This claim for medical malpractice is brought by Michael Arciola (claimant), and alleges that while claimant was in the care and custody of defendant, defendant failed to detect, diagnose and treat him for a condition which was subsequently determined to be testicular cancer, eventually necessitating the removal of his left testicle, and further, that by reason of defendant's malpractice, claimant endured a number of subsequent, substantial and, in certain instances, permanent injuries.

In May 2004, claimant was an inmate at Shawangunk Correctional Facility (SCF). Concerned with a swollen left testicle, claimant presented himself at the defendant's facility for treatment on May 14, 2004. He was seen by a nurse at triage, instructed to treat the condition with a warm compress, and scheduled to see a doctor on May 17, 2004. On the scheduled date he was examined by defendant's employee, Dr. Bipin Bhavsar. No tests were ordered by Dr. [*2]Bhavsar, Dr. Bhavsar prescribed no further medical treatment for claimant, nor did he refer claimant to any specialists or prescribe claimant any medication. Dr. Bhavsar scheduled claimant for a follow-up appointment for July 20, 2004.

At the outset of the trial, the parties stipulated to the following, "It is stipulated and agreed by and between the parties herein that the Defendant, the State of New York, is herewith admitting that Dr. Bipin Bhavsar, an employee of the New York State Department of Corrections, who was acting within the scope of his employment, treated Michael Arciola on May 17, 2004 at Shawangunk Correctional Facility. During said treatment, Dr. Bhavsar failed to diagnose, test and treat testicular cancer, and said failure to diagnose, test, and treat was a departure from the acceptable standard of medical care." (Trial Transcript, p. 5).

While conceding that the medical care provided to claimant on May 17, 2004 was substandard, defendant maintains that claimant's injuries were not proximately caused by the defendant's malpractice of May 17, 2004, and specifically, that his subsequent treatments and injuries were an inevitable and inescapable consequence of the advanced medical condition under which claimant presented himself for treatment on May 17, 2004, and/or that his subsequent injuries were the product of claimant's own treatment decisions which delayed care, treatment and surgery for his medical condition.

Claimant, complaining of a swollen and hard left testicle, saw a nurse at SCF triage on May 14, 2004. Claimant was then seen by Dr. Bhavsar on May 17, 2004. Dr. Bhavsar's notes of that visit (contained in Trial Exhibit 9) indicate claimant complained that his testicles were of uneven size. After examining claimant, Dr. Bhavsar concluded that the size of claimant's testicles were normal and his diagnosis was that claimant's scrotum was normal. Dr. Bhavsar prescribed no medicine, ordered no diagnostic testing, referred claimant to no other doctors or specialists, and other than establishing July 20, 2004 as claimant's follow-up appointment date, nine weeks hence, prescribed claimant no further medical treatment. The defendant has conceded that the medical treatment it provided to claimant on May 17, 2004 was a departure from the acceptable standard of medical care and that defendant's malpractice "failed to diagnose, test and treat testicular cancer."

Testicular cancer is a particularly aggressive form of cancer. Beyond several other aspects of the trial record demonstrating that fact, claimant's medical expert, Dr. Arthur Israel, a Board Certified urologist, testified, "So testicular cancer is a very aggressive cancer. Its— its doubling time is somewhere between ten and thirty days. So these are cancers that grow very rapidly, and this is in difference to other— many other cancers that I treat like prostate cancer where the doubling time is three years. So these cancers grow rapidly, and that's one of the reasons why they need to be treated rapidly" (Trial Transcript, p. 308).

Dr. Mark White, one of claimant's treating physicians and a Board Certified urologist who examined claimant for the first time on August 3, 2004, confirmed the urgency of a diagnosis of testicular cancer. Dr. White, concerned about claimant's condition, immediately ordered diagnostic tests and scheduled surgery for claimant, pending the results of those tests. This, based upon meeting and examining claimant for the very first time that day. Nine days later, August 12, 2004, Dr. White performed surgery upon claimant, a radical orchiectomy, in which claimant's left testicle was removed.

