New York State Court of Claims

New York State Court of Claims

TRUDEAU v. STATE OF NEW YORK, #2006-018-514, Claim No. 105029


Claimant is entitled to judgment in the amount of $240,000 for past pain and suffering.

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:
By: Joseph S. Cote, III, Esquire Hannah J. Gleason, Esquire
Defendant's attorney:
Attorney General of the State of New York
By: Michael R. O'Neill, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
March 2, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant sued Defendant for medical malpractice alleging a doctor employed by SUNY Upstate Medical Center (hereinafter University Hospital) negligently left a laparotomy pad or sponge in him after a surgical procedure on July 10, 1999. Partial summary judgment on the issue of liability was granted by this Court on December 12, 2003.[1] This decision addresses Claimant's damages as a result of that negligence.

On December 10, 1998, Dr. Anthony Picone, a cardio-thoracic surgeon, performed an esophagectomy on Claimant which included the placement of a jejunostomy tube (hereinafter referred to as a "J-tube"). Claimant recovered and was discharged from University Hospital in due course. His operative history prior to this esophagectomy included a laparoscopic Nissen fundoplication[2] in May 1995 and a transthoracic redo Nissen fundoplication in 1996. These surgeries were necessary due to Claimant's acid reflux with a precancerous condition.[3] On July 10, 1999, Dr. Picone performed a revision of the esophagectomy. Another J-tube was placed by Dr. Howard Simon, a general surgeon, at University Hospital. Dr. Picone testified that these are two separate procedures with two separate incisions; the esophagectomy incision was on the left side of his neck, and the incision for this J-tube was in his abdomen. During the placement of the J-tube, a sponge was left inside Claimant's abdomen.

Claimant testified that a few days after the July 10 surgery he was discharged home. Claimant's girlfriend, Cynthia Dann, helped with his recovery. A week to ten days later, Claimant had a postoperative visit with Dr. Picone. His neck wound was healing well, but the abdominal wound was sore. There was some drainage from it and it was cleaned. Dr. Picone testified that he was responsible for follow-up care for Claimant's neck, and Dr. Simon was to follow-up on Claimant's abdomen.

On August 1, 1999, Claimant awoke with a red, sore, bulge on the left side of the J-tube incision. Instead of going to a family reunion, he and Ms. Dann spent the day at University Hospital's emergency room. Claimant said it felt like the bulge was going to burst, and it hurt just from his T-shirt brushing against it. After a long delay and considerable confusion about which surgeon's residents should treat Claimant, he was taken to a room where the bulge was lanced. Claimant described a burning sensation, then putrid drainage, and a foul smell coming from the area. At that time he received an injection for pain. One of the residents put two fingers in the hole in his side, and Claimant testified that he almost passed out from the pain. The area was cleansed and the resident again probed the wound. Claimant was sent home with pain medication and a colostomy bag over the wound to collect the drainage. The residents told him they believed his bowel or colon was nicked during the first procedure and he would heal from the inside out.

Two days later, Claimant had an appointment with Dr. Simon. His wound was still draining and smelled foul, which he found embarrassing. A nurse cleaned the wound and the doctor agreed with the resident's diagnosis that the colon or bowel was nicked. On August 5, Claimant saw Dr. Borys Buniak, his gastroenterologist who had diagnosed his Barrett's esophagus and referred Claimant to Dr. Picone. Dr. Buniak checked the draining wound and prescribed antibiotics. He noted Claimant had no pain but the drainage concerned him. The antibiotics did not improve the condition of the wound.

Claimant next saw Dr. Picone who checked his neck incision which was healing - the abdominal wound was not. Dr. Picone prescribed Darvon for pain and showed Claimant and Ms. Dann how to clean and dress it two to three times per day. Claimant saw Dr. Simon again on August 8.

Claimant testified that he suffered significant anxiety because his abdomen failed to heal. He worried about having more cancer. Ms. Dann confirmed Claimant was short-tempered and worried during this period. She also described the process involved in cleaning his wound. She had to pack the wound with iodine strips and gauze, and then rebandage it three times per day for approximately eight weeks. Claimant said he had to change his shirt many times per day; the drainage and odor continued unabated.

Claimant saw his family physician, Rosemarie Hurley, on August 16, 1999. She testified that Claimant arrived that day without an appointment. She took a culture of the wound drainage and prescribed more antibiotics. The lab result showed the presence of some bacteria, Klebsiella, that is common to the abdomen.

Next, Claimant returned to Dr. Simon on September 2, 1999. His wound was puffy and painful, still draining and odoriferous. Dr. Simon ordered a CAT scan which revealed a foreign body in Claimant's abdomen. Claimant said the results scared him, he did not know what they meant by a foreign body. Dr. Simon told Claimant he would need another surgery to remove the foreign body.

On September 14, 1999, Claimant had surgery again and the sponge was removed. Two days later, he was discharged with instructions on wound care. Ms. Dann again assisted him. Claimant said Ms. Dann had to push medical swabs into the wound which would absorb the drainage. He could feel this on the walls of his stomach. This cleansing occurred two to three times per day for a couple of weeks. Claimant recalled it took approximately three months to heal after the surgery. He testified the area was still tender and would tingle as late as December. As of the date of trial, the area was still tender.

Claimant saw Dr. Hurley on October 22, 1999 and again on November 4, 1999. At the second visit, Dr. Hurley noted Claimant was complaining of postoperative neuropathic pain of which he had not previously complained. She prescribed medication for it, Neurontin, and the pain resolved over one year. Around October - November 1999, Claimant also had breathing problems, shortness of breath, and in January 2000, Dr. Hurley referred him to Dr. Barron, a pulmonologist. At a visit with Dr. Barron, in February 2000, an incisional hernia was found.

On March 29, 2000, Claimant saw Dr. Hurley. Her office notes indicate Dr. Barron recommended surgery to repair the hernia, and Claimant wanted a second opinion. He was referred to Dr. Guillermo Ferrer,[4] a general surgeon. Claimant first saw Dr. Ferrer on May 2, 2000. Given Claimant's surgical history, Dr. Ferrer opined that surgery for the hernia was too risky and that other than the occasional pain, there was no significant reason to do surgery at that time. Dr. Ferrer recommended a modified lifestyle which included no heavy lifting, weight maintenance, exercise and diet. He also recommended use of a binder.

Claimant returned to Dr. Ferrer on February 27, 2001 with worsening pain. It was decided at that time that surgical intervention was required. One of the factors in reaching this determination was Claimant's inability to perform his job duties. He was employed by C.P. Rail Company and his duties required heavy lifting. The surgery was done laparoscopically on April 18, 2001 by placing mesh over the herniated area. Dr. Ferrer noted that the hernia was large and ran from the midline of Claimant's abdomen to the left side, five inches. Claimant was hospitalized until April 21, 2001. Dr. Ferrer saw Claimant on April 25, 2001 for his first postoperative appointment. Claimant was doing well with little pain. At Claimant's second postoperative visit in May, Dr. Ferrer recommended he remain out of work for 30 days. Claimant was not seen again by Dr. Ferrer until January 15, 2002. At that time, Claimant complained that after he ate, he would suffer abdominal pain in the area of the hernia. The hernia repair was intact so a CAT scan was ordered. The results failed to determine the cause of Claimant's pain, and Dr. Ferrer referred Claimant to a gastroenterologist.

Claimant had at least three abdominal incisions before the hernia repair surgery, and it was Dr. Ferrer's opinion that multiple surgical incisions increase the likelihood of developing an incisional hernia. He also stated that any infection or abscess such as Claimant suffered as a result of the sponge having been left inside him, would also increase the likelihood of such a hernia. The incisional hernia could also be caused by the patient's activity. Dr. Ferrer considered the infection a possible cause of Claimant's hernia. Dr. Hurley also attributed the hernia to the infection that resulted from Defendant's negligence.

