New York State Court of Claims

New York State Court of Claims

STEPHENS v. THE STATE OF NEW YORK, #2006-028-013, Claim No. 93862


Synopsis


A former prison inmate is awarded a total of $950,000 for past and future pain and suffering and future medical expenses caused by medical treatment received while he was in prison that fell below the accepted standard of care and resulted in the amputation of a leg that could have otherwise been saved.


Case Information

UID:
2006-028-013
Claimant(s):
WILLIAM C. STEPHENS
Claimant short name:
STEPHENS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
93862
Motion number(s):

Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant’s attorney:
PETER M. HOBAICA, LLCBY: Peter M. Hobaica, Esq.
Defendant’s attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Michael O’Neill, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 18, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This medical malpractice claim arose in connection with treatment provided to Claimant William C. Stephens from March 1993 to April 1994 at Marcy Correctional Facility (hereinafter “Marcy”) and at the State of New York Health Science Center in Syracuse (hereinafter “Upstate”). Claimant, who had suffered for many years from peripheral vascular disease (hereinafter “PVD”),
[1]
alleges that an above the knee amputation of his right leg would not have been necessary if he had received prompt and adequate diagnosis and treatment.
It is undisputed that in March 1993, a facility physician ordered vascular studies to be performed on Claimant but that he was not taken to the Vascular Clinic at Upstate until October of that year and the studies themselves were not performed until November. Defendant does not attempt to argue that this delay in carrying out the physician’s recommendations constitutes good and accepted medical practice. Instead, Defendant contends that neither this delay, nor any other act of alleged medical negligence on the part of the State, was a proximate cause of the amputation. The loss of Claimant’s leg, Defendant asserts, was simply a result of the natural progression of the disease.
Fact Witnesses
Claimant William Stephens was 74 years old at the time of trial and had been 64 when his leg was partially amputated. He was aware that he had PVD because of the vessel bypass surgery that had been performed on his right leg in 1987. He was incarcerated in 1990. In 1992, his right knee became very swollen after he hit it on the corner of a workbench, and his walking ability became poorer into 1993. He stated that he would have to stop and rub his right leg before he could continue walking. Claimant testified that his most serious complaints of leg pain extended over the period from March 1993 to April 1994, and, although he finally received tests in November 1993, Claimant said that he never received what he considered adequate treatment during this time.
He was particularly dissatisfied with the treatment provided by Dr. Krishna Vadlamudi, whom he began to see in March 1993. He said that the doctor never physically examined him: “I would sit in a chair and he was behind his desk and we’d talk. He had never touched me” (Tr, 341). In fact, Claimant stated, the only help he received for his frequent complaints of leg pain and difficulty walking came from the nurses, not the doctor assigned to his case. For example, he stated, at one point he was sent to the prison infirmary because he couldn’t walk, but Dr. Vadlamudi did not visit him once during that time.
Between November 1993, when he had been given a series of tests at an outside hospital, and April 1994, he continued to complain of pain in his leg and foot. Claimant went to the hospital in April 1994, after he was unable to walk at all and fell in his dorm. Even then, he testified, it was another doctor, Dr. Zongrone, not Dr. Vadlamudi, who came to the prison infirmary from his home, observed Claimant’s blackened toes, and immediately had an ambulance called to take him to the hospital (Tr, 347).
[2]

Claimant was taken first to Faxton Hospital, where an angiogram was performed, and then sent to Albany Medical Center, where the procedure was repeated. After about a week at the latter facility, he was advised that his leg would have to be removed.
When asked on cross-examination about his smoking, Claimant said that he had stopped on New Year’s Day 1994 and that before stopping, he had cut down to three cigarettes a day. He stated that he told the medical staff at the facility and at Faxton Hospital and Albany Medical Center that he was no longer smoking.
Both deposition testimony and live testimony of Dr. Mark Zongrone, director of the Marcy Correctional Facility Health Service, was introduced by Claimant. At his deposition, the physician recalled that Claimant was considered a “problematic inmate,” meaning that he frequently reported to the medical clinic with complaints. The majority of Claimant’s complaints centered on his right leg, and Dr. Zongrone estimated that during 1993 he made visits to the medical clinic once or twice a month.
With respect to the medical staff’s procedures, Dr. Zongrone explained that consultations outside the facility were routinely ordered by the staff of the medical clinic to assist the attending physician in care and treatment of the inmates. The referral requires a written request, with explanation of the need for the referral, and is sent to Central Scheduling at Mohawk Correctional Facility in Rome, NY, which actually schedules the consultations. When a consultation is ordered on an “urgent” basis, the procedure is somewhat different and involves faxing the request to SUNY Health Science Services in Rome, NY, and the patient is usually seen within one to two months (Tr, 182). He confirmed, however, that Claimant’s vascular studies had been ordered in March 1993 but were not performed until eight months later, in November 1993. Dr. Zongrone testified that he never saw the results of those studies until many years later, although such results should have been made available to the facility’s medical staff.
