New York State Court of Claims

New York State Court of Claims
NICHOLAS v. THE STATE OF NEW YORK, # 2009-044-023, Claim No. 105675


Court dismissed claim by former inmate for alleged negligent medical treatment / medical malpractice resulting in proctocolectomy. Any deviations from the appropriate standard of medical care were not a substantial factor in leading to the necessity for the surgery.

Case information

UID: 2009-044-023
Claimant(s): CORY T. NICHOLAS
Claimant short name: NICHOLAS
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 105675
Motion number(s):
Cross-motion number(s):
Claimant's attorney: OFODILE & ASSOCIATES, P.C.
BY: Anthony C. Ofodile, Esq., of counsel
BY: Joseph F. Romani, Assistant Attorney General
Third-party defendant's attorney:
Signature date: December 29, 2009
City: Binghamton
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant seeks damages for injuries (a proctocolectomy)(1) allegedly resulting from negligent medical treatment that he received while incarcerated at Southport Correctional Facility (Southport) and Elmira Correctional Facility (Elmira). Claimant maintains that if he had been timely and properly diagnosed by the doctors employed by defendant State of New York (defendant), and thereafter properly treated, his condition would be in remission and surgery would not have been required. Trial of the matter was bifurcated and held in the Binghamton District on September 21-25, 2009. This decision addresses only the issue of liability.

Claimant testified at trial that he was transferred to Southport from Coxsackie Correctional Facility on June 2, 1999. Claimant stated that during his admission interview with the medical department,(2) he complained that he had been having diarrhea and cramps, and that blood had been present in his stool for the previous two to three weeks.(3) Claimant said he complained of these symptoms either every day or every other day thereafter, until he was transferred to Elmira Correctional Facility (Elmira), in January 2000.(4)

Claimant stated that the staff at Southport gave him either Imodium or a lactose medication (or both) to treat his symptoms in the months following his initial complaint. However, he said, the medications did not resolve the symptoms and actually made him feel worse. He said that he advised the staff of this repeatedly, and also wrote numerous letters of complaint to the Commissioner of the Department of Correctional Services (DOCS),(5) Southport's Superintendent McGinnis(6) and The Legal Aid Society.(7) He also filed grievances(8) and instituted a CPLR Article 78 proceeding(9) complaining of numerous deficits in his medical care by defendant's doctors.(10)

Claimant further testified that he believed that the first time he was actually seen by a doctor at Southport for this problem was in August 1999. He said that he was told to take his medication, and he would be fine. Claimant averred that he was subsequently threatened by Dr. John Alves,(11) the facility's medical director, in an attempt by Alves to get claimant to stop complaining about his alleged lack of medical treatment.

Claimant said that Alves advised him sometime around the beginning of October 1999 that claimant's symptoms were due to Crohn's disease. Claimant acknowledged that he was prescribed Azulfidine(12) to treat the Crohn's disease. He said he took the Azulfidine from October 1999 through January 2000, but said he still suffered regularly from diarrhea, cramps and bloody stools. Claimant said that he was told he would be scheduled for a colonoscopy, but that he never actually underwent that test. He stated that he never refused to go to any appointments for a colonoscopy or for gastrointestinal issues.(13) However, he did acknowledge that at one point he was told to sleep in the infirmary, apparently in preparation for going to the doctor for a colonoscopy. He said he refused to stay in the infirmary because he did not know why he was being told to do so.

Claimant testified that he believed the first time he saw a gastroenterologist was in November 1999. Claimant also said he did not recall that he ever refused to take the Azulfidine. He did acknowledge that he asked about side effects of the medication, because he was worried about losing his hair.

Claimant was transferred from Elmira to Southport on January 27, 2000. He said that when he was transferred, he was taking the Azulfidine. He did not believe he was prescribed any medication at Elmira, including Azulfidine, between his transfer date and late February 2000, at which point Dr. Yin prescribed prednisone.

Claimant said he was admitted to Elmira's infirmary on March 1, 2000 due to increasing diarrhea and cramps. The same day, he checked himself out of the infirmary, and then checked himself back in again. He was in the infirmary at Elmira from March 1-10, 2000. He said that while he was there, he took all the medications he was given, and followed all medical instructions. He said he had episodes of diarrhea from 8 to 12 times per day during that period. He was taken to a local hospital's emergency room on March 10, 2000, where he was admitted to the intensive care unit, and the proctocolectomy was eventually performed. After the surgery, as a result of biopsies of the removed tissue, claimant was diagnosed as having had ulcerative colitis, rather than Crohn's disease.(14) Claimant was 22 years old at the time of the surgery.

Claimant testified at some length regarding his reaction to the surgery and the use of ileostomy equipment. He described the impact the surgery has had on his day-to-day living, both while incarcerated and thereafter.(15)

On cross-examination, claimant admitted that he was convicted of two counts of forgery. He acknowledged that he had a substantial disciplinary history while incarcerated, and that he served more than the minimum sentence as a result.

Dr. John Alves testified. He was the Facility Health Services Director at Southport at the time claimant was there. He did have an independent recollection of claimant, due in part to claimant's eventual surgery. Alves said he first became aware of claimant two days after claimant arrived at Southport, due to a complaint claimant made at sick call that he had bloody diarrhea. Alves said he ordered that claimant's stool be tested for blood. He said,(16) however, that "there was difficulty getting compliance on a stool sample" as claimant returned the sample with sputum.(17) Another cup was sent to claimant for a sample on June 8, 1999, and was returned to the staff on June 10, 1999.(18)

Alves said that another stool sample was ordered on July 2, 1999, and that claimant was also given Imodium at that time for his complaints of diarrhea. Claimant's AHR entries for the month of June 1999(19) indicate that claimant complained about a number of things to the medical staff (in addition to diarrhea) during the month, including eye problems(20) and repeated complaints of weight loss.(21)

Between July 2, 1999 and July 22, 1999, claimant's only complaints at sick call (as documented in six entries in his AHR)(22) pertained to his eye and pain in his shoulder. On July 22, 1999, the AHR provides in pertinent part: "claims to have diarrhea - then gives RN Immodium [sic] tabs from 7/2/99 order - states they don't work states they make me constipated & has used on[ly] 4 tabs in 20 day[s]."(23) There is also a note in that day's entry indicating that claimant's stool should be checked. The AHR for July 23, 1999 indicates that a stool sample was obtained on that date.

