This claim is for personal injuries suffered by, and the subsequent death of,
Madeline A. Kiehn, resulting from a fall which occurred on September 23, 1992,
at Upstate Medical Center.
The trial of the claim was ordered bifurcated, and by a decision dated May 8,
1997 and filed June 30, 1997, this Court found defendant 100% liable for the
personal injuries sustained by decedent. In that decision, the Court held in
abeyance the question of whether this fall was also the proximate cause of death
of Madeline A. Kiehn. This Court reasoned that since there had been an extended
period of time from the date of her fall to the date of death, a determination
of the wrongful death issue could be resolved only upon consideration of all
medical proof and testimony at the subsequent damages trial. A trial limited
to damages and the determination of the cause of action for wrongful death was
therefore held on October 26, 1999.
Madeline Kiehn had entered Upstate Medical Center for medical tests and
procedures on September 22, 1992. She was accompanied to the hospital by her
daughter, Barbara A. Barron, and at the time that she entered the hospital, she
was able to do so without assistance. She was expected to return home the
During the afternoon of September 23, 1992, Mrs. Kiehn was returned to her room
at Upstate, following a biopsy procedure. Sometime thereafter, she fell and
suffered a broken hip. As more particularly set forth in the decision on
liability, this Court found the State liable for the fall and resulting
injuries suffered by Madeline A. Kiehn.
Testimony established that prior to her admittance to Upstate, Mrs. Kiehn had a
medical history of diabetes, vascular disease, hypertension, and chronic renal
failure. Mrs. Kiehn, however, was admitted to Upstate for an analysis of a mass
in her back, including a C-T enhanced biopsy performed on September 23, 1992 for
suspected osteomyelitis (bone infection).
Esther M. Johnston, M.D., testified on behalf of claimant. She stated that in
the fall on September 23, 1992, decedent suffered a complete fracture through
the neck area of her femur. Dr. Johnston testified that under normal
conditions, surgery to repair the broken bone would be performed. It was not
recommended in this instance, however, since Mrs. Kiehn had begun a six week
period of antibiotic therapy to treat the osteomyelitis. Mrs. Kiehn, therefore,
was placed in a "Buck's traction" to immobilize her and relieve pain. Mrs.
Kiehn then developed a pressure ulcer on her sacrum, which was first noticed on
September 26, 1992. Dr. Johnston attributed the cause of this ulcer directly to
the bed rest and immobility necessitated by the hip fracture. She testified
that decedent would not have developed the pressure ulcer without continuously
lying in bed, and would not have been confined to her bed if she had not
fractured her hip. The ulcer continued to expand in width and depth, requiring
debridement of the wound (the removal of dead tissue).
Due to her immobility, Mrs. Kiehn was also placed on a "Foley catheter", which
is essentially a tube inserted into the bladder. Dr. Johnston testified that
since decedent had to remain immobile, she could not get out of bed to utilize
the bathroom, and that the slightest movement, even to use a bedpan, caused her
extreme pain. The catheter, however, caused a urinary tract infection which had
to be treated with antibiotics.
On September 29, 1992, Mrs. Kiehn was diagnosed with pseudomembranous colitis
with diarrhea. According to the testimony of Dr. Johnston, the pseudomembranous
colitis developed into toxic megacolon, which required surgery on October 1,
1992. Dr. Johnston attributed the colitis to antibiotics that decedent was
receiving in her treatment. She also testified that under normal conditions,
pseudomembranous colitis does not develop into toxic megacolon.
In this case, however, it was Dr. Johnston's opinion that the combination of
the immobility resulting from the hip fracture, and the constipation resulting
from the narcotics being administered to decedent, led to the development of the
toxic megacolon from the pseudomembranous colitis. Exploratory surgery was
performed on September 30, 1992, and claimant underwent a subtotal colectomy
with an ileostomy in the surgery of October 1, 1992. Decedent's colon was
removed and a bag to collect fecal matter was connected to the small intestine.
A third, related surgical procedure was performed on November 5, 1992.
Mrs. Kiehn remained bedridden until her discharge from Upstate on February 4,
1993, when she was transferred to St. Joseph's Nursing Home. At that time, Dr.
Johnston testified that decedent still was suffering from the decubitus ulcer
which had progressed to a "Stage IV" ulcer, that it remained infected and would
not heal without surgery. Finally, she testified that this infection led to
Mrs. Kiehn's death on February 13, 1993.
