New York State Court of Claims

New York State Court of Claims
MORAWSKI v. THE STATE OF NEW YORK, # 2019-032-502, Claim No. 123752


Following a unified trial assessing both liability and damages, the Court awarded claimant $30,000 for defendant's negligence in filling claimant's prescription with the incorrect medication and failure to properly treat the symptoms that resulted from such negligence.

Case information

UID: 2019-032-502
Claimant(s): DAIN MORAWSKI
Claimant short name: MORAWSKI
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 123752
Motion number(s):
Cross-motion number(s):
Claimant's attorney: The Law Offices of Elmer Robert Keach, III
By: Elmer Robert Keach, III
Defendant's attorney: Hon. Letitia James, Attorney General
By: Belinda A. Wagner, Assistant Attorney General
Third-party defendant's attorney:
Signature date: April 15, 2019
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


The instant claim was filed on January 8, 2014, seeking damages for injuries sustained as the result of defendant's negligence in providing the incorrect medication to claimant while he was incarcerated at Franklin Correctional Facility (FCF). The matter proceeded to trial on July 11, July 12, October 19 and December 14, 2017. At the outset of trial and in its posttrial brief, defendant conceded that it was negligent in providing claimant with the incorrect medication, but contests whether such negligence was a substantial factor in causing the events that injured claimant. Defendant maintains that claimant was comparatively negligent in that he knew the distributed medication was wrong, but continued to take it for a few days. Claimant argues that defendant did not provide adequate medical care after discovering that the incorrect medication was given to claimant.

FACTS Claimant, Dain Morawski, was born with cystic fibrosis (CF). CF causes, among other things, a digestive malabsorption condition. He is required to take six pills of the medication Creon with each meal and three pills of Creon with his two snacks per day in order to properly digest and absorb nutrients from food, totaling 24 pills per day.(1) He described the physical characteristics of a Creon pill as a capsule that is clear on one side and red on the other, with beads inside (Exhibit 7). The word "Creon" is stamped on the pill. While incarcerated, claimant was approved to carry Creon on his person as he needed to take it throughout the day. He would order the pills and receive them one or two days later (T: 510).(2)

On November 19, 2013, claimant arrived at FCF. His prior medical records from another correctional facility, dated April 12, 2013, indicate that he was taking Colace. Colace is a medicine used to treat constipation, which is a condition he has had most of his life (Exhibit D, p. 43; T: 544-545). On November 21, 2013, a Thursday, claimant received his packet of medication at about 3 p.m. When he opened the package containing the medication, the pills did not look like Creon. The pills were a different color, shape and size, and did not have the word "Creon" stamped on them (T: 512; Exhibit 6). According to claimant's testimony, he returned the medication to the infirmary that day and was told by Nurse Hyde that she had called the pharmacy and confirmed that the pills were the generic form of Creon (T: 513-514). He received the pills at 3:00 p.m. that day and took them with dinner, and possibly with a snack (T: 515). He continued taking the prescription as prescribed on Friday, November 22, 2013, with his three meals and possibly a snack (T: 552). During that day, he started to feel nauseous and his stomach burned. His stool contained dark red blood with a strong odor and he coughed up blood throughout the day. He testified that he never coughed up blood or experienced blood in his stool during prior cystic fibrosis exacerbations. On Friday, he went to the infirmary, but the record from that visit does not indicate that claimant reported that he was coughing up blood or experiencing bloody stools.

Exhibit 40, the Inmate Grievance Complaint filed by claimant indicates that he took the incorrect medication for two days and then went to sick call on Saturday, November 23, 2013 at 12:30 p.m. At that time, he was informed by Nurse Hyde that he was taking the generic form of Creon and to continue the medication. He testified that he told Nurse Hyde that he was coughing up blood, excreting blood, and experiencing constipation, although the record from that visit does not indicate that claimant reported those symptoms (T: 550). At some point that same day, claimant telephoned his mother who called an outside pharmacy to identify the drug he was taking (T: 551).(3) Claimant's mother told him that the medication he was taking was Delzicol, a medication for Crohn's disease which is to be taken only twice a day (Exhibit 40).(4) He testified that he stopped taking the medication after he spoke to his mother. That evening, he went back to sick call and informed the nurse of the error. She told him to stop taking the medication (Exhibit 40, p. 4). He alleges that he took more than 50 Delzicol pills in three days and was in severe pain.

On Sunday, November 24, 2013, he returned the medication to the infirmary (Exhibit 9; Exhibit D, p. 40). He reported that he was vomiting on this day, and was again instructed not to take the medication (Exhibit 9; Exhibit 40, p. 5).

On Monday, November 25, 2013, the prison's pharmacist, Jeffrey Burgess, confirmed that claimant was given the wrong medication. Claimant was provided with 1,080 Creon pills that day (T: 558; Exhibit 40, p. 5; Exhibit 5). Claimant saw Nurse Kelly on this day, but the record does not reflect that claimant reported bloody stools or blood when coughing (Exhibit 9).

On Tuesday, November 26, 2013, claimant was examined by Dr. Cahill, who noted that claimant's lungs were clear, but his abdomen was distended. He ordered a blood test (Exhibit 9). There was no reflection in the notes of claimant coughing up blood or having bloody stool (T: 559).

