VALENTINE v. THE STATE OF NEW YORK, #2009-030-012, Claim No. 110490
Defendant 100% liable for fractured femur caused when patient was improperly
transferred to x-ray table by hospital personnel. Expert testimony utilized to
establish that the injury-causing event is of a kind that does not occur in the
absence of negligence to satisfy res ipsa theory.
MARTHA VALENTINE, Deceased, by LOLITA KELLY,
as Administratrix of the Goods, Chattels and Credits of MARTHA VALENTINE, Claimant
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
THOMAS H. SCUCCIMARRA
POSNER & POSNERBy: AMY POSNER, ESQ.
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: STEVEN KLETZKIN, ASSISTANT ATTORNEY GENERAL
May 18, 2009
See also (multicaptioned
This is a claim involving the treatment received by Martha Valentine, now
deceased, during her hospitalization at Downstate Medical Center [Downstate] 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. She died on October
13, 2004. Trial on the issue of liability was held on December 3 and 4,
sister Lolita Kelly, Dr.
Walter Choi, present at the time of the incident, and oncologist Dr. Michel
Tirgan, claimant’s expert, testified on claimant’s direct case.
Defendant called Dr. Mark E. Schweitzer, a radiologist, as its expert and only
On July 1, 2003 claimant was admitted through the emergency room at Downstate,
complaining of pain in both her legs starting on June 27, 2003, that had
worsened over the previous five to six days. [See generally Exhibit 1].
By way of background, in 1997 she had undergone a bilateral mastectomy after a
diagnosis of breast cancer. At the time of her admission, she is recorded as
weighing 198 lbs. The admission notes record that Ms. Valentine was a
“walk-in” that day, in that she did not arrive by ambulance. She
was driven to the hospital by her younger sister, getting in and out of the car
in the process.
On July 1, 2003 an x-ray was performed, and on July 2, 2003 an MRI was
performed as well. On both occasions claimant was transported to these
examinations either by walking or by the use of a wheelchair. The first
indication in the medical record that she should be kept off her feet is a July
6, 2003 nursing note entered at 7:30 p.m. indicating that her left leg was not
to bear weight. Before this notation, there are indications that she used a
commode by her bed, not a bed pan, and sat in a chair by the bed. On July 7,
2003 she was transported by stretcher to radiology for testing, and returned
Lolita Kelly testified that prior to her sister’s admission to the
hospital Ms. Valentine had been working for their brother as a babysitter and
had also worked as a home aide. Ms. Valentine would take a bus to her
brother’s home in Queens. During the same period Ms. Valentine essentially
performed all daily living activities, including shopping, cooking, showering,
walking up the three or so steps to her building, and climbing into and out of
the bus for her commute to their brother’s house. Ms. Kelly estimated that
Ms. Valentine stopped going to their brother’s house about one week prior
to her admission to the hospital.
On July 8, 2003 Ms. Kelly received a telephone call from the hospital,
“somewhere around twelve noon,” telling her she needed to come to
She arrived at Downstate about
one hour later, and went to her sister’s room. She saw Ms. Valentine,
] in a bed and she had something wrapped around her leg
and she was hysterically crying.” [T-19]. Ms. Kelly testified that
claimant appeared to be in pain, but was nonetheless aware of her surroundings
as she spoke. Ms. Valentine told Ms. Kelly that she had been taken to the
radiation/oncology department earlier, and had been moved from a stretcher onto
the radiation table. Ms. Valentine told Ms. Kelly that she was moved onto the
radiation table by being lifted on a sheet, “heard the snap”, and
“screamed out” in pain. [T-20]. It was later determined that
claimant had sustained a fracture to her left femur.
On cross-examination Ms. Kelly acknowledged that she had not recalled during
her deposition which leg was actually injured, but more significantly during her
deposition she indicated that Ms. Valentine had been moved utilizing a sheet,
and testified to the same effect at trial, saying it had been “in the
sheet, in the spoon fashion.” [T-29]. In a nursing note from July 8, 2003
at 4 p.m. Ms. Valentine is noted as being “found on a stretcher”,
complaining of pain to the left leg. [Exhibit 4]. The nurse notes that claimant
said at the time: “they fractured my leg when I went for radiation. I
felt the leg crack when they tried to get me off the stretcher.”
Dr. Walter Choi, now a radiation oncologist at Beth Israel Medical Center who
completed his residency at Downstate between 2002 and 2006, testified
concerning his participation and observations of the treatment of Ms. Valentine
on July 8, 2003. He recalled that claimant was being brought to the department
for a treatment planning session, in order to plan radiation treatment to her
left hip. The attending physician - Dr. Kwang Choi (who is Dr. Walter
Choi’s father) - had determined that the patient should be brought to the
department for the evaluation, and had also determined the methodology for
transferring the patient to the simulation table.
