Claimant seeks damages for injuries he sustained as a result of the State's
alleged failure to adhere to the standard of care in performing a CT scan in the
Radiology Department of SUNY Health Science Center Hospital (hereinafter
Upstate) on April 8, 1997. Claimant also alleges that the State failed to
properly treat him after he suffered
in his left arm during the
Prior to April 8, 1997, claimant was diagnosed with cancer and underwent a
lengthy course of chemotherapy to prevent the metastasis of the cancer. To
monitor claimant's condition, CT scans were performed on claimant every
two-to-three months. On April 8, 1997, claimant was scheduled to have a CT scan
of his abdomen and pelvic area.
After the usual preparations, claimant was escorted into the examination room
for the procedure. The control room has a leaded glass window overlooking the
adjacent examination room. To begin the procedure, an angiocatheter is inserted
into the patient's antecubital vein by a doctor or nurse. Attached to the
angiocatheter is plastic tubing which, in turn, is connected to a power
injector. The injector delivers contrast material into the patient's venous
system, ultimately traveling to the abdominal organs to aid in detecting any
tumors or growths. The contrast material makes the organs more opaque thereby
easier to see on the films. The material is absorbed differently by abnormal
tissue allowing for better identification of tumors.
In the control room, a technologist monitors the patient through the glass
window while operating the injector. Staff is not allowed to remain in the
examination room during the procedure because of radiation exposure. Therefore,
after the angiocatheter is inserted and connected to the tube, the doctor or
nurse leaves the patient alone in the examination room. There is a two-way
intercom system between the rooms so communication is possible with the patient.
Additionally for claimant's procedure, a "smart scan" was used which displayed
computer generated images and a progress graph. This is monitored by the staff
members in the control room who determine when the diagnostic portion of the
scan should be started based upon the intensity of the opacification they see on
There are two types of contrast material which can be injected into the patient
for the CT scan: ionic and non-ionic. The ionic is less expensive but more
injurious if there is an extravasation. Ionic material was used in claimant's
Once in the examination room, the nurse had difficulty inserting the
angiocatheter into claimant's left arm, and Dr. Maurice
had to assist her. Although there are
some differences in the witnesses' recall of what occurred during the procedure
and the timing of the events, the parties agree that the ionic contrast material
extravasated into claimant's arm during the scan. The most accurate evidence of
when this occurred during the procedure is found in the graph contained on
Exhibit B. The Court will rely upon the graph more heavily than the witnesses'
Dr. Oehlsen testified that the "smart scan" began about 10:58 a.m., and shortly
thereafter the power injector began injecting the contrast material. The
contrast material is delivered at one of two possible speeds, either 1.8 or 2
cc's per second. It is unknown which speed was used for claimant. According to
the technologist, William Garrisi, the injection begins about 30 seconds before
the smart scan starts; and according to the
the contrast was being injected for
about 35 to 40 seconds after the scan started when the extravasation
Dr. Oehlsen noted the rapid drop-off
on the graph which he knew meant there was a problem, and he told the
technologist to stop the power injector. It took a short time, 17 to 20 seconds,
to terminate the injection after the abnormal drop was observed. Much testimony
was elicited about the amount of contrast material that was extravasated. Based
upon the information above and Dr. Oehlsen's estimate, the Court finds that
between 30 and 40 cc's of material was extravasated.
Dr. Oehlsen checked claimant and felt a slight firmness in his left arm
concluding some extravasation occurred. Claimant said his arm "felt funny." Dr.
Oehlsen called Dr. Michael Huggins
claimant. Dr. Huggins and Nurse Cheri Jones applied hot packs to claimant's arm
and sent him home about 20 minutes later with instructions to call if he had any
problem and to return the next day to see Dr. Huggins.
On his way out of the hospital, claimant stopped to see his wife who worked in
the Pediatric Oncology Department of the hospital. Claimant's own oncologist
checked his hand for blood circulation before he left the hospital. Claimant
then made the 45-minute trip home.
When he arrived home claimant went up to bed; he was feeling awful and his arm
was very painful. His daughter, Erin, was called home to be with him. Erin
testified that claimant was in terrible pain and she applied hot towels to his
extremely swollen left arm. Claimant complained that the towels were not hot,
even after Erin reheated them. Erin called her mother a couple of times and the
decision was made that claimant should return to the hospital. Erin drove
claimant and they arrived at the hospital at approximately 3:00 p.m.
Claimant, his wife and daughter, his oncologist, Dr. Huggins, and numerous
surgeons met in the Radiology Department, and an x-ray was taken of claimant's
arm. He continued experiencing extreme pain and recalls his arm looking like a
large watermelon. It was determined that he would need surgery to drain the
ionic contrast material. Claimant had difficulty understanding the extent of the
incision which would be necessary so the orthopedic surgeon, Dr. Loftus, drew a
line down the length of his arm.
The surgery was performed that day and claimant was hospitalized for three
days. After the initial surgical draining, his incision was left open and
further draining was performed the next day. On the third day, the incision was
stitched closed. Claimant complains of constant pain in his arm and loss of
strength since the extravasation. Claimant is left-handed.
Claimant presented the videotaped testimony of Seth N. Glick,
an expert in radiology, who testified
that there were several deviations from the standard of care in the manner in
which claimant's procedure was conducted and in his treatment. In reaching his
conclusions, Dr. Glick accepted Dr. Oehlsen's version of events, specifically
that upon noting a sharp drop off in the amount of contrast material that was
reaching the claimant's aorta, Dr. Oehlsen stopped the injection, checked on
claimant's well-being and then finished the scan. He also accepted the
defendant's position that after the extravasation the claimant's arm showed no
swelling although it was firmer than his right arm. Dr. Glick testified that
the use of ionic contrast material with the power injector without someone next
to the claimant throughout the injection deviated from the standard of care.
