New York State Court of Claims

New York State Court of Claims

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.

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: David A. Kalabanka, Esq.,Of Counsel.
Defendant’s attorney:
Attorney General
BY: Patricia M. Bordonaro, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
October 2, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


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 to liability[1]. 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 PD.

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 areas.

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 attention.

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 damages.

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 care facility.

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 NY2d 540).

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
Syracuse, New York

Judge of the Court of Claims

[1]. 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