New York State Court of Claims

New York State Court of Claims

STOCKHOLM v. THE STATE OF NEW YORK, #2004-009-130, Claim No. 95825


In this medical malpractice decision, the Court awarded $301,238.45 in total damages. In reaching this decision, the Court had to take into account that claimant was already suffering from RSD at the time the malpractice occurred, and then determined the extent to which the malpractice exacerbated this previously existing condition.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
BY: James L. Chivers, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Edward F. McArdle, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
June 28, 2004

Official citation:

Appellate results:

See also (multicaptioned case)

In this claim, claimant seeks damages against the State based upon allegations of medical malpractice for treatment provided to her at the State University of New York Health Science Center, University Hospital, in Syracuse, New York (University Hospital). In a decision dated September 26, 2001, rendered after a bifurcated trial on the issue of liability, this Court determined that the State was 100% liable for the injuries suffered by claimant for the medical procedures performed upon her at University Hospital (
Stockholm v State of New York, Ct Cl, September 26, 2001, Midey, J., [UID No. 2001-009-104])[1].
This decision follows a trial on the issue of damages which was held September 15 through 17, 2003. At this trial claimant offered testimony as to her condition, as did her son, Derek Stockholm. Christopher Gharibo, M.D., a pain management specialist, testified as claimant's medical expert. Joseph Pessalano, a vocational rehabilitation specialist, testified for the defendant, as well as Scott Gingold, M.D., a neurosurgeon who testified as defendant's medical expert. The Court also heard testimony from Daniel McGowan, Ph.D., an economist who testified to the costs of a life-care plan he had prepared for claimant, and from Jerry Miner, Ph.D., who provided expert economic testimony on behalf of the defendant.

In August 1994 claimant was referred by her treating physician to the Pain Management Clinic at University Hospital. She had previously been diagnosed with Reflex Sympathetic Dystrophy (RSD), a progressive pain condition which can develop following an injury or trauma. After her evaluation, a recommendation was made to insert a dorsal column stimulator (DCS) in an attempt to reduce the pain caused by claimant's RSD.

The device was implanted in two separate stages during December 1994. The first procedure was performed under local anesthesia and involved the insertion of metal electrode lead wires into claimant's back near her spine. These wires were anchored with a clip, approximately the size of a dime or nickel. The second procedure was performed shortly thereafter, on December 22, 1994, under general anesthesia, when the DCS was inserted and connected to the lead wires.

Claimant experienced difficulties immediately following the surgery, and it was eventually determined that the lead wire had moved and that the DCS was not functioning. As a result, claimant underwent a third surgery on January 24, 1995 in which the lead wire was replaced.

Nine days later, the lead wire broke through the skin on claimant's back, and was protruding to such an extent that it was visible to the naked eye. Claimant therefore returned to University Hospital and a procedure was performed on February 3, 1995 in which the wire was reinserted. The site became infected, however, and claimant was readmitted to University Hospital on March 14, 1995. Because of the infection, the DCS was removed the following day, on March 15, 1995. Claimant remained hospitalized from March 14, 1995 through March 22, 1995.

Even after this operation to remove the DCS, however, claimant continued to experience pain and muscle spasms at the incision site. She was treated in August, 1995 at United Health Services, Johnson City, for acute pain at the site. In September 1995 claimant again returned to University Hospital, where she was examined and diagnosed with scar neuroma, and surgery was scheduled. She reentered University Hospital on October 20, 1995 and during this procedure, it was discovered that the anchor (or clip) had not been removed during the March 15, 1995 surgery, and it was therefore removed during this procedure.

In its prior decision on liability, the Court found that reinsertion of the lead wire, once it had protruded through the skin and became exposed to air, constituted medical malpractice, and that the failure to remove the anchor (clip) during the March 15, 1995 surgery when the stimulator was removed also was malpractice. The Court also found a causal connection between the malpractice (reinsertion of the lead wire) and the infection which developed at the incision site, necessitating the hospitalization of claimant and leading to the removal of the DCS.

There is no question, therefore, that claimant is entitled to an award for the damages suffered by her as a result of these acts of malpractice. Significantly, however, claimant contends that the RSD from which she was already suffering, and from which she continues to suffer, was exacerbated by the medical malpractice, and that her medical condition has been severely worsened by the failed attempt to insert the DCS.

