STEPHENS v. THE STATE OF NEW YORK, #2006-028-013, Claim No. 93862
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.
WILLIAM C. STEPHENS
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
RICHARD E. SISE
PETER M. HOBAICA, LLCBY: Peter M. Hobaica, Esq.
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Michael O’Neill,
Esq.Assistant Attorney General
May 18, 2006
See also (multicaptioned
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
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.
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.
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
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).
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.
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
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
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.
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
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).
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
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
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,
and Dr. Darling saw him after that procedure, perfoming a vascular physical
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
. 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
. 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).
Dr. David Mayer, a general and board-certified
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,
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.
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
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).
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).
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,
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
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
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).
cross-examination, Dr. Byrne acknowledged that the nurse’s notes taken on
March 30, 1994 indicate a patient who is experiencing rest
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
AD2d 562 [2d Dept 1986], aff
d 70 NY2d 839 ) 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
, 155 NY 201, 209- 210 ). 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
, 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,
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.
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.
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.
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
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
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
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
Because there was no proof of lost earnings or past medical
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
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.
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
, 283 AD2d 739, 743 [3d Dept 2001]; see generally Caprara v Chrysler
52 NY2d 114, 126-127 ). 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
, 265 AD2d 404 [2d Dept 1999]; John v City of New York
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
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
May 18, 2006
HON. RICHARD E. SISE
Judge of the Court of Claims
. 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).
. 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.
. The terms “arteriogram” and
“angiogram,” are synonymous (Tr, 228).
. This referral had been marked
“urgent” and the podiatrist examination occurred within days, on
August 3, 1993.
. 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).
. 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.
. 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
. 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).
. 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
. 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. 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).
. 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
. 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
. 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.
. 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.