New York State Court of Claims

New York State Court of Claims
PICKELL v. THE STATE OF NEW YORK, # 2009-015-526, Claim No. 113130

Synopsis

Following trial, Court awarded damages for wrongful death and pain and suffering caused by the improper treatment of an inmate's diabetic foot sores.

Case information

UID: 2009-015-526
Claimant(s): MARLENE PICKELL, as Administratrix of the Estate of LEONARD PICKELL, deceased, and MARLENE PICKELL, Individually
Claimant short name: PICKELL
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 113130
Motion number(s):
Cross-motion number(s):
Judge: FRANCIS T. COLLINS
Claimant's attorney: Law Firm of Broder & Reiter
By: Jonathan C. Reiter, Esquire
Defendant's attorney: Honorable Andrew M. Cuomo, Attorney General
By: Gregory Miller, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: November 19, 2009
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant, Marlene Pickell, brings this action for the conscious pain and suffering and wrongful death of her husband, Leonard Pickell, arising out of the alleged negligence and medical malpractice of the defendant(1) . Claimant alleges the defendant failed to provide the decedent proper diabetic foot care and treatment during the course of his prison confinement. A unified trial addressing both liability and damages commenced on May 4, 2009 and concluded on May 11, 2009.

Mr. Pickell was received at Ulster Correctional Facility (Ulster) on July 8, 2005 and remained there until his transfer to Groveland Correctional Facility (Groveland) on September 15, 2005. Exhibit 5, his medical records from Ulster, note that Mr. Pickell was diabetic, hypertensive and suffered from hepatitis C. Mr. Pickell also had herniated discs at L-4 and L-5 and was noted to have a drop-foot. On July 13, 2005 Mr. Pickell was seen with regard to a blister on his right great toe. The toe was described as red with the skin sloughing off and he was scheduled for sick call the next morning for a follow-up with a physician's assistant (Exhibit 5, p. 101). Mr. Pickell was seen numerous times throughout July, August and early September, 2005 regarding his toe and was prescribed oral antibiotics and diabetic foot care. An entry in Mr. Pickell's ambulatory health record dated August 9, 2005 contains a diagram showing a slow healing ulcer on the plantar surface of Mr. Pickell's right great toe (Exhibit 5, p. 104). On that date Mr. Pickell was issued a sneaker pass which would continue to be valid until the date of his transfer to a permanent facility. That transfer occurred on September 15, 2005 when Mr. Pickell was received at Groveland Correctional Facility.

At Groveland Mr. Pickell received a health screening from Nurse Cheryllene Towner. At trial Nurse Towner confirmed that she conducted a health screening and nursing evaluation of Leonard Pickell on September 15, 2005. In the notes of her examination, Ms. Towner indicated on the health screening form that Mr. Pickell did not have "a current health problem or complaint" (Tr. 1, p. 93; Exhibit 6, p. 113). In addition, although she indicated on the form that Mr. Pickell could ambulate without assistance, she also noted that he had a limp and a "[s]ore on foot" (Exhibit 6, p. 113). Despite her awareness of the sore on the decedent's foot and his diabetic condition, she failed to examine Mr. Pickell's foot at the time of the health screening and nursing evaluation. In her testimony Nurse Towner agreed that it was her duty to conduct a physical examination of Mr. Pickell upon his receipt at Groveland and to formulate a nursing plan which would specifically address each of the patient's physical ailments. The witness confirmed that she was aware Mr. Pickell was a diabetic at the time she met with him on September 15, 2005 and testified that she received and reviewed his medical records from Ulster prior to or at the time of the examination as indicated on the form contained on p. 111 of Exhibit 6.

On cross-examination Nurse Towner testified that she advised each new inmate received at Groveland regarding the facility's sick call policy. On redirect examination she agreed that she cleared Mr. Pickell to work in the facility's food service and that an individual with an active infection should not be so approved. Nurse Towner confirmed that she did not physically examine the patient's foot to determine whether or not the sore which he had complained about was infected.

Claimant next called as a witness Dr. Young S. Jun, Facilities Health Service Director at Groveland in September, 2005. Dr. Jun testified that he examined Leonard Pickell for the first time on September 20, 2005. According to Dr. Jun it is not always the case that a complete set of medical records is available to him at the time he conducts initial examinations of incoming inmates and he could not recall whether he had Mr. Pickell's records from Ulster in his possession at the time of his examination on September 20, 2005. Instead, he testified that the only record he recalled having available to him at the time of his examination of Mr. Pickell was the nursing record prepared by Nurse Towner on September 15, 2005. He confirmed that Nurse Towner had recommended an immediate referral to a physician following her examination of Mr. Pickell and did not recognize any notation in Nurse Towner's records which indicated Mr. Pickell had complained of a sore on his foot. Dr. Jun also confirmed he was unaware at the time of his examination of Mr. Pickell on September 20, 2005 that he required diabetic foot care as noted in his ambulatory health record from Ulster (Exhibit 5, p. 107).

The witness testified that during his physical examination Mr. Pickell complained of a "drop right foot" (Tr. 1, p. 59)(2) . In response to Mr. Pickell's complaint, Dr. Jun examined Mr. Pickell's right foot and noted an ulcer on his right great toe. Dr. Jun was at the time aware that Mr. Pickell was diabetic and that an ulcer on a diabetic's toe constitutes a potentially serious condition. Dr. Jun described the ulcer on Mr. Pickell's toe as uncomplicated and "dry" (Tr. 1, p. 61). He did not prescribe medication to treat the ulcer and could not recall whether he provided Mr. Pickell a bandage to cover the toe. He did not prescribe diabetic foot care for Mr. Pickell although as the facility's Health Services Director he had authority to prescribe such services. In addition, the witness testified that while he could have authorized special footwear for Mr. Pickell, he did not because he felt it was unnecessary at that time. Dr. Jun acknowledged that he prescribed no treatment of any type for the diabetic foot ulcer on Mr. Pickell's right great toe as a result of his examination on September 20, 2005. Nor did the doctor establish any follow-up treatment or examinations of the condition. In fact, the witness did not see Mr. Pickell again until October 11, 2005 when, according to a note in the decedent's ambulatory health record, a correction officer called the infirmary to request emergency sick call on behalf of Mr. Pickell (Exhibit 6, p. 120). On that date, Mr. Pickell presented with a weeping plus three pitting edema on the right foot and plus one pitting edema on the left foot. A decubitus ulcer was noted on the bottom of Mr. Pickell's right great toe, his hygiene was described as "very poor" and a purulent odor was noted (Exhibit 6, p. 120). Dr. Jun testified that such an odor is an indication that Mr. Pickell's right great toe was infected. Despite his awareness that Mr. Pickell was diabetic, that a purulent odor could indicate infection and that a diabetic with an infected toe ulcer was potentially at risk of becoming septic, Dr. Jun did not prescribe either oral or intravenous antibiotics for Mr. Pickell. Instead, Mr. Pickell was prescribed Motrin, Tylenol with Codeine and Silvadene ointment to be applied to Mr. Pickell's right great toe twice daily. Dr. Jun did not see Mr. Pickell on October 12, 2005 but ordered a telemed conference with a physician from the Erie County Medical Center which was held on October 13, 2005. As a result of the telemed conference Mr. Pickell was prescribed two grams of Rocephin immediately and 500 mg. of Keflex for ten days. As indicated in a nursing note from the 3:00 p.m. - 11:00 p.m. shift on October 13, 2005, Mr. Pickell became unresponsive and was transported by ambulance to the Wayne County Community Hospital at 10:15 p.m. (Exhibit 6, p. 136). Dr. Jun agreed that Mr. Pickell became unresponsive and was hospitalized due to septic shock as a result of the progression of the infection of his right great toe. He further agreed that he at no time prescribed an antibiotic for Mr. Pickell and that antibiotics were ordered by a physician at the Erie County Medical Center as a result of the telemed conference.

Dr. Jun was asked on cross-examination why he did not prescribe medication for Mr. Pickell's toe as a result of his examination on September 20, 2005. He indicated that, at the time of the examination, the ulcer on the bottom of Mr. Pickell's great right toe appeared to be "dry", meaning not infected (Tr. 1, p. 74). He described Silvadene cream which he prescribed to Mr. Pickell on October 11, 2005 as an ointment used to prevent infections and promote wound healing. He ordered a wound culture and sensitivity test for Mr. Pickell on October 11, 2005 and a telemed conference with a physician from Erie County Medical Center on October 13, 2005. As a result of the conference Mr. Pickell was prescribed Keflex and two grams of Rocephin, which was administered intramuscularly .

Returning to the witness's examination of Mr. Pickell on September 20, 2005, Dr. Jun testified that Mr. Pickell did not complain specifically with regard to his right great toe but rather complained of a right drop-foot. Notwithstanding his prior testimony that he had examined the ulcer on Mr. Pickell's great right toe on September 20, 2005 and observed it to be dry, when asked whether the notes of his examination include his observations concerning the ulcer, he responded that the notes state "[u]lceration reddish and swelling, right great toe" (Tr 1, p. 78; see also Exhibit 6, pp. 119-120). Upon further inquiry from the Court, Dr. Jun confirmed that he observed redness and swelling of the ulcer on his initial examination of Mr. Pickell.

On redirect examination the witness agreed that redness and swelling can indeed be indicative of the presence of infection. He also again confirmed that he noted redness and swelling of the right great toe during his examination of Mr. Pickell on September 20, 2005. He agreed that he did not use the word "dry" in describing his observation of Mr. Pickell's great right toe despite his prior testimony that he did not prescribe antibiotics because the toe appeared to be "dry". Dr. Jun acknowledged it was his responsibility as a physician to monitor the condition of the patient's right foot ulcer following the September 20, 2005 examination but that he did not order any follow-up appointment(s) .

