New York State Court of Claims

New York State Court of Claims

ALEXANDER v. THE STATE OF NEW YORK, #2001-014-102, Claim No. 97838


Case Information

ROBERT ALEXANDER, as Executor of the Estate of BARBARA ALEXANDER, deceased The Court of Claims does not have jurisdiction over individuals (see, Smith v State of New York, 72 AD2d 937, 938), nor does it have jurisdiction over "State University of New York Health Science Center at Brooklyn-University Hospital" as an entity distinct from the State of New York (see, Court of Claims Act §9). Thus, the Court sua sponte amends the caption of this claim to delete improperly named defendants.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court of Claims does not have jurisdiction over individuals (see, Smith v State of New York, 72 AD2d 937, 938), nor does it have jurisdiction over "State University of New York Health Science Center at Brooklyn-University Hospital" as an entity distinct from the State of New York (see, Court of Claims Act §9). Thus, the Court sua sponte amends the caption of this claim to delete improperly named defendants.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

S. Michael Nadel
Claimant's attorney:
Charles Silverstein, P.C.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Diane Temkin, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 2, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)


On July 27, 1997, Barbara Alexander died at the age of 68, as a result of lung carcinoma. In December 1996, she had been conclusively diagnosed with cancer. In September 1995 and January 1996, she had undergone two separate carotid artery endarterectomy surgeries, performed by Dr. Panetta, Chief of the Division of Vascular Surgery, at State University of New York Health Science Center (SUNY Downstate), where as part of the pre-operative procedures, X-rays of her chest were taken.

At the trial of this claim, it was established that according to a radiologist's report prepared at the time, the September 1995 X-rays
showed that there were small bilateral pleural effusions, and abnormalities in the lungs, and referred to a nodular-like density either in the lung or breast tissue; and that according to a radiologist's report prepared at the time, the January 1996 X-rays showed that there was a 2 centimeter mass in the middle lobe of the right lung. It was also established that on both occasions Mrs. Alexander was discharged from the hospital without being informed of the findings of the chest X-rays. It was not until September 1996, when, as the result of deteriorating health, she was admitted to a hospital in New Jersey that she learned of the results of the January 1996 chest X-rays.[1] It was also at this time that she was first informed that there was a suspicion that she had lung cancer. It was further established that Dr. Panetta was not made aware of either of the radiologists' reports or of the findings of the X-rays before he operated or before he discharged her from the hospital; and that on each occasion he signed off on the hospital chart as complete although it did not contain the radiologist's report.
Dr. Coughlin, the claimant's expert witness, board certified in general and thoracic surgery, testified that had the results of the chest X-rays been made known at the time they were taken, further evaluation would have confirmed that there was indeed a spot on the right middle lobe of the lung, which would have led to a diagnosis that this was a Stage 1A tumor, which is an early point in the development of a cancer. He was of the opinion that Mrs. Alexander had a Stage 1A tumor through the time of her January 1996 admission, that she had non small cell lung cancer, and that the condition was highly curable in January 1996. It was Dr. Coughlin's opinion that she was 90 percent unlikely to have had metastasis. He stated that if left untreated non small cell cancer of the lung progresses to a stage where it can no longer be successfully treated.

Dr. Coughlin testified that there were departures from acceptable medical practice which were causally related to the injuries suffered by Mrs. Alexander, and her subsequent death. He stated that the processing of information gathered in the radiology department was not in accordance with accepted standards of care, specifically the standards of the Joint Commission for the Accreditation of Health Care Organizations. Dr. Coughlin stated that it is not only important that X-rays be taken, but also that significant findings must be acted upon in a timely fashion. He stated that Mrs. Alexander's chest X-rays were essentially ignored by the hospital. He contended that her deterioration and suffering was avoidable, if the X-rays had been properly reviewed in the first place, if the radiologist's report had been properly forwarded to those who should have received it, if the radiologist had directly informed the surgeon of the findings, or if the hospital chart had not been signed off as complete despite the absence of the radiologist's report.

Dr. Greenwald, the defendant's expert witness, board certified in internal medicine and medical oncology, testified that it was highly unlikely that the failure to diagnose Mrs. Alexander's condition in January 1996 was the cause of her death. He stated that if a diagnosis had been made in September 1995, or in January 1996, she almost certainly would have died of the cancer in any event.