Dr. Choi testified that Ms. Valentine came to his department shortly after
11:30 a.m. on July 8, 2003. Before she came in, he had not seen the MRI report
dated July 2, 2003. [See Exhibit 3]. The MRI had been taken of the left
thigh. The report notes:
“There is an area of marrow signal abnormality seen in the proximal left
femur, involving the trochanteric region. The superior portion of the femur is
not imaged on this study, there is apparent extension of the lesion into the
femoral neck. There is evidence of posterior cortical destruction of more
than one-half of circumference of the left femur, which puts the patient at risk
for pathologic fracture.
Impression: Findings as above, consistent with metastatic lesion involving the
proximal left femur, with cortical destruction that puts the patient at high
risk for pathologic fracture.” [id. (emphasis added)].
Although he had seen the x-ray film taken on July 1, 2003, he did not see the
report generated. [Exhibit 2]. Dr. Choi agreed that the x-ray film did not show
the extent of the cortical damage to the left leg as reported in the MRI report
dated July 2, 2003, and that he himself was not aware of the full extent of the
cortical damage to the left leg, although he was “aware” (given Ms.
Valentine’s transfer for the evaluation) of a “metastatic disease
involving the left femur.” [T-47].
When Ms. Valentine arrived at the radiation/oncology department that morning,
she was on a stretcher. He could not “recall specifically” who else
was there. He said:
“There were other therapists who . . . actually do the procedure . . .
and I presume Dr. Lefkowitz [the resident] was there as well.” [T-51].
The patient was in the process of being moved from the stretcher to the
simulation table when “she shouted in pain” and they stopped moving
Dr. Choi explained the several ways in which a patient might be moved in the
hospital from one reclining position to another. First, “they could . . .
move on their own.” [T-53]. Alternatively,
“you can use the sheet to pull them over or . . . you can pull them over
on the mattress . . . or you can use a board or some other device to move
Dr. Choi said: “She was moved . . . on that mattress that she was lying
Explaining the mechanics of the method, he said
“usually . . . two people would be on, if the stretcher and the table are
next to each other . . . two people would be . . . on . . . the one end of the
stretcher and the other people would be on the opposite end of the
[T-54]. The “typical procedure” [T-55] is to coordinate the movement
in such a fashion so as to avoid too much movement. The stretcher and the
simulation table are parallel and at the same level at the time of the transfer.
The mattress is moved laterally with the help of others to slide it over to the
He could not recall his own position, or “who did the counting” to
coordinate the movement, however. [id.]. He could not recall whether
three or four people took part in moving claimant, although four is the optimum
When asked what consideration might be involved in deciding whether to utilize
a mattress or a sheet, he said that if someone is in pain, one might want to use
a mattress or a sheet - “something other than just pulling on the
sheet” - but also said that such methods “help facilitate the move,
make it easier on the people who are transferring the patient.” [T-55]. If
a person is in pain, it is “easier to . . . transfer on a mattress.”
He indicated that neither a mattress or a sheet is “traumatic”, but
that “a mattress would probably be less . . . traumatic to the
When Ms. Valentine shouted in pain he said she had moved “[p]robably a
few inches . . . she was still mainly on the stretcher . . . lying on her
back.” Dr. Choi said that he did not “believe she was [jolted
around], I don’t recall that at all.” He said: “that’s
the whole point of moving the whole mattress and just sliding her over is that
you don’t jolt around.” He could not say whether it was “quick
or slow. It’s just . . . the pull.” Although he said he did not see
her left leg move, there was some movement of her left leg
“presumably.” Her body was not secured in any way. “[S]he
was lying on a sheet on a mattress.” [T-57-60].
He opined that there was no method for securing her so that there would be no
movement of the left leg, saying “there aren’t any such
devices.” When counsel suggested that wedges could be put in between the
legs to prevent movement, Dr. Choi said “[t]hat wouldn’t prevent
movement.” [T-58]. He indicated that such wedges are to “help the
patient comfort during the procedure.” [T-59]. He thought that even with
a wedge on either side of the leg, “the whole thing would be just lying on
a mattress. The wedge would likely move with the leg.” [T-59].
Dr. Choi agreed that in order to suffer a fracture to her left leg given the
degree of cortical bone destruction, some trauma must have occurred, and that
such trauma likely occurred during this move.
