New York State Court of Claims

New York State Court of Claims

GAROFALO v. STATE OF NEW YORK, #2003-018-243, Claim No. 99452


Synopsis


Case Information

UID:
2003-018-243
Claimant(s):
HEIDI GAROFALO
Claimant short name:
GAROFALO
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99452
Motion number(s):

Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
ROBERT E. LAHM & ASSOCIATESBy: ROBERT E. LAHM, ESQUIRE
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: MICHAEL R. O'NEILL, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
November 21, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claimant, Heidi Garofalo, thirty-four years old at the time of trial, grew up on a Standard-Bred horse farm. She quit school after the tenth grade, in frustration, as a result of learning disabilities. At the inception of her medical problems, claimant maintained her own business training trotters and pacers as well as working on her parents' farm. She was working 12 hour days of rigorous physical activities and continued to work until just prior to the medical problems that underlie this medical malpractice/negligence claim.

Claimant's family physician, for a number of years, was Dr. Nathan W. Keever, an osteopath, board certified in family medicine. A review of Dr. Keever's records indicates that on May 28, 1996, claimant sought medical assistance for tightness in her chest, specifically when inhaling. She was given medication and told that without improvement, she would need a chest x-ray and echocardiogram. She was seen again by Dr. Keever on July 5, 1996, complaining of headaches, body aches, chills, muscle spasms, chest discomfort, and shortness of breath. She told the doctor that two months prior to this date she had been kicked in the knee by a horse, and had a lack of feeling of hot and cold in her left leg, from the upper portion of her left thigh down to her feet. She said when cold water touched her leg, it felt like it was burning. Dr. Keever performed objective tests by placing hot or cold test tubes against claimant's thighs without claimant watching. She could not tell the difference between hot and cold on her left leg and was correct approximately 85 percent of the time when her right leg was tested. No diagnosis was made at that point.

Dr. Keever did not order an MRI for claimant on July 5, 1996, because of her financial condition. Claimant had no health insurance and limited income. Dr. Keever suspected syringomyelia, a rare degenerative condition, so he planned to watch for any continuing changes, specifically in her left leg. He testified that at this point he thought a central lesion, which could compress the spinal cord, might be the cause of claimant's lack of temperature sensation in her left leg.

Claimant was seen again eight months later by Dr. Keever on March 4, 1997, for involuntary head tremors. Dr. Keever noted her decreased feeling in the left leg, as well as fatigue, and loss of strength in her upper extremities. Claimant's reflexes tested more reactive than normal. Dr. Keever felt this was significant because of a possible central nervous system lesion; however, no clonus[1]
was observed which would be a much clearer indication of central nervous system involvement. At that time, he diagnosed possible Amyotrophic Lateral Sclerosis (hereinafter ALS) also known as Lou Gehrig's Disease, and he referred claimant to the SUNY Upstate Medical University (hereinafter University Hospital) Neurology Clinic.
Claimant was seen again on March 7, 1997; Dr. Keever wanted to rule out ALS and noted that a referral letter was being typed for the Neurology Clinic. In his notes he wrote: "[W]e will get her into [sic] be seen as soon as possible."[2]
Claimant testified that she contacted Dr. Keever's office approximately a week after her last visit to inquire about her appointment with the Neurology Clinic. She was advised that the letter had been typed and sent, and she would be hearing from the clinic regarding the appointment date.
Three copies of the referral letter, dated March 4, 1997, from Dr. Keever to the Neurology Clinic, were admitted into evidence with three separate exhibit numbers since each copy had separate handwritten notations which were addressed at trial. Exhibit 27 is the original letter which was not disclosed to the claimant until the Friday prior to trial, and is the subject of claimant's motion for sanctions. The envelope attached to Exhibit 27 has a postmark of 3/12/97. Handwritten on Exhibit 27 is the word "Accept" next to a date of March 18, 1997. Underneath the date was written "Do Not over book [sic]" and "next Avail." According to claimant's witness, Marie Turo, these notations were made by a third-year resident at the clinic and meant that the clinic agreed to see the claimant but she was not to be seen on an emergency basis, only given the next available appointment. Ms. Turo worked in the Speciality Clinic at University Hospital, which included the Neurology Clinic, when Dr. Keever's letter was received, and she was responsible for arranging claimant's appointment.

