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.
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
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
Dr. Michael J. Higgins, a neurosurgeon, saw claimant on September 24, 1998. He
was unavailable to testify but his records were admitted into
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
Ultimately, claimant lost visual acuity in both eyes with the right sustaining
a greater degree of loss. He also lost his field of
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
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
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
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
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.
upon that evidence, the Court awards claimant $220,000 for reduced earnings.
The Court has considered the availability of services for
in arriving at future
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: