New York State Court of Claims

New York State Court of Claims

KERN v. STATE OF NEW YORK, #2006-014-112, Claim No. 107482


Claim for medical malpractice dismissed after trial; claimant’s proof was insufficient to establish a prima facie case of medical malpractice.

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:
Lawrence Bernstein, Esq.
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: John J. Kelley, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 9, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


In January 2001, claimant was a second year medical student at SUNY Downstate. He testified that during the afternoon of January 5, 2001, he and some friends were playing football and “horsing around,” in snow that had accumulated earlier. While tossing some snow about, a friend’s hand collided with his hand and fingers. Claimant felt a sharp pain in the pinky finger of his left hand.

Shortly after the accident he went to the Acute Care Receiving Center [ACRC] at SUNY for treatment. He was attended to by orthopedic residents Vigna and Stark. Dr. Stark took his history, examined his hand, and took X-rays. He discussed the results of the X-rays with both doctors, and learned that there was a fracture of the fifth metacarpal. A splint and cast were applied by Dr. Vigna, extending from the elbow to the tip of his hand. He was told to make a followup appointment with Dr. Caligiuri, an attending orthopedic surgeon. He was given no pain medication. He departed from the ACRC sometime between 11:00 PM and midnight, and returned home.

He tried to sleep, but was unable to do so, due to the discomfort and pain he was experiencing, which he described as excruciating, bringing him to tears. The pain worsened, his hand began throbbing, the two exposed fingers might have been swollen, which led him to return to the ACRC at 4:00 AM, on the morning of January 6. He spoke to Dr. Vigna and informed him of the pain he was experiencing. The doctor examined the limb and told him that it was fine and to leave it alone. He told Dr. Vigna that the cast felt tight and asked if it could be loosened, but the doctor told him that no further intervention was needed. Another doctor gave him ibuprofen. He did not ask for another doctor to evaluate him at this time (Claimant’s Exhibit 2, SUNY Downstate Medical Center, ACRC medical records, January 5, 2001).

The next day, January 7, the pain had subsided, but he observed that the exposed second and third fingers on the injured hand had turned a purple-blue color, so at approximately 5:00 PM, he returned to the ACRC. After one hour of waiting he was seen by Dr. Vigna, who unwrapped the cast. Shortly, the coloration to his fingers returned. According to claimant, the doctor commented that the splint was too tight, adding that he was not the doctor that had applied the splint. This last comment “dumbfounded” claimant. Dr. Vigna re-wrapped his arm and again told him to see Dr. Caligiuri (Claimant’s Exhibit 3, SUNY Downstate Medical Center, ACRC medical records, January 7, 2001).

On January 16, 2001, claimant saw Dr. Caligiuri, who removed the splint and applied a new splint. When the splint was removed there were bruises on his fourth and fifth fingers. Dr. Caligiuri informed him that he wanted to refer him for a neurological consultation with Dr. Maccabee. He complained to Dr. Caligiuri about the treatment he had received in the ACRC and asked for a meeting with Dr. Vigna, but a meeting never took place. At some point between this office visit and a January 23, 2001 visit, the pain ceased.

Treatment with Dr. Caligiuri continued until claimant moved from the New York area to complete his education in Colorado, approximately two years after his injury. From the time he left the New York area, he has not seen a doctor in regard to this condition.

During the first six months following the accident he was unable to move his pinky, after which time, it started improving. Claimant testified that some recreational activities, such as participating in sports and playing musical instruments that require the use of his left hand have been adversely effected by the injury. As a classically trained pianist, he explained that since the time of the injury he lacked the control needed of his left-pinky finger in order to play classical music. He is still able to play piano, but only musical styles that do not require such a degree of control. He added that after the injury he played piano in SUNY Downstate talent shows with a brace on, but did not perform any classical pieces.

Currently, claimant suffers sensory complaints such as, tingling, cramping, temperature fluctuations in the area; and motor complaints, which interfere with typing and playing classical piano. He also has had difficulty, as part of his medical training, conducting physical exams, which require the touching and manipulation of patients.

On cross examination claimant acknowledged that he participated in a SUNY talent show on January 31, 2001. This included attending rehearsals leading up to the show, and playing the piano and singing and dancing in the show itself. He explained that he used his right hand and the working fingers on his left had to play the piano, and did not apply pressure to his pinky when he danced.

Unable to recall his physical limitations at the time of the performance, defendant offered a video tape recording of the event, which had been recorded by members of the SUNY staff, in order to refresh claimant’s recollection. A segment that showed claimant playing the piano and singing a rendition of “Free Bird,” by Leonard Skynard, was viewed in open court at this juncture.[1]

Claimant offered the deposition testimony of Franco E. Vigna, M.D., which was received in evidence as Claimant’s Exhibit 1. Dr. Vigna testified that on January 5, 2001, he was an orthopedic resident at SUNY Downstate, and that Dr. Caligiuri was the orthopedic attending who supervised his activities.

