New York State Court of Claims

New York State Court of Claims

WILLIAMS v. STATE OF NEW YORK, #2003-018-258, Claim No. 89535-A


The Court finds defendant liable for claimant’s loss of vision caused by the delay in diagnosis and treatment of a pseudo tumor cerebri.

Appellate Result:
Unanimously affirmed - November 14, 2008

Case Information

1 1.The Notice of Intention was originally brought by Kinyata Williams’ parents on her behalf and individually. The Court amended the caption, sua sponte, because Ms. Williams is now an adult. The term “claimant” will refer to Kinyata Williams. See motion (M-61167) decision filed June 13, 2000.
Claimant short name:
Footnote (claimant name) :
The Notice of Intention was originally brought by Kinyata Williams’ parents on her behalf and individually. The Court amended the caption, sua sponte, because Ms. Williams is now an adult. The term “claimant” will refer to Kinyata Williams. See motion (M-61167) decision filed June 13, 2000.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant’s attorney:
STANLEY LAW OFFICESBy: Joseph P. Stanley, 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:
July 27, 2004

Official citation:

Appellate results:
Unanimously affirmed - November 14, 2008
See also (multicaptioned case)


Claimant seeks damages from the State of New York on the theories of negligence and medical malpractice caused by the agents or employees at the State University of New York Health Science Center, University Hospital (hereinafter “Upstate”). This decision addresses both liability and damages.

On March 14, 1994, claimant, a freshman in high school, went to the school nurse complaining of a severe headache. After resting for a period of time without improvement, she was sent home. Claimant’s father took her to the emergency room at Community General Hospital (hereinafter referred to as “CGH”) on March 16, 1994, with complaints of headaches, body aches, dizziness and vomiting. While in the examining room, claimant complained to her father that the lights bothered her eyes, so he turned the lights off. This information was not conveyed to anyone in the emergency room. Her blood tests and vital signs were normal as were her vision and eye exams. She was diagnosed with acute viral illness and directed to take Tylenol, get rest, and drink clear liquids. If her symptoms persisted or worsened, the discharge instructions said she should be rechecked.

On March 18, 1994, claimant returned to CGH emergency room with her mother. Her major complaint, according to the records, was dizziness which had become more pronounced since her last visit. She also had a headache and vomiting. Claimant recalled her eyes being more sensitive to light (photophobic) on this visit, and her mother noticed that her eyes seemed to be bulging out, abnormally. There are no references to vision complaints in CGH’s records.[2] Except for a slightly elevated white blood cell count, all other signs and test results were in the normal range. She was given Antivert which ended the dizziness and nausea. Mrs. Williams recalled asking for a spinal tap (also called a lumbar puncture) to check for meningitis. The physician noted that there were no signs of meningitis and no tap was performed.

The CGH records indicate that claimant was to see Dr. Allan that night or Dr. Charles the next morning. Mrs. Williams testified that claimant had an appointment with Dr. Polachek on or about March 21, 1994.[3] The discharge instructions given to Mrs. Williams included returning to the emergency room if there were any changes or concerns. The diagnosis was a viral infection and labyrinthitis,[4] and medications were prescribed for the symptoms.

Claimant and her parents testified that claimant slept for most of Saturday and Sunday, March 19 and 20, and she was not seen by any health care provider. Her mother noticed that claimant’s eyes appeared to be bulging out even more.

With no apparent improvement, Mr. Williams took claimant to the Syracuse Community Health Center (hereinafter referred to as SCHC) on March 21, 1994. Claimant was to be seen that morning and being dissatisfied with CGH, he and his wife agreed claimant should be seen by another health care provider.

That afternoon claimant was examined by a physician at SCHC. Her complaints to the triage nurse included nausea, vomiting, headaches, photophobia, dizziness and decreased vision for a week. The exam revealed no positive visual acuity and papilledema.[5] Claimant was sent immediately to the emergency room at Upstate, the physician from SCHC having called there to confirm the referral. Mrs. Williams recalled taking an envelope to the emergency room with them, but did not know what was in it or what happened to it.

