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$1.2 Million Award for Failure to Treat New York Prisoner’s Rectal Bleeding

$1.2 Million Award for Failure to Treat New York Prisoner’s Rectal Bleeding

by David Reutter

A New York Court of Claims awarded $1.2 million to a former prisoner who was diagnosed with advanced colon cancer after prison medical personnel failed to properly treat his complaints of rectal bleeding.

While at the Mid-State Correctional Facility, Steven Upsher reported to sick call on January 4, 2007 with a complaint of blood in his stool. A nurse told him he had hemorrhoids and prescribed hemorrhoid cream and a cream for jock itch and athlete’s foot.

Upsher reported to sick call again on January 31, twice, to complain of rectal bleeding that had lasted from two to six weeks. He was admitted to the prison infirmary for observation, which resulted in a finding of a “moderate amount of frank blood mixed with stool.” Testing was ordered.

Three fecal occult stool tests were conducted, and all three samples tested positive for fecal blood. Those results were a “very significant” and “dramatic demonstration of active rectal bleeding” that confirmed the observation of blood in the stool, Dr. Maxwell Chait testified at trial, and the standard of care for such a situation “definitely” required a colonoscopy.

Dr. Venkata R. Mannava, the physician at Mid-State, reviewed the tests and examined Upsher on February 13, 2007. His differential diagnosis was a peptic ulcer or hemorrhoids, and he testified he would not have said it was colon cancer. Upsher testified that Mannava told him he had hemorrhoids, and no other tests or follow-up visits were ordered.

Because he was informed his bleeding was due to hemorrhoids, Upsher made no further sick call requests regarding that issue until he was released in June 2007. Prison medical staff failed to follow up or even notate his continued rectal bleeding in medical reviews prior to his release.

After leaving prison, Upsher was forced to live in shelters and had no medical insurance. On July 20, 2007, he went to an emergency room due to a nosebleed and bloody stools. Without insurance he was unable to make a follow-up visit.

In mid-October 2007 he returned to the hospital with “loose bowel movements” and “blood in his stool.” He subsequently obtained Medicaid, and a colonoscopy and biopsy led to a cancer diagnosis. Surgery was performed on what turned out to be Stage III colon cancer; Upsher also underwent chemotherapy.

At trial, Upsher’s experts testified that had his rectal bleeding been diagnosed and treated at the onset of his complaints, it would have been “at most, Stage I or Stage II cancer.”

The Court of Claims found the state 100% liable for “a cascading chain of errors” that “collectively deprived Mr. Upsher of a substantial possibility of avoiding the development of Stage III colon cancer and the need to have surgery and chemotherapy.” Upsher, who was represented by attorney Brian Schochet, was awarded $800,000 for past pain and suffering and $400,000 for future pain and suffering. See: Upsher v. New York, New York Court of Claims, UID No. 2014-040-002, Claim No. 115797.

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Related legal case

Upsher v. New York