New York State Court of Claims

New York State Court of Claims
LAUREY v. STATE OF NEW YORK, # 2019-018-064, Claim No. 124754


Medical malpractice action for delay in diagnosis and treatment. Claimant failed to establish any delay proximately caused injury.

Case information

UID: 2019-018-064
Claimant short name: LAUREY
Footnote (claimant name) : The Court has corrected the caption to Claimant's name as he spelled it at trial.
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 124754
Motion number(s):
Cross-motion number(s):
Claimant's attorney: LYNN LAW FIRM, LLP
By: Walter F. Benson, Esquire
Defendant's attorney: LETITIA JAMES
Attorney General of the State of New York
By: Joseph D. Callery, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: November 12, 2019
City: Syracuse
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant filed and served a claim seeking damages for Defendant's negligence and medical malpractice while Claimant was incarcerated at Auburn Correctional Facility (Auburn). A trial on the issue of liability was held in the Syracuse District on February 25, 26, 27, and on March 20, 2019.

Claimant testified that on August 5, 2012, he was playing basketball when he jumped and as he hit the ground, he heard a popping sound in his right knee. He fell to the ground immediately. With help from other inmates, he went to the sergeant's station and from there was escorted to the facility infirmary. He was seen by a nurse, A. Hoppins, who examined Claimant's knee and found no obvious deformity, noting Claimant could bear weight on the knee and ambulate. Nurse Hoppins noted that the area behind the knee was slightly swollen. He was treated with ice, an ace bandage, and ibuprofen.(2) The next day, his right knee was X-rayed. Claimant saw Dr. Pang Lay Kooi, the Facility House Service Director, who told him the X-ray showed nothing broken or dislocated, mild osteoarthritic changes were identified. The radiology report indicated "No action [was] Required At [that] Time.(3) Dr. Kooi restricted Claimant's physical activity and program for the next five days.

Claimant said his knee remained painful and that it would give out on him. He could hear clicking sounds, and it felt like something was moving around in his knee. Claimant testified he had to use stairs every day which caused his knee to hurt. He was excused from his work - building furniture - for a few days. When he returned to his job, he had no trouble performing the work, although, his knee was often very painful at the end of the day. On August 17, 2012, Claimant had a scheduled physical with Dr. Kooi. Dr. Kooi found Claimant had no physical limitations. He noted that Claimant had asthma, a hernia surgery, and was advised to stop smoking. His extremities were found to be normal. The physical examination report also reflects he was taking Feldene, an anti-inflammatory drug. There is no mention of Claimant having any issue with his right knee.(4)

Claimant testified that he periodically returned to the infirmary complaining of knee pain and the buckling of his knee. He was given over-the-counter medication which, he testified, helped a little but did not totally relieve the pain. Claimant returned to the infirmary on October 19, 2012, complaining of right knee pain, buckling, and trouble walking. He was given Tylenol and instructions on self-care. He was seen again for complaints with his knee on November 5, and December 13, 2012. He saw Nurse Practitioner Nancy Ryerson on December 18, 2012, and had questions about the treatment for his right knee. He was sent for physical therapy which included riding a bicycle and electric stimulation. He complained of knee pain during these physical therapy sessions. Claimant said physical therapy worsened his pain so he skipped going to the appointments. On May 24, 2013, physical therapy was cancelled due to the number of missed appointments. Claimant felt his knee was getting increasingly worse, however, after December 18, 2012, Claimant's next complaint in the Ambulatory Medical Records relating to his right knee was July 2, 2013.

On July 2, 2013, Claimant saw Nurse Ryerson who performed a McMurray test and a Valgus stress test. Both findings were abnormal. Claimant testified that was the first time anyone had manipulated his knee. The nurse requested an orthopedic consult to determine what caused Claimant's knee pain.

On August 13, 2013, Claimant saw Dr. Eldridge Anderson at Five Points Correctional Facility, and he also performed the McMurray and Valgus stress tests. The results were again abnormal. Dr. Anderson manipulated Claimant's right knee and found his range of motion was limited. An MRI was taken of his right knee on September 11, 2013. The MRI showed a tear in the posterior horn of the medial meniscus, mild bony contusion of the proximal lateral tibia and medial femoral condyle, small joint effusion and focal articular cartilage loss in the medial aspect of the lateral femoral condyle.(5) On December 2, 2013 at Cayuga Medical Center, Claimant had arthroscopic surgery performed and loose chondral fragments were found and removed.(6) Claimant then returned to Auburn to recover. After his recovery, Claimant testified that his knee improved. It no longer buckled or clicked and the pain lessened.

In May 2014, Claimant went back to the infirmary for right knee pain but recalled it was a dull pain. Another MRI was performed on May 7, 2014, and he requested an appointment with Nurse Practitioner Ryerson to get the results. He missed his appointments on May 14, 2014 and May 22, 2014. He saw Dr. Anderson on June 24, 2014, for right knee pain and swelling. Dr. Anderson prescribed some physical therapy.