Either the material should have been injected by hand so the medical provider
could feel the resistance caused by extravasation and stop the injection
immediately or non-ionic material should have been used.
The defense expert, Dr. Jeffrey L. Lautin, a board certified radiologist,
testified that no malpractice occurred during the claimant's CT scan. Dr.
Oehlsen properly tested the angiocatheter before the power injection began,
thereby confirming that the contrast material would flow into a vein.
Extravasation is a known risk when doing this type of test and there is an
increased risk for patients with a history of chemotherapy which can cause
weakened or fragile veins. The staff conducting the test acted appropriately for
the standard of care.
Dr. Lautin and Dr. Glick agreed that no one should be in the room with the
patient during the scan itself because of the danger posed by the cumulative
effect of the radiation. Also, they both agreed that usually observation of the
patient during the scan is done from the control room. Dr. Glick also
acknowledged that the power injector provided a uniformity of opacification, a
benefit in reading the results, which is not obtained by hand injection of the
Given the fact that extravasation is a known risk and that the experts had
differing opinions on the appropriate method of handling that risk, the Court
finds that claimant has failed to prove that the State was negligent in the way
the scan was conducted. The time it took to stop the power injector was within
an acceptable range. A difference of opinion as to how a procedure should be
performed is not a sufficient basis for liability (Centeno v City of New
York, 48 AD2d 812, 813, affd 40 NY2d 932; Johnson v Yeshiva Univ.,
42 NY2d 818, 820; Jacques v State of New York, 127 Misc 2d 769,
However, the State clearly breached its duty to claimant in its treatment of
the extravasation. The experts agreed that the American College of Radiology
(hereinafter ACR) Guidelines
and represent the standard of care which should be followed. Under the heading
of evaluation and treatment of extravasation, the guidelines indicate,
"[b]ecause the severity and prognosis of the injury are difficult to determine
on initial evaluation of the affected site, close clinical follow up for several
hours is essential."
Clearly, claimant was not
observed for several hours after extravasation nor were x-rays taken.
Even where a deviation from accepted medical practice has occurred, the trier
of fact must still determine whether that deviation was a proximate cause of
claimant's injuries. (Hughes v New York Hosp.-Cornell Med. Ctr., 195
AD2d 442, 443-444; Henkel v Shields, 204 AD2d 276) In this case, it was
uncontradicted that the extravasation of at least 30 cc of ionic contrast
material was significant. The failure to observe claimant for several hours
after the procedure resulted in a delay in the surgical drainage of claimant's
arm. Dr. David Goldblatt, a board certified neurologist, who examined claimant
on June 19, 2000 and testified on his behalf, indicated that claimant suffered
nerve and muscle tissue damage as a result of the swelling of the tissues in his
left arm for an extended period of time at a location where there was little
room for expansion. Dr. Goldblatt found that claimant's musculocutaneous nerve,
and at least minimally, his radial nerve were permanently damaged as a result of
The defense argued that since claimant returned to the hospital within a few
hours, no damage was attributable to claimant being sent home. That argument is
belied by the fact that besides the time at home, more time had to be spent
after claimant returned to the hospital performing x-rays and having various
medical consultations in order to determine the extent of the injury and the
appropriate course of action. The delay in the drainage of claimant's arm,
which, according to Dr. Goldblatt, caused the tissue and nerve damage, was
substantially the result of defendant's failure to follow the ACR guidelines
which the experts agreed represent the standard of care. Therefore, the State is
responsible for the injury to claimant's arm caused by the delay in treating
him, as well as the pain and suffering he endured after he was sent home.
The testimony of both claimant and his daughter indicate he was in significant
pain from 1:00 p.m. until surgery at 6:30 p.m. He also had his arm left open for
drainage and to reduce the swelling until the morning of April 10, 1997. The
post-operative records reflect claimant complainted of pain in his left arm and
the nursing notes also indicate claimant complained of pain during his hospital
On April 10, 1997, claimant was again taken to the operating room where his arm
was irrigated, debrided, and sutured closed. He was discharged form the hospital
on April 11, 1997.
Claimant testified that he is in constant pain which includes a sharp pain in
his left biceps and burning and prickling in his left forearm. He has lost
strength in his dominant arm although he continues to run his florist business.
He now has high school students employed to assist him with heavy lifting. He
also needs to compensate for his limitations. His other activities such as
playing golf have been curtailed, but those limitations began when his cancer
was diagnosed. His physicians have not restricted the use of his left arm in any
way. Claimant has a jagged scar running down the inside of his left arm from his
biceps to above his wrist.
extravasation is a risk of the procedure, claimant may have had to undergo
surgery had the defendant not been negligent. However, the Court finds the scar
to be more extensive as a result of the negligence.
Based upon his examination, Dr. David Goldblatt testified that claimant's left
upper arm is smaller than his right arm. In strength testing, claimant's left
arm measured a four-out-of-five, five being normal strength. An assessment of
four means "good strength."
not bend his arm up to touch his shoulder indicating some loss of function.
Claimant also suffers causalgia, persistent burning pain with dysesthesia, an
unpleasant alteration or a reduction of sensation. The pain, loss of function
and dysesthesia are permanent.
Based upon the foregoing, the Court awards $90,000 for past pain and suffering
and the extensive scarring of claimant's left arm, and $60,000 for future pain
and suffering, given a life expectancy of eighteen
No evidence of medical expenses,
past or future, was presented and there was no claim for loss of earnings. The
derivative claim for claimant's spouse was discontinued at the commencement of
LET JUDGMENT BE ENTERED ACCORDINGLY.