New York State Court of Claims

New York State Court of Claims

PARKS v. STATE OF NEW YORK, #2003-018-204, Claim No. 102591


After trial, the Court finds that defendant's failure to properly read and advise claimant's physician of an abnormal MRI was negligent and a proximate cause of infant claimant's injuries and defendant is 100% liable.

Case Information

SHEILA PARKS, as Parent and Natural Guardian of ZEBULON PARKS
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
By: MICHAEL R. O'NEILL, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
July 11, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant[1]unless otherwise noted. seeks damages from the State for injuries sustained as the result of negligence and/or medical malpractice committed at the State University Hospital of New York Health Science Center (hereinafter University Hospital).

Mrs. Parks, claimant's mother, testified that claimant was a very healthy child overall; however after he turned five, claimant suffered from repeated ear infections. On August 26, 1998, his ear infection was not responding to antibiotics, and Dr. Minz, one of the pediatricians in the Brighton Hill Pediatric Group admitted him to University Hospital. Claimant was dehydrated, and the doctor suspected he had mastoiditis, an inflammation of the mastoid bone behind the ear. A culture was taken and as a result, the antibiotics were changed. Claimant was discharged on September 5, 1998. Despite receiving intravenous antibiotics at home, on September 8, 1998 he was re-admitted to the hospital due to recurrent fever with headaches and vomiting. A CT scan was ordered which showed improvement of the mastoid area, but Dr. Linda Imboden, claimant's regular pediatrician, was concerned about his nutrition.

On September 10, 1998, Mrs. Parks related to Dr. Imboden that claimant had complained of pain in his left eye the previous day. The next day he had pain in his eye, sharp enough to make him cry. Claimant also told his mother he could only see "half" of things. An ophthalmology resident, Dr. Meehan, examined him but found nothing wrong with his eyes. Claimant told Dr. Meehan that he saw black lines through the middle of things. Dr. Imboden suggested an MRI which was performed on Friday, September 11, 1998 between 11:00 p.m. and midnight. On September 12, 1998, Dr. Imboden's associate, Dr. Rosser, saw claimant at University Hospital and checked on the MRI results. A person identifying himself as a doctor related that the MRI films were normal; and based upon that determination, Dr. Rosser discharged claimant.

Dr. Ja-Kwei Chang, a radiologist from University Hospital, testified that no attending radiologist would have been working from 9:00 p.m. on Friday until Monday morning, and that only a radiology resident would have been there. Dr. Chang read claimant's MRI films on Monday, September 14, 1998, and saw a blood clot in the right sigmoid sinus on the right side of his head. Dr. Chang dictated a report, called the floor to see if claimant had been released and also paged the resident who ordered the test. Ultimately, he never spoke to anyone about his findings.[2] The MRI report was transcribed and then finalized on September 18, 1998. Dr. Imboden received the report on September 23, 1998.

On September 14, 1998, Mrs. Parks called Dr. Imboden's office and scheduled a follow-up visit as instructed. Claimant had follow-up visits with the Infectious Disease Clinic on September 16, 1998, with the ENT Clinic on September 19, 1998, and with Dr. Imboden on September 21, 1998.

On September 19, 1998, Dr. Imboden called Mrs. Parks to advise her to start claimant on a vitamin. During the call, Mrs. Parks voiced concern because it appeared to her that claimant's eyes would cross on occasion, or he seemed to be focusing behind the person to whom he was talking. On September 21, 1998, Dr. Imboden checked claimant's eyes with the eye chart. His right eye was 20/30; it was impossible to tell if he could not see with his left eye or if he just did not cooperate. He failed the muscle balance test, and although no papilledema was noted, relying on Mrs. Parks' concerns, Dr. Imboden referred claimant to Dr. Leon-Paul Noel, a pediatric ophthalmologist. Claimant was examined by Dr. Noel on September 23, 1998, and the doctor found "marked papilledema with exudates and hemorrhages."[3] Dr. Noel explained that papilledema is a swelling of the optic nerve disc caused by increased intra-cranial pressure. Dr. Noel said he has his own rating system for papilledema and "marked" is the highest level. In addition, the swelling caused the retina to lift off the macula which is called a macular star. Dr. Noel saw this in both of claimant's eyes. He measured claimant's visual acuity, both far and near, and noted claimant's right eye was 20/100 on both tests while the left eye was 20/200 far and 20/160 near.

