SHEPHERD v. STATE OF NEW YORK, #2003-018-206, Claim No. 102377
Claimant proved that the defendant departed from the standard of care for good
and acceptable medical practice and that the departure was the proximate cause
of decedent's injury and death.
JANET M. SHEPHERD, Individually and as Administratrix of the ESTATE of ALVIN L. SHEPHERD, Deceased
Footnote (claimant name)
STATE OF NEW YORK
Footnote (defendant name)
DIANE L. FITZPATRICK
DelDUCHETTO & POTTERBy: Ernest A. DelDuchetto, Esquire
Attorney General of the State of New York
By: Michael R. O'Neill, EsquireAssistant Attorney General
March 25, 2003
See also (multicaptioned
seeks damages from the State of New York for the wrongful death and conscious
pain and suffering of her husband, Alvin L. Shepherd, allegedly caused by
medical malpractice and negligence of employees of the State of New York,
University Hospital, in Syracuse.
On January 2, 2000, claimant and decedent were flying from their daughter's
home in South Carolina to Syracuse, New York, by way of Atlanta, Georgia.
Claimant recalled decedent complained of chest pains that morning that started
in his left side and radiated under his left arm to his back. During their
layover in the Atlanta airport, claimant noted that decedent was short of
breath. She called her daughter in Syracuse to advise that their flight was
delayed, and that she would take decedent directly to the emergency room upon
At approximately 6:00 p.m., the Shepherds arrived at the University Hospital
emergency room. Decedent was taken to an examining room and at approximately
6:30 p.m., Dr. Noralea Meiki Rose, a first year resident, arrived and examined
him. Dr. Rose testified that she took claimant's history, writing it on scrap
paper, which was later discarded. Dr. Rose did dictate information for
decedent's hospital records.
According to the triage nurse, decedent stated that he had experienced
shortness of breath for a few weeks prior to his emergency room visit as well as
an unproductive cough. That morning, he began experiencing chest pains which
increased with activity or coughing. His chest was tender on the left side when
palpated. Dr. Rose testified that, based upon the symptoms, her differential
diagnosis included cardiac problems, atypical chest pain from such illnesses as
pleurisy, pneumonia, trauma, pulmonary edema, or pulmonary emboli. She ordered
an EKG, blood enzyme tests, including one for troponin, a chest x-ray and
oximeter test. The EKG, enzyme tests, and chest x-ray were normal, thereby
ruling out cardiac problems, pulmonary edema, and pneumonia. Trauma was ruled
out based upon decedent's medical history. A nitroglycerine tablet was given to
decedent which would alleviate his chest pain if it was caused by his heart.
According to claimant, it did not end the chest pain. Decedent was also given
Motrin to relieve the chest pain if it had been caused by a pulled muscle.
Again, the records reflected that this did not provide any relief to Mr.
Decedent's vital signs were monitored while he was in the emergency room. His
initial readings were:
Oxygen saturation 93%
According to Dr. Rose, the oxygen level in decedent's blood was slightly lower
than normal, his heart rate was fast, and his respiration rate was at the
high-end of normal. These symptoms, along with non-reproducible chest pain, can
be symptoms of a pulmonary embolism. Although the hospital had a ventilation
perfusion scanner (hereinafter referred to as V.Q.) available and it could
assist in diagnosing or ruling out a pulmonary embolism, Dr. Rose did not order
this test. She acknowledged that decedent was discharged by the attending
physician on January 2, 2000, without ruling out pulmonary emboli by use of any
diagnostic test, despite the fact that an untreated pulmonary embolism could be
fatal. Dr. Rose testified that an emergency room physician has a duty to rule
out life-threatening diagnoses before discharging a patient.
On January 9, 2000, Alvin Shepherd collapsed at home and, despite various
efforts to save him, died that day. The autopsy results showed that he had
experienced several pulmonary emboli for weeks prior to his death and the cause
of death was determined to be pulmonary
Diane M. Sixsmith, M.D., testified on behalf of the claimant as an expert in
emergency room medicine. Dr. Sixsmith described the etiology of pulmonary
emboli. A blood clot forms in the lower part of the body, usually due to a
decreased blood flow, which can be caused by such situations as lengthy surgery,
being bedridden, a long airplane ride, trauma or cardiac illness. The clot or
pieces of the clot then break off and are carried through the inferior vena cava
into the right side of the heart and then into the blood vessels that lead to
the lungs. The clot continues to move with the blood flow until it blocks a
vessel which then prevents blood flow into a part of the lung. Without blood,
the lung tissue fails to get oxygen and nutrients and cannot continue to
function. The blocked vessel can also interrupt blood flow from the heart which
can cause cardiac arrest.
