STACY v. THE STATE OF NEW YORK, #2007-031-505, Claim No. 106916 Synopsis Defendant deviated from acceptable medical standards by failing to treat exigent medical condition for several days. Award in Claimant’s favor of $300,000.00 Case Information UID: 2007-031-505 Claimant(s): JANDL STACY Claimant short name: STACY Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 106916 Motion number(s): Cross-motion number(s): Judge: RENÉE FORGENSI MINARIK Claimant’s attorney: DOUGLAS KAPLAN, ESQ. Defendant’s attorney: HON. ANDREW M. CUOMO New York State Attorney General BY: PATRICK MacRAE, ESQ. Assistant Attorney General Third-party defendant’s attorney: Signature date: September 28, 2007 City: Rochester Comments: Official citation: Appellate results: See also (multicaptioned case) Decision Jandl Stacy (“Claimant”) filed claim number 106916 on November 13, 2002, alleging that various agents of Defendant failed to diagnose and/or misdiagnosed Claimant’s medical condition in a manner inconsistent with the good and accepted standard of the medical community. I held a trial on this matter on May 22, 2006 in Syracuse, New York. The trial was continued for purposes of taking and submitting videotaped trial testimony of each party’s respective expert witnesses. The parties submitted their experts’ testimony the last week of November 2006. Thereafter, the parties submitted post-trial briefs. During this time, it became apparent that this claim was affected by the New York Court of Appeal’s decision in Kolnacki v State of New York (8 NY3d 277). Claimant then filed a motion to relieve himself of the application of that case to his claim and Defendant filed a motion to dismiss the claim pursuant to the rule announced in Kolnacki. For reasons set forth in my motion decision and order dated August 30, 2007 (Motion Nos. M-73289 and CM-73544), I denied Defendant’s motion to dismiss and denied Claimant’s motion to amend his claim as moot. FACTS Claimant testified he was apprehended for shoplifting at the Irondequoit Mall in Irondequoit, New York on October 25, 1999. At the time of the incident, claimant was 51 years old and, according to his testimony, he was addicted to both heroin and cocaine.1 During the arrest, Claimant stated he was kicked in his penis, as well as other spots on his body, by a security guard. He was held in the Monroe County Jail in Rochester, New York, from the date of his arrest until January 20, 2000. He testified that, while he was there, he complained that his penis was swelling and that he was in pain. He was taken to Rochester General Hospital and given an ultrasound. The ultrasound showed two lumps on his penis. Following his guilty plea, Claimant was moved to Ulster Correctional Facility (“Ulster”). He stated that he complained to medical staff there about his genitals and received treatment. He also was treated by staff at Franklin Correctional Facility (“Franklin”) when he transferred there from Ulster. His complaints related to a bleeding and swollen penis. While he was at Franklin, the doctor there surmised that Claimant suffered from Peyronie’s Disease. Also while at Franklin, Claimant stated he endured erections on and off, some lasting as long at six or seven hours. It became clear on cross-examination that Claimant experienced problems securing medical treatment while at Franklin. He stated he was often “turned around,” that is, sent back to his cell without being seen. He “dropped a sick call slip” (a request to be seen by medical personnel) about 13 times and he was actually seen only five or six times. Claimant filed three or four grievances, the exact number was not clear, relating to his inability to be seen by medical staff. All the grievances appeared to have been related to the problems with his penis. Toward the end of his stay at Franklin, Claimant was unable to urinate for a drug test, even after drinking multiple glasses of water. As a result, he was sent to a “box” (the Special Housing Unit) at Downstate Correctional Facility. Claimant stated he bled from his penis “continuously” while there. From Downstate Correctional Facility, he was transferred to Fishkill Correctional Facility, where he was examined by a doctor. Claimant stated that he was then sent to Oneida Correctional Facility (“Oneida”) due to his medical issues. Claimant testified he was at Oneida for only a few months. He complained to the medical staff that he was bleeding and experiencing erections and pain. Claimant was told there was nothing they could do for him and he was transferred to Mid-State Correctional Facility (“Mid-State”) in October 2000. Claimant’s medical complaints continued in the same manner at Mid-State, from his admission until early November 2, 2000, when he saw Dr. Haas at the Walsh Clinic at Mohawk Correctional Facility. Claimant testified that he told Dr. Haas about the lumps in his penis and the bleeding but received no treatment at that time. Then, in the early morning hours of November 11, 2000, Claimant woke up experiencing chest pain and a “severe erection” that caused him great pain. He tried to urinate but could not. Claimant stated that around 2:30 a.m. or 3:00 a.m. he went to the guard, requesting medical treatment. Claimant