New York State Court of Claims

New York State Court of Claims
HACKETT v. THE STATE OF NEW YORK, # 2021-015-102, Claim No. 130240


Claimant, formerly incarcerated, was awarded $150,000 for past pain and suffering and $75,000 for future pain and suffering arising from the prison medical staff's failure to properly treat his diabetic foot ulcers which resulted in the amputation of two toes on his remaining foot. .

Case information

UID: 2021-015-102
Claimant(s): JOHN HACKETT
Claimant short name: HACKETT
Footnote (claimant name) :
Footnote (defendant name) : The Court has sua sponte amended the caption to reflect the properly named defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 130240
Motion number(s):
Cross-motion number(s):
Claimant's attorney: Law Offices of Devon M. Radlin
By: Devon M. Radlin, Esq.
Defendant's attorney: Honorable Letitia James, Attorney General
By: Kevin Grossman, Esq., Assistant Attorney General
Heather Zimmerman, Esq., Assistant Attorney General
Third-party defendant's attorney:
Signature date: November 17, 2021
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, formerly an incarcerated individual, seeks damages for medical malpractice arising from the alleged failure of medical staff at Marcy Correctional Facility to properly treat a diabetic foot ulcer which resulted in the amputation of two toes. Trial of this matter was conducted by remote video on September 20, 2021.

Claimant, who was 63 years of age at the time of trial, testified that he was diagnosed with type II diabetes at the age of 17 or 18 and has required the administration of insulin intravenously since then. He has worn "medical shoes"(2) since he was approximately 20 years old. Claimant testified that he previously underwent two amputations as the result of his diabetes - one sometime in the 1980's when the middle toe on his right foot was partially amputated and one in 2012 when his left leg was amputated below the knee. After his left leg amputation in 2012, claimant used a prosthetic leg and cane for ambulation.

Claimant was received in the custody of the Department of Corrections and Community Supervision (DOCCS) in April 2016. He testified that although he required the use of a cane and a prosthetic leg for ambulation when he went to prison, DOCCS would not permit him to keep the shoes that had been prescribed for his diabetic neuropathy. Claimant testified that because of the neuropathy, he carefully monitors the condition of his remaining foot by inspecting it for sores each morning with a mirror. Claimant tearfully described the difficulty he experienced after entering DOCCS' custody, testifying that he was made to walk long distances to obtain his insulin from the infirmaries of the various prisons he was in. At Elmira Correctional Facility there were three flights of stairs he was required to traverse before prison staff finally transferred him to the prison infirmary where he resided for two months. At Wyoming Correctional Facility where he resided for approximately 6 months, claimant's foot issues worsened, however, his multiple requests for a "wheelchair pusher" and "medical shoes" were ignored.

Claimant was transferred to Marcy Correctional Facility (Marcy) in January 2017. The form entitled "Health Screening For Intrasystem/SHU Transfer," dated January 13, 2017, indicates that claimant suffered from diabetes, had a below-the-knee amputation of his left leg, used a cane to ambulate, and had a rash or lesion on the stump of his left leg (Exhibit 6, p. 96). Claimant testified that in order to receive his daily insulin shots at Marcy, it was a "horrible walk" to get to the infirmary. The infirmary was located approximately 10 to 15 dorms away from his dormitory and the long walk caused bruising on the stump of his left leg and pressure sores on his right foot. In addition to daily walks to and from the infirmary, claimant was required to walk to and from the recreation yard. Claimant again testified that notwithstanding his increasing complaints of pain, his requests for a "wheelchair pusher" were continually ignored. Because claimant suffered from decreased sensation in his extremities, he knew that the pain he felt was concerning.

