New York State Court of Claims

New York State Court of Claims

LEONE v. STATE OF NEW YORK, #2007-018-574, Claim No. 106672


Synopsis


Claimant failed to prove that her injury was caused by the negligence of the Defendant.

Case Information

UID:
2007-018-574
Claimant(s):
DEBORAH A. LEONE
Claimant short name:
LEONE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106672
Motion number(s):

Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
SETRIGHT, LONGSTREET & BERRY, LLPBy: Michael J. Longstreet, Esquire
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: Maureen A. MacPherson, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 1, 2007
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This claim[1] is based upon allegations of medical malpractice and negligence occurring at the State University of New York Upstate Medical University (hereinafter referred to as University Hospital). Claimant, a nurse, underwent a procedure called a femoral arteriogram or angiogram on September 29, 2000, and she alleges that the State failed to properly care for her thereafter.

This claim[2] is based upon allegations of medical malpractice and negligence occurring at the State University of New York Upstate Medical University (hereinafter referred to as University Hospital). Claimant, a nurse, underwent a procedure called a femoral arteriogram or angiogram on September 29, 2000, and she alleges that the State failed to properly care for her thereafter.

In 1994, Claimant was diagnosed with an aneurysm after two diagnostic arteriograms were performed in the right femoral artery. The aneurysm was treated without incident. In late 1999 and 2000, Claimant experienced episodes of confusion, slurred speech, and drooping of her face. Another aneurysm was suspected and another arteriogram was scheduled for September 29, 2000. On that day, Ms. Leone’s[3] husband, Anthony Leone, drove her to University Hospital for the procedure. The records reflect her arrival time as 8:40 a.m. Her medical history was taken and she was examined by Louise Manor, R.N., a nurse practitioner. Claimant testified that in addition to the aneurysm she has had migraine headaches for most of her life and had been diagnosed with fibromyalgia and depression. She was taking Zomig and Hydrocodone for pain, and Tegretol and Prozac at that time. Claimant was sedated but conscious during the arteriogram.

The arteriogram procedure involved inserting a needle and then a catheter into the right femoral artery in Claimant’s groin area. Material is then inserted through the catheter to allow the doctor to see Claimant’s arteries. No aneurysms were present. The records[4] note that hemostasis[5] was obtained at the end of the procedure.

Claimant was taken from Interventional Radiology to an area called Ambulatory Procedures First Floor or AP1 at 12:50 p.m. She was instructed to remain lying down and keep her leg straight for four hours. The nurses were to monitor her vital signs and dressing every thirty minutes for two hours thereafter. Around 2:00 p.m., she needed to void and Bonnie Loomis, a licensed practical nurse assisted her with a bedpan. Ms. Loomis then checked her dressing. There was some oozing so, pursuant to policy, Ms. Loomis got onto the stretcher and applied pressure to the site. She also called Ms. Louise Manor a nurse practitioner from the Radiology Department to come and inspect the Claimant’s puncture. Ms. Manor testified[6] that she continued to apply pressure for 10 to 15 minutes, applied a new dressing and instructed Ms. Loomis to call her if there was additional bleeding.

Claimant testified that when it was time for her to be discharged she went into the bathroom to get dressed and noticed blood running down her leg. She told Nurse Loomis who called in the charge nurse. Gauze was taped to her leg[7] with elastic tape and the discharge proceeded. Claimant said the blood scared her and she thought it was unusual for her to be discharged at that time. However, she never questioned anyone about it, nor did she ask to be admitted to the hospital overnight because she thought the unit was closing for the night. Claimant further recalled Ms. Loomis telling her, as she got into the car, that having the bleeding was atypical, and that Claimant should return to the hospital if it continued.

Claimant testified she felt pressure at the site and voiced her concern as she was discharged, but Ms. Loomis told her the pressure was from the arteriogram. There was a bruise about the size of a quarter and Claimant recalled Ms. Loomis remarking about early bruising. Ms. Loomis had no specific recollection of caring for Claimant but testified that the procedure is that the groin site would have been checked at the same time as vitals and only changes or problems are documented. Ms. Loomis could recall no one ever being discharged from AP1 while still bleeding or oozing from the puncture site. A separate unit was available for more extended care beyond the hours of operation of AP1.

