New York State Court of Claims

New York State Court of Claims
ABBOTT v. THE STATE OF NEW YORK, # 2020-040-037, Claim No. 125050

Synopsis

Following Trial, the Court found Defendant 100% liable because it failed to properly and promptly diagnose Claimant's abdominal pain complaints as diverticulitis. Claimant awarded $550,000 for past and future damages.

Case information

UID: 2020-040-037
Claimant(s): ASHAWN ABBOTT
Claimant short name: ABBOTT
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 125050
Motion number(s):
Cross-motion number(s):
Judge: CHRISTOPHER J. McCARTHY
Claimant's attorney: MICHELSTEIN & ASSOCIATES PLLC
By:
THE LAW OFFICES OF ROBERT F. RICH, JR., PLLC
By: Robert F. Rich, Jr., Esq.
Defendant's attorney: LETITIA JAMES
Attorney General of the State of New York
By: Thomas P. Carafa, Esq., AAG
Albert D. DiGiacomo, Esq., AAG
Third-party defendant's attorney:
Signature date: November 10, 2020
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant, Ashawn Abbott, established, by a preponderance of the credible evidence, his claim of medical malpractice against the State. The Court finds Defendant 100% liable because it failed to properly and promptly diagnose and treat Claimant's complaints of abdominal pain as diverticulitis while he was an inmate at Mohawk Correctional Facility (hereinafter, "Mohawk"). The Court further finds that the failure deprived Mr. Abbott of a substantial possibility of avoiding the development of a perforated diverticulum, which necessitated surgery and subsequent surgery to reverse the colostomy performed in the first surgery. The Court awards damages of $550,000, for past and future pain and suffering, as described below.

A unified trial, addressing both liability and damages issues, was held on October 29-31, 2019 at the Court of Claims in Utica, New York. There were eight witnesses: Claimant; Bonnie M. Cardinal, R.N.; Michelle Esposito, R.N.; Jean Gulla, R.N.: Cynthia Reppel, R.N.; Dr. Robert E. Lowenstein; Dr. Larry Good (Claimant's expert); and Dr. Luis Oceguera (Defendant's expert). Thereafter, the parties requested and were granted additional time to order a transcript and then submit post-trial memoranda.

FACTS

On October 4, 2012, Claimant was an inmate at Mohawk. He testified that, prior to October 4, 2012, he never had surgery, and he did not have scars on his abdomen. He stated that he went to sick call that day because he had pain in his lower left abdomen and he had a rash on the right side (Tr., pp. 204-205). Claimant stated that, in order for an inmate to go to sick call to be seen by a medical provider, the inmate had to write down his complaints on a sick call slip and give it to the housing unit correction officer (hereinafter, "CO"), or put it in the facility mail. He stated he filled out the sick call slip on October 3, 2012, reporting that he was having stomach pain in the lower left area and that he had a rash (id., p. 205). He said that the pain was a sharp pain, and that, on a scale of 1-10, the pain level was about a 4 (id., p. 206). He went to sick call the next morning, October 4, 2012 (id., p. 205).

Claimant stated that, in June 2012, he had seen Dr. Lowenstein, one of Mohawk's doctors, for a physical. Claimant stated the doctor told him that he (Claimant) had a hernia. No doctor had previously told him that he had a hernia, and no doctor since June 2012 has told him that he has a hernia. Claimant stated that he thought that the pain he was experiencing on October 4, 2012 could be from working out and related to the hernia (Tr., p. 207; see also Ex. A, p. 200 ["left incipient hernia"]; Tr., pp. 103-104 [Dr. Lowenstein's recollection]). Claimant stated that he was seen by Nurse Cardinal at sick call and he told her he was having pain in the lower left area and that he had a rash. She scheduled him to see the doctor and told Claimant he had an inguinal hernia. He said that was the first time that he heard that term (id., pp. 207-208). Claimant testified that the nurse did not ask him any questions at all, including anything about the type of pain he was feeling. She did not perform a physical examination of Claimant (id., pp. 208-209).

Nurse Cardinal testified that she has been a New York State-licensed registered nurse since 1989 (Tr., p. 19). She stated that, as part of her duties in the Mohawk Primary Care Unit in 2012-2013, she would see inmates at sick call and that it was her practice to write down every complaint and symptom with which the inmate presented (id., pp. 21-22). She clarified that she would not write down every word that an inmate said, but she would document the complaints. She agreed that, if an inmate complained of an abdominal pain, she would write down "abdominal pain" (id.). The witness was referred to Exhibit A (Claimant's Department of Corrections and Community Supervision [hereinafter, "DOCCS"] medical record), page 25, bottom entry. She identified the document as an Ambulatory Health Record (hereinafter, "AHR"). Nurse Cardinal stated that she saw Claimant at sick call on October 4, 2012 and the bottom AHR entry on page 25 is in her handwriting. She had no specific recollection of that meeting with Claimant (id., p. 27). The note reports that Claimant complained of a groin rash and an inguinal hernia, with a complaint of groin pain. His temperature was 97.4. He was issued 12 packages of Motrin with instructions and was scheduled to see Dr. Lowenstein on October 11, 2012 (id., pp. 25-26). Nurse Cardinal testified that Claimant described his pain as being in the groin area and she used the medical term, "inguinal hernia" in the AHR note (id., p. 27). She also testified that groin pain is not stomach pain or abdominal pain (id., pp. 27-28).

Nurse Cardinal testified on cross-examination that the inguinal area is just above the groin area and that the sigmoid colon is located behind the inguinal area. She also stated that, if a patient had pain in the sigmoid colon, it would not be expressed in the inguinal area, but it would be expressed at the upper rectal area or the sigmoid area, with the pain behind the groin area (Tr., pp. 39-41). The witness did not remember if Claimant's pain was on the right or left side, and she did not record it in the AHR. She also did not remember if she asked him where the pain was located, but said it was not necessarily important to her assessment because the doctor was going to examine Claimant and would ask him that question (id., p. 41). She did not perform a physical examination of Claimant that day, because the doctor was going to do one when he saw Claimant. She could not remember if she took a history from Claimant, but agreed that she did not ask Claimant how long he had been having pain, or how severe the pain was, whether the pain came and went, whether it was influenced by any food he ate, or by exertion, because, if she had, she would have documented the information in the AHR (id., pp. 42-43). Nurse Cardinal further testified that she did not schedule Claimant to see a doctor that day, because she did not believe it was an emergency (id., p. 43).

Nurse Cardinal described diverticulosis as an "outpouching in the intestine" (Tr., p. 44). She stated that people can have diverticulosis and not have any symptoms of it. She described diverticulitis as "when [diverticulosis] becomes inflamed with food or a foreign object" (id., p. 44).

Claimant stated that he was seen by Dr. Lowenstein on October 11, 2012, which was the appointment scheduled by Nurse Cardinal (Tr., p. 210). He stated that, in the week between seeing Nurse Cardinal and seeing Dr. Lowenstein, the pain in his lower abdomen got worse, but still was localized to his abdomen (id., p. 209). He testified that he informed the doctor that he had the rash and pain in the lower left area, and that the doctor referred to his notes and used a "whole lot of words about hernia" (id., p. 210). He further stated that Dr. Lowenstein did not ask him: how long he had been feeling the pain; if it was a sharp pain; if it came and went; or if certain activities or food brought on the pain. He said that the doctor did not perform an abdominal examination. He also said that the doctor told him that the pain he was feeling in the lower left area was not an issue and told him to take it easy while working out. To the best of Mr. Abbott's understanding, the doctor did not order any tests and did not prescribe any pain medication for Claimant, however, he did look at Claimant's groin rash (id., pp. 211-212).

Dr. Lowenstein testified that he was a general physician for DOCCS from 1993 through 2016 (Tr., p. 89). He was Board certified in family medicine in 1981 and in addiction medicine in 2000 (id., p. 90). In addition to working at Mohawk two days a week, he maintained a private practice in family medicine in Clinton, New York (id., pp. 89-91). The witness stated that his medical license was suspended by the State Office of Professional Medical Conduct based upon an alleged failure to keep accurate medical records. He disagreed strongly with that allegation. However, given that he was then 72 years old, Dr. Lowenstein said that he surrendered his license and retired rather than contest and litigate the matter (id., pp. 58-60, 92). Nevertheless, Dr. Lowenstein testified that he was "very obsessive and very careful about recording [patients'] complaints" (id., p. 65).

