New York State Court of Claims

New York State Court of Claims
COLON v. THE STATE OF NEW YORK, # 2020-029-010, Claim No. 127373


Claimant seeks damages for injuries he sustained in 2013 when the negligence of medical staff at Downstate Correctional Facility delayed a diagnosis of bacterial endocarditis, which resulted in claimant undergoing aortic valve replacement surgery. After a trial on liability only, the court found the State 100% liable for medical negligence, and dismissed the cause of action for deliberate indifference.

Case information

UID: 2020-029-010
Claimant(s): HECTOR COLON
Claimant short name: COLON
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 127373
Motion number(s):
Cross-motion number(s):
By: Mariangela Chiaravalloti, Esq.
By: Elizabeth Gavin, Assistant Attorney General
Third-party defendant's attorney:
Signature date: February 4, 2020
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


The claim was filed on January 15, 2016, seeking damages for permanent physical injuries claimant sustained when the medical staff at Downstate Correctional Facility allegedly failed to assess, document, examine and refer claimant to the emergency room, leading to a delay in diagnosis of bacterial endocarditis that resulted in aortic valve replacement in 2013. The claim pleads causes of action for medical negligence and violation of claimant's civil rights under 42 USC 1983, et seq. A trial on liability only was held on September 24-26, 2019.

Claimant testified on his own behalf and called four additional witnesses: Dr. Mario Malvarosa; Nurse Practitioner Olayemi Odeniyi; Correction Officer ("C.O.") Michael Wright; and expert Dr. Gregory Famiglio. The State recalled Nurse Practitioner Odeniyi and also called expert Dr. Paul Genecin. Claimant's Exhibits 1-8 and 13-16, and the State's Exhibit A were admitted into evidence on stipulation. The State's Exhibits B and C were admitted at trial. The expert witnesses' Curricula Vitae were admitted as Court Exhibits 1 and 2.

Dr. Mario Malvarosa testified that he is the Medical Director at Downstate Correctional Facility ("Downstate").(1) He is certified in addiction medicine. A test for certification was not required. He completed a residency in internal medicine in 1986, but he is not board certified in that field because after three attempts, he has not been able to pass the test (9/24 T: 16-17).(2)

Claimant was previously diagnosed with ulcerative colitis. Ulcerative colitis erodes the colon and bacteria in the colon can escape into the bloodstream, a condition called bacteremia. That bacteria can attach itself to the valves of the heart, causing the disease of endocarditis. Clumps of bacteria, or vegetation, can grow on the valves and break off into the bloodstream. The clumps could cause blood in the urine if they travel to the kidneys. Both ulcerative colitis and endocarditis could lead to death if left untreated (9/24 T: 18-20). Dr. Malvarosa responded "[i]t depends" (9/24 T: 21) to the question whether the failure of medical personnel to timely respond to a known serious medical need is a departure from the standard of care. He had testified at his November 16, 2017 deposition that it could be a departure. Compliance with the standard of care also requires clinicians to take a patient's history and to perform a physical examination (9/24 T: 22-24). Knowing a patient recently experienced a trauma to the part of the body where pain is occurring will inform the clinician's actions. The spleen can become enlarged from a trauma or from infection. It can be palpated on physical examination of the abdomen. The only way to tell if a spleen is enlarged from infection, infarcts or trauma is to refer the patient for a CT scan (9/24 T: 25-28).

Fever is the primary symptom of endocarditis. Tylenol and ibuprofen can mask the presence of fever. Other symptoms are elevated heart rate over 120, night sweats, loss of appetite, unexplained weight loss, weakness and flu-like symptoms (9/24 T: 28-30). When claimant entered the prison system in 2010 he was 19 years old and weighed 162 pounds. When he first went to the emergency room at Putnam Hospital Center ("Putnam") on October 5, 2013, he weighed 142 pounds. If timely diagnosed, bacteremia and endocarditis can be treated with IV antibiotics. If the vegetation becomes large and destructive of cardiac tissue, surgery is the only option (9/24 T: 34-35).

An inmate puts in a sick call slip to be seen the next day between 8:30 and 11:30 a.m., or the C.O.s take him to the prison's after-hours emergency sick call, referred to as the "ER." Dr. Malvarosa reviewed an October 1, 2013 progress note by Nurse Langford (Exh. 1 [claimant's Downstate health records] at pg. 00005) showing claimant was seen at 4:05 p.m., he had pain in his left side and complained of blood in his stool every other bowel movement for eight days. The witness testified that he assumed it was an ER visit, claimant's noted vital signs were normal, there was no other history noted, and the doctor was disappointed Nurse Langford did not contact him about claimant's complaint of blood in his stool as it would have prompted him to perhaps take additional action. Blood in the stool can be indicative of a number of things, such as hemorrhoids, ulcerative colitis or cancer (9/24 T: 36-40).

