VALENTINE v. THE STATE OF NEW YORK, #2007-030-579, Claim No. 110490, Motion Nos.
Defendant’s motion for summary judgment dismissing claim denied.
Cross-motion to amend bill of particulars denied. Claim involves treatment
received by decedent at Downstate Medical Center, when it is claimed that
hospital personnel failed to properly transfer decedent from a stretcher, to an
x-ray table, resulting in fracture of decedent’s femur
MARTHA VALENTINE, Deceased, by LOLITA KELLY, as Administratrix of the Goods, Chattels and Credits of MARTHA VALENTINE
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
THOMAS H. SCUCCIMARRA
POSNER & POSNER BY: MARSHALL POSNER, ESQ.
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: ADAM B. KAUFMAN, ASSISTANT ATTORNEY GENERAL
November 19, 2007
See also (multicaptioned
The following papers were read and considered on defendant’s motion for
judgment dismissing the claim and on claimant’s cross-motion to amend the
bill of particulars:
1,2 Notice of Motion for Summary Judgment; Affirmation in Support by Adam B.
Kaufman, Assistant Attorney General and attached exhibits
3,4 Notice of Cross-Motion; Affirmation in Opposition to Motion for Summary
Judgment and in Support of Cross-Motion by Marshall Posner, Attorney for
Claimant and attached exhibits
Opposition to Plaintiff’s (sic) Cross-Motion by Adam B. Kaufman, Assistant
Attorney General and attached exhibits
Reply to Defendant’s Opposition to Cross-Motion by Marshall Posner,
Attorney for Claimant
7,8 Filed papers: Claim, Answer
This is a claim involving the treatment received by Martha Valentine, now
deceased, during her hospitalization at Downstate Medical Center on or about
July 8, 2003. More specifically, it is claimed that defendant’s agents
failed to properly transfer decedent from a stretcher to an x-ray table,
resulting in a fracture of Ms. Valentine’s left hip.
Defendant moves for summary judgment dismissing the claim. Defendant argues
that employees at Downstate rendered appropriate care and treatment to Ms.
Valentine, as demonstrated by the expert opinion affidavits annexed by Edward S.
Crane, M.D. and Suzanne L. Wolden, M.D. attesting to the standard of care in the
medical community, and asserting that the uncontroverted facts concerning
transfer from stretcher to
table attest to use of approved methodology and precautions. [Affirmation in
Support by Adam B. Kaufman, Assistant Attorney General, Exhibits H and I].
Defendant further argues that the injuries suffered by claimant were not the
result of negligent treatment, because she was at high risk for a pathologic
fracture because of bone metastasis of the left hip, and received due care from
defendant’s agents who were mindful of the risk.
Defendant’s experts opine that the diagnoses made and tools used, as well
as the method by which Ms. Valentine was transferred from the stretcher on a
mattress, to be slid directly across to the table, were appropriate and within
good and acceptable standards of medical care. [Affirmation in Support by Adam
B. Kaufman, Assistant Attorney General, Exhibits H and I]. Indeed, Dr. Wolden,
defendant’s expert radiologist indicates, albeit parenthetically, that
the standard practice is to lift a high risk patient up on a sheet and place her
on a radiation table, and that the use of the mattress is even more cautious.
[Ibid. Exhibit I, ¶21].
Claimant contends that although there were diagnostic reports confirming bone
metastasis, “. . . [b]efore attempting to move decedent onto the radiation
table, the Downstate staff did not have full knowledge of the findings of these
diagnostic tests, and therefore could not have applied requisite care during the
attempted move.” [Affirmation in Opposition to the Motion for Summary
Judgment and in Support of Cross-Motion by Marshall Posner, Attorney for
Claimant, ¶5]. Using excerpts of the deposition
of Walter Choi, M.D., a resident in
radiology at the time of the incident under the supervision of Kwang Choi, M.D.
attending radiologist, who was one of at least three people transferring
claimant from the stretcher to the simulator table, counsel for claimant further
argues that because of Dr. Walter Choi’s “. . . [concession] that
prior to the transfer, he was not even aware of the extent of her fragility, nor
of the possibility that she could sustain a fracture during the move . . . [and
his admission] that the fracture was caused not only by the bone metastasis, but
also by the trauma of the move”, Dr. Choi’s opinions that hospital
staff rendered proper care is “suspect.” [Ibid.