Dr. Choi was generally aware of the patient’s background, including the
1997 breast cancer diagnosis and mastectomy, although he himself had not taken a
history. He could not say whether one could infer that a slow moving cancer was
involved given Ms. Valentine’s having lived with the disease since 1997,
but did agree that “[u]sually” if a cancer were slow-moving there
would not be much change in a patient’s condition from week-to-week.
When reviewing the incident report he prepared in connection with this matter,
he said that he was “certain” that he had read the portion of the
report containing the radiation therapist’s description of the incident
before writing his own section of the report. [Exhibit 5]. He
“assumed” the radiation therapist was in the room at the time of the
attempted move “since she wrote the incident report”, but did not
have any independent recollection of her presence. [T-74].
Ms. Dunn, the radiation therapist, notes in the report that claimant was moved
“less than 6 inches.” [Exhibit 5]. He could not say whether he had
been told to prepare an incident report himself, but “assumed” that
“a nurse. . . [or] one of the other physicians” had told him to do
so since he did. [T-74]. As to when his portion of the report was prepared, Dr.
Choi responded “it’s dated 7/8/03. 12:18 p.m.” When asked
whether he had spoken with colleagues prior to preparing the report, he said
“I must have had some discussion, I don’t know exactly what . . .
the discussion would have been.” [T-75]. He could not recall if he and
Ms. Dunn were together when the report was written, and said that it is the
physician, “[u]sually” who “is the last person to write their
section.” [T-76]. Indeed, his portion of the report incorporates by
reference (“as indicated above”) Ms. Dunn’s recitation of the
mechanics of the incident. Consistent with the nursing note referred to above
concerning claimant’s being “found on a stretcher” [Exhibit 4]
and the comments Ms. Valentine is reported as having made to the nurse at the
time, Ms. Dunn indicates in the incident report that “the patient was left
on the stretcher.” [Exhibit 5].
Dr. Choi agreed that using only three people to move a patient would not be
balanced, in terms of the pressure that would be exerted on the patient.
[T-83-84]. He recalled that at least part of the mattress “must have
been” on the simulation table at the point that she screamed. He said:
“I can’t recall exactly, but I mean, presuming that this six inches
[referring to the incident report he signed] is correct, probably around six
inches” of the mattress was on the simulation table. [T-85].
Finally, Dr. Choi agreed that the procedure she was being transported for was
in part palliative, yet it was not expected that any relief from pain would
occur after the examination. He agreed there was no urgency to this particular
On cross-examination by counsel for the defendant, Dr. Choi said that after his
residency ended at Downstate in 2006, he went to Roosevelt Hospital, then
Montefiore Hospital and then finally Beth Israel Medical Center. He said that at
all of these hospitals, he was not aware of any devices that could be used to
immobilize a patient’s hip during transfer from a gurney to a simulator
table. He agreed that knowing all that he knew now about the patient, he would
not have done anything differently to effectuate her transfer to the simulation
Michael Hossein Tirgan a medical oncologist, testified as claimant’s
expert. Licensed to practice medicine in New York State since 2003, and in New
Jersey since 1987, he reported his experience on the treatment of cancer
patients in private practice, and his teaching, research and hospital
affiliations. He attended medical school at the University of Tehran, completed
his internal medicine residency at Atlantic City Medical Center, and acquired
particular training in hematological blood and bone marrow transplants at Boston
University and at Vancouver General Hospital. His private practice in the
Seattle area of Washington, was purely treating cancer patients and those
suffering from blood disorders. He currently teaches hematology/oncology fellows
through St. Luke-Roosevelt Hospital, and is a member of the American Society of
Medical Oncology, American Society of Hematology, American Society of Blood and
Bone Marrow Transplantation and the European Society of Medical Oncology. He
testified based upon his review of the medical records including films, the
depositions, and his own experience in treating cancer patients.
He indicated he had treated hundreds of patients with breast cancer, as well as
those suffering from metastatic disease relating to breast cancer. He explained
that metastatic disease occurs when the cancer moves from its primary site to
other parts of the body. One of the most common metastatic progressions of the
cancer suffered by Ms. Valentine is to the hip.
Based upon the x-ray report from the x-ray taken of Ms. Valentine’s hip
and left femur on July 1, 2003 [Exhibit 2], Dr. Tirgan said it showed that the
upper part of the left femur “was involved with cancer,” since it
describes “scattered osteolytic lesions . . . in the greater trochanter
and proximal shaft of the left femur.” [T-96]. “Osteolytic
process,” he explained, is the spread of cancer to the bone
“result[ing] in the destruction of the bone.” [T-97]. Dr. Tirgan
said there is no mention in the report that the patient is at a high risk of
fracture to the left leg, although in his view “when you have disease
involving that part of the femur, the patient is at risk.” [T-97].
