ABBATE v. STATE OF NEW YORK, #2006-016-025, Claim No. 94326
Claim of malpractice for diseased colon dismissed, where it could not be shown
that defendant mis-diagnosed such condition.
|JENNIE ABBATE and VICTOR ABBATE
1 1.The caption has been amended to reflect that the sole proper defendant is
the State of New York.
Footnote (claimant name)
STATE OF NEW YORK
Footnote (defendant name)
Alan C. Marin
John J. Appell, Esq.
Eliot Spitzer, Attorney
Generalby: Albert Masry, AAG
March 14, 2006
See also (multicaptioned
This is the decision following the trial of the claim of Jennie Abbate arising
from her treatment at the State University Hospital in Kings County, known as
Downstate Medical Center. Victor Abbate is also a claimant; inasmuch as Mr.
Abbate’s claim derives from that of his wife, references here in the
singular to “Abbate” and to “claimant” will mean Jennie
Abbate. The term “claimants” in the plural will refer to their
contentions in general.
In October of 1995, claimant noticed blood in her urine and told the family
doctor, internist Joseph DeRose, who scheduled her for an abdominal sonogram,
which showed that she had three tumorous lesions in her bladder. On November 8,
claimant underwent a procedure at Downstate Medical Center for their removal.
Ordinarily, such a patient would be home by the afternoon. Instead, Ms. Abbate
did not leave the hospital until November 28. Her bladder had been punctured
during the November 8 procedure. Moreover, it turned out that claimant’s
colon was also damaged. Five days later on November 13, when fecal matter was
observed in her urine - a condition known as fecaluria - - the patient had
surgery to remove a six to seven inch portion of her sigmoid colon that was
necrotic. For the six months it took her intestine to heal, Abbate suffered
through the discomfort and embarrassment of a colostomy bag for her fecal waste;
then a reverse colostomy was performed. Two hernias developed in the area, as
did fairly extensive scarring (cl exhs 4 & 5).
Abbate must prove not only that there was a departure from accepted medical
, a failure to use the care that a reasonably prudent
doctor would use under like circumstances,
that the acts or omissions that may have constituted malpractice can be imputed
to Downstate Medical Center and thus the defendant State of New York. As the
Second Department has observed, “[g]enerally, a hospital cannot be held
vicariously liable for the malpractice of a private attending physician who is
not its employee . . .” Quezada v O‘Reilly-Green
, 24 AD3d
744,746, 806 NYS2d 707, 709 (2005) (citations omitted).
Claimants’ theory is that the colon should have been operated on much
earlier than it was, which delay was due to the misreading of the cystogram by
an on-call radiologist, and that such is imputable to
They maintain that by operating
quickly, a primary stage repair of the colon could have been made, without
resorting to a colostomy. Pivotal to claimants’ case as it was tried is
whether and when Ms. Abbate had peritonitis. In their closing, claimants stated
that, “If . . . there is no peritonitis in this patient . . . then . .
. [we] have no right to be here.”
What Ms. Abbate went through in November of 1995 and thereafter was painful,
humiliating and debilitating, but I am constrained to conclude that the
defendant is not liable in medical malpractice to claimants. On
claimants’ threshold premise - - that Ms. Abbate had peritonitis, they
fail to prove their case. In addition, within the period claimants maintain a
primary state colon repair could have been done, there was sufficient time and
it was appropriate for the other doctors to have seen, reviewed and asked
questions about the cystogram – for example, Dr. Gobind Laungani.
Claimants Jennie Abbate and Victor Abbate testified at trial, and they called
to the stand: Dr. Laungani, the urologist who treated Ms. Abbate at Downstate;
and two experts, Dr. Lawrence Ottaviano, a gastroenterologist and Dr. Brian
Stone, a urologist. For its part, defendant called as its expert, Dr. Mark
Korsten, a gastroenterologist.
Claimants also read portions of the deposition of Dr. Emil Shih, who was
beginning his third year as a radiology resident at Downstate in November of
1995. Dr. Shih testified that he did not know if he did the reading of the
cystogram on November 8; nor could he remember dictating the report, the text of
which was not in his “typical verbiage.”
On the morning of November 8, 1995, a cystoscope was introduced into the
patient through the urethra into the bladder. The scope is essentially a
miniature camera, and what the camera captures is displayed on a monitor. Ms.
Abbate exhibited three tumors, what the operative report terms “polypoid
lesions,” two of which were at the bladder wall, one posterior and one
lateral. Then, a resectoscope was introduced and the lesions were resected or
removed. (Cl exh 1, pp 12-13). The device has an electric current delivered to
its tip and the heat thereby generated cuts tissue. A recognized danger of
resecting such tumors is that the heated tip may burn the bladder wall, either
creating a hole immediately or burning an area that can develop into an opening.
It is also possible - - and this was Dr. Korsten’s conclusion - - that
other organs can be burned.
The operative report indicated that there was no evidence of any bleeding; a
Foley catheter was introduced into the bladder, which at the time drained clear
urine (cl exh 1, p 13).
