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
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,
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
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
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
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
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
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
. 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
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
, 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
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).
LET JUDGMENT BE ENTERED ACCORDINGLY.