Dr. Lowenstein described diverticulosis as a weakness in the wall of the large intestine. He said that, when people eat a low fiber diet, they develop weaknesses in the wall of the large intestine, known as diverticula, which are small outpouchings in the wall of the large intestine (Tr., pp. 60-61). People can have diverticulosis and not have any symptoms, and not be aware that they have it. When diverticulosis changes and an inflammation and/or infection occurs in those little outpouchings, one has diverticulitis. Diverticulitis sometimes causes pain and the person has symptoms (id., p. 61). Dr. Lowenstein further stated that, if a person with diverticulitis took an anti-inflammation medication, it could temporarily relieve the pain, and that antibiotics sometimes can resolve diverticulitis (id., pp. 62, 66-67). On June 2, 2012, the witness performed a routine five-year physical of Claimant (Ex. A, p. 200). He found that Claimant had a left incipient hernia (Tr., p. 64).

Dr. Lowenstein saw Claimant on October 11, 2012. Other than what he recorded in his progress notes, however, Dr. Lowenstein did not remember the interaction, or what Claimant told him (Tr., p. 80). The AHR note indicates that Mr. Abbott was complaining of pain on the left side of the groin area and a rash on the right. The witness examined Claimant for a hernia. In the AHR note, the doctor wrote "incipient hernia left, not a hernia and not an issue" (Ex. A., p. 24 [emphasis in original]). He agreed that, if Claimant's pain was not caused by a hernia, it is possible that something else was causing his discomfort. Since there is no note in the AHR stating that blood work, diagnostic, or lab tests were ordered, the doctor further agreed that he did not order any on October 11, 2012 (Tr., pp. 77, 78, 80).

Upon cross-examination, Dr. Lowenstein testified that the type of symptoms one would expect to find in a patient with diverticulitis depends upon its severity (Tr., p. 93). In many cases, the objective finding of diverticulitis may be present only as mild rebound tenderness, meaning, if one pushed into the abdomen then let go quickly, the abdomen would rebound, and the patient would express pain or discomfort. If that was occurring in all four quadrants of the abdomen, depending upon its severity, Dr. Lowenstein would send the patient to a surgeon or the emergency room (id., pp. 93-94). If it was only in one area of the abdomen, then he would put the patient on an antibiotic and then check again in a few days (id.). The subjective complaints he would expect to see for diverticulitis include abdominal pain or diarrhea, with or without blood, and the feeling of malaise. Vital signs that would be helpful in diagnosing diverticulitis include a fever, possibly an elevated pulse, and elevated blood pressure, as indicators of an inflammatory or infectious process at work (id., p. 94). However, he said that those symptoms and complaints are not unique to diverticulitis (id., p. 106). Dr. Lowenstein agreed that abdominal pain can be produced by many different diagnoses and that food poisoning also can cause abdominal pain and diarrhea (id., p. 107). A complaint of "belly feels like pins and needles" is not a complaint he would expect to find with diverticulitis as it is not a common description for abdominal pain (id., p. 108).

In reviewing the October 4, 2012 AHR entry by Nurse Cardinal, Dr. Lowenstein said that there is nothing that would lead him to push on the abdomen to determine tenderness or rebounding (Tr., p. 96; Ex. A, p. 25). Based upon the complaints in the note, the witness was not thinking about the abdomen (id., p. 96). If he had reviewed that note before his October 11, 2012 visit with the Claimant, he would have had no reason to test the abdomen for rebound or tenderness (id.). He agreed that groin pain is not the same as abdominal pain (id.).

If Claimant had diverticulitis on October 11, 2012, Dr. Lowenstein said that he would have expected pain or discomfort in the abdomen and not in the groin area (Tr., p. 99). In fact, his note of October 11, 2012 does not mention pain or discomfort at all, which he would have documented had it been mentioned (id., pp. 97, 100-101). Dr. Lowenstein made a notation in the AHR that Claimant was to be seen again in five to seven days (Ex. A., p. 24).

Claimant next was seen by Dr. Lowenstein on October 18, 2012 (Tr., pp. 81, 214; Ex. A, p. 24). Claimant testified that, in the period between October 11 and October 18, 2012, the pain in his lower left abdomen got worse, but still was localized to his abdomen, and he told the doctor that. He testified that the doctor again told him that it was not a hernia and it was not an issue. The doctor did not examine Claimant's abdomen or his rash that day (Tr., pp. 213-215). Dr. Lowenstein testified that, on October 18, 2012, he only treated Claimant for the rash. He said that, if Claimant had made any new complaints, he would have documented the complaints, made an assessment, and, if necessary, would have developed a treatment plan (id., p. 101).

Claimant was next seen by a Mohawk medical provider on November 1, 2012 (Ex. A, p. 24). Mr. Abbott testified that, during the period between October 18 and November 1, 2012, the pain in his lower left abdomen continued to get worse. During that time, he attempted to see the medical staff. He put in sick call slips, but never got called down to sick call. He also asked his housing unit officer for emergency sick call. He stated that the CO called the medical unit and said the nurse told him that Claimant already had been seen by the doctor and he had no medical issues, so Claimant could not go to emergency sick call (Tr., pp. 215-216). Claimant said he did get to go to sick call on November 1, 2012 because he wrote on his sick call request slip that he had a cold. He stated that he wrote that down because, once you have been refused sick call for a certain issue, an inmate cannot continue to ask to be seen for the issue that was denied. When he saw the nurse at sick call, he told her that the pain in his stomach was not getting better and she told him that he had been seen by the doctor, but she would schedule him to be seen by the doctor again (id., pp. 216-217).

Nurse Cardinal testified that she saw Claimant at sick call on November 1, 2012 (Tr. pp. 28-29; Ex. A, p. 24). He complained of sinus congestion and a dry cough. He was told to increase his fluid intake and reduce his smoking. He was issued 12 packages of Medicine D with instructions. She was not able to give him cough syrup as it was out of stock (id.). She stated that, if Claimant had said that he was experiencing stomach pain, she would have written it down (Tr., p. 30).

Claimant returned to emergency sick call on November 2, 2012 (Tr., pp. 217-218, 417-419; Ex. A, p. 23). Claimant said that his whole body hurt and the pain in his stomach region was more diffuse. "It felt like pins and needles like someone's sticking you in the stomach with pins and needles." It was "sharp" and "excruciating" (Tr., p. 218). He also was vomiting and had diarrhea (id., p. 219). Claimant was seen by Nurse Reppel that day (id., p. 418). She has been a New York State-licensed registered nurse since 1971. She is retired (id., p. 410). In 2012-2013, she worked at the Primary Care Unit at Mohawk (id., p. 413). During the November 2, 2012 visit, Claimant told Nurse Reppel that he had "[c]ooked something [the] day before yesterday [and now suffered from] constant diarrhea" (id., pp. 419-420; Ex. A, p. 23). He reported that his belly felt like "pins and needles," his testicles were hurting, he had diarrhea 13 times that day, and his buttocks/rectal area was sore (Tr., pp. 419-420; Ex. A, p. 23). Nurse Reppel observed that Mr. Abbott ambulated "hunched over" and got up to a standing position "with difficulty" (Tr., p. 420; Ex. A, p. 231). She recorded his temperature was 99.6, blood pressure was 120/74, pulse was 98 and respirations were 18 - which were all basically normal readings, with a slightly elevated temperature (Tr., p. 420; Ex. A, p. 23). He was advised to eat rice, toast, crackers, and drink fluids. He was given 12 packets of Diamode for the diarrhea and A and D ointment (Tr., p. 419; Ex. A, p. 23). He was told to return to sick call if he felt no better in a couple days (Tr., p. 419; Ex. A, p. 23). From this, Nurse Reppel concluded that Claimant ate something that did not agree with him, causing the diarrhea, which, in turn, caused the sore rectum (Tr., p. 421; Ex. A, p. 23). She testified that Claimant did not make any complaints of abdominal pain, nausea, vomiting, or blood in the diarrhea because, if he had, she would have written them down (Tr., p. 421).

Claimant testified that he did not attend his prison program on November 2, 2012. He just went to bed after he returned from sick call and he stayed in bed most of the day. He did not eat or take any medications that day. The pain in his abdomen got worse, as did the diarrhea (Tr., pp. 307-308). Claimant stated that, on November 3, 2012, he asked the Housing officer for emergency sick call. The CO told Claimant that he called the medical unit and was told that Claimant was seen in medical the previous day (id., 310-312). He was not seen at emergency sick call on November 3, 2012.

