Simmons v State of New York

[*1] Simmons v State of New York 2006 NY Slip Op 51614(U) Decided on June 6, 2006 Ct Cl Ruderman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 6, 2006
Ct Cl

Claimant(s) John Simmons, Claimant(s)

against

The State of New York, Defendant(s).



101023



Claimant's attorney: ROBERT W. NISHMAN, ESQ.

Panken, Besterman, Winer, Becker & Sherman, LLP

By: Howard Sherman, Esq., Of Counsel

Defendant's attorney: HON. ELIOT SPITZER

Attorney General for the State of New York

Terry Jane Ruderman, J.

Text of the decision:

Claimant alleges that, during his incarceration at Sing Sing Correctional Facility (Sing Sing), defendant failed to provide him with adequate medical care after his injury on January 3, 1999. Claimant further contends that the delay in diagnosing and repairing his torn quadriceps tendon has resulted in permanent harm and increased pain and suffering. Defendant maintains that it provided claimant with adequate medical care and that it is not liable for any alleged negligence in the treatment rendered to claimant by independent contractors at St. Agnes Hospital (St. Agnes) or at Sing Sing.

On January 3, 1999, claimant, then 37 years old, was lifting 405 pound weights [*2]and doing a squat when his knees buckled under him. He was taken by stretcher to the Sing Sing infirmary. He was then transported by van to the emergency room at St. Agnes. Claimant had swelling, warmth and tenderness of the right knee; he was prescribed NSAIDs (nonsteroidal anti-inflammatory drugs) for pain and equipped with a knee immobilizer and crutches. Claimant's knee x-rays were negative and the consultant report dated January 3, 1999 noted follow-up ortho in one week, PRN ("as is needed") (T:664).[FN1]

Claimant remained overnight at St. Agnes and returned to the Sing Sing infirmary on January 4, 1999. He continued to experience increased swelling and pain and decreased range of motion as was documented by his numerous visits to the Sing Sing clinic on February 8, 1999, February 16, 1999, February 23, 1999, March 4, 1999 and March 9, 1999. Claimant was given Motrin, a cane, and bus passes. On February 16, 1999, he complained of severe pain and requested to be seen by a doctor (T:254). Physician's Assistant Nelson Muthra requested an orthopedic consult and reported that claimant had increased pain with no relief from the medications (T:639). On March 2, 1999, Muthra again requested an orthopedic consult. It was noted in claimant's health records that a follow-up orthopedic consult had not been done as of March 9, 1999 (Ex. 1, pp. 8, 10, 12, 14).

In March 1999, claimant was hospitalized at St. Agnes for respiratory problems and was subsequently diagnosed with an active case of tuberculosis (TB). During his hospitalization, on March 23, 1999, claimant was seen by Dr. Harish Moorjani, an attending physician at St. Agnes. Moorjani requested a consult with an orthopedic surgeon regarding claimant (T:106, 109; Ex. 3, p 12). Dr. Steven Schwartz, an orthopedic surgeon, examined claimant and an MRI was directed for further evaluation (T:109; Ex. 3, p 16).

On March 24, 1999, claimant had an MRI at Westchester Imaging. The MRI revealed "poor definition of the quadriceps tendon, very characteristic of injury and most probably complete disruption *** no evidence of medial or lateral meniscal tear" (Ex. 4). The MRI report was sent to Dr. Moorjani, the referring physician (T:106, 109). There is no indication that Dr. Schwartz ever reviewed the MRI or diagnosed claimant with a torn quadriceps tendon (T:110). Nor is there any indication that the MRI report was ever made part of claimant's ambulatory health records in a timely fashion, despite numerous requests for it by Sing Sing (T:370; Ex. 1, p 27; Ex. 2, p 7).