said he was sent to the infirmary, but they did not know what was happening and sent Claimant back to his cell. Claimant stated that the pain grew worse, his stomach became bloated, and he still had the erection. Claimant continued to experience the above symptoms throughout the day on November 11 and was still experiencing the same symptoms on November 12. After breakfast on November 12, a guard sent him back to the infirmary and this time he was seen by a nurse. Claimant told the nurse he had a severe erection and had been experiencing pain over the last two days. Claimant was again sent back to his cell without seeing a doctor. He continued to experience the same symptoms but now, in addition, his legs were hurting and his penis began to change color. On November 13, Claimant again went to the infirmary in the morning but was turned away by an officer. Claimant said he then went to the Program Committee where the same officer that turned him away earlier at the infirmary was present. At that point, Claimant could barely walk and the Warden happened to see him and ordered that the Claimant be taken to the infirmary immediately. Claimant testified that he went back to the infirmary a second time on November 13, after the Warden intervened, and he was seen by a nurse who gave him nitroglycerin for his chest pains. Eventually, there was a television conference with Claimant that involved a doctor from Syracuse and Claimant explained his symptoms. The doctor on the television then ordered that Claimant be brought to the hospital immediately. At the hospital, doctors took blood from Claimant’s penis but the erection still did not go down. Claimant said he then had to go into surgery for the purpose of inserting a shunt into his penis. Claimant stated that he was in the hospital 2½ to 3 days, during which time the swelling in his penis still did not go down. He was discharged from the hospital to the Mid-State infirmary. Although his erection began to subside, the bleeding started again and he was taken back to the hospital. Claimant testified that another procedure was performed at the hospital, perhaps they made an adjustment to his shunt, and several days later, although he was still swollen, the erection continued to subside. Claimant was released from State custody in January 2001. He continued to bleed from his penis from the date of his second hospital discharge until then. He testified that his Parole Officer referred him to Dr. Davis, a urologist at Strong Memorial Hospital in Rochester, New York, when he noticed his drug test showed blood in his urine. At this time, Claimant was still experiencing bleeding, and also found that he was unable to achieve an erection. Dr. Davis then became Claimant’s treating physician. Claimant testified that, at present, he continues to bleed at night and that it takes him a while to urinate. He has never achieved a full erection since the incident, even with the use of medication. On occasion, he can have a partial erection, but that occurs erratically and is difficult to sustain. Michaelle V. Meyers, Nurse Administrator at Mid-State, testified for Defendant. Ms. Meyers has been a Registered Nurse for 12 years and has been employed in her current position for 8 years. She is familiar with the policy and procedures regarding medical services available to inmates at Mid-State. Those policies and procedures are consistent throughout the New York State Department of Correctional Services’ facilities. She testified that emergency sick call is available 24-hours a day, seven days a week. An inmate can access emergency medical care by first telling the officer on his housing unit that he needs immediate medical attention. The officer would then contact medical staff on behalf of the inmate and a determination would be made as to whether the circumstances constituted a medical emergency. If deemed an emergency, the inmate is seen immediately. Regular sick call occurs four days per week on Monday, Tuesday, Thursday and Friday. An inmate who wishes to have medical attention would fill out a sick call slip and give it to an officer the evening or night before a designated sick call day. The slip then is given to the medical department and a list is made of all inmates that submitted their names. This list is an inmate’s authorization to go to medical in the morning. Sick call days commence at 6:00 a.m. and end when the number of inmates seeking attention have been examined. Ms. Meyers stated that a doctor is on duty at the facility Monday through Friday from 7:00 a.m. until 2:00 p.m. Inmates requesting sick call may not actually see a doctor, but they will at least see a nurse and no inmate is turned away. She stated that there are inmates that sign up for sick call and then refuse to go down to medical. In those instances, staff attempts to bring them down. If they refuse to be seen, they must sign a form that states that they realize this sort of behavior can be the basis for disciplinary action. A note is made in an inmate’s chart every time he is seen or refuses to be seen. While Ms. Meyers had no personal recollection regarding Claimant’s treatment, she could interpret his medical charts. The charts, or