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.
Footnote (claimant name)
STATE OF NEW YORK
Footnote (defendant name)
DIANE L. FITZPATRICK
FARACI & LANGE, LLPBy: STEPHEN G. SCHWARZ, ESQUIRE
Attorney General of the State of New York
By: MICHAEL R. O'NEILL, ESQUIREAssistant Attorney General
April 3, 2002
See also (multicaptioned
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
insisted that claimant seek treatment for her lower back problem. Claimant was
reluctant to see a doctor because of a recent extended hospital
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
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
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
to Dr. Tulloch
with claimant in the room. The
letter refers to claimant's post-operative bleeding after her heart surgery and
"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
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
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
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
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
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
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
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
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. "
in case of need
for epidural block in future."
Dr. Tracey testified and Dr. Jacquemin agreed that pain which is resistant or
by morphine can be caused by nerve root compression due to
At the same time as he documented claimant's situation in the progress note
Dr. Jacquemin wrote a physician's order which
"No coumadin until approved by orthopedic service -
p[atient] may require epidural block for
According to Dr. Yuan, he contemplated the possibility of an epidural
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
From the progress notes:
• ab At 4:00 p.m., Nurse Walser noted that due to claimant's low
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
saturation was low. The amount of morphine claimant was given for
pain had impaired her ability to breathe sufficiently without
This is significant because narcotics suppress a patient's response to a
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
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
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
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
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
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
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
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
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
In the portion of claimant's medical
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
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.
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
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."
Around this time, the Heparin was discontinued by Dr.
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
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
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
Dr. Yuan performed laminotomies
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
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
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
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
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.
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
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
her family physician said she has COPD,
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
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
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
Accordingly, the Court grants claimant damages as follows:
Past medical expenses and pain and suffering:
(less items not attributable to State) $
Pain and suffering
Future medical expenses and pain and suffering:
Pain and suffering - $300,000.00
Medical expenses and living assistance expenses -
Since the future damage award exceeds $250,000 a structured judgment is
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
HON. DIANE L. FITZPATRICK
Judge of the Court of Claims
This included valve replacement and insertion
of a pacemaker.
Claimant had a post-operative complication of
excessive bleeding after her open heart surgery resulting in a one-month
Dr. Tulloch is claimant's primary care
Exhibit 1C, SUNY records 6/29/99 -
Dr. Tracey defined this as the parts of the
body that would touch a saddle when horseback riding.
The term hemorrhage means the act of
bleeding, a hematoma is the blood that results.
Quotes are from the trial tapes.
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.
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.
A myelogram would require dye to be
injected into the spinal fluid which would aid in seeing a hematoma via the CT
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.
This involves removing a small piece of the
lamine bone which partially surrounds the epidural space.
This simply involves touching the anal area
to see if the muscle contracts. It can include asking the patient if she feels
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.
COPD is the abbreviation for "chronic
obstructive pulmonary disease."
The amount granted has been amended sua
to conform to the proof.