New York State Court of Claims

New York State Court of Claims

SHARMA v. THE STATE OF NEW YORK, #2001-019-003, Claim No. 90630


State found 100% liable for Claimant's injuries resulting from failed administration of spinal anaesthesia by unidentified doctor. No damages for derivative claim of spouse due to lack of proof.

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:
DiJOSEPH & PORTEGELLO, P.C.BY: Howard Essner, Esq., of counsel
Defendant's attorney:
BY: Hector LaSalle, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
March 28, 2001

Official citation:

Appellate results:

See also (multicaptioned case)

Claimants, Bhagmatty Sharma and Jagat Sharma,[1]
bring this Claim alleging that as a result of the negligence and medical malpractice of the Defendant, State of New York, more particularly, the employees of State University of New York Health Science Center at Brooklyn - University Hospital (hereinafter "Downstate"), Claimant suffered serious, severe, and permanent nerve damage from spinal injection trauma secondary to multiple failed attempts at administration of epidural anaesthesia.

This Decision results from a unified trial of the above-captioned matter, which occurred in New York City on September 25 through September 28, 2000. The relevant facts as found by this Court after that trial are as follows.

On October 8, 1991, Claimant, then 38 years old, was admitted to Downstate by Nicola Mertsaris, M.D., an attending physician specializing in obstetrics and gynecology, for delivery of a child by C-Section. Both Claimant and Dr. Mertsaris testified that in preparation for that C-Section delivery a "tall black man"[2]
purportedly a resident at Downstate and believed by Claimant to be "Dr. Brady" (but whom the Court refers to hereinafter as "Doctor X"), entered Claimant's room to administer a spinal epidural anesthesia. Dr. Mertsaris could not identify Doctor X. Both Dr. Mertsaris and Claimant testified that Doctor X made three attempts to administer the spinal anesthesia all of which were unsuccessful. Claimant testified she felt a "tearing, ripping pain" radiating down her left leg with the last attempt. Doctor X immediately withdrew the spinal catheter and left the room. Anesthesia was then successfully administered to Claimant by Brian McHugh, M.D., a resident Anesthesiologist at Downstate, who also testified on behalf of Claimant. While Dr. McHugh could not identify Doctor X, he testified that failure to note the three failed epidural attempts in Claimant's medical chart was contrary to hospital policy and a departure from good and common medical practice. Claimant then underwent the planned C-Section without further incident.

After her post-delivery recovery from the anesthesia, Claimant complained of severe headache, back pain, and numbness in her left leg from her hip to her foot. This resulted in a loss of use of the lower portion of the left leg and left foot drop or foot drag, with some residuals that Claimant alleges are permanent in nature. Claimant remained hospitalized from October 8, 1991 until November 14, 1991, undergoing a long and tedious recovery. After discharge she was confined to a wheelchair for one year, subsequently followed by ambulation with the assistance of a walker for
several months. To date, Claimant still walks with a cane. Claimant received at home nursing care after discharge until August of 1994, and was unable to work from October 8, 1991 until January 1, 1994. She underwent extensive physical therapy and rehabilitation for a period of approximately 3 years. Claimant testified she suffered a great deal of pain and, she alleges, her difficulty ambulating remains to date.

Claimant called as an expert witness, Aric Hausknecht, M.D., a board-certified neurologist and one of her treating physicians. It was Dr. Hausknecht's credible opinion that Claimant suffers from adhesive arachnoiditis resulting in polyradiculopathy leading to partial loss of feeling and use of the lower left extremity. Dr. Hausknecht testified that this arachnoiditis resulted from spinal injection trauma, secondary to multiple failed attempts at administration of an epidural anesthesia. In essence, Dr. Hausknecht opined with a reasonable degree of medical certainty that the third unsuccessful lumbar epidural attempt was far too lateral to the spine, partially as a result of Claimant's scoliosis or curvature of the spine. This resulted in Doctor X nicking a blood vessel which caused blood to pour into a nerve sleeve. Dr. Hausknecht explained that when blood entered the nerve sleeve in the area of L3, 4, and 5, it resulted in inflamation to the nerve root and sleeve which over time created scar tissue resulting in Claimant's adhesive arachnoiditis. It was Dr. Hausknecht's ultimate opinion that the injury sustained by Claimant resulted from a departure of the standard of due care and medical practice in the community. Dr. Hausknecht testified that Doctor X was clearly not trained or qualified to perform this procedure unsupervised on a patient with scoliosis. He opined that after the first or at least the second botched attempt, Doctor X should have either requested direct supervision from a more experienced physician trained in this procedure, or done the procedure by way of a fluoroscopy which would create an x-ray image of the spinal area at the time the catheter was being inserted. Either way, this particular type of problem could, and should, have been avoided. Moreover, Dr. Hausknecht stated Claimant's complaint of the shooting and burning pain on Doctor X's third attempt is also consistent with direct nerve contact which often results in simultaneous bleeding in and around the nerve root. It was the doctor's opinion that this is the most feared end result of a failed or botched lumbar epidural and that this result, under these circumstances, was clearly a departure from the standards of due care and duty owed to the Claimant. Additionally, the absence of notes in the Claimant's medical chart detailing the problems in administering Claimant's anesthesia is also, in and of itself, a departure from the standards of care owed to a patient, particularly when a procedure such as this fails.

