HERCULES v. THE STATE OF NEW YORK, #2009-030-020, Claim No. 109669
State 70% liable for failure to provide adequate medical care to inmate
claimant who lost eye because of failure to adequately maintain and take medical
history and promptly refer to specialist
1 1.The caption has been amended to reflect the only proper defendant.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
THOMAS H. SCUCCIMARRA
WILLIAM P. WEININGER, LLC.BY: WILLIAM P. WEININGER, ESQ.
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: J. GARDNER RYAN, ASSISTANT ATTORNEY GENERAL
July 20, 2009
See also (multicaptioned
Linford Hercules alleges in his claim that defendant’s agents failed to
provide him with timely and adequate medical care when he was an inmate in the
custody of the New York State Department of Correctional Services [DOCS] at
Fishkill Correctional Facility [Fishkill]. More specifically, he alleges that
failures to monitor post-operative care after eye surgery, to take an adequate
medical history, and delayed diagnosis resulted in the loss of his eye. Trial
on the issue of liability was held on October 20 and 21, 2008, and the matter
was marked for submission on June 8, 2009. This decision relates only to
Mr. Hercules, Harvey Rosenblum, M.D., John Supple, M.D., and Paul Adler, M.D.
all testified on his direct case. The State cross-examined claimant and his
witnesses, and also presented the testimony of Correction Officer Mark
Lundewall and John Bortz, M.D.
Mr. Hercules testified that he had been diagnosed with glaucoma in or about the
year 2000. Glaucoma limits the circulation of fluids between the interior
compartment of the eye and the circulatory system, causing a build-up of
pressure in the eye. Such pressure damages the light receptors and the optic
nerve, initially resulting in a loss of peripheral vision, and, if untreated,
ultimately resulting in blindness.
In terms of earlier treatment, Mr. Hercules recalled going for regular checkups
at Westchester County Medical Center to evaluate the pressure in his right eye
for a time, and other less invasive treatments therefor, including eye drops,
“for a little while, maybe six months, four months, I am not sure.”
He ultimately underwent “an
operation to bring down the pressure in [his] eye,” but did not know the
name of the operation. [T-213].
Medical witnesses described claimant’s 2001 surgery as a trabeculectomy,
a procedure creating a channel so that fluid from the eye has another means of
egress, thereby decreasing the heightened pressure in the patient’s eye
created by the glaucoma.
After the surgery, until November 2003, Mr. Hercules described his ability to
see as improving, and noted that his eyes were tested periodically. He recalled
at least one incident of problems with his eye prior to November 2003, that had
been taken care of successfully. There are notations in the claimant’s
ambulatory health record [AHR] for March 2003, indicating some prior incident
with redness, pain and teariness in his right eye, that includes some
prescription of antibiotics (either orally or as an ointment). [Exhibit 1, Pages
246-248]. Such “eye problem” is noted as “resolved” in
an AHR note dated April 2, 2003. [Ibid. Page 246].
On Tuesday, November 25, 2003 Mr. Hercules woke up and his right “eye was
hurting.” [T-216]. He observed that it was red. He went to the
correction officer at his housing unit - who he recalled was Officer Lundewall
- and told him he needed an emergency sick call, and was given a pass to go to
the Fishkill regional medical unit [RMU] on his own. When he arrived at the RMU
he first saw a nurse. She did not examine him, and made no further inquiries of
him after he told her that his eye hurt. Within “15 or 20” minutes
he saw Dr. Supple. [T-220]. Although he did not recall how long he spent with
Dr. Supple, Mr. Hercules recalled being asked what his problem was, and
responding that his eye was hurting. He recalled that Dr. Supple
“looked” in his right eye “with a little thing” and said
“I can’t find your chart.” [T-221]. Mr. Hercules did not read
from an eye chart. He was given a slip for “tears” and told that if
there were any further problems, he should come back tomorrow. Claimant was
“not sure” if his earlier eye surgery was discussed. [T-223]. He did
not discuss any change in his vision with Dr. Supple. After Mr. Hercules
obtained the eye drops, he went back to his housing unit, arriving “a
little after 9. . .” [T-224].
For the rest of the day, he said he stayed up in his housing area, while his
eye continued to hurt throughout the rest of the day, becoming worse as the day
progressed. It was a “sharp pain” and his eye continued to be red.
[T-225]. Use of the eye drops throughout the day only rinsed the eye, but did
not “do anything” otherwise. [T-226].
The following morning the pain in his eye woke him up, it was “real
severe.” [T-225]. He said he again spoke to Officer Lundewall around 8:00
a.m., saying he needed to see the doctor, and that his eye hurt a lot. It
appeared that there was a “lump of tears” collecting at the side of
his eye toward his nose - “white stuff” - and his eye “was
hurting . . . real bad.” [T-227]. Although two requests to go to the RMU
were made by Officer Lundewall within fifteen minutes of each other in phone
calls to the medical unit, both were denied. He stayed in his cell, crying.
Another inmate - who he thought might be “one of the IGRC guys” -
saw his plight and somehow arranged that he see the physician at 1:00 p.m.
From the time he woke up at 5:30 a.m. or so on Wednesday, November 26, 2003,
until he saw Dr. Sohng, he described his vision as blurry and apparently
worsening. He said it was “closing in . . . like losing . . .
vision.” [T-231]. Mr. Hercules was more familiar with Dr. Sohng because
he was his “primary care” and had sent him out for the eye checks at
Westchester. [T-233]. After first seeing the nurse again, who did not examine
him or ask any medical questions, he saw Dr. Sohng who looked in his eye with
some type of an instrument. Dr. Sohng walked claimant down to the emergency
room, put him in a room in front of a television set, and left. He remained
there for approximately “half an hour” while a “lady came
on” the television screen and started asking him questions about his eye.
[T-236]. As she examined him (through the video conferencing technology), he
heard her say “get him out of there right away to an emergency or
He was taken to St. Luke’s Cornwall Hospital emergency room, and later to
Westchester Medical Center. Surgery to remove his eye was performed at
Westchester on December 3, 2003, and an artificial eye was implanted. On
December 10, 2003, while he was still in the hospital, he wrote and filed an
inmate grievance complaining about his treatment in the RMU by Dr. Supple and
others. [Exhibit A].
