Opinion
# 2019-041-502 Claim No. 128072
06-17-2019
GUY WOODARD v. THE STATE OF NEW YORK
WOLF & FUHRMAN LLP By: Marvin D. Fuhrman, Esq. HON. LETITIA JAMES New York State Attorney General By: Belinda Wagner, Esq. Assistant Attorney General
Synopsis
Claimant is awarded $175,000, after trial, for pain and suffering, consisting of painful and frequent self-catheterization from November 2014 to April 2016, using lengthy catheters inserted through the thickened prostate gland and into the bladder, when long-delayed urological procedure relieved claimant's urological symptoms, where defendant's delays, inaction and mistakes resulted in its failure to timely provide appropriate urological care to inmate/claimant; no award for future damages is made because pain and suffering caused by defendant's negligent medical care ceased in April 2016 when delayed urological procedure was finally performed and addressed claimant's enlarged prostate; claimant failed to prove defendant's negligence in failing to timely diagnose and treat prostate cancer and failed to prove any such negligence, if proven, caused him injury.
Case information
| UID: | 2019-041-502 |
| Claimant(s): | GUY WOODARD |
| Claimant short name: | WOODARD |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128072 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | WOLF & FUHRMAN LLP By: Marvin D. Fuhrman, Esq. |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General By: Belinda Wagner, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 17, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Guy Woodard (claimant) was a state prison inmate from November 2013 to July 2015. Claimant was 62 years old when that incarceration began, having long endured, previously, a litany of health complications and problems, including an enlarged prostate gland since 2004, with concomitantly elevated prostate specific antigen (PSA) levels.
After initial intake by the Department of Corrections and Community Supervision (DOCCS), claimant was sent to Franklin Correctional Facility (Franklin) on December 26, 2013. Claimant's health issues during his first year in defendant's custody were unremarkable. The allegations set forth in his claim involve medical issues unraised until late November 2014 when claimant sought medical treatment for diarrhea, a distended abdomen, urine retention and an inability to urinate. As such, for over a year beginning claimant's custody, claimant reported no difficulty voiding, nor did he seek medical treatment specifically related to urinary or prostate issues.
Beginning on November 26, 2014 and concluding when claimant was paroled and released from defendant's custody on July 3, 2015, the following timeline of dates, events and treatments describe defendant's medical treatment of claimant for his urologic condition, and claimant's symptoms and circumstances during that time:
1. Claimant is seen at Franklin's medical facility on November 26, 2014 and again on November 29, 2014, complaining of urine retention, a distended abdomen and an inability to urinate. Claimant's PSA level is 26.55, and when admitted to defendant's custody one year earlier his PSA level had been 8.92. Trial proof established that for a man of claimant's age, a PSA level above 4 is of concern and to be monitored. On November 26, 2014 a urologic consult for claimant is scheduled for December 18, 2014 (see Exhibit M, p 32), but it is never held;
2. Claimant presents at Franklin's medical facility on December 4, 2014 complaining of intense pain, and a nurse inserts a catheter into claimant's penis, through his prostate gland and into his bladder and drains 2300 cc of bloody urine (see Exhibit M, pp 29-30). Normal bladder volume is 400-500 cc. Claimant is referred to Alice Hyde Hospital ER where claimant is provided a Foley catheter which drains urine into a strapped bag. Another 1100 cc of urine is drained at the hospital (see Exhibit K, p 17);
3. Claimant sees urologist Irwin Lieb on January 15, 2015 regarding the pain, penile abrasions and horrible smell occasioned by the use of the Foley catheter. Dr. Lieb removed and reinserted the catheter, places claimant on an antibiotic and notes an intention to have additional diagnostic tests done;
4. Claimant is seen again at the Franklin medical facility on January 16, 2015, his distended bladder is noted, as is his difficulty walking. Another 1000 cc of "blood tinged, foul smelling" urine is observed in the catheter bag (see Exhibit M, p 28). The claimant begins daily self-catheterization in February 2015;
5. On February 27, 2015, claimant sees Dr. Lieb for a cystoscopy, a camera-based exploration of the urethra (the tube transmitting urine from the bladder, through the prostate gland, to excretion), prostate and bladder. Claimant's medical records (Exhibit M, p 24 and p 100) note that claimant should be scheduled for a transurethral resection of the prostate (TURP) and for a transrectal ultrasound (TRUS) with needle biopsy. A TURP resects (removes) tissue from the prostate, which surrounds the urethra, lessening pressure on or obstruction to the urethra and is designed to ease or permit the flow of urine from the bladder through the urethra. A TRUS with needle biopsy is the primary diagnostic tool used to assess the presence or absence of prostate cancer. While in defendant's custody, defendant never in fact undergoes either a TURP or a TRUS with needle biopsy;