On February 22, 2000, Dr. Hausknecht ordered an MRI of the lower portion of Claimant's spinal cord at Lumbar 3, 4 and 5. An examination of those images (Claimant's Exhibits 7A-1 through A-3) demonstrate a narrowing and constricting of the nerve roots of the lower portion of Claimant's spinal cord. This, Dr. Hausknecht concludes, is consistent with, and confirms the presence of, adhesive arachnoiditis.

Claimant also called a board-certified neurologist, Dr. Morton Finkle, who examined Mrs. Sharma on March 31, 1999. He testified to Claimant's loss of sensation and touch from the left foot to the left knee. He also observed marked muscular weakness resulting in drag or drop of the left foot. He confirmed radiculopathy from L3, 4 and 5 of Claimant's spinal region secondary, in his opinion, to spinal injection trauma caused by the failed epidural attempts. It was Dr. Finkle's opinion that Claimant's loss of sensation and weakness are permanent in nature.

The State called Isaac Azar, M.D., who was recognized by the Court as an expert in the field of anesthesiology
. Dr. Azar testified that he has performed thousands of epidural procedures. The witness described the risks associated with a lumbar epidural as: 1) inserting the needle into the vein which would cause anaesthetic to reach the circulatory system causing drowsiness and other side effects; or 2) the lumbar epidural actually taps into the sub dura or dura leading to a loss of spinal fluid resulting in severe headache; and 3) that a needle could touch a nerve root leading to damage and various symptomology associated therewith. He testified that the failure of Doctor X to document his three failed attempts was, in and of itself, a violation of a standard of care or duty of care owed to Mrs. Sharma. In fact, on cross-examination, Dr. Azar stated that the failed attempts should have been charted because it is 1) extremely important to know what had happened previously, 2) it would be important to know if there was in fact any injury to the patient, and 3) in this case the follow-up anaesthesiologist, Dr. McHugh, must know what treatment and course of action should be followed as a result of the three prior failed attempts. In the absence of such documentation, Dr. Azar acknowledged he cannot say that this epidural procedure was properly performed. Most interesting, was the witness's acknowledgment that once a patient feels a "jolt", the treating physician has gone too far with the epidural; if you continue, "it's only a distance of millimeters" before you can sever or damage a nerve.

The State also called Dr. Jerome Block who performed an independent medical exam of Claimant on August 6, 1998, and reviewed her medical records. Dr. Block testified that he found no organic cause for the weakness complained of by Claimant. He found no defect of the nerves or muscles and felt that Claimant was exaggerating, or subjectively manifesting or magnifying, her injuries. He did, however, find a slight decrease of sensation in the pin test from the waist down on the left side of the body. On cross-examination the doctor acknowledged that there was some degree of recovery and normal power that the Claimant had regained since the injury in 1991. Moreover, Claimant has demonstrated continual improvement by graduating from a wheelchair, to a walker, and then a quad cane. Dr. Block did not believe Claimant suffered from any organic dysfunction of a permanent nature.

