New York State Court of Claims

New York State Court of Claims



The Court finds that claimant has failed to prove by a fair preponderance of the credible evidence that her knee injury was caused by defendant's negligence.

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:
Grey and Grey, L.L.P.By: Robert E. Grey, Esq., Of Counsel
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: John J. Kelley, Esq. and Ellen Matowik, Esq., Assistant Attorneys General, Of Counsel
Third-party defendant's attorney:

Signature date:
December 18, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

This action, which sounds in negligence and relies in part upon the doctrine of res ipsa loquitur, arose out of a knee injury that claimant Laurie Kreuzberg ("claimant") sustained on June 18, 1997 while she was at the University Hospital Health Sciences Center at Stony Brook ("Stony Brook") undergoing wrist surgery (claim, dated March 12 and filed April 5, 1999 ["claim"]).[1]
The operative facts follow.
In October 1996 claimant was involved in an accident while serving as an ambulance attendant for the Central Islip Volunteer Fire Department, a position that she had held for approximately four months (T 4-5).[2]
As a consequence of the accident, claimant injured her right knee and her right wrist. When claimant's wrist continued to bother her, Dr. Steven A. Simonsen ("Dr. Simonsen"), her treating physician, referred her to a specialist, Dr. Edward Wang ("Dr. Wang"), and, ultimately, she underwent wrist surgery at Stony Brook on June 18, 1997 (T 10-12, 74).
Claimant was brought into the operating room where she moved herself onto the operating table from the gurney and was strapped in and had her right wrist immobilized for surgery (T 15-16). The last thing that claimant remembers before the surgery was a mask being placed over her face; then she was "out" from the anesthesia (
id.). Claimant testified that the next thing that she recalled was waking up in a lot of pain, which was emanating not from her right wrist, but from her left knee (T 17-18). Upon examination, her left knee cap (patella) was discovered to have dislocated to the side of its proper position (T 17-18, 181; Court exh. I, p 9). Claimant was then administered a sedative and her kneecap was reduced[3] by a resident, Dr. Joseph A. Mannino (" Dr. Mannino") (T 19, 183-184; Court exh. I, p 16; clt. exh. 2, p 129). Claimant was discharged on the same day with a knee brace (T 20, 26), but saw Dr. Wang, the orthopedist who had operated on her right wrist, the next day so that her wrist cast could be repaired and because her left knee had swollen (T 21-22). Dr. Wang drained 15 cc's of "clear joint fluid" from her knee (T 22; clt. exh. 2, p 101).
Approximately one month after this surgery, claimant returned to Dr. Simonsen and began seeing him about once every four to six weeks regarding her left knee which, she testified, felt weak and unstable (T 23-25, 75-76).[4]
After attempts to stabilize claimant's left knee through physical therapy failed, she underwent surgery to realign the patella on February 8, 2001 (T 27-31, 79-80). Although claimant's kneecap now stays in place as a result of the realignment surgery, it still bothers her intermittently, depending on her activity level (T 41-43, 84-85).
Claimant's treating orthopedic surgeon, Dr. Simonsen, opined that claimant's complaints are likely to be permanent and that she may face arthritic complications in the future (T 84-85). He also stated that in his opinion, the surgery that he performed on her left knee in February 2001 and the symptoms prompting this surgical intervention were related to a patellar dislocation that claimant suffered at some point during her wrist surgery (T 80-81). He also believed that a prior dislocation suffered by claimant in 1981 during a softball game, requiring six weeks of immobilization (T 7-8), played no part in the dislocation necessitating the February 2001 surgery (T 85-86). Dr. Simonsen appeared to base this opinion, at least in part, on his recollection that claimant had not experienced problems with her left knee on any occasion from 1981 until 1997 (T 85); and that in his years of practice since 1974, he had never had a patient wake up from general anesthesia with a dislocated patella (T 76-77).