6. Claimant is instructed to self-catheterize several times per day. On April 2, 2015, claimant is noted to be "chronically infected" with urinary tract infections (UTI) (see Exhibit L, pp 10-11). The TURP, which had been scheduled for April 6, 2015, is canceled. Claimant is prescribed a 14-day cycle of antibiotics on April 2, 2015, to last until April 15, 2015. Although instructed to self-catheterize six times per day, claimant is given a substantially insufficient number of sterile catheters necessary to perform the procedure with that frequency;
7. Claimant, over his objection, is transferred from Franklin to Queensboro Correctional Facility (Queensboro) on April 16, 2015. During claimant's incoming medical screening at Queensboro on April 17, 2015, claimant is incorrectly noted ("SP TURP"- status post TURP) to have already undergone a TURP on February 27, 2015 (see Exhibit M, pp 145-146). Dr. Sicilia, medical director of Queensboro, also notes, also incorrectly, that claimant is status post TURP ("S/P/TURP," see Exhibit M, p 20), and on April 28, 2015 Dr. Sicilia notes claimant's PSA to be 24.95 and orders a urologic consult (see Exhibit M, p 19);
8. Claimant sees urologist Marc Janis on May 29, 2015, who suggests a follow-up appointment for August 29, 2015. Specifically, Dr. Janis notes the follow-up is to be "in my office for cystoscopy" and that "[h]e [claimant] needs TURP" (see Exhibit M, p 84);
9. Claimant is paroled and released from defendant's custody on July 3, 2015 (per claimant's trial testimony). Prior to his release, on June 1, 2015, claimant refuses a "medical hold" by which he would remain in defendant's custody (beyond his scheduled parole date) at least until his August 29, 2015 urologic follow-up (see Exhibit M, p 128); and,
10. Claimant is paroled and released from defendant's custody on July 3, 2015, never having undergone a TURP or a TRUS.
Subsequent to his release from defendant's custody, claimant continued to endure difficulty voiding, continued to self-catheterize and continued to contract UTI for which he was prescribed antibiotic medication by private medical providers.
Ultimately, urologist Arnold Melman performed a TURP on claimant at Montefiore Medical Center on April 21, 2016 (see Exhibit P, pp 63-64). Pathology conducted on prostate tissue resected during the TURP found cancer of "less than 1% of submitted tissue," and a Gleason score of 8 was determined and reported to Dr. Melman on May 4, 2016 (see Exhibit P, p 2). The prostate cancer, later found to be confined to the prostate gland, was eventually treated with the implantation of radioactive seeds, followed by radiation.
Claimant's prostate, diagnosed while in defendant's custody to be enlarged on the order of five to six times the size of a normal gland, was the cause of pressure upon his urethra, impeding or denying the traditional elimination of urine, and caused urine retention, a distended abdomen and an inability to void, necessitating the need to use catheters. The TURP performed by Dr. Melman on April 21, 2016 relieved that pressure, obviated the need for claimant to continue to eliminate urine by use of catheters, and permitted claimant to resume voiding by means of conventional urination.
By reason of the foregoing, claimant seeks damages for defendant having provided him substandard medical care, specific to the treatment of his urologic condition. The Court will confine its analysis of care to that medical care provided to claimant by defendant during the period of time specifically set forth in the previously described timeline, from November 26, 2014 to July 3, 2015. Indeed, in his Verified Claim, claimant states:
"The alleged malpractice commenced in or about November 28, 2014 while claimant was incarcerated at the Franklin Correctional Facility in Malone, New York and continued through on or about July 2, 2015, when the claimant was paroled from the Queensboro Correctional Facility, in Queens New York."
Claimant must prove, generally through expert medical opinion testimony, two essential elements: (1) a deviation or departure from accepted practice, and (2) that such departure was a proximate cause of plaintiff's injury (Carter v Tana, 68 AD3d 1577, 1579 [3d Dept 2009]).
Defendant is required to exercise professional medical judgment within the range of accepted medical standards in its treatment of claimant. The law is clear that "neither a medical provider . . . nor the State or governmental subdivisions employing the medical provider, may be held liable for a mere error in professional judgment" (Ibguy v State of New York, 261 AD2d 510, [2d Dept 1999], lv denied 93 NY2d 816 [1999]; Sciarabba v State of New York, 182 AD2d 892, 893-894 [3d Dept 1992]).
