New York State Court of Claims

New York State Court of Claims

DUVERGER v. THE STATE OF NEW YORK, #2007-036-100, Claim No. 106062


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

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Claimant’s attorney:
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Mary Y.J. Kim, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 8, 2007
New York

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See also (multicaptioned case)


This is the court’s decision following a 13-day medical malpractice trial alleging deviations from the standard of good and accepted medical or nursing care at State University of New York Downstate Hospital (“Downstate”) resulting in the death of claimant’s wife.

On May 10, 2000, Mrs. Mireille Duverger gave birth to her third child, a daughter Mischa. Her obstetrician of ten years, Dr. Guy Etienne, delivered the baby at Downstate. It was a vaginal delivery without complication, and the hospital discharged mother and child on May 12. Eighteen days after giving birth, on May 28, Mrs. Duverger experienced mild but discomforting neck and back pain which, according to claimant, her husband, she also had experienced during her pregnancy and since she had returned home from the hospital. By late evening, however, she found the pain unbearable and her husband summoned an ambulance. She walked into it from her home, but on arrival at Brookdale Medical Center she left it on a stretcher as the pain had become excruciating. While EMS personnel workers wheeled her into the emergency room bay, Mrs. Duverger seized. Foam appeared at her mouth, her heart stopped, and the emergency room personnel instituted resuscitation procedures. They administered the drug magnesium sulfate and performed cardiopulmonary resuscitation, but Mrs. Duverger never regained a pulse. She passed away shortly after midnight. The report of autopsy issued after Mrs. Duverger’s death stated the cause of death as hypertensive and arteriosclerotic cardiovascular disease.

The threshold questions in this case are whether claimant proved Mrs. Duverger suffered from a potentially lethal condition unique to pregnancy called preeclampsia and whether there was a deviation from good and accepted standards of medical or nursing care in failing to diagnose and treat the condition. The next inquiry is whether claimant proved Mrs. Duverger died of an eclamptic seizure which emanated from preeclampsia, and whether it was the failure of Dr. Etienne (or others at Downstate) to diagnose and treat her preeclamptic condition which proximately caused her demise. If the court so finds, a tertiary question is whether the State may be made to answer for such acts or omissions by virtue of Downstate’s respective relationships with any of the health care professionals charged with her care.

The court begins by recounting the evidence pertaining to whether preeclampsia afflicted Mrs. Duverger and whether her caregivers negligently failed to diagnose and treat this condition.

Preeclampsia and Mrs. Duverger’s Care at Downstate
Preeclampsia is a condition induced by pregnancy. The lining of the blood vessels of the pregnant mother can become extremely sensitive to hormones that act as pressure agents, which triggers what is called vasospasm, where the arteries of the body contract. This vascular constriction causes elevated blood pressure because the heart must work harder to pump blood through the narrowed vessels. High blood pressure is one of the hallmarks of the condition. Left untreated, it can evolve into eclampsia, a medical emergency that can be lethal.

Presentation of the disease can be elusive. Doctors may be required to assemble, puzzle-like, a woman’s symptoms in order to arrive at a definitive diagnosis. Much of the medical testimony at trial revolved around how and when the onset of the disease is recognized. Preeclampsia may appear as a spectrum of symptoms, some of which may signal the condition, or which merely may coincide with the pregnancy itself. One, or perhaps two, isolated signs may warrant a diagnosis if they appear with severity. If vasospasm is not corrected, the kidneys, liver, heart, and brain can suffer injury, and one or more of these organs may exhibit the telltale signs of preeclampsia. Protein may spill out of the kidneys into the urine, for example, a condition known as proteinuria; the liver may hemorrhage and rupture; or the body’s coagulation ability may suffer. Other symptoms can, but not necessarily will, include blurred vision, epigastric pain, edema or hyperreflexia, among others.

Testimony of Mrs. Duverger’s Nurses

Claimant called six obstetrical staff nurses to testify regarding the facts of Mrs. Duverger’s hospital stay from May 10-12 and the standards of nursing care to which they were required to adhere. To the extent some of these nurses provided especially useful testimony, it is recounted here.

Mrs. Duverger entered Downstate’s Labor and Delivery unit at 5 pm. She was cared for there by Nurse Carmen McKoy, a licensed practical nurse, through her daughter’s birth at 6:45 pm, and thereafter until the patient was transferred off that floor at 10:30 pm. Nurse McKoy, consulting the hospital’s medical records (Exhibit 7) which included her written references, testified that Mrs. Duverger presented at Downstate in the first stage of labor, 7 cm dilated and 90 percent effaced, with her water intact. Her blood pressure at 5:15 pm was 132/83 and she was experiencing strong contractions every two-three minutes. Her second blood pressure reading, twenty minutes later at 5:35 pm, increased to 153/90.[1] The reading after that (no time is noted) was 138/91.[2] At 6:15 pm it was 148/92 (with contractions continuing at two-three minute intervals), but ten minutes later at 6:25 pm both her systolic and the diastolic readings were down to 132/83 (with contractions two minutes apart). Twenty minutes later, at 6:45 pm, Mrs. Duverger delivered her baby girl.

Following the delivery, Mrs. Duverger’s blood pressure reading at 7:30 pm was 122/76 at which time the placenta and membranes were expelled. Administration of Pitocin then began in order to bring the uterus back to normal. Nurse McKoy explained that because this drug causes the uterus to contract, a patient usually experiences severe pain when the Pitocin “kicks in.” According to the nurse, this was reflected in an elevated blood pressure reading at 7:45 pm of 140/83 and a second elevated reading at 8 pm of 144/74. The nurse gave Motrin to Mrs. Duverger for her complaints of abdominal pain. By 8:15 pm, Nurse McCoy observed that the patient’s blood pressure had gone “right back down” to 120/70. The medical records reflect some fluctuation at the hourly blood pressure readings thereafter, 130/66 (8:30 pm), 126/78 (9:30 pm) and 128/81 (10:30 pm, the time when Mrs. Duverger was transferred off the Labor and Delivery floor “in stable condition” according to the nurse’s note).

Nurse McKoy essentially testified she did not view the patient’s blood pressure values while under her care as a cause for concern. Mrs. Duverger entered the hospital in “very active labor” when blood pressure can be expected to rise during contractions and the patient is experiencing pain. Mrs. Duverger’s post-delivery readings also were not of concern to the nurse because her blood pressure rose at points when, again, she was experiencing pain, but then dropped. The nurse said she would have been concerned had Mrs. Duverger exhibited  “sustained” high values, which she defined as three continuously high readings without the extenuating circumstances of pain from active labor, for example. She noted the patient’s highest reading – 153/90 – did not remain at that level and that her post-delivery readings, which had risen following the Pitocin, dropped and stabilized after Motrin was given.[3] For possible preeclampsia, the nurse testified she also looked for signs of blurred vision, headaches, elevated pulse and respiration, hyperflexia of 3+ (not 2+ as Mrs. Duverger exhibited), or edema of the hands and fingers (not pedal edema as Mrs. Duverger presented, which often results from pregnancy itself, she said). Had any of these signs been present, urinalysis would have been indicated to determine whether proteinuria was present. There is no evidence that a urinalysis was performed at any point during Mrs. Duverger’s hospital stay[4] (see discussion, infra).