The Court also received, with the consent of the parties, a report of David Dickoff, M.D., who performed an electromyogram (EMG)
on the Claimant. However, Dr. Dickoff failed to attach the underlying raw data which he used to interpret and evaluate Claimant's EMG. Without the underlying test data sheets and supporting documentation it was difficult for the Claimant's experts, or the Court, to critically evaluate the reliability of the information contained in Dr. Dickoff's written report. Suffice it to say Dr. Dickoff's report as well as all of the Claimant's other medical experts, to this Court's view, simply questions the degree and severity of the injury and the associated permanence, if any, suffered by Claimant. However, absent an accurate and complete hospital chart, they do not, and cannot, seriously question Claimant's contentions as to what actually happened at the time the epidural anesthesia was attempted by Doctor X on October 8, 1991.
I - Liability
Generally, in order to maintain an action for injuries sustained while under the care and control of a medical practitioner, a party may proceed upon a theory of simple negligence or upon the more particularized theory of medical malpractice. (
Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804). The theory of simple negligence is restricted to those cases where the alleged negligent act is readily determinable by the trier of facts on common knowledge. Here, Claimant's cause of action is better suited to the theory of medical malpractice since it is the administration of epidural anesthesia that is in issue, which clearly falls outside the scope of this Court's common knowledge, and therefore requires expert testimony. (Twitchell v MacKay, 78 AD2d 125). In a medical malpractice claim, a claimant has the burden of proof to establish a deviation or departure from accepted practice and that such deviation was the proximate cause of the injury. (Nicolosi v Brookhaven Mem. Hosp., 168 AD2d 488). More specifically, a claimant must show that the medical care giver either did not possess or did not use reasonable care or best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field. (Pike v Honsinger, 155 NY 201; Jacques v State of New York, 127 Misc 2d 769, 770-771). A claimant must then establish that his/her injuries were proximately caused by the deviation from those standards. In order to sustain this burden, a claimant must present expert testimony which establishes the negligence and causation to a reasonable degree of medical certainty. (Hale v State of New York, supra, 53 AD2d 1025, lv denied 40 NY2d 804). Once Claimant has presented that proof then, if the Court finds the same to be credible, the Claimant has made out a prima facie case of medical malpractice. Moreover, once the Claimant establishes a prima facie case of medical malpractice, then the burden of persuasion and/or production of evidence shifts to the State to overcome the Claimant's prima facie showing. (Brown v City of New York, 47 NY2d 927; see also, Fisch on Evidence, § 1088, at 611 [3d Ed]).

Here, the Court finds that Claimant currently suffers from adhesive arachnoiditis caused by spinal injection trauma, secondary to multiple failed attempts at administering epidural anesthesia at Downstate on October 8, 1991. The Court credited the testimony of the Claimant herself as to what she felt and experienced on that date when Doctor X attempted on three occasions, without success, to administer epidural anesthesia. The Court accepts the testimony of Claimant's experts Dr. Finkle and Dr. Hausknecht, basically uncontroverted by the State, that Claimant's injuries were caused as a direct result of the departure from acceptable standards of medical care and practice in the manner and effect in which Doctor X administered the epidural anesthesia which was a breach of duty owed to the Claimant. More specifically, Claimant's experts satisfied the Court that Doctor X either did not possess or use reasonable care or best judgment in the performance of Claimant's epidural anesthesia. The Court is satisfied from the testimony that Claimant's injuries were, in fact, proximately caused by a deviation from the standard of care owed the Claimant by Doctor X and the staff at Downstate Medical Center. As such, the Court is satisfied from the credible evidence elicited at trial, expert and otherwise, that Claimant established a prima facie case of medical malpractice.

Since Claimant has made a prima facie showing of medical malpractice, the burden of production and/or persuasion then shifts to the State to overcome Claimant's proof. In this case the State has failed to rise to the challenge. The State through its doctors and experts offered no testimony to contradict Claimant's prima facie case, specifically since they failed to produce Doctor X or anyone else with actual knowledge as to what procedure was actually performed on Claimant or the records relative thereto. While the State's experts, Dr. Azar and Dr. Block, attempt to show that the injury suffered by Claimant could be an inherent and attendant risk involved in the procedure administered to Claimant, absent Doctor X and the corresponding hospital records and medical chart, their conclusions are sheer speculation. For in the first instance, the State cannot establish that Doctor X was in fact even a physician or other person possessing sufficient medical training and/or skill to be administering this type of anesthesia in an unsupervised setting. Unless and until the State can establish the same with competent, admissible proof, the Court is not willing to find the State's expert testimony on the risks associated with this procedure sufficient, or credible enough, to overcome the Claimant's prima facie showing of medical malpractice. Since the State was unable to counter Claimant's proof on causation, it can only question, as it does here, the degree of injury and appropriate amount of damage actually suffered by Claimant.

