New York State Court of Claims

New York State Court of Claims

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.

Case Information

JANET M. SHEPHERD, Individually and as Administratrix of the ESTATE of ALVIN L. SHEPHERD, Deceased
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:
DelDUCHETTO & POTTERBy: Ernest A. DelDuchetto, Esquire
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:
March 25, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

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 their arrival.

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.[2]

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 bronchitis, COPD,[3]
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. Shepherd.
Decedent's vital signs were monitored while he was in the emergency room. His initial readings were:
Blood pressure - 129/75

Pulse 113

Respiration 18

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 embolism.[4]

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 Johnson's[5]
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 hypoxic[6]
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.[7]
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.[8]
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 develop.[9] 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.[10] Dr. Johnson 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 airplane.
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 algorithm[11]
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 Blanchfield,[12]
the Court awards the following damages:
Lost wages (Blanchfield) $1,078,000.00
Benefits to age 65 352,000.00
Lost services 78,000.00
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 (
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.
All motions made at trial and not heretofore ruled upon are now denied, and it is hereby

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
Syracuse, New York
Judge of the Court of Claims

[1] All references herein to claimant shall refer to Janet Shepherd, the wife of Alvin Shepherd and the Administratrix of the Estate.
[2]Exhibit 1.
[3]COPD is chronic obstructive pulmonary disease.
[4]See Exhibit 5.
[5]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.
[6]Hypoxic means having low oxygen levels in the blood.
[7]There are some discrepancies in the record regarding the length of time decedent experienced shortness of breath and chest pain.
[8]Dyspnea means shortness of breath.
[9]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.
[10]Dr. Sixsmith testified and the records seem to indicate that decedent's oxygen level was normal after oxygen had been administered.
[11]Exhibit 14-a.
[12]Exhibit 7.