In the postpartum unit, Mrs. Duverger was cared for, among others, by Nurse Goldwyn Lewis, a licensed practical nurse who primarily works there. Nurse Lewis saw the patient beginning at 3:30 pm on her “evening” shifts of May 11 (one day after the delivery), and May 12, the day Mrs. Duverger went home. Nurse Lewis was the one who signed out Mrs. Duverger from the hospital pursuant to a discharge order Dr. Etienne had issued that morning.

When Nurse Lewis came on duty on May 11, she reviewed notes on Mrs. Duverger’s hospital chart from the morning shift and considered the report to be normal. The patient’s vital signs were stable, she was not complaining of any pain, there was no swelling of her face or fingers, and her 10 am blood pressure was recorded as 121/78, which the nurse termed “within a normal range” for Mrs. Duverger based on what she saw on the chart. Blood pressure is checked once per shift if a patient is stable. Mrs. Duverger’s 6 pm reading on Nurse Lewis’ shift was 137/67. The nurse stated that, for her, the threshold of concern would have been 140/90 or a higher systolic or diastolic number. She explained urine testing is not routinely done postpartum if the patient’s condition is stable and all appears normal.[5]

Nurse Lewis testified that the next day, May 12, when she came on duty in the afternoon, Mrs. Duverger was fine and her condition remained stable throughout the day until she signed out Mrs. Duverger at 5:30 pm.[6] Nurse Lewis’ instructions to Mrs. Duverger on discharge were that, after returning home, if she experienced pain, headaches or blurred vision, she should go to the Emergency Room or see the doctor.[7]

Nurse Lewis essentially testified that she considered Mrs. Duverger’s post-partum blood pressure to have been within a normal range and her condition fine and stable throughout. Given her testimony, she was asked what other signs she would consider of concern for possible preeclampsia. She said that in addition to what she characterized as “extremely high blood pressure” (see supra), she would be concerned if the patient were experiencing severe chest pains, headaches, blurred vision or edema of the fingers. She said some edema of the legs or feet is quite common in pregnant women at the end of their pregnancies because they have been carrying extra weight, and this is why she looked for edema in other areas.

Testimony of Dr. Etienne

Claimant called Mrs. Duverger’s doctor, Dr. Guy Etienne, to testify regarding the care he provided to his patient while she was at Downstate from May 10 - 12. Dr. Etienne is board certified in obstetrics and gynecology. In addition to this delivery in 2000, he delivered the two other Duverger children, in 1991 and 1994. He has been employed since 1982 as a staff attending physician at Kings County Hospital, and also holds the position of assistant professor of medicine at Downstate, teaching medical students and others as part of the hospital’s formal affiliation agreement with Kings County. Dr. Etienne also operated a private medical practice and enjoyed privileges at Downstate entitling him to admit his private patients there until 2001 when he relinquished these privileges after he stopped seeing private patients. Mrs. Duverger’s doctor-patient relationship with Dr. Etienne had been one of great trust – so much so that when he told Mrs. Duverger in 1999 he was giving up his private practice and wanted to refer her to another doctor for this pregnancy, she was one of only three of his patients who insisted on remaining in his care.

Dr. Etienne testified Mrs. Duverger presented at the hospital in first-stage labor. He said her blood pressure reading of 153/90, taken one-half hour after she entered the hospital, was abnormal for her but not, of itself, preeclamptic. He explained that to sustain a diagnosis of preeclampsia he would have had to observe, among other things, a persistent elevation of her blood pressure in repeated readings over a period of several hours, as opposed to what he described seeing on May 10, i.e. fluctuating blood pressure readings during labor; a reading of 122/76 in the delivery room at 7:30 pm, shortly after delivery of the baby; post-partum readings which he characterized as “trending” down and ultimately “stabiliz[ing]” between 7:45 and 11 pm, i.e. diastolics of 83, 74, 70, “bottoming out” at 66, then 78, 81, 74, and systolics of 140, 144, 120, 130, 126, 128, 132, as compared with her prenatal levels which, he noted, had included a reading of 130/80 and diastolic values of 70, 78.

Dr. Etienne attributed the elevated readings Mrs. Duverger exhibited during labor to the pain and stress of labor, and opined that her post-partum readings were within “normal limits.” He described Mrs. Duverger’s blood pressure of 130/72 on the morning of May 12 when he signed her discharge order as “normal” for her,[8] pointing to her prenatal readings. In Mrs. Duverger’s case, her prenatal pressures after the first 20 weeks of pregnancy ranged from a high of 130/80 to a low of 100/50. As such, according to the doctor, two alternative preeclamptic blood pressure measures – persistent readings of 140/90 or above, or +30 millimeters of mercury (systolic) and +15 millimeters (diastolic) above her prenatal “range”–were not present.[9] He testified that, in his view, had she been preeclamptic, her elevated readings would not have come down to the range of her prenatal levels until four-six weeks after delivery.

Given Dr. Etienne’s certainty of opinion that Mrs. Duverger was not preeclamptic, his own criteria for a diagnosis were closely examined. He allowed that persistently elevated blood pressure alone could be enough to find preeclampsia, but it would have to be severely elevated. Absent such severity, sustained elevated values would have to be accompanied by significant proteinuria, centralized edema of the face and/or hands, or other signs such as headaches, dizziness, epigastric pain or blurry vision. He acknowledged it did not appear her urine had been tested,1[0] but emphasized she did not have sustained elevated blood pressure and did not exhibit centralized edema or any of the other signs of preeclampsia that he referenced. He added that in order to have warranted a post-partum diagnosis of preeclampsia, he would have needed to see continuous elevated blood pressure readings for at least 48 hours.

Dr. Etienne agreed that if a patient is diagnosed as preeclamptic – even a “mild” form based on blood pressure readings alone – in addition to delivery of the baby (which he termed the “universally accepted” treatment for preeclampsia), the drug magnesium sulfate should be administered to prevent seizures because it works to increase the threshold at which such seizures occur. This was not necessary here, he asserted, because a diagnosis of preeclampsia was neither made nor warranted.

Expert Testimony

Each party called one expert witness, each of whom advanced competing views as to whether Mrs. Duverger suffered from preeclampsia and should have been treated for it. Claimant’s expert was Dr. Jeffrey Soffer, MD, OB/GYN, defendant’s was Dr. Adiel Fleischer, MD, OB/GYN, also board certified in maternal fetal medicine-high risk obstetrics.

