New York State Court of Claims

New York State Court of Claims
GRAY v. THE STATE OF NEW YORK, # 2019-053-024, Claim No. 126254


Following a unified trial of a former inmate's claim for negligence, medical negligence and medical malpractice, the Court finds the State 100% liable for their failure to diagnose and treat claimant's triceps tendon tear. The Court awards $400,000, consisting of $150,000 for past pain and suffering and $250,000 for future pain and suffering.

Case information

UID: 2019-053-024
Claimant(s): CHARLES GRAY
Claimant short name: GRAY
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 126254
Motion number(s):
Cross-motion number(s):
BY: Elmer Robert Keach, III, Esq.
Maria K. Dyson, Esq.
Defendant's attorney: HON. LETITIA JAMES
New York State Attorney General
BY: Darren Longo, Esq.
Mary Bednardz, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: January 21, 2020
City: Buffalo
Official citation:
Appellate results:
See also (multicaptioned case)


On September 28, 2014, claimant Charles Gray injured his left elbow while participating in a football game during his incarceration at the Gowanda Correctional Facility (Gowanda). Claimant alleges that he suffered a triceps tendon tear that was not diagnosed and as a result of a delay in the treatment of this injury, he sustained permanent damage to the triceps muscle and of the use and function of his left arm. A claim was filed on June 5, 2015 and served upon the Attorney General of the State of New York on June 8, 2015 alleging negligence, medical negligence, medical malpractice, negligent infliction of emotional distress, negligent supervision and/or retention of an employee, res ipsa loquitor, and prima facie tort. An answer was filed on July 17, 2015 by defendant State of New York denying the allegations in the claim.

A unified trial of this claim was held in Buffalo on July 15, 16 and 17, 2019. During the course of the trial, testimony was received from the claimant, Jenia Wagner, M.D., Paula Bozer, M.D., and Ruth Wittrock, R.N., as well as from claimant's expert witness, Bruce J. Goldberg, M.D. and the defendant's expert witness, Daniel G. DiChristina, M.D. Following the trial, the parties requested and were granted until November 22, 2019 to prepare and submit post-trial memoranda.


The claimant testified that on September 28, 2014, he was playing in a flag football game at Gowanda when he collided with another inmate, whose shoulder hit the top of claimant's elbow. He testified that at impact, he felt what he described as an immediate pop, "like a rubber band going off in my arm."(1) He stated that the elbow bruised immediately with a lot of inflammation and was extremely painful (TT: 92-94). Claimant asked a correction officer if he could go to the infirmary and was told to return to his housing unit as an ambulance had just pulled up to the infirmary for another inmate. Claimant filled out a sick call slip and was seen the following day at about 6:00 a.m.

Claimant testified that he told the nurse in the infirmary that it felt like the tendon had come off his elbow. He stated that his arm was severely swollen and was black and blue from above his wrist to just below his shoulder. The nurse examined him and sent him back to his housing unit, telling him that he would be called back later that day (TT: 94-96). The Gowanda health records note that claimant expressed complaints of pain in his left elbow from an injury during a football game, claimant was unable to extend his left arm fully, and there was swelling and a decreased range of motion.(2) Claimant was recalled to the infirmary at 11:00 a.m. and an x-ray was taken of his left elbow. He testified that the nurse gave him ibuprofen, stated that he had bruising and that there was nothing wrong with him. Claimant testified that over the next couple of days his arm became "severely black and blue and the swelling was ridiculous." On October 2, 2014, claimant was seen in the infirmary by Dr. Wagner and he told her that it felt like his tendon was not attached to his elbow (TT 96-100). The Gowanda health records for that date note that Dr. Wagner identified bruising spreading down his left arm and that he exhibited a decreased range of motion. Dr. Wagner diagnosed left elbow pain, bursitis and a contusion.(3) Claimant was seen a second time that day utilizing Telemed, where he sat in front of a TV and spoke to a doctor at ECMC. He was then transported to ECMC, where an x-ray was taken. Claimant requested an MRI, but one was not taken, he was examined and transported back to Gowanda (TT: 100-103).

Claimant was not seen again by the medical staff at Gowanda for 14 days. During that time period, claimant testified that he put in three sick call slips because the symptoms in his left arm had worsened and he was experiencing problems performing normal daily activities. Claimant's next visit to the infirmary was on October 16, 2014. The medical record for that date (Exhibit 9) states that claimant's complaints were no different and that he feels he should have an MRI. Claimant testified that the nurse gave him no response to his request for an MRI and he then put in another sick call slip to see Dr. Wagner. During that time period, claimant's job switched from the commissary to the recreation yard, a job he stated that he was not physically able to perform as he could only utilize his right arm. Claimant testified that he continued to put in sick call slips during this time period and also filed a grievance due to what he considered to be a lack of medical attention to his untreated injury. Claimant returned to the infirmary on October 24, 2014 and the medical record indicates that now about one month following the incident, he was still experiencing swelling and bruising. He was prescribed Motrin, provided a work restriction for three days and told to return to the infirmary in one week.(4) Claimant testified that his arm was still severely black and blue and that his triceps felt like it was sliding down his arm (TT: 103-110).

The next visit to the infirmary was on November 10, 2014. Claimant testified that he told the nurse on this date that he was positive that the tendon was not attached to his left elbow. The medical record for that date by Dr. Wagner now indicates "triceps atrophy?". Claimant stated that Dr. Wagner indicated to him that all he had were bruises and bursitis and that he would be fine. He stated that he was provided with an undersized compression bandage for his injured arm that caused inflammation and fluid up to his elbow which was very painful. Claimant testified that he then filed a grievance with DOCCS (Exhibit 66). He testified that his arm had remained painful throughout this two month period. Claimant testified that Dr. Wagner told him that her request that he be referred to an orthopedist had been denied. He testified that Dr. Wagner then referred him to physical therapy. Claimant testified that when the physical therapist first examined his arm, she told him that the tendon was not attached to his elbow and that she went and told Dr. Wagner (TT: 110-116).(5) The medical record for December 5, 2014 notes that there was no strength in claimant's left triceps (Exhibit 26).

