Opinion
# 2017-041-504 Claim No. 117759
05-24-2017
DENNIS ROONEY v. THE STATE OF NEW YORK
SIVIN & MILLER LLP By: Glenn Miller, Esq. HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Michael C. Rizzo, Esq. Assistant Attorney General
Synopsis
Claimant failed to prove by a preponderance of the evidence at damages trial that defendant's negligent failure to timely retrieve and preserve portion of claimant's nose, bitten off during inmate-on-inmate assault, was a proximate cause of claimant's alleged injuries and damages.
Case information
| UID: | 2017-041-504 |
| Claimant(s): | DENNIS ROONEY |
| Claimant short name: | ROONEY |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 117759 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | SIVIN & MILLER LLP By: Glenn Miller, Esq. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Michael C. Rizzo, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 24, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Dennis Rooney (claimant), as a result of being attacked by a fellow inmate at Clinton Correctional Facility on October 2, 2008, brought a claim against defendant for failure of defendant to either prevent, or protect him from, the attack, and further, for failure of defendant to "recover and safeguard" the tip of his severed nose that the attacking inmate had bitten off during the assault. The severed portion of claimant's nose, retrieved on the morning after the attack, was neither reattached nor was an attempt to reattach it ever made. While claimant did receive medical care, including surgical reconstruction of the nose, claimant seeks damages for failure of the defendant to reattach the severed portion of his nose, for subsequent reconstruction surgery and for problems related to the condition of his nose after reconstruction (i.e. scarring, hair growth on the reconstructed nose and loss of smell).
A bifurcated trial on liability was conducted in December 2014, and the Court determined there was no defendant liability related to the attack itself, but that the defendant was culpable for failing to timely retrieve the severed portion of claimant's nose. The Court, however, in its liability decision, filed July 10, 2015, stated the following: "In failing to recover claimant's nose until the morning following the incident, defendant failed in its most elemental duty to care for claimant . . . [h]owever, the extent to which claimant is entitled to compensation, if at all, on his second cause of action, must be subsequently proven by claimant at a trial on damages which establishes that defendant's failure to timely retrieve claimant's nose proximately caused claimant injury [citations omitted]."
Proximate cause, then, was the focus of claimant's damages trial. The New York Pattern Jury Instructions, Civil (PJI 2:70) describes proximate cause as follows:
"An act or omission is regarded as a cause of an injury if it was a substantial factor in bringing about the injury, that is, if it had such an effect in producing the injury that reasonable people would regard it as a cause of the injury. There may be more than one cause of an injury, but to be substantial, it cannot be slight or trivial. You may, however, decide that a cause is substantial even if you assign a relatively small percentage to it."
In DeFilippo v New York Downtown Hosp. (10 AD3d 521 [1st Dept 2004]), a somewhat similar fact pattern involving potential liability for negligently preventing the reattachment of a fingertip was considered. The DeFilippo court explained (10 AD3d at 522) that proximate cause of the injury, and resulting damages, must be demonstrated by "nonspeculative and reasonably certain medical expert opinion . . . which establishes that reattachment of the fingertip" was not a viable option. Conversely, in Hernandez v New York City Health and Hosp. Corp. (129 AD3d 532 [1st Dept 2015]), another case involving potential reattachment of a fingertip, the defendant sought to prove that defendant "did not proximately cause the partial loss of the finger, as the partially severed finger could not be salvaged due to the extent of damage from the initial injury."
The trial on damages was conducted on September 27, 2016, at which claimant was the only in-person witness. Two medical experts, Dr. Burt Greenberg for claimant and Dr. Hubert Weinberg for defendant, had previously been examined, and their testimony was admitted into evidence in both transcript form and video form as trial exhibits (respectively, as Exhibits 24A and 24 for Dr. Greenberg and as Exhibits A-1 and A for Dr. Weinberg). Both of the doctors are plastic surgeons, each with substantial experience in surgery and/or reconstruction of nasal injuries or conditions.
The dispositive issue for the Court to determine is whether the timely retrieval of claimant's severed nose would have enabled attending medical personnel in the immediate aftermath of the attack to successfully reattach the severed tip of claimant's nose (and, thereby, also spare claimant the grafting surgeries he ultimately underwent), or alternatively, whether prompt retrieval of the nose would have made no difference in the manner in which he was treated, in that successful reattachment was not viable. It is claimant's obligation to prove by a preponderance of the credible evidence that the former scenario was more likely than the latter. To that issue, the credible evidence provided by each of the medical experts was of critical and, ultimately, of determinative significance.