When claimant returned to Sing Sing, he was placed in isolation for three months because of his TB. According to claimant, during that time, he continued to have pain, periodic swelling and difficulty walking, yet nothing was done about his knee. During claimant's incarceration, Sing Sing had an orthopedic clinic wherein an orthopedist under contract with the New York State Department of Correctional Services (DOCS) visited the facility once a month and treated inmates. After claimant was released from isolation and was returned to his housing unit, he went to the clinic and was examined on June 16, 1999 by Dr. John Galeno, an orthopedist (Ex. A, p 616). Without the benefit of reviewing the MRI report, Galeno diagnosed a medial meniscus tear and recommended arthroscopy of claimant's right knee. There is nothing in Galeno's June 16, 1999 consult report regarding a ruptured quadriceps tendon. Claimant stated that he consented to the surgery, but he did not know the nature of the operation. [*3]

On October 5, 1999, Galeno performed arthroscopic surgery at St. Agnes and removed a portion of claimant's medial meniscus. Galeno's post-operative report did not mention a quadriceps tendon rupture (Ex. 3, pp 66-67). Claimant had minimal improvement after the surgery. A November 12, 1999 consult revealed that claimant had full range of motion and minimal swelling (Ex. 1, p 36; T:384). As of that date, there was still no reference to a diagnosis of a ruptured quadriceps tendon (T:287).

On January 24, 2000, Galeno directed that an MRI be taken STAT[FN2] to rule out the possibility of a ruptured quadriceps tendon (Ex. 1, p 48; T:375-76). On March 17, 2000, Galeno noted that he reviewed the MRI and diagnosed claimant with a ruptured quadriceps tendon which Galeno planned to repair by scheduling claimant for surgery (id.).

Following a subsequent consult on May 15, 2000, Galeno wrote "to schedule for repair of quadriceps tendon when approved" (Ex. 1, p 65). Claimant, however, refused to see Galeno again and did not sign a consent form for the surgery. Dr. John Perilli, Sing Sing's Medical Director, explained to claimant that he had a ruptured quadriceps tendon that required surgery. Claimant maintains that he would not consent to another surgery with the same doctor (Dr. Galeno) because he had no improvement from the first surgery and that claimant would only consent to surgery if it were performed by another doctor (T:540-43, 605). Perilli responded that he would get back to claimant on that issue. Claimant was never told that another doctor would be provided; therefore claimant never consented to a second surgery and the surgery was not performed (T:543).

Claimant was paroled in April 2001. He consulted a physician, but did not elect surgery. He was again incarcerated from January 2004 to April 2005. The surgery to repair his ruptured quadriceps tendon has still not been performed.

Claimant testified that he presently experiences pain every day on the right side of his thigh and through his knee (T:550). He described the pain as moderate, lasting 15 to 20 minutes, and then returning within one to two hours. He stated that he can barely walk, cannot squat or run, and cannot lift anything weighing more than 40 pounds. He must sit down slowly and has to have his leg extended. He takes Motrin for the pain. Claimant can no longer perform his previous trade of plumbing[FN3] or any of the activities associated with plumbing. He cannot climb a ladder or get down on his knees. The Court observed claimant walking with a noticeable limp.

Claimant testified that when he was examined by Muthra and anyone else at Sing Sing's clinic, he believed that they were all State employees. Claimant also believed that Galeno's services were offered by the State because he was the only person who treated claimant at both Sing Sing and St. Agnes (T:578). Claimant testified that he never questioned whether a doctor was from Sing Sing or the outside because he believed that all doctors were assigned by Sing Sing.

Dr. Hervey S. Sicherman, an orthopedic surgeon, offered expert testimony on behalf of claimant. Based upon his examination of claimant, Sicherman related that claimant [*4]still has pain, walks with a limp, cannot run, has a scar and obvious muscle atrophy in his right thigh. Additionally, claimant experiences extensor lag (a sagging of the leg when extended), a defect in the super patella area (a soft gap above the knee) and patella baya (a low riding kneecap). In Sicherman's opinion, these conditions were the result of claimant's injury on January 3, 1999 and the failure to conduct a tendon reattachment within three months after the injury. He explained that the window of opportunity for effective surgical intervention was three to three and one half months after the accident because, beyond that time period, the cells are replaced with scar tissue which has little or no give. Consequently, while surgery would be possible thereafter, it would not be recommended because there would not be enough play in the tissue to allow any flexion. Thus, Sicherman opined that claimant would be better off without surgery at this point. Sicherman explained that, while surgery would give claimant's leg more stability, he would likely lose the flexion that he has presently.

Sicherman conceded that swelling could impact the ability to diagnose claimant's quadriceps rupture and that the amount of swelling had not been clearly documented. However, he maintained that once the swelling had subsided, within a week or so after the injury, it was a deviation from reasonable standards of medical care not to diagnose the injury or to have an orthopedic follow-up (T:42-43). Sicherman would not have expected an emergency room doctor or nurse to detect a ruptured tendon. He also concluded that, considering claimant's continued suffering, the failure to take an MRI or have the MRI report before March 24, 1999 was a further departure because the MRI clearly stated that there was a disruption of the tendon and "[i]f that were known, then the treatment would have been more expeditious" (T:44). He noted that the February and March visits to the Sing Sing clinic were within the window of opportunity; however the June 1999 visit was not.

Sicherman testified that the 1999 MRI report indicating a complete disruption of the quadriceps tendon was in accord with his findings. He also stated that it was a deviation from appropriate medical care not to review the MRI taken in March 1999 until the following year. It was also a departure not to review it before the arthroscopic surgery because, without the benefit of the MRI, it would be unlikely that a surgeon operating on a torn meniscus would ever see a torn quadriceps tendon. In any event, claimant's arthroscopic surgery was on October 5, 1999 and was well beyond the window of opportunity within which a successful repair of the ruptured quadriceps tendon could have been performed.

While the MRI report indicates no evidence of medial or lateral meniscal tear, the post-operative report of Dr. Galeno notes that he repaired a torn meniscus. Sicherman conceded that an MRI was not necessary to diagnose a meniscus tear and that it could have been effectively diagnosed based upon a clinical examination (T:122, 153).

Dr. Mark Fialk, who is board certified in internal medicine, hematology, medical oncology and hospice palliative care, offered expert testimony on behalf of defendant. It was clear to Fialk that Sing Sing referred claimant to St. Agnes on January 3, 1999 because Sing Sing could not make a diagnosis of claimant's knee injury (T:228-42). He testified that when a patient goes to any emergency room, there is a level of care expected that any acute problem, in any medical or surgical specialty, can be fully and properly addressed with appropriate recommendations to the patient or the referring facility (T:242).

"So that once the patient is seen and treated, recommendations are always transmitted back to [*5]that institution. In fact, the general level of care is that for patients a specific form is given with specific recommendations. That form can also be used for institution"

(id.). The two signatures on the January 4, 1999 consultation report from St. Agnes indicated to Fialk that claimant was seen by a doctor in the emergency room (T:246-52). Fialk was critical of the care that claimant received in the emergency room (T:252). Specifically, Fialk testified that there was no real diagnosis and no specific treatment plan such as an order for an MRI or a direction to see an orthopedist in two days (T:253). In his view, it was not optimal care and it constituted a deviation from reasonable medical standards.

Fialk conceded that the recommendation for an orthopedic follow-up in one week was not done. In reviewing claimant's health records, Fialk did not consider the delay, from claimant's February 16, 1999 Sing Sing clinic visit to the March 23, 1999 orthopedic consult with Schwartz at St. Agnes, to be unreasonable because during that time claimant had a life threatening illness which was a medical priority that overshadowed claimant's knee pain (T:271-72).