Dr. Malvarosa reviewed a September 27, 2013 progress note by Nurse Volpi (Exh. 1 at pg. 00004) showing claimant was seen at 3:40 p.m. complaining of rib pain on his left side when he took deep breaths that started the day before. Among the vital signs noted was a heart rate of 113. Nurse Volpi notes that the findings were reported to Dr. Malvarosa, claimant was encouraged to drink more water, given Tylenol and signed up for sick call on September 30. The doctor testified that the note showed claimant was seen at the facility's ER, urinalysis revealed trace blood in the urine (see Exh. 1 at 00006), and claimant's pain was in the area of the spleen. He acknowledged having worked in a non-prison emergency room, where claimant would have been asked about any recent trauma. On hearing that claimant had been hit recently by a softball in the splenic area, Dr. Malvarosa would have done a comprehensive evaluation (9/24 T: 40-43).

On cross-examination, Dr. Malvarosa testified that he has been the Health Services Director at Downstate since 2002. As a "reception" correctional facility, Downstate receives approximately 24,000-26,000 people a year, and has only seven clinicians to deal with the medical conditions - two physicians (himself included), four physician assistants and one nurse practitioner. He oversees about twenty nurses. Nurses take the inmates' histories and the physician assistants do the physicals. It is normal for nurses to call him after hours to discuss emergency sick call cases. Because of the case load and the way the system is set up, he is not able to take case notes every time he sees a patient. Tachycardia is defined as a heart rate of 120 or above (9/24 T: 44-47, 57-59).

On redirect examination, Dr. Malvarosa acknowledged testifying at his deposition in 2017 that tachycardia is defined as a heart rate of 100 or above. He also testified that if claimant was called to the prison ER, it would be noted in a logbook. Every ER visit should be recorded (9/24 T: 61-63, 71).

Nurse Practitioner ("N.P.") Olayemi Odeniyi testified that in 2013 she worked as a Nurse Practitioner at Downstate and covered sick call for claimant's housing unit. Sometimes an inmate who puts in a slip for sick call comes and waits but is not seen because of the volume of inmates to be seen. She sees the patient the next day, or if the first sick call is on a Friday, the patient will be seen Monday. Vitals and a history should be taken each time an inmate comes to sick call and the prison ER, and noted in the chart. She asks if there was trauma and only writes down if the inmate responds affirmatively. She also does a physical examination. She listens to the heart and lungs. She documents heart rate and abnormalities, not heart rhythm. A heart murmur is an abnormality and should be documented. She is able to hear a murmur. Any abdominal issue would require a high triage placement (9/24 T: 76-85, 111).

N.P. Odeniyi was asked about claimant's Downstate health records (Exh. 1). She testified that he had two sick call visits involving cough in August. She reviewed a restriction sheet she filled out on September 23, 2013 that was generated in conjunction with claimant's sick call visit on that day (Exh. 3 at pg. 117). Claimant's health records contain an ER note for September 24 but not for September 23, and there is no sick call slip for September 23.(3) At the ER visit on September 24, claimant's heart rate was noted as 121, which is tachycardia (Exh. 1 at pg. 00002). Sick call slips should be in the file for every call. N.P. Odeniyi conceded that her reference on the September 24 note to claimant's vital signs as normal was not correct as the heart rate was noted as 121 (9/24 T: 86-95).

She recognized her notes made on September 30 indicating claimant complained of stomach pain "secondary to gas." She also recognized her notes about claimant's sick call visit made three days earlier on September 27 (Exh. 1 at pg. 00003), and conceded she had not put down any information about an examination or an assessment (9/24 T: 95-96).(4) Later, on September 27, N.P. Odeniyi and claimant signed a document titled "Contract for Specialty Care Appointment" with a gastrointestinal ("GI") specialist (Exh. 1 at pg. 00010), consenting to her referring him for an assessment because of his abdominal pain. (9/24 T: 96-99, 107). However, there is no indication of urgency.

On reviewing Nurse Langford's ER notes made later in the day on September 27, 2013 (Exh. 1 at pg. 00004), N. P. Odeniyi testified that the nurse should have contacted a doctor or her and the failure to do so was a departure from the standard of care. Tylenol and ibuprofen are not appropriate medications for bloody stool. A patient with a GI bleed for eight days and tachycardia needs to go to an outside emergency room for stats and a CT scan. They can request CT scans but it is up to the outside facility that takes over the inmate's care. A CT scan could have been requested for claimant earlier because of his abdominal pain (9/24 T: 112-117).

N. P. Odeniyi prepared the Request and Report of Consultation a week later, on October 4, 2013 (Exh. 1 at pg. 00012). The reason given for the request is: "Inmate complains of left abdominal pain one week now, claims passing a lot of gas, was treated with Alamag [. . .] Seen this morning, complains of voiding thick blood clots for the past three days, sample witnessed, claims bad cramps with eating; therefore, has not been eating, has lost about three to five pounds with last week, awaiting lab results."