Claimant testified during his deposition that after Dr. Anderson performed the arthroscopic surgery in December 2013, his symptoms got a little better but it still constantly hurt and, at trial, he mentioned that he still had other periodically recurring symptoms like the clicking. Claimant underwent a second arthroscopic surgery at Arnot Hospital in 2016 and additional cartilage fragments were removed. A similar procedure was performed on his left knee in 2017.

In 2018, Claimant was at Willard Drug Treatment Campus (Willard). The medical records indicate Claimant used bilateral knee sleeves and visited the infirmary on August 30, 2018, September 28, 2018, October 9, 2018, October 15, 2018, October 22, 2018, and November 13, 2018,(7) complaining of knee pain either in his right knee or both. Claimant testified that he re-injured his right knee at Willard performing exercise drills. He has permanent limitations with his physical activity now, he cannot engage in running, squatting, basketball, or weightlifting.

Dr. Gregory Famiglio testified on Claimant's behalf. After medical school, Dr. Famiglio did a residency and fellowships in anesthesiology. Thereafter, he practiced in Florida as an anesthesiologist. In 2003, he moved to Pennsylvania and took a job in the corrections medical field, and became the medical director at a women's maximum security facility. Since 2011, he has worked as a medical director practicing addiction medicine and some pain management. He is licensed to practice medicine in the States of Florida and Pennsylvania but not New York, however, Dr. Famiglio testified that the standard of care would be the same in all three states. He also said the standard of care for inmates should be the same as for the non-incarcerated population.

It was Dr. Famiglio's opinion that given Claimant's history of right knee complaints, a referral to an orthopedist should have been made within six months of the accident, preferably sooner, and the failure to refer Claimant within that time frame was a departure from good and accepted practice. He also felt that Dr. Kooi, as medical director at Auburn, should have known that no orthopedic referral had been made within five months after Claimant's injury. In his deposition, Dr. Kooi said that as of December 2012, he believed Claimant had seen an orthopedist, he was mistaken.

Dr. Famiglio testified that he would defer to orthopedic specialists when he was asked about the diagnosis and treatment of meniscus tears or loose bodies in the knee. His testimony focused on the time it took to refer Claimant to an orthopedic specialist.

Dr. Eldridge Anderson, a now retired board certified orthopedic surgeon who performed Claimant's first knee surgery, testified on Claimant's behalf. He treated Claimant in 2013, and at trial confirmed the history of Claimant's injury and followup visits. On August 13, 2013 when he met with Claimant he suspected a torn meniscus. Dr. Anderson's examination that day indicated Claimant had trace effusion and some instability of the knee. Dr. Anderson manipulated Claimant's knee, conducted a pivotal shift test and McMurray and both showed abnormal results. Dr. Anderson gave Claimant a knee sleeve and continued physical therapy.

Dr. Anderson requested an MRI be performed on Claimant's knee. He testified a torn meniscus cannot be detected by an X-ray. The MRI was done on September 11, 2013. Dr. Anderson met with Claimant again on October 8, 2013. The MRI was positive for tear of the medial meniscus, mild bony contusion of tibia and medial femoral condyle, small joint effusion and cartilage loss in the lateral femoral condyle. He also testified that physical therapy and medication cannot repair a meniscus tear, and physical therapy can either aggravate or alleviate the symptoms. Dr. Anderson did arthroscopic surgery on December 2, 2013, at Cayuga Medical Center. During the surgery, Dr. Anderson found "chondral chips" or cartilage chips and a stable tear of the "medial meniscus, . . . did not look like it was indicative of an injury".(8) Dr. Anderson found the cartilage chips were more likely causing his symptoms and he removed them. He acknowledged that the symptoms described by Claimant, pain, weakness, and buckling, were consistent with the chondral chips he found during the surgery. He could not tell when those chondral or cartilage chips in the knee broke away and they did not show on the MRI.

Daniel DiChristina, M.D., a board certified orthopedic surgeon since 1996, practicing in Syracuse, New York, testified for the State. He performs about 400 surgeries a year, including approximately 125 arthroscopic knee surgeries. He opined that there was no deviation from the standard of medical care Claimant received at Auburn. Dr. DiChristina testified after reviewing the medical records from Auburn, the September 11, 2013 MRI report, and Dr. Anderson's post-arthroscopic report. He opined that the conservative approach to the treatment of Claimant's knee was appropriate. The lateral meniscus tear was stable and with Claimant's arthritic condition, surgical intervention often does not relieve the symptoms. Physical therapy can help sometimes and waiting to perform surgery caused Claimant no further injury. The pieces of cartilage were "secondary to a breakdown of the surface of the bone",(9) an early arthritic condition requiring "extended conservative care."(10) Dr. DiChristina testified that the literature indicates that two years after a surgical knee scope, the patient often has the same complaints as before the surgery. There are repeat patterns of periods of pain with people with arthritic knees. Dr. DiChristina opined that the delay between Claimant's injury and the arthroscopy procedure caused no injury to Claimant and the conservative care between the date of injury and arthroscopy was not a deviation from the standard of care.DISCUSSION