Ambulatory Health Record (“AHR”), specifically Exhibit 1, indicate Claimant was drafted into Mid-State from Oneida on October 19, 2000. Exhibit 1 indicates that Ms. Meyers conducted the draft medical interview with Claimant. Her notes in the chart on that day indicate Claimant had a history of hay fever and back pain. There is no mention of any problems with penile pain in the October 19, 2000 note (Exhibit 1). Shortly after Claimant’s arrival at Mid-State, he was sent out for a urological consultation pursuant to a referral by a doctor at Oneida either on October 2 or 4, 2000 (Exhibit 1). The paperwork was completed by Ms. Meyers at Mid-State on October 25, 2000, with Dr. Cirelli listed as the referring physician. I note Exhibit 1 shows that, during his incoming draft interview for Oneida on September 29, 2000, the nurse wrote that Claimant “c/o [complained of] pain in his penis - See Consult.” No testimony explaining this note was offered. I do not know if “See Consult” refers to a prior consulting doctor’s report or whether the nurse is recommending that Claimant see a consulting doctor in the future. In any event, Claimant apparently saw a facility doctor on October 4, 2000 who observed the lesion on Claimant’s penis and ordered a urology consultation. This consultation did not occur and, 15 days later, Claimant was transferred to Mid-State. Someone at Mid-State must have read the prior notes because a Patient Referral Form was completed by Ms. Meyers on October 25, 2000 and indicates the service was rendered on November 3, 2000. The consulting doctor’s report is a separate document that is partially typewritten and partially handwritten. The typewritten portion is virtually unreadable and I can make out very little information and would only be able to guess at its impact. Dr. Haas’ handwritten notes on that page are self explanatory. He found Claimant had Peyronie’s Disease and recommended no treatment at that time. Next to his signature is the following: “11/200" - I believe I can safely assume the note was written on November 2, 2000. According to the AHR, medical staff at Mid-State did not have occasion to see Claimant again until November 12, 2000. Based on the AHR, Ms. Meyers believes that she saw Claimant at regular sick call on November 12 at 8:10 a.m., noting Claimant complained of a three day erection, constipation and blood in his urine, as well as headaches. Ms. Meyers testified that she offered to admit him into the infirmary so Claimant could be examined by a doctor but that he declined to be admitted and wanted to return to his dorm. As a result, Claimant did not see a doctor on November 12, 2000. Although Ms. Meyers had the authority to mandate his admission so he could be seen that day, she did not and instead made a follow-up appointment for Claimant on November 13, 2000 with Dr. Cirelli. Dr. Cirelli’s note for November 13, 2000 indicates that Claimant suffered from priapism for three days as well as Peyronie’s Disease and recommended an amyl nitrate and an “emergent urological consult” (Exhibit 1). The note following is titled “EMSC - telemed (emergency sick call)” at 5:45 p.m. that same day. It reflected a Telemed conference set up by a nurse (not Ms. Meyers) where a doctor at the hospital examined Claimant through the use of a television feed. Claimant was immediately taken to the hospital after the Telemed conference. The AHR note for November 12, 2000 in Exhibit 1 states plainly what Ms. Meyers stated during her testimony. When Ms. Meyers was asked whether or not she recalled if any doctors were on duty that day, she could not say. Her note indicates “f/u - Dr. C 11/13/00" - she testified she made a follow-up appointment with Dr. Cirelli for the next day. The AHR reflects that Dr. Cirelli did see Claimant the following day, November 13, 2000 (although no time was noted) and determined that Claimant had had priapism for three days and needed an emergency urological consultation. A Telemed conference was attempted that day at 4:00 p.m. but a connection could not be made. At 4:45 p.m., the facility connected with Dr. Ellis at the Erie County Medical Center Emergency Room (“ECMC ER”). Dr. Ellis ordered medication and transport of Claimant to the State University of New York Upstate Medical Emergency Room (“SUNY ER”) to see a urologist. Another Patient Referral Form was completed documenting the November 13, 2000 Telemed conference with the ECMC ER and then Claimant was transported to the SUNY ER. The reason for the referral was priapism with an onset at 3:00 a.m. on November 11, 2000. The next form in Exhibit 1 appears to be generated from Dr. Ellis at the ECMC ER and it recommended Claimant be transported to SUNY to see a urologist named Dr. Fagan. This was completed on November 13, 2000 at 5:30 p.m. The next form is a New York State Department of Correctional Services Request & Report of Consultation, completed on November 19, 2000. This appears to be a description of what occurred at SUNY. Claimant’s AHR indicates that he returned to the infirmary at Mid-State on November 16, 2000 at 4:00 p.m. The deposition transcripts of Dr. Taesoo Kim, M.D. (Exhibit 7) and Dr. Zahi N. Makhuli, M.D. (Exhibit 8) were admitted into