On cross-examination, N.P. Odeniyi testified that the patient's history and assessment is limited solely to the complaints on an inmate's sick call slip. Alamag is an antacid and anti-gas medication and ibuprofen is an appropriate medication for a patient complaining of testicle pain. She saw claimant at sick call on October 4. She read and interpreted the notes made on October 4 (Exh. 1 at pg. 00008) for the record (9/24 T: 129-133):

"Inmate seen at sick call this a.m. with complaint of left mid abdominal pain. This is getting worse, claims unable to eat. As he eats, the pain becomes excruciating, brought to the sick call a cup of blood clots, claims to be from his rectum, refused direct rectal exam, insisting to be seen in the ER. [. . .] Inmate looks very pale and sweaty."

She also testified that she "documented the vital signs there; blood pressure, 132 over 65, heart rate, 102, temperature, 98.2" (9/24 T: 132).

N.P. Odeniyi called the facility's infirmary to admit claimant and ordered 24-hour labs to be done - "CBC with differential, h-pylori, X-ray, KUB, kidney, ureter, bladder, FUA [frontal upper abdominal], everything stat." The Facility Health Services Director (Dr. Malvarosa) was notified, and claimant was assessed in the prison ER. N.P. Odeniyi was not present but Dr. Malvarosa told her what happened and she prepared the notes:

"Direct rectal exam done by FHSD, which is negative. Inmate claims does not have problems with holding food down, just that the pain is excruciating, and in no acute distress [. . .] gastroenterologist consulted, Zantac 150 was given, 60 given, patient education, returned to cell after X-ray and labs are done, increase fluid intake, return to clinic as needed, discontinue the ibuprofen" (9/24 T: 133-134).

Claimant testified that he put in a sick call slip and was seen the week of September 9 for flu-like symptoms. The next week he put in two more sick call slips. He was experiencing night sweats, chills and loss of appetite. He was not reached, so he was not seen (9/26 T: 486-489, 493-494, 496, 498, 503, 510-511). Claimant was seen in sick call on Monday, September 23. He still had night sweats and he "stunk." A restriction sheet was issued by N.P. Odeniyi granting him morning showers (Exh. 3 at pg. 00117). N.P. Odeniyi did not evaluate claimant for his complaint of bloody stools because the complaint was not on the sick call slip from the week before. Claimant then put the complaint on a new slip on September 23(5) (9/26 T: 497, 499-502, 505).

Claimant recalls that he went to the prison ER on September 24 because of bloody stools, not for a painful scrotum. He complained about the latter only in mid-August 2013.(6) At the September 24 ER visit, claimant had a rectal exam by an "Asian guy" to check for hemorrhoids, which were not found (9/26 T: 506-509, 519). On September 27, claimant went to sick call with night sweats, chills, loss of appetite and bloody stools (9/26 T: 514-515, 517-520).

The note for the September 27 visit to sick call shows claimant was there at 8:30 a.m., but the reason for the visit is not written (Exh. 1 at pg. 00003). The correction officer log ("C.O. log") for that day shows claimant was having trouble breathing at 9:55 a.m. and was sent to the prison ER (Exh. 6 at pg. 00154). The ER note for that visit is missing from the Downstate medical records (Exh. 1). At 11:00 a.m. that day, claimant signed the GI consult contract with N.P. Odeniyi because of his bloody stools and abdominal pain (Exh. 1 at pg. 00010; 9/26 T: 518-519). The C.O. log shows that at 3:30 p.m. that day claimant complained of an inability to breathe and went back to the prison ER (Exh. 6 at pg. 00155). Nurse Volpi's note for this ER visit provides that trace blood was found in claimant's urine, he complained of "rib pain anteriorly when he takes deep breaths," he was given Tylenol and told to drink more water (Exh. 1 at pg. 00004).(7) Claimant recalled it was Dr. Malvarosa who told him to drink water because dehydration might be causing his bloody stools (9/26 T: 517).

Claimant had no appetite and he was losing weight. The prison gave him meals with larger portions, but there "was no point" because he was not eating. Before he got sick, his weight was about 170 pounds (9/26 T: 521-524). He was taken to the prison ER again on September 30. N.P. Odeniyi wrote in her notes that he complained of pain in the stomach (Exh. 1 at pg. 00003). Claimant was repeating all of his complaints every time he went to sick call and the prison ER - pain in the abdomen, bloody stools, weight loss, difficulty breathing, and cough (9/26 T: 526-528).

On October 1, after claimant showed the C.O. a cup of his bloody stool and complained of difficulty breathing, he was taken to the prison ER. He brought the cup of blood with him. He saw the "mean faced lady" and she threw away the blood, did not do any vitals, and told him if "you keep using emergency to come up here, you're going to the hole." She sent him away after about a minute (9/26 T: 530-536; Exh. 6 at pg. 00169).

Nurse Langford's prison ER notes show claimant was logged into the ER at 4:05 p.m. (Exh. 1 at pg. 00005). The C.O. log shows he returned to the block at 4:11 p.m. (Exh. 6). It takes four or five minutes to walk between the block and the ER, and claimant was walking slowly that day because of his difficulty breathing and the pain in his abdomen (9/26 T: 536-537).

