New York State Court of Claims

New York State Court of Claims

MATHIS v. THE STATE OF NEW YORK, #2002-013-515, Claim No. 96215


Trial testimony and evidence failed to establish that decisions made during the emergency room treatment of a patient with a visceral artery aneurysm constituted medical malpractice.

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:
Defendant's attorney:
Attorney General of the State of New York
BY: MICHAEL R. O'NEILLAssistant Attorney General
Third-party defendant's attorney:

Signature date:
July 18, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


On May 17, 1995, Luella Mathis, a 58-year-old[1]
mother of six, was brought to the emergency room of the SUNY Health Science Center (frequently referred to as "Upstate") in Syracuse, New York. She had called 911 shortly after midnight and was transported by ambulance, arriving at the hospital at 1:42 a.m. At approximately 5:00 a.m., as she was being readied for discharge, she experienced an episode of distressing symptoms similar to those that had led her to call 911, and the decision was made to admit her to the hospital. As she was being examined shortly after being admitted to the hospital ward at 9:00 a.m., she collapsed and was immediately rushed to surgery. Mrs. Mathis died during surgery, shortly after noon. This claim was instituted on behalf of her estate, based on allegations that the doctors and staff of Upstate were negligent in the care provided to Mrs. Mathis.
All six of Mrs. Mathis' adult children testified at trial. Elaine Mathis Gillard, who said that her mother had previously had gall bladder problems and high blood pressure, stated that she received a call from her mother shortly after the call had been made to 911. Her mother was aware that any of her children would have come to take her to the hospital, but indicated that she was in such extreme pain, she wanted to get to the hospital the quickest, fastest way.

Mrs. Gillard, who arrived at the hospital just as her mother was brought in, described her as being in extreme pain. Her brother, Alex Mathis, arrived a short while later, and at trial he described his mother as being in great discomfort, shivering and shaking. Another sister, Ophelia Mathis, has spoken with her mother while she was being tended by paramedics, and when she later saw her in the emergency room, she was lying on her side, curled up and obviously in great pain. She said that she had never heard Mrs. Mathis complain about abdominal pain until that night. Wilhemina Jones, the third sister, also spoke with her mother before she left the house. She testified that, because Mrs. Mathis had said in the past that she would never call 911 because she would be too embarrassed, she knew the situation must be serious.

William Mathis went to Upstate shortly after 5:00 a.m. and he also observed Mrs. Mathis lying in a fetal position and clearly in pain. She told him that they had tried to send her home, but that she didn't want to go because she felt too bad. He was present when she was examined by one of the doctors prior to leaving the emergency room. He urged the doctor to give his mother something for the pain, but the doctor said that they needed to first find out what was causing it. Before William left, his mother asked him to request that the nurses bring her a bedpan because she wasn't able to get up to get to the bathroom, and she also asked that he bring her glasses from home.

David Mathis was also able to see his mother in the emergency room, just before she was being transferred to the hospital ward, as they were unhooking the monitors. She asked why he wasn't at work and told him that she would be okay, that he wasn't to worry and to go back to work. He testified that his mother indicated she wanted to stay at the hospital, rather than going home, because she knew she was not feeling well.

After Mrs. Mathis had been transferred to the hospital ward, none of the family was able to see her again. They were informed at one point that she had experienced a serious episode, possibly a heart attack, or that her heart had stopped. Later, after Mrs. Mathis had gone into surgery, they were told by someone named Theresa that it had not been a heart attack, but rather a bleeding ulcer, and that she would be fine in a few days. Shortly afterwards, however, the surgeon informed them that their mother had passed away on the operating table.


The Prehospital Care Report (Exhibit A-2, section four, page numbered 7), which was completed by the ambulance team, noted that they reached the home of Mrs. Mathis at 1:06 a.m. She was somewhat lethargic and hypotensive and complained of abdominal pain that had begun late the evening before. The crew gave her oxygen and 300 cc's of saline; they also noted that her abdomen was distended, but found no abdominal mass. Her systolic blood pressure was 60, but this improved after fluid intake. The ambulance arrived at the hospital at 1:42 a.m. Mrs. Mathis was classified as urgent, which required immediate attention but which, all medical witnesses agreed, is a classification one step down from "emergent," which is reserved for the most critical cases.

