New York State Court of Claims

New York State Court of Claims

STOCKHOLM v. THE STATE OF NEW YORK, #2001-009-104, Claim No. 95825


Claimant alleged medical malpractice and negligence for damages resulting from a series of surgical procedures performed at the State University of New York Health Science Center.

The Court found the State fully liable, by finding that the re-insertion of an exposed wire constituted medical malpractice, as was the failure to remove an anchor when a Dorsal Column Stimulator was surgically removed. The Court determined that it was a matter of professional medical judgment whether to remove the anchor, but that no such judgment was exercised in this case, since the physician failed to locate and remove the anchor.

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:
BY: James L. Chivers, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Edward F. McArdle, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
September 26, 2001

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant seeks to recover damages against the State for alleged medical malpractice and negligence. The trial of this claim was ordered bifurcated, and this decision will therefore address solely the issue of liability.

The claimant herein, Cheryl Stockholm, alleges medical malpractice and negligent medical care arising from several procedures involving the surgical insertion and eventual surgical removal of a spinal cord stimulator. The surgeries were performed at the State University of New York Health Science Center, University Hospital, in Syracuse (University Hospital).

Upon referral from her treating physician, claimant was first evaluated by P. Sebastian Thomas, M.D., an employee of University Hospital, who was also the Director of the Pain Management Clinic at the hospital in August, 1994. Claimant was suffering from Reflex Sympathetic Dystrophy (RSD), a progressive pain condition which can develop following injury or trauma. A decision was made at that time to insert a dorsal column stimulator (DCS), a device which is implanted to stimulate the spinal column with electric charges, and which has sometimes proved effective in reducing pain caused by RSD. In order to insert the device, two separate procedures were performed at University Hospital.

The first procedure, on December 19, 1994, was essentially a trial stage, to determine if stimulation occurred, and was performed with local anesthesia. In this procedure, Dr. Thomas inserted metal electrode lead wires into claimant's back near her spine. These wires were anchored with a clip, referred to as an anchor or connector, which is approximately the size of a nickel or dime. In the second procedure, performed on December 22, 1994, James Holsapple, M.D., an Assistant Professor of Neurologic Surgery at University Hospital, inserted the stimulator into claimant and connected the device to the leads. This procedure was performed under general anesthesia. The type of anesthesia administered is noted, since during prior surgeries, claimant had suffered from severe nausea and vomiting attributable to the anesthesia, and claimant had spoken with health care providers at the hospital, including Dr. Thomas, about these difficulties prior to the surgery.

Immediately after the second procedure of December 22, 1994, claimant developed complications in the recovery room, including violent vomiting. These complications continued, even after she was returned to her room. As a result of her nausea, the stimulator was not activated. Claimant returned to her home on December 23, 1994. Claimant testified that she did not experience any relief from her pain as a result of the operation. On January 3, 1995, claimant returned to the hospital for an x-ray, where it was discovered that the lead wire had moved, and that the stimulator was not functioning. Claimant was advised that additional surgery would be required. On January 24, 1995, claimant again underwent surgery by Dr. Thomas, who was assisted by S.I. Hosain, M.D., and Jeffrey S. Wang, M.D., Fellows at the Pain Clinic, to replace the lead wire.

While at home during the evening of February 2, 1995, nine days subsequent to the surgery, claimant testified that the new wire "popped"[1]
through her skin. Claimant testified that the wire broke completely through the skin on her back, and was visible to the naked eye. Claimant's son testified that he was called into her room by his mother and saw the wire protruding completely through her skin.
Claimant immediately went to a hospital in Binghamton and was informed that she should return to University Hospital as soon as possible. The next morning, on February 3, 1995, claimant returned to University Hospital and was examined by Dr. Hosain and Dr. Wang. These physicians informed claimant that they had to reinsert the wire, and another surgery was performed that day in the recovery room of the hospital.

Subsequent to this surgical procedure on February 3
rd, the site became infected. Due to the infection, claimant was readmitted to University Hospital on March 14, 1995, and the following day, March 15, 1995, due to the infection, Dr. Holsapple performed surgery to remove the dorsal column stimulator.
After this operation, claimant continued to experience pain and muscle spasms at the incision site. In response to these complaints, yet another surgery was scheduled, and on October 20, 1995, Dr. Holsapple performed this surgery. During this procedure, Dr. Holsapple located and removed the anchor (or clip) which had not been removed during the March 15, 1995 surgery (when the DCS had been removed).

Based on the events as described above, claimant asserts that the State is responsible for acts of malpractice committed during the various procedures and surgeries performed on her.

Specifically, claimant offered proof at trial that a psychological evaluation should have been performed, prior to any surgery for insertion of the stimulator; that once the lead wire protruded through the skin, it should not have been reinserted; that the recovery room at University Hospital was inappropriate for any surgery involving the reinsertion of the lead wire; and that the anchor (clip) should have been removed during the March 15, 1995 surgery when the stimulator was removed from claimant.

