New York State Court of Claims

New York State Court of Claims

O’SHEA v. THE STATE OF NEW YORK, #2007-016-005, Claim No. 101626


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Alan C. Marin
Claimant’s attorney:
Sullivan, Papain, Block, McGrath & Cannavoby: Eric K. Schwartz, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney Generalby: Adam Kaufman, AAG
Third-party defendant’s attorney:

Signature date:
January 22, 2007
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This is the decision following the trial of the claim of Michael and Diedre O’Shea against the State of New York, arising from Mr. O’Shea’s treatment at the University Hospital and Medical Center at Stony Brook where he presented himself on July 25, 1998, having cut off two fingers while using a table saw.
At his home in the Village of Bayport in Suffolk County, O’Shea was cutting a piece of wood when the saw “kicked back” (cl exh 3, p.11)
and severed parts of the third and fourth fingers of his left hand (the long and ring fingers). Claimant testified that the accident occurred at about 6:30 to 6:45 p.m.
His youngest son, Christopher, went upstairs from the basement to get a towel and call 911. When Christopher came back downstairs (with his older brother), he picked up the severed fingers, placed them in a plastic bag and put that bag inside a larger plastic bag filled with ice. The first finger had been found right away, but claimant
did not immediately realize he had cut off two fingers, and it took five to seven minutes to locate the second one.
O’Shea was taken by ambulance to Stony Brook Hospital, where according to the records, he was first seen in the emergency room at 7:19 p.m. His wife Diedre, who had been upstairs in the kitchen, accompanied Michael and was with him at the hospital until he was discharged at about 4 a.m. early the next morning. Claimant’s finger stumps were stitched up; no attempt was made to reattach, or replant, the severed portions.
The first person to see claimant was the triage nurse. The process was explained in the October 2, 2002 deposition of Dr. Lori Manzione, who was an emergency room physician at the hospital at the time, having worked there since 1994 in a part-time status. The triage nurse makes the determination whether an incoming patient needs to see a doctor right away. The emergency department has a treatment sheet with a priority checklist: A-1; A-2; B-1 and B-2. Dr. Manzione testified that as for Category A-2, the second highest level: “It’s somebody who needs to be seen by the next available doctor,” and O’Shea’s condition was at such level because “there’s a loss of a limb or body part that needs to be addressed.”
Dr. Manzione testified that a patient placed in Category A-2 should be seen by a doctor within 30 minutes following completion of the necessary paperwork. O’Shea was seen promptly by resident Dr. David Cohen,
who at 7:42 p.m. had ordered x-rays of the hand and severed joints.
At this time, Dr. Manzione wrote in her notes “ortho STAT,” meaning that an orthopedic consult should be set up as soon as possible. Manzione explained, “it means we should call them as soon as we walk out of the room or as soon as I walked out of the room . . . ” Dr. Manzione could not recall whether she or Dr. Cohen called orthopedics. At 8:30 p.m., O’Shea was given a tetanus shot; the administration of pain medications began at 9 p.m.; and during the evening and overnight hours, O’Shea’s vital signs were monitored.
However, the x-rays were not performed until 11:33 p.m. (cl exh 3, p.16), and claimant did not see an orthopedic surgeon, Dr. Robert Wang, until 1:30 a.m. Dr. Wang read the x-rays and spoke to the patient about his medical history and the accident. He then consulted with two other doctors over the telephone - - an unnamed senior resident and Dr. Michael Dowd.

