New York State Court of Claims

New York State Court of Claims

JERZAK v. STATE OF NEW YORK, #2002-018-194, Claim No. 99070


Claimant established only a mere difference of opinion among medical providers, and failed to meet her burden of proof. Claim is dismissed.

Case Information

JENNIFER K. JERZAK HASKINS The Court has sua sponte amended the caption to reflect the claimant's proper name due to her recent marriage.
Claimant short name:
Footnote (claimant name) :
The Court has sua sponte amended the caption to reflect the claimant's proper name due to her recent marriage.
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:
November 25, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant seeks damages in this matter alleging causes of action in medical malpractice, negligence, and lack of informed consent. This decision addresses both liability and damages.

In the summer of 1996, claimant, age 22, had an abnormal pap test result and then on August 9, 1996, under general anesthesia had a diagnostic D & C (dilation and curettage) performed at the Cayuga Medical Center in Ithaca, New York. She was diagnosed with endometrial cancer. While still in that facility, the anesthesiologist, Dr. John Tashman told claimant and her parents that he had difficulty intubating her but was successful on the second attempt. He noted in claimant's chart that she was a "difficult intubation."[1]
On August 15, 1996, Dr. Tashman sent claimant a letter[2] for her future use indicating she was difficult to intubate[3] and recommending she obtain a medical alert bracelet to advise others of the potential problem.
Claimant was referred to Doctors Gary Eddy and Jesse Aronowitz at SUNY Health Science Center (hereinafter Upstate) for radiation therapy for the treatment of the endometrial cancer. As part of the treatment, Dr. Eddy recommended a cesium implant in which radiation pellets are surgically implanted in the patient's endometrial cavity. Thereafter the patient must remain on her back in bed for three days. A complete hysterectomy would eventually follow.

Claimant endured five to six weeks of external radiation treatments and prepared for the cesium implant surgery by meeting with Dr. Eddy and participating in a pre-admission anesthetic evaluation at Upstate. The evaluation record[4]
prepared on October 3, 1996 states that during the August D & C, claimant was difficult to intubate.
The person who prepared her pre-admission anesthetic evaluation report told claimant to bring Dr. Tashman's letter with her on the day of surgery, October 9, 1996. Claimant and her parents forgot the letter that day but offered to retrieve it if it was needed. Two board-certified anesthesiologists handled claimant's case that day; Dr. Carlos Lopez, the attending anesthesiologist, and Dr. Carla Bassett, who was at Upstate to obtain additional education in her speciality.[5]
At trial, the anesthesiologists acknowledged their awareness of Dr. Tashman's letter and its contents. Dr. Lopez performed a physical examination of claimant on the day of surgery which also indicated to him that she would be a difficult intubation.
Immediately prior to surgery in the holding area, Doctors Lopez and Bassett met with claimant and her parents to discuss the anesthetic options available to her. There was conflicting testimony about the preoperative conversations regarding those options; however, the evidence is clear that claimant refused any method of anesthetization that would not produce a loss of consciousness. In other words, she insisted upon general anesthesia despite the fact that both doctors and her parents recommended she have regional anesthesia, specifically a spinal injection, thereby avoiding intubation. Dr. Lopez testified that he also discussed an awake intubation that is "when the patient is essentially awake you either do a direct laryngoscopy...or mostly we do it under fiberoptic guidance."[6]
Claimant and her parents deny receiving any information from Dr. Lopez regarding an awake intubation.
Dr. Bassett, in the preoperative notes, wrote:

"apparent difficult intubation in Cayuga. Letter not

brought in. Suggested spinal and family/pt [patient]

refused. Stated that it could be a matter of life or death.

Refused an awake intubation although I stated that

we would wake her up after a look if unsuccessful."[7]

The Court finds that claimant was advised of other options to general anesthesia, and that the other options were preferable to general anesthesia. However, claimant emphatically refused anything other than general anesthesia. Given the evidence, the Court finds that no further explanation of the alternative procedures would have changed claimant's mind.

Before discussing the events which occurred in the operating room on October 9, 1996, the role of the anesthesiologist, some tools and drugs used will be described. Dr. Robert S. Dorian, a board-certified anesthesiologist, testified on behalf of the claimant. He explained two areas on which anesthesiologists focus when involved in surgery; airway management and drugs and their effects. Dr. Robert L. Tiso testified for defendant as an expert, and he gave similar testimony regarding the tools and drugs used by anesthesiologists.

Airway management means ensuring the patient gets oxygen during the surgical procedure. Dr. Dorian explained and demonstrated numerous tools available to obtain and/or control a patient's airway. One method of getting oxygen into the patient is by a mask and bag where air or gaseous drugs are forced into the lungs. As long as the patient's airway is open this is a viable method. Another common technique is direct laryngeal intubation where the doctor looks into the patient's throat with a scope and places an endotracheal tube down between the vocal cords. This tube is the conduit for air and drugs. A similar technique is fiber optic intubation. The doctor has a small telescope on a flexible wire which can be maneuvered down the patient's throat. The doctor has a view of the patient's anatomy via the telescope to assist with placement of the tube. A Bullard scope works similarly except it has a solid blade, not a flexible wire. Laryngeal mask airways (hereinafter referred to as LMA's) can also be used for intubation. These devices fit into a patient's mouth with one piece that blocks the esophagus and another that provides an opening through the vocal cords. They also have a collar which can be inflated to move soft tissue, like the tongue, away from the airway to prevent blockage. The LMA's can be placed without first viewing the vocal cords which must be done during a direct laryngoscopy.

In addressing drug administration, Dr. Dorian explained that there are three components for anesthesiologists: 1) to remove pain; 2) to render unconsciousness; 3) to paralyze. Various drugs can be used, in combination, to achieve whatever result the anesthesiologist needs.

The drugs used by Doctors Lopez and Bassett were the following:
Generic Trade Effect of Drug
Midazolam Versed An anxiolytic used to relieve anxiety.
Propofol Diprivan An IV anesthetic used to induce
unconsciousness. This is fast-acting

and dissipates quickly.

Halothane Fluothane An inhalation agent used to induce
unconsciousness. This is slow-acting and lasts longer than Propofol.
Fentanyl Duragesic A narcotic given to blunt the gag

Lidocaine Xylocaine A local or topical anesthesia used to
eliminate pain or numb the area.

Glycopyrrolate Robinul Used to decrease the secretions in the
Succinylcholine Chloride Anectine An ultra-short lasting muscle relaxant.

Dr. Bassett started preparing claimant for surgery in the holding area by giving her certain medications; Midazolam to help her relax, Glycopyrrolate to reduce the secretions in her mouth, and Lidocaine by mask to numb her throat. After administering those drugs, Doctors Lopez and Bassett then faced placing claimant under general anesthesia, necessitating intubation with the knowledge that claimant's anatomy would make this difficult. According to Dr. Lopez, based upon the known difficulties intubating claimant, he planned an asleep, spontaneously breathing intubation which is when the patient is put to sleep without paralysis so she can breathe on her own. Under those circumstances, if the intubation fails, the patient is not deprived of oxygen. The expert witnesses, including Dr. Dorian, agreed that this was an acceptable procedure when dealing with a patient with a difficult airway.

By administering Lidocaine by mask, the amount of the drug the patient receives is difficult to quantify because it is inhaled in gaseous form. As they proceeded with claimant into the operating room, Dr. Bassett told Dr. Lopez she did not think claimant received enough Lidocaine to be effective. Dr. Lopez testified that Lidocaine is not usually used with general anesthesia, and he was not relying on this drug in order to perform the intubation; therefore, the amount claimant received did not concern him.

In anticipation of a difficult intubation, Doctors Lopez and Bassett prepared a difficult airway cart. Dr. Lopez explained that the cart contained different apparatus such as different sized laryngoscope blades, different sized handles for the blades, intubating LMA's, regular LMA's, combitube, transtracheal jet ventilation, items for fiberoptic intubation, a Bullard scope, and a surgical airway kit. Dr. Lopez also alerted the Ears, Nose and Throat (hereinafter ENT) surgeons of claimant's difficult airway to ensure a quick response if they were needed.

Upon claimant's arrival into the operating room, the anesthesiologists continued to prepare her for surgery by first oxygenating her, a procedure which increases the percentage of oxygen in the patient's lungs, to prevent a drop in her oxygen levels during intubation. The administration of the Lidocaine, Midazolam, Glycopyrrolate were completed prior to claimant entering the operating room. Claimant was next given Fentanyl to minimize her gag reflex shortly after her arrival in the operating room, then Propofol was titrated [8]
into her bloodstream via syringe to induce unconsciousness quickly while Halothane, a longer acting agent, was given to her through a mask. Approximately five to eight minutes later, after the Propofol and Halothane were given, and while monitoring claimant's blood pressure, oxygen level, CO2 level and ventilating her with a mask,[9] the doctors decided to attempt a direct laryngoscopy.[10]
The claimant's anesthesia record reads:

Patient identified, monitors applied - 18 gauge angiocath R arm

Preoxygenation 5 min, gradual induction with Propofol. Able

to ventilate with mask DL [direct laryngoscopy] w/Mac 2, Mac 3[11]

difficult view of posterior cords - pt. moved, coughed anesthesia

deepened w/propofol/halothane mask ventilation in progress

but getting difficult to ventilate - Decision made to wake pt

up and attempt awake intubation - pt increasingly difficult to

ventilate- laryngospasm - sux [succinylcholine] 80 mg.

given to break spasm - difficulty continues - DL no vocal cords

visualized Sp O
2 Decreasing to 80's repositioned head,
repositioned airway - still unable to ventilate adequately -

call for help/ENT DL again attempted w/Miller 2, 3, ENT arrives

decision made to start emergency surgical airway (trach)

2 9[decreased] to + [less than] 70. BP remains 98 to 130.
Heart rate 120 to 140 - surgical airway completed positive

2 SPO2
increases to 95% within 20 seconds. Position

check by fiberoptic guidance lasted app. 4-5 minutes total.

Case discussed w/ Dr. Eddy & ENT original surgery aborted full

tracheostomy planned instead - pt. begins to breath on her

own/move externally 0945 Kefzol 1gm IV
10:50 BP
Admittedly, Dr. Lopez completed much of this document after surgery; however, it does outline the events that occurred in the operating room that morning. According to the testimony, before performing the laryngoscopy, Doctors Lopez and Bassett tested claimant for her depth of unconsciousness. They did this by brushing a finger against her eyelash, pulling on her jaw, and checking her heart rate, respiration and blood pressure. These tests, although by all accounts somewhat unreliable, indicated claimant was sufficiently anesthetized to begin the laryngoscopy. Dr. Bassett then looked into claimant's throat with the laryngoscope to view her vocal cords before inserting the endotracheal tube. The insertion of an instrument into a patient's throat can be more stimulating than a surgical incision. On the second look, claimant was not deep enough under the anesthesia at that time because she coughed and moved. Dr. Bassett testified that claimant then had a laryngospasm[13]
which was broken by her forcing air into claimant's lungs through the mask by squeezing the attached bag. Approximately six minutes after starting the Halothane, Dr. Bassett felt claimant's lungs become stiffer (by the feel of the bag). Dr. Lopez believed claimant was again experiencing laryngospasm. At about this time, Succinylcholine Chloride was administered, and Dr. Lopez took over and attempted to insert oral airways as a means of getting oxygen to claimant. When this was unsuccessful, Dr. Lopez called the ENT surgeons to open a surgical airway.
In order to establish a medical malpractice cause of action, claimants must prove (1) a deviation or departure from acceptable medical practice, and (2) that such departure was the proximate cause of the injury or damage (
Amsler v Verrilli, 119 AD2d 786; Holton v Sprain Brook Manor Nursing Home, 253 AD2d 852, lv denied 92 NY2d 818). An error in judgment is not a sufficient basis to find liability, where the provider exercises his or her judgment in choosing from more than one medically acceptable alternative (Oelsner v State of New York, 66 NY2d 636; Schrempf v State of New York, 66 NY2d 289, 295; Ibguy v State of New York, 261 AD2d 510; Martin v Lattimore Rd. Surgicenter, 281 AD2d 866; PJI [3d ed] 2:150). It must be shown that the medical provider's choice of treatment was not within the range of acceptable medical standards; and as a result of that deviation, claimant suffered injuries (Ibguy v State of New York, supra; Weinreb v Rice, 266 AD2d 454).
According to claimant's expert, Dr. Dorian, Doctors Lopez and Bassett deviated from the standard of care in the following manner:
• ab They did not thoroughly explain to claimant her anesthesia options.
• ab They proceeded with the surgery without obtaining the letter or record from Dr. Tashman; nor did they speak with him.

• ab They did not administer enough Lidocaine to desensitize claimant's throat.

• ab They waited too long after the Propofol was given on the first direct laryngoscopy attempt.

• ab They failed to follow the American Society of Anesthesiologists' Difficult Airway Algorithm adopted by Upstate, when claimant lost her ability to


The Court will address each of the asserted deviations from the standard of care. As previously noted, based upon the claimant's testimony and that of her parents it is clear that no further information would have persuaded claimant to permit any alternative anesthetizing method suggested by either Dr. Lopez or Dr. Bassett. Therefore, even if they failed to thoroughly explain the options to claimant, that omission was not a proximate cause of her injuries.