Dr. Soffer testified that, in his opinion, Mrs. Duverger arrived at the hospital in active labor with a “clearly evident case of preeclampsia,” and everyone caring for her in the hospital failed to diagnose and treat the condition. According to Dr. Soffer, had the condition been timely recognized, magnesium sulfate should have been administered during labor to ward off seizure activity, and this drug should have been continued for a 24-hour period following the baby’s delivery. He explained that symptoms of preeclampsia can linger “long after delivery,” and since Mrs. Duverger’s blood pressure had not returned to her prenatal “baseline” at the time she was discharged from the hospital, she should have been treated for hypertension to keep her blood pressure down. He asserted that Dr. Etienne also should have instructed her upon discharge to return “every week or two” to have her blood pressure checked. These failures, he opined, led directly to an eclamptic seizure and Mrs. Duverger’s death 18 days after Mischa’s birth.

Dr. Soffer characterized Mrs. Duverger’s blood pressure readings on admission to Downstate and during her “two- to three-hour” labor1[1] as a “dramatic rise” over very low prenatal systolic readings of 100 to 110 (except for one reading of 90) and diastolics of 50 to 70. He explained that low values are “quite common” during a pregnancy. He opined that Mrs. Duverger’s ante-partum readings alone met the criteria for preeclampsia “without an issue” and mandated treatment. He testified that any rise in a systolic reading by 30 millimeters of mercury or 15 millimeters in the diastolic over “baseline” levels warranted a diagnosis of preeclampsia. See n 9 supra. He also pointed to additional physical evidence – Mrs. Duverger’s pedal edema (swelling of the feet) and hyperreflexia (very brisk reflex reactions to knee tapping) – which reinforced his conclusion.

When asked whether the normal stresses of labor and delivery, including the fact Mrs. Duverger arrived at the hospital in active labor with a cervix dilated to 7 cm, in and of themselves could cause her blood pressure levels to become “significantly elevated,” Dr. Soffer discounted this theory. Blood pressure levels might be “mildly elevated” in such circumstances, or other factors might cause them to be “transiently” elevated during labor and delivery, but Mrs. Duverger’s elevated readings were sustained throughout her abbreviated ante-partum and birthing time. Dr. Soffer allowed that patients with preeclampsia may exhibit readings that fluctuate, but maintained that Mrs. Duverger’s readings remained well above her baseline numbers.

Dr. Soffer explained there was no known cure for preeclampsia but that delivery of the baby “attenuates” the course of the disease. Once preeclampsia appears, he said, magnesium sulfate must be administered to prevent preeclampsia from evolving into eclampsia. In direct contradiction of Dr. Etienne’s opinion (see supra), he opined that the failure to administer magnesium sulfate was the fatal error in Mrs. Duverger’s treatment.

Defendant’s expert, Dr. Fleischer, testified that both sustained elevated blood pressure readings and significant protein in the urine must be present to arrive at a proper diagnosis of preeclampsia.1[2] Because the stress of the birth itself can increase blood pressure, it is critical to distinguish abnormal blood pressure readings which warrant swift intervention from readings that merely coincide with the pain of labor and the release of hormones from anxiety. He described two alternate ways to determine whether to classify a patient’s pressure as abnormal. One is an absolute test, where any reading above 140/90 falls into the category of “hypertensive,” although not necessarily preeclamptic. The other test, similar to Dr. Soffer’s, looks at the average of the patient’s prenatal values to determine whether the current reading represents a significant departure. A systolic reading of +30 or higher above previous systolics or a diastolic of +15 or higher above previous diastolics is abnormal.1[3] See n 9 supra.

Mrs. Duverger’s prenatal readings ranged from 100-110/60 to 130/80. Eleven of 14 systolic readings were 110 or lower, and the other readings were 120, 118 and 130. “It is not exact math,” Dr. Fleischer said, but because she ran some values “in the 120s,” he used a systolic baseline of 120 for her. Regarding her diastolic readings, more than half were 60 or under, but five were 70 or above, including readings of 81 and 78. He used a diastolic baseline of 70 – not lower – because “she can run these [higher] values.” Dr. Fleischer opined that Mrs. Duverger’s blood pressure of 153/90, the reading taken one-half hour after she entered Downstate in labor, coupled with her hyperflexia of 2+, were mild signs of possible preeclampsia. This was a “red flag” warranting subsequent blood pressure readings at close intervals but not enough to make a diagnosis. Given his definition of the condition as requiring significant presence of protein in the urine, he opined that, in light of Mrs. Duverger’s blood pressure readings, a urine specimen should have been obtained as soon as it was possible to do so. However, he added that if the patient delivers quickly – “when things happen fast” – it may not be possible to obtain a specimen to test.1[4] Without the specimen, he said, a diagnosis of preeclampsia could not be made because the elevated blood pressure alone could have been attributable to hypertension.

If a diagnosis of preeclampsia is made, Dr. Fleischer agreed with Dr. Soffer that magnesium sulfate should be administered during labor and delivery, because sustained blood pressure elevation places the patient at risk for seizure. The common practice is for the drug to be stopped within 12-24 hours after delivery because the patient is no longer at such risk, “except in unusual circumstances” where the patient exhibits post-partum symptoms of continuing severe preeclampsia, such as renal failure, pulmonary edema, bleeding of the liver or a low platelet count, for example. He explained that after magnesium sulfate administration is stopped, it is excreted from the body and there is no lingering presence or effect.

Delivery of the baby is the standard “cure” for preeclampsia, said the doctor, because immediately thereafter, “almost miraculously,” the mechanism involved in the disease process diminishes and the signs and symptoms ultimately disappear. Blood pressure begins to fall after two or three days, and the adverse effects on the organs begin to abate. Although the patient is on her way to recovery, it can take days or several weeks for a woman’s health to return to normal because the process which caused the elevated blood pressure takes time to reverse itself. There is an extremely low rate of recurrence or exacerbation.

With regard to Mrs. Duverger’s post-partum readings and comparing them to her baseline values, he opined that her 144/74 reading at 8 pm was elevated, but in the context of some of her higher and lower readings, did not dictate a post-partum urine test. Her 10:30 pm reading of 128/81 was not elevated because her post-partum diastolics ranged within a spectrum of 66 to 81. Lastly, her 6:00 pm reading of 137/67 on May 11 – day two, post-partum – although “mildly elevated,” was no longer of any clinical relevance in the absence of other symptoms. Assuming a preeclamptic patient is asymptomatic and “normalized” post-partum, Dr. Fleischer said the follow-up standard of care is to send the patient home on day 2 or 3, with a return visit to the doctor in 2-6 weeks, closer to 6 in the case of a vaginal delivery. There is no reason to run other tests or to evaluate the patient any sooner, he asserted. The only time a patient is brought back earlier, i.e. 2-3 weeks, is if there is a problem with one of the organs, e.g. kidney failure, liver rupture.

