New York State Court of Claims

New York State Court of Claims

McNABB v. THE STATE OF NEW YORK, #2000-013-513, Claim No. 94798


Claimant developed a venous infection in his right arm during a hospitalization. Judge Patti concluded that Defendant caused the infection by departing from the standard of care in leaving an IV in Claimant's arm for more than 72 hours. Claimant is awarded pain and suffering, lost wages and medical expenses damages totaling $478,165.70

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
PATRICIA M. BORDONARO, ESQ. Assistant Attorneys General
Third-party defendant's attorney:

Signature date:
November 24, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant was admitted to the emergency room at the SUNY Health Science Center in Syracuse on December 10, 1994, following a serious motor vehicle accident. During his hospitalization, he developed suppurative thrombophlebitis in his right arm.[1] To thwart this life threatening infection, he had emergency surgery on December 16, 1994 to remove approximately 20 centimeters of his right cephalic vein.

In this timely filed claim, he argues that Defendant violated its own policies and caused his infection by negligently leaving an intravenous catheter (IV) in the antecubital (inner elbow) region of his arm for a period of more than 72 hours. Defendant denies that it violated its policies, denies that the IV caused Claimant's infection and injuries, and maintains that sound nursing judgment supported its decision to leave the IV in place for longer than 72 hours. A trial took place in January 10-13, 2000 at the Court of Claims in Syracuse.

I conclude that Defendant did not meet the standard of care and that its negligence caused Claimant's infection. I award him compensatory damages in the amount of $478,165.70.

1. Installation, Care and Removal of the Right Antecubital IV

Claimant's medical records (Exhibit A) show that he arrived in the emergency room at 1030 hours[2] on December 10, 1994 with facial fractures, broken teeth and lacerations. Defendant placed the IV in question, a 14 gauge catheter, in the antecubital region of Claimant's right arm at 1040 hours (see, Exhibit A). This was the second IV Claimant received following his accident. Ambulance technicians had installed an 18 gauge IV in the antecubital region of his left arm while he was in the field.

The hospital transferred Claimant to an intensive care unit on December 10 at 2210. A nursing admission assessment (Exhibit A, p. 122, Part D) shows that he had two "peripheral" IV's in his right and left "upper arms." The parties agree that these were the right and left antecubital IV's described above. The left antecubital IV administered Versed, a sedative. The right IV provided Claimant with doses of morphine to relieve his pain.

The Health Science Center has a Nursing Protocol on Maintenance of IV Solutions, Tubing, and Plastic Intravenous Catheters ("IV Protocol") (Exhibit 2). It requires that IV sites be checked at least once an hour to assure that the dressing is clean, dry and secure, and that there are no signs of infiltration, phlebitis or purulence (Exhibit 2, Paragraph 4). Nurses must notify the IV team and discontinue the IV if any of these conditions are observed (id.).

The IV Protocol also limits the time that an IV should remain in place. The site "is to be changed every 72 hours unless specifically contraindicated and documented in progress notes/nurses notes" (Exhibit 2, Paragraph 5). The dressing "is changed" at least every 72 hours and when the occasion arises between site rotations (Exhibit 2, Paragraph 6). The IV administration set "is to be changed" every 72 hours and charted on the Patient Care Flow Sheet (Exhibit 2, Paragraph 7).

The nursing staff prepared a patient care plan which sought to minimize the risk that Claimant's IV's would cause infection (Exhibit A, p.126). Dressings had to be checked every hour for dryness and integrity, and the site had to be examined for redness, swelling and exudate. Every two hours Claimant's temperature had to be taken to determine whether it was elevated (38
Celsius or higher).

Claimant's chart suggests that the nurses substantially complied with the patient care plan. They checked his IV sites each hour from the time he arrived in intensive care on December 10 until he had facial surgery on December 14 (see, Exhibit A, pp. 140, 144, 146 and 148). They changed his dressings within the intervals called for in the plan. They monitored his temperature, but not always at two-hour intervals (see, Exhibit A, pp. 137, 139, 143, 145, 147).

For the most part, the nurses' observations were unremarkable. In written assessments, they described his right antecubital site as "benign," "clean, dry and intact" and "patent."[3] They did, however, note that Claimant was agitated and restless, and that he was running a fever. In fact, Defendant's records reveal that Claimant's temperature was 38
Celsius or more for much of the time between mid-afternoon on December 11 and noon on December 14.

At 0730 hours on December 13, the nurses added a No. 20 Angio (heplock) IV to Claimant's "right forearm." This IV was used to deliver Dilantin, an anti-seizure medication that is prescribed for persons like Claimant who suffer from epileptic seizures (Exhibit A, p. 146). The right antecubital IV, which had been in Claimant's arm for 69 hours by this time, was left in place and continued to be used to infuse morphine.

There is no entry in the nursing notes or anywhere else in the chart that indicates when the right antecubital was finally removed. The last unambiguous reference to it is a nursing assessment from December 14 at 2400[4]. It reflects that Claimant had a right antecubital IV infusing morphine and a right heplock peripheral IV for medications (Exhibit A, p. 148). The parties agree that the first IV was the 14 gauge Defendant installed on December 10 at 1040 hours and that the second was the 20 gauge Angio Defendant added on December 13 to administer Dilantin.