The two main symptoms of a pulmonary embolism are chest pain and shortness of
breath, usually in combination. Other symptoms are similar to those of
pneumonia. Pulmonary emboli are not usually fatal if diagnosed and treated but
are almost always fatal if undiagnosed.
Dr. Sixsmith testified that Dr. Rose's differential diagnosis was appropriate
given decedent's symptoms, history, and vital signs upon presentation. She
explained that an emergency room doctor's obligation is to rule in or rule out
the various possible diagnoses which would be indicated by the symptoms and
history of the patient. To do this, the doctor should order the applicable
diagnostic tests to eliminate or confirm each of the diagnoses. The tests for
pulmonary emboli are a ventilation perfusion test (V.Q.) which maps the blood
flow and air in the patient's lungs, or a CT scan which results in pictures of
the organs and vessels of the area being tested. Both of these tests were
available at University Hospital on January 2, 2000 but neither was performed.
Dr. Sixsmith agreed with Dr. Rose that the three possible diagnoses she had
which could result in serious consequences to the patient, including death, were
cardiac illness, pneumonia or a pulmonary embolism. The tests performed on
decedent and his symptoms effectively ruled out the first two, but decedent was
discharged without testing for or ruling out the third possibility, a pulmonary
embolism. When asked about Dr. Gary
failure to consider a diagnosis of pulmonary embolism, Dr. Sixsmith stated that
not to consider pulmonary emboli was incomprehensible, and that his failure to
consider it violated the appropriate standard of care. An emergency room
physician must consider the most serious conditions compatible with the
patient's symptoms and then test to confirm or eliminate those possibilities.
In her opinion, Dr. Johnson's diagnosis of bronchitis was not consistent with
the decedent's history and complaints.
Specifically, Dr. Sixsmith noted decedent's oxygen saturation was 93 percent,
less than normal, and his heart rate was also abnormal. The Motrin decedent
took failed to relieve his chest pain, which ruled out musculoskeletal pain,
even though some of his symptoms were consistent with this assessment. The
medical records indicated decedent's chest pain was reproducible; in other
words, upon movement, breathing or palpation, the pain would recur. According
to Dr. Sixsmith, this meant that decedent's pain was not the result of cardiac
problems but did not preclude a pulmonary embolism diagnosis.
Another violation of the standard of care, pursuant to Dr. Sixsmith's
testimony, was Dr. Rose's inclusion of a pulmonary embolism in her differential
diagnosis without testing for it. Instead, she diagnosed musculoskeletal pain
which was, according to Dr. Sixsmith, a diagnosis of exclusion and inappropriate
when pulmonary emboli had not been ruled out. Dr. Sixsmith stated that the
emergency room physician should not assume a patient has a benign condition
without first ruling out the more serious one.
The claimant also called David J. Davin, M.D., a pulmonary specialist, to
testify. He reviewed the autopsy report and concluded that decedent had
experienced numerous pulmonary emboli over the weeks preceding his death. The
clots observed microscopically in decedent's arteries varied in age from hours
to weeks old. In his opinion, on January 9, 2000, the decedent experienced the
terminal event or events which may not have caused him to die had the earlier
clots not already blocked so much of his blood flow. He described the death as
one of asphyxiation or strangulation as Mr. Shepherd's vital organs were not
receiving any oxygen. Dr. Davin opined, as did Dr. Sixsmith, that on January 2,
2000, Mr. Shepherd experienced at least one pulmonary embolus based on the
decedent's symptoms and the fact that he was
with an oxygen saturation of only 93 percent. Because his chest x-ray was
clear, this combination of circumstances made it almost virtually certain that
the problem was pulmonary.
When Mr. Shepherd was discharged from the emergency room on January 2, 2000, he
was given prescriptions for antibiotics and cough syrup with codeine. Claimant
testified that her husband took the medications as directed and seemed to
improve. Decedent did not complain of chest pain during the week following his
discharge, but claimant and her daughter each witnessed separate incidents when
he was short of breath. Dr. Davin said the decedent's appearance of recovery is
consistent with having experienced pulmonary emboli over the prior week or two.
He likened Mr. Shepherd's resulting limited lung function to a person who had a
lung removed and was adjusting to the change. The lungs have tremendous "back
up" and it takes a significant blockage to end their functioning. Furthermore,
Dr. Davin stated that the codeine could have masked decedent's chest pain.
Dr. Davin was certain that had a V.Q. scan been performed on January 2, 2000,
it would have been abnormal, if not diagnostic, and would have led to the
diagnosis of a pulmonary embolism. From that, the doctors could have performed
a pulmonary angiogram after starting decedent on the anticoagulant, Heparin.