Medical staff made notes in claimant's AHR on two different occasions at the end of July 1999 that they believed claimant was malingering, due to his daily sick calls, lack of visible distress, and his comments to the staff.(24) Also, notes were made repeatedly by facility staff in claimant's AHR throughout the months of July 1999, August 1999 and September 1999 that claimant refused to get up from his bed at sick call, and told the staff to "just document" his complaints in his record.(25)

Claimant's AHR entry dated August 4, 1999 indicates that he returned Tylenol given to him for his complaints of shoulder and eye pain (and earlier notations indicate he returned Advil as well), stating "I'm not going to take pills they might screw up my kidneys or liver."(26) On August 9, 1999, claimant again complained of diarrhea.(27) Claimant was advised that his chart was on the doctor's desk for review the following morning. On August 10, 1999, he advised the staff that he had stomach pain with every meal, and cramping and diarrhea.(28)

Alves testified that he first met with claimant on August 13, 1999. Alves said they discussed claimant's symptoms, and Alves advised claimant that his blood work was normal and the stool samples had tested negative for occult blood.(29) He said that claimant agreed to a trial of Lactaid, a medication for lactose intolerance. Claimant's AHR for that date, prepared by Alves, further indicates that claimant said he was having bouts of diarrhea five to six times per day at that time, but only two to three times per day when taking the Imodium.(30) Alves stated that the symptoms of lactose intolerance are bloating and diarrhea, and that between 40% and 50% of black males are lactose intolerant. Claimant's AHR indicates that two days later, on August 15, 1999, claimant returned unopened the box of Imodium he was given by Alves, and also returned the Lactaid unused. The AHR provides in part: "[claimant] states I want a Lactate [sic] test I'm not taking those," and then the notation that there is no test for lactose intolerance.(31) Alves confirmed in his testimony that no test exists for lactose intolerance. The AHR does not document any further complaints of diarrhea between August 13, 1999 and September 6, 1999. The September 6, 1999 AHR entry states: "[claimant] states he wants to try Lactaid tablets as he continues [with] diarrhea he feels is related to dairy consumption."(32) That entry indicates that Lactaid was prescribed, which Alves confirmed at trial. Claimant further stated on September 12, 1999 that he wanted to try taking Imodium for his symptoms. It should be noted, however, that the vast majority of claimant's complaints at sick call in the month of September 1999 pertained to shoulder pain.(33)

Alves testified that blood tests performed on claimant in early September 1999 "showed that his sedimentation rate was elevated significantly . . . [which] reflects internal inflammation to [the] immune system . . . [and ] can be from infection, trauma or Crohn's disease."(34) At that point, Alves said, he ordered more stool tests to make sure there was no bacterial infection.(35) He said he also "scheduled upper GI and small bowel follow through" X rays. Alves stated that those test results (dated October 7, 1999) showed that claimant's upper gastrointestinal tract was normal, but that the very end of the small intestine showed thickening of the wall, which was indicative of Crohn's disease. The lab report states in pertinent part: "[o]n small bowel series, the terminal ileum is abnormal and the findings are consistent with Crohn's disease."(36) Alves stated that he ordered claimant to be put on a high-calorie, high-protein diet with supplementary multivitamins, and ordered a gastrointestinal consultation.

On the same date (October 7, 1999) that the lab results indicated findings consistent with Crohn's disease, claimant reported at sick call that he had much less diarrhea, was drinking less water, and was taking the Lactaid.(37) However, on October 10, 1999, claimant told the medical staff he was starting to "have blood mixed in [with] diarrhea."(38) Alves testified that because claimant's stool had been negative for blood in the previous tests, he ordered a re-test of the stool. Claimant made the same complaint at sick call on October 16, 1999.(39) On October 19, 1999, a Health Provider Order sheet indicates that a doctor at Southport (the signature does not appear to be that of Dr. Alves) prescribed Azulfidine in the total amount of one gram per day to treat claimant's intestinal inflammation and symptoms.(40)

Alves stated that claimant's GI consultation was scheduled for October 26, 1999. However, he said, claimant refused to leave the facility because "he said he didn't know what the appointment was for." The Refusal of Medical Examination form(41) in claimant's medical records states: "I refuse outside trip to Walsh RMU. [Diagnosis] Crohn's Disease. Scheduled 10/26/99 for a G.I. consult." Claimant refused to sign the document, but it was signed by two witnesses, one of them Alves. Alves said that prison officials do not tell inmates in advance where they are going when they are sent out of the facility for specialized medical treatment, due to the potential for escape.

Alves testified that, because claimant did not go to this consultation, he increased claimant's prescription of Azulfidine to a total of two grams daily,(42) and told the staff to re-schedule the GI consultation. He said that Azulfidine was the most benign treatment for Crohn's disease at that time, with the least potential for side effects, and that he had used it to treat Crohn's disease before.

On November 4, 1999, claimant complained he was throwing up blood.(43) Alves testified that this was not normal for either Crohn's or ulcerative colitis, so claimant was admitted to the infirmary for observation and blood tests.(44) Claimant was released the next day. The Discharge Summary indicated "no further vomiting."(45) Alves said that claimant's blood count was completely normal at that time, indicating that claimant "was not hemorrhaging in a way that was excessive."

Alves said he had a follow-up visit with claimant on November 19, 1999. He said that claimant was "tolerating" the Azulfidine and maintaining his weight, but was "still having about four diarrheal stools per day." In addition to the foregoing, the AHR entry for that date noted that claimant was experiencing less pain.(46)

Claimant finally had his gastroenterologic consultation on November 23, 1999 at Walsh Medical Center with Dr. Ajay Goel.(47) Alves said that Goel recommended doubling the dose of Azulfidine, giving claimant nutritional supplements, and prescribed a colonoscopy, with a follow-up visit to be scheduled in three months.

The AHR entry for November 29, 1999 indicates that claimant complained of finding blood in his stool for two days, and said he was vomiting blood.(48) Blood tests were performed and claimant was ordered to report any further incidents as well as to retain any samples of bloody stool or vomit for medical inspection.(49) Interestingly, claimant was scheduled to go to Family Court on November 30, 1999, and stated on that morning that he did not want to go.(50) When he returned to Southport from Family Court, he claimed to have had a seizure in the courtroom, and he was hospitalized and additional tests were performed. The tests yielded no abnormal results, and the AHR entry for December 3, 1999 notes: "[d]oubt true seizure suspect manipulation."(51) Alves noted that claimant was never observed to be in distress during this time.

Also, on two different occasions during the evening of December 3, 1999, claimant again complained he was vomiting up blood. The AHR entry from that date notes "no smell of vomit [and] no vomit in toilet. [Inmate] stated 'nobody told me to save it.' "(52)

The AHR entries for the rest of December 1999 indicate that claimant had various complaints, mostly pertaining to pain in his left and right shoulder, alternately, as well as pain in his neck and back.(53)

On December 27, 1999, claimant apparently asked about the side effects of the Azulfidine, and those were explained to him by the medical staff, according to the AHR entry.(54) A subsequent AHR entry on January 5, 2000 states in part: "[complains of] allopecia [sic] wants [Azulfidine] [discontinued] 'its [sic] a side [effect] of this med I have the paper [with] side effects' . . . Did not appear to have Alopecia would not allow exam 'I have it.' "(55) Alves testified that he believed that claimant stopped taking the Azulfidine sometime in early January 2000.