The patient was
observed post-operatively in the recovery room. Dr. Laungani testified that in
the recovery room, Ms. Abbate had some pain and tenderness on her right side and
at the time, “we” thought there was a possibility that the bladder
was perforated. The doctor sent claimant to radiology to do an intravenous
urogram (IVU) to determine if any urine was leaking out of the bladder, also
mindful that a patient with large tumors in the bladder might have them in the
kidney or ureter as well and the procedure could disclose them.
According to Dr. Laungani, because Ms. Abbate “still had a lot of
[abdominal] pain” on her return from the recovery room, she was admitted
to the hospital and kept under observation. In order to provide the results
more quickly, the on-call radiologist reported them verbally to Dr. Languani,
with Languani notating the patient’s chart as follows: “Emergency
cystogram done in X-ray Department. Radiologist on call present. Suggests
extraperitoneal minimal leak. Plan, continue Foley drainage, IV
antibiotic” (cl exh 1, p 17). “Extraperitoneal” means outside
of the peritoneal membrane, which surrounds a number of organs, including the
liver, stomach, pancreas, and part of the colon, but not the bladder. On
November 13, Dr. Amiram Samin, the supervising radiologist, called Dr. Languani
and as Languani recalled it, revised the results of the
taken on November 8, and said that
it may have an intraperitoneal component.
Drs. Stone and Ottaviano maintained that colon surgery was indicated at some
earlier time than November 13, and in such case, the surgery would have been the
less invasive primary repair, which would have preserved the normal functioning
of the intestinal tract. Dr. Stone at one point stated that because of the
patient’s level of pain the first day, the surgery should have been
considered after four hours. Claimants’ two experts elsewhere testified
that the colon surgery should have occurred within 24 hours, or 24 to 48 hours.
Dr. Ottaviano also stated that once it was determined that the leak was
intraperitoneal, surgery was immediately indicated, but later stated that it
would depend on whether there were signs and symptoms of peritonitis. Dr. Stone
also was somewhat inconsistent, softening his views on cross-examination that
whether surgery was needed depended upon the size of the puncture.
Given the testimony of claimants’ experts comprehending a 24 to 48 hour
window when Abbate’s intestinal surgery should have been performed, it is
not credible that no other doctor would have looked at the x-rays within such
period. In fact, the way in which claimants presented their case refutes the
argument that a urologist or gastroenterologist would totally rely on a
radiologist report. To explain the x-ray at trial, claimants used a urologist
and a gastroenterologist. Dr. Ottaviano testified that he would not be
comfortable relying upon an on-call radiologist under the circumstances,
especially where the clinical findings do not correlate.
Dr. Languani should have looked at the x-ray himself in the first day or two;
claimants do not assert that any acts or omissions of this private attending
physician are the responsibility of Downstate Medical Center in this matter.
Dr. Languani, who was present when the cystogram was performed by the
radiologist, described his role as one of assisting the radiologist, since
“I have more knowledge about a catheter in the bladders than him.”
Finally, Dr. Korsten observed:
I look at the x-rays, and of course, I comment on what I see, but it’s not
considered an official report . . . I look at the official report. If there is
some disparity between what I see and what the radiologist sees, I don’t
necessarily rely on it. I will then confer with a radiologist to see whether
I’m misinterpreting it, or whether I’m right . . .
A graduate of Yale’s Medical School and board certified in internal
medicine and gastroenterology, at time of trial, Dr. Korsten was chief of
gastroenterolgy and associate director of internal medicine at the Bronx VA
Medical Center. He was also the director of the residency program in internal
medicine at North Central Bronx Hospital and held a faculty position at Albert
Einstein School of Medicine. Widely published and involved in research,
currently on the effects of spinal cord injury on the colon, Dr. Korsten
lectures on peritonitis at least two or three times a year.
On the stand, Dr. Korsten had an excellent familiarity with Ms. Abbate’s
medical chart. In my view, the tone and manner of his testimony was not that of
a witness aware that his answers were being given within the context of
litigation, but rather as if he were talking to a patient, member of the
patient’s family, or a resident physician without the technical jargon. I
found Dr. Korsten to be highly credible.
Dr. Korsten’s conclusions as to what happened to Ms. Abbate were
persuasive. The bladder resection procedure of November 8 burned the sigmoid
colon, which was adhering to the bladder, and it took three to four, perhaps
five, days for a hole in the colon to develop, which would force fecal matter
out through the bladder into the urine. Fecaluria was not present until
November 13; the condition is immediately recognizable because of its odor. The
laboratory test that was done of the patient’s urine the day before
(November 12) was not positive for fecal matter.
Further supporting Dr. Korsten’s conclusion that there was no initial
colon perforation during the November 8 procedure was the absence of air in the
abdominal x-rays, which would have escaped from the colon were it punctured.
“The x-ray that I’ve reviewed does not show free air, and the
implication, I believe, is that there was no immediate communication between the
colon and bladder, but is was delayed until the onset of fecaluria, which is, I
believe, November 13.”