Claimant testified that he requested emergency sick call, again, on November 4, 2012, because the abdominal pain increased and he was unable to get out of bed. He said he was taken to the medical unit on a stretcher because he passed out in the housing unit. He does not remember going to the medical unit or talking to the nurse, but does remember a video conference with someone he believed to be a doctor (Tr., pp. 314-320). That day he "felt like [he] was dying" (id., p. 220).

Nurse Esposito testified that she has been a New York State-licensed registered nurse since 1996, and worked in the primary care unit at Mohawk in 2012-2013, and still works for DOCCS (Tr., pp. 350-354). She saw Claimant on November 4, 2012, when a medical emergency call was received from Claimant's housing unit. At 1:25 p.m., she arrived at the dorm, assessed Claimant, and observed him standing by his locker and vomiting. She also observed 10-12 empty wrappers of Diamode, an anti-diarrheal medication, sitting on top of his locker. Claimant told the witness that he had taken all of the medication and continued to vomit. At no time during the five minutes she was inside Mr. Abbott's dorm room did the witness see Claimant lying on the floor, on his bunk unconscious in the dorm, and Claimant never reported to Nurse Esposito any loss of consciousness, or that he collapsed. None of the housing officers made such a report either (Tr., pp. 357-361; Ex. A, p. 23). Nurse Esposito took Claimant's vital signs and then had him transported from the dorm to the medical unit. He was ambulatory at that time and was not put on a stretcher (Tr., pp. 360-362). Upon arrival at the Primary Care Unit, Claimant was placed on a bed in the emergency treatment room and the nurse assessed his abdomen. She observed that he had a distended abdomen (protruding belly). She listened to all four quadrants of his belly with a stethoscope and noted that bowel sounds were present, indicating his colon was moving stool as it should. She stated that, if there had been an obstruction, one of the quadrants would not have any bowel sounds. She also noted tenderness of the belly upon palpation. Her progress note states Claimant made complaints of abdominal pain with nausea and vomiting. His vitals were: Temperature - 97.9 (normal), pulse rate - 100 (elevated), blood pressure - 140/92 (elevated), and respirations were 20. At that point, Nurse Gulla was coming on duty and took over the care and treatment of the Claimant (Tr., pp. 363-366; Ex. A, p. 23).

Nurse Gulla has been a New York State-licensed registered nurse since 1978. She has worked for DOCCS since 1989 and at the Primary Care Unit at Mohawk since October 2012 (Tr., pp. 385, 387-388). According to the progress notes, she saw the Claimant on November 4, 2012 (Tr., pp. 389-390; Ex. A, p. 23). On account of a shift change, she took over the care and treatment of the Claimant from Nurse Esposito (Tr., p. 391). The witness reassessed Claimant and agreed with Nurse Esposito's findings. She found his abdomen was distended and tender and he had bowel sounds in all four quadrants (id., pp. 391-392). Nurse Gulla found that Claimant had no rebound tenderness (id., p. 395). Claimant never lost consciousness while she was with him and he was able to answer her questions (id., p. 392). Following her assessment, she set up a Telemed conference with an emergency room doctor in Buffalo, New York. The doctor was able to see and communicate directly with Claimant (id., p. 393).

According to the medical record that the emergency room doctor faxed to Mohawk, Claimant told him that, on Friday, he started with diarrhea that resolved after taking 10 Loperamide, an anti-diarrheal medication (Tr., p. 394; Ex. A, p. 198). The records also state that he had lower abdominal pain for the past two days (id.). The emergency room doctor instructed Nurse Gulla to send Claimant to the hospital to rule out appendicitis and give him a Percocet (Tr., p. 396). Claimant was transported to Oneida Hospital at 3:00 p.m. by van (id., p. 397).

Claimant testified that he had surgery on November 4, 2012 (Tr., pp. 220-221).(1) He stated he was in the hospital for 10 days to two weeks (Tr., p. 221). He stated that he was led to believe by staff at the hospital that his condition easily could have been fixed and he should not have needed surgery (id., p. 222). He testified that, from the hospital, he was sent to Mid-State Correctional Facility (hereinafter, "Mid-State") to an "aftercare" unit. He could not remember how long he was there, and he was eventually transferred back to Mohawk (id., pp. 222-223). He had a colostomy bag for 8-10 months (id., p. 226). Claimant described cleaning the colostomy bag, and going to the medical unit to clean his wound, change the bandage (known as a "wafer"), and the colostomy bag. He described the wafer as a huge Band-Aid that has an opening in it, so that the part of the intestine that hangs out of the stomach (known as the "stoma") fits through the hole. The wafer attaches to the colostomy bag, so that the feces goes into the colostomy bag. Claimant testified that the wafer gets "gooey" and has to be changed daily (id., pp. 226-227). He said that, after awhile, Mohawk ran out of the wafer size he was using. However, there was another inmate who had a colostomy, so the medical unit gave Claimant those wafers, but his stoma was smaller than Claimant's so that the wafer did not fit him properly. The smaller wafer caused his stoma to bleed because the wafer was choking his stoma. He stated that he asked medical staff to order the correct size wafer for him, but they refused (id., pp. 228-229, 251). Claimant filed a grievance against the medical staff because Mohawk refused to order the correct size wafer. Mr. Abbott said that it was agreed that he could have access to scissors to make the smaller hole in the wafer larger, so it would fit his stoma (id., p. 229). Claimant said that the wafers were round rings of plastic that attached to the colostomy bag (id., pp. 249-250). He said that the wafers that he cut fit over the stoma, but that they were uncomfortable because sharp pieces of plastic, left where he had cut the wafers, stuck into his skin. Moreover, he said that the stoma increasingly became tender and always was itchy as a result of the need to remove the adhesive that keeps the wafer attached to the skin and replace it daily with a new adhesive-backed wafer (id., pp. 230-231).

Claimant testified that having the colostomy bag in prison caused him both physical and psychological pain. He said one of the housing unit officers would say things to him that would cause psychological pain (Tr., pp. 231-232). He said that, on one occasion as he was leaving the mess hall, a CO thought he was smuggling something out of the mess hall, so he "threw [Claimant] up against the wall, [and] grabbed [the] colostomy bag and squeezed it" so hard, Claimant's stoma started bleeding and Claimant collapsed to the ground (id., pp. 231-232). Claimant also stated that, when he returned to Mohawk after the surgery, he was placed in a top bunk, not a lower bunk, and he had great difficulty getting up into the bed and out of the bed without a ladder available to use (id., p. 233). He stated that he was finally given a bottom bunk through the kindness of a CO, who had a family member with a colostomy, and a sergeant, not because of the medical staff (id., pp. 234-235). He said that medical did not give him a lower bunk permit after November 4, 2012 (id., p. 338).

Claimant testified that he went back to the same hospital to have colostomy reversal surgery.(2) After that surgery, the colostomy bag was gone. After the second surgery, he was placed on a high fiber, high liquid diet. He had a limited range of mobility and could not lift anything heavier than 5 or 10 pounds. He stated that he has never fully recovered from the second surgery (Tr., pp. 236-237). He stated that he has short bowel syndrome, irritable bowel syndrome, and still eats a high fiber, high liquid diet. His stomach is smaller following the surgeries and his appetite is not the same as it was before the surgeries. He needs to make frequent visits to the bathroom. He does not go to restaurants to eat because of his bowel issues. He has scars as a result of the surgeries (id., pp. 237-238). Prior to the surgery in November 2012, he did not have any scars on his abdomen (id., p. 247).

At trial, the Court observed Claimant's surgical scars. Mr. Abbott has a vertical scar that extends from about three inches above his belly button down to an inch or two below his belly button. Puckering, discoloration, and graying of the skin, is very visible from 1/4 to 1/2 inch on either side of the scar. The belly button itself is a little off-center and puckered on the right-hand side where the scar runs down next to it. In addition, there is a clean, straight, horizontal scar located a little below the belly button and an inch or two to the left. Moreover, there are several very clean, horizontal scars, each between 1/4 to 1/2 inch long, that Mr. Abbott said were scars from surgical staples, and from the colostomy (see Tr., pp. 238-247).

Nurse Gulla saw Claimant at Mohawk's Primary Care Unit on December 10, 2012, when he returned from the Mid-State infirmary after the first surgery (Tr., p. 397; Ex. A, p. 22). She stated that he was offered a bottom bunk permit but declined it, telling her that he "didn't need it. He probably already had a bottom bunk or had a permit from previously" (Tr., pp. 398-399; see Ex. A, p. 22). The witness also stated that Claimant was seen by Dr. Grabo on December 11, 2012 and the doctor's note states "no program," which Nurse Gulla agreed meant that Claimant was excused from attending his prison program. The note also says "bottom bunk" (Tr., p. 407; Ex. A, p. 22).

