New York State Court of Claims

New York State Court of Claims

GUDELL v. STATE OF NEW YORK, #2002-018-126, Claim No. 102493


The Court finds that defendant deviated from acceptable medical practice when defendant failed to timely diagnose and treat claimant's spinal hematomas which proximately caused claimant's permanent neurological injuries.

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'NEILL, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 3, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant brings this medical malpractice action after suffering an epidural hemorrhage following kyphoplasty surgery on her lower back. At trial, claimant limited her claim to the failure to timely diagnose and treat the post-operative epidural hemorrhage. The trial addressed both liability and damages.

In the spring of 1999, claimant, then 77 years old, began experiencing severe lower back pain. Her daughter, Susan Lyons, a registered nurse with whom claimant was living while she recuperated from open heart surgery,[1]
insisted that claimant seek treatment for her lower back problem. Claimant was reluctant to see a doctor because of a recent extended hospital stay[2] but agreed to see a chiropractor. Upon review of claimant's spine x-rays, the chiropractor refused to treat her. The x-rays revealed an old fracture at the T-4 and T-5 vertebrae and a compression fracture at T-12 and L-1. Mrs. Lyons began searching for a physician to treat her mother. She learned that Dr. Hansen Yuan headed the Spinal Research Department at SUNY Health Science Center, University Hospital (hereinafter SUNY), and she obtained a referral from claimant's primary physician to consult with Dr. Yuan.
On June 14, 1999, claimant and Mrs. Lyons met with Dr. Yuan at his spine clinic and brought claimant's x-rays. Dr. Yuan noted claimant's severe compression at the T-12 and L-1 level and suggested a relatively new experimental procedure called kyphoplasty being done at 10 university hospitals across the country. According to Dr. Yuan, claimant was an excellent candidate for the procedure, and he said he had obtained excellent results by using kyphoplasty in other cases.

This procedure was generally a one-day surgery, he explained, but given claimant's other medical concerns, she would be hospitalized for a few days. Since claimant took Coumadin, an anticoagulant, she would be admitted to the hospital two days before the surgery so her medication could be changed from Coumadin to Heparin. Although both medications inhibit blood clotting, they work differently. Coumadin builds up in the body and has a long-lasting effect, while Heparin works short term. Heparin is used for surgical patients because its effect can be reversed quickly and reinstated quickly giving the surgeon a window within which the patient will have a relatively normal clotting process.

The actual procedure Dr. Yuan would perform consisted of entering the patient's anterior vertebral structure via needles through her back. A balloon-like device is then inserted through a tube which, when inflated, creates a space where the vertebral structure has collapsed into which a bond cement filler (methyl-methacrylate) is placed to replace the original boney structure and which helps prevent further collapses. The doctor said claimant would have slight discomfort after the operation but the severe pain would be gone. Dr. Yuan indicated she could probably be discharged two days later. This time frame and expected result was attractive to claimant who then scheduled the surgery for July 1, 1999.

Dr. Yuan explained there was a one percent chance of paralysis as a result of the cement leaking into the wrong spinal area. Neither claimant nor Mrs. Lyons recalls him discussing an increased risk of post-operative bleeding, although Dr. Yuan testified that it was discussed and that he dictated a letter[3]
to Dr. Tulloch[4] with claimant in the room. The letter refers to claimant's post-operative bleeding after her heart surgery and states:
"There certainly is a risk that I have already explained to

Mary and also to Susan, namely that when you do any

procedure, because she is on Coumadin, bleeding is an issue."[5]

On June 29, 1999, claimant was dropped off at the SUNY hospital, and she walked in unassisted. Except for a delay to decrease the effects of claimant's Coumadin levels, the surgery proceeded as scheduled. On July 1, 1999, the operative notes indicate that there was some cerebral spinal fluid (hereinafter CSF) coming from the wound. According to claimant's expert, this is significant because a CSF leak requires penetration of the dura mater, the membrane which encases the CSF and spinal cord. To enter this membrane, the needle must pass through the epidural space which contains veins and arteries; if a vein or artery is punctured by the needle, an epidural hemorrhage could result. In other words, a CSF leak is a sign of increased risk of bleeding into the epidural space which can result in nerve damage. Dr. Yuan testified that because no blood came from the wound, he does not believe a vein or artery was punctured. After surgery, claimant's initial complaint of back pain and grogginess was no more than expected. The first notation in the post-operative progress notes[6]
was written at 5:30 p.m. on July 1, 1999. A neurological examination performed at that time showed claimant's calf and lower extremities to be functioning normally. The sufficiency of this examination and the neurological examinations performed on claimant over the ensuing 30 hours is in dispute.
Claimant's expert, Dr. Kevin Tracey, a Board Certified Neurosurgeon, explained that the first step in determining the cause of a neurological problem, is a complete neurological exam. The 5:30 p.m. examination given to claimant failed to include any testing of the upper legs and the "saddle"[7]
area. When a nerve root gets impacted, the resulting pain radiates in a predetermined pattern through the body which is called a dermatome. Neurological deficiencies also follow these dermatomes, and the individual nerve root being affected can be determined by the symptomatic area of the body.
After that initial examination, it is undisputed that the medical records reveal a progression of pain which differed from the level of pain anticipated after surgery. The pain increased and radiated which is indicative of possible nerve root compression. In brief, the records reflect:
• ab The nursing note covering the 4:00 p.m. to 11:00 p.m. shift