Claimant next called Dr. Jeffrey Levine, a physician board certified in internal medicine

and geriatric medicine, and certificated as a wound care specialist. Dr. Levine described his education and experience and related the information which he reviewed prior to testifying at trial. Dr. Levine noted that Mr. Pickell had been diagnosed with diabetes within six months of the date of his initial incarceration. He described Mr. Pickell's diabetes as not of a severe nature and controllable with oral hypoglycemics. The witness related his opinion that Dr. Jun's failure to review Mr. Pickell's health records from Ulster Correctional Facility prior to examining him on September 20, 2005 was a departure from accepted standards of medical care. He further opined that the failure to prescribe antibiotics for Mr. Pickell following a physical examination that revealed a two-by three-centimeter ulceration of his right great toe, which appeared reddish and swollen, constituted a departure from accepted standards of medical care. According to Dr. Levine, a diabetic may not display the usual indicia of an active infection such as fever and pain. This is particularly true of Mr. Pickell who had been diagnosed with a neuropathy that left him insensate in his right foot. In addition, a diabetic may not exhibit as much redness at the site of infection as a non-diabetic "because the body is not able to mount an inflammatory response to the same degree" (Tr. 1, p. 110).

According to Dr. Levine, Dr. Jun's failure to establish follow-up appointments for Mr. Pickell subsequent to his examination on September 20, 2005 was also a departure from accepted medical standards. The applicable standard of care for a diabetic patient with a toe ulcer would include establishing a baseline blood sugar level, administering a blood test to determine whether there was a hematological indication of infection and ordering X rays to determine whether the bone was implicated in the infection. Dr. Levine stated that appropriate treatment would include starting Mr. Pickell on a broad spectrum antibiotic and that Dr. Jun's failure to prescribe such an antibiotic regimen following his September 20, 2005 examination was a departure from accepted standards of medical care. Further, if diagnostic tests indicate that the infection has affected the bone, or there is pus underneath the wound, oral antibiotics would be insufficient and intravenous antibiotics would be required because of penetration into the diseased tissue. With regard to the specific conditions noted during Dr. Jun's examination of September 20, 2005, Dr. Levine testified that a culture may not always be reliable because the foot is a generally unhygienic area. According to Dr. Levine "when the patient comes in they've got redness and swelling and they're diabetic, you have to think about infection and give them a broad spectrum antibiotic" (Tr. 1, p. 114). He went on to state that redness and swelling in a diabetic foot ulcer presents a danger of a rapidly ascending infection which may lead to septic shock. Although he described such circumstances as uncommon, he went on to state "it's something you need to think about because if you don't treat it that can happen" (Tr. 1, p. 116).

The witness testified that Dr. Jun's prescribing of Silvadene ointment, a topical antibiotic, without more, was an insufficient response to the conditions noted at his examination of Mr. Pickell on October 11, 2005. While Silvadene ointment "could have been part of the standard of care" the failure to immediately hospitalize Mr. Pickell, who presented with a decubitus ulcer on the bottom of his right great toe, three plus pitting edema, a purulent odor and weeping edema, constituted a failure to comply with applicable standards of medical care. Dr. Levine stated "what you're describing here in an overweight diabetic is an alarming situation" (Tr. 1, p.118). In addition, Dr. Jun's delay in providing antibiotics pending the results of a culture and sensitivity test was unacceptable and noncompliant with applicable standards of medical care "because infections in diabetics can spread very quickly as it eventually did with Mr. Pickell" (Tr. 1, p. 118).

Dr. Levine described Mr. Pickell's condition on the evening of October 13, 2005 as "a life-threatening situation" (Tr. 1, p. 119). He stated that at that time Mr. Pickell was in septic shock, which cannot be treated using oral or intramuscular antibiotics. Instead "septic shock needs to be treated in an intensive care unit [with] . . . aggressive fluid therapy and aggressive broad spectrum antibiotics, intravenously" (Tr. 1, p 119). In his opinion, had the treatment provided Mr. Pickell at Ulster continued upon his transfer to Groveland "it might not have completely cured but it certainly would [have] been prevented from getting as bad as it did and having the sequelae that it did of septic shock and ascending infection, uh, compartment syndrome that required multiple fasciotomies . . ." (Tr. 1, p. 120).

From his review of Exhibit 7, Dr. Levine testified that Mr. Pickell was hypertensive, unconscious and in septic shock upon his arrival at Wyoming County Community Hospital. The infection which had begun with the right great toe had been left untreated and, as a result, the infection was above the ankle at the time of his arrival at Wyoming County Community Hospital. Mr. Pickell was admitted into the intensive care unit where he was provided broad spectrum antibiotics and extensive fluid treatments. While at Wyoming County Community Hospital Mr. Pickell underwent two surgical procedures to his lower right leg while under general anesthesia. The procedures, irrigation-debridement and a fasciotomy, were undertaken in order to clean the infected area, remove dead or diseased tissue and address compartment syndrome in Mr. Pickell's right leg through longitudinal incisions intended to relieve pressure and permit circulation through the leg to Mr. Pickell's foot and toes. According to Dr. Levine, had Mr. Pickell received proper medical care for his diabetic foot ulcer at Groveland, his condition would not have worsened to the point where hospitalization and surgeries were required.

While at the Wyoming County Community Hospital, a sacral ulcer was discovered on Mr. Pickell's lower back. When asked whether the departures from the applicable medical standards, which he testified to on direct examination, were a substantial factor in causing the sacral ulcer Dr. Levine replied that an individual such as Mr. Pickell who is obese, has severe anemia, low blood pressure and infections on both feet is very likely to develop bedsores as a result of tissue hypoperfusion. He described the sacral decubitus depicted in Exhibits 22-B and 22-C as a stage three pressure sore which he estimated to be approximately three centimeters by four-five centimeters. The base of the decubitus was described as "pale but clean" although it appeared that the wound border required some debridement (Tr. 1, p. 132).

The witness was shown Exhibits 22-A through 22-E, photographs taken by Mr. Pickell's family upon his return home following his release from incarceration. He described Exhibit 22-E as depicting a swollen foot and a scar exhibiting some redness with an open area in the center which appeared to have "some crusting and possibly some drainage" (Tr. 1, p. 129). Dr. Levine testified that the scar depicted in Exhibit 22-E " is not a healed wound" (Tr. 1, p. 130). Exhibit 22-D is a front view of Mr. Pickell's lower right leg. According to Dr. Levine both scars depicted in Exhibit 22-D were "closed" at the time the photograph was taken (Tr. 1, p. 131). The scars to the medial side of Mr. Pickell's lower right leg and foot depicted in Exhibit 22-A also appeared to be "closed". He distinguished between the use of the term "healed" and "closed" by stating that wounds such as those to Mr. Pickell's right leg and foot require months to heal and that even though it appears the wound has closed "there's still some healing that's going on underneath" (Tr. 1., p. 131).

After reviewing the events and medical treatment which occurred subsequent to Mr. Pickell's release from confinement, Dr. Levine testified that the departures from applicable medical standards which occurred at Groveland "caused the state of severe debility that resulted in these complications as well as his death" (Tr. 1, p. 134).

In this regard the witness further testified:

"[t]he metabolic, physiologic insults that he, that he suffered from, the prolonged hospitalization with multiple surgeries involving his left foot, his sacral ulcer, the sepsis from which he suffered left him in a state of debility that caused him to be susceptible to these other things. Including the, um, the gangrene of his left little toe. And the pulmonary embolis that he suffered from" (Tr. 1, p. 134).

According to Dr. Levine, the number and extent of the incisions made to Mr. Pickell's right foot contributed to the formation of blood clots. In addition, Mr. Pickell's immobility during his post-confinement period also contributed to the formation of blood clots in his legs, a portion of which ultimately broke off and traveled to his lungs causing his death. All opinions expressed by Dr. Levine were stated with a reasonable degree of medical certainty.

On cross-examination the witness testified that Mr. Pickell suffered from various co-morbidities including hypertension, obesity, radiculopathy, right foot drop, proteinuria and peripheral neuropathy. He agreed that both proteinuria and peripheral neuropathy may indicate a longstanding, untreated diabetic condition. With regard to Exhibit 22- E, a photograph showing the lateral aspect of Mr. Pickell's lower right leg, Dr. Levine stated that it appeared the center open area could contain some discharge. Although he would prefer to have the opportunity to probe the wound, it was his opinion "that's not a healed wound" (Tr. 1, p. 144). He went on to testify that, in his opinion, antibiotics should have been ordered at the time Dr. Jun first noticed redness and swelling around the ulcer on Mr. Pickell's right great toe during his examination on September 20, 2005 because diabetics do not manifest signs of infection in the same manner as would a nondiabetic. Dr. Levine agreed that amputation of Mr. Pickell's right foot/leg had been discussed with him on several occasions - first at the Wyoming County Community Hospital and subsequently at the Erie County Medical Center. In fact, Mr. Pickell had a portion of the fourth toe on his left foot amputated after injuring it in September, 2006. The toe became gangrenous, which generally results from hypoperfusion related to anemia and lack of blood flow to the affected area. He agreed that diabetics experience reduced blood flow to certain areas of their bodies as a result of their diabetic condition. Amputation was discussed with Mr. Pickell at The Hospital For Joint Diseases. Because Mr. Pickell had residual osteomyelitis in his right ankle, doctors discussed as appropriate options either amputation or a limb salvage procedure such as the arthrodesis which the decedent ultimately underwent. The witness agreed that the "birdcage apparatus" (Tr. 1, p. 156) surgically applied to Mr. Pickell's right leg would inhibit his ability to ambulate. Although Coumadin may be prescribed to protect against the occurrence of pulmonary emboli, the witness testified that Coumadin was not prescribed for Mr. Pickell at any time following his release from confinement(3) .

The claimant next called Claire Hoffman. Ms. Hoffman related her prior education and experience and testified that she is a registered nurse, board certified in geriatric and developmental disability nursing. She is also a certified legal nurse consultant. The witness testified that she is familiar with prevailing standards of medical care relative to the assessment and treatment of diabetic foot ulcers and sacral decubiti, including those promulgated by the American Diabetic Association and the American Nurses Association.

