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.
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
in May 1995 and a transthoracic
redo Nissen fundoplication in 1996. These surgeries were necessary due to
Claimant's acid reflux with a precancerous
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
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
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
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
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
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
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
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
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.
Accordingly, Claimant is awarded TWO HUNDRED FORTY THOUSAND DOLLARS ($240,000)
with interest from December 12, 2003, the date of the determination of
for past pain and suffering, and it
ORDERED, that to the extent claimant has paid a filing fee, it may be recovered
pursuant to Court of Claims Act §11-a(2).
LET JUDGMENT BE ENTERED ACCORDINGLY.