ANDERSON v. THE STATE OF NEW YORK, #2006-009-164, Claim No. 98730
In this damages decision, claimant was awarded the total sum of $2,620,000.00.
A hearing pursuant to CPLR Article 50-A will be scheduled.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
NICHOLAS V. MIDEY JR.
MICHAELS & SMOLAK, P.C.
BY: David A. Kalabanka, Esq.,Of Counsel.
HON. ELIOT SPITZER
Patricia M. Bordonaro, Esq.,
October 2, 2006
See also (multicaptioned
In this claim, claimant seeks damages for personal injuries suffered by her as
a result of medical malpractice which occurred during a surgical procedure
performed on May 8, 1997 at the State of New York Upstate Medical Center (a/k/a
University Hospital) in Syracuse. In a Decision and Order filed October 17,
2003, this Court granted claimant’s motion for partial summary judgment as
. Pursuant to the Decision and
Order, an interlocutory judgment was entered on October 24, 2003. Defendant
appealed this judgment, and in a Decision entered November 19, 2004, the
Appellate Division, Fourth Department, unanimously affirmed the Decision and
Order of this Court (12 AD3d 1191). A trial on the issue of damages has since
been held and this decision is limited solely to that issue.
On May 8, 1997, claimant, a 76-year-old woman who had been previously diagnosed
with Parkinson’s Disease (hereinafter referred to as “PD”),
underwent a surgical procedure, known as a pallidotomy, to ameliorate certain
symptoms of her disease, specifically her left-sided tremors. As described in
the papers previously considered by the Court in the summary judgment motion,
this procedure involves the insertion of an electrode into the globus pallidus
section of the brain, with a lesion then being made by the electrode to destroy
a small piece of the brain responsible for those tremors. During this
procedure, however, a micropositioner malfunctioned, and claimant suffered an
intercerebral hemorrhage, rendering her permanently hemiplegic on her left side.
In its prior Decision and Order granting claimant summary judgment on
liability, the Court found that University Hospital personnel had failed to
properly maintain and service the micropositioner, that the malfunction of the
micropositioner during claimant’s surgical procedure was a direct result
of this failure, and that the malfunction was the proximate cause of the
hemorrhage suffered by claimant during the surgery.
There is no dispute that immediately after this surgery, claimant suffered a
permanent loss of mobility and independence due to her hemiplegia, and required,
and still requires, 24-hour care. The parties sharply disagree, however, as to
the extent that claimant’s pain and suffering is attributable to the
complications caused by this surgery, or to the continuing progression of
claimant’s pre-existing PD. Along the same vein, the parties offered
differing opinions as to whether claimant’s subsequent confinement to a
nursing home, and the costs associated with such confinement, was necessitated
by complications arising from the surgery or the continued progression of the
For several years prior to the surgery of May 8, 1997, claimant resided with
her daughter and son-in-law, Sheila and Edward Clark. Edward Clark testified
that prior to this surgery, claimant was able to carry on conversations, even to
the point of engaging in lively debates. She was able to maintain a garden,
care for pets, and enjoyed hobbies such as reading, knitting, and watching
movies. He further testified that claimant was able to take care of herself,
and that she was able to walk on her own, without any assistance. Sheila Clark
provided similar testimony, and added the fact that just one month prior to her
surgery, she and her husband took an extended vacation to Florida, and that they
felt comfortable leaving claimant alone, in their home. During this time,
claimant not only cared for herself, but also was able to maintain the home.
Sheila Clark acknowledged that her mother had previously been diagnosed with
PD, and that her tremors, especially on her left side, had increased over time
prior to the surgery. She testified that her mother had decided on the surgery,
since she had been assured of up to five tremor-free years following the
pallidotomy. Even though the tremors had increased prior to the surgery, Sheila
Clark testified that immediately prior to the surgery, her mother could prepare
her own meals, attend to all of her own personal needs, maintain the household,
and was mentally capable of attending to her financial affairs.
In the years leading up to the surgery in 1997, Michael Sharak, a
physician’s assistant at University Healthcare Center, was
claimant’s primary medical care provider. He testified that he began to
prescribe the drug Sinemet for claimant in 1991, since she had started to
experience tremors which had begun to affect her ability to write and to hold
items. Although claimant had not yet been diagnosed with PD, he believed that
claimant was probably in the early stages of PD at that time, based upon her
symptoms. These symptoms prompted him to prescribe the Sinemet, which he
described as the “gold standard” for treatment of PD.