on July 1, 1999, refers to anterior thigh pain in addition to

claimant's backache. Darvon gave her some relief but she

was in pain three hours later.

• ab The nursing note from the 11:30 p.m. to 7:30 a.m. (July 1 and

2, 1999) said claimant was complaining of radiating leg pain.

She was given morphine which helped.

• ab At 6:35 a.m. on July 2, 1999, a resident, Dr. Wilson, noted

claimant now had bilateral thigh pain. Despite the thigh pain, the

neurological exam was performed only on the feet and calves.

• ab Claimant was also seen that morning by Dr. Connelly, a

resident in internal medicine, who noted she complained of bad

pain down her legs. Dr. Connelly continued claimant's lung

and heart medications.

• ab Nursing notes from 7:00 a.m. to 3:00 p.m., reflect that claimant

was very uncomfortable and moving all over her bed. Morphine

was given and she felt relief, but the second dose did not provide

any relief. The pain was mostly in claimant's left hip and down her

left leg. Dr. Jacquemin, an orthopedic resident who worked

under Dr. Yuan's supervision, was made aware of the situation.

Susan Lyons, claimant's daughter, was with her on July 2, and recalled that her mother's pain continued to increase throughout the day. Dr. Yuan visited claimant about 3:30 that afternoon. He requested that the Acute Pain Service evaluate claimant for an epidural block to alleviate her pain. An epidural block is administered by inserting a needle into the epidural space near the spine to inject an anesthetic and a small amount of steroids. Mrs. Lyons said Dr. Yuan never gave her an explanation for claimant's pain. No note was made in claimant's chart by Dr. Yuan on this visit.

The nurse practitioner from the pain service, Marguerite Walser testified at the trial that she visited claimant to assess her condition. She recalled claimant was in severe pain, moving about in the bed, which Dr. Tracey said is a typical response to neuropathic pain. In Ms. Walser's opinion, this was not typical post-operative pain because there was an abrupt onset, it was radiating and unlike post-operative pain, it was getting worse with time instead of better. Both Ms. Walser and Dr. Tracey felt these facts could indicate neurological pain caused by either a post-operative complication or increased post-operative movement. In any event, Ms. Walser found that claimant was not a candidate for an epidural block because she was on anticoagulants. As noted above, a needle can puncture a vein or artery in the epidural space thereby causing a hemorrhage which, in turn, can result in paralysis. Because claimant's medications prevent her blood from clotting, uncontrolled bleeding in the epidural space was a concern to Ms. Walser due to its potentially devastating effects. All of the medically trained witnesses, except Dr. Yuan, agreed that an epidural block is contraindicated when an epidural hemorrhage is suspected.

Dr. Tracey said the change in claimant's pain, to include thigh pain, as described in the nursing note of July 1 (4:00 to 11:00 p.m. shift) should have been a red flag. After back pain, thigh pain is the earliest symptom of a spinal hemorrhage. Given claimant's anticoagulant status, further diagnostic information
was warranted. As the progress notes from July 1 and 2 indicate, claimant's pain was extending down her legs, another symptom of nerve root irritation or damage caused by a spinal hematoma.
The progress notes of July 2, 1999 continued:
• ab 4:00 p.m. note by Dr. Jacquemin indicates severe bilateral

leg pain, posterior buttock to calf which started late in the morning

and is resistant to all but large doses of narcotics. The situation was

discussed with Dr. Yuan and the pain service which resulted in

a plan to treat the pain symptoms. "
Hold coumadin in case of need
for epidural block in future."[8]

Dr. Tracey testified and Dr. Jacquemin agreed that pain which is resistant or unaffected

by morphine can be caused by nerve root compression due to hematoma.