Pulmonary emboli are treated with anticoagulants, and Heparin works rapidly.
Dr. Davin was confident that if decedent had been given Heparin, commencing
January 2, 2000, its use would have prevented Mr. Shepherd's death.
Dr. Davin emphasized the need for the diagnostician to first consider, or
"suspect" a pulmonary embolism. There are no standard features of pulmonary
emboli; therefore, there are no clinical factors which would allow a physician
to conclude that a patient is or is not experiencing pulmonary emboli.
Diagnostic tests need to be performed.
The State called Paul Levy, M.D., a pulmonologist, as its expert. Dr. Levy
explained the difficulty of diagnosing a pulmonary embolism and the lack of
diagnostic certainty of a V.Q. scan. Basically, Dr. Levy pointed out that the
signs and symptoms of pulmonary emboli are often hidden in other disease
symptoms. For example, chest pain and shortness of breath can be evidence of
cardiac problems or other diagnoses. The V.Q. test results are reported in
degrees of probability, not as a positive or negative; therefore, it is usually
not diagnostic in and of itself. The probability must then be added to the
clinical context of the patient. If the clinical signs and symptoms, including
shortness of breath, indicate low probability of a pulmonary embolism, even
though the V.Q. results show a high probability of a clot, statistically only 50
percent of those patients actually have a pulmonary embolus. The more definitive
test, a pulmonary angiogram, has risks which are not present with a V.Q. or CT
scan. These risks must be weighed against the benefits of diagnostic results,
so the pulmonary angiogram is not a standard test but is used only in cases
which present a high probability of pulmonary emboli and based on a V.Q. scan
and clinical symptoms.
After assuming facts which were established by the evidence, Dr. Levy opined
that the care provided to Mr. Shepherd on January 2, 2000, was within accepted
medical standards. He based his conclusion upon the reasonable decision-making
process he found in the emergency room records. He noted that symptoms of chest
pain and shortness of breath could be related to many other conditions.
Dr. Levy also believed there were many negatives or factors that would steer
one away from suspecting a pulmonary embolism. Specifically, he found the
features of decedent's chest pain and shortness of breath to be atypical of a
pulmonary embolism. The chest pain was palpable, which is more readily
associated with musculoskeletal or cardiac conditions, and the shortness of
breath was not sudden as typical for pulmonary emboli, but had been present over
a period of weeks.
On physical examination, decedent had no swelling or asymmetry of his lower
legs. Additionally, there was no pleural rub, a sound caused by the friction
between the lung and chest which can be heard if a pulmonary embolus has
occurred where the chest pain is located. The second heart tone can be louder
after a pulmonary embolism due to increased pressure, but decedent had a normal
cardiac exam. Mr. Shepherd's chest x-ray was normal, and Dr. Levy testified
that even though this does not exclude pulmonary emboli, often the injury caused
by the clot will result in an abnormal chest x-ray. He stated that decedent's
history of coughing, a symptom of many conditions, could explain the chest pain.
Dr. Levy noted that Mr. Shepherd's oxygen saturation was at the lower end of
normal which could be explained by decedent taking shallow breaths because of
the pain he experienced by breathing deeply. An elevated pulse, which decedent
also had, could simply be the result of the anxiety experienced by many
emergency room patients.
Dr. Levy testified that not ordering a V.Q. scan, CT scan, or a pulmonary
angiogram was not a deviation from the standard of care given the clinical
information the emergency room doctors had. He stated that decedent presented
with a difficult set of symptoms for a doctor to determine that he was suffering
from a pulmonary embolism.
Dr. Levy had read Dr. Johnson's deposition in which Dr. Johnson stated that he
never considered the diagnosis of pulmonary embolism on January 2, 2000. On
cross-examination, he acknowledged that if Dr. Johnson did not consider the
possibility of decedent having a pulmonary embolism, it was not consistent with
the standard of care. Dr. Levy's interpretation of Dr. Johnson's deposition
testimony was that Dr. Johnson thought of such a diagnosis, but judged the
possibility so low that he did not order a V.Q. scan. In Dr. Levy's opinion, if
there is a low suspicion of pulmonary embolism, based on clinical findings, and
an adequate explanation for the patient's symptoms, it is not a deviation from
the standard of care not to order a V.Q. scan.
The State also called Dr. Gary Johnson, the attending emergency room physician
who discharged decedent on January 2, 2000, with a diagnosis of bronchitis,
musculo-skeletal pain and dyspnea.
He testified that a pulmonary embolism was not a differential diagnosis that he
considered that night because he had no reason to suspect it. He stated that
there are numerous causes for chest pain and shortness of breath. The fact that
Mr. Shepherd had traveled by plane that day was not significant because a blood
clot from such immobility would take days to
Decedent therefore would not be
experiencing pulmonary embolism symptoms from lengthy travel on the same day.