The Cause of Mrs. Duverger’s Death
The court now turns to the evidence pertaining to whether Mrs. Duverger died of eclampsia and, consequently, whether it was the failure to diagnose and treat the preeclampsia which was the proximate cause of her death. All testimony in this regard was provided by the two experts, Dr. Soffer and Dr. Fleischer, who again advanced diametrically opposite conclusions based on the following documentary evidence: the report of the EMS ambulance attendants who transported Mrs. Duverger to Brookdale Hospital (Exhibit 9), the Brookdale Hospital Emergency Room record (Exhibit 8) and the Autopsy Report of the Office of the Chief Medical Examiner of the City of New York (Exhibit 5).1[5]

Dr. Soffer opined that Mrs. Duverger’s undiagnosed and untreated preeclampsia led to an eclamptic seizure. According to his interpretation, this seizure caused her brain to send disorganized signals to her heart and lungs, which promptly caused both of these vital organs to shut down. Mrs. Duverger then lapsed into a cardiopulmonary arrest from which she never recovered.

The doctor opined that nothing in the documentary evidence was inconsistent with his conclusion. He dismissed the cause of death listed in the Autopsy Report as “hypertensive and arteriosclerotic cardiovascular disease,” stating flatly “[t]hat certainly isn’t what killed her.” He described the cardiovascular disease identified in the report as only a “mild cardiac condition”– the narrowing of some vessels as a result of plaque – which he termed a “coincidental finding.” When challenged on cross-examination why such an ostensibly benign condition would be stated as the primary cause of death in an autopsy report, he responded, “I’m not sure. I would think not, but I guess some things are stranger than others.”

The doctor explained that a terribly bad headache is one of the precursors of a seizure and then speculated that the severity of Mrs. Duverger’s neck and back pain complaints, which led her husband to call EMS, could have been a “variant” of that. These complaints were inconsistent with a heart attack, he asserted, and Mrs. Duverger also did not complain of any shortness of breath or chest pain. He pointed to the fact that EMS personnel did not use the EKG machine or administer oxygen therapy – standard treatments for patients experiencing a heart attack – as reinforcing his conclusion that an eclamptic seizure killed this patient.1[6]

Dr. Soffer noted that the Brookdale emergency room records also were inconsistent with a woman admitted in the midst of a heart attack. He pointed out that no one at Brookdale drew Mrs. Duverger’s cardiac enzymes, which undoubtedly would have been done had she been having a heart attack. The staff administered magnesium sulfate, which led the doctor to conclude that Brookdale caregivers diagnosed her as having an eclamptic seizure because magnesium sulfate is the drug of choice for peri-natal seizures. See n 17 infra. In response to a question from the court, the doctor acknowledged there are reasons for seizures other than preeclampsia, that they can include hypertension, and that the Brookdale chart contained a reference to Mrs. Duverger suffering from hypertension during her pregnancy. Nonetheless, Dr. Soffer opined the Brookdale record was entirely consistent with his conclusion of a death from an eclamptic seizure although he conceded that nowhere in the Brookdale chart does the word eclampsia appear.

Dr. Soffer also opined that the autopsy report and its pathology reinforced his opinion. For example, both kidney and liver sections showed “congestion”. The kidney section also showed some “obsolete glomeruli”. These findings, he said without any explanation, “can be” caused by preeclampsia. Other notations of heart enlargement and stenosis of major vessels were “not inconsistent” with his conclusion; they simply were unrelated. He said he did not believe that the autopsy report’s findings that Mrs. Duverger’s heart was slightly enlarged and there was some stenosis of her vessels were a sufficient basis to conclude she died a cardiac death. Any 41-year old woman who died of other causes might exhibit such symptoms, he asserted. He did not find the pathology report’s reference to fresh thrombus or a blood clot in the left anterior descending artery to be remarkable. He explained it is quite common after death for clots to form in several parts of the body, including the heart. The fact it was described as a “fresh” thrombus meant to him it probably occurred after her death. Lastly, Dr. Soffer said he found the omission of seizure activity from the final diagnosis “surprising” because a pathologist normally would document the decedent’s clinical history, i.e. the seizure that occurred at Brookdale. Nevertheless, Dr. Soffer found nothing in the report to disprove a death by eclamptic seizure and nothing to substantiate a death by cardiac infarction.

Dr. Fleischer’s testimony concerning the cause of Mrs. Duverger’s death could not have been more different. Pointing to the autopsy report and related pathology findings, he emphasized the “Final Diagnoses” were “absolutely not consistent with eclampsia.” He explained that one who dies immediately from eclampsia does so because of a major cerebral vascular accident, e.g. a large vessel in the brain bursts during the seizure. There was no evidence in the autopsy report that Mrs. Duverger suffered any such neurological damage. Dr. Fleischer pointed to the absence in the pathology report of a finding of any brain edema – swelling of the brain – explaining that a patient who had died from a severe seizure “always” would exhibit smooth surfaces of the brain evidencing swelling of the gyri, the peaks and valleys of the brain. With Mrs. Duverger, the presence of normal gyri ruled out such swelling.

He asserted that an eclamptic seizure 18 days after delivery cannot be related to the failure to administer magnesium sulfate at the time of birth because the drug stays in the body’s system for only several hours. Even had Mrs. Duverger seized while at Downstate and magnesium sulfate been administered at that time, the same would have been true. Administration of the drug would not have prevented a “relapse” seizure 18 days later because it would have been long since excreted from Mrs. Duverger’s body.1[7] Good and accepted medical care never would dictate keeping a post-partum patient in the hospital for that length of time on long-term magnesium sulfate therapy. Dr. Fleischer also asserted that even had this been an eclamptic seizure, there really was nothing one could do to predict it 18 days after delivery, such as visiting the doctor a week or two after discharge from the hospital. Unlike Dr. Soffer, he found the type of back and neck pain of which Mrs. Duverger complained after leaving the hospital as not at all suggestive of preeclampsia.

Dr. Fleischer opined that despite the autopsy report not having expressly stated Mrs. Duverger suffered a “heart attack,” the evidence it presented was that she died of a massive thrombotic event in the coronary artery. There is “no question in my mind,” he said, that she fell victim to “a complete cardiac collapse . . . clearly . . . a cardiac death.” The severe back and neck pain which brought her to Brookdale was related to her becoming hypoxic (not enough oxygen was going to the brain), which then caused the seizure which led to the loss of pulse and blood pressure, and “within a matter of minutes,” to cardiac arrest.

He explained that blood flows to the heart through two coronary arteries, both coming from the aorta. This is the only source of oxygen and nutrients for the heart muscle. The total absence of oxygen and nutrients flowing to the heart muscle causes it to die. In the case of Mrs. Duverger, the pathology study described “in a very detailed fashion” evidence of clots of various ages, a “process” that was going on before she died and which ultimately led to a “near complete occlusion” – pretty much blocking the entire coronary artery – which stopped the flow of blood to her heart so it no longer could pump. There was evidence of a combination of three clots – a past clot that her body was trying to rid itself of to reopen the obstructed blood vessel, i.e. “recanalization,” as the report stated; another “fairly recent” formation of a clot that partially obstructed the vessel “just before” the massive thrombotic event (blocking perhaps 30-40 percent); and another “recent” fresh clot which, in the doctor’s opinion, brought the blockage close to 100 percent.

