New York State Court of Claims

New York State Court of Claims
CABNESS v. THE STATE OF NEW YORK, # 2010-030-043, Claim No. 112987, 113215


Two claims tried jointly. Claim alleging dangerous buckling condition on the outside basketball court allegedly causing inmate claimant injury dismissed. In second claim, State 80 % responsible for injuries suffered to Achilles tendon because of failure to provide adequate medical care, including a failure to timely refer for appropriate diagnostic testing and to a specialist, requiring more extensive surgery to ankle, and reducing the functionality and range of motion in right calf muscle and ankle. No record made, however, of what prior range of motion was, thus no basis to compare it to any post-injury limitation. Reduced by contributive fault, claimant awarded $36,000.00.

Case information

UID: 2010-030-043
Claimant(s): CAMAR CABNESS
Claimant short name: CABNESS
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 112987, 113215
Motion number(s):
Cross-motion number(s):
Claimant's attorney: FRANZBLAU DRATCH, P.C.
Third-party defendant's attorney:
Signature date: December 6, 2010
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


Camar Cabness alleges in claim number 112987 that defendants' agents at Fishkill Correctional Facility negligently failed to maintain the basketball courts there, resulting in his injury on June 17, 2006 due to dangerous "ditches and bubbles" on the court. In claim number 113215, Mr. Cabness alleges that defendant thereafter failed to provide him with adequate and timely medical care for his injuries. The parties stipulated to consolidation of the claims for discovery and trial purposes, and such stipulation was so ordered by the court. This decision is rendered after a unified trial of the claims as to both liability and damages, and submission of post-trial memoranda of law.

On his direct case, in addition to his own testimony, Mr. Cabness offered the testimony of Dr. Warren Hammerschlag, an orthopedist, and numerous exhibits. Defendant offered the testimony of Stephen Roberts, Michael Patterson, Correction Officer Dominick Zaccagnino, Dr. John Supple, and Dr. Richard Weinstein, an Orthopedist, and numerous exhibits.

Claim Number 112987

Claimant testified that on June 17, 2006 he was playing basketball in the "21-A west yard"(1) outdoor basketball court at Fishkill Correctional Facility at approximately 6:30 p.m. He had participated in regular league play twice per week over his prior three (3) years at the facility. As he went up for a jump shot near one of the basketball hoops, he heard "a loud popping sound" coming from "the ground." [T-20]. He said the "ground was warped . . . kind of . . . like a hill, it had a lot of cracks in it." [Id.]. He fell to the ground, and felt pain in the back of his right calf. He "hopped over to the officer's bubble", and told him what had happened.

He was taken to the facility clinic, seen by a nurse (since physicians had left for the day), and treated with ice, painkillers, and an ACE bandage, and returned to his housing unit.

After the accident, Mr. Cabness signed a Report of Inmate Injury form. [Exhibits 4 and C]. He is reported therein as saying that he was "injured while making a shot during basketball game" and that the "cause of injury" was "jumping." [Ibid.]. There is no indication that he attributed his injury to any problem with the basketball court.

With regard to the condition of the basketball court on the day of the accident, Mr. Cabness said that there had been "several complaints" voiced through "the ILC" [Inmate Liaison Committee]. Complaints to the ILC and administration responses are recorded in minutes. [Exhibits 5, 6, A and B]. A notation in the "Inmate Liaison Committee Meeting Minutes", for May 31, 2005 under the heading "Ditches in basketball courts" includes the ILC complaint:

"The I.L.C. asked that the ditches in the 21-A and North Yard basketball courts be filled in"

and the administration's response:

"A.D.S.P. Hayden informed that he inspected both yards. He advised that although the 21-A Yard is not completely flat, it is not bad, nor is it a safety concern. The North Yard is fine. To resurface these areas would be a major rehab project that is not really necessary. A.D.S.P. Hayden noted that most of the inmates he spoke to said this was not a problem." [Exhibits 5 and B].

ILC meeting minutes dated May 30, 2006, under the heading "Resurfacing of 21-A Yard", provide:

"The I.L.C. advised that the blacktop in the basketball court area of this yard is wavy and cracked, and water collects there.

Administration's Response: Supt. Connolly asked D.S.A. Roberts to look into this." [Exhibits 6 and A].

Mr. Cabness conceded on cross-examination that he had never complained personally about problems with the surface of the court to anyone, including the ILC or correctional personnel, although he was aware that the surface of the court was uneven and cracked. Asked to mark where he fell on photographs identified as depicting the 21-A yard, Mr. Cabness circled an area only on one photograph [Exhibit M]. The photograph shows a typical asphalt covered, outdoor basketball court, with expected slightly irregular surface and cracked areas clearly visible. [Id.].

Other documents received in evidence, but not commented on by witnesses on claimant's direct case, included "weekly yard checks" from July 30, 2004 [Exhibit 8], August 5, 2004 [Exhibit 9], and September 14, 2005 [Exhibit 7] that note only that with respect to the 21-A west yard, "everything appears ok." [Exhibits 7, 8, 9].

No other witnesses testified on claimant's direct case concerning his claim that defendant failed to properly maintain the basketball court and allowed a dangerous condition to remain unattended to.