At the same time as he documented claimant's situation in the progress note above,

Dr. Jacquemin wrote a physician's order which read:

"No coumadin until approved by orthopedic service -

p[atient] may require epidural block for pain"[9]

According to Dr. Yuan, he contemplated the possibility of an epidural hematoma[10]
as the cause of claimant's pain when he spoke with Dr. Jacquemin around 4:00 p.m., July 2, 1999. He testified that the "hold coumadin" directive evidenced this consideration and the potential need for surgical intervention but the notes defy his position clearly denoting that an epidural block was considered not a second surgery.
The neurological exam Dr. Jacquemin performed at 4:00 p.m., tested claimant's quadricep muscles for strength for the first time. The result of that examination was a reduction in strength of those muscles to a four out of five. According to Drs. Tracey and Jacquemin, this indicates a possible neurological deficit, or it could be the result of pain or the amount of morphine claimant was given.

From the progress notes:
• ab At 4:00 p.m., Nurse Walser noted that due to claimant's low oxygen

saturation she would not give her a patient controlled pain device

as earlier contemplated.

• ab At 4:15 p.m., Dr. Jacquemin was called because claimant's oxygen

saturation was low. The amount of morphine claimant was given for

pain had impaired her ability to breathe sufficiently without assistance.

This is significant because narcotics suppress a patient's response to a neurological

exam so radiological testing should have been considered in diagnosing the cause of her pain

according to Dr. Tracey.
The first written indication that a possible post-operative spinal hemorrhage existed came in the early evening of July 2, 1999.
• ab At 5:15 p.m., Dr. Connelly, an internal medical resident, said he had consulted

with Dr. Jacquemin earlier about turning off claimant's Heparin drip.

Dr. Connelly went on to say:

"Given Mrs. Gudell's [history of] mitral valve

replacement bioprosthetic and aorta valve and

[atrial fibrillation], she is at a high risk of having

an embolic event i.e., stroke. If she is bleeding

around surgical site and neurologic compression

is evident, withholding the anticoagulation would

be acceptable given the risk for cord compression.

Agree [with] holding her coumadin in case need for

further interventions or epidural catheter for analgesia..."[11]

There was disagreement about whether Dr. Connelly recommended stopping both anticoagulants, Coumadin and Heparin or recommended that the Heparin be continued. Claimant's expert said that if a spinal hemorrhage was a concern, it was a deviation from the standard of care not to discontinue both medications as they allow increased bleeding which could add to any existing hematoma. Dr. Yuan interpreted Dr. Connelly's note to mean the Heparin should be continued because of the concern of stroke or other catastrophic embolic event. In resolving this issue, great weight is given to the testimony of Dr. Jacquemin, as the only doctor who was present that evening, and who the Court found to be a credible witness. Dr. Jacquemin could not specifically recall the conversation with Dr. Connelly, but he interpreted the note to mean in a risk/benefit analysis, it would be acceptable to withhold the Heparin if there was a concern about spinal cord compression caused by a hemorrhage.
Mrs. Lyons was with claimant the entire afternoon of July 2,
until approximately 8:30 p.m. Inclusive of her own nursing experience, she said she has never seen anyone in as much pain as her mother was on that day. She asked Dr. Yuan about the intense pain but received no real answer. When Dr. Jacquemin was in the hallway near claimant's room, Mrs. Lyons confronted him and asked repeatedly what was going on with her mother given her severe symptoms. Dr. Jacquemin said "she's a little old lady who's having difficulty handling her post-op discomfort."[12] Mrs. Lyons pointed out that her mother was suffering more than discomfort and that it was out of the ordinary. She then asked if they could do a CT scan or other diagnostic testing to which Dr. Jacquemin replied a CT scan would not show anything.[13]
According to Dr. Tracey, during the afternoon and evening of July 2, a number of issues are arising. First, claimant's pain is not relieved by large doses of morphine which should be noted by the doctors as indicative of neuropathic pain. The amount of morphine given has affected her ability to breathe unassisted; and therefore, would also prevent proper assessment of the claimant's neurological condition during a neurological examination. Because claimant's examination at 4:00 p.m., on July 2 showed a possible neurological deficit, radiological tests[14]
such as a CT scan or an MRI should have been ordered to assist in diagnosing the cause of claimant's pain. This was not done. Additionally, Heparin was continued which prevents claimant's blood from clotting thereby adding to the size of the hematoma. There was nothing in the medical records which would indicate that Dr. Yuan was concerned about a spinal hemorrhage. In fact, Dr. Yuan's request to have claimant evaluated for an epidural block contradicts his trial testimony on this point.
Dr. Yuan also testified that a CT scan would not have been helpful; it would not have told him what he needed to know. When asked about a CT scan with a myelogram,[15]
the doctor testified that claimant's anticoagulation medications would have to be discontinued and her blood clotting be normal before a radiologist put a needle into her spine. This, however, directly contradicts Dr. Yuan's testimony about the acceptability of an epidural block for claimant which also requires a needle to be inserted into the spinal area. On cross-examination. Dr. Yuan's testimony became so convoluted on this point, the Court cannot determine whether or not he actually considered doing the CT test. The medical records only reference an epidural block as a possible future procedure.
At 6:15 p.m., on July 2, 1999, the chief orthopedic resident, Dr. Palomino (who did not testify) noted claimant was still in pain. Her neurological exam fails to mention any test of claimant's quadricep strength (for mobility) which could have been compared with Dr. Jacquemin's earlier results. She continued morphine, kept the Heparin dosage low and said claimant's neurological status would be monitored. She returned at 7:00 p.m. and said that the morphine provided claimant some pain relief but her oxygen saturation was low again. At 8:00 p.m., Dr. Palomino added a note to claimant's chart but did not perform any exams that were documented.

In the portion of claimant's medical records[16]
which sets forth the physician's orders, Dr. Palomino, at 7:30 p.m., ordered claimant's anticoagulation reading from Heparin be maintained at a specific level. This, according to Drs. Tracey and Jacquemin would be contraindicated if a spinal hemorrhage was being considered as the cause of claimant's pain.
There were no doctor visits from 8:00 p.m. on July 2, 1999 until 1:45 a.m. on July 3, 1999. The nursing notes covering 3:30 p.m. to 11:00 p.m. on July 2 indicate that claimant was initially writhing in pain. She was administered Decadron, a steroid. She then became sleepy and difficult to arouse. According to her daughter, she was out of it with morphine. Furthermore, claimant's oxygen saturation fell when she removed the oxygen mask she was given. Heparin was continued with a specific goal for her anticoagulation status "per Dr. Yuan."[17]

At 1:45 a.m., on July 3, 1999, the orthopedic resident on call, Dr. Kevin Setter, was paged to claimant's room by the nurse to evaluate her leg weakness. Claimant complained that she could not move her left leg and she still had pain in her left hip and buttocks. The neurological exam performed by Dr. Setter, for the first time, included a rectal exam. The results of the full examination showed no motor activity in her left foot and calf area and barely discernable activity in her upper left leg. The upper right leg again showed a possibility of some neurological deficit. Claimant was unable to feel the doctor's gloved finger during the rectal exam, and Dr. Setter detected decreased tone in claimant's muscle. He testified he knew that if the symptoms he found were caused by a spinal hemorrhage, the spinal cord needed to be decompressed and that time was a factor.

Dr. Setter testified he was not informed prior to the 1:45 a.m. page regarding claimant's possible declining neurological functions, or he would have monitored her condition. His notes reflect a possible bleed secondary to anticoagulants. He discussed claimant's condition with Dr. Yuan by telephone after the examination, and as a result, called for a medical consult regarding claimant's Heparin dosage.

The internal medicine resident, Dr. Fischi, arrived in claimant's room at 2:00 a.m. He took claimant's vital signs and wrote:

"Called to eval[uate] [patient] [because of] poss[ible] spinal

bleed resulting in [left] leg paralysis. P[atient] unable to

move leg and [decreased] sensation...Recommend

holding Heparin if bleed is suspected. Consider CT

[scan of the] spine to confirm."[18]

Around this time, the Heparin was discontinued by Dr. Setter.[19]
Nothing further was done. Dr. Yuan testified he directed Dr. Setter to prepare claimant for surgery. Dr. Setter testified that had Dr. Yuan directed him to prepare claimant for surgery at 1:45 a.m., he would have made certain notes in her chart such as ordering no further food or drink by mouth or scheduling the operating room. None of these notes are in the record, and no CT scan was ordered as recommended by Dr. Fischi. Dr. Setter recalls Dr. Fischi telling him that the Heparin could be stopped for 24 hours. There was no discussion with Dr. Fischi regarding emergency surgery which Dr. Setter said would have occurred if Dr. Yuan had made such a request. The records reflect that preparation for that emergency surgery was not begun until after 7:00 a.m. after Dr. Yuan arrived.
Dr. Tracey testified that when there is loss of function in a patient's legs, as was noted at 1:45 a.m. by Dr. Setter, it is a medical emergency and "minutes count." At this point, according to Dr. Tracey, it was a deviation from the standard of care not to perform a CT scan to confirm the existence of a spinal hematoma, and a deviation for Dr. Yuan or another orthopedic attending physician not to examine claimant and discuss surgery with her and/or her family.