Ms. Hoffman testified that she had reviewed records pertaining to the nursing and other treatment provided Leonard Pickell at Ulster, Groveland and the Wyoming County Community Hospital. In addition, the witness reviewed the deposition testimony of Nurse Cheryllene Towner prior to trial.

Ms. Hoffman testified that the nursing assessment of Leonard Pickell by Nurse Towner upon his arrival at Groveland Correctional Facility deviated from the applicable standard of care within the nursing profession. According to the witness a nurse is responsible for insuring a complete and accurate assessment. Once Mr. Pickell made Nurse Towner aware of a sore on his foot, as indicated in the note contained on page 113 of Exhibit 6, it was her duty to examine the wound, which she did not do. In addition, standard nursing protocols require not only that the wound be physically examined, but also that the characteristics of the wound such as its location, length, width, depth, color and any drainage must be noted in the record. This is particularly true when dealing with a patient who is diabetic. According to the witness, the failure to examine and note the characteristics of the sore on Mr. Pickell's foot was a deviation from generally recognized standards of care in the nursing profession.

In addition, following a nursing assessment, applicable nursing standards require preparation of a plan of care "which identifies what the problem is, sets forth a goal, and delineates interventions or approaches to reach that goal" (Tr. 2, p. 13)(4) . According to the witness a proper plan of care relative to Mr. Pickell's complaint regarding a sore on his foot would include monitoring his blood sugars, ensuring that he was fitted with proper footwear and delineating specific plans for treating the wound and monitoring its progress. The failure of Nurse Towner to prepare a plan of care for the sore on Mr. Pickell's foot was, in the witness's opinion, a deviation from applicable standards of care in the nursing profession. With regard to monitoring the wound, it was the witness's opinion that the failure to monitor the sore on the decedent's right great toe between September 15, 2005 and October 11, 2005 constituted a departure from applicable standards within the nursing profession. Ms. Hoffman concluded her direct testimony by stating her opinion that the failure to physically examine and assess the sore on the bottom of Mr. Pickell's right great toe, develop a proper nursing care plan and thereafter properly monitor the wound were the proximate causes of the conditions, including septicemia and osteomyelitis, that required Mr. Pickell's hospitalization at the Wyoming County Community Hospital.

Cross-examination of the witness was unremarkable and will not be recounted in detail.

The claimant next called to the stand Dr. Louis Roh. Dr. Roh testified that he is a physician licensed to practice in the State of New York and board certified by the American Board of Pathology in the areas of anatomic, clinical and forensic pathology. Dr. Roh was retained by the claimant to perform an autopsy of Leonard Pickell. Based upon the results of the autopsy, the witness testified to his conclusion, with a reasonable degree of medical certainty, that "[t]he immediate cause of death was a thromboembolism of pulmonary artery" (Tr. 2, p. 96).

After reviewing various photographs taken during the course of the autopsy, Dr. Roh stated that "based on the size and diameter of these blood clots it had to be coming from the lower extremity, deep leg veins" (Tr. 2, p. 101). Specifically, it was Dr. Roh's opinion that the multiple clots revealed at the autopsy originated in Mr. Pickell's right lower extremity. He testified that Mr. Pickell's lower right leg, ankle and foot were extremely swollen. He attributed the swelling to poor circulation which, in turn, resulted in stagnation of blood in the deep leg veins and produced clotting within the veins. Once blood clots dislodge, they can travel through the venous system to the heart and lodge in the lung, resulting in death. Dr. Roh testified that, in his opinion, although the pulmonary embolism which lodged in Mr. Pickell's lung was the immediate cause of his death, the chain of events that began following his incarceration in 2005 and led to various complications, including several surgeries, and damage to the venous system of the decedent's lower right leg, was the "proximate" cause of his death (Tr. 2, p. 107).

On cross-examination the witness acknowledged that the blood clot which produced the pulmonary embolism could have originated in either the decedent's right or left leg. His opinion that the embolism dislodged from Mr. Pickell's lower right leg was based upon the effect of various surgeries and the resulting scar tissue which inhibited circulation within the decedent's right leg, eventually resulting in stagnation of blood in the extremity.

The defendant called Dr. Stanley L. Bukowski and Dr. Peter Ostrow to the stand at the conclusion of claimant's case and their testimony will be addressed here prior to that of claimant's remaining witnesses.

Dr. Bukowski testified that he is board certified in internal medicine and presently employed as a physician at the Wende Regional Medical Unit (RMU), which he described as a prison hospital for inmates having chronic, complex or long-term medical needs. In addition to treating Leonard Pickell while he was confined at the Wende RMU, Dr. Bukowski reviewed Leonard Pickell's records of treatment for the period before, during, and after his confinement. He related that Mr. Pickell had various co-morbidities which influenced his physical condition, including diabetes, high blood pressure, chronic hepatitis C, a right retinal hemorrhage, peripheral neuropathy and lumbar disc disease resulting in right foot drop. Having reviewed Mr. Pickell's records for the period preceding his incarceration, Dr. Bukowski testified that the presence of proteinuria, peripheral neuropathy and a right retinal hemorrhage at the time Mr. Pickell was diagnosed as having diabetes in 2005 suggests that the decedent had diabetes for a number of years prior to the date of diagnosis. According to Dr. Bukowski, these phenomena are complications of diabetes which occur five to ten years following first onset of the disease. Mr. Pickell also wore an ankle-foot orthosis or brace on his lower right leg in 2005 to address his right foot-drop.

With regard to the period during which Mr. Pickell was housed at Ulster (July 8, 2005 - September 15, 2005), Dr. Bukowski testified that Mr. Pickell's hemoglobin A1C level was measured at 6.3 as reflected in his medical record for July 26, 2005. Although a normal hemoglobin A1C level of less than 6 is generally thought to be within the normal range, Dr. Bukowski stated that in his opinion "[6.3] is very good" (Tr. 4, p. 12)(5) . Mr. Pickell's records from Ulster (Exhibit 5) also note that he was examined on July 13, 2005 with regard to a complaint regarding his right great toe. A treatment note for that date states "Huge blister broke. R great toe. Toe red. Skin has been [sloughed] off. Has neuro damage to the area. Approx. 70% of the R great toe involved" (Exhibit 5, p. 101) . The blister was treated with Betadine and a sterile dressing and Mr. Pickell was given an appointment for sick call the following morning so that he could be examined by a physician's assistant. Mr. Pickell returned to sick call the next day and the wound was treated with Bacitracin, the dressing was changed and a follow-up appointment with a physician for a wound check was suggested. Mr. Pickell's right great toe was again examined on July 28, 2005. The notes for that date indicate "R 1st toe denuded areas covered [with] granulation . . . some areas of epithelization, some central necrosis" (Exhibit 5, p. 103). According to Dr. Bukowski, granulation indicates that the wound was healing as did the epithelization or growth of new skin in the area. In fact, the medical assessment for that date indicates "Healing Blister R1st Toe" (Exhibit 5, p. 103). Mr. Pickell was prescribed Augmentin (875 mg.) to be taken twice a day for ten days. Notes from a further examination on September 8, 2005 contain a hand-drawn diagram indicating a small central ulcer surrounded by "Healthy, Beefy Granulation" on the plantar surface of Mr. Pickell's right great toe (Exhibit 5, p. 107). The notes reflect a slow healing ulcer and the recommendation that Mr. Pickell receive diabetic foot care and an expedited transfer to a permanent facility.

Following his transfer to Groveland, Mr. Pickell was treated on an emergency sick-call basis on October 11, 2005. He presented with three plus pitting, weeping edema on his right foot and one plus pitting edema on his left. Vital signs indicated that Mr. Pickell was at that time hemodynamically stable. A culture was taken from the decubitus ulcer on the bottom of the decedent's right great toe and Silvadene cream dressing was ordered pending the results of the culture report (Exhibit 6, p. 133 - 134). According to Dr. Bukowski, the culture was intended to act as a guide to future antibiotic therapy. Vital signs taken at 8:00 p.m. on the evening of October 11, 2005 indicate that Mr. Pickell was hemodynamically stable as did vital signs taken the following day, October 12, 2005, although his temperature was indicated at 100.4 degrees, which Dr. Bukowski described as "a mild elevation" (Tr. 4, p. 19). A telemed conference was conducted on October 13, 2005 with a physician from the Erie County Medical Center. The participating physician recommended that Mr. Pickell be started on Rocephin (an intramuscular broad spectrum antibiotic) immediately and Keflex to be taken orally four times a day for ten days. An X ray of Mr. Pickell's right great toe was also recommended to identify any infection in the bone. Dr. Bukowski related that Mr. Pickell was diagnosed with an infection to the soft tissue of his right great toe and noted that vital signs taken at the time of the telemed conference indicated that Mr. Pickell was hemodynamically stable and without fever (Tr. 4, p. 22; Exhibit 6, p. 142). Medical records for October 13, 2005 following the telemed conference indicate that Mr. Pickell was to be reassessed the next morning following receipt of the X ray results (Exhibit 6, p. 136).

Mr. Pickell's records for October 13, 2005 indicate that he was noted to be unresponsive at 9:30 p.m. (Exhibit 6, p. 136). According to Dr. Bukowski vital signs taken at that time indicate "[h]e's become unstable, he's in trouble, and he's febrile" (Tr. 4, p. 24). Mr. Pickell was transferred to the Wyoming County Community Hospital where he was admitted and an orthopaedic surgeon undertook a procedure whereby incisions were made in the skin of Mr. Pickell's right ankle and left foot to allow infection to drain from the area and promote healing. Mr. Pickell was thereafter transferred to the Erie County Medical Center on October 22, 2005.

At the Erie County Medical Center Mr. Pickell was treated both for the injury and infection to his right foot and a sacral decubitus on his lower back which first arose following his admission to Wyoming County Community Hospital. Mr. Pickell remained at Erie County Medical Center for approximately one month and was transferred to the Wende RMU on November 21, 2005 where the witness was his attending physician. The admitting physical performed by Dr. Bukowski indicated that Mr. Pickell had a large decubitus ulcer on his sacrum, several incisions on his lower right leg and another incision between his left fourth and fifth toes. There was also an open sore on Mr. Pickell's right great toe. Mr. Pickell was bedridden and required assistance for his daily living activities. When asked whether Mr. Pickell had osteomyelitis at the time he was admitted to the Wende RMU, Dr. Bukowski responded "[h]e was known to have osteomyelitis in his right great toe" (Tr. 4, p. 35). Thereafter Dr. Bukowski ordered extensive tests and administered Mr. Pickell various medications.