Claimant testified that he continues to have pain and discomfort when lifting, pushing, or pulling. Ms. Dann testified Claimant can no longer perform certain chores including lawnmowing or other yard work.

In addition to the medical problems set forth above, in the late 1990's Claimant suffered a mild stroke and lost 70% of the vision in his right eye. Claimant also has a prior history of suffering with depression and anxiety, and suicide attempts before 1995. Since 1995, Claimant has been receiving Social Security disability benefits. As of the time of trial, Claimant was still being treated for these problems and receiving benefits. He also acknowledged that he was a recovering alcoholic.

After the hernia surgery, Claimant had three operations on his shoulders. In May or June of 2001, he had rotator cuff surgery on his right shoulder. The orthopedic surgeon, Dr. Jack Sproul, restricted his lifting to 10 lbs. Claimant re-injured his right shoulder in August 2001. He had surgery on that right shoulder again in October 2001. In May 2004, Claimant's left shoulder was operated on for a tear. He has trouble lifting because both shoulders are tight.

At the time of trial, Claimant was treating with Dr. Hurley, his psychiatrists, Dr. McGregor and Dr. Sprafkin, and Dr. Sawyer for an enlarged prostate, Dr. Gillim for his gastroenterology issues, and Dr. Reger, a cardiologist, who placed two stents in Claimant's heart during the18 months before trial. At the time of trial, Claimant was taking numerous medications as well.

Claimant testified about his education, employment, and income history. He graduated from high school then joined the Marines for six years. When he returned home, he went to work on a farm for about a year. Claimant sold cars at various dealerships, drove a truck and sold coffee. During the time Claimant was getting divorced in 1990-92, he was unemployed for a couple of years.

In 1998, Claimant worked for approximately one year for the French Company as a welder and got laid off. His next employment began in June of 2000 with C. P. Rail Company as a conductor trainee. He was employed from June of 2000 until January 2001. Claimant said he had to study and get trained for this job which took a good deal of time. It was the best job he ever had. Claimant earned $23,000 for part of the year, 2000. His projected annual salary would be $38,000. Prior to his conductor's job, Claimant said his income was fairly consistent with his various jobs. He estimated his yearly income at $25,000 to $28,000 per year. On cross-examination, Claimant was shown his federal income tax returns. His annual adjusted gross incomes for each year are as follows:
1995: $13,168.00
1996: $11,682.00
1997: $18,702.00[5]
1998: $15,765.00[6]
1999: $ 5,995.00[7]
2000: $23,059.00
2001: $ 1,934.00
2002: $ 6,985.00
2003: $10,211.00

Claimant testified that his 2004 income would be similar to his 2003 income. He has been working part time at an auto dealership, Upstate Auto, as a salesman since 2003 and continues to receive Social Security disability benefits in the amount of $962 per month. This amount could be impacted if Claimant worked more hours; however, Claimant testified there are no more hours available. Claimant also testified that he filed a Chapter 13 Bankruptcy Petition before October 25, 2002 which is still open, as he is still paying the Trustee. His bills from July 1999 were included in the bankruptcy.

Claimant called Lawrence Spizman, a doctor of economics, to testify about his loss of earnings and benefits. He was asked to compute figures based upon Claimant's employment at C.P. Rail.

At the time of Claimant's injury, he was 46.6 years old. As of the same date, Claimant's life expectancy was an additional 31.7 years. Claimant's work life expectancy is to age 61.77 or to age 65 if he worked continuously.