Claimant put in a slip for sick call on October 3. The slip states: "I went to sick call on Tuesday for blood in my stool. I was offered tylenol[.] I declined because ibuprofen is what caused the damage[.] There are chunks of blood coming out & I need to be checked immediately[.] I've [lost] a lot of weight I can't eat solid food. If I try I cramp up. The pain is intense" (Exh. 2 at pg. 00115). He then went to sick call on October 4 and saw N.P. Odeniyi. He was pale, sweaty and had excruciating pain in his stomach (9/26 T: 541-545).(8)

Claimant does not recall passing out on October 5. The nurse's progress note made at 9:00 pm states, "ESC - Code Blue" (Exh. 1 at pg. 00009), and the C.O. log notes that at 8:40 p.m., "Inmate passed out, gasping for air, Code Blue announced" (Exh. 6 at pg. 00175). Claimant woke up in the prison ER. He was sent to the hospital that night. Claimant testified that he put in more than ten sick call slips during September 2013 (9/26 T: 487, 543-547).(9)

The C.O. log, claimant's Downstate health records and the hospital records show where and how claimant was treated in the ensuing days. Claimant was sent by ambulance to Putnam, entering triage at 23:22. He was discharged at 2:06 a.m. on October 6. His chart contains a referral - "DOC GI specialist" - and discharge instructions - "If you have increased symptoms of bleeding and pain, return to ER" (Exh. 7 at pgs. 00181-00187). He was returned to Putnam ER and triaged at 10:43 p.m. the same day (Exh. 7 at pg. 00190). There is a note in claimant's chart that he had a prior episode of rectal bleeding two years earlier, but it was never followed up and he was scheduled for a colonoscopy that was not done (Exh. 7 at pgs. 00190-00193). At 11:03 p.m. a nursing assessment notes claimant had "new signs of fever 101.1 and tachy heart rate," and complaints of bloody stools, left-sided abdominal pain, fever, chills and rectal pain.(10) His weight was noted as 140 lbs. (id. at pg. 00193). He was taken for a CT scan at 1:35 a.m. on October 7 (id. at pg. 00192). Claimant was diagnosed with "abdominal pain, splenic infarct and spleen hematoma-closed" and admitted at 3:30 a.m. (id. at pg. 00201-00204).

After claimant was admitted to Putnam on October 7, blood cultures disclose gram positive bacteria in his blood. His Review of Symptoms documents weight loss, night sweats, chills, loss of appetite and a TB screen shows a cough for three weeks. He was treated with antibiotics appropriate for bacteremia. A consult report on October 8 notes that claimant mentioned being hit by a line drive in the upper left abdomen during a baseball game about two months prior, which caused him pain but he did not seek medical help. On October 9 a sensitivity report revealed strep viridans and the antibiotic was changed. An echocardiogram was done, resulting in the diagnosis of endocarditis. When it became apparent claimant was not responding to the antibiotics as hoped, he was transferred to Westchester Medical Center for aortic valve replacement surgery (Exh. 7 at pgs. 00191-00193, 00292-00294, 00338; Exh. 8; 4/25 T: 445-446).

C.O. Wright testified that he was claimant's housing unit officer in September 2013. He remembered that claimant was ill for a period of four to five days. In September, going into October, claimant appeared to be walking slowly and moving cautiously. He complained of blood in his stool, lightheadedness, shortness of breath, and on several occasions after returning from sick call, he told the officer he felt the same. Based on the housing log, claimant was not on the list for sick call on September 23, and he was not seen at sick call during the second week of September. At that time, they did not have sick call on Monday and Wednesday. On Tuesday, October 1, C.O. Wright wrote in the logbook at 3:55 p.m., "Inmate Colon reports shortness of breath and blood in the stool, requested emergency sick call, nurse notified" (9/26 T: 589-593; Exh. 6 at pg. 00169). Another officer escorted claimant to the prison ER. C.O. Wright marked in the logbook at 4:11 p.m. that claimant was back on the unit, and wrote "Sign up for sick call tomorrow, Wednesday" (9/26 T: 594; Exh. 6 at pg. 00169). The officer put multiple asterisks next to his note in the logbook (id.).

The court accepted Dr. Gregory Famiglio as an expert for claimant in internal medicine.(11) Dr. Famiglio's CV is extensive. He is licensed to practice medicine in Florida and Pennsylvania, is board-certified in the fields of anesthesiology and addiction medicine, and he is a certified correctional healthcare provider. He has been practicing medicine since 1986. His experience includes, inter alia, working as a cardiothoracic anesthesiologist for 20 years, practicing internal medicine in Federal and State prisons, working in the fields of cardiovascular and thoracic anesthesia, cardiac surgical anesthesia, cardiac and intensive care, emergency care, and often diagnosing and treating endocarditis in his work as an addiction medicine expert (see Court Exhibit 2; 9/25 T: 236-247).