Although Mr. Pickell was known to have osteomyelitis at the time of his admission to the Wende RMU, Dr. Bukowski testified that osteomyelitis noted in both Mr. Pickell's great right toe and sacrum had resolved by the time he was released from confinement in August, 2006. The sacral decubitus, which was stage four at the time of his admission, had improved to a stage two or three ulcer at the time of his release. According to Dr. Bukowski, the incisions on Mr. Pickell's right lower leg and right foot were healed at the time of his release. In particular, the witness testified that the incision on the lateral portion of the decedent's right ankle depicted in Exhibit 22-E was healed at the time he left the Wende RMU in August, 2006. After reviewing the photograph, Dr. Bukowski testified to a reasonable degree of medical certainty that had the incision depicted in Exhibit 22-E reopened following Mr. Pickell's release from confinement it could have re-healed with proper medical treatment. Dr. Bukowski noted that the wound had previously healed in June, 2006 and reopened again in July. It was again healed at the time of Mr. Pickell's discharge in August, leading Dr. Bukowski to state "[s]o, I don't see why this could not heal again" (Tr. 4, p. 39).

With regard to medical treatment received following the decedent's release from incarceration, the witness testified that the records relate that Mr. Pickell was seen by Dr. Michael L. Bernstein on August 23, 2006 (Exhibit 1, p. 10). A physical examination conducted by Dr. Bernstein noted the surgical incisions on Mr. Pickell's lower right leg and foot but did not indicate that any of the incisions were opened or unhealed. The witness testified after reviewing Exhibit 22-D, a photograph of Mr. Pickell's lower right leg and foot, that the surgical scars appear healed although he noted evidence of edema in both Mr. Pickell's foot and ankle. Mr. Pickell was examined by Dr. David Vincent Lopez on September 8, 2006 (Exhibit 10, p. 1568). Dr. Lopez's notes indicate the decedent was unable to walk without a walker and that a physical examination revealed a plus two pitting edema on both of Mr. Pickell's lower extremities as well as a three- centimeter open wound on his lower right leg. Dr. Lopez prescribed physical therapy and wound care and ordered a bone scan and X rays of Mr. Pickell's feet and ankles (Exhibit 10, p. 1568). He also recommended that Mr. Pickell receive diabetic foot care. In this regard, Dr. Bukowski testified that Mr. Pickell's medical records do not indicate that he ever visited a diabetic foot care specialist as recommended by Dr. Lopez.

Mr. Pickell again visited Dr. Lopez on October 23, 2006. Dr. Lopez again identified an open, unhealed area on Mr. Pickell's lower right leg which he estimated to be "a few centimeters wider than last time" (Exhibit 10, p. 1572). Dr. Lopez's notes also indicate "going to wound clinic" (id.)

After reviewing an Initial Evaluation - Summary Sheet from the Freeman Institute dated October 4, 2006, Dr. Bukowski noted that the medical decision portion of the document relates "I do feel it's imperative that he have proper wound care and the number for the wound clinic at the hospital was given to him being that he has not had proper treatments of his current active wounds which are currently undressed and non-healed" (Exhibit 12). Dr. Bukowski testified that Mr. Pickell's medical records do not reflect that he at any time received treatment from a wound care specialist. Evaluation by a wound care specialist was again recommended to Mr. Pickell by Dr. Bernstein during his examination of November 24, 2006 (Exhibit 1, p. 14). Again Dr. Bukowski testified that his review of Mr. Pickell's medical records do not reflect that he received formal wound care treatment. Although Dr. Bernstein notes that the open area on Mr. Pickell's right ankle was enlarging, the wound was non-odorous and the skin around it's margins was noted to be clean leading the witness to conclude that the area was not infected at the time of Dr. Bernstein's examination. Mr. Pickell's next visit to Dr. Bernstein occurred on January 15, 2007, at which time an examination indicated bilateral edema, greater on the right, and a significant infection of Mr. Pickell's left fourth toe, which was ultimately amputated at CentraState Medical Center in January, 2007. An infection to Mr. Pickell's right foot near the ankle was drained and debrided at the time the amputation procedure was performed. Dr. Bukowski related his opinion that the wound on Mr. Pickell's right ankle, which was debrided at CentraState Medical Center in January, 2007, was the same open wound noted by Dr. Lopez on September 8, 2006. A wound care consult note dated January 16, 2007, described the wound as 9.5 centimeters in length and 4.5 centimeters in width. Dr. Bukowski concluded his direct examination by stating his opinion, with a reasonable degree of medical certainty, that Mr. Pickell's right foot and leg were not infected at the time he was released from prison. He stated his further opinion that Mr. Pickell did not have osteomyelitis at the time of his release. When asked his opinion as to whether the open wound on Mr. Pickell's right ankle noted by Dr. Lopez on September 8, 2006 was "manageable with proper medical care" he responded "[i]t was manageable" (Tr. 4, p. 58).

On cross-examination the witness described the various steps taken to treat Mr. Pickell's lower right leg and sacral ulcer at the Wende RMU. At the time of his admission on November 21, 2005 Dr. Bukowski noted that Mr. Pickell had an eight centimeter by eight centimeter sacral decubitus and several open surgical wounds on his lower right leg. He agreed that a note by Dr. Mary Clemmons on February 17, 2006 indicated that the anterior right leg wound or scar was slowly closing although the tendon was still partially exposed (Exhibit 9, p. 913). A note made by Dr. Bukowski on March 2, 2006 indicates an open area on the lateral portion of Mr. Pickell's right ankle measuring six centimeters by one centimeter (Exhibit 9, pp. 925-926). The wound was again measured by Dr. Clemmons on April 11, 2006 as six centimeters by one centimeter (Exhibit 9, p. 961). A monthly progress note authored by Dr. Bukowski on April 25, 2006 indicates "[r]ight lateral leg almost fully closed. Only about 4x1 cm open area" (Exhibit 9, p. 967). A monthly progress note dated May 23, 2006 indicates that the open wound on the lateral portion of Mr. Pickell's right leg measured .5 centimeters by three centimeters (Exhibit 9, p. 980). The monthly assessment for June, dated June 21, 2006, states "[t]he right ankle wound is closed with a pink scar" (Exhibit 9, p. 991). The wound on Mr. Pickell's right leg was noted to have opened again on July 30, 2006 (Exhibit 9, p. 1003).

Dr. Bukowski testified that he did not observe the reopening of Mr. Pickell's right ankle wound on July 30, 2006 and that the last time he personally examined Mr. Pickell was on June 23, 2006. He agreed that on August 1, 2006 Dr. Clemmons measured the reopened wound at .5 centimeters and noted drainage coming from the opening (Exhibit 9, p. 1004). Dr. Bukowski further agreed that an open wound which is draining may potentially become infected. The last description of the wound contained in Mr. Pickell's records from the Wende RMU is a note by Dr. Clemmons dated August 17, 2006 which notes a one-by-one-half centimeter epithelialized closed area of the right lateral malleolus (Exhibit 9, p. 1010). He further agreed that epithelial tissue such as that noted by Dr. Clemmons is initially not as strong as it may become over time.

The defendant next called Dr. Peter Ostrow. Dr. Ostrow testified to his background and experience in the area of pathology and stated that he is board certified in anatomic pathology and neuropathology. Dr. Ostrow testified that from his review of the decedent's medical history and records that Mr. Pickell had various co-morbidities including diabetes, hypertension, obesity, and hepatitis C. Although Mr. Pickell also had a right foot drop, Dr. Ostrow testified that such was not related to Mr. Pickell's diabetes but rather to a herniated disc. He went on to state "because of the foot drop, there was a greater likelihood that the kind of minimal trauma that results in a, uh, an ulcer in the foot would happen in the right foot. So, in that case that would be a comorbidity" (Tr. 5, p. 18)(6) . With regard to Mr. Pickell's primary diagnosis of diabetes, Dr. Ostrow related that the disease impairs a patient's blood flow in that it causes the walls of small blood vessels and capillaries to thicken and become more permeable. He went on to state:

"The walls thicken and the vessels malfunction. Even though the wall becomes thicker the wall becomes more permeable. So, so, tissues that depend upon capillary circulation are more vulnerable. This is the reason that [d]iabetics have so many foot ulcers. The rate of foot ulcers, infected foot ulcers in a diabetic is one hundred times the rate of those that, uh, ulcers in a nondiabetic. And what happens is that the tissue can't heal. The tissue doesn't have proper blood supply and so [its] barrier function of the skin is compromised and once there is an injury, it doesn't heal because healing, healing depends, absolutely on the ingrowth of new healthy blood vessels" (Tr. 5, p. 20-21).

The witness testified that from his review of the autopsy slides and decedent's medical history Mr. Pickell's "circulation was severely affected by his diabetes" (Tr. 5, p 31). The witness recounted much of the treatment Mr. Pickell received following his release from prison and stated that, in his opinion based upon his review of Mr. Pickell's medical records as well as the autopsy report, photographs, and slides, the cause of Mr. Pickell's death was "a final pulmonary embolis in what was a series of pulmonary embolizations that occurred probably over a three-day period" (Tr. 5, p. 43). He noted that his examination of the autopsy slides revealed evidence of the ingrowth of new blood vessels between a thrombus and the inside of Mr. Pickell's pulmonary artery. According to Dr. Ostrow such a phenomenon indicates that Leonard Pickell had a series of small pulmonary emboli which occurred approximately two-and-a-half to three days prior to the final fatal pulmonary embolism. Such nonfatal pulmonary emboli may be treated to the extent they are symptomatic, generally by causing shortness of breath. When asked the likelihood that a nonfatal pulmonary embolism would be symptomatic, the witness responded "[t]hat's different from episode to episode. Um, and it's not necessarily predictable" (Tr. 5, p. 69). According to Mr. Pickell's medical records from CentraState Medical Center (Exhibit 46) the decedent underwent a venous doppler procedure in January, 2007, which the witness described as an ultrasound examination used to determine the existence of a blockage inhibiting the flow of blood through a vein or artery. Both of Mr. Pickell's legs were examined in this manner and the results indicate there was no blockage.