Dr. Fleischer took issue with Dr. Soffer’s interpretation of the pathology report’s finding of “fresh” thrombus in the artery as a clot that probably formed after Mrs. Duverger’s death. Dr. Soffer had explained it is common for clots to form in several parts of the body after death, including the heart. Although Dr. Fleischer concurred, he emphasized that here the report was more complex because it described clots of various ages. Also, he explained, one rarely sees a post-death clot so large as to almost completely occlude an entire coronary artery, making it “far more likely” the clot was the “cause” of death, rather than a “consequence” of it.

Since Dr. Soffer had pointed out the pathology report showed no evidence of damage to the heart – dead heart tissue – and opined this was inconsistent with a heart attack, Dr. Fleischer was asked on cross-examination why this did not refute his opinion. He asserted that the existence of necrosis depends on the “length” of the process. When a person suffers a heart attack and then recovers, the process results in cells that die, he said. But if an entire organ dies in a “catastrophic event,” the changes which ordinarily manifest themselves have no time to develop. He discounted their absence here.

He acknowledged it is possible for an eclamptic seizure to cause a massive cardiac arrest, but added the pathology in such a case would show something else going on, a malignant hypertensive crisis, for example, with very high blood pressure in the 200s; or the rupture of a large vessel – an aneurysm. Here, Mrs. Duverger’s blood pressure readings in the ambulance, just prior to her seizure, were 140/84 and 140/90 which he termed a “mild hypertensive crisis,” not one that would cause cardiac arrest even in a patient whose blood pressure ordinarily was much lower. “There is absolutely nothing in the record that would explain why a patient with an eclamptic seizure would have such a cardiac arrest in two minutes,” he opined.

Dr. Fleischer’s explanation as to why the Brookdale records only state Mrs. Duverger had a “seizure” and not a “heart attack,” is because hers was an “atypical presentation.” Without complaints of chest pain or shortness of breath, and with a chart note that she had a “history of hypertension during her pregnancy,” nothing evinces that either the EMS workers or the Brookdale physicians were thinking along the lines of a heart attack. He allowed that it was “very unusual” for a 42-year old woman to have advanced atherosclerotic disease, although the autopsy finding of an enlarged heart would be consistent with both the disease and with a hypertensive disorder. The doctor also found it understandable that no testing of cardiac enzymes was done because, based on Mrs. Duverger’s presentation, the clinicians would not even have been thinking about a heart attack.

The Court’s Findings
What happened to Mrs. Duverger and the Duverger family was a great human tragedy. All that occurred within her body, and why, may never be known to a medical certainty, nor is it for this court to attempt such a determination. Rather, as the trier of fact, the court’s role is solely to consider the evidence as it was presented at trial and evaluate it according to the applicable law. Claimant here bears the burden of proving by a preponderance of the competent and credible evidence (see e.g. Speciale v Achari, 29 AD3d 674 [2d Dept 2006]; Milashouskas v Mercy Hosp., 64 AD2d 978 [2d Dept 1978]; Kern v State of New York, Claim No. 107482, Ct Cl Aug. 9, 2006, Nadel, J. [UID No. 2006-014-112]) that Mrs. Duverger had preeclampsia and died of an eclamptic seizure; that defendant failed to diagnose and treat the condition, and that these failures were departures from the standard of good and accepted medical or nursing care, and were the proximate cause of Mrs. Duverger’s demise (Bloom v City of New York, 202 AD2d 465 [2d Dept 1994]; Walsh v Staten Is. Obstetrics & Gynecology Assoc., 193 AD2d 672 [2d Dept 1993]).

The court’s findings with respect to these matters are as follows:

1. Claimant has not proved by a preponderance of the competent and credible evidence that Mrs. Duverger suffered from preeclampsia and that defendant thus departed from the standard of good and accepted medical or nursing care in not concluding she was preeclamptic.

The evidence established equally plausible, if not more likely, explanations, other than preeclampsia, for the elevated blood pressure readings Mrs. Duverger exhibited. In the ante-partum period, there was the pain and anxiety of labor which, according to Dr. Fleischer, and to the nurses and Dr. Etienne, can cause blood pressure to rise “significantly”. Even Dr. Soffer allowed as how blood pressure can be “transiently” and “slightly” or “mildly” elevated during labor and delivery, terms he neither defined nor distinguished as he used them in opining that Mrs. Duverger’s blood pressure had risen “dramatic[ally]”. Also, both Dr. Fleischer and Dr. Soffer agreed that one can have a hypertensive disorder which ultimately leads to seizures without having preeclampsia. Mrs. Duverger, according to claimant, had a history of hypertension since her 1994 pregnancy for which she was treated by her family physician, Dr. Ronald Sanon, who had prescribed medication for the condition.1[8]

So, too, with regard to Mrs. Duverger’s post-partum blood pressure readings prior to discharge, which claimant also argued were abnormally elevated. Dr. Fleischer termed all of her post-partum readings “slightly elevated,” but of no clinical significance. The patient’s readings did fluctuate (also common, according to Dr. Fleischer), with two of the spikes, 140/83 and 144/74, occurring when, according to her nurse, the placenta was delivered, and also when the drug Pitocin was administered from which she experienced pain and then was given Motrin. These explanations of the reasons for the elevated “spikes” in her post-partum readings were bolstered by evidence of blood pressure spikes associated with similar events following Mrs. Duverger’s 1994 delivery (n 3 supra).

The two “signs” Dr. Soffer relied on to bolster his definitive opinion that Mrs. Duverger’s blood pressure readings were preeclamptic – pedal edema (which other testimony revealed can be quite common in pregnancy as opposed to extreme facial/ hand swelling) and 2+ hyperreflexia (as opposed to 3+ that Nurse Carmen McKoy looked for) – were not as persuasive when compared with other symptoms or signs that testimony revealed to be more specific to the condition at issue, e.g. proteinuria (which Dr. Fleischer opined was a prerequisite for his diagnosis), epigastric pain, blurred vision, or other medical problems involving, for example, the kidneys or liver, no evidence of which was presented here.

2. Claimant has not proved by a preponderance of the competent and credible evidence that defendant’s not having obtained a urine sample from Mrs. Duverger to test for proteinuria was the proximate cause of her death.

Claimant asserts the evidence at trial showed there was no impediment to obtaining a urine sample from Mrs. Duverger and argues “the nursing staff and all involved simply dropped the ball” in not doing the test. Claimant points to the testimony of Dr. Fleischer that, given Mrs. Duverger’s blood pressure readings on presentation at Downstate, a urine test should have been done as part of the ante-partum standard of medical care.1[9] Claimant’s argument also extends to Mrs. Duverger’s post-partum care. He points to the testimony of Nurse McKoy who said that when there is an elevation in blood pressure which might be due to administration of the drug Pitocin, Downstate’s policies and procedures and the nursing standard of care required that a urine test be done.