The next potential reference to the right antecubital IV, which appears at 0400 hours on December 14, is ambiguous. It reads: "0400 R ante cub. drsg. [changed] site benign. R PIV drsg. [changed] site benign."

The parties offer different interpretations of this note. To Claimant, it shows that Defendant changed the dressing on Claimant's right antecubital IV and that the IV remained in Claimant's arm at and after this point. Defendant, on the other hand, points out that the note refers to a right antecubital dressing, but does not mention a right antecubital IV. To Defendant, this note substantiates the removal of the right antecubital IV at or prior to 0400 hours.

Claimant arrived in the operating room at 1400 hours on December 14 for surgery to repair mid-face fractures. The anesthesia record[5] states that Claimant had two peripheral IV's "in situ" in his "R. ARM" -- an 18 gauge catheter in his right arm as well as an IV of "unk[nown]" size (Exhibit A, p. 82). The parties agree that the 18 gauge was installed in Claimant's arm just prior to or during his surgery, but differ as to the identity of the "unknown" IV. Claimant maintains that it was the 14 gauge right antecubital IV. Defendant argues that it was the 20 gauge Angio (heplock) IV.

The intensive care nurse made notes upon Claimant's return from surgery (1930 on December 14) which indicate that he had two IV's in his right "forarm [sic]" (Exhibit A at 148). Claimant maintains that these were the 14 gauge right antecubital IV from December 10 and the 18 gauge peripheral IV installed in the operating room. Defendant argues that the two IV's were the 20 gauge Angio (heplock) from December 12 and the 18 gauge from the operating room.

The following day, December 15, Defendant began taking steps to discharge Claimant from intensive care. They extubated him at 0900 hours (Exhibit A at 150). At 0800 hours they reduced his morphine IV from 6 mg/hr to 2 mg/hr (Exhibit A at 149). At 2000 hours, they discontinued the morphine IV entirely (id.). That afternoon, Claimant was apparently well enough to meet with a psychiatrist (Exhibit A, pp. 41-44).

At about 2200 hours, Defendant transferred Claimant to another hospital ward. The summary sheet (Exhibit A, pp. 135-136) indicates that he had one IV in his right "forarm
[sic]" at the time of transfer. The parties apparently agree that this was the 18 gauge IV installed in the operating room. The progress notes state that Claimant was received from the intensive care surgical unit with stable vital signs and "no complaints noted" (Exhibit A, p. 45).
In the early hours of the next morning, Claimant began to complain that his arm was sore. The nursing staff identified an old IV site in his right arm as a locus of the difficulty:
Vascular Access -- Pt c/o right arm being sore -- old IV infiltrate, red and swollen right inner arm. Infusing IV right forearm discontinued and restarted left forearm... Warm pack applied to right arm; charge nurse aware and Kpad suggested.

(Exhibit A, p. 45.) A progress note from 1100 hours records that there was "puss [sic] extruded upon palpation of R forearm from old IV site."
Claimant was diagnosed with suppurative thrombophlebitis in his right cephalic vein and was prepped for surgery to excise the affected portion of his vein. The operation took place on December 16 at 1715 hours (Exhibit A at 95).

As alluded to above, the parties' factual dispute centers around the events beginning on December 14 at 0400 hours. They agree that the right antecubital IV remained in Claimant's arm until that time but draw conflicting inferences from the 0400 entry and the notations that follow it. Claimant asserts that the "unknown" IV described in the December 14 anesthesia records is the No. 14 gauge right antecubital IV that the emergency room installed on December 10. This IV, Claimant maintains, is also one of the peripheral IV's referred to in notes that followed Claimant's surgery. It allegedly remained in Claimant's arm until just before Claimant was transferred out of the intensive care unit at 2130 hours on December 15. Leaving the right antecubital IV in Claimant's arm for five days allegedly caused his infection.

Defendant argues that the intensive care staff removed the No. 14 gauge antecubital IV at or prior to 0400 hours on December 14. The unknown peripheral IV referred to in the anesthesia note, Defendant maintains, is the 20 gauge catheter that the surgical intensive care unit added to Claimant's right arm at 0730 hours on December 13. According to Defendant, the two IV's referred to in the notes made by intensive care after Claimant's surgery are the No. 20 gauge catheter and the No. 18 catheter. Defendant maintains further that Claimant's infection may have been a side effect of the Dilantin he started to receive on December 13 when Defendant installed the 20 gauge IV in Claimant's right arm.

Each of the parties called several witnesses to support their conflicting positions. Claimant relied upon his own testimony and called his ex-girlfriend, Ms. Jackie Wright. Defendant called Ms. Cazella Hammerle, a registered nurse employed by the Health Science Center.

Claimant had no clear recollection of the installation and removal of individual IV's. His first memory of events following the accident was regaining consciousness in a regular hospital room and being told that he had been sedated for five days. He recalled that when Jackie Wright visited him that night, he told her that his right arm felt hot. The two looked at the arm and noted that it was hard, red and swollen.

Ms. Wright testified that she first visited Claimant about three to five days after his accident and continued to visit him every day after that. Claimant was heavily sedated and did not appear to her to be aware of his surroundings. She recalled touching one of his arms and noticing that it was very warm, red and firm, and that it looked swollen. There was an IV in the inflamed arm just below Claimant's elbow. She alerted a nurse. The nurse looked at Claimant's arm, took his temperature and noted that it had gone up, and removed the IV. A day or two later, Claimant had surgery to remove his infected cephalic vein.