At 4:15 a.m., Dr. Setter checked claimant again, she still could not move her left leg and there were possible neurological deficits in her upper right leg. He again called Dr. Yuan and noted he would monitor her closely.

Susan Lyons was called by Dr. Setter or another resident at approximately 2:15 a.m., and was advised her mother could not move her left leg. Mrs. Lyons arrived at the hospital at approximately 3:15 a.m., and found her mother sedated and minimally responsive to verbal or tactile stimulation. Mrs. Lyons spoke with the resident about claimant's deterioration but got no answer. At about 5:00 a.m., Mrs. Lyons recalls one of the nurses finding claimant could not lift her right leg.

Dr. Yuan testified that he arrived at the hospital on July 3, 1999, at his usual time, between 6:00 and 7:00 a.m., and called the operating room to schedule an evacuation procedure for claimant. The physician's orders reflect that at 8:15 a.m., Dr. Palomino entered the "NPO" or no food or drink by mouth directive in anticipation of claimant's surgery. This comports with Mrs. Lyons' recollection that at approximately 8:00 a.m., she was told her mother was being taken in for emergency surgery. Claimant was given vitamin K and fresh-frozen plasma to counteract the anticoagulation medication. Mrs. Lyons, claimant's health care proxy, signed the consent forms but was never told the reason for the surgery. She believed that some cement must have leaked and needed to be removed; nothing was said by either Dr. Yuan or Dr. Palomino about hematomas that morning.

Dr. Yuan performed laminotomies[20]
at the T-12 level and found dark hematoma blood on both sides. Because of the amount of blood found, another laminotomy was performed at the L-1 level which also had a hematoma. He testified that they were relatively wet and probably occurred over a couple of days.
Dr. Tracey testified that the nerve roots for the bowel and bladder functions are "exquisitely sensitive"and that each time a neurological exam is performed on a patient, those nerve roots should be checked. This can be accomplished in a few ways such as gently tugging on a Foley catheter (if a patient has one) to see if the patient can feel it, or testing for sensory response to the saddle area, including a perianal wink test[21]
or performing a rectal exam. Claimant had a Foley catheter, yet this test was never performed; nor were tests of the saddle area conducted. A rectal examination was not performed until 1:45 a.m. on July 3, by Dr. Setter after paralysis of claimant's left leg. In Dr. Tracey's opinion, the inadequate neurological testing was a deviation from the standard of care.
Dr. Yuan testified that orthopedists do not perform some of these tests, neurologists do; yet no neurological consult was sought prior to the second surgery. Dr. Jacquemin acknowledged that there was no testing of claimant's bowel or bladder function for sensitivity until July 3, although a deficit in either area could indicate a spinal hematoma. He agreed with Dr. Tracey that a full neurological examination should have been done.

Dr. Tracey opined that given claimant's symptoms, a radiological test should have also been performed. There was no reason not to order a CT scan. Claimant's hematoma may have been disclosed by a CT scan because it was so large that morphine, in doses high enough to inhibit claimant's breathing, failed to relieve the pain. Dr. Jacquemin said if a spinal hematoma was suspected a CT scan should have been ordered, but it was not necessarily a deviation from the standard of care not to have ordered one.

