New York State Court of Claims

New York State Court of Claims

KADRY v. THE STATE OF NEW YORK, #2008-030-026, Claim No. 109883


Inmate claimant proceeding pro se failed to establish after trial that medical personnel committed medical malpractice. No expert testimony offered to provide causal connection between the several acts of misfeasance alleged by claimant, and the vocal paralysis he now suffers from.

Case Information

1 1.The caption has been amended to reflect the only proper defendant.
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The caption has been amended to reflect the only proper defendant.
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December 9, 2008
White Plains

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Mohamed Kadry alleges that defendant’s agents failed to provide him with adequate medical care while he was in the custody of the New York State Department of Correctional Services (hereafter DOCS) at Downstate Correctional Facility (Downstate) and Coxsackie Correctional Facility (Coxsackie). He asserts that he was improperly given medication to treat tuberculosis[2] [TB] commencing on August 7, 2003. As a result, in September 2003 his gall bladder was removed, and he thereafter suffered vocal cord paralysis. A unified trial of the matter was held on October 31, 2008.

Claimant testified that he had no medical issues other than diabetes before he was incarcerated in or about 2002. He was given the Purified Protein Derivative [PPD] test for TB upon his arrest and detention in Brooklyn, and it was found positive.[Exhibit 6]. When he was received at Downstate with that positive finding, he was given the “medication prescribed for TB”[3] based on DOCS policy.

Dr. Richard Klyszejko, one of claimant’s treating physicians at Downstate, testified that pursuant to DOCS policy as expressed in Directive 1.18 [Exhibit 1][4] there were (and are) procedures in place for a positive PPD finding. He said:
“Tuberculosis is a very infectious disease. There is a higher risk in some populations for the disease, including prison populations. When the PPD test is negative, nothing is done medically and the inmate is subject to re-testing on a yearly basis. If the PPD is positive, the directive requires that medication be given prophylactically.”

The doctor explained that a positive PPD test means that the patient at some point was exposed to the bacteria and is at a high risk of developing active disease. Such exposure could have occurred with claimant’s earlier vaccination in Egypt, he said. A positive test is interpreted as a “latent tubercular infection. Every situation presents an additional risk for the patient developing active TB. The only way to prevent [active TB] in 90% of the population is to give medication prophylactically.” The medication given is “INH and vitamin B-6.”

After a positive PPD test, chest x-rays are taken to show whether there is or is not active disease present. Dr. Klyszejko was shown three x-ray reports, dated July 8, 2002,[5] August 1, 2003 and August 28, 2003, all reporting that claimant was “normal.” [Exhibit 2]. “Even with a negative chest x-ray,” he said, “there is a possibility that the disease will develop.”

Inmates may refuse to take such medication, though the inmate is then placed in medical keeplock until medical personnel are satisfied that he may be returned to the general population, usually after three “clear” x-rays. It appears that Mr. Kadry initially took the medication according to a portion of his ambulatory health record [AHR] for August 7, 2003 [see Exhibit 4] but thereafter refused to take the medication and signed a refusal form dated August 11, 2003. [Exhibit 3]. Within a day, however, he appears to have again returned to taking the medication. While he was in medical keeplock, he experienced pain and took Tylenol as prescribed on August 28, 2003, and was kept for further medical keeplock because of such complaints. [Exhibit 7]. When his situation was reviewed again on September 4, 2003 he was placed in medical keeplock for another three days. [Exhibit 8].

Mr. Kadry said that he “could not eat or sleep after that . . . [His] skin color changed to yellow, [and his] eyes started to turn yellow.” Feeling some relief when he passed urine “in the middle of the night . . . [he] felt something coming out of . . . [him] so [he] thought maybe [he] had passed a stone.” When he examined the urinal, however, he “saw blood all over and very dark pieces of blood in the middle.” He advised the nurse “the next day”, was asked to give a urine sample, and was scheduled for a doctor’s visit at 1:00 p.m. Because he “started throwing up at 11:00 a.m.”, they had to “rush” him to the medical unit where he saw Dr. Klyszejko who referred him to St. Agnes Hospital. The AHR submitted for that day notes the visit to the Downstate medical unit on September 8, 2003. [Exhibit 4].