Cross-examination primarily revealed that Mr. Hercules was not particularly
adept at describing his symptoms, or at least in relaying them accurately to the
personnel who acted essentially as intermediaries between claimant, and access
to medical care, and that he had some tendency to dramatize events. For example,
the alleged intervention by a fellow inmate to orchestrate his attendance at a
sick call, when other witnesses, primarily Officer Lundewall, remembered no such
Mr. Hercules was familiar with the methodology for obtaining medical care
through the sick call system, agreeing that one put one’s name on a sheet
or reported the need to see a doctor to an officer, your name would be added to
the list, and you would be called out the next day. In an emergency, depending
on your location within the facility, you would go to the nearest officer,
report the problem and the officer would call the RMU to see if they could see
you. When it was suggested by defendant’s counsel, Mr. Hercules agreed
that some judgment as to whether the situation warranted emergency status was
exercised by the officer. Similarly, he agreed that the general pattern for
sick call visits was to see the nurse first, who then decided whether the inmate
needed to see the doctor.
Although the pain in his eye did not wake him up on Tuesday, November 25, 2003,
he reiterated that it was nonetheless painful when he saw Dr. Supple and stayed
painful. He utilized the liquid tears as directed and, although he recalled that
Dr. Supple had told him to come back if problems continued, he did not sign up
for sick call that night for the following day. He explained, however, that as
he understood it he had
“[seen] the doctor already. He did what he did, he gave me the tears
and the pain is there. I just went along as the pain. If anything happened
more seriously then.” (sic) [T-269].
Although it was pain that woke him up the next morning, “early” he
did not know why he waited for the change of shift to call for an officer even
though officers are there 24 hours a day. [T-269]. He just remembered thinking
that he would wait for the shift change.
Dr. John Supple, one of three physicians treating inmates in the regional
medical unit [RMU] at Fishkill, testified about procedures at the facility, as
well as claimant’s treatment there. For a time, Dr. Supple maintained both
his job at Fishkill, and a private general practice. Ultimately, he closed his
private practice and worked exclusively at Fishkill. He said there was no
difference in the standard of medical care he rendered to patients he saw in his
private practice setting, and those he saw at Fishkill “[a]s far as . . .
[his] evaluation and treatment.” [T-118].
In 2003, Dr. Supple recalled that particular patients at Fishkill were assigned
to the physicians alphabetically, and that Mr. Hercules was not within the group
he had been assigned. Generally, if the assigned provider was not available,
whichever physician was available would provide services. Dr. Supple said that
generally, whether a patient’s visit was scheduled long ago or was sudden,
they “would endeavor to have . . . the [patient’s] chart
present.” [T-113]. The charts were kept “in the same building, a
different hall, in medical records . . . within 30 yards.” [T-113-114].
Records might also be moved elsewhere if a patient had been seen by a
specialist, or if the records had been sent to administration. Dr. Supple
agreed that it was not unusual for there to be occasions when a chart would be
unavailable when treating a patient, but that it would be an optimal situation
to have the patient’s chart available.
On November 25, 2003 the nurse recorded on a page - to presumably later be
included in the claimant’s AHR - “no chart available.”
[Exhibit 1, Page 231]. The nurse also noted that the housing unit correction
officer had called, and that the
“corner of [inmate’s right] eye is very red. Instructed [inmate]
to come for [emergency sick call].” [Id.].
Dr. Supple also read his own note for that day:
“Status post eye surgery two years ago. Has red lateral sclera on the
right eye, o.d., times one day. Complains of achiness. Will treat with
artificial tears. To see provider soon for follow up.” [T-116].
He, too, noted on the AHR that there was no chart available.
Significantly, Dr. Supple testified that he had no independent recollection of
the visit with this particular patient, and thus could only testify as to his
general procedures, or what was noted in the AHR. Indeed, he admitted that
nothing in the recorded information told him what kind of physical exam he might
have given Mr. Hercules, or what kind of history - beyond the notation that
claimant had eye surgery of some kind two years earlier - he might have taken
from Mr. Hercules. He did not know what questions he might have asked the
claimant or what claimant’s responses might have been. The note that he
made is both untimed and undated. He testified that he did not prescribe
antibiotics, but was aware that a later note in the AHR by Dr. Sohng or the
nurse indicated (incorrectly) that antibiotics had been prescribed on November
In 2003, Dr. Supple said he was familiar with the signs and symptoms of
endophthalmitis, the eye infection claimant was ultimately diagnosed as
suffering from. He said that the eye would be “severely red” with
an “entirely red orbit,” sensitive to light, and there would be
“blindness and pus.” [T-119]. The signs and symptoms of eye
infection generally he described as stated, but said that what was usually seen
in his family practice was
“pinkeye. Just a redness of the sclera or a foreign body in the eye
causing redness . . . Anything more significant than that, I would refer to an
At trial, he would not say that if any of the listed eye infection symptoms
were observed he would refer the patient to an ophthalmologist. At his
examination before trial, however, while listing the same symptoms for eye
infection, he indicated that the presence of any of the symptoms would warrant
referral to an ophthalmologist. He testified that he “obviously
misspoke” during his deposition, but concededly did not make the
correction when given the opportunity to do so during the course of the
pre-trial discovery process. [T-122].
Asked if the fact that a chart is not available for a patient presenting with
the complaints presented by Mr. Hercules would lead him to do anything
differently than when a chart is available, Dr. Supple said: “I
don’t think so. It depends on what I found on physical
examination.” [T-124]. Asked whether it would “change the
specificity or the rigor” of how a history was taken Dr. Supple said:
“I don’t think so, no.” He said that “no”, the
lack of a chart would not “change the nature and extent” of his
physical examination. [T-124].
Finally, he indicated that he “[did not] know” whether he had asked
Mr. Hercules what type of eye surgery he had. [T-129].
Dr. Supple testified that he generally recorded his findings when making a
visual acuity examination of a patient, and would also generally record his
findings upon a physical examination. He was familiar with an ophthalmoscope -
was trained and experienced in operating one - and described it as an
“instrument to see inside the eye . . . [t]hrough the pupil
. . . [t]o the retina.” [T-125-126]. The process is not invasive nor is
there any risk to the patient associated with using an ophthalmoscope. An
ophthalmoscope was available in every examining room of the RMU.