Claimant and her mother arrived at Upstate Emergency Room at 17:58 p.m., and was seen by the triage nurse at 18:55 p.m. The history given at that time included claimant’s visits to CGH and SCHC, with the previous diagnosis being the flu. The nurse noted that claimant had not improved with Tylenol and bed rest over the prior week. The complaints listed were fever, nausea, vomiting, bulging eyes and photophobia. At 19:40 p.m. claimant was seen by Dr. Peter Mariani and a medical student who was never identified. The student performed the physical examination and documented the chart as follows:

Patient is a 16 year old complaining of headache across forehead,

neck pain, back pain, generalized weak & malaise, fever &

nausea vomiting X 1-1/2 weeks. One week ago developed photo-

phobia & blurry vision & decreased visual acuity & bulging

eyes. Positive chills, complains of chest tightness & intermittent

shortness of breath. Positive dysuria since yesterday. No

diarrhea/constipation. Unable to tolerate po intake. Seen in Community

ER last week - was told she have [sic] virus & sent home on Tylenol &

(illegible). Symptoms have no [sic] subsided. Now complains of right

arm weakness & numbness...[6]

The relevant physical exam results showed the pupils equally round and reactive to light, extra-ocular movements intact, unable to count or follow fingers, fundi-pale disc. Dr. Mariani testified that he had no independent recollection of this physical examination and could only recount what was contained in the medical student’s notes. He agreed that to discern extra-ocular movement the patient is asked to follow the examiner’s fingers from side to side. The next entry, that claimant could not see fingers, Dr. Mariani said is not necessarily inconsistent with intact extra-ocular movement. It is possible that the eyes could be seen moving spontaneously resulting in this finding.

The next medical note indicates that when claimant’s optical disc was observed it was pale. Dr. Mariani said this finding is abnormal and could mean that the disc is being supplied with less blood than normal. This finding was known to Dr. Mariani at the time. Claimant was also observed to have bulging eyes (exothalmus). Upon muscle strength testing, claimant’s right side was noted to be weak and her DT reflexes were not detected, both abnormal findings.

Blood was drawn and tested, and a CT scan was taken of claimant’s head to rule out intracerebral bleeding. Claimant’s white blood count was mildly elevated, her CT scan was negative. Although no differential diagnosis was entered in claimant’s chart, Dr. Mariani noted symptoms which suggested something could be affecting claimant’s brain such as bleeding, infection or a tumor. A lumbar puncture (spinal tap) was ordered. Dr. Mariani believes that he made that decision. No visual acuity test was performed although the emergency room had an eye chart available. It was not standard procedure to do such a test and given the nursing notes, there was already information indicating claimant’s loss of vision.

Dr. Mariani’s shift ended at midnight, and he was replaced by Dr. Pipas[7] as the attending emergency room physician. Pursuant to the hospital records, at 12:20 a.m., Dr. Pipas supervised the lumbar puncture which was performed by a medical student. The record reflects that a consent form for the procedure was signed, but this form was not in the records received into evidence. Dr. Pipas testified that she thought she had personally performed the lumbar puncture.

Dr. Mariani testified that after receiving all of the test results, the attending physician should review all of the information regarding a patient and then decide what action to take. In claimant’s case, Dr. Pipas recalled receiving the normal CT scan results before Dr. Mariani ended his shift. Together they agreed a lumbar puncture would be done to rule out viral meningitis or subarachnoid hemorrhage. According to her deposition, Dr. Pipas never reviewed the notes of claimant’s physical examination which contained abnormal findings, specifically regarding her eyes and vision.

When Dr. Pipas performed the lumbar puncture, she did not measure the opening pressure of the cerebral spinal fluid (hereinafter referred to as CSF). Dr. Mariani testified that it was standard practice everywhere to take the opening pressure every time this procedure is done. Dr. Pipas said it was not. However, all the kits used to do the lumbar puncture contain a manometer, the tube used to measure opening pressure. Dr. Mariani explained that the manometer is connected to the needle that is inserted into the patient’s back. The CSF rises in the manometer which is marked in centimeters; a normal range is 20 to 25 centimeters. If the opening pressure is not measured, it is difficult to tell by the speed of the fluid movement whether or not the CSF pressure is within normal limits because the needle used is so small it impedes the flow. If a patient has a negative CT scan but an above normal opening CSF pressure, Dr. Mariani said this could lead to a number of diagnoses. None were entered on claimant’s chart. Ultimately, claimant was discharged by Dr. Pipas at 1:55 a.m., on March 22, 1994, with the diagnosis of non-specific headache, despite the fact that claimant’s headache had improved after the lumbar puncture; but, none of the other symptoms such as photophobia had changed. Additionally, Dr. Pipas did not avail herself of the information in claimant’s chart that showed other abnormal findings; and therefore, did not address them either with additional tests or in her diagnosis. Dr. Mariani testified that if claimant’s symptoms had not improved, she should not have been discharged. Dr. Pipas should have reviewed claimant’s physical findings as an essential element of claimant’s treatment. Dr. Mariani agreed that if she did not, there was a problem.