On Thursday, November 28, 2013, claimant returned to the infirmary, complaining of constipation for seven days (Exhibit D, p. 37). Claimant was sent to Alice Hyde Medical Center (AHMC) where he was diagnosed with gastritis and constipation (Exhibits 22, 23). The treatment notes from AHMC indicate that claimant reported having blood in his stool on the first day that he took the wrong medication, but no bloody stools since that time (Exhibits 22, 23). He was prescribed Miralax, Zofran and Tylenol (Exhibit 9).

On Friday, November 29, 2013, Dr. Cahill examined claimant at FCF. Claimant had watery bowel movements and his abdomen was mildly distended and tender. Dr. Cahill noted that claimant had a small bowel obstruction at one point in his life (Exhibit D, p. 37).

On Tuesday, December 3, 2013, the infirmary notes indicate that claimant had bowel movements so long as he took Miralax (Exhibit 9, p. 3). Claimant reported that his abdomen was still tender (Exhibit 9, p. 3). Claimant acknowledged upon cross-examination, that the record does not reflect that he reported any bloody coughing or stools, but he asserted that he did report those symptoms (T: 568).

On December 5, 2013, a Thursday, he was called down to the infirmary to discuss the use of his nebulizer and life vest for his cystic fibrosis. Claimant did not complain about gastrointestinal issues on this day.

On Friday, December 6, 2013, claimant was seen in the infirmary for coughing up mucus with bright red blood (Exhibit D, p. 34). He also reported experiencing bloody stools since November 23, 2013. He was sent to AHMC by van and returned to the correctional facility on that same day. He was not coughing up blood upon his return (Exhibit D, p. 186). He was admitted to the infirmary for observation overnight (Exhibit 21).

On Saturday, December 7, 2013, claimant was coughing up blood again (Exhibit 9, p. 1); Exhibits 13, 14). He was sent back to AHMC, where he reported that he was coughing up blood since the day before, and had bloody stool for two weeks (Exhibit 37, pp. 289, 294). He was diagnosed with abdominal pain and hemoptysis (Exhibit 30, p.1).(5) X-rays showed that his lungs were clear (Exhibit 34, p. 1). He was returned to FCF, but at some point on December 7, 2013, he was sent back to AHMC, and then transferred by ambulance to Albany Medical Center (AMC) (Exhibit 28, p. 6).

Claimant was hospitalized at AMC for 20 days. In the beginning, the physician's treated him for hemoptysis. During his initial examination on December 7, 2013, the doctor found claimant to be "pain free" (Exhibit 37, p. 22). When he first arrived at AMC, he was placed in a special unit upon the suspicion that he may have been suffering from pneumonia or tuberculosis (T: 575). Eventually, a gastrointestinal consultation was requested. Per claimant's history, it was noted in his records that he had "purplish bloody stool", "claims BRBPR", and hematochezia (Exhibit 37, pp. 22, 75 and 77).(6)

On December 11 and 15, 2013, he had scans of his colon which showed stool throughout, consistent with constipation (Exhibit 37 pp. 70, 254). He was given an enema on December 11, 2013 and blood was noted in the toilet on December 12, 2013. He was given another enema on December 17, 2013 and blood streams on his stool were noted on December 19, 2013 (Exhibit 37, pp. 15, 70; Exhibit 37, p. 83). His fecal occult blood test was positive on December 19, 2013 (Exhibit 37, p. 83). He had a colonoscopy and EGD on December 20, 2013 with normal results. However, his duodenum was mildly inflamed (Exhibit 37, p.110). On multiple days during his stay at AMC, claimant had visible blood in his stool (Exhibit 37, pp. 89, 91 [noted by staff ], 94 [reports of maroon stools], 95). On December 23, 2018, a physician noted in claimant's chart that "[he had] no idea where [claimant] is bleeding from" (Exhibit 37, p. 90). It was also noted in his chart that he had "chronic constipation" due to his CF (Exhibit 37, p. 93). On December 26, 2013, a note in claimant's chart indicated that his condition was "improved" and there were "no signs of active bleeding" (Exhibit 37, pp. 96-98). Claimant was discharged on December 27, 2013 and sent to Coxsackie Correctional Facility's infirmary for a few days (Exhibit D, p. 178). On December 30, 2013, claimant arrived at Greene Correctional Facility, where during the next month, he reported two instances of dark red stool (Exhibit D, pp. 21-26).