Claimant was next seen on December 14, 2012 by Nurse Smith for a dressing change, and no complaints by Claimant were noted in the AHR (Tr., pp. 400-401; Ex. A, p. 21). The next time Claimant was seen in the Primary Care Unit was January 11, 2013 by Dr. Grabo for a routine post-op assessment at which his dressings were changed (Tr., p. 401; Ex. A, p. 21). The next time Claimant was seen in the Primary Care Unit was February 7, 2013 for an emergency sick call due to a complaint of "build-up of pressure behind stoma" (Tr., p. 400; Ex. A, pp. 20-21). Nurse Gulla took his vital signs, which were all within normal range. His abdomen was soft, but a little distended. He had bowel sounds and his stoma was pink, indicating that it was healthy (Tr., p. 401; Ex. A, p. 21). He was seen again on February 8, 2013 because the wafer was cutting his stoma (Ex. A, p. 20). On February 25, 2013, he went to emergency sick call requesting a wafer and a pouch, which the nurse issued to him. The nurse also informed Claimant to use regular sick call, not emergency sick call, for his routine supplies (id.). Claimant again went to emergency sick call on March 1, 2013 requesting a wafer and a pouch, which were provided. The nurse advised Claimant that his need for supplies was not an emergency and he should use regular sick call for his supplies (id., p. 19).

Nurse Reppel saw Claimant at sick call on March 28, 2013 because he needed a wafer, bags, and a clip. She advised Claimant to change his own wafer, it was cut to size, and Claimant performed his own self-care. The nurse did not make a notation in the AHR that Claimant complained of pain, and said that, if he had, she would have documented the complaint (Tr., pp. 422-423; Ex. A, p. 19). The AHR contains a notation dated May 1, 2013, that Claimant was again told to sign up for sick call for his colostomy care (Ex. A, p. 18). Nurse Esposito testified that, on May 10, 2013, she also advised him to sign up for sick call, as previously instructed, to take care of his supply needs (Tr., p. 370; Ex. A, p. 18).

Nurse Esposito stated that the standard procedure used to ensure the wafer fit to the stoma was that the stoma was measured by the physician and he told the patient the size. The wafers have circles printed on them and the patient cuts the wafer to the size of his/her stoma and then places it on his/her abdomen around the stoma. The policy of the Mohawk Primary Care Unit regarding colostomy self-care was that inmates came to regular sick call every four to six days, as needed, when the adhesive on the wafer no longer stuck to the abdomen, with instructions to empty and rinse the bag every day in between such visits (Tr., p. 374). Nurse Esposito testified she never refused to treat the Claimant (id., p. 375). Claimant never told her that he was discouraged from signing up for sick call or requesting emergency sick call, nor was she aware of any incident where Mr. Abbott was denied such care by a member of the Mohawk medical staff (id., pp. 375-376).

Nurse Cardinal also saw Claimant on May 10, 2013 and advised him to report to sick call every Friday at 6:15 a.m. for his self-colostomy care (Tr., p. 31; Ex. A, p. 17). She stated the purpose of the visit was that Claimant was being non-compliant. He was using his colostomy care to avoid going to his program, which was disrupting the officers and the school building. So, the doctor wrote an order that Claimant was to come to the Primary Care Unit every Friday at 6:15 a.m. (Tr., p. 31-32).

Dr. Good testified that he is a medical doctor, licensed in New York State, and has been in private practice on Long Island for 41 years. He is Board certified in internal medicine and gastroenterology and his practice is in those two areas. He stated that gastroenterology is a sub-speciality of internal medicine that deals with diseases of the gastrointestinal tract and the abdominal organs, with a special interest in the esophagus, stomach, small and large intestines, liver, gallbladder, bile duct, and pancreas (Tr., pp. 122-124).

The witness stated that diverticulosis is an extremely common condition that affects about one-third of adults in the United States. Diverticulosis represents small herniations of pockets in the large intestine and also can occur congenitally in the small intestine. Uncomplicated diverticulosis is an asymptomatic condition (Tr., p. 125). He testified that diverticulitis is a complication of diverticulosis, an inflammatory process involving a segment of the colon which contains herniations, or diverticuli, in the wall of the colon. The inflammation is caused by an infection in the wall of the colon (id., pp. 125-126).

Dr. Good reviewed Nurse Cardinal's AHR note of Claimant's October 4, 2012 sick call visit (Ex. A, p. 25). He said that the note is "defective in every way a medical record could be defective" (Tr., p. 131). He said that: the groin rash is not described or lateralized (i.e., it does not indicate if the rash is on Claimant's left or right side); the basis for the complaint of inguinal hernia is not made; no objective findings are recorded; and there is no assessment of Claimant's condition (id., p. 132). In his opinion, Nurse Cardinal should have performed an abdominal exam because groin pain cannot be assessed without it (id., p. 156). The witness opined that the groin pain could have been from diverticulitis. He cannot attribute it to anything else because there is no objective data of any condition on the left side of the abdomen or groin which would have caused Claimant's symptoms. The progress of "these events comport completely with the natural history of diverticulitis" (id., p. 135). Referring again to the AHR note of the October 4, 2012 sick call visit (Ex. A, p. 25), the doctor stated that there is no evidence in the note that the nurse made an effort to make a differential diagnosis or to consider the origin of Claimant's symptoms (Tr., p. 136). He did not agree with testimony that a complaint of groin pain is not consistent with diverticulitis as pain from diverticulitis can radiate into the groin because the distance from the sigmoid colon to the groin and pelvis is only inches (id., pp. 136-137).

Dr. Good opined that the October 11, 2012 AHR note by Dr. Lowenstein does not reflect even the minimum standard of good and accepted medical practice (Tr., p. 137). "The criticism of the note from October 4th is reinforced on this note of October 11th" (id.). He stated that it is very difficult to understand what the doctor was "driving at" in his note (id.). The witness said that the reason Claimant was referred to the doctor, groin pain, was not addressed. There is no indication in the note that Dr. Lowenstein did any investigation into what was causing Claimant's complaint of groin pain (id., pp. 137-138). He stated that the note does not comport with the minimum standard of accepted medical care because there was no evaluation of Claimant's abdomen, groin, or pelvis, in terms of palpation and trying to elicit pain. Dr. Lowenstein's AHR also does not record that he asked any questions as to what the pain felt like, or how severe it was (id., p. 138). Dr. Good opined that, in accordance with good and accepted medical practice, Dr. Lowenstein should have asked Claimant about the quality and severity of the pain, performed a physical examination of the lower abdomen and groin area, and made an assessment as to what those findings were. In addition, he stated that, with the presence of groin pain, the doctor could have ordered a blood count, urinalysis, x-ray, or imaging (id., pp. 138-139). Dr. Good opined that, when Dr. Lowenstein noted in the AHR, "not a hernia, not an issue," it meant he did not find that Claimant had a hernia (id., p. 189; see Ex. A, p. 24). He further opined that, since Dr. Lowenstein did not find a hernia, it was incumbent upon him to discover why Claimant was complaining of left groin pain. There is no indication in the AHR notes that Dr. Lowenstein tried to make that determination, and that failure was a departure from the minimum standard of medical care (Tr., p. 189).

In Dr. Good's opinion, if a minimally acceptable examination had been performed on October 11, 2012, the doctor would have concluded that Claimant had an inflammatory process in the lower abdomen, and, after some blood tests and imaging, he probably would have put Claimant on antibiotics, and Mr. Abbott would have had a reasonable chance of recovery because most patients with uncomplicated diverticulitis respond to antibiotic treatment. If Claimant had responded to such antibiotic treatment, he would not have needed surgery (Tr., p. 139). The witness also opined, within a reasonable degree of medical certainty, that, if an appropriate evaluation had been undertaken, the inflammatory process would have been found on October 11, 2012, because the natural history of diverticulitis is known, "and this story unfolds as an exact example of [that] natural history" (id., p. 140).

Dr. Good also opined that the October 18, 2012 AHR note (Ex. A, p. 24) is not in accord with good and accepted medical practice because the issue of the groin pain, which is the reason Claimant was referred to the doctor, again was not addressed. Claimant still would have been in pain on October 18, 2012, because the inflammatory process would only get worse and would not spontaneously resolve (Tr., p. 141). There is no indication in the AHR note that Dr. Lowenstein performed an examination of Claimant's pelvis, groin, or abdomen, nor does it state what Claimant's chief complaint was that day (id., p. 142). Regarding the November 1, 2012 AHR note (Ex. A, p. 24), Dr. Good opined that the note does not reflect the minimum accepted standard of care "for exactly the reasons I've iterated earlier" (Tr., p. 142). According to Dr. Good, given that Claimant's diverticulitis perforated two days later, and based upon the record, it is not possible that Claimant did not have pain or discomfort in his abdomen or groin on November 1, 2012 (id., pp. 142-143).