On Exhibit 1B, the discharge form, claimant was advised to follow up with SCHC if she did not improve in two days. The form was signed by Dr. Pipas. Under the patient’s signature line it was written: “pt’s mom - pt unable to sign due to poor vision.”

Claimant and her mother returned home. Mrs. Williams testified she did not recall the instructions to have claimant seen in two days if her symptoms did not improve. On March 25, 1994, at 3:05 a.m., claimant and her mother returned to Upstate Emergency Room after claimant noticed numbness in her genital area. Her symptoms had worsened and she had developed double vision in her left eye and decreased vision in her right eye.

The claimant’s physical examination showed that her eyes were bulging, and she did not make eye contact. She had bilateral papilledema and her extra ocular muscles could not be assessed because claimant could not see the doctor’s fingers. There was a sensory deficit noted on her upper right arm. A neurological consultation was requested. Both the emergency room physician and the neurology resident, Dr. Shah, considered the possibility of pseudotumor cerebri[8] and agreed the lumbar puncture should be repeated. The neurology attending physician, Dr. John Wolf,[9] arrived at 6:00 a.m. and ordered an MRI. At 9:00 a.m., a lumbar puncture was performed and the opening pressure was off the manometer per the nursing notes. The actual reading was noted as 55 cm. Claimant remembers the fluid “gushing” out.

Claimant was admitted to Crouse Hospital which adjoins Upstate for immediate surgery to relieve the pressure on her optic nerves.

Dr. John D. Sheppard testified on behalf of the claimant as a Board Certified Opthalmologist. He explained that pseudotumor cerebri is a condition with no tumor or systemic hypertension, nor is it associated with any gross abnormalities seen on imaging studies. The elevated pressure is thought to be caused by a deceased facility of outflow of the CSF through the main drain of the central nervous system; the arachnoid villi. The cause of this process has no known specific cause such as injury, disease, or organism. The incidence of this condition is much higher in young, overweight females than it is in older, thin males which may indicate a genetic or hormonal connection.

The CSF is a clear fluid which surrounds and cushions the brain and spinal cord in a closed system. There is regular production and regular outflow of the CSF which stay in balance maintaining a steady level of pressure. Either an increase in production or decrease in outflow causes the pressure to rise because it is within a confined space. The optic nerves are the largest sensory nerves to the brain which are sheathed and cushioned by CSF and they are part of the central nervous system. A physician, when examining a patient’s eyes, can see the nerve fibers of this optic nerve; it is the only place in the body nerves leading directly to the brain can be viewed without surgery.

According to Dr. Sheppard during a lumbar puncture, a normal opening pressure is five to ten centimeters of water and elevated pressure for a patient with pseudotumor cerebri is 20 - 25 cm. of water. Getting an opening pressure measurement is key to diagnosing any condition of the central nervous system in which the CSF is involved. A standard lumbar puncture includes obtaining an opening pressure and drawing off the fluid to be tested for various diseases.

A general practitioner or emergency room physician can evaluate the effects of increased CSF pressure on the optic nerves by using an ophthalmoscope. This hand-held device allows the physician to see the optic nerve1[0] including any small hemorrhages, swelling, or elevation and pulsation in the veins which would indicate early increased pressure on the optic nerve. In advanced disease, Dr. Sheppard said detection is “painfully obvious because the nerve is swollen, there’s blood everywhere. There is no clear demarcation between the nerve and the rest of the retina. There may be inflammatory debris inside the media of the eye as well.”1[1] An opthalmologist has more sophisticated techniques of detecting increased pressure and can recognize disease earlier. In a one minute exam, Dr. Sheppard said, a general practitioner or emergency room doctor could make a number of observations of the optic nerve that would reveal whether or not it had been damaged.