evidence at trial. Dr. Kim saw Claimant on several occasions while Claimant was incarcerated at Franklin, between April 25, 2000 and June 7, 2000, for knee pain and a rash. Dr. Kim testified that his notes in the AHR do not mention any indication of priapism or blood in Claimant’s urine. He stated he was aware that the Claimant had Peyronie’s Disease because of a prior consultation report in the AHR. Dr. Kim is not a board certified urologist, but he understood Peyronie’s Disease develops as a result of trauma, affects erections and causes pain during intercourse. As far as he was aware, it was not connected to priapism. Dr. Makhuli is a medical doctor employed by the SUNY in Syracuse, New York, the hospital that performed the emergency assessment and procedures on November 13, 2000. Dr. Makhuli reviewed the note written by Dr. Fagan, Chief Resident, on that date. The note referred to Claimant’s having suffered from priapism for 48 hours. It made no mention of Peyronie’s Disease which Dr. Makhuli stated did not mean Claimant did not have it, only that the physicians felt that the cause of the problem, at that time, was priapism. Dr. Makhuli described the procedure which began with injections of Lidocaine and epinephrine to bring down the erection. When that did not work, the more invasive procedure was performed and the Winters shunt was surgically implanted. The medical notes indicate that Claimant was told what the possible side effects were, including erectile dysfunction. Dr. Makhuli concluded that Claimant had suffered severe priapism with extensive damage to the penis, based on his low blood PH levels and the brisk bleeding from the penis during the procedure. 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, supra; Koehler v Schwartz, 48 NY2d 807 [Expert testimony is necessary . . . unless the matter is one which is within the experience and observation of the ordinary juror]). Only expert medical proof can establish the necessary legal causation required to impose liability and demonstrate that there was a deviation from good and accepted standards of medical care (see Rossi v Arnot Ogden Med. Ctr., 268 AD2d 916; Spicer v Community Family Planning Council Health Ctr., 272 AD2d 317; Lyons v McCauley, 252 AD2d 516, lv denied 92 NY2d 814). Expert medical testimony was submitted by both parties via videotape.2 Claimant submitted the testimony of Joseph Davis, M.D., a board certified urologist since 1964, currently the Director of Urology at Cabrini Medical Center in New York City and Clinical Professor of Urology at Mount Sinai School of Medicine. Defendant submitted the testimony of William S. Oberheim, M.D., a board certified urologist since 1977, currently in private practice specializing in urology. I find both witnesses to be experts in their field and competent to provide the necessary testimony in this medical malpractice claim. Dr. Davis reviewed Claimant’s AHR and his hospital records, but did not personally examine Claimant. He opined, with a reasonable degree of medical certainty, that Mid-State’s medical staff’s failure to recognize Claimant’s condition on November 12, 2000 as a medical emergency was a departure from good and accepted standards of medical practice in the community at that time. Frankly, I see nothing in Dr. Oberheim’s testimony that contradicts that statement. It was clear from the testimony of both experts that priapism is a painful erection lasting at least four hours which, if treated at the four hour mark or shortly thereafter, leaves the patient with a high likelihood of achieving full recovery. Both experts identified priapism as an emergent condition requiring the services of a urologist. Here, Claimant presented with an erection “x 3 days” at 8:10 a.m. on November 12, 2000, a medical emergency according to the experts in this case (as well as Ms. Meyers, as she testified to on cross-examination). I find that Defendant breached the standard of care in the medical community in which Claimant was treated by failing to provide an emergency urological consultation on November 12, 2000. However, this particular omission was not the first breach of the standard. Claimant’s testimony was that he woke up at 3:00 a.m. on November 11, 2000 with a painful erection and was unable to urinate. He followed the correct procedure to request emergency sick call by going to the officer on his unit with his problem. As is custom and practice, the officer called the infirmary to report a sick inmate. According to Claimant, he was sent to the infirmary then sent back to his cell because no one knew what to do. His symptoms got progressively worse. After breakfast on November 12, 2000, an officer sent Claimant to the infirmary and Claimant talked to Ms. Meyers. However, he was again sent back to his cell. I do not doubt Ms. Meyers’ explanation of the regular sick call procedures, nor her testimony concerning when doctors were present in the facility, both of which occur only Monday through Friday. I believe her testimony that she has no personal recollection of the facts and circumstances relating to Claimant’s condition and treatment. She surmised, based on her November 12, 2000 note, that Claimant had dropped a slip on