Dr. Good stated that Claimant had surgery on November 4, 2012 for "a perforated diverticulitis with diffuse peritonitis" (Tr., p. 145). He explained that diffuse peritonitis means that the abdominal cavity has been contaminated by intestinal contents, i.e., fecal matter (id., p. 145). This process takes place over a period of weeks and months. It does not develop over a period of days (id., p. 134). As the inflammatory process worsens, the pain becomes more severe, and, ultimately, when peritonitis (an inflammation of the membranes that line the abdominal cavity) develops, it becomes a critical situation (id., p. 135). He stated that untreated perforated diverticulitis with peritonitis is a fatal condition. Therefore, in Dr. Good's opinion, the emergency surgery on November 4, 2012 saved Claimant's life (id., p. 133). Claimant's surgery also involved a colostomy, which is a diversion of the gastrointestinal tract (id., pp. 146-147).

Dr. Good concluded that, based upon his review of the medical records, Claimant had untreated diverticulitis that perforated. He also opined that the failures and departures from the minimal standards of good and accepted medical care were substantial producing factors in causing Claimant to require lifesaving surgery on November 4, 2012 - the colostomy, the need to wear the colostomy bag for approximately eight months, and a second surgery to reverse the colostomy (Tr., pp. 147-148). The witness also expressed the opinion, within a reasonable degree of medical certainty, that Claimant has risks of long-term health problems because of the surgeries he had. He said that patients who have had severe inflammation in the lower abdominal cavity or the pelvis are at risk for scar tissue, fibrosis, adhesions, and episodes of small bowel obstruction, which can occur, unpredictably, anytime in the future. If Claimant's diverticulitis had been successfully treated by medicine, he would not have the same risk (id., p. 148).

Dr. Good testified that, in the pathology report, the pathologist is describing the gross pathology, the section of colon that was submitted to him.

It was opened in the operating room, and the first thing we notice is that there is pericolonic adipose tissue, measuring nine by eight by five centimeters, so there's fat always adherent to the colon, and that's on the serosal of the outside surface of the colon. The serosal surface shows reddish discoloration and an area of whitish exudate, measuring six by five by 3.5 centimeters, and then the defect in the wall. That whitish exudate is pus, and it took time for that pus to get through that hole in the colon and create that exudate. The perforation site, further down, shows a probable diverticulum, measuring approximately one centimeter in greatest dimension. The most important line here is the colonic wall appears thickened. The colonic wall is thickened, because it was chronically inflamed, and it's that chronic inflammation and the thickening of the wall that produces this outcome.

Dr. Good stated that the pathology report is consistent with his testimony (Tr., p. 188; see Ex. A, p. 171 [Surgical Pathology Report]).

Dr. Oceguera is a medical doctor licensed in New York State since 2005. He is a general and colorectal surgeon at Bassett Healthcare Network in Cooperstown, New York (Tr., pp. 442, 445). Colorectal surgery is a sub-specialty of general surgery, and he had additional years of training in the diseases of the colon, rectum, and anus (id., p. 443). He is Board certified in both general and colorectal surgeries. He is also the associate chief of surgery at Bassett Hospital and a clinical instructor for the Columbia-Bassett Medical School, as well as the program director for the postgraduate PA surgical residency (id., pp. 444-445).

Dr. Oceguera described diverticulitis as a spectrum of diseases of the colon, an inflammation of the large intestine, and, most commonly, the last foot of the colon. The severity of the illness can range from soreness to a perforation, or leaking of stool from one of the diverticulum, or pockets, of the colon. There can be a very large array of symptoms, and the most common one that prompts people to get medical attention is pain in the abdominal cavity, mostly in the left lower area of the abdomen. It does not typically include the groin area (Tr., pp. 449-451). The symptoms are not unique to diverticulitis and he sees patients for abdominal pain caused by a number of different reasons. Pain from diverticulitis does not radiate down into the groin area unless an abscess has gone through the abdominal wall. Throughout his training and in practice, he has never seen pain from diverticulitis radiate to the groin area (id., p. 451).

The witness reviewed the AHR note from October 4, 2012 (Ex. A, p. 25), which notes Claimant's complaint of groin rash and inguinal hernia, but no complaints of stomach pain or left abdominal pain are recorded. Dr. Oceguera opined that groin pain is not the same as abdominal or stomach pain. If a patient ever complained about groin pain, he would not interpret that to mean abdominal or stomach pain. Additionally, if a patient ever complained about groin pain and a possible inguinal hernia, he would not include diverticulitis in his differential diagnosis (Tr., pp. 453, 455).

Dr. Oceguera stated that he was not provided with a copy of Dr. Lowenstein's deposition transcript or Nurse Cardinal's deposition transcript to review prior to the trial (Tr., pp. 494, 495, 504). He was not aware that Nurse Cardinal testified that she did not perform a physical examination of Claimant on October 4, 2012. He stated that a physical exam should have been performed (id., p. 504). He agreed that there are times where diverticulitis can be non-complicated and times when it can be complicated (id.). He also agreed that, very rarely, non-complicated diverticulitis can become complicated, and he has seen it in his practice (id., pp. 504-505). He agreed that, if a patient had a complaint of pain and no examination was performed, there would be no way for that clinician or any subsequent clinician to determine the cause of the complaint (id., p. 505).

Dr. Oceguera stated that Dr. Lowenstein's AHR note from October 11, 2012 (Ex. A, p. 24) did not contain any complaints about stomach or abdominal pain (Tr., p. 457). In Dr. Oceguera's opinion, Dr. Lowenstein was seeing and treating Claimant pursuant to the complaints that Mr. Abbott made on October 4, 2012 - groin rash and concern for inguinal hernia (id.). Dr. Oceguera was unfamiliar with the phrase "incipient hernia" used in the AHR, but Dr. Lowenstein's note states that the incipient hernia was "not an issue" (Tr., p. 458; Ex. A, p. 24 [emphasis in original]). Dr. Oceguera agreed that there is nothing in Dr. Lowenstein's October 11, 2012 note to indicate that Claimant was having any intestinal or digestive issues. In addition, there is nothing in the note that would lead to a differential diagnosis of diverticulitis, or that would lead to ordering additional tests to diagnose for diverticulitis (Tr., p. 459).

On cross-examination, Dr. Oceguera reviewed Dr. Lowenstein's October 11, 2012 AHR note (Ex. A, p. 24). He said he did not know what history Dr. Lowenstein took from Claimant because Dr. Lowenstein did not record any history. He agreed that, if a patient came to him complaining of a hernia, he would take a history of the patient and ask how long the patient was experiencing pain, because that would be good and accepted practice. He further agreed that, if Dr. Lowenstein did not take a history, that would be a departure from good and accepted practice. He did not know if Dr. Lowenstein took Claimant's history because he did not review the doctor's deposition or trial testimony (Tr., pp. 496-497). Dr. Oceguera testified that Dr. Lowenstein should have asked more about Claimant's hernia, and there is no indication in the AHR note that Dr. Lowenstein performed an examination of the left side of Claimant's groin area or abdomen (id., pp. 500-501). Dr. Lowenstein "should have examined [Claimant]" for a hernia (id., p. 501). The witness also agreed that there is nothing in Dr. Lowenstein's October 11, 2012 AHR note that indicates he determined what was causing Claimant's complaint of pain on the left side (id., p. 503). He agreed that, if a healthcare provider is presented with a patient who has a complaint, it is incumbent upon that healthcare provider, consistent with good and accepted practice, to take a history and perform an examination (id., pp. 503-504).

The AHR note from October 18, 2012 (Ex. A, p. 24) records Dr. Lowenstein's follow-up to the October 11, 2012 visit (Tr., p. 460). It does not make any mention of stomach or lower left abdominal complaints, nor does it indicate that Claimant was having any intestinal or digestive issues. There is nothing in that note that would lead to a differential diagnosis of diverticulitis, or lead to ordering tests to diagnose for diverticulitis (id., p. 461). Dr. Oceguera stated that the AHR note from November 1, 2012 (Ex. A, p. 24) lists Claimant's complaints of sinus congestion and dry cough (Tr., p. 462). Those complaints would not be significant for someone who had diverticulitis. There is nothing in that note regarding left abdominal pain or stomach complaints, or which would lead to a differential diagnosis of diverticulitis or to order tests to diagnose for diverticulitis (id., p. 463).