Ms. Hammerle worked in the surgical intensive care unit and cared for Claimant on December 14. She testified that there was no IV in Claimant's right antecubital region after he emerged from surgery on December 14. She based her testimony upon the post-operative nursing note she made at 1930 (Exhibit A, p. 148). That note indicated that Claimant had two right peripheral IV's in his right "forarm" [sic]. Nurse Hammerle said that she drew a clear distinction between the antecubital and forearm regions of a patient's arm. If an IV had been in Claimant's antecubital space, she would have documented it in her nursing note. I found her to be a knowledgeable and credible witness.

The parties also offered expert testimony to support their interpretation of Claimant's chart. Claimant called Cheryl Stone, a registered nurse and intravenous therapy instructor, who works at Community Memorial Hospital in Hamilton, New York, and Jeremy D. Gradon, M.D., an infectious disease specialist who practices medicine at Sinai Hospital in Baltimore and teaches at the Johns Hopkins University School of Medicine. Defendant called Michael H. Ackerman, Ph.D., an acute care nurse practitioner who works for the school of nursing at the University of Rochester.

The experts agreed that the medical records written between 0400 hours on December 14 and 0430 hours on December 16 could be interpreted in different ways. Predictably, the experts each adopted the interpretation espoused by the party who called them. The testimony of Nurse Stone and of Dr. Gradon was not particularly helpful on this issue, because they relied exclusively upon the ambiguous records.

Dr. Ackerman also relied largely upon the language of the records, but he offered an additional reason for concluding that the right antecubital IV had been removed before surgery, a reason that I found to be compelling. He pointed out that Defendant monitored Claimant's blood pressure in the operating room with an automatic blood pressure cuff on his right arm. According to Dr. Ackerman, it would be highly unusual to use a blood pressure cuff on the same arm as an antecubital IV. The cuff would be too close to the IV; the pressure would create problems. This leads me to conclude that Defendant removed the antecubital IV before Claimant's surgery.

However, I am not persuaded by Defendant's argument that the intensive care nurse removed the right antecubital IV between 2400 and 0400 hours on December 14. Nurse Averson, who was then monitoring Claimant, was very diligent in documenting the care she was providing to Claimant's IV's. If she had removed Claimant's antecubital IV during her shift, I am confident she would have specifically noted this on his chart. I reject Defendant's suggestion that her omission of the letters "IV" from the 0400 note signified that the right antecubital IV had been removed.

I conclude, therefore, that Defendant removed the right antecubital IV on December 14 after 0715 hours when Nurse Averson left her shift, but before 1443 hours when Claimant's surgery commenced. This means that the 14 gauge right antecubital IV remained in Claimant's arm for approximately 92 to 100 hours.

2. Adherence to the Standard of Care

As noted above, the Health Science Center's IV Protocol called for IV sites to be changed at least every 72 hours "unless specifically contraindicated and documented in progress notes/nurses notes" (Exhibit 2).

The witnesses called by both parties agreed that the IV Protocol comported with the standard of care. Claimant's expert, Dr. Gradon, testified the most influential guidelines for IV care were issued by the Center for Disease Control (CDC)(Exhibit 10). These provide that "the cannula should be changed and a new cannula inserted every 48-72 hours provided no IV-related complications requiring removal are encountered before this" (Exhibit 10, pp. 186-187). "Removing of peripheral cannulas after 48-72 hours is recommended" the guidelines explain, "because of the sharp increase in the rate of infection after this length of time" (Exhibit 10, p. 185). According to Dr. Gradon, Defendant's IV Protocol was essentially consistent with the CDC guidelines.

Defendant's expert, Dr. Ackerman, and intensive care nurse Hammerle agreed that the 72-hour time limit in the IV Protocol was based on national guidelines, and that these guidelines existed because of studies that showed that the risk of infection increased at IV sites which were not changed within 72 hours.

There was a dispute about the way the 72-hour standard ought to be interpreted. Dr. Ackerman and Nurse Hammerle testified that 72 hours was the functional equivalent of three calendar days. In other words, the standard would have been met so long as Defendant removed the IV before 2359 on December 13, more than 84 hours after Defendant inserted it. Leaving the IV in until 0400 hours on December 14 would have been an insignificant deviation from the IV Protocol, according to Defendant's witnesses. Claimant's experts, Dr. Gradon and Nurse Stone, read the protocol literally. In their view, "72 hours" meant 72 hours.

It was clear that the IV Protocol was not meant to be a rigid standard. The witnesses testified that there are situations when an IV should be removed in less than 72 hours, even when there are no signs of active infection. Dr. Gradon and Dr. Ackerman agreed that an IV inserted under septic (unsterile) conditions should be removed as soon as the patient is stabilized. This is consistent with the CDC Guidelines which state that "[c]annulas inserted without proper asepsis, for example, those inserted in an emergency, should be replaced at the earliest opportunity" (Exhibit 10, p. 187).

Because Defendant inserted the right antecubital IV within minutes of Claimant's arrival in the emergency room, Dr. Gradon opined that Defendant should have removed it within a few hours. Dr. Ackerman admitted that the emergency room team inserted the right antecubital IV when Claimant's condition was emergent, but said he had no reason to believe that the conditions of insertion were not sanitary. Nurse Hammerle testified that the nursing staff did not have a practice of promptly replacing IV's that were placed while the patient was in the emergency room.