Claimant first saw an orthopedic specialist, Dr. Philip Stegemann, on January 7, 2015. Dr. Stegemann's record indicates a diagnosis of a triceps rupture in the left arm and that he discussed a surgical repair but since claimant was to be released in 21 days, he wanted to receive treatment near his home in Albany (Exhibit 8). Claimant testified consistent with these notes, stating that Dr. Stegemann told him that the triceps muscle had deteriorated and that the surgical procedure to reconnect the triceps muscle now had only a 50% chance of success. Claimant testified that he was released on February 3, 2015 and was referred to an orthopedic specialist in Albany on February 9, 2015 (TT: 118-123).

The medical record of the Albany orthopedist, Daniil L. Polishchuk, MD states that he also found a left triceps tendon rupture and further states that "I am not certain if he is ever going to recover function in that muscle group unless it is surgically repaired. On the other hand, it has been four months and he may never have good function in triceps muscle again." (Exhibit 59) Dr. Polishchuk then referred him to a specialist in Albany for further evaluation. Claimant was then seen on February 11, 2015 by Lee A. Kaback, MD. Dr. Kaback similarly concluded that claimant had a left triceps rupture and recommended an MRI to evaluate the triceps tear and the degree of retraction (Exhibit 60). Claimant returned to Dr. Kaback on February 23, 2015 following the MRI. Dr. Kaback stated that the MRI confirmed a full-thickness triceps tear that had retracted proximally 3 cm from the triceps insertion. He recommended a surgical procedure that would require a graft from his Achilles tendon (Exhibits 61 and 62). Claimant testified that following surgery, he was in extreme pain and passed out twice. He testified that he experienced a high level of pain for two months and then a lower level of pain existed over the next eight months. During this time period, claimant was restricted from lifting and wore an arm brace (TT: 126-130). A record of an office visit to Dr. Kaback seeking pain relief medication was received in evidence (Exhibit 63). Claimant also identified numerous photos depicting the condition of his arm prior to surgery, during surgery and following surgery, which were also received in evidence (Exhibits 48-56).

Claimant testified that following surgery he was unable to straighten or extend his arm 100% and that he was unable to resume certain activities that he previously enjoyed prior to his injury. These activities included bow hunting, mixed martial arts fighting, strength training, wrestling coach, riding his motorcycle and certain household activities. He testified that his present complaints include pain in his left arm, the surgical area is sensitive to the touch, and he is unable to lift objects over his head. Claimant also testified that his dominant hand is his left hand and he is now able to lift only 50% of the weight he could formerly lift (TT: 131-137). Claimant demonstrated to the Court where the surgical scars are located on his left arm. He also testified that he has trouble sleeping and has to adjust his position so as to not sleep on his left side. Claimant testified that he formerly performed construction work operating a jackhammer that he is no longer able to do because he lacks the required strength in his left arm (TT: 137-140).

On cross-examination, claimant testified that when he collided with the other inmate during the football game the inmate's shoulder hit his left elbow and he immediately felt a pop and the elbow area swelled up and was noticeably larger. He also testified that when he saw the nurse the following morning that it was swollen and the bruising was "really red". He reiterated that after five days, the swelling was the size of a softball around his elbow (TT: 141-146).


Dr. Wagner testified that she was employed by DOCCS from February 2014 to February 2015 as the medical director of the clinical medical department at Gowanda. Dr. Wagner is a board certified internist (TT: 17-19). She testified that treating a triceps tendon rupture was outside the scope of her practice as a primary care physician. Dr. Wagner testified that DOCCS requires that approval be obtained from Albany before an inmate may be referred to a specialist. In certain instances, the request for a specialist goes through an outside contractor called APS or through the regional medical director, Dr. Paula Bozer (TT: 25-33).

Dr. Wagner testified about the ambulatory health record dated September 29, 2014 which was completed by Nurse Jahnke (Exhibit 9). This record indicates that Dr. Wagner saw claimant on that date and examined his left elbow and determined that the injury was outside the scope of her practice and recommended that he see an orthopedist. She testified that this recommendation was overruled by Albany, who instead recommended that claimant be sent to the emergency room. Dr. Wagner presumed that the emergency room at Erie County Medical Center (ECMC) would have a physician in the department of orthopedics examine claimant or do imaging. She agreed that the injury that claimant presented with that day was, in fact, a complete rupture of the triceps tendon in his left arm. She also agreed that if claimant had been examined by an orthopedist at ECMC that the specialist would have diagnosed this very injury. Dr. Wagner identified the specialist referral form completed for claimant which was denied. On October 2, 2014, Dr. Wagner testified that her colleague, Dr. Greco, received a call from Albany (central office) seeking a consult for an urgent orthopedic evaluation for claimant (TT: 39-44, Exhibit 9 and 12).

Dr. Wagner testified that she was aware of the discharge instructions for claimant from ECMC which stated that claimant was to return to ECMC if "pain or swelling persists or worsens; any new or concerning symptoms develop - numbness, tingling, loss of sensation or loss of range of motion" (Exhibit 6). She agreed that claimant continued to experience pain and swelling in his left arm for several months, as well as loss of range of motion and that despite the presence of these symptoms, claimant never returned to ECMC until January 2015 when he was examined by an orthopedic surgeon, Philip Stegemann, M.D. Dr. Wagner testified that she continued to follow claimant with two diagnoses, traumatic bursitis or a tendon rupture. Dr. Wagner was then shown the record of the physical therapist dated December 5, 2014, who after examining claimant's left elbow concluded that there was an injury to the triceps tendon, which she agreed was the first time that a DOCCS employee had diagnosed a tendon tear (Exhibit 26 at page 11). She agreed that in order to perform an end-to-end repair of a triceps tendon that it had to be done within three to four weeks following the injury (TT: 44-50).

