomited daily and was in pain for which he received morphine. He would tire easily. He was worn out both emotionally and physically. The cancer eventually metastasized to almost every bone in his body. Decedent died from the cancer on June 10, 2001.

The deposition transcript of Dr. Precha Emko[4] was received into evidence. Dr. Emko was the ENT specialist Decedent saw on June 16, 1999. He ordered a CT scan for Decedent but never received a report, and he had not seen the films before the deposition. He did review the films at the deposition and noted an enlarged parotid gland on the left side of Decedent’s jaw.

Dr. Richard J. Hirschman was called as an expert by Claimant. Dr. Hirschman is board certified in internal medicine, hematology and oncology. He testified via deposition,[5] and in preparation for his testimony, Dr. Hirschman reviewed Decedent’s medical records. He testified that on November 6, 1998, Decedent saw a nurse at the infirmary, and on November 10, 1998, he was examined by Dr. Vadlamudi complaining of a lump on his neck. The differential diagnoses for a complaint of a lump on the neck are an infection or a tumor. According to Dr. Hirschman, there are few things that cause lumps in the body and, typically, when an infection or abscess causes a lump, it is quite tender. Although Dr. Vadlamudi did not note any tenderness associated with the lump, and Decedent’s throat was negative for infection, Dr. Hirschman said the prescribing of antibiotics for ten days was within accepted standards of practice to see if the lump goes away. A follow-up visit should be scheduled. If the lump does not respond within a week or two, it is not caused by infection and a biopsy should be performed. In Dr. Hirschman’s opinion, if a biopsy had been done in November 1998, a diagnosis of cancer would have been made. At that time, the mass was less than 2 centimeters when Dr. Vadlamudi first felt it, although it grew at least twice that size. Dr. Hirschman opined that if the cancer had been diagnosed at that time, the tumor would have been localized; he did not believe the cancer had metastasized in November 1998. At that point, Decedent’s cancer would have been classified as stage one. By the time Decedent was treating at Bellevue, in January 2001, his cancer was diagnosed as stage four.

On January 12, 1999, Decedent was seen at the infirmary complaining of a lump on the left side of his neck and the left side of his face was swollen. The nurse wrote into the record “abscess?” and referred him to Dr. Vadlamudi the same day. Dr. Vadlamudi again prescribed antibiotics although there was no noted tenderness. Dr. Hirschman said it was another missed opportunity to have a biopsy done on the mass. Since the previous course of antibiotics did not alleviate the problem and there was no tenderness, the only clinical conclusion was a tumor. It was a deviation from acceptable medical standards not to order a biopsy. It was Dr. Hirschman’s opinion that Decedent’s co-morbidities of diabetes, obesity, and smoking did not impact the medical assessment of the mass on his jaw nor did it change his opinion of what the standard of care required.

On March 1, 1999, Decedent again saw Dr. Vadlamudi with pain in his left jaw. Dr. Hirschman said it was another missed opportunity to order a biopsy. Dr. Vadlamudi

wrote in the record that day that there were no palpable masses at that time, but he testified at trial his physical examination was, in retrospect, in error. Dr. Vadlamudi’s findings of a lump on the left side, below the angle of the jaw on January 12, 1999, and an enlarged hard node at the angle of the jaw on April 22, 1999, are inconsistent with no palpable masses existing on March 1, 1999. In Dr. Hirschman’s opinion, there was a palpable mass that day, as cancers grow at a predictable rate; they don’t go away, and come back. If a biopsy had been done, a diagnosis would have been made. The failure to perform a biopsy was a deviation from the standard of care.

The delay in diagnosing this tumor, Dr. Hirschman opined, turned a curable cancer into an incurable cancer. The cancer that spread to his lungs and bones originated, in Dr. Hirschman’s opinion, from the parotid cancer. The failure to timely diagnose Decedent’s parotid cancer caused him to suffer the constant pain and discomfort he endured during the last few months of his life and was the cause of his death. Despite the fact his other conditions may have shortened his life, his cause of death on June 10, 2001, was from the pervasive cancer he suffered.

Defendant presented no expert testimony. Based upon Dr. Hirschman’s testimony, the Court finds Defendant 100% liable for the death of Decedent due to the untimely diagnosis of parotid cancer.

It is clear from Decedent’s testimony, as well as Dr. Hirchman’s testimony, that as a result of Defendant’s medical malpractice, he was caused to suffer immensely as the cancer metastasized to other areas. Dr. Hirschman described how, as the cancer grows in the bones, nerves are compressed and the cancerous cells cause little fractures which are very painful and require increasing doses of narcotics to manage the pain.

The Court awards $400,000 for Decedent’s pain and suffering together with appropriate interest. No other evidence of damages was presented and no other award is made.

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


January 10, 2008
Syracuse, New York

Judge of the Court of Claims

[2].Exhibit 1.
[3].Exhibit 1.
[4].Exhibit 6.
[5].Exhibit A and A-1.