Dr. Oceguera said that the AHR note from November 2, 2012 (Ex. A, p. 23) is the first entry that records any complaints involving Claimant's belly or stomach. The note reports that Claimant's belly feels like pins with needles (Tr., p. 466). Dr. Oceguera stated that, when diagnosing an intestinal or digestive condition, the term "pins with needles" does not have any significance and is not used for abdominal pain (id.). Rather, he said that description is typically used for neuropathic pain, like shingles or herpes (id.). Based upon his review of the note, Dr. Oceguera opined that Claimant presented with complaints of diarrhea, sore testicles, and rectal pain, which, he said, are not specific for any particular condition (id., p. 467). The note also contains the notation that Claimant "[c]ooked something [the] day before yesterday" (Ex. A, p. 23). The witness stated that the notation "sounds like [Claimant] thinks it's related to what he cooked and ate," like food poisoning, gastroenteritis, or a food allergy (Tr., p. 467). He also opined that the notation "[a]mbulates hunched over" (Ex. A, p. 23), is consistent with someone who has severe diarrhea and that "[s]tanding with difficulty" (id.) also can be consistent with someone who has food poisoning and diarrhea (Tr., p. 468). Dr. Oceguera said that there is nothing in the November 2, 2012 note that would lead to a differential diagnosis of diverticulitis or to tests being ordered to diagnose diverticulitis. There also is nothing in the note that indicates Claimant had nausea or vomiting in the witness' opinion (id., p. 469).

The AHR note from November 4, 2012 (Ex. A, p. 23) indicates that Claimant had complaints of abdominal pain with nausea, vomiting, abdominal distention and tenderness, bowel sounds, positive in all four quadrants, no rebound tenderness, nothing by mouth since November 2, 2012. His temperature was 97.9, pulse was 100, blood pressure was 140/92, and respiratory rate of 20 (Tr., p. 470). The witness stated this was the first time there was a complaint of abdominal pain (aside from the reference to pins and needles), nausea, vomiting, distended or tender abdomen noted in the AHR (id., p. 471).

Dr. Oceguera agreed that a tender belly is not unique to diverticulitis and can be found with other conditions involving the belly or the stomach. He explained that, when the intestines stop working, one will not hear them moving fluid or stool around. "Positive bowel sounds" indicate that the intestines are still working. It is not significant when determining a differential diagnosis, however, because one can hear bowel sounds even during surgery when patients are paralyzed, so it is not specific to anything (Tr., p. 473). An elevated temperature typically appears when there is an inflammation, which was not present on November 4, 2012 (id., pp. 473-474). The longer a patient has inflammation, the greater the likelihood of an elevated temperature (id., p. 474). Based upon the AHR note of November 4, 2012, Dr. Oceguera would have considered diverticulitis as part of a differential diagnosis and would have ordered additional testing to diagnose for diverticulitis, such as a CAT scan, and sent Claimant to the emergency room (id., pp. 475-476).

The initial note from the Emergency Room (hereinafter, "ER") physician from November 4, 2012 (Ex. A, p. 156) reports Claimant complained of abdominal pain and vomiting. The note further states "[o]nset Thursday with diarrhea after eating a meal prepared at the prison. He apparently was the only one stricken ill. He was given Percocet and the diarrhea stopped over the weekend, where he did not have any further bouts and has not moved his bowel over the weekend" (Tr., p. 478). The note records the duration of the symptoms as three days, the severity as moderate, pain as 5 out of 10, and that Claimant reported generalized abdominal pain (Ex. A, p. 156). Dr. Oceguera agreed that the complaints and symptoms listed on the ER note are consistent with diverticulitis as part of a differential diagnosis (Tr., p. 479). Dr. Oceguera interpreted the note as Claimant saying he had abdominal pain and vomiting for three days.

The consultation report from the surgeon, Dr. William Lindsey (Ex. A, p. 162), from November 4, 2012, recorded Claimant's vital signs as follows: blood pressure, 145/81; temperature, 101; pulse, 118 beats per minute; respiratory rate, 18. Dr. Oceguera said that the vitals indicate that Claimant had a fever at that time and he was tachycardic, as his heart rate was above 100 (Tr., p. 480). Mr. Abbott did not have a fever, according to the November 4, 2012 AHR note at Mohawk at approximately 1:30 p.m., but, by 11:30 p.m. of the same day, he did have a fever, indicating to Dr. Oceguera that Claimant was getting sicker throughout the day (Tr., pp. 480-481; see Ex. A, pp. 23, 162). In the witness' opinion, the condition was an acute, evolving process taking place over a matter of days (id., p. 481).

Further, under the history of present illness, Dr. Lindsey's note states that Claimant had significant, but non-bloody, diarrhea and lower abdominal pain for the preceding four days. "The patient thought he had food poisoning, but others that ate the same food did not get sick. The lower abdominal pain has worsened over the past few days and is severe today. He denies previous occurrence. He has had no fever, but has [had] dysuria, no chills. A CT scan demonstrated extra luminal gas [consistent with] perforation, either appendicitis or diverticulitis " (id., p. 482; Ex. A, p. 162).

Dr. Oceguera agreed with Dr. Good that there are two types of diverticulitis - complicated and uncomplicated (Tr., p. 483). He stated that complicated diverticulitis is very abrupt and does not take weeks to progress (id., p. 484). When the patient presents with sudden onset pain, fever, elevation of their white count, acute diverticulitis is indicated. Dr. Oceguera opined that Claimant had complicated, acute diverticulitis (id.).

Dr. Oceguera said that the surgical report (Ex. A., p. 176) states that there was a lot of free fluid, but does not mention a collection of pus present (Tr. , p. 491). The witness stated that the lack of abscess indicates that Claimant's condition was a very acute process. The presence of an abscess would indicate a more chronic picture (id., p. 492). Dr. Oceguera agreed that this provides further support for his opinion that Claimant had an acute, complicated diverticulitis (id., p. 493). He stated that the surgical pathology report from November 5, 2012 (Ex. A, p. 171) indicated a hole through the diverticulum, which is specific for complicated diverticulitis and explains why Claimant became so ill within only a few days (Tr. , p. 488). The lab report from the tests ordered in the ER (Ex. A, p. 158) showed Claimant's white blood count and platelet count to be within normal range. If the condition had been a longer developing process, the white blood count would have been higher. There also would be an elevation in the bands or bandemia and the platelet count would have been higher (Tr., pp. 489-490). The lab results support the conclusion that Claimant's diverticulitis was very acute, in Dr. Oceguera's opinion (id., pp. 490-491).

Dr. Oceguera opined, to a reasonable degree of medical certainty, that: Claimant did not have diverticulitis in October 2012 (Tr., p. 487); the medical staff at Mohawk did not deviate from the standard of care in its care and treatment of Claimant; and the medical staff did not fail to timely diagnose Claimant's diverticulitis (id., pp. 485-486). He also opined that the medical staff was not required to order or conduct further testing of Claimant for diverticulitis prior to November 4, 2012; the medical staff was not required to refer Claimant to the hospital prior to November 4, 2012; the medical staff did not do anything to cause Claimant's perforation and subsequent surgeries; and the medical staff could not have taken any action to prevent the Claimant's perforation and subsequent surgeries (id., p. 486).

He further stated that Claimant should not have any physical restrictions at the time of trial as a result of the diverticulitis and subsequent surgeries, and that, usually, a patient who develops acute, complex diverticulitis should be able to return to work after two to three months, but fully recovers from the surgeries, including the colostomy reversal, within six months after the reversal procedure (Tr., pp. 486-487). Dr. Oceguera would not expect any physical restrictions more than six months after the colostomy reversal surgery (id., p. 487). Of all of his surgical diverticulitis patients, none has ever become disabled as a result of the condition or the subsequent surgeries, nor has he ever heard of such a case (id., pp. 493-494).

LAW

When the State engages in a proprietary function, such as providing medical care, it is held to the same duty of care as private actors engaging in similar functions (Schrempf v State of New York, 66 NY2d 289, 294 [1985]; see Sebastian v State of New York, 93 NY2d 790, 793 [1999]). Thus, 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]). Medical malpractice "is simply a form of negligence [and] no rigid analytical line separates the two" (Scott v Uljanov, 74 NY2d 673, 674 [1989]; see Maki v Bassett Healthcare, 85 AD3d 1366, 1367 [3d Dept 2011], appeal dismissed 17 NY3d 855 [2011], lv to appeal dismissed in part, denied in part 18 NY3d 870 [2012]). To establish a medical malpractice cause of action, Claimant must prove that Defendant (1) departed from the requisite standard of medical care, and (2) that such departure was a substantial factor in causing the injury (Helfer v Chapin, 96 AD3d 1270, 1272 [3d Dept 2012]; Carter v Tana, 68 AD3d 1577, 1579 [3d Dept 2009]).