Exhibit B; see also
Affirmation in Support by Adam B. Kaufman, Assistant
Attorney General, Exhibit F (complete deposition)]. The doctor testified that
prior to the transfer he did not know that there were films showing “a . .
. markedly eroded [femur] with minimal remaining cortical bone . . .” and
that it had been understood that the cortical bone was intact. [Ibid
¶7; Exhibit B; and Affirmation in Support by Adam B. Kaufman, Assistant
Attorney General, Exhibit F]. He also testified that decedent would still have
been a candidate for the simulation treatment had it been clear that the
cortical bone was not intact. [Affirmation in Support by Adam B. Kaufman,
Assistant Attorney General, Exhibit F]. Dr. Choi testified that Ms. Valentine
was not restrained or immobilized prior to the transfer from the stretcher to
the table. He indicated that Ms. Valentine was laying on a mattress on the
stretcher, the stretcher was taken directly to the table, the table was
repositioned so that it was even with and adjacent to the stretcher, the
stretcher was locked in place, and then the mattress on which Ms. Valentine
rested was slid across from the stretcher to the table with the aid of at least
three staff members including himself. [Affirmation in Support by Adam B.
Kaufman, Assistant Attorney General, ¶12; Exhibit F].
Lolita Kelly, the decedent’s sister and the claimant herein, arrived at
Downstate after the incident and reports that she had a conversation with her
sister. Ms. Kelly indicates that she arrived at the hospital at approximately
1:00 p.m., and saw her sister, who was “. . . terribly distressed and
hysterical . . . [Ms. Valentine] was crying and in a great deal of pain [and]
told . . . [Ms. Kelly] that the staff broke her hip . . . The Hospital staff
was to move her from the gurney to the radiation table. To do that, the bed
sheet on which she was lying, was lifted up and moved over to the table. Just
as she was being placed down onto the table, she heard a ‘snap’ in
her left hip area and immediately felt excruciating pain.” [Affidavit of
Lolita Kelly, ¶3]. This version of how Ms. Valentine was moved is in
contrast to the version presented during Dr. Choi’s deposition in which he
indicated she was transferred via mattress.
Robert Schneider, M.D., a radiologist whose affidavit is submitted by claimant,
notes that a May 27, 2003 pelvic x-ray taken of Ms. Valentine “. . . shows
a large osteolytic lesion and a hole, in the area of her left hip” yet the
report generated from that x-ray “. . . does not mention the existence of
the large lesion and hole in the ‘Impressions’ section of the
report, noting only within the body of the report, the presence of
‘scattered osteolytic lesions’ in the greater trochanter, proximal
shaft of the left femur and left ischium.” [Affidavit of Robert Schneider,
M.D., ¶¶ 3 and 4]. He further notes that the July 1, 2003 x-ray of
claimant’s left hip reveals that the large lesion seen in the earlier
x-ray “had progressed to the point where the hole in the bone had
increased in size.” [Ibid. ¶5]. What this means in terms of
what kind of treatment Ms. Valentine should have received is not indicated by
Michael H. Tirgan, M.D., Claimant’s expert oncologist, opines that
Downstate “deviated from applicable standards of oncology care . . . in
failing to timely diagnose and treat a metastatic lesion on her left femur and
in failing to properly secure her when she was transferred to the simulation
table.”[Affidavit by Michael H. Tirgan, M.D., ¶ 2]. Dr. Tirgan
agrees that the presence of the “huge, destructive, metastatic lesion,
indicating significant bone loss in the left hip” is shown in the May 27,
2003 x-ray, and opines that the failure of the radiologists “to identify
and include this critical finding in their report” left the condition
untreated, and that the proper treatment “would have been radiation
therapy to reduce or control the lesion, which would have prevented a future
fracture and attendant surgery.” [Ibid. ¶¶ 2 and 3]. In
his opinion, Ms. Valentine should have undergone emergency surgery for internal
fixation of the left hip, in order to prevent a spontaneous fracture of the kind
she suffered, based on the subsequent MRI of July 2, 2003, showing further
metastasis. [Ibid. ¶¶4 and 5]. Interestingly, he opines that
“the proper manner of transferring the patient from the stretcher to the
radiation table, so as to reduce the chance of fracture, was to place her on a
mattress and laterally move the mattress, rather than the standard manner of
transfer which is to lift the sheet on which the patient is reclining and lower
it into position.” [Ibid. ¶6]. He also opines, however,
that when Ms. Valentine was transferred from the stretcher to the simulator
table, she should have “been secured and immobilized” and would not
have sustained a hip fracture at that time had such action been taken.