While claimant and his parents were at Dr. Noel's office, Dr. Imboden called to advise Dr. Noel of the MRI results she received in the mail that day. There was a blood clot in claimant's right sigmoid sinus which prevented his cerebral spinal fluid (hereinafter CSF) from leaving the brain area thereby increasing the intra-cranial pressure. Dr. Noel referred claimant to a pediatric neurosurgeon for treatment of the clot while he continued to monitor claimant's vision.

Dr. Michael J. Higgins, a neurosurgeon, saw claimant on September 24, 1998. He was unavailable to testify but his records were admitted into evidence.[4] After a physical examination of claimant and a review of the relevant tests and records, it was Dr. Higgins' judgment to allow recanalization naturally, as the clot dissolved. On October 2, 1998, Dr. Higgins had claimant undergo another MRI to follow this process. It revealed some recanalization and a reduction in the size of the clot.

Dr. Noel saw claimant on September 28, 1998, and the papilledema was unchanged. The doctor spoke with Dr. Meehan, the resident who examined claimant's eyes on September 11 to confirm that no papilledema was seen at that time. Claimant's visual acuity was 20/400 in both eyes.

Claimant continued to see Dr. Noel on a regular basis through September 2001, although the intervening intervals gradually increased. On October 27, 1998, he discussed his concerns of optic atrophy with claimant's parents. Although the papilledema was slowly decreasing, he worried that the swelling had killed the blood vessels in the optic nerve which would result in permanent vision loss. He was still unable to tell how much, if any, vision would be recovered. On that day, Dr. Noel prescribed Diamox which decreases the production of aqueous in the brain. He had not prescribed it earlier due to the risks of dehydration and making the blood clot stickier and perhaps worse. The decision was made after consulting with Dr. Higgins.

On December 29, 1998, claimant's physical examination by Dr. Noel revealed the loss of small blood vessels in the right eye which indicates optic atrophy. His visual acuity in the right eye on December 16, was 20/400; his left eye was 20/80.

Ultimately, claimant lost visual acuity in both eyes with the right sustaining a greater degree of loss. He also lost his field of vision[5] again with greater loss in the right than the left, and he lost his depth perception and color. Claimant has been classified as legally blind[6] with no improvement expected.

Dr. Imboden and her colleague, Dr. Joanne Rosser, testified about claimant's underlying illness and the treatment he received for it. Both said that he would not have been discharged from the hospital on September 12, 1998 if the true MRI results were known.

Dr. Noel and claimant's expert, Dr. Gregory S. Liptak concluded that the cause of claimant's vision loss was the increased intra-cranial pressure which killed the blood vessels servicing the optic nerve. Dr. Liptak explained that claimant's ear infection led to mastoiditis, the inflammation behind his ear. The infection and claimant's dehydration can cause clots to form within days or sometimes hours. The clot prevented the CSF from draining properly thereby increasing pressure in the brain area, causing the atrophy. Early symptoms of increased intra-cranial pressure are vomiting, nausea and headaches. Papilledema is a late symptom, occurring as much as 72 hours after the increase in pressure. The damage resulting from the increase in pressure is related to the amount of pressure and the length of time the pressure is increased; therefore, early diagnosis and treatment is imperative to minimize or alleviate the injuries.

The breach of the standard of care, according to Dr. Liptak, was the apparent misinterpretation of the MRI films when Dr. Rosser was told the MRI was normal. Had the films been properly read, ophthalmology and neurosurgery could have been consulted to develop a treatment plan more than ten days earlier. (September 12 not September 23 and 24.) In Dr. Liptak's opinion, as of 5:30 p.m. on September 11, 1998, no damage had been done to claimant's eyes based upon the ophthalmological exam performed at the time.

According to Dr. Liptak, an additional breach of the standard of care occurred on September 14, 1998, when Dr. Chang read the MRI films, found the blood clot in claimant's sigmoid sinus and dictated his report. Such a serious finding required him to contact the attending physician and advise him or her of the findings. Dr. Chang testified that all he did after learning of the patient's discharge was page a pediatric resident who never responded. The MRI request forms and Dr. Chang's reports contained Dr. Imboden's name, as the attending physician, and the reports had her office address.[7] Dr. Imboden said she called Dr. Chang after receiving his report to complain about the initial improper reading of the film and the failure to notify her of the findings immediately.