The proof also showed that there were circumstances where it was proper to exceed the 72-hour limit. Nurse Hammerle testified that it might be appropriate to leave an IV in a patient for longer than 72 hours if an alternative site could not be found because the patient was edematous (overloaded with fluids) or if intravenous medication was to be administered over a period of time that would last beyond the 72-hour time. The CDC Guidelines say that "[p]eripheral cannulas may occasionally have to be used for more than 48-72 hours if another peripheral site cannot be found" (Exhibit 10, p. 187). Dr. Ackerman also agreed that edema and problems locating new IV sites were reasons for leaving an IV in longer than 72 hours. He added that it might also be advisable to leave an IV in place if changing the IV would be difficult because the patient was agitated.

The witnesses disagreed as to whether leaving the IV in place for more than 72 hours was appropriate in this case.

Dr. Gradon testified that the circumstances did not warrant leaving Claimant's right antecubital IV in place, and that doing so violated the standard of care. There were strong reasons, he believed, for suspecting that Claimant was suffering from an infection during the initial 72-hour period. Claimant had an elevated temperature throughout most of December 12 and 13. While an occasional fever could be explained by the trauma of the accident, Claimant's sustained fever suggested the possibility of severe ongoing infection.

Claimant also had elevated white blood cell counts and high band percentages (see, Exhibit A, p. 58.1). Dr. Gradon explained that white blood cell counts tend to rise significantly when there is an infection. The percentage of bands (immature white blood cells) usually rises when the bone marrow is pumping out white blood cells rapidly in an effort to fight an infection. In his opinion, the absence of noted pain, exudate, warmth, redness, swelling or tenderness was not inconsistent with a deep vein infection. Those symptoms might not become evident until the infection was well under way.

On cross-examination, Dr. Gradon admitted that Claimant's white blood cell counts were generally falling between December 10 and December 16, and that his band percentage returned to normal on December 14. But this might have happened, he explained, because Claimant's bone marrow was exhausted and no longer able to produce large quantities of white blood cells. He agreed that Claimant's temperature had fallen on December 14, but said that this might have been because Defendant had finally removed the bacteria-laden antecubital IV, an important step toward fighting the infection. He also acknowledged that hemophilus influenza had been detected in Claimant's December 13 sputum culture and said that he could not rule out the possibility that Claimant's elevated temperature readings were related to that respiratory bacteria.

Dr. Ackerman reached a markedly different conclusion about the need to change Claimant's right antecubital IV after 72 hours. In his opinion, Defendant acted properly in leaving the IV in place because Claimant was edematous (overloaded with fluid) and agitated. Dr. Ackerman noted that there had been no noted signs of redness, swelling or exudate in the first 72 hours. The fact that Claimant was running a fever and had an elevated white blood cell count between December 10 and December 14 did not, in Dr. Ackerman's view, suggest that the IV should be changed. Both conditions could indicate an infection, but they could also be explained by the trauma of the accident or by the hemophilus influenza.

On cross-examination, Dr. Ackerman acknowledged that the IV Protocol called for IV's to be changed unless there was some contraindication which made it preferable to leave the IV in place. He also agreed that the reason for leaving the IV in place should be specifically documented in the record. He admitted that there was no statement in the record that the IV was left in Claimant's right antecubital space because he was edematous or agitated and that there was no indication that Defendant had any difficulty inserting either the 20 gauge or the 18 gauge IV's. He also agreed that a deep vein thrombosis might not produce symptoms such as swelling or redness early in the onset of the infection, that morphine could mask the pain from an infection, and that agitation might be a sign of infection. The drop in Claimant's white blood cell count on December 14, he acknowledged, might be attributable to an immunodeficiency.

The IV Protocol, the CDC Guidelines and the testimony summarized above persuades me that Defendant did not satisfy the standard of care. The IV Protocol required IV's to be changed within 72 hours, unless there was a documented medical reason for not doing so. I find that the protocol comported with the standard of care and that the guideline existed because the risk of infection increased to unacceptable levels when IV's were not replaced within 72 hours. I conclude that "72 hours" should have been read literally, and not equated with three calendar days. Measured against the IV Protocol standard, Defendant's failure to remove Claimant's right antecubital IV for 92 to 100 hours was a substantial deviation from the standard of care.

I am not persuaded that there was any medical justification for exceeding the 72-hour limit. Certainly, no specific contraindication was documented in the progress or nursing notes. Claimant may have been edematous and agitated, but the successful insertions of the 20 gauge catheter at 69 hours and the 18 gauge catheter at the time of his surgery shows that edema and agitation would not have prevented Defendant from relocating his right antecubital IV. Nor did the proof show that changing his right antecubital IV would have interfered with the administration of his medications.

There may have been other plausible explanations for Claimant's fever and his white blood count, but none of these was sufficient to rule out the possibility of an IV infection. More to the point, the IV Protocol and the standard of care called for the IV to be changed unless there was a medical reason why it was better to leave the IV where it was. Evidence that the symptoms of infection might be caused by something other than the IV does not meet that standard, in my opinion, especially in view of the fact that the record is silent as to why it was necessary to leave the IV in.

3. Causation

There was disagreement about whether leaving the right antecubital IV in Claimant's arm for more than 72 hours caused the suppurative thrombophlebitis.