Claimant's position that Doctors Lopez and Bassett deviated from acceptable medical standards by failing to get Dr. Tashman's letter or hospital record or speak with him is untenable. The testimony clearly established that Doctors Lopez and Bassett knew claimant had a difficult airway and planned her intubation accordingly. The experts agreed that the decision to do an asleep, spontaneously breathing intubation was an appropriate plan and different from Dr. Tashman's anesthetic procedure. Dr. Tashman used Succinylcholine to paralyze claimant's muscles, thereby eliminating claimant's ability to breathe on her own. Dr. Tashman also gave claimant a bolus Propofol injection to produce a deep unconsciousness. Doctors Bassett and Lopez determined, based upon claimant's intubation history, that they wanted to avoid paralyzing claimant's muscles so that in the event they needed to reverse the effects of the anesthesia quickly, claimant would be able to breathe independently. Moreover, the Upstate doctors decided to administer the Propofol to put claimant into a deep sleep but did so by titration because they did not want claimant to suffer apnea, to stop breathing, which is a risk of a bolus injection. The evidence clearly supports that Doctors Lopez and Bassett used their best medical judgment in deciding which anesthesia procedure to follow based upon claimant's intubation history. Their choice differed from Dr. Tashman's procedure as set forth above. Therefore, their failure to speak with Dr. Tashman or get the Cayuga Medical Center records was not malpractice.

The Court also does not find that the doctors' failure to administer more Lidocaine was a deviation from the standard of care. Doctors Bassett and Lopez were not relying on the Lidocaine to perform the unconscious intubation; rather, their purpose for the administration of Lidocaine in the holding room was to permit an awake intubation should claimant change her position. Claimant next asserts that the first or second laryngoscopy attempts occurred after the Propofol was no longer effective but before the Halothane was equilibrated. Claimant's expert, Dr. Dorian opined that the Propofol should have been bolused[15]
with the first direct laryngoscopy attempt within two to three minutes while it was still at peak effect. This position seems to contradict his statement that an anesthesiologist titrates drugs so that the patient's breathing never stops.[16] In other words, Dr. Dorian, with the benefit of hindsight, changed the anesthesia plan for claimant which he previously agreed was a medically acceptable choice. The Court finds that the decision to titrate the Propofol was a medical judgment and not negligence by defendant's employees.
The events that occurred over the next several minutes were interpreted by Dr. Dorian differently than they were explained by Doctors Lopez and Bassett. Despite Dr. Dorian agreeing that the anesthesia record[17]
was a good representation of what happened in the operating room, he determined that claimant went into a laryngospasm immediately. The record disputes that, as does the testimony of Dr. Lopez. The Court finds that the laryngospasm occurred during the second attempt to view claimant's vocal cords. As discussed below, the effectiveness of the various devices to open claimant's airway depends upon the reason for the airway blockage and those suggested by Dr. Dorian were inappropriate or ineffective for laryngospasm.
Dr. Dorian testified that it was a deviation from the standard of care not to wait 15-to-20 minutes after the Halothane was started to take the first look into the patient's throat. Doctors Tiso, Lopez and Bassett all testified that claimant had been given sufficient amounts of medications to be deep enough under anesthesia to be viewed. Dr. Tiso, in particular, explained that the drugs given to claimant have a synergistic effect so that an anesthesiologist's clinical judgment and observations of the patient are more important than how much time has elapsed. After thorough review of the medical testimony and the documentary evidence, the Court finds claimant has failed to meet her burden of proving the defendant was negligent by the doctors attempting a direct laryngoscopy when they did. Specifically, Doctors Bassett and Lopez checked claimant's clinical signs by the standard methods: eyelash test, jaw thrust, and a slight drop in blood pressure and heart rate.[18]
Dr. Dorian acknowledged that there was no other test to be done. However, Dr. Dorian also testified that it was inappropriate for an anesthesiologist to use clinical judgment to determine depth of anesthesia. If that were the case, why did all of the anesthesiologists testify about the clinical signs and tests they use to judge the patient's condition? The tests would be unnecessary if, as Dr. Dorian proffered, only waiting the specified time mattered. He further stated that because Succinylcholine was not being used, it was even more crucial to wait a specific period of time for the Halothane to equilibrate. This raises the question, again, of why anyone uses tests to determine depth of anesthesia, since when not using Succinylcholine, only time should be considered.
Dr. Tiso said one should not rely on the clock alone but should use one's best clinical judgment. Doctors Bassett, Lopez and Tiso all believed that claimant had a sufficient amount of anesthetic drugs, especially given their synergistic effect, when the first attempt at direct intubation was made. Since claimant did not react, they were correct. Also, since claimant did not react and given the drugs she had received, it was not unreasonable for a second attempt to be made at which time claimant did react. Viewing claimant a second time was not negligent.