Dr. Wagner could not recall whether she ever palpated claimant's elbow after his initial visit immediately after the injury occurred and agreed that her records did not indicate that she had palpated (TT: 50-55). Dr. Wagner was referred to a consultation request form dated November 14, 2014 in which she requested an orthopedic evaluation, which was denied and she was told to resubmit utilizing the "routine" criteria. She testified that the soon criteria meant that the inmate was to be evaluated within one to two weeks. Dr. Wagner agreed that denying the orthopedic evaluation on this date placed claimant outside the eight-week window for corrective surgery to be performed on his tendon tear (TT: 69-73, Exhibit 32). She was then shown an email from Nurse Administrator Roth to Ms. O'Connell (Exhibit 29) which stated that "[o]n 11/10/14, he (claimant) was seen by Dr. Wagner who placed another orthopedic consult. This was referral was denied because the doctor did not respond to the pended referral, [sic]" to which Dr. Wagner testified that she did not recall not responding (TT: 77-78). Dr. Wagner concluded her direct examination by offering the opinion that DOCCS delayed care to claimant but if they approved the orthopedic consult at the time that she requested it, the care would have been provided sooner. She agreed that the standard of care for a primary care physician when claimant suffered this injury in September 2014 was to refer him to an orthopedist to evaluate the injury and that by failing to do so, "[t]he standard of care was not followed" (TT:85-87).


Dr. Bozer testified that she is employed by DOCCS as a regional medical director for the ten correctional facilities in Western New York and has held that position since 2012. She testified that Dr. Wagner was the health service director for Gowanda and operated an outpatient clinic. Dr. Bozer stated that her role was to oversee the regional medical unit that was comprised mostly of patients that are separate from the general prison population. She confirmed that in her role she reviews consultation requests that are denied and serves as a second level of review. She also agreed that her review is final unless the provider chooses to take it a step further and contact DOCCS chief medical officer (TT: 153-159). Dr. Bozer testified that if a provider chooses a routine level of care, that is to be scheduled within 30 days, whereas urgent care is to be scheduled in less than two weeks and emergency care within 48 hours. She agreed that when it comes to diagnosing a tendon rupture, such as a triceps tendon rupture, that it would be outside the scope of practice of a facility health service director to decide a course of treatment without an orthopedic referral. Dr. Bozer testified that in such situations they generally would let the outside consultant diagnose and recommend the form of treatment. She also agreed that in such situations, it is advisable to have tendon ruptures seen by an orthopedic specialist within 15 to 30 days or sooner (TT: 159-162).

Dr. Bozer testified about the request for orthopedic referral form (Exhibit 31) submitted for claimant on October 2, 2014. The form was computer generated and submitted by Dr. Wagner. On this form Dr. Wagner requested an orthopedic consultation because she suspected a tendon rupture and indicated that the need for this service was "urgent," meaning that the services are required in less than a week. Dr. Bozer agreed that the consult was approved on the same day by APS and that it was subsequently denied. She indicated that it was denied subsequently based on the fact that if claimant needed emergency care as indicated, he should be treated directly in the emergency department (TT: 164-168). Dr. Bozer testified that on the second orthopedic request by Dr. Wagner dated November 10, 2014 (Exhibit 32), she stated that the need for that service was "soon," meaning within two weeks. The form indicated that the claimant described hearing a snap in his arm, that the initial diagnosis was traumatic bursitis, that x-rays showed no fracture and that he was evaluated in the ER and they diagnosed traumatic bursitis. Dr. Wagner indicated on the form that although somewhat improved four weeks post-injury, he was still having problems with extension and was experiencing increasing weakness in his left arm. Dr. Bozer testified that based upon the diagnosis in the ER, she was working under the belief that claimant had traumatic bursitis. Dr. Bozer agreed that the presence of swelling in the arm would interfere with a diagnosis of a tendon rupture and that it would not be shown on an x-ray. Dr. Bozer testified that she was not aware at the time she reviewed this form that an MRI had not been performed at ECMC (TT: 169-173). Dr. Bozer testified that for this consultation request form (Exhibit 32) to reach her, APS would have also reviewed and denied it. She explained that the additional comments form (Exhibit 30) indicates comments between Dr. Wagner and APS regarding this request. Dr. Bozer testified that the determination whether to approve the consult in this instance was not interrupted by a bureaucratic process but that they were applying DOCCS standard review process. She stated that Dr. Wagner made a correct diagnosis and

"[u]nfortunately, when she was asked to send him to higher level of care expeditedly [sic], the emergency department . . . returned with a diagnosis of not a tendon rupture, but a bursitis. So the working diagnosis at the point in time he returned from the ER is that he has a bursitis. Now, whether or not Dr. Wagner did not believe that, I don't know. She did not indicate that in her consult, nor do I recall a phone call. But I'd have to guess that she's still suspecting a triceps rupture. I don't know, there's no way for me to know." (TT: 177-183).