Dr. Ostrow testified with a reasonable degree of medical certainty that the immediate cause of Mr. Pickell's death was a final pulmonary embolus which likely originated from a deep vein in one of Mr. Pickell's legs.

On cross-examination Dr. Ostrow testified that he did not know in which leg the thrombus originated which caused the fatal pulmonary embolism. When asked whether he had ever opined that the pulmonary embolism "stemmed from right leg surgery that this patient had" he responded "I think that there is a possibility, there is a natural progression that one would think about, okay? Um, his, his right leg" (Tr. 5, p. 77).

He agreed that nonfatal pulmonary emboli may not be symptomatic and that notes made by a visiting nurse indicate that Mr. Pickell's respiration was within normal limits on June 11, 2007, two days prior to his death. Upon questioning by the Court regarding which of Mr. Pickell's legs had been the source of the pulmonary embolism, Dr. Ostrow testified that stasis, or the impeding of blood flow due to immobilization "is one of the key proximate causes of a thrombus occurring in a deep vein" (Tr. 5, p. 83). The witness was then asked by claimant's counsel whether the surgery performed on Mr. Pickell's right leg (presumably the arthrodesis performed in January, 2007) was a substantial factor in causing his pulmonary thromboembolism he replied "I think that the immobility, uh, led to the deep vein thrombosis one way or another. I'm not sure where it was" (Tr. 5 p., 89). He concluded his testimony by testifying "generally speaking, Diabetes on its own, will not affect, will not cause venous stasis. Venous stasis is caused by immobilization" (Tr. 5, p. 90).

Margaux Pickell was called to testify on the claimant's behalf at trial. Ms. Pickell related that she was born on May 6, 1990 and was eighteen years of age at the time of trial. She resides with her mother in the family home in New Jersey and is a freshman in college.

Ms. Pickell testified that she and her mother picked up her father at the airport upon his release from prison on August 21, 2006 (Tr. 1, p. 25). She testified with respect to his physical condition at the time that "[h]e was in a wheelchair and could not walk at all" (Tr.1, p. 25). According to Ms. Pickell, her father's bedroom was on the second floor of their house and, upon arriving at the family home, it was necessary for him to sit on the steps while she and her mother lifted him up the stairs step by step. Once at the top, they helped him into a wheelchair in order to take him to the bedroom. Margaux testified that on the day her father returned home, she observed a wound on his right ankle "that was not completely healed . . . You could see that it was, it used to be a much larger wound and had partially healed. But there was still an opening that had a thin layer of skin on it" (Tr. 1, p. 28). She testified that shortly after her father returned home and began moving around the wound "slowly started to reopen" (Tr.1, p. 32). Her father "could not walk so he used a wheelchair and just from moving from the bedroom and the bathroom and the computer room, which we had to help him with, . . . from moving from the wheelchair, taking a couple of steps into either the office chair or into the bathroom, . . . is when I saw the wound start to reopen" (Tr.1, p. 33). Her father was seen by Dr. Lopez on September 8, 2006, at which time Dr. Lopez instructed her mother how to care for her father's wounds using sterile saline syringes to clean the wound and then applying a "wet to dry bandage" (Tr. 1, p. 34). This procedure was performed at least daily, more often if the bandage fell off. Margaux and her mother cared for the wounds in this manner until visiting nurses took over that duty in January, 2007. The nurses did not come daily, however, and she therefore continued to care for her father's wounds on the days the nurses were absent. She also cared for the sacral decubitus, which had formed on her father's lower back during the course of his illness. Ms. Pickell testified that the wounds on both the inner and outer portions of her father's right ankle as well as the wound on the top of his right foot reopened following her father's return home from prison in August, 2006.

Ms. Pickell testified that she had been up late studying for finals the night before her father's death. On the day he died, he called her from another room and asked her to bring him some water. He started to choke and Margaux summoned her mother and called 911. Immediately prior to his death Mr. Pickell was helping Margaux prepare for a history final. According to the witness "[h]e had read through all of the chapters while I was at school to make sure that he was prepared to ask me questions and help me study for my final" (Tr. 1, p. 40). Margaux described her relationship with her Dad as "extremely" close (Tr.1, p. 40). When she was growing up her father always made sure that she and her sister had their homework done and studied for their tests. He got them ready for school in the morning, took care of them in the afternoon when they returned home and prepared the family's dinner.

On cross-examination, Margaux testified that her father's wounds began to reopen "[j]ust a couple of days" following his return home from prison (Tr.1, p.41). She did not know whether the wounds were open at the time of his first visit with Dr. Bernstein (Tr.1, p. 41). She performed wound care for her father when he returned home from prison pursuant to instructions given by her mother following her meeting with Dr. Lopez. She also cared for the wound on her father's lower back using bandages but could not recall who told her how the bandaging should be performed.

Brittany Pickell, the decedent's oldest daughter, was born on August 4, 1986 and was 22 years of age at the time of trial. Brittany testified that she and her father had a "very close" relationship. Her father took care of her and her sister before and after school. He cooked the meals, helped with her homework and "inspired" her to be a good student (Tr. 2, p. 111). She testified that her father participated in her various educational and social activities. Brittany recalled that her father gave cooking demonstrations for her high school class and took her to and from dance class. She described her father as "always very involved" and aware of what she was doing in school (Tr. 2, p. 111).

Marlene Pickell is the wife of the decedent Leonard Pickell. She and Mr. Pickell met in high school in Norristown, Pennsylvania and were married on June 25, 1977. Leonard received his bachelor's and master's degrees in business administration from Temple University. After his graduation from Temple, the couple were married and lived in the Boston, Massachusetts area where Mrs. Pickell worked as a technical writer. Sometime later they moved to New Jersey where the decedent worked for an accounting firm on a part-time basis for "a few years" and, following a break in his employment, started a small consulting enterprise assisting small businesses with their accounting and bookkeeping (Tr. 2, p. 28-29). The witness testified that Mr. Pickell operated his consulting business for "two or three years" during which time he earned, at most, approximately $30,000.00 a year (Tr. 2, p. 29). He then developed contacts with the James Beard Foundation, which at the time was a small organization headed by Julia Child and Peter Kump (Tr. 2, p. 30-31). Leonard Pickell offered his services to Mr. Kump, the Foundation's president, on a volunteer basis beginning as Treasurer of the organization and becoming its President in approximately 1986 when Mr. Kump became ill. Mr. Pickell was affiliated with the James Beard Foundation from the mid 1980's to 2005. The decedent's involvement with the organization was on a strictly volunteer basis and he derived no income from his work with the Foundation. Marlene was the "breadwinner" and Leonard took care of the children and the household chores (Tr. 2, pp. 32-34). The decedent prepared the girls for school in the morning, walked them to the bus stop and "he often worked with them on their homework, doing their projects, spent a lot of time with them. That was definite. Definitely one thing that he always did, he spent very much time with the girls" (Tr.2, p. 34). He was "big" on education, which Marlene described as important to them both (Tr. 2, p. 34). In addition," he took them to the theater . . . he would talk [to them] about different cultures . . . he would sometimes talk about financial things with them. . .he gave them this broadness that personally I don't think I could have done . . . And so it wasn't just being a father and it wasn't just being a caretaker . . . I think he was able to give them so much more than that. " (Tr. 2, p. 35).

Marlene testified that her husband had planned to leave the James Beard Foundation when Margaux reached the age of 16 or 17 to be a consultant, which he was prohibited from doing while he was associated with the Foundation. According to Marlene, Mr. Pickell had a large network of connections in the food and wine industry and discussed potential employment with several individuals following his release from prison. Mrs. Pickell testified that the James Beard Foundation had become a well known and respected organization under Leonard's leadership. Mr. Pickell organized an annual awards dinner hosted by the Foundation to acknowledge rising chefs, authors and the like, which she described as an important event in the food and wine industry. Mrs. Pickell testified that after Leonard was released from prison he was contacted by Barbara Getze, an event planner who offered Leonard a job. In addition, Andy D'Amico, a Manhattan restauranteur, was opening a wine bar and attempted to contact Leonard after his death to offer him a job.

The witness testified that she met her husband at the Newark International Airport with Margaux and Leonard's brother Derek on the day he was released from prison. Mr. Pickell was in a wheelchair and appeared frail. According to the witness, he had grayed and looked "very aged" (Tr. 2, p. 45). They helped him move from the wheelchair into the car and returned the wheelchair to the airport. Once home, it was an "ordeal" to get him up the stairs (Tr.2, p. 46). He had to raise himself on his buttocks step by step with Margaux's help. Once he was up the stairs, he had to crawl into the bedroom because he could not stand on his feet. Mrs. Pickell testified that she took the photographs received in evidence as Exhibits 22-A through 22-E on her husband's first day home and that they fairly and accurately depict her husband's condition at that time.

Marlene Pickell testified she took her husband to see Dr. Bernstein on August 23, 2006, two days after his return home, and that the wound on his right ankle was in essentially the same condition as reflected in the photograph marked as Exhibit 22-E. Dr. Bernstein recommended that he see an orthopedist and an appointment was scheduled to see Dr. Lopez, an Orthopedic Surgeon, on September 8, 2006. By that time the wound depicted in Exhibit 22-E had opened and was "seeping" (Tr. 2, p. 48). Dr. Lopez instructed Mrs. Pickell how to care for the wound using sterile saline to wash the wound and wet to dry dressings. In turn, Mrs. Pickell instructed Margaux how to clean and bandage the wounds. Dr. Lopez also recommended X rays and tests. In the weeks that followed, Mrs. Pickell sponge-bathed her husband each morning as he could not get in and out of the tub. During the day when she was at work a friend's daughter would come to the family's home at approximately 11:00 a.m. and stay until 2:30 p.m. or 3:00 p.m. Margaux generally arrived home sometime between 4:00 p.m. and 5:00 p.m. Mrs. Pickell testified that her husband was alone for only a couple of hours each day.