Claimant called as an expert witness, Christopher Gharibo, M.D., the Medical Director of the Pain Treatment Center at Bellevue Hospital, who testified that each of the above mentioned acts constituted a departure from accepted medical practice, and that claimant suffered damage as a result.

The State called William Nugent, M.D., as its expert. Dr. Nugent is a Syracuse area physician associated with the Anesthesiology Department of St. Joseph's Hospital. He testified that he has performed numerous procedures involving DCS implants, and that based on his experience, he found no deviations from accepted medical practices.

In claims premised upon medical malpractice, a claimant must establish that the medical professional involved either did not possess or did not use reasonable care or his/her best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field (
Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804; Pike v Honsinger, 155 NY 201). The proof required in such a case includes the accepted medical standards of care in the community in which the medical professional practices (Toth v Community Hosp. at Glen Cove, 22 NY2d 255) and a deviation or departure from those standards (Kletnieks v Brookhaven Mem. Assoc., 53 AD2d 169, 176). The physician is not required to achieve success in every case and cannot be held liable for mere errors of professional judgment (Pike v Honsinger, supra; DuBois v Decker, 130 NY 325). The "line between medical judgment and deviation from good medical practice is not easy to draw" (Schrempf v State of New York, 66 NY2d 289, 295; quoting Topel v Long Is. Jewish Med. Center, 55 NY2d 682, 684).
With regard to the first issue, i.e., that a psychological evaluation should have been performed on claimant prior to the implantation of the DCS, claimant's expert, Dr. Gharibo, testified that such an evaluation is an essential step in the implantation procedure, in order to insure that the patient is an acceptable candidate for the DCS and will benefit from the procedure. Dr. Nugent, however, testified that recent studies have concluded that these evaluations have not proved helpful in determining which patients might benefit from the procedure, and that as a result, most physicians had ceased performing them, since they did not seem to improve patient outcomes.

Based upon this conflicting testimony, the Court is of the opinion that claimant has not met her burden of establishing that such psychological evaluations are in fact necessary or required by health care professionals prior to the surgery which was performed in this case. Accordingly, the Court finds that the failure to perform such an evaluation in this case did not constitute a deviation from accepted medical care.

Claimant also asserts acts of malpractice related to the surgical procedure performed on February 3, 1995, when the lead wire was reinserted. Claimant's expert, Dr. Gharibo, testified that the lead wire, once exposed, should not have been re-implanted, since the exposure greatly increased the risk of infection. Furthermore, Dr. Gharibo testified that any such procedure should have been performed in the highly sterile environment of an operating room, and not in the recovery room of the hospital where the procedure was actually performed.

In order to consider these issues, the Court must first resolve a contested factual issue. As previously noted, claimant testified that the lead wire had completely broken through her skin, and was exposed to outside elements. Defendant, however, produced testimony from Dr. Thomas, Dr. Hosain, and Dr. Wang[2]
to the effect that although the lead wire had moved, it had not broken through all layers of claimant's skin, and therefore had not been exposed. This is a critical issue of fact, since even Dr. Gharibo, claimant's expert, testified that it would not be against accepted medical care to reposition a wire that had moved, but had not completely broken through the skin.
As set forth previously herein, claimant testified that on February 2, 1995, while she was in bed watching television at her home, she felt something "pop" out of her back in the area of her incision. She then called her son Derek into her room, who pulled up the back of her shirt to view her back. Derek Stockholm testified that he saw a brown wire in the shape of a loop, and that this wire was protruding completely through the skin on his mother's back. Derek testified that he did not touch the wire but was absolutely certain that he was able to see it and that he could distinguish both the color and shape of the wire.

To the contrary, Dr. Hosain and Dr. Wang, the physicians who performed the surgical procedure on February 3, 1995 to re-implant the lead wire, both testified that the wire was not visible, since it had not completely broken through all layers of skin on claimant's back. However, both Dr. Wang's Pain Clinic notes (see Claimant's Exhibit 1A) and Dr. Hosain's progress notes (see Claimant's Exhibit 1B), dated February 3, 1995, indicate that the lead wire was protruding through skin at the incision site. Additionally, the Operative Report (see Claimant's Exhibit 11) and the Discharge Summary (see Claimant's Exhibit 5A) both contain a reference that the dorsal column electrode was protruding through the skin.

Resolution of conflicting testimony is dependent upon an assessment of the witnesses' credibility (
Wester v State of New York, 247 AD2d 468; Timmons v State of New York, 256 AD2d 1163). Having listened to the witnesses and having observed their demeanor, the Court finds that the notes and summaries made contemporaneously with the surgery are more reliable than the recollection of the witnesses adduced at trial, several years after the procedure. Accordingly, the Court finds that the credible evidence has established that the lead wire had completely broken through claimant's skin and had therefore been exposed to air.
Having made this determination, however, the Court's inquiry does not end. The Court must also determine whether the reinsertion of the exposed wire amounted to malpractice.