Dr. Spizman relied upon railroad union contracts to arrive at an anticipated annual raise for a conductor of 2%. He also calculated health benefit costs, union dues, and Claimant's residual earnings which were deducted from his anticipated lost earnings. Claimant would also lose pension benefits. However, Claimant had not worked long enough for the railroad to have a vested pension (at least five years was required and Claimant only worked seven months). Furthermore, Dr. Spizman did not consider the reason or reasons Claimant is no longer working at C. P. Rail. In other words, the lost benefits calculated by Dr. Spizman are not necessarily Claimant's losses as a result of Defendant's negligence. For Dr. Spizman's calculations to be relevant, there must be a determination that Claimant would have returned to work at C. P. Rail had he not suffered the infection and related injuries that resulted from Defendant's negligence.

Claimant was obviously proud of obtaining the job as a conductor, as it required significant preparatory work before he was considered qualified to receive training. Also, the wages and benefits at that job were significantly better than any previously received by Claimant. However, the position required heavy lifting and carrying a "knuckle" which weighed between 80 and 100 lbs. Given Claimant's other medical conditions, specifically his rotator cuff surgeries with the resulting limitation of lifting no more than 10 lbs., and his depression and anxiety, the Court cannot conclude that Claimant's failure to return to C. P. Rail was causally related to Defendant's negligence.

Claimant testified that he got the hernia while working at C. P. Rail. He tried to return but could not, so he took time off to recover. He also said that after his hernia surgery in April 2001, he returned to C. P. Rail but could not do the lifting. He had trouble with his right shoulder. In June of that year, Dr. Jack Sproul, an orthopedic specialist, who diagnosed a rotator cuff tear surgically repaired it. He had previously restricted Claimant's lifting to 10 lbs. Claimant never returned to C. P. Rail. Dr. Hurley's records indicate Claimant had right shoulder pain in January 2001 to the extent that he could not shift the gears on his truck. His first appointment with Dr. Sproul was scheduled for April 16, 2001.

It is the Court's conclusion that Claimant could not continue his employment with C. P. Rail due to his shoulder problems, not the hernia. Although Claimant argues that the shoulder problems were causally related to the hernia, there is no medical evidence to support that conclusion. Therefore, the Court finds the economic losses testified to by Dr. Spizman are not causally related to Defendant's negligence.

The Court also does not find that Claimant established that he suffered any loss of earnings as a result of Defendant's negligence. His earnings, before and after Defendant's negligence, are commensurate and given his other health issues, the Court cannot find that any loss of income was attributable to Defendant's actions.

Claimant submitted proof of his University Hospital Medical bills (Exhibits 2 and 2-A). However, upon closer review, the charges reflect medical services provided to Claimant from December 31, 1995 through July 15, 1999. Since Defendant's malpractice did not occur until July 10, 1999, and Claimant's complications from Defendant's negligence did not begin until August 1, 1999, the Court does not find any of these expenses attributable to Defendant's conduct. Claimant's surgery and the hospital stay from July 10, 1999 through July 15, 1999, were the result of his preexisting medical condition and not the result of Defendant's negligence.[8]

Accordingly, Claimant is awarded TWO HUNDRED FORTY THOUSAND DOLLARS ($240,000) with interest from December 12, 2003, the date of the determination of liability,[9] for past pain and suffering, and it is

ORDERED, that to the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act §11-a(2).


March 2, 2006
Syracuse, New York

Judge of the Court of Claims

[1]Trudeau v State of New York, Ct Cl, Fitzpatrick, J., signed December 12, 2003, Claim No. 105029, Motion No. M-67070, UID #2003-018-271.
[2]Dr. Borys Buniak described this as a procedure where the upper part of the stomach, near the fundus, is wrapped under the diaphragm to prevent further reflux.
[3]Claimant's diagnosis was Barrett's esophagus, which Dr. Buniak described as a precancerous condition of the esophagus caused by reflux.
[4]Dr. Ferrer's testimony was taken before trial and the transcript received into evidence as Exhibit 5.
[5]$829 were unemployment benefits.
[6]$7,335 were unemployment benefits.
[7]All unemployment benefits.
[8]No other evidence of medical expenses was admitted at trial.
[9]No award is made for future pain and suffering.