This is a claim brought by Helaine Mortilla (hereinafter
“claimant”) as Administrator of the Estate of Eric Mortilla,
Deceased (hereinafter “decedent”). The claim is brought based upon
the alleged medical malpractice of defendant at the University Hospital at Stony
Brook (hereinafter “Hospital”). It is alleged the claim arose based
upon defendant’s actions between April 17, 2001 and May 30, 2001. On June
9, 10, 12 and 16, 2008 a trial was held.
Claimant alleges the Hospital should have informed decedent that an MRI could
still be done even though decedent could not afford to pay for it.
Claimant began her case by calling Maria Wolfe, Laura Zehentner and Jacqueline
Hertzfeld, all employed by defendant. In 2001, Maria Wolfe testified, she
worked in the Radiology Department as the Associate Director of Operations. She
indicated an MRI exam is scheduled when a physician orders the test and then the
patient calls to schedule the exam. One of the questions a scheduler would ask
a patient concerned the type of insurance the patient had. In 2001, the
schedulers were not under the control of the Radiology Department. The
schedulers were part of the Admitting Department and generally only spoke to
patients about the hospital portion of the money due for the MRI (Vol. I, T.
The only time a patient was told to
bring money was if the patient was a self-pay patient. These patients were only
requested to bring a good-faith deposit (Vol. I, T. 36).
The witness was questioned as to what would happen if a self-pay patient called
up to schedule an MRI and indicated he had no money. Ms. Wolfe responded the
patient would be advised he could apply for Medicaid or seek out the financial
service department at the Hospital. Despite the patient’s financial
straits, the MRI would be scheduled (Vol. I, T. 39).
According to claimant’s Exhibit 1, on April 30, 2001, decedent called and
scheduled an MRI. The MRI was scheduled for May 15, 2001 at 8:00
The notes indicate decedent was told not
to bring any metal and to bring a $100.00 deposit.
Laura Zehentner testified next for claimant. In 2001 Ms. Zehentner worked for
the admitting department of the Hospital as a scheduling coordinator. The
witness said there was no written policy in advising patients about finances.
Ms. Zehentner testified that when patients were called in to schedule an exam,
there was no way of knowing if they were clinic patients or not. In 2001, the
witness stated, self-pay patients were not routinely referred to financial
services. Patients were only referred to them if they indicated they were
having financial difficulty (Vol. I, T. 104).
Ms. Zehentner has no independent recollection of speaking with decedent (Vol.
I, T.108). It was the witness’s job to schedule the tests. When a
patient came in to the Hospital, he/she would sign a financial agreement and
then be told about the financial services office (Vol. I, T. 112). The witness
seemed very confused in examining claimant’s Exhibit 1. She indicated
decedent had an MRI scheduled on April 30, 2001, as well as on May 15, 2001. At
other times, she indicated no MRI was scheduled for April 30, 2001, but there
was contact with decedent about the test (Vol. I, T. 119-120). On
cross-examination, the witness stated no patients were turned away because they
could not afford a test (Vol. I, T. 124). Decedent would not have been turned
away if he failed to bring the $100.00 good-faith deposit (Vol. I, T. 125).
Claimant next called Jacqueline Hertzfeld to testify. Ms. Hertzfeld was the
nursing station clerk in the Radiology Department in 2001. On May 25, 2001, the
witness cancelled the May 15, 2001 MRI exam of decedent in the computer system.
According to the witness, she went through the system and saw that no one had
appeared for the test. She cancelled it in the computer so the system could
have a resolution of an open date.
Claimant next called Christina Prehn (hereinafter “Prehn”),
decedent’s sister. According to the witness, decedent had a lump on his
calf and she drove him to Stony Brook Surgical on April 17,
Prehn observed a doctor examine her
brother’s leg. As a result of the exam, decedent was to have a follow-up
radiological test. The witness could not remember what type of test it was. On
cross-examination, Prehn recalled that a follow-up exam was scheduled for her
brother, but only if he got an MRI. Prehn testified the cost of the MRI was
$1,000.00. The witness testified that she did not know if her brother ever went
for the MRI.
Claimant testified her husband had no health insurance in April 2001. She also
testified decedent’s health a year prior to April 2001 was “pretty
good” (Vol. II, T. 43).
