Rivers v. State

• Decision Date: 25 January 1989
• Docket Number: No. 72350,72350
• Citation: 142 Misc.2d 563,537 N.Y.S.2d 968
• Parties: Otis RIVERS, Claimant, v. The STATE of New York, Defendant.
• Court: New York Court of Claims

Page 968

537 N.Y.S.2d 968

142 Misc.2d 563

Otis RIVERS, Claimant, v. The STATE of New York, Defendant.

Claim No. 72350 Court of Claims of New York.

Jan. 25, 1989.

Kliegerman & Friess by Rosemary Carroll, New York City, for claimant.

Robert Abrams, Atty. Gen. by Frederick H. McGown, III, Asst. Atty. Gen., for defendant.

EDWIN MARGOLIS, Judge.

This is an action for medical malpractice arising from an operation performed by a private physician in an outside hospital on an inmate in the custody of the Department of Correctional Services (DOCS). In 1985, claimant was a prisoner at Greene Correctional Facility when, at the correctional facility's infirmary, he was examined by Dr. Joshua T. Rosenfield, an employee of DOCS. Dr. Rosenfield made a diagnosis of a left inguinal hernia, recommended surgery and noted this information on the patient's medical records. (Exhibits 21 and 36) In an examination before trial (EBT) in a related Supreme Court action (Exhibit 11), Dr. Rosenfield stated that since there was no surgeon or operating room attached to the correctional facility's infirmary, it was the usual custom and practice to send inmates to civilian hospitals for surgery to be performed on an in-patient or out-patient basis, depending upon the nature of the surgery required. Dr. Rosenfield further testified that, although he did not specifically note the name of the surgeon to perform the outside surgery on the patient's records at the time of his diagnosis, he knew that usually Dr. Joseph R. Cally performed general surgery when inmates were referred to local outside facilities.

According to the transcript of Dr. Cally's EBT in the Supreme Court proceeding (Exhibit 14), a member of the medical records staff of the infirmary telephoned Pamela Merante, Dr. Cally's secretary, and made arrangements for the surgery on claimant. Ms. Merante prepared the pre-admission form for claimant's surgery at the Memorial Hospital of Greene County in Catskill, New York from the information she obtained over the phone. It appears that a drastic mistake occurred at this point. Although Dr. Rosenfield's diagnosis and the entries on claimant's medical records at the correctional facility indicated a left inguinal hernia, Ms. Merante filled out the pre-admission form to indicate that the diagnosis was right inguinal hernia. No evidence was introduced as to how this error occurred.

Sometime on June 4, 1985, claimant was directed to report to the correctional facility infirmary. There, he was prepped for the operation which was to be performed the following morning and, as part of the preparation procedure, he was asked to sign a form on which he consented to a "left inguinal herniorrhaphy" (Exhibit 22). The next morning, June 5, 1985, claimant was transported by two correction officers from the facility to Memorial Hospital, where he was given another consent form by hospital personnel. He remonstrated that the form handed to him was blank, but was told simply to sign it and that it would be filled in later. He did so. This second consent form was apparently filled in from the hospital admissions records and, when completed, gave permission to "repair right inguinal hernia" (Exhibit 7).

Dr. Cally, who is now deceased, testified at his EBT (Exhibit 14) that he never physically examined the patient before he was anesthetized and taken into the operating room. The doctor stated that after the patient was unconscious and on the operating table with his abdomen uncovered, but before the first incision was made, he "saw a large left hernia bulge, which was obviously visible to the naked eye. It was unequivocal. At this point, Mr. Rivers was asleep and I couldn't investigate further and that forced me to proceed with the right and to ignore the fact that the left was there." Dr. Cally testified that he proceeded to perform the right inguinal repair because "the only records available to me--he had signed the consent for the right inguinal hernia and the admission record stated right inguinal hernia."

The correctional facility infirmary physician, Dr. Rosenfield, and the operating surgeon, Dr. Cally, did not consult about claimant's condition at any time. Nor were the medical records of the correctional facility with respect to claimant ever sent to Dr. Cally for review. Dr. Cally relied only on the diagnosis as conveyed to his secretary by the medical records staff of the correctional facility (or as the telephone call transmitting the diagnosis was perceived by her) and on the consent form signed by claimant after he arrived at the outside hospital.