Fialk was, however, critical of Schwartz's actual consult with claimant in March 1999. In Fialk's opinion, it was Schwartz's obligation to obtain and review an MRI of claimant's right knee and there was nothing in the records to indicate that this was done. Fialk further stated that it was not proper for Galeno to have operated on claimant on October 5, 1999 without reviewing the MRI which had been ordered by Schwartz (T:360). Fialk maintained that once an MRI is ordered, it has to be read by a radiologist and it should be looked at by an orthopedist within a "day or two" (T:358). Claimant's health record indicates a notation on August 19, 1999, "MRI WAS [DONE] AT ST. AGNES 3/99 AND WE HAVE MADE SEVERAL ATTEMPTS TO GET A COPY TO NO AVAIL. PLEASE SEE IF YOU CAN OBTAIN ONE AND APPROVE THIS CONSULT" (Ex. 2, p 7; T:370). Also on August 19, 1999, claimant's health record states: "[t]hree requests were made for copy in the past 3 mths, but [Sing Sing] still has not received it" (Ex. 1, p 27; T:370). On October 2, 1999, there is another notation indicating that the MRI still had not been obtained (Ex. 1, p 31).

On cross-examination, Fialk stated that, considering claimant's history of complaints of increased swelling and pain, and decreased range of motion, six and one-half weeks post-injury, and claimant's request to see a doctor on February 16, 1999, it was a failure of reasonable standards of medical practice not to render any care to claimant (T:332-33). Nonetheless, Fialk repeatedly qualified his answers on cross-examination and maintained that there had been no deviation in the medical care claimant received from defendant from January 3, 1999 to March 1999. On redirect examination, Fialk explained, claimant had "received medical care *** therefore there was no deviation. If he had not been seen by a physician or a health care provider *** it would be a deviation" (T:382). On recross-examination, he maintained that, considering claimant's symptoms, it was not a departure from reasonable standards of medical care for claimant not to have seen a physician, other than the visit to St. Agnes, between January 3, 1999 and March 1999 (T:386-87). He stated, "I do think it would be better to be seen by a doctor, yes, but I don't think it's a deviation" (T:387). When questioned further about an acute condition such as a torn quadriceps tendon and whether earlier treatment was better than later treatment, he replied, "Well, that's a whole different question *** [a]nd I can't opine, because I'm not an expert in orthopaedics" (id.). He repeatedly stated on cross-[*6]examination: "I am not an expert in orthopaedics" (T:356); "I'm not an orthopaedic expert" (T:361); "I'm just not an orthopaedic expert" (T:362); and finally, "You're posing the question to the wrong person. I have no expertise *** " (T:375). He stated that he was testifying as an internist who was asked to review the medical treatment provided by the internist, the physician's assistants, and the nurses (T:389).

Dr. Edward Crane, a board certified orthopedic surgeon, also offered expert testimony on behalf of defendant. After examining claimant and reviewing his x-rays, Crane concluded that claimant had a chronic rupture of the quadriceps tendon that could still be repaired surgically (T:401). In Crane's view, the window of opportunity to repair a fresh rupture was approximately one month (T:402). After that time, you have lost the opportunity to repair it as if it were a fresh rupture (T:402-05). However, you can do a reconstruction to supplement the repair (T:402). Crane acknowledged that the failure to do the surgery within the first month makes surgery more difficult and a bit more painful. Crane has performed approximately six reconstruction procedures and has had "very good" results, even in patients where the injury was more than a year old (T:402-03). Crane opined that, even six years post-accident, surgery would enable claimant to regain stability in his leg. He would be able to sit, climb stairs, and walk quickly and probably run (T:405). He might have difficulty climbing a ladder (T:444). He also might not be able to bend his knee into a full squat (T:445). He would still have a scar, permanent atrophy in his right thigh, "it's possible that he might lose a little flexion" (T:404). He explained that after rehabilitation, "he might lose some flexion, but not much" (id.).

According to Crane, Dr. Schwartz deviated from acceptable medical care by failing to diagnose claimant's ruptured quadriceps tendon on March 24, 1999. Crane stated that, for an orthopedic surgeon, a ruptured quadriceps tendon is not difficult to diagnose; "it's very straight forward" (T:407). He explained that it should have been apparent from a physical examination of claimant and, if not from that, then it should have been apparent from the MRI or the MRI report. If Schwartz was still not able to make the diagnosis, then the MRI or the MRI report should have alerted him to a probable rupture and prompted a reexamination of claimant. Finally, upon reexamination of the claimant, Schwartz should have been able to make the diagnosis. Crane opined that, "on any one of those counts, *** either by clinical, by the MRI, or with a reexamination after the MRI", Schwartz should have diagnosed a ruptured quadriceps tendon (T:414). Had claimant been diagnosed at that time, his prognosis would have been very good.