Dr. Famiglio reviewed the following documents: the prison records; sick call slips; C.O. logs; depositions of Dr. Malvarosa, Nurse Practitioner Olayemi Odeniyi, C.O. Wright and Mr. Colon; records from Putnam and Westchester Medical Center; and outpatient records from a cardiologist and internist. Based on his review of these records, in his opinion to a reasonable degree of medical certainty, the clinicians at Downstate departed from good and accepted medical practice in their care of Mr. Colon from August to October 2013 in the following ways: failure to document healthcare visits; failure to take a proper history and perform physical examinations; failure to take and note vital signs; failure to assess abdominal pain and develop a true differential diagnosis and a treatment plan; failure to provide proper treatment instead of just throwing antacids, Tylenol and ibuprofen to him "to make it look like they're doing something"; failure to diagnose and refer out in a timely manner to a GI specialist, and to recognize and diagnose endocarditis. These departures resulted in a failure to recognize that claimant needed a CT scan of the abdomen, and caused a delay in the diagnosis of endocarditis. A referral to the outside ER as late as October 1 would have avoided valve replacement (9/25 T: 253-265, 275-276, 318, 320).

Dr. Famiglio concluded that each of the seven times claimant interacted with Downstate clinicians, they departed from the standard of care in failing to assess, document, examine and refer claimant to the outside emergency room. His symptoms of a 30 pound weight loss in a month, night sweats, flu-like symptoms, abdominal pain and rectal bleeding required referral and the failure to refer delayed his receiving IV antibiotic treatment. Claimant should have been referred as early as September 23 and no later than October 1. Strep viridans is a GI tract bacteria (id. at 249). The extreme weight loss was consistent with cancer. Even if claimant had been referred to the emergency room for a suspected cancer, endocarditis would have been timely diagnosed (9/25 T: 331, 346-347; Exhs. 7-8).

Dr. Famiglio also explained that if there was a significant vegetation growth on the aortic valve, there would be an audible murmur. The growth would disrupt the flow, causing the murmur. There is no indication from either the Downstate or Putnam records that a murmur was detected. In his opinion, to a reasonable degree of medical certainty, there was not a large vegetation growth as of claimant's second admission to Putnam (id. at 304-307). The doctor pointed out that the notes from a cardiovascular exam of claimant in the Putnam ER on October 5 state, "normal heart sounds without murmur or gallop" (Exh. 7 at pg. 00183). The records also show no murmur was heard when claimant returned to Putnam later on (Exh. 7 at pg. 00191).

Claimant rested his case. The State moved for summary judgment, which the court denied.

The court accepted Dr. Paul Genecin as an expert in the field of internal medicine (9/24 T: 159). Dr. Genecin was certified by the American Board of Internal Medicine in 1986, and he has been licensed to practice medicine in Connecticut since 1986. He has been the Director of Yale Health for 23 years, the Executive Director of Yale Emergency Medical Services since 2008, and has taught and published extensively (see Court Exh. 1 [CV]).

Dr. Genecin reviewed the following documents: Downstate medical records; records from Putnam and Westchester Medical Center; records from Cardiology Associates; the claim and other "courtroom type" documents; depositions of claimant, Dr. Malvarosa, a nurse "with an African name," Nurse Volpi, and C.O. Michael Wright; and claimant's expert disclosure (9/24 T: 157-158). Based on his review of the records and pleadings, Dr. Genecin provided his opinion to a reasonable degree of medical certainty: the medical staff at Downstate did not deviate from acceptable medical standards in the timeliness of referring claimant to an outside hospital, or in failing to timely diagnose claimant with subacute bacterial endocarditis; and by the time claimant was suffering from pain related to an embolization in his spleen in late September 2013, he needed a valve replacement (id. at 188-189).

Dr. Genecin explained that the disease of subacute bacterial endocarditis begins with the development of a microscopic vegetation on the heart valve made up of bacteria, white cells and blood debris. The vegetation erodes the heart valve until it cannot be repaired. It can invade other structures around the valve and cause an abscess. When vegetation grows to more than one centimeter, it can break off (embolize), and travel in the blood to other parts of the body. This can take weeks or months. This is what happened to claimant's spleen, causing an infarction, and his left abdomen pain in late September 2013 (id. at 159-167).

The doctor testified that the records show claimant had a prior bout with inflammatory bowel disease, or ulcerative colitis, which can cause rectal bleeding and diarrhea. There is no need for an emergency room visit unless the patient has lost a lot of blood. Diagnosis is made through medical history, examination, blood work, a colonoscopy and stool tests to rule out infectious causes. Claimant refused an endoscopic workup in 2010. Downstate staff took proper steps in ordering blood work and referring claimant to a gastroenterologist. Tylenol, ibuprofen, Zantac and Alamag would not help or hurt with inflammatory bowel disease. There are "a number of different options" for treatment, such as anti-inflammatory treatment. In his opinion, claimant's cough in August 2013, his testicular pain and his rectal bleeding had nothing to do with the subacute endocarditis, and on claimant's first visit to Putnam ER on October 5, he had few signs of acute illness (id. at 168-174). Inflammatory bowel disease is a risk factor for endocarditis, but not in claimant's case because he had the oral flora strep viridans, not the gut flora you see with IBS (id. at 176). Strep viridans "is a very prominent cause of infectious endocarditis," which is diagnosed with blood cultures (id. at 159).

On cross-examination, Dr. Genecin testified he spent approximately 15 hours reviewing the records and preparing for trial. Strep viridans arises in the mouth. Signs of subacute endocarditis are fever, sweats, weight loss, shortness of breath, and muscle pain. On September 27, 2013, claimant was symptomatic of embolic complication of endocarditis. Dr. Genecin agreed that the record-keeping at Downstate is inadequate. Records related to some of claimant's visits are missing, so he could not review information about those visits in formulating his opinions (9/24 T: 170-194).

He read claimant's deposition testimony that in the early part of September he started getting night sweats that made him stink, and that is important clinical information, but it is not in the history obtained at Putnam or Westchester Medical Center, or the available notes from Downstate. He acknowledged there is a physician's assessment, on claimant's second admission to Putnam, that is inconsistent with the triage nurse's assessment, and divergent histories make it hard to get a real history.(12) He did not see any notes from Downstate or Putnam about claimant having a heart murmur, which was noted at Westchester Medical Center. It takes medical training to hear a heart murmur, which is identified on a scale of one through six (id. at 194-203).

Dr. Genecin routinely diagnoses and cares for patients with endocarditis. He agreed that: an uncomplicated case can be treated with IV antibiotics and not require open heart surgery; the sooner the diagnosis, the better the prognosis; for patients who become symptomatic, frequent early symptoms are night sweats and loss of appetite; and difficulty breathing is a symptom the medical staff should have documented. The doctor could not understand why there is no mention of breathing difficulty in the entries for two prison ER visits, when C.O. Wright testified at his deposition that claimant went to the prison ER after complaining of difficulty breathing to the C.O., who called the ER to tell them. He did not review the C.O. log. The doctor noted there was no mention of breathing difficulty at Putnam (id. at 204-210).

On redirect examination, Dr. Genecin testified that the medical imaging of claimant's heart by transesophageal echocardiogram showed two large vegetations on the aortic valve, and a root abscess, which is a sign that the disease has been present for weeks or months. "[P]atients may have constitutional symptoms that should give rise to concern about a systemic illness and a workup, but it's generally when blood cultures are obtained, or if any abnormal heart murmur is heard [. . .] that the diagnosis of endocarditis is made" (id. at 210-211).

Dr. Genecin testified on recross-examination that "once you've got [. . .] a vegetation on a bicuspid aortic valve that's sending off major emboli like splenic infarcts, that's an indication for [. . .] an aortic valve replacement [. . .] When you see a patient who comes in with [. . .] splenic infarcts, this is a patient who's had his endocarditis for a good long time, particularly with strep viridans" (id. at 212-214).

The State recalled Nurse Practitioner Odeniyi, who on cross-examination testified that she acknowledged that inmates who are on medical keeplock do not go to work, and that the C.O. log notes that claimant was in keeplock on September 27 (Exh. 6 at pg. 00155). She testified that it was not error for her to put the word "work" in her note in claimant's ambulatory health record for September 27 (9/26 T: 649-651).

The State then rested its case.

After listening to and observing the witnesses at trial, and reviewing the exhibits and post-trial memoranda of law, the court makes the following findings of fact and conclusions of law.

It is well settled that the State has a duty to provide reasonable and adequate medical care to its inmates (see Mullally v State of New York, 289 AD2d 308, 308 [2d Dept 2001], Powlowski v Wullich, 102 AD2d 575, 587 [4th Dept 1984]). To prove that the State failed in its duty, it must be established, by a preponderance of the credible evidence, that the State departed from the accepted standard of medical care and that such departure was a substantial factor, or a proximate cause of the inmate's claimed injury (see Kagan v State of New York, 221 AD2d 7, 8 [2d Dept 1996]). While the State has a duty to render adequate medical services to inmates without undue delay, in order for the State to be liable, it must be shown that the delays in diagnosis and/or treatment were a proximate or aggravating cause of the claimed injury. Consequently, in order for claimant to prove that the delays in diagnosis and/or treatment were a proximate cause of his injury, evidence was required that there was a "substantial possibility" that the aortic valve surgery was caused by the delay and that the State's negligence deprived claimant of an "appreciable chance of avoiding the loss suffered" (Brown v State of New York, 192 AD2d 936, 938 [3d Dept 1993], lv denied 82 NY2d 654 [1993]; see Imbierowicz v A.O. Fox Mem. Hosp., 43 AD3d 503, 506 [3d Dept 2007]). "With respect to the pivotal question of proximate cause, the Court of Appeals has noted: 'The issue of causation in medicine is always difficult but, when it involves the effect of a failure to follow a certain course of treatment, the problem is presented in its most extreme form. We can then only deal in probabilities since it can never be known with certainty whether a different course of treatment would have avoided the adverse consequences' " (Brown at 938, quoting Toth v Community Hosp., 22 NY2d 255, 261 [1968]).