Ms. Turo testified that she authored and placed the Post-it note on the second page of Exhibit 27. The first notation on the Post-it note, dated April 14, 1997, indicates she called the doctor's office because she needed the patient's telephone number. The second notation, dated April 23, 1997, says Ms. Turo left a message at 315-837-4427, which claimant testified was her telephone number at the time. Ms. Turo's third notation indicates she left a message with claimant's mother on May 2 1997.

The second copy of this letter, Exhibit 28, shows that it was faxed from Dr. Keever's office and received at Firm C[3]
on March 12, 1997. The second page of this exhibit has claimant's name, address and phone number written on it. Claimant testified that this information was current as of March 12, 1997.
The third copy of the letter, Exhibit 32, had the Neurology Clinic address crossed off and the notation "SUNY ER" handwritten next to it.

Claimant was contacted by telephone in early- to-mid-May 1997, and an appointment was scheduled for her to be seen at the Neurology Clinic on June 26, 1997, at 12:30 p.m. This was confirmed in writing by a letter sent to claimant on May 19, 1997, and received into evidence as Exhibit 29. Claimant testified that on June 26, 1997, she arrived at 90 Presidential Plaza and was directed to the registration desk by the security guard on the first floor of the building.[4]
After presenting herself at the registration desk, claimant was told that there was no record of her appointment and no information regarding her in their computer system.[5] When Marie Turo's name was mentioned, claimant was told that Ms. Turo no longer worked at the clinic. Noted on Exhibit 29 is the fact that Ms. Turo resigned on June 20, 1997. Also on that exhibit in claimant's handwriting is "July 31st at 2:00." This was the new date and time given to claimant for her appointment, which she obtained by telephone after she returned home.
On July 4, 1997, claimant went to the emergency room at Chenango Hospital complaining of severe chest pains and shortness of breath. Chest x-rays were taken, she was given Motrin, and sent home with instructions to return if the problems persisted. On or about Monday, July 7, 1997, claimant was in tremendous pain and could not urinate. She called Dr. Keever who scheduled an appointment for her to come in the following day. She complained to Dr. Keever on July 8, 1997, that she was in excruciating pain and had been vomiting all night. Her head would shake uncontrollably, she could not urinate, she ached all over, she could not keep her balance, and fell on several occasions during the previous 48 hours. Claimant received a prescription for an antibiotic from Dr. Keever and was sent home. Claimant testified that by the following morning (July 9) she could not walk to the phone. She needed help to call Dr. Keever's office who advised her to go to University Hospital Emergency Room. Upon arrival at the hospital, claimant testified that she was numb from the waist down. She had to be catheterized but could not feel the catheterization. Claimant was admitted to the hospital.

An MRI study was conducted on July 10, 1997, which showed a darkened area at the T-4 level of claimant's spine as well as swelling of the spinal cord. According to Dr. John Wasenko, a radiologist specializing in neuro-radiology at University Hospital, the dark spot was blood, some of which had been present for between four and seven days. He found a hemorrhagic mass, edema and enhancement (damaged blood vessels) at the T-4 and T-5 levels. The swelling was visible from the C-7 level to the T-7 level of claimant's spinal column.

At that point, Dr. Wasenko believed the mass could be a tumor of the spinal cord, an ependymoma. A second MRI was done on July 15, 1997, resulting in the same possible diagnosis. Claimant underwent surgery on July 18, 1997, performed by Dr. David Y. Eng, a neurosurgeon at University Hospital whose surgical observations changed the diagnosis. The laminectomy revealed no tumor. An intermedullary hematoma was removed. Biopsies were taken and no tumor cells were found in the samples. Dr. Eng's report indicates he found chronic hemorrhage which means there was a vascular lesion that bled for some undetermined amount of time in the past. The bleeding could have occurred up to one year prior to surgery.

In essence, all of the doctors believe that claimant had an arterial, vascular, or arteriovenous malformation (hereinafter AVM) which hemorrhaged, causing the significant symptoms experienced by claimant early in July 1997. An AVM is usually congenital and can destroy itself, which probably happened in this case, as Dr. Eng did not find evidence of either a tumor or an AVM. There was evidence of old blood in the aspirated hematoma; and according to Dr. Eng, it could have been weeks to months old.