It is true there was no evidence that anyone tried or was unable to obtain an ante-partum urine sample (from which claimant apparently infers defendant faced no impediment in getting one). But claimant ignores uncontradicted testimony that the only way to obtain a urine sample which produces a reliable test result when a patient is in labor is with a catheter, a painful procedure that cannot even be undertaken once the baby is being pushed out (n 4 supra); and that when things occur quickly in an abbreviated labor period, it is not always possible to obtain a urine sample before the baby is born. Mrs. Duverger entered Downstate in active labor and delivered 1¾ hours later.

With regard to a post-partum urine sample, Nurse McKoy’s testimony, in context, was she was not concerned that Mrs. Duverger was preeclamptic because her patient did not exhibit sustained high blood pressure values and, after administration of Pitocin, her pressure went back down to 120/70. The statement of Nurse McKoy to which claimant points appears to have been a general one, rather than specific to Mrs. Duverger.2[0]

Even if the court were to conclude there was a departure from the standard of good and accepted medical or nursing care in defendant not having obtained a urine sample from Mrs. Duverger (either ante or post-partum), to infer that a test of her urine would have revealed she had proteinuria to sustain a diagnosis of preeclampsia would be entirely speculative. Claimant has not proved a nexus between the failure to obtain the urine sample and what he asserts to have been the proximate cause of Mrs. Duverger’s death. (See e.g. Broadie v St. Francis Hosp., 25 AD3d 745 [2nd Dept 2006] [failure to establish claimed departure from medical standards was proximate cause of decedent’s death where doctor was alleged to have neglected to remove fluid in decedent’s pericardium and jury relied on speculation to conclude the fluid accumulated before, not after, decedent was discharged from hospital]; Mertsaris v 73rd Corp., 105 AD2d 67 [2nd Dept 1984] [“mere evidence of negligence” in failing to examine pregnant plaintiff on admission to hospital insufficient to establish liability absent causal connection to infant’s condition]; see also Randolph v Long Is. Coll. Hosp., 234 AD2d 441 [2d Dept 1996], and n 22 infra, recounting Dr. Fleischer’s opinion that even if protein had been found in Mrs. Duverger’s urine, her condition following delivery did not warrant anything more than normal post-partum care; and finding 4 infra.)

3. Although the court has found claimant has not sustained his burden of proof that Mrs. Duverger had preeclampsia, even if the court were to conclude otherwise, claimant failed to prove that not giving Mrs. Duverger magnesium sulfate during labor and delivery and for 24 hours thereafter, not putting her on anti-hypertensive medication and not ordering her to return to the doctor within one or two weeks after discharge from Downstate to check her blood pressure were departures from the standard of good and accepted medical care which, in turn, caused her death.

With respect to the failure to administer magnesium sulfate, although both medical experts agreed the prescribed regimen to prevent seizures is to give the drug to a preeclamptic patient during labor and delivery and for a period of up to 24 hours thereafter, Dr. Soffer asserted, without further explanation, that this itself was the necessary prophylactic which would have prevented Mrs. Duverger from seizing 18 days later. Dr. Fleischer, on the other hand, testified magnesium sulfate does not remain in the body for more than several hours after its administration ceases because it is excreted and has no lingering effect. Dr. Fleischer’s testimony in this regard remained uncontradicted. Given Dr. Fleischer’s uncontradicted testimony, claimant has not demonstrated how administration of the drug at the time Dr. Soffer asserts it should have been given to Mrs. Duverger while she was at Downstate would have had any effect on her more than two weeks later. The court finds Dr. Soffer’s testimony unpersuasive on this point.

Dr. Soffer also opined that Mrs. Duverger should have been ordered back to see the doctor within one to two weeks after her discharge to check her blood pressure, and anti-hypertensive medication should have been prescribed throughout this period to help keep her blood pressure down. Claimant argues that had this been done, she would not have died.2[1] Dr. Fleischer, on the other hand, testified that even if the patient had preeclampsia and her blood pressure was elevated a week or two weeks post-partum, “it was nothing you could do to predict or protect” against a seizure 18 days after delivery. He explained that patients are not kept in the hospital on long-term magnesium, “[s]o even a visit to the doctor would not have changed [anything]” because “the patient’s symptoms unfortunately were not very critical.”2[2] He pointed out that even the EMS attendants in the ambulance and the Brookdale doctors did not suspect preeclampsia because, according to the FDNY Ambulance Call Report (Exhibit 9), Mrs. Duverger complained of back and neck pain and a pinched nerve, and “these are not suggested to preeclampsia.” Mrs. Duverger’s blood pressure readings in the ambulance at the time of her greatest stress from the excruciating neck and back pain and immediately before she seized were 140/84 and 140/90 – elevated, but still lower than when she had presented at Downstate in labor. To thus conclude that had Mrs. Duverger visited the doctor in the one or two weeks following her discharge from Downstate, her blood pressure readings while she was experiencing mild back and neck pain (and headache) would have been so elevated as to present the “red flag” of possible preeclampsia falls into the same realm of speculation as what a reliable urine sample may or may not have shown (finding 2 supra).

Mrs. Duverger did receive instructions from Nurse Lewis on discharge that if she experienced pain or headaches she was to go to the doctor or the emergency room. Although her neck and back pain was mild until the day of her death, one might speculate just as readily that had she heeded the nurse’s instructions her death may have been prevented. This also cannot be the basis for a finding, but the fact that Mrs. Duverger did receive these instructions from Nurse Lewis upon discharge means she was given symptom-specific instructions to return earlier than her scheduled appointment if need be. Claimant did not prove that defendant’s not having scheduled Mrs. Duverger for an appointment sooner was the proximate cause of her death.

4. Finally, regarding the actual cause of Mrs. Duverger’s death and whether it establishes a sufficient nexus with defendant’s conduct to support a finding of proximate cause, the court finds claimant has failed to prove by a preponderance of the competent and credible evidence that Mrs. Duverger died of an eclamptic seizure. The court finds the entirety of the testimony of Dr. Fleischer on the autopsy report more persuasive than that of Dr. Soffer. See e.g. Felt v Olson, 51 NY2d 977; Starobin v Hudson Tr. Lines, 112 AD2d 987 [2d Dept 1985].

Essentially, Dr. Soffer strained to interpret certain of the autopsy evidence and glossed over other autopsy findings in at least three respects. He characterized the report’s lead final diagnosis and cause of death – “hypertensive and arteriosclerotic cardiovascular disease” – as merely a “coincidental” finding. He asserted this disease was nothing more than a narrowing of some of Mrs. Duverger’s vessels as a result of plaque, a mild cardiac condition that ultimately is not what killed her. Dr. Soffer’s explanation seemingly was in direct contradiction of the words of the report themselves. Although Dr. Soffer found it “surprising” that nowhere in the report were “seizures” listed among the final diagnoses, Dr. Fleischer did not find it at all perplexing so long as a seizure was not the cause, but rather an effect, of a thrombotic event, as he opined. Dr. Soffer also stressed that nothing in the report was inconsistent with his conclusion that this was a death due to an eclamptic seizure, despite the fact that nowhere in the report does the word “eclampsia” appear.