With regard to Claim number 112987 therefore, although the State has a duty to protect inmates from foreseeable risks of harm, it is not the insurer of inmate safety. Its duty is to exercise "reasonable care under the circumstances . . ." Basso v Miller, 40 NY2d 233, 241 (1976); see also Preston v State of New York, 59 NY2d 997 (1983). The State's obligation is to make the outdoor basketball court in the recreation area at issue here as safe as it appears to be, so that a sports participant can comprehend and perceive any risks he may be taking by using the recreation yard. Assuming that the State did not create the dangerous condition, a claimant must show that the State had actual or constructive notice of the condition and failed to act reasonably to remedy it. Gordon v American Museum of Natural History, 67 NY2d 836, 837 (1986).

Additionally, under the primary assumption of risk doctrine ". . . by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation." Morgan v State of New York, 90 NY2d 471, 484 (1997). This would include risks due to "open and obvious defects in the construction of the playing field, as long as the participant is aware of the risks and appreciates the nature of the risks . . . (citations omitted)." Greenburg v Peekskill City School Dist., 255 AD2d 487, 488 (2d Dept 1998);(2) See also Green v City of New York, 263 AD2d 385 (1st Dept 1999). " '[A]ssumption of risk is not an absolute defense but a measure of the defendant's duty of care . . .' " Morgan v State of New York, supra at 483, quoting, Turcotte v Fell, 68 NY2d 432. It is the "inherency" that is the indispensable element to determining whether the particular risky condition is one to which a sports participant has impliedly consented, and for which a duty of care is thus circumscribed. Morgan v State of New York, 90 NY2d 471, supra at 484. The landowner may not "[create] a dangerous condition over and above the usual dangers that are inherent in the sport . . ." Owen v R.J.S. Safety Equip., 79 NY2d 967, 970 (1992).

When it comes to outdoor basketball courts, uneven, cracked surfaces have been found to be inherent to the sport of basketball when played in such a setting. See Sykes v County of Erie, 94 NY2d 912 (2000); Mendoza v Village of Greenport, 52 AD3d 788 (2d Dept 2008); Smith v Village of Hempstead, 264 AD2d 413 (2d Dept 1999); Paone v County of Suffolk, 251 AD2d 563 (2d Dept 1998); see also Milliner ex rel. McMullin v New York City Hous. Auth., 57 AD3d 383 (1st Dept 2008); Brookstone v State of New York, 64 AD3d 1023 (3d Dept 2009); but cf. Clark v State of New York, 245 AD2d 413 (2d Dept 1997). As distinguished from indoor basketball courts in a gymnasium, an outdoor basketball court is not expected to present a perfect surface. See e.g. Braithwaite v State of New York, 26 Misc 3d 1239 (A) (Ct Cl 2009).

That the surface area of this outdoor basketball court presented a dangerous condition in the first instance, is not at all apparent on this record. The photographs show a typical outdoor court, with some irregularity and cracking. Claimant utilized this area for three years, at least twice per week by his own testimony, and was aware that there were uneven areas on the surface. There was no record made of any prior accidents and, in later testimony by witnesses on the State's case, it was further confirmed that no accidents on this yard due to conditions on the basketball court's surface had indeed occurred.

Stephen Roberts, the Deputy Superintendent of Administrative Services at Fishkill for six years, was present at the ILC committee meetings generally, and in attendance on May 31, 2005, when inmates requested that "ditches" in the yard be filled in. At Mr. Roberts' direction, the area was inspected, and no safety concerns were found. Inmates who were asked about the court during the inspection indicated that the court was "not a problem." [T-160, see also Exhibit B]. Mr. Roberts also attended the May 30, 2006 ILC meeting, when the basketball court was reported as "wavy and cracked." [T-161, Exhibit A]. He himself "toured the yard" and also spoke to the program recreation leader. [T-161]. He said that "it was not perfectly flat . . . it's old blacktop, it's been there a long time, but . . . it was playable and . . . it was safe to play on despite . . . the fact that it wasn't perfectly flat." [Id.]. The surface area, he said, has flat portions, and "there are some areas where there are some cracks and things like that. There are some areas where you have minor heaves . . ." [T-162]. Asked to look at the photograph where claimant had marked his fall [Exhibit M], Mr. Roberts said that in that immediate area there were no cracks, or ripples, and it is "fairly smooth." [T-166].

Michael Patterson, the Recreational Supervisor at Fishkill for 10 years at the time of trial, testified briefly. Mr. Patterson is a "certified official in basketball" for whom part of the job is assuring that the playing court is safe. [T-187]. He confirmed that intramural basketball leagues are held over two seasons, including an outdoor season running "from April until September" and that inmates play outdoors on the basketball court on the 21-A west yard "practically every day." [T-184-185]. As the recreation supervisor, he or a designee is required to inspect the basketball court every day. If anything needs repair, it is repaired. If it cannot be repaired, "we'll take it out of service." Weekly inspection reports are maintained. [See Exhibits 7, 8, 9, D].

Mr. Patterson said prior to and on June 17, 2006 he made the determination that the basketball court at 21-A west yard "was playable." [T-186]. This determination is based on checking the court to see if there are any hazards, including water. If, based upon his experience as a "[recreation] leader for 20 years", the court is not playable, the games are moved to the indoors and the outdoor court is not used. [T-186]. Shown the area circled by Mr. Cabness as indicating the area of the court where claimant fell, Mr. Patterson said that the pavement area there was felt to be safe, "it was level, it was safe for them to play basketball." [T-189; Exhibit M]. He estimated that approximately 250 inmates used the area almost daily. There had been no accidents pertaining to the surface condition of the basketball court prior to June 17, 2006.