Consequently, this Court finds that Claimant sustained her burden of establishing that the State deviated from accepted standards of care and practice in administering her epidural anesthesia and that such deviation proximately caused her injuries.

II - Damages
A. Pain and Suffering

The term "pain and suffering" has previously been utilized to encompass all items of general, non-economic damages. (
McDougald v Garber, 73 NY2d 246). An award for pain and suffering should include compensation to an injured person for physical and emotional consequences of the injury. In determining the amount to be awarded the Claimant for these physical, emotional, and other "non-economic" damages, the Court may properly consider the effect these injuries have on the Claimant's capacity to lead a normal life. The Court finds that the Claimant is entitled to a judgment against the State on her claim for pain and suffering, both past and future.
1. Past Pain and Suffering

The Court is satisfied from the testimony and proof elicited at trial that the Claimant endured a fair degree of past pain and suffering. First and foremost, the Claimant described a very painful and traumatic procedure which occurred on October 8, 1991 as a result of Doctor X's inability to properly administer an epidural anesthetic. Claimant further testified that when the anesthesia wore off, sensation came back in her right leg, but not in her left leg. The day immediately following the procedure she had a severe headache and back pain, no ability to control her left leg, and no feeling in the left leg. Her left leg remained totally dead with no muscle control and totally paralyzed for at least three to four days thereafter.

As a result of this injury, Claimant remain hospitalized from October 8, 1991 to November 14, 1991. She was subjected to a battery of tests including EEGs, MRIs, and x-rays, and underwent physical therapy at least three times per week during this period for 45 minutes per session.

Upon her discharge Claimant still had no feeling in her left leg from the knee down to the foot and was confined to a wheelchair. Since she could not ambulate on her own, the hospital threatened not to release her baby to her since they were concerned about her ability to care for the newborn in light of her physical limitations. As a result, Claimant received home care treatment in varying amounts, from twelve hours per day, seven days a week, to four hours per day, five days per week for the next two and one-half years. Home care assisted her with showering, dressing, and all mobility inasmuch as the Claimant remained totally helpless. She was confined either to a wheelchair or a walker, the toes on her left foot were curled and she was unable to provide any care for her child or husband. In fact, during this period of time Claimant had to be carried up and down three flights of stairs to and from her apartment any time it was necessary for her to leave her residence. This continued until approximately August of 1994 when she began going to rehabilitation three times a week. From 1994 until March of 1999, the Claimant wore a leg brace on the left leg and was not able to return to any type of meaningful employment until she began working at home as a legal transcriptionist. Claimant also testified how these limitations adversely impacted her ability to care for and bond with her infant child.

As of the date of trial, Claimant still suffers physical limitations which impact her daily life. Her ability to climb stairs or steps is impacted and she can walk only slowly. Claimant cannot run or even walk fast, and she still has numbness from the knee down in her left leg. She needs elevators when available, and needs assistance at home, from her husband and others, when reaching or bending. She cannot grocery shop or do the laundry. She still has to use her quad cane since she is fearful of walking and falling without that assistance whether she is in or outside of the home. Socially she describes the situation as embarrassing, and her unsteadiness creates a hurdle which she must overcome on public transportation; buses, trains or any type of mass transit. She also suffers from a loss of balance as a result of her injury.

In light of the foregoing, the Court awards Claimant $150,000.00 for past pain and suffering.

2. Future Pain and Suffering

The Court was impressed with the testimony of both Claimant's expert physicians, Dr. Hausknecht and Dr. Finkle. Both physicians opined that due to the length of time the Claimant has suffered from weakness of the lower left extremity, numbness and some foot drop, they anticipate her condition to be permanent in nature. Moreover, Claimant herself testified that she still suffers physical limitations in terms of stair climbing, walks slowly, and some numbness from the knee down in the left leg. Furthermore, she described the impact that she suffers on a daily basis in terms of needing assistance at home with certain matters and her need to use a quad cane whenever she leaves the home. This is problematic when she travels outside the home. She testified that it is embarrassing and it is difficult on mass transportation and that she suffers from a loss of balance. Moreover, in viewing State's Exhibits E and F (surveillance tapes of Claimant), the Court does find that Claimant still walks with some limp and needs the assistance of her cane. However, while the Court believes that Claimant has substantially improved from her condition of October 8, 1991, the State's surveillance tapes satisfy the Court that there is still some permanent residual loss of use of Claimant's left leg to such a degree that supports Claimant's contentions of permanent impact on her daily activities, and life in general.

