|Claimant short name:||HALLING|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JEREMIAH J. MORIARTY III|
|Claimant's attorney:||Dominic Pellegrino, Esq.|
|Defendant's attorney:||Hon. Andrew M. Cuomo
New York State Attorney General
By: Paul Volcy
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 20, 2008|
|Official citation:||68 AD3d 1791 (2009)|
|See also (multicaptioned case)|
Christopher Halling alleges in Claim Number 107751 that he was injured by the failure of Defendant to treat his inflammatory bowel disease(1) between April 21, 1998 and January19, 2001, while he was in the custody of the New York State Department of Correctional Services (DOCS) at Wende Correctional Facility (Wende), Elmira Correctional Facility (Elmira), Attica Correctional Facility (Attica) and Collins Correctional Facility (Collins). Claimant, who had suffered from ulcerative colitis or Crohn's disease (Crohn's) for many years prior to his incarceration, claims that the failure of DOCS to refer him to a gastroenterologist (GI specialist) for diagnosis and treatment for over two years resulted in complications which required the surgical removal of his colon and rectum in a procedure known as a total proctocolectomy(2) with a permanent ileostomy.
The relevant facts, as set forth at trial, establish that Claimant entered the DOCS system at Elmira on April 21, 1998 and first reported his symptoms and history of Crohn's to the medical staff on May 21-22, 1998. After examination, a nurse practitioner initiated a drug regimen to combat the disease and that course of treatment continued at Attica and Collins until he was referred to a GI specialist on January 19, 2001. Defendant does not strenuously argue that the delay in referring Claimant to a GI specialist constitutes good and accepted medical practice. Instead, the thrust of Defendant's argument is that neither this delay, nor any other alleged act of medical negligence on the part of DOCS, was a proximate cause of the proctocolectomy. Defendant asserts that the surgery resulted from the natural progression of the disease. The issues at trial were bifurcated and this decision relates solely to the issue of liability.
Claimant, who was born on December 16, 1970, has a medical history of inflammatory bowel disease beginning in his early teenage years and also suffers from bipolar disorder and drug and alcohol dependency. His family history was significant for a mother with Crohn's and a father who was an alcoholic. He testified that in 1991 he was treated for ulcerative colitis by GI specialists at Strong Memorial Hospital (Strong) in Rochester, New York who instituted an aggressive regimen of anti-inflammatory drugs in an effort to control his symptoms. His medical records reflect that the treatment at Strong continued for over five years when doctors reported that the disease was worsening based upon the results of a colonoscopy performed on December 21, 1995 and a barium enema conducted on January 10, 1996, both of which revealed a significant narrowing or stricture of the lining of his colon (Exhibit E, pp. 2213, 2222, 2274).
Claimant's Ambulatory Health Record (AHR) maintained by DOCS confirms his testimony that he suffered from Crohn's symptoms at Elmira in May of 1998 and was treated by a nurse practitioner who prescribed anti-inflammatory drugs similar to those administered by the doctors at Strong, albeit in lower dosages. Since that treatment proved to be ineffective and he continued to experience weight-loss, Claimant requested different medication and a consult with a GI specialist. The nurse practitioner concluded, however, that he was stable and continued the drug regimen, indicating that he could not be referred to a specialist until his medical records were received from Strong.
At the time of his transfer to Attica on July 16, 1998, Claimant complained that his Crohn's symptoms were unrelieved by the treatment provided at Elmira. Blood tests conducted in August of 1998 were positive for H Pylori and medications prescribed for that condition provided temporary relief from the Crohn's symptoms. On January 5, 1999 Claimant complained of loss of appetite and weight and was referred by a nurse to the facility doctor who, after analyzing several stool samples, determined that Claimant was not suffering from ulcerative colitis. Based on that finding, the doctor did not order any further diagnostic tests or a referral to a GI specialist. However, in response to Claimant's continued complaints of symptoms and weight loss during 1999 and 2000, nurses at Attica reinstituted a regimen of medication for the treatment of Crohn's. DOCS finally requested Claimant's medical records from Strong in May of 2000 and a barium enema was conducted in September of 2000 both of which confirmed that he was suffering from severe ulcerative colitis or Crohn's.