It was Dr. Wasenko's opinion that claimant's AVM would most probably be classified as a cavernous hemangioma which he described as a collection of pools of blood in various stages of evolution.[6]
The presence of chronic blood supports this diagnosis. Dr. Eng found the hematoma in the center of the spinal cord (intermedullary). According to Dr. Wasenko, cavernous hemangiomas, by definition, are intermedullary. He also felt it was possible that the AVM could have been classified as a spinal cord fistula which occurs when an artery connects directly to a vein instead of through capillaries on the outside of the spinal cord but which bleeds inside the cord. In either case, the AVM obliterated itself before the surgical removal of the hematoma.
A physician-patient relationship must exist before liability can be imposed for medical malpractice (
Gedon v Bry-Lin Hosps., 286 AD2d 892, 893; Megally v LaPorta, 253 AD2d 35, 40; Lee v City of New York, 162 AD2d 34, lv denied 78 NY2d 863; Miller v Sullivan, 214 AD2d 822, 823). This relationship can be established by an express or implied contract (Heller v Peekskill Community Hosp., 198 AD2d 265). The issue, which needs to be addressed first, is whether or not such a relationship had been established between claimant and the Neurology Clinic staffed and controlled by defendant. The claimant has made arguments to support a physician-patient relationship.
First, claimant argues that the writing of the word "ACCEPT" on Exhibit 27 establishes a relationship which requires the medical staff, and more specifically the doctor who wrote it, to use reasonable care and diligence and to exercise his best judgment treating or advising the claimant. As stated in
Pike v Honsinger (155 NY 201, 209), "Upon consenting to treat a patient, it becomes [the physician's] duty to use reasonable care and diligence in the exercise of his skill and the application of his learning to accomplish the purpose for which he was employed." However, the common theme of the case law which discusses physician-patient relationships is one of affirmative action on the part of the physician, be it directly or through a third party. The relationship is usually established by giving advice or treatment. In addition to being negligent, the advice must be relied upon by the patient. The claimant has failed to prove that any advice or treatment options were given to her by the Neurology Clinic, or that she relied upon any advice from the clinic. The fact is, no one knew about the notations on Exhibit 27 until it was found by the Assistant Attorney General a few days before trial. Claimant is hard-pressed to claim she relied upon the resident's medical judgment when she never knew what it was. As the Appellate Division, Second Department, said in Hickey v Travelers Ins. Co., 158 AD2d 112,
We merely hold that the plaintiff may successfully demonstrate
the existence of a question of fact as to whether or not such an

"implied" contract existed by asserting that the defendant doctor

either affirmatively treated him or affirmatively advised him how

to be treated, and that such treatment or such advice actually

caused serious injury. Where the action is premised on negligent

advice rather than negligent treatment, proof of detrimental reliance

on the advice is, of course, necessary to establish causation (
id., at 116).

Even for an implied physician-patient relationship, there must be affirmative action taken by the doctor to establish the relationship which, thereby, creates a duty (
McKinney v Bellevue Hosp., 183 AD2d 563).
Duty is essentially a legal term by which we express

our conclusion that there can be liability...It tells us

whether the risk to which one person exposes another

is within the protection of the law. In fixing the bounds

of that duty, not only logic and science, but policy play

an important role...

* * *

A line must be drawn between the competing policy

considerations of providing a remedy to everyone who is

injured and of extending exposure to tort liability almost

without limit
(De Angelis v Lutheran Med. Center 58 NY2d
1053, 1055 [citations omitted];
see also Heim v Board of
Educ. of North Tonawanda School Dist. 2001 WL 1606800)

The cases relied upon by claimant are decisions on summary judgment motions in which the court need only identify the factual issues, not decide them. Therefore, the nexus between claimant (or plaintiff) and defendant needed to defeat summary judgment can be much more tenuous than that required to sustain the burden of proving at trial that the physician-patient relationship existed. More instructive are those cases where summary judgment was granted, as they offer a clearer delineation of when contact with a doctor does not create the physician-patient relationship. In this case, a doctor reviewed claimant's condition, via Dr. Keever's March 4, 1997 letter, to decide whether or not her condition should be handled by the Neurology Department. The doctor's action here is analogous to that of a doctor who physically examines a person and renders an opinion regarding the person's employability without providing any affirmative treatment or advice, as in
Lee v City of New York, 162 AD2d 34, supra, or White v Southside Hosp., 281 AD2d 474. In Lee and White, the defendant-doctors had actually examined the plaintiffs, unlike the situation with claimant where the resident only reviewed a letter and never had any contact with her in person.[7] Similarly, see Miller v Sullivan, 214 AD2d at 823 where defendant-doctor spoke with the plaintiff on the telephone that morning regarding symptoms of back pain, but never gave any advice or provided any treatment to plaintiff who, later that day, suffered cardiac arrest while waiting in defendant's office for his appointment. The Court found no physician-patient relationship was established, and therefore, no medical malpractice action existed. The evidence before the Court in this case fails to establish a physician-patient relationship.
Secondly, claimant moved the Court to find the existence of a physician-patient relationship pursuant to 3126(1) of the CPLR due to defendant's failure to timely disclose the letter with the word "Accept" on it.[8]
The relevant section of that statute reads:
If any party...refuses to obey an order for disclosure or wilfully

fails to disclose information which the court finds ought to have

been disclosed pursuant to this article, the court may make such

orders with regard to the failure or refusal as are just, among them:


1) an order that the issues to which the information is relevant

shall be deemed resolved for purposes of the action in accordance

with the claims of the party obtaining the order...


Claimant set forth the procedural background in her post-trial memorandum in detail. Briefly, on October 19, 1999, claimant requested defendant disclose the location of Dr. Keever's March 4 letter, specifically whether the Neurology Clinic had a copy. On December 9, 1999, defendant responded that the Neurology Clinic did not keep claimant's medical records and did not have a copy of the letter. The response continued that the hospital records contained a faxed copy of the letter. On December 16, 1999, the defendant told claimant that many files of "no- show" patients were destroyed in July 1999. The defendant's records indicated claimant failed to appear on her first appointment date and was considered a "no-show." Defendant also advised no clinic file would be opened on a patient until that patient was seen. Almost two years later, to comply with a trial subpoena duces tecum, the Assistant Attorney General handling the matter checked the Neurology Clinic files and found the original letter, Exhibit 27, which he immediately disclosed to claimant. Unfortunately, this disclosure occurred on October 19, 2001, three days before trial.

In the absence of court ordered disclosure, it is the burden of the party seeking relief under CPLR 3126 to come forward with proof clearly showing wilfulness or bad faith (
Shapiro v
Rose,195 AD2d 935) after which it becomes the responding party's burden to prove an innocent reason for the failure to disclose (Parascandola v Kaplan, 108 AD2d 738). As in the Parascandola case, the parties here were acting under a misunderstanding regarding the availability of a certain item of evidence, in this case, the original Keever letter. That is insufficient to find wilfulness. Additionally, the defendant explained the reason why it believed no clinic file existed. Claimant has failed to meet the requirements necessary for the Court to impose sanctions under CPLR 3126.
The Court has also considered the untimely disclosure of this letter under a spoliation theory, since sanctions can be imposed for negligent destruction of evidence (
Squitieri v City of New York, 248 AD2d 201; Saratoga Spa & Bath v Beeche Sys. Corp., 230 AD2d 326; Klein v Seenauth,180 Misc 2d 213). Although not destroyed, the original letter, and specifically the notations made on it, was not disclosed until the eve of trial.
Claimant argues in her motion, that had Exhibit 27 been made available in a timely fashion, the resident who made the handwritten, "Accept..." notation could have been identified and deposed. Claimant would then have had the opportunity to explore the full meaning of his notations and perhaps obtain additional information regarding the long delay in scheduling claimant's appointment. There are two problems with crediting this argument. First, it presumes that claimant would be able to locate the third-year resident as of the date of claimant's first demand for the letter, namely October 19, 1999, more than two years after the resident made the notations. It further presumes that the resident's testimony would be beneficial to claimant, or at best, neutral.