Before ever meeting or seeing Dr. White, pursuant to Dr. Bhavsar's instructions of May [*3]17, 2004 that he be seen for follow-up on July 20, 2004, claimant sought medical treatment at SCF on that day. Defendant's medical records of that date for claimant (contained within Trial Exhibit 9) show that matters had taken a turn for the worse. Claimant's left testicle was swollen, a testicular mass was found and a testicular sonogram was ordered. The sonogram, performed one week later on July 27, 2004, confirmed the presence of a "7 x 6 x 4 cm complex mass with hypervascularity" in claimant's left testicle. When claimant then saw Dr. White on August 3, 2004, diagnostic blood tests were ordered and Dr. White thereafter surgically removed claimant's left testicle on August 12, 2004. Over the course of the following two months, the composition of the removed testicular mass was analyzed and two important tumor marker counts were monitored - - AFP (alpha fetoprotein) and Beta hCG (human Chorionic Gonadotropin).

The testicular mass was found to be composed of mature cystic teratoma (50%), embryonal carcinoma (40%) and polyembroma (10%), and concluded to be cancerous. The two tumor marker counts were utilized to assist in assessing whether the claimant's testicular surgery had been successful in removing all cancerous cells. Lower tumor marker counts are better. Higher tumor marker counts increase the probability that cancerous cells remain. In the immediate aftermath of claimant's surgery of August 12, 2004, claimant's two tumor marker counts decreased, almost reducing to "normal" range. However, by November 3, 2004, claimant's tumor marker counts had again elevated, suggesting the continued presence of cancer.

On November 23, 2004, a report (Trial Exhibit 8) prepared on a chest, abdomen and pelvic CT scan of claimant, under the title "ABDOMEN," indicated, "New to today's study there is a 4.0 x 3.2 cm mixed density lymph node . . . Given the history this is concerning for metastatic disease."

At this point in time, a previously discussed surgical approach - - nerve sparing RPLND (Retroperitoneal Lymph Node Dissection) - - thought possible in mid-September 2004 when claimant's tumor markers initially reduced, and to which claimant had agreed (Trial Exhibit 7), was no longer recommended, and the claimant was advised to, and did thereafter, undergo four months of aggressive chemotherapy to address the newly discovered tumor in his abdomen. From January 2005 to April 2005, claimant underwent 36 sessions of chemotherapy.

All of these events transpired while claimant remained incarcerated at SCF. Counseled by representatives of defendant in April 2005 upon completion of his chemotherapy to undergo surgery (Trial Exhibit A), claimant declined, expressing concern that surgery could render him incapable of ejaculation, further indicating that his wife was soon expected for a conjugal visit and that they hoped to conceive. Subsequently, Claimant was released from prison in October 2005 but was reincarcerated in February 2006.

Ultimately, on August 1, 2006, claimant underwent invasive lymph node surgery to remove the cancerous abdominal tumor. During this surgery, a number of lymph nodes were removed, claimant had a kidney removed and a portion of his pancreas was also removed. A number of post-surgical complications arose, including serious pancreatic infection and renal kidney failure. Claimant was hospitalized for 74 days, spending approximately one month on life support. He continues to endure a number of injuries related to having contracted testicular cancer and having undergone the medical treatments and surgical procedures necessary to treat the testicular cancer and the consequences of having it metastasize into his abdominal region. Claimant seeks damages from defendant for injuries he sustained by reason of the foregoing. [*4]

Accordingly, in order to assess liability, the Court must determine what injuries sustained by claimant, if any, were proven to be proximately caused by the medical malpractice committed by defendant on May 17, 2004.

To assist the Court in that effort, the Court heard from four doctors at trial, two treating physicians for claimant, Dr. Mark White and Dr. Rufus Collea, a medical expert for claimant, Dr. Arthur Israel, and a medical expert for defendant, Dr. James Arseneau.