Dr. Sheppard reviewed claimant’s medical records and observed that the record of March 21, 1994,1[2] claimant’s emergency room visit, visual status was abnormal, but there was no effort to properly quantify her status as required by the standard of care. The universally accepted standard in the country for quantifying visual acuity is the eye chart reading by the patient with one eye at a time. Can they see the big “E” at the top of the chart from a given distance? If not, the patient is moved closer and if they cannot see the big “E” from one foot away, the doctor holds up fingers for the patient to count. If the patient cannot count the fingers, the doctor tests to see if the patient can detect hand movement in front of the face and if not, a light is shined in the patient’s eyes to determine if the patient can detect light, and its direction. This is the standard of care for testing visual acuity in the emergency room and can be performed by triage nurses or technicians when taking vital signs. When there is a patient with a visual complaint, the test described gives the primary piece of data needed for patients with visual complaints. Not performing these tests deviates from the standard of care per Dr. Sheppard. The fact that the medical student noted that claimant could not follow fingers is insufficient information for determining visual acuity; it lacks any quantification, although it does indicate the claimant’s vision was quite abnormal.

In reviewing the physical findings relating to claimant’s eyes on her chart, Dr. Sheppard testified that there was some inconsistent information. The medical student wrote that the claimant’s pupils moved normally and accommodation. Accommodation in this context means looking closely at something but the notation goes on to say that claimant could not follow fingers. Dr. Sheppard doubts the student determined claimant’s ability to accommodate. The chart continues saying extraocular motility intact but also says she cannot follow fingers. Dr. Sheppard said these findings are also inconsistent. The note about the pale disc upon examination of the fundi does not indicate which eye was examined and Dr. Sheppard could not think of a situation where a patient would have only one pale disc. The chart indicated that both eyes were bulging. From just this information, Dr. Sheppard would be unable to determine anything about claimant’s optic nerve functioning. The information does not make sense and the emergency room doctors deviated from the standard of care by not repeating the physical examination, specifically of claimant’s eyes.

The ordered CT scan was done to help evaluate the central nervous system and the claimant had a number of central nervous system complaints and signs. It was generally agreed that a CT scan or other imaging test must be done before a lumbar puncture because certain conditions, detectable by a CT scan could kill a patient if a puncture were performed. Dr. Sheppard said with pseudotumor, the CT scan is generally normal; the CSF opening pressure makes the diagnosis.

The claimant’s chart failed to include any differential diagnosis or documentation of the reasons the doctors ordered certain tests for claimant, especially for an invasive test such as a lumbar puncture. According to Dr. Sheppard, the failure to test claimant’s opening pressure during the lumbar puncture was a clear deviation from the standard of care for an emergency room doctor. His opinion is that one of, if not the most important, pieces of information obtained with this test is the opening pressure since claimant had central nervous system complaints, and the other diagnostic test, the CT scan, was normal.

The claimant’s chart contained only exclusionary information regarding claimant’s visual complaints. The CT scan ruled out tumor and bleed. The lumbar puncture ruled out infection. The patient is blind and there is no diagnosis. It was a deviation of the standard of care for any health provider to discharge claimant under these circumstances. Dr. Sheppard said claimant required admission and further testing. The fact that claimant could not see well enough to sign her name on the discharge form should be brought to a doctor’s attention before the patient is allowed to leave.

On March 25, 1994, which was claimant’s second visit to the Upstate Emergency Room, no visual acuity test was performed, but ultimately a lumbar puncture with opening pressure was performed. Claimant had an opening pressure of 55 cm., over twice the threshold for a diagnosis of pseudotumor. Claimant was treated by use of the lumbar puncture and medications in an effort to save her sight. She then had surgical intervention, reserved for severe cases of documented vision loss, to drain the sheath surrounding the optic nerve. Claimant had three decompression procedures, remaining hospitalized from March 25 through April 13. Her vision acuity fluctuated over time; but ultimately, too much damage had been done to the optic nerves and they died. Dr. Sheppard opined that had proper treatment been rendered to claimant on her first visit to Upstate’s emergency room, she would have significantly better sight in her left eye and perhaps normal vision in her right eye. It took some time for the CSF pressure to reach 55 cm. Once the CSF has filled all the cranial space and the pressure in the various tissues increases, extra fluid causes “devastating problems” according to Dr. Sheppard. If left untreated, it will result in death.

On cross-examination, Dr. Sheppard testified that, in his opinion, even if claimant had been properly diagnosed on March 21, she might still have lost some vision and may still have had to undergo the surgeries which she endured on March 25 and thereafter.

