New York State Court of Claims

New York State Court of Claims

EISENBERG v. THE STATE OF NEW YORK, #2009-033-595, Claim No. 107196


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):

Cross-motion number(s):

James J. Lack
Claimant’s attorney:
Smiley & Smiley, LLP
By: Andrew J. Smiley, Esq. andJason D. Friedman, Esq.
Defendant’s attorney:
Andrew M. Cuomo, New York State Attorney General
By: Albert E. Masry, Assistant Attorney General andDaniel Chu, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 12, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


This is a timely filed claim for damages by Phyllis Eisenberg (hereinafter “claimant”) based upon the alleged medical malpractice of the defendant, University Hospital at Stony Brook, Stony Brook, New York (hereinafter “University Hospital”). The medical malpractice took place beginning on October 14, 2002 and going through October 18, 2002. Beginning on June 30, 2008, a plenary trial was held. The claim of Stuart Eisenberg is derivative in nature.

Claimant alleges that after her admission to University Hospital, she was provided with improper nutrition considering her hypoglycemic condition. As a result of defendant’s improper care, claimant was caused to fall.

Claimant called Dr. Brian Feingold as an expert in the field of internal medicine. According to the expert, claimant was admitted to the University Hospital on October 14, 2002, with a few week history of abdominal pain, nausea, vomiting, diarrhea and weight loss (T. 163)[1] . Claimant had a history of recurrent pancreatitis.[2] In addition, at the time of her admission, claimant suffered from a condition known as hypoglycemia, which is low blood sugar (T. 164). According to the expert, hypoglycemia can cause severe complications because the body’s organs depend on glucose (sugar) to function. The condition is treated by giving sugar intravenously or by food. Dr. Feingold stated that a normal sugar level is between 70 and 110 on a fasting basis (T. 164).

According to Dr. Feingold, the hospital records indicate claimant had a history of hypoglycemia at the time of her admission, (claimant’s Exhibit 11). The witness stated this condition would indicate to the staff that claimant would need to have her blood sugar monitored. Upon admission, claimant was not receiving any food because she was NPO.[3] Claimant’s Exhibit 5 indicates the only fluid claimant was receiving was 100 cc’s of saline (approximately 4 ounces) per hour (T. 170). There was no sugar added to the water.

Dr. Feingold was aware claimant fell on October 18, 2002[4]. According to the expert, the records indicate that claimant had no other nutrients during the period prior to her fall. The expert opined claimant should have received dextrose (sugar) in the intravenous fluid. This would stave off any episodes of hypoglycemia. At the time of claimant’s admission, her blood sugar level was 81 mgs per decimeter (T. 174). Dr. Feingold stated this level is on the low end of normal.

On October 15, 2002, claimant’s glucose level was 69 mgs per decimeter (T. 174). The witness testified that this result has an asterisk next to it in the chart. Dr. Feingold stated the asterisk refers to the fact the blood sugar level was low. As a result of the low blood sugar, defendant should have ordered more frequent blood tests to be done by finger stick and to administer intravenous fluids containing dextrose. Neither of these were done as of October 15, 2002. Dr. Feingold testified claimant’s blood sugar was tested again on October 17, 2002. The result showed 78 mgs per decimeter, which, according to claimant’s expert, is low normal.

Claimant was seen by a nutritionist on October 17, 2002. According to the expert’s review of the nutritionist statement in claimant’s medical chart, claimant was suffering a mild depletion in nutrition. The nutritionist also noted she was concerned with claimant’s low blood sugar and recommended a finger stick every four hours (T. 181- 182). In addition, the nutritionist recommended a change in her intravenous fluid to a fluid containing dextrose. According to Dr. Feingold, none of the nutritionist’s recommendations were followed.

Hypoglycemic shock, according to Dr. Feingold, is a situation where a person has very low blood sugar causing changes to the central nervous system or brain. The brain can react in different ways, such as confusion, seizures or a coma (T. 187). Dr. Feingold opined claimant suffered from hypoglycemic shock on October 18, 2002. According to claimant’s expert, this caused claimant to fall. After her fall, a finger stick was done and claimant’s blood sugar was 44 mgs per decimeter. Claimant’s fluid was changed to dextrose saline after her fall.