Dr. Wang explained Stony Brook’s orthopedic hierarchy or call structure in regard to patient management decisions. Wang, as the junior resident, in fact in the first month of his first year, would call the senior orthopedics resident, and “once I’ve completed my evaluation, I would have called the attending [Dr. Dowd] and discussed my findings with him.” Dowd, he said, was not usually physically present at the hospital. Neither Wang nor the senior resident could make a decision as to treatment without Dr. Dowd.
Dr. Dowd in his deposition testimony of August 24, 2004 stated that he would not generally see emergency room orthopedic patients unless “there was some doubt about the situation,” but could see such patient subsequently after discharge, as he did with Mr. O’Shea. Confirming Dr. Wang’s testimony, Dowd explained that the resident would call or page him and they would then discuss what was seen by the resident, the nature of the injury and the patient’s medical history. He had no direct recollection of claimant and his injury, except for what was contained in the records.
At 2 a.m., Dr. Wang closed the amputation wounds, performing what is termed a revision - - a procedure that would have required Dr. Dowd’s assent. Claimant’s bleeding had been controlled early on; there is a chart note to that effect at 7:45 p.m. from the previous evening. O’Shea was discharged from Stony Brook Hospital at 4:05 a.m. on July 26. (Cl exh 3, pp. 11&13).
No attempt was made to replant one or both fingers. There is no reference in the patient’s chart to replantation or any discussion or decision-making thereon. Oddly, there is a chart notation at 11:10 p.m. that “Pt. may be going to OR” (id., p. 11). The records do, however, contain information such as O’Shea’s history of smoking that defendant maintains were relied upon to determine that replantation was not medically feasible.
According to Dr. Wang, the medical staff might not specifically discuss replantation, but would discuss the viable options. He could not recall anything other than what was contained in the records, but assumed such discussions were had about Mr. O’Shea. The deposition testimony received from the four doctors who were involved in O’Shea’s case in July of 1998 contained no references to any discussion with the patient (or his wife) about whether a replantation would be performed, and if not, why not. Dr. Wang testified as follows:
[Question:] Do you recall explaining to the patient why you couldn’t reattach his fingers?

Answer: I don’t recall specifically, but I would assume that I did explain the reasons for not reattaching the fingers to him.
O’Shea recalled one conversation in which he was told that one finger could be reattached. Claimant recalled that while he was being sewn up (by Dr. Wang), a brief conversation ensued as to why re-attachment was not done and “the only words that were used towards me were that - - contamination.”
At trial, three doctors took the stand, each of them a non-treating expert. Claimant called Dr. Eric Munoz; defendant called Dr. Seth Paul and Dr. Salvatore Lenzo. Drs. Paul and Lenzo are experienced and highly credentialed orthopedic surgeons who specialize in hand surgery. The former testified about the effects of the injury on O’Shea and did not cover his treatment in July of 1998 as Dr. Lenzo did. But their efforts in 2006 to rationalize the treatment O’Shea received in 1998 are not without some inconsistency and defensiveness.
Defendant maintains that O’Shea was not a suitable candidate for implantation surgery because of: I) the nature and circumstances of the particular injury; and ii) claimant’s medical history (including his age).

The Injury
Defendant argues that the digits became contaminated when they fell onto the basement floor, which had sawdust on it. This is not persuasive. The patient was given antibiotics and Dr. Munoz testified that sawdust does not have a high bacteria count and can be washed off. Dr. Munoz was also credible in pointing out that what happened to O’Shea is no different from the typical amputation accident, where the amputated portion invariably falls into a non-sterile place.
The medical chart indicates that when the fingers were picked off the floor they were covered with sawdust, but also refers to the double bag with ice as sterile (id., cl exh 3, p.7). Dr. Lenzo testified that the amputated fingers appeared to have been packed properly. There is no evidence that they were ever examined and evaluated for the level and type of contamination, although there was a reference to “wood contamination” in the orthopedic consult (id., pp.18 & 19). Further, the medical chart includes no entry that one or both fingers was unacceptably contaminated.
As for what the table saw did to claimant’s fingers, the radiology report provides as follows:
Traumatic amputation of the distal 3rd and 4th digits is appreciated. The amputation disrupts the 3rd PIP. However, the 4th PIP is intact and there is no disruption of the DIP in the amputated portion. Soft tissue air in the amputated part is also seen. The remainder of the bony structures are within normal limits. [Cl exh 3, p. 16].
The proximal interphalangeal joint (PIP) is the second knuckle down from the tip of the finger. The distal interphalangeal joint (DIP) is one joint closer to the fingertip. Dr. Dowd described each of the two amputations as through the PIP, but through the PIP joint of the long finger and “just slightly distal [down toward the fingertip] to the PIP joint of the ring finger.” Dr. Munoz explained when all the soft tissue has been pulled off the bone - - or evulsed - - such is a factor against implantation, but Munoz described the x-rays as showing all the tissue present, although a little damaged. One of the problems with evulsions is lack of skin cover, but Dr. Lenzo agreed on cross-examination that there were surgical responses to such.
Dr. Lenzo testified, “this is not a clean amputation . . . there was a jagged or an evulsion type of injury,” although he added that while it makes replantation more complicated, it does not foreclose it. The experts on both sides agreed that there were no fractures in the remaining finger stumps nor in the severed fingers.
This was not a crushing injury; defendants’ doctors maintain that the amputation was not clean, but the only example of a clean amputation that was offered was as if were done by a scalpel. Dr. Lenzo testified, “It’s not a clean cut. It’s not like where you have a scalpel where you make a clean half a millimeter incision.” I cannot conclude that the nature of the saw cut contraindicated replantation. Dr. Munoz, an experienced trauma physician, concluded that O’Shea’s fingers could and should have been reattached.