Where, as here, Claimant asserts that his injuries resulted from some omission or delay on Defendant's part, Defendant's negligence can be shown to have been a substantial factor in causing those injuries if it deprived Claimant of a "substantial possibility" of avoiding them (see Wild v Catholic Health Sys., 85 AD3d 1715, 1717 [4th Dept 2011], affd 21 NY3d 951 [2013]; Cannizzo v Wijeyasekaran, 259 AD2d 960, 961 [4th Dept 1999]; Marchione v State of New York, 194 AD2d 851, 854-855 [3d Dept 1993]; Brown v State of New York, 192 AD2d 936, 937 [3d Dept 1993], lv denied 82 NY2d 654 [1993]; PJI 2:150 [XII. Causation; A. Loss of Chance]).

"An award for pain and suffering is inherently a subjective inquiry, not subject to precise quantification, and generally presents a question of fact" (Leto v Amrex Chem. Co., Inc., 85 AD3d 1509, 1511 [3d Dept 2011], quoting Petrilli v Federated Dept. Stores, Inc., 40 AD3d 1339, 1343 [3d Dept 2007]). "Moreover, factors to be considered in evaluating such awards include the nature, extent and permanency of the injuries, the extent of past, present and future pain and the long-term effects of the injury," including the effect on the capacity to enjoy life, engage in daily tasks and/or activities that once brought pleasure, as well as any loss of self-esteem (Nolan v Union Coll. Trust of Schenectady, N.Y., 51 AD3d 1253, 1256 [3d Dept 2008], lv denied 11 NY3d 705 [2008]; see McDougald v Garber, 73 NY2d 246, 255-256 [1989]; Ciuffo v Mowery Constr., Inc., 107 AD3d 1195, 1197 [3d Dept 2013]; Garrison v Lapine, 72 AD3d 1441, 1443 [3d Dept 2010]). The trial court's award will not be disturbed unless it "deviates materially from what would be reasonable compensation" (CPLR 5501[c]). In awarding damages for Claimant's past and future pain and suffering, it is proper for the Court to take judicial notice of the life expectancy tables set forth in Appendix A to the Pattern Jury Instructions (see Giambrone v Israel Am. Line, 26 Misc 2d 593, 600 [Sup Ct, NY County, 1960]; Hancock v Hull Realty Corp., 1994 WL 16459400 [Sup Ct, Bronx County, 1994]; PJI 2:281).

DISCUSSION

Upon consideration of all the evidence, including a review of the exhibits and listening to the witnesses testify and observing their demeanor as they did so, the Court finds that Claimant met his burden, and established by a preponderance of the credible evidence his claim of medical malpractice against the State. The Court finds Defendant 100% liable.

Each of the witnesses provided generally sincere testimony, although they were not equally persuasive. The Court finds Claimant's testimony to be especially credible and, in places, compelling in recounting both his efforts to obtain medical care for his complaints of lower left abdominal pain, and the limitations he now experiences as a result of the two surgeries he endured. By contrast, the testimony of Nurse Cardinal and Dr. Lowenstein were less persuasive. Neither witness recalled the medical care they provided Mr. Abbott and relied upon the AHR notes they created at the time. Because the Court concludes that those AHR notes deviated from good and accepted practice, the testimony of the two medical providers was undermined to a considerable extent. Moreover, the Court, generally, gives more credit to the testimony of Dr. Good, because Dr. Oceguera was put in the untenable position of having been asked to render opinions without having been provided deposition transcripts of Dr. Lowenstein and Nurse Cardinal, and, thus, was not aware of their pre-trial testimony. Accordingly, he was not aware of several pertinent facts when he reached his conclusions regarding the care provided to Claimant. The Court also gives more weight to the opinions of Dr. Good because he is a gastroenterologist and deals, on a regular basis, with gastrointestinal issues including diverticulitis, in their early stages, whereas, Dr. Oceguera, a surgeon, typically encounters such issues after they already have become acute and the patient requires surgery.

The Court concludes that Mr. Abbott encountered repeated issues with the care he was provided at the Mohawk medical unit. The Court credits his testimony and finds that Claimant complained of abdominal pain on his lower left side at his October 4, 2012 sick call appointment with Nurse Cardinal. The Court accepts Dr. Good's conclusion that the AHR note of the October 4, 2012 appointment is defective as the basis for Claimant's complaint of inguinal hernia was not made. In addition, Nurse Cardinal could not remember if she took a medical history from Mr. Abbott, but no objective findings are recorded and no assessment of Claimant's condition is recorded. Nurse Cardinal also said that she did not perform a physical examination of Claimant at that appointment because Mr. Abbott would be examined later by Dr. Lowenstein. The Court also credits Dr. Good's opinion that the nurse should have performed an abdominal examination to assess Claimant's groin pain. Because he was not given Nurse Cardinal's deposition transcript to review,

Dr. Oceguera was unaware, prior to trial, that the nurse did not perform a physical examination. During his testimony, however, Dr. Oceguera agreed that a physical examination should have been performed, and said that, if none was performed, there is no way for that clinician, or any subsequent clinician, to determine a cause of the complaint. Further, Nurse Esposito testified that, if a patient came to her complaining of groin pain, she would perform an assessment of the groin and abdomen because they are connected. She stated that it would be good and accepted practice for a nurse to perform such an examination, if a patient complained of groin pain (Tr., pp. 382-383). The Court also credits Dr. Good's opinion that Claimant's complaints of groin pain on October 4, 2012 comport completely with the natural history of diverticulitis. The Court further credits Dr. Good's testimony that there is no evidence in the October 4, 2012 AHR note that Nurse Cardinal made an effort to make a differential diagnosis.

The Court further credits Claimant's testimony and concludes that the pain in his lower left side increased after October 4, 2012 and that he told that to Dr. Lowenstein at the October 11, 2012 appointment and that Dr. Lowenstein did not ask him questions about the severity and duration of his pain, but only used a "whole lot of words about hernia." The Court agrees with Dr. Good that such inquiries should have been made. The Court also accepts Dr. Good's conclusion that the October 11, 2012 AHR note does not meet the minimum standard for good and accepted medical practice, as Claimant was referred to Dr. Lowenstein because of groin pain and the issue was not addressed. There is no indication that the doctor investigated what was causing Claimant's groin pain. The Court further credits Mr. Abbott's testimony that Dr. Lowenstein did not perform an abdominal examination. The AHR note does not record that he evaluated Claimant's groin, abdomen, or pelvis, in terms of palpation or trying to elicit pain. At trial, Dr. Lowenstein offered that there was nothing in Nurse Cardinal's October 4, 2012 AHR entry that would lead him to push on the abdomen to determine tenderness or rebounding. Thus, the Court is left to conclude that part of the failure to provide appropriate care in this Claim resulted from miscommunication or misapprehension between Dr. Lowenstein and Nurse Cardinal, owing, in no small measure, to the deficiencies in the AHR notes revealed at trial. Nurse Cardinal failed to examine Claimant on October 4, 2012, ostensibly in the belief that Dr. Lowenstein would do so when he treated with the patient. Dr. Lowenstein, in turn, failed to palpate Mr. Abbott's abdomen on October 11, 2012 because, he asserted, nothing in Nurse Cardinal's earlier note apprised him of the need to do so. Dr. Lowenstein did record that Claimant did not have a hernia, but he did not record that he tried to determine what was causing the left groin pain. Dr. Lowenstein agreed that he did not order any blood work, or diagnostic, or lab tests. The Court credits Dr. Good's testimony and concludes that a blood count, urinalysis, x-ray, or imaging study, should have been ordered on October 11, 2012. The Court further credits Dr. Good's opinion that it was incumbent upon Dr. Lowenstein to ascertain the source of Claimant's complaints of left groin pain, and that failure was a departure from the minimum standard of medical care. In addition, Dr. Oceguera testified that he did not know what history Dr. Lowenstein took from Claimant on October 11, 2012, because he had not been provided with Dr. Lowenstein's deposition and because Dr. Lowenstein did not record any history. Dr. Oceguera further said that, if Dr. Lowenstein did not take a history, it was a departure from good and accepted practice. Dr. Oceguera also stated that there is no indication in the AHR note that Dr. Lowenstein performed an examination of the left side of Claimant's groin or abdomen and that he should have examined Claimant. He stated that it is incumbent upon a healthcare provider, consistent with good and accepted practice, to take a history and perform an examination. Dr. Oceguera agreed with Dr. Good that the AHR note does not indicate that Dr. Lowenstein tried to determine the cause of Claimant's groin pain. The Court credits Dr. Good's opinion and concludes that a minimally acceptable examination on October 11, 2012 would have revealed that Claimant was experiencing an inflammatory process in his lower abdomen and, further, that, after blood tests and imaging, Claimant probably would have been put on antibiotics which would have given Mr. Abbott a reasonable chance of recovery from what still was then an uncomplicated case of diverticulitis.