On cross-examination, the expert stated he knew claimant had a long history of treatment at University Hospital, but did not review any of her prior treatments. In addition, Dr. Feingold never reviewed claimant’s treating doctor’s records for claimant prior to this admission to University Hospital.

In a response to an inquiry, Dr. Feingold described reactive hypoglycemia as a condition where low blood sugar can develop after eating certain foods depending upon how the person digests those foods. Some foods are digested quicker and the glucose/sugar gets dumped into the intestine and the body might make more insulin causing low blood sugar temporarily. The expert testified that this usually occurs after a meal, not in a case such as claimant’s (T. 213).

Dr. Feingold acknowledged on cross-examination the nutritionist that examined claimant and made recommendations was an intern, a first year nutritional student.

Claimant called Dr. Angel Caraballo to testify. Dr. Caraballo was a first year intern at University Hospital at the time claimant was admitted. He was part of the team that was caring for claimant. While claimant was admitted on October 14, 2002, Dr. Caraballo did not come into contact with her until October 16, 2002.

Dr. Caraballo’s definition of hypoglycemia was a blood sugar below 59 or 60 (T. 688). Although a patient may have a history of hypoglycemia, it did not necessarily mean the patient required treatment unless the patient is hypoglycemic at the time. Dr. Caraballo testified claimant’s blood sugar levels were tested on a daily basis (T. 690). The doctor was aware claimant was NPO from the time of her admission and had no nutrition in her system but for the saline water.

Dr. Caraballo does not specifically recall reviewing the nutrition assessment and its recommendations, although he testified it is something he would have reviewed. According to the witness, while the nutrition assessment was written on October 17, 2002, he would not have reviewed it until the morning of October 18, 2002. Dr. Caraballo would not have acted upon any of the recommendations in the nutrition assessment on his own. It would have been reviewed with the entire team and the team would have decided upon the best course of treatment (T. 696).[5] The attending physician would actually review the charts also.

Dr. Caraballo testified that nutritional assessments would be considered but not necessarily followed. While a nutritionist has a basic understanding of body functions, it is not the same as a doctor’s knowledge, especially when considering the patient’s medical condition. For instance, giving claimant dextrose saline could cause sugar levels in the pancreas to shoot up. This would be problematic, given claimant was admitted for pancreatitis (T. 697). Dr. Caraballo testified no finger stick analysis was performed on claimant as recommended by the nutrition assessment. As claimant’s blood sugar levels were normal prior to her fall, Dr. Caraballo said there was no need to have a finger stick performed on claimant every four hours (T. 700).

Dr. Caraballo completed a post-fall evaluation form for claimant. On the form, the doctor listed possible causes for claimant’s fall. Dr. Caraballo listed postural hypertension, vasovagal syncope and metabolic reasons.[6] The witness’ final conclusion on the form was that claimant had a hypoglycemic episode when attempting to go to the bathroom unassisted. Dr. Caraballo chose this diagnosis because he was unaware of any history of vasovagal syncope.[7]

On cross-examination, Dr. Caraballo testified a “chem-8" blood test was performed as opposed to finger sticks because the chem-8 tested for eight different blood components and was more specific. A finger stick would give an approximation of one test.

Dr. Robert Maccone was called to testify by defendant. Dr. Maccone is claimant’s primary doctor. She became his patient in 1998 when he took over the practice of another doctor. According to the records (defendant’s Exhibit H) the witness possessed from claimant’s previous doctor, claimant was diagnosed with reactive hypoglycemia.[8] Dr. Maccone indicated claimant also previously had a Whipple procedure.[9] In January 2001, the witness received a letter from a Dr. Joseph Dell`Orfano. Dr. Dell`Orfano treated claimant for Vasovagal Syndrome. Upon performing a tilt table test on claimant the test revealed a vasodepressor response1[0] to head up tilt alone.