Dr. Bozer also testified that the additional comments form (Exhibit 30) indicates that the initial referral was made on November 10, 2014 and APS made a second attempt three days later to obtain information from Dr. Wagner because she did not respond to their first request for information. The final entry on the additional comments form was that since APS had only been provided with information that requested a consult for a traumatic bursitis six weeks earlier, they did not believe an orthopedic consult within two weeks was necessary (TT: 184-185). Dr. Bozer testified that the orthopedic consult was not denied, just the two-week time frame sought by Dr. Wagner six weeks following the injury. Dr. Bozer further stated that all they could go by was what Dr. Wagner indicated on the form and that if Dr. Wagner had called and told her that she suspected a triceps tear, the urgent consult request would have been approved (TT: 192-193). She agreed that on January 7, 2015, the date that claimant was evaluated by Dr. Stegemann, an orthopedic surgeon, was 32 days after the consultation request was made by Dr. Wagner and that this was two days beyond DOCCS urgent care standard. She agreed that regardless of the reason, there was a failure to get claimant the type of treatment that he needed for a triceps rupture within the 15 to 30 day treatment window for this type of injury and that if Dr. Wagner had called her, she would have approved the orthopedic consult request for urgent care (TT: 201-203). Dr. Bozer confirmed that Nurse Wittrock, who completed the ER sheet, did not report to the ER that there was a suspected triceps rupture as requested in the original urgent consultation request that was prepared by Dr. Wagner, however, she did not consider this to be poor documentation (TT: 206-213). Dr. Bozer's direct testimony concluded with her stating her belief that "glitches" took an extra three days to obtain an orthopedic consult approval for claimant and that DOCCS tried to get him appropriate timely care, that any denial was in expediting care, not delaying care. It was her belief that the ER specialist made the wrong diagnosis, not DOCCS. She further testified that if Dr. Wagner truly believed that claimant had a triceps tear, her failure to call Dr. Bozer resulted in delaying his care as well as the diagnosis in the ER and that in her opinion, triceps tear are missed for a variety of reasons. Dr. Bozer did not believe that Dr. Wagner's failure to communicate her belief that there was a triceps tear violated the standard of care (TT: 214-216).


Nurse Wittrock is a registered nurse employed with the New York State Office for People with Developmental Disabilities and in 2014 and at the time of the subject incident, she was employed by DOCCS at Gowanda. She explained the sick call procedure for inmates at that time, testifying that inmates would submit sick call slips the night before for any kind of health problems for which they wanted to be seen the following day. She testified that she does not have an independent recollection of seeing claimant at sick call and could not identify him in the courtroom (TT:6-11).(6)

Nurse Wittrock indicated that a consultation request would be prepared and accompany an inmate who was being sent to the ECMC emergency room. She testified that if she was evaluating an inmate at sick call in the facility infirmary, she would complete an AHR, an ambulatory health record (TT:12-14). Nurse Wittrock testified that she had been a registered nurse for DOCCS for 20 years. She did not have experience or receive any training on how to diagnose any type of tendon rupture but she did with respect to muscular injuries. Nurse Wittrock was familiar with palpation but not specifically as it relates to a tendon rupture. She identified her signature on the AHR for October 2, 2014 (Exhibit 9) when the Central Office called and wanted claimant evaluated due to an urgent consult for orthopedic referral. The record she prepared indicated that the left arm had swelling at the elbow and below, sensation was intact, no numbness or tingling, range of motion testing caused discomfort, and claimant rated his pain at a 4 out of 10 while at rest and an 8 out of 10 with activity (TT:14-19).

Nurse Wittrock testified that it was her responsibility to communicate to the emergency room what the purpose was for an inmate patient going there. She identified her entry in the AHR (Exhibit 9) for October 16, 2014, testifying that claimant stated that his arm was no different and feels he should have an MRI. She observed that the left arm was swollen in the elbow area. Nurse Wittrock had not seen the consultation request form prepared by Dr. Wagner and was not aware of any suspicion that claimant had a triceps tear. She testified that had she known, she would have told the on-call doctor who approved the emergency room consultation (Dr. Greco) and this potential diagnosis would have been transmitted to the emergency room (TT: 25-26).


Dr. Goldberg is a board certified orthopedic surgeon who was retained by claimant to testify as an expert witness. He opined that the quality of care provided to claimant while incarcerated was inadequate because they did not resolve claimant's triceps tendon tear in an appropriate fashion. Dr. Goldberg also opined that the care provided to claimant did not meet the standard of care because the nature of his injury was not diagnosed and treated in a timely fashion, and this resulted in reconstruction surgery of claimant's triceps tendon rather than a repair of the tendon (TT: 32-34). He also opined that based upon Dr. Wagner's interactions with claimant that she provided inadequate care, testifying that she began with a working diagnosis of traumatic bursitis and should have reassessed that diagnosis every time she saw claimant. In particular, Dr. Goldberg stated that Dr. Wagner's notes provide very little documentation that she performed any physical examination. In fact, he found no record that Dr. Wagner ever performed a physical examination with claimant after his initial visit. As such, he opined that Dr. Wagner's conduct violated the standard of care (TT: 37-39).

Dr. Goldberg performed a physical assessment of claimant's left arm during the trial and demonstrated to the Court the defect in the contour of the arm where the triceps muscle has been lost. In his opinion, claimant's triceps muscle had contracted by 50% from its original length. He also demonstrated at trial several tests that could have been performed and what would be observed to determine whether there was triceps tendon tear (TT:46-51). Dr. Goldberg was asked to explain the healing process of the body that would occur if the injury had occurred to the bursa, i.e., traumatic bursitis, as originally diagnosed by Dr. Wagner. He testified that the initial injury phase would last 7 to 14 days, thereafter the body would begin to reabsorb fluid and there would be a decrease in heat, pain and swelling. Dr. Goldberg stated that the bursa would return to its normal anatomy and the symptoms would go away. Dr. Goldberg testified that unlike claimant, an individual with traumatic bursitis would not experience bruising like that with a triceps tendon tear as with traumatic bursitis, the bruising would be minor and small (TT:61-63). Dr. Goldberg agreed that anyone viewing claimant's elbow on initial evaluation could have missed the proper diagnosis due to the initial presence of swelling.

Following claimant's return from ECMC, Dr. Goldberg stated that if the diagnosis of traumatic bursitis was accurate, he would have started to improve in two to three days. He disagreed with Dr. Bozer's testimony that the nurse practitioner's diagnosis at ECMC was wrong and they relied on it in treating claimant as Dr. Wagner should have evaluated claimant at each visit to determine if traumatic bursitis was still the proper diagnosis (TT:72-75). Dr. Goldberg opined that it was Dr. Wagner's responsibility from the point that claimant returned from ECMC to figure out what was going on with his left arm. He testified to resources that Dr. Wagner could have utilized, as well as imaging (ultrasound, CT scan or MRI) that would have assisted her to make the correct diagnosis (TT:76-78).