At the morning sick call on January 6, 2000, claimant again complained of diarrhea. The AHR entry for that date notes in part: "also stated had diahrea [sic] very vague not answering any specific question when why & how much & times 'ok I think in the afternoon.' "(56) That entry further states: "no problems [with] this for a while will get stool specimen in AM to [check] for occult blood."(57) The next day, January 7, 2000, claimant apparently refused the stool specimen cup, stating he just wanted his medications changed.(58) Claimant again refused to give a stool specimen on January 8, 2000, despite his continuing complaints of blood in his stool. The AHR entry for that date provides in part: "he stated he needs to see the MD because of the blood in his stool. I advised [claimant] that a speciman [sic] to check for blood was needed. He again refused to give a specimen because 'I don't want to go to the hospital, I want medicine here to take care of it.' Informed [claimant] again, that a specimen is needed. [Claimant] said he would think about it."(59) Claimant continued to complain of blood in his stool on January 9 and 10, 2000, but continued to refuse to give a specimen.(60) The AHR entry for January 11, 2000 states "[claimant] refused MD callout this am. [Nurses] personally went down to cell [and] pleaded for him to come out to see MD. [Claimant said] 'No, you're not going to experiment on me.' "(61) Claimant continued to request different medications on January 12, 14 and 16, 2000.(62) However, he was advised by the medical staff to continue with his current prescriptions.(63) Claimant again refused to see the doctor on January 20, 2000.(64) On both January 21 and 22, 2000, claimant continued to complain of rectal bleeding, but refused lab work, X rays and twice refused doctor's sick call each day. No hair loss was noted. Claimant was again advised to continue taking the Azulfidine.(65) On January 25, 2000, with the same complaints, claimant stated he "may take" the Azulfidine.(66)

Alves described claimant as non-compliant in terms of taking his medications and cooperating with testing requests, noting claimant's refusal to go to the gastroenterologist consultation, as well as his refusal to take the Azulfidine in January 2000. However, he said, there are no procedures to compel an inmate to comply with medical treatment.

Alves testified that ulcerative colitis and Crohn's disease initially present the same, and that microscopic review of biopsies of the small intestine is necessary to differentiate the two conditions. Alves stated that some people will get ulcerative colitis "no matter what," that some people have periodic exacerbations of the condition, and in some cases it is controllable with medications. Alves said there was nothing more he could have done to treat claimant's symptoms. He did acknowledge that no colonoscopy was performed while claimant was at Southport.

On cross-examination, Alves acknowledged that between September 13, 1999, when he first suspected the presence of Crohn's disease, and October 27, 1999, when claimant was first prescribed Azulfidine, claimant was given no medications for his gastrointestinal symptoms other than Imodium and Lactaid. He did, however, state that Imodium is frequently given for Crohn's patients to help control their diarrhea. Alves also said that he believed the medically recommended dosage of Azulfidine for Crohn's disease in 1999 was two to four grams per day. He said that he did not refer claimant to a gastrointestinal specialist until October 1999, because claimant was medically stable, and the various tests given to claimant were not yielding abnormal results.

Alves also said he had no idea why claimant would allege that Alves threatened him. He did not recall whether he responded to claimant's letter to Southport's Superintendent regarding that allegation.

Claimant was transferred from Southport to Elmira on January 27, 2000. Claimant's Health Screening Form on his entrance to Elmira notes his diagnosis of Crohn's disease, as well as his dietary supplements and Azulfidine prescription.(67) Claimant advised Elmira staff that he was bleeding and requested a sick call on January 31, 2000.(68) On February 2, 2000, claimant's AHR entry notes that claimant was to see the doctor for his complaint of bleeding. The entry states: "stopped taking meds -> recently started them again!"(69) On that same date, however, Dr. Yin (a physician at Elmira) noted in claimant's AHR: "[h]ad Crohn's disease [diagnosis for] 3 months. on [Azulfidine] but discontinued . . . 2 weeks by self due to less hair."(70) Dr. Yin prescribed prednisone and requested a follow-up in two weeks.

Dr. Yin testified at trial. He said that he tried to convince claimant that he should take the Azulfidine during his meeting with claimant on February 2, 2000, but that claimant was so convinced that he was losing hair due to the medication that he refused to take it. Yin said he therefore prescribed the prednisone to treat claimant's intestinal symptoms. He ordered blood tests that day as well, with a follow-up exam to occur on February 17, 2000. Yin said he got the lab results on the blood tests on February 7, 2000.(71) He stated that claimant's sedimentation rate was a little high, but that the other readings "seemed okay." The hemoglobin and hematocrit levels were normal. Yin said that these levels are indicative of the severity of inflammatory bowel disease, and that claimant's condition was thus moderate to good. For this reason, he did not change the follow-up exam date.

Claimant was scheduled for a colonoscopy on February 15, 2000. He was supposed to stay in the infirmary overnight for "bowel prep" the night before. However, the AHR entry for February 14, 2000 states: "refusing colonoscope scheduled for 2-15-00 refusal signed."(72) The Refusal of Medical Examination And/Or Treatment form, signed by claimant, states in pertinent part: "[claimant] states 'I'm not refusing my appointment, just hospital overnight.' "(73)

Dr. Yin met with claimant for his follow-up visit on February 17, 2000. He said that he explained to claimant during that session why the bowel prep - and thus the overnight stay in the hospital - was necessary for the colonoscopy. Yin said that claimant agreed to cooperate with the necessary procedures if Yin would reschedule the test. The colonoscopy was rescheduled for March 15, 2000. Yin continued to prescribe prednisone to treat claimant's Crohn's disease diagnosis. He said that he did not try to convince claimant to go back on the Azulfidine, because claimant had already refused, and a doctor cannot force an inmate to take medications. Yin testified that "it would be nice" if claimant would have taken both the prednisone and the Azulfidine, but "he was refusing."

On February 26, 2000, claimant's AHR entry indicates that claimant was again complaining of rectal bleeding, this time with solid blood clots. He apparently showed the medical staff a "cup of cloted [sic] old blood."(74) He was given Tylenol for pain.(75) On February 29, 2000, claimant continued to complain of blood in his stool, and pain. Yin ordered that he stay in the infirmary overnight, and Yin saw him the next morning.(76) At that time, claimant complained of not being able to breathe. The AHR entry notes that claimant was "swollen . . . under [tongue] & chin."(77) Despite these symptoms, however, claimant checked himself out of the infirmary on March 1, 2000. On the Refusal of Medical Examination And/Or Treatment form, he wrote: "I feel that no different medical treatment is being given then [sic] me being in my cell on the block."(78) However, claimant checked himself back into the infirmary that same day.