The defendant called a single trial witness, its medical expert. The testimony of defendant's medical expert was, in a word, unimpressive. Although a medical oncologist, he had limited experience with and expertise in testicular cancer. Dr. Arseneau, not a urologist, has never performed surgery for testicular cancer. The Court found that his conclusions were broadly stated, frequently lacking particular or persuasive reasoning in support of them, often simply depending upon reference to and a belief in a cell reproduction or growth model (Gompertzian) which, as it happens, is not particularly related to the anticipated or predicted growth of testicular cancer. At one point during trial (Trial Transcript, pp. 451-452), it became apparent that Dr. Arseneau had mistakenly noted an important diagnostic test result of claimant (in assessing whether claimant's testicular tumor was cancerous or not), making an error by a magnitude of over ten times in erroneously noting the tumor marker AFP (alpha fetoprotein) level with an actual value of 1,081, as 11,081. The Court was equally unimpressed by the witness's demeanor as he provided his testimony. Accordingly, the Court declines to at all credit the testimony of Dr. Arseneau. The Court determines and finds the testimony of the defendant's sole trial witness to be without value. On the contrary, the three doctors called by claimant, including his expert, Dr. Arthur Israel, were uniformly persuasive. The Court credits their testimony.

By stipulation of the parties, it was established that defendant failed to provide claimant acceptable medical care on May 17, 2004 in failing to diagnose or treat claimant's testicular cancer. Claimant's medical expert, Dr. Israel, beyond detailing the aggressive nature of testicular cancer, related his protocol in addressing such a diagnosis, "I would do the tumor markers while he's in my office, and if I thought he had testicular cancer, I would, you know, have his testicle removed within a week" (Trial Transcript, p. 303). Dr. White, one of claimant's treating physicians, upon his initial examination of claimant, suspected that claimant had testicular cancer and immediately scheduled surgery. When subsequent diagnostic tests confirmed his preliminary assessment, Dr. White surgically removed claimant's left testicle nine days later. Accordingly, given the nature of claimant's medical condition on May 17, 2004 (having already contracted testicular cancer, albeit undiagnosed), even had defendant provided claimant appropriate medical care on that date, claimant would have nevertheless suffered the loss of his left testicle. Defendant's malpractice simply delayed claimant's inevitable loss of the testicle. That is not to say, however, that defendant's delay in properly diagnosing and treating claimant's testicular cancer was not a proximate cause of certain injuries claimant subsequently sustained. Defendant's nine week delay in properly diagnosing and treating claimant's condition of testicular cancer had serious, identifiable, and direct consequences for claimant.

Dr. Israel identified the doubling time of testicular cancer as being between ten and thirty days. Utilizing Dr. Israel's range, had claimant's testicular cancer been doubling every thirty days, defendant's nine week delay in properly treating claimant would have resulted in claimant's cancer growing by over four times between May 17, 2004 and July 20, 2004, the follow-up date [*5]Dr. Bhavsar had scheduled for claimant, and the date upon which defendant first took steps to diagnose and treat claimant for testicular cancer. Had claimant's testicular cancer been doubling every twenty days, defendant's nine week delay in properly treating claimant would have resulted in claimant's cancer growing by over eight times during the period of delay. And finally, had claimant's testicular cancer been doubling every ten days, identified by Dr. Israel as the lower end of the range for which testicular cancer doubles, defendant's nine week delay in properly treating claimant would have resulted in claimant's cancer growing by over sixty-four times during the period of delay.

Through the individual and collective testimony of Dr. White, Dr. Collea, and Dr. Israel, and other trial evidence, claimant proved by a preponderance of the credible evidence that as of May 17, 2004, claimant's testicular cancer had not metastasized into his abdominal region and lymph nodes, that the cancer subsequently found and treated in claimant's abdominal lymph nodes originated in and metastasized from claimant's left testicle and that the proximate cause of claimant's testicular cancer metastasizing into his abdominal region and lymph nodes and the proximate cause of certain injuries claimant correspondingly thereafter sustained was the defendant's malpractice of May 17, 2004.