Dr. Goldberg testified about the treatments for a triceps tendon rupture. He stated that the ideal time period to perform an end-to-end repair is between three and four weeks after the rupture, a period of time he referred to as phase 1. The second phase is four to eight weeks out, and he testified that it would be harder to bring the tendon down to a normal length because the muscle will have undergone changes, some of which may be permanent. Dr. Goldberg referred to the third phase, the time period after eight weeks as reconstruction, where you cannot restore the tendon to its normal function (TT:80-83). He opined that if claimant had surgery during phase 1, he would have achieved the full function of a normal person, including the ability to participate in activities at a health club, or as a bodybuilder. He agreed that in that claimant's injury occurred on September 28, 2014, he would have until the last week of October for corrective surgery to be performed. Dr. Goldberg explained the type of surgery that could be performed during phase 2 and indicated that claimant would probably not have experienced the same level of recovery as from an end-to-end repair performed during phase 1 (TT:84-92). Finally, Dr. Goldberg explained the process involved during phase 3 reconstruction surgery as the same as what was performed upon claimant. Utilizing the photographs taken during the course of surgery (Exhibits 50 and 51), he testified that claimant's tendon gap was 3 inches, too significant to be able to perform an end-to-end repair.

Dr. Goldberg testified that he performed a physical examination of claimant the evening prior to his testimony and stated that claimant will be able to perform activities of daily living without difficulty such as washing, cleaning, dressing and eating, as well as community activities like shopping and driving. As to fitness or physical activity, Dr. Goldberg testified that claimant could only perform those that did not involve power resistance or dynamic speed due to the loss of strength in his left arm. As to occupational activities, he testified that claimant would have difficulty performing any activity that requires strength for any kind of pushing or for overhead lifts or pushing forward or down. Dr. Goldberg opined that claimant would not be able to lift more than five pounds overhead. Finally, he testified that claimant would be unable to participate again in mixed martial arts at a competitive level (TT:95-107). Dr. Goldberg then demonstrated to the Court the triceps volume in claimant's left arm, stating that the length of the tendon is about half of his right triceps, a loss of 50% of his length and two centimeters of its circumference. He characterized this as a significant loss of volume. Dr. Goldberg opined that claimant will be unable to operate a jack hammer at any time in the future. He agreed that as of January 7, 2015, claimant's left arm had a low level of muscle function due to the triceps tear. Dr. Goldberg also opined that claimant has permanently lost 75% of the strength in the triceps of his left arm (TT:107-115).

On cross-examination, Dr. Goldberg testified that with a triceps tendon tear you would see a deformity or bulge where the muscle retracted and swelling closer to the elbow. He also testified that the swelling that you would see at the elbow would be distinguishable from swelling as a result of bursitis. Dr. Goldberg testified that an x-ray can reveal the presence of a triceps tendon tear if it contains a soft tissue shadow (TT:118-120). Dr. Goldberg agreed that the opinions that he expressed on whether the care provided to claimant was sufficient or not was based solely on his review of the medical records of DOCCS and that whatever does not appear in the records, he does not know whether it was done or not (TT:122-123).

On redirect examination, Dr. Goldberg testified that when he teaches first year medical students, they are taught the importance of keeping accurate documentation in the medical record and are told that if it is not documented, you must assume that it was not done. He stated that the reason you do so is for continuity of care so that another treating physician looking at the record can properly care for the patient. Dr. Goldberg stated that the importance of keeping accurate records is taught across the health care field to anybody at any level, including nurses (TT: 123-125).


Nurse Jahnke was previously employed as a registered nurse for DOCCS at Gowanda between 2012 and 2016. She was employed by DOCCS for 18 years. She recalled treating the claimant during the time that he was incarcerated at Gowanda. She testified that she saw claimant at sick call when he first reported the subject injury and that she referred him to Dr. Wagner. Nurse Jahnke stated that she was not in the room with Dr. Wagner while she evaluated claimant (EBT at 10-12). She testified that the standard of care for medical treatment that is to be provided to inmates in a DOCCS facility should be the same as it is for people in the general population. Nurse Jahnke also stated that she never felt that her patients were harmed because of how long it took for Albany to respond to consultation requests. She stated that on October 2, 2014, there was an urgent orthopedic consultation request placed for claimant and the fact that it took almost three months for Albany to get back to Dr. Wagner was not unusual (EBT at 20-23). Nurse Jahnke testified that while at Gowanda, if claimant's job had been changed to a recreation aide worker where he was required to lift weights that this was inconsistent with the medical permit pass issued to him. She knew of no reason, rule or procedure that would permit a correction official to overrule the restrictions of a medical permit pass. Nurse Jahnke had never previously been involved in the treatment of a patient with a tendon rupture. Finally, she testified that she did not know any physical examination maneuvers to diagnose a tendon rupture (EBT at 43-46).