The Court of Appeals additionally explains, in Oakes v Patel (20 NY3d 633, 647 [2013]), that:
"It is often true, as it is in this case, that causation issues are relevant both to liability and to damages. Thus, in a medical malpractice case, liability cannot be established unless it is shown that the defendant's malpractice was a substantial factor in causing the plaintiffs injury . . . But even where liability is established, the plaintiff may recover only those damages proximately caused by the malpractice."
Trial of the claim was conducted July 16, 2018. At trial, the Court heard the in-person testimony of two witnesses: Claimant and defendant's medical expert, Dr. Shaheen Rahman, a board certified urologist. Admitted trial exhibits included the depositions of claimant's treating physicians: Board certified urologist Dr. Arnold Melman (Dr. Melman, originally retained as claimant's medical expert, subsequently treated claimant medically); board certified urologist Dr. Marc Janis; and general physician Americo Sicilia. The admitted trial exhibits also included voluminous and extensive medical records of various doctors and institutions that have treated claimant. Dr. Melman also, in his deposition testimony, expressed certain expert medical opinions. At the conclusion of trial, the trial record was held open, pending claimant's decision whether to seek additional witness testimony. Subsequent to trial, neither party sought additional witness testimony and the trial record was closed without augmentation.
Claimant credibly testified to the urologic difficulties he endured while in defendant's custody. He also testified to those matters subsequent to his release from custody, until urinary relief was achieved in April 2016 when Dr. Melman performed a TURP at Montefiore Medical Center.
Claimant detailed the ramifications of his urologic condition while in defendant's custody. He testified to an inability to urinate (despite having the urge to do so) or to have a bowel movement, that his stomach was distended, that he had trouble walking, had trouble sleeping, was lightheaded and that he was often in excruciating pain.
When provided treatment, he was instructed to self-catheterize (using a sixteen to seventeen inch catheter) several times per day, a painful process which caused a horrible odor when blood-tinged urine was extracted, a process which led to the onset of a number of infections for which antibiotic medication was prescribed. Each and every successful use of a catheter to void required the painful penetration of claimant's enlarged prostate gland in order to access the bladder.
Claimant, when offered a medical hold on June 1, 2015, was scheduled for a follow-up appointment with Dr. Janis on August 29, 2015 for a cystoscopy, a procedure he had previously undergone. At the time the medical hold was offered claimant, no TURP was yet scheduled, even as Dr. Janis noted on May 29, 2015 that claimant needed that procedure.
Claimant's choice to decline the medical hold and to be released from state prison confinement nearly two months before a scheduled medical procedure that he had previously undergone was not an unreasonable decision. Further, at the time claimant declined the medical hold, when, or even if, the TURP would be performed was unknown, if not uncertain.
After release from defendant's custody, claimant continued to endure many of the same urinary challenges he earlier faced. He experienced difficulty voiding and he continued the need to self-catheterize several times per day. Dr. Melman performed the TURP upon claimant on April 21, 2016, and subsequent to the surgery claimant was then able to urinate conventionally. Testing performed at the time of Dr. Melman's TURP procedure revealed the presence of prostate cancer with a Gleason score of 8 (on a scale of 1-10), a high grade cancer. Subsequent scans (including CT and bone scans) of claimant proved negative for the spread of the prostate cancer, and as of July 2018, claimant had a measured PSA level of 18.
Expert medical proof was presented through the deposition testimony of Dr. Melman, for claimant, and the trial testimony of Dr. Rahman, for defendant. Although the Court found each doctor testified earnestly and knowledgeably, neither expert testified so convincingly that his expressed opinions rendered his opponent's opinions without justifiable basis or without persuasion. Each expert expressed opinions which appeared to be the product of fact-based analysis leading to the conclusions drawn, and the opinions did not appear to result from a preordained posture, irrespective of the facts. Each expert, however, testified more persuasively on some aspects of the claim and less persuasively on others.
Claimant's medical expert, Dr. Melman, persuasively opined that defendant's failure to perform a TURP to address claimant's condition of an enlarged prostate and inability to void was a departure from acceptable medical care. He testified that any infections which caused postponement or cancellation of the procedure should have been aggressively treated with antibiotic medication to permit prompt undertaking of the TURP, "that if you came in to me in urinary retention and I knew you had a big prostate, I would operate on you within a week" (Exhibit 7, p 33), and that he would perform such a procedure "at a short interval, not months" (Exhibit 7, p 34).