Dr. White and Dr. Israel opined that as of May 17, 2004, claimant's cancer was confined to the testicle and had not metastasized to his abdominal region or lymph nodes. Dr. White, based upon his review of a pathology report (Trial Exhibit 3) detailing the composition of claimant's removed testicular mass, the reported results of a CT scan of claimant's abdominal region (Trial Exhibit 2) conducted August 13, 2004, and the tumor marker level results which informed his assessment as to the claimant's testicular cancer's rate of growth, concluded that as of May 17, 2004, claimant's cancer was contained to his testicle (Trial Transcript, pp. 153-154, pp. 158-159 and pp. 187-188). Claimant's medical expert, Dr. Israel, when asked whether if claimant's testicle had been removed in later May or early June 2004 claimant would "have suffered the cancer progression that he has suffered" (Trial Transcript, p. 314) or whether the cancer would "have metastasized into the abdomen" (Trial Transcript, p. 319), opined in the negative to each inquiry, relying upon many of the same test results Dr. White had relied upon in forming his opinion. Even more specifically, Dr. Israel opined that there was no more than a 25-30% chance that claimant's testicular cancer had metastasized as of May or early June 2004 (Trial Transcript, p. 316).

Each of the three doctors who testified for claimant opined that the cancer eventually discovered in claimant's abdominal lymph nodes and subsequently treated through chemotherapy and further surgery, originated in and metastasized from claimant's testicle.

Dr. White, specifically comparing the pathologies of the cancers found in claimant's testicle and thereafter found in claimant's abdominal lymph nodes (detailed in Trial Exhibit 12), and the growth path claimant's testicular cancer would have traveled, opined the abdominal lymph node cancer "to be an identical tumor cell type to the original testicular cancer" and further opined that had defendant appropriately treated claimant on May 17, 2004 "the tumor [in the testicle] found early with negative markers would not have metastasized" (Trial Transcript, pp. 186-188).

Dr. Collea, another treating physician of claimant, when asked if claimant's testicular cancer metastasized to his abdominal lymph nodes, responded "Absolutely," and provided his [*6]reasoning, again based upon the cancers' respective pathologies and the growth path of testicular cancer (Trial Transcript, pp. 237-238). Dr. Israel, when asked if claimant's testicular cancer was related to the cancer found in his abdomen, answered, "One hundred percent related" (Trial Transcript, p. 328).

By reason of the testicular cancer's progression and the cancerous mass found in claimant's abdomen in late November 2004, previously discussed treatment options for claimant, specifically, "active surveillance" (close monitoring of claimant's more regularly scheduled diagnostic tests, without the need for surgery) and nerve sparing RPLND (substantially less invasive lymph node surgery than that ultimately undergone by claimant on August 1, 2006), were no longer available to him.

Chemotherapy was recommended to claimant, and he undertook an aggressive regimen, frequently daily, from January 2005 to April 2005. Dr. Israel specifically attributed the necessity of claimant's chemotherapy treatment to the delay in his testicular cancer diagnosis (Trial Transcript, p. 323). Similarly, Dr. Collea indicated that the discovery of the 4 cm cancerous mass in claimant's abdomen, discovered by the November 23, 2004 CT scan, necessitated chemotherapy (Trial Transcript, p. 242).

Unfortunately, claimant's chemotherapy proved ineffective and ultimately, on August 1, 2006, claimant underwent invasive lymph node surgery in which the cancerous tumor was removed, as were 15 lymph nodes, a kidney and part of claimant's pancreas. The chemotherapy treatment rendered claimant infertile. Additionally, as a result of the subsequent surgery, claimant endured a number of serious medical complications and sustained a number of serious and permanent injuries.