Asked to describe what differential diagnosis process he followed when
examining Mr. Hercules by looking at the contemporaneous note he had made (since
he had no independent recollection of such examination), Dr. Supple said:
“I looked in his eye, and I saw that he had redness in the outside part
of the sclera, or the white of the eye, and nothing else . . . No process - - no
complaints of severe pain, certainly no total global redness, no obvious
photophobia, something I’ve seen a hundred times, maybe thousands of times
in my private practice.” [T-128].
He agreed, however, that there was no notation in the AHR of the foregoing
process he claimed to have undertaken of noting symptoms and ruling out whatever
illness or disease process - from the more serious, to the less serious - might
be associated with same. Indeed, given his indication that he had no
recollection of Mr. Hercules’ visit, he stated that “I do have a
recollection of what I do when I examine someone [generally].” [T-128].
Ideally, he agreed, it would be good practice to document what was done in the
exam, however he said that “time restraints” prevented making such
notations. This recollection of time constraints was based on the general
recollection that he was “pretty busy at the clinic every day,” not
on any specific memory. [T-129]. He had not checked any logs or other records to
discern just how busy it might have been that day, and acknowledged that some
times are less busy than other times.
There is no notation as to seeing any “bleb” - “a little
blister” - when he looked in the claimant’s eye, nor is there any
notation concerning a surgical scar or marking. [T-130]. No notes indicating any
lack of cooperation are included. There is no note of Dr. Supple’s
suspicion of some type of allergic inflammation in claimant’s eye, or a
viral or bacterial ailment, in terms of arriving at a differential diagnosis. He
did not recall if he knew as of November 25, 2003 that claimant had a history of
glaucoma. No impression or diagnosis is recorded in the note made by Dr. Supple
on that date.
Dr. Supple had no recollection of any contact on the following day regarding
Mr. Hercules, including contact by any correction officer, or discussion with a
nurse, and did not recall telling an officer or nurse that he did not want to
see Mr. Hercules on November 26, 2003.
On examination by Defendant’s counsel, Dr. Supple testified that if a
patient were to come to him complaining of redness and achiness in the eye, his
routine examination would be to look at the eye to see if it looked like a minor
inflammation, give the patient artificial tears, and to advise the patient to
come back if it does not get better or if anything else develops.
Dr. Supple said he utilized an otoscope - “which is a light with a
magnifier on it” [T132] to examine the surface of the eye in the area of
apparent irritation. He said that such an instrument does not look into the
pupil or inside the eye in the way that an ophthalmoscope does. He said that he
would routinely look in both eyes (by way of comparison) and would be looking
“for redness, for pus, [and] for photophobia.” [T-133]. The note he
made in the AHR with regard to Mr. Hercules indicates that there was redness in
the right eye, which would mean that is what he found after some type of
The notation of claimant’s status as “post surgery two years”
would indicate that he had a conversation with claimant, because “he had
to tell me that because I didn’t have his chart, so I wouldn’t know
that.” [T-133-134]. Dr. Supple would “expect” that during the
course of such a conversation the patient would voice his complaints,
particularly significant ones such as lost or diminished vision. Dr. Supple did
“not recall” such complaints (although his lack of any specific
recollection of his visit with Mr. Hercules renders this testimony somewhat
As posed by counsel for the defendant, the condition of “redness in the
lateral aspect of the right eye and achiness” noted on the AHR would not
represent “emergent conditions” indicating a need for further
testing Dr. Supple agreed. [T-135]. The type of pain expected as a sign of
infection would be “sharp, severe pain” not “general
achiness.” The redness would be in the “total, entire white of the
eye . . .” [T-135]. Had he seen these symptoms, Dr. Supple testified he
“would have had him to an ophthalmologist immediately.” [T-136].
The prescription for artificial tears given would be “to get rid of the
irritation or inflammation. If he had been rubbing it or he had an allergic
conjunctivitis, an allergy causing irritation, that would soothe it.”
[T-136]. The note: “follow up with provider soon” meant “that
I wanted him to follow up with his provider, with another doctor.”
[T-137]. Asked why he said that, Dr. Supple said: “Just so that he would
have a medical follow up to make sure that, you know, nothing else was
Dr. Rosenblum, claimant’s expert ophthalmologist, explained certain
features of the human eye, and testified concerning the care claimant received
based upon his review of the medical records and other
He explained the trabeculectomy
claimant underwent in June 2001 incident to his worsening glaucoma condition.
“The only way that we treat glaucoma”; he said, “is to lower
the pressure, whether it be by drops, pills, lasers or surgery.” [T-18].
In terms of how increased pressure leads to damage to the vision or damage to
the eye, Dr. Rosenblum said
“. . . [T]he fluid inside the eye leaves the eye and eventually ends up
in the bloodstream. When there is disruption in that flow, either that the flow
isn’t fast enough, so that the pressure builds up, or that there’s a
blockage of the channel, called the angle in which the fluid leaves, then the
pressure would tend to go up
. . . [T]here are nerve fibers inside the eye, the back of the eye is called the
retina, and the retina is like the film in a camera. All the light that’s
coming in impacts on the retina, and there are cells called photo receptors,
which discharge electrical . . . impulses, which then go to the brain. The
brain then interprets those electrical stimuli . . . The path in which those
electrical stimuli pass, go to the brain are called nerve fibers . . . [T]here
is a whole bundle of nerve fibers that go back to the brain. That’s
called the optic nerve . . . which is the connection between the eye and the
brain, actually the first step in that connection, those nerve fibers get
damaged and the nerve fiber bundles diminish in size and as well as in quantity.
The clinical consequence of that is that first the peripheral or the side vision
is damaged and as the disease entity progresses, then more and more of the nerve
fibers drop out and eventually the area of darkness or the area of poor vision
encroaches on the cental vision.” [T-19-20].
A trabeculectomy is an option of “last resort.” [T-22]. All
trabeculectomy techniques have in common an “opening up or the
communication between the fluid in the front of the eye to an area which is
outside of the main part of the eye . . .” as the mechanism by which the
fluid would drain and release pressure. The surgery is usually done at
“the intersection of the white part of the eye (the sclera) . . . and . .
. under the conjunctiva . . .” [T-22].