Claimant’s Medical History
Defendant asserts that Michael O’Shea’s medical history and age made him an inappropriate candidate for replantation. As of July of 1998: O’Shea had been smoking half a pack of cigarettes a day for over 30 years; had a heart attack five years previously and an angioplasty procedure following the heart attack; and had hypertension for which he took medication.
Dr. Wang, the orthopedic resident on duty, stated that he took O’Shea’s past medical history, including any “significant social history,” and said that he must have looked at the x-ray films. The only specific part of the history that he mentions was smoking. Reading from his notes, he testified that the contraindications for replantation were a lifetime of smoking, claimant’s angioplasty for coronary artery disease and then, as an afterthought, that the injury was not to the patient’s dominant hand.
Born in March of 1946, claimant was 52 years old on July 25, 1998. In his deposition, Dr. Dowd stated that this was older than average for such reattachment,
but would not disqualify O’Shea on that basis, saying “there are too many factors integrated into that.”
When asked about other risk factors, Dr. Dowd at first said, “None that I have noticed here. I don’t see much written about his past medical history though and that may have been - - or smoking, it didn’t come across . . .” Then after finding the reference in the chart to a prior heart attack (cl exh 3, p. 7), he responded:
“It appears that they [the severed fingers] were packed properly and the factors that would lean against an attempted replantation would include the maceration as noted in the x-rays, the history of myocardial infarction, coupled with 55 years of age [actually age 52], were the major reasons that it was decided not to replant these fingers.”
Dr. Lenzo mentioned three potential problems: cardiac, kidney failure and the ability to handle “significant psychological stress.” Then he mentioned other pre-existing conditions -- whether the patient has a history of diabetes or hypertension and whether the patient is a smoker. Smoking causes vasoconstriction, and hypertension arteriosclerosis, which is a thickening of the walls of the vessels. This tended to the general: O’Shea did not have diabetes or any kidney problem.
Dr. Lenzo explained that for such procedure, a patient would have to be able to withstand a “long extensive anesthesia,” at least four hours’ worth per finger, and to undergo a significant amount of bleeding. With regard to bleeding, when asked on cross-examination if a transfusion minimized risks, the doctor answered, “perhaps.” As to what was in the hospital records for that first day, Dr. Lenzo stated that the ER physician made note of claimant’s heart attack, but agreed that he could not point to a conclusion in the record that smoking and the prior heart attack were the reasons why implantation was not attempted, although the witness did say that the underlying facts were there.
There was no entry, nor any recollection by any of the treating doctors, that O’Shea had successfully undergone two surgeries in a week for a ruptured colon (in the period between his heart attack and amputation injury), which could demonstrate his ability to withstand surgery.
At trial, Mr. O’Shea, who was eight years older, was, to this trier of fact, patently physically and mentally vigorous.
Dr. Lenzo, on the witness stand, came across as somewhat uncomfortable with the treatment O’Shea received; consider the following exchange on cross-examination:
[Q.] Doctor, would you agree with me that the failure to carry that order out for a Stat orthopaedic consult under the circumstances when a man presents to the hospital with amputated fingers was a departure from good and accepted medical practice?