Claimant testified that after being discharged from AMC, he still had bloody stools and continues to have them a few times a year. He also has a frequent burning feeling in his stomach (T: 534). He was recently diagnosed with an ailment termed Distal Intestinal Obstruction Syndrome (DIOS) with symptoms of constipation and burning, but the ailment does not cause blood in his stools (T: 534). In 2013, Jeffrey Burgess was the pharmacy supervisor at FCF (T: 35). Mr. Burgess worked on his own, without another pharmacist, pharmacy intern or an inmate helper (T: 70-71). He processed 1,700 prescriptions per month (T: 71). Mr. Burgess acknowledged that he committed an error when he filled claimant's prescription for Creon with Delzicol by grabbing the wrong bottle off the shelf (T: 74). He testified that Creon supplements a person's pancreatic enzymes while Delzicol treats Crohn's disease or ulcerative colitis. Claimant received 400 milligram extended release Delzicol capsules (T: 43). Mr. Burgess testified that the Delzicol pill looks different from a Creon pill (T: 60-61).(7) The maximum dosage of Delzicol is 6 capsules per day, while claimant's prescription for Creon was written so that claimant could take up to 21 pills per day (T: 44; 51-52). Based upon Delzicol's half-life, it would take 84 hours to be eliminated from the body (T: 47-48; 113). However, if claimant did not have a bowel movement, the medication would remain in his system (T: 141). On the morning of Monday, November 25, 2013, when Burgess found out that claimant had taken the wrong medication for several days, he did not contact any professional help lines, even though based on Delzicol's half-life, it was still present in claimant's body (T: 89; 114). He only informed Dr. Cahill of what had transpired (T: 90). The package insert that came with Delzicol contains information about adverse reactions and overdose information (Exhibit 1).(8) Mr. Burgess was not aware of anyone from FCF that reached out to the manufacturer about what to do if someone takes an overdose of the drug (T: 87). Tammy Hyde, R.N. saw claimant on Saturday, November 23, 2013.(9) Claimant came to emergency sick call that day some time between 7:00 and 3:00 to complain that Creon was causing him gastric upset.(10) Nurse Hyde testified that claimant did not tell her that he was given the wrong medication (Exhibit 48, p. 3). She did not know how many pills he had taken that day (Exhibit 48, p.12), and she did not contact the prison's physician or pharmacist, nor did she contact the Poison Control Center (Exhibit 48, p. 13). She informed him to take the pills with food to avoid gastric pain and to follow up in sick call if it worsens or persists (Exhibit D, p. 41). Dawn Ball, R.N. testified that she saw claimant at emergency sick call on Saturday, November 23, 2013 at 9:00 p.m. (Exhibit 47, p. 2). Exhibit 9, p. 8 reflects her notes from that sick call visit. She advised him not to take the medication for the weekend. She wrote: "need to investigate mon am & identify pill in bag - has taken this med X3 days filled on Thur 11/ 21/13 Needs correct med to digest food . . ." (Exhibit 9, p. 8). She testified that although he complained of abdominal pain and constipation, these were not symptoms that she would call a physician over the weekend (Exhibit 47, p. 9). There was no internet service at the infirmary and the facility's pharmacist was not on call on the weekends (Exhibit 47, p. 13).

Mary Kelly, R.N., testified that she was working in the emergency room at FCF on Sunday, November 24, 2013 when claimant was there (T: 145). She testified that if a patient presented with symptoms that she believed needed more skilled medical attention, she could have used the Telemed system, a mechanism to talk with a physician at Erie County Medical Center via a television screen about the patient (T: 149). However, many times the Telemed system did not work properly (T: 150). Another available option was to page the facility's physician who would then call back to discuss the patient (T: 151-152), or send the patient to an outside hospital's emergency room (T: 151). When claimant came to the FCF emergency room that day, he was not in any distress but was very upset that he received the wrong medication (T: 152). Nurse Kelly did not have the pharmacist's phone number available to call him, and testified that it was not "in the practice" to do so (T: 164-165). She wrote in her notes from claimant's visit that he was not vomiting, although he reported that he vomited earlier (T: 155). Although she did not evaluate his abdomen, she told him not to take any more of the medication until he saw the physician, and gave him Almag, an antacid to settle his stomach (T: 155; 166). Nurse Kelly testified that claimant was not "complaining of severe pain" and that he looked "absolutely fine" (T: 163; 166). At her request, claimant returned the medication so that she could speak with the physician and pharmacist the next day when she worked the day shift (T: 161-162; Exhibit 9, p. 7). On Monday morning, the pharmacist told her that claimant had received the wrong medication and the correct prescription was filled that day (T: 183). Dr. Gerald Cahill, the Medical Director at FCF testified that he was not working during the weekend of November 23 and 24, 2013, nor was he contacted by any nurse that weekend about claimant. He first learned of claimant's complaints either on Monday, November 25, 2013 or Tuesday November 26, 2013. Through independent research, Dr. Cahill determined that about 70% of ingested Delzicol remains in the bowel, while about 30% is excreted by the kidneys. The portion that remains in the bowel remains there until the patient has a bowel movement. If claimant took his prescribed Creon dosage amount with each meal and had one snack, then over the course of Friday and Saturday, claimant took four times the maximum dosage of Delzicol recommended by the manufacturer, in addition to the Delzicol pills that claimant ingested on Thursday. Dr. Cahill testified that one of the side effects of Delzicol was constipation, which could be more pronounced if a patient had CF and was prone to constipation. He acknowledged that a patient could have multiple side effects from an overdose of Delzicol including: dizziness, tinnitus, fatigue, diarrhea, abdominal pain, bloating, flatulence. Inflammation of the small intestine could only be detected by a specialized endoscopy. Dr. Cahill testified that a person with an inflammation of the stomach or small bowel could cough up blood and produce black, tarry stools.(11) However, coughing up blood could also be caused by CF, and claimant did not report that he was experiencing black, tarry stools (T: 289). A bleed in the small bowel could also present as pink blood or stool with blood covered mucus on it, which is usually from ulceration caused by inflammation. It was his belief that "the breakdown products of [Delzicol], which would be aspirin based, could be irritant [sic], cause inflammation and possibly result in bleeding" (T: 238). Bloody stools could also be caused by hemorrhoids (T: 290). He agreed that if someone took an overdose of medicine, a physician and not a nurse is the proper professional to determine a course of treatment. He believed the nurses thought claimant was not in acute distress, so they did not contact a physician over the weekend. He admitted that he did not make an effort to determine the effects of an acute overdose of Delzicol on Monday when the pharmacist told him what happened to claimant. When he saw claimant on Tuesday, he ordered blood work to check claimant's blood count, chemistry screening, and liver and kidney functions. He did not send claimant to the emergency room on Monday because claimant was not complaining of pain, bloody stools, or coughing up blood, and a physical examination only showed a slight distention of his abdomen, which is frequently found in patients with pancreatic insufficiency absorption problems. Dr. Cahill admitted that an emergency room would have been a more appropriate setting to assess claimant (T: 251). If claimant had been transported to the emergency room, he could have been given activated charcoal to ingest, or a gastric lavage could have been performed.(12) When he reviewed claimant's blood work, it was normal, aside from an elevated "BUN" which could indicate minimal dehydration, or the end product of the result of the breakdown of blood from an upper gastrointestinal bleed.