The report of the MRI performed on July 2, 2003 [Exhibit 3], does note that
there is “evidence of bone destruction involving more than one half of
circumference of left femur, which puts the patient at risk for pathological
fracture.” [T-98]. Asked to explain the difference between a pathologic
or non-pathologic fracture, Dr. Tirgan said “regular fractures happen when
there is no particular disease or pathology within the bone,” such as a
fracture caused by trauma in a car accident or skiing accident. In contrast, a
pathological fracture is one occurring at the site of an existing disease
process, such as one caused by the metastasis of cancer from the breast to the
Knowing that pathologic fracture is possible is “a very important fact
for the treating physicians to know. They would need to make an assessment as to
the extent of the involvement of the bone . . . [T]he extent of the involvement
and the integrity of the bone and whatever . . . is left from the normal bone
tissue” would inform their decisions as to the proper course of treatment,
and methods for moving a patient. [T-99]. If the risk is high for pathological
fracture, “you have to immobilize the patient because you want to prevent
this fracture by any means. By all means. If the risk is low, . . . [such as] a
tiny lytic lesion in the bone that does not put the patient at very high risk of
fracture,” the measures taken are less drastic.
Given Ms. Valentine’s condition on the morning of July 8, 2003 as
suggested by the x-ray films and as expressed in the MRI report, Dr. Tirgan
opined that she was at a high risk of fracture. The manner in which a patient is
moved depends on the risk assessment of the physician. With a high-risk patient
such as Ms. Valentine, Dr. Tirgan said that she could be moved with a hard board
secured with wrappings, limiting all movement by the patient; she could be moved
with triangular wedges between her legs to prevent movement, and “for all
practical means, if you’re that concerned, you can put a cast on a patient
so they don’t move. It all depends on the assessment of the treating
physician.” [T-101]. He said that “of course” all these
securing devices are available in hospitals. [T-102].
Moving someone in Ms. Valentine’s condition by lifting her in a sheet
from the stretcher to the simulation table would not be appropriate he opined.
Further adding to his assessment of her condition was that a short time before
her admission she had been walking up into and out of a bus, taking showers,
sitting on a toilet bowl, sitting in a chair, and had been a walk-in admission
only one week earlier. Additionally, she had “lived with this cancer for
seven years.” [T-114]. He said:
“That tells you that the bone, a week earlier, had enough integrity and
strength for itself to withstand that kind of stress. And that is significant
The degree of weight bearing required to do these daily activities did not
result in a fracture. Even with a 50% loss of the cortical bone in the left
femur, there was “sufficient bone integrity” to withstand the
stressors of these activities without fracture.
Dr. Tirgan said:
“[T]his is two sets of findings. One finding is the MRI finding. And
when there is more than that fifty percent that’s a significant finding on
the MRI. On the other hand, we have the facts that she was going up the steps .
. . [T]hat tells me a lot about the fact that [the] femur, . . . despite the
fact that it had more than fifty percent destruction in [its] circumference . .
. another half of that femur was stable[,] [a]nd that was good enough to
withstand every stress of life that would naturally fracture a bone that was
very weakened.” [T-115-116].
A one-week hospital stay, in the course of seven (7) years of this cancer,
“is not a significant time frame at all.” The condition of her femur
could not have changed so much from her initial admission on July 1, when she
was able to walk, to July 8 when her femur was fractured. It was Dr.
Tirgan’s opinion, within a reasonable degree of medical certainty,
“[w]hatever trauma . . . she sustained during that process [of being
moved], the stress that was put on that femur was significantly more than the
stress of getting up the steps, going into the bus, sitting on a chair, doing
whatever . . . a person on a day-to-day basis was able to do . . . [E]very
step you take [when you walk] . . . you lift the one foot and you put one
hundred percent of your weight on the other foot, every step you take to go
upstairs or get into the bus does that. That means that that femur was capable
of withstanding the whole body’s weight . . . [,] was able to tolerate
that stress . . . [,] trauma to the femur must have been more than that.”
A “significant” degree of trauma would be required to cause such a
It was his further opinion that the medical personnel handling Ms.
Valentine’s transfer from the stretcher to the simulation table on July 8,
2003 should have been aware of the exact status of the femur before moving her,
in order to take “proper precautions.” He opined that all
participants should have known not just that the patient was there for transfer
from the stretcher to the simulation table, but that the purpose for this
patient being there was “[b]ecause the left hip contained cancer that was
threatening to fracture . . . [E]verybody should have known that.”
On cross-examination, Dr. Tirgan admitted that he did not know how much Ms.
