New York State Court of Claims

New York State Court of Claims
KROEMER v. THE STATE OF NEW YORK, # 2010-031-506, Claim No. 105498


Defendant deviated from acceptable medical standards by negligently injecting corticosteroid directly into Claimant's Achilles tendon, which proximately caused partial rupture of tendon. Award in Claimant's favor of $350,000.00

Case information

UID: 2010-031-506
Claimant(s): KENT KROEMER
Claimant short name: KROEMER
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 105498
Motion number(s):
Cross-motion number(s):
Defendant's attorney: HON. ANDREW M. CUOMO
New York State Attorney General
Assistant Attorney General
Third-party defendant's attorney:
Signature date: March 3, 2010
City: Rochester
Official citation:
Appellate results:
See also (multicaptioned case)


Kent Kroemer ("Claimant") filed claim number 105498 on January 22, 2002, alleging a cause of action for medical malpractice that allegedly occurred on July 8, 2001, while Claimant was an inmate in the custody of the New York State Department of Correctional Services. I conducted the unified trial of this claim between October 15 and October 20, 2009.

In his testimony, Mr. Kroemer, a serious and experienced runner, described how he was hoping to qualify for the Olympics in the marathon when he was arrested and incarcerated in 1988. Despite his incarceration, Claimant continued to train, both to stay ready for competitive running upon his release, and as a way of coping with the pressures of being incarcerated. In the Spring of 2001, while at Groveland Correctional Facility ("Groveland"), Claimant began to experience pain in his right Achilles tendon. He sought medical treatment from Defendant and was diagnosed as having tendonitis/bursitis. Being aware of issues that commonly affect avid runners, Mr. Kroemer took an active role in his treatment. After seeking permission from Defendant, he was able to have his own private physician visit him in prison and inject his right bursa with a corticosteroid. The purpose of this injection was to reduce the inflamation, and thereby the pain, in the Achilles tendon region. According to Claimant, the injection did provide relief for him. Shortly thereafter, however, Mr. Kroemer began to suffer from similar symptoms in his left Achilles tendon. He was again diagnosed with tendonitis/ bursitis and on July 8, 2001, he again sought treatment in the form of a corticosteroid injection into his bursa.

This time, however, Dr. Dar, who had been caring for Claimant at Groveland and who had observed the previous injection into Claimant's right bursa, determined that he would perform the injection. Both parties agree that Dr. Dar not only injected Claimant's bursa with the powerful corticosteroid Kenalog 40, but that he also injected Kenalog 40 directly into Claimant's left Achilles tendon. Claimant testified that he immediately yelled out because he was aware that Kenalog 40 should not be injected directly into the tendon. He stated that, for several weeks after the injection, he refrained from training or strenuous activity because the tendon "just didn't feel right" after the injection.

Claimant testified that approximately six weeks later on August 24, 2001, he attempted to reach up for something in his cell and as he went up onto his toes he heard a "pop" and felt a "searing pain" in his left Achilles tendon. Claimant asserts that his left Achilles tendon partially tore at that moment. He testified that he was unable to put any pressure on his left foot and that two inmates assisted him to the infirmary where he was given crutches. Claimant's theory in this case is that this partial tear was the direct result of Dr. Dar's injecting Kenalog 40 into his Achilles tendon.

I note that both Claimant's and Defendant's experts agree that it was improper for Dr. Dar to inject Kenalog 40 directly into Claimant's left Achilles tendon on July 8, 2001. This is so because Kenalog 40 can damage the tendon and cause it to tear. Defendant argues, however, that Claimant did not suffer a tear of his Achilles tendon as a result of the injection. Defendant asserts that Claimant merely continued to suffer from tendonitis and bursitis, conditions that were not causally related to Dr. Dar's improvident injection of Kenalog 40 into Claimant's Achilles tendon.

On his direct case, Claimant called Dr. Mark Durkin, a podiatrist who had been retained by the State to treat inmates at Groveland Correctional Facility. Dr. Durkin evaluated Claimant on October 21, 2001, shortly after the alleged tear of his Achilles tendon. Dr. Durkin determined at that time that Claimant had, in fact, suffered a partial tear of his left Achilles tendon. At trial, Dr. Durkin testified that his opinion in this regard has not changed since the 2001 examination. Further, he opined that this tear was causally related to the injection of Kenalog 40 directly into Claimant's tendon on July 8, 2001. He testified that he could both see and feel the spot on the medial aspect of Claimant's tendon where it partially tore.

