New York State Court of Claims

New York State Court of Claims

McEVOY v. STATE OF NEW YORK, #2002-018-155, Claim No. 98717


After trial, judgment is awarded to claimant. The State is responsible for the injury caused to claimant's arm as a result of the State's failure to follow the ACR guidelines which represent the standard of care.

Case Information

CHRISTOPHER J. McEVOY The Court has amended the caption sua sponte. The derivative claim for claimant's spouse was discontinued at the commencement of trial.
Claimant short name:
Footnote (claimant name) :
The Court has amended the caption sua sponte. The derivative claim for claimant's spouse was discontinued at the commencement of trial.
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:
October 15, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


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 extravasation[1] in his left arm during the procedure.

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 the images.

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 procedure.

Once in the examination room, the nurse had difficulty inserting the angiocatheter into claimant's left arm, and Dr. Maurice Oehlsen[2] 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' memories.

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 graph,[3] the contrast was being injected for about 35 to 40 seconds after the scan started when the extravasation occurred.[4] 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[5] to examine 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, M.D.,[6] 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 contrast material.

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, 771).

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[7] are authoritative 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."[8] 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 delay.

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 stay.

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.[9] Because the 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."[10] Claimant could 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 years.[11] 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 trial.


October 15, 2002
Syracuse, New York

Judge of the Court of Claims

[1]Extravasation is defined as "to force out or cause to escape from a proper vessel or pass by infiltration or effusion from a proper vessel or channel...into surrounding tissue." Merriam Webster's Medical Desk Dictionary, 265 [1996]
[2]Doctor Oehlsen, a resident in radiology at the time, was not initially assigned to claimant's care.
[3]Exhibit B.
[4]This is indicated by the sharp drop off of the "enhancement" starting at the highest number 1 on the graph.
[5]Dr. Huggins was unavailable for trial; he moved out of state after the incident.
[6]Exhibits 16 and 23.
[7]Exhibit 21
[8]Exhibit 21, p. 31
[9]See exhibits 24, 25, and 26.
[10]All quotes are from the trial transcript or the Court's trial notes.
[11]PJI Vol. 1B, p. 1463