New York State Court of Claims

New York State Court of Claims

MORTILLA v. THE STATE OF NEW YORK, #2009-033-594, Claim No. 108375


Case Information

HELAINE MORTILLA, as Administrator of the Estate of ERIC MORTILLA, Deceased
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

James J. Lack
Claimant’s attorney:
Seidner, Rosenfeld & Guttentag, LLPBy: Larry Rosenfeld, Esq.
Defendant’s attorney:
Andrew M. Cuomo, New York State Attorney GeneralBy: Joseph Tipaldo, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 8, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


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.[1] 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. 36).[2] 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 a.m.[3] 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, 2001.[4] 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).[5] However, in 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 cyst.[6] 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 Mather.

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 Medicaid.

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 and 19).[7] 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 later.[8] 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).[9]

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.
Where the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury. (Ruback v McCleary, Wallin & Crouse, 220 NY 188; Digelormo v Weil, 260 NY 192.) This does not mean that the plaintiff must eliminate every other possible cause. "The plaintiff was not required to offer evidence which positively excluded every other possible cause of the accident." (Rosenberg v Schwartz, 260 NY 162, 166.) The existence of remote possibilities that factors other than the negligence of the defendant may have caused the accident, does not require a holding that plaintiff has failed to make out a prima facie case. It is enough that he shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred. (Stubbs v City of Rochester, 226 NY 516.)

Ingersoll v Liberty Bank of Buffalo
, 278 NY 1, 7.

In the instant matter, it is claimant’s belief defendant should affirmatively reach out to everyone that calls to schedule a diagnostic test to inform them the test can be done for no money. Defendant’s failure to inform each and every patient of this option, according to claimant, is tantamount to withholding medical treatment.

The Court does not agree with claimant. It cannot find defendant responsible for decedent’s failure to have an MRI as a diagnostic test. The treatment of a patient requires communication between patient and provider. Defendant’s employees testified they were not aware when patients called to schedule a test as to their financial status. It is within the realm of a reasonable standard that if a patient cannot afford a test, he/she would make a simple inquiry as to a lack of financial ability to pay for a necessary test, despite the patient’s education level. A patient must take some level of responsibility for his/her own care.

In the instant matter, decedent took no responsibility for his own care. By his own admission, he never questioned the providers or provided them with any pertinent information. The Court finds defendant did not deviate from a reasonable standard of care in dealing with decedent.

In addition, the Court accepts Dr. Wolden’s testimony that the synovial sarcoma was of such a size in April 2001 that the sarcoma had already metastasized. Thus, the alleged negligence on behalf of defendant was not a proximate cause of the alleged injury.

Based upon the foregoing, the Court finds in favor of defendant and dismisses the claim. All motions not specifically ruled upon are denied.

Let judgment be entered accordingly.

June 8, 2009
Hauppauge, New York

Judge of the Court of Claims

[1].The transcripts of June 9,10, 12 and 16, will be referred to as Volumes I, II, III and IV, respectively.
[2].An MRI exam had two portions to its fee: the hospital portion and the professional portion which went to the doctor for reading the films.
[3].According to the witness, Exhibit 1 is a printout of the computer screen for decedent.
[4].The witness testified the office was not part of the Hospital and was at another location.
[5].This is the Court’s reference to the trial transcript and page.
[6].According to Stedman’s Medical Dictionary (26th Edition), a Baker’s cyst is a collection of synovial fluid which has escaped from the knee joint or a bursa and formed a new synovial-lined sac in the popliteal space; seen in degenerative or other joint diseases.
[7].Decedent was alive and was a claimant in this matter. Decedent died during the pendency of this matter.
[8].Decedent’s visit to Mather was on June 21, 2001.
[9].Dr. Vogel testified he has treated approximately three synovial sarcomas over the course of his thirty years in practice.