Claimant also called Dr. Louis D. Nunez, a board-certified orthopedic surgeon. Dr. Nunez described his experience in treating athletes and injuries such as those at issue in this matter. He described Claimant's symptoms and how one would normally treat them. He also described Kenalog 40 and its uses. According to Dr. Nunez, it was absolutely inappropriate for Dr. Dar to inject Kenalog 40 directly into Claimant's tendon because of the increased risk of a tear or complete rupture.

He then testified concerning the nature of Claimant's injury. According to Dr. Nunez, there is no doubt that Claimant suffered a partial tear of his left Achilles tendon on August 24, 2001. Dr. Nunez also described the process by which Kenalog 40, an anti-inflammatory, would weaken a tendon if injected directly into it. He stated that, in his opinion, this partial tear was caused by Dr. Dar's negligent injection of Kenalog 40 directly into Claimant's left Achilles tendon on July 8, 2001.

Claimant also called as a witness Mr. Scott Bagley, a well-known local runner whose accomplishments over his 35 years of racing are quite impressive. Mr. Bagley informed the Court on issues related to running, including training, stress, dealing with injuries, and how the body reacts when injuries prevent one from training. He described how runners experience a release of endorphins during training and he described a sort of malaise or depression that a runner feels when an injury prevents him from training. On cross-examination, he conceded that most runners, if they have been at it long enough, suffer injuries that sideline them for some length of time.

In defense of this action, Defendant called Dr. Jeffrey C. Gundel. Dr. Gundel is also an orthopedic surgeon whose knowledge and expertise clearly qualified him to testify concerning the nature of Claimant's injuries and the appropriateness of the treatment provided to him. Dr. Gundel reviewed all of Claimant's relevant medical records and examined Claimant personally on December 20, 2008. His written report relating to that examination was admitted into evidence as Exhibit G. Both in his testimony, and in Exhibit G, the doctor concedes that it was inappropriate for Dr. Dar to inject Kenalog 40 directly into Claimant's left Achilles tendon. Interestingly, however, not only did he opine that the injection did not cause the partial tear in Claimant's Achilles tendon, he opined that Claimant has never suffered such an injury. According to Dr. Gundel, tears or partial tears in an Achilles tendon can be difficult to diagnose. He opined that the "divot" or "hole" in Claimant's tendon that could be seen and felt was not, in fact, evidence of a tear, but rather evidence of the wasting of fatty tissue outside of the tendon. This wasting, according to Dr. Gundel, was normal at the site of an injection of Kenalog 40 or other corticosteroid.

Perhaps more interesting than the fact that two accomplished orthopedic surgeons disagreed over whether or not Mr. Kroemer actually suffered a partial tear of his Achilles tendon is the fact that both doctors reviewed MRI reports of Claimant's left ankle taken on June 1, 2002, and both found support for their diametrically opposed conclusions in that report. Dr. Gundel testified convincingly about how the fibers of the Achilles tendon are "interdigitated" (he described and demonstrated this by intertwining his fingers). He stated that when the Achilles tendon tears, these fibers tear apart and become frayed. Accordingly, he opined that any tear of Claimant's Achilles tendon should be readily apparent on the MRI studies (Exhibit C). Dr. Gundel stated that the tendon appeared intact in the MRI images and that he saw no evidence of this tearing or fraying.

I found Dr. Gundel very knowledgeable, and his testimony concerning how one should easily see a tear in the MRI studies, quite logical and convincing. Although Dr. Gundel is not a radiologist and the radiologist's report indicated a remote Achilles tendon injury (Exhibit 7), Dr. Gundel opined that this was merely the cruciform swelling that appeared several centimeters further up the tendon and was related to scarring from the inflammation caused by tendonitis, not from a tear caused by the Kenalog 40. He stated that because he did not see evidence of fraying from the torn interdigitated fibers as mentioned above, it was his opinion that Claimant had not suffered a partial tear of his left Achilles tendon at any time prior to the 2002 MRI studies.