Civil Practice Law and Rules §3212(b) provides in pertinent part:
. . . A motion for summary judgment shall be supported by affidavit, by a copy
of the pleadings and by other available proof, such as depositions and written
admissions. The affidavit shall be by a person having knowledge of the facts;
it shall recite all the material facts; and it shall show that there is no
defense to the cause of action or that the cause of action or defense has no
merit. The motion shall be granted if, upon all the papers and proof submitted,
the cause of action or defense shall be established sufficiently to warrant the
court as a matter of law in directing judgment in favor of any party . . . the
motion shall be denied if any party shall show facts sufficient to require a
trial of any issue of fact. If it shall appear that any party other than the
moving party is entitled to a summary judgment, the court may grant such
judgment without the necessity of a cross-motion.
Assuming a movant has made a prima facie showing of entitlement to
judgment as a matter of law by proffering sufficient evidence to eliminate any
genuine, material, issues of fact, the party in opposition to the motion for
summary judgment must tender evidentiary proof in admissible form to establish
the existence of material issues which require a trial. Winegrad v New York
University Medical Center, 64 NY2d 851 (1985); Zuckerman v City of New
York, 49 NY2d 557 (1980). The court’s job is issue finding, not
resolution. The disputed facts should be meaningful.
In a medical malpractice claim, the Claimant has the burden of proof and must
prove (1) a deviation or departure from accepted practice and (2) evidence that
such deviation was the proximate cause of the injury or other damage. Clearly,
the decisions made during the course of Ms. Valentine’s treatment fall
under the category of judgments made using the skill and knowledge of a medical
professional. In order to properly evaluate whether those decisions were
reasonable, a medical expert would be required to establish, at a minimum, the
standard of care.
Two experts each have been presented by, respectively, defendant and claimant.
Using even the scenario presented by Ms. Kelly’s hearsay, whereby Ms.
Valentine was transferred to the table using a sheet rather than a mattress,
defendant’s expert opines that same would be within the appropriate
standard of care for moving patients having a high risk for fractures. The
hearsay offered is arguably an excited utterance, and potentially admissible.
See People v Vasquez
, 88 NY2d 561, 579
. People v Robinson
41 AD3d 1183, 1184 (4th Dept 2007)
9 NY3d 880 (2007). One of claimant’s experts, Dr. Tirgan,
opines that the mattress approach attested to by Dr. Choi is an appropriate
method for transferring a patient to a radiation table, but then further opines
that the patient should be absolutely immobilized. As seemingly minuscule as
this latter distinction may be, it presents a triable issue of fact precluding
summary determination given the varying opinions of the experts as to whether
the conduct breached a reasonable standard of care, and ultimately whether such
breach was a proximate cause of the decedent’s injuries.
Accordingly, defendant’s motion for summary judgment [M-72668] dismissing
the claim is hereby denied.