Dr. Fleischer’s testimony, on the other hand, pointed to specific autopsy findings he not only found, and explained, to be “absolutely inconsistent with eclampsia” but which also demonstrated Mrs. Duverger suffered a “massive thrombotic event.” The principal inconsistency with an eclamptic seizure, he said, was no evidence of neurological damage and none of brain edema – swelling – the latter “always” being present when a severe seizure itself is responsible for a death. Dr. Soffer was silent on this subject. The evidence Dr. Fleischer cited to support his conclusion of a heart attack was that the pathologist identified three clots of various ages, the totality of which resulted in “almost complete” occlusion of the coronary artery. In contrast, Dr. Soffer ignored these variations in description, choosing instead to focus only on the autopsy’s description of “fresh” thrombus of the left anterior descending wall to speculate that all the clots were formed only after Mrs. Duverger’s death. Dr. Fleischer’s testimony was that a clot which formed post-mortem would not have been so massive as to completely occlude a vessel. Finally, Dr. Fleischer presented a credible explanation of why, if this indeed was a heart attack, there was no evidence of damage to the heart. His testimony was that this had been a “catastrophic event,” where the entire organ died so that the changes which ordinarily occur when a patient has a heart attack and then recovers – leaving dead cells and evident ‘damage’ to the heart – did not have time to develop here.
* * *
The court having determined that claimant failed to prove it was the negligence of Mrs. Duverger’s caregivers that was the proximate cause of her death, the issue of the State’s responsibility for the conduct of Downstate’s nurses and of Dr. Etienne is moot.2[3] Nevertheless, because this question as it pertained to Dr. Etienne loomed large over the entire trial, the court deems certain facets of it worthy of brief comment here.

Defendant asserts the State cannot be held responsible for the acts or omissions of Dr. Etienne because he was acting in his capacity as a private physician with admitting privileges at Downstate by virtue of a “voluntary”, i.e. unsalaried academic appointment there. According to defendant, Dr. Etienne was not required to participate in Downstate’s Clinical Practice Management Plan, which provides a central billing and accounting system for all fees generated by Downstate physicians and establishes a maximum amount of compensation that each plan member may earn. Cf. Gilbert v State of New York, 184 Misc 2d 633 [Ct Cl 2000, Lane, J.]. Claimant, on the other hand, asserts Dr. Etienne held himself out to be a member of Downstate’s medical staff and this was acquiesced in by Downstate with its knowledge, thus constituting an apparent agency for which the State may be made to answer. Claimant also argues the State is vicariously liable because Dr. Etienne was required to participate in the Clinical Management Practice Plan (regardless of whether he did) by virtue of his position of qualified academic rank at Downstate, i.e. Clinical Assistant Professor, and because of an affiliation agreement between Downstate and Kings County Hospital where Dr. Etienne actually was employed as a salaried attending staff physician.

The existence of an affiliation agreement between Downstate and Kings County distinguishes the situation here from the more common apparent agency or vicarious liability cases involving private or public hospitals. Under the affiliation arrangement, the New York City Health and Hospitals Corporation, which operates Kings County, a City hospital, pays Downstate to provide Kings County with both clinical and teaching staff. Downstate is responsible for recruiting all physicians at both institutions. Downstate indirectly supervises the delivery of services at Kings County through the latter’s chiefs of service whom Downstate can remove and to whom all staff physicians at Kings County, including Dr. Etienne, must report. Dr. Etienne’s voluntary clinical academic appointment at Downstate is thus inextricably joined with his full-time salaried position at Kings County where he sees the latter’s patients and teaches as a Downstate faculty member in accordance with the affiliation agreement. In these endeavors, he is subject to a degree of supervision and, in some instances, control by medical personnel ultimately answerable to Downstate. The arrangement also is what allowed the doctor to maintain his admitting privileges for his private patients at Downstate until he relinquished them in 2001. Although the affiliation agreement does not expressly encompass the doctor’s role as a physician when he saw his private patients at Downstate, the entire regime invites greater scrutiny viz. Downstate’s vicarious liability in an instance where the issue may be determinative of a case. That is not the situation here.
* * *
Accordingly, let judgment be entered for the defendant dismissing the claim herein.

February 8, 2007
New York, New York

Judge of the Court of Claims

[1].Claimant had testified that Mrs. Duverger had a history of hypertension ever since her second pregnancy in 1994 for which she was under the care of their family physician, Dr. Sanon, who prescribed medication. Nurse McKoy stated she did not see any notes in Mrs. Duverger’s medical records indicating a medical history of hypertension. The ACOG Antepartum Record dated May 10, 2000, as pertains to Mrs. Duverger’s past medical history, expressly negates hypertension.
The nurses’ “Admitting Addendum” (Exhibit 7 at 4), which Nurse McKoy cosigned, included a note that the patient had been taking the drug Brethine during pregnancy and another note–the letters “P.t.L.”– in the section labeled “Complications of this Pregnancy.” The earlier medical record reflects references to a Downstate hospitalization of Mrs. Duverger from February 18 to February 22, 2000 for “preterm labor”(presumably the “P.t.L.” note) when she was 26-1/2 weeks pregnant. See n 9 infra.