Angela Morawski, claimant's mother, testified that she talked to her son everyday by telephone while he was in prison. He lived with her for most of his life. She testified that he had been taking Creon since he was two and half months old. He expressed no complaints to her when they spoke on the phone on Thursday, November 21, 2013 or Friday, November 22, 2013. She spoke to him late in the evening on Saturday, November 23, 2013 and he gave her the letters and numbers stamped on the drug he received on the previous Thursday. She suspected something was wrong as she had never heard of a generic form of Creon. He told her that he was coughing up blood, had bloody stools, and had stomach pain. She called a CVS pharmacy and was informed that the drug he was taking was Delzicol. She told her son to stop taking the medication. She did not talk to him again until he was admitted to AMC. She complained to the Governor's Office about the incident and received a letter from Dr. Carl J. Koenigsmann, Deputy Commissioner/Chief Medical Officer of the Department of Corrections and Community Supervision, who acknowledged that her son was given the wrong medication (Exhibit 41).


Dr. Todd Eisner, a board-certified gastroenterologist, testified on behalf of claimant.(13) He testified that if someone is not taking Creon for a few days and continues to eat normal meals, they would not absorb fat, and would develop symptoms of fat malabsorption including abdominal pain, fat in the stool, bloating and floating stools.(14) Constipation would not be a symptom. He opined that the symptoms that claimant presented at AHMC and AMC were consistent with an overdose of Delzicol. Methods to counteract an overdose include: taking charcoal to induce vomiting, a gastric lavage, or taking a laxative to assist the drug in exiting the gastrointestinal tract. Dr. Eisner testified that the Delzicol claimant ingested likely became active sooner because claimant was also taking Omeprazole, which raises the stomach's pH levels.

Dr. Eisner acknowledged that a bronchoscopy performed on claimant at AMC showed that claimant was not bleeding from his lungs. The endoscopy and colonoscopy performed at claimant at AMC also produced normal results. Because AMC did not see anything abnormal during claimant's endoscopy or colonoscopy, but did note microscopic blood in the stool, Dr. Eisner opined, within a reasonable degree of medical certainty, that claimant's ailment was inflammation in the small intestine from Delzicol, which cannot be detected by an endoscopy or a colonoscopy.(15) Small intestine inflammation can be detected through a capsule endoscopy or a double-balloon enteroscopy, neither of which were performed at AMC. He testified that his opinion was supported by not seeing any previous history of gastrointestinal bleeding in claimant's AMC chart. He also believed that claimant's constipation contributed to his acute overdose symptoms, as the constipation kept the Delzicol in the gastrointestinal tract where it was absorbed. He believed that giving claimant a laxative on Monday, November 25, 2013, would have helped the Delzicol exit his intestines.

Dr. Eisner explained that DIOS is caused by excessive mucus produced in cystic fibrosis patients that plugs the gastrointestinal tract causing an obstruction. He did not believe that claimant had DIOS in 2013 because his imaging did not show any evidence of an obstruction, and claimant was bleeding which does not occur with DIOS. He also did not believe that claimant's condition was caused by hemorrhoids because they were not noted during his colonoscopy. Additionally, hemorrhoids would not cause abdominal pain, abdominal distension, occult bleeding, or microscopic blood. However, if microscopic blood exists and the colonoscopy and endoscopy are negative, he opined that the blood is coming from the small intestines. He testified that claimant continued to have problems after his discharge from AMC due to Irritable Bowel Syndrome which can be triggered from the damage to his gastrointestinal tract from the overdose of Delzicol.(16)

Upon cross-examination, Dr. Eisner admitted that there were no known clinical studies showing that an overdose of Delzicol will cause ulceration in the small intestines. He maintained that hemorrhoids can be seen during a colonoscopy. Upon withdrawal of the scope during a colonoscopy, the physician retroflexes "the scope to kind of make a U-turn to look for hemorrhoids or any disease process in the anal/rectal area" (T: 416). Dr. Eisner noted that hemorrhoids would cause BRBPR, but claimant reported black, tarry stools at AMC. AMC did not mention nor treat claimant for hemorrhoids. He noted that the discharge summary from AMC stated: "[d]istal digital rectum and anal verge were normal" (T: 438).