Upon her arrival at home, Claimant lay on the couch. She felt pressure but no pain. When she checked the site that night, she saw a small dot of blood on the Band-Aid. She slept all night. When Claimant awoke the following morning, she noted a bruise about the size of a softball at the top of her right thigh and into her groin area, and she testified she felt some pain. Claimant’s daughter marked the area with a marker. Claimant called the hospital’s Radiology Department around 8:00 a.m., and was told by an unknown woman that bruising was sometimes normal after a bleed and to continue marking the growth of the bruise, and to call back if there was any problem. About 10:00 a.m., she called radiology again and was told to apply ice and stay off her feet. Claimant testified she was feeling pressure, a constant burning, and crushing pain in her right leg. It hurt to put clothes on. She spoke to Dr. Sangursten when she called the third time at approximately noon. He told her to continue to ice the area and to keep track of the site of the bruise and if it got huge to return to the Emergency Room. When the bruise continued to grow, she did not go to the Emergency Room but called a fourth time. Dr. Speller said he would call Dr. Chang at home. When he called Claimant back, he advised her to put heat on the bruise, which she did for two hours. It was extremely painful.

Later that day, around 7:00 or 8:00 p.m., Claimant decided to go to the Emergency Room, but chose St. Joseph’s Hospital. Her brother-in-law drove her to Syracuse while her husband cared for their two children. Claimant testified that her bruise was assessed at St. Joseph’s Emergency Room. Claimant testified she was given ice packs and Hydrocodone medication for pain, told to ice it and call Louise Manor on Monday for follow-up. According to the St. Joseph’s Hospital Emergency Room records,[8] she was treated with ice packs, told to use Tylenol, and to follow-up with either Dr. Hodge or Dr. Lamanna. Under “IMPRESSION” in the record, it says, “Abdominal wall and groin hematoma.” Claimant described her upper thigh and groin area as a basketball-size bruise.

Claimant recalled calling Louise Manor the following Monday, October 2, 2000, but she testified she was in too much pain to drive to the hospital for an appointment. She drove in the following day but said she was in a lot of pain. According to Claimant, Ms. Manor said no one had informed her about Claimant’s second bleed. A sonogram was performed to rule out a pseudo-aneurysm and she was prescribed Tylenol with codeine. The sonogram result[9] was negative but noted an area of bruising. Ms. Manor advised Claimant to keep her activity at a minimum, elevate her leg, and that the bruising and hematoma would take some time to heal. Ms. Manor’s notes1[0] refer to both a hematoma and bruising. Dr. Jeffrey Kahn, a physician, board certified in physical medicine and rehabilitation, who evaluates and manages nonsurgical spinal and neuromuscular skeletal disorders, testified for Defendant and along with Claimant differentiated between a bruise and a hematoma. The medical records and testimony of the other medical witnesses do not indicate any distinction. Based upon the medical definitions, the Court finds the terms can be used interchangeably.1[1]

On October 5, 2000, Claimant called Upstate again and spoke to Dr. Lieberman who helped perform the arteriogram. The doctor told her nothing else could be done and it could take a month to heal. Claimant stayed home resting and icing her leg until Monday, October 10. She said it hurt to put clothes on and to drive to work, and she spent most of her workday crying. She contacted a surgeon’s office who referred her to a vascular surgeon, Dr. Joseph Byrne. She saw him that day. Dr. Byrne testified via videotape.1[2]

Dr. Byrne examined Claimant and found signs of a hematoma or bleeding in the right groin over the femoral artery. Based upon Claimant’s complaints of pain and her limitations, Dr. Byrne felt there must be some compression of the femoral nerve. Claimant recalled Dr. Byrne saying her problems could be caused by an abscess. He recommended that the hematoma shown by the sonogram be evacuated in an effort to take the pressure off the nerve. Claimant testified that she wanted to wait a day or two to arrange childcare and see if there was improvement. The next day, Claimant was in such pain on her way to work that she went straight to Dr. Byrne’s office and was admitted to St. Joseph’s Hospital. Dr. Byrne performed surgery the next day, October 12.