Once at the hospital, the nursing notes (Exhibit A-2. p. numbered 53)
indicated that her blood pressure was 126/84, and several minutes later, 108 systolic. Her past medical history, as indicated by the notes, were hypertension and gastrointestinal problems, and her current medications were noted. She was sweating and lethargic and had slurred speech, and she reported that she had not been able to have bowel movement for four days. Milk of magnesia was administered, but no other medications were given. Blood and urine samples were taken, an electrocardiogram was performed; and both chest and abdominal x-rays were taken. The results were not remarkable, except that the abdominal x-ray showed stool throughout the colon (Exhibit A-2, p. 41); blood results that were slightly below or above average, including a hematocrit reading of 32, were later determined to be consistent with her normal readings in the past (see, testimony of Dr. Olsson below). Her vital signs were taken again around 4:34 a.m., and at that time her blood pressure readings were within normal range: 159/85 (right arm); 148/97 (lying down); 137/84 (sitting), and 150/93 (standing), and there were not other remarkable findings. By 4:45, oxygen and monitors were removed and Mrs. Mathis was being readied for discharge.
At approximately 5:00 a.m., however, as she was moving around getting dressed, Mrs. Mathis began to moan and say that she felt like she was going to pass out. Her color paled; she became cool and clammy; she slouched in her chair; and she did not respond to smelling salts. Her blood pressure reading at that point was 75/41, and her pulse was significantly slowed, but those values improved after she was placed in a position to allow body fluids to go to the upper part of the body. She was returned to bed, monitors were reinstalled, and a repeat EKG was performed. Her blood pressure readings immediately thereafter showed considerable change over a short period of time:
5:00 a.m. 75/37
5:02 a.m. 110/71
5:04 a.m. 118/55
5:15 a.m. 74/44
5:35 a.m. 116/62

Additional fluids were administered and she again stabilized. Subsequent blood pressure readings, for the period from 6:00 to 8:00 were within normal ranges.
Following the 5:00 a.m. episode, the decision was made to admit her to the hospital. The Medical Attending Resident (MAR), Dr. Al-Andary, examined her around 6:00 a.m., at which time she was reported to be more awake and able to answer his questions. At about 7:00 a.m., she had a large bowel movement and was reported to be sleeping for long intervals after that; she was easily aroused, but lethargic when awake. By 8:30 a.m., Mrs. Mathis reported that she felt better as a result of the bowel movement, and at around 9:00 a.m., she was transferred to the hospital ward.

In the final notes from the emergency room, (Exhibit A-2, section 4, page numbered 11), the medical attending resident listed the following as possible diagnoses:
1. vasovagal reflex secondary to abdominal pain
2. bradyarrhythmia (slow heart beat)
3. cardiac ischemia

Her abdominal pain was noted with the comment "colicky, probably due to gas," and he noted that the "doubted" bowel (illegible), BI bleeding, peptic ulcer disease, or liver or pancreas and that there was no obstruction. Upon admission to the sixth floor medical ward, Mrs. Mathis' blood pressure was 123/81, and her pulse was within normal limits (Exhibit A-2, page numbered 57). Apparently the admission was uneventful and Mrs. Mathis was able to move from the stretcher to the bed herself, to provide information about her health history, to be weighed and measured, and to have the call system, telephone and television features explained to her (Exhibit A-2, section 4, pages numbered 13, 57).
Dr. Daniel Olsson, an osteopath who is Board certified in emergency medicine, testified that he was the attending physician in the emergency room on the night in question and recalled that he and the two attending residents were somewhat "perplexed" by Mrs. Mathis' symptoms. He stated that she had vasovagal symptoms[2]
that could have arisen from a number of causes but that she did not respond to ordinary measures as well as they would have expected. Initially, they concluded that she could go home because of the improvement she exhibited, but after the episode at 5:00 a.m., it was decided that she should be admitted for continued monitoring: "We had a reoccurrence of the prior event that we didn't have a good idea of what the cause was, and we felt that it was something that should be observed for a longer period of time (Transcript, p. 275). When the decision to admit her to the hospital was made, a medical consultant, rather than a surgical consultant, was called because Dr. Olsson and the residents did not feel surgical intervention was needed. As he explained it, she did not exhibit persistent blood loss and there as no unexplained mass bleeding or severe infection. When asked why the blood tests, specifically the hematocrit, were not repeated after the 5:00 a.m. episode, Dr. Olsson stated: "We didn't feel that this was from blood loss. ...we felt that either this was another unexplained vasovagal episode or some other arrhythmia, but we did not feel that this was a bleeding episode" (Transcript, p. 284).
Dr. Olsson indicated that in 1995 ultrasound equipment was not available in Upstate's emergency room, and in order to have an ultrasound or similar procedure performed during the night, they would have to contact the radiology department and have the attending radiologist called at home to authorize the procedure and then call a technician to come to the hospital to carry out the procedure. In any event, even if the procedure had been easier, he and his staff did not consider ordering an ultrasound or CT scan for Mrs. Mathis. Symptoms that would have made them consider such procedures, he stated, would be persistent elevated heart rate, persistent low blood pressure that did not respond to intravenous fluids, abdominal rigidity, or decreased blood flow to the extremities.