The Court credits Claimant's testimony and concludes that his pain continued to increase after October 11, 2012 and that he told that to Dr. Lowenstein at the October 18, 2012 appointment and that Dr. Lowenstein again failed to examine his abdomen, and again Dr. Lowenstein told Mr. Abbott that he did not have a hernia. The Court credits Dr. Good's opinion that the October 18, 2012 AHR note is, likewise, not in accord with good and accepted medical practice, as Claimant's issue of groin pain again was not addressed by Dr. Lowenstein, and there is no record that the doctor performed an examination of Claimant's groin, pelvis, or abdomen, or what Claimant's complaint was that day. The Court also accepts his conclusion that Mr. Abbott was still in pain, that the inflammatory process of the diverticulitis was getting worse, and that it would not resolve itself. The Court credits Claimant's testimony and concludes that he told Nurse Cardinal on November 1, 2012 that the pain in his stomach was not getting better. The Court also credits Dr. Good's opinion that the AHR note of the November 1, 2012 appointment failed to satisfy the minimum standard of care for the same reasons the notes of October 4, 11, and 18, 2012 are deficient. The Court, likewise, credits his opinion, and finds that Claimant was in pain/discomfort on that date based upon the fact that his diverticulitis perforated two days later. The Court further credits Dr. Good's assessment that the pathology report of a section of Claimant's colon, following the November 4, 2012 surgery, showed a thickened colonic wall because it was chronically inflamed. Dr. Good also explained that the "whitish exudate" referenced in the Pathology Report evidenced pus, a further indication of a chronic condition because it took time for that pus to get through the perforation in the colon to create the exudate. By contrast, Dr. Oceguera said that the surgical note evidenced an acute process because it does not mention a collection of pus anywhere. He also referenced the pathology report but did not address the significance of either the thickened colonic wall, or the presence of the whitish exudate. The Court also accepts Dr. Good's conclusion that, based upon his review of the medical records, Claimant had untreated diverticulitis that perforated. He also opined that the failures and departures from the minimal standards of good and accepted medical care were substantial producing factors in causing Claimant to require lifesaving surgery.

Based upon a preponderance of the credible evidence, the Court finds that Claimant had perforated, untreated diverticulitis with diffuse peritonitis, meaning that the abdominal cavity had been contaminated by intestinal contents, i.e. fecal matter, and that this process took place over a period of weeks, not days. The Court further finds that the failures and departures from the minimal standards of good and accepted medical care at the Mohawk medical unit were substantial producing factors in the above taking place, necessitating Claimant's surgery, the colostomy, the need to wear the colostomy bag for approximately eight months, and the surgery to reverse the colostomy.

The Court also credits Dr. Good's opinion and finds that Claimant has risks of long-term health problems because of the surgeries he had, such as the risk for scar tissue, fibrosis, adhesions, and episodes of small bowel obstruction that can occur, unpredictably, anytime in the future. The Court is unpersuaded by Dr. Oceguera's opinions to the contrary that Claimant should not have any physical restrictions or limitations as a result of the surgeries. The Court further finds that, if Claimant's diverticulitis had been successfully treated by medicine, he would not have the same risk.

The Court credits Claimant's testimony and concludes that he experienced physical and psychological pain as a result of the surgeries. He expressed embarrassment at having a colostomy bag in prison. After the second surgery, he was placed on a high fiber, high liquid diet. He had a limited range of mobility and could not lift anything heavier than 5 or 10 pounds. He stated that he has never fully recovered from the second surgery. He has short bowel syndrome, irritable bowel syndrome, and is still eating a high fiber, high liquid diet. His stomach is smaller following the surgeries and his appetite is not the same as it was before the surgeries. He does not go to restaurants to eat because of his bowel issues. He has one large scar and several smaller ones as a result of the surgeries.

The Court notes that Claimant testified that Defendant failed to provide him with a properly sized wafer, to go around his stoma, following surgery. However, the testimony at trial provided by the State's witnesses established that the wafers are one size and the patient has to size the wafer himself/herself to fit his/her stoma. On this point, the Court concludes that Mr. Abbott was mistaken in his belief. In addition, Claimant testified that, when he returned to Mohawk following surgery, he did not receive a lower bunk permit. Mr. Abbott spoke movingly and in detail about how a CO and sergeant helped him obtain a bottom bunk placement, including the detail, telling to the Court's mind, that he retrieved a note about his bunk placement out of the trash can, an offense that resulted in him receiving a disciplinary ticket (Tr., p. 235). The Court credits his testimony. By contrast, Nurse Gulla's AHR note simply states that Claimant declined a bottom bunk permit (Ex. A, p. 22). At trial, she added that Mr. Abbott told her he "didn't need it. He probably already had a bottom bunk or had a permit from previously" (id., pp. 398-399). The Court concludes that Nurse Gulla's testimony at trial, though offered sincerely, really only amounted to her surmise or guess. Whatever the source of the confusion, the Court concludes that Claimant did experience some small delay, at least, in being placed in a bottom bunk.

In assessing damages for Claimant's past and future pain and suffering, the Court notes that, while it was established that Claimant has risks of long-term health problems, no evidence was proffered to suggest that such conditions are likely to result in a significant diminution in the average remaining life expectancy for a 43 year-old male at the time of trial, which is approximately 34 years (see Ex. A, p. 3 [Claimant's date of birth is November 22, 1975]; PJI, Appendix A]).

CONCLUSION

Based on all the foregoing, the Court finds that Claimant established his case by a preponderance of the credible evidence. Claimant's counsel, prior to the conclusion of the trial, made an oral motion to conform the pleadings to the proof regarding the Bill of Particulars to add the AHR of October 4, 2012. An application to amend a pleading should be freely granted unless a party is prejudiced (McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755, 757 [1983]; Fahey v County of Ontario, 44 NY2d 934, 935 [1978]; Stokes v Komatsu Am. Corp., 117 AD3d 1152, 1154 [3d Dept 2014]). The Court allowed the parties to address the issue in their post-trial memoranda. Neither party did so. Thus, Defendant failed to assert that it will be prejudiced by the amendment. Therefore, Claimant's request to amend the Bill of Particulars is granted.

No evidence was presented to substantiate any medical expenses or lost wages incurred or to be incurred in the future by Claimant. The Court finds that Claimant has suffered permanent damage to his health as a consequence of Defendant's medical malpractice. In assessing damages for Claimant's past and future pain and suffering, the Court recognizes that Claimant required two surgeries, had a colostomy bag for eight months, has short bowel syndrome, irritable bowel syndrome, is still eating a high fiber, high liquid diet, and has a smaller stomach than before the surgeries. He has several visible and unsightly scars on his abdomen. All those items that would not have existed if the State had intervened to address his complaints in a timely fashion with medication.

Accordingly, no damages are awarded for medical expenses or lost wages incurred or to be incurred in the future by Claimant. The Court awards damages to Claimant in the total amount of $550,000, comprised of $325,000 for past pain and suffering and $225,000 for future pain and suffering. Defendant is 100% liable for the damages awarded. The Court finds that such sum constitutes fair and reasonable compensation for Mr. Abbott's injuries.

It is further directed that, to the extent that Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act 11-a(2).

All motions upon which the Court reserved decision at trial, and not otherwise addressed herein, are hereby denied.

All objections upon which the Court reserved determination at trial are now overruled.

The Chief Clerk is directed to enter judgment accordingly.

November 10, 2020

Albany, New York

CHRISTOPHER J. McCARTHY

Judge of the Court of Claims


1. The Operative Report states that the surgery took place on November 5, 2012 (Ex. A, p. 176).

2. The surgery occurred on June 14, 2013 (see Ex. A, p. 85 [Operative Report]).