Crane further opined that Dr. Galeno, as an orthopedic surgeon, deviated from reasonable medical standards when he failed to diagnose claimant's ruptured quadriceps tendon in June 1999 (T:421-22). It was also a deviation to recommend arthroscopic surgery without first obtaining the results of the 1999 MRI or ordering another MRI and reviewing that MRI (T:422). Alternatively, Galeno should have documented a reason why he was proceeding to surgery without first ordering and reviewing an MRI (T:422-23). Crane opined that, if Galeno had either reviewed the 1999 MRI or a more recent MRI, he would have been alerted to the ruptured quadriceps and never would have performed the operation for a torn meniscus (T:422).

When asked if the failure to diagnose claimant's quadriceps rupture in the St. Agnes emergency room on January 3, 1999 constituted a departure from reasonable standards of medical care, Crane responded that it was difficult to answer because most emergency room physicians would have detected the defect or would have requested a consult with an orthopedic [*7]surgeon (T:429). Crane testified that it was "borderline" as to whether the treatment rendered constituted a departure from reasonable medical standards (id.).

Crane maintained that it was not a departure from reasonable standards of medical care for the Sing Sing clinic not to diagnose claimant's torn quadriceps tendon during claimant's visits from January 1999 through February 1999 (T:457). Crane testified that while most emergency rooms would have made the diagnosis, it would be unlikely that an internist, a nurse or a physician's assistant would have been able to make a diagnosis (T:458). He further noted that the Sing Sing clinic was "misled and lulled into a false sense of security" because they relied on the expertise of the emergency room personnel at St. Agnes (T:458, 465). Thus, Sing Sing's failure to diagnose was not a departure. It was also not, in Crane's view, a failure of medical care standards that the follow-up ortho consult which had been recommended on January 3, 1999, had not occurred (T:507). Crane reasoned that, when claimant left the emergency room, there was no sense of urgency. Nonetheless, Crane agreed with Fialk that, when claimant continued to complain of symptoms in his knee, there should have been a follow-up with an orthopedist.

Crane acknowledged that Sing Sing could have sought an orthopedist to diagnose claimant; yet neither Schwartz nor Galeno was able to diagnose claimant's ruptured quadriceps tendon (T:462). Thus, Crane pondered whether the fact that claimant had not been seen by an orthopedist until after the one month window of opportunity had lapsed mattered since Galeno may not have made the proper diagnosis in January 1999 since he had failed to do so in June and October 1999 (T:504-05). Crane maintained that, claimant's current prognosis for surgery would be the same as if surgery had been performed in March 1999, June 1999 or December 1999; the prognosis would be "very good" (T:432).

Physician's Assistant Nelson Muthra testified that he was a Sing Sing employee and did not wear a visitor's badge (T:623-24). Muthra testified that Dr. Galeno was an outside consultant and he always wore a visitor's pass when treating patients at the Sing Sing clinic (T:625). It was Muthra's understanding that claimant should be followed-up with an orthopedic consult in one week, PRN as per the St. Agnes emergency room consult. On February 16, 1999, Muthra thought claimant needed an ortho consult. Muthra also explained that even an inmate in isolation could be seen in the Sing Sing ortho clinic. He did not know when claimant was first seen by an orthopedist.

Dr. John Perilli testified that he has been employed as the Facility Health Service Director (also known as Medical Director) of Sing Sing since December 2, 1999. Perilli had administrative and clinical duties and was the highest medical authority at Sing Sing. He reviewed all consults and facility appointments. He was also the liaison to outside consultants and facilities. Perilli acknowledged that, had he received the 1999 MRI report and films, he would have submitted them to an orthopedist. He testified that Sing Sing repeatedly tried to get the MRI report, but it was never obtained.