Prior to this time, Dr. Olsson had never examined a patient who had the condition that was later discovered -- a visceral arterial aneurysm rupture -- although he was familiar with patients who had ruptures of abdominal aorta aneurysms. Symptoms of that latter condition, which Mrs. Mathis did not exhibit, included severe back pain, persistent elevated heart rate, persistent low blood pressure, decreased blood flow to the legs, and decreased ability to move the legs. Those patients would also be alert and awake, while the nursing notes for Mrs. Mathis noted that she was sleepy and lethargic most of the time.

The emergency room summary, which was signed by Dr. Olsson but written by the resident and typed up subsequent to Mrs. Mathis' death (Exhibit A-2, section 4, pages numbered 5 and 6), stated that she arrived with complaints of "some crampy abdominal pain," that she had a long history of stomach problems, including irritable bowel syndrome, diverticulosis, and bouts of constipation, which were monitored by the GI doctors. Her physical examination was generally unremarkable, except for a note about a "pretty impressive fluid wave" in her abdomen and sinus tachycardia. Her prior health records were consulted and the laboratory results that deviated from the normal range were found to be not significantly different from her baseline on prior hospital admissions. The 5:00 a.m. episode was described as follows:

While the patient was dressing herself she had what appeared to be a vagal episode where she became acutely diaphoretic and poorly responsive to stimulation. Her heart rate was recorded in the 40s and a blood pressure in the 70 - 80 systolic range. This episode appears to be similar to what the paramedics had witnessed in the patient's home. [id., page numbered 6]

The EKG performed after this episode showed "some subtle changes" from the one taken several hours earlier.
Dr. Theresa Rohr-Kirchgraber, an assistant professor of medicine at Upstate since 1994, was the attending who received a call about Mrs. Mathis asking her to authorize the hospital admission. She was at home when she was contacted, around 7:00 a.m. or perhaps a little before, by Dr. Al-Andary. He described the patient, her history, the results of his examination, her lab values and other available data. Dr. Rohr-Kirchgraber agreed to take Mrs. Mathis into her service.

She explained at trial that within the medical (as opposed to surgical) service, there were six teams, each made up of a physician, resident and intern. It was the job of the MAR to decide whether a patient should be referred to a specialized group, such as the "cancer team" or the "stomach team," or to a general medical team such as hers. Most commonly, new patients would be referred to the general medical team. In the telephone conversation with Dr. Al-Andary, possible diagnoses were discussed, and it was decided that the resident should write orders for cardiac profiling, blood tests to determine if there had been a heart attack, and other normal blood work for admission. She stated that an ultrasound was not considered at that time because the chief concern was that the problem might be related to her heart. Dr. Al-Andary was also directed to hold off on any of the patient's normal medications.

Dr. Rohr-Kirchgraber arrived at the hospital a little after 8:00 a.m. and saw Mrs. Mathis for the first time around 9:00 a.m., just after she was moved from the emergency room to the sixth floor. Her principal complaint at that time was of abdominal pain, "a kind of vague type of pain," which Mrs. Mathis said might be associated with a fatty meal she had had the night before. As they were speaking, she complained of some additional abdominal discomfort. Dr. Rohr-Kirchgraber conducted a physical examination, but aside from some diffuse tenderness in the abdomen, there were no unusual findings. There were no signs at that time of what the doctor described as an "acute abdomen" or "surgical belly," which she described as an abdomen that is tense, rigid, and painful and that exhibits rebound effect. Patients with an "acute abdomen" typically do not want to sit up or move and instinctively guard their abdomen when it is about to be touched. Mrs. Mathis also showed no signs of extensive bleeding, such as fluid in the abdomen, dizziness, or light-headedness. Dr. Rohr-Kirchgraber also noted no fluid wave in Mrs. Mathis' abdomen during her examination.

After the examination, Mrs. Mathis sat back up and the interview continued. Very soon, however, at approximately 10:00 a.m., she fell back onto the bed and started shaking in a tremor or seizure-like manner and soon lost consciousness. Her blood pressure was not measurable. A "code" was called; the critical care team arrived; and it was noted that the patient's abdomen had quickly become markedly distended. She was sent to surgery for, according to the doctor's contemporaneous notes, for an exploratory LAP to rule out a ruptured AAA (abdominal aorta aneurysm) (Exhibit A-2, section 4, page numbered 13).

Dr. Rohr-Kirchgraber did not accompany the patient to the operating room but stated that while the operation was proceeding, she attempted to stay in touch with what was happening and spoke with the Mathis family members on occasion, just to let them know how the operation was proceeding when she received information. At one point, she was told that the surgical team had found a bleeding ulcer and that they were hoping to stop the bleeding, and she conveyed this optimistic information to the family. The next word she received, however, was that the patient had died.