Therefore, the Court awards the Claimant $100,000.00 for future pain and suffering and the permanent/residual partial loss of use of the lower portion of her left leg and foot for the remaining
35.4 years of Claimant's life expectancy.[3]
B. Loss of Income
As a general principle a claimant is entitled to be reimbursed for any lost earnings caused by the defendant's negligence from the date of the accident to the date of trial. Additionally, the Court may make an award for loss of future earnings if the Claimant has suffered a reduction in her capacity to earn money in the future as a result of the same negligent act. (36 NY Jur 2d, §§ 69 & 198).

1. Past Lost Earnings
As a general principle, proof of past lost earnings must be established with reasonable certainty focusing on the Claimant's earning capacity before and after the accident. (
Clanton v Agoglitta, 206 AD2d 497, 499). It is the Claimant's burden to establish his or her own loss of "actual" past earnings by submitting appropriate proof and documentation. In calculating lost earnings, the Court may consider the value of fringe benefits associated with Claimant's position, assuming there is evidence presented as to the nature and value of such benefits. (Toscarelli v Purdy, 217 AD2d 815, 818-819).

In the instant case, Claimant testified that she had been employed by Congress Talcott Corporation at the time of her admission to the hospital on October 8, 1991, on a full-time basis at $185.00 per week with individual health insurance benefits. As a result of the injuries she sustained, Claimant lost her job at Congress Talcott. It appears from the record that she was unable to return to work until January of 1994, when she began home employment as a legal transcriptionist earning $4,000 to $5,000 per year, without any fringe or insurance benefits. However, the Court believes by January 1994, Claimant was physically capable of employment equivalent to her prior position with Congress Talcott.

Based upon Claimant's uncontroverted testimony, the Court finds that she was unemployed from October 8, 1991 until January 1, 1994. During that period of time her weekly salary of $185.00, plus the value of fringe benefits at $15.59 was lost by the Claimant. Consequently, Claimant suffered a loss of income and benefits during a period of 2 years and 3 months for a total of $23,469.03.

2. Loss of Future Earnings
Loss of future earnings must be established with reasonable certainty focusing, in part, on Claimant's earning capacity both before and after the accident. (
Clanton v Agoglitta, supra, 206 AD2d, at 499). However, an award for loss of future earnings may not be based upon speculation. In the instant case, Claimant testified that she was able to return to work in January of 1994. The Court is satisfied that any physical limitation under which Claimant now labors, should not, and in fact does not, impact her ability to work at a job equal or superior to her last position at Congress Talcott. Consequently, the Court is not inclined to make any award for loss of future earnings.
C. Derivative Claim of Jagat Sharma

Mr. Sharma did not testify at trial, although the Claim does plead a derivative claim on his behalf. During Mrs. Sharma's own testimony there were only vague references to the impact of her injuries on her husband. When one spouse suffers a severe injury, it may be reasonably inferred that the other spouse was deprived of spousal services and is entitled to compensation. (
Torro v Altman, 97 AD2d 819, lv denied, 62 NY2d 603). However, this Court is not inclined to award even nominal damages when, as here, there is a total lack of proof. (Rusinko v Plechavicius, 57 AD2d 553).
The Court finds that the credible evidence established that Claimant, Bhagmatty Sharma, is entitled to an award for damages as follows:

Past Pain and Suffering: $150,000.00
Future Pain and Suffering: $100,000.00
Past Lost Income: $ 23,469.03
Future Lost Income: $0
Derivative Claim of Jagat Sharma: $0
Total: $273,469.03

Interest on the award is to run from the date hereof at the statutory rate of 9% which the Court finds presumptively reasonable.

Any motions upon which the Court previously reserved at trial, or which were not previously determined, are hereby denied.


March 28, 2001
Binghamton, New York

Judge of the Court of Claims

[1]The claim of Jagat Sharma is derivative in nature and, accordingly, any reference to the term "Claimant" will refer solely to Bhagmatty Sharma.
[2] Unless otherwise indicated, all quotations are from the Court's trial notes.
[3]Claimant was 46 years of age at the time of trial with a remaining life expectancy of 35.4 years. (1B PJI3d Appendix A).