The key to spoliation is that the evidence destroyed, or here, unusable, must be crucial to the issues at trial. Many spoliation cases involve the destruction of the instrumentality which led to a plaintiff's injuries before it could be examined by the opposition, thereby thwarting any possible use of it. Here, copies of Dr. Keever's letter were available from early in the discovery process. The only information not timely disclosed was the handwriting added to Exhibit 27 by the resident ("Accept March 18, 1997," "Do Not over book [sic]," "next Avail") and a clerical person ("ANK 6/26/97 12:30 pm") and the phone numbers and notes contained on the "Post-it" note attached to the second page. This information, now before the Court, still does not establish a physician-patient relationship; nor is it likely that testimony from the resident would change that, since the fact remains, claimant received no treatment or medical advice from the clinic, nor did her referring physician, Dr. Keever.
Without a physician-patient relationship, the medical malpractice cause of action must be dismissed.
Claimant also asserts a cause of action for ordinary negligence. Claimant argues that the clinic assumed a duty to her by accepting her as a patient and then was negligent by failing to schedule an appointment for her for 3 ½ months; thereby
, according to claimant, leading to foreseeable harm.
A cause of action in ordinary negligence is established when defendant owing a duty to claimant fails to use reasonable care to protect claimant from a foreseeable risk of harm, and as a result, claimant is injured. (Prosser and Keeton, Torts,
§31, at 169 [5th ed]). The distinction between medical malpractice and ordinary negligence is that to evaluate alleged wrongful conduct in a medical malpractice case, a comparison must be made to the standard of professional care, and a medical expert is necessary to present that proof. For ordinary negligence the determination of whether defendant's conduct was reasonable can be assessed based upon the common everyday experience of the trier of fact, requiring no medical knowledge or special skills (Miller v Albany Med. Center Hosp., 95 AD2d 977, 978; Smith v Pasquarella, 201 AD2d 782).
For claimant's ordinary negligence cause of action, the focus turns to the conduct of the defendant in administratively scheduling an appointment for claimant with the clinic. By accepting claimant as a potential new patient, defendant owed claimant a duty to schedule an appointment for her and to see her when she presented for that appointment. The medical experts agreed that 3½ months was too long of a time frame between referral and the appointment and claimant should have been seen sooner. The delay in scheduling claimant for an appointment, according to the experts, was a deviation from the professional standard of care. A comparison of defendant's conduct to what is acceptable practice within the medical community evinces a claim for medical malpractice which this Court has already determined cannot stand. For an ordinary negligence cause of action, defendant's conduct must be evaluated against that of a reasonable person, without any specialized neurological expertise or knowledge of AVM's.

Marie Turo, the medical office assistant who scheduled the June 26 appointment for claimant was acting under direction from the resident who evaluated Dr. Keever's letter and directed that claimant be scheduled for the "next available appointment." From Ms. Turo's perspective, based upon the resident's note, claimant's condition was not an emergency. This meant that claimant would not be seen for at least a month. In attempting to schedule claimant, Ms. Turo clearly had some legitimate difficulties in reaching claimant. Once she did reach claimant, the next available appointment was 1½ months away; not an unreasonable time frame given that the clinic only saw patients two days per week. Under these circumstances, and based upon the information before Ms. Turo at the time, she did not act negligently in scheduling claimant for the next available appointment three months after receiving the resident's direction. The risk of foreseeable injury at this juncture required medical expertise and even the experts disputed the risk. The delay in scheduling was not negligence or a failure to comply with a physician's orders (
see Zellar v Tomkins Community Hosp. 124 AD2d 287; Mossman v Albany Med. Center Hosp., 34 AD2d 263).
Undisputedly, the defendant, in error, turned claimant away on June 26 when she presented for her scheduled appointment and then rescheduled a new appointment for her another month later. Having claimant wait another month to be seen at the clinic crossed the line of reasonable conduct based upon the resident's instruction for scheduling claimant; however, the Court does not find that the failure to see claimant on June 26 was a legal cause of her injuries.

Dr. David A. Storrs, the defendant's expert in neurosurgery, testified that based upon the evidence, in retrospect, claimant had a small low-flow AVM, a micro-cavernous hemangioma, which was intermedullary, that is inside the spinal cord.[9]
Dr. Storrs supported his opinion based upon the claimant's original symptoms and the fact that there was no sign of an AVM when Dr. Eng operated.[10] Dr. Storrs felt that the AVM was so small that when it bled it obliterated itself. Dr. Storrs further testified that claimant's treatment options for such a condition would have been surgery or observation but he testified that there was a significant risk of doing more harm with surgery. The existing evidence would suggest in Dr. Storrs' opinion that the cavernous hemangioma was in the anterior or front portion of the spinal cord which would make surgery almost prohibitive. Even if the hemangioma were in the center of the spinal cord, although easier to locate during surgery, there would still be a significant risk of causing more neurological damage. Dr. Storrs indicated that he would have treated claimant conservatively, watching the condition and advising her to eliminate activities and behavior that increase the risk of hemorrhage, (i.e., limiting sports activities, refraining from ingesting aspirin, watching her blood pressure, etc.). There was clearly a risk of hemorrhage, increasing roughly one percent per year as the patient ages; however, claimant's condition prior to her acute bleed was relatively stable. There was, according to Dr. Storrs, no indication an impending catastrophe was about to occur.
Given these factors, and Dr. Storrs' testimony, the Court is not persuaded that even if claimant had been seen at the clinic on June 26, the outcome would have been any different. Claimant's appointment was June 26 - at most a week later she suffered the acute hemorrhage which caused her injuries. Even if a diagnosis had been made on June 26 or shortly thereafter, it is highly speculative that claimant would have opted for surgery given the risks, or that surgery would have been successful without causing claimant to suffer many of the same neurological deficits she ultimately incurred. Moreover, it is speculative that the surgery would even have been performed within the short time frame between June 26 and the tragic event. Even Dr. Waltz, claimant's neurological expert testified that a neurosurgeon after diagnosing claimant's condition might have waited or performed further testing before operating. Dr. Waltz, who strenuously argued that surgery was always the best option with AVM's (although he did not distinguish between the types of AVM's or their locations), indicated that he had seen two patients just the week prior and he had not operated on either one, although he would be operating on one of them in the future.