Yin said that claimant had a fever, was sweating, and continued to have bloody stool on March 2, 2000, so he started claimant on a large dose of Solu-Medrol, an intravenous steroid.(79) Yin said claimant appeared much improved the next day. On March 3, 2000, the infirmary's progress notes (prepared in that instance by Dr. Desai, another medical provider at Elmira, and deciphered by Yin at trial) state: "[claimant] still has blood in B.M. [Claimant] agitative, argumentative and demanding this A.M. Says he wants regular diet and says he wants to go back [to] his cell. No [nausea or vomit] . . . swelling below the tongue markedly improving . . . Advised [claimant of] consequences of going against medical advise [sic], understands and wants to stay in the infirmary."(80)

Yin continued to interpret the progress notes prepared during claimant's stay in the infirmary, stating that claimant had 4 bowel movements in 24 hours on March 4, 2000, 1 of which contained no blood.(81) Yin said Desai's note for March 5, 2000 indicates that claimant had one bowel movement without blood, but that there was still some blood in claimant's stool generally. On March 6, 2000, Desai wrote that claimant was having three to four bowel movements per day, with pain in the stomach.(82) That same day, Desai decreased the steroids given intravenously to claimant from four times per day to three times per day.(83) Yin said that in his opinion, the decrease in the frequency of the steroid administration meant that claimant's condition "seem[ed] improved." On March 7, 2000, the progress notes state that claimant had two bowel movements with blood in the toilet, but had no other complaints.(84) For March 8, 2000, the progress notes state that claimant had six bloody bowel movements, although claimant "says feeling better."(85) The notes also indicate that claimant was scheduled to be seen by the gastroenterologist. On March 9, 2000, the notes indicate that claimant had seven bloody bowel movements during the night. Yin said it appeared that claimant's condition was getting worse. Desai's progress notes for March 10, 2000 indicate that he discussed claimant's situation with Dr. Goel (the gastroenterological specialist seen by claimant in November 1999), who advised Desai to send claimant to the hospital for a colonoscopy.(86)

Yin summarized his testimony by saying that he was treating claimant for an inflammatory bowel disease. He said that the standard treatment would have been an Azulfidine-type of medication. Another alternative form of treatment was prednisone. Yin said that because claimant refused the Azulfidine, he prescribed the prednisone. On cross-examination, Yin acknowledged that on February 2, 2000, the nurse had noted that claimant had stopped taking the Azulfidine, but had recently started taking it again. However, Yin said, he wrote the note on that same date that claimant had discontinued the Azulfidine, based on claimant's statements directly to Yin. Yin also said that he did not push claimant to take the Azulfidine. He said that if claimant did not want to accept the potential side effects of the medication, despite the consequences, that was claimant's decision to make.

Dr. Robert Huddle, Jr., a surgeon specializing in both general and cardio-thoracic surgery, also testified. Huddle, with admitting privileges at Arnot Ogden Medical Center (AOMC) and St. Joseph's Hospital, was not defendant's employee. He was the surgeon on call at AOMC when claimant was admitted to the emergency room on March 10, 2000. He was also asked to consult for purposes of evaluation by claimant's primary care doctors at AOMC, Dr. Rizk and Dr. Slimak.

Huddle said that in performing his evaluation, he did a limited physical examination of claimant and asked him some questions. He stated that his initial impression was that claimant had some form of inflammatory bowel disease, either Crohn's disease or ulcerative colitis.(87) He said that the nature of the discussion between he, Rizk and Slimak was how best to treat claimant. He stated that Slimak performed a limited colonoscopy, and he believed her impression was that claimant was more likely suffering from ulcerative colitis than Crohn's disease.(88) He testified that he and the other doctors determined that claimant should be treated with intravenous steroid medications and some type of suppository.(89)

Huddle said that claimant seemed to improve once the steroid treatments started. However, then claimant got suddenly worse, being unable to sleep and having numerous (12 to 16) bloody bowel movements per day, necessitating blood transfusions. At that time, claimant was being given the maximum dosage of steroids. Huddle was consulted again regarding claimant, from five to seven days after his initial consultation.

Huddle performed the proctocolectomy surgery on claimant on March 17, 2000.(90) He said the determination on how extensive the surgery would be was made in the operating room, based on his visual inspection of claimant's intestinal tract. He stated that claimant was advised of the possible options, complications and risks prior to the surgery. Huddle described in great detail the extent and involvement of the disease. He said that based on the severity of the disease (the involvement of the entire rectum and anal canal, as well as the entire colon), he determined that a proctocolectomy was necessary. He said he did not want to leave any disease present given claimant's youth, although he realized that this ruled out rehabilitative surgery.

Huddle said that the main medications of choice to treat inflammatory bowel diseases at that time were steroids and antibiotics, and that a majority of patients respond to steroid treatment. The reason the surgery was necessary was because claimant did not respond to the steroids. Huddle stated that the proctocolectomy offered claimant the best chance for long-term survival.

On cross-examination, Huddle acknowledged that the extent of the disease was unusual in such a young patient. However, he said, the subsequent pathology report confirmed his analysis that the rectum and anal canal were involved. Huddle also noted that he was sued by claimant for medical malpractice, but the jury found in his favor.

Agnes Peters, R.N., a long-time DOCS employee, also testified at trial. She stated she had no independent recollection of contact with claimant. She did review entries she made in claimant's AHR at trial. She stated that in general, the facility's staff would offer Imodium for inmates' complaints of diarrhea. After two to three days of continued diarrhea, the medical staff would refer the inmate to the doctor.

Robert Brandt, R.N., a retired DOCS employee, Terry Whedon, a former DOCS employee, Connie Demeritt, R.N., and John von Hagn, all of whom were at Southport when claimant was there, all testified. None of them had any independent recollection of claimant. They simply reviewed (and deciphered) the entries they made in claimant's AHR.

Catherine Barto, R.N., a 35-year DOCS employee at Elmira, also testified. She had some independent recollection of claimant. When claimant refused to stay overnight in Elmira's infirmary on February 14, 2000 to prepare for his colonoscopy the next day, she said she explained the consequences of his refusal - that he would not be able to have the colonoscopy, which he needed because of his Crohn's disease diagnosis - and had him sign the refusal form. She also witnessed his signature when he checked himself out of the infirmary on March 1, 2000.

Sabrina von Hagn, R.N., a nurse at Southport in December 1999 to January 2000, also testified. She did recall claimant. On one occasion, she found claimant lying on the floor during her rounds, claiming to be hyperventilating and saying he could not get up. She thought his behavior was a method of seeking attention, because she did not find anything medically wrong. She said she counseled him about the possibility of a mental health referral.