Dr. Gradon opined that the right antecubital IV was the most likely source of the infection. A suppurative thrombophlebitis, he explained, is an infected blood clot. He believed that the clot formed around the IV catheter, became infected, and grew distally toward Claimant's wrist and proximally toward Claimant's shoulder at equal rates, leaving the antecubital IV site at the "epicenter" of the area affected by the infection.

The fact that the thrombophlebitis centered around the antecubital cite provided one reason for Dr. Gradon to believe that the right antecubital IV was the origin of the infection. Several other factors also supported this conclusion. The emergency room team inserted the IV under emergent conditions. The nursing staff left it in for longer than 72 hours. The catheter was relatively large. On this last point, Dr. Gradon explained that a 14 gauge catheter is typically used with trauma patients for rapid infusions of blood or fluids. The hole it creates is larger than the 20 or 22 gauge catheters used for most IV's.[6] A larger puncture meant a bigger portal for infection.

Dr. Gradon relied in part upon a 1979 article entitled "Septic Phlebitis: A Neglected Disease" that the parties stipulated into evidence (see, Exhibit 9). The article describes the findings of a study of 100 septic phlebitis[7] cases from January 1965 to June 1978. It observed that 73% of the intravenous catheters causing septic phlebitis had been inserted in the emergency department and had remained in place for four days or more.

Dr. Gradon acknowledged that Dilantin, like any intravenous substance other than blood, can irritate the veins and can cause thrombophlebitis,[8] but he did not believe that Dilantin caused Claimant's infection or thrombophlebitis. He pointed out that Dilantin would have been prepared by the pharmacy in a sterile manner. Its use would not explain the bacteria found after the infection was discovered. Also, the Dilantin IV was located in Claimant's forearm. If it had been responsible for the venous injury, Dr. Gradon believed that the damage would have been concentrated in the smaller veins of Claimant's arm where the blood flow was slower, rather than in the larger veins of the upper arm.

On cross-examination he said that he could not rule out the possibility that Dilantin caused Claimant's thrombophlebitis; and he acknowledged that the left antecubital IV installed by the ambulance technicians was probably inserted under less than antiseptic conditions, but did not appear to have produced any infection.

As noted above, a progress note written on December 16 at 1100 hours indicates that there was "puss [sic] extruded upon palpation of R forearm from old IV site." Dr. Gradon thought that the "old IV site" was not Claimant's right antecubital IV. The note referred to palpation of the "forearm" not the antecubital space. Also, the right antecubital IV had been removed no later than 2100 hours on December 15 when Claimant transferred out of intensive care. This would have been more than adequate time for a scab to form which would have blocked pus from leaving that IV site.

The fact that the pus exuded from a site other than the right antecubital IV did not change Dr. Gradon's view that the right antecubital IV was the source of the infection. The veins of the arm are connected together. By the time Defendant discovered Claimant's infection, there was probably a great deal of pus in the veins of Claimant's arm. One would expect it to emanate upon palpation from any IV site in the forearm.

Dr. Ackerman concluded that the suppurative thrombophlebitis resulted from one of the two peripheral IV's that were inserted into Claimant's forearm, and not from the right antecubital IV. He reached this conclusion because the pus emanated from an IV site located in the forearm and because, he said, the patient reported pain and tenderness in that region. He also pointed out that one of the IV's in Claimant's forearm had been infusing Dilantin, a caustic intravenous medication that can inflame tissue and increase its vulnerability to infection. The spread of the infection to Claimant's forearm was inconsistent with an antecubital origin, Dr. Ackerman believed, because blood traveling in veins flows toward the heart and away from the forearm.

Both Dr. Ackerman and Dr. Gradon impressed me as exceptionally well-qualified experts in their respective fields. But on the issue of causation, Dr. Gradon was, in my opinion, better qualified to render an opinion. His reasoning also seems more logical to me. Accordingly, I conclude, for the reasons stated by Dr. Gradon, that the right antecubital IV was the origin of Claimant's infection and that Defendant caused the infection by leaving the right antecubital IV in Claimant's arm for more than 72 hours.

4. Damages

Defendant discharged Claimant from the SUNY Health Science Center on December 19, 1994. The hospital staff told Claimant to keep his arm elevated and to change the dressing twice a day (Exhibit A at 3). They also prescribed Tylenol No. 3 "for pain," but it is not clear whether the prescription related to his right arm or to his facial injuries (id.).

Unfortunately, Claimant's arm did not return to normal following the surgery. He testified that a section of his scar would not heal and that his arm remained swollen (see, Exhibits 4A and 4E). He experienced a pulling sensation when he tried to extend his arm. For these complaints, the Health Science Center referred Claimant to Dr. Peter Hixson, a board certified plastic surgeon.

Dr. Hixson explained at trial that the cephalic vein is one of the two largest veins in the forearm and is responsible for carrying blood from the forearm back to the heart. Removing 20 centimeters of the vein, as Defendant did here, causes the forearm to become and remain very swollen while the body works to establish new veins. The prolonged swelling also results in a buildup in scar tissue, which can lead to other problems.

When Dr. Hixson examined Claimant on March 13, 1995, he noted that the scar was unstable, which meant that it would break down and ulcerate with Claimant's attempts to move his arm. He also determined that Claimant had a flexion contraction. This meant that the scar tissue had become so firm that it was inhibiting his ability to straighten his arm.