During cross-examination, Dr. Simonsen acknowledged a notation that he had made regarding claimant's left knee in his medical notes dated November 8, 1989 (T 88-90),[5]
which states the following:
Dr. Simonsen testified that in June 1997 claimant had actually suffered from a dislocation as opposed to "a positive apprehension" (i.e., if an attempt were made to pull the patella to the side, claimant would actually feel as if it would dislocate) (T 89-90). He acknowledged that a person with a prior dislocation is more likely to experience recurring dislocations, and that these types of people have been known to "wake up" with dislocations (T 91-92).
When asked if, in light of the prior dislocation and his notation from November 1989, claimant may have been more prone or predisposed to non-traumatic dislocation, Dr. Simonsen responded in the affirmative (T 104). He also recognized that there was no evidence of trauma in claimant's medical records; that the presence of clear fluid in her knee (as opposed to fluid containing blood) could have represented an ongoing knee inflamation preexisting the dislocation on June 18, 1997; and that it was possible that claimant, coming out of general anesthesia, could have dislocated her patella by twisting or turning in a certain manner (T 104-105).

Defendant State of New York ("defendant" or "the State") presented the testimony of Dr. Leon Sultan ("Dr. Sultan"), an orthopedic surgeon (T 117), who explained that when a kneecap is dislocated, the retinacular structure (ligaments on the side of the knee holding the patella laterally in place [T 122-123]) is permanently weakened, which renders an individual prone to recurrences that can happen at any time, either immediately or much later (T 128). Although trauma, Dr. Sultan testified, was the most common cause of patellar dislocations, "spontaneous" dislocation could be caused by, among other things, laxity of ligaments and could occur with little or minor trauma such as twisting the wrong way (T 123-124).[6]
Based on his review of claimant's records, Dr. Sultan's professional opinion was that the combination of claimant's preexisting knee condition and the fact that she was coming out of anesthesia, which would have caused a loss of muscle tone (T 132), caused her to suffer from a spontaneous recurrent dislocation, not a traumatic injury (T 134-135, 159). Moreover, the fact that the 15 cc's of fluid drained from claimant's knee the next day contained no blood indicated that the dislocation was not caused by trauma: Dr. Sultan explained that if the scar tissue from her prior injury had been ripped by a traumatic dislocation, blood would have been present in the fluid (T 133). Based on these factors, Dr. Sultan believed that it was probable that claimant dislocated her patella while in bed in the recovery room, perhaps by twisting, turning or bending her leg while coming out of anesthesia (T 132-133). During cross-examination, Dr. Sultan testified that he was not surprised that claimant had never suffered from this type of dislocation during any of her other numerous surgeries while under general anesthesia because such a dislocation could have happened, or not, at any time (T 156-158).
Dr. Sultan was also cross-examined regarding a prior opinion that he had rendered for an employer in an unrelated workers' compensation case. There, the claimant had dislocated her patella in 1997 and then dislocated it again in 1999 (T 150). His opinion had been that the claimant's second dislocation had been a spontaneous, independent occurrence, not related to the original 1997 work-related injury (T 150-151). Dr. Sultan, by way of explanation, seemed to testify that the fact that the first dislocation was caused by a trauma while the second one occurred spontaneously, albeit the claimant was predisposed, meant that the second dislocation was an independent occurrence (T 151-152). Counsel for claimant aptly indicated that it also meant that the second dislocation was unrelated to the first (T 152-153).

As summarized by her Post-Trial Memorandum (dated August 6 and received October 4, 2002 ["Claimant's Post-Trial Mem."), claimant argues (1) that the circumstantial evidence presented at trial proved that her knee was dislocated by the nurse assigned to take care of her in the Anesthesia Intensive Care Unit, Nurse Robert Dolan ("Dolan"), during his post anesthesia assessments of claimant (Claimant's Post-Trial Mem., 27-38); or (2) that liability should be imposed upon application of the doctrine of res ipsa loquitur (
id, at 38-43).
Dolan, a registered nurse practicing in the recovery room, treated claimant on the day of her wrist surgery (T 169-171). During this time claimant was his sole patient, and he testified that he did not leave her stretcher between 10:25 A.M. and 11:25 A.M. (T 173). As part of his duties, Dolan maintained notes and performed assessments upon claimant which encompassed, among other things, checking her neurological status by performing certain physical tests. His notations (admitted into evidence as clt. exh. 2, pp 135, 138) were recorded contemporaneously or within a short time thereafter (T 171-178), and demonstrated that he received claimant at 10:25 A.M., supine in her stretcher with the side rails up. She was asleep but aroused with ease and was able to follow commands (T 171). His notes memorialized that claimant indicated she was "comfortable at present" upon admission (T 172, 174-175), and that his assessment showed that she was able to move all extremities at this point (T 177-178).