He contended that as of September 1996, when there was a suspicion of cancer, Mrs. Alexander presented symptoms of very advanced incurable lung cancer. He opined that based on her condition in September 1996, and in November 1996, an inference can be made that as of January 1996 she had metastatic cancer with less than a ten percent chance of cure, with a somewhat greater chance of cure in September 1995. He testified that it would be unusual, but not impossible, for a cancer that is curable nine months earlier to advance as far as it did by September 1996. He stated that in January 1996 she was anemic and had marked weight loss, which may be symptoms of advanced cancer, but that there was no direct evidence that there was cancer because the appropriate tests were not performed.

The claimant seeks to hold the defendant liable for Mrs. Alexander's death (EPTL §5-4.1), and for her conscious pain and suffering during the months before she died, on the grounds that the defendant's conduct was negligent, that it was a departure from accepted standards of medical care and that it was the proximate cause of her death.

The failure of a hospital to inform a patient of a serious medical condition is an act of ordinary negligence.
McKinney v Bellevue Hospital, 183 AD2d 563. "One need not have a medical degree to conclude that claimant should have been told what the radiologist determined when he reviewed her X-ray . . ." Caracci v State of New York, 178 AD 2d 876, 877. See, also, Caracci v State of New York, 203 AD2d 842. The claimant has established by a preponderance of the credible evidence that the failure of the defendant to notify Barbara Alexander of the findings in the radiology report in January 1996 was negligent.
The claimant has also established that, as a result of failing to follow accepted standards of care concerning the handling of X-rays, the defendant failed to properly diagnose Mrs. Alexander's condition. The defendant's position that the claimant has not established the standard of care in the locality where the malpractice occurred, or that there was a deviation from that standard, is not supported by the evidence, nor is its position that Dr. Coughlin's opinion in this regard was baseless because he was not familiar with SUNY Downstate's policies and procedures. His opinion was based upon accepted standards of care concerning handling X-rays, regardless of locale.
See, Kelly v State of New York, 259 AD2d 962, 963. Dr. Coughlin's testimony in this regard is essentially uncontradicted on the record. See, Prescott v LeBlanc, 247 AD2d 802, 803. The defendant's expert did not address the issue; his testimony was limited to the issue of causation. The defendant offered no proof to contradict the evidence of negligence and malpractice, but chose to defend on the grounds that any negligence was not the proximate cause of decedent's injuries and subsequent death, but that if it was, it was caused by the culpable conduct of others for whom the defendant is not responsible.
The claimant has also established that the foregoing negligence was the proximate cause of Mrs. Alexander's suffering and her death. Upon consideration of the testimony of the respective experts, the Court finds the opinion of Dr. Coughlin in this regard more persuasive.
See, e.g., Moreno v Chemtob, 271 AD2d 585. In reaching this conclusion, the Court has considered the evidence that Mrs. Alexander had smoked one pack of cigarettes a day for approximately 40 to 45 years, and that she had quit smoking approximately seven years before her death.[2]
By reason of the defendant's failure to exercise its duty of care, Mrs. Alexander was neither diagnosed with lung cancer nor otherwise given any information concerning the condition in her right lung, until it was too late. Any possibility of a cure was utterly lost for her and her family due to the negligent acts of the defendant. Upon the evidence presented, the defendant is solely responsible for those actions.

The only support for the defendant's affirmative defense that Mrs. Alexander's suffering and death were caused, either totally or partially, by the culpable conduct of others for whom the defendant is not responsible, namely Drs. Panetta and O'Connell-Mazzei (the radiologist who examined the X-rays in January 1996, prepared the radiology report, but did not directly inform Dr. Panetta of the findings), is counsel's assertion and argument to that effect. There is no evidence in the record which supports the defendant's position that it is not responsible for the conduct of these two physicians.