When alerted in November 2004 that his testicular cancer had metastasized to his abdomen, claimant was informed that a 4 cm mass had been detected in the abdomen. In April 2005, at the conclusion of his chemotherapy, although counseled about the need for surgery (Trial Exhibit A), claimant elected not to undergo lymph node surgery at that time, expressing concern that to do so would render him unable to father children. When lymph node surgery was performed on August 1, 2006, the mass had grown to 9 cm in size. Upon cross-examination, Dr. White, claimant's own treating physician, was asked, " . . . did that cause Mr. Arciola's surgery to change when it changed from four centimeter to a nine-centimeter mass?" He replied "Yes." When asked how it had changed, Dr. White replied, "He ended up losing the kidney because it was adjacent or involved in the mass, ended up losing a portion of the pancreas, and they appear not to have removed as many nodes as would normally be removed in a retroperitoneal dissection" (Trial Transcript, p. 195). This exchange is the only testimonial evidence in the trial record to support a finding that the delay between the conclusion of his chemotherapy in April 2005 and claimant's decision to ultimately undergo surgery on August 1, 2006 contributed to or was a cause of injuries claimant sustained. Moreover, although claimant was counseled to undergo surgery at an earlier point in time, contrary to defendant's assertions that claimant's actions or inactions in treating his medical condition between April 2005 and August 1, 2006 were the cause of the injuries he sustained, other than the loss of a kidney and part of his pancreas, there is simply no medical evidence in the record whatsoever which supports a finding that the injuries claimant sustained were the product of or caused by the treatment decisions claimant made which delayed care or treatment for his medical condition. [*7]

In summary, based upon the credible and persuasive testimony of Drs. White, Collea and Israel, and upon other trial evidence, the Court makes the following findings of fact:

1.On May 17, 2004, defendant departed from the acceptable standard of medical care by failing to diagnose or treat claimant's testicular cancer.

2.Notwithstanding defendant's failure on May 17, 2004 to diagnose or treat claimant's testicular cancer, defendant's malpractice was not the proximate cause of the loss of claimant's left testicle. Had claimant been appropriately treated and diagnosed on May 17, 2004, and had there been no delay in the provision of appropriate medical care by defendant, claimant nevertheless would have endured the surgical removal of his left testicle.

3.As of May 17, 2004, claimant's testicular cancer had not metastasized into claimant's abdominal region or lymph nodes.

4.The cancer subsequently found in claimant's abdominal region and lymph nodes originated in and migrated from claimant's left testicle.

5.By reason of the Court's findings of fact #3 and #4, defendant's malpractice of May 17, 2004 was the proximate cause of claimant's testicular cancer metastasizing into his abdominal region and lymph nodes and of certain injuries claimant thereby sustained.

6.Notwithstanding the Court's finding of fact #5, defendant's malpractice of May 17, 2004 was not the proximate cause of each and every injury claimant subsequently and ultimately sustained. Claimant's decision to delay certain medical treatment, even after having been informed that cancer had spread beyond his testicle into his abdominal region and lymph nodes was the proximate cause of the loss of a kidney and part of his pancreas.

Claimant was in the care and custody of defendant in May 2004, at a time claimant had contracted testicular cancer. Having care and custody of claimant, defendant was obligated to provide claimant appropriate medical care.

It "is well settled that where the State engages in a proprietary function such as providing medical and psychiatric care, it is held to the same duty of care as private individuals and institutions engaged in the same activity" (Rattray v State of New York, 223 AD2d 356, 357 [1st Dept 1996]). Further, "[i]t is fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons" (Rivers v State of New York, 159 AD2d 788, 789 [3d Dept 1990], lv denied 76 NY2d 701 [1990]; see Auger v State of New York, 263 AD2d 929, 931 [3d Dept 1999]).

In the years since May 2004, claimant has undergone a number of procedures, treatments and surgeries for testicular cancer and for it having metastasized into his abdomen and lymph nodes and, as a consequence, claimant has sustained a number of injuries. Claimant has endured the following: surgery to remove his left testicle, the administration of a countless number of diagnostic tests, including blood tests and CT scans, four months (36 sessions) of chemotherapy which caused vomiting, anal and tear duct bleeding, insomnia, a sense of constant sickness and an impaired and distorted sense of taste, headaches and cold shivers, invasive lymph node surgery resulting in removal of a kidney and part of his pancreas, seventy-four days of hospitalization, pancreatic infection, renal kidney failure necessitating one month of life support, permanent side effects of treatment including pain, memory loss and non-Hodgkin's lymphoma, the need to undergo MRI scans, CT scans and blood tests for the rest of his life, greater [*8]prospective exposure to and risk of infection (including cancer), diabetes, substantial physical disfigurement (a severely distended abdomen) and infertility.