The closing argument made on behalf of claimants contained the statement that
the existence of peritonitis in Ms. Abbate is a necessary threshold to a finding
in this Court in her and her husbands’s favor. Dr. Korsten concurred that
if Abbate had had peritonitis, immediate surgery would have been necessary.
To this trier of fact, Ms. Abbate did not exhibit the signs and
of peritonitis. The operative report
from her November 13 surgery reported the existence, not of peritonitis, but an
abscess. An abscess, Dr. Korsten testified, is localized, more subtle in its
signs and the peritoneal membrane is not inflamed so that there is abdominal
rigidity. Dr. Korsten stated that in cases of peritonitis, the abdomen wall is
so hard it is board-like; the patient’s temperature is very high;
“you have absolutely no appetite. There’s no way you want to
eat.” The doctor noted that on her fourth day, November 11th, the patient
took 25 to 50 percent of the prescribed diet. During the evening of November 12,
there was a Nursing Note that the patient had “[t]olerated food
well” (cl exh 1, p 36).
The pain of peritonitis, Dr. Korsten allowed, is “severe, unrelenting,
you can’t move. I’m sure there are some stoic people somewhere in
the world who might be able to exist with such pain, but I haven’t seen
them.” He went on to say that the peritoneal cavity is inflamed, which
secondarily inflames adjacent muscles: “[y]ou cannot walk because you
need those muscles to maintain your upright position.”
The patient’s abdomen was never rigid. While Ms. Abbate’s appetite
was not good and sometimes very poor, it was not consistently absent. As for
pain and her overall condition, while her husband did testify that he saw her in
great pain, it was not steady. She was able, on occasion, to get out of her
hospital bed. Even though Abbate was administered painkillers, such was not
done continuously. Dr. DeRose, claimant’s longstanding family doctor,
wrote in her chart on November 10 that she was “presently improved”
(id., p 30).
Dr. Korsten stated that peritonitis presents very high fevers, of from 104 to
106 degrees, perhaps down to 103. The first two days Abbate’s
temperatures were 98, 99 and 100 degrees, up to 100.8 on the afternoon of Nov
10. Only on Nov 12, was the high of 102.2 degrees recorded. The
patient’s vital signs were recorded every six hours, which covers pulse
and blood pressure, as well as temperature. Had claimant had peritonitis, Dr.
Korsten explained, her pulse would have been elevated and her blood pressure low
- - they were both normal. (Id., p 254).
Moreover, the laboratory reports were unequivocal. Because peritonitis is a
severe infection, the body produces new white blood cells to fight the
infection, and does so quickly - - within 12 to 24 hours. It may double or
triple the normal blood count up to 20 to 30,000. Ms. Abbate’s white cell
count through Nov 12 never exceeded 7,440, and Dr. Korsten convincingly
explained that the patient’s medication was not suppressing the count;
only on November 13, did her white cell count measure just over 12,000
(id., p 206).
Dr. T. Lewis’ operative report of November 13 provides that
“[a]pproximately 500 cc’s of purulent material was evacuated from
this area with fibrinous excavates,” which Dr. Korsten said was caused by
an abscess (id., p 53). The operative report stated that there were
“no fibrinous extudates, no free peritoneal fluid” (id., p
52), and Korsten noted that “[w]hen you have peritonitis, there’s
fluid in the peritoneum.”
For the reasons above, it was Dr. Korsten’s expert opinion that earlier
surgery on Ms. Abbate’s colon was not indicated. He also noted that the
patient was not an ideal surgical subject, having had a heart attack and a
triple bypass as well as thyroid problems.
In view of the foregoing, there was no medical malpractice arising from Ms.
Abbate’s treatment at Downstate Hospital in November of 1995 that (i) can
be imputed to the State of New York and (ii) was the proximate cause of any
injury to Ms. Abbate. Therefore, the claim of Jennie Abbate and Victor Abbate
(claim no. 94326) is dismissed.
LET JUDGMENT BE ENTERED ACCORDINGLY.
March 14, 2006
HON. ALAN C. MARIN
Judge of the Court of Claims
. Nesterowich v Ricotta
, 97 NY2d 393,
740 NYS2d 668 (2002); PJI
. Claimants submitted a Memorandum of Law,
dated November 3, 2005, in which they contend that Downstate Medical Center is
responsible for the acts and omissions of an on-call radiologist, citing a
number of cases, including Kavanaugh by Gonzales v Nussbaum
, 71 NY2d 535,
528 NYS2d 8 (1988) and Delprete v Victory Memorial Hosp.
, 191 AD2d 673,
595 NYS2d 809 (2d Dept 1993).
. Six lines from the bottom of page 13 of
claimant’s exhibit 1 (which is the medical chart), actually reads
“there was on evidence.” This is obviously a typo and should read
.At this point, IVU and cystogram were
apparently used as functionally interchangeable.
. At trial, the terminology was understood to
mean that “signs” are what are medically observed, recorded or
measured, and “symptoms” that which the patient reports.
. When asked how she had been feeling
generally before November 8, 1995, claimant responded - - and credibly so - -
that she was walking six and a half miles a day.