As pertinent to this claim, part of the physical assessment that Dolan would perform on claimant, as required every half-hour (T 177), consisted of testing her strength in her extremities, such as having her squeeze his finger and standing at the foot of the bed so that she could press her foot against his palm as one would step on a gas peddle and then bring her toes up toward her chin (T 175-176). The results of these tests were recorded in the "postanesthesia recovery score" section of claimant's Anesthesia Intensive Care Unit Records (
see, clt. exh. 2, p 135).
Upon admission and at 10:55 A.M., claimant's results were satisfactory (
id.; T 179). Dolan recalled that up until 11:25 A.M., claimant would sleep intermittently and wake up to ask for things such as ice, for the lights to be dimmed or for her husband (T 181-182). He explained that patients coming out of anesthesia are able to move, but that he would not have taken note of any movement unless it warranted his intervention (T 180).
Dolan testified that at 11:25 A.M., claimant first complained about her knee (T 181). After he undraped claimant's covers he observed that her kneecap was laterally dislocated. He then paged orthopedic services so that she could be evaluated (T 182). Both Dolan and the resident who responded to Dolan's page, Dr. Mannino, testified that when asked, claimant had indicated that she had a history of problems with this knee (T 183, Court exh. I, pp 9-10).[7]
Dolan opined that there was no reason to believe that claimant's patella dislocated prior to 11:25 A.M.
Seizing upon the indication in Dolan's records that he performed an assessment at 11:25 A.M. (T 209-210; clt. exh. 2, p 138) and relying to a certain extent upon (1) Dolan's practice of writing the times of day within the body of his notes rather than in a column designated for such (T 201-203;
compare, clt. exh. 2, p 138 with pp 123, 129, 139, 140) and (2) the lack of any notations in Dolan's notes between 10:25 A.M. and 11:25 A.M., claimant argues that the circumstantial evidence proves that claimant's left knee was injured during Dolan's activity assessment and suggests that Dolan tried to cover this up (Claimant's Post-Trial Mem., at 27-38). Claimant hypothesizes that the fact that Dolan assessed claimant at 11:25 A.M., the same time she reportedly awoke in pain, indicates that "the external force used by Nurse Dolan in pushing the claimant's lower extremities [during the assessment] was sufficient force to dislocate her knee" (Claimant's Post-Trial Mem., at 30).[8]

"To establish a claim of negligence that is based, as here, entirely on circumstantial evidence, a [claimant] must demonstrate the existence of ‘facts and conditions from which the negligence of the defendant and the causation of the [injury] by that negligence may be reasonably inferred'" (
J.E. v Beth Israel Hosp., 295 AD2d 281, 283, quoting Schneider v Kings Highway Hosp. Ctr., 67 NY2d 743, 744). This is not to say that a claimant must absolutely exclude all other possible causes of the injury (see, Gayle v City of New York, 92 NY2d 936). Rather, the proof "‘must render those other causes sufficiently ‘remote' or ‘technical' to enable a [factfinder] to reach its [conclusion] based not upon speculation, but upon the logical inferences to be drawn from the evidence'" (J.E. v Beth Israel Hosp, supra, at 283, quoting Schneider v Kings Highway Hosp. Ctr., supra; see, Michel v Gressier, ___ AD2d ___, 748 NYS2d 512).
Evaluating the totality of the evidence presented at trial and assessing the credibility of the witnesses (
see, Jones v State of New York, 93 Misc 2d 916, 924), the Court cannot find that claimant has sufficiently proven this theory of liability, or that the proffered conclusion can be reached without improperly making inference based upon inference or, in other words, relying to a significant extent upon conjecture rather than proven fact (see, Pollock v Rapid Indus. Plastics Co., 113 Ad2d 520, 524; Prince, Richardson on Evidence § 4-302, at 156-157 [11th ed]).
Here, in the first instance there is no evidence that Dolan would apply any degree of force to claimant's leg while performing his assessment. As Dolan described the assessment procedure, claimant was supposed to place her foot against his open palms and press down and then pull her toes towards her chin so that he could measure her "neurostrength" (T 175-177). Contrary to the theory of injury suggested in claimant's Post-Trial Memorandum, Dolan's testimony did not indicate that these assessments involved any degree of force or manipulation of claimant's legs on his part. Quite to the contrary, Dolan corrected counsel for claimant during cross-examination, clarifying that he did not put his hands upon her feet, "she puts her feet on my hands" (T 209).