Von Hagn also said that claimant was frequently uncooperative regarding his medical treatment. She cited one occasion where claimant complained of a rash, so she gave him an antifungal cream. He returned it the next day, saying it had not worked.(91) She said she was not surprised, because she told him it would take more than a day to work. She had documented many of claimant's refusals to see the doctor or to allow blood work or testing in January 2000,(92) and she confirmed in her testimony that he verbally refused to comply.

Dr. Stuart Finkel testified as claimant's expert. Finkel's curriculum vitae(93) and his testimony regarding his background, education and experience show that he unquestionably qualifies as an expert in gastroenterology. Defendant's counsel had no objection to Finkel's qualifications as an expert.

However, during the course of Finkel's testimony, claimant's counsel asked him numerous questions regarding claimant's apparent noncooperation with medical staff and noncompliance with taking medication and testing. Defendant's counsel objected to this line of questioning on the ground that claimant's CPLR 3101 (d) expert disclosures only indicated that Finkel would testify regarding defendant's failure to properly and timely evaluate, diagnose and treat claimant, as well as the accepted medical practice and procedures for a patient with claimant's symptoms. Defendant's counsel later moved to strike Finkel's testimony pertaining to whether claimant was compliant. At the time of defendant's objection, the Court reserved decision and allowed Finkel's testimony on that subject pending a determination on the objection. At the time of defendant's motion to strike, the Court also reserved its ruling.

At this time, the Court sustains defendant's objection and grants defendant's motion to strike Finkel's testimony regarding the issue of whether claimant was compliant and cooperative in his medical treatment (see Lewis v Port Auth. of N.Y. & N.J., 8 AD3d 205, 206 [2004]). It has been clear from the inception of this claim that the issue of claimant's compliance was highly relevant (defendant's Verified Answer asserts the affirmative defense of claimant's culpable conduct, and there were at least two Court conferences well prior to the trial in which the issue of claimant's alleged noncompliance was discussed). Claimant's counsel has no excuse, nor has he proffered one, for the failure to include this in the CPLR 3101 (d) disclosures as a potential subject of Finkel's testimony. Moreover, the issue was clearly and prominently included in defendant's CPLR 3101 (d) expert disclosure as a potential topic of defendant's expert's testimony, which should have brought the issue to claimant's counsel's attention. In any event, while the Court has disregarded Finkel's testimony on claimant's noncompliance and failure to cooperate and has given it no weight, the Court would note that Finkel's testimony in this regard was not consistent, and therefore not credible, and allowing it to remain part of the record would have had no impact whatsoever on the Court's determination herein regarding liability.

Finkel testified that he found numerous deviations from good and accepted medical practice in the care given claimant. First, he said, requiring claimant to repeatedly provide stool samples for tests to document his complaint of rectal bleeding contributed to a significant delay in the diagnosis and treatment of claimant's underlying colitis, and directly contributed to the necessity that claimant undergo surgery. Finkel also noted that an erythrocyte sedimentation rate (ESR) test was ordered on June 4, 1999,(94) but that it appeared that the test was not given until it was reordered on August 13, 1999,(95) with the test results being reported on September 8, 1999.(96) It was the elevated level on this ESR test that led Dr. Alves to his tentative diagnosis of Crohn's disease as noted in the entry in claimant's AHR on September 13, 1999.(97) Finkel stated that the failure to give the test when it was ordered was another instance of deviation from good and accepted medical practice. Finkel asserted that the failure to perform this test when it was ordered led to a delay in ordering a gastroenterological consultation, as well as a substantial delay in the commencement of any medication for claimant's condition.

Further, in Finkel's opinion, the appropriate action would have been for Dr. Alves to order either a colonoscopy or a sigmoidoscopy at the beginning of June 1999, when claimant originally presented with his complaint of ongoing diarrhea, with blood in some instances. Finkel also believed that a digital rectal exam would have been appropriate.

Finkel also opined that the initial dose of a total of one gram Azulfidine daily on October 20, 1999, and thereafter modified to two total grams daily on October 27, 1999, was a deviation from appropriate medical care and practice.(98) He did acknowledge that Azulfidine was the appropriate treatment in this situation. Finkel asserted that the recommended starting dose in 1999 was three to six grams per day for Crohn's disease, and for ulcerative colitis it was four to six grams per day. According to Finkel, the effect of starting claimant with one-third to one-quarter of the initial recommended dose delayed claimant's effective response to the drug, and "prolonged his condition" (presumably the condition of several bloody stools per day). Finkel said that "the longer it takes to start an effective dose [of the medication], the longer it takes to achieve remission." Finkel opined that claimant did not receive an adequate dose of Azulfidine until the end of November 1999, when he finally saw the gastroenterologist. Finkel also noted that the gastroenterologist had ordered a colonoscopy be given within the next one to two months, and that it would have been appropriate to perform the colonoscopy in December 1999, rather than waiting to schedule it for February 2000 (when claimant declined the bowel preparation). However, Finkel said that he did not know whether that delay had any impact on the eventual necessity for surgery.

Finkel also testified that giving claimant various non-steroidal anti-inflammatory drugs (NSAIDS), such as ibuprofen and Trilisate, was inappropriate.(99) He said that prescribing NSAIDS is inappropriate for a patient with inflammatory bowel disease such as Crohn's disease or ulcerative colitis, because it can exacerbate the disease or prolong the response to the medications being given for the intestinal inflammation. In Finkel's opinion, the prescription of NSAIDS to claimant "blunted" his response to the Azulfidine, even after it had been increased to the appropriate dose, and contributed to a worsening of the disease, ultimately leading to the necessity for surgery.

Claimant's counsel then asked Finkel what the chance of successful treatment of claimant would have been if claimant had been given the ESR test in early June 1999, and a gastroenterological consultation had been ordered at that time. Finkel avoided answering the question directly, but said that an adequate and effective dose of Azulfidine has an 80% chance of achieving remission within one to two months.

Finkel then opined that another significant deviation from the appropriate standard of medical care occurred when claimant was transferred from Southport to Elmira, and Dr. Yin "failed to renew" the prescription for Azulfidine. According to Finkel, the addition by Yin of prednisone to claimant's medical regimen was appropriate, but the failure to prescribe the Azulfidine until claimant was admitted to the infirmary on March 1, 2000 led to deterioration of claimant's condition and the resultant surgery. When Finkel was asked what the impact would have been on the course of claimant's disease if he had stopped taking the Azulfidine for two weeks, and then either it was not prescribed for another two weeks or claimant refused to take it for another two weeks, his response was that the impact would be "significant." Notably, Finkel said that claimant was "in fairly stable condition" at the time he entered Elmira, based on the results of the blood tests performed on February 2, 2000. Finkel noted that claimant's blood count was normal, his hemoglobin was 15 (also normal), and his sedimentation rate was 23, down from 42 at the end of September 1999.(100)

Finkel described the severity of claimant's condition from June 1999 to mid-February 2000 as mild to moderate. He said that the disease "flared to serious" at the end of February and early March, 2000, finally resulting in surgery.

