New York State Court of Claims

New York State Court of Claims

VALENTINE v. THE STATE OF NEW YORK, #2007-030-579, Claim No. 110490, Motion Nos. M-72668, CM-73671


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

Case Information

MARTHA VALENTINE, Deceased, by LOLITA KELLY, as Administratrix of the Goods, Chattels and Credits of MARTHA VALENTINE
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-72668, CM-73671
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
November 19, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

The following papers were read and considered on defendant’s motion for summary

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

  1. Opposition to Plaintiff’s (sic) Cross-Motion by Adam B. Kaufman, Assistant Attorney General and attached exhibits
  1. 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 claimant’s[1] 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 testimony[2] 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. ¶6; 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 Dr. Schneider.

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. [Ibid. ¶6].
Summary Judgment
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 (1996);[3] cf. People v Robinson, 41 AD3d 1183, 1184 (4th Dept 2007)[4], lv denied 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, supra.[5] Moreover, 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 part
“(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 surgery.
(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[6] contains a 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. [See ibid.]. 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. [Id.].

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 2004).[7] 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 proposed.

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
White Plains, New York

Judge of the Court of Claims

[1]. The reference to “claimant” here, and hereafter, refer to the decedent, Martha Valentine, unless the context suggests otherwise.
[2]. The deposition was taken on July 20, 2006. [Affirmation in Support by Adam B. Kaufman, Assistant Attorney General, Exhibit F (complete deposition)].
[3].“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). The 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).”
[4]. 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’. . . (citations omitted).”
[5]. 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 physician’s affidavit.
[6]. 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).
[7]. “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 CPLR 214[6]).”