Claimant called Cynthia Kersteen, R.N., to testify regarding what information emergency room nurses should obtain from patients. She said the triage nurse’s duty is to obtain information regarding what brought the patient to the emergency room, an illness history, and any significant medical history. The nurse should obtain and note vital signs of the patient and assign priority to the patient. In this case, the triage nurse’s information was adequate. However, due to claimant’s complaints of visual disturbances on March 21, one of the nurses at Upstate should have evaluated her visual acuity by use of the Snellen eye chart. The records also lacked

evidence of any nurse evaluating claimant’s headaches and photophobia. These failures, according to Nurse Kersteen, deviated from acceptable nursing standards. Ms. Kersteen was also asked about claimant’s discharge from the hospital. A nurse should notify a doctor when a patient is being discharged without a diagnosis or treatment plan established for the very complaints which initially brought the patient to the emergency room. She acknowledged on cross-examination that she does not know what communication may have occurred between the nurses and doctors regarding claimant on March 21.

Called by the claimant as a treating physician was Dr. Deborah I. Friedman, an Associate Professor of Neurology and Ophthalmology at Upstate. She first saw claimant at the emergency room the morning of March 25 after claimant’s lumbar puncture. At that examination, Dr. Friedman noted claimant had light perception vision with possibly some hand motion in the right eye and light perception only in the left eye.1[3] Claimant had marked bilateral optic nerve swelling. Dr. Friedman admitted claimant to the hospital and prescribed high doses of corticosteroids to reduce the intracranial pressure and swelling, and she arranged for urgent surgical intervention. Claimant was diagnosed with pseudotumor cerebri, which, for unknown reasons, prohibits the usual dissipation and absorption of CSF. The surgery performed was an optic nerve sheath fenestration; opening a slit or hole in the sheath to allow the CSF to flow out, thereby reducing the pressure on the nerve. Claimant had three such operations.

Dr. Friedman described the temporary improvement in claimant’s eyesight after the diagnoses and treatment; however, the damage to the optic nerves prior to intervention was so severe, claimant is legally blind.

On cross-examination, Dr. Friedman stated that no one can tell at which point during the disease process the damage to claimant’s optical nerves became permanent. She noted that most patients with the same diagnosis have increased intracranial pressure and swelling of the optic nerve before they become symptomatic. In fact, one study shows a high percentage of patients with pseudotumor cerebri, whose complaints were initially vision-related, experience blindness.

In Dr. Friedman’s opinion, by March 21, claimant had already suffered some permanent loss of vision. However, she also said that between July and September 1994, claimant’s vision in her right eye deteriorated but she did not tell anyone. Dr. Friedman thought that loss could

have been prevented if claimant had reported the problem so she could be treated.

Dr. John Wolf’s testimony was preserved via deposition and admitted into evidence pursuant to CPLR 3117. When claimant presented to the Upstate Emergency Room on March 25, 1994, he was called in as a neurological consult. It was Dr. Wolf who requested Dr. Friedman’s involvement. In his opinion, it was a deviation from the standard of care to do a lumbar puncture without taking an opening pressure reading. It was also negligent to discharge claimant from the emergency room on March 22, 1994, without determining the cause of her vision problems.

For claimant to be successful, she must prove a deviation from acceptable medical practice and that the deviation was the proximate cause of injury or damage (Schrempf v State of New York, 66 NY2d 289; Bloom v City of New York, 202 AD2d 465). The preponderance of the credible evidence establishes that Dr. Pipas’ failure to obtain claimant’s opening CSF pressure when performing the lumbar puncture on March 21 was a departure from the standard of care which led to a delay in treating claimant’s pseudotumor cerebri. Consequently, this delay caused some damage to claimant. Although the experts agreed that quantifying claimant’s vision loss due to the State’s negligence is almost impossible to determine, the Court is charged with doing just that.

Dr. Sheppard discussed the varying levels of blindness and the resulting relativity of independent living. Although a person is “legally blind” (2200 - 2400) they can often be reasonably independent. Some people can read with magnification. In his opinion, with timely diagnosis, claimant would have been in this category or perhaps better. Dr. Friedman was less convinced that claimant’s sight would be significantly better; however, she did feel some improvement in claimant’s right eye could have resulted by intervention in the summer of 1994; therefore, it stands to reason that earlier intervention would have preserved some of her vision, the Court finds defendant liable for claimant’s loss of vision caused by the delay in diagnosis and treatment (Monahan v Weichert, 82 AD2d 102).