When asked to review the course of care provided to Mr. Kadry upon his receipt at Downstate on July 31, 2003, Dr. Klyszejko, said he “presented with a diagnosis of diabetes type II and received the medications prescribed with no lapses.” He testified that Mr. Kadry was “processed according to departmental policy to identify medical conditions including TB through a physical exam, blood work, [and] chest x-ray.” The chest x-ray and blood tests were normal, and no problems with the liver were indicated. Dr. Klyszejko explained again that the positive PPD - meaning only that claimant had been exposed at some time in his life to tuberculosis (including via vaccine) - was treated as a recent exposure because there was no reference point for previous testing. The policy in place required that the INH and vitamins be offered under the circumstances. [Directive 1.18, Part VI, B, Exhibit 1]. Dr. Klyszejko explained further that
“INH is antiviral generally. It interferes with certain metabolic processes by not allowing bacteria to grow. It is chemical and has to be eliminated by the body, namely, the liver. If the liver gets overwhelmed, if there are elevated enzymes, there may be damage to the liver itself. Liver cells can be damaged by other infectious processes or viruses too - like a hepatitis of different kinds- and also mechanical failings such as (especially) increased pressure from the bile ducts within the liver. Exposure to TB allows bacteria to just live in the organism - it is latent - but can be triggered or activated for a number of reasons, decreased immunity being one of them . . . Progression from PPD positive, to active, occurs in certain risk prone populations including prison populations. Having diabetes is another risk. Coming from a foreign country when there is so prevalent an exposure to active TB is another. There was an outbreak of a particularly dangerous virulent resistant strain recently - especially important in a prison population.”

Dr. Klyszejko recalled that on September 4, 2003 claimant had presented with symptoms of a urinary tract infection and a urine sample had been sent for a culture and an antibiotic had been prescribed. By September 5, 2003, Dr. Klyszejko said, claimant would have received “about eight (8) doses of the INH, and a prescription was re-written for it at that time”. When Mr. Kadry presented himself at the morning sick call on September 8, 2003, he was complaining of pain in the right lower quadrant of his abdomen, radiating into his testicle. Dr. Klyszejko said he referred claimant to St. Agnes Hospital because of his additional symptomology of having vomited, his elevated temperature and increasing abdominal pain, in order to rule out suspected appendicitis. Mr. Kadry remained at St. Agnes for several days. The testing there revealed that he did not have appendicitis, and that he did not have active TB. Mr. Kadry said he was “still in pain” when he was sent back to Downstate for continued observation.

Dr. Klyszejko recalled that several diagnostic tests had been performed while at St. Agnes. Although they had ruled out appendicitis with a cat scan, blood tests showed that there was an increase in certain enzymes, and he was released to Downstate for observation on or about September 11, 2003 with a “post-hospital diagnosis of INH induced hepatitis and kidney stones and diabetes type II.”

Dr. Klyszejko thought removal from INH should have improved his condition, however, it did not. Additional test results came in at Downstate during this post-hospital observation period, warranting claimant’s referral by ambulance to St. Agnes on September 16, 2003. [See Exhibit 9]. Claimant’s white blood cell count, for example, was significantly elevated when compared to blood taken on September 10, 2003 during his first hospitalization. There was some suspicion that there might be an obstruction of the gall bladder, because the contents were “sludge, bile.” Diagnostic testing and examination, including an examination by a gastroenterologist confirmed the gall bladder problem. Increased presence of troublesome enzymes were suggestive of multiple medical issues as well.

On September 18, 2003 claimant underwent surgery, and his gall bladder was removed. [Exhibit 10]. Dr. Klyszejko said that rather than the less invasive laparoscopy procedure, the surgeon needed to access the entire abdominal cavity. Mr. Kadry was placed under anesthesia. The operative report indicates that “[t]he gall bladder was found to be black and green and gangrenous throughout about 75% of its body . . . [and was] acutely distended.” [See id.]. When Mr. Kadry came out during recovery, he could not speak at all, and was told that this was a “common thing” to occur after surgery.

Thereafter, and on or about September 29, 2003, claimant underwent a “diagnostic direct laryngoscopy” to rule out “dislocation of the arytenoid cartilage.” [Exhibit 11]. The operative report for the procedure notes that the indications for pursuing the procedure were the “hoarseness” claimant experienced after the gall bladder surgery, and an examination that “revealed a left vocal fold paralysis.” [Id.].

Claimant said when he returned to Downstate he “could not speak at all.” He said that follow-up visits were scheduled to determine what could be done. [See Exhibit 12]. Thereafter, he was transferred to the “RMU unit at Coxsackie.” Dr. Klyszejko confirmed claimant’s discharge to the Downstate infirmary after the laryngoscopy, and claimant’s presence there from October 1, 2003 to October 8, 2003 until his transfer to Coxsackie. Dr. Klyszejko said the last blood test performed at Downstate was on October 2, 2003. Claimant’s “LFTs were almost (dramatically) normal. Meaning his liver problem was resolved at that time.”

Dr. Klyszejko said there was no diagnosis in place as to what had caused his earlier liver problems at the time of claimant’s transfer to Coxsackie. Thus, a notation on a medical chart made “most likely by a nurse”, that claimant has “sensitivity to INH” is not specific enough. Looking back at the evaluative process for claimant’s treatment initially, Dr. Klyszejko said, it was first
“thought that INH caused claimant’s liver problems. Later it was something else. With no diagnosis on the piece of paper that someone wrote as to why there was ‘sensitivity to INH’ such ‘sensitivity’ whatever it means, is not [conclusive].”

Medical personnel at Coxsackie prescribed, Mr. Kadry said, “INH 900 milligrams and vitamin B 6.” He refused such medication on October 13, 2003. [See Exhibit 13]. The doctor agreed that prescribing such medication again was “probably a mistake.” Claimant did not, however, take the medication in any event as noted.

With regard to his vocal cords, as claimant described it,
“because of this condition, food and liquids go directly to the lungs. The left vocal cord is completely paralyzed, the right one is not. There is a gap in the vocal cord. When it moves, it cannot touch the left one, so no voice comes out.”

Initially, claimant said he refused “an operation to change the position of the two sides of the neck and change this effect through the use of an injection of a kind of Styrofoam to hold it in the middle so that when . . . [he] speaks the right vocal cord will come to touch it to close the gap.” Claimant was told that without the procedure he would need to have a tube for feeding purposes “inserted in his side” since no food or drink could be taken otherwise.

Mr. Kadry testified he “has had the operation three or four times,” and is due to have an injection again. Claimant said that when he speaks, he starts to lose his voice and feels a burning in his throat. “It is a temporary operation: there is no permanent solution because the Styrofoam dissolves over time . . . The injection for the left vocal cord is done annually,” he said. [See Exhibit 16]. To receive the injection, claimant “has to be taken to the hospital and put to sleep” first.

Claimant was referred by medical personnel at Coxsackie to an Albany Medical Center specialist because of his vocal cord issues, and saw him on October 20, 2003. [Exhibit 14]. A radiological consultation was also prescribed and attended in February 2004. [Exhibit 15].

Viewing a form from Albany Medical Center shown to him by claimant, Dr. Klyszejko agreed that it provided that claimant was admitted with the diagnosis of vocal cord paralysis on March 14, 2004, and was discharged on March 17, 2004 with a status of post left total vocal cord injection secondary to paralysis. [Exhibit 16].

When asked if vocal cord paralysis was “common,” Dr. Klyszejko said it was “not common but it does occur.” He said why vocal cord paralysis occurs was beyond his knowledge, and would require the knowledge of a specialist. He also said that
“because it happened after surgery there is an attempt to connect those two [events]. This is an assumption, just as it was an assumption concerning INH. Because [claimant] was given INH, and had liver problems then the assumption is that INH caused it. Since [claimant] had general anesthesia for . . . [the gall bladder surgery], it was probably something done to...[claimant] during intubation related to anesthesia - but I do not know.”

No other witnesses testified and no other evidence was submitted.[6]
It is “fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons,” including proper diagnosis and treatment. Rivers v State of New York, 159 AD2d 788, 789 (3d Dept 1990), lv denied 76 NY2d 701 (1990).

In a medical malpractice claim, the Claimant has the burden of proof and must prove (1) a deviation or departure from accepted practice and (2) evidence that such deviation was the proximate cause of the injury or other damage. A cause of action is premised in medical malpractice when it is the medical treatment, or the lack of it, that is in issue. A claimant must establish that the medical caregiver either did not possess or did not use reasonable care or best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field. A medical expert’s testimony is necessary to establish, at a minimum, the standard of care. Spensieri v Lasky, 94 NY2d 231 (1999).

If a claim can be read to allege simple negligence, or medical negligence, then the alleged negligent omissions or acts by the State’s employees can be readily determined by a fact finder using common knowledge without the necessity of expert testimony. Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254, 256 (1st Dept 1986). Similarly, the State may be found liable for ministerial neglect if its employees fail to comply with an institution’s own administrative procedures and protocols for dispensing medical care to inmates. Kagan v State of New York, 221 AD2d 7, 10 (2d Dept 1996). In this regard, failure to properly keep records - if harm is caused - is also negligence.