Dr. Thomas Mahl, a board-certified gastroenterologist, testified on behalf of defendant.(17) Dr. Mahl concluded that based upon the totality of the medical evidence, claimant only suffered from bleeding from a perianal source, not from the small intestine, as concluded by Dr. Eisner. After reviewing the functions of the entire gastrointestinal tract, he testified about cystic fibrosis, which prevents the pumping of chloride out of cells, causing secretions within the body to be very thick. These secretions cause plugs in the lungs and the gastrointestinal track, which includes the pancreas and colon. Claimant had pancreatic insufficiency due to CF. Pancreatic insufficiency causes abdominal pain and bloating. Additionally, CF patients have chronic constipation that causes hemorrhoids. Internal hemorrhoids are not visible from the outside and they are not palpable during a rectal examination because they are comprised of veins which are very soft. He noted that claimant had a long history of gastrointestinal problems throughout his life, having been admitted to AMC many times. He was eventually diagnosed with DIOS and severe constipation (T: 616).(18) According to Dr. Mahl, the number one side effect of Creon is perianal dermatitis, which he defined as enzymes digesting the skin once they are out of the digestive tract.

He explained that an endoscopy is administered through the mouth to the stomach and reaches the first part of the small intestine. However, there is twenty feet of the small intestine that cannot be seen either through an endosocopy or a colonoscopy. A colonoscopy looks at the anus/rectum and colon. These tests on claimant, which were done at AMC, were normal with only some slight redness in the stomach. He testified that Delzicol is an "extraordinarily safe drug to use" (T: 627). In his career, he has seen only three patients experience negative side effects from Delzicol. Two experienced an exacerbation of diarrhea, and one experienced abnormal liver tests. Dr. Mahl was not aware of Delzicol causing constipation. Dr. Mahl reported that there were no reported overdoses on the medication from the manufacturer to analyze. Dr. Mahl noted that claimant's kidney function was tested at AHMC and was normal. Claimant's CAT scans at AMC did not indicate a thickening of the bowel, which would be reflected if there was an injury to the bowel that caused diarrhea. Claimant's hematocrit and hemoglobin results, which measure the red cell counts in the blood, were persistently normal, meaning claimant was not significantly bleeding. Claimant's orthostatic blood pressure readings, taken while laying down, sitting, and standing up, were also normal, indicating his blood volume was not low. To Dr. Mahl, a patient presenting with a normal hematocrit and hemoglobin, but with bright red blood around the outside of his stool and with chronic constipation, within a reasonable degree of medical certainty, indicates perianal bleeding either from an anal fissure or hemorrhoids.(19) In his opinion, within a reasonable degree of medical certainty, claimant did not suffer from an acute injury from an overdose of Delzicol, and the CAT scans and endoscopy results did not indicate an injury to the gastrointestinal tract. He also testified that hemorrhoids are not always seen during a colonoscopy, particularly with young people. There is a 30% chance of seeing hemorrhoids during a colonoscopy. The best scopes for the determination of hemorrhoids is the flexible sigmoidoscopy, or an anoscopy, which is rarely used because the anoscope is very painful (Exhibit L). He noted that an injury to the small bowel or the colon does not cause constipation. He also noted that, in October 2014, claimant's treatment notes indicate that he suffered from bright red blood per rectum, and a physician opined that he exhibited "symptoms secondary to constipation hemorrhoidal bleeding" and stated that "[claimant] complains of BRBPR a few times a week" (Exhibit 18).

The package insert to Delzicol mentions that the most common adverse reactions were abdominal pain, eructation, pain, headache, back pain, diarrhea, rash, dyspepsia, rhinitis, flu syndrome, asthenia, flatulence, fever, constipation, and gastrointestinal bleeding (Exhibit 2). It also notes that Delzicol has been associated with an acute intolerance syndrome that may be difficult to distinguish from an exacerbation of ulcerative colitis. Symptoms include cramping, abdominal pain, bloody diarrhea, and some times, fever, headache and rash. Dr. Mahl noted that claimant did not have diarrhea, rash, or kidney problems as evidenced by his lab results.

Upon cross-examination, Dr. Mahl estimated that he has done 20,000 colonoscopies during the course of his career. He based his opinion on the totality of the reports of similar presentations of blood: stool streaked with blood and blood mixed in with stool, that are all indicative of bleeding from a perianal source. Additionally, claimant presented with a negative colonoscopy, negative CAT scans of the gastrointestinal tract, and hemoglobin and hematocrit numbers that did not change, which supported the conclusion that the blood in his stool was from a perianal source. Although claimant's fecal occult blood was positive, Dr. Mahl disregarded that test as it is very sensitive. He explained that a drop of blood from the lungs or eating a roast beef sandwich would make that test positive. Four notations of maroon-colored blood were indicated in claimant's hospital records. Although Dr. Mahl admitted that maroon-colored stool means the bleeding is coming from a place higher than the rectum, he opined that the interpretation of a color is a subjective finding that could differ from person to person. He absolutely ruled out that claimant was suffering from an ulceration to his small intestine, because ulcerations cause heavy bleeding and claimant would be orthostatic. When asked about claimant's temperature reading of 99.6 on November 28, 2013, Dr. Mahl testified that a fever is 100.5.