Nor was there any evidence that Dolan performed his 11:25 A.M. assessment (memorialized in clt. exh. 2, p 138) before or at the moment claimant's patella dislocated as opposed to after the injury had been discovered. In fact, claimant's own testimony explaining the incident tends to weaken this theory and corroborates Dolan's credible testimony regarding his discovery of claimant's injury (T 181-182).

Claimant testified at trial that she woke up in pain and initially thought that she might just be awkwardly positioned (T 17) (i.e., suggesting that she was not being assessed at the time). She then asked for a pillow and a young man "came over" with a pillow (
id.). Somebody pulled the sheet back and the dislocated patella was discovered (T 17-18). Her prior deposition testimony, brought out during cross-examination, also stated that a young man (presumably Dolan) "came over" with a pillow and pulled back the sheet discovering the injury (T 50-51). This testimony, combined with Dolan's, indicates that however claimant's patella dislocated, it was not while Dolan was performing an assessment. This testimony would appear to support Dolan's testimony, corroborated by his records, that claimant was able to move all her extremities and was comfortable up until 11:25 A.M. when she awoke in pain. Mindful of Dolan's statement that he would only make notations if an event transpired that warranted his intervention (T 180), the Court does not find the so-called "glaring absence of information between 10:25 and 11:25" (Claimant's Post-Trial Mem., at 35) noteworthy or suggestive that Dolan was attempting to cover up some negligent act on his part (id., at 32).
Next, the Court finds defendant's expert testimony as to causation entirely credible, especially when read together with the more objective evidence proffered at trial, such as the sequence of events mentioned above. As noted, Dolan's records substantiate the hypothesis that claimant had not dislocated her patella either in surgery or in transport to the recovery room because she was comfortable and able to move her leg upon admission to that unit. Whatever happened, the evidence suggests that the dislocation occurred while she was in the recovery room, probably around 11:25 A.M. when she awoke in pain, and the Court does not find any credible evidence from which to infer that Dolan caused her dislocation.

All that logically remains is the theory proffered by Dr. Sultan, and at least agreed to as a possibility by Dr. Simonsen (T 104-105), that claimant may have spontaneously dislocated her knee, perhaps by simply moving the wrong way while in her bed (T 132-135, 159). Dr. Sultan's testimony regarding the lack of blood in the fluid drained from claimant's knee, indicating that there had been no trauma (T 133), also appears to negate the scenario suggested by claimant.

Significantly, even if there were competent evidence to support the conclusion that Dolan's assessment of claimant's leg strength caused her patella to dislocate, there is nothing in this record even remotely suggesting that he performed these assessments in a careless manner or breached the appropriate standard of care. The totality of the evidence at trial suggests that claimant suffered from an inherently weak left knee, more prone to dislocate than the average person's, as a result of her prior traumatic injury. Although claimant and her treating physician both denied that she had any preexisting knee problem, her own medical records from1989 demonstrate that her left knee was evidently afflicted to the extent that Simonsen noted that "corrective surgery may be needed" (clt. exh. 4, p 155).