To begin, the evidence in the record shows that the Downstate clinicians responsible for claimant's care displayed a shocking level of carelessness, failed to meet the basic requirements for examination and full evaluation of patients, and failed to create and retain accurate health records necessary to the prompt and reliable diagnosis and treatment of the inmates in their care. Both expert witnesses testified to the inadequacy of the records, so there is no dispute on this issue. Poor record keeping is an element of the claimed negligence in this action, but it is not the entire story, it is just the tip of the iceberg. There is simply no question from the evidence and testimony in the record that the clinicians at Downstate knew or should have known claimant's deteriorating condition required transfer to an outside hospital emergency room by September 27, 2013 at the latest, and more likely, as early as September 23.

The court found claimant to be a credible witness. The log kept by the housing unit officers, as well as the Downstate medical records that were submitted, corroborate his testimony. Reviewing the records that were submitted, and considering claimant's testimony that he submitted more than ten sick call slips in September 2013, there is credible evidence that claimant was seen by a clinician in either the regular sick call or the after-hours prison ER at least 16 times between August 15 and October 6, 2013. By September 23, the clinicians knew, or should have known, that claimant was experiencing fever, hypotension and tachycardia (above 100)(13) , rectal bleeding, flu-like symptoms, night sweats, pain in his left abdomen, and weight loss. Dr. Malvarosa acknowledged these symptoms are indicative of endocarditis; ulcerative colitis would be indicated by just the rectal bleeding and abdominal pain, and ulcerative colitis can result in the patient developing endocarditis. Both conditions are serious and require testing at an outside facility. Yet claimant was not sent to Putnam until October 5.

Dr. Malvarosa seemed knowledgeable when he testified, and his candor at times was refreshing. He freely admitted that he does not have time to create notes about every clinical visit because of the volume of patients at Downstate. His testimony that only seven clinicians in total are available to care for thousands of inmates is a dangerous and unsustainable situation. The doctor did attempt to shift blame, stating that Nurse Langford in the prison ER failed to notify him of claimant's symptoms on October 1, but prison ER Nurse Volpi notes that she reported her findings to the doctor (Exh. 1 at pg. 00004). Those findings included 113 heart rate, left rib pain when taking deep breaths, and "UA which revealed trace of blood." Claimant testified that he also complained of bloody stools and difficulty breathing, which is corroborated by the credible testimony of C.O. Wright, the housing unit C.O. log, and the October 1 note by Nurse Volpi. These symptoms are not noted on September 27 by either Nurse Volpi or by N.P. Odeniyi in their notes.

N.P. Odeniyi was less forthcoming in her testimony, downplaying her awareness and the seriousness of claimant's symptoms. The evidence shows otherwise. She noted on September 24 that claimant had a heart rate of 121, and according to claimant, she already knew he was having night sweats, bloody stools, flu-like symptoms and abdominal pain. N.P. Odeniyi conceded at trial that a patient with a GI bleed for eight days and tachycardia needs to go to an outside Emergency Room for stats and a CT scan (9/24 T: 112-117).

Despite his deteriorating condition, claimant remained at Downstate and continued to seek help. Then on September 27, N.P. Odeniyi had claimant sign an agreement for referral to a GI specialist, indicating that claimant's symptoms, which were more than what was recorded, warranted the referral. The Request and Report of Consultation was not made by N.P. Odeniyi until October 4, and claimant was not seen by the GI specialist until October 29, after the aortic valve replacement surgery (Exh. 1 at pg. 00012). In spite of the breathing difficulties, the complaints of sweating, inability to eat, left abdominal pain, claimant's ongoing rectal bleeding and history of rectal bleeding, 20 pound weight loss, and the admitted need to see a GI specialist, the Health Services Director, Dr. Malvarosa, advised that he drink more water and take Tylenol.

Three days later claimant was complaining of stomach pain at sick call, but the notes do not include vital signs or examination details. The CO log shows that the next day claimant went to the ER for difficulty breathing. C.O. Wright testified he informed the ER that claimant was having trouble breathing. Yet Nurse Langford notes only that claimant was complaining in the prison ER of blood in his stool for eight days and left side pain, with no mention of breathing difficulty. Claimant testified that the nurse threatened him with discipline if he continued coming to the ER, and the records show the visit took no more than a few minutes. Three days later, on October 4, claimant was back in the prison ER, then offered ibuprofen and returned to his cell. The next day he collapsed and he was finally referred to Putnam.

This is the point at which the experts' testimony is central to the court's decision. Both witnesses were qualified to testify as experts in the field of internal medicine. They agreed on the signs of endocarditis - weight loss, night sweats, heart murmur, loss of appetite, malaise, and fever. Dr. Malvarosa added the symptom of tachycardia. The court finds that Dr. Famiglio has greater experience than Dr. Genecin in the diagnosis and treatment of endocarditis in the correctional, emergency and cardiothoracic areas of practice, all of which claimant's circumstances involve. Dr. Famiglio is also extremely experienced with the problems associated with correctional healthcare services and what the court may reasonably expect from clinicians working in the correctional system. Dr. Genecin is a highly educated and experienced physician working as the director of health services at a prestigious university, but Dr. Famiglio demonstrated a more persuasive view of what the clinicians at Downstate should have been looking for and what they missed.