Mr. Sharak testified that claimant began to increasingly complain of symptoms
characteristic of PD in 1993 and 1994, and that she was finally diagnosed with
PD in August, 1994. Despite this diagnosis, he testified that claimant was
still able to maintain her daily activities, and that the PD did not
significantly interfere with her normal routine. By 1997, however,
claimant’s tremors had increased to the point where they were interfering
with her daily activities, and it was at this time that arrangements were made
for the surgery which occurred in May, 1997.
During the course of his treatment of claimant prior to this surgery, Mr.
Sharak testified that he did not have any problems in communicating with
claimant, nor did he notice any mental problems or difficulties. In 1996,
Mr. Sharak did note that claimant had complained of hallucinations, but
this was attributed to her medication.
During the operation of May 8, 1997, claimant suffered an acute cerebral
hemorrhage, which required a second emergency surgery to evacuate that
hemorrhage. This second procedure, a right frontoparietal craniotomy, also
involved the drilling of several bur holes into claimant’s skull, due to a
concern over swelling of the brain. Following surgery, claimant was comatose,
intubated and on a ventilator for several days. As previously stated herein,
due to the hemorrhage claimant was left permanently and completely paralyzed on
her left side.
While she remained in the hospital, claimant began to receive significant
rehabilitation services. Although she was able to follow simple commands, she
was confused and unable to verbally communicate.
Approximately one month after the surgery, claimant was transferred to a
skilled nursing facility (James Square) in order to receive skilled nursing care
and several forms of therapy. Within one month, however, claimant developed
significant swelling and pain in her left leg, necessitating a readmission to
University Hospital for treatment. She was diagnosed with deep venous
thrombosis (DVT), which all of the medical experts agreed was caused by the
immobility resulting from her hemorrhage.
Claimant remained a patient in University Hospital for approximately one week
for treatment of her DVT, and was then discharged from the hospital back to
James Square for continued rehabilitation and therapy. She was once again
admitted to University Hospital for treatment of a urinary tract infection, and
on August 28, 1997, was discharged from the hospital to her daughter
Sheila’s home. While at home, claimant continued to receive therapy and
skilled nursing care, with other related services for approximately four years.
In August, 2001 claimant was admitted to a residential care facility (Vivian
Teal), and remained there until she was transferred to Iroquois Nursing Home in
July, 2002, where she currently resides. Over time, claimant also suffered from
recurrent urinary tract infections, incontinence, and constipation, all of which
manifested themselves following the surgical procedure in May, 1997.
Edward Clark, claimant’s son-in-law, testified that following the
surgery, claimant turned into an entirely different person, in that she was
mentally confused, and totally dependent upon the care of others for her most
basic daily needs.
Mr. Clark testified that he and his wife wanted claimant to return home
following her rehabilitation so that they could care for her at home. In order
to accommodate claimant when she eventually returned home, he testified that it
was necessary to make several structural renovations to their home. These
renovations included the installation of a sliding door into the exterior wall
on the side of the house; the removal of an interior wall to convert two
separate bedrooms into one large room to make room for claimant’s hospital
bed and related equipment; and the remodeling of their bathroom, including
construction of a ramp to allow claimant’s shower chair to be moved into
the shower stall.
Allan Hausknecht, M.D., a Board Certified neurologist, testified as
claimant’s medical expert. He testified that claimant suffered a massive
hemorrhage during the surgery of May 8, 1997. Although it started in the
thalamic region of the brain, the hemorrhage also extended into the
frontoparietal and temporal regions of the brain, with an edema approximately
one inch in diameter surrounding the original hemorrhage. He testified that the
hemorrhage caused an instantaneous death of the brain cells in the affected
Due to this massive hemorrhage, Dr. Hausknecht testified that claimant was left
with many serious medical problems, in addition to the obvious (and permanent)
left-sided paralysis. He testified that the hemorrhage caused permanent
incontinence, a partial loss of vision, and that claimant also developed a
thalamic pain syndrome, which caused significant pain to claimant’s
paralyzed left side.
Based upon the effects of this hemorrhage, Dr. Hausknecht concluded that
claimant was faced with an immediate and permanent loss of mobility and
independence, requiring 24-hour care. Additionally, she was essentially
bedridden, Dr. Hausknecht testified that claimant’s subsequent
gastrointestinal illnesses, urinary tract infections, and DVT were all direct
consequences of the hemorrhage.