Dr. Liptak said, in his opinion, the papilledema could have been seen during an ophthalmological examination after September 11, 1998 and before September 23. He believes claimant experienced a mild but lengthy increased pressure. Because of the severe papilla seen by Dr. Noel on September 23, Dr. Liptak said the damage to the optic nerve had already occurred. He further stated that he believes that if the MRI results had been timely disclosed, the increased pressure could have been controlled[8] by various methods, and no permanent vision damage would have resulted. To establish a cause of action for medical malpractice, claimant must show a deviation or departure from accepted medical practice and evidence that such departure was a proximate cause of the injury or damage (see Schrempf v State of New York, 66 NY2d 289; Bloom v City of New York, 202 AD2d 465).

Claimant undisputedly complained of vision problems during his hospital stay on September 9 and 10, 1998. As a result of the misreading of his MRI, claimant's pediatricians discharged him from the hospital. Defendant also does not dispute that Dr. Chang read the MRI study on Monday, September 14, and undoubtedly determined the existence of a thrombosis or clot. Dr. Chang did not timely relay this crucial information to claimant's pediatricians. Dr. Chang's conduct is entirely and undisputedly culpable, a deviation from acceptable medical care.

Despite these clearly negligent acts, defendant argues that there is no link between these acts and the extent of claimant's injuries. Defendant points to claimant's absence of typical symptoms and contact with other health professionals to deflect any connection between its negligence and claimant's damages. The Court rejects defendant's efforts. Claimant's expert testified that papilledema is a late sign of elevated intra-cranial pressure, pressure which developed as the result of the blood clot defendant unquestionably detected nine days earlier but failed to promptly advise claimant's treating doctors. Defendant's reliance on claimant's failure to exhibit typical symptoms as a shield from its negligent conduct is a distortion of reality. Claimant might not have ever developed any signs or symptoms if defendant had timely informed the pediatricians of the presence of the blood clot. Claimant's expert testified that the permanent damage to claimant's eyes could have been prevented if Dr. Chang had timely delivered his findings to claimant's pediatricians.

Accordingly, this Court finds defendant's conduct was a proximate cause of claimant's injuries and defendant is one hundred percent (100%) liable.

It is clear that claimant has suffered as a result of his loss of vision and will continue to suffer. He will never be able to drive, and he will be unable to participate in numerous activities like other children.

There was uncontradicted evidence that claimant will suffer future diminished earnings between $161,000 and $234,000.[9] Based upon that evidence, the Court awards claimant $220,000 for reduced earnings. The Court has considered the availability of services for claimant[10] in arriving at future damages.

No evidence of uncovered past or anticipated medical expenses were provided and no award will be made. Based upon the foregoing, the Clerk of the Court is directed to enter judgment in favor of claimant as follows:
Past pain and suffering - $600,000.00
Future reduced earnings - $220,000.00

Future pain and suffering - $3,800,000.00

Total Award: $4,620,000.00

Since the amount of future damages exceeds $250,000.00, a structured judgment is required (see, CPLR 5031). Judgment shall be held in abeyance pending a hearing pursuant to CPLR article 50-A. The parties are encouraged to agree upon an attorney's fee calculation and the discount rate to be applied to formulate a structured settlement of their own. If no agreement can be reached, each party will submit a proposed judgment in writing conforming to the requirements of CPLR article 50-A within 60 days of the 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 and the Court.

ORDERED, that to the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act §11-a(2).

All motions made at trial and not heretofore ruled upon are now DENIED.

July 11, 2003
Syracuse, New York

Judge of the Court of Claims

[1]All references to claimant in this decision are being made to the infant, Zebulon Parks,

[2]He had Dr. Imboden's name and address but never called her office.
[3]Exhibit 12A.
[4]Exhibit 3
[5]This is the area which is in the eye's perceptive range. Zebulon has no peripheral vision.
[6]Exhibit 4
[7]Exhibits 6 and 19.
[8]See Exhibit 3. Dr. Higgins chose conservative treatment because of the length of time the clot had existed.
[9]Exhibits 20 and 21.
[10]8 NYCRR Part 246.