Claimant’s Cross-Motion to Amend Bill of Particulars
A party generally may amend or supplement her bill of particulars once as of
right before a note of issue is filed. Civil Practice Law and Rules
§3042(b). Once a note of issue is filed, however, a party must apply to the
court for permission, and must provide a physician’s affidavit as to the
merits of any newly discovered claims, and a reasonable excuse for failure to
assert such claims earlier. In the absence of prejudice, leave to amend bills of
particulars is to be liberally granted. The standard used by the courts in
considering whether to allow the amendment is generally that applicable to the
pleading itself under Civil Practice Law and Rules §3025(b). See
Scarangello v State of New York
, 111 AD2d 798 (2d Dept 1985). When leave
is sought on the eve of trial, judicial discretion should be exercised sparingly
and when there has been an unreasonable delay in seeking leave to amend, it is
the claimant’s burden to establish a reasonable excuse for the delay in
addition to the physician’s affidavit establishing the merits of the
proposed amendment . DeNicola v Mary Immaculate Hospital
, 272 AD2d 505
(2d Dept 2000); Kyong Hi Wohn v County of Suffolk
, 237 AD2d 412 (2d Dept
1997). Here, while a physician’s affidavit has been presented, no
reasonable excuse for the delay has been offered. See Kyong Hi Wohn v
County of Suffolk
the court is convinced that substantial prejudice to the defendant is apparent
in that claimant seeks to add new theories of recovery which are “not
readily discernible” from the allegations in the claim and the original
bill of particulars. See Rosse-Glickman v Beth Israel Medical
Center-Kings Highway Div
., 309 AD2d 846 (2d Dept 2003).
The claim, served on February 10, 2005 pursuant to a late claim application,
asserts two causes of action, the first for medical malpractice; the second a
more general breach of a duty to exercise due care sounding in ordinary
negligence. Under the medical malpractice cause of action the claim states in
“(14) . . . on July 8, 2003, while Claimant was under the care and
custody of the defendants . . . Claimant was carelessly and negligently removed
from a stretcher on to an examination table by defendants . . . thereby causing
Claimant to sustain severe and permanent injuries described below including but
not limited to a fracture of the left hip which required open reduction
(15) The injuries sustained by the Claimant were caused solely by the
negligence of the defendants, their agents, servants and employees.
(16) The care and treatment rendered to the Claimant by the defendants was
careless, reckless and negligent in that they failed, neglected and omitted to
conform to the standard of care and performance commonly and ordinarily required
by hospitals in the community for like care.”
The bill of particulars
blunderbuss-like paragraph in which various allegations of negligence and
malpractice are recited, primarily associated with the failure to exercise due
care in transferring Ms. Valentine from the stretcher to the table. [Affirmation
in Support by Adam B. Kaufman, Assistant Attorney General, Exhibit C]. There is
no specific mention of the particular x-rays and diagnostic tests discussed
herein, however any lax interpretation of same would seem to fall under the
rubric of negligently failing to provide proper medical care and treatment.
]. If, as attested to by all the experts, what her condition
was would inform how she was moved about the facility, it would seem obvious
that the interpretation of the data available would have a role.
Counsel for claimant notes that the answer interposed contains “only
general denials”, and no defense to the effect that because of the extent
of the bone metastasis in her hip the risk of fracture was an accepted risk of
moving Ms. Valentine, and not due to any negligence on defendant’s part.
[Affirmation in Opposition to the Motion for Summary Judgment and in Support of
Cross-Motion by Marshall Posner, Attorney for Claimant, ¶21]. This
argument, claimant avers, was raised for the “first time” in the
summary judgment motion. [Id.]. In reaction therefor, counsel
sought the further opinion of Dr. Tirgan, giving him all the medical and other
records available to both sides, including the July 1, 2003 x-ray - which refers
to the May 27, 2003 x-ray - the July 2, 2003 MRI, and Dr. W. Choi’s
deposition. [Id.]. After his review of the records, Dr.
Tirgan formed his “. . . medical opinion that the hip would not have
fractured if the bone lesions were properly addressed following the May 27, 2003
X-ray”; namely through radiation at that time and then later through
prophylactic surgery in reaction to the July 2, 2003 MRI.
This suggestion or theory, that radiation was indicated in May 2003, and/or
that surgery was indicated in July 2003, is new and hence problematic.