Dr. Tracey concluded that the failure to timely diagnose claimant's condition resulted in claimant's permanent neurological deficit. He explained that as the blood seeps into the epidural area, it forces the nerve roots into less and less space. This caused the initial pain claimant felt first in her thighs and then, as the amount of blood increased, down her legs. Claimant's blood thinning medications were responsible for increasing the size of the hematoma. The pressure from the blood eventually caused the nerves to function inadequately then to stop functioning which resulted in paralysis of claimant's legs early on July 3, 1999. Some of the nerves were severely injured but did recover, as claimant has regained the feeling and use in her right leg. Some of the nerves, however, died leaving claimant with no feeling in her left leg and with bladder and bowel incontinence. The length of time the nerves are compressed and the amount of pressure on them affect the ultimate permanency. It was Dr. Tracey's opinion that from the onset of symptoms, the nerves need to be decompressed within 6 to12 hours to restore bladder and bowel function in women, and 12 to 24 hours to avoid leg paralysis. He said the onset of symptoms occurred the night of July 1 and morning of July 2. The second evacuation surgery was not performed until approximately 10:00 a.m., the morning of July 3; more than 33 hours[22]
after the first symptoms presented.
Although Dr. Yuan agreed that the first sign of nerve irritation in the epidural area would be pain, he maintained that the source of irritation could be a hematoma or from the kyphoplasty surgery. He did agree that if the cause is a hematoma as the pressure in the epidural area increases, a threshold will be reached at which point there will be motor or sensory loss. Dr. Yuan's testimony wavered between his deposition and trial over which loss would occur first, but he consistently maintained that once a neurological deficit occurred, surgical intervention should occur as soon as possible to avoid permanent injury. He referred to the "literature" reflecting a 12 hour window within which to perform surgery after the first indication of a neurological deficit; however, he stated that the statistics did not support that time frame, and the best course of action, according to him, was to act expeditiously. The triggering factors for expeditiously performing surgery from Dr. Yuan's perspective did not occur until 1:45 a.m., on July 3 when claimant lost sensation and motor activity in her left foot and calf. Despite his trial testimony that he suspected a possible hematoma on the early evening of July 2, claimant was maintained on anticoagulation medication, and Dr. Yuan discounted Dr. Jacquemin's finding of a reduction in claimant's quadricep strength that same evening as a sign of motor loss. Dr. Yuan's position was that a finding that claimant's quadricep strength was a four out of five was not dramatic because she was so sedated. The difficulty with this position is that claimant was sedated because of the severe pain she was suffering which all of the medical witnesses, including Dr. Yuan, testified was not normal post-operative pain. Moreover, even if claimant's loss of quadricep strength at 4:00 p.m. on July 2 was not significant, as Dr. Yuan testified, no one re-tested her quadricep strength until 1:45 a.m. July 3, almost 10 hours later. The symptoms claimant presented as early as July 2 should have alerted her treating physicians that more needed to be done than just treating her pain.

In order to establish a cause of action for medical malpractice, it is necessary to show that the doctor's treatment deviated from accepted medical practice and that the deviation proximately caused claimant's injuries. (
Salter v Deaconess Family Medicine Ctr., 267 AD2d 976, 977) Claimant has met her burden here. The Court finds, relying on Dr. Tracey's testimony that defendant deviated from acceptable medical practice when, despite a high risk of post-surgical bleeding, uncharacteristic pain, and a loss of strength and ultimately sensation in her lower extremities, defendant failed to timely diagnose and treat claimant's spinal hematomas which proximately caused claimant's permanent neurological injuries.
Dr. Yuan knew that claimant presented a higher risk for bleeding problems resulting from surgery.[23]
CSF had leaked from claimant's wound following the surgery - an additional reason to suspect post-operative bleeding. Claimant exhibited uncharacteristic symptoms after surgery; including increasing radiating pain, yet no complete neurological tests were performed to diagnose the problem, not even the simplest bladder and bowel sensory tests. No neurological consultation was requested, even after claimant began to lose neurological functioning. Given claimant's pain and the level of morphine administered, radiological tests should have been performed, particularly a CT scan. There was no reason a CT scan could not have been done; and if it was ordered on an emergency basis, Dr. Yuan said it could have been done within an hour. Although there was no guarantee that a CT scan would reveal the hematomas, Dr. Tracey opined that a hematoma that was causing as much pain as claimant experienced would more likely than not be seen by a CT scan. Even after Dr. Yuan claims he suspected a hematoma was compressing claimant's spinal cord on July 2, and despite his tesimony that surgery to evacuate the hematoma should be done as soon as possible, more than eight additional hours passed after 1:45 a.m. on July 3 before the surgery was performed. Although Dr. Yuan tried to explain that the delay in performing the surgery was due to claimant's anticoagulation status caused by the Heparin, the regular periodic testing of claimant's clotting ability indicated she had more normal clotting at 2:30 a.m., only 45 minutes after Dr. Setter's examination revealed marked motor loss than later that morning at 7:30 a.m. All of the doctors agreed that the evacuation surgery came too late to prevent claimant's loss of bowel and bladder control and her left leg deficits.
The delay in
diagnosing the hematoma caused claimant to suffer intense pain and caused the nerves, compressed by the presence of the blood, to stop functioning. As a result, claimant has permanently lost some feeling in her right leg, complete loss of feeling and limited use of her left leg, and bladder and bowel incontinence.
Claimant was hospitalized after the removal of the hematomas until July 9, 1999, at which time she entered SUNY's rehabilitation unit. She stayed there until August 31, 1999, when she went to St. Camillus Rehabilitation Center for additional assistance. Through her efforts and determination, claimant succeeded in recovering the use of her right leg but not all sensation.