As time passed, all of Mr. Pickell's wounds opened up. The wounds had worsened by October 23, 2006 when he next saw Dr. Lopez. Mr. Pickell saw Dr. Bernstein again on November 24, 2006 at which time the wound on the lateral portion of his right ankle was open and draining. Mr. Pickell was seen again by Dr. Bernstein on January 15, 2007 after he stubbed his left fourth toe, rather severely, a few days earlier. The toe quickly turned pink and then black and was amputated at CentraState Medical Center in New Jersey. Thereafter, visiting nurses came to the house to treat the decedent's wounds, including those on his ankle and the sacral ducibitus.

Mrs. Pickell testified that no new ulcers developed following the decedent's return home from prison and that all of the wounds for which he received treatment during his post-incarceration period, other than his left fourth toe, were those related to the conditions documented in Exhibits 22-A through 22-E. Mrs. Pickell testified that formal nursing care was prescribed for her husband following the amputation of his toe in January, 2007 and that the wound care she provided prior to the amputation was accomplished in accordance with Dr. Lopez's instructions. According to the witness, the sore on the bottom of her husband's right great toe never healed prior to his death.

Mrs. Pickell testified that in March, 2006 the decedent underwent a procedure on his right ankle at the Hospital for Joint Diseases in which pins were inserted through the skin into the bone and a cage-like apparatus was placed around his lower leg. The apparatus weighed "a ton" and was like a "ball and chain" around Mr. Pickell's ankle (Tr. 2, p. 65). According to the witness, he was uncomfortable and "somewhat bedridden" following the procedure (Tr. 2, p. 66). Sitting or lying was uncomfortable due to the sacral decubitus on his lower back and moving around with the cage on his ankle was difficult.

Although Mrs. Pickell and her husband had an active sexual relationship prior to his incarceration, they had no intimate physical relationship subsequent to his return home from prison. They slept in separate rooms because of the risk of transmitting infections, including MRSA which is resistant to treatment. To prevent the spread of this infection, gloves were always worn when bathing the decedent or treating his wounds. Mrs. Pickell testified that following his release from prison her husband "was not the same person. And, um, he became very depressed, extremely depressed at times" (Tr. 2, p. 68).

The witness testified that Mr. Pickell never suffered from a foot ulcer prior to his incarceration. He was first diagnosed with diabetes approximately four months before his incarceration and was under the care of Dr. Bernstein, who prescribed medication to treat the condition. He was prescribed Coumadin to thin his blood following the surgery in which the cage-like apparatus was placed on his ankle.

Marlene testified that Leonard taught a wine appreciation class at the New School in New York City.

On cross-examination, the witness testified that she and her husband moved from Boston to New Jersey in 1978 or 1979. He worked for a small accounting firm for "two, three" years earning approximately $35,000 a year (Tr. 2, p. 75). He thereafter worked as an independent consultant for approximately three years, earning "around thirty thousand" dollars a year (Tr. 2, p. 75). He stopped consulting when he joined the James Beard Foundation where he was Treasurer for approximately four or five years before becoming its President. Mr. Pickell was President of the James Beard Foundation for approximately ten years. He resigned in September 2004 upon learning that he was being investigated for "appropriation" of funds from the Foundation (Tr. 2, p. 81). The witness testified that Mr. Pickell received no salary during the approximately 20 years (mid-1980's to 2004) he was affiliated with the Foundation.

With regard to her husband's post-incarceration employment prospects the witness testified that he and Andy D'Amico discussed Mr. Pickell's possible future employment at a wine bar Mr. D'Amico eventually opened, but she was unaware of any discussions regarding financial compensation. She also testified that Barbara Getze, an event planner, discussed employment with her husband although there was no discussion regarding monetary compensation.

Mrs. Pickell testified she filed for divorce in February, 2006, prior to Leonard's release from prison, but that the couple later reconciled. They had been married for over 30 years at that time, her husband was very sick and she told him she would be there to help him.

Claimant next called Charles Kincaid as a witness. Dr. Kincaid is a Vocational Rehabilitation Counselor and Evaluator. He testified that Leonard's employment and educational background placed him in the "high average range of potential employees" (Tr. 3, p. 20). Although the decedent's criminal history would have precluded him from executive level work involving financial responsibility, Mr. Kincaid concluded there were three avenues of employment available to him: event planner, consultant, and college instructor. Dr. Kincaid testified regarding the potential salaries for each of these positions and the duration of Mr. Pickell's expected working life.

On cross-examination Dr. Kincaid testified that the decedent's extensive contacts within the food and wine industry would have enabled him to obtain employment notwithstanding his criminal conviction. Dr. Kincaid also testified, however, that he did not speak with any of Mr. Pickell's contacts in reaching his conclusions regarding employability and salary potential.

Dr. David Anthony Kennett, an economist, was the claimant's next witness. Dr. Kennett testified regarding the decedent's lost future income in the categories of event planner, consultant, and teacher. His testimony was based upon the opinion of Dr. Kincaid regarding the decedent's most likely career possibilities and salaries for each of the career categories identified. For the reasons set forth below, however, the Court finds the possibility that the decedent would have entered the workforce following his release from prison but for his injuries and death too speculative a premise upon which to base an award for economic loss in this case.

Barbara Getze was also called as a witness for the claimant. Ms. Getze operates Getze Event Management, a special events company. She testified that her company organizes black-tie galas and that she developed a relationship with Mr. Pickell when he worked for the James Beard Foundation. She described Mr. Pickell as "the face" of the James Beard Foundation (Tr. 3, p. 84)(7) . The awards dinners sponsored by the Foundation were attended by people from all over the country and could "make the career of a chef or a restaurant or a magazine writer" receiving an award (Tr. 3, pp. 86-87). She testified that Mr. Pickell organized these events, that his contacts with people in the industry were "hugely important" and that she would have hired Mr. Pickell as a consultant for approximately $40,000 to $60,000 a year (Tr. 3, p. 91). The work would have been on a per project basis, utilizing Mr. Pickell's skills to assist her in recruiting chefs and wineries to participate in the events her company organized.

On cross-examination Ms. Getze testified that she has not retained consultants since 2005 and that she cancelled two events that would have taken place in the fall of 2008 but for the downturn in the economy.

"It is fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons" (Rivers v State of New York, 159 AD2d 788 [1990]). The Appellate Division, Third Department, stated the following in Kagan v State of New York, (221 AD2d 7, 11 [1996]):

"It is settled that an inmate, who 'must rely on prison authorities to treat [the inmate's] medical needs' (Estelle v Gamble, 429 US 97, 103) 'has a fundamental right to "reasonable". . . and "adequate" . . . medical care' (Powlowski v Wullich, 102 AD2d 575, 587 [1984]). Further, it is the State's duty to render medical care 'without undue delay' and, therefore, whenever 'delays in diagnosis and/or treatment [are] a proximate or aggravating cause of [a] claimed injury', the State may be liable (see Marchione v State of New York, 194 AD2d 851, 855 [1993])".

Where the duty allegedly breached is "substantially related to medical treatment" the resulting cause of action is one for medical malpractice (Berger v State of New York, 171 AD2d 713, 717 [1991]). To succeed on a claim alleging medical malpractice, a claimant must establish both that the defendant deviated from accepted standards of medical care and that the departure[s] were a proximate cause of the claimant's injuries and/or death (Hanley v St. Charles Hosp. & Rehabilitation Ctr., 307 AD2d 274 [2003]; Velez v Goldenberg, 29 AD3d 780 [2006]; Jump v Facelle, 275 AD2d 345 [2000], lv denied 98 NY2d 612 [2002]; Parker v State of New York, 242 AD2d 785 [1997]; PJI 2:150). The failure of a nurse to properly screen a patient may constitute medical malpractice where the allegedly negligent act "constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment . . ." (Bleiler v Bodnar, 65 NY2d 65, 72 [1985]).

" The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts " (Matter of Barresi v State of New York, 232 AD2d 962, 963 [1996] [internal quotation marks and citations omitted]). Whether a cause of action is regarded as one for medical malpractice or ordinary negligence, expert medical evidence is required to establish that the particular act or omission was a proximate cause of the alleged injuries (Wood v State of New York, 45 AD3d 1198 [2007]; Trottie v State of New York, 39 AD3d 1094 [2007]; Myers v State of New York, 46 AD3d 1030 [2007]).

Claimant established by a preponderance of the credible evidence that medical professionals at Groveland deviated from the standards of care applicable to the treatment of a diabetic foot ulcer and that this deviation was a proximate cause of the decedent's injuries and death.

Upon the decedent's arrival at Groveland a nursing assessment was performed in which the claimant disclosed the fact that he suffered from diabetes, a drop right foot and a "foot sore" (Exhibit 6; Tr.1, pp. 92, 93, 98). Despite these complaints and her awareness of the decedent's diabetic condition, Nurse Towner never examined the sore despite her acknowledged duty to perform a physical examination of all incoming inmates and prepare a nursing plan to address their specific individual physical ailments. Nurse Claire Hoffman testified that Nurse Towner's failure to examine a foot ulcer of a diabetic patient was a deviation from the applicable standard of care. Ms. Hoffman also testified that a care plan should have been developed. The plan should have included monitoring the decedent's blood sugars, assessment of decedent's foot wear and monitoring of his ulcer every two days. According to Ms. Hoffman, the failure of Nurse Towner to examine Mr. Pickell's foot ulcer upon his complaint of a sore on his foot, to develop a nursing care plan to treat the sore and to monitor the sore thereafter all constituted departures from accepted standards of care within the nursing profession.

