Claimant seeks to hold defendant liable for injuries she sustained as a result
of what she alleges to be the failure to properly perform a renal biopsy, and to
administer adequate follow-up treatment, at SUNY Downstate Medical Center -
University Hospital of Brooklyn.
On December 23, 1999, Claudia Duval was 16 years old when, accompanied by her
mother Gladys Duval, she went to Downstate in order to undergo a needle biopsy
of her right kidney. She had been referred there by her physician for an
evaluation of a chronic proteinuria condition. She had a radiology consultation
with Doctor Singh at the Downstate Renal Clinic prior to that date, but Doctor
Singh did not perform the procedure on December 23.
She testified that despite receiving a local anaesthetic, the procedure caused
her such excruciating pain that she pleaded with the doctor to stop performing
the biopsy. The doctor finally stopped, and a gauze dressing was applied to the
area. The Downstate Hospital records indicate that during a renal biopsy the
patient “began bleeding and a CT scan [of the] abdomen showed a
hematoma” (Claimant’s Exhibit 1, at 35) around her right kidney
(Claimant’s Exhibit 1, at 20). The records also reveal that following the
procedure claimant complained of severe pain and dizziness, and vomited
(Claimant’s Exhibit 1, at 24). The biopsy was deemed
“unsuccessful” (Claimant’s Exhibit 1, at 57).
Later that day she was admitted to Downstate for the hematoma, and moved to a
hospital room where she remained until her discharge on December 25, 1999. At
some point after the procedure a sonogram was taken. During her hospital stay
she was administered IV fluids and was seen by many doctors. She stated that
her pain and discomfort at the time was so great that she had difficulties
eating and walking.
Upon her discharge from Downstate she was given some medication, but did not
recall what it was. According to the hospital records the Patient Discharge
Plan states: “Tylenol if you will have pain or fever more than 101°
F,” and “[i]f you have high fever, do not tolerate oral food, feel
dizzy, or increase [sic] heart rate, respiration go to ER or contact PMD”
(Claimant’s Exhibit 1, at 6). Claimant’s “Condition at
discharge” was noted as “[s]table, [without] Distress”
(Claimant’s Exhibit 1, at 5 & 32). A follow-up visit was scheduled
for December 28, 1999.
A family friend, Alfred Davis, met claimant and her mother at the hospital and
drove them home. At home she was confined to her bed with a fever. She
characterized her pain as “excruciating.”
When she returned to Downstate on December 28, for the follow-up visit, she
informed Doctors Hidalgo and Singh that she was in pain, had a fever, and had
problems walking. According to claimant, Doctor Singh responded to her
complaints by attempting, much to her dismay, to bend her upright and force her
to walk straight. She then had a CT scan and a sonogram of the area, but added
that there was no follow-up by a doctor. She was not sure if she was given
medication on that day.
After this visit she returned home and went to bed, but the next day her
condition worsened. Claimant testified that on December 30, 1999, Mr. Davis
brought her to Brookdale University Hospital emergency room. She was admitted
to the hospital for treatment and was seen by Doctor Kumar. She testified that
she remained there for close to two weeks (Claimant’s Exhibit 3, Brookdale
Hospital records state that she was admitted on December 30, 1999, and
discharged January 7, 2000). The Brookdale records state that claimant was
diagnosed with a perinephric hematoma. At the time of her discharge from
Brookdale on January 7, 2000, she was experiencing less pain and her walking had
improved since the time of her admittance to the hospital.
Claimant described the pain that she had been suffering as eventually turning
into numbness, which she still was experiencing at the time of this trial. She
did not attend school until March or April 2000, due to pain and blood in the
area of the needle biopsy incision.
Gladys Duval, who accompanied and cared for her daughter during the process and
was present at the time the biopsy was performed, and Alfred Davis, who offered
assistance to the family at various times throughout, each testified at trial,
and their rendition of events and of Claudia Duval’s condition supported
Claimant called Frederick Gulmi, M.D., to testify. Doctor Gulmi was employed
by Brookdale Hospital in the urology department. He did not review
claimant’s Downstate Hospital records prior to testifying at this trial.