Upon review of all the evidence pertinent to Mr. Cabness' claim that he was injured because of allegedly dangerous conditions extant on a negligently maintained outdoor basketball court, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimant has simply not established an adequate basis for the State's liability both prima facie, and by a preponderance of the credible evidence.

First, claimant has not shown that the court's condition was dangerous, and that the State had notice of any danger and failed to address it within a reasonable time. Second, in engaging in the sport of basketball on an outdoor court, claimant assumed the risk that he might land badly from a jump shot on an uneven surface (assuming the specific area was indeed uneven as no witness other than claimant indicated that the surface was uneven in that specific spot, nor does the photograph suggest same). The less than level condition is an obvious one, about which Mr. Cabness was thoroughly aware after three years of at least twice weekly games. Although claimant fell while engaged in a vigorous game of pick-up basketball, the fact of such fall alone does not mean the State was negligent. It is claimant's burden to establish that his injuries were caused by defendant's negligence. The proof presented did not establish the State's negligence or liability for claimant's injuries, thus Claim Number 112987 is hereby dismissed.

Claim Number 113215

Mr. Cabness described the medical treatment he received after his fall briefly, as well as his present complaints. On the date of his accident, the nurse told him to come back the following day to see the doctor. Instead, claimant returned two days later on June 19, 2006, when he saw Dr. John Supple, his treating physician, who is a general practitioner. After examining him, Dr. Supple prescribed ibuprofen, bed rest, and gave him a permit for crutches [Exhibit 15] and a "no work" order. Although claimant asked Dr. Supple whether the doctor was sure no x-rays or an MRI was needed, Dr. Supple reiterated that bed rest would suffice.

One week later, on June 26, 2006, the crutches were returned. Mr. Cabness said (inaccurately) "I had the crutches for like two weeks, and he took them back." [T-22]. Mr. Cabness said he was still in pain, and needed to hop from place to place, but he did not ask the doctor to renew the permit required to possess crutches. He saw only the nurse, and was prescribed another week of bed rest and no work. The ACE bandage, which, like the crutches, also required a permit, was returned as well.

When he returned the following week (July 13, 2006), however, no more bed rest was prescribed, and he was required to return to his regular program as a teacher's aide. Without crutches, he would hop from his dorm to and from the program, as well as the mess hall. He said: "I had to hop down a lot of stairs and hop back up a lot of stairs every day." [T-23].

Mr. Cabness filed a grievance on July 14, 2006, asserting therein that he attended sick call on July 13, 2006 to obtain renewal of his no work slip for a third week, but was refused by Dr. Supple, who did not examine him prior to such refusal. [Exhibit 14]. Mr. Cabness asked that he be given a "thorough and proper examination [and] diagnostic review by . . . [Dr. Supple] and the appropriate specialist . . . " [Ibid.]. The grievance was "accepted" to the extent that Mr. Cabness was given a re-examination by Dr. Supple, who indicated in his response to claimant's grievance dated July 20, 2006 (read aloud by the doctor at trial) that he would be "happy to re-examine him again." [Ibid.]. The doctor writes in the response to the grievance that claimant has had "chronic knee pains for years", and refers to x-rays taken of the knee on July 19, 2004 and April 18, 2006. [Ibid.]. More to the point of the injury at issue, Dr. Supple writes that claimant

"injured his [right] Achilles on June 17, 2006. I felt it may be, at worst, a partial tear. I ordered no work for 1 week, crutches, Motrin and ace wrap. After [4](3) weeks of no work he wanted an extension which I felt was not needed . . ." [Ibid.]

Mr. Cabness was re-examined by Dr. Supple on July 27, 2006 (having last examined him more than a month earlier on June 19, 2006, according to claimant's ambulatory health record [AHR] and the doctor's testimony). [See Exhibit Q, pages 66 and 64]. At that point, Dr. Supple requested a consultation with a specialist, as shown on a request and report of consultation form. [Exhibit Q, page 588]. The consultation occurred on August 10, 2006, and suggested that an MRI of the "[right] Achilles/ankle" be performed to evaluate the extent of the tear. [Ibid.].

Thereafter, Mr. Cabness received an MRI of his right ankle on September 6, 2006. [Exhibits 10 and Q, page 585]. In the review of the MRI report made by Dr. Jonathan Holder, the surgeon who ultimately performed surgery on claimant's ankle, he notes that an "Achilles [rupture with] healing" was "probable" and refers claimant for surgery to reconstruct the Achilles tendon. [Exhibit Q, page 584].

Surgery was performed by Dr. Holder at Mt. Vernon Hospital on November 30, 2006. Thereafter, after wearing a knee-high cast for approximately four months, Mr. Cabness said he received physical therapy three days a week. He received physical therapy until his release from custody in March 2010. He said he still has pain in his ankle "from time to time" and that he can no longer engage in "much sports activity." [T-29]. He said his job is affected "somewhat" in that he cannot "do some of the tasks . . . lift heavy things . . .", in part because he "[does not] want to put too much pressure on it." [Id.].

