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
While at home during the evening of February 2, 1995, nine days subsequent to
the surgery, claimant testified that the new wire
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
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
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
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
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
; DuBois v
, 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
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.
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
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
, 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
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
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
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
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
). 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
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.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.