He recalled treating claimant for a perinephric hematoma of the right kidney.
He assumed that the bleeding was the result of the biopsy. Claimant’s
treatment included IV fluids, antibiotics, and bed rest. Doctor Gulmi explained
that claimant had a fever upon admission, and antibiotics were administered in
the event of infection. After her discharge he saw claimant twice over a one
and one-half month period in order to monitor her condition. The last time he
saw her a CT scan revealed that the hematoma had disappeared and the results of
a physical examination proved to be normal.
Claimant called Kusum Kumar, M.D., to testify. Dr. Kumar was employed by
Brookdale Hospital in the pediatric department, specializing in pediatric
nephrology, and had admitting privileges at Downstate Hospital. She did not
review claimant’s Downstate Hospital records prior to testifying at this
trial. Dr. Kumar recalled that Brookdale Emergency Room admitted claimant as a
patient, and she was of the opinion that the admission was warranted. The
emergency room indicated that claimant had an infection in her urine. She was
called in as a nephrology consultant in the matter and conducted a physical
examination of claimant that revealed a fever and tenderness of the abdomen.
She added that claimant was not in excessive pain at the time. Claimant
informed her that she had a biopsy and after that procedure she had pain. A CT
scan and an ultrasound were performed, establishing that claimant had a
hematoma. Dr. Kumar testified that, based on conversations with the patient and
her mother, any determination of the cause of the hematoma was “only
speculative.” She stated that she could not conclude that the infection
was caused by the hematoma, as urinary tract infections were common in young
women. Dr. Kumar saw claimant one or two additional times prior to her
Dr. Kumar scheduled a renal biopsy to investigate claimant’s ongoing
proteinuria condition to take place in August 2000. The procedure was performed
as scheduled, but there was not sufficient tissue recovered to yield a result.
Upon the foregoing evidence, claimant seeks to hold defendant liable for
medical malpractice. It is the claimant’s contention that the undisputed
evidence establishes that: the injury was the result of the failed biopsy; the
treatment was inadequate; Downstate Hospital ignored her complaints of pain; she
should not have been discharged on December 25, 1999, because a blood culture
and the blood count showed the development of an infection; and that despite
complaints of severe pain, no serious medical attention was given during the
December 28, 1999 follow-up visit.
While on these facts it is not implausible that one might question the adequacy
of claimant’s treatment, they are insufficient, without more, to support a
finding of liability. In a medical malpractice action a claimant has the burden
of proving by a preponderance of the evidence: (1) a deviation or departure from
accepted practice and (2) that such departure was a proximate cause of injury or
damage (see Bloom v City of New York, 202 AD2d 465). Where medical
issues are not within ordinary experience and knowledge, expert medical opinion
is a required element of proof (see Wells v State of New York, 228 AD2d
581, 582, lv denied 88 NY2d 814; Duffen v State of New York, 245
AD2d 653, lv denied 91 NY2d 810).
In lieu of expert medical opinion, claimant relies on her testimony and medical
Characterizing the treatment she suffered at the hands of defendant as
“callous, inhumane disregard,” claimant contends that this is a case
of “blatant misjudgment” where no professional judgment was
exercised, citing case law for the proposition that the absence of medical
judgment can amount to medical malpractice. But in each of the cases cited,
liability was predicated upon expert testimony (Schneider v Memorial Hospital
for Cancer and Allied Diseases, 100 AD2d 583; Snow v State of New
York, 98 AD2d 442; Bell v New York City Health & Hosps. Corp., 90
AD2d 270; Larkin v State of New York, 84 AD2d 438). Here, neither Dr.
Gulmi nor Dr. Kumar offered an opinion as to any deviation from accepted
standards of care and as to whether such deviation was the proximate cause of
claimant’s injury. Nor, despite conclusory assertions of misjudgment, was
anything adduced concerning the level of medical judgment exercised by
defendant. “[C]laimant’s contentions were wholly unsupported by
expert medical testimony” (Wells v State of New York, supra).
In accordance with the foregoing, the defendant’s motion to dismiss the
claim for failure to establish a prima facie case, upon which decision was
reserved, is granted. The Chief Clerk is directed to enter judgment