At the time of Claimant's transfer to Collins on October 27, 2000, a history of chronic ulcerative colitis was noted in his AHR and the anti-inflammatory medications were continued. Over the next two months Claimant's condition worsened and on December 6, 2000 the facility doctor recommended a consult with Paula G. Burkard, M.D., a gastroenterologist at Erie County Medical Center (ECMC) in Buffalo, New York.
After examining Claimant on January 19, 2001 and reviewing his medical records, Dr. Burkard suspected that he was suffering from either ulcerative colitis or Crohn's. Her plan was to continue the medications with modifications and order a colonoscopy to further evaluate his diseased colon. A colonoscopy conducted at ECMC on March 14, 2001 revealed a nearly complete obstructive stricture of the colon with ulcerative colitis/hard fibrosis leading Dr. Burkard to conclude that Claimant was likely suffering from serious Crohn's which would require surgical intervention since medication does not affect the disease pathology. A small bowel follow through conducted on March 23, 2001revealed evidence of terminal ileitis with fistula formation and significant stricture formation of the transverse colon and descending sigmoid colon all of which was highly suggestive of Crohn's (Exhibit 5). Dr. Burkard referred Claimant to Mahmoud N. Kulaylat M.D., a colorectal surgeon at ECMC, who confirmed that surgery was necessary because of the danger that the multiple stricture and fistula formations in his colon might lead to serious complications such as a complete obstruction (Exhibit E).
Dr. Kulaylat proposed to perform the surgery on March 30, 2001, but Claimant declined and elected to be discharged back to the correctional facility against medical advice. The operation was rescheduled for October, 2001 when Claimant refused the transport to the hospital. Dr. Kulaylat finally performed the proctocolectomy on March 15, 2002 and the post-operative diagnosis was chronic Crohn's affecting the terminal ileum, cecum, descending colon, ascending transverse colon, sigmoid colon and upper rectum.
Karl F. Hafner M.D., M.P.H., a board certified family practitioner, and James George M.D., a board certified gastroenterologist, testified as experts for Claimant. Based on his knowledge of inflammatory bowel disease and of the standard of care for such disease applicable to primary care providers in the western New York area, as well as his review of Claimant's medical records, Dr. Hafner stated that, in his opinion, DOCS treatment of Claimant departed from the acceptable standard of care in that he should have been referred to a GI specialist within eight to twelve weeks of presenting with symptoms on May 21, 1998 (Exhibit R). According to Dr. Hafner, the actual delay of approximately thirty-one months for Claimant's examination by a specialist was not within acceptable medical standards. He testified that the symptoms suffered by Claimant while in DOCS custody, combined with the chronic condition of his Crohn's, required early diagnosis and treatment in order to limit the complications of the disease process.
Dr. George, a recognized expert in the treatment of inflammatory bowel disease, testified that, in his opinion, the level of care provided to Claimant by DOCS was not within acceptable medical standards in that nurses and general practitioners are not qualified to treat patients with Crohn's and he should have been referred to a GI specialist. For example, Dr. George indicated that the diagnosis made by a doctor at Attica that Claimant did not have ulcerative colitis was correct but, at the same time, he was suffering from Crohn's and not being properly treated for that disease. He concluded that DOCS failure to make such a referral denied Claimant the opportunity to receive more aggressive drug treatment which may have limited the complications of the disease process (i.e. stricture of the colon) and prevented or delayed the need for surgery.
To the contrary, Dr. Burkard, board certified in internal medicine and gastroenterology, testifying for Defendant as an expert and a treating physician, stated that the treatment of Claimant's symptoms by DOCS was appropriate and there is no medical evidence to support the theory that a delay, if any, in treating the condition made a difference in the ultimate outcome of the disease process which resulted in the need for surgery. She concluded that the treatment provided by DOCS was commensurate with the standards of acceptable medical practice in the western New York community.