November 2000, decedent noticed a lump in his leg and went to the Coram Health
Center (hereinafter “Center”) to have it looked at. Decedent used
the Center because he had no health insurance. The Center charged people based
upon their ability to pay. Decedent had no expectation of paying the Center
(Vol. II, T. 45). Decedent was told the lump was probably the result of a
muscle pull. According to claimant, decedent went back to the Center and saw
Dr. Gabriel. She believes that Dr. Gabriel told decedent to have an MRI done
(Vol. II, T. 47). Decedent was referred to the Stony Brook Surgery Clinic.
Claimant stated that decedent did not bring any money with him when he went to
see the surgeon.
After decedent saw the surgeon, claimant called and made an appointment for
decedent to have an MRI. Claimant is unsure if she spoke to someone at the
Stony Brook Surgery Clinic or if she spoke to someone in the Hospital’s
Radiology Department (Vol. II, T. 48-49). When claimant was setting the
appointment, she was told decedent needed to bring $600.00 to the appointment.
Claimant stated that she was told the money must be brought or the test could
not be given.
According to claimant, decedent never went for the MRI because he did not have
the money. During May 2001, decedent returned to defendant’s Hospital and
on another day, went to John T. Mather Memorial Hospital in Port Jefferson, New
York (hereinafter “Mather”). The doctor at Mather diagnosed
decedent’s condition as a Baker’s
In September 2001, claimant and
decedent moved upstate to Washingtonville, New York. While in Washingtonville,
decedent obtained health insurance. Decedent went to another doctor concerning
his leg. Claimant does not remember who the doctor was but testified the doctor
performed a biopsy. The lump was diagnosed as a cancerous sarcoma. Due to the
diagnosis, claimant and decedent moved back to Long Island. On
cross-examination, claimant testified neither she nor decedent mentioned having
been to a surgeon when they were in the Hospital’s emergency room. In
addition, they did not tell the Hospital staff decedent should have obtained an
MRI but could not afford it. According to the Mather records (claimant’s
Exhibit 10), decedent went to Mather on June 21, 2001, not in May 2001.
Claimant was unsure of what happened at Mather because she dropped decedent at
the emergency room and did not go inside with him.
Claimant admitted that when decedent left Stony Brook on May 20, 2001, he was
told to see an orthopedist but did not recall him seeing one (Vol. II, T. 72).
Claimant has no idea what, if any, discharge instructions decedent was given by
Upon moving back to Long Island, decedent’s cancer was treated at
defendant’s Hospital. Decedent received chemotherapy, radiation and
underwent two surgeries at the Hospital. Decedent obtained second opinions from
Memorial Sloan Kettering. According to claimant, Memorial Sloan Kettering
advised the witness and decedent they would follow the same course of treatment
decedent was receiving.
On redirect, claimant indicated that neither she nor decedent was asked to sign
a promise to pay for the MRI. Upon scheduling the MRI, no one informed claimant
or decedent about the possibility of financial assistance or applying for
Claimant called Dr. James Vogel as an oncology expert. The doctor testified
that earlier in his career he saw clinic patients. He described clinic patients
as those patients that cannot afford private care (Vol. III, T. 10). Dr. Vogel
testified that he was familiar with the case of decedent.
On direct, the witness was asked to assume the Hospital told patients that an
MRI could be done without payment only if the patient said he could not afford
to pay. Dr. Vogel opined that it was a departure from good and accepted medical
practice for defendant not to inform decedent that he did not have to pay for
his MRI if he could not afford it (Vol. III, T. 11-12). According to the
witness, when a test is ordered by a doctor, there is an assumption the test
will be done. If the test cannot be completed it is incumbent upon the testing
service to inform the referring doctor that the test is not being performed.
Dr. Vogel opined the Hospital departed from good and accepted medical practice
when it did not inform the surgeon that decedent failed to show for a scheduled
MRI on May 15, 2001 (Vol. III, T. 16).
An MRI, according to Dr. Vogel, is a useful tool in making a diagnosis. It
takes a picture of the inside of the tissue so a diagnosis can be reached based
upon what the tissue looks like (Vol. III, T. 17). Based upon what is seen in
an MRI, a biopsy could be the next step.
According to Dr. Vogel, the failure to diagnose decedent’s sarcoma until
January 2002 was a causative factor which led to increased pain and suffering.
The witness based his opinion upon the growth of the sarcoma and difficulties
decedent had in his life. The expert also opined the failure to timely diagnose
decedent led to a significant shortening of decedent’s life.
On cross-examination, Dr. Vogel testified that he normally does not see a
patient until after the patient has had a biopsy and been diagnosed with cancer
(Vol. III, T. 38). Dr. Vogel admitted on cross-examination that there is a
percentage of patients in his private practice he refers to other doctors or
clinics due to their inability to pay or because he does not accept their
insurance (Vol. III, T. 41). In addition, Dr. Vogel stated some patients, who
are instructed to return for follow-up visits, fail to return. Dr. Vogel agreed
that there was no way to force a patient to return (Vol. III, T. 50). Claimant
submitted decedent’s deposition testimony (claimant’s Exhibits 18
According to decedent, he visited
Dr. Gabriel at the Coram Health Center on April 10, 2001. Dr. Gabriel told
decedent to see a surgeon. Decedent went to see Dr. Perez. The surgeon did
nothing for decedent except give him a prescription for an MRI test. Decedent
said he tried to have the test but did not have it done because he could not pay
for it. Decedent’s attempt at having the test done was to call and
schedule an appointment. He did not remember where he called or to whom he
spoke. Decedent did not keep the appointment for the MRI because he was told to
bring several hundred dollars.
The next thing decedent did in regard to his leg was to go to Stony
Brook’s emergency room on May 20, 2001. Decedent gave the staff no
history of his visits to the Coram Center or to a surgeon. Decedent testified
he was told to go home because it was a pre-existing condition and nothing could
be done for it in the emergency room.
Decedent then testified he went to Mather Hospital about six months
Decedent went there to complain about
his leg. He did not give the staff at Mather any history of his prior visits.
The growth on decedent’s leg was diagnosed as a Baker’s cyst.
When decedent moved upstate, he saw another doctor. An MRI was performed, as
well as a biopsy, and decedent was correctly diagnosed with a synovial sarcoma.
Decedent returned to defendant’s Hospital for cancer treatment.
Defendant called Dr. Suzanne Wolden as an expert oncologist to testify. Dr.
Wolden is an oncologist at Memorial Sloan Kettering Hospital. She testified, as
did Dr. Vogel, that a synovial sarcoma is a very rare type of cancer. The
witness indicated that she treats about five or six synovial sarcomas a year
(Vol. IV, T. 24).
In regard to decedent’s visit to Dr. Perez on April 17, 2001, Dr. Wolden
found no departure from good and accepted medical care. Her opinion was based
upon Dr. Perez’s notes, which indicate decedent was seen, referred for an
MRI and told to return for a follow-up visit (Vol. IV, T. 27). Likewise, the
expert found no departure from good and accepted medical care based on
decedent’s visit to the Hospital’s emergency room on May 20, 2001
(Vol. IV, T. 29-30). The opinion is based upon the emergency room chart which
indicates decedent presented to the emergency room with a complaint of
discomfort in his leg. The Hospital staff took a history, completed a physical
and referred decedent to follow up with an orthopedic surgeon.
Based upon her experience of working at several large hospitals, the expert
opined that when dealing with underinsured or uninsured patients, it is expected
the patient will pay at least some good-faith amount of the cost of the
treatment (Vol. IV, T. 34). Thus, the expert found it to be good and accepted
practice to have asked decedent to bring $100.00 to pay for the MRI test (Vol.
IV, T. 34). According to the witness, ultimately, it is a patient’s
responsibility to show up for tests.
The mere occurrence of an injury does not create liability on behalf of
defendant (Russell v Meat Farms, 160 AD2d 987). To prove a prima
facie case of medical malpractice, claimant must show that (1) there was a
deviation or departure from the requisite standard of accepted practice, and
(2) the departure from the requisite standard of practice was a proximate cause
of the complained of injury (Knutson v Sand, 282 AD2d 42). In a case
such as this, involving patient treatment, the medical care provider owes three
component duties to the patient: (1) the duty to possess the requisite
knowledge and skill such as is possessed by the average member of the medical
profession; (2) a duty to exercise ordinary and reasonable care in the
application of such professional knowledge and skill; and (3) the duty to use
his best judgment in the application of this knowledge and skill (Littlejohn
v State of New York, 87 AD2d 951).
However, if there is more than one possible cause of claimant’s injury
and one of the causes is not proven to be more probable than the others then
defendant cannot be held liable.