Significantly, Dr. Hausknecht also testified that dementia ultimately suffered
by claimant was also directly attributable to this hemorrhage, and not to her
pre-existing PD. Although dementia can be associated with end-stage PD, Dr.
Hausknecht concluded that claimant’s dementia was a delayed effect of the
hemorrhage. He based his conclusion upon the fact that shortly before the
surgery, claimant underwent an MRI which revealed a normal brain with no
indication of dementia, and that a stroke may very well increase the incidence
of dementia. Dr. Hausknecht testified that the references in claimant’s
medical records to her forgetfulness, prior to the surgery, were typical of
symptoms to be found in a 75-year-old person. His review of the medical records
did not find any diagnosis, or even a concern, that claimant might have been in
the early stages of dementia prior to the surgery in 1997.
Even though Dr. Hausknecht acknowledged that claimant’s dementia was a
significant factor in the decision to place claimant in a residential care
facility, he concluded that the dementia was a direct result of the massive
hemorrhage suffered by claimant in the surgery, and that it was not attributable
to end-stage PD. Additionally, Dr. Hausknecht testified that in his opinion,
even in 2005, claimant had not reached end-stage PD.
Blair Ford, M.D., a Board Certified neurologist with expertise in PD, testified
as defendant’s expert. Based upon his examination of claimant’s
medical records, together with his medical examination of claimant, Dr. Ford
presented sharply contrasting testimony to that of claimant’s expert, and
arrived at much different conclusions as to claimant’s physical condition,
both prior to and following the surgery.
Dr. Ford provided detailed testimony pertaining to the various stages of PD,
and the symptoms evident in each stage, as well as to the progression of the
disease and various methods of treatment. He also provided extensive testimony
regarding PD-related dementia, which often occurs in PD patients (and which is
also referred to as Diffuse Lewy Body Disease).
Based on his interpretation of claimant’s medical history, Dr. Ford
concluded that the onset of PD occurred in 1985, when claimant was 65 years of
age. He based this conclusion upon the fact that claimant had begun to
experience tremors, as well as symptoms of balance impairment by 1985. These
symptoms progressed over the years, and by 1991, Dr. Ford saw evidence that
claimant not only exhibited symptoms of the tremors, but also displayed evidence
of stiffness and slowness of movement. At this point, Dr. Ford believes that
claimant had already experienced some disability in performing her daily
activities. It was also at this point that claimant began using the drug
Sinemet for treatment of her PD.
Through the 1990's and up to the time of her surgery, claimant began to exhibit
other symptoms of PD, including mildly stooped posture, a short-stepped gait,
and postural instability.
Contrary to the testimony provided by Dr. Hausknecht, Dr. Ford testified that
claimant also exhibited early signs of dementia prior to her surgery.
Hallucinations are one of the risk factors for dementia in PD patients, and Dr.
Ford considered claimant’s report of hallucinations as an early sign of
future dementia. Additionally, in reaching his conclusion, Dr. Ford relied upon
a discharge summary of Dr. Perez in 1986 (see Exhibit B, pages 279-280),
which made reference to claimant’s short term memory loss, slurred speech,
and monotonous speech, all of which Dr. Ford attributed to early signs of
dementia existing more than ten years prior to the surgery.
Dr. Ford conducted an evaluation of claimant in June, 2005. Based on this
examination, Dr. Ford concluded that the severe cognitive impairment
evidenced in claimant at that time was typical of the dementia which occurs in
a PD patient. He concluded that claimant’s dementia was directly
attributable to the progression of her PD, and could not have been caused by the
surgical procedure in 1997.
Furthermore, Dr. Ford attributes claimant’s current immobility both to
her progressing PD, as well as to the paralysis caused by the hemorrhage during
the surgery. Dr. Ford therefore concludes that even though claimant suffered
permanent paralysis to her left side during her surgery, she would have
nevertheless lost her independence and mobility due to the progression of her PD
and PD-related dementia.
In essence, based upon the testimony of Dr. Ford, it is defendant’s
position that evidence of claimant’s dementia existed prior to her
surgery, and that the severe dementia suffered by claimant was not related to
any complications arising from that surgery. Furthermore, again based upon
testimony from Dr. Ford, defendant contends that the decision to place claimant
in a nursing home in 2001 was not due to complications related to her surgery
(i.e., the left-sided paralysis), but rather was a direct result of the
progression of claimant’s PD and dementia.