November 11 for sick call the next day. She surmised that if he had agreed to be admitted on November 12, he would have been examined by a doctor that day. However, what makes her testimony incredible, and lends greater credibility to Claimant’s recitation of the events of November 11 and 12, 2000, is that November 12, 2000 was a Sunday - there is no regular sick call on a Sunday so an inmate cannot drop a slip on Saturday to be seen the next day as no doctors are in the facility on the weekend. Claimant could not have seen a doctor on Sunday, admitted or not, unless someone with the authority to do so gave him emergency medical status. Ms. Meyers made the follow-up appointment with Dr. Cirelli for the next day because that was when the doctor would be in the facility - on a Monday. In light of Ms. Meyers’ testimony, I must reconsider the events of November 11, 2000 - a Saturday. The events of Saturday, November 11, 2000, as recounted by Claimant, appear likely to have occurred. While I do not have corroborating evidence in the form of a logbook or an officer’s testimony, nor an AHR note, I find Claimant credible. I do note that the Patient Referral Form on November 13, 2000 states the onset of priapism at 3:00 a.m. on November 11, 2000 (Exhibit 1). It is credible to me that Claimant could go to the infirmary in the very early hours of a Saturday morning and leave the infirmary with the understanding that no one in the infirmary at the time knew what to do with a complaint of priapism. Claimant knew what to do, he asked for emergency medical care from the proper authorities and it was denied. These events constituted an additional, and initial, breach of the general community medical standard. I find Defendant’s breach of the community standard on November 11, 2000 to be the proximate cause of Claimant’s injury. The evidence that Claimant has suffered severe damage to his penis is undisputed. The medical experts agree that the longer a priapism goes untreated, the higher the probability that permanent damage to the penis will occur. The question is whether the damage was caused by Claimant’s waiting too long to alert the authorities or whether the authorities themselves waited too long to respond to Claimant’s medical condition. Claimant first became aware of priapism at 3:00 a.m. on November 11, 2000, when he woke up from his sleep. This fact was testified to by Claimant at trial and appears in the hospital notes in Exhibit 2, as well as in the patient Referral Form completed by RN Rorick on November 13, 2000.3 His first contact with the infirmary was in the morning of November 11, 2000 when Claimant followed the practice and custom of securing emergency medical care by alerting the officer on his housing unit of his condition. Had he been treated, Claimant would have had a high probability of having potency restored; by Dr. Davis’ testimony, a 50% to 60% chance of recovery. His second contact with the infirmary, on the morning of November 12, clearly constituted a breach when Ms. Meyers failed to recognize Claimant’s condition as a medical emergency. This occurred more than 24 hours but less than 48 hours after the onset of priapism. According to Dr. Oberheim, had he been treated at that time, Claimant had less than a 50% chance of recovery. Claimant’s third trip to the infirmary, on November 13, put him at 48 hours or greater past onset with a dismal chance of recovery. Both experts agree that impotency is the likely outcome for untreated priapism patients. I find Claimant would have had a 50% to 60% chance of having his potency restored but for Defendant’s agents failing to recognize Claimant’s medical emergency on November 11, 2000. At the very least, he would have had an almost 50% chance of recovery the next morning, but for Ms. Meyer’s failure to act. Claimant testified at trial that since the events at Mid-State and after his surgery, he has been unable to have an erection and has experienced some blood dripping from his penis. He believes he has lost one long-term relationship because of his condition. He describes himself as embarrassed and humiliated by his condition. Claimant is awarded $200,000.00 for past pain and suffering and is awarded $100,000.00 for future pain and suffering (Van Syckle v Powers, 106 AD2d 711, lv denied 64 NY2d 609; Kagan v State of New York, 221 AD2d 7). Any and all other motions on which the Court may have previously reserved, or which were not previously determined, are hereby denied. It is ordered that, to the extent Claimant has paid a filing fee, it is recoverable pursuant to Court of Claims Act § 11-a(2). LET JUDGMENT BE ENTERED ACCORDINGLY. September 28, 2007 Rochester, New York HON. RENÉE FORGENSI MINARIK Judge of the Court of Claims 1.There was discussion on cross-examination as to how long Claimant had been using drugs. Claimant stated 20 years, but the penal system’s admissions paperwork noted 30 years. 2.Actually, testimony came by transcript and CD. 3.It is clear that RN Meyers’ own notes from November 12, 2000 state Claimant told her the priapism had been ongoing for three days, but I do not find her notes and testimony on that issue credible.
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