A successful trabeculectomy allows the fluids to travel in and out of the eye
through a bleb or bubble - it raises the conjunctiva above the area where the
sinus connects the interior to the surface of the eye under the conjunctiva. If
the surgery fails, then the eye heals completely and there is no bleb because
there is no open port.
Dr. Rosenblum explained that there are some long term risks to the surgery, in
addition to the closing up of the incision which would defeat the purpose of the
operation. He said:
“[T]he greatest risk is that this little channel, which leaves the eye
and which causes a bubble to form on the conjunctiva, the conjunctiva being the
membrane surface of the sclera or the white part of the eye, this bleb, as we
call it, this bubble, is usually very thin walled, and there is an increased
risk of infection inside - - of the bleb, which can then spread inside the
Should such an infection occur, and depending on when it is diagnosed,
different treatments follow, including topical, oral and even intravenous
antibiotics (“[t]hat’s the mainstay of treatment.”) [T-24].
The earlier the diagnosis of infection and treatment, the greater the chance of
salvaging vision. [T-25].
From Dr. Rosenblum’s review of the medical records from Fishkill, when
Mr. Hercules came to Dr. Supple on November 25, 2003 his visual acuity was
simply not measured, by any means, although there are several techniques
available. The most basic would be use of the Snellen chart. Other techniques
would include counting fingers from a distance, discerning hand motion from a
distance and various degrees of light perception. The records do not note any
visual acuity complaint by Mr. Hercules either, although by the time claimant
saw Dr. Sohng on November 26, 2003, there is a notation to the effect that the
patient was complaining of being “unable to see with right eye for a
day.” [Exhibit 1, pages 310, 311 and 336].
Despite Dr. Sohng’s notation in his own note that claimant had been
treated with antibiotics for 24 hours, a review of the medical records as a
whole does not evidence that such treatment was given, only some ophthalmic
solution - or tears - already referred to. Dr. Sohng noted that claimant had
“markedly congested sclera and conjunctiva,” a swollen eyelid, and a
purulent discharge. [T-35]. Based on his review of the records for November 25
and 26 Dr. Rosenblum opined, to a reasonable degree of medical certainty, that
claimant was developing a serious bacterial infection of the eye. It was
appropriate that Dr. Sohng sought a video examination with an ophthalmologist,
and that the ophthalmologist then referred claimant after the video examination
to the emergency room at St. Luke’s Cornwall Hospital. [T-35-36]. At that
point, it appears that antibiotics were administered. [Exhibit 2]. Admission
notes indicate that Mr. Hercules was unable to see out of his right eye by then.
By the time claimant was removed to Westchester Medical Center - where his
original surgery had been performed - “the visual acuity was no light
perception, the eye was red and extremely painful.” [T-36]. Once admitted
to Westchester, more intensive antibiotics were administered, including
intravenous antibiotics, and he was given anti-inflammatory medication “to
make the patient more comfortable” but showed no improvement. [T-36]. On
December 3, 2003 he underwent an enucleation, or removal of the eye.
Prior to this incident, Mr. Hercules’ visual acuity was 20/20 in both
eyes (“the Snellen or straight ahead vision was recorded as 20/20 in each
eye”). Dr. Rosenblum said that the visual field on the left eye, the one
which did not have glaucoma, was full. In the right eye he had a field defect
“in the upper nasal portion of the vision on the right eye . . . the upper
left part of his vision on the right eye” attributable to
Dr. Rosenblum opined within a reasonable degree of medical certainty that an
earlier diagnosis or referral by Dr. Supple on November 25, 2003 would have made
it possible to salvage claimant’s vision. The reason he used the word
“possible” is that
“these infections can be very severe, so that even if this is caught at
the earliest possible time, there is a risk that vision can be lost. However,
the chances of recovering good vision on the 25th were much greater than the
26th. By the time the 26th occurred, his chances for salvaging any vision was
virtually zero. It was not zero on the 25th . . . [O]n the 25th, even though
there is no recording of visual acuity, the symptoms were milder, there was some
pain, there was redness. We don’t know exactly what the visual acuity was
because there’s no recording on the chart, but by the 26th the combination
of extreme redness, loss of vision, as we know from the telemedicine consultant
and the discharge from the eye, indicated that the condition had worsened
considerably during that interval.” [T-41-42].
One of the very early symptoms of an endophthalmitis (infection) is loss of
vision. In Dr. Rosenblum’s view, had Dr. Supple looked into the eye with
an ophthalmoscope, and also assessed visual acuity by testing, he would have
observed a decrease in vision on November 25, 2003, which, together with the
redness and pain, and the history, would have suggested referral for ophthalmic
On cross-examination, Dr. Rosenblum agreed that there are other infections to
the interior of the eye that are viral rather than bacterial. He agreed that
someone who has had a trabeculectomy may have an eye irritation that is not a
bacterial infection. He also agreed that as far as reported on, the notes from
St. Luke’s for November 26, 2003 give no indication of anything to remark
on about the bleb or its condition. He reiterated that the early signs of
endophthalmitis are pain, sensitivity to light, decreased vision, possible
redness, and possible purulent discharge. Redness of the sclera - another
symptom - could be in any quadrant or quadrants (not just the lateral aspects).
Endophthalmitis could be severe - as in Mr. Hercules’ case - or slow
moving. Dr. Rosenblum said, however, that to lose vision in 24 hours, while the
initial symptoms could be severe, they could also be fairly mild, such as a
“slight redness of the eye, without any complaints of blurred vision,
decrease in vision, and an achiness, an achy feeling.” [T-62].
Dr. Rosenblum reiterated that use of an ophthalmoscope to look into the
interior chamber of the eye would enable the examiner to discern if any
infection to the interior eye had progressed sufficiently to produce white blood
cells in sufficient quantity such that the normally clear fluid would appear
hazy, cloudy or milky. Examination with that tool, combined with a measurement
of visual acuity (showing diminishment of same) would together suggest the
endophthalmitis. As the fluid becomes more opaque, it interferes with light
perception. The concomitant loss of visual acuity would become permanent and
irreversible as the infection destroys the interior structure of the eye.
Dr. Rosenblum opined that given the fast pace of the infection that Mr.
Hercules would have exhibited some loss of visual acuity on November 25, 2003.
Since he was not apparently tested for visual acuity by Dr. Supple, however,
that element for determining what was going on was eliminated.
After being pressed by counsel for the defendant on cross-examination, Dr.