During the procedure, Dr. Byrne found “a small hematoma and a significant amount of scarred soft tissue which appeared to be constricting the femoral nerve.”1[3] He evacuated the hematoma, lysed1[4] the scar tissue and sutured the arteriogram puncture in the femoral artery. Initially, Claimant seemed to improve but the surgery failed to alleviate the excruciating pain she had in her groin and upper thigh area. Dr. Byrne noted that it may take time for the compressed nerve to heal and prescribed physical therapy on October 24, 2000.

On October 31, 2000, Dr. Byrne diagnosed Claimant’s hypersensitivity as Reflex Sympathetic Dystrophy (hereinafter RSD), also called Complex Regional Pain Syndrome (CRPS). The medical testimony established that this disorder involves the sympathetic nervous system and can be caused by trauma or occasionally it can develop without a known cause. The symptoms are hypersensitivity in the area of the affected nerve system causing extreme burning pain with the lightest touch. There can be color changes such as mottling or temperature changes to the area and the muscles may atrophy.

All of the medical experts agree that Claimant suffers from RSD or CRPS. The State’s expert, Dr. Richard L. Barbano, a neurologist and full-time faculty member of the University of Rochester Strong Memorial Hospital, testified that the terminology change from RSD to CRPS occurred because studies show a lack of abnormal sympathetic nerve activity. There can be abnormal activity but it is not sine qua non. There was disagreement between the Claimant’s expert, Dr. Robert L. Tiso, an anesthesiologist and pain specialist, and Dr. Barbano regarding whether Claimant suffers from CRPS Type I or CRPS Type II. According to both experts, Type I CRPS involves no documented nerve damage and no nerve pattern to the distribution of pain. Type II involves sympathetic nerve function symptoms within the distribution of a damaged nerve.

Dr. Barbano explained that he felt Claimant suffered from CRPS Type I because he did not find any objective evidence of nerve injury. Claimant had normal sensation in the distribution of the femoral nerve and normal muscle strength and tone. Claimant’s muscle limitation was related to the pain she was experiencing and not loss of strength. He noted that the mottling on Claimant’s leg spread outside the area of the femoral nerve territory into the area which included the obturator nerve in the medial thigh. This indicated to him CRPS Type I because this form doesn’t respect particular nerve distributions. CRPS Type II often shows objective evidence of nerve damage such as loss of sensation or muscle weakness.

Dr. Tiso explained that in addition to the large nerves which control one’s ability to move an extremity, there is a network of smaller nerves that have a spiderweb-like consistency and control involuntary functions such as blood vessels, sweat glands, hair follicles, nails, etc. These are the dysfunctional nerves that cause the symptoms in CRPS Type II. Dr. Tiso based his opinion that Claimant suffered from CRPS Type II on finding Claimant’s symptoms of pain and discoloration to be within the distribution of the femoral nerve. He was not asked about any pain or discoloration within the distribution of the obturator nerve.

There is no question that Claimant suffers from CRPS and is in constant and severe pain. The issue is whether or not the State, through its employees, failed to treat Claimant in accordance with the standard of care in the medical community, and if that failure was a proximate cause of Claimant’s injury.

Claimant argues that the State failed to properly care for her as she recovered from the arteriogram, failed to properly treat her hematoma on September 29, failed to give her proper advice and assistance on September 30, and was unresponsive to her on October 3, 2000. It is Claimant’s position that the hematoma compressed her femoral nerve resulting in nerve damage and CRPS. The State contends that there was no evidence of nerve compression on September 30, 2000, when Claimant was seen at St. Joseph’s Emergency Room, and that Claimant’s CRPS was not the result of its negligence or malpractice.