Dr. Mahl admitted that the standard of care for a physician doing a colonoscopy is to note any abnormalities, such as a hemorrhoid. However, he reiterated that a colonoscopy is not the best way to observe perianal disease. He testified that there are no reports of Delzicol causing colitis or ulceration. Although the package insert states in terms of supportive care "[t]his may include prevention of further gastrointestinal tract absorption" (Exhibit 2, p. 5), Dr. Mahl dismissed this language as standard language for every overdose. Further, if Delzicol were absorbed it would cause kidney damage, which was proved negative through blood tests.


"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], lv denied 76 NY2d 701 [1990]; accord Auger v State of New York, 263 AD2d 929, 931 [3d Dept. 1999]). "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, 1435 [3d Dept. 2015]). The distinction between a cause of action sounding in medical malpractice and one alleging medical negligence "is a subtle one, for medical malpractice is but a species of negligence and no rigid analytical line separates the two" (Martuscello v Jensen, 134 AD3d 4, 10 [3d Dept. 2015] [internal quotation marks and citations omitted]; accord Weiner v Lenox Hill Hosp., 88 NY2d 784, 787 [1996]). "The issue devolves to whether medical judgment is required or not; where the underlying claim arises from the failure to follow a medical order previously made or to apply standards of ordinary care, then it is negligence, without regard to whether expert testimony is deemed helpful to the resolution. However, where the conduct involves a standard established by means of the exercise of medical judgment, then it is malpractice" (Martuscello v Jensen, 134 AD3d at 11; see Weiner v Lenox Hill Hosp., 88 NY2d at 788; Moore v St. James Health Care Ctr., LLC, 141 AD3d 701, 702 [2d Dept. 2016]).

" 'The standard of care which is imposed on a pharmacist is generally described as ordinary care in the conduct of his [or her] business. The rule of ordinary care as applied to the business of a druggist means the highest practicable degree of prudence, thoughtfulness and vigilance commensurate with the dangers involved and the consequences which may attend inattention' " (Brumaghim v Eckel, 94 AD3d 1391, 1392 [3d Dept. 2012], quoting Hand v Krakowski, 89 AD2d 650, 651 [1982] [citations omitted]; see also Abrams v Bute, 138 AD3d 179, 183 [2d Dept. 2016], lv denied 28 NY3d 910 [2016]). A pharmacist can be held liable for negligence where he or she fails to fill a prescription "precisely as directed" (id.). Here, defendant does not dispute that Mr. Burgess was negligent when he erroneously filled claimant's Creon prescription with Delzicol.

Although the claim sounds in ordinary negligence based on Mr. Burgess's failure to properly fill claimant's Creon prescription, claimant also alleges that Dr. Cahill and the nurses at FCF failed to properly treat claimant's symptoms in the days that followed Mr. Burgess's failure to properly fill claimant's Creon prescription, and that such failure caused him significant pain and suffering. As to claimant's allegations against the medical caregivers at FCF who treated him for symptoms related to his taking Delzicol, "claimant must establish that the medical caregiver either did not possess or did not use reasonable care or best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field" (Graham v State of New York, UID No. 2018-029-090 [Ct Cl, Mignano, J., Sept. 24, 2018]). Inasmuch as the question of whether the care given to claimant and/or the alleged delay in rendering such care affected or exacerbated claimant's condition is not a matter of common knowledge that could be decided in the absence of expert testimony, the Court finds that the claim also sounds in medical malpractice (see Martuscello v Jensen, 134 AD3d at 11-12; see e.g. Janvier v State of New York, UID No. 2016-015-165 [Ct Cl, Collins, J., Oct. 19, 2016]; Ashby v State of New York, UID No. 2016-032-122 [Ct Cl, Hard, J., April 13, 2016]). Accordingly, to establish a claim for medical malpractice, claimant "must demonstrate that [defendant] deviated from acceptable medical practice, and that such deviation was a proximate cause of [his] injury " (James v Wormuth, 21 NY3d 540, 545 [2013]; see Mazella v Beals, 27 NY3d 694, 705 [2016]). "[T]o establish proximate causation, [claimant] must demonstrate that . . . defendant's deviation from the standard of care was a substantial factor in bringing about the injury" (Clune v Moore, 142 AD3d 1330, 1331 [4th Dept. 2016] [internal quotation marks and citation omitted]; see Wild v Catholic Health Sys., 21 NY3d 951, 954-955 [2013]).

Defendant conceded that it "was negligent both in the dispensing of [Delzicol] by Jeffrey Burgess and the care provided by the nurses and doctor on the days following the error by not sending the claimant to the emergency room or contacting other professionals to get advice on the proper course to take . . ." (Defendant's Posttrial Brief, pp. 72-73). Accordingly, the sole remaining issues are whether Mr. Burgess's negligence proximately caused claimant's injuries and whether "there was a substantial possibility that [claimant] was denied a chance of the better outcome as a result of . . . defendant's deviation from the standard of care" (Clune v Moore, 142 AD3d at 1331-1332 [internal quotation marks and citation omitted]).

Upon consideration of all the evidence, including a review of the exhibits, listening to the witnesses testify, and observing their demeanor as they did so, the Court finds that claimant established by a preponderance of the credible evidence that Mr. Burgess's negligence proximately caused some injury to claimant and that he would have had a better outcome had he been referred to a physician and more thoroughly examined on Friday when he first visited the infirmary. The Court found claimant credible in his testimony that he reported stomach discomfort and blood in his stools to the nurses and doctors at FCF on Friday, Saturday, Sunday and Monday, November 22-25, 2013. The Court also credits Dr. Cahill's statement that the better practice, instead of simply telling claimant to discontinue the medication, would have been to refer claimant to the emergency room or otherwise contact a physician. An intervention such as a gastric lavage or providing claimant with a laxative would likely have assisted in removing the Delzicol from claimant's system, and therefore reducing the symptoms he endured. The evidence indicates that claimant suffered from stomach upset and blood in his stool on the first day that he took Delzicol, and stomach upset beginning on Friday, November 22, 2013 through Monday, November 25, 2013. However, the Court finds that claimant has not established by a preponderance of the credible evidence that defendant's negligence proximately caused his injuries after Monday, November 25, 2013. After that date, claimant began to complain of constipation, a symptom entirely different from the bloody stools that he had reported in the days prior. Further, Dr. Cahill testified that, considering the half life of Delzicol, the amount of Delzicol in claimant's body on Monday, November 25, 2013 would have been significantly diminished. The Court credits the testimony of Dr. Mahl, who opined that the only adverse side effects he had seen with patients taking Delzicol was an exacerbation of diarrhea and abnormal liver tests. Here, claimant complained on Thursday, November 28, 2013 of constipation, not diarrhea. Moreover, Dr. Mahl testified that many of the symptoms that claimant complained of and were observed at AMC were typical symptoms suffered by CF patients, such as chronic constipation. Dr. Mahl also noted that claimant had a long history of gastrointestinal issues and admissions to AMC. He opined that claimant's symptoms were likely caused by internal hemorrhoids that may not have been detectable from the tests performed on claimant at AMC. Claimant's expert, Dr. Eisner, concluded that claimant suffered from small intestine inflammation caused by a Delzicol overdose. However, the Court notes that Dr. Eisner's conclusion is largely based on the fact that the colonoscopy and endoscopy performed at AMC were normal, and that claimant's stool exhibited a trace amount of blood. Additionally, Dr. Eisner testified that he did not review claimant's AMC records prior to claimant's December 2013 admissions (T: 405). The Court is not persuaded that a trace amount of blood in conjunction with normal colonoscopy and endoscopy results necessarily proves that claimant suffered from small intestine inflammation caused by Delzicol. Thus, the Court credits Dr. Mahl's testimony, inasmuch as he concluded that claimant's symptoms at AMC indicated that he suffered from hemorrhoids or perianal bleeding, likely due to claimant's CF and long history of gastrointestinal issues. Claimant failed to prove that it was more probable than not that the injuries he suffered after November 25, 2013 were caused by defendant's negligence (see Nicholas v State of New York, UID No. 2009-044-023 [Ct Cl, Schaewe, J., Dec. 29, 2009]; Halling v State of New York, UID No. 2008-037-501 [Ct Cl, Moriarty, J., June 20, 2008], affd 68 AD3d 1791 [4th Dept. 2009]).

The Court rejects defendant's argument that claimant was comparatively negligent. Claimant testified that he was told that the medication he was given was a generic form of Creon (T: 514). Given that claimant had no opportunity to check that information for himself, and because he needed to take Creon with all of his meals, the Court finds that it was reasonable for him to continue taking the medication. Therefore, the Court finds that defendant is 100% liable for claimant's damages proximately caused by defendant's negligence and malpractice.

In light of the foregoing evidence regarding claimant's condition between the morning of November 22, 2013, through the day on November 25, 2013, and the pain and discomfort associated therewith, the Court will award claimant reasonable compensation for his suffering during that time (see CPLR 5501 [c]; Wolf v Persaud, 130 AD3d 1523, 1526 [4th Dept. 2015]). In that respect, claimant is entitled to compensation for the injury, pain and suffering he sustained, as well as for any special damages incurred (see Tirado v State of New York, UID No. 2010-030-023 [Ct Cl, Scuccimarra, J., July 19, 2010]). Such an award should compensate for the physical and emotional effects of claimant's injury (see McDougald v Garber, 73 NY2d 246 [1989]; Lamot v Gondek, 163 AD2d 678 [3d Dept. 1990]), and must fall within a range that does not "deviate[] materially from what would be reasonable compensation," which range may be determined by reference to similar cases in which damages were awarded (CPLR 5501 [c]; see Osiecki v Olympic Regional Dev. Auth., 256 AD2d 998, 1000 [3d Dept. 1998]). Claimant cited numerous cases in his posttrial brief of cases involving the negligent administering of incorrect medication, but admitted that there are few cases in New York State that are similar to the instant matter. Taking into account both the similarities and distinctions between this matter and the cases considered, the Court awards damages on this cause of action for claimant's past pain and suffering in the amount of $30,000.00 (see Wolf v Persaud, 130 AD3d at 1526; Upsher v State of New York, UID No. 2014-040-002 [Ct Cl, McCarthy, J., Jan. 31, 2014]; Hartley v State of New York, UID No. 2010-010-060 [Ct Cl, Ruderman, J., Dec. 22, 2010]). An award for future pain and suffering would not be appropriate here, as the Court finds that claimant has not established that he will experience pain and suffering in the foreseeable future as a result of defendant's negligence. As no evidence was presented to substantiate any medical expenses or lost wages incurred or to be incurred in the future by claimant, no damages are awarded for either of those items.

Therefore, the Court awards claimant $30,000.00 in damages for the pain and suffering that he endured from the morning of November 22, 2013, through the day on November 25, 2013. In addition, claimant is entitled to the actual amount of any fee paid to file the claim, as a taxable disbursement pursuant to Court of Claims Act 11-a (2). All motions upon which the Court reserved decision at trial are hereby denied.

The Chief Clerk is directed to enter judgment accordingly.

April 15, 2019

Albany, New York


Judge of the Court of Claims

1. The generic version of Creon is Pancrelipase. Although both were used interchangeably at trial, the Court will refer to the drug as Creon.

2. References to the trial transcript are indicated here as (T: ).

3. Claimant did not remember when he spoke to his mother, but it was some time before evening. His Inmate Grievance Complaint concerning this matter indicates that he talked to her after his first visit to the infirmary on Saturday, November 23, 2013 (Exhibit 40).

4. The generic version of Delzicol is Mesalamine. Although both were used interchangeably at trial, the Court will refer to the drug as Delzicol.

5. As later explained by Dr. Gerald Cahill, the Medical Director at FCF, hemoptysis is blood from the pulmonary track (T: 288).

6. BRBPR means bright red blood per rectum (T: 653).

7. Exhibit 6 includes a picture of a Delzicol capsule. It is a monotone dark red color. Exhibit 7 includes a picture of a Creon capsule. Half of the capsule is maroon while the other half is clear with tan beads.

8. Section 5.2 of the package insert states: "[Delzicol] has been associated with an acute intolerance syndrome that may be difficult to distinguish from an exacerbation of ulcerative colitis . . . Symptoms include cramping, abdominal pain, bloody diarrhea, and sometimes fever, headache, and rash . . ." Section 10 of the package insert states: "There is no specific antidote for [Delzicol] overdose and treatment for suspected acute severe toxicity with [Delzicol] should be symptomatic and supportive. This may include prevention of further gastrointestinal tract absorption, correction of fluid electrolyte imbalance, and maintaining adequate renal function . . ."

9. The parties stipulated into evidence the examinations before trial of Nurses Dawn Ball and Tammy L. Hyde (Exhibits 47, 48).

10. Although not specified, Nurse Hyde's shift appeared to be 7:00 a.m. to 3:00 p.m.

11. The small intestine is sometimes referred to as the small bowel (T: 286).


The layperson's term for a gastric lavage is "pumping the stomach" (T: 257).

13. Dr. Eisner testified via video from Delray Beach, Florida. Dr. Eisner attended medical school at the State University of New York at Stony Brook. His internship and residency were at North Shore University Cornell Medical Center/Sloane Kettering Cancer Center. His fellowship was at North Shore University Cornell Medical Center. He has been board-certified in gastroenterology since 1995. He currently practices in Boca Raton and Delray Beach, Florida.

14. Defendant objected to certain testimony regarding an article concerning Delzicol that, at times, Dr. Eisner relied upon as authoritative. The Court sustains said objection (see Hinlicky v Dreyfuss, 6 NY3d 636 [2006]). As this article was neither peer-reviewed or established to be material relied upon in the professional community, it is inadmissible. The Court does not determine that this opened the door for the admissibility of the article through redirect examination. To the extent defendant inquired about it upon cross-examination, the questions were more concerned with any other possible case reports, of which there were none.

15. AMC did not order a capsule endoscopy which is a pill which is swallowed and takes pictures as it goes through the small intestine (T: 375). He explained that the small intestine is 20 feet long, but that only 9 to 12 inches of the small intestine could be seen at the bottom of the small intestine through a colonoscopy and 12 inches could be seen "from the top", presumably through an endoscopy (T: 413).

16. Irritable Bowel Syndrome, he explained, is diagnosed when a patient's colonoscopy is normal, but the body's response to factors like stress, infection, or trauma cause the intestines to contract too rapidly or not rapidly enough, resulting in diarrhea or constipation (T: 344).

17. Dr. Mahl, is board-certified in internal medicine. He is a graduate of the State University of New York at Buffalo. He completed his internship and residency in internal medicine at the University of Connecticut Affiliated Hospitals. He was the Chief Resident of Medicine at John Dempsey Hospital of the University of Connecticut. His fellowship in gastroenterology was completed at Yale University School of Medicine. He is licensed to practice medicine in New York State. He is currently the Interim Chief of Gastroenterology, Gastroenterology Fellowship Program Director and a professor of clinical medicine at the State University of New York at Buffalo School of Medicine (Exhibit H).

18. The Court notes that claimant's medical records indicate that he was on Colace, a stool softener, prior to this incident (Exhibit D, p. 42).

19. He explained the differences in the blood colors and their indicativeness of the source of the bleeding. Stomach blood presents as black and is called melena. As the blood moves down the gastrointestinal track it gets redder. Perianal blood, which is overt, is bright red and usually stains the toilet bowl. A patient with normal blood counts with this type of blood release is usually suffering from hemorrhoids. When someone coughs up blood from the lungs, termed hemoptysis, it is usually rusty or bright red in color. Blood produced while vomiting, which is termed hematemesis, is coming from the stomach, esophagus or the duodenum. Hematochezia is the excreting of blood.