According to the testimony of Dr. Levine, Dr. Jun's treatment of the decedent on September 20, 2005 was rife with error. Most significant is Dr. Levine's testimony that it was a departure from accepted standards of medical care not to prescribe a broad spectrum antibiotic given Dr. Jun's notes for that date, which reflect a reddish and swollen ulceration of Mr. Pickell's right great toe. This is significant, according to Dr. Levine, because there exists the risk of a rapidly ascending infection and septic shock in a diabetic patient who presents with redness and swelling. Thus, the finding of redness and swelling in a diabetic patient is "alarming" because individuals with diabetes may not feel pain or exhibit the signs of infection to the same degree as a nondiabetic. This was particularly true with regard to Mr. Pickell who had been diagnosed with a form of neuropathy which rendered his foot insensate.

The Court finds Dr. Jun's explanation for his failure to prescribe antibiotics or any other form of treatment on September 20, 2005 unworthy of belief. He testified that he did not prescribe antibiotic medications because, in his judgment, the decedent's right great toe was not infected at the time of his examination on September 20, 2005 in that the ulcer was "dry". Dr. Jun admittedly failed to note this fact in the decedent's medical record. To the contrary, he testified that his notes of the examination on that date relate that the ulcer was red and swollen. While Dr. Jun explained that the redness and swelling of the toe could have been due to the earlier infection treated at Ulster Correctional Facility, he admitted that he did not review the records of treatment provided Mr. Pickell at Ulster prior to examining him. Dr. Jun could not have known, therefore, of the prior infection and thus simply failed to prescribe antibiotic treatment for a diabetic foot ulcer which was admittedly "reddish and swelling" (Tr. 1, p. 78; Exhibit 6, p. 119). The Court concludes that the failure to prescribe antibiotics on September 20, 2005 was not a mere error in judgment, but an act of medical malpractice which occurred at a time when the spread of infection could have been prevented (cf. Nestorowich v Ricotta, 97 NY2d 393 [2002]).

The Court further credits the testimony of Dr. Levine that it was a departure from accepted standards of medical care for Dr. Jun not to review the decedent's medical records from Ulster Correctional Facility and not to prescribe a regimen of follow-up care to include the establishment of a baseline sugar level, blood tests, X rays and cultures to explore indications of infection (Tr. 1, pp. 111-114).

Nurse Towner testified that she received and reviewed Mr. Pickell's medical records from Ulster at the time of her examination of the decedent upon his receipt at Groveland (Tr. 1, p. 91). In fact, she documented the fact that she reviewed the records in the box provided on a food service workers health clearance form dated September 15, 2005 (Exhibit 6, p. 111). Dr. Jun, however, testified that the only document he reviewed prior to his physical examination of the decedent on September 20, 2005 was the "drafted record from the nursing staff" (Tr. 1, p. 51). Dr. Levine testified without contradiction that the failure of Dr. Jun to review Mr. Pickell's medical records from Ulster prior to examining him, which the testimony of Nurse Towner and Groveland's own records establish had been received at the facility, constituted a departure from accepted standards of care in the medical profession. Dr. Levine testified that the need for follow-up care could not be left to the judgment of the patient, especially in the case of a patient with neuropathy and an insensate foot, as was the case here. Thus, follow-up care should have been scheduled but was not. Instead, the decedent was not seen again following Dr. Jun's examination on September 20, 2005 until October 11, 2005 when emergency sick call was necessary. Given Dr. Jun's notes which indicate Mr. Pickell's right great toe was red and swollen, as well as his acknowledged awareness of the decedent's diabetic condition and the potential danger inherent in an infected diabetic foot ulcer, the Court finds the failure to provide any form of follow-up treatment between September 20, 2005 and October 11, 2005 was a breach of accepted standards of professional medical treatment.

The decedent was admitted to the infirmary on October 11, 2005 with "weeping +3 pitting edema" on the right great toe with foul smelling drainage (Exhibit 6, p. 120). He was placed in contact isolation and cultures were taken. Silvadene, a topical ointment, was applied to the wound and pain medications were prescribed. According to Dr. Levine's testimony, which the Court finds credible and largely unrefuted, it was a further departure from accepted standards of medical care not to formally hospitalize the decedent on that date and to delay the administration of antibiotics until the results of the cultures were known "because infections in diabetics can spread very quickly as it eventually did with Mr. Pickell. And to delay for a day or two pending a culture . . . is unacceptable medical treatment [b]ecause during that time someone can become grievously ill and sepsis has a very high mortality in diabetics" (Tr. 1, p. 118). Indeed, by 9:30 p.m. on October 13, 2005 the decedent was unresponsive with blood pressure of 58/40 and a body temperature of 102.3. He was in a state of septic shock upon his arrival at Wyoming County Community Hospital, which Dr. Levine described as a "life- threatening" condition (Tr. 1, p. 119, 121). Dr. Levine characterized the defendant's various departures from accepted standards of care as "a series of missed opportunities where the ulcer could [have] been stopped from [its] progression " (Tr. 1, p. 120).

The foregoing establishes to the Court's satisfaction that the defendant's care and treatment of Mr. Pickell's foot ulcer at Groveland deviated from accepted medical standards and was a proximate cause of the pain and suffering he endured. The defendant contends that upon Mr. Pickell's release from prison on August 21, 2006 the wounds on Mr. Pickell's right foot had healed and that various co-morbidities, not the defendant's acts of malpractice, proximately caused his death. The Court disagrees.

Proximate cause is established where the proof shows the deviation from applicable medical standards was a substantial factor in producing the claimant's injuries and/or death (Zak v Brookhaven Mem. Hosp. Med. Ctr., 54 AD3d 852 [2008]; Alicea v Ligouri, 54 AD3d 784 [2008]; Valentine v Lopez, 283 AD2d 739 [2001]). The evidence is legally sufficient even where the claimant's expert is unable to "quantify the extent to which the defendant's act or omission decreased the [claimant's] chance of a better outcome or increased his injury, as long as evidence is presented from which the [factfinder] may infer that the defendant's conduct diminished the [claimant's] chance of a better outcome or increased his injury" (Flaherty v Fromberg, 46 AD3d 743, 745 [2007]). In the Court's view, the expert testimony in this case established that the defendant's deviations from accepted standards of medical care and treatment were a proximate cause of the decedent's injuries and death.

There is no disagreement as to the immediate cause of Mr. Pickell's death - a massive thromboembolism of the pulmonary artery. Dr. Roh opined that the thromboembolism originated in the right lower extremity and was the result of multiple fasciotomies and the arthrocentesis performed in March, 2007. These multiple surgeries, according to Dr. Roh, "damage[d] the . . . venous system in the lower leg which then leads to stagnation of blood in the venous system and the[n] later on, it leads to . . . the complication of thrombosis in the leg vein" (Tr. 2, p. 104). Defendant's expert, Dr. Ostrow, testified in this regard that venous stasis, i.e., the stagnation of blood, is the primary contributing factor to the formation of an embolism. Dr. Ostrow made clear on cross-examination his opinion regarding the cause of Mr. Pickell's emboli: "I think that the immobility . . . led to the deep vein thrombosis one way or another" (Tr. 5, p. 89). Dr. Ostrow elaborated on the issue of immobilization, stating: "he wasn't walking, he wasn't moving his legs, he, his right leg was, um, the ankle was, uh, immobilized physically by the device. . . [S]o he was not up and about, similar[] to . . . economy class syndrome[ ] [a]nd airline passengers. You sit still in one position for five or six hours and it can happen. We don't know which leg it happens in" (Tr. 5, p. 87). Dr. Ostrow also testified that while diabetics are twice as likely to develop deep vein thrombosis than nondiabetics "[d]iabetes on its own, will not affect, will not cause venous stasis. Venous stasis is caused by immobilization. Diabetes in that context renders the tissues more vulnerable to whatever injury might, might befall him" (Tr. 5, p. 90). This testimony leads directly to the conclusion that the defendant's malpractice was a substantial factor in bringing about Mr. Pickell's death from a thromboembolism. Having left untreated a diabetic foot ulcer, the decedent became septic, required multiple surgeries rendering him immobile and died of a thromboembolism caused, according to the defendant's own expert, by immobility.

While the defendant contends that upon Mr. Pickell's release from prison the wounds on his right foot were healed, the evidence proves otherwise. In fact, when Mr. Pickell arrived at the airport in Newark, New Jersey, he exited the airplane in a wheelchair. Both his wife and daughter testified that upon his return home, Mr. Pickell could not walk and ascended the staircase in his home step by step on his buttocks. Within days of his return home the wounds opened and became progressively worse. In the Court's view, claimant established that it was more probable than not that the defendant's deviations from the accepted standards of care related earlier herein were a substantial factor in causing the decedent's ensuing injuries and death.

While there is some evidence that diabetic wound care was recommended but not obtained following Mr. Pickell's release from prison (see Exhibit 12), the defendant failed to establish through the submission of expert testimony or other medical evidence that the lack of such care, or the sporadic nature of the care, worsened Mr. Pickell's condition. Absent such evidence, the Court cannot conclude that the failure to obtain proper wound care following Mr. Pickell's release from prison was a proximate cause of his worsening condition and death (see Wood v State of New York, supra; Trottie v State of New York, supra ; Myers v State of New York, supra [whether a cause of action is regarded as one for medical malpractice or ordinary negligence, expert medical evidence is required to establish the proximate cause of the alleged injuries]; Fourquet v Caledonian Hosp., 82 AD2d 822 [1981] [absent medical testimony to the effect that lack of therapy aggravated condition, finding of comparative negligence is improper] ). Undoubtedly, Mr. Pickell's wounds were much improved on the date of his release from the Wende RMU when compared to the status of his injuries upon his admission to that facility. However, absent expert proof that the care provided for Mr. Pickell's wounds following his release from prison was inadequate, and that the failure to obtain proper wound care was a contributing cause of Mr. Pickell's worsening condition and death, the Court can discern no basis upon which to base a finding of comparative negligence.