Although with hindsight, all damages could be described as foreseeable consequences of defendant's conduct, there is a line beyond which public policy prevents the extension of liability (
see Di Ponzio v Riordan, 89 NY2d 578 at 583; Ventricelli v Kinney System Rent A Car, 45 NY2d 950). The risk of injury from defendant's conduct must not be merely possible, but probable (see Di Ponzio v Riordan, supra at 585-586; PJI 3d 2:12 [2003]). Here, defendant's conduct was not a legal cause of claimant's injuries; to hold otherwise would open the door to liability for an exacerbation of a potential new patient's referring condition before a physician-patient relationship has been established.
It is heartbreaking that claimant never had an opportunity to obtain a timely diagnosis and an opportunity to choose her treatment; however, the fault cannot be laid upon the State. It is Dr. Keever who bears the responsibility, for with his knowledge of claimant's symptoms, he delayed the referral, failed to follow-up after the referral, and then even after his office was advised that claimant was at the wrong place on June 26,[11]
did not call the clinic directly to attempt to immediately schedule a new appointment. Although Dr. Keever admitted, that in other cases after making referrals to the Neurology Clinic, he had contacted the clinic to arrange for an earlier appointment to have his patients seen sooner, he did not do so in claimant's case.
The Court has agonized with the results of this decision for this claimant who is such a delightful person and has suffered not only the pain of her injuries, but the loss of so many of those things in life that brought her joy: holding her son, training horses. However, liability may only be imposed where the defendant's conduct is the legal cause of claimant's injuries and the Court does not find that to be the case here.

The claim is DISMISSED. All motions not previously determined are hereby denied. LET JUDGMENT BE ENTERED ACCORDINGLY.


November 21, 2003
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims





[1]Clonus is defined as "a rapid succession of flexions and extensions of a group of muscles, usually signifying an affection of the brain or spinal cord."
[2]See exhibit 14.
[3]Firm C referenced the Specialty Clinic which included the University Hospital Neurology Clinic until it moved to a different building in April, 1997.
[4]Claimant was cross-examined very thoroughly about the building layout and the driving route that she took to arrive at the Neurology Center. Claimant was also confronted with her deposition testimony in which she referred to 550 Harrison Street, a building also owned by SUNY Upstate Medical University which is across the street from 90 Presidential Plaza. Defendant was attempting to show that claimant may have gone to the wrong building for her scheduled appointment. The Court, however, finds that her route and the description of the building was not inconsistent with her deposition testimony and that she presented herself at 90 Presidential Plaza.
[5]Exhibit 31, a printout of appointments for the clinic on June 26, 1997, confirms claimant's appointment for that day.
[6]Doctor Wasenko explained that the hematoma had acute, subacute, and chronic blood, meaning recent blood, four- to-seven-day-old blood, and blood older than one month, respectively.
[7]Compare Davies v City of New York, 38 NY2d 257, 260, where, in the context of determining whether a doctor's office conduct amounted to continuous treatment so as to toll the statute of limitations, the court held telephone and mail contact were not medical services; nor was the act of registering at the desk of an emergency room and having one's vital signs recorded, Marabello v City of New York, 99 AD2d 133, 147.
[8]Exhibit 27.
[9]Dr. Eng's and Dr. Wasenko's findings also support Dr. Storrs' opinions.
[10]Dr. Joseph Waltz, claimant's expert, had no explanation why there was no sign of an AVM when Dr. Eng operated (trial transcript, p 302).
[11]Claimant called Dr. Keever's office on June 26, advising that she was in the wrong place and spoke with the receptionist, Carol Kane, and the nurse practitioner, Linda Keever.