A. It didn’t affect the treatment in this case.
In other words, according to defendant’s expert, what happened at the hospital did not matter, because O’Shea was not a good candidate for replantation. Dr. Lenzo, when asked about the percentage of patients who experience a successful finger replant, gave the figure of 85% “from a viability standpoint . . . That refers just to making the finger live. That does not refer to - - and that’s in ideal circumstances . . . having a functional hand and using the finger . . .”
O’Shea, like any potential patient coming into the emergency room, was subject to the triage process. The trauma of finger amputation was in the second most urgent triage category. That night, there was no category one [A-1] group of patients taking precedence, nor for that matter other category two’s with priority equal to that of O’Shea. Furthermore, it was undisputed that the Stony Brook Hospital had the capability to do replantation surgery.
O’Shea was seen quickly in the ER and an orthopedic consult was requested “STAT,” but what happened thereafter was unresponsive. There were a few unsettling details as well: the patient’s age was recorded incorrectly in his medical chart; Dr. Manzione testified that the triage entry was hard to read, the slash was between the second and third categories, A-2 and B-1; and the severed fingers stayed with O’Shea under the gurney (except for when they were x-rayed, and afterwards were returned to their place under the gurney).
The first orthopedic consult at 1:30 a.m. may have been as long as seven hours after the sawing accident. The only person empowered to make the decision on replantation attachment - - and (presumably) the surgeon therefor - - was on call, not on site, and more time would have been lost before the patient could have been ready for surgery, including an anesthesiologist consult. As we have seen, claimant’s finger stumps were sewn up by Dr. Wang at 2 a.m. It could have been some eight or more hours from the time of injury to the commencement of any replantation surgery.
Dr. Dowd testified that “one would consider eight hours about the upper limit without trying to break records” and that was if the fingers were properly packed in ice. Dowd did say that the longest period he had heard of was 24 hours. Defendant’s expert Dr. Lenzo said such period was significantly longer than eight hours in the case of fingers that are kept properly cold, but bear in mind that the decision to sew up the wounds and not attempt replantation was made by Dr. Dowd, not by defendant’s expert.
When Dr. Dowd was called or paged, he called back quickly - - at most a half an hour given that the orthopedic resident Wang who reached out for Dowd first saw the patient at 1:30 a.m. and then after conferring with Dr. Dowd stitched up the stumps at 2 a.m. Time had run out; and O’Shea’s wounds were just closed up. There was never a considered medical judgment at the hospital that Michael O’Shea was or was not a proper candidate for replantation surgery.
Dr. Eric Munoz, claimant’s expert, was not a hand specialist like Drs. Paul and Lenzo and has not performed surgical replantations, but for 25 years has treated several hundred amputated fingers and hands. Munoz was educated at the University of Virginia and received his M.D. from the Albert Einstein College of Medicine and did his residency and internship at Yale. He is a full professor of surgery at the New Jersey College of Medicine, where he teaches surgery and emergency medicine, as well as administration. Defendant criticized Dr. Munoz for the number of times he has been an expert witness. To this trier of fact, Munoz was well-grounded; in fact, the night before his testimony in this matter, he had worked in an emergency room, and he was focused on the specifics of this case. In light of the entirety of the evidence, I accept Dr. Munoz’s conclusion that the treatment of claimant by defendant on July 25 and 26, 1998 varied from good and accepted medical practice in failing to have the orthopedic consult sooner and thus failing to replant.
Preliminarily, the obvious ought, in any event, to be articulated. This is not the case of an individual who is injured on the job and the measure of damages is a comparison of, for example, the right ankle before and after. Even in that case, as we know, ascertaining damages for pain and suffering does not lend itself to arithmetic formula. The measure of O’Shea’s damages is less amenable to formulaic calculation, but the record does provide a sufficient basis to make such determination. See for example, Caprara v Chrysler Corp., 52 NY2d 114, 126-127, 436 NYS2d 251, 257 (1981).
To this trier of fact, a prompt orthopedic consult and replantation surgery would have resulted in two viable fingers, but only the ring finger would have been fully functional. While mindful of Dr. Paul’s testimony that even with a successful replant, there can be scarring, the finger can be a little shorter and may protrude when a fist is made, I conclude that replantation surgery would have resulted in effectively no disfigurement. (Dr. Paul agreed that O’Shea’s condition constituted a disfigurement.). Concluding that only the ring finger would be fully functional is based upon: the radiology report that the PIP joint of the ring finger was intact, but that of the middle finger disrupted, and on Dr. Dowd’s testimony that replantation of a finger severed right through the PIP joint results in stiffness after replantation.
O’Shea was a highly credible witness. Claimant adjusted to his condition, and did not shape his testimony to suggest otherwise; he was not given to overstatement or self-pity. As for its impact on the relationship between claimant and his wife, he testified:
I think it’s affected the relationship, and it’s affected it from the beginning . . . I can’t say that she pulls away from me, she doesn’t, but it’s just the sense that is there that wasn’t there before the incident, and it’s in response, I believe, to the fact that I’ve amputated two fingers. It’s just a feeling that is certainly different than it was all the other years of our marriage.