Dr. Nunez, however, in no less convincing manner, described how there is a fundamental difference in the way a tendon tears naturally and the way a tendon tears because it has been exposed to a corticosteroid, such as Kenalog 40. Dr. Nunez indicated that the Kenalog 40 would act almost as an acid on the fibers, causing them to break down across a level plane. There would, therefore, be no tearing and fraying of the interdigitated fibers as described by Dr. Gundel, but rather there would be a smoother filling in of scar tissue. According to Dr. Nunez, the 2002 MRI report was perfectly consistent with his opinion that Claimant sustained a partial tear of his left Achilles tendon on August 24, 2001 as a direct result of the injection of Kenalog 40 directly into the tendon by Dr. Dar.

It is well settled that the State has a duty to provide reasonable and adequate medical care to the inmates of its correctional facilities (Rivers v State of New York, 159 AD2d 788, lv denied 76 NY2d 701). The State may be cast in liability for injuries that result because its physicians fail to use ordinary and reasonable care or to exercise their best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field (Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804).

To establish a prima facie case of liability in a medical malpractice action, a claimant must prove: 1) the standard of care in the locality where the treatment occurred; 2) that the defendant breached that standard of care; and 3) that the breach of the standard was the proximate cause of injury (Berger v Becker, 272 AD2d 565). To sustain this burden, a claimant must present expert testimony that the defendant's conduct constituted a deviation from the requisite standard of care (Berger v Becker, 272 AD2d 565, supra; Koehler v Schwartz, 48 NY2d 807).

Based upon the exhibits and record before me, I find that Claimant has sustained his burden of demonstrating that the injection of Kenalog 40 directly into his Achilles tendon was a deviation from the appropriate standard of medical care and that this injection proximately caused the partial tear of Claimant's Achilles tendon on August 24, 2001. Accordingly, I find that Defendant is 100% liable for Claimant's injuries.

With respect to damages, the record reflects that Mr. Kroemer was a serious and elite distance runner. Just how gifted a runner Claimant was is hard to quantify. There was no evidence that Claimant would have made his living as a runner. However, the records and testimony clearly demonstrate that Mr. Kroemer was an avid, passionate and deeply committed runner. In fact, Mr. Kroemer was attempting to qualify for the United States Olympic team in the marathon when his prison term cut short his aspirations in that regard.

Claimant ran almost daily during his incarceration. It was clear from his testimony and demeanor that running helped him cope with the challenges of being imprisoned. He also apparently so impressed certain members of the Defendant's correctional staff that they assisted him with his running. They helped Claimant with matters such as measuring distances, planning his courses, timing him and pacing him during his runs. Mr. Kroemer described how the Department of Correctional Services sponsored a series of statewide inmate races to correspond with the running of the New York City Marathon. These races, of which there were four or five according to Mr. Kroemer, were of distances ranging from 5 kilometers (3.1 miles) to a full marathon (26.2 miles). Mr. Kroemer's uncontradicted testimony was that, prior to his injury, not only did he win every race at every distance, but that he set the New York State prison record in each distance, and the national prison record in the marathon. Claimant candidly testified that he does still run and run well. In fact, he has won or placed well in numerous races over the past few years since his release from custody. These were of relatively short distances, however, and he testified that he can no longer run far, or train as hard or as fast as he would like because of the pain that steadily increases in his left Achilles tendon. I note that Dr. Nunez clearly described how the scar tissue that fills in at the location of the torn tendon is neither as strong nor as flexible as the natural tendon itself. He stated that this can severely limit a runner's ability to run long distances and train intensely, just as described by Claimant.

Mr. Kroemer, of course, had to endure the pain and suffering associated with a torn Achilles tendon, followed by months of being incapacitated and unable to run. In addition to this, Claimant's ability to run, and accordingly his enjoyment of his favorite avocation, has been significantly diminished. Claimant is awarded $250,000.00 for past pain and suffering and he is awarded $200,000.00 for future pain and suffering.

Accordingly, Claimant is awarded a total of $450,000.00 on claim number 105498.

Any and all other motions on which the Court may have previously reserved, or which were not previously determined, are hereby denied.

To the extent Claimant has paid a filing fee, it is recoverable pursuant to Court of Claims Act 11-a (2).


March 3, 2010

Rochester, New York


Judge of the Court of Claims