Dr. Melman also concluded that defendant exacerbated its patient's mistreatment by incorrectly noting, when claimant was transferred to Queensboro, that claimant had undergone a TURP, an inaccuracy that further delayed treatment of claimant's urologic condition.
Dr. Melman concluded his deposition testimony in the following fashion:
"Q. And in your opinion, within a reasonable degree of medical certainty, what's that timeframe of treating the enlargement with the TURP?
A. Once the infection is cleared, that would be the window - - the window - - that one would have to treat the prostate, because if you don't do that, then you get into the cycle of recurrent infections, and then, it makes it difficult to do the definitive procedure, which is a prostatectomy of some type.
Q. And is that, in fact, what happened here?
A. Yeah. That was my opinion in this case, and that is that it kind of fell through a crack. He had the window, and then, he got transferred, and it wasn't done, and then, it wasn't - - the urologist did the right thing; it's just that because he fell through the crack, he wasn't treated properly." (Exhibit 7, p 78, lines 13-23 and p 79, lines 2-8).
The defendant's cross-examination of Dr. Melman was substantially devoted to examining Dr. Melman's post-custodial medical care of claimant, and never did, at any point, challenge or seek to discredit Dr. Melman's expert medical opinion that defendant's failure to perform a TURP while claimant was in its custody constituted a departure from acceptable medical care.
Defendant's expert, Dr. Rahman, agreed that if the "medical management" approach of using medication to successfully treat claimant's problem of urine retention and recurring infections had failed, as it had, that "TURP was necessary" and would be "the correct next step" (Trial Transcript [hereafter "TT"], p 230, lines 22-25 and p 231, lines 1-7).
Dr. Rahman further agreed with the assessments of Dr. Lieb and Dr. Janis that the claimant "needed" a TURP, and acknowledged that the procedure was neither scheduled nor performed during the three months defendant maintained custody of claimant following the cancellation of the TURP that had been scheduled for April 6, 2015 (see TT, p 275, lines 4-25 and p 276, lines 1-8).
Although at one point during cross-examination Dr. Rahman indicated agreement with Dr. Melman's opinion that had a TRUS with needle biopsy been performed in 2015, there was a high probability that prostate cancer would have been diagnosed, at no point did Dr. Rahman either opine or agree that the failure to perform the TURP or the TRUS with needle biopsy during the periods in question constituted a departure from acceptable medical care, only stating that a needle biopsy should follow a TURP procedure.
In fact, on a number of occasions, Dr. Rahman took care to make clear that claimant presented with two "independent" problems, urinary retention which would be addressed by performing a TURP, and an elevated PSA level, a potential sign of cancer, which would be assessed through the conduct of a TRUS with needle biopsy (see, for example, TT, p 229, lines 10-23).
The deposition testimony of Dr. Janis and Dr. Sicilia had little probative value, primarily providing facts about claimant's medical treatments that had been established through the admitted exhibits comprising claimant's medical records. Dr. Sicilia did observe the following:
"Q. What did you tell him as to the need for the TURP, if anything, what information did you convey to him?
A. That the specialist wanted him to have that test done to basically rule out malignancy, you know. This poor man was a misery. He had to be catheterizing himself to pass urine.
Q. That's generally a painful procedure to self-catheterize?
A. I think so. Because a catheter is not that soft, you know, and to push that through the urethra is something to be remembered, right" (Exhibit V, p 33, lines 16-25 and p 34, lines 1-5).
Claimant's claim of medical malpractice can fairly be characterized as involving two independent, but related, issues:
1. Defendant's failure to diagnose claimant's prostate cancer constituted substandard medical care; and,
2. Defendant provided claimant substandard medical care in failing to perform a TURP while having custody of claimant, and defendant's deficient care caused claimant an extended period of pain, suffering and anguish, required the claimant to endure exceedingly painful self-catheterization and resulted in claimant contracting repeated urinary infections.
Turning first to the issue of prostate cancer, claimant failed for a number of reasons to prove by a preponderance of the credible evidence that in failing to diagnose his prostate cancer, defendant provided him substandard medical care. Moreover, claimant failed to prove by a preponderance of the credible evidence that substandard care, even had it been established, has resulted or will result in any injury or damage claimant has not otherwise endured.