Dr. Frank S. Szmalc, a surgeon who specializes in transplant surgery, testified that he was contacted as Mrs. Mathis was being rushed to the operating room and that the code team was still working on her when he arrived, sometime around 10:32 a.m. The critical findings related to him at that time were severe distension of the abdomen, hypotension and extremely low hematocrit and hemoglobin, so low that they were almost incompatible with life. It was immediately apparent that she had had some type of abdominal "catastrophe." He also assumed that they were dealing with a ruptured abdominal aortic aneurysm, which he described as an abnormal swelling or ballooning of the aorta as it passes from the heart into the abdomen. Dr. Szmalc told her son prior to beginning the operation that he felt she had no better than a 50/50 chance of survival.

In the operating room, the patient's chest was opened and the aorta was clamped to prevent further blood loss. At this time, the patient was in full code, with no measurable blood pressure, but once the aorta was clamped and medications administered, some pressure was restored. No pathology was observed within the thoracic cavity. When an incision was made into the abdomen, however, there was a large amount of free blood, almost three liters worth. The surgical team also observed a large area of clotted blood in the area under the diaphragm. After investigating the aorta and splenic artery and finding them intact, they concluded that the rupture was most likely in the right gastric artery. This type of aneurysm is very unusual, and Dr. Szmalc testified that he has only seen one other, when he was in medical school. The artery in question is comparatively small, perhaps the size of a pencil, as compared to the aorta, which is approximately two inches in diameter.

At approximately the same time that they made this discovery, Mrs. Mathis went into a coagulopathic state, in which the blood ceases clotting, and irreversible shock ensues. Blood pressure could not be restored and she was declared dead shortly thereafter. Dr. Szmalc was the surgeon who spoke with the family and informed them of their mother's death. He acknowledged that he may have said something to the effect that if he had been able to perform surgery earlier, she might have been saved.

The symptoms exhibited by Mrs. Mathis prior to her last collapse were not, according to Dr. Szmalc, those typically found with abdominal aortic aneurysms: extreme back pain, loss of consciousness, and palpable masses or pulses in the abdomen. An abdominal aortic aneurysm will most often show up on x-ray as well, because that artery frequently has a type of eggshell calcification within it. In contrast, the signs of a visceral aneurysm are not so specific to that condition. The symptoms are primarily abdominal pain, from the blood itself or the stretching of small vessels, and low blood pressure, although it is possible for the patient to feel no pain. These symptoms, of course, can indicate a number of other conditions as well. He explained that because visceral arteries are so much smaller than the aorta, their aneurysms can be as small as the size of a pea. When there is a rupture, it can begin as a slow leak, the equivalent of dripping blood, and at some later point suddenly enlarge and become a full rupture. The clots of blood found under this patient's diaphragm were an indication that there had been some bleeding a while before her final collapse.

The testimony of Claimant's expert was presented by way of a video deposition (Exhibits 7-A, 7-B, 11 [transcript]). Dr. Carlton Futch, a board-certified surgeon with specialities in vascular and thoracic surgery and extensive emergency room experience, reviewed the events surrounding the treatment of Mrs. Mathis on the day in question, her medical records, and the deposition testimony of her treating physicians. He indicated that extremely low blood pressure readings, such as Mrs. Mathis had on several occasions, is usually either a sign of bleeding or caused by heart malfunction. Sweating ("diaphoretic") is a symptom most often associated with pain or excessive bleeding, and he stated that it is usually not present in typical, vasovagal fainting spells.

In Dr. Futch's opinion, based on his review of the records, Mrs. Mathis was probably bleeding internally at home before she was ever picked up by the ambulance. Her stabilization upon receiving fluids is typical in patients with aneurysms, as replacing lost fluid raises the blood pressure and normalizes other systems. While he might have asked for a surgical consult early on, because of the low hematocrit reading, in his opinion, continuing to monitor her after her arrival at the emergency room was not a departure from the professional standard of care. He was critical, however, of the fact that no repeat hematocrit reading was obtained during this time period and felt that there was no serious attempt to account for her strong, although admittedly intermittent, complaints of abdominal pain. While an abdominal x-ray was taken and showed nothing abnormal, other measures -- such as an abdominal tap, a sonogram, or a CT scan -- were not pursued and could have provided important information and indicated an abnormal amount of fluid in the abdomen.

The greatest departure from acceptable medical care, according to Dr. Futch, was the several hour delay between the second episode at 5:00 a.m. and Mrs. Mathis' examination by the medical consultant, which did not occur until 9:00 a.m. Moreover, in his opinion, the initial call should have gone for a surgical consultant rather than to the medical service. Although the source of the bleeding -- a visceral artery aneurysm -- is not particularly common and is admittedly difficult to diagnose, the doctors should have suspected and looked for evidence to confirm or rule out abdominal bleeding, from whatever source, much earlier. Once surgery was initiated, the actual location of a bleed would have been determined relatively quickly.