As noted above, Dr. Lauren Pipas entered into a settlement with claimant to resolve a separate action. The defendant argues and has submitted documentation1[4] that Dr. Pipas was not employed by the State of New York at the time she treated claimant in the emergency room at Upstate. Therefore, defendant requests that Dr. Pipas be treated as a separate and distinct tortfeasor in any allocation of liability and apportionment.

With a finding of liability against the State, the Court relies upon the doctrine of respondeat superior which requires an employer/employee or principal/agent relationship. The key to such a relationship is not payment or receipt of wages but whether or not the master controls the work of the servant. Additionally, the act of negligence must arise from the scope of the servant’s employment under the express or implied authority of the master.

According to a letter submitted, dated February 26, 2002, Dr. Pipas has been employed by the Research Foundation of the State University of New York as a clinical investigator since 1993. The Research Foundation is a private, not-for-profit corporation as set forth in its charter.1[5] However, Dr. Pipas also held an appointment as Assistant Professor of Emergency Medicine which allowed her to practice medicine in the Emergency Department. She earned fees, as a result, from the Emergency Medicine Clinical Practice Plan. No further documents were submitted regarding the clinical practice plan; however, the Court finds anything further to be unnecessary.

The Court of Appeals in Miles v R & M Appliance Sales, 26 NY2d 451, relied upon the Restatement 2d, Torts, §429, which says:

One who employs an independent contractor to perform services

for another which are accepted in the reasonable belief that the

services are being rendered by the employer or by his servants,

is subject to liability for physical harm caused by the negligence

of the contractor in supplying such services, to the same extent

as though the employer were supplying them himself or by his


This concept has been applied to medical malpractice cases where the hospital was found liable even though the negligent treating physicians were not hospital employees (Hill v St. Clare’s Hosp., 67 NY2d 72; Mduba v Benedictine Hosp., 52 AD2d 450). Specifically, when a patient enters the hospital through the emergency room, not seeking treatment from a specific physician (Mduba, supra; Ryan v New York City Health & Hosps. Corp., 220 AD2d 734; cf., Hannon v Siegel-Cooper Co., 167 NY 244). Therefore, the Court finds that the State is vicariously liable for the negligence of Dr. Pipas.1[6] Because there is no independent basis for the State’s liability, there can be no apportionment between Dr. Pipas and the defendant. However, the State is entitled to a set-off in the amount already received by claimant in the settlement with Dr. Pipas (General Obligations Law § 15-108).

Further, the Court finds that there is insufficient proof of negligence on the part of CGH to warrant an allocation of liability. The claimant and her mother were unsure of whether or not any visual complaints were given to anyone at CGH emergency room on either visit. If any complaints were made, they were not recorded anywhere.1[7] The claimant’s eye examinations on those two occasions were normal and her symptoms, as recorded, did not lead to a conclusion that a visual acuity test would be needed. If claimant’s photophobia and bulging eyes were conveyed to the staff at CGH, Dr. Friedman testified that these were non-specific symptoms which would not lead to a diagnosis of pseudotumor cerebri.
The defendant has been found liable for a decrease in claimant’s vision. The delay in diagnosing and treating claimant’s condition also directly caused the need for surgical intervention. On March 25, 1994, when claimant was diagnosed, she underwent an optical sheath fenestration to relieve the pressure on the left optical nerve. The acuity in her left eye improved temporarily. The same procedure was performed on her right eye on March 31, 1994 and again on her left eye on April 7, 1994.

In addition, on April 29, 1994, claimant had a peritoneal shunt surgically implanted to aid in the drainage and re-absorption of CSF. According to Dr. Sheppard, this was a result of the delay in treatment. The shunt has potential failure problems and claimant was seen in the emergency room on a few occasions to determine whether or not it was malfunctioning.

Claimant suffered a bout of clinical depression as a result of her blindness. She had suicidal thoughts but was treated successfully with medications. In all, claimant’s post diagnostic attitude and accomplishments are impressive. She finished high school on time and with honors, and later learned Braille. The struggles she faced in colleges have, to the date of trial, prevented her from obtaining a degree.