While inspecting his feet with a mirror on May 22, 2017, claimant noticed a blister on the bottom of his big toe and reported the problem to a nurse in the infirmary while he was there for his morning insulin. The Ambulatory Health Record Progress Note for that day indicates that the claimant was "afraid area is going to open up" and that to "avoid another skin breakdown" an appointment to see a physician was scheduled for May 23, 2017 (Exhibit 14, p. 73). No appointment was scheduled, however, and by May 25, 2017 the blister had opened up and claimant reported to the infirmary that he had " 'blood' in sock" (id. at p. 73 [quoting claimant]). The Ambulatory Health Record Progress Note for that date, written by Nurse Wilcox, indicates that claimant "now has skin breakdown to toes R foot" and that he was not seen by a physician on May 23, 2017 as planned (id.). Claimant testified and the record confirms that although the area of the wounds was cleaned, antibiotics were not prescribed on that day. Instead, claimant testified that Nurse Wilcox scheduled an appointment for the claimant to be seen by a physician on May 30, 2017. Unfortunately for the claimant, however, his condition quickly worsened. On the morning of May 29, 2017, claimant awoke to find the blisters opened up and blood in his sock and bed. After a correction officer eventually located a wheelchair, claimant was wheeled to the infirmary and taken to Upstate Medical Center. The infirmary nurse's Ambulatory Health Record Progress Note indicates that claimant's right foot was "very swollen" with an open blister on the ball of his foot and that the "swelling is double in size" (id.). Following an x-ray examination at Upstate Medical Center, claimant was informed that the first and second toes on his right foot needed to be amputated. The amputation was performed and claimant was discharged from Upstate Medical Center on June 5, 2017. His subsequent medical records from Marcy indicate that despite the existence of a "small opening" in the wound with a "foul odor" on June 15, 2017, claimant's wounds were "healing well" as of June 25, 2017 (id. at pp. 78, 79). Claimant identified the photograph received in evidence as Exhibit 18 as a fair and accurate depiction of his right foot as it appeared on May 29, 2017, the day he was transported to the hospital for treatment. The photograph depicts the grotesquely swollen and deformed condition of the claimant's toes.

Claimant testified that as a result of his most recent amputations, he can no longer walk without the use of a "walking chair," he sleeps in a hospital bed, his balance has been adversely affected, and his life has been "devastated."

Claimant's expert, Peter Goulden, M.D., is a Board Certified Endocrinologist specializing in the treatment of diabetes.(3) In preparation for his testimony, he performed an examination of the claimant and reviewed his medical records. Dr. Goulden testified that because diabetic neuropathy enhances the risk of foot ulcers, diabetic footwear is recommended. A podiatrist will take molds of the feet or, in claimant's case, the foot, in order to create shoes that will alleviate pressure points. When an individual with diabetes undergoes an amputation of a leg, there is an increased chance of future amputations because of the increased pressure on the remaining foot. In addition, a diabetic foot ulcer can develop and worsen from prolonged walking. As a result, the applicable standard of care requires that one with a history of foot ulcers be provided access to diabetic footwear, according to Dr. Goulden.

Dr. Goulden testified that what is most striking about this case is claimant's diligent efforts to maintain control of his diabetes through diet (as confirmed by blood tests) and daily inspections of his extremities for sores. According to Dr. Goulden, when a diabetic suffering from neuropathy has a foot ulcer or blister, he or she must be closely monitored because of the high risk of infection and the speed at which such infections may progress. Once an ulcer develops, the immediate administration of antibiotics is required. According to Dr. Goulden, on May 22, 2017 when the claimant first complained of edema he should have been examined, x-rayed and prescribed oral antibiotics. This was not done. In Dr. Goulden's opinion, rendered with a reasonable degree of medical certainty, the ulcer on the claimant's right foot developed, at the latest, on May 23, 2017. Had antibiotics been prescribed on May 22, 2017, the progression of the infection and necrosis could have been abated, and the amputation of claimant's toes could have been prevented. By May 25, 2017 when the blister ruptured, there was evidence of an infection and deep ulcer. Dr. Goulden testified that scheduling an appointment for the claimant to see a doctor five days later on May 30th was a breach of good and accepted medical practice. In Dr. Goulden's opinion claimant should have seen a doctor on May 22, 2017 but, failing that, he should have been seen by a doctor no later than May 25, 2017. By May 29, 2017 the tissue was necrotic and no longer viable. Dr. Goulden testified with a reasonable degree of medical certainty that the treatment rendered by DOCCS' medical staff between May 22, 2017 and May 25, 2017 fell below the applicable standard of care because a proper examination was not performed, the claimant was not immediately referred to a physician, and antibiotics were not prescribed. The amputations of the claimant's right great toe and second toe could have been avoided had the proper steps been taken. According to Dr. Goulden, the great toe is significant for balance and decreasing the pressure placed on the remaining areas of the foot.