I really feel that had this lady been diagnosed early, taken to the operating room at the appropriate time before she had that final bleed and bled out into her abdomen, that she might have survived the episode. Therefore, I think the care fell below the standard.

(Exhibit 11, p. 51.) If the delay had not occurred, according to Dr. Futch, he feels that Mrs. Mathis would have had at least a 50/50 chance of survival. He explained that, unless an aneurysm ruptures free initially (in which case the patient quickly dies), two phenomenon often allow time for a diagnosis and successful intervention. If the blood is "caught" by another surface, such as the wall of the peritoneum, clots can form that slow down the bleeding. Even if clots do not form, if the initial bleed is into an enclosed area, such as the mesentery, the blood will be contained in that space until it is filled and ruptures through that enclosure into the abdominal cavity. The only opportunity to save a patient who is experiencing an aortic or arterial aneurysm rupture is to intervene while bleeding is slowed by clots and/or being confined in a secondary, smaller space rather than flowing freely into the abdomen. It appears that Mrs. Mathis definitely had some clotting, which could explain some of the times of apparent improvement, and in Dr. Futch's opinion, the initial bleeding went into the mesentery and when it became filled up, around 9:00 a.m., it became a free rupture and caused her death.
On cross-examination, Dr. Futch rejected suggestions that the initial misdiagnosis of an abdominal aortic aneurysm, which was made immediately before surgery, played a critical role in the outcome. Because this condition is the most common source of intra-abdominal bleeding, it would be the logical first diagnosis, and, in any event, it is not unusual, he stated, for the exact source of abdominal bleeding to be unknown until surgery is under way. Whatever the precise source, unless there is bleeding directly into free abdominal space -- in which case the patient dies almost immediately -- bleeding from an aneurysm rupture will be slowed by clotting and/or initially fill the mesentery or peritoneum and then eventually rupture out of the abdominal wall. In this case, Dr. Futch believes that during the interval from the 5:00 a.m. episode until her final collapse just prior to surgery, the bleeding continued and was collecting in the mesentery. This he stated, provided a window of opportunity in which action could have been taken before the full rupture into the abdominal cavity.

If he had been in charge following the 5:00 a.m. episode, Dr. Futch stated, he would have ordered a repeat hematocrit, which would undoubtedly have indicated continued bleeding, and then ordered a sonogram, since that is noninvasive and easy to do. The sonogram, in turn, would have shown some fluid in the abdomen, which would warrant ordering an abdominal tap. If the fluid extracted from the abdomen contained blood, that would be clearly abnormal and sufficient reason to take her into the operating room. Diagnosing the precise source of the bleeding, therefore, was much less important than diagnosing the fact that she was bleeding.

Dr. Paul Adler, who holds degrees as a Doctor of Osteopathic Medicine and Master of Business Administration and specializes in administration and emergency medicine, with Board certification in the latter field, testified on behalf of Defendant. He stressed that the emergency physician's primary task is to triage: to decide who needs immediate treatment, who should be admitted to the hospital and who should be discharged, and what, if any, specialist should be called in. He stated that Mrs. Mathis' initial condition certainly indicated that something was wrong, but that the test results did not point in any one particular direction. The episode that occurred around 5:00 a.m., particularly the EKG results, which were still within normal range but significantly different than the first results obtained, and the fluctuating blood pressure, would have indicated to him that the problem was with her heart. The emergency room staff must have had the same suspicions, he stated, because they ordered a left-sided EKG performed before she was transferred to the medical ward. He testified that when someone has a syncopic episode such as Mrs. Mathis experienced, 50 percent of the time no specific diagnosis is ever made, and the vast majority of those are determined to be caused by either a transitory vasovagal reaction or cardiac causes.

When asked to give his opinion about the course of treatment provided to Mrs. Mathis on this occasion, the Defendant's expert stated that the initial response, conducting normal tests and examination and monitoring vital signs, was appropriate because, more often than not, a patient who has an undocumented syncopal episode will recover on their own. He saw no reason to have ordered a CT scan or ultrasound of the abdominal area, because none of the symptoms suggested abdominal causes and the physical examination of that area was unremarkable. When it appeared that she had recovered, it was also not inappropriate for discharge to be contemplated.