"It is fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons" (Rivers v State of New York, 159 AD2d 788, 789 [3d Dept 1990]; accord Auger v State of New York, 263 AD2d 929, 931 [3d Dept 1999], lv denied 76 NY2d 701 [1990]). "Where an inmate alleges that defendant abdicated its duty to provide adequate medical care, he or she must present competent evidence demonstrating defendant's common-law negligence or that it departed from accepted standards of care and that such deviation was the proximate cause of the sustained injuries" (Knight v State of New York, 127 AD3d 1435 [3d Dept 2015]).

The Court finds Claimant has failed to establish a deviation from the standard of care that has caused him injuries. Although Dr. Famiglio was familiar with the delivery of medical care in prisons, his expertise was not orthopedics. The year-long delay in referring Claimant to a specialist could fail to meet acceptable standards of medical care in many cases, however, Dr. Famiglio deferred to the orthopedic specialists for the proper care and treatment of Claimant's orthopedic condition. Moreover, Claimant's pursuit of medical care for his knee only five times in the ten months following his basketball injury, despite many other visits to the infirmary is also relevant to the delay. After December 18, 2012, he was sent for physical therapy, and he did not return to the infirmary for his knee until July 2, 2013, when he was referred to Dr. Anderson. In this case, Dr. Anderson testified based upon his diagnosis after the arthroscopy, that he found chondral or cartilage chips in Claimant's knee which were not visible from the MRI but were most likely the cause of his symptoms. Dr. Anderson was not sure what produced the cartilage chips or when they may have been produced, but he opined the source might have been what he described as a shallow defect in the medial femoral condyle. He testified that the torn meniscus that was visible on the MRI was stable and not indicative of injury.

Dr. DiChristina, an experienced orthopedic specialist, testified that the delay in referring Claimant to a specialist sooner was not a breach of the standard of care, because the lateral meniscus tear was stable and required no treatment; sometimes physical therapy helps, and the condition may not respond to surgical intervention, which bears its own risks. Dr. DiChristina opined that the extended conservative care was medically appropriate since the cause of Claimant's pain was the chondral or cartilage chips from the breakdown of the surface of the bone, an early arthritic condition. Most importantly, Dr. DiChristina testified that Claimant did not suffer any injury as a result of any delay in diagnosis and treatment of his knee condition. Also, since Dr. Anderson noted that the chondral or cartilage chips were not revealed by the MRI, the Court finds Claimant did not show that earlier testing would have likely exposed the actual cause of his pain and knee problems. In this case, Dr. DiChristina testified that the delay in surgical intervention was the correct approach.

Even accepting Claimant's argument that the failure to perform further testing of Claimant's knee or to refer him to a specialist before July 2013, was not an affirmative medical judgment but rather indicative of neglect, this does not establish a medical malpractice cause of action. To establish a medical malpractice cause of action there must be proof of more than neglect, there must be proof that the neglect was a deviation from the standard of care and caused injury. Claimant's proof fails on both counts. It was not a deviation from the standard of care to wait to refer Claimant to an orthopedic specialist, or for the surgery to be performed, even if additional testing of Claimant's knee should have been performed earlier. Attempting physical therapy, which was ordered within six months of Claimant's date of injury, was not a deviation from the standard of care. Dr. Anderson relied upon the fact that the physical therapy did not relieve Claimant's problems and discomfort as one of the reasons he recommended surgery in October 2013. Finally, even after Claimant had the surgery to remove the chondral or cartilage chips, he still had pain and recurrent symptoms and, thereafter, underwent additional surgery to address the same complaints he had in 2012-2013. Dr. DiChristina's testimony supports a finding that Claimant has failed to show that Defendant's delay in diagnosis and treatment deprived him of a substantial possibility of avoiding injury (Wild v Catholic Health Sys., 85 AD3d 1715 [4th Dept 2011] affd 21 NY3d 951 [2013]).

The claim is hereby DISMISSED.


November 12, 2019

Syracuse, New York


Judge of the Court of Claims

2. The Ambulatory Health Record (AHR), Exhibits 1 and 2 show he was on Feldene.

3. Exhibit 1, August 6, 2012.

4. Exhibit 5.

5. Exhibits 1, 2, Multi-Diagnostic Services, Inc., report of Clifford D. Barker, M.D.

6. Exhibit 3.

7. Exhibit F.

8. Trial Transcript, February 26, 2019, p. 160.

9. Trial Transcript, February 27, 2019, p. 248.

10. Trial Transcript, February 27, 2019, p. 249.