This concluded the trial testimony.

"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 [3d Dept 1990]). To succeed on a claim alleging medical malpractice, a claimant must establish a deviation from accepted medical practice and that the alleged deviation proximately caused his or her injuries (Mazella v Beals, 27 NY3d 694, 705 [2016]; James v Wormuth, 21 NY3d 540, 545 [2013]; Mattison v OrthopedicsNY, LLP, 189 AD3d 2025 [3d Dept 2020]; Parker v State of New York, 242 AD2d 785 [3d Dept 1997]; PJI 2:150). Where the duty allegedly breached is "substantially related to medical treatment," the resulting cause of action is one for medical malpractice (Berger v State of New York, 171 AD2d 713, 717 [2d Dept 1991]). Among the healthcare professionals who may be held accountable for medical malpractice are nurses who fail to properly screen patients for timely medical treatment (Bleiler v Bodnar, 65 NY2d 65 [1985]; see also Bamert v Central Gen. Hosp., 77 AD2d 559 [2d Dept 1980], affd 53 NY2d 656 [1981]; Martinez v Tsung, 14 AD3d 399 [1st Dept 2005]). Indeed, the Court of Appeals in Bleiler observed the increasing role of nurses in the provision of modern medicine, noting that

" '[t]oday, the professional nurse monitors complex physiological data, operates sophisticated lifesaving equipment, and coordinates the delivery of a myriad of patient services. As a result, the reasonably prudent nurse no longer waits for and blindly follows physicians' orders' " (65 NY2d at 71, quoting 1 Louisell & Williams, Medical Malpractice, 16A.01, at 16A-2).

Claimant established by a preponderance of the credible evidence that nursing staff at Marcy Correctional Facility deviated from the applicable standard of care in the treatment of a diabetic foot ulcer and that this deviation proximately caused the amputations of two toes on the claimant's right foot. Claimant had already undergone two amputations prior to his receipt in DOCCS' custody and DOCCS' Ambulatory Health Record Progress Notes reflect neuropathy and recurring incidents of soreness and pain in claimant's right foot. DOCCS' medical staff therefore knew or should have known that claimant was at risk of developing diabetic foot sores, infection, and necrosis and should have acted accordingly (see Martuscello v Jensen, 134 AD3d 4 [3d Dept 2015]). According to the claimant's unrefuted testimony he was made to walk long distances to and from the infirmary and recreation yard without the benefit of diabetic footwear. Considering claimant's condition, Dr. Goulden testified it was a deviation from the relevant standard of care not to afford claimant access to diabetic footwear and the long walks only made the situation worse. Moreover, while it appears claimant's prior episodes of soreness were treated expeditiously, the incident which led to the need for his most recent amputations was not. In Dr. Goulden's opinion, rendered with a reasonable degree of medical certainty, the treatment provided by DOCCS' medical staff between May 22, 2017 and May 25, 2017 fell below the applicable standard of care. Dr. Goulden testified, credibly, that claimant should ideally have seen a doctor on May 22, 2017 but in no event should a physician's examination have been delayed beyond May 25, 2017. The appointment scheduled for May 30, 2017 was too late because, in Dr. Goulden's opinion, by May 29, 2017 the tissue was necrotic and no longer viable. Dr. Goulden's opinion that the amputations of the claimant's right great toe and second toe could have been avoided had claimant been timely examined by a physician and prescribed antibiotics is unrefuted. Consequently, the Court has no difficulty concluding that DOCCS' nursing staff breached the applicable standard of nursing care and that this breach was a substantial causative factor in the sequence of events that led to the amputation of the claimant's two toes on his right foot (see Humbolt v Parmeter 196 AD3d 1185, 1192 [4th Dept 2021]).