Prior to her admission to SUNY in July for the kyphoplasty procedure, claimant had suffered from atrial fibrillation and congestive heart failure which required surgery, including mitral valve replacement in April of the same year. As noted above, she took Coumadin daily. Claimant also had hypothyroidism requiring the use of Synthroid also on a daily basis. Although the medical records indicate claimant has been short of breath occasionally and in his deposition,[24]
her family physician said she has COPD,[25] there is no evidence claimant requires any regimen of medication as a result. She also has osteoporosis but takes no regular medication other than Fosomax, once a week. Claimant took Paxil prior to July 1999. No regular medication is required as a result of the State's negligence and none will be considered in the awards for past or future medical expenses.
Prior to the heart surgery, claimant was very active, walking two miles each day. She also enjoyed gardening and traveling. After the heart surgery, claimant suffered from regular back pain associated with her existing vertebrae and compression fractures. The kyphoplasty procedure itself was successful, and claimant would have no pain from the fractures corrected by the surgery. She does have other fractures and would inevitably feel some pain; however, claimant still suffers from the same level of back pain which she suffered prior to the kyphoplasty procedure and it limits her ability to sit and stand for any length of time. She also regularly experiences sharp pain and burning in her left leg which lasts for 18 to 24 hours at a time. This pain, attributable to the State's negligence, re-occurs at least once a week and is so severe it prevents claimant from sleeping. Claimant's mobility has also been significantly reduced. She can now only walk about 100 feet without a quad cane or walker before she must rest. She is unsteady on her feet and occasionally falls down which due to her osteoporosis places her at greater risk of further injuries. Claimant must now rely on a wheelchair for any extended outings and she no longer travels outside the community at all. Her gardening activities are very restricted. This loss of mobility and independence is the result of the State's negligence.

It is undisputed that claimant is incontinent as a result of the spinal hematomas. She cannot feel when she goes to the bathroom and; therefore, must use adult Attends and Poise pads. Even with these safeguards, claimant checks herself in the bathroom every hour as she has had accidents while in public. This has restricted claimant's social life; she requires close proximity to a bathroom at all times. Claimant is also subject to urinary tract infections.

Despite doubling her diapers and pads each night, claimant wets her bed. She wakes up with her nightgown soaked, and the bedding needs to be laundered daily. Due to claimant's unsteadiness on her feet, she prefers not to shower unless someone else is in her apartment, although she often must do so. She receives assistance from a home health aide two days per week, for one-and-one-half hours each day. Ms. Lyons, claimant's daughter, has taken on the responsibility of attending to claimant's needs when no home aide is present. Although claimant can drive short distances, Ms. Lyons also helps with claimant's shopping, medical appointments, dental appointments, and other required travel.

Based upon the evidence before the Court, claimant is awarded $175,000 for past pain and suffering, and $300,000 for future pain and suffering.

Susan Keating, a nurse consultant, prepared a life plan cost analysis for claimant.[26]
She included in it a breakdown of claimant's medical needs and the extent of daily help she will require due to her limitations. Ms. Keating projected the costs of supplies and medical assistance to meet claimant's anticipated future needs. Although defendant disputed aspects of the life plan, it did not introduce any independent evidence of alternatives. Based upon the evidence presented, the Court accepts many of the expenses in the life plan as reasonable as set forth below.
In addressing claimant's future needs, the Court finds her life expectancy is 9.5 years from the date of trial as stipulated to by the parties and based upon the Life Expectancy Tables (1B PJI 3d, Appendix A). The life plan reflects the likely changing needs of claimant over this span of time as she continues to age and given her health conditions. The Court has adopted the expenses set forth in the life plan for the costs of claimant's needed medical equipment and supplies. Also adopted were the projected costs of claimant's future medical treatment with Dr. Tulloch, her primary care physician, who monitors her for complications as a result of her incontinence and her orthopedist, Dr. Sullivan. Dr. Sullivan's treatment is necessary due to claimant's uneven gait as a result of her left leg paralysis.

The Court has not included claimant's future treatment with her cardiologist since her heart condition preceded the State's negligence. There was no explanation given for claimant's need for on-going diagnostic blood work, so the Court cannot include those costs in its award. Similarly, bone density testing bi-annually is not associated with the State's negligence and will not be included in the costs.

Claimant is currently living independently with assistance from her daughter and a home health aide two days per week. The life plan proposes a continuation of claimant's independent living with additional assistance from a home health aide for four to six hours daily at a cost of $15 per hour. The Court finds that given claimant's current health and needs, additional assistance from a home health aide for four hours each day will provide the help she needs to maintain independent living. Claimant's need for this additional assistance over the next four years is solely attributable to the State's negligence.