On cross-examination, at first Mr. Cabness claimed to have never injured his ankle before, however when shown portions of his AHR he acknowledged the injuries to his right ankle noted therein, and conceded he had injured his right ankle before June 17, 2006. The AHR records an injury to his right ankle on August 1, 1998 [see Exhibit Q, page 172], and an injury to his right ankle on April 3, 2004, when he jumped for a ball while playing basketball and landed on the wrong foot. [See Exhibit Q, page 114].

He also explained that as far as he knew, those earlier injuries did not involve his right Achilles tendon, and he had never complained of pain there.

Warren Hammerschlag, M.D. claimant's expert orthopedist, testified based upon his review of the depositions taken, the pleadings, claimant's AHR and records from Mt. Vernon Hospital [Exhibits Q and 13], his own physical examination of the claimant, as well as consideration of claimant's complaints on June 17, 2006 and thereafter. Dr. Hammerschlag explained that

"the Achilles tendon is the connection between the calf muscles and the . . . foot.

. . . [W]hen the calf muscles contract, when they shorten, it pulls on the Achilles tendon. The Achilles tendon causes the heel to go upward, it causes the ankle to go downward, so that the heel goes up, the front of the foot goes down. That motion is called plantar flexion . . . [W]hen it contracts, it's pulling upward on it moving down. When the muscle relaxes, the heel goes down, the muscles that would pull up the front of the ankle would then pull it up, and that's called dorsiflexion." [T-60-61].

When the Achilles tendon is torn, the calf muscle and the heel bone are no longer attached, and the muscles will retract, creating a gap between the ends of the tendons. On the heel side, the tendon "stays there." [T-64]. "The end of the tendon that's attached to the calf muscle will be retracted and there will be a gap between the ends of the tendons." [T-64-65].

If the gap between the ends of the tendons created by a rupture is left untreated, first the muscle retracts, thus increasing the distance between the two ends. Second, scar tissue tries to fill this gap. Permanent changes to how the muscle functions are the result. Dr. Hammerschlag said:

"The muscle is now no longer at its original length. How a muscle functions depends upon what's called its set or resting length. Now, the muscle has changed so that the muscle won't be able to generate the same amount of force afterwards, the shape and functioning of the muscle will be permanently changed." [T-65].

Dr. Hammerschlag reviewed Mr. Cabness' AHR [Exhibit Q], including claimant's complaints when claimant first presented himself to medical personnel on June 17, 2006 as noted, as well as thereafter when he first saw Dr. Supple on June 19, 2006. He opined that an inadequate examination was performed, including a failure to perform a Thompson test, which he said is the standard test for determining whether there is a complete rupture of the Achilles tendon, or a partial tear, and to then confirm the diagnosis with an MRI which is the "definitive way" to "show the status of the tendon" as either partially torn or a complete rupture. [T-67].

Dr. Hammerschlag said that to determine if there has been a tear of the Achilles tendon in the first place, an adequate history needs to be taken. Certain types of histories - such as an injury caused when someone says they "jumped in the air", and landed hard with sudden pain - are "very suggestive" of an Achilles tendon rupture. [T-65-66]. There will be swelling in the area, so it may be difficult to see the contour of the tendon. One should be able to feel "something of a gap in there." [Id.].

The standard way of evaluating the extent of the injury is the Thompson Test, he said, whereby the patient lies down on his stomach on an examination table, with his feet and ankles off the foot of the table, facing down toward the floor. The uninjured side of the patient is approached first. The calf on the uninjured side is squeezed, the muscle contracts, or "shortens" pulling up on the heel. In contrast, if the calf muscle on the injured side is squeezed, the ankle will not move because the muscle is no longer connected to the foot. A proper examination removes the element of gravity to specifically evaluate the Achilles tendon. What is recorded in the AHR is only an indication that Mr. Cabness could "extend his foot." [T-67]. Dr. Hammerschlag explained that other tendons are not necessarily involved when the Achilles is ruptured, thus you would still be able to move your foot and ankle from certain positions.

Dr. Hammerschlag said, and Dr. Supple later confirmed, that no Thompson test was performed by the doctor on June 19, 2006, and there was no referral to a specialist or for an MRI exam until more than one month after the injury.

Dr. Hammerschlag said that "nothing really was done to . . . determine the status of [the Achilles tendon injury] or to treat it." [T-67].

According to his review of the records, Mr. Cabness continued to make significant complaints of pain from the date of injury, but was not evaluated by an orthopedic surgeon until August 10, 2006. [Exhibit Q, page 584]. Dr. Hammerschlag's opinion of the status of claimant's Achilles tendon on August 10, 2006 to a reasonable degree of medical probability, was that there was a "complete tear." [T-71]. Although there is "mention" of a "partial tear of the Achilles tendon," Dr. Hammerschlag thought this

"would be unusual for several reasons. One, that in order for the ends of the tendon to retract enough for someone to feel a palpable defect, I've never seen personally or a report of a case where there was a defect in an Achilles tendon where it was attached at one point, but literally hinged open. The Achilles tendon doesn't behave like that. If there's a palpable defect, it's completely torn." [T-71].

He pointed out that there is a nearby tendon, "the plantaris", that "goes parallel to the Achilles tendon on the . . . inside part of the ankle" and that people may mistakenly think "that's a portion of the Achilles tendon that's still intact." [T-71].