Turning to the issue of damages, awards for pain and suffering are not capable of precise quantification (Acton v Nalley, 38 AD3d 973, 976 [3d Dept 2007]). As a result, New York Courts look to awards approved in similar cases to determine the reasonableness of an award (Gasperini v Center for Humanities, Inc., 518 US 415, 425 [1996]; Albanese v Przybylowicz, 116 AD3d 1216, 1219 [3d Dept 2014]; Karney v Arnot-Ogden Mem. Hosp., 251 AD2d 780, 782 [3d Dept 1998], lv dismissed 92 NY2d 942 [1998]). Even with the benefit of guidance from comparable cases, however, it is well recognized that no two cases are the same and an individualized assessment of the facts and circumstances of each case is necessary. "[F]actors 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" (Nolan v Union Coll. Trust of Schenectady, N.Y., 51 AD3d 1253, 1256 [3d Dept 2008], lv denied 11 NY3d 705 [2008]).

In the instant matter, claimant's ability to walk was already seriously compromised as the result of the prior amputations of his left leg and part of the middle toe of his right foot. Claimant testified that he has worn diabetic footwear since he was 20 years old and used a cane to ambulate. While he was incarcerated claimant made repeated requests for both "medical shoes" and a "wheelchair pusher." Consequently, while the Court determines that the amputation of claimant's two toes on his right foot adversely affected his balance and ability to walk with the use of a prosthetic leg and cane as he once did, it does not find that the claimant's life was "devastated" as the result of his most recent amputations, as he testified. Before the most recent amputation of claimant's two toes, he walked with a cane and prosthetic leg whereas he is now unable to ambulate without the use of a walker. However, claimant's ability to walk and, thus, enjoy life as he once did, was already seriously affected by his prior amputations. Considering the claimant's age and physical condition at the time of the malpractice and the pain and suffering he endured and will continue to endure for the remainder of his life, the Court finds an award of $150,000 for past pain and suffering and $75,000 for future pain and suffering to be adequate compensation (cf. Sermoneta v New York City Tr. Auth., 151 AD3d 565 [1st Dept 2017] [award of $700,000 for five years of past pain and suffering arising from knee injury with the traumatic onset of arthritis, though high, was not excessive]; Nolan, 51 AD3d 1253 [deep vein thrombosis caused by difficulty walking after accident warranted an award of $300,000 for past pain and suffering]; Gonzalez v City of New York, 45 AD3d 347 [1st Dept 2007], lv denied 10 NY3d 701 [2008] [award of $20,000 to pedestrian found 90% liable for past and future pain and suffering was upheld where three knee procedures were performed and a total knee replacement would eventually be required]; Lukas v Trump, 281 AD2d 400 [2d Dept 2001] [award of $600,000 for past pain and suffering and $700,000 for future pain and suffering was upheld for 60-year-old man with polio who used crutches and leg braces to walk before a trip and fall accident but was unable to resume using crutches and became confined to a wheelchair after suffering a fractured hip requiring surgery]; Stokes v New York Med. Group, 304 AD2d 449 [1st Dept 2003][award of $1 million and $2 million for past and future pain and suffering respectively was upheld for teenager who lost two gangrenous toes and part of the metatarsal head with concomitant pain, permanent gait impairment, embarrassment and increased susceptibility to arthritis and injury]).

Based on the foregoing, claimant is awarded $150,000 for past pain and suffering and $75,000 for future pain and suffering for a total award of $225,000.(4)

All trial motions not heretofore decided are denied.

To the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act 11-a (2).

Let judgment be entered accordingly.

November 17, 2021

Saratoga Springs, New York


Judge of the Court of Claims

2. Quotes are taken from the audio trial testimony unless otherwise noted.

3. At trial, defendant moved to preclude claimant's expert from testifying on the ground he was not qualified to render an opinion as to the applicable standard of nursing care. The Court denied the motion as Dr. Goulden was familiar with the standard of care applicable to nurses by virtue of his teaching and clinical experience (see e.g. Schmitt v Medford Kidney Ctr., 121 AD3d 1088 [2d Dept 2014]). According to Dr. Goulden, nurses are the first "set of eyes" on the patient and are therefore trained to recognize diabetic foot ulcers and the need for prompt treatment by a physician.

4. No proof was submitted with respect to medical expenses or lost income and no award is made therefor.