For claimant's long-term care, the life plan presents two options. Both options presume, based upon claimant's age and health, that she will need additional assistance with the passage of time. Option one would allow claimant to remain in her home with a home health aide for up to 24 hours per day. Option two presents the cost of residence at an adult home care facility at $2,500 per month with possible escalation to full nursing home care at a cost of $5,000 to $6,000 per month. With the understanding that there is nothing to predict claimant's future needs with complete accuracy, the Court finds it is likely that claimant's needs will increase and she will require greater daily assistance. Accordingly, the Court has increased the hours of assistance from a home health aide to 10 hours per day for three years of claimant's remaining life expectancy and included the cost of full nursing home care for the last two-and-one-half years of her life. However, since claimant's pre-existing health conditions and age will also contribute to her need for added care, the Court has attributed only 50% of the costs of the increased need for a home health aide and nursing home care to the State.

Based upon the foregoing, the Court grants claimants the sum of $284,765 to meet her future medical expenses and daily care expenses.

The Court has received the parties proposed findings of fact and conclusions of law and has included into this decision those findings of fact and conclusions of law it deems essential to this decision in compliance with CPLR 4213(b).

Accordingly, the Court grants claimant damages as follows:

Past medical expenses and pain and suffering:
Medicaid lien[27]
(less items not attributable to State) $ 20,205.26
Medicare lien[28] $ 52,230.07
Pain and suffering $175,000.00
Total $247,435.33

Future medical expenses and pain and suffering:
Pain and suffering - $300,000.00

Medical expenses and living assistance expenses -
Total $584,765.00[29]

Since the future damage award exceeds $250,000 a structured judgment is required (
See, CPLR 5031). Judgment shall be held in abeyance pending a hearing pursuant to CPLR Article 50-A. The parties are encouraged to agree upon an attorney's fee calculation and the discount rate to be applied to formulate a structured settlement of their own. If no agreement can be reached, each party shall submit a proposed judgment in writing conforming to the requirements of CPLR Article 50-A within 60 days of the date of service of this Decision upon them by the Clerk of the Court. A hearing will thereafter be scheduled at the mutual convenience of the parties.
It is hereby ORDERED, that to the extent that claimant paid a filing fee, it will be refunded pursuant to Court of Claims Act §11-a(2).

All motions previously made but not heretofore ruled upon are DENIED.

April 3, 2002
Syracuse, New York

Judge of the Court of Claims

[1]This included valve replacement and insertion of a pacemaker.
[2]Claimant had a post-operative complication of excessive bleeding after her open heart surgery resulting in a one-month in-patient stay.
[3]Exhibit 2
[4]Dr. Tulloch is claimant's primary care physician.
[5]Exhibit 2
[6]Exhibit 1C, SUNY records 6/29/99 - 8/31/99
[7]Dr. Tracey defined this as the parts of the body that would touch a saddle when horseback riding.
[8]Exhibit 1-C
[9]Exhibit 1-A
[10]The term hemorrhage means the act of bleeding, a hematoma is the blood that results.
[11]Exhibit 1-C
[12]Quotes are from the trial tapes.
[13]Dr. Jacquemin does not recall this statement but acknowledges he must have said it as two people witnessed it. Before claimant left the rehabilitation section of SUNY, Dr. Jacquemin told her what he had said and apologized. He testified that he never would have said that if he suspected a spinal hemorrhage.
[14]All medical witnesses agreed that claimant could not have the test which would provide the most information, an MRI, because of her pacemaker. They also all agreed that a CT scan alone may or may not have shown an epidural hematoma.
[15]A myelogram would require dye to be injected into the spinal fluid which would aid in seeing a hematoma via the CT scan.
[16]Exhibit 1-A
[17]Exhibit 1-C
[18]Exhibit 1-C
[19]From the notes reflecting physician's orders, it appears that the Heparin was stopped at 1:30 a.m. on July 3, prior to Dr. Setter examining claimant. From the progress notes at 1:45 a.m., Dr. Setter indicates that the Heparin will be stopped for now. So it is unclear exactly when the Heparin was discontinued.
[20]This involves removing a small piece of the lamine bone which partially surrounds the epidural space.
[21]This simply involves touching the anal area to see if the muscle contracts. It can include asking the patient if she feels the contact.
[22]This time frame is calculated based upon the notes from the first nursing shift (11:30 p.m. - 7:30 a.m.) from July 1 - 2, 1999 which described claimant's radiating thigh pain.
[23]See Exhibit 2
[24]Exhibit 3
[25]COPD is the abbreviation for "chronic obstructive pulmonary disease."
[26]Exhibit 10
[27]Exhibit 6
[28]Exhibit 7
[29]The amount granted has been amended sua sponte to conform to the proof.