Rosenblum said that signs of infection inside the eye shown through an
examination with an ophthalmoscope would only have been discernable within 24
hours of claimant’s admission to St. Luke’s. Thus an examination
before 1:00 p.m. on November 25, 2003 would likely not have yielded the signs of
infection within the eye, given claimant’s testimony that he saw Dr.
Supple in the morning of that day, although other signs of infection would have
been discernable with a more complete exam.
Testifying that correctional facility medical care is equivalent to the
standard of care associated with a general, family practice, Dr. Paul M. Adler -
claimant’s expert - said that the treatment received from Dr. Supple on
November 25, 2003 in failing to take an adequate medical history, failing to
perform a visual acuity test, and utilizing a tool generally intended for
examination of the ear (an otoscope), rather than the eye (an ophthalmoscope),
were deviations from a reasonable standard of care. He said that a general
practitioner presented with a patient suffering from an infection or injury or
anything to do with his eye, is not generally going to leap to the conclusion
that a major eye infection such as endophthalmitis is brewing. He opined,
however, to a reasonable degree of scientific certainty, that the
“three-legged stool” of an adequate history, a visual acuity test,
and examination by the use of an ophthalmoscope must nonetheless be built in
order to arrive at an appropriate diagnosis. [T-160]. Having failed to properly
build the stool, the misdiagnosis occurred. In his view, the failure to have the
chart available was not by itself a departure from accepted practice, saying
“it happens.” [T-161]. With such failure, however, the need to take
an adequate history is paramount. As recorded in the chart by Dr. Supple, the
only indication was that there has been some unspecified type of eye surgery two
Dr. Adler also opined that the use of an otoscope - a light generally utilized
when examining the ear - rather than the available ophthalmoscope was a
deviation from accepted practice. He said the general practitioner’s
“job is to use all the tools you have to find out what the problem
is.” [T-168]. Again, the general practitioner would not leap to the
conclusion for the observed redness in one eye that a virulent bacterial
infection was present. Dr. Adler testified the first thought might be some type
of foreign body. However, he also said that both allergic and viral reactions
would appear bilaterally - in both eyes - not just in one eye. In his view the
job is to rule out the worst possibilities first.
Finally, failing to test for visual acuity by - at a minimum - the use of the
Snellen chart, also readily available, was a departure from accepted practice.
Each eye should be tested, and if one is markedly different from the other, the
expected reaction of the general practitioner is to conclude there is something
wrong, and to make the referral to the ophthalmologist, including the
telemedicine review by a specialist apparently readily available at the
correctional facility, given Dr. Sohng’s use of same the following day.
Dr. Adler opined within a reasonable degree of scientific certainty that Dr.
Supple’s failure to take an adequate history, and the failure to perform
an adequate physical examination through the use of the proper tools (an
ophthalmoscope and a visual acuity chart), was a departure from accepted
standards of care and deprived him of the means of arriving at a proper working
diagnosis, and delaying appropriate treatment. Dr. Adler testified:
“[M]ost GPs punt. I mean, Dr. Supple said, I usually send everyone to
an ophthalmologist, in his deposition.” [T-173].
On cross-examination, Dr. Adler agreed that a visual acuity test will show what
the person’s acuity is at that moment, but without a chart or history of
prior visual acuities there is no way to determine what is normal for the
individual. He repeated, however, that if there is a difference between one eye
and the other - if it is “much different” - that should
“[raise] a suspicion of something going on . . .” [T-182]. In terms
of what type of physical examination was had, the only notation by Dr. Supple is
that the lateral sclera was red, Dr. Adler agreed, and that it cannot be
determined exactly what Dr. Supple did.
From a general practitioner’s viewpoint, Dr. Adler noted that symptoms of
bacterial infection, which is “usually . . . unilateral” include a
“pusy discharge . . . inflamed papillae . . . a very, very red eye. The
entire eye, usually not . . . one small part, but it can be one small part if
the infection is secondary to a foreign body” for example. [T-195]. Dr.
Adler agreed that if a small section of the eye was red, he would be more
worried about an infection due to a foreign body rather than an overall
bacterial infection of the eye, but disagreed that liquid tears as a lubricant
might assist in dislodging such foreign body. He said “using a lubricant
to remove a foreign body is bad medicine.” [T-196]. He agreed that at
“some time in the stage of the infection, you can have a significantly
swollen eye,” [T-198] as well as pus, and sharp and severe pain. He
pointed out that “[a]s it gets that bad [impacting the entire eye and
orbit] . . . you end up having a lot of swelling and pus, you would have either
sharp or very, very dull aching pain, depending on how each person’s pain
perception is.” [T-199]. Dr. Adler agreed that while it appeared that
claimant reported pain and achiness on November 25, 2003, reports of sharp pain
occurred the next day, but noted again that perceptions are different.
Dr. Adler (to his credit) said it would be speculative to say - because he was
not an ophthalmologist - whether an infection reasonably could have been
diagnosed on November 25, 2003. His testimony, however, was that a general
practitioner should have referred a patient in claimant’s position to an
ophthalmologist on November 25, 2003.
Correction Officer Mark Lundewall remembered claimant as a resident on housing
Unit M at Fishkill. Identifying logbook records for November 25, 2003 and
November 26, 2003, he confirmed that he was not the housing unit officer on Unit
M on November 25, 2003, although he had worked as the housing unit officer on
November 26, 2003 on the 6:30 a.m. to 2:30 p.m. shift (tour 2).
He remembered seeing Mr. Hercules the morning of November 26, 2003, however,
and that claimant asked if the officer could get him to emergency sick call. In
response to the officer’s inquiry as to what was wrong, Mr. Hercules said
“look at my eye,” and complained that it was red and burning.
Officer Lundewall thought it looked “pinkish”, and claimed to have
asked if he had gotten soap in his eye (though there are no notations by medical
personnel about such suspicion in the November 25, 2003 AHR note.) [T-301;
see Exhibit 1, Page 231]. The officer testified that he called the clinic
area, spoke to the nurse and reported Mr. Hercules’ complaints. The nurse
said that it did not seem to be an emergency, and told the officer to suggest to
Mr. Hercules that he sign up for sick call for the following day.
Claimant came back “a couple of hours later” Officer Lundewall
said, “complain[ing] that his eye was really starting to bother him and it
looked much more red than it had a couple hours prior to that.” [T-300].