Each doctor testified earnestly and with conviction, but for reasons hereafter discussed, defendant's doctor, Dr. Weinberg, was substantially more persuasive. Accordingly, the claimant failed to prove that the previously determined negligence of defendant proximately caused the injuries he sustained in the reconstruction process, and as such, no award of damages is made.
Initially, claimant's medical expert Dr. Greenberg, unlike defendant's medical expert Dr. Weinberg, never examined claimant and never took measurements of claimant's reconstructed nose. These are not insignificant deficiencies.
Dr. Weinberg credibly testified that the size of the portion of grafted tissue of reconstruction was an important factor in his conclusion that successful reattachment of claimant's severed nose tip was not possible even had the tip been promptly retrieved and preserved. Dr. Weinberg outlined two procedures employed to reattach amputated tissue of this type, composite grafting and "microvascular replantation or revascularization and what that involves is looking for a blood vessel in the amputated tissue, finding ideally both an artery and a vein because you need both for - - for flow through," (Exhibit A-1, p 24) neither of which he concluded were viable options given the attributes and condition of the severed tissue and of the circumstances surrounding the manner in which claimant's nose was severed.
Dr. Weinberg credibly opined as follows:
1. "My opinion is that it is not - - it is outside the standard of care to reattach this type of evulsed tissue" (Exhibit A-1, p 25);
2. "Yeah. My - - my opinion is that it's outside of the standard of care with a composite graft because of the size of the tissue. We're talking about measuring how much and how big the tissue was. Based on the reconstruction, it was 3 and-a-half by 3 centimeters, which is well outside the range of a composite graft taken under normal circumstances. A 3 and-a-half by 3 centimeter graft is - - is large. It's well beyond 1 to 1 and-a-half centimeters a composite graft takes, plus, we're talking about not only when we deal with this tissue, it's a three-dimensional graft. That means it would have to not only go along the dorsum and the side of the nose; it would have to go along the columella.
It's a human bite injury. That means this type of tissue is - - has all sorts of pathogens that can cause serious infections. So, certainly, this type of tissue is not amenable within the standard of care to composite grafting" (Exhibit A-1, pp 26-27); and,
3. "Sure. The size of the tissue precludes composite grafting. When you're talking about tissue this size, again, we're talking about the - - the area has to be vascularized. The tissue itself, the composite tissue, has to be vascularized just from the edges. There is no good bed here because underneath this we're talking about the nostril which is empty space, so, certainly, no blood vessels can come through there. All the blood vessels would have to be able to come is from the edges of the tissue.
Vessels grow at approximately a millimeter a day. If you have tissue that does not have a blood supply for more than several days, that tissue will die. So if we're talking about a millimeter a day, for that tissue, for that blood vessel, to get to the center of the composite graft, even if we're talking about 1 and-a-half centimeter radius, we're talking about some - - you're looking at a millimeter a day, it would take some 15 days for that blood supply to actually reach the center. Fifteen days that tissue is going to be well dead because it would not - - it would have a lack of a blood supply. So, certainly, composite grafting would not work under these circumstances," Exhibit A-1, pp 27-28).
Addressing the issue of potential infection due to a human bite, Dr. Weinberg testified:
"Yes. What enhanced this - - this as opposed to a clean, guillotine-type of cut, for instance, with a relatively clean instrument like a scissor or a knife, or glass, we're talking about here a tissue that was essentially bitten off by - - by a human. We know that even dog bite injuries have a higher incidence of infection. Human bite injuries have even a greater risk of infection than dog bites because of the pathogens that are present in that tissue. Very virulent organisms, staph, strep, E. coli, all sorts of various - - I think they talked about 50 pathogens present in a human bite, so, certainly, any of those can cause a serious infection.
When you have infected tissue, A, the graft fails; B, not only can the graft fail, but in an area central face, these infections can lead to very serious infection, traveling even into the brain, causing all sorts of problems . . . It can cause serious infection and life-threatening infections" (Exhibit A-1, pp 28-29).