When he was able to see the results of the studies (Exhibit 2), shortly before his deposition in April 2000, it was the doctor’s opinion that those results indicated a moderate flow reduction which he described as an “impending problem” in Claimant’s right leg (Tr, 186). At trial he stated that he considered these test results to indicate a fifty per cent blockage in Claimant’s right leg. He acknowledged that no other studies were performed but said that the only other diagnostic procedure that would be helpful at that point would be an arteriogram, which is quite invasive.
[3]
He said that he would describe someone with Claimant’s test results as “somebody [who] needs to be followed by the medical staff, symptoms get worse, he needs to be referred out. It’s not like the disease process is going to go away” (Tr, 191). An arteriogram would have provided only a more definitive diagnosis, such as where the plaque sits or how bad the flow is (Tr, 192).
On cross-examination, it was brought out that the November 15, 1993 follow-up letter from the Upstate clinic contained no suggestion regarding further studies. Instead, it recommended that Claimant should stop smoking, return to the clinic in one year, walk past the claudication (i.e., walk until it was eliminated), and discuss his symptoms with a Dr. Kerns (Tr, 190, Exhibit 1-E).
Dr. Krishna Vadlamudi, who was Claimant’s treating physician during the time period in question, saw him for the first time on March 3, 1993. The purpose of the visit was to establish a baseline that could be used for reference in the future. At that time, he testified, Claimant complained of “claudication” (intermittent leg pain associated with vascular insufficiency, i.e., decreased blood flow through the vessels) and said that his right leg was worse than the left leg. The doctor’s examination revealed that Claimant had no pulses in his feet (pedal pulses) and that his feet were cold to touch. Dr. Vadlamudi was aware that Claimant had a history of vascular insufficiency and had undergone the vessel bypass graft in 1987. Although he stated that he concluded during that examination that there were no “significant symptoms” related to Claimant’s vascular condition (Tr, 40), he nevertheless continued him on a medication designed to prevent platelet aggregation and ordered a vascular consultation. He could not recall ordering that the consultation be performed on an “urgent” basis but acknowledged that there was such a notation on the consultation request form (Tr, 49, Exhibit 1-H). Dr. Vadlamudi acknowledges that he did not follow up to see whether the consultation had occurred. When he renewed a prescription for Claimant’s muscle relaxant in July 1993, without seeing Claimant, he asked why the consult had not taken place and was told that it was “in the process” (Tr, 68). He indicated at trial that he knew, in July 1993, that the outside consult would not occur until October.
He next saw Claimant on September 24, 1993, more than six months after the initial visit. At that point, he knew from the medical record that the outside consultation had not occurred; that Claimant had complained of severe foot pain in late July; and that just two days earlier, on September 22, Claimant had requested that he be moved up in the chow line because he was suffering leg pain when standing in line. He also knew that as a result of the July 29, 1993 complaint of foot pain, Claimant had been referred to a podiatrist.
[4]
The podiatrist’s report indicated bilateral pain in the back and legs and bilateral pain in his arches and concluded that he should be further examined to rule out Berger’s Disease, a vascular disease of the legs (Tr, 64).
Dr. Vadlamudi could not recall if he had performed a vascular examination of Claimant when he saw him in September 1993 and acknowledged that the medical record contains no note of one being performed (Tr, 58). When asked if, given his knowledge of the facts listed above and the patient’s history, he had any concern that his vascular disease had progressed during the past six months, Dr. Vadlamudi stated that he did not (Tr, 60). He did, however, again inquire as to whether a vascular consultation had been performed and was told that one was scheduled for October. The physician did not inquire as to why there had been such a long delay in getting this accomplished.
Upon questioning by Claimant’s counsel, Dr. Vadlamudi acknowledged that an ankle brachial index
[5]
could be performed to determine if a patient’s vascular condition was stable but stated that he never performed this procedure on Claimant because it was outside his expertise (Tr, 56). He also acknowledged that peripheral vascular disease is a progressive condition that must be monitored (Tr, 57).
Claimant was taken to Upstate on October 25, 1993 and, as a result of that examination, he returned on November 9 for vascular testing. A procedure to determine if the previous graft was holding produced normal results, but a lower extremity arterial pressure waveform showed diminished blood flow, diminished artery pressure, and diminished pulses in Claimant’s right leg and foot (Tr, 183, Exhibit 2). At trial, Dr. Vadlamudi testified that he had no recollection of whether he had been made aware of these test results when they were forwarded to the correctional facility, which typically occurred within a week of a procedure being performed (Tr, 74-75).