This Court has previously decided several cases in which liability was established against the State, and where claimants have suffered injuries leading to RSD. While difficult to do so, this Court has made every attempt to appreciate the pain and suffering endured by these claimants, and has endeavored to make an award of damages commensurate with such pain and suffering. In this case, however, claimant was already enduring pain and suffering attributable to RSD when the acts of malpractice (which formed the basis of the liability determination herein) occurred. The Court, therefore, is presented with the novel case in which a claim is asserted for pain and suffering associated with RSD, arising from acts of medical malpractice, which occurred during the course of treatment for RSD. As a result, the Court must determine the extent, if any, that these acts of malpractice exacerbated the previously existing condition of the claimant.

As established by claimant's medical records (see Exhibit 91), claimant had sustained an on-the-job injury to her left hand in December 1991. She began treatment with Ronald T. Gauthier, M.D., in December 1991 for this injury. In 1992 she began receiving Workers' Compensation benefits attributable to this injury. Claimant continued seeing Dr. Gauthier from December, 1991 through 1998 when Dr. Gauthier left the practice. During this period of treatment, claimant was diagnosed with reflex sympathetic dystrophy (RSD) in 1992.

In 1994 Dr. Gauthier determined that as a result of her symptoms, claimant was severely partially disabled; that she had third stage reflex sympathetic dystrophy; and that such condition was chronic.

Eventually, also in 1994, claimant was referred to the Pain Management Clinic at University Hospital because "traditional therapies" for her treatment had been exhausted (see Exhibit 91,
letter from Michael E. Wolff, M.D., dated August 10, 1994).
Following the procedures performed on, and treatments received by, claimant at University Hospital as previously described herein, claimant continued treatment with Dr. Gauthier. In March 1996 Dr. Gauthier noted that claimant's RSD appeared to be worsening.

In May 1996 claimant was examined by Andrew Dubin, M.D., at the Albany Rehabilitation Center at Albany Medical Center for a second opinion. Dr. Dubin concluded that claimant's symptoms were consistent with RSD, and that the RSD was more diffuse, having progressed from a specific area involving her left upper extremity
An independent medical examination was conducted by Albert Kochersperger, M.D., in November 1996, who also diagnosed claimant with RSD and with a progressive spread of the RSD to both her upper and lower extremities.

Claimant also continued to treat with Dr. Gauthier through 1998, in which various medications were prescribed by him in attempts to alleviate her pain and discomfort. Since April 1999 to the present, claimant has been treated by Louis Mateya, M.D., who has seen claimant on numerous occasions for her RSD. She has also been receiving treatment from Darren Weinheimer, D.P.M., a pediatrist, from November 2000 to the present for treatment of pain and problems with her feet and ankles. She has received numerous injections of medication in attempts to relieve this pain in her lower extremities. At the time of trial, claimant was taking two prescribed medications, Prilosec (for acid reflux disease) and Lorazepam, also known as Ativan, as an anxiety controlling medication.

Dr. Gharibo, claimant's medical expert, and Dr. Gingold, defendant's medical expert, offered sharply contrasting opinions as to the effect that the various surgical procedures at University Hospital have had on claimant's medical condition.

Dr. Gingold conducted two examinations of claimant, one in February 2002 and the second in July 2003. After the first examination, Dr. Gingold described claimant as suffering from atypical Reflex Sympathetic Dystrophy in her upper limb, and noted that for all practical purposes, she was unable to use her left hand.

In his second examination, Dr. Gingold observed little change in claimant's medical condition. Based upon the stability of claimant's medical condition, and his review of claimant's medical records, Dr. Gingold concluded that claimant had been misdiagnosed with RSD. Since it had been many years since claimant was first diagnosed with RSD, and with his finding that she was relatively stable with her condition, he determined that claimant was suffering instead from Munchausen Syndrome, which can be described as a patient's mistaken belief that he or she suffers from a certain medical condition. In other words, Dr. Gingold concluded that although claimant believed she had RSD, and exhibited some of the symptoms, including the pain, she actually did not suffer from that disease.

This diagnosis is completely contrary to all prior diagnoses which had been made by claimant's various physicians who have treated claimant over the past several years, including Dr. Gauthier (claimant's primary physician), Dr. Dubin from Albany Medical Center (who has provided a second opinion), and Dr. Gharibo, claimant's expert. These physicians have all been consistent in their conclusion that claimant is in fact suffering from RSD.

Therefore, although the Court has noted the observations made by Dr. Gingold as to claimant's medical condition, it does not credit Dr. Gingold's conclusion that claimant is suffering from Munchausen Syndrome. This conclusion, reached after two physical examinations of claimant, simply does not hold weight when viewed in contrast with the consistent diagnoses of RSD made by claimant's treating physicians over the course of several years.