Dr. Kulaylat, board certified in general and colon and rectal surgery and a treating physician, testified as an expert for Defendant. He testified that when Claimant was examined in March of 2001 his colon had multiple stricture and fistula formations which would require the surgical removal of the entire colon (Exhibit E). He indicated that Crohn's is a chronic disease which cannot be controlled or cured by medication and that 80% to 90% of those suffering from Crohn's for more than five years will require surgery. On cross-examination, Dr. Kulaylat admitted that some Crohn's patients may benefit from a combination of medications which can either delay or prevent the need for surgery. However, he would not speculate whether Claimant's surgery could have been avoided by the use of those treatment modalities.
Finally, Thomas C. Mahl M.D., board certified in internal medicine and gastroenterology, testified as an expert for Defendant. After reviewing Claimant's medical records and deposition transcripts of a number of medical providers, he stated that, in his opinion, the treatment rendered by DOCS was within the acceptable standard of care and that treating him more aggressively would not have changed the outcome. Dr. Mahl indicated that while in DOCS custody Claimant presented with mild symptoms of ulcerative colitis or Crohn's and, since the disease is chronic and incurable, the drug treatment modality was intended to control the symptoms and not to alter the long term effects of the disease process. He noted that Claimant's AHRs indicate that his condition improved as a result of the treatment.
There is no dispute that the State has an obligation to provide the inmates of its correctional facilities with reasonable and adequate medical care (Gordon v City of New York, 120 AD2d 562 , affd 70 NY2d 839 ), including proper diagnosis and treatment (Rivers v State of New York, 159 AD2d 788 , lv denied 76 NY2d 701 ).
In a medical malpractice claim, the Claimant has the burden of proof and must establish (1) a deviation or departure from accepted practice and (2) evidence that such deviation was the proximate cause of the injury or other damage (Pike v Honsinger, 155 NY 201, 209-210 ). 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. The "claimant must [demonstrate] . . . that the physician deviated from accepted medical practice and that the alleged deviation proximately caused his . . . injuries" (Auger v State of New York, 263 AD2d 929, 931 , citing Parker v State of New York, 242 AD2d 785, 786 ). Without such medical proof, no viable claim giving rise to liability on the part of the State can be sustained (Hale v State of New York, 53 AD2d 1025 , lv denied 40 NY2d 804 ).
At trial the medical experts for both parties agreed that acceptable treatment for Claimant's ulcerative colitis or Crohn's included either the administration of drugs or surgical intervention. Thus, the initial determination to treat Claimant's condition with drug therapy cannot be questioned.
The crux of this case, however, hinges on whether appropriate and timely medical attention was provided during the course of Claimant's treatment by DOCS personnel. At the heart of this issue is the request by Claimant for a consult with a GI specialist when he was not satisfied with the progress of the treatment provided by DOCS. There can be no dispute that such a request did in fact exist since it was included in Claimant's AHR maintained by DOCS. As a result, the Court must determine whether the delay of approximately thirty-one months between Claimant's initial request and the actual consult with a GI specialist was reasonable. Claimant's experts testified that this delay was unreasonable and not within the standards of accepted medical practice. Defendant's experts countered that an immediate consult was not necessary because Claimant was being treated for a condition which had been previously diagnosed by GI specialists at Strong.
Based on the foregoing, and the testimony and documentary evidence presented at trial, the Court concludes that Defendant deviated from accepted medical practice by failing to obtain a timely, independent GI consultation for Claimant when his symptoms persisted over an extended period of time despite the administration of medication.
Having made this finding, however, the Court must also determine whether this deviation from accepted medical standards was a proximate cause of the proctocolectomy. In other words, Claimant must establish that the delay in obtaining a GI consultation was a proximate or aggravating cause of the surgery for the removal of his diseased colon and rectum (Marchione v State of New York, 194 AD2d 851 ).