To improve Claimant's range of motion, Dr. Hixson performed a Z-plasty procedure on May 2, 1995. The surgery left a zigzag scar on Claimant's arm which was larger than the original one and, at least for a time, more visibly pronounced (see, Exhibit 4D), but is now much less visible (see, Exhibits 4C and 4B). The surgery also produced several complications. Dr. Hixson testified that Claimant developed a collection of fluid (seroma) beneath the site of the operation and lost several stitches.

Claimant recalled that it took a month and a half for his arm to heal completely from the Z-plasty. When it did, he found that he could straighten it without pulling and that there was no more pus.

On June 8, 1995, Dr. Hixson cleared Claimant for work. Claimant, who had not worked since his accident, resumed his position as a drywall installer at Traux and Hovey in July, but lasted less than one week. He testified that his arm felt weak and he found that he could not carry drywall without difficulty. His right arm, which is his dominant arm, had no strength. He could not hold a screw gun over his head.

He brought these complaints to Dr. Hixson in October 1995. At this time, according to Dr. Hixson, he was also complaining about electrical shock sensations in his forearm. Dr. Hixson concluded that Claimant's scar might be impinging upon his nerves. A nerve conduction study he performed on October 11, 1995, showed that the velocity in his right forearm was 33 meters per second, as compared to 49 meters per second in Claimant's left forearm.

On November 14, 1995, Dr. Hixson operated on Claimant's arm to remove the impingement. He testified that the surgery was successful in removing the entrapment and that Claimant's range of motion returned following the procedure. Unfortunately, nerves are very sensitive and rarely return to normal even after they are released. The patient may continue to have decreased grip strength and may suffer from electrical sensations or paresthesia, according to the doctor.

Dr. Hixson released Claimant to return to work in April 1996. Claimant found work in the construction industry doing framing, but again began to have difficulties. He said that he could not hammer nails for sustained periods of time. His hand felt weak and he could not maintain a grip on a hammer.

He returned to Dr. Hixson on April 16, 1996 and underwent a second round of nerve conduction studies. The studies showed that the velocity had increased in his right arm nerves in the area of the surgery. They also showed that Claimant had additional entrapments in his left and right wrists and now was suffering from bilateral carpal tunnel syndrome. Dr. Hixson characterized the right carpal tunnel syndrome as "severe" and the left carpal tunnel syndrome as "moderate to severe." It should be noted that Claimant seemed to contradict Dr. Hixson's findings of left carpal tunnel syndrome. He testified that he has had no problems with his left hand since the accident and that he has normal strength and ability in that hand.

Dr. Hixson opined that there was a causal connection between Claimant's suppurative thrombophlebitis and bilateral carpal tunnel syndrome. It was not uncommon, he explained, for swelling in a patient's arm to create a buildup of scar tissue and to cause an impingement in the carpal tunnel region of the affected arm. Nor was it uncommon for a patient to develop carpal tunnel syndrome in the other hand as an indirect consequence of the swelling. Patients who are unable to use their dominant hand compensate by doing more with their opposite hand. Dr. Hixson believed that this was what happened in Claimant's case.

Dr. Hixson performed an endoscopic carpal tunnel release on Claimant's right wrist on June 28, 1996. He decided against immediate surgery on Claimant's left arm. He would continue to monitor it for loss of grip strength.

Claimant resumed working again in August 1996. This time, he took a position as a janitor. He testified that he was asked to leave this position after three weeks.[9] He was having a lot of seizures on the job and was losing control of his bladder. By this time, his no fault benefits had run out. He tried to get Social Security disability but was unsuccessful, so he went on welfare for two years.

While he was on welfare, Claimant volunteered as a drywall cutter for Cluster 13, a nonprofit organization which does repair work for needy people. During this period, he continued to suffer from seizures. In April 1998, an MRI revealed that he had a brain tumor. Doctors removed the tumor in July 1998. Claimant reports that he has not had any seizures since that time.

As one might expect, Claimant amassed significant medical bills between 1994 and July 1998. Some of these bills were related to Claimant's arm, but others clearly were not. Based upon Claimant's testimony, the testimony of Patricia Bucknell of Allstate Insurance, Claimant's no fault insurance carrier, and the schedule of claims Claimant introduced, the evidence shows that about $11,000.00 related to Claimant's arm.

In February 1999, Claimant returned to work as a drywall installer, this time with a company called Fastrak. He has remained at that position through the time of trial. He likes his job and plans to stay there as long as he is able. He intends to retire at age 67.

Although Claimant is working again in his chosen field, he testified that he earns less than he used to. Before his accident, he worked as an independent contractor at the rate of 15 cents per foot. His 1099 forms[10] from Truax and Hovey for the years 1989 through 1994 show that he received the following amounts in total non-employee compensation: 1989 - $35,437.83; 1990 - $30,998.27; 1991 - $22,031.63; 1992 - $25, 954.59; 1993 - $11,161.24; 1994 - $42,882.79 (see, Exhibit 5).