Dr. Nugent, defendant's expert, although agreeing that a wire which protrudes through the skin is contaminated because of its exposure to air, testified that even in these circumstances, it would not be a departure from accepted medical standards to clean and reinsert the wire, if there was no evidence of infection.

As previously indicated, however, it was the opinion of Dr. Gharibo, claimant's expert, that the reinsertion of the wire, once exposed to air, was contrary to accepted medical treatment. Even Dr. Thomas, one of the physicians who treated claimant, although testifying that the wire had not been exposed, agreed that the appropriate standard of care required an exposed wire to be removed. Having made a factual finding that the lead wire had been exposed to air, and based upon the testimony presented as described above, the Court finds that the reinsertion of the exposed wire constituted a deviation from acceptable medical care, and hence, medical malpractice.

Approximately five weeks after this procedure, claimant developed an infection at the incision site, which resulted in the surgery on March 15, 1995 for removal of the DCS. Dr. Nugent testified that in his opinion, the infection was not related to the prior procedures, based partly upon a laboratory report showing evidence of skin bacteria at the site (see Defendant's Exhibit E).

Dr. Gharibo, on the other hand, testified that reinsertion of the lead wire, after exposure to outside elements, and performed in the less sterile environment of the recovery room, was the most probable source of the infection. Dr. Holsapple, the physician who removed the stimulator on March 15, 1995 due to the infection, acknowledged that the most likely cause of the infection was any one of the prior surgical procedures.

Accordingly, the Court finds that the infection sustained by claimant, leading to the removal of the DCS, was directly related to and proximately caused by the reinsertion of the lead wire on February 3, 1995.

Claimant also questioned whether the use of the recovery room at University Hospital for the procedure to reinsert the lead wire was a deviation from accepted medical standards. Claimant contends that the recovery room is not a sufficiently sterile environment, suitable for performing this type of surgery. Again, there was a difference of opinion between the medical experts who testified at trial. A review of this testimony leads the Court to conclude that the claimant has not satisfactorily established, by a preponderance of the evidence, that this environment was unacceptable for the emergency surgery which was in fact performed upon her. A difference of opinion between medical experts must be viewed very carefully before concluding liability against a defendant for malpractice (see,
Centeno v City of New York, 48 AD2d 812, affd 40 NY2d 932; Mohan v Westchester County Med. Center, 145 AD2d 474).
The Court notes, however, that even though it does not find that use of the recovery room for the procedure on February 3, 1995 constituted a deviation from acceptable medical care, such a finding is essentially moot, since the Court has found that the procedure itself violated standards of appropriate medical treatment.

Following the surgery on March 15, 1995 to remove the DCS, claimant continued to experience pain and muscle spasms, and on October 20, 1995, another surgery was performed, under general anesthesia, where the anchor (clip) was located and removed.

Dr. Nugent, on behalf of defendant, testified that the failure to remove the anchor during this March 15, 1995 surgery was not a deviation from acceptable medical standards. He testified that since the anchor was a therapeutic device, originally intended to remain in the patient, the surgeon was entitled to exercise professional judgment in deciding that it was not medically necessary to remove the anchor during the
A physician cannot be held liable for errors in professional judgment (
Pike v Honsinger, supra). However, in this case there is no evidence to even suggest that Dr. Holsapple made a considered decision to leave the anchor in place. Evidence instead conclusively established that Dr. Holsapple intended to remove the entire DCS, that he searched the wound for foreign bodies, and that he did not locate the anchor. There was no exercise of professional judgment in this case, since Dr. Holsapple never made a decision to leave the anchor in place. Simply put, the physician failed to locate and remove the anchor, which he should have known was present. Defendant's expert testified that the failure to remove the anchor was not medically significant. The Court does not accept this testimony. The Court concludes that Dr. Holsapple should have reviewed the records of the initial procedure to definitively ascertain what devices were present in claimant, and that all such pieces of equipment should have been located and removed during the surgery.
The Court therefore finds that claimant has established by a preponderance of the evidence that the failure to remove the anchor constituted a departure from accepted medical standards, and as such, amounted to medical malpractice.

After reviewing all of the evidence presented, both testimonial and documentary, the Court finds that the State is fully liable to claimant herein for medical malpractice in connection with the procedures performed upon her as described herein,
and must therefore respond in damages.
The Clerk of the Court is directed to enter an interlocutory judgment on the issue of liability in accordance with this Decision. The Court will set this matter down for a trial on the issue of damages as soon as practicable.

All motions at trial not heretofore ruled upon are denied.


September 26, 2001
Syracuse, New York

Judge of the Court of Claims

[1] Unless otherwise indicated, all references and quotations are taken from the Court's trial notes.
[2] Dr. Wang's testimony was provided by a transcript of his deposition testimony (Defendant's Exhibit A).