The expert testimony for each party was in sharp contrast on this point. Claimant's experts, Drs. Hafner and George, opined that the delay in providing a consultation prevented Claimant from being aggressively treated with new drugs which could have delayed the proctocolectomy, while Drs. Burkard and Mahl, two of Defendant's experts, attributed the need for surgery to the chronic and progressive nature of inflammatory bowel disease.
In view of this contradictory testimony, the Court has given careful consideration to the findings and recommendations made by Dr. Burkard, the GI specialist who actually examined Claimant in January, 2001. After her examination, Dr. Burkard determined that Claimant was suffering from Crohn's and not ulcerative colitis because of the stricturing or narrowing of his colon wall. She noted that the stricturing was evident in 1991 when Claimant was treated at Strong and further tests in 1995 and 2000 revealed continued narrowing of the colon wall causing her to recommend a surgical consult with Dr. Kulaylat. Significantly, as to the level of care required, Dr. Burkard testified that, at the time of his entry into DOCS custody, Claimant clinically presented with mild Crohn's and since it is an incurable disease only the symptoms can be treated with the type of anti-inflammatory drug therapy provided by DOCS personnel. In other words, it was Dr. Burkard's opinion, based upon her examination of Claimant pursuant to a referral by DOCS, that Claimant was suffering from incurable Crohn's; that the medical treatment he received while in DOCS custody was appropriate to treat the symptoms of the disease; and that there was no other or different treatment available which would have alleviated or prevented the need for surgery to remove his diseased colon(3) .
Accordingly, even though the Court finds that Defendant departed from accepted medical standards by not referring Claimant to a GI specialist in a timely manner, the Court also finds and concludes that Claimant has failed to establish that such delay was the proximate cause of his injuries. Claimant's experts did not, in the Court's view, establish to a degree of medical certainty that his injuries flowed from Defendant's conduct. Dr. George suggested that Claimant's surgery might have been delayed by the administration of different drugs but "proof of a mere possibility of cure does not satisfy a prerequisite to liability," rather it must be more probable than not that the claimed injury was caused by defendant's malpractice (Mortensen v Memorial Hosp., 105 AD2d 151, 158 ). Notwithstanding the fine efforts made by Claimant's able counsel, based upon the proof presented at trial, the Court must conclude that Claimant has not sustained his burden of establishing a proximate cause between the care and treatment provided by DOCS and his proctocolectomy.
Accordingly, Defendant's motion to dismiss made at the conclusion of Claimant's direct case, upon which decision was reserved, is now granted and the claim is hereby dismissed.
Any motions not heretofore ruled upon are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
June 20, 2008
Buffalo, New York
JEREMIAH J. MORIARTY III
Judge of the Court of Claims
1. A review of the expert medical testimony presented at trial demonstrates no disagreement that ulcerative colitis and Crohn's disease are chronic inflammatory bowel diseases. Both are idiopathic and progressive; the origins and causes of each are not known and neither can be medically cured. Ulcerative colitis is confined to the colon; causes inflammation of the lining of the intestinal wall known as the mucosa and can be cured surgically by the removal of the diseased colon. Crohn's disease may affect any part of the gastrointestinal tract but commonly involves the small and large (colon) intestines; produces extensive scarring of all layers of the intestinal wall and is characterized by the formation of strictures and/or fistulas. Crohn's disease cannot be cured by surgery.
2. A colectomy is the surgical removal of the colon and a proctocolectomy is the surgical removal of the colon and rectum.
3. To contradict this position, Claimant's counsel sought to introduce into evidence articles published in medical journals between 2003 and 2005 regarding the use of the drug Infliximab (which was available in 1998) for treatment of Crohn's. Counsel for Defendant objected to the relevancy of the articles on the ground that they were published after Claimant's alleged injury. The Court reserved decision and now rules that the articles will not be admitted into evidence, but notes that they were appropriately used at trial for the limited purpose of cross-examination.