On this second occasion, Officer Lundewall called the clinic again, explaining
that Mr. Hercules’ eye was much more red and that he was complaining of
pain. The nurse asked if the officer thought it was an emergency. Officer
“Well, I just thought - - I’m not a doctor, I said, but I would
think somebody would want to see him and that’s when she had said when the
walkway . . . reopened, that I could send him down to the clinic.”
He recalled that the walkway was about to close at the time of the telephone
conversation with the medical unit. Only two calls were made that day, he
On cross-examination Officer Lundewall agreed that it was not unusual for an
inmate to seek an emergency sick call, therefore it was not a matter that was
recorded as a logbook entry, nor did he himself keep any notes of his activities
that day. He confirmed that his testimony was based upon his own recollection,
and that he had not reviewed any materials - such as depositions or grievances -
prior to testifying to refresh his recollection. He recalled that the first
complaint of pain Mr. Hercules had was described as “burning. The second
time it was much more red, and then pain and blurry.” [T-307].
Before November 26, 2003 there had been nothing in his encounters with Mr.
Hercules that would have led Officer Lundewall to conclude that the inmate was a
On redirect examination he confirmed that in order to send an inmate down to
the medical unit the approval of the unit was required: he could not just send
an inmate down. He said:
“They’ve taught us that an emergency is either bleeding,
respiratory, chest pain, anything major like that, and then the other things
they kind of . . . you explain the symptom and they determine whether it’s
deemed an emergency or not.” [T-309-310].
Sometimes an inmate would be allowed down, other times he was told to sign up
for regular sick call. These were everyday occurrences.
John Bortz, an orbital and occuloplastic surgeon, board certified in internal
medicine and ophthalmology, who performed the enucleation on Mr. Hercules at
Westchester on December 3, 2003, testified both as to his treatment of Mr.
Hercules, and as an expert for defendant. He reviewed the medical records
maintained by Fishkill, and specifically commented on the records pertaining to
November 25, 2003 and Dr. Supple’s treatment of claimant on that day
(although Dr. Bortz is not a general practitioner). Dr. Bortz opined that
“Dr. Supple performed an appropriate examination and drew a reasonable
conclusion based on the records available to me in the chart.” [T-316].
He repeated the information supplied by Dr. Rosenblum, in saying that
evaluating whether the condition of endophthalmitis is present from symptoms,
“depends on at what point in the process you’re catching the
patient, but ultimately, significant pain in the eye and visual
disturbance.” [T-316]. Referring to the Fishkill medical records
[see Exhibit 1], Dr. Bortz said the symptoms noted when Dr. Supple first
saw claimant are that Mr. Hercules “came in complaining that his right eye
was red, and that he had an achiness in the eye for approximately one
day.” [T-316-317]. Dr. Bortz said that such symptoms - “a red eye
and some achiness in the eye” - do not immediately suggest
endophthalmitis, but are, rather, “consistent with many conditions.”
Asked to assume that Dr. Supple used an otoscope to examine the surface of
claimant’s eye, Dr. Bortz said that such an examination by a general
practitioner or a family practitioner was appropriate to the complaints voiced
by Mr. Hercules. He said that an ophthalmologist (such as he) faced with a red
eye symptom might perform a different exam than “just using a light, but
any light source that would illuminate the eye in this case would be of equal
benefit, whether it be an ophthalmoscope, an otoscope, a penlight, because
basically what’s being done here is a surface examination of the
eye.” [T-318]. The purpose of the examination of the surface of the eye
is to show whether there are any particular problems on the surface that can be
identified under good lighting conditions. He said “the differential goes
on and on and on about things that could cause redness of the sclera.”
On cross-examination he admitted that other than the notations on the chart
recording claimant’s complaints of achiness and that the eye was red, and
the examination of claimant with an otoscope, it could not be seen what else Dr.
Supple did that day. He agreed that there was no indication as to any discussion
of the eye surgery two years earlier, nor is there any indication as to whether
Dr. Supple was familiar with the trabeculectomy procedure claimant had
Dr. Bortz said that endophthalmitis “would not be his first choice”
and would be “maybe way down” on his list for someone presenting
with “lateral scleral redness and an achiness.” [T-328]. Under the
circumstances as they existed on that day - “circumstances where it says
no chart available”, where the doctor would be “unable as a
physician to review the chart to determine what kind of prior surgery the
patient had” - neither “incipient endophthalmitis” or
“endophthalmitis” would “. . . be near the top of . . . [his]
list.” [T-328-329]. Dr. Bortz said that the good and accepted practice by
way of history taking without a chart available would be to
“ask . . . what his symptoms were, whether there was any visual
compromise, the nature of his pain. You know, we have a very brief note, so
[Dr. Bortz did not] know how much conversation took place between Dr. Supple and
Mr. Hercules.” [T-329].
Notably, Dr. Bortz gave no opinion as to what effect the delay in treatment had
on Mr. Hercules’ vision, and the eventual loss of his eye in the
No other witnesses testified.
DISCUSSION AND CONCLUSION
It is “fundamental law that the State has a duty to provide reasonable
and adequate medical care to the inmates of its prisons,” including proper
diagnosis and treatment. Rivers v State of New York, 159 AD2d 788, 789
(3d Dept 1990), lv denied, 76 NY2d 701 (1990). In a medical malpractice
claim, the claimant has the burden of proof and must prove (1) a deviation or
departure from accepted practice and (2) evidence that such deviation was a
substantial factor or a proximate cause of the injury or other damage. A
claimant must establish that the medical caregiver either did not possess or did
not use reasonable care or best judgment in applying the knowledge and skill
ordinarily possessed by practitioners in the field. Medical experts establish
the standard of care within the various realms of expertise for the profession.
If a claim can be read to allege simple negligence, or medical negligence, then
the alleged negligent omissions or acts by the State’s employees can be
readily determined by a fact finder using common knowledge without the necessity
of expert testimony. Coursen v New York Hosp.-Cornell Med. Ctr., 114
AD2d 254, 256 (1st Dept 1986). Similarly, the State may be found liable for
ministerial neglect if its employees fail to comply with an institution’s
own administrative procedures and protocols for dispensing medical care to
inmates. Kagan v State of New York, 221 AD2d 7, 10 (2d Dept 1996).