In support of her position, Claimant called as an expert Dr. Albert J. Camma, a neurosurgeon in private practice specifically studying the blood vessels of the brain and neck. Dr. Camma performs arteriograms in his practice. It was his opinion that the State employees departed from the accepted standards of care and treatment of Claimant by their failure to recognize and address developing problems following the arteriogram like the continued oozing of blood, by failing to admit her for observation overnight, and by failing to evaluate her complaints of persistent and increasing pain. Dr. Camma relied on the pain scale reflected on the Perioperative Monitoring Record1[5] which he interpreted as indicating Claimant had pain of between 5 and 8 from 1300 hours to right before discharge. By failing to act, the hematoma continued to grow, and Dr. Camma said that caused damage to the femoral nerve. He opined that the hematoma probably put pressure on the nerve resulting in CRPS. Dr. Camma testified that the proper treatment for a hematoma that has formed or is forming within the first 48 to 72 hours is the application of ice to constrict blood vessels. After 72 hours, heat may be applied. Small hematomas are not uncommon after an arteriogram, but Dr. Camma felt Claimant suffered a large and uncommon hematoma.

The surgical notes from Dr. Joseph Byrne, the vascular surgeon who operated on Claimant to remove the hematoma and also lysed scar tissue, state:

There was a small amount of hematoma and a significant

amount of scarred soft tissue which appeared to be

constricting the femoral nerve.


In his postoperative notes, he referred only to the hematoma compressing the nerve.1[6] In his testimony, he acknowledged that some of the scar tissue was the result of Claimant’s prior arteriograms and that the scar tissue was pressing on the femoral nerve also. He agreed that the procedure he performed on Claimant could result in nerve damage as well.

Both Dr. Camma and Dr. Byrne testified that a hematoma can result from an arteriogram without any medical malpractice. The State’s witnesses, Dr. Jeffrey Kahn, who is board certified in physical medicine and rehabilitation, and Dr. Barbano agreed.

Both Drs. Kahn and Barbano testified that the pain associated with nerve compression or injury would be radiating pain in the distribution area of the nerve. In other words, Claimant’s pain would be in the entire area supplied by the femoral nerve and involve more than her groin. Nothing in the medical records from Claimant’s visit to St. Joseph’s Hospital Emergency Room or her return to Upstate on October 3, 2000, indicate this type of pain. Instead, they refer to localized pain in the area of the puncture. Both Dr. Barbano and Dr. Kahn also testified that sensory loss or change, as well as muscle weakness would be seen, and again, these symptoms were not found in the records immediately following Claimant’s procedure. The ultrasound performed on October 3, 2000 was consistent with a bruise with no indication that the femoral nerve was entrapped. Both State experts also said that Dr. Byrne’s records indicate Claimant had localized pain and fail to establish any femoral nerve involvement.
DISCUSSION
Missing Witness:

Claimant seeks the imposition of an adverse inference due to the State’s failure to call Dr. Chang, the physician who performed the arteriogram. There are, however, three conditions to the Court’s consideration of drawing an adverse inference, that the witness was available, under Defendant’s control, and would have been expected to provide “material non-cumulative testimony favorable to the defense.” (LaGrasta v Ettayyim, 5 AD3d 737; Contorino v Florida Ob/Gyn Assn., 259 AD2d 460). Here, it is clear from the medical records and other testimony that Dr. Chang performed the procedure and had no further contact with Claimant’s subsequent care. It is unclear how his testimony would have added any material facts to what was already in evidence.

Medical Malpractice:

To establish a claim for medical malpractice, it is Claimant’s burden to show that the medical personnel involved did not possess the requisite knowledge and skill ordinarily possessed by practitioners in the field or that they neglected to use reasonable care in the application of that knowledge and skill or failed to exercise their best judgment (Pike v Honsinger, 155 NY 201). The departure from the standard of care must be a proximate cause of Claimant’s injury.