Claimant’s four-year old granddaughter pushed away his left hand when they were playing, “it’s an emotional thing at this point . . . I don’t want her to think I’m any different than anybody else and that’s my point.”
O’Shea testified at trial, in 2006, that the fingers were still “very, very sensitive . . . I don’t experience any chronic pain with it other than if I inadvertently smack it . . . It’s sensitive to cold.”
Claimant described himself as a “compensator,” and has managed fairly well. He missed one week of work as an advertising salesman and no lost wages are sought here. O’Shea is right-handed. The injury was to his non-dominant hand, and to fingers less important functionally than the thumb or index finger.
Dr. Paul, who examined O’Shea on November 25, 2002, testified that claimant “retains good use of his left hand for his normal activities of daily living” and said that “he does more than 95% of all the patients I’ve ever treated or examined,” but he did not focus on what claimant could no longer do after the injury. Dr. Paul did state that claimant’s grip strength in his left hand is “[j]ust slightly better than half.” Dr. Munoz measured O’Shea’s grip and flexion strength at about 60 percent of normal and characterized the use of his left hand as “limited,” adding that the weakening that comes with the normal aging process would be exacerbated by the injury.
O’Shea, as indicated, was highly credible, and I will rely on his testimony as to what he could no longer do after the accident. Claimant had been an avid sailor. After the accident, he tried for a number of years to continue to do so, but could not grasp lines and sails, and because of this, he finally sold his boat about two years ago. Back on land, he cannot grip a wrench to work on his car, button his shirt, has trouble holding a fork to cut up his food and is unable to do as much handy work around the house as he once had. Mrs. O’Shea added that he could not tie his shoes.
In evaluating the diminution in O’Shea’s day-to-day living, not all of his functional impairment is a proximate result of defendant’s malpractice; as concluded above, had the replantation gone forward, only one finger would have been fully functional with the other far less so. Such must be factored into O’Shea’s loss - - and in Mrs. O’Shea’s derivative suit as well.
In view of the foregoing, I find that claimant’s past pain and suffering amounts to $150,000. Born in March of 1946, claimant was 60 years old at time of trial, and according to the actuarial tables, he has a life expectancy of 19 years;
I find his future pain and suffering to be $300,000.

Diedre O’Shea’s Damages
At the time of trial, the O’Sheas had been married for 38 years and had two grown children. Mrs. O’Shea testified that because of her husband’s injury, he could no longer do things that he had helped her with previously, and they became her responsibility. Michael cannot wash dishes, because he has trouble holding onto the dish. As for cleaning, Mrs. O’Shea gave the example that her husband could no longer clean the hanging lights because he could not go up a ladder. She added, for “yard work . . . painting, sanding, a lot of different things . . . I would help him with - - that which he couldn’t do . . .” More personally, Mrs. O’Shea went on:
It upsets me when I look at it, and if I go to grab his hand . . . You don’t think about it all the time, but you just go - - when we’re walking and you go to grab his hand, you’re aware of it. It’s an uncomfortable thing.
Accordingly, I find that the damages due Diedre O’Shea for loss of her husband’s services amount to $75,000.
The Clerk of the Court is directed to enter judgment for claimant Michael O’Shea in the amount of $450,000, which judgment shall be held in abeyance pending a hearing under Article 50-A of the CPLR, to be scheduled by the Court. The Clerk of the Court is further directed to enter judgment for claimant Diedre O’Shea in the amount of $75,000. Any filing fee paid by claimants may be recovered pursuant to subdivision two of §11-a of the Court of Claims Act.

January 22, 2007
New York, New York
Judge of the Court of Claims

[1]. Claimants’ exhibit 3 contains Bates-stamped excerpts from O’Shea’s medical records, the full set of which comprise claimants’ exhibit 1. Claimants’ exhibit 2 consists of the X-rays taken the night of July 25, 1998.
[2]. Inasmuch as Diedre O’Shea’s claim is derivative of that of her husband’s, references to “claimant” in the singular and to “O’Shea” will mean Michael O’Shea, unless the context clearly indicates otherwise.
[3]. Manzione initially said that it could not be determined from the medical chart whether she or Dr. David Cohen, who had just begun his residency earlier that month, saw O’Shea first, but from her statements later on in her deposition and from the January 16, 2003 deposition of Dr. Cohen, it appears that it was Cohen who saw claimant initially.
[4]. Portions of Dr. Wang’s deposition testimony of May 14, 2003 were read into the record.
[5]. The hospital chart had his age at 55, and Dr. Dowd in his deposition referred to him as 55 years old, but it is clear from the entirety of Dowd’s testimony that whether the patient was 52 or 55 years old was not material.
[6]. PJI Volume 1B, Appendix A, Table 2.