In his present job, Claimant is an employee. He testified that he earns $11.00 an hour. The pay stub he introduced at trial, however (which covers December 19, 1999 through December 25, 1999), shows that he is sometimes paid at the hourly rate of $18.55 (see, Exhibit 6). The reason for the two rates was not explained at trial. The higher rate does not appear to be an overtime rate. Both wage rates are described on his pay stub as his "hourly regular" rate and there is a separate item for "hourly overtime." In the week represented by this pay stub, he worked a total of 40.5 hours and was paid $18.55 per hour for 29.5 hours and $11.00 per hour for the other 11 hours. The year-to-date figures on his pay stub indicate that most of his compensation was at the lower rate.

Claimant testified that he earned $16,212.00 in the eleven months that he worked at Fastrak in 1999. This is corroborated by his pay stub (id). In his two abortive attempts to return to work before 1999, he earned $1,372.36 in non-employee compensation from Truax and Hovey in 1995, and $624.18 in employee wages as a janitor in 1996 (see, Exhibit 5 at 4; Exhibit 6).

According to Claimant, the same type of work that he did at Truax and Hovey is still available to drywall workers at comparable rates. He does not work as an independent contractor on a per foot basis because his hand gets tired and he cannot work as quickly as he used to. He does not work any overtime because his hand cramps badly by the end of his normal work day.

The difficulties that Claimant has had with his right arm have affected his life in several ways. Although he is right handed, he now uses his left hand to operate certain tools. He is not able to work in elevated areas because his employer is worried that he will drop tools on co-workers The muscle at the base of his right thumb is shrinking and appears smaller than the muscle at the base of his left thumb. After a day of work, sharp pains shoot from his elbow to his hand. When he touches one spot near his elbow, he receives an electrical shock sensation through his arm.

Dr. Hixson opined that all of Claimant's difficulties are traceable to the nerve damage that resulted from his suppurative thrombophlebitis. In Dr. Hixson's opinion, Claimant has a permanent partial disability of 20% loss of the use of his right hand, which will not improve with further treatment. He believes that the condition of Claimant's right arm will continue to deteriorate if he keeps doing work that involves strong repetitive motions.

Grip strength measurements made by Dr. Hixson showed that Claimant had 76 pounds of grip strength on the right and 86 pounds of grip strength on the left in September 1996. On November 11, 1998 when Dr. Hixson next saw Claimant, he had 50 pounds of grip strength on the right and 46 pounds on the left. When he last examined Claimant, days before the trial, his right side grip strength was 46 pounds and his left side grip strength was 98 pounds.

On cross-examination, Dr. Hixson acknowledged that Claimant had no evidence of nerve entrapment before October 1995, that there had been no signs or symptoms of carpal tunnel syndrome before April 1996, and that carpal tunnel syndrome is common among persons who do drywall and contracting work because of the repetitive nature of activities like hammering.

In October 1998, Robert J. Kasulke, M.D., a specialist in peripheral vascular surgery, examined Claimant on Defendant's behalf. His report (Exhibit E) notes that Claimant's antecubital scar is approximately 5 inches long by 3.5 inches wide and is well healed but slightly hypersensitive to dull and sharp stimuli. He agreed with Dr. Hixson that Claimant had decreased grip strength in his right hand and indicated that the deficit was "slight", about a four on a one to five scale. He also found that Claimant had slightly decreased ability to sense sharp and dull stimuli in the fingers of his right hand and noted slight atrophy of the interphalangeal muscles.

To evaluate Claimant for carpal tunnel syndrome, Dr. Kasulke administered Phalen's and Tinel's tests. Claimant had negative (i.e., normal) results for both tests on his left side; but on his right side, he had a positive Tinel's result, which showed that he had minor paresthesia.

Based upon these findings, Dr. Kasulke concluded that Claimant was suffering from right carpal tunnel syndrome. He testified that carpal tunnel syndrome is usually caused by overuse and repetitive motions. Less commonly, it is caused by trauma, such as a fracture that would alter the anatomy of the carpal tunnel. It is not, he said, typically associated with excision of veins or infection. Dr. Kasulke did not say, however, that the excision of Claimant's nerve and the scarring played no role.

Claimant and Dr. Hixson were credible witnesses. I find that Claimant experienced the difficulties with his right arm that these witnesses described and that those difficulties were proximately caused by the suppurative thrombophlebitis and Defendant's malpractice. I conclude that the surgical procedures Dr. Hixson performed following the excision of Claimant's cephalic nerve were all necessitated by the malpractice. Based upon the testimony of Claimant and Patricia Bucknell of Allstate Insurance and the claim forms Claimant produced (Exhibit 3), I award $11,000.00 for the medical expenses that were directly attributable to Defendant's malpractice.

I conclude that Claimant has suffered, and will continue to suffer, lost wage damages because of Defendant's medical malpractice. I find that he would have been able to return to work beginning on January 30, 1995 following his discharge from the hospital had it not been for his suppurative thrombophlebitis and the excision of part of his cephalic nerve. I will award him lost wage damages from that date until October 4, 1996, the approximate date that he lost his position as a janitor.[11] It is not appropriate to award Claimant damages for lost wages for the period from October 7, 1996 through January 31, 1999, because the evidence satisfies me that Claimant would not have been able to work during that period due to his unrelated seizure problems (see, Scolavino v State of New York, 187 Misc 253, 263, modified on other grounds 271 App Div 618, affd 297 NY 460). It is, however, appropriate to award damages for past lost wages from February 1, 1999, the approximate date that he returned to work as a drywall hanger until the date of trial. Although Claimant returned to work as a drywall installer in February 1999, his testimony satisfied me that his income was diminished and will continue to be diminished because of the nerve damage he experienced as a result of Defendant's negligence.