Mr. Shepherd's vital signs, which showed a reduced oxygen level and a slightly
increased pulse and respiratory rate, were discounted by Dr. Johnson who
attributed those findings to the patient's anxiety. Mr. Shepherd's vital signs
were repeated and were normal.
agreed with Dr. Levy that decedent's history of shortness of breath and the
characteristics of his chest pain were not typical of pulmonary embolism. He
testified in his deposition that he never considered a diagnosis of a pulmonary
embolism, and he stated on cross-examination that an emergency room doctor is
not obligated to consider the possibility of a pulmonary embolism diagnosis even
if the patient has chest pain, shortness of breath, a respiration rate of 18 per
minute, is over forty years old and just got off an
Clearly, making a diagnosis of pulmonary embolism is, at best, difficult.
However, the failure to make the proper diagnosis in this case is not the key to
liability. Liability turns on whether or not pulmonary emboli could be ruled
out based upon the information available to the doctors in the emergency room on
January 2, 2000. The duty of an emergency room physician is to rule out any
life-threatening diagnosis before discharging the patient.
On cross-examination, Dr. Johnson was shown an
contained in a text used at University Hospital for teaching emergency medicine
residents entitled Suspected pulmonary embolism
. He acknowledged that,
according to the algorithm, a patient with a very low suspicion of pulmonary
embolism should be given a V.Q. scan. Dr. Rose had included pulmonary embolism
on her differential diagnosis, but after consulting with Dr. Johnson, did not
order a V.Q. scan. Dr. Johnson failed to consider a pulmonary embolism
diagnosis which, according to the defendant's expert, Dr. Levy, violated the
standard of care for emergency room physicians. Both of these failures,
according to Dr. Sixsmith, were violations of the standard of care. Dr. Davin
testified that even before a diagnosis of pulmonary embolism is made, the
patient can be given Heparin empirically which, in this case, could have saved
Mr. Shepherd's life.
It is claimant's burden to prove by a preponderance of the evidence that the
State departed from the standard of care for good and acceptable medical
practice, and that the departure was the proximate cause of decedent's injury
and death (
Holton v Sprain Brook Manor Nursing Home,
253 AD2d 852; Bloom v City
of New York,
202 AD2d 465). Keeping in mind that the Court must determine
whether or not the State's employees breached their duty to decedent by
considering the facts as they existed at the time of treatment (Henry v Bronx
Lebanon Med. Center,
53AD2d 476), the Court finds that claimant has met her
burden. Dr. Rose spoke with Dr. Johnson regarding decedent's condition. Given
the axiom that an emergency room physician should eliminate life-threatening
diagnoses before discharging a patient, it can be inferred that Dr. Rose would
consult with Dr. Johnson about her differential diagnosis including pulmonary
emboli. Dr. Johnson, an experienced emergency room physician with outstanding
credentials, must have considered the possibility of pulmonary emboli and did
not test for it, or he completely missed the possibility. In either case, the
standard of care was not met.
Dr. Davin described what decedent would have experienced during the last
minutes of his life. Claimant and her daughter described what they witnessed on
January 9, 2000 when decedent collapsed, struggling to breathe. Based upon that
testimony and the report of Dr. William
the Court awards the following damages:
Lost wages (Blanchfield) $1,078,000.00
Benefits to age 65 352,000.00
Expenses: Funeral 5,110.00
Headstone (50%) 1,500.00
Death Certificates 120.00
Past pain and suffering
TOTAL AWARD - $1,664,730.00
Since the amount of future damages exceeds $250,000.00, a structured judgment
is required (
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.
All motions made at trial and not heretofore ruled upon are now denied, and it
ORDERED, that to the extent claimant has paid a filing fee, it may be recovered
pursuant to Court of Claims Act §11-a(2).
March 25, 2003
HON. DIANE L. FITZPATRICK
Judge of the Court of Claims
All references herein to claimant shall refer
to Janet Shepherd, the wife of Alvin Shepherd and the Administratrix of the
COPD is chronic obstructive pulmonary
Dr. Johnson was the decedent's attending
emergency room physician on January 2, 2000, and Dr. Rose testified that she
consulted with him regarding Mr. Shepherd.
Hypoxic means having low oxygen levels in the
There are some discrepancies in the record
regarding the length of time decedent experienced shortness of breath and chest
Dyspnea means shortness of breath.
The Court also notes that according to
claimant, decedent's chest pain began before he left for the airport that
morning, thereby eliminating the return flight home as a cause.
Dr. Sixsmith testified and the records seem
to indicate that decedent's oxygen level was normal after oxygen had been