Within one week after he became Medical Director, on December 6, 1999, Perilli reviewed and approved an orthopedic consult request for claimant (T:685-86; Ex. 1, p 41). Thus, on January 24, 2000, Galeno saw claimant and recommended an MRI STAT (T:686). After review of the MRI and a subsequent appointment in mid-March 2000, Galeno scheduled surgery in June 2000 for a repair of claimant's right quadriceps tendon (T:688). This was the first request by Sing Sing to schedule claimant for repair of his ruptured quadriceps tendon (Ex. [*8]1, p 52). While Perilli agreed that a complete tear required quick action, he testified that it was not unreasonable to schedule the surgery five months after diagnosis. Perilli maintained "we do not schedule operations," that is done by the specialists (T:761). Claimant never had the surgery.

Perilli met with claimant on July 18, 2000 regarding claimant's apparent refusal to show up for the scheduled surgery in June 2000. Perilli noted in claimant's ambulatory health record that claimant was "nervous about the surgery" and wanted to "talk with the surgeon" (T:657; Ex. 1, p 66). There was no signed refusal and Perilli could not answer the question whether claimant had absolutely refused to have surgery. Perilli had written "I will request an evaluation (for second opinion) but whole process must start anew" (Ex. 1, p 67). Perilli insisted that by the term "second opinion," he meant returning to the same doctor for a second conversation (T:747). Perilli made the necessary request, but the surgery was never rescheduled.

Perilli noted that there had been a change in the outside orthopedic surgeon utilized for Sing Sing inmates. A new contract had been made with Dr. Holden and, therefore, claimant needed a new consult. Claimant saw Dr. Holden on October 10, 2000 and surgery was scheduled for December 15, 2000. That operation was postponed because claimant's blood tests showed abnormal clotting. Claimant was paroled before Holden set a new date.

Perilli testified that during 1999 Galeno conducted a monthly orthopedic clinic at Sing Sing. He was not a State employee, did not have a State identification card and had no restrictions on his private practice. Perilli conceded that the first time claimant was diagnosed with a ruptured quadriceps tendon was one year after the accident. Yet, during that entire year, an orthopedist had been available at Sing Sing once a month. Perilli also explained that when inmates are sent to an outside hospital, they are directed to see the doctor that comes to the prison. They are not asked which specialist they want to see.

Analysis

It is well settled that the State owes a duty of ordinary care to provide its charges with adequate medical care (see Mullally v State of New York, 289 AD2d 308; Kagan v State of New York, 221 AD2d 7, 8). To prove that the State failed in its duty and committed medical malpractice, claimant must establish by a preponderance of the evidence that the State departed from good and accepted standards of medical care and that such departure was a substantial factor or a proximate cause of the alleged injury (see Mullally v State of New York, supra; Kaminsky v State of New York, 265 AD2d 306).

A hospital or other medical facility can be held liable for the negligence or malpractice of its physician employees. An alternative basis for liability may be applicable when the physician is an independent contractor of the hospital or medical facility (see Hill v St. Clare's Hosp., 67 NY2d 72). In the case of an independent contractor, vicarious liability must be predicated upon either control in fact or ostensible agency (see Warden v Orlandi, 4 AD3d 239, 241). Under a theory of ostensible agency, it must be demonstrated, from the surrounding circumstances, that it was otherwise reasonable for the patient to believe that the treating physician was either provided by the medical facility or acting on its behalf.

Defendant relies upon Rivers v State of New York, 159 AD2d 788 where claimant, an inmate, was properly diagnosed by prison physicians to have a hernia on his left side. Claimant was transferred to a nearby hospital for surgery. The State did not designate the surgeon nor was there anything to indicate to the State that the surgeon was inadequate. The surgeon failed to examine claimant and operated on the right side, despite the obvious herniation [*9]on the left side. The trial court found the surgeon to be an independent contractor and no negligence was established on the part of the State. In light of those findings, the Court held there was "no responsibility on the part of the State for claimant's injuries" (Rivers v State of New York, 159 AD2d 788, supra at 789).

Claimant relies upon Soltis v State of New York, 172 AD2d 919 where the Court denied summary judgment on the factual issue of whether defendant could be held vicariously liable on a theory of ostensible agency on the ground that the patient could have reasonably believed that the treating physicians were acting on the defendant's behalf. Soltis involved an inmate seeking to hold the State liable for alleged malpractice of an independent contractor surgeon who had performed surgery on the inmate claimant in the State facility's operating room. The Court found an issue of fact sufficient to warrant denial of summary judgment to the State, i.e. whether the inmate claimant reasonably believed that the surgeon was either employed by defendant or acting on defendant's behalf. In reaching its decision, the Court noted that claimant had been initially treated in the State facility's infirmary by a physician's assistant who was employed by the State and who arranged for a consult within the facility with the surgeon. Claimant signed a New York State Department of Correctional Services consent form authorizing performance of the surgery by that doctor. Claimant then underwent surgery in the facility's operating room where the surgeon was assisted by a facility nurse. While the surgeon was an independent contractor, the Court found that, under all these surrounding circumstances, an issue of fact was presented as to whether claimant could have reasonably believed that the surgeon was acting on the State's behalf. The Court in Soltis explicitly stated that its holding in Rivers does not compel a different result and noted that:

"[i]n Rivers, the inmate/claimant received surgical services at an outside hospital from a physician who had no actual or apparent relationship with the State and, thus, the principle of agency by estoppel was inapplicable [emphasis added]"

(Soltis v State of New York, 172 AD2d 919, supra at 920).

The undisputed facts of this case are that, upon claimant's examination in the emergency room of St. Agnes, there was no diagnosis of a ruptured quadriceps tendon. The evidence, however, was insufficient to establish that the failure to make the diagnosis at that time constituted medical malpractice. Moreover, if such failure rose to the level of medical malpractice, liability would not be attributable to the State.

Claimant was returned to Sing Sing the next day with a direction in his health records "follow-up ortho in one week, PRN" (as is needed). While it might be argued that claimant did not present himself to the facility with a need for an ortho follow-up within that one week post-injury, claimant, however, did present himself to the clinic on numerous occasions not long thereafter. Indeed, on February 16, 1999, claimant requested to be seen by a doctor and Sing Sing's physician's assistant Muthra requested an orthopedic consult due to claimant's severe pain. On March 2, 1999, Muthra again requested an orthopedic consult. On March 9, 1999, it was noted that claimant still had not had an orthopedic consult. Defendant's own expert, Dr. Crane, conceded that claimant's continued complaints of pain and other symptoms warranted a follow-up with an orthopedist. Crane further testified that, for an orthopedic surgeon, a ruptured quadriceps tendon is not difficult to diagnose, "it's very straight forward" (T:407). In Crane's [*10]view, the window of opportunity to repair a fresh rupture was one month; thereafter the surgery is more difficult and a bit more painful (T:402).

This Court finds that, under the circumstances of this case, defendant was negligent in failing to send claimant for an orthopedic follow-up as was needed and that this delay contributed to claimant's continued pain and suffering and his lost opportunity for repair of a fresh rupture. Further, upon consideration of all the relevant circumstances, the Court rejects defendant's attempt to avoid all liability by shifting the blame on those whom defendant asserts are independent contractors for whom defendant may not be held liable (see Soltis v State of New York, 172 AD2d 919; Casucci v Kenmore Mercy Hosp., 144 AD2d 910). Rather, the Court finds that an apportionment of liability is appropriate because of the State's own negligence for which they must be held liable.