Claimant, as late as 2012, through the diagnostic use of a needle biopsy procedure, had been determined to be cancer-free. Claimant made no complaint of urinary or prostate problems to defendant until late November 2014. Claimant failed to establish that defendant's failure to perform the most efficacious diagnostic test of a needle biopsy for evaluating the presence of prostate cancer was medical malpractice, given that despite claimant's history of elevated PSA levels, claimant had been determined to be cancer free in 2012 and further given that the primary medical concern during treatment of claimant was his urine retention caused by an enlarged and/or infected prostate. Claimant also failed to establish that even had a needle biopsy been performed, that it would have necessarily detected cancer. To the latter point, when claimant was ultimately diagnosed as having prostate cancer in May 2016, the cancer was found in but 1% of the biopsied tissue.
Moreover still, even were defendant found to have provided claimant substandard medical care in failing to diagnose and earlier detect prostate cancer, that failure resulted in no harm beyond that under which claimant now lives. Persuasive proof was presented that prostate cancer does not progress in degree over time, only in potential migration to other areas of the body. The Court finds, based upon expert medical proof provided at trial, that claimant's Gleason score of 8, indicating the presence of prostate cancer, originated at level 8 and remained at level 8.
To this point, Dr. Rahman persuasively testified that prostate cancer is "born" at a given grade, be it Gleason 6 or Gleason 8, and it remains at that grade. Dr. Rahman testified, "[s]o prostate cancer progresses not by becoming more aggressive in its grade. Prostate cancer progresses by advancing from the prostate, through its capsule, into the lymph nodes, into the bone, progressing away from the prostate into other areas - - other parts of the body" (TT, p 252, lines 1-7).
Claimant's current medical condition is such that the cancer has remained confined to the prostate, findings confirmed by CT and bone scans performed upon claimant as recently as 2018. Despite attempts to suggest that cancer could also be contained in claimant's "peripheral" prostate (beyond that found in his "transitional" prostate), no findings or diagnosis of cancer beyond claimant's "transitional" prostate have been made, and without dispute, and as confirmed by trial testimony and by claimant's medical records, claimant's cancer has not spread beyond his prostate gland. Finally, no competent medical proof was presented to establish that defendant's actions or omissions, related to an earlier detection of prostate cancer, has or will result in more dire medical consequences to claimant as he ages.
Turning next to the issue of defendant's failure to perform a TURP upon claimant while he was in defendant's custody, the Court finds that defendant provided claimant substandard medical care which resulted in otherwise avoidable pain, suffering and anguish, conditions which persisted until relieved by the successful TURP procedure performed by Dr. Melman in April 2016.
Claimant's status as an individual with substantially elevated PSA levels, a grossly enlarged prostate gland, and serious and long-standing urinary retention and voiding problems, for which defendant repeatedly treated claimant from November 2014 until his release from custody the following July, were all circumstances well known to defendant.
Defendant recognized that claimant required specialized urological care. Indeed, between January 15, 2015 and May 29, 2015, claimant was seen three times by urologists, twice by Dr. Lieb and once by Dr. Janis. Dr. Lieb directs on February 27, 2015 that claimant be scheduled for a TURP. The TURP scheduled for April 6, 2015 was canceled and never again rescheduled or performed while claimant remained in defendant's custody. When claimant was transferred to Queensboro on April 16, 2015, he was at the very end of the 14 day-cycle of antibiotics which had necessitated cancellation of the TURP scheduled for April 6, 2015.
Beyond failing to thereafter expeditiously reschedule claimant for a TURP, defendant compounded its inaction by inaccurately noting, upon claimant's transfer to Queensboro, that claimant had undergone the TURP February 27, 2015.
The Court concludes, based upon the trial evidence, that defendant's delays, inaction and mistakes resulted in its failure to timely and appropriately provide a TURP to claimant prior to his discharge from custody, and that such failure was a deviation from acceptable medical care.
Trial proof clearly established that until claimant underwent the successful TURP which resolved his urine retention and inability to void, claimant endured fourteen months (February 2015 to April 2016) of inconvenient, painful and frequent self-catheterization, using lengthy catheters inserted into the penis, through the thickened prostate gland and into the bladder. This several-time daily practice resulted in horrible odors, in the onset of multiple infections requiring treatment by antibiotic medications, in a diminished quality of life, and in substantial and severe daily pain, pain caused both by the retention of urine and by the processes necessary to address and relieve claimant of that condition.
For past pain and suffering that claimant endured from November 2014 to April 2016, including the need to employ the daily practice of self-catheterization that began in February 2015, claimant is awarded damages in the amount of $175,000, together with the amount of the filing fee, if any, pursuant to Court of Claims Act § 11-a (2).
For the reasons previously discussed, no award of future damages is made.
All motions not previously decided are hereby denied.
Let judgment be entered accordingly.
June 17, 2019
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims