New York State Court of Claims

New York State Court of Claims

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.

Case Information

1 1.The caption has been amended to reflect that the sole proper defendant is the State of New York.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect that the sole proper defendant is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Alan C. Marin
Claimant’s attorney:
John J. Appell, Esq.
Defendant’s attorney:
Eliot Spitzer, Attorney Generalby: Albert Masry, AAG
Third-party defendant’s attorney:

Signature date:
March 14, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


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 practice, i.e., a failure to use the care that a reasonably prudent doctor would use under like circumstances,[2] but 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 defendant.[3] 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).[4] 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 cystogram[5] 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 symptoms[6] 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.[7]
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.

March 14, 2006
New York, New York

Judge of the Court of Claims

[2]. Nesterowich v Ricotta, 97 NY2d 393, 740 NYS2d 668 (2002); PJI 2:150.
[3]. 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).
[4]. 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 “no evidence.”
[5].At this point, IVU and cystogram were apparently used as functionally interchangeable.
[6]. 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.
[7]. 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.