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
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,
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
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
The medical records in evidence
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
An ENT specialist, Dr. Emko, examined Decedent on June 16, 1999, and
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
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
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
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
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
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.
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).
LET JUDGMENT BE ENTERED ACCORDINGLY.