Asked whether a microsurgical anastomosis (surgical connection of blood vessels) procedure would have been within the standard of care, Dr. Weinberg responded:
"In a hospital of 300 beds, as CVPH is, within the standard of care is not for that type of a plastic surgeon to be able to use extraordinary, outside the standard techniques for microvascular anastomosis of blood vessels of this size" (Exhibit A-1, pp 30-31).
Dr. Weinberg later testified that such a procedure would have been extraordinary, stating:
"In - - in two - - up to 2008, I found maybe in the entire world literature maybe about 10 cases of amputation - - noses being reconstructed - - being microvascular reattached, so, yes, it is extraordinary. In fact, it's so extraordinary that people write when one case occurs and then quote the world's literature of replantation, so the answer is yes. And even those cases are not - - most of them are not human bite injuries. They're dog bites or sharp amputations. And even of those cases we're talking about subtotal nasal amputations, that means almost the entire nose or a good portion of the nose is amputated, not just the nasal tip" (Exhibit A-1), pp 56-57).
Dr. Weinberg testified that since claimant's injuries were sustained by a human bite, he would not have even attempted to reattach claimant's nose, even had the nose been "prepped properly" (see Exhibit A-1, pp 66-67) - - "No, I would not have. Absolutely not" (Exhibit A-1, pp 66-67).
Asked his opinion of the reconstructive surgery that defendant did provide claimant, Dr. Weinberg testified:
"Mr. Rooney has an excellent reconstruction, excellent color match, excellent contour of the nose. It's - - it's - - it's well inset and I think that the nose itself looks excellent as far as the type of reconstruction to be expected when a patient has the tip of his nose bitten off" (Exhibit A-1, pp 18-19).
By contrast, claimant's medical expert Dr. Greenberg was far more indefinite in expressing his opinions, invariably qualifying his testimony and conditioning it upon if successful replantation of claimant's nose had been accomplished.
The Court notes, with emphasis added, Dr. Greenberg qualified his opinions in the following fashion:
1. "My opinion is if the part of the nose that was bitten off by the other inmate had been recovered in a timely fashion and the part and Mr. Rooney went to the hospital with a plastic surgical consultation and emergency room personnel, there well likely would have been a different outcome in this case. The patient and the part would have been taken to the operating room, the part would have been - - would have been adequately preserved, rinsed, place [sic] in an ice saline bath, and the microsurgical team would have explored the part, would have explored for arteries and veins, would have explored and dissected Mr. Rooney's face for arteries and veins and would have attempted a transplantation or replantation of the amputated part. And if amputated that would have result - - - I'm sorry. If replanted, that procedure would have resulted in a far different outcome without the sequela, without the scars, without the anosmia, which is the inability to smell properly, without the hair on the nose, without the forehead scar, without the significant need for costly and painful reconstructive surgery afterwards" (Exhibit 24-A, pp 38-39);
2. "In the event that the part was deemed replantable at the hospital in a timely fashion, within the first hour or two of the attack, the results and his appearance would be different" (Exhibit 24-A, p 41)
3. "Yes. The replanted - - the replanted - - sorry. The potentially replantable part contains glands that function with smell. The forehead flap does not contain any glands that function or serve to provide smell to patients. So the flaps that are done from the forehead, often times these patients can't smell anything permanently" (Exhibit 24-A, p 43); and,
4. "My opinion is if the amputated part was preserved and transfer - - and transported with the patient to the hospital and was replantable to the patient then the other surgeries at State of New York would not have been necessary" (Exhibit 24-A, pp 43-44).
The Court concludes that Dr. Greenberg's repeated use of conditional language, in response to a number of different questions, was careful, nuanced and intentional, and demonstrated an unwillingness or inability to unequivocally opine that had defendant timely retrieved claimant's severed nose, the medical care thereafter provided to claimant would have resulted in the successful reattachment of the severed part.
The Court finds that Dr. Greenberg's testimony was speculative and less definitive, more conditional and, ultimately, less persuasive than the testimony of Dr. Weinberg. The claimant failed to prove by a preponderance of the credible evidence that defendant's negligence was the proximate cause of his resulting injuries. Accordingly, no award for damages is made. The claim is dismissed.
All motions not previously decided are hereby denied.
Let judgment be entered accordingly.
May 24, 2017
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims