New York State Court of Claims

New York State Court of Claims

PHILLIPS v. THE STATE OF NEW YORK, #2008-037-503, Claim No. 109139


Case Information

JOSEPH G. KELLER, as Administrator in the Estate of PAUL M. PHILLIPS, Deceased
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:
Abbott, Tills & Knapp, LLCBy: Kenneth W. Knapp, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: William D. LonerganAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 16, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Paul M. Phillips[1] alleges in Claim Number 109139 that he was injured by the failure of Defendant to properly diagnose and treat a blood clotting condition of his lower left leg between August 19, 2002 and February 24, 2003, 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), Groveland Correctional Facility (Groveland) and Gowanda Correctional Facility (Gowanda). Claimant, who had suffered from hypertension and peripheral vascular disease (PVD) for many years prior to his incarceration, claims that the failure of DOCS to provide timely and appropriate medical treatment for his condition resulted in complications which required surgical intervention and caused unnecessary pain and suffering. The issues at trial were bifurcated and this decision relates solely to the issue of liability.

The relevant facts, as set forth at trial[2], establish that Claimant, a disabled Vietnam War veteran[3], was transferred into DOCS custody from Cattaraugus County Jail on July 17, 2002 following his conviction for felony driving while intoxicated (DWI). Upon his arrival at Wende, a nursing assessment form was completed which states that Claimant was then under treatment for hypertension, occasional back pain and vascular surgery on his leg but was not on any medication, and he was advised to go to sick call to request an evaluation of his condition by a medical doctor. Shortly thereafter, Claimant was transferred to Elmira and the records of his intake assessment at this facility, dated July 22, 2002, likewise note that he was under treatment for hypertension, chronic lower back pain and vascular surgery but not on any medication. The medical records also indicate that Claimant underwent a physical evaluation and assessment at Elmira on July 25, 2002 which found that he had femoral bypass surgery on his left leg at Buffalo General Hospital in August 2000 and determined that he was in good health and not on any medication.

Claimant was transferred to Groveland on July 31, 2002 and his incoming medical records indicate a history of hypertension and a determination that he “needs [a] baseline EKG.” The next entry in his health record is undated and reflects that Claimant requested medication for treatment of high blood pressure and nerves. The next two entries, both dated August 19, 2002, reveal that Claimant complained of leg and back pain and was administered pain medication. The following day, August 20, 2002, Claimant was transferred to the DWI program at Gowanda and the incoming medical record references his history of hypertension, vascular surgery and no medication.

At his deposition, Claimant testified that for several years prior to his incarceration he was treated with a regimen of medication prescribed by Veterans Administration doctors in an effort to control the symptoms of hypertension and PVD. He stated and his medical records confirm that upon entry into DOCS system at Elmira, Groveland and Gowanda he reported his history of high blood pressure, leg and back pain to medical personnel but, with the exception of the entries made in August 2002 , there is no record of any specific complaints of these symptoms until November 7, 2002. On that date, in response to Claimant’s report of lower back and leg pain, he was examined for the first time by Virginia B. Calkins, M.D., a staff physician at Gowanda, who instituted a regimen of medication for treatment of his complaints, noting in his Ambulatory Health Record (AHR) that Claimant “[h]as ignored all advice as to reporting problems and medication needs at sick call so has been taking nothing” (Exhibit 4, p. 040). Claimant’s AHR confirms his testimony that he received continuous treatment for his symptoms from November 7, 2002 until February 24, 2003 when he was referred to Erie County Medical Center (ECMC) for surgery to repair a blockage at the femoral graft site. Claimant asserts that the diagnosis and treatment of his condition were improper, resulting in a lengthy period of pain and suffering and the need for corrective surgery which otherwise could have been avoided. Defendant counters that the surgery was necessary to resolve complications arising from Claimant’s preincarceration femoral bypass surgery having been exacerbated by the natural progression of PVD and other related health issues.

Canio Demaio, testifying as a fact witness for Claimant, indicated that they served together in the DWI program at Gowanda for five months in 2002-2003 during which time he observed Claimant on a daily basis. He witnessed that Claimant walked with a limp and was having difficulty with circulation and pain in his left leg. Mr. Demaio stated that he applied hot towels to Claimant’s leg to relieve the symptoms and encouraged him to attend sick call for treatment which Claimant was reluctant to do.

Joel L. Pasternack, M.D., board-certified in emergency medicine and a professor at University of Rochester Medical School, testified as an expert for Claimant. Based on his knowledge of PVD 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 and the depositions of Claimant, Virginia B. Calkins, M.D., and Cristina M. Misa, M.D., Dr. Pasternack stated that, in his opinion, DOCS treatment of Claimant departed from the acceptable standard of care in that their medical personnel should have performed a pulse examination and diagnostic testing for vascular disease through the use of Doppler after the November 7, 2002 consultation and prior to February 24, 2003. According to Dr. Pasternack, the charting of Claimant’s medical care by DOCS personnel was inadequate and does not properly reflect the care and/or treatment rendered at Gowanda, making it difficult to determine which, if any, diagnostic procedures were performed, leading him to conclude that the appropriate standard of care was not met. He testified that the leg pain reported by Claimant likely resulted from claudication (intermittent leg pain associated with vascular insufficiency, i.e., decreased blood flow through the vessels) and/or ischemic rest pain (persistent leg pain due to decreased blood supply) but the physicians at Gowanda either failed to perform a vascular examination or failed to record their findings.
Dr. Calkins, who was called by Claimant to testify as a treating physician, stated that Claimant presented with a history of alcoholism, heavy smoking, hypertension, PVD and back problems. She acknowledged that Claimant complained of numbness and tingling sensations in his left leg, which she attributed to sciatica resulting from a previous back injury. Dr. Calkins stated that treatment was provided for a variety of symptoms reported by Claimant from November 7, 2002 until February 14, 2003 when she ordered Doppler studies for his vascular condition and a consult with Robert M. Lifeso, M.D., an orthopedic specialist at ECMC, for his back and leg problems. When Claimant appeared at sick call on February 24, 2003 complaining of severe leg pain, Dr. Calkins noted symptoms of vascular insufficiency in his left leg and immediately ordered a referral to ECMC where he underwent surgery to correct a vascular occlusion at the femoral bypass graft site.

Dr. Misa, Acting Regional Medical Director at Wende and Facility Health Service Director at Gowanda, testifying for Defendant as a fact witness, indicated that she is board-certified in family medicine and has been a DOCS employee since 1999. After reviewing Claimant’s AHRs, Dr. Misa concluded that timely and appropriate medical treatment was provided by DOCS from August 19, 2002 to February 24, 2003 based upon the symptoms he reported to medical personnel.

Patrick J. Hughes, M.D., board-certified in neurology, testified for Defendant as an expert. After reviewing Claimant’s medical records from DOCS and the Veterans Administration he stated that, in his opinion, the care and treatment rendered by DOCS fulfilled the highest degree of medical care. Dr. Hughes indicated that Claimant presented first with symptoms of sciatica and later with symptoms of a vascular occlusion, both of which were properly diagnosed and treated by Dr. Calkins. He noted that Claimant had a preincarceration history of a back injury and PVD exacerbated by alcoholism and heavy smoking.

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 [1986], affd 70 NY2d 839 [1987]), including proper diagnosis and treatment (Rivers v State of New York, 159 AD2d 788 [1990], lv denied 76 NY2d 701 [1990]). When, as here, the allegations of medical malpractice involve patient treatment, three component duties are owed by the physician to the patient: (1) the duty to possess the requisite knowledge and skill such as is possessed by an average member of the medical profession; (2) a duty to exercise ordinary and reasonable care in the application of professional knowledge and skill; and (3) the duty to use his or her best judgment in the application of this knowledge and skill (Littlejohn v State of New York, 87 AD2d 951, 952 [1982], citing Pike v Honsinger, 155 NY 201, 209-210 [1898]). The standard of care a physician owes to a patient is to use such reasonable and ordinary care, skill and diligence as physicians in good standing in the same area, in the same general line of practice, ordinarily have and exercise in similar cases. Physicians are expected to use the proper degree of care in making a careful diagnosis of a patient’s ailment and in deciding upon a course of treatment (O’Neil v State of New York, 66 Misc 2d 936 [1971] and cases cited therein). In addition to proving that the physician or medical staff treating him failed in one or more of those duties, Claimant must also establish that such failure was a proximate cause of his damages, i.e. that it was a substantial factor in causing or exacerbating his injuries (Auger v State of New York, 263 AD2d 929, 931 [1999], citing Parker v State of New York, 242 AD2d 785, 786 [1997]). 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 [1976], lv denied 40 NY2d 804 [1976]).

Claimant’s expert did not present any testimony that the staff at Gowanda lacked the requisite knowledge and skill to treat Claimant. Therefore, the record herein does not support a finding that there was a failure to exercise any professional judgment (see Huntley v State of New York, 62 NY2d 134, 137 [1984]; Herold v State of New York, 15 AD2d 835 [1962]; Cohen v State of New York, 51 AD2d 494 [1976], affd 41 NY2d 1086 [1977]; Amadon v State of New York, 182 AD2d 955 [1992], lv denied 81 NY2d 701 [1992]), or that there was “almost casual consideration” of the situation (Clark v State of New York, 99 AD2d 616, 617 [1984]). However, Claimant’s expert testified that there were specific deviations from the standard of care. Although the line between medical judgment and deviation from good medical practice is not easy to draw (Topel v Long Is. Jewish Med. Ctr., 55 NY2d 682 [1981]), Dr. Pasternack opined that vascular studies of Claimant’s left leg should have been obtained after the November 7, 2002 examination by Dr. Calkins. This opinion was based in part on the assumption by Dr. Pasternack that Claimant presented with symptoms of vascular insufficiency at that time. The testimony of Dr. Calkins and the notes contained in Claimant’s medical records do not support that assumption. The first reference to potential problems with his femoral bypass are found in the AHR of February 14, 2003, just ten days before the referral to specialists at ECMC. While a diagnostic study of a vascular condition sooner rather than later is to be preferred, this record does not support a finding that it was medically necessary until Claimant exhibited symptoms of vascular occlusion on February 14, 2003.

Based on the foregoing, and the testimony and documentary evidence presented at trial, the Court finds and concludes that Claimant has failed to establish by a preponderance of the credible evidence that Defendant departed from the requisite standard of medical care to be provided to Claimant and that any delay in providing Claimant with treatment constituted negligence (Marchione v State of New York, 194 AD2d 851 [1993]).

Theoretically, even if Claimant was able to show that there was a delay in care at Gowanda, he has failed to establish that the delay was the proximate cause of his surgery. Claimant’s expert, in the Court’s view, did not establish to a degree of medical certainty that any delay in diagnosing or treating the vascular symptoms was a proximate or aggravating cause of the surgery needed to correct the problem. “[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 [1984]). 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 vascular surgery.

Accordingly, the claim must be and hereby is dismissed. All motions not heretofore ruled upon are now denied.


October 16, 2008
Buffalo, New York

Judge of the Court of Claims

[1].Paul M. Phillips died on May 25, 2007 prior to the trial of this claim. By Stipulation and Order filed September 10, 2007, the caption of this action was amended to indicate that Joseph G. Keller was issued Limited Letters of Administration in the Estate of Paul M. Phillips on August 6, 2007. Hereafter, the term “Claimant” shall refer to Paul M. Phillips unless otherwise noted.
[2].A transcript of Claimant’s examination before trial taken on April 20, 2005 was introduced into evidence as Claimant’s Exhibit 1 and Claimant’s medical records maintained by DOCS were introduced into evidence as Claimant’s Exhibit 4.
[3].Claimant testified that his total disability resulted from a combat-related back injury and post traumatic stress syndrome (PTSS).