There was a sufficient foundation for Dr. Famiglio's opinions, which were based on his review of the relevant documents, deposition testimony, and his lengthy experience in the provision of healthcare at correctional facilities. The court finds that Dr. Genecin's testimony did not undercut the reliability of Dr. Famiglio's opinion, to a reasonable degree of medical certainty, that the clinicians at Downstate departed from good and accepted medical practice in their care of Mr. Colon from August to October 2013 in the following ways: failure to document healthcare visits; failure to take a proper history and perform physical examinations; failure to take and note vital signs; failure to assess abdominal pain and develop a true differential diagnosis and a treatment plan; failure to provide proper treatment; failure to diagnose and refer out in a timely manner to a GI specialist, and to recognize and diagnose endocarditis. Dr. Famiglio also concluded that these departures resulted in a delay in the diagnosis of endocarditis, which as late as October 1, could have been treated with antibiotics, avoiding a valve replacement.

The premise of the State's argument, and its expert's analysis, is there is no liability because claimant's endocarditis was so advanced by September 27 that an aortic valve replacement was the only option. However, Dr. Genecin's dismissal of claimant's ulcerative colitis is a glaring example of his weakness as an expert witness in this area. He agreed that ulcerative colitis or inflammatory bowel disease is a risk factor for endocarditis, but not in claimant's case because he had the oral flora strep viridans, "a very prominent cause of infectious endocarditis," not the gut flora seen with inflammatory bowel disease (9/24 T: 159). However, Dr. Famiglio's testimony to the contrary - that strep viridans is a GI tract bacteria - is consistent with the testimony of Dr. Malvarosa. He testified that ulcerative colitis erodes the colon, bacteria in the colon can escape into the bloodstream resulting in bacteremia, and that bacteria can attach itself to the valves of the heart, causing endocarditis. Putnam records establish there was bacteremia found in claimant's bloodstream, which was later determined from a blood culture to be strep viridans.

Based on the testimony and exhibits at trial, the court finds claimant has proven by a preponderance of the credible evidence, that the State violated its duty to provide him with adequate medical care, there was a substantial possibility that the aortic valve surgery was caused by the delay, and the State's negligence deprived claimant of an appreciable chance of effective noninvasive treatment.

Finally, this court lacks subject matter jurisdiction over a claim under the Federal Constitution which must be brought in federal court or in New York State Supreme Court pursuant to 42 USC 1983 (see Brown v State of New York, 89 NY2d 172, 185 [1996]). Consequently, the claim for "deliberate indifference," which relates to the Eighth Amendment right against cruel and unusual punishment (see Farmer v Brennan, 511 US 825, 829 [1994]), is beyond this court's jurisdiction (see Zaire v State of New York, UID No. 2015-032-006 [Ct Cl, Hard, J., Dec. 7, 2015]). To the extent claimant seeks liability for a State constitutional cause of action, it too must fail as claimant has another available remedy in tort, the State's liability for which he has proven by a preponderance of the credible evidence - medical malpractice.

The court finds defendant 100% liable for medical malpractice and dismisses the cause of action for deliberate indifference. The Chief Clerk is directed to enter interlocutory judgment. A trial on damages will be scheduled as soon as practicable.

All motions still pending are denied.

Consistent with the new policy of the Unified Court System, the parties are encouraged to consider alternate dispute resolution for the ascertainment of damages.

February 4, 2020

White Plains, New York


Judge of the Court of Claims

1. The court allowed claimant's attorney to treat Dr. Malvarosa as an adverse witness.

2. "9/24 T: [#]" refers to the day of the trial and the relevant page(s) of the transcript.

3. N.P. Odeniyi testified that after her deposition she looked at the computer and determined she might have put down the wrong date. She did not notify Ms. Gavin or seek to correct her deposition transcript (9/24 T: 89-91).

4. There is only the word "work" and the provider order "urology consult re pain in the scrotum x 5 days" (Exh. 1 at pg. 00003).

5. This September 23 sick call slip is missing. Claimant explained that inmates must submit a slip to be seen at sick call, but the C.O.s decide whether an inmate goes to the prison ER (9/26 T: 524-526).

6. The correction officer log shows claimant went to the ER on August 17 (Exh. 6 at pg. 00144), but the ER note for that visit is missing.

7. The letters "UA" appear in the note before "trace blood." The urinalysis report is page 00006 of Exhibit 1.

8. Claimant used the word "stomach" in referring to his abdomen.

9. Only one September 2013 sick call slip (dated September 26) was produced by the State during discovery (Exh. 2).

10. His pulse rate is noted as 120 at 23:05 on October 6, 78 at :54 and 64 at 3:26 on October 7 (Exh. 7 at pg. 00192).

11. Defendant objected, citing lack of board certification in internal medicine. The court overruled the objection, citing to the doctor's extensive experience in the field.

12. Claimant's attorney referred to the records as "electronic medical records," which Dr. Genecin did not dispute (9/24 T: 198).

13. After considerable questioning, Dr. Malvarosa and N.P. Odeniyi acknowledged that a heart rate over 100 is considered tachycardia.