The Hearing Committee of the New York State Board for Professional Medical Conduct, after a full evidentiary hearing, found that claimant had a left inguinal hernia and specifically rejected Dr. Cally's contention that claimant also had a right inguinal hernia. The hearing committee further found that Dr. Cally did not properly examine claimant, that he did not obtain an adequate medical history, and that he did not properly evaluate claimant's medical condition prior to performing surgery. The hearing committee concluded that Dr. Cally failed to perform a left inguinal repair and subjected claimant to unnecessary surgery in the right inguinal area (Exhibit 25). The Commissioner of Health of the State of New York affirmed this finding (Exhibit 50). Subsequently, the Board of Regents Review Committee recommended that Dr. Cally's license to practice medicine in the State of New York be revoked for his actions in this and other cases (Exhibit 26) and the Board of Regents, the State licensing authority, did revoke his license (Exhibit 15).

ISSUES PRESENTED

(1) Did the State commit any act or omission which constitutes negligence with respect to claimant?

(2) Did Dr. Cally commit any act or omission which constitutes negligence with respect to claimant?

(3) If Dr. Cally is found to be negligent, is the State vicariously liable for such negligence?

DISCUSSION

(1)

Claimant contended that the State was guilty of negligence in that it did not furnish claimant's medical records to Dr. Cally prior to the operation, in violation of the appropriate standard of medical care. In support of this argument, claimant introduced the Manual of Standards for Adult Correctional Institutions promulgated by the American Correctional Association (ACA). The medical component of these standards requires a correctional facility, when sending a patient to an outside hospital, to also forward the patient's medical records. However, this same manual recites that as of August 8, 1981, only 32 out of 600 correctional facilities in the United States had been accredited as adopting and complying with these standards. Claimant has therefore failed to prove this was the prevailing medical standard in the community which encompassed Greene Correctional Facility, no matter how one defines community or how large a geographical area is included, at the time of claimant's surgery.

Claimant also introduced testimony that, subsequent to the operation, Greene Correctional Facility changed its procedures and now requires the outside surgeon to come to the facility to examine the patient prior to an operation and also requires the inmate's appropriate medical records to be forwarded to the surgeon. However, this is of no avail to claimant since this procedure was not in effect in June of 1985 and, therefore, the facility could not be guilty of violating its present standard at that time. Neither was the State negligent in failing to adopt such a standard prior to June 1985. With only 32 out of 600 institutions adopting the ACA standards by 1981, it is clear that they were normative goals to be striven for, not the prevailing medical standards of any given community. Claimant introduced absolutely no expert medical testimony with respect to any standard actually existing at the time of claimant's operation, either within the geographic community or the community of prisons for adults. Thus, the court finds that claimant has failed to sustain his burden of proving the direct negligence of defendant.

(2)

Although there was no testimony by a medical expert as to the applicable standards of medical care in the community to establish that Dr. Cally's conduct violated such standards, Exhibits 15, 25, 26 and 50 clearly prove Dr. Cally's negligence and malpractice with regard to the operation on claimant. This finding was made by the Hearing Committee of the State Board for Professional Medical Conduct of the Department of Health and ratified by both the Commissioner of Health and the Board of Regents. (See above.) These exhibits were introduced into evidence by claimant without objection by the State. Thus, there is sufficient evidence in the record to find that Dr. Cally's treatment of the claimant constituted negligence. ¹

Furthermore, even though in medical malpractice actions a departure from the accepted standards of medical practice must ordinarily be proven by expert medical opinion testimony, under certain circumstances a departure from the standard may be established without the aid of an expert. (Fiore v. Galang, 64 N.Y.2d 999, 1001, 489 N.Y.S.2d 47, 478 N.E.2d 188; Meiselman v. Crown Hgts. Hosp., 285 N.Y. 389, 396, 34 N.E.2d 367.) A medical expert's testimony is not required where a lay person, relying on common knowledge and experience, can find that the harm would not have occurred in the absence of negligence. (Griffin v. Norman, 192 N.Y.S. 322 [App.Term 1st Dept.] [extraction of wrong tooth].) This exception applies to the instant action. A lay person may find that under the facts of this case, where the patient is referred for surgical repair of a left inguinal hernia, and the operating surgeon nevertheless performs a right inguinal herniorrhaphy, such act constitutes negligence. The court so finds.

(3)

Claimant urges that, whether or not the State is liable to claimant through its own actions, it is also...