New York State Court of Claims

New York State Court of Claims

DUVAL v. STATE OF NEW YORK, #2006-014-110, Claim No. 103758


Claim for medical malpractice dismissed after trial; claimant did not establish deviation from accepted standards of care nor whether any such deviation was the proximate cause of claimant’s injury

Case Information

1 1.The caption has been amended to reflect that: (1) by stipulation, dated November 14, 2005, the individual claim as to Gladys Duval was discontinued with prejudice; and (2) Claudia Duval has reached the age of majority. 2 2.The caption has also been amended to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :
The caption has been amended to reflect that: (1) by stipulation, dated November 14, 2005, the individual claim as to Gladys Duval was discontinued with prejudice; and (2) Claudia Duval has reached the age of majority.
Footnote (defendant name) :
The caption has also been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant’s attorney:
Ransford B. McKenzie, Esq.
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: Joseph L. Paterno, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 23, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


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’s testimony.

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 discharge.

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 records.

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 accordingly.

March 23, 2006
New York, New York

Judge of the Court of Claims