Jeanne M. Bishop, M.D., testified as the State's expert. Based on her review
of the medical records, it was her opinion that Mrs. Kiehn's fall and fracture
did not restrict her to a bed-bound state, and allowed her some mobility. She
agreed that treatment of decedent's osteomyelitis prevented surgery to correct
the broken hip, but that Mrs. Kiehn exhibited slow, positive recuperation
following her fall.
She also determined that the pseudomembranous colitis and toxic megacolon were
related not to her fractured hip, but to the osteomyelitis, the medical
condition for which she had originally been admitted to Upstate prior to her
Dr. Bishop did not find any causal connection between decedent's fall (and
resulting fracture) and the development of the pressure ulcer. She considered
Mrs. Kiehn's fall and fractured hip to be a separate and distinct event,
unrelated to the series of medical conditions and complications which followed.
Furthermore, upon Mrs. Kiehn's discharge from Upstate on February 4, 1993, Dr.
Bishop opined that decedent was medically stable, and that her ulcer was clean,
with no apparent drainage. She concluded that following her discharge and after
her admission to St. Joseph's Nursing Home, decedent suffered from acute renal
failure, which was determined to be her immediate cause of death.
Dr. Bishop concluded that there was no connection whatsoever between either the
decedent's hip fracture and her death. She also concluded that there was no
connection between the pressure ulcer and Mrs. Kiehn's death.
In essence, defendant wants this Court to believe that the fall and hip
fracture suffered by Mrs. Kiehn did not prevent the State from treating the
medical condition for which Mrs. Kiehn originally was admitted, as well as the
various conditions and complications which arose subsequent to her fall.
Furthermore, it is the State's position that upon her discharge from Upstate,
decedent was medically stable, and subsequently developed a totally unrelated
infection at St. Joseph's Nursing Home, leading to the acute renal failure which
caused her death nine days after her discharge.
After careful review of the testimony and evidence presented at trial, the
Court concludes that the fall and resulting fractured hip suffered by Mrs.
Kiehn, for all intents and purposes, completely immobilized her, and
significantly impacted the medical treatment available to her. The Court
further finds that the medical complications which ensued, including the
pressure ulcer, were directly related to the immobility caused by the broken
hip. Finally, the Court finds that although decedent may have been classified
as medically stable upon her discharge from Upstate, she still suffered from a
large, decubitus ulcer, and that this condition (which arose at Upstate), was a
significant factor in the development of the acute renal failure that caused
Mrs. Kiehn's death. The Court therefore finds that the fall in which decedent
fractured her hip, coupled with all of the attendant medical complications, was
the competent producing cause of her death.
Having made such a determination, however, the Court finds that no proof of
pecuniary loss was submitted at trial. Accordingly, the Court cannot make any
award for wrongful death under EPTL, Article 5, Part 4.
Even though there can be no recovery for wrongful death, claimant is certainly
entitled to recover for the pain and suffering endured by Mrs. Kiehn as a direct
result from her fall and fracture.
There was no dispute in the testimony that Mrs. Kiehn was ambulatory upon her
admission to Upstate on September 22, 1992. Even though the parties dispute the
extent to which she was rendered immobile by her fractured hip, Mrs. Kiehn never
regained her ability to walk, and was essentially confined to her bed from the
time of her fall on September 23, 1992 to her death on February 13, 1993. Mrs.
Kiehn endured extensive pain from her fractured hip, which was never surgically
Also, the Court has determined herein that the decubitus ulcer suffered by
decedent was directly related to the immobility necessitated by her fractured
hip. Furthermore, the Court finds that the urinary tract infection (which
developed following the insertion of the "Foley catheter") as well as the three
surgical procedures involving the toxic megacolon, were also proximately related
to her fall.
Accordingly, based on the foregoing and the entire trial record, the Court
finds that claimant is entitled to an award for the pain and suffering endured
by Madeline Kiehn in the amount of $250,000.00.
The amount awarded herein shall carry interest from the date of the
determination of liability on May 8, 1997 (see,
Dingle v Prudential Prop. & Cas. Ins., Co.
, 85 NY2d 657; Love v
State of New York
, 78 NY2d 540).
The Court has reviewed the proposed Findings of Fact and Conclusions of Law
submitted by claimant and has incorporated into this decision those Findings of
Fact and Conclusions of Law it deems essential in compliance with CPLR
The clerk is directed to enter judgment in favor of the claimant and against
the State in accordance with this decision.
LET JUDGMENT BE ENTERED ACCORDINGLY.