Dr. Hammerschlag reviewed for the Court the MRI taken on September 6, 2006, pointing out the areas thereon where there is substantial scar tissue - showing up as a bright white in the image - in the gap where the Achilles tendon should be coming up from the heel bone. [See Exhibit 10]. Dr. Hammerschlag opined that the MRI study taken September 6, 2006

"show[ed] a chronic tear of the Achilles tendon with a significant amount of retraction. In order for the ends of the tendon to retract, by definition, would have to be a complete tear. If a portion of the tendon were still attached, you wouldn't have retraction." [T-77].

"[A]fter two to four weeks, it's a chronic injury. The gap is there, the muscles are being retracted, the muscles are changing, they're becoming less elastic, more fibrotic." [T-77].

In his opinion, the Achilles tendon tore "months" before the MRI was taken on September 6, 2006, when claimant fell playing basketball. At the point surgery was performed on November 30, 2006 [see Exhibit 13], substantial scar tissue needed to be removed, in order to attempt to join the tendon ends. He opined within a reasonable degree of medical probability that Dr. Supple performed an inadequate physical examination in the first instance, leading to a provisional diagnosis that was incorrect, improper treatment, and a failure to refer Mr. Cabness promptly for review by an orthopedist, and for an MRI.

The surgeon's "not particularly descriptive"operative report does not "contradict" what Dr. Hammerschlag saw when viewing the MRI. [T-87, see Exhibit 13]. The pre-operative diagnosis is of "chronic right Achilles tendon rupture" and the post-operative diagnosis is the same. [Exhibit 13].

When Dr. Hammerschlag physically examined Mr. Cabness, he observed that some continuity between the two ends of the tendon had been restored through surgery, but there were signs of delayed treatment nonetheless. He said the calf was asymmetrical, Mr. Cabness was unable to perform a single leg raise test post-operatively (demonstrating changes to the calf muscle), and there was a "persistent limitation of range of motion of his ankle, particularly being able to bend his ankle up as opposed to bending it down." [T-82]. Such limitations are permanent, he said. Dr. Hammerschlag opined to a reasonable degree of medical probability that had Mr. Cabness received surgery earlier than November 30, 2006, "he would have had better return of function of his calf and Achilles tendon mechanism," because such treatment would have occurred before it had been "allowed to retract and change to that degree." [T-82-83]. More substantial surgery was required because of the delay in treating the "complete rupture of the Achilles tendon" that Dr. Hammerschlag opined came about when Mr. Cabness was playing basketball on June 17, 2006. [T-83-84].

On cross-examination, although Dr. Hammerschlag agreed that in some cases a partial tear of the Achilles tendon could be treated non-operatively by immobilizing the ankle in a brace or cast for six weeks, using crutches or a walker, he said, "allowing someone to move their ankle up and down during that period of time is counterproductive for the healing process." [T-92]. He also agreed that in addition to the Thompson test, there are other ways of determining the extent of injury to the Achilles tendon by proper physical examination, including assessing whether the examiner is feeling the Achilles tendon or the plantaris tendon, but said that "if there is a palpable defect and an acute [recent] injury, it's a complete tear until proven otherwise." [T-93]. In his view, confirming the extent of the injury through the completely non-invasive use of an MRI was indicated when the injury occurred, not months later.

Dr. John Supple, a board certified family practitioner who worked as a provider of medical care at Fishkill for 22 years at the time of trial, testified as to the procedures followed at Fishkill for providing medical care to inmates generally, as well as the care he provided to claimant. He indicated that during the time he had worked as a physician at Fishkill he had treated "a few" Achilles tendon injuries, "guessing" that overall in his general practice, and in his work at Fishkill, he had treated "five to ten, ten to twenty, in that area [Achilles tendon injuries]

. . . " [T-100]. He said that if an inmate has a medical problem, he puts in a request for a sick call, and is first evaluated by a nurse. If the problem is not handled at that level, the nurse refers the patient to a physician or a nurse practitioner. In a daytime emergency, the inmate is seen immediately by a nurse, and then referred to the physician. In the case of an evening emergency, personnel may use the two-way television system to have the patient evaluated by a doctor "in Erie." [T-101]. Going through the claimant's AHR [Exhibit Q], Dr. Supple testified that at most a partial tear was suspected when he examined Mr. Cabness on June 19, 2006, because claimant was in pain when he stood on his toes and lifted his heel off the floor. Dr. Supple said that some "fibers of the Achilles tendon attached . . . the heel where it should be, meaning a partial tear" rather than a full tear. [T-107]. He said Mr. Cabness would not have been able to lift his foot off the floor if he had a full tear. On June 19, 2006, Dr. Supple gave Mr. Cabness an ACE bandage, a no work slip, and pain medication. The nurse had already given him crutches on June 17, 2006. Dr. Supple said that if Mr. Cabness had wanted to continue using crutches when the permit ran out on June 26, 2006 and the crutches were returned, "he'd just simply tell the nurse he wanted to renew the permit." [T-109].

When Mr. Cabness next returned for medical treatment on July 6, 2006 (having not made any sick call requests in the interim from June 26, 2006), he saw the nurse, was given ibuprofen for knee pain as well as the painful right Achilles, and his work release permit was renewed. When Dr. Supple next denied claimant's request for a no work permit on July 13, 2006, he did not examine him. Dr. Supple said that his reason for not renewing the work release permit was that to his knowledge Mr. Cabness "had been walking around" although the doctor was "not sure" whether claimant used crutches at that time. [T-112].