Given the fact that claimant admitted that she did not notify hospital personnel about this injury prior to the surgery (T 45), Dolan would have had no reason to suspect that perhaps he should have treated her more cautiously than the average patient. While under different circumstances--for example, if Dolan had known of claimant's knee problem and had handled her improperly in light of this knowledge--application of the "eggshell skull" doctrine might conceivably allow claimant to hold the State responsible for her injury (
see, King v State of New York, 58 AD2d 934, 935; 1B NY PJI 2:283, at 1343 [3d ed]), although a showing that defendant transgressed its duty of care in the first instance would still be required (see, 1 Dobbs, The Law of Torts § 188, at 465). "The defendant only need exercise ordinary care to prevent foreseeable harms. The . . . rule comes into play only when the defendant's conduct would put normal people at risk" (id.). In simpler terms, if the act causing the injury was not tortious--and there is no evidence here to suggest that Dolan committed any tortious act--there is no basis to hold defendant liable for claimant's injury.
The facts forming the basis of an inference must be proven; conjecture, guesswork or speculation cannot suffice (
see, 1A NY PJI 1:70, at 94-95 [3d ed]). If the possible causes are evenly balanced, or, as it appears here, even less so, no inference adverse to the defendant should be drawn (see, La Plante v State of New York, 31 AD2d 570, affd 28 NY2d 575; Markel v Spencer, 5 AD2d 400, 407, affd 5 NY2d 958); "[T]o do so would be to indulge in speculation" (Markel v Spencer, supra , at 407, citing Galbraith v Busch, 267 NY 230, 235). Based on the foregoing, a preponderance of the credible evidence does not support any logical inference that Dolan's assessment of claimant caused her to suffer a patellar dislocation of the left knee.
Next, the doctrine of res ipsa loquitur permits, but does not require, a factfinder to infer negligent conduct on the part of a defendant when, among other requirements not at issue here, the "nature of the accident is such that it ‘would ordinarily not happen without negligence'" (
Imhotep v State of New York, ___ AD2d___, ___, [2002 WL 31423650], quoting Dermatossian v New York City Tr. Auth., 67 NY2d 219, 226). Where, as here, the evidence demonstrates that "the probabilities are at best evenly divided between negligence and its absence" (Restatement [Second] of Torts § 328D, Comment e), the invocation of this doctrine is inappropriate (see, Mochen v State of New York, 57 AD2d 719; Rodriguez v State of New York, 50 AD2d 985; Barry v State of New York, 27 AD2d 593). Put simply, the totality of the evidence at trial failed to demonstrate that "‘it is more likely than not' that the injury was caused by defendant's negligence" (Kambat v St. Francis Hosp., 89 NY2d 489, 494, quoting Restatement [Second] of Torts § 328D, Comment e).
Based on the foregoing, the Court finds that claimant has failed to prove her case by a fair preponderance of the credible evidence, and dismisses Claim No. 100104. Any motions on which the Court reserved judgment or which were not previously decided are now denied. The Chief Clerk is directed to enter judgment accordingly.

December 18, 2002
Albany, New York

Judge of the Court of Claims

[1]The claim also contains a cause of action that appears to allege that the State failed to properly monitor or review the operating doctor's privileges or investigate his qualifications (claim, ¶¶ Eighteenth-Twenty-Second). There was no evidence presented at trial supporting these allegations and, consequently, the Court deems this portion of the claim abandoned and, in any event, unproven at trial.
[2]"T" followed by a number refers to the corresponding page(s) in the transcript of the trial on liability.
[3]Reduction is the repositioning of a part to its proper anatomical position by manipulation or surgery (see, Stedman's Medical Dictionary [26th ed], at 1513).
[4]The frequency of claimant's visits was related to workers' compensation benefit requirements (T 53).
[5]Claimant testified that she had not experienced any problems with her left knee from the time of her 1981 dislocation until June 18, 1997, and that she had seen Dr. Simonsen in 1989 for a problem with her right knee. She denied having any problem with her left knee at that time (T 45).
[6]In medical usage, the term "spontaneous" refers to an event without an apparent cause (Stedman's Medical Dictionary [26th ed], at 1657).
[7]Claimant's prior knee history was revealed to Dr. Mannino and Dolan while she was still in the recovery room and before the patella was manipulated back into its proper position. Claimant testified that she had not notified Stony Brook personnel about her prior left knee injury before her wrist surgery (T 45).
[8]Dolan explained that he customarily wrote the times within the text portion of his notes, and that he had never been told that he should not do so (T 201-202, 211-212). He denied writing the entire report after the incident involving claimant's dislocation had occurred (T 206), and further testified that the manner in which his records were kept had nothing to do with claimant's dislocation (T 212-213).