[2]. Although the medical records include a “Labor & Delivery Flow Sheet” (Exhibit 7 at 6) showing a 6 pm notation of 153/90, this was clarified in the testimony of Registered Nurse-Midwife, Colleen Grant, as not having been an additional reading, but rather a transfer of the 5:35 pm reading from the “triage form” to this document.
[3]. The hospital records covering Mrs. Duverger’s prior pregnancy in 1994 (when she was 36 years old) lend support to Nurse McKoy’s explanation that these post-delivery blood pressure readings were linked to Pitocin and pain (Exhibit 7, at 98, 119). In 1994, Mrs. Duverger gave birth at 9:20 pm and the placenta was expelled at 9:55 pm when Dr. Etienne had ordered administration of Pitocin. Mrs. Duverger’s blood pressure reading at 10:15 pm, shortly after administration of the drug, was a high of 152/83. Fifteen minutes later, when the reading was 135/81, she was given Tylenol and codeine; her diastolic reading remained elevated at 10:45 pm (80) and at 11 pm (77); but by 11:30 pm her blood pressure was back down to 136/66.
[4]. Registered nurse-midwife Colleen Grant testified regarding the difficulties of obtaining a reliable urine test while a patient is in labor and delivery. According to Nurse Grant, the only way to do one is with a catheterization directly into the patient’s urethra, so the urine goes straight into the catheter. Other methods result in the urine being mixed with vaginal secretions, blood and mucous, making for unreliable test results. Because catheterization is painful, the patient’s consent is required. Also, the procedure cannot be performed when the baby is being pushed out because of the danger of rupturing the urethra.
[5].This testimony regarding post-partum urine testing was confirmed generally by post-partum Nurse Denise Lewis, RN, who attended to Mrs. Duverger on the May 11 night shift which began at 12 am following the baby’s delivery the evening of May 10.
[6].Dr. Etienne signed the discharge order at around 10 am when Mrs. Duverger’s blood pressure, according to the chart, was 130/72. His note on the medical chart reflects his instruction that the patient return for a doctor’s visit one month later on June 16 (Exhibit 7 at 25). Mrs. Duverger left the hospital one-half hour before the 6 pm routine blood pressure reading would have been taken.
[7].The claimant testified at his deposition and at trial that, after returning home and until the day of her death, Mrs. Duverger, in fact, did experience mild back and neck pain – the same kind she experienced during her pregnancy – and also headaches, but until the pain became severe on the day of her demise, apparently she did not seek medical help.
[8].The medical records of Dr. Ronald Sanon, the Duverger’s family doctor, which were introduced by claimant (Exhibit 11), reflect three visits by Mrs. Duverger between 1993 and 1995, two of which were for treatment of the flu. Her blood pressure readings on each of these occasions were 120/80 (1993), 130/illegible (1993) and 130/80 (1995), virtually the same systolic readings and slightly higher diastolics than on the morning Dr. Etienne discharged her on May 12.
[9]. Dr. Etienne’s testimony regarding the +30/+15 test differed somewhat from the testimony of the two experts who testified. See account of expert testimony, infra. Dr. Etienne said there had to be a rise in both the systolic and the diastolic values (viewed as a ratio), with the diastolic number being the more significant because it reflects the heart at rest.
1[0].He testified that in the year 2000, urine testing – either during labor or post-partum – was not the standard of medical care, notwithstanding his own expressed view that proteinuria is an essential element for a diagnosis of preeclampsia. He explained that urine tests – especially by dipstick – often do not yield reliable results.
[1]1.In fact, Mrs. Duverger’s entire labor period at Downstate was 1¾ hours.
1[2].According to Dr. Fleischer, other signs or symptoms, e.g. epigastric pain, headaches, blurry vision, edema, coagulation abnormalities, renal failure, bleeding of the liver, premature separation of the placenta, fetal distress, all are used to assess the severity, not the existence, of preeclampsia.
1[3].So, for example, if a patient’s baseline were 100/60, and she presented with 140/90 (i.e., meeting the “absolute” test), and the next reading was down to 130/80 (i.e. 30 above her systolic baseline and 20 above her diastolic baseline), both readings would be considered abnormal “red flags” requiring that the patient be watched closely.
1[4].He noted the medical chart does not reveal whether there was an attempt to get a sample prior to delivery.

1[5].Neither party called any of the EMS or Brookdale caregivers; nor did either party call Dr. Pierre M. Charles, who performed the autopsy, or any other forensic pathologist, to interpret the report. Both sides apparently were content to rely on their OB-GYN experts for this purpose. (See e.g. Moon Ok Kwon v Martin, 19 AD3d 664 [2d Dept 2005]; Smith v City of New York, 238 AD2d 500 [2d Dept 1997].)
1[6].Claimant testified, however, that EMS personnel, in fact, did put an oxygen mask on his wife in the ambulance.
1[7].The fact that Brookdale gave Mrs. Duverger magnesium sulfate when she began to seize – the preferred drug for preventing eclamptic seizures – was of no relevance to him (in contrast with the view of Dr. Soffer). He explained that magnesium sulfate was the drug of choice for preeclampsia only because it did the least harm to the fetus where preeclampsia occurs in the prenatal stage. Nothing reliable could be inferred from its administration here as opposed to any other anti-seizure medication, he asserted.

1[8].Approximately one month before this trial commenced, defendant moved to dismiss the claim herein for lack of jurisdiction because it did not contain the specificity required by Court of Claims Act section 11 (b). The motion was denied based on the notice of intention, which the court characterized as “reading like a bill of particulars” that “gave more than adequate notice of the specific nature of the claim.” The notice referred to Mrs. Duverger as a patient “with known hypertension.” The notice, excerpted in the court’s opinion on the motion, included numerous references to defendant’s alleged negligence “in prescribing Brethine to a patient with known allowing the decedent to go to full term in her pregnancy while taking failing to properly advise decedent of the risks of behavior predisposing her to having an negligently prescribing Brethine for tocolysis....”and “in allowing the decedent to continue taking Brethine for a long period of time; in causing the decedent to have an embolism and in causing the wrongful death of the decedent.” See n 1 supra. Claimant’s response to the motion argued inter alia that the notice of intention “alleges negligence for the very specific treatment in the course of four months” and “would direct any investigation to the administration of this particular medication” (emphasis added) [claimant’s Affirmation in Opposition, ¶¶ 8 and 9, March 1, 2006]. Despite these and other references to the drug Brethine, reaffirmed shortly before trial, nothing was said at trial concerning the drug. The causal relationship, if any, that Brethine may have had to decedent’s demise was not addressed.
The significance of Mrs. Duverger’s six-year history of hypertension as it pertained to the cause of her death was not addressed, except for testimony offered on behalf of both parties acknowledging that one can be hypertensive without being preeclamptic, and that one can seize from the former. According to Dr. Fleischer, hypertension also can contribute to an enlarged heart, one of the pathology findings. Dr. Sanon was not called as a witness. Dr. Etienne was not asked whether he knew about Mrs. Duverger’s treatment for hypertension.
1[9].Downstate’s nursing manual for care of a patient in the first stage of labor (Exhibit 25) states that urine should be checked for protein “as necessary” in that it “may be one sign of preeclampsia.”

2[0].As previously noted, n 3 supra, Nurse McKoy’s account was bolstered by the 1994 medical record regarding administration of Pitocin.
The testimony of nurses Goldwyn Lewis, Denise Lewis and Dr. Etienne all was to the effect that in the year 2000 Downstate’s policy was not to do routine post-partum urine testing where the patient’s condition was stable and all appeared normal. The testimony of Dr. Fleischer was that Mrs. Duverger’s post-partum blood pressure readings on May 10, when compared with her baseline values – some higher, some lower – did not dictate a urine test at that point (consistent with his opinion that delivery of the baby is the standard “cure” for preeclampsia).
2[1].As previously noted, according to Mr. Duverger, their family doctor, Dr. Sanon, already had prescribed medication for his wife’s hypertension over a period of six years.
[2]2.Claimant offered scant medical evidence regarding post-partum eclamptic seizures, their incidence and the standard of good and accepted medical care in the year 2000 as to their prevention. The absence of such evidence was especially apparent given that Mrs. Duverger died 18 days after delivery; and because of testimony from both sides that delivery either “attenuates” (Dr. Soffer) or “cures” (Dr. Fleischer) the preeclamptic condition, and testimony from Dr. Fleischer that magnesium sulfate only remains in the body for several hours, that long-term magnesium sulfate therapy is not the post-partum standard of care, and that even if protein had been found in Mrs. Duverger’s urine and a diagnosis of preeclampsia had been made, her condition following delivery did not warrant anything more than normal post-partum care.
2[3].Also moot for the same reason is claimant’s motion, predicated solely on defendant’s alleged spoilation of evidence, for a determination that defendant is vicariously liable for the conduct of Dr. Etienne.