Based upon Claimant's 1099's from the five years preceding his accident (1990-1994), I calculate that he had an annual pre-accident income of $26,600.00, or $511.50 per week. For the 88-week period from January 30, 1995 until October 4, 1996, I am awarding him $43,015.50, which represents the wages he would have earned but for the accident ($511.50/wk x 88 wks minus the actual wages of $1,996.50 he earned during this period).

I am making several adjustments to Claimant's wages from February 1999 through January 2000 before awarding him lost wage damages. A review of his pay stub reveals that he earned $16,212.00 for the 47-week period between February 1, 1999 and December 25, 1999. Not all of Claimant's wages were paid at the rate of $11.00 per hour. For some work he received a higher rate of $18.55. Dividing the year to date wages by the hourly wage rates reveals that Claimant's pay stub represents approximately 1,390 hours of work, or about 29.6 hours per week during the 47-week period and that his average hourly rate was $11.66.

His lost wages for the 50-week period from February 1, 1999 through the trial should be measured by subtracting his post-accident earning capacity from his pre-accident capacity (see, Clanton v Agoglitta, 206 AD2d 497, 499; Senko v Fonda, 53 AD2d 638, 640). Assuming he had worked 40-hour weeks during this period (as he did in the last week of 1999), his earnings would have been $23,320.00 ($11.66/hr x 40 hrs/wk x 50 wks). This compares to $25,575.00 he would have earned at his pre-accident rate ($511.50/wk x 50 wks). Accordingly, I find that Claimant's lost wages were $2,255 for this time period and that his total past lost wage damages are $45,270.50 ($43,015.50 + $2,255.00).

I conclude that Claimant's work expectancy was 28.5 years at the date of the trial. I find that his post-accident earning capacity at his present position is $24,252.80 ($11.66/hr x 40 hrs/wk x 52 wks) and that the difference between his pre-accident and post accident earning capacity is $2,347.20 ($26,600.00 minus $24,252.80), resulting in a total future lost wage damage of $66,895.20 ($2,347.20/yr x 28.5 years).

I also award Claimant past pain and suffering damages of $135,000.00, and future pain and suffering damages of $220,000.00.

Based upon the foregoing, the Clerk of the Court is directed to enter judgment in favor of Claimant as follows:
Medical Expenses $ 11,000.00[12]
Past Lost Wages $ 45,270.50[13]
Past Pain and Suffering $135,000.00
Future Lost Wages $ 66,895.20
Future Pain and Suffering $220,000.00
Total $478,165.70

Judgment will be held in abeyance pending a hearing pursuant to CPLR Article 50-B. The Court will schedule the hearing as soon as practicable.

All motions made at trial and not heretofore ruled upon are now denied.

November 24, 2000
Rochester, New York

Judge of the Court of Claims

Suppurative thrombophlebitis is a condition characterized by the presence of an infected blood clot within a vein. It is caused by a bacterial infection.
The medical records use military time. I have elected to do the same.
It was established by Claimant's expert that "benign" meant not red or swollen, and that "patent" meant the IV was open and running.
2400 hours refers to the beginning of the day, not the end.
The anesthesia record is incorrectly dated December 13 The correct date should be December 14.
According to Dr. Gradon, large IV's have smaller gauge numbers than small IV's.
In the article, "septic phlebitis was diagnosed by the presence of... thrombophlebitis (erythema, pain), with a purulent exudate from a catheter or venipuncture site" (Exhibit 9 at 97).
A thrombophlebitis is an inflamed vein with a blood clot. A supportive thrombophlebitis is a pus producing or infected thrombophlebitis (Steadman's Medical Dictionary, 26th ed).
Claimant's recollection about the date of his termination is probably wrong, since Dr. Hixson's records show that he was working as a janitor at the time of a September 27, 1996 visit.
Defendant objected to Claimant's reliance upon the 1099's on the grounds that it requested income tax returns, but they were never produced. I overruled that objection because Claimant testified at trial that he had not retained copies of his tax returns for any of these years. I should also note that Defendant never specifically asked for income tax returns in the demands on file with this Court, but did ask in 1996 for a "copy of pay stubs, work account ledger[s] and/or other documentation which establishes the wages of the claimant at the time of the accident" (Notice to produce filed October 28, 1996). If Defendant was not satisfied with Claimant's response to that demand, it should have made a motion before trial. In any event, actual past earnings can be established by submitting income tax returns or "other relevant documentation" (PJI 2:290 [citation to comment]).
See footnote 9.
The medical expenses and lost wages awards are not reduced by the collateral source payments Claimant received from his no-fault insurance carrier (see, CPLR 4545[a]), because Allstate is entitled by law to a lien against that portion of Claimant's recovery (see, CPLR 4545[a]; Insurance Law §5104[b]; Biette v Baxter, 57 NY2d 698; Aetna Ins. Co. v Springsteen, 78 AD2d 532).
I am not reducing Claimant's lost wage award to reflect federal or state income taxes (see, CPLR 4546), because Defendant has not demonstrated, with reasonable certainty, the taxes Claimant would have had to pay (see, CPLR 4546[3]; 9 Weinstein-Korn-Miller, NY Civ Prac ¶4546.01).