To the extent that it was established at trial that both of them are members of clinical practice plans, it is established that they are employees of the defendant.
See, 8 NYCRR §340.4. To the extent that it is the defendant's position that their conduct in connection with the instant claim was outside of the scope of their employment, membership in a clinical practice plan is not probative of that position; no relevant evidence in support of that position was offered at trial. The agreement between counsel for the claimant and counsel for Drs. Panetta and O'Connell-Mazzei to stay an action brought by the claimant against the two physicians individually, in another forum (see, Court Exhibit 1, dated 11/12/99, Docket No. CV 983454, United States District Court, EDNY), pending the outcome of the trial herein, is not, as suggested by counsel for the defendant, probative of the matter. The Court does not disagree with the defendant's contention that this agreement, as well as the unanticipated presence of the attorneys who represent the two physicians in the Federal action, at the trial of this claim, suggests bias on their part against the defendant. The circumstances suggest that they have a self serving interest in attributing fault to the defendant, but not to themselves. While the Court has considered the foregoing, as well as the argument by counsel for the claimant ascribing fault to the defendant, but not to Drs. Panetta and O'Connell-Mazzei, in weighing their testimony, none of this is probative of any material issue on the trial of this claim.
Under EPTL §5-4.3, damages for wrongful death are limited to "fair and just compensation for the pecuniary injuries resulting from the decedent's death to the persons for whose benefit the action is brought." Evidence that Mrs. Alexander performed household duties in the home she shared with her husband, and that she provided love, guidance and advice to their two adult daughters is sufficient proof of pecuniary loss.
Korman v Public Service Truck Renting, Inc., 116 AD2d 631.
In arriving at an appropriate award for wrongful death, determination of fair and just compensation is "complex because the amount of pecuniary loss tends to be uncertain and problematical. * * * * Among the myriad factors to be considered are the decedent's physical status -- which includes factors such as age, sex, life expectancy, state of health, habits; * * * * Also to be viewed is the relationship between decedent and those claiming to suffer pecuniary loss and those persons' health, age and circumstances. * * * * Since there is little probability that the facts in any two wrongful death cases will be alike, and, in arriving at a proper award, an infinite variety of human characteristics and family situations affect the numerous factors which must be examined, each case must be viewed on its own merits with respect to the damages recoverable."
Franchell v Sims, 73 AD2d 1, 5-6.
Barbara Alexander was born on July 9, 1929.[3]
She had a history of coronary disease, including a heart attack in 1990. Her carotid arteries became partially blocked, which occasioned her admission at SUNY Downstate in September 1995 and January 1996, for two separate endarterectomy procedures. She smoked cigarettes until the time of the heart attack, and quit thereafter. She developed arthritis.
Robert Alexander, her husband of 48 years, is a retired construction electrician who was born on October 26, 1926.[4]
In 1994 he suffered a heart attack, and was treated for heart problems from that time on. In July 1997 he underwent quadruple bypass surgery. Mr. Alexander testified that his wife was an excellent housekeeper, and that she did all of the washing, cleaning, shopping, cooking and whatever else that was required around the home. She took care of all of the social aspects of the household. She also babysat for their three grandchildren. Funeral expenses paid by Mr. Alexander were established to be in the amount of $7,836 (Exhibits 12, 22, 23 and 24).
The Alexanders' adult daughter, Nancy, was born on July 13, 1953. As an adult, she had lived in an upstairs area of her parents' Brooklyn home. When her parents moved to New Jersey, she and her husband followed and moved within walking distance of their home. She described her relationship with her mother as one in which they shared everything. She stated that when she became pregnant, her mother gave up all of her activities, moved into her house and took care of her. Her mother also helped take care of her daughter. She testified that her mother was always there for her to give her guidance and to help her through any problem.

The Alexanders' other adult daughter, Barbara, was born on August 3, 1959. As an adult she had lived three houses away from her parent's Brooklyn home. She and her family moved to New Jersey to be near her parents. She testified that she and her mother were soul mates. She stated that her mother gave her guidance whenever she needed it. Her mother helped her make all major decisions including those involving personal and career matters.

The testimony of Mrs. Alexander's husband and two adult daughters establishes that this close knit family sustained pecuniary loss as a result of her death. Upon the evidence presented, the Court determines fair and just compensation for this loss to be $200,000.
See, Korman v Public Service Truck Renting, Inc., supra.
During the summer of 1996, Barbara Alexander began to suffer from fatigue, palpitations, edema, and a general feeling that something was physically wrong with her. In September 1996 she was admitted as a patient at West Jersey Hospital so that tests could be conducted. Many tests were performed, including chest X-rays, a needle biopsy and a bronchoscopy of her lung. It was at this time that she learned that there was a possibility she had a cancerous mass on her lung. She also was informed of the SUNY Downstate X-rays at this time. She became depressed upon learning of a possible diagnosis of cancer.