Following the second syncopal episode in the emergency room, particularly because it occurred when she stood up after having been lying down and because of the changes in her EKG profile, admission to the hospital was appropriate, as was referral to a medical, rather than a surgical, consultant. In his opinion, if they had called a surgical consultant at that point, he or she would have looked for things such as rebound, abnormal x-ray, abnormal rectal exam or abnormal cardiac exam. Further, the surgeon would have been informed of Claimant's past history of GI problems (irritable bowel disease and diverticulitis), and would have been advised that her bowel sounds were normal, with no rebound or perineal signs. In Dr. Adler's opinion, this surgeon having been so informed, and knowing her prior history of hypertension and the fact that there had been a cardiac change, would have concluded that she was not a surgical patient at that time, but could consult with them again in the morning if deemed necessary.

Dr. Adler agreed that a visceral artery aneurysm is unusual and could not recall having ever encountered one in his years of practice. He stated that there are no particular signs or symptoms to differentiate them from other conditions or other types of aneurysms and, tragically, they are usually diagnosed on autopsy. He stated that 90 percent of gastric visceral artery aneurysms are not picked up until they rupture, and that in 70 percent of those cases, the person dies. On cross-examination, he acknowledged that while pain may be connected to the cause of a synoptical incident, pain itself is not part of the series of symptoms that define such an incident.

Dr. Adler was questioned about the hospital's failure to retest Mrs. Mathis' hematocrit, after her first test at approximately 2:30 a.m. resulted in a reading of 32.2, slightly below normal. He noted that this result was determined, while she was still in the emergency room, to be consistent with her prior readings. The hematocrit, he stated, essentially measures how many red blood cells are in the blood stream, and with no reason to suspect bleeding as the cause of her problems, there was no reasons to run successive tests for this measure. No retest was performed until 10:30, after she had arrested, at which time it had gone down from 31 to 7.

In order to establish a prima facie case of malpractice, the injured party must prove that the Defendant breached the standard of care in the locality where treatment occurred and that the breach was the proximate cause of injury (
see, McDermott v Manhattan Eye, Ear & Throat Hosp., 15 NY2d 20; Meiselman v Crown Heights Hosp., 285 NY 389). Medical professionals owe to their patients three basic duties: (1) the duty to possess the requisite knowledge and skills possessed by the average member of their profession; (2) the duty to use ordinary and reasonable care in applying such professional knowledge; and (3) the duty to use his or her best judgment in the exercise of such knowledge (Pike v Honsinger, 155 NY 201; Littlejohn v State of New York, 87 AD2d 951; Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804; Jacques v State of New York, 127 Misc 2d 769).
More than a mere honest error in professional judgment is required for liability to be imposed (
Nabozny v Cappelletti, 267 AD2d 623; Schrempf v State of New York, 66 NY2d 289; Pigno v Bunim, 43 AD2d 718, affd 35 NY2d 841), and "a bad result does not, ipso facto, support a claim for medical malpractice" (Schoch v Dougherty, 122 AD2d 467, 468, lv denied 69 NY2d 605). On the other hand, medical decisions that are not based upon careful or intelligent examination cannot be considered to be an exercise of professional medical judgment (Clark v State of New York, 99 AD2d 616; Bell v New York City Health & Hosps. Corp., 90 AD2d 270).
Ultimately, in this case, the allegations of negligence come down to questions about four specific decisions of the hospital's medical staff: Should a repeat hematocrit reading have been ordered while she was still in the emergency room? Should a sonogram, CT scan or abdominal tap have been ordered while she was still in the emergency room? Should the emergency room staff have referred Mrs. Mathis to a surgical, rather than a medical, service? Should the service to which she was referred have acted more promptly and had an attending physician evaluate her condition sooner?

I am willing to credit and accept the testimony of Claimant's expert that a different course of action, different decisions at these choice points, may well have resulted in a different and much more acceptable outcome for Mrs. Mathis and her family. Even if the specific diagnosis of a visceral artery aneurysm rupture was not made, it is evident that had the medical staff seriously suspected that abdominal bleeding, from whatever source, was the problem, different diagnostic procedures would have been pursued and, quite possibly, surgical intervention would have occurred much sooner. Indeed, none of Defendant's witnesses attempted to argue against this conclusion, and, as Dr. Szmalc acknowledged to the family at the time of their loss, it might have been possible to save her if the operation had been performed before the final, catastrophic rupture.

The issue before this Court, however, is not whether another course of action or different decisions could have saved Mrs. Mathis. What must be determined here is whether the actions and decisions of the hospital's medical staff, specifically those occurring between the hours of 5:00 a.m. and 9:00 or 10:00 a.m. on the morning of May 17th, constituted a breach of the physicians' duty of care to their patient. That duty, as mentioned above, is to possess the requisite knowledge and skills of their profession and to use ordinary and reasonable care and their best judgment in applying that knowledge.