Dr. Gharibo provided sharply different testimony as claimant's medical expert. He had examined claimant in June 2002 and also conducted a follow-up examination in June 2003. He agreed with the prior diagnoses that claimant was suffering from RSD, and determined that claimant's medical condition has rapidly deteriorated since the surgical procedures which were conducted at University Hospital. He concluded that the medical malpractice committed by the State physicians was a substantial factor in aggravating the RSD and that the complications which occurred at University Hospital allowed the RSD to "spin out of control"[2]
. Dr. Gharibo concluded that 70 to 80 percent of the pain and suffering associated with the RSD can be attributed to the acts of malpractice committed by the State physicians.
Dr. Gharibo, however, did not demonstrate a particular familiarity with claimant's prior medical condition. For example, he was not aware that any prior diagnosis had been made that claimant was suffering from RSD, even though Dr. Gauthier had concluded that claimant was in the third stage of RSD as early as March 1994. Furthermore, he assumed that claimant's medical condition was relatively stable prior to the treatment received at University Hospital, even though claimant's medical records establish that her pain had already begun to migrate to her right arm, as well as her ankles and feet. These indications were also reflected in claimant's medical records prior to the acts of malpractice.

The Court also notes that although claimant's medical records were received into evidence, none of claimant's treating physicians testified at trial. The Court therefore did not have the benefit of hearing from those in the best position to know and observe claimant's medical condition, with respect to the RSD, both prior to and after the surgical procedures involving the insertion and subsequent removal of the dorsal column stimulator.

Based on the lack of testimony from claimant's medical providers, as well as the flawed assumptions made by Dr. Gharibo as to claimant's prior medical condition, the Court is unwilling to accept Dr. Gharibo's assessment that 70 to 80 percent of claimant's current medical problems can be attributable to the acts of malpractice which occurred at University Hospital.

While sympathetic to claimant's suffering, the Court must take into account that claimant had experienced symptoms of RSD for approximately two years prior to her referral to University Hospital. Furthermore, testimony at both the liability and damages trials established that the insertion of the dorsal column stimulator was intended as a last resort in an attempt to alleviate claimant's pain, a strong indication that her condition was not stable prior to such treatment (as assumed by Dr. Gharibo). Finally, claimant, to her credit, appears to be coping with her condition as best as she is able, and at the present time her condition appears to be relatively stable since she is presently on limited medication and does not exhibit the need for home health aides or other assistive devices.

The Court therefore finds that the life-care recommendations made by Dr. Gharibo must also be severely discounted. Dr. Gharibo has recommended, as necessary, services such as home health aides, assistive devices, physical therapy, psychological counseling, and medication, that in his estimation, claimant will require for the balance of her life. Claimant, however, is presently not receiving such services or treatments, and there is no indication in the records and testimony that they have been recommended by her treating physicians. The Court therefore concludes that the life care plan proposed by Dr. Gharibo, and the associated expenses for such plan provided by Dr. McGowan, are entirely too speculative and must be rejected.

Even though the Court does not agree with Dr. Gharibo that claimant's current medical condition (RSD) is primarily attributable to the acts of malpractice, the Court has already noted that it does not agree with defendant's assessment that claimant is not even suffering from RSD. Although it has rejected the life-care plan proposed by Dr. Gharibo, and the costs associated with it as provided by Dr. McGowan, the Court does find that the testimony and medical records establish that the acts of malpractice chargeable to the State have, to a degree, aggravated the RSD, and that claimant will continue to suffer the effects of such malpractice for the balance of her life[3], though certainly not to the extent claimed by Dr. Gharibo.
At trial, the parties stipulated that claimant was entitled to recover the costs of her medical care provided at University Hospital, which constitutes a portion of a Workers' Compensation lien upon any recovery. The parties stipulated to this amount of $39,238.45.

Based upon the foregoing and the entire trial record, therefore, the Court finds that claimant is entitled to be awarded damages as follows:

Past Pain and Suffering

Future Pain and Suffering

Past Medical Expenses

Future Medical Expenses $37,000.00
Total Amount Awarded

The amount awarded herein shall carry interest at the rate of 9% per year from the date of the determination of liability on September 26, 2001 (see
Dingle v Prudential Prop. & Cas. Ins. Co., 85 NY2d 657; Love v State of New York, 78 NY2d 540).
The Clerk is directed to enter judgment in favor of the claimant and against the State of New York in accordance with this writing, which constitutes the Court's decision pursuant to CPLR 4213(b).


June 28, 2004
Syracuse, New York

Judge of the Court of Claims

[1] Unpublished decisions and selected orders of the Court of Claims are available via the Internet at
[2] Unless otherwise indicated, all references and quotations are taken from the Court's trial notes.
[3]At trial, the parties stipulated that claimant's life expectancy was 37 years.