Failing to keep appropriate medical records would be an item of ministerial
neglect, for example, as a failure to conform with regulatory protocols in the
provision of health services. [See Correction Law §45(6) and (15); 9
NYCRR §7651.19]. “Under both [medical malpractice and medical
negligence] theories . . . claimant must establish that the negligence of the
State or the State’s deviation from the accepted standard of care was the
proximate cause of the claimant’s injuries (see Bennett v State
of New York, 31 AD3d 1069, 820 NYS2d 653; Kagan, 221 AD2d at 11,
16-17, 646 NYS2d 336).” Lowe v State of New York, 35 AD3d 1281,1282
(4th Dept 2006).
To practice medicine a doctor is not required to have exceptional knowledge or
abilities, however every doctor is required to keep reasonably informed of new
developments in his field and to practice medicine in accordance with approved
methods and means of treatment in general use. He must use his best judgment
and, obviously, cannot guarantee a good result. The fact that there was a bad
result to the patient, by itself, does not make the doctor liable. Pike v
Honsinger, 155 NY 201 (1898). The doctor is liable only if he was
negligent, and if such negligence was a substantial factor in causing his
The protections of the medical judgment rule claiming that a decision is
protected when professional judgment is exercised, requires more than asserting
that the determination to follow a course of treatment was made, when it was not
based on adequate information. See Stanback v State of New York
163 AD2d 298 (2d Dept 1990).
physician does not place himself in a position to acquire sufficient information
about the patient’s condition to exercise professional judgment, damage
proximately following from such lack of care renders the State liable.
Upon review of all the evidence, including listening to the witnesses testify
and observing their demeanor as they did so, the Court finds that claimant has
established by a preponderance of the evidence that defendant was negligent and
committed medical malpractice, and that such negligence was a proximate cause of
Resolving issues of credibility is the province of this Court as the trier of
fact. LeGrand v State of New York, 195 AD2d 784, 785 (3d Dept 1993),
lv denied, 82 NY2d 663 (1993). Just as with any testimonial evidence,
“[t]he weight to be afforded the conflicting testimony of experts is a
matter peculiarly within the province of the . . . [fact finder] . . .
(citations omitted).” Sternemann v Langs, 93 AD2d 819 (2d
Dept 1983); see also Lalanne v Nyack Hosp.
45 AD3d 645, 646 (2d Dept 2007). Here, however, the expert ophthalmologists -
Drs. Rosenblum and Bortz were not in conflict. Both said the earlier an
infection is caught and treated, the more likely damage may be averted or
minimized. Both agreed that an infection of the type suffered by Mr. Hercules
was not the first disease process that would come to mind although, given the
trabeculectomy some two years earlier, Dr. Rosenblum added that the possibility
of such infection was always of concern. Notably, regardless of whether an
examination utilizing the proper (available) tool (an ophthalmoscope) would have
revealed the particular symptoms inside the eye when Dr. Supple first saw
claimant, the failure to perform additional visual acuity tests, and to acquire
a proper history from a less than articulate patient, prevented Dr. Supple from
realizing the necessity of referring claimant to an ophthalmologist immediately,
given his own professed understanding in 2003 of the symptoms of
Indeed, both Dr. Supple and Dr. Adler said that the practice of medicine in a
correctional facility setting was - or should be - at the same level as one
would find in a general or family practice. Dr. Adler, as claimant’s
uncontradicted expert in the area of what reasonable standard of care would be
expected in such a setting, said that the failure to take an adequate history,
and conduct a complete exam utilizing all the appropriate tools, prevented Dr.
Supple from having an adequate and reasoned basis for any judgments he then
made. Larkin v State of New York
, 84 AD2d 438, 445-446 (4th Dept
The Court agrees.
Dr. Supple did not put himself in the position of having adequate clinical
findings to make an informed decision on treatment. No explanation for why the
chart was not available on November 25, 2003 - potentially only 30 yards away
according to Dr. Supple - was offered. Indeed, medical records are required to
be maintained in accordance with the regulatory scheme for the provision of
health services to inmates. [See 9 NYCRR §7651.19]. Such medical
chart would have documented the kind of surgery claimant had, as well as the
previous problem with his right eye after the surgery as noted in the record in
March 2003, after which antibiotic treatment was apparently given.
Pain is relative. Whether the pain was described as an ache, or a burning, or
severe, or sharp, as reported by claimant to Dr. Supple, there was pain of some
degree and kind: another symptom of infection attested to by the medical
witnesses. Had an adequate history been taken, or claimant’s medical
chart been available, this additional symptom should have alerted the diligent
general practitioner to a potential problem.
Whether claimant articulated any loss of vision to Dr. Supple or not, since Dr.
Supple does not have any independent recollection of the examination, and noted
that his usual practice is to note visual acuity results and none are noted,
given that an eye complaint was involved, the reasonable practice would be to
examine visual acuity. Claimant testified that he was not asked to read from an
eye chart. Later medical notes report that Mr. Hercules was indeed suffering
vision loss on November 25, but Dr. Supple did not apparently test for it. As
Dr. Adler noted, while visual acuity tests are more meaningful when compared to
prior tests of visual acuity, a test for same showing a difference between one
eye and another’s acuity should nonetheless trigger the thought that
something is wrong. And the only reason there was nothing to compare, is that
medical personnel did not secure claimant’s chart.
Failing to refer claimant promptly followed from this neglect, and was a
substantial factor in bringing about the harm suffered by Mr. Hercules in the
loss of his right eye. See Knish v Meehan
, 291 AD2d 647 (3d Dept
2002). Unlike those cases where a delayed diagnosis was found not to be a
proximate cause of the claimant’s injuries, here there is a direct
correlation between the breach in the duty owed, and the damages that emanated
from such breach. Kagan v State of New York
; Schneider v
Memorial Hosp. for Cancer and Allied Diseases
, 100 AD2d 583 (2d Dept
. Lowe v State of New
; Bennett v State of
, 31 AD3d 1069 (3d Dept 2006);
Kaminsky v State of New York
, 265 AD2d 306 (2d Dept
On the following day, despite claimant’s request to be seen earlier, and
however inarticulately the reasons for such a request was made, the prison
practice of having a correction officer who is essentially “looking for
blood” - not any other more subtle sign of an emergency - act as the
middleman between the patient and medical personnel is troubling, although
somewhat understandable in a prison setting. See Levin v State of New
York, 32 AD3d 501 (2d Dept 2006). Since Officer Lundewall was
simultaneously minimizing claimant’s first complaints by speaking of
“soap” in his eye, and as a non-medical officer not eliciting more
probing medical answers from claimant to be conveyed to the nurse, the nurse at
the other end of the line was also not afforded the opportunity of exercising
her best nursing judgment. Claimant did not, however, establish a standard of
care for such judgment by expert testimony or otherwise.