The original bill of particulars states
“3. That the defendants . . . were careless and negligent in the
ownership, operation, management, maintenance and control of its hospital and in
the care and treatment of the claimant; in failing to provide the claimant with
the proper, adequate and required care, treatment and attention which is
required and which the defendants represented to have possessed and would afford
to claimant; in causing, allowing and permitting the claimant to be transferred
from a stretcher to the X-ray table, while she was being treated at . . .
Downstate . . . in such a careless, negligent and improper manner as to cause
claimant to suffer and sustain serious injuries including fracture of her left
hip . . . in failing to exercise due and required care, caution and forbearance
in the care and handling of the claimant so as to have avoided this accident and
the injuries to the claimant; in failing to hire and provide competent hospital
personnel to ensure that claimant was treated and transported with proper care
and attention while being moved; in violating those statutes, ordinances, rules
and regulations in such cases made and provides (sic), including the code of
ethics and moral standards then and there existing, of which this Court will
take Judicial Notice at the time of the trial of this action; in violating the
doctrine of Res Ipsa Loquitor; and in being careless and negligent in the
ownership, operation, management, maintenance and control of the said
premises.” [Affirmation in Support by Adam B. Kaufman, Assistant Attorney
General, Exhibit C].
According to defendant, the bill of particulars was served on May 19, 2006.
[Opposition to Plaintiff’s (sic) Cross-Motion by Adam B. Kaufman,
Assistant Attorney General, ¶ 26]. A note of issue was filed by claimant
on November 1, 2006, attesting to completion of all discovery, and readiness for
trial. [Ibid. ¶27, Exhibit C].
The “proposed amended verified bill of particulars” would include
additional language in the foregoing paragraph as follows
“3. . . . failure to properly interpret the May 27, 2003 X-Ray of
decedent’s left hip so as to diagnose and report metastatic disease and
bone destruction in the left hip, which resulted in the failure to treat the
metastatic disease with radiation, which would have prevented a future fracture
and the need for surgery; failure to diagnose on May 27, 2003, and as soon as
practicable thereafter, treat the left hip metastatic disease with radiation
therapy or other recommended, acceptable medical treatment, which failure
resulted in progression of the disease and increased risk of hip fracture;
failure to treat decedent’s left hip metastatic disease with radiation
treatment and /or prophylactic surgery on or immediately after said disease was
diagnosed and reported in the MRI study dated July 2, 2003; failure to postpone
the radiation treatment on July 8, 2003 and immediately perform prophylactic hip
surgery on decedent so as to prevent a spontaneous fracture . . .”
[Affirmation in Opposition to the Motion for Summary Judgment and in Support of
Cross-Motion by Marshall Posner, Attorney for Claimant, Exhibit A].
These additional allegations are not merely an “amplification of the
pleadings” but rather posit entirely different theories of liability,
which defendant avers were never articulated or explored during the course of
discovery. The original bill of particulars can hardly be said to give notice of
or be linked to these additional acts including failure to diagnose and treat,
none of which were alleged in the claim or the bill. See Ventriglio v
Staten Island University Hospital
, 6 AD3d 525, 527 (2d Dept
While there arguably may be no
discernable prejudice in allowing amendment of the bill to include assertions
that personnel failed to appreciate the extent of Ms. Valentine’s
fragility partially because of a failure to adequately interpret the tests they
gave her, and indeed the original bill already subsumes that alleged failure;
further asserting that a proper interpretation of the May 27, 2003 x-ray would
have suggested radiation immediately, that such radiation would have stabilized
her condition so that later the radiation would not be necessary and/or if still
necessary, surgery should have preceded radiation thus further stabilizing her
to avoid injury when transferred from stretcher to table, is clearly a leap.
The claim contains a simple allegation that claimant was injured because of
negligent care associated with her being moved from stretcher to table. It is
prejudicial to defendant after discovery has been concluded related to the
noticed allegations of negligence and/or malpractice, and after a note of issue
and certificate of readiness for trial has been served and filed, to seek
amendment of the bill of particulars to include the attenuated claims
While claimant argues that the medical records have been available to defendant
since the litigation ensued rendering defendant’s protests now
meaningless, claimant - also possessed of medical records for years -
simultaneously argues that the fragility of Ms. Valentine’s bones as a
cause of the fracture has only just been raised in the summary judgment motion.