Valentine weighed, nor did he know whether she utilized a cane or other
orthopedic device to ambulate. He said, however, that it was not significant
with regard to his opinion saying
“[i]t is irrelevant because she had the same weight a week earlier. She
didn’t gain a thousand pounds during [a] one week stay in the hospital,
neither did she lose a hundred pounds during that one week . . . [assuming a
weight of 150 lbs.] that’s what they did to her during the transfer. They
put more than a hundred and fifty pounds of stress on her femur.”
Use of a cane or crutches “puts more stress on your body” and
requires shifting the weight on your pelvis from one side of your hip to the
other. [T-136]. When using a cane or crutch to step up into a bus, for example,
“your arms don’t help you. You really need to put all your body
weight on your pelvis to both hips to go up. And as you take one step, a
hundred percent of your body weight is transferred to the opposite hip.”
Dr. Tirgan agreed that nothing in the written medical record indicated that she
was dropped, nor is there anything in the medical record explaining how she was
hit with a force in excess of her body weight. He opined, however, that in
moving this patient around, the three or four people nonetheless put some
excessive stress on her femur, either by pushing or pulling or otherwise
mishandling her. In his view they likely transferred her with a sheet or
incorrectly maneuvered her on the mattress, or pulled or pushed on her body
directly. While moving someone on a mattress laterally would be an appropriate
technique, he added that the patient should be properly secured and stabilized.
Dr. Mark E. Schweitzer, newly appointed Chief of Radiology at Ottawa General
Hospital, testified as defendant’s expert. He attended medical school at
the State University of New York at Buffalo, did residencies at the State
University of New York at Stonybrook, and later acquired a specialty at the
University of California at San Diego in musculoskeletal radiology. He is a
board certified radiologist. He indicated that he reviewed the medical record
from Downstate, including “the two imaging reports” and “all
the imaging studies.” [T-171].
Dr. Schweitzer said that the medical records he reviewed showed - without
initially specifying which portions of such records - that on July 8, 2003
“a large osteolytic . . . lesion . . . extending about four or five
centimeters distally, eccentrically located to the medial aspect of the bone.
This lesion nearly completely destroyed the cortical bone and . . . the medial
posterior aspect and destroyed about eighty percent of the trabecular bone along
its course.” [T-171-172].
Given her condition, the appropriate way to transfer her from a gurney to a
simulator would have been “either by a sheet or by a mattress,”
although the “slightly preferred” method would be by mattress in the
interest of “relative patient safety.” [T-172]. As a
“practicing [radiologist] for twenty years”, he indicated that he
was “not aware of any devices that are available or that are used to
immobilize patients during transfer to imaging or therapeutic radiology
tables.” [T-172]. He indicated that at all of the places he has worked,
including his current three months’ employment, he has “never seen
a device used or seen it . . . purported to be used” to immobilize a
patient during transfer from a gurney to a radiation table. [T-173].
Asked to describe a “wedge” by counsel for defendant “in the
context of patient imaging,” [id.] Dr. Schweitzer indicated that
the term is usually used to refer to a piece of foam or sponge that is
“on a large size....about ten to fifteen centimeters at its widest . . .
used to put patient in a specific position while an [x-ray] is taken or a
therapeutic procedure is performed, so that the patient stays in that position
which would be a position of discomfort that they wouldn’t be able to stay
in voluntarily.” [T-173-174].
He said that the use of a wedge in a transfer would be for the “reverse
of immobilization.” It would be used to change the patient’s
position during transfer.
As an example, he said
“[I]f I’m starting out on my back and it’s desirous that I
end up on my stomach, they’ll put a wedge here and then roll me over the
wedge so I end up on my stomach. So, it’s actually used for the reverse
of immobilization, it’s used for mobilization.” [T-174].
The doctor opined that he had “never heard of” the use of a wedge to
immobilize a patient in a transfer from gurney to a simulator, nor did he think
that such use would have prevented the injury. Additionally, he had never heard
of the use of tight bandages to immobilize a patient during
Dr. Schweitzer also disagreed with Dr. Tirgan’s conclusion that in order
to sustain an injury of the type sustained by claimant, a force in excess of her
own body weight would have to have caused the fracture, given that she had been
mobile a week prior to the fracture and had been able to walk up stairs, for
example, as stressed by Dr. Tirgan. He said:
“[I]f you look at the lesion [which] fractured . . . the lesion was
predominantly medial on the inner aspect of her bone. . . [W]hen . . . you stand
or when you walk or when you go upstairs, the vector, the energy force . . .
direction is from your head to your toe. Since this lesion was toward the inner
aspect the . . . energy vector, the force to . . . cause this injury would go
from medial to lateral. So, what’s happening when someone stands or walks
is not pertinent to what may happen to someone when there are different force[s]
. . . they’re subjected to.” [T-176-177].
On cross-examination, he conceded that although he currently is the chair of
radiation/oncology, he is not certified in oncology or radiation/oncology,
saying “it’s a different exam.” [T-184]. When asked about
the significant stress that would be generated by walking, and climbing stairs
among other activities, given her actual body weight of 198 lbs., Dr. Schweitzer
said (inaccurately), “Her medical record is quite clear that on admission
she stopped walking and sitting for two weeks prior to admission.”
[T-186]. Asked to show where in the medical record he drew the conclusion that
she had not been walking for two weeks, he pointed out one entry on an admission
examination where the resident noted that she had been experiencing more pain
the previous two weeks upon admission, which had prevented her from walking or
getting up from her chair. [See Exhibit 1].
Dr. Schweitzer apparently was unaware of Ms. Kelly’s testimony about her
sister’s activity level, or notations elsewhere in the medical record
concerning her mobility, limited as it was. He reiterated his statements about
the “energy vectors” being different when standing or walking, and
stated that since
“[h]er lesion was medial on the inner aspect of her femur, . . . [it]
would be sensitive to a different direction of force. So, even if she was
walking for those two weeks before, the force direction would not be the
direction that her bone was weakened in. It’s quite clear from her
Reviewing the x-ray report of July 1, 2003, the witness said that there is,
“indirect” indication of the extent of the deterioration of the
cortical bone of the left femur, but agreed it is not stated. [T-189-190]. The
July 2, 2003 MRI, because “it’s a different imaging modality,”
provides different information. [T-189]. The MRI report [Exhibit 3], he agreed,
specifically states that there is more than fifty percent loss of the cortical
bone of the left femur, because such information can be had from an MRI.
Explaining on cross-examination why he was testifying that there was eighty
percent loss of the cortical bone (and later 100% loss), Dr. Schweitzer said
that there were “different definitions of cortical bone . . .
involvement.” He testified
“[t]he true definition of cortical bone involvement is what percentage
of a given area of the cortex is involved. And the second definition is the
percentage of the circumference at a fixed level is involved. The MRI report is
referring to the latter. The former is what’s important for pathologic
The disagreement between the two experts was essentially as to the degree of
force necessary to sustain a fracture of the type suffered by Ms. Valentine, and
its inevitability. Neither had examined claimant, and both had relied on the
medical records presented. Dr. Tirgan, in addition, was also familiar with the
deposition testimony placing the events in a context.
Dr. Tirgan testified that the force that caused the fracture had to have been
substantial, given that Ms. Valentine had withstood the pressure of her full
weight for the weeks prior to her admission, including activities of daily
living such as toileting, climbing stairs, getting in and out of buses, and
further providing that the condition of the left femur was substantially the
same until it was broken.
Dr. Schweitzer opined that her ability to ambulate was not relevant to the
degree of force that would cause this fracture. It was his opinion that for
walking and other related activities, the energy force or vector moved from head
to toe, rather than from medial to lateral as was the case when the fracture
occurred (ignoring the fact that the MRI report actually indicates that the risk
for pathologic fracture is located posteriorly, see Exhibit 3). He said
that a fracture would not have happened if she were lying still on a mattress,
but opined - concededly with some exaggeration - that one could have blown air
on the claimant’s bone and it could have fractured. [T-207]. He also said
“My opinion on the basis of knowing how she was moved is based upon what
was written in the medical record.” [T-204].
No other witnesses testified.
DISCUSSION AND CONCLUSION
Ms. Valentine, as a patient in defendant’s hospital, was owed a duty of
reasonable care under the circumstances. Viewed as a claim of negligence (versus
malpractice) the defendant is required to exercise ordinary and reasonable care
to insure that no unnecessary harm befalls the patient. Reardon v
Presbyterian Hosp. in City of N.Y.
, 292 AD2d 235, 237 (1st Dept
What constitutes reasonable care is
measured by what the hospital knows, or should know, about the patient’s
condition. Here, claimant argues that the defendant breached its duty of care by
using excessive force in the efforts of its agents to move Ms. Valentine from
the gurney to the simulation table, when the defendant knew or should have known
that use of such force could foreseeably cause injury. Defendant maintains that
regardless of how or by what means the claimant was moved on this date, the
fracture she suffered was an unavoidable risk of the procedure, that could not
have been prevented by the exercise of reasonable care.
In a medical malpractice claim, the claimant must show a deviation or departure
from accepted practice and evidence that such deviation was a proximate cause of
the injury or other damage. A claimant must establish that the medical
caregivers either did not possess the requisite knowledge or did not use
reasonable care or best judgment in applying the knowledge and skill ordinarily
possessed by practitioners in the field. If a claim can be read to allege simple
negligence, then the alleged negligent omissions or acts can be readily
determined by a fact finder using common knowledge without the necessity of
In a special class of medical malpractice cases would be those invoking the
doctrine of res ipsa loquitur. See generally Kambat v St. Francis
Hosp., 89 NY2d 489, 496 (1997). To give rise to an inference of negligence
under the doctrine of res ipsa loquitur, a claimant must establish that: (1) the
injury-causing event is of a kind that ordinarily does not occur in the absence
of negligence; (2) the injury was caused by an agent or instrumentality within
the exclusive control of the defendant; and (3) no act or negligence on the
claimant’s part contributed to the happening of the event. For a prima
facie case, claimant need only establish that there is evidence supporting these
three elements, and does not need to eliminate every other scenario. See
Antoniato v Long Is. Jewish Med. Ctr., 58 AD3d 652 (2d Dept 2009).
In a medical malpractice case in which the claimant seeks to invoke the
doctrine of res ipsa loquitur, expert testimony may be “used to help the
[fact finder] ‘bridge the gap’ between its own common knowledge,
which does not encompass the specialized knowledge and experience necessary to
reach a conclusion that the occurrence would not normally take place in the
absence of negligence, and the common knowledge of physicians, which does . . .
).” See States v Lourdes Hosp.
NY2d 208, 212 (2003).
In a case relying on the
doctrine, while the expert’s testimony might supply the necessary
information to allow the fact finder to infer that the event does not ordinarily
occur in the absence of negligence, a claimant still must establish the
remaining factors of exclusive instrumentality and a lack of contributory
In this claim, claimant is advancing a claim of negligence or medical
malpractice based upon both direct evidence of negligence, as well as
circumstantial evidence on a theory of res ipsa loquitur, with Dr.
Tirgan’s testimony providing the bridge to allow the inference that this
injury would not normally occur in the absence of negligence.
Resolving issues of credibility is the province of this Court as the trier of
fact. LeGrand v State of New York, 195 AD2d 784, 785 (3d Dept 1993),
lv denied 82 NY2d 663 (1993). Just as with any testimonial evidence,
“[t]he weight to be afforded the conflicting testimony of experts is a
matter peculiarly within the province of the [fact finder] . . . (citations
omitted).” Sternemann v Langs, 93 AD2d 819 (2d Dept 1983);
see also Lalanne v Nyack Hosp.
45 AD3d 645, 646 (2d Dept 2007).
Upon review of all the evidence, including listening to the witnesses testify
and observing their demeanor as they did so, the Court finds that claimant has
established that defendant was negligent and that such alleged negligence was a
proximate cause of decedent’s injuries by a preponderance of the evidence.
The opinions expressed by the claimant’s expert are supported by facts
which were either established or fairly inferable from the evidence, and more
directly addressed to the nature of the injury at issue deriving as it does from
the metastasis of decedent’s cancer. In contrast, defendant’s expert
- with an impressive depth of experience in radiology it is true - nonetheless
was not familiar with the overall picture of decedent’s status, and the
information which the medical personnel should have known at the time they
clearly mishandled Ms. Valentine. Indeed, Dr. Schweitzer’s statements as
to the amount of bone loss to the femur varied throughout his testimony, from
the more than 50% loss noted in the MRI report and mentioned in his testimony,
to 80% loss, to nearly completely destroyed, to complete destruction.
Additionally, he indicated that the risk of fracture was predominantly medial,
at the inner aspect of the bone, when the MRI report noted the risk for
pathologic fracture posteriorly.
Dr. Schweitzer’s insistence that Ms. Valentine’s ability to walk
was not relevant to the degree of force necessary to sustain this fracture,
because ambulation requires energy forces directed from the head to the toe,
whereas this fracture required an energy force directed from the medial to the
lateral, appears misguided. While all agreed that the femur was weakened and
could break, Dr. Schweitzer’s analysis presumes that the medial to lateral
direction is the only place it could have. Walking is not done only on a flat
surface with equalized distribution of weight, nor is climbing up and down
stairs, dressing, sitting down and rising from a chair.
Overall, the court finds that the testimony of Dr. Tirgan was more credible
than that of Dr. Schweitzer.
The testimony of Dr. Choi was infused with a lack of recollection as to the
particulars of this patient. It was peppered with attestations as to the
“usual” or “typical” manner of doing things, without any
specific recall of Ms. Valentine and the events leading up to her injury. It is
noted that those recording the events in the medical record chose to include the
references to her movement “on a mattress” after the events, and
that earlier references to claimant’s movements for the earlier hospital
procedures - the July 1 and 7 x-rays, and July 2 MRI procedures respectively -
do not note the technique used to move her except to say by stretcher, or
What can be gleaned from Dr. Choi’s testimony is that he did not
adequately review then available reports or films. He said that he had seen the
x-ray film, but not the report, and had not seen either the MRI report or film.
Before the fracture, he was unaware of cortical bone loss of whatever degree. He
admitted that the procedure was not one of any particular urgency, i.e., it
could have awaited the more complete reports. He did not recall who else was
there, who else participated in moving claimant or even where he stood in the
movement process. He did not know how many people tried to move her, or who
orchestrated the movement by counting-off to coordinate the move. He used words
like “pull” and “push” to describe the method of
movement: words implying the exertion of force in one direction or another.
While certainly some of the recorded notes in the medical record and Dr.
Choi’s sketchy recollections are to the effect that claimant was moved by
the more conservative method of a mattress, the decedent’s report to her
sister of how she was moved on a sheet, made shortly after the event, are to
Regardless of the manner in which Ms. Valentine was moved, however, Dr. Choi
was not aware of the extent of her fragility, she was not secured against
movement of her body in manners suggested by Dr. Tirgan, and some amount of
force, whether an unbalanced maneuver by three rather than four people, or an
awkward use of the standard procedure of utilizing a sheet, was carelessly
exerted against her, causing her leg to fracture. Notably, there is no
documented evidence of any significant cortical damage to the medial femur
[see Exhibit 3], thus, if as Dr. Schweitzer urged, her bone was fractured
at the site of a metastatic lesion at the medial part of the left femur, some
significant force must have been applied. Claimant was completely under the
control of the defendant [cf. Molina v State of New York, 46 AD3d
642 (2d Dept 2007)], and had no role in contributing to her injuries.
Claimant argues that the fracture of Ms. Valentine’s femur could have
been avoided. This court agrees.
Based on the foregoing, the court finds that the defendant’s agents were
negligent and that this negligence was a substantial factor in bringing about
the fracture of claimant’s leg. Accordingly, the Court finds defendant
100% liable for the injury to claimant. A trial on the issue of damages will be
held as soon as practicable.
The Clerk of the Court is directed to enter interlocutory judgment
May 18, 2009
Plains, New York
HON. THOMAS H. SCUCCIMARRA
Judge of the Court of
. The reference to “claimant”
here, and hereafter, refer to the decedent, Martha Valentine, unless the
context suggests otherwise.
. References to the transcript are noted as
[T- ]. Where the transcriber found testimony inaudible, quotations are taken
directly from audio recordings or trial notes.
. “Here, plaintiff's claim is not based
upon an assertion that an improper assessment of her medical condition played
any role in determining how to help her off the table . . . Specifically,
notwithstanding [the treating physician’s] testimony that getting a
patient off the examining table and making sure that she could stand up straight
and walk around was part of the medical procedure and the doctor-patient
relationship, resolution of this cause of action required only consideration of
[the doctor’s] common sense and judgment regarding whether two people
should have helped [plaintiff] off the table. Plaintiff's claim was not based
upon [the doctor’s] assessment of [plaintiff’s] medical condition.
Therefore, the decision of defendant doctor to help plaintiff's decedent off of
the examining table by himself, rather than calling over another employee of
defendant hospital for assistance, was not the type of decision requiring the
input of an expert with medical training who has earned the degree of M.D.
Plaintiff therefore had no obligation to offer any expert testimony showing that
such conduct deviated from an accepted standard of care.”
. “[W]e conclude that defendant’s
motion for summary judgment was properly denied by Supreme Court. The jury
should be allowed to hear from plaintiff’s experts in order to determine
whether this injury would normally occur in the absence of negligence.
Likewise, defendant must be given an opportunity to rebut the assertion with
competent expert evidence to show, for example, that the injury complained of is
an inherent risk of the procedure and not totally preventable with the exercise
of reasonable care.” States v Lourdes Hosp
, at 214.
. In overruling defendant’s trial
objection at the time of Ms. Kelly’s testimony, the court already
determined that there was sufficient indicia of reliability to the out-of-court
statements as excited utterances, and that surrounding circumstances reasonably
justified the conclusion that the remarks were not made under the impetus of
studied reflection. See generally People v Cotto
, 92 NY2d 68,
78-79 (1998); cf. People v Johnson
, 1 NY3d 302, 306 (2003).