New York State Court of Claims

New York State Court of Claims

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

Case Information

1 1.The caption has been amended to reflect the only proper defendant.
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The caption has been amended to reflect the only proper defendant.
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Signature date:
July 20, 2009
White Plains

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See also (multicaptioned case)


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 liability.

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.” [T-212].[2] 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. [T-229].

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 something.” [T-236].

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 intercession.

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 25, 2003.

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 ophthalmologist.” [T-119].

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 examination.

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 meaningless). [T-134].

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 developing.” [T-137].

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 materials.[3] 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 eye.” [T-23].

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. [Id.]

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 glaucoma.[T-38].

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 care.

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 years earlier.

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 Lundewall testified:
“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.” [T-301].

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 said.

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 complainer.

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.” [T-317].

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.” [T-318].

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 undergone.

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 enucleation surgery.

No other witnesses testified.
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 patient harm.

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).[4] Where the 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 claimant’s injuries.

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 infection.

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 1982).[5] 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, supra; Schneider v Memorial Hosp. for Cancer and Allied Diseases, 100 AD2d 583 (2d Dept 1984);[6] cf. Lowe v State of New York, supra;[7] Bennett v State of New York, 31 AD3d 1069 (3d Dept 2006);[8] Kaminsky v State of New York, 265 AD2d 306 (2d Dept 1999).[9]

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
White Plains, New York

Judge of the Court of Claims

[2]. References to [T- ] are to pages of the trial transcript, here [T-212].

[3]. 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 [see Civil Practice Law and Rules§4017; Horton v Smith, 51 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 [see 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.

[4]. “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. Corp., 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., supra)”, in claim involving an over three (3) year delay in diagnosing torn meniscus and ligament injury after a fall on wet stairs.

[5]. “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.
[6]. 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.
[7]. 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.
[8]. 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.
[9]. Failure to diagnose inmate’s AIDS was not proximate cause of his death from AIDS-related pneumonia.