In other words, it is defendant’s position that even without her
left-sided paralysis, claimant would have required nursing home services by
August, 2001, due to her dementia and PD. As a result, it is defendant’s
position that the State should not be responsible for any costs of nursing home
care occurring subsequent to that date. Additionally, it is defendant’s
position that all medications relating to treatment of claimant’s PD
should not be the responsibility of the State, since claimant obviously suffered
from the effects of PD prior to the surgery.
There is no dispute that the hemorrhage which occurred during claimant’s
operation on May 8, 1997 caused significant and immediate complications,
the most significant of which was the permanent left-sided paralysis. Claimant
was immediately faced with an extended stay in the hospital and at a
rehabilitation center as a direct result of the paralysis. Similarly, there can
be no dispute that complications arising shortly after the surgery, requiring
readmission to the hospital, were directly attributable to the surgery of May 8,
1997 as well.
Prior to her surgery, testimony established that claimant had been able to care
for herself, and she apparently was coping quite well with her pre-existing PD.
Although she was living with her daughter and son-in-law, she remained
independent and quite capable of managing her affairs and performing her daily
activities. This all obviously changed following the surgery, since claimant was
no longer able to care for herself, and she required round-the-clock care and
The Court does agree with the defendant, however, that it must consider
claimant’s pre-existing physical condition in making any award for pain
and suffering. In other words, although it is difficult to make the
distinction, the Court must limit its award for pain and suffering to those
disabilities and conditions which can be causily related to the hemorrhage
suffered by claimant during her surgery, and must exclude that which is
attributable to her pre-existing PD or other physical ailments.
There is no question that claimant did not come to this surgery as a completely
healthy person, as the very purpose of the surgery was to diminish the tremors
afflicting claimant’s left side, which were a direct result of her
pre-existing PD. She was certainly suffering from the effects of her PD at the
time, or otherwise she would not have elected to undergo this procedure.
According to defendant’s expert, Dr. Ford, at the time of her surgery
claimant was “substantially” physically disabled due to her PD, and
in his opinion, claimant was also exhibiting early signs of dementia. While
impressed with the expertise of Dr. Ford, as well as the persuasive nature of
his testimony, this Court, however, does not agree that claimant was seriously
disabled at the time of her surgery. Testimony established to the satisfaction
of the Court this claimant was coping with her PD, and up to her surgery, she
was able to handle her daily routine.
Furthermore, the Court does not agree that the sporadic falls by claimant prior
to her surgery (which were few and far between), nor her hallucinations (which
both experts agreed were medication induced) supports Dr. Ford’s opinion
that claimant was exhibiting signs of dementia prior to her surgery. As
mentioned, claimant was coping with her daily activities at the time of her
surgery, no diagnosis of dementia had been made by any of claimant’s
medical providers prior to the surgery, and there were no concerns expressed in
her medical records supporting any such diagnosis. Even so, the Court,
however, cannot disregard the progressive nature of claimant’s PD, for
which there is no possibility of a cure, in reaching its determination as to
In sum, although the Court agrees with the defendant that claimant would
eventually have had severe restrictions imposed on her life and daily activities
due to the progressive nature of her PD, similar to those which were caused by
her hemorrhage, the Court cannot ignore the fact that claimant, who had been for
the most part successfully coping and carrying on with her daily life up to the
surgery, was immediately rendered hemiplegic and physically unable to undertake
the most basic of human activities, due to the surgery. Furthermore, although
claimant has suffered, and will continue to increasingly suffer from her PD,
claimant did suffer permanent injuries, and will continue to suffer from these
injuries, as a direct result of the negligence which occurred during her
surgery. The Court notes that at the time of the damages trial, it was
undisputed that claimant’s life expectancy was 6.6 years.
With regard to special damages, and in particular, to the costs of nursing home
care, it is defendant’s position that following her surgery, claimant made
a successful recovery from the complications caused by the surgery (except,
obviously, for her left-sided paralysis) and that her ongoing physical ailments
and limitations are attributable to the progression of her pre-existing PD. It
is defendant’s contention that the decision to place claimant in a nursing
home in 2001 only occurred when claimant’s daughter and her husband could
no longer care for her at home, not because of her stroke, but due to the
complications caused by claimant’s dementia and PD. Additionally,
defendant contends that claimant’s dementia was attributable to the
progression of her PD, and that it was completely unrelated to any complications
arising from the surgery.