It was not until April 1, 1994 that he again examined Claimant, this time at the request of a nurse who had seen him on March 30 and observed that his toes were dark and cool to the touch and that his pedal pulses were faint (Tr, 92). Although the arterial pressure waveform test results were available to the physician at that time, he made no comment about them in his notes other than “angio OK.” He made no reference to the test results that had been abnormal. As a result of his examination on this date, after which he noted that Claimant’s right foot was slightly cool to the touch and had intermittent pain, Dr. Vadlamudi recommended only that Claimant continue to take daily aspirin, continue his other medication, and walk as he could tolerate (Tr, 96). Claimant was scheduled for another examination in four weeks.
In April, Claimant reported to the medical clinic approximately three times a week with complaints of foot pain and leg aches. Although the chart was available during that time, Dr. Vadlamudi did not review it and thus was not aware of the continuing complaints. When Claimant reported to the medical clinic on April 18, he stated that he could not walk, that his feet were swollen, and that he could not move his toes. On that occasion, Dr. Vadlamudi examined him and upon further examination the following day, April 19, the physician made another request for consultation, noting that the patient had continued to have pain in his foot from the day before, his right foot was cold and had no pedal pulse, and that in his opinion the right foot had “impending gangrene” (Tr, 100). He directed that Claimant be taken to the hospital by ambulance. He did not see Claimant again until after the amputation of his leg.
On examination by the State’s counsel, Dr. Vadlamudi reviewed Claimant’s ambulatory health record, which had been started at Marcy on December 20, 1991, noting the many visits made by Claimant and the many occasions on which he complained of problems other than leg or circulation problems.
Defendant did not introduce any fact witnesses in its case but submitted the transcript of the examination before trial of Dr. Ralph Clement Darling III, a treating physician at Albany Medical Center.
[6]
In 1994, Dr. Darling worked in the Vascular Service at Albany Medical Center and became involved with Claimant’s care after he was transferred to that hospital on April 28, 1994. The doctors at Faxton Hospital described Claimant as a “gentleman with an ischemic leg” (id. p 18). An angiogram was performed on Claimant on April 29,
[7]
and Dr. Darling saw him after that procedure, perfoming a vascular physical exam.
Claimant told him that his foot hurt, that it was numb and burning, and that “this had been going on for a while” (id. p 24). Upon questioning, it was determined that he had been experiencing these symptoms for approximately two months. Although the foot was paler than Claimant’s left foot, he was able to move it and to feel touch. The angiogram revealed, in Dr. Darling’s opinion, that Claimant’s blood supply below the calf was “severely diseased and poorly visualized” (id. p 35). It was determined however that because he was able to move his foot and feel sensation, although surgery was clearly indicated, it did not have to be performed that evening; it would be possible to wait to perform the surgery. Dr. Darling informed Claimant that there was a high chance, greater than sixty per cent, of losing his leg if surgery was not performed. Even so, because of the numerous blockages, surgical bypass was going to be a very complicated procedure and require multiple bypasses.
A surgical procedure was performed on May 2, 1994, following which it appeared that the pain had improved (id. p 100). On May 5, another angiogram was performed and showed that the blood flow had been improved. Claimant’s symptoms, however, continued to be the same, and in fact his ablity to move his foot was decreased (id. p 115). It was determined that, at that point, Claimant had two options: another surgical procedure, without high chance of success, or amputation. The second operation was performed on May 6, and the bypass created on that occasion appeared to be working better. Following that operation, however, some of Claimant’s muscle tissue and skin became ischemic (dead) and a plastic surgeon was consulted. Ultimately, on May 11, it was determined that the leg had to be amputated because of muscle necrosis and evidence of infection. The amputation was required because of the specific limitations of his leg’s blood flow “and more and most importantly, he had severe end-stage peripheral vascular disease” (id. p 137).
.
Expert Testimony
Dr. David Mayer, a general and board-certified surgeon,
[8]
testified as Claimant’s expert. Based on his knowledge of PVD and of the standard of care for such disease applicable to general and vascular surgeons in this area, as well as his review of Claimant’s medical records and the deposition testimony of a number of witnesses, he stated that, in his opinion, Dr. Vadlamudi’s treatment of Claimant had departed from the acceptable standard of care in several respects. The physician’s failure to follow up and make sure the vascular consultation was performed, after it was ordered in March 1993, was in his opinion a “gross departure from the standard of care” (Tr, 221), particularly after he became aware, or should have become aware, that Claimant was having fairly constant leg pain in July. The symptoms Claimant was evidencing in March – no pedal pulses and a foot that was cold to touch - are “generally the clinical cutoff to obtain an arteriogram and see if the leg needed further re-vascularization or further bypass surgery” (Tr, 222). By July 29, 1993, when Claimant began experiencing rest pain,
[9]
the limb was clearly in jeopardy (Tr, 264-265).
An additional breach of the standard of care occurred in September 1993, when Dr. Vadlamudi either failed to perform a vascular examination or failed to record his findings, in light of the patient’s continuing and worsening symptoms (Tr, 224-225), and failed to take any additional action at that time (Tr, 226). At that point, according to Dr. Mayer, Claimant had been exhibiting rest pain for at least two months and needed an urgent angiogram (Tr, 230).