While Claimant's expert, Dr. Futch, stated that he considered the initial hematocrit reading to be significantly low, the emergency room physicians were able to compare that reading, and other blood values, to those obtained for Mrs. Mathis during other hospitalizations and to find that those readings which were deviations from the norm (
i.e., from average readings) were, in fact, consistent and therefore "normal" for her. In some respects, this is a round-robin argument. If the doctors had ordered a subsequent hematocrit, they might have been alerted to the possibility of internal bleeding, but the reason such a test would have been ordered would be because they suspected internal bleeding. Was failure to order the test, under these circumstances, a departure from the professional medical standard of care? I think not.
There is at the very least a legitimate difference of expert opinion as to whether the failure to order this test, given the symptoms which Mrs. Mathis exhibited at the time, was such a departure (
see, Sciarabba v State of New York, 182 AD2d 892). The initial hematocrit reading was not low for Mrs. Mathis, and this fact was known to the doctors treating her. There were no other signs or symptoms clearly pointing to the possibility of any sort of bleeding. Dr. Futch is correct that no adequate cause was determined for her intermittent, although strong, complaints of abdominal pain. That pain, however, could have had many other causes, some of which were far more probable in a woman with a history of diverticulosis and other gastrointestinal problems and who acknowledged that she had not had a bowel movement for several days, whose x-ray showed an unusually filled colon, and who stated at one point that the pain had improved after the medicine she was given allowed her to move her bowels.
Moreover, it required some degree of speculation on the part of even Dr. Futch to conclude that, if the test had been repeated earlier, it would have actually made a difference in the diagnosis. While he believes that the hematocrit level would have been sufficiently lower to create a strong suspicion of internal bleeding if she had been tested between 5:00 a.m. and 9:00 a.m, there is no concrete evidence from which such a conclusion can be drawn. A slightly lower reading, in fact, might well have been explained by the dilution of her blood stream from the fluids she had been given. It cannot be malpractice to fail to order tests if the result of such tests would not have been productive or helpful (
Chapman v State of New York, 97 AD2d 975).
It goes without saying that if a retest of Mrs. Mathis' hematocrit levels would have had the effect posited by Dr. Futch, it is tragic and extremely regrettable that it was not performed. That does not make it malpractice, however, to fail to order it, particularly for emergency room doctors who are engaged in triage type decisions for a number of patients, when no need was indicated either by her current symptoms or by previous test results.

Those same considerations -- the emergency nature of treatment that is to be given by these doctors and the apparently non-critical, although distressing, nature of Mrs. Mathis' abdominal symptoms -- lead even more easily to the same conclusion with respect to the doctors' failure to considering ordering a sonogram or CT scan, or to carry out an abdominal tap. While one would hope that today, with the increased use of technology, ultrasound scanning is a more normal part of emergency room procedure in situations where the diagnosis is uncertain, it was quite clearly an extraordinary procedure in the Upstate emergency room in 1995. There was nothing in her symptoms or level of distress to suggest that such a procedure was needed immediately or that the results would have made a critical difference. Dr. Futch admitted, in fact, that a CT scan would not have differentiated between blood and other fluids in the abdomen. While, according to him, abdominal taps are performed fairly routinely by surgeons, they are nevertheless invasive procedures which, he concedes, may not have been within the expertise of emergency room doctors in 1995. In any event, with the other possible and even more likely explanations for the abdominal pain experienced by Mrs. Mathis and the absence of other symptoms pointing to abdominal bleeding, it seems highly unlikely that any physician would have approved this kind of procedure unless and until there was more reason to suspect that internal bleeding was the central problem.

With respect to the decision to refer Mrs. Mathis to a general medical team rather than a surgical team, I believe that the testimony of Dr. Adler accurately sums up the situation. Based on the complaints and the physical findings that were known at 5:00 a.m., hospital admission was certainly warranted, but there was little, if anything, to suggest that this was going to be a matter requiring surgery. The possible diagnoses considered most likely at the time -- vasovagal reflux resulting from pain, cardiac involvement, and possibly even a continuation of her pre-existing chronic gastrointestinal disorders -- would not have involved surgery or required a surgical consult.

It is true, as Dr. Futch states, that if the doctors had earlier suspected an abdominal aortic aneurysm rupture, the treatment for that condition would have resulted in appropriate treatment for the type of aneurysm rupture that, it was later learned, she was experiencing. But while cause and treatment of the two conditions may be similar, unfortunately -- and tragically in this case -- the earlier signs and symptoms of each condition are quite different. Mrs. Mathis exhibited none of the symptoms that would indicate an aortic rupture: severe back pain, persistent elevated heart rate, persistent low blood pressure, decreased blood flow to the legs, and decreased ability to move the legs. Consequently, her condition at that time did not signal either the likelihood of abdominal bleeding or the need for surgical intervention.