The claimant called two experts to testify about the financial impact her lost vision will have on her life. The first, Kenneth W. Reagles, Ph.D., prepared a report1[8] which addressed claimant’s diminution of earnings capacity, her inability to perform household tasks, and the need for future health related goods and services. The loss of sight and its attendant limitations can be understood but not fully appreciated by the sighted public. Obviously, claimant’s vocational options are greatly reduced, especially when considering the physical demands of various jobs.1[9]

Her daily life involves many more challenges and frustrations than it would have otherwise. Some of claimant’s limitations, such as not reading (even with magnification) have curtailed her continuing education. Claimant, as previously stated, has learned to read Braille and has obtained technological assistance, which would enable her to continue her education, but she has not done so. Dr. Reagles calculated lost earning capacity based on three different levels of education claimant has or may attain. Despite her efforts, claimant has only a high school diploma. Her lost earning capacity will be based upon that.

Dr. Reagles also calculated various items to assist with claimant’s daily living needs, her future medical needs and some assistance with household chores currently provided, to some extent, by claimant’s parents. Since some of these items would have been necessary due to vision loss unrelated to the State’s negligence, only a portion of those expenses are being awarded to claimant. Furthermore, the evidence is clear that claimant has a variety of services available to her through government and other organized groups for the visually impaired. Dr. Reagles figure for lost earning capacity, future household services, and future health related items is $3.8 million. Dr. Jerry Miner, an economist, calculated claimant’s future damages2[0] to be $3.6 million. Based upon the previous facts, the Court finds the State to be 100 percent liable and awards claimant $2 million for those future losses. The past pain and suffering award, considering the surgical interventions and the loss of enjoyment of many of life’s gifts is $1.2 million. The State is entitled to a set-off of $2 million, as previously mentioned. It will reduce the past and the future portion of the damages by its pro-rata share to the whole.

The total damages are $3.2 million. The future damages ($2 million) are 62.5% of the total and the past damages ($1.2 million) are 37.5%. Therefore, 62.5% of the $2 million settlement, or $1,250,000 is deducted from the $2 million future award, leaving $750,000 due and 37.5% of the $1.2 million, or $750,000 is deducted from the past damages award leaving $450,000 due.

The gross breakdown of future damages is as follows:
Lost earnings: $390,000 over 17.3 years
Future medical expenses: $410,000 over 52.3 years

Future household services: $1,200,000 over 50 years

Since the amount of future damages exceeds $250,000, 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; and further, 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).

No proof of damages for claimant’s parents’ loss of services was provided at trial; therefore, their individual causes of action are dismissed.

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

July 27, 2004
Syracuse, New York

Judge of the Court of Claims

[2].Exhibit 3.
[3].Mrs. Williams’ insurance had just been reinstated and Dr. Polachek had been selected as the family’s primary care physician but no one had seen him yet.
[4].Inflammation of the labyrinth of the internal ear.
[5].Papilledema is an emergent condition characterized by extreme swelling and loss of delineation of the optic nerve, dilation of blood vessels and a yellow color. It indicates a serious problem in the central nervous system or the optic nerve.
[6].Exhibit 1-A. Dr. Mariani read the note into the record and the Court has recorded it without the use of abbreviations.
[7].Dr. Pipas’s deposition was received as Exhibit 30 in lieu of her appearance. Dr. Pipas settled a separate lawsuit with claimant in a Supreme Court action.
[8].Pseudotumor cerebri is also called Idiopathic Intracranial Hypertension or IIH but pseudotumor cerebri is the more commonly used term although not as accurate in description.
[9].Dr. Wolf’s deposition was received in evidence as Exhibit 32 in lieu of his appearance.
1[0].This presumes the patient has no cataracts or other blockage in the patient’s eyes.
[1]1.All quotes contained in this decision are from trial tapes unless otherwise specified.
1[2].Exhibit 1-A.
1[3].These visual acuity levels are self-explanatory and indicate that claimant could not see the big “E” at the top of the eye chart.
1[4].Exhibits B and C.
1[5].Exhibit C.
1[6].The basis for this finding has been under a theory of agency or agency by estoppel. See, Hill, supra; Restatement (Second) of Agency §267.
1[7].Exhibit 3.
1[8].Exhibit 31.
1[9].These are set forth in Dr. Reagles report.
2[0].See Exhibit 33.