Claimant testified to significant pain over the 11 days following the arteriogram; however, her failure to obtain prompt and consistent medical assistance for it belies her recollection. Her visit to St. Joseph’s Hospital Emergency Room was late on September 29, 2000, and she was satisfied with her care at that time. The only medication recommended was Tylenol for pain. Claimant had an appointment available to her on October 2, 2000 at University Hospital with Louise Manor but she refused it due to lack of transportation. Between October 3 and October 10, 2000, Claimant sought no medical help either by phone or in person. This inaction implies that her symptoms were less severe than she remembers.1[7]

Based upon the testimony and exhibits, Claimant received appropriate aftercare following the arteriogram on September 29, 2000, in accordance with Dr. Chang’s orders. Claimant’s leg was kept straight for four hours following the procedure and the puncture site and femoral distal pulse were checked every time Claimant’s vital signs were checked between every 10 to 30 minutes after 12:30 p.m. Claimant had no complaints of pain after she took her migraine medication. Pressure was properly applied to the puncture site after a small ooze was noted around 2:00 p.m.

At the time of Claimant’s discharge, she had no pain, but the Court finds she did have a small ooze again at the puncture site, based upon Claimant and her former spouse’s testimony and the care and discharge summary on the “Perioperative Plan of Care.”1[8] Relying upon the testimony of Dr. Camma, the only physician who testified and regularly performs arteriograms, the existence of any oozing at the site demanded additional observation of Claimant. A 24-hour care facility was available for extended observation even if AP1 was closing. He felt Defendant’s care of Claimant the following day also fell below the standard of care. By the third or fourth call to the hospital describing a growing hematoma following an arteriogram, Dr. Camma testified, Claimant should have been directed to come into the Emergency Room for observation. The direction to Claimant to apply heat was clearly not correct, as Dr. Camma testified heat is not indicated until 72 hours after the arteriogram procedure.

Yet, despite these deviations, the treatment of Claimant’s developing hematoma would not have been significantly different even if she had remained in the hospital based upon Dr. Camma’s testimony. For a developing hematoma, Dr. Camma testified that the application of ice is indicated, which helps to constrict the blood vessels and stabilize the hematoma. After 72 hours, heat may be applied. There was no evidence that evacuation at this time is the standard of care, or even an appropriate alternative.
Dr. Camma found that the State’s failure to retain Claimant for observation on September

29 resulted in the damage to the femoral nerve and CRPS.1[9] However, Dr. Camma never met or examined Claimant. Dr. Barbano, after his examination of Claimant, found no signs of femoral nerve injury. Claimant had normal down-the-leg pulses, normal sensation over the femoral nerve distribution and normal strength in the distribution of the femoral nerve. Claimant’s muscle tone was normal as was her muscle strength. Based upon Dr. Barbano’s testimony and the other evidence, the Court finds Claimant suffered no injury to her femoral nerve. Yet, Claimant does suffer from CRPS, which, based upon the evidence and the absence of any femoral nerve damage the Court finds is Type 1.

This syndrome, even without clear nerve damage, is extremely painful and debilitating; yet, the cause of the Claimant’s CRPS is unclear. CRPS can be caused by any significant trauma such as surgery or even a minor trauma such as a puncture of a blood vessel or even no trauma at all. Dr. Barbano testified that CRPS is conceptualized as an abhorrent healing process which can occur in the absence of any wrongdoing. Here, Claimant exhibited no evidence of CRPS prior to Dr. Byrne’s evaluation on October 10, 2000, and Dr. Byrne did not perform any neurological evaluation on that date.2[0] Subsequent to Claimant’s surgery on October 11, performed by Dr. Byrne, her symptoms of CRPS developed. Undisputedly, the lysing of scar tissue can traumatize the nerve resulting in CRPS, again, even without any wrongdoing. At the time of Dr. Byrne’s surgery, he found only a small hematoma and a “significant”amount of scar tissue, most of which he attributed to her prior arteriograms, since it takes a few weeks for scar tissue to develop and only 13 days had passed since the most recent arteriogram at the time of his surgery.