Claimant's last contention, that the failure of Doctors Lopez and Bassett to follow the ASA Algorithm, must also fail. An algorithm is a recommended path to follow in certain circumstances. Claimant has failed to prove that the doctors should have followed it and did not. Three algorithms[19]
were admitted into evidence. The one adopted by Upstate is the ASA Algorithm. The point of beginning is having a patient with a difficult airway. From there, the algorithm branches to either "recognized" or "unrecognized." Because the doctors knew of claimant's earlier intubation difficulties, the path they needed to follow would be that of "recognized" difficult airway. From there, the choices lead to either "awake intubation choices" or "uncooperative patient." Claimant refused an awake intubation and is, therefore, considered an "uncooperative patient." This path leads to "induce general anesthesia" which Doctors Lopez and Bassett did, but they then reached the next step on that path - "fail to intubate" which continues on to "call for help" and "mask ventilation adequate." From this point, the path diverges depending upon whether the answer to the adequate ventilation is yes or no. Claimant argues that the doctors should have followed the path in the "no" direction which then offers various alternatives such as LMA or transtracheal jet ventilation. Dr. Lopez indicated he followed the algorithm down the "yes" path because, initially, there was adequate mask ventilation. It was not until claimant had what Doctors Lopez and Bassett believed was a laryngospasm that the mask ventilation became inadequate. Failing to intubate after two more attempts, the algorithm options are either "awaken patient" or "tracheostomy."
Because of the laryngospasm, claimant was given succinylcholine which paralyzed her. Awakening her while paralyzed would not help her breathe but would be traumatic. Clearly, Dr. Lopez followed the algorithm, just not in the direction claimant felt he should have gone. Had Dr. Lopez followed the claimant's path choice, he would have faced the option of using an LMA or transtracheal jet ventilation (hereinafter TTJ), neither of which would be useful in breaking a laryngospasm; and in fact, the TTJ is contraindicated under such circumstances. Dr. Dorian believed the airway obstruction was not laryngospasm, but soft tissue such as claimant's tongue blocking her upper airway, and either an LMA or TTJ would have been appropriate. However, Dr. Lopez placed oral airways in claimant's pharynx which would have moved claimant's tongue and soft tissue out of the airway. Despite this, claimant was still not receiving oxygen; therefore, Dr. Lopez concluded she was in laryngospasm.

As far as the allegation of having called the ENT's too soon, the Court notes that claimant's oxygen saturation dropped rapidly from 94% through the 80's to 68% within a couple of minutes. Had the ENT's not been called, the claimant may have been brain-damaged or dead.

Claimant has established only a mere difference of opinion among medical providers, which is not sufficient to establish liability (
Weinreb v Rice, supra; Ibguy v State of New York, supra; Darren v Safier, 207 AD2d 473; PJI [3d ed.] 2:150). Claimant has failed to meet her burden of proof.
Accordingly based upon the foregoing, the claim is DISMISSED. LET JUDGMENT BE ENTERED ACCORDINGLY.

November 25, 2002
Syracuse, New York

Judge of the Court of Claims

[1]Exhibit 2
[2]Exhibit 2A
[3]Intubation is the process of placing a tube into a patient's trachea, usually through the mouth in order to administer drugs and provide oxygen.
[4]Exhibit 1, the second page 294, during trial it became apparent that some pages in the hospital record had duplicate numbers; therefore, reference will be made either to the title of the document and page number or reference the page number with the designation of first or second.
[5]She was listed on some documents as a resident despite her board certification.
[6]Quotes are from the trial tapes unless otherwise noted.
[7]Exhibit 1, second p. 294.
[8]The drug was introduced slowly into her bloodstream, not all at once.
[9]Dr. Bassett was at claimant's head with a mask over claimant's face through which Halothane and oxygen flowed and with a bag which can assist with a patient's breathing.
[10]A direct laryngoscopy is when a metal or plastic laryngoscope is placed into the patient's mouth and down the throat to view the vocal cords in order to place the endotracheal tube.
[11]The Mac 2 and Mac 3 reference the type and size of the laryngoscope blade used for viewing the vocal cords.
[12]Exhibit 25A and 28A. Anesthesia record p. 294.
[13]This is a reflex action which closes the vocal cords and consequently the patient's airway as well.
[14]Equilibrate means to make equal across all the different body compartments.
[15]See footnote #19, page 12
[16]Transcript at page 479
[17]Exhibit 25A
[18]The drop in blood pressure and heart rate was mentioned by Dr. Dorian in his review of depositions and was credited by him as an indication to Doctors Lopez and Bassett that claimant was affected by the drugs.
[19]Exhibit 3, 4, and 5.