The Court finds, in failing to diagnose and treat claimant for testicular cancer on May 17, 2004, that defendant committed medical malpractice. The Court further finds that all of the complications and injuries claimant thereafter sustained, as set forth immediately above, other than the removal of his left testicle and the loss of a kidney and part of his pancreas, were proximately caused by defendant's malpractice of May 17, 2004.

The medical trials and tribulations that claimant has already endured have been numerous, serious and substantial. They will not again be recounted here.

A number of claimant's injuries are severe and permanent. Claimant, married, is infertile, and has been so since 2005, when he was 36 years of age. Claimant will, for the balance of his life, be at greater risk of infection and disease, including cancer. Claimant has already contracted diabetes and non-Hodgkin's lymphoma. By reason of his increased exposure to infection and disease, he will, for the rest of his life, be required to periodically undergo diagnostic tests such as blood tests and MRI and CT scans. He endures ongoing pain and memory loss. And finally, it is no exaggeration to say that claimant is grossly disfigured. Claimant's lower abdomen is substantially distended and disfigured and was personally observed and described by the Court as follows, " . . . he has a very large and distended abdomen both above the belly button and below the belly button that appears to distend from his regular chest by about five to six inches, and is approximately ten, twelve inches vertically, and about eight to ten inches horizontally . . ." (Trial Transcript, p. 77).

No documentation of claimant's employment history was provided. No documentation of claimant's income or earnings history was provided. No proof valuing lost or limited employment opportunities attributable to claimant's injuries, past or future, was provided. Accordingly, the Court makes no award for past or future lost earnings.

No proof of claimant's medical expenses, incurred or anticipated, was provided. As such, no award is made for past or future medical expenses.

At the time of defendant's malpractice, claimant was almost 35 years old. He has to date, endured over seven years of pain and suffering as a consequence of defendant's failure of treatment. He has a remaining life expectancy of approximately 34 years (see Pattern Jury Instructions, Civil-Third Edition, Volume 1B, Appendix A).

"An award for pain and suffering is inherently a subjective inquiry, not subject to precise quantification, and generally presents a question of fact" (Petrilli v Federated Dept. Stores, Inc., 40 AD3d 1339, 1343 [3d Dept 2007]; see Neissel v Rensselaer Polytechnic Inst., 54 AD3d 446 [3d Dept 2008] lv denied 11 NY3d 716 [2009]). "Moreover, factors to be considered in evaluating such awards include the nature, extent and permanency of the injuries, the extent of past, present and future pain and the long-term effects of the injury" (Nolan v Union Coll. Trust of Schenectady NY, 51 AD3d 1253, 1256 [3d Dept 2008], lv denied 11 NY3d 705 [2008]). The trial court's award will not be disturbed unless it "deviates materially from what would be reasonable compensation" (CPLR § 5501 [c]).Based upon all of the foregoing, claimant is awarded damages of $300,000 for past pain and suffering. For future pain and suffering, claimant is awarded damages of $450,000. Accordingly, claimant is awarded damages in the total amount of $750,000, together with the amount of his filing fee, if any, pursuant to Court of [*9]Claims Act Section 11-a (2).

Claimant's motion in limine seeking to preclude defendant from asserting the affirmative defenses of comparative negligence and assumption of risk, presented both prior and subsequent to trial, is denied as moot. The Court's decision on liability and damages is based upon proof adduced at trial through claimant's case in chief and his witnesses.

All motions not otherwise decided are hereby denied.

Let judgment be entered accordingly.

Albany, New York

June 28, 2011

FRANK P. MILANO

Judge of the Court of Claims