It was fortuitous that, due to claimant's hospitalization for a life threatening illness, he was examined by an orthopedist on March 23, 1999 at St. Agnes and sent for an MRI on March 24, 1999. The MRI revealed problems with claimant's quadriceps tendon which would have led an orthopedic surgeon to a diagnosis of claimant's ruptured tendon. The Court does not find persuasive defendant's attempt to disclaim liability by shifting the blame onto the orthopedic surgeon at St. Agnes (Dr. Schwartz) who failed to review the MRI or the MRI report. Rather, this Court notes that claimant was under the custody of Sing Sing who had a duty to provide claimant with adequate medical care. While Sing Sing made numerous requests for the 1999 MRI and/or the MRI report, Sing Sing never obtained the MRI or the report; thus its attempts were futile. Indeed, Sing Sing's Medical Director, Dr. John Perilli, testified that he reviewed all consults and facility appointments and if he had obtained the MRI or its report, he would have submitted it to the orthopedist. Yet, despite Sing Sing's awareness of the MRI and its necessity, claimant was examined in Sing Sing's orthopedic clinic by Dr. Galeno and, without the benefit of reviewing the 1999 MRI or its report, Galeno determined that claimant should be scheduled for surgery to repair a torn meniscus.

The Court finds that, under the circumstances of this case, where Sing Sing was aware of the necessity of obtaining the MRI and the MRI report, defendant was negligent in failing to either obtain the MRI and its report or to order another MRI to be made part of claimant's health record before claimant's examination by Dr. Galeno at Sing Sing's own orthopedic clinic. Unlike Rivers, this is not a case where there was no showing of any negligence on the part of the State. Rather, defendant's negligence was a contributing factor in Galeno's failure to make a more timely diagnosis of claimant's ruptured quadriceps tendon. Additionally, the expert testimony established that if Galeno had either reviewed the 1999 MRI or a more recent MRI, he would have been alerted to claimant's ruptured quadriceps tendon and never would have performed the operation for a torn meniscus (T:422). Thus, claimant underwent an unnecessary operation due, in part, to defendant's negligence.

Contrary to claimant's argument, however, this is not a case like Soltis where defendant may be held liable for the negligence of Galeno, an independent contractor, on the basis of ostensible agency. Indeed, the expert testimony established that, under the circumstances of this case, Galeno departed from reasonable and accepted standards of medical care in failing to make any notation in claimant's medical records as to why Galeno was proceeding to surgery for a torn meniscus without either reviewing the 1999 MRI and its report or ordering and reviewing another MRI. However, there was insufficient evidence to establish [*11]that it was objectively reasonable for claimant to believe that Galeno's services were rendered on behalf of the State. Significantly, there was testimony that, unlike Sing Sing employees who worked in the clinic, Galeno always wore a visitor's pass. Additionally, unlike Soltis, where the surgery was performed in the facility's operating room and the surgeon was assisted by a facility nurse, in this case the surgery was performed by Galeno at an "outside hospital" (see Soltis v State of New York, 172 AD2d 919, supra at 920 [court distinguished Soltis from Rivers and notes that Rivers received surgical services at an "outside hospital" and not in the facility operating room]). Thus, while defendant is liable for its own negligence, there is no basis for holding defendant vicariously liable for the negligence of Galeno.

In assessing the amount of damages to be awarded claimant, the Court has considered that once claimant was finally diagnosed with a torn quadriceps tendon in March 2000, more than one year after his injury, he refused to have the surgery performed by Galeno in June 2000. Claimant was paroled in April 2001 and he consulted a physician of his choice and again did not elect to undergo surgery. Despite claimant's refusal to have surgery, the Court finds that the evidence established that claimant's prognosis for surgery, even six years post-accident, was "very good" and would enable him to regain stability in his leg and perform many of the tasks he is presently unable to do, albeit with a possibility of a loss of "some flexion" (T:432, 404).

Upon review of all the circumstances, the Court finds that liability in damages shall be apportioned 50 percent attributable to defendant and payable by defendant in the amount of $70,000 for claimant's past pain and suffering and$25,000 for claimant's future pain and suffering together with the appropriate interest.

It is further ordered 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 not previously ruled upon are hereby DENIED.

LET JUDGMENT BE ENTERED ACCORDINGLY. Footnotes

Footnote 1: References to the trial transcript are preceded by the letter "T."

Footnote 2: STAT is a common medical abbreviation for as soon as possible.

Footnote 3: There is no claim for lost earnings.