When the November 1993 vascular study results became available, an angiogram should definitely have been ordered, according to Dr. Mayer, and taking no additional action in connection with Claimant’s treatment until April 1, 1994 was a serious breach of the physician’s medical responsibility to his patient. The infrequent examinations by a physican during the period from March 1993 to April 1994 was beneath the standard of care, given the severity of Claimant’s symptoms and the progression of the disease (Tr, 302).
Had an angiogram been obtained at that point [November 2003] which would be the appropriate test, it would permit a distal bypass to be done. In other words, bypassing further down the leg below the knee into one of the outflow vessels correcting the problem and preventing the graft from clotting. And it would have been done in a timely manner before the skin and muscle of the lower leg had ultimately died, such as in late April, where no matter how expertly performed a distal bypass would be done at that point, it would be too late because the skin and muscle were dead in the lower leg by then.
(Tr, 232).

Claimant’s condition on March 30 and April 1, 1993 should have been considered a vascular emergency, which makes the prescribed regimen of medication and walking entirely inappropriate and well beneath the standard of care (Tr, 291). Had appropriate action been taken on April 1, it was Dr. Mayer’s opinion that Claimant’s leg would not have had to be amputated (Tr, 237). Although the symptoms were significant, the foot still had normal color and Claimant was still able to move his toes. By April 19, this was no longer the case and the leg, at that point, was unsalvageable.
Although Upstate’s record stated that after the November 1993 testing, Claimant should be seen in a year, this recommendation would not, in Dr. Mayer’s opinion, overcome the need to monitor Claimant’s actual symptoms and their progression and to take appropriate action earlier, if it was needed (Tr, 238). Nor, according to Dr. Mayer, did Claimant’s continuing to smoke make the loss of his leg unavoidable, because the disease’s progression below the knee was treatable if treatment was provided in a timely fashion. In any event, he opined, the standard of care for a patient with peripheral vascular disease who smokes is to provide that patient with medical assistance such as a nicotine patch to help them break the habit, something that was not done for Claimant (Tr, 301).
On cross-examination, Dr. Mayer was asked to go through Claimant’s Ambulatory Medical Record, noting the number of visits that he made to sick call without any entries to indicate that he had complaints about his feet. He also acknowledged that although he felt certain an angiogram performed in November 1993 would have shown that another bypass was needed, he could not, of course, be positive what the procedure would have shown. After April 1, 1994, in his opinion, the leg was “non-salvageable” (Tr, 304-305).
Dr. Joseph Byrne, who is board-certified in both general surgery and vascular surgery, testified as Defendant’s expert. He stated that the primary treatments for PVD are conservative: avoiding cigarettes, regular exercise, proper diet. Smoking is particularly a problem, he stated, because smoke is very toxic to the walls of the arteries. Early signs of the disease are intermittent claudication, pain in the legs while walking, pain that goes away when they stop walking. Progressing from there, the patient has ischemic rest pain, continuous pain in the leg or foot in the absence of exercise. This level of symptom is considered a standard indication for surgery (Tr, 397).
1[0]
The third stage is actual tissue breakdown, skin breakdown: either an ulcer that doesn’t heal or blackish discoloration of the skin. At this point surgery is required.
For a patient with claudication, non-invasive tests performed in a vascular laboratory are recommended. These include the ankle brachial index and the angiodynography which makes use of ultrasound. The next step up, the arteriogram, involves risks, because you are putting a catheter into a diseased artery and injecting dye into it. If surgical intervention is required, the most common is the bypass graft, such as Claimant had in 1987. For this to be successful, there should be normal blood flow above the blockage and normal outflow below it, because if blood flow is sluggish through the graft, it will simply become occluded with clots. An endarterectomy is a less common procedure and involves opening up the artery and actually removing the blockage.
Although he indicated that the delay between an outside consultation being ordered for Claimant in March 1993 and the actual consultation taking place approximately seven months later in October was unacceptably long, Dr. Byrne stated that he did not feel that delay had any practical significance on the progress of Claimant’s disease. There was still no decision to operate when he was finally examined by the outside specialists. “[T]he arteriogram does not tell you when to operate. The arteriogram is a road map, once you’ve decided that you’re going to operate” (Tr, 477). In addition, his interpretation of the prison facility medical notes is that only intermittent claudication was indicated. Ischemic rest pain “means that the blood supply has reached a critical level and that is not going to go away;” it will persist, he stated, day and night “to the point where patients can’t sleep until either it’s corrected by surgery, or an – the patient needs an amputation” (Tr, 421).
In Dr. Byrne’s opinion, testing Claimant with only non-invasive procedures in November 1993 was appropriate. The ankle brachial index was 0.5, indicating that the blood flow was half of what it should be. This, he stated, is consistent with intermittent claudication and is not an indication for surgery (Tr, 416). Once the decision was made not to operate at that time, there was no need for the further refined information one would obtain from an arteriogram. He also found no fault with the recommendation that the patient be re-examined in a year, which is the typical time for a patient with intermittent claudication.
When asked to review the arteriogram performed on Claimant in April 1994, he stated that the superficial femoral artery was blocked, the graft put in place in 1987 had become occluded or blocked off, and two of the three arteries below the knee were also blocked, creating very limited outflow (Tr, 412). During the week that Claimant stayed at Albany Medical Center, three different arterial bypass grafts were attempted, but each failed because there was not enough outflow to sustain the graft. It was only after these attempts failed that amputation was proposed (Tr, 427).
When asked if there would have been a different outcome if these same procedures were performed six months or even a year earlier, Dr. Byrne stated that in his opinion, the result would have been no different. This was so, he explained, because the disease is slowly progressive, over the course of 20 to 40 years. “So to me, to argue that operating one year or two years sooner would have – you would have found yourself with a very different set of arteries is implausible” (Tr, 428). Because the fatty deposits built up very slowly over a number of years “if you had operated on this patient two years ago, I believe you still would have found a very difficult set of arteries to repair” (Tr, 429).
Confusingly, Dr. Byrne also disagreed with Dr. Mayer’s statement that Claimant’s right leg was not salvageable by the time he was admitted to Albany Medical Center. He disagreed with this conclusion because the admission note at the Medical Center clearly indicated that the patient had intact sensation and normal appearance of the skin, that it was not cold and gangrenous (Tr, 433) “I’m saying that there was adequate time, four days or whatever, after his admission to Albany, there was still a viable foot there. And there was adequate time, in other words, adequate time to do an operation that would result in the saving of that foot. I don’t believe, as Dr. Mayer testified, that it was impossible to salvage the foot at that time” (Tr, 482). He reiterated that “[t]he only point that you’ve lost the game, is when the foot becomes non-viable” (Tr, 483).
On cross-examination, Dr. Byrne acknowledged that the nurse’s notes taken on March 30, 1994 indicate a patient who is experiencing rest pain
1[1]
and that that pain would be expected to continue two days later, even though Dr. Vadlamudi’s note from April 1, 1994 indicated no rest pain (Tr, 462-463). When patients get to the point that they have rest pain, he indicated that some of them need to go to the operating room immediately, but that with some there is a three to five day window in which an arteriogram or other tests can be performed to make the operation more effective (Tr, 464). When asked, then, with a patient who had had rest pain for at least two days, if Dr. Vadlamudi’s plan of continued medication, aspirin, walking, and a follow-up in one month was therefore beneath the standard of accepted medical care, Dr. Byrne conceded that it would be inappropriate (Tr, 465). Nevertheless, despite this opinion, and despite the fact that Claimant’s symptoms worsened in late March and early April (Tr, 479), he opined that the three week delay between March 30 and April 19, when Claimant was sent to a hospital, did not make a difference in the ultimate outcome, because when Claimant arrived at Albany Medical Center, “there was still ample time for the surgeons to do a careful workup” (Tr, 467).
Applicable Law and Discussion
The State has an obligation to provide ordinary and appropriate medical treatment to inmates in its institutions (Gordon v City of New York, 120 AD2d 562 [2d Dept 1986], affd 70 NY2d 839 [1987]) and to make proper diagnosis and treatment (id; Rivers v State of New York, 159 AD2d 788 [3d Dept 1990], lv denied 76 NY2d 701). When, as here, the allegations of medical malpractice involve patient treatment, three component duties are owed by the physician to the patient: (1) the duty to possess the requisite knowledge and skill such as is possessed by the average member of the medical profession; (2) a duty to exercise ordinary and reasonable care in the application of professional knowledge and skill; and (3) the duty to use his or her best judgment in the application of this knowledge and skill (Littlejohn v State of New York, 87 AD2d 951, 952 [3d Dept 1982], citing Pike v Honsinger, 155 NY 201, 209- 210 [1898]). The standard of care a physician owes to a patient is to use such reasonable and ordinary care, skill and diligence as physicians in good standing in the same neighborhood, in the same general line of practice, ordinarily have and exercise in like cases. Physicians are expected to use the proper degree of care in making a careful diagnosis of a patient’s ailment and in deciding upon a treatment plan (O'Neil v State of New York, 66 Misc 2d 936 [Ct Cl 1971], and cases cited therein). In addition to proving that the physician or medical staff treating him failed in one or more of those duties, Claimant must also establish that such failure was a proximate cause of his damages, i.e., that it was a substantial factor in causing or exacerbating his injuries (Kennedy v Peninsula Hosp. Center, 135 AD2d 788 [2d Dept 1987]; Koster v Greenberg, 120 AD2d 644 [2d Dept 1986]).
There can be little dispute that the treatment received by Claimant for approximately a year prior to amputation of his leg fell below the accepted standard of good medical knowledge, care and practice in many respects. Defendant admits, in fact, that the delay between Dr. Vadlamudi’s ordering outside testing and consultation and the eventual consultation and testing was unacceptably long. There were several other instances in which the level of medical care provided fell so far below the accepted standard as to constitute malpractice.
Despite the fact that Claimant was known to have PVD, a condition that requires regular monitoring, and that his symptoms were worsening, to the point that Dr. Vadlamudi requested an “urgent” consultation in March, Claimant was actually examined for this condition only infrequently: on March 3, 1993
1[2]
and then again on two occasions in April 1994. This hardly constitutes the careful monitoring that all professional witnesses agreed would be necessary for someone with PVD at the stage it was revealed to be in the tests conducted at Upstate. The need for monitoring was particularly strong when one considers that Claimant had had bypass surgery in that leg approximately six years earlier and that an August 1993 podiatric consultation recommended that Claimant be further examined to rule out a particular vascular disease.
Although the results of the vascular tests were available by late November 1993, it is not certain that Dr. Vadlamudi ever saw them before he examined Claimant on April 1, 1994. At that time, he noted only the positive results, ignoring those that indicated diminished blood flow, artery pressure and pulses in Claimant’s right leg. Two days prior to the April 1 examination, a facility nurse had observed Claimant’s toes to be dark and cool to the touch and his pedal pulses faint. She requested that he be seen by a doctor, and two days later Dr. Vadlamudi also found Claimant’s right foot to be slightly cool and apparently credited his complaints of intermittent pain. These were new and ominous symptoms in a patient who suffered from a longstanding, progressive disease and whose tests from several months before had indicated markedly diminished blood flow, pulse and arterial pressure. Nevertheless, the physican’s only treatment plan was for Claimant to take aspirin, continue his other medications, and walk as much as he could tolerate. Furthermore, although Claimant reported to the medical clinic several times in the two following weeks, it does not appear that the doctor made any effort to check up on his progress, or lack thereof, seeing him finally only after he had reported to the clinic being unable to walk and, in Dr. Vadlamudi’s opinion, having “impending gangrene” in his right foot.
1[3]

As recognized by both parties, the central issue in this case is whether any of the acts of medical negligence – delay in obtaining outside tests; the very infrequent examination of Claimant’s foot during the period from March 1993 and April 1994; and/or Dr. Vadlamudi’s dismissive assessment of Claimant’s condition on April 1, 1994 – resulted in his leg being amputated at Albany Medical Center where it may have been saved otherwise. The delay in obtaining outside tests may not have played a role, but primarily because little or no use was made of the results by the facility medical staff. If there had been a more acceptable level of monitoring of Claimant’s condition and the tests had been performed in a timely manner, it is probable that a more accurate assessment of the progression of the PVD would have been made, allowing time for an additional series of tests to confirm the speed with which the disease was progressing.
It is evident that Claimant’s disease was progressing to the point that, if amputation was to be avoided, another bypass graft operation would likely be necessary at some point. Early testing, regular monitoring, and perhaps conducting a second set of tests to quantify changes in his condition would have been the accepted course of treatment given the symptoms that he was presenting as early as March 1993. If an operation was going to be necessary, early identification of that need would have lessened the pain that Claimant had to experience and would have increased the likelihood of success of such an operation. Claimant did not receive any of the services that would have permitted this outcome. The vascular tests were not performed promptly, with the result that the baseline they provided was far too close to the collapse of the vascular system in Claimant’s right leg to be of any significant use. Conducting an initial vascular examination of Claimant in March 1993 and then failing to follow-up with another examination for more than a year later, and then only at the urgent request of a nurse, is in no sense the regular, responsible monitoring plan that all agreed Claimant’s condition warranted. The Court is convinced that this long period of neglect on the part of Defendant caused the amputation to be necessary in the spring of 1994. There were many chances missed during that time to accurately chart the progress of his disease and to perform surgical intervention at a time when it could have succeeded. April 1, 1994 was probably the last possible moment at which Claimant’s leg could be saved, for it is certain that by April 18 it was already too late. If Dr. Vadlamudi had assessed the situation correctly and taken appropriate action on that date, the weight of informed opinion is that an amputation might have been avoided. If, however, he or others on the facility medical staff had taken steps during the preceding year to adequately monitor Claimant’s condition, then it appears that amputation could almost certainly have been avoided. The only testimony to the contrary was that of Dr. Byrne, when he stated that the result (failure of bypass graft surgery and amputation of the lower part of the leg) would have been the same even if the surgical procedure had been performed six months or a year earlier. This conclusion was baldly stated, without convincing explanation, and it also contrasted, quite starkly, with his other testimony that it had been possible to salvage the foot as late as Claimant’s admission into Albany Medical Center. The credible medical testimony, even that of Dr. Zongrone and Dr. Vadlamudi himself, give strong support for the conclusion that with a program of careful monitoring and education of the patient, amputation might well have been delayed for many years or avoided altogether. Accordingly, the Court holds that the overall delays and neglect in the treatment provided to Claimant, compounded by the cavalier dismissal of his symptoms at a very critical time in April 1994, resulted in amputation of the right leg when it most likely would not have occurred otherwise.