As previously described, defendant’s expert, Dr. Ford, provided the Court
with an in-depth analysis of the progression of PD, and the various stages of
the disease that a typical PD patient will endure. Based on his analysis of
claimant’s medical records and his physical examination, he concluded that
claimant possesses all of these attributes, and that it was the PD, and not
complications from the surgery, that necessitated her admission into a nursing
While the Court agrees that PD is a progressive and eventually debilitating
disease for which there is no cure, the Court does not agree with defendant that
confinement to a nursing home was an inevitable result in this case. First of
all, and as previously stated, it is undisputed that following the surgery,
claimant was going to require, and will continue to require, constant medical
attention, whether it was provided at claimant’s home or in a nursing care
facility. Such constant care was a direct and proximate result of the paralysis
caused by the surgery. Secondly, it is the Court’s belief that the
paralysis and other complications caused by claimant’s hemorrhage played a
significant role in the decision by claimant’s family to place her in a
nursing home. While the progressive nature of claimant’s PD cannot be
ignored, the Court cannot exclude from consideration claimant’s physical
ailments which were undeniably attributable to the surgery. Thirdly, even
though defendant’s expert concluded that the dementia suffered by claimant
was the overriding factor in the determination to place her in a nursing home,
and that such dementia pre-existed claimant’s surgery, the Court
previously noted that no such diagnosis had ever been made by any of
claimant’s medical care providers prior to the surgery. To the contrary,
claimant’s expert testified that dementia could be a delayed reaction to
the massive hemorrhage suffered by claimant. Overall, the Court therefore finds
insufficient evidence to establish that claimant’s admission to a nursing
home was inevitable and due solely to the progression of her PD.
Even if the Court credited Dr. Ford’s testimony and determined that the
dementia was unrelated to the hemorrhage suffered by claimant during her
surgery, the Court still would find that both conditions (claimant’s
paralysis resulting from her hemorrhage, and the increased complications from
her PD) played a substantial role in the decision to place claimant in a nursing
home. The Court cannot find, on the evidence presented, that claimant would
have inevitably ended up in a nursing home were she suffering solely from the
effects of PD, as suggested and argued by the defendant.
Defendant has convinced the Court, however, that a portion of the charges
submitted by claimant for past care, as well a portion of the anticipated
expenses for future care, can be attributed solely to the PD, and the Court has
therefore reduced the special damages portion of this award accordingly.
Although at its best, this is an imprecise process, and at its worst, some may
call it an impossible task, it is the Court’s opinion that neither the
effects of claimant’s pre-existing PD nor the complications arising from
her brain hemorrhage can be viewed independently of each other. The Court must
consider, and has considered, the totality of these circumstances in making its
award herein, both for special damages and for pain and suffering.
Based on the findings herein and the entire trial record, therefore, the Court
finds that claimant is entitled to be awarded damages as follows:
Past Pain and Suffering $1,100,000.00
Future Pain and Suffering $550,000.00
Past Special Damages
(medical, nursing, health-aides, residential placement) $620,000.00
Future special damages (residential placement) $350,000.00
Total Amount Awarded $2,620,000.00
The Clerk is directed to enter judgment in favor of the claimant and against
the State of New York in the amount of $1,720,000.00 (the total of the award for
past damages) in accordance with this writing, which constitutes the
Court’s decision pursuant to CPLR 4213(b). The amount awarded herein
shall carry interest at the rate of 9% per year from the date of the
determination of liability on September 30, 2003 (see Dingle v Prudential
Prop. & Cas. Ins. Co., 85 NY2d 657; Love v State of New York, 78
Judgment as to future damages (special damages and pain and suffering) will be
held in abeyance pending a hearing pursuant to CPLR Article 50-A, which will be
scheduled as soon as practicable.
October 2, 2006
HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims
. Anderson v State of New York
, Ct Cl,
September 30, 2003, Midey, J., Claim No. 98730, Motion No. M-66245, (UID
#2003-009-44). Unpublished decisions and selected orders of the Court of Claims
are available via the Internet at http://www.nyscourtofclaims.state.ny.us/decisions.