Moreover, given Dr. Rosenblum’s testimony to the effect that once the
vision was lost on November 26, 2003 it could not have been salvaged, it would
be speculative to conclude that either Correction Officer Lundewall’s
judgment call, or that of the nurse at the other end of the line, even if
flawed, were a substantial factor in causing claimant’s injuries.
Claimant, too, had his own role in contributing to the tragic harm that befell
him. Claimant impressed the court as not a very able communicator. He was not
one of those glib inmates for whom continued incarceration offers the
entertainment of recreational litigation over imagined ills. This was an
individual who seems genuinely cowed by being an inmate in the correctional
facility system. He had no facile explanation for why he did not give as much
information as he could have to Dr. Supple, or why he simply dealt with the pain
that day, rather than seeking out another emergency sick call. Nonetheless, his
own minimization of his symptoms and failure to seek emergency assistance, had
at least a partial role in contributing to the delayed diagnosis, and to his
ultimate, tragic injury.
Based on the foregoing, the Court finds that the State departed from accepted
standards of medical care and is 70% liable for the harm suffered by claimant as
a result, and that claimant is 30% responsible for the harm that befell him.
The Clerk of the Court is directed to enter interlocutory judgment on the issue
of liability in accordance with this decision. All trial motions not otherwise
disposed of are herewith denied. Trial on the issue of damages will be scheduled
as soon as practicable.
July 20, 2009
Plains, New York
HON. THOMAS H. SCUCCIMARRA
Judge of the Court of
. References to [T- ] are to pages of the
trial transcript, here [T-212].
. Decision on defendant’s motion to
strike such testimony, made after the witness was excused and an additional
witness had been called and testified, was reserved on at the time of trial. The
motion is now denied. First, the timing of the motion was such as to be
prejudicial and subject to waiver considerations attached to untimely objections
Civil Practice Law and Rules§4017; Horton v Smith
NY2d 798 (1980); Koplick v Lieberman
, 270 AD2d 460 (2d Dept 2000); see
also Zelaya v New York N.Y. Auto Body, Inc.
, 41 AD3d 594 (2d Dept
2007)]. Second, while claimant’s expert was led by defense counsel to
testify that he had read the deposition transcripts of the three non-testifying
physicians who also treated claimant after the events at issue in this claim -
depositions taken in parallel litigation to which the State was not a party
(though there is an argument for privity) - Dr. Rosenblum’s
“reliance” on same, from the context of his entire testimony, was
clearly not the type of prohibited reliance upon material outside the record to
form an opinion, but rather by way of background material readily accessible to
all parties to this litigation even if not participants in the underlying
litigation for which the physician’s depositions were taken. There is an
argument to be made as to whether such depositions might be admissible in
evidence as those of persons authorized to practice medicine in any event
Civil Practice Law and Rules Rule 3117 (a)(4)]. Moreover, other
than the innocuous inquiry on cross-examination as to whether the witness had
read and “relied” on these three depositions, the quality of such
reliance was not explored. Indeed, all references during Dr. Rosenblum’s
testimony were to medical records in evidence, and to claimant’s treatment
by Dr. Supple as reported in his deposition, as well as Mr. Hercules’
deposition testimony, both of whom testified. The court has reviewed the
suggested legal support for defendant’s motion and finds that it is
distinguishable both procedurally, and substantively.
. “We find that the State unreasonably
delayed properly diagnosing and treating the claimant for his injury, and that
this failure constituted medical malpractice. Contrary to the State’s
contention, these acts and omissions amount to something more than an honest
error in professional judgment (see, Bell v New York City Health & Hosps.
., 90 AD2d 270, 279; Larkin v State of New York
, 84 AD2d 438).
Moreover, the State may not insulate itself under the professional medical
judgment rule, since it did not exercise its judgment pursuant to a careful
examination of the claimant's condition (see Bell v New York City Health
& Hosps. Corp
)”, in claim involving an over three
(3) year delay in diagnosing torn meniscus and ligament injury after a fall on
. “So long as a physician remains within
the bounds of accepted medical practice, he is immune from liability for an
error in judgment or for lack of success in his medical treatment. However, once
a physician departs from accepted medical practice he is subject to malpractice
liability ‘[h]owever good his intentions may have been’
. . . (citation omitted). Although liability may not be imputed from mere
errors of professional medical judgment, it may be predicated upon an inadequate
and careless medical examination. ‘Physicians are not liable for mistakes
in professional judgment, provided that they do what they think best after
careful examination . . . However, liability can ensue if their judgment is not
based upon intelligence and thus there is a failure to exercise any professional
judgment’ . . . (citations omitted).The overwhelming weight of
credible evidence is that good and accepted medical practice required the State
to test or refer Larkin. The State did neither; in fact, the State failed to
exercise any professional judgment in this case.” Physician failed to
refer prisoner to specialist or perform a spinal tap after months of complaints
of worsening headache symptoms.
. Failure of defendants to take more rigorous
measures to ascertain cause of patient’s complaints of back pain
constituted departure from accepted standards of medical practice, and that
delay in diagnosing metastasis of patient’s breast cancer to her bones,
and in particular, to her spine, was proximate cause of collapse of two of her
lumbar vertebrae, and her consequent pain and loss of mobility.
. Even though five-week delay in treatment and
diagnosis was unreasonable, such breach not proximate cause of claimant’s
hearing loss due to the slow-moving nature of the disease.
. Advanced periodontal disease was proximate
cause of claimant’s tooth loss. Since his disease was so advanced, teeth
were beyond salvaging, thus alleged deviation from accepted standard of care did
not proximately cause claimant's injuries.
. Failure to diagnose inmate’s AIDS was
not proximate cause of his death from AIDS-related pneumonia.