In this case, only the testimony of the claimant has been presented in support of any claim of malpractice. While the treating physician testified concerning the treatment given, and interpreted some of the medical records before him when it was not he who had rendered treatment or made decisions on treatment, Dr. Klyszejko nonetheless did not opine as to whether such treatment was in breach of appropriate standards of medical care to support the allegation of medical malpractice. Indeed, the only opinions he did offer were to the effect that medical personnel followed the appropriate procedures. More significantly, no expert testimony was elicited that would show a causal connection between the several acts of misfeasance that Mr. Kadry appears to be alleging and the vocal paralysis he indicates he now suffers from.

From this record there is no indication that the actions of medical caregivers amounted to simple negligence or ministerial neglect. Coursen v New York Hospital-Cornell Med. Center, supra; Kagan v State of New York, supra. The regulations concerning procedures for taking care of inmates afflicted with tuberculosis and other contagious diseases are clearly of an ameliorative nature, designed to assure the health of the inmates tested and treated as well as fellow inmates. When such dangerous communicable diseases are involved, treatment and isolation must be mandatory. Additionally, while there was some suggestion that information was relayed from Downstate to Coxsackie concerning claimant’s “sensitivity” to the prophylactic medication, and he was nonetheless again prescribed medication that may (or may not) have been inappropriate, claimant did not take such medication.

This is a claim that needed expert testimony to establish the standard of care that the respective medical disciplines implicated were required to practice, to pinpoint any deviations from such standard of care, and to show how such deviations caused the claimant injury. Instead, only the ambiguous statements of one of claimant’s treating physicians and claimant’s own speculations have been offered. The court cannot infer that the TB medication caused liver issues or gall bladder issues without expert medical testimony explaining such connections. The court cannot conclude that there was some negligent delay in diagnosis based upon the size of the distension of the gall bladder - an inference suggested by claimant - based on intuition alone. Similarly, it cannot be inferred that some misfeasance during the gall bladder operation caused any vocal cord paralysis without expert testimony. In this regard, Dr. Klyszejko’s statement that “something” happened during intubation is merely equivocal standing alone.

While the court appreciates claimant’s frustration with his medical condition - viewed from his perspective that he suffered “only” from diabetes - also a serious illness - when he entered State custody, and understands his attempts to make sense of how there may be links between the prophylactic treatment for TB, his liver issues, his gall bladder removal, and his vocal paralysis, Mr. Kadry has nonetheless failed to establish his claim of injury premised upon the malpractice or negligence of agents of the State of New York.

In accordance with the foregoing, claimant has failed to establish his claim by a preponderance of the credible evidence and therefore Claim Number 109883 is dismissed in its entirety.

Let Judgment be entered accordingly.

December 9, 2008
White Plains, New York

Judge of the Court of Claims

[2]. Claimant orally corrected his claim to provide that he improperly received medication for tuberculosis - not hepatitis - as was written in the claim. Additionally, he stated that he also suffered from a gall bladder condition that was undiagnosed.
[3]. All quotations are to trial notes or audio recordings unless otherwise indicated.
[4]. Dr. Klyszejko said an older policy was “less specific” than the current 2004 policy, though the basic parameters were the same, calling for medical judgment.
[5]. This one presumably taken when he was in Brooklyn.

[6]. Claimant’s testimony was interwoven with that of Dr. Klyszejko, as opposed to being given in a continuous narrative. Thus, when he indicated throughout that he was not advised of the consequences of the series of medical treatments it was unclear as to which procedures or courses of treatment he claimed at trial were not fully explained or whether he would have proceeded in the face of adequate information. Consequently, any theory of informed consent is not sustained both because it was not pled [see Jolly v Russell, 203 AD2d 527, 528-529 (2d Dept 1994)], and because the evidence did not establish the elements necessary to sustain such a cause of action. See Public Health Law §2805-d. The statute requires that a claimant show that the medical practitioner failed to disclose alternatives and the risks associated with stated alternatives for a proposed course of treatment. A “reasonableness” standard is imposed, in that the initial question is what would the reasonable professional advise as to the “reasonably foreseeable risks and benefits . . .” to a proposed course of treatment. [Public Health Law §2805-d(1)]. A claimant must also establish that “. . . a reasonably prudent person in the patient’s position would not have undergone the treatment or diagnosis if he had been fully informed and that the lack of informed consent is a proximate cause of the injury or condition for which recovery is sought.” [Public Health Law §2805-d(3)]. Even taking claimant’s declarations at their face value that he was somehow unaware of different courses of treatment and their consequences, he has not established that a reasonably prudent person in his position would not opt to go forward, or that his present condition was proximately caused by the course of treatment, as opposed to, for example, a disease process or some other medical condition such as diabetes.