According to Dr. Supple, the AHR notes by the nurse show that claimant was scheduled for a return examination by Dr. Supple "within the month" when Mr. Cabness asked to see the primary care physician (meaning him) on July 14, 2006 concerning "right ankle discomfort" and the request was not granted. [T-112-113]. The nurse's note for July 14, 2006, as read by Dr. Supple, indicates "he's ambulatory, steady gait, wants no work. Dr. Supple denied no work request. No swelling noted. Motrin given with instructions." [T-112-113]. As noted above, claimant filed a grievance thereafter, with regard to not being able to see the doctor on July 13 and 14, 2006. [Exhibit 14].

On July 27, 2006 when Dr. Supple examined claimant for the first time since June 19, 2006 [see Exhibit Q, pages 66 and 64], he said that it was now appropriate to send him to an orthopedic specialist, because of the continued complaints of pain, and "physical findings." [T-116]. To examine the Achilles tendon that day, Dr. Supple said

"Well, I obviously looked at it and palpated the Achilles tendon. I'm not sure what else I did. I didn't write anything else down." [T-116].

The request for referral to an orthopedic specialist is entered into the computer. Actually being seen by the orthopedist, "depending on how busy the orthopedics is, it could be a week to a month or two." [T-117].

Claimant saw Dr. Holder on August 10, 2006, who diagnosed at least a partial tear of the Achilles tendon, and requested an MRI "to evaluate extent of tear" and noted that it may require surgery [Exhibit Q, page 588]. The direction from the orthopedist on August 10, 2006 did not include one that the claimant be completely immobilized, rather it directs "limited walking [and] stairs. No sports." [Ibid.]. Dr. Holder also seems to have been under the impression that claimant had been complaining of pain in the right Achilles for one month (when it had been since June 17, 2006), had been on bed rest for three weeks, and was using crutches. After the MRI was done on September 6, 2006, Dr. Holder saw Mr. Cabness on September 14, 2006. [Exhibit Q, page 664]. He diagnosed a "probable Achilles rupture" and prescribed surgery, in the form of a "[right] Achilles tendon reconstruction with tendon graft." [Ibid.].

On cross-examination, Dr. Supple agreed that his training in orthopedics had been while attending medical school about 33 years earlier, and from on-the-job training during private practice and now during his practice with DOCS. He agreed he was unfamiliar with the Thompson test and while he examined Mr. Cabness on June 19, 2006 by, in part, asking him to lift his heel up he had no recollection of whether such test was performed while standing, and had no recollection of placing Mr. Cabness on an examining table in the manner described by Dr. Hammerschlag. He acknowledged that direction for non-weight bearing lasted for one week. He also said that walking with a partially torn Achilles tendon "doesn't benefit . . . [the healing process] [but] it doesn't aggravate it necessarily either." [T-132]. He said that when he denied the work release permit on July 13, 2006 he did not examine claimant, nor did he have "the chart that day" containing Mr. Cabness' complaints on July 6, 2006 about pain in his right Achilles. [T-132-133]. The treatment provided overall to claimant was one week with crutches, immobilization with an ACE bandage for the same period, three weeks without having to work, and a direction to "walk flat-footed" and "not lift your heel." [T-144]. Claimant was examined by Dr. Supple once on June 19, 2006. After claimant filed a grievance, Dr. Supple examined him a second time on July 27, 2006.

Defendant's expert orthopedist, Dr. Richard Weinstein, agreed with the description of how the Achilles tendon functioned provided by Dr. Hammerschlag, but disagreed as to the tests that might be performed to evaluate whether a partial or complete tear is present, and what treatment is afforded. He opined that Dr. Supple's physical examination of Mr. Cabness on June 19, 2006 did not deviate from reasonable medical standards. He said that there are "a couple of different tests" for determining if the Achilles tendon is intact, in addition to the Thompson Test. [T-241]. "Simple Test is just having the patient move the foot up and down, which is testing and see if they can use that muscle. Another test would be a Single Leg Stance, see if they can stand up on it." [T-241]. When Dr. Weinstein was asked "if Dr. Supple performed the more common test of the standing or having him flex his ankle up and down, would that be a deviation from the . . . acceptable standard of care" he responded "no, those are the most common tests used."[T-241]. Notably, the only indication in the record of Dr. Supple's approach on June 19, 2006 is noted in the AHR as "can extend foot [with] difficulty (pain) ? partial tear Achilles" [Exhibit Q, page 66]. As to what test was actually performed when Dr. Supple examined claimant, Dr. Supple had the very limited recall noted above, and relied on his interpretation of the notes in the AHR made by the nurse two days earlier. [See T-104].

Dr. Weinstein said that conservative treatments should be used first to treat partial tears of the Achilles tendon, and that such conservative treatment was afforded by defendant by the use of crutches, and an ACE bandage, ibuprofen, and a no work order. Because claimant appeared able to walk (according to the notes), Dr. Weinstein opined that referral to an orthopedist was not warranted. He said:

"After a sprain, if someone is still having pain they may continue to use crutches. It's based on his symptoms, and how much it hurts . . . It's subjective. If someone had a complete Achilles rupture, they would have tremendous difficulty walking at all. So I don't think he'd be able to give up the crutches with a full tear of the Achilles." [T-234].