Finally, as to the delay of several hours between determining that Mrs. Mathis should be hospitalized and having her examined by an attending physician, I cannot find a departure from accepted medical practice under other circumstances. She was examined, by 6:00 a.m. if not earlier, by the MAR, who found nothing to suggest internal bleeding. Even when she was later examined by the attending physician, there was still no suspicion of the true nature of her illness, and there is no reason to believe than an earlier examination by the physician would have had any different results.

In short, there was simply no reason for the doctors to conclude that the situation was critical. Mrs. Mathis may have been uncomfortable, but she was not in extreme distress, as evidenced by her ability to sleep and rouse normally during the time that arrangements were made to transfer her to the sixth floor, and, except for the brief period when she was preparing to leave for home, monitors were attached to her, and they did not signal imminent danger. In fact, Mrs. Mathis herself, despite the fears she expressed earlier in the morning, was not unduly alarmed by the symptoms she was experiencing. As late as 9:00 a.m., she was anticipating a prolonged hospital stay and she suggested to the doctor that her complaints might have resulted from a particularly heavy meal the night before. Thus, while there was no justification for ignoring her condition and the possibility of serious illness, I can find nothing in the record to indicate that prior to her final collapse there was any information to suggest the need for extraordinary speed in determining the cause.

The unfortunate and tragic reality is that Mrs. Mathis suffered from a rare condition that simply is very difficult to detect in time for successful intervention. The undisputed testimony that 90 percent of gastric visceral artery aneurysms are not diagnosed until they rupture and that, following rupture, 70 percent of the patients die tells its own story. The symptoms exhibited by these patients do not clearly suggest the problem, and they are not similar to those of other conditions that would require the same treatment.

This situation is in sharp contrast to those cases in which liability has been imposed because symptoms are ignored and appropriate tests or consultations are not ordered over a period of weeks (
see, e.g., Larkin v State of New York, 84 AD2d 438; Windisch v Weiman, 161 AD2d 433). I also note that proceeding too quickly to surgery, without thorough investigation of possible diagnoses that could be resolved nonsurgically, can be the basis for a finding of liability (Brown v City of New York, 63 AD2d 635).
The failure of emergency room medical staff to accurately diagnose the cause of a patient's condition does not necessarily mean that the failure resulted from malpractice, even when the undiagnosed condition is one that is considered grave (
see, Perrone v Grover, 272 AD2d 312 [emergency physician's failure to accurately diagnose pericardial effusion is not malpractice]). This is not to say that the pressures of an emergency room absolve the medical staff of all errors. In the cases where liability has ensued in that setting, however, the negligent nature of the treatment provided, or withheld, is much more apparent than the arguably wrong, or at least unfortunate, decisions made here. In DeCoste v Champlain Val. Physicians Hosp. (147 AD2d 793, lv denied 74 NY2d 604), a patient with a history of hypertension and complaints of chest pain demonstrated excessively high blood pressure and produced abnormal EKG results, but he was nevertheless diagnosed with reflux esophagitis, without admission of a simple blood enzyme test that would have revealed the cardiac condition that caused his death twelve hours later. In Wolfe v Samaritan Hosp. (104 AD2d 143), a patient who was initially diagnosed with a viral infection collapsed while waiting for an ambulance to return him to his home. The emergency room physician who then examined him felt that he should be hospitalized but nevertheless (for reasons unexplained in the decision) released him. Later, his condition was correctly diagnosed as a subarachnoid hemorrhage and, although he received prompt treatment, he eventually died. Where, however, the medical staff's failure to take steps that would have resulted in an accurate diagnosis has been caused by the absence of symptoms or test results pointing in the correct direction, rather than ignoring those symptoms that do, the result must be different. A finding of liability cannot be based on hindsight in which conclusions about what should have been decided are based on facts that simply were unknown at the time decisions were actually being made (Oelsner v State of New York, 66 NY2d 636; Lederman v Lawrence Hosp., 202 AD2d 198).
There is no escaping the fact the events leading to the death of Mrs. Mathis were tragic and I believe, with hindsight, that each of the medical professionals who made one of the questioned decisions undoubtedly wishes that they had been inspired to take a step that might not have been warranted by the information before them, but that might have saved her life. Determination of liability or responsibility for this tragedy must be based, however, on what they knew at the time and whether their decisions were based on reasoned judgment in applying the knowledge and skills of their profession to the known facts. I conclude that their actions did, in fact, meet that standard.

The Chief Clerk is directed to enter judgment dismissing the claim.

All motions not heretofore ruled upon are now dismissed.


July 18, 2002
Rochester, New York

Judge of the Court of Claims

  1. [1]Some records refer to her as 60 or 61 years old.
  2. [2]Medical witnesses described this as a sudden, brief innervation of the abdomen and other organs by the vagus nerve.