Dr. Stegemann is a board certified orthopedic surgeon and is currently the Chief of Orthopedics at ECMC and an assistant professor in the State University of New York at Buffalo Medical School Orthopedics Department. He testified that if a general practitioner suspected that a patient had a ruptured triceps tendon, an immediate referral to an orthopedic surgeon would be the appropriate response (EBT at 5-10). Dr. Stegemann testified that he recalled treating claimant and diagnosing him with a ruptured triceps tendon, stating that he palpated claimant and determined that a gap existed between the end of the tendon and the insertion of the tendon on the olecranon. In addition, he testified that he viewed claimant's x-rays and they were normal. He recalled discussing surgical treatment options with claimant, who told him that he was being released in three weeks and wanted to have the surgery when he returned home to Albany. Dr. Stegemann recalled from his physical examination that claimant had some degree of extension, so it was not a complete tear but likely there were a couple of fibers of the tendon still attached to the bone. He stated that it had been over three months since the injury occurred and did not think it would be detrimental to claimant's overall health if he was seen by an orthopedic surgeon when he returned home (EBT at 10-19). Dr. Stegemann was advised that an MRI taken on February 16, 2015 indicated that claimant had a 3.5 centimeter gap and he opined that if the tendon could not be lengthened, then claimant would have needed reconstruction surgery to bridge the gap. He stated that there was no question in his mind that claimant needed surgical repair. In his experience, the sooner that a triceps tendon tear is repaired, the better, with the first four weeks being the ideal time (EBT at 27-31). Dr. Stegemann opined that it was "somewhat difficult" to properly diagnose claimant when he first came to ECMC because of the swelling. If he had operated on claimant, he would have told him that "we are not going to make you normal, we are going to make you better, but we can't make you normal." Dr. Stegemann rated the strength in his left arm as a 1 plus out of 5, very weak (EBT at 32-37).

Dr. Stegemann was read the emergency room instructions stating "return to ER if you have the following symptoms: Pain or swelling persist or worsens. Any new or concerning symptoms develop, numbness, tingling, loss of sensation, or loss of range of motion." He disagreed with the testimony of Dr. Bozer, who had stated that these type of instructions are standard and don't mean anything. Dr. Stegemann's opinion was that claimant should have been reevaluated by Dr. Wagner three to five days after his release from the emergency room. (EBT at 37-42).


Dr. DiChristina is a board certified orthopedic surgeon who was retained by the State as an expert witness. He testified that he conducted an independent medical examination of claimant on January 3, 2018 (TT: 219-222). During the physical examination of claimant, he measured the biceps and triceps circumference, finding the right arm was 32.6 centimeters (cm) and the left arm was 30.6 cm. Dr. DiChristina stated that the 2.0 centimeter difference was atrophy secondary to the triceps atrophy. He also tested the flexion and extension range of motion in both elbows, finding that the right arm had a range of motion to 134 degrees, which he considered normal. In the left arm, he testified that he found some stiffness and 12 degrees less flexion and 7 degrees less extension. In performing the strength test, Dr. DiChristina found claimant's right arm to be normal and there was a 10% loss of strength in his left arm (TT: 226-229).

Dr. DiChristina testified that he believed that claimant had a triceps tendon rupture on the day of the incident, September 28, 2014. He opined that with the atrophy in his left triceps, claimant had a 15% impairment rating for the strength of his triceps muscle. He then testified that utilizing the American Medical Association guides to physical impairment, someone with a 15% strength impairment of the triceps would be a 6.3% impairment of their upper extremity, which then equates to a 4% impairment of the whole person. Dr. DiChristina concluded his direct testimony by opining that a 15% strength loss would be the normal and anticipated result from either type of surgery with a triceps tendon rupture and subsequent repair. He was also of the opinion that this result for claimant would have been the same "if the surgery had been done day of, two days later or four months later" (TT: 230-233).

Dr. DiChristina testified on cross-examination that he was not asked by the defendant to provide an opinion in this case about whether or not the medical care provided to claimant met the standard of care for a triceps tendon rupture. He agreed that the amount of recovery that someone would have from this type of surgery is directly related to how physically active they were prior to the injury. Dr. DiChristina testified that in order to obtain the best possible result for a triceps tendon repair, you would want to do it within two weeks of the injury. He was of the opinion that an end-to-end repair in cases similar to claimant's is very difficult to obtain and would not be common (TT: 237-239). Dr. DiChristina described an end-to-end repair surgery with additional steps that could still be performed on a triceps tear but only if it was attempted within three weeks of the injury. He testified that if an MRI showed that someone had a one centimeter gap between the ends of their ruptured tendon, you would anticipate a good result from an end-to-end repair procedure. As to a 2 centimeter gap, Dr. DiChristina opined that the further you get from one centimeter, the more likely it is that you are going to have trouble with the end-to-end procedure (TT: 253-257). He agreed that by four months from the injury, only a salvage procedure could be performed to repair the triceps tear and that the ability to recover would be lower.

Dr. DiChristina testified that he was not asked to evaluate claimant's permanent impairment under the New York State Workers' Compensation guidelines versus the American Medical Association guides. He described the difference between the two being that New York State Workers' Compensation calculates a percentage of impairment to arrive at a financial award for a scheduled loss and the AMA guide is an impairment rating only. Dr. DiChristina opined that under workers compensation, claimant would have had a 15% scheduled loss of use for the left arm (TT:260-267). He testified that claimant could perform manual labor of a medium nature, but not heavy labor requiring lifting of 100 lbs. frequently. He stated that claimant would have impairment attempting to lift sheetrock over his head. He also agreed that claimant would have an impairment from participating in bodybuilding, weight lifting and mixed martial arts (TT:267-270). Dr. DiChristina agreed that it is possible that claimant's impairment could be more than the 15% deficit that he described and agreed that this is a permanent impairment that will not improve over his lifetime (TT:276).

Dr. DiChristina testified that the symptoms of a popping sensation, bruising, swelling, and loss of strength and the inability to extend the elbow were consistent with a diagnosis of a triceps tendon rupture. He agreed that to determine if a rupture of the triceps tendon had occurred, you would palpate the area of the tendon (TT:280-283). Dr. DiChristina also agreed that if claimant was still reporting numbness in his fingers four years after the surgery, that this could be a side effect of the reconstruction surgery (TT:295). On redirect examination, Dr. DiChristina testified that he has had patients with a triceps tendon rupture who have achieved 100% function following surgery and that an earlier surgery for claimant would have given him a better chance to have less impairment, emphasizing that "[t]he sooner he'd had the surgery within that two-week time frame, the better chance he would have had to have a better result" (TT: 297-298).