Dr. Weinstein acknowledged on cross-examination that for someone suffering from a "significant partial tear of an Achilles" it would take "anywhere from four to eight weeks to heal." [T-251-252]. Viewing the MRI [Exhibit 10], he said that it showed that "it could be" a complete tear of the Achilles tendon, but then said that the image taken might be wrong. [T-257]. Later, he said that the MRI was wrong. [T-260]. He agreed that scar tissue from a torn or partially torn Achilles would start to form in the "first couple of weeks." [T-258]. He would not agree that a "full thickness rupture" needed to be operated on necessarily, saying that a cast might be used, or it could be "put . . . in a boot to elevate the heel." [T-258].

He opined that the fact that Dr. Holder's pre-operative diagnosis was "a rupture" and that the post-operative diagnosis was "the same" was likely because "routinely surgeons give a pre-operative diagnosis and we just say 'same' for post-operative diagnosis." [T-261-262; see Exhibit 13]. Dr. Weinstein said that the "details" of the operative report show that the Achilles tendon appeared to be intact, and that the use of the word "appear" is just an indication of what is observed. [T-262]. The report indicates that the surgery Dr. Holder performed on November 30, 2006 was to remove stretched out portions of fibers and attach them, he said. [T-263]. Dr. Weinstein disagreed with the suggestion that the language in the report that "approximately seven millimeters of tendon and scar tissue were then resected" means that Dr. Holder noted scar tissue, saying "it could be attached to the tendon." [T-263]. Overall, he maintained that neither referral for an MRI was warranted on June 19, 2006, nor was surgery indicated, and that had claimant received surgery earlier than November 30, 2006 the ultimate condition of his right Achilles tendon would "probably . . . be about the same." [T-267].

When Dr. Weinstein performed a physical examination of claimant on November 16, 2009, he noted that Mr. Cabness has a 13-centimeter scar from the surgery, and that his range of motion on dorsiflexion (up towards the ceiling) is 5 degrees (or half of what he possessed in the right ankle); and he has 30 degrees plantar flexion (toward the floor) versus the 45 degrees he has on the left foot (or 15 degrees off). [T-266]. He agreed that it was a permanent condition, described as a "mild permanent partial disability." [T-242 and T-268]. Because Mr. Cabness does not have full range of motion in the right ankle, he might experience pain but could do "whatever he feels comfortable doing" in the way of sports participation. [T-269].

In this regard, Correction Officer Dominick Zaccagnino, a correction officer assigned to Mid-Orange Correctional Facility for 21 years, testified concerning his observations of claimant at the facility starting "towards the end of September, '09." [T-209]. Officer Zaccagnino was assigned to the gymnasium, as the "seven to three" gym officer. [T-207]. Claimant's work assignment while incarcerated at Mid-Orange - his last location before being paroled in March 2010 - had been as a recreation aide in the recreation program. He said Mr. Cabness was in the recreation area "pretty much every day except his days off" and his job included "maintaining the equipment . . . refereeing games, anything that the rec. supervisor would have him do." [T-208]. Officer Zaccagnino had observed claimant lifting weights, exercising, playing basketball, and moving equipment, chairs and tables from October 2009 through December 2009. He noted that Mr. Cabness played competitive basketball as well as pick-up games, all involving running, dribbling, and jumping.

On cross-examination he conceded that he did not have his eye on Mr. Cabness all the time, that some of the physical activities noted - such as sitting at a weight bench doing arm curls - had nothing to do with an Achilles tendon injury, nor was he aware that such injury was at issue.

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.

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 Hospital-Cornell Medical Center, 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)." Lowe v State of New York, 35 AD3d 1281,1282 (4th Dept 2006). A claimant ". . . need only offer sufficient evidence from which a reasonable person might conclude that it was more probable than not that the injury was caused by the defendant . . . (citations omitted) [and] need not eliminate every other possible cause of the resulting injury." Speciale v Achari, 29 AD3d 674 (2d 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). As with any testimonial evidence, expert testimony, too, is evaluated by this Court as the finder of fact.

Here, the experts disagreed on what tests may be performed during a physical exam, what course of treatment is appropriate, and when referral to a specialist is warranted. Upon consideration of the basis for their opinions, and the thoroughness of their examination of the medical and testimonial records available, as well as their respective demeanor, the Court finds that the testimony of claimant's expert was more persuasive than that of defendant's expert. See Speciale v Achari, supra, at 675;(5) c.f. Mancusi v Setzen, 73 AD3d 992 (2d Dept 2010);(6) lv denied 15 NY3d 708 (2010).

The Court found defendant's expert's testimony to be self-contradictory, and tailored, including his admissions that at a minimum claimant suffered a significant partial tear, and then his suggestion that the MRI that he conceded showed such an injury was wrong. He described as part of conservative treatment the use of a cast and immobilization for an extended period, when such treatment was not given, and explained away the findings in the orthopedic surgeon's operative report to the effect that the post-operative diagnosis was of a rupture by saying (without having inquired of Dr. Holder) that surgeons routinely write "the same." He said first that with an Achilles rupture the patient would not be walking, and then also said the patient would have "tremendous difficulty" walking. [T-234]. He insisted that no MRI was warranted earlier than almost two (2) full months after the initial injury to confirm the diagnosis, and similarly insisted that the permanent partial disability he found in the claimant's right Achilles tendon would "probably" have been the same even if surgery had been accomplished earlier than five (5) months after claimant was injured.