Damages
Claimant testified that he left high school during his senior year, in order to care for his mother, and worked thereafter. He enlisted in the Army in 1951 and was stationed in Germany, but he was given a bad conduct discharge four years later. The reason for this type of discharge, he stated, was that he missed five bed checks. From 1955 to 1990, he had various employment, including jobs with Bethlehem Steel and Long Island Railroad. His longest employment was ten years at St. John’s Hospital in Far Rockaway, first as a cook and then in housekeeping. He was incarcerated from 1990 to 1999, at which time he was placed on parole. He was released from parole after only six months. While in prison, he worked on small engines in the machine shop, but he was not able to return to this work after losing his leg.
Following his release, Claimant had difficulty obtaining work for which he was qualified that he could perform satisfactorily due to the amputation (Tr, 336). Driving, working as a cook and housekeeping tasks were very difficult for him. His current income consists of a small pension from St. John’s Hospital, Social Security, and a Workers’ Compensation benefit from injury to his back while working for St. John’s. These sources total $1,633 a month.
Claimant testified to the difficulty he has encountered using a prosthesis, stating that it is often too high and presses into his groin, so that he doesn’t wear it much of the time. It has also begun slipping since he lost a little weight. In fact, he only uses the prosthesis about twice a week. He is able to walk about 25 feet down the hall in his residence, but would not be able to do that if there weren’t a railing along the hallway. Without something to hold onto, he could take only four or five steps. More frequently he uses a wheelchair in his apartment and an Auto Car, a type of motor scooter, when he goes out. He would be very interested in having a prosthesis like the C-leg (described below).
Prior to losing his leg, Claimant’s favorite activities were jogging, playing ball, bowling and fishing. Now his primary recreational activity is to play cards or go to shows. He also continues to experience pain in the missing leg, every day (Tr, 356).
Testifying for Claimant was Gerald Fleming, a certified prosthetist, orthotist and pedorthotist and owner of Bio-Tech. Making reference to his records (Exhibit 4), he stated that Claimant has been his patient and that he has had occasion to consult with Claimant’s physicians in connection with his care. Claimant is in a category termed “K-3.”
A K Level three would be an individual that would be a community ambulator that would have a variance cadence, would be able to walk slowly and fastly, could walk up and down curbs . . . .
(Tr, 313). It is the physician who decides the K level, and then it is up to Mr. Fleming to determine which model of foot to put on the patient. The physician then signs a letter of medical necessity if he agrees with that choice. Of paramount importance when selecting a certain model are its safety (stability) and the way in which its movement interacts with other parts of the patient’s body such as back, shoulders and neck.
Claimant, Fleming stated, is best suited for a prosthetic known as a “C-leg” system, which makes use of a computer microprocessor that assists the amputee in maintaining a stable gait. The cost of a C-leg system is between $46,000 and $52,000, of which all but 20 per cent would be covered by Medicare. On the other hand, Medicare HMOs, which is the coverage Claimant has, does not cover any of the cost of such a system. Such a system is warranted for three years and an additional two years coverage can be purchased for $2,500.
1[4]

The statistical life expectancy for someone of Claimant’s age at the time of trial was 10.4 years (PJI, Appendix A). However, in light of Claimant’s past medical history and current physical condition, the Court considers 6 to 7 years to be a more realistic projection of Claimant’s life expectancy.
Because there was no proof of lost earnings or past medical expenses,
1[5]
there can be no award for those categories of damages, leaving the award to be comprised of the following categories: future medical expenses, past pain and suffering, and future pain and suffering.
It does not appear that Claimant’s medical coverage will pay any of the costs for an improved prosthesis of the type described above. Consequently, considering the projection regarding Claimant’s life expectancy, the Court will award the cost of one such device plus an extended warranty, for a total of $54,500.
As to the past and future pain and suffering, determined as of the time of decision (CPLR 4213), during the year in which, it has been determined, Claimant’s physical condition received inadequate attention from facility physicians, he suffered significantly more distress and discomfort than would have been otherwise necessary. Thereafter he underwent three surgical procedures (two attempted bypass operations and the amputation) as well as multiple angiograms, with all the attendant pain and discomfort, whereas prompt medical intervention would have required, at most, only one angiogram and one bypass surgery. Following the amputation, the discomfort, limitation and loss (of both physical ability and enjoyment of life) that is associated with amputation of his leg has been and will continue to be a daily burden and challenge. One would anticipate, however, that the discomfort and limitation would be significantly less in the future, as he will have a new prosthesis and it seems that difficulties with the current ill-fitted one of a less complex design are currently his major source of pain and limitation.