In November 1996 Mrs. Alexander was readmitted at West Jersey Hospital for palpitations, shortness of breath and edema. Several tests were performed, and she was once again informed that there was a possibility that she had cancer and that there was a danger that she might suffer a stroke.

In December 1996 the results of a needle biopsy yielded a conclusive diagnosis of non small cell carcinoma of the lung. In January 1997 she began a course of thirty radiation therapy treatments. As a result of the radiation treatment and the worsening of her condition, Mrs. Alexander suffered symptoms, including the inability to swallow, excessive weight loss, weakness and depression. Because she had difficulty swallowing she was only able to ingest foods such as soup and ice cream. She was unable to perform any of her household functions, and gradually lost interest in activities she once enjoyed. She was unable to move about the house, and her husband had to take her to the bathroom and clean her. There came a time when she lost control of her bodily functions.

On July 25, 1997, her condition was grim. She entered the emergency department of West Jersey Hospital where she was admitted as a patient. Hospital records indicate that she was doing very poorly over several months leading up to this hospitalization, with increased weight loss. She was described as cachetic, grossly malnourished and was in the end stage of cancer, and succumbing to the illness. She suffered headaches, blurred vision, shortness of breath, cough, dyspnea, constipation, arthralgia and anorexia.

On the night of July 27, 1997, with her family at her bedside, Barbara Alexander passed away. Robert Alexander testified that she was in pain up until the time she died.

The Court awards the claimant $250,000 representing damages for Barbara Alexander's conscious pain and suffering and $200,000 representing the pecuniary loss sustained by claimant's distributees as well as $7,836 representing funeral expenses incurred. Interest on the conscious pain and suffering award ($250,000) will run from the date hereof and thereafter in accordance with law. Interest on the wrongful death award for funeral expenses ($7,836) will run from July 27, 1997, the date of Mrs. Alexander's death (EPTL §5-4.3) to the date hereof. Interest on the past wrongful death award, which the Court finds to be in the sum of $140,000, will run from April 30, 1999[5]
to the date hereof. Thereafter interest on the total wrongful death award in the amount of $207,836 will accrue in accordance with law.[6] Interest on the foregoing awards shall be at the statutory rate of 9%. CPLR 5004.
All motions not heretofore ruled on are denied.


February 2, 2001
New York, New York

Judge of the Court of Claims

[1]It is not disputed by the defendant that the existence of the September 1995 X-rays was not disclosed to the claimant until September 1998, more than a year after Mrs. Alexander died. Although an amended bill of particulars, which included reference to the September admission was served in March 1999, the claimant did not seek to amend the claim to include any allegations with respect to the September admission until the conclusion of the trial, at which time counsel moved to amend the pleadings to conform to the proof. To the extent that counsel's purpose is to add a cause of action for wrongful death in connection with the September admission, the application is untimely. Evidence concerning the September 1995 admission is nonetheless relevant, since the September 1995 X-rays, and the associated radiologist's report, were in the defendant's possession at the time of Mrs. Alexander's January 1996 admission.
[2]The defendant's contention that this provides a basis for apportioning some liability upon Mrs. Alexander, is without basis. See, e.g., Mendoza v Kaplowitz, 215 AD2d 735. Nor does the record support the defendant's suggestion that Mrs. Alexander failed to exercise reasonable care regarding her own health when she failed to follow up with Dr. Panetta and other physicians.
[3]At the time of her death, Mrs. Alexander was 68 years old. Although a 68 year old woman has a life expectancy of 16.9 years (1 NY PJI3d 1408 [2001]), the defendant's expert, Dr. Greenwald, estimated that a woman of her age, in her physical condition, and with her medical history, had she not developed lung cancer, would have a life expectancy of no more than five years. The claimant offered no evidence on the matter.
[4]At the time of his wife's death, Mr. Alexander was 70 years old, with a life expectancy of 12.7 years (1 NY PJI3d 1405 [2001]).
[5] April 30, 1999 is "a single reasonable intermediate date" (CPLR 5001[b]) for "computing preverdict interest on past losses incurred at discrete times from the date of death to the date of the verdict" (Milbrandt v A.P. Green Refractories, Co., 79 NY2d 26, 37).
[6]The Court has not reduced the award for future pecuniary loss to present value, nor could it, since proof of damages was not presented in that manner. It has simply awarded the current value of future damages, without reference to inflationary effects.