The Court finds the opinion of claimant's expert that the defendant departed from good and accepted medical practice in the manner in which Dr. Supple conducted the examination of the claimant initially, and in his failure to properly diagnose and refer claimant for treatment, and that this departure was a substantial contributing factor in causing the claimant harm.

The practice of medicine in a correctional facility setting is at the same level as one would find in a general or family practice. Nominally, a reasonable standard of care in such a setting requires taking an adequate history, having medical records available, and conducting a complete exam utilizing all the appropriate tools and tests, in order to have an adequate and reasoned basis for any judgments made. Larkin v State of New York, 84 AD2d 438, 445-446 (4th Dept 1982).(7) The inmate's 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].

In this case, even assuming a diagnosis of a partial tear was appropriate, and that conservative, non-surgical options would appropriately be afforded, the evidence here shows that Mr. Cabness was not provided with even that conservative level of care. There was no real immobilization of the ankle, crutches were only prescribed for a total of one week, and Mr. Cabness was left to ambulate around the facility by hopping within three weeks of his injury, even under the most generous reading of the facts.

By the same token, Mr. Cabness is not a shrinking violet. His complete medical records show that he suffered from multiple medical conditions including diabetes, seizures, knee pain, shoulder pain, sight limitations, for which he sought treatment and received it throughout his incarceration. To some degree, he did not pursue treatment opportunities that might have been afforded him had he more aggressively sought them, such as seeking renewal permits for the use of an ACE bandage or crutches. Given that he is the layperson, and medical personnel were the ones in the position to prescribe what was required, his contributory fault is minimal, however.

Accordingly, the Court finds that the State of New York is 80% responsible for the past pain and suffering and future pain and suffering proximately caused by the inadequate medical treatment claimant received while in State custody, including a failure to maintain proper records, a failure to perform a proper medical examination, a failure to timely refer claimant for appropriate diagnostic testing and to a specialist, thereby requiring more extensive surgery and reducing the functionality and range of motion in his right calf muscle and ankle.

Additionally, any present limitations are difficult to separate from what his prior condition might have been, given his presentation to medical personnel with medical problems in the ankle on at least two prior occasions (even if the Achilles tendon, specifically, was not at issue). With no record made of what Mr. Cabness' prior range of motion might have been, there is no basis to compare it to any post-injury limitation. As noted, claimant was witnessed engaging in recreational sports, including basketball, after this incident. In his own testimony Mr. Cabness indicated that he had pain from time to time, could not lift heavy things because of a fear of putting pressure on his foot, and that he did not engage in much sporting activity.

Based on the foregoing, and upon consideration of the nature and extent of the permanent impairment sustained by claimant, the Court finds that reasonable compensation to claimant is in the amount of $45,000.00 ($30,000.00 for past pain and suffering, and $15,000.00 for future pain and suffering), to be reduced by 20% given Mr. Cabness' own contributive fault, and the Court's determination that the defendant is 80% responsible for claimant's injuries.

Accordingly, with regard to Claim Number 113215, the Court hereby awards claimant the sum of $36,000.00, together with any filing fee actually paid [see Court of Claims Act 11-a(2)] and interest from the date of this decision and thereafter to the date of entry of judgment.

Let Judgments be entered accordingly.

December 6, 2010

White Plains, New York


Judge of the Court of Claims

1. Quotations are to the transcript, indicated as [T - xx], or trial notes, unless otherwise indicated. Here, [T- 17].

2. In context of defendant's summary judgment motion, "The plaintiff submitted an expert's opinion that the brick wall behind the basket should have been padded because the out-of-bounds area beyond the endline of the basketball court was less than the recommended minimum safety standard of three feet. This evidence was sufficient to raise a triable issue of fact as to whether the dimensions of the court and the lack of padding created a dangerous condition over and above the usual dangers inherent in the sport . . . (citations omitted)."

3. The number has been written over another number, so it is unclear whether "4" is the actual number written, and what number was written originally.

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 claimants 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. "Where conflicting expert testimony is presented, a . . .[fact finder] is entitled to accept one expert's opinion and reject that of another . . . (citation omitted) . . . The . . . [fact finder's] resolution of conflicting expert testimony is entitled to great weight, as it is the . . .[fact finder] that had the opportunity to observe and hear the experts . . .(citations omitted). Here, the . . .[fact finder] resolved the conflicting expert testimony in favor of the plaintiffs expert, finding that the defendant departed from good and accepted medical practice in the manner in which he conducted the examination of the plaintiff, and that this departure was a substantial contributing factor in causing the plaintiff's injuries."

6. " 'The . . .[fact finder's] resolution of conflicting expert testimony is entitled to great weight, as it is the

. . . [fact finder] that had the opportunity to observe and hear the experts' . . . (citation omitted). Here, the . . . [fact finder's] determination that Dr. Setzen did not depart from good and accepted medical practice in not diagnosing the plaintiff's sinus cancer sooner was based upon a fair interpretation of the evidence presented at trial and, thus, should not be disturbed."

7. "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 a month of complaints of worsening headache symptoms.