On cross-examination, Finkel acknowledged that he was not a surgeon. He also agreed that cooperation on the part of a patient is usually necessary to achieve a favorable outcome with this type of disease. Finkel admitted that there were situations where claimant refused medical callouts, and said that it was "fair to say" the medical providers could not treat claimant without his interaction with the doctors. He also agreed that there were signs of noncompliance on claimant's part, although he denied that played any role in the eventual outcome of the disease. He further admitted that claimant had refused to go to the infirmary, or had checked himself out on occasion. Finkel also acknowledged that he had never practiced medicine in a prison facility, nor was he familiar with the sick call process in prison.

Finally, Finkel acknowledged that a certain number of patients with ulcerative colitis would require surgery regardless of the level of treatment they received, and even if they had received the best possible treatment. He also said that someone with a severe inflammatory "attack," whether it was the first or a recurrent situation, would have an up to one-third chance of requiring surgery.

Michael Barrett, M.D., a specialist on colonorectal surgery, testified as defendant's medical expert. He stated that 85% of his practice is colonorectal surgery, with a "fair amount" of that surgery resulting from inflammatory bowel disease.

Barrett testified that both Crohn's disease and ulcerative colitis are diagnosed based on the symptoms, a physical examination, and then appropriate diagnostic tests, lab studies and blood work. He stated that stool tests can be very helpful, as they can indicate the presence of an infectious colitis, as opposed to inflammatory, and can also confirm the presence and amount of bleeding. He agreed with Finkel that a digital rectal exam would have been helpful, but noted that this exam depends on the cooperation of the patient. He did note that both a digital rectal exam and a stool sample can yield negative results if the inflammation was subdued and the patient was not bleeding at that time.

Barrett said that the treatment for Crohn's disease and ulcerative colitis is usually very similar. Azulfidine was the first of a class of anti-inflammatory drugs that is used to treat both ulcerative colitis and Crohn's disease, and Barrett said it was the appropriate first line of treatment in 1999 for claimant's symptoms and diagnosis. However, he said, it is particularly important that the patient cooperate and take the medications as ordered. Barrett stated that the second line of treatment, if the Azulfidine did not prove to be effective, would be corticosteroids, such as prednisone or Solu-Medrol.

Barrett described ulcerative colitis as an "exacerbating, remitting disease" which is only curable if the entire colon and rectum are removed. He said that whether that removal is necessary depends on the severity of the illness overall, such as the amount of the colon involved, and the behavior of the disease in the individual patient, because different patients have a different disease course. He said "it may respond to therapy for a period of time and then break through therapy. In some patients, despite the best of therapies and the best of compliance, the disease will progress to a point that surgery is required." In terms of predicting whether an individual patient would require surgery, he said the most important factor is the extent of involvement of the colon in the disease at first.

Barrett said that ulcerative colitis can be a difficult diagnosis to make despite the best compliance by the patient, and the best standard of care. He said that if the relationship with the patient was difficult, that could make a diagnosis very hard. He said that if there is a question about the veracity of the patient's history (such as complaints of bloody diarrhea), a stool sample would be a reasonable request.

When asked whether claimant was timely diagnosed and treated, Barrett responded that the presumptive diagnosis of Crohn's disease was made promptly upon receiving the results of the gastrointestinal X ray, and that claimant was then immediately started on Azulfidine, which was the appropriate first line of treatment in 1999. Barrett agreed with Finkel that the initial dose of one gram per day was not adequate. However, he explained that one reason Azulfidine is not used as commonly today is because the side effects are more pronounced, and he said that the prescribing doctor may have been trying to see whether claimant could tolerate the medication. He noted that the dose was raised to two grams within seven or eight days, and firmly stated that the inadequate initial dose would not have had any effect on the eventual need for surgery.

When asked whether claimant was being given an appropriate standard of care between his initial complaints and the preliminary diagnosis, he said that efforts were being made to make the diagnosis, including confirming the bleeding. After the diagnosis, Barrett opined that the treatment given claimant comported with the appropriate standard of medical care. He said that claimant was being given a reasonable and adequate dosage of Azulfidine at two grams per day, and that claimant's situation appeared to be relatively stable up to the point where he transferred from Elmira to Southport. Barrett said that with ulcerative colitis, a patient may not have absolute resolution of all the symptoms, but that claimant's focus did not seem to be entirely on his gastrointestinal situation, so it would seem that the therapy was effective in stabilizing the disease.

Barrett said that the presumptive diagnosis that claimant had Crohn's disease was not inappropriate, based on his review of the report.(101) A finding of changes in the terminal ileum could be construed as consistent with Crohn's disease. In retrospect, he stated, what was seen almost certainly represented "backwash ileitis." He said that this condition was only associated with pan-ulcerative colitis,(102) indicating that claimant already had a serious colitis at that point, even though his symptoms only seemed mild to moderate. He stated that the medication therapy claimant was given was still appropriate, however, given the clinical findings of claimant's tests. Barrett said that this "pan-ulcerative" condition was significant, however, because patients with pan-ulcerative colitis are at a much higher risk of requiring surgery for their condition at some point, despite the best possible care and management of the disease.

Barrett said that if a colonoscopy had been performed earlier, it would have been helpful. It would "almost certainly have provided evidence of pan-colitis," and Barrett would have then recommended transition to a therapy of oral prednisone on top of the Azulfidine. However, he said, it is impossible to know whether performing that test at an early date would have changed the ultimate outcome. Barrett stated that if a patient follows all therapies, some will do well and some will not. He said sometimes patients simply do not respond despite the best therapy, and that the disease is "something of a mystery." In Barrett's opinion, claimant's disease progressed despite the best therapeutic intervention by the doctors.

Barrett said that claimant clearly had a change in the status of the disease at Elmira. He went from two to four bowel movements per day to eight per day. Barrett said that starting claimant on prednisone was the appropriate second step in therapy, and he did not find in the record any obvious delay in initiating that treatment. When asked whether the Azulfidine should have been given simultaneously with the prednisone, Barrett acknowledged that "it would be optimal to continue both with a compliant patient."

Barrett said that when claimant was transferred into the infirmary, he again did not find any deviation from the appropriate standard of medical care. He noted that the therapy was again escalated by changing from oral prednisone to intravenous Solu-Medrol, which he opined was the proper approach to a situation where the colitis was not resolving at a lower level of therapy.

With regard to the proctocolectomy ultimately performed, Barrett said that under some circumstances a surgeon may be very concerned that a lesser procedure might put a patient at risk for further disease. He said that the extent of the surgery is a judgment call the surgeon must make. He emphasized, however, that the only "cure" for ulcerative colitis is a proctocolectomy, as there is no other remedy or therapy that will permanently resolve the condition. Barrett said that the pattern of claimant's disease was not atypical. He said 20% of people never achieve remission, and that it is a "pretty typical pattern" to have the symptoms "break through" the Azulfidine treatment.