Dr. Vigna vaguely recalled that on January 5, 2001, he evaluate and treated claimant in the emergency room, and needed to consult a hospital record to assist in his testimony. He stated that he took the claimant’s history, reviewed X-rays, and examined him. Based upon his review, he determined that there was a fifth metacarpal fracture, also known as a boxer’s fracture. He did not recall if claimant made complaints of pain. He placed a splint on claimant, but did not recall if Dr. Stark assisted him.

He referred claimant to Dr. Caligiuri, but did not recall ever discussing that matter with Dr. Caligiuri, other than a telephone conversation he had with him on the evening before this testimony took place. He did not know if claimant made complaints to Dr. Caligiuri with respect to his care and treatment.

Dr. Vigna testified that two or three days after the initial visit on January 5, 2001, he saw claimant on one other occasion in the hallway near the emergency room at Downstate, but did not treat him. He did not recall claimant telling him that the splint was applied too tight and did not recall telling claimant not to worry about it. He did not remember telling claimant that he was not the one who applied the splint.

He did not recall a January 7, 2001 emergency room visit, and did not remember if claimant told him that his hand was turning purple or had numbness in his fingers. He did not know if he or anyone else removed the splint, only noting that there was no mention of it in the records.

Dr. Vigna stated that fingers can turn purple as the result of a boxer’s fracture, due to an artery or vein disruption upon impact.

Claimant called Paul J. Maccabee, M.D., to testify. Dr. Maccabee is employed by SUNY Downstate as an Academic Neurologist. He was asked by Dr. Caligiuri to perform a neurological consultation of claimant. Dr. Maccabee produced claimant’s medical chart which was compiled while under his care, and it was received in evidence (Claimant’s Exhibit 4).

Dr. Maccabee first saw claimant on May 14, 2001, at which time he performed a clinical evaluation. He did not review X-rays of the initial, and only learned that it was a non-displaced, simple fracture from claimant’s attorney on the day of his testimony at this trial.

On May 29, 2001, he performed an EMG and a nerve conduction study of claimant’s left limb, which revealed a neuropathy[2] of the ulnar nerve, which innervates specific muscles in the hand. He found abnormalities in what he described as the “two classic muscles” in the left hand. He performed a second EMG on November 27, 2001, which revealed a persistence of abnormalities in the hand muscles, and, in addition, an abnormal motor unit in the muscle close to the elbow. He performed a third EMG on September 10, 2002.

Dr. Maccabee stated that the EMG studies indicated that there was “probably, slightly” a presence of axonal[3] lesion[4] at the elbow, which led him to conclude that “there might have been a possibility of ulnar nerve involvement at the elbow.”

He asked claimant to return for a fourth EMG to in order to further explore the problem in the elbow. The medical record is absent as to whether such visit occurred or test was performed.

Claimant’s efforts to elicit additional information from Dr. Maccabee were met with speculative and inconclusive responses. The subject matter was outside the scope of his expertise and experience.

Upon the foregoing evidence, claimant seeks to hold defendant liable for medical malpractice. 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; Kletnieks v Brookhaven Mem. Assn., 53 AD2d 169).

Where medical issues are not within the ordinary experience and knowledge of a layperson, expert medical opinion is a required element of a prima facie case (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).

The record does not include expert testimony sufficient to establish a prima facie case of medical malpractice. That portion of Dr. Maccabee’s testimony that fell within his field of expertise was probative only to the extent it established claimant suffered some form of neurological injury to his left limb. Dr. Maccabee did not offer any opinion as to the cause of claimant’s injury. Nor did he offer an opinion that the splint/cast was applied in a manner which did not comport with accepted standards of care. Rather, Dr. Maccabee merely opined that certain causes and effects were theoretically possible. Neither his testimony, nor Dr. Vigna’s deposition testimony, was probative of the cause of the injury, or the applicable standard of care.. In accordance with the foregoing, defendant’s motion to dismiss the claim for failure to establish a prima facie case, upon which a decision was reserved, is now granted.[5] The claim is dismissed.


August 9, 2006
New York, New York

Judge of the Court of Claims

[1]. An edited version of the January 31, 2001 performance that showed claimant performing in three separate musical numbers, and of a January 2002 performance that showed claimant performing one musical number, was received in evidence as Defendant’s Exhibit A, during defendant’s case.
[2].Neuropathy is defined as: “A classical term for any disorder affecting any segment of the nervous system . . . .” (Stedman’s Online Medical Dictionary).
[3].Axon is defined as: “The single process of a nerve cell that under normal conditions conducts nervous impulses away from the cell body and its remaining processes . . . .” (Stedman’s Online Medical Dictionary).
[4].Lesion is defined as: “1. A wound or injury. 2. A pathologic change in the tissues . . . .” (Stedman’s Online Medical Dictionary).
[5]. Claimant’s request that the Court draw an adverse inference from the defendant’s failure to produce its examining physician at trial, is denied. “No inference arises until the party who has the burden of proof has made out a prima facie case [citations omitted]” (1A NY PJI3d 1:75, at116 [2006]). “Defendant is not called upon to introduce evidence to contradict or explain facts which were insufficient to establish any liability against [it]” (Loper v Askin, 178 AD 163,164).