Counsel for claimant argues that because of the defendant’s arguments in
applying for summary judgment, claimant then needed to explore the fragility of
Ms. Valentine’s bones with her expert who then identified ways in which
the condition of the bones would have been “mooted” prior to the
only date of accrual alleged in the claim, July 8, 2003.
Nonetheless, claimant has had the information needed to formulate a theory of
negligence, and indeed alleged theories of negligence concerning an event that
occurred over four (4) years ago when it made application for late claim relief,
served and filed this claim pursuant to said application for late claim relief,
served the original bill of particulars, and served and filed a note of issue
indicating that all discovery was complete and that claimant was ready for
trial. When Dr. W. Choi was deposed in July 2006 - fully one (1) year prior to
this attempt to amend the bill - the fact of Ms. Valentine’s fragility,
and the information those moving her on July 8, 2003 possessed were in
claimant’s possession, as were the medical records. The answer interposed
to the claim served and filed was responsive to the limited allegations of the
claim, and the discovery conducted was pertinent to the allegations of the
claim. Proposing earlier acts of alleged malpractice including failure to
diagnose and treat when they would be time barred under normal circumstances
[see Civil Practice Law and Rules §214-a; see also Civil
Practice Law and Rules §§214(5) and (6); Staines v Nassau Queens
Medical Group, 176 AD2d 718 (2d Dept 1991)] only supports the court’s
view that allowing their inclusion now would be prejudicial.
Accordingly, claimant’s cross-motion [CM-73671] to serve an amended bill
of particulars as proposed is in all respects denied.
November 19, 2007
Plains, New York
HON. THOMAS H. SCUCCIMARRA
Judge of the Court of
. The reference to “claimant”
here, and hereafter, refer to the decedent, Martha Valentine, unless the
context suggests otherwise.
. The deposition was taken on July 20, 2006.
[Affirmation in Support by Adam B. Kaufman, Assistant Attorney General, Exhibit
F (complete deposition)].
.“An excited utterance is one made
‘under the immediate and uncontrolled domination of the senses, and during
the brief period when consideration of self-interest could not have been brought
fully to bear by reasoned reflection’ . . . (citation omitted
existence of a physical shock or trauma has often been cited as a key
consideration . . . (citations omitted
).While the statement must have
been made before the declarant had the opportunity to reflect, ‘ “
‘the time for reflection is not measured in minutes or seconds,’
” but rather “ ‘is measured by facts.’ ” . .
. (citations omitted
). The court must assess ‘not only the nature
of the startling event and the amount of time which has elapsed between the
occurrence and the statement, but also the activities of the declarant in the
interim’ . . . (citation omitted
. Assault victim's statement to the paramedic
was admissible under the excited utterance exception to the hearsay rule.
“. . . [T]he evidence at trial establishes that the victim was unconscious
for most of the time after the attack and before speaking to the paramedic, and
was barely conscious and had difficulty breathing when the paramedic arrived at
the scene. The evidence thus establishes that the victim's statement was
‘not made under the impetus of studied reflection’. . .
. The accident occurred in 1984; original
bill served in 1987; supplemental bill served in 1992; subject attempt to amend
supplemental bill in 1995 with injuries not causally connected to accident by
. No copy of the bill of particulars appears
to have been filed in the Office of the Chief Clerk of the Court of Claims
although such filing is required. See
22 NYCRR §206.5(c).
. “The proposed amendment could not be
deemed to relate back to the date of the original complaint as the original
complaint did not give the defendant notice of the transactions or occurrences
underlying the proposed amended complaint (see CPLR 203[f]
; . . .
[balance of citations omitted
]). Thus, the plaintiff’s
newly-asserted claim was time -barred, regardless of whether it sounded in
medical malpractice (see CPLR 214-a
), ordinary negligence
(see CPLR 214[5
]) , or professional malpractice (see