Finally, Barrett opined that given the circumstances the medical providers were confronted with (claimant's noncompliance with medical therapy and testing, as well as the extensive nature of claimant's disease), there was not a deviation from the appropriate standard of medical care, either in claimant's diagnosis or his treatment. He believed that the doctors and medical staff did their best to evaluate their patient and prescribe appropriate therapy.

At the close of claimant's case, defendant moved to dismiss the claim for failure to establish a prima facie case. Defendant argued that the alleged acts and/or omissions by the medical providers in this case were not the substantial proximate cause of the eventual surgery undergone by claimant. Defendant renewed its motion at the close of the trial. The Court reserved decision on both motions. The Court now grants defendant's motion to dismiss.

"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 [1990], lv denied 76 NY2d 701 [1990]). In a medical malpractice case, claimant has the burden of proving that the medical provider "deviated from accepted medical practice and that the alleged deviation proximately caused his [or her] injuries" (Parker v State of New York, 242 AD2d 785, 786 [1997]; see Auger v State of New York, 263 AD2d 929 [1999]; Hale v State of New York, 53 AD2d 1025 [1976], lv denied 40 NY2d 804 [1976]). "[I]n order for claimant to prove that the delays in diagnosis and/or treatment were a proximate cause of his injury, evidence [is] required that there was a 'substantial possibility' that the [surgery] was caused by the delay and that the State's negligence deprived claimant of an appreciable chance of avoiding the loss suffered" (Brown v State of New York, 192 AD2d 936, 938 [1993] lv denied 82 NY2d 654 [1993]). The Court of Appeals has noted: "[t]he issue of causation in medicine is always difficult but, when it involves the effect of a failure to follow a certain course of treatment, the problem is presented in its most extreme form. We can then only deal in probabilities since it can never be known with certainty whether a different course of treatment would have avoided the adverse consequences" (Toth v Community Hosp. at Glen Cove, 22 NY2d 255, 261[1968]; see also Brown v State of New York, supra).

In this instance, it is clear that Southport's medical staff was negligent in failing to give the ESR test ordered on June 4, 1999 until mid-August 1999. Further, both experts agreed as well that a digital rectal exam would have been appropriate, given claimant's complaints.(103) Finally, claimant was given NSAIDS despite his inflammatory bowel condition (although it appears he frequently did not take them). The Court finds that in these instances, defendant deviated from proper medical practice. Mitigating these deviations, however, is the fact that claimant's stool samples during the June 1999 through August 1999 period tested negative for occult blood, and claimant went long stretches during that time period without complaining to the medical staff about gastrointestinal symptoms. Further, the Court finds that these deviations were not a cause of the ultimate outcome - the proctocolectomy - as discussed below.

The Court further finds that the medical care provided to claimant after his preliminary diagnosis with Crohn's disease did comport with the standard of appropriate medical care. Claimant was given Azulfidine in a timely manner, and at an adequate dosage once it was increased to two grams per day. The Court found the testimony of defendant's expert witness to be highly credible as a whole, and accepts his statement that two grams of Azulfidine daily was an appropriate dose. Moreover, it appears that claimant's condition stabilized once he began taking the Azulfidine, even with the prescriptions for NSAIDS.

The Court would also note that the testimony of claimant's expert witness was undercut by his clear unfamiliarity with the difficult circumstances involved in administering medical treatment to prison inmates. He simply assumed that a patient would be truthful and compliant, and that the most extensive testing was readily available to the medical providers.

Both experts agreed that under certain circumstances, ulcerative colitis can require surgery regardless of the level of treatment. Finkel stated there was an 80% chance of remission, such that surgery would not have been required, if claimant had been diagnosed and had started the Azulfidine earlier. Obviously, this means that he believed there was a 20% chance that remission would not be achieved under those circumstances, and that surgery would then be necessary.

The Court found Barrett's assessment that claimant's entire colon was involved in the disease as early as October 1999 to be significant. Both experts agreed that the extent of the involvement of the colon was a key factor in whether surgery would be necessary regardless of the level of treatment. In fact, Finkel stated that someone with a severe inflammation would have up to a one-third chance of requiring surgery even with the best treatment.

The Court finds that the most significant factor leading to the exacerbation of claimant's symptoms and the eventual necessity for surgery was claimant's unilateral decision to stop taking the Azulfidine in January 2000. Upon observing his demeanor and behavior during his testimony, the Court did not find claimant to be credible when he said he "did not recall" that he ever stopped taking the Azulfidine. Further, the Court did credit Yin's testimony that claimant advised him that he was not going to take the Azulfidine due to his perception that he was losing hair. Under these circumstances, Yin's prescription of prednisone was the only reasonable medical alternative.

Refusing to take the Azulfidine was only one item in a pattern of noncompliance and recalcitrant behavior on claimant's part, particularly in January 2000. Claimant's medical record is replete with uncooperative behavior during that month, including refusals to provide stool samples to confirm his complaints of blood in the stool, refusing to allow blood to be drawn for blood tests, and repeatedly refusing to come out of his cell to see the doctor. In light of this behavior, his refusal to take the Azulfidine comes as no surprise. His refusal to see the gastroenterologist at the end of October 1999 and his refusal to cooperate with the necessary preparations for the colonoscopy in February 2000 were also notable examples of this continuing pattern of noncompliance. It is entirely possible that claimant would have required surgery at some point regardless of the level of medical care he accepted, but his own behavior made that outcome nearly inevitable.

The Court finds that the extensive involvement of the disease from an early stage, particularly when combined with claimant's own denial of appropriate medical treatment, led to the eventual necessity for claimant's surgery. Even though the inflammatory bowel disease might have been diagnosed sooner, it is apparent that claimant's condition was under control while he was at Southport and taking the Azulfidine. It was only after the period of time where claimant refused to take his medication or to otherwise cooperate in his medical treatment that his condition became suddenly worse.

Consequently, the Court finds that the instances cited above where defendant deviated from the appropriate standard of medical care were not a substantial factor in leading to claimant's proctocolectomy, and that there were no other deviations from the appropriate standard of care. Claim No. 105675 is hereby dismissed.

Any motions not previously determined are hereby denied. Let judgment be entered accordingly.

December 29, 2009

Binghamton, New York


Judge of the Court of Claims

1. A "proctocolectomy" is a surgical procedure to treat intractable ulcerative colitis or Crohn's disease, in which the anus, rectum, and colon are removed, and an ileostomy is created for the removal of digestive tract waste (The Free Dictionary, [accessed Dec. 23, 2009]).