Prior to addressing the testimony of defendant’s expert, the Court must deal with claimant’s motion to preclude defendant’s expert testimony as to liability. Claimant argues defendant’s expert disclosure is devoid of any theories or explanations as to why claimant fell. In addition, claimant contends the defense expert added a theory to the case and a separate causation as to why claimant fell other than as the result of a hypoglycemic episode. Defendant’s CPLR 3101(d) disclosure for its internist stated
1(b). The expert is expected to testify that the defendant did not deviate from good and accepted standards of medical practice in this geographical region in her care and treatment of Phyllis Eisenberg. The expert will specifically testify that based upon Phyllis Eisenberg’s symptoms and the results of examinations and evaluations, the decisions as to the medical management of Phyllis Eisenberg was appropriate and in conformity with the standard of care under the circumstances presented. It is expected that the expert will testify that the plan of treatment, which was appropriate, was appropriately and timely executed. It is expected that the expert will testify that Phyllis Eisenberg’s blood sugar level was timely and appropriately monitored. It is expected that the expert will testify that Phyllis Eisenberg was appropriately medicated and administered Demerol on an as needed basis. It is further expected that the expert will testify that at all times the defendant acted and performed the medical services in a reasonable fashion, and in accordance with good and standard practice.
1(c). The expert will testify based on a review of the medical records, examinations before trial, pertinent literature, sworn or verified pleadings, bills of particulars, and on the basis of such additional information and further evidence as may be adduced during the course of the trial, as well as on the basis of the expert’s professional knowledge, education, training and experience in medicine generally, and in the expert’s fields of specialization.
1(d). The expert may also comment upon and/or respond to any and all testimony and evidence adduced at trial.

Claimant relies on the case of Dalrymple v Koka, 2 AD3d 769, to support her position as to defendant’s expert. In Dalrymple, plaintiff alleged defendant committed malpractice in the repair of her labia after delivery of her child. Defendant’s expert disclosure indicated plaintiff’s injury was a known and accepted risk of the procedure. However, at trial, defense counsel indicated during her opening statement claimant’s injury was the result of her poor healing due to her prior medical history. The court held the disclosure was so far removed from the testimony the prejudice to plaintiff could not be denied.

In opposition, defendant relies on Casimir v Bar-Zvi, 36 AD3d 578. In Casimir, the court held, “[t]he defendant's expert witness statement which indicated, inter alia, that the expert would testify based on facts and circumstances other witnesses presented at trial, ‘was not so inadequate or inconsistent with the expert's testimony as to have been misleading, or to have resulted in prejudice or surprise’ (Gagliardotto v Huntington Hosp., 25 AD3d 758, 759 [2006], lv denied 7 NY3d 710 [2006]; see Andaloro v Town of Ramapo, 242 AD2d 354, 355 [1997]; Beard v Brunswick Hosp. Ctr., 220 AD2d 550, 551-552 [1995]).” at 579.

In the instant matter, the Court denies claimant’s motion to preclude defendant’s expert. Defendant’s expert disclosure specifically stated he may also comment upon and/or respond to any and all testimony and evidence adduced at trial. Dr. Caraballo included in his assessment of claimant, after the fall, various differential diagnoses. Defendant’s expert did not go beyond the differential diagnoses presented by Dr. Caraballo. Thus, the Court finds no evidence to prejudice or surprise claimant.

Dr. Steven Lamm testified on behalf of defendant as an expert in internal medicine. Dr. Lamm testified claimant presented to University Hospital with pancreatitis, which he described as the pancreas being in the back of the abdomen and severely inflamed. This inflammation causes severe pain in the abdomen (T. 817). Claimant had a long history of pancreatitis. After evaluating the claimant, the doctors made a decision to manage claimant with intravenous hydration.

According to Dr. Lamm, hydration is a big problem with someone suffering from pancreatitis. The majority of patients will respond to hydration and pain medication. In treating pancreatitis, eating is contraindicated because it promotes more pain. Fluids should be given intravenously. The best rehydrating fluid is saline because it expands the intravascular by providing a salt solution (T. 820 - 821).

Claimant’s medical chart indicated she was dehydrated upon admittance to University Hospital. Initial blood tests indicated she had a sodium level of 127 and normal sodium in the blood is 140 (T. 822). Claimant was NPO upon her admission on October 14, 2002. The reason for a patient to be NPO is to give the pancreas an opportunity to heal. When the pancreas is exposed to matter or liquids, digestive juices are stimulated. The standard plan for someone with pancreatitis is to provide intravenous fluids for several days or longer to allow the patient to heal (T. 824).

Dr. Lamm testified as to his familiarity with hypoglycemia. He testified that the blood glucose level in everyone varies and a level that might cause one person to become lightheaded or dizzy, may have no effect on another person. There are ways to measure the blood glucose level. One way is a “finger stick”. Finger sticks are easy and convenient but only test the blood in the capillaries. This means the reading can be 10% to 15% lower than what is actually in the blood. Blood drawn from the veins can be lower than blood drawn from an artery, which is the best place to obtain the blood sample (T. 827).

The doctor testified claimant’s hypoglycemia did not necessitate the altering of her IV solution. Dr. Lamm testified he was familiar with the dextrose IV solution. The expert testified the problem with the dextrose IV solution was threefold. First, it is not an effective rehydrating solution for someone that is dehydrated. Second, there is a risk of worsening the low sodium number. Lastly, with a patient like claimant who has a pancreatitis history and has had part of her pancreas removed there is a concern the blood sugar level will rise to a high level when you give a glucose solution, which would then require the doctors to administer insulin (T. 846).1[1] Given these considerations, Dr. Lamm opined that the treatment plan of claimant’s doctors1[2] was acceptable within a reasonable degree of medical certainty.

According to the expert, it would be appropriate to monitor claimant by doing blood tests. Daily blood tests are good but may not be necessary depending upon the doctor’s contact with his patient. The doctor should be able to evaluate his patient through his contact with her. Upon claimant’s admission, her blood glucose level was 81. The next day, October 15, 2002, claimant’s blood glucose level was 69. No blood was taken from claimant on October 16, 2002. On October 17, 2002, claimant’s blood glucose level was 78. According to Dr. Lamm, all of the levels are within an acceptable range of normal. In reviewing claimant’s lab results in her chart, Dr. Lamm noted that claimant’s sodium and potassium levels had come up to normal levels by October 17, 2002.

Dr. Lamm explained the rise in claimant’s blood glucose level as her body’s own natural adjustment. The doctor explained the body tries to maintain a steady state of glucose despite a person’s intake of food. The most important thing in helping the body to maintain a steady blood glucose level is hydration (T. 852 - 853).

Despite the nutritionist’s notes and recommendations, Dr. Lamm opined that he would continue with just the saline solution. According to this witness, given that the claimant’s body is regulating her blood glucose level on its own, then the dextrose saline solution is not warranted. The dextrose solution would dilute the sodium intake and may require insulin to be administered. The finger sticks every four hours would be excessive unless the dextrose solution were administered (T. 856). Dr. Lamm found no departure from good and accepted medical practice by not following these recommendations.

Dr. Lamm examined Dr. Caraballo’s post-fall note of claimant. In looking at Dr. Caraballo’s differential diagnoses, he disagreed with Dr. Caraballo’s final diagnosis of hypoglycemia. While noting that claimant’s blood glucose level was 44, Dr. Lamm opined that claimant would not have regained consciousness as quickly as she did if she had experienced a profound hypoglycemic episode. Dr. Lamm concluded that she was conscious when found because she was able to drink orange juice. In addition, Dr. Lamm notes that shortly after a minimal amount of sugar being introduced, claimant’s blood glucose level was 159, an elevated range.

Dr. Lamm concluded that claimant suffered from vasovagal syncope. In other words, claimant fainted by going from a prone position in bed to a standing position too quickly.

After administering the dextrose solution to claimant, her blood was tested. On October 19, 2002, claimant’s blood glucose level was 228 - very high, but her sodium level dropped to 133 - below normal of 140 (T. 869). A low sodium level can cause a toxic metabolic state. In some people, this will manifest as confusion and disorientation.

On cross-examination, Dr. Lamm agreed that doing a blood test would have been reasonable in claimant’s case. However, he disagreed that missing a day was unreasonable. The expert admitted that he had no idea what claimant’s blood glucose level was at the time of her fall or how long she was on the floor before she was discovered. Dr. Lamm also agreed that finger sticks done every four hours would have provided more blood glucose levels. However, the expert testified that the finger sticks were not indicated by the chart leading up to claimant’s fall. During cross-examination, the witness stated he would not have treated claimant differently than she was prior to her fall.

Dr. Lamm agreed that if a doctor did not consider the nutritional assessment form that it would be a departure from good and accepted medical practice (T. 943). He further agreed, in the instant matter, the nutritional assessment was either reviewed and not followed or it was not reviewed. It was not possible to tell which was done (T. 944).

On redirect and after reviewing claimant’s chart, Dr. Lamm noted that a nurse had seen claimant at approximately 12:30 p.m. and claimant was discovered at approximately 1:00 p.m. The witness opined that this is too short a period of time for claimant to have had a profound hypoglycemic episode.

There is no doubt in this case that claimant fell in the hospital. The mere occurrence of an injury does not create liability on behalf of defendant (Russell v Meat Farms, Inc., 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 dental practice, and (2) the departure from the requisite standard of practice was a proximate cause of the complained of injury (Prete v Rafla-Demetrious, 224 AD2d 674). 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.

It is clear to this Court that claimant has failed to meet her burden of proof in this matter. The Court finds there is no clear and convincing evidence defendant deviated from good and accepted medical practice. There is ample evidence in the record as to the assessment of claimant upon her admission to give her a saline fluid intravenously without dextrose. The immediate concern of the University Hospital was claimant’s pancreatitis. The Court finds the testimony of Dr. Lamm to be credible as to why the saline fluid, as opposed to the saline plus dextrose, would be preferable. Over the next few days, claimant’s blood glucose level was monitored and the levels were normal. The level of 69 on October 15, 2002, was, according to Dr. Lamm still within an acceptable range when the primary concern is the pancreatitis. Indeed, claimant’s body did correct itself and her blood glucose level came back up to 78. The failure of University Hospital to test claimant’s blood on October 16, 2002, is of no significance as claimant’s blood glucose level was fine (78) on October 17, 2002.

The Court does not attach the same weight to the nutritional assessment claimant does. Defendant’s expert summed it up when he testified the nutritionist is dealing with one aspect of claimant’s care, the doctors must consider the overall plan for claimant’s care. At the time the nutritionist’s intern made her recommendations, the doctors were still trying to solve the pancreatitis. Indeed, the nutritionist’s intern set October 23, 2002, as a date where alternative forms of nutrition would have to be considered. As the blood tests were still indicating appropriate blood glucose levels, this Court finds no reason to substitute its judgment for that of the medical professionals faced with the empirical data and claimant in October 2002.

Claimant stated during the questioning of Dr. Lamm that it is equally likely the recommendations of the nutritionist’s intern were considered and rejected, or the recommendations were never seen. Claimant has failed to present evidence that the recommendations being ignored is what occurred. Given this failure of proof, the Court must find the doctors acted as reasonable doctors would have.

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

Let judgment be entered accordingly.

June 12, 2009
Hauppauge, New York

Judge of the Court of Claims

[1].This refers to the trial transcript page.
[2].Pancreatitis is a disease in which the pancreas becomes inflamed. The pancreas is a large gland located behind the stomach and next to the duodenum.
[3].“NPO” or nil per os is Latin for "nothing by mouth", a medical instruction to withhold food and fluids from a patient.
[4].Although the claim refers to claimant’s fall as occurring on October 20, 2002, the Court will conform the pleadings to the proof and find the date of claimant’s fall to be October 18, 2002.
[5].As a first year intern, Dr. Caraballo was not directly in charge of a patient’s care. The doctor was part of a team of residents and interns. An attending physician headed the group and was in charge of the care of each of the patients. Dr. Caraballo had patients, such as claimant, for whom he was the point man for the group.
[6].The doctor’s initial impression of a hypoglycemic episode would fall into the metabolic category.
[7].Simply put, this is a reason for fainting. One of the triggers can be standing too quickly.
[8].A condition wherein your body reacts to a large influx of sugar (typically a meal) by making too much insulin and lowering a body’s blood sugar too much.
[9].Dr. Maccone indicated this procedure is usually performed to treat pancreatic cancer, but can be done for other reasons. The witness described the procedure as a pancreas bypass.
1[0].A reduction in blood pressure.
[1]1.Dr. Lamm indicated that claimant’s Whipple procedure removed approximately 90% of her pancreas.
1[2].In addition to the admitting doctors, Dr. Lamm noted that a gastroenterologist was consulted. After his examination of claimant, he agreed with the plan of the admitting doctors, according to claimant’s chart (T. 848).