It has been held that the State owes a duty to provide adequate medical care and treatment to its incarcerated individuals, which duty has been defined in terms of both negligence and medical malpractice (Andrews v County of Cayuga, 96 AD3d 1477 [4th Dept 2012]; citing Kagan v State of New York, 221 AD2d 7, 16 [2d Dept 1996]). When the State is providing medical care, it will be held to the same duty of care that private individuals and institutions are held when engaging in that activity (Schrempf v State of New York, 66 NY2d 289 [1985]). The elements of a medical malpractice action are that the claimant must prove by a preponderance of the evidence that the defendant "deviated from acceptable medical practice, and that such deviation was a proximate cause of the [patient's] injury" (Clune v Moore, 142 AD3d 1330 [4th Dept 2016]; citing James v Wormuth, 21 NY3d 540, 545 [2013]).

In order to establish proximate causation, the claimant must demonstrate that the deviation from the standard of care "was a substantial factor in bringing about the injury" (Id. at 1331; citing PJI 2:70; see Wild v Catholic Health Sys., 21 NY3d 951 [2013]). Furthermore, as the claimant's allegation is that the defendant's negligence was failing to and delaying the diagnosis and treatment of the triceps tendon tear, a finding of negligence can be predicated on the theory that the defendant diminished claimant's chance of a better outcome (Id. at 1331). In order to do so, claimant must present proof sufficient to infer that there was a "substantial possibility" that claimant was denied a better outcome as a result of the defendant's deviation from the standard of care (Id. at 1331-1332; citing Gregory v Cortland Mem. Hosp., 21 AD3d 1305, 1306 [4th Dept 2005]).

In the present action, Dr. Wagner admitted that she violated the standard of care as a primary care physician when she failed to refer claimant to an orthopedist. Dr. Bozer also admitted that if Dr. Wagner had called her, she would have approved the orthopedic consult request for urgent care and that they failed to obtain for claimant the type of treatment that was needed for a triceps tendon tear within the 15 to 30 day treatment window. Dr. Stegemann reiterated this point in his testimony, stating that if a general practitioner suspected that a patient had a triceps tendon rupture, the only appropriate response was an immediate referral to an orthopedic surgeon. Neither Dr. Wagner nor Dr. Bozer were familiar with diagnosing or treating this type of injury, the timing for its treatment or the impact of their delay upon surgical alternatives. Claimant's expert witness, Dr. Goldberg, whose testimony I found credible, opined that the care provided to claimant did not meet the standard of care by failing to properly diagnose and treat claimant in a timely fashion. Dr. Goldberg also opined that Dr. Wagner's care and treatment did not meet the standard of care. The defendant's expert witness, Dr. DiChristina, did not offer any opinion as to the applicable standard of care and his testimony was not considered by the Court in determining liability.

After considering the testimony of claimant, Dr. Wagner, Dr. Bozer, Dr. Goldberg and Dr. DiChristina, and their demeanor while doing so, the Court finds that the defendant's care and treatment of claimant following the injury deviated from the standard of care and was the proximate cause of claimant's injuries. I specifically find that Dr. Wagner was negligent and deviated from the standard of care by (1) failing to identify her alternative diagnosis of a triceps tendon tear to Nurse Wittrock so that she could properly document and advise ECMC of the purpose for claimant's emergency room visit; (2) failing to consult with Dr. Bozer about the need for an urgent orthopedic consultation; (3) failing to reassess her working diagnosis of traumatic bursitis; (4) failing to perform physical examinations of claimant to assist in determining the existence of a ruptured triceps tendon and/or the immediate need for an orthopedic consult; and (5) failing to properly document her findings in the Gowanda ambulatory health records; all of which resulted in significantly delaying claimant's consultation with an orthopedic surgeon, the diagnosis of a ruptured triceps tendon and thereby limiting the surgical option to reconstruction surgery instead of an end-to-end repair procedure, and denying claimant the substantial possibility that he could have experienced a better surgical outcome.(9) Accordingly, I find that the defendant is liable for the negligence and medical malpractice of its employees. As to the issue of comparative negligence, I do not find that claimant bears any responsibility for his injuries. Accordingly, I conclude based upon an evaluation of all proof offered at trial that liability shall be assessed 100% against the defendant with no liability against claimant.

The Court concludes based upon a preponderance of the credible evidence that claimant is entitled to an award of non-economic loss to justly and fairly compensate him for the permanent loss of function and use of his left arm. When deciding on an award of damages to a person injured by the negligence of another, the objective is to compensate the victim, not to punish the wrongdoer and "restore the injured party, to the extent possible, to the position that would have been occupied had the wrong not occurred" (McDougald v Garber, 73 NY2d 246, 253-254 [1989]). The Court finds that claimant has suffered damages comprising of past and future pain and suffering. An award for pain and suffering is not subject to a precise calculation and the "factors to be considered . . . include the nature, extent and permanency of the injuries, the extent of past, present and future pain and the long-term effects of the injury" (Nolan v Union Coll. Trust of Schenectady, N.Y., 51 AD3d 1253, 1256 [3d Dept 2008], lv denied 11 NY3d 705 [2008]).

The claimant's medical expert, Dr. Goldberg, performed a physical assessment of claimant and then demonstrated at trial where the triceps muscle volume had been lost and opined that it had contracted by 50% of its original length and had lost two centimeters of its circumference. It was his opinion that claimant lost 75% of the strength in his left arm. With respect to the impact upon normal activities of daily living, it was Dr. Goldberg's opinion that claimant will be able to perform most activities without difficulty, including washing, cleaning, dressing and eating, as well as driving and shopping. He opined that he will not be able to participate in fitness or physical activities that involve power resistance such as weight lifting due to the permanent loss of strength in his left arm. He was also of the opinion that claimant would no longer be able to participate in competitive mixed martial arts. As to claimant's ability to return to his former occupation in construction, Dr. Goldberg testified that claimant would have difficulty performing any activity that requires strength to push forward or down or requires overhead lifts and he will be unable to operate a jackhammer.