Claimant has not proven that her injuries were the result of Defendant’s failure to provide proper aftercare. The proof did not establish that the development or size of the hematoma after the arteriogram was the result of Defendant’s wrongdoing. The CRPS condition from which Claimant unquestionably suffers was not established as being proximately caused by Defendant’s negligence or malpractice. Where the facts proven show the possibility of several causes for an injury, for one or more of which Defendant bears no responsibility, and those other causes are just as reasonable and probable, Claimant cannot recover since she has failed to prove that the negligence of the Defendant caused the injury (see Ingersoll v Liberty Bank of Buffalo, 278 NY1, 7; Bernstein v City of New York, 69 NY2d 1020; Koester v State of New York, 90 AD2d 357). The claim is DISMISSED. All motions previously not decided are hereby DENIED.

LET JUDGMENT BE ENTERED ACCORDINGLY.


October 1, 2007
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims




[1].The clam does not set forth the total sum demanded which was required by Court of Claims Act § 11(b) at the time the claim was filed (see Kolnacki v State of New York, 8 NY3d 277). However, the total sum claimed is no longer required in personal injury, medical, dental or podiatric malpractice or wrongful death cases pursuant to the amendment to Court of Claims Act § 11(b) signed by the Governor on August 15, 2007.
[2].The clam does not set forth the total sum demanded which was required by Court of Claims Act § 11(b) at the time the claim was filed (see Kolnacki v State of New York, 8 NY3d 277). However, the total sum claimed is no longer required in personal injury, medical, dental or podiatric malpractice or wrongful death cases pursuant to the amendment to Court of Claims Act § 11(b) signed by the Governor on August 15, 2007.
[3].Claimant and Mr. Leone have since divorced and Claimant is remarried. For consistency throughout the trial, Claimant has been referred to as Ms. Leone.
[4].Exhibit 3.
[5].Defined as a stoppage or sluggishness of blood flow or the arrest of bleeding by (a hemostatic agent). Merriam Webster’s Medical Desk Dictionary [1996] p. 332.
[6].See Exhibit 9.
[7].Some of the witnesses referred to this as a pressure dressing, but Dr. Camma said it was not a pressure dressing in his opinion.
[8].Exhibit 7.
[9].Exhibit 5.
1[0].Exhibit 6.
[1]1. A bruise is defined as an injury producing a hematoma or diffuse extravasation of blood without rupture of the skin. A hematoma is defined as a localized mass of extravasated blood that is relatively or completely confined within an organ or tissue, a space or a potential space (Stedman’s Medical Dictionary, 246, 772 [26th ed. 1995]).
1[2].Exhibit 11; Transcript, Exhibit 10.
1[3].Exhibit 8.
1[4].Lyse is defined as “[t]o break up, to disintegrate...” (Stedman’s Medical Dictionary, 1011 [26th ed. 1995]).
1[5].Exhibit 3-C.
1[6].Exhibit 8.
1[7].Claimant testified originally that she was given a prescription for Hydrocodone in the St. Joseph’s Hospital Emergency Room, then she said it was Tylenol with codeine, but the records show she was told to use Tylenol. The Court notes that Claimant has been on numerous medications for pain for an extended period of time. This Court does not find Claimant’s testimony to be intentionally misleading; rather, her memory may be less than accurate given the extended period of pain she has endured.
1[8].Exhibit 3.
1[9].See Exhibit 12 [p. 39, lines 17-24, and p. 40, lines 1-9], the transcript of the videotaped trial deposition of Dr. Camma.
2[0].See Exhibit 10, [p. 35, lines 10-13, p. 44, lines 24-25, p. 45, lines 1-9, p. 46, lines 9-14], the transcript of the videotaped trial testimony of Dr. Byrne; see also Dr. Barbano’s testimony [trial transcript p. 386, lines 16-25, p. 387, lines 1-16, 24-25, and p. 388, lines 1-2].