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
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
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,
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
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
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
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...
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
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.
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
and agreed the lumbar
puncture should be repeated. The neurology attending physician, Dr. John
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
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
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
Dr. Sheppard reviewed claimant’s medical records and observed that the
record of March 21, 1994,1
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,
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
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
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
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
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
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
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
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
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
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
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
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.