2. The Reception Nursing Assessment form documenting claimant's medical condition on arrival at Southport indicates that claimant complained he had diarrhea with every meal (Defendant's Exhibit A at 452).

3. Claimant's Ambulatory Health Record (AHR) confirms that on June 3, 1999, claimant complained of diarrhea and blood in his stool that had been an ongoing problem for approximately one month (Claimant's Exhibit 5 at 1025).

4. It should be noted that claimant's AHR by no means corroborates claimant's testimony in this regard. While claimant complained of these particular symptoms frequently, as discussed infra, there were long stretches of time where no such complaint is documented (see e.g. n 22, supra).

5. Claimant's Exhibits 9, 10, 11, 12, 14 and 15.

6. Claimant's Exhibit 8.

7. See Claimant's Exhibit 7.

8. Defendant's Exhibits B, C and D.

9. Claimant's Exhibit 17.

10. Claimant's CPLR Article 78 proceeding was dismissed for failure to state a cause of action. In its Decision and Order dismissing the petition, Supreme Court found that claimant "was repeatedly examined by members of the [defendant's] medical staff regarding his complaints and was offered treatment" (Claimant's Exhibit 17 at 2).

11. Claimant's somewhat confusing testimony seemed to claim that Alves told claimant that he would tell other inmates that claimant was "ratting them out" if claimant did not stop complaining about his medical treatment. See also Claimant's Exhibit 8.

12. Azulfidine has a generic equivalent called sulfasalazine. The names of these two medications were used interchangeably throughout the witnesses' testimony and in claimant's medical records. For ease of understanding, the Court will refer to the medication as Azulfidine throughout this Decision.

13. This statement was contradicted by claimant's medical records, as discussed infra.

14. The Surgical Pathology Report states in pertinent part: "These features, while not completely specific, favor a diagnosis of ulcerative colitis over Crohn's disease" (Defendant's Exhibit A at 510). Both ulcerative colitis and Crohn's disease are types of inflammatory bowel disease.

15. While no description of his testimony need be given, as it pertains to the issue of damages rather than to liability, one of claimant's statements during this testimony was notable. Claimant said that when he has sexual intercourse now, "I lie [about my condition] and tell the girl that I just had an operation and have to keep my shirt on."

16. All quotes herein are taken from the Court's recording of the proceedings.

17. Claimant's AHR of June 7, 1999 states in pertinent part: "attempted to get stool specimin [sic] from inmate very vague answers about [d]iarhea [sic] . . . gave cup with no stool in it - looked more like sputum or mixture of [water and] food" (Claimant's Exhibit 5 at 1025).

18. Id. at 1026.

19. Id. at 1025-1029.

20. Claimant's AHR indicates that a referral to an eye clinic was ordered by medical staff on June 10, 1999 (Id. at 1028).

21. Claimant's AHR indicates that claimant's weight had remained relatively stable (with minor fluctuations) at 170 pounds for the preceding year (id. at 1028-1029).

22. Id. at 1030-1032.

23. Id. at 1032.

24. Id. at 1033.

25. Id. at 1030-1032, 1034-1036, 1038 and 1041.

26. Id. at 1035.

27. Id.

28. Id.

29. Occult blood is blood that is not readily visible, found in feces.

30. Id. at 1036.

31. Id. at 1037.

32. Id. at 1039.

33. Id. at 1038-1042.

34. The laboratory report indicates that claimant's sedimentation rate was 42, with a normal range being between 0 and 15 mm/hr (Defendant's Exhibit A at 465).

35. Claimant's AHR entry of September 13, 1999 states that claimant had an elevated sedimentation rate. Notes therein made by Alves include: "? crohn's" and "repeat stool for O&P, CDT, occult blood & cult for enteric. . . sched UG with [small bowel follow through]" (Claimant's Exhibit 5 at 1041).

36. The X rays were taken by an outside medical group; the signing physician was Jean H. Kirk, MD

(Defendant's Exhibit A at 287).

37. Claimant's Exhibit 5 at 1043.

38. Id. at 1045.

39. Id. at 1046.

40. Claimant's Exhibit 6 at 1171.

41. Defendant's Exhibit A at 485.

42. See Claimant's Exhibit 5 at 1047.

43. Id. at 1048.

44. See Defendant's Exhibit A at 60, Admission and Discharge Summary.

45. Id.

46. Claimant's Exhibit 5 at 1050.

47. See Defendant's Exhibit A at 280. Alves appears to have reviewed Goel's notes and findings on November 29, 1999, based on his dated initials at the bottom of the document.

48. Claimant's Exhibit 5 at 1051.

49. Id.

50. Id. at 1052.

51. Id. at 1054.

52. Id.

53. Id. at 1055-1061.

54. Id. at 1061.

55. Id. at 1063.

56. Id.

57. Id.

58. Id. at 1064.

59. Id.

60. Id. at 1064-1065.

61. Id. at 1065.

62. Id. at 1065-1066.

63. Id. at 1066.

64. Id.

65. Id. at 1067.

66. Id. at 1068.

67. Defendant's Exhibit A at 452.

68. Claimant's Exhibit 5 at 1069.

69. Id. at 1070.

70. Id.

71. See Claimant's Exhibit 1 at 401.

72. Claimant's Exhibit 5 at 1072.

73. Claimant's Exhibit 6 at 1087.

74. Id. at 1091.

75. Id.

76. Id. at 1092.

77. Id. at 1093.

78. Id. at 1088.

79. Yin said he also prescribed Rocephin intravenously. Rocephin is used to treat bacterial infections.

80. Claimant's Exhibit 6 at 1114, 1121.

81. See id. at 1121.

82. Id. at 1115.

83. Id.

84. Id. at 1122.

85. Id.

86. Id. at 1116.

87. See Defendant's Exhibit A at 558.

88. See id. at 559-561.

89. See id. at 562.

90. Id. at 511-512.

91. See Claimant's Exhibit 5 at 1058.

92. See id. at 1064, 1066-1068.

93. Claimant's Exhibit 35.

94. See Claimant's Exhibit 5 at 1025.

95. Id. at 1036.

96. Id. at 1040.

97. See id. at 1041.

98. However, Finkel also stated that the 12-day delay between diagnosis and the commencement of claimant's prescription for Azulfidine did not contribute to the eventual outcome of surgery.

99. Finkel cited the prescription of ibuprofen on October 12, 1999, Advil on December 15, 1999, Trilisate on December 16, 1999, and Trilisate on December 31, 1999 (Claimant's Exhibit 5 at 1045, 1057, 1057 and 1061, respectively).

100. Claimant's Exhibit 6 at 1136.

101. See Defendant's Exhibit A at 287.

102. Barrett defined "pan-ulcerative colitis" as a form of the disease that involves the entire colon.

103. While the Court questions whether claimant would have submitted to such an examination, there is no indication that the medical providers ever made any attempt to have one performed.