Damages

[A] Pain and Suffering

Following his admission to Wyoming County Community Hospital, Mr. Pickell underwent several surgical procedures, blood and platelet transfusions, developed a stage IV sacral ducibitus(8) and was at high risk for a below-the-knee amputation of the right leg. He was found to have an ascending infection of the right leg, and biopsies and X rays were consistent with osteomyelitis. He was confined to Wyoming County Community Hospital from October 14, 2005 until his transfer to Erie County Medical Center on October 22, 2005. There, two surgical debridements of the sacral ducibitus were performed and wound vacs were placed on the wounds. Mr. Pickell was seen by a psychiatrist for depression-like symptoms (Exhibit 8). He was transferred to Wende RMU on November 21, 2005 where he remained an inpatient until his release from prison on August 21, 2006. To this point Mr. Pickell had been hospitalized for ten months and remained largely bedridden.

In the ten-month period which followed Mr. Pickell's release from prison, his condition deteriorated until the arthrodesis - a surgical attempt to salvage his limb - was performed in March, 2007. With the cage-like apparatus now affixed to Mr. Pickell's ankle, Mrs. Pickell made clear that no position was comfortable for her husband. The bed sore made lying on his back uncomfortable and the apparatus affixed to his right ankle made movement difficult. And, of course, the decedent had been substantially bedridden for approximately 20 months prior to his death. Review of comparable cases leads this Court to conclude that an award in the amount of $700,000 constitutes reasonable compensation for Mr. Pickell's pain and suffering (compare Nolan v Union Coll. Trust of Schenectady, N.Y., 51 AD3d 1253 [2008], lv denied 11 NY3d 705 [2008] [$300,000 award for pain and suffering affirmed on appeal where plaintiff developed deep vein thrombosis shortly after an accident requiring eight days hospitalization but no surgery]; Hernandez v New York City Tr. Auth., 52 AD3d 367 [2008] [award for past pain and suffering was reduced on appeal to $2.5 million where plaintiff sustained multiple injuries to her arm, shoulder, and legs, which were pinned under a bus, and required multiple surgeries]; Knight v Loubeau, 309 AD2d 579 [2003] [award for past pain and suffering was reduced on appeal to $500,000 where plaintiff's feet became gangrenous due to malpractice which resulted in the amputation of part of his right foot and four toes on his left foot; plaintiff suffered from other serious illnesses which resulted in his death five years after the malpractice occurred]; DiGiacomo v Cabrini Med. Ctr., 21 AD3d 1052 [2005], lv denied 6 NY3d 703 [2006] [award for past pain and suffering was reduced to $250,000 for diabetic patient with history of wound healing difficulties who suffered a below-the-knee amputation due to malpractice;]; Bondi v Bambrick, 308 AD2d 330 [2003] [total pain and suffering award of $9.75 million affirmed on appeal for 35-year-old plaintiff who lost part of her leg in an accident and underwent nine surgeries prior to trial]; Kraus v Caliche Realty Estates, 302 AD2d 214 [2003], lv denied 100 NY2d 503 [2003] [$2 million award for past pain and suffering reduced to $1 million where plaintiff sustained severe multiple fractures to her ankle and arm requiring multiple surgeries] Free v Nassau Queens Medical Group, 242 AD2d 668 [1997], lv dismissed 91 NY2d 883 [1998] [award for past pain and suffering of $500,000 was reduced on appeal to $300,000 where plaintiff underwent a surgical amputation of her left leg below the knee due to malpractice in the treatment of a diabetic foot ulcer]).

[B] Loss of Society And Consortium

The Court finds that the claim for loss of society and consortium of the claimant, Marlene Pickell, is mitigated to the extent of the decedent's incarceration during the 11-month period following the medical malpractice. Additionally, a widow's loss of consortium is limited to reflect the loss suffered during the period of decedent's pain and suffering (Liff v Schildkrout, 49 NY2d 622 [1980]). The Court therefore awards the claimant Marlene Pickell $25,000 for loss of society and consortium for the ten-month period the decedent was home prior to his death.

[C] Wrongful Death

Damages awards in wrongful death actions are statutorily limited to "fair and just compensation for the pecuniary injuries resulting from the decedent's death" (EPTL 5-4.3[a]; Farrar v Brooklyn Union Gas Co., 73 NY2d 802, 804 [1988]). Pecuniary injuries are calculated by reference to the decedent's "present and future earnings, potential for advancement and probability of means to support heirs, as well as factors pertaining to the decedent's age, character and condition, and the circumstances of the distributees" (Gonzalez v New York City Hous. Auth., 77 NY2d 663, 668 [1991]). "Generally, evidence of a decedent's gross income at the time of death is the standard to measure the value of income already lost and to measure the loss of future earnings " (Johnson v Manhattan & Bronx Surface Tr. Operating Auth., 71 NY2d 198, 204 [1988]). It is well recognized, however, that an increase in future earnings may be considered in calculating an award for lost earnings where the proof sufficiently establishes that they are "likely" to occur (Imbierowicz v A.O. Fox Mem. Hosp. 43 AD3d 503, 508 [2007]). Losses which are "uncertain, dependent on future changeable events and, thus inherently speculative" are not recoverable (Farrar v Brooklyn Union Gas Co., 73 NY2d 802, 804 [1988]).

Although there was some testimony regarding the decedent's intention to return to the work force when he was released from prison and his youngest daughter reached the age of 16, the Court finds this prospect unlikely. Dr. Kincaid's testimony that the decedent was employable as a consultant in the restaurant/special event planning fields was based, in large part, on the network of connections he developed during the course of his tenure at the James Beard Foundation. However, it was the theft of funds from the James Beard Foundation for which the decedent pled guilty to a charge of grand larceny. In these circumstances, the Court does not find that the network of contacts which Mr. Pickell acquired during his association with the Foundation would have been a useful resource. Nor does the testimony of Ms. Getze change the Court's determination in this regard. While Ms. Getze testified that she would have hired the decedent as a consultant in planning events on a per project basis, she admittedly has retained no other consultants since 2005 and cancelled two events that would have taken place in the fall of 2008 but for the downturn in the economy. The Court concludes that it was unlikely that Mr. Pickell would have secured employment as a consultant following his release from prison.

The Court reaches a similar conclusion with respect to the decedent's employment possibilities as a teacher or business consultant. The decedent taught only one class in wine appreciation and had not otherwise been employed outside the home since the mid 1980's. In the Court's view, Mr. Pickell's prospects for future employment were too uncertain and speculative to warrant an award for lost earnings.

As made clear by the Court of Appeals in Gonzalez v New York City Hous. Auth. (supra) "[i]n the case of a decedent who was not a wage earner, 'pecuniary injuries' may be calculated, in part, from the increased expenditures required to continue the services [he or she] provided, as well as the compensable losses of a personal nature, such as loss of guidance" (77 NY2d at 668). Here, there is ample evidence the decedent was a loving and devoted father whose guidance and parental nurturing will be a tremendous loss to his two children. He was the primary caretaker for the children and guided them in both their academic pursuits as well as their cultural education. The fact that the children are now young adults provides no basis to deny an award for loss of parental guidance (Bennett v Henry, 39 AD3d 575 [2007], lv denied 9 NY3d 816 [2007]; Clark v Weinstein, 23 AD3d 1054 [2005]; Kiker v Nassau County, 175 AD2d 99 [1991]; Paccione v Greenberg, 256 AD2d 559 [1998]) . Accordingly, the Court awards the children $100,000.00 each for loss of parental guidance (cf. Bogen v State of New York, 5 AD3d 521 [2004]).

Evidence was presented that medical expenses were incurred in the amount of $96,915.73 (claimant's Exhibit 21). The Court therefore awards claimant this sum for medical expenses incurred (see EPTL 5-4.3 [a]).

No award is made for the loss of household services or funeral expenses as no evidence as to the value of these services or the costs of the funeral was presented at trial.

Based on the foregoing, the following awards are made:

Pain and suffering- $700,000;

Loss of Consortium- $25,000.

Medical Expenses- $96,915.73.

Wrongful death damages, are as follows:

Past Damages:

Loss of parental nurturing - Margaux Pickell and Brittany Pickell - $30,000 (each);

Future Damages:

Loss of parental nurturing - Margaux Pickell and Brittany Pickell - $70,000 (each).

All trial motions not heretofore decided are denied. To the extent that claimant paid a filing fee, it may be recovered pursuant to Court of Claims Act 11- a (2).

Let judgment be entered accordingly.

November 19, 2009

Saratoga Springs, New York

FRANCIS T. COLLINS

Judge of the Court of Claims


1. Claimant's motion for permission to assert a cause of action for wrongful death was granted by Decision and Order filed December 7, 2007. Although defendant asserts as its Seventh Affirmative Defense in its answer that the amended claim was untimely filed, this issue was not raised at trial and the Court therefore considers this defense waived.

2. Numbers in parentheses preceded by the denomination Tr.1 refer to the transcript of May 4, 2009.

3. Marlene Pickell testified that Coumadin was prescribed following Mr. Pickell's surgery at the Hospital For Joint Diseases.

4. Numbers in parentheses preceded by the denomination Tr. 2 refer to the transcript of May 5, 2009.

5. Numbers in parentheses preceded by the denomination Tr.4 refer to the transcript of May 8, 2009.

6. Numbers in parenthesis preceded by the denomination Tr. 5 refer to the transcript of May 11, 2009.

7. Numbers in parentheses preceded by the denomination Tr. 3 refer to the transcript of May 6, 2009.

8. In response to the claimant's argument that the defendant is responsible for the sacral ducibitus, the defendant contends in its post-trial brief that it had no control over the treatment provided by the Wyoming County Hospital where the sacral ducibitus was first discovered and points to the fact that a lawsuit was filed against the hospital. It is the general rule that the first of the successive tortfeasors can be held liable for a subsequent injury if that subsequent injury is reasonably foreseeable (Ravo v Rogatnick, 70 NY2d 305 [1987]; Napierski v Finn, 229 AD2d 869 [1996]). As the formation of a bed sore following a prolonged period of immobility is indeed foreseeable, the defendant may be held responsible for the decedent's stage IV sacral ducibitus.