The State's medical expert, Dr. DiChristina, was also a credible witness with respect to his testimony that was limited to an evaluation of claimant's physical limitations. He agreed that claimant had reached the maximum recovery for his injury and found that claimant was cooperative and tried his best during the course of his independent medical examination. Dr. DiChristina testified that claimant reported ongoing pain and numbness in the small fingers of his hand, as well as the loss of pushing and lifting strength in his left arm. He confirmed claimant's complaint of numbness with sensation testing and also determined that claimant had a decrease in his ability to flex and extend his left arm. Dr. DiChristina opined that claimant had a 15% impairment rating for the strength of his triceps muscle. He was of the opinion that claimant could perform manual labor of a medium nature, but not any that would require lifting heavy objects of 100 lbs. frequently. He agreed that he would have difficulty lifting objects overhead like sheetrock. He also agreed that he would be impaired from doing weightlifting and mixed martial arts. Dr. DiChristina also agreed that it was possible that claimant's impairment would be more than the 15% that he testified to during his direct examination and that this is permanent and will not improve over his lifetime.

None of the three orthopedic surgeons Dr. Goldberg, Dr. DiChristina or Dr. Stegemann, were of the opinion that the delay in diagnosis and treatment left any alternative other than the reconstruction surgery that was performed following claimant's release. Dr. Stegemann testified that if he had performed this surgery on claimant, he would have told him that surgery would make his arm better but it would not make his arm normal again. Dr. DiChristina testified that he had patients who achieved 100% function following surgery for a triceps tendon rupture if performed earlier and that claimant would have experienced less impairment if the operation had been performed earlier. The claimant testified that he can only lift 50% of the weight that he could formerly lift and he is unable to perform many activities that he enjoyed prior to this injury, including bow hunting, mixed martial arts fighting, strength training and riding his motorcycle. He testified that his present complaints included left arm pain, sensitivity at the surgical area and an inability to lift objects over his head.

Upon consideration of the testimony of claimant, Dr. Goldberg, Dr. DiChristina, and Dr. Stegemann, I find that at the time of the defendant's malpractice, the claimant was almost 39 years old and has experienced over five years of pain and suffering as a consequence of the defendant's failure to properly diagnose and treat his triceps tendon rupture, which I find diminished claimant's chance of a better outcome. The claimant also endured significant pain and discomfort over the three plus months he waited for an orthopedic consult and during that time period, he was ordered to perform work at Gowanda that was unsuited for him with this injury. I find that claimant has a remaining life expectancy of approximately 32 years (see NY PJI 3d Edition 2020, 1B, Appendix A). I find that claimant's injury is permanent and that he will continue to experience weakness in his left arm that will limit certain household, recreational and occupational activities. The Court was not provided with any proof establishing claimant's work history or earnings history prior to his incarceration or any testimony that would establish the likelihood of him obtaining any employment in construction work following his release. As a result, the Court finds that claimant failed to submit sufficient proof for this Court to consider an award of economic damages for past or future lost wages. Similarly, no proof was submitted to substantiate any medical expenses or future medical expenses and no award is made for these items. Accordingly, the Court's award is restricted to an award for non-economic loss for past and future pain and suffering.(10)

Based upon the foregoing, I award claimant damages in the amount of $400,000. This amount consists of $150,000 for past pain and suffering and $250,000 for future pain and suffering. It is my opinion that this amount constitutes fair and reasonable compensation to claimant for the defendant's malpractice in failing to diagnose and properly treat his injuries (Hearns v State of New York, UID No. 2015-032-005 [Ct Cl, Hard, J., November 25, 2015]; Johnson v State of New York, UID No. 2014-044-002 [Ct Cl, Schaewe, J., January 13, 2014]; Becoate v State of New York, UID No. 2013-040-044 [Ct Cl, McCarthy, J., June 24, 2013]; Kendricks v State of New York, UID No. 2012-031-504 [Ct Cl, Minarik, J., February 21, 2012]; Kroemer v State of New York, UID No. 2010-031-506 [Ct Cl, Minarik, J., March 3, 2010]). In addition, to the extent that claimant has paid a filing fee, this too may be recovered in accordance with Court of Claims Act 11-a (2).

As to any objections upon which this Court reserved decision during the course of the trial and as to any motions made at trial upon which the Court previously reserved or which remain undecided, all are hereby denied.

The Chief Clerk is directed to enter judgment accordingly.

January 21, 2020

Buffalo, New York


Judge of the Court of Claims

1. References to the trial transcript will be made with the designation "TT" and the page number(s).

2. Exhibit 9, records for September 29, 2014.

3. Exhibit 9, record for October 2, 2014 at 11:30 p.m.

4. Exhibit 9, record for October 24, 2014 at 9:40 a.m.

5. Exhibit 26, record for December 5, 2014.

6. All references to the testimony of Nurse Wittrock and Bruce J. Goldberg, M.D. are from Volume III of the trial transcript dated July 17, 2019, which although indexed to begin at page 299, instead begin again at page 1.

7. The transcript of the examination before trial of Tracey Jahnke was stipulated into evidence by the parties. The page numbers will be referenced in the decision as "EBT at p. 12".

8. The transcript of the examination before trial of Philip Stegemann, M.D. was stipulated into evidence by the parties. The page numbers will be referenced in the decision as "EBT at p. 21".

9. The claimant asserted seven causes of action and the Court finds liability against the State with respect to the three causes of action alleging negligence, medical negligence and medical malpractice. The claimant did not address or present proof at trial and the Court hereby dismisses the causes of action for negligent infliction of emotional distress, negligent supervision and/or retention of an employee, res ipsa loquitur and prima facie tort.

10. The claimant also has significant scarring on his left arm from the surgery which the Court viewed and which I find would have existed as a result of either the end-to-end repair or reconstruction surgery.

Accordingly, the award of damages does not include any amount for the scarring.