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
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
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
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
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
, 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
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
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
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
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
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,
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,
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
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.,
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,
to the date hereof. Thereafter interest on the total wrongful death award in
the amount of $207,836 will accrue in accordance with
Interest on the foregoing awards shall
be at the statutory rate of 9%. CPLR 5004.
All motions not heretofore ruled on are denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.