O’SHEA v. THE STATE OF NEW YORK, #2007-016-005, Claim No. 101626
MICHAEL O’SHEA and DIEDRE O’SHEA
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
Alan C. Marin
Sullivan, Papain, Block, McGrath & Cannavoby: Eric K. Schwartz, Esq.
Andrew M. Cuomo, Attorney
Generalby: Adam Kaufman, AAG
January 22, 2007
See also (multicaptioned
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
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
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
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
who at 7:42 p.m. had ordered x-rays of the hand and severed joints.
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
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 - -
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
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
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.
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
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
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
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
“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.
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
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
[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
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
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.
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).
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
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.
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
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
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.
LET JUDGMENT BE ENTERED ACCORDINGLY.
January 22, 2007
York, New York
HON. ALAN C. MARIN
Judge of the Court of Claims
. 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.
. 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.
. 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.
. Portions of Dr. Wang’s deposition
testimony of May 14, 2003 were read into the record.
. 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.
Volume 1B, Appendix A, Table