New York State Court of Claims

New York State Court of Claims

BARRON v. THE STATE OF NEW YORK, #2000-009-004, Claim No. 88115


Claimant awarded $250,000 for pain and suffering of decedent (claimant's mother) resulting from a fall at Upstate Medical Center in which decedent fractured her hip, leading to other medical complications. No award was made on the wrongful death aspect of this claim.

Case Information

BARBARA A. BARRON, as Administratrix of the ESTATE OF MADELINE A. KIEHN The Court, sua sponte, has amended the caption of this claim to delete reference to the claim of Barbara A. Barron, individually, as no such claim was asserted or proven.
Claimant short name:
Footnote (claimant name) :
The Court, sua sponte, has amended the caption of this claim to delete reference to the claim of Barbara A. Barron, individually, as no such claim was asserted or proven.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
BY: James J. Devine, Jr., Esq.,of counsel.
Defendant's attorney:
Attorney General
BY: Louis J. Tripoli, Esq.,of counsel.
Third-party defendant's attorney:

Signature date:
June 29, 2000

Official citation:

Appellate results:

See also (multicaptioned case)

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.[1]
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 following day.

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 fall.

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 repaired.

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 4213(b).

The clerk is directed to enter judgment in favor of the claimant and against the State in accordance with this decision.


June 29, 2000
Syracuse, New York

Judge of the Court of Claims

A claim for personal injuries had been filed as Claim No. 86520. Following Mrs. Kiehn's death, a second claim alleging wrongful death had been filed as Claim No. 88115. These two claims were consolidated as Claim No. 88115 by Order of Hon. Israel Margolis, filed March 31, 1994.