Awards for pain and suffering are necessarily based on subjective factors and cannot rely on any precise, detailed guidelines. Such an award is excessive if it "deviates materially from what would be reasonable compensation" (CPLR 5501 [c]; see Mitchell v New York City Tr. Auth., 283 AD2d 618, 619 [2d Dept 2001]). For this reason, it is proper for courts to look to comparable cases in order to determine what has been found to be reasonable compensation for similar injuries (Apuzzo v Ferguson, 20 AD3d 647 [3d Dept 2005]; Valentine v Lopez, 283 AD2d 739, 743 [3d Dept 2001]; see generally Caprara v Chrysler Corp., 52 NY2d 114, 126-127 [1981]). Based on consideration of a number of such cases, the Court has determined that Claimant is entitled to an award of $650,000 for past pain and suffering and $195,000 for future pain and suffering (see Hotaling v CSX Transp. 5 AD3d 964 [3d Dept 2004]; Walker v Zdanowitz, 265 AD2d 404 [2d Dept 1999]; John v City of New York, 235 AD2d 210 [1st Dept 1997]; Sladick v Hudson Gen. Corp., 226 AD2d 263 [1st Dept 1996]; Chung v New York City Tr. Auth., 213 AD2d 619 [2d Dept 1995]).
Accordingly, the Chief Clerk is directed to enter judgment in favor of Claimant awarding the sum of $650,000 for past pain and suffering, $195,000 for future pain and suffering, and $54,500 for future medical expenses, for a total award of $899,500.
Let judgment be entered accordingly.








May 18, 2006
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims



[1]. One of the witnesses, Dr. Mark Zongrone, director of the Marcy health service, described PVD as follows: “a disease state of either the arteries or the veins of the lower extremities in which the flow of blood is hindered by some form of obstruction, sometimes plaque, in which the lack of blood flow creates syndromes and differential diagnosis such as claudication, pain, inability to walk from the lack of blood flow or oxygenated blood to that lower extremity” (Tr, 168).
[2]. Claimant’s testimony as to the identity of the physician who examined him and sent him to an outside hospital in April 1994 was not confirmed by the testimony of either Dr. Zongrone or Dr. Vadlamudi.
[3]. The terms “arteriogram” and “angiogram,” are synonymous (Tr, 228).
[4]. This referral had been marked “urgent” and the podiatrist examination occurred within days, on August 3, 1993.
[5]. According to Claimant’s expert, the ankle brachial index is “a measure of the ankle pressure which in a normal [person] is always equal to or higher than the arm pressure . . . [T]hey put the ankle pressure over the arm pressure and anything less than 1.0 is abnormal” (Tr, 213).
[6]. Initially, Defendant sought to introduce the EBT transcripts of two of the Albany Medical Center physicians, Dr. Darling and a Dr. Chang, and Claimant’s right to call these witnesses on rebuttal was recognized (Tr, 488-491). Subsequently, Defendant elected to submit only Dr. Darling’s transcript, and Claimant’s counsel informed the Court that Claimant had no objection and no rebuttal.
[7]. Since the first angiogram did not reveal any vessels that it would be possible to bypass to, a second one – utilizing a technique called digital subtraction angiography - was performed.
[8]. At the time of his training there was no specific certification for vascular surgery, but that has comprised the greater part of his practice (Tr, 210).
[9]. Rest pain, which is continuous pain in the leg or foot in the absence of exercise, occurs when the blood supply to the location has become critically low. It persists unless adequate circulation is somehow restored.
1[0]. Simple “rest pain,” as opposed to ischemic rest pain, according to Dr. Byrne, results from any kind of traumatic injury, such as a bruise or sprain, or musculoskeletal condition, such as gout. It is not a limb-threatening condition where the blood flow “has reached such a critically low level that unless intervention is carried out, an amputation is going to follow” (Tr, 424).
[1]1. Although Dr. Byrne earlier distinguished between ischemic rest pain caused by PVD and “rest pain” arising from other causes, the comments made here suggest strongly that he was speaking of ischemic rest pain in this series of questions. This was confirmed later in his testimony (Tr, 481).
1[2]. Claimant was seen by Dr. Vadlamudi on September 24, 1993, two days after he complained about leg pain while waiting in the chow line, but there is no indication that he was actually examined by the doctor.

1[3]. Other actions on the part of the facility medical staff, such as the failure to perform an arteriogram at some earlier point or Dr. Vadlamudi’s failure to perform an ankle brachial index, can be debated but do not so clearly fall as far outside the accepted standard of relevant medical practice as these aspects of Claimant’s treatment.
1[4]. At the conclusion of trial, the record was left open to receive information about the possible existence of a Medicare lien. The Court has been informed that there is no such lien.
1[5]. Apparently Claimant’s past medical expenses were paid for by Medicare. As noted above, Medicare does not assert a lien for any of those expenses.