EISENBERG v. THE STATE OF NEW YORK, #2009-033-595, Claim No. 107196
PHYLLIS EISENBERG and STUART EISENBERG
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
James J. Lack
Smiley & Smiley, LLP
By: Andrew J. Smiley, Esq. andJason D. Friedman, Esq.
Andrew M. Cuomo, New York State Attorney
By: Albert E. Masry, Assistant Attorney General
andDaniel Chu, Assistant Attorney General
June 12, 2009
See also (multicaptioned
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)
Claimant had a history of recurrent
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.
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,
. 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
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
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
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,
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
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
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.
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
Dr. Maccone indicated claimant
also previously had a Whipple procedure.
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
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
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 , lv denied 7 NY3d 710
; see Andaloro v Town of Ramapo, 242 AD2d 354, 355
; Beard v Brunswick Hosp. Ctr., 220 AD2d 550, 551-552
).” 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
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.
Given these considerations, Dr. Lamm
opined that the treatment plan of claimant’s
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
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
HON. JAMES J. LACK
Judge of the Court of Claims
.This refers to the trial transcript
.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.
.“NPO” or nil per os
Latin for "nothing by mouth", a medical instruction to withhold food and fluids
from a patient.
.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.
.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.
.The doctor’s initial impression of a
hypoglycemic episode would fall into the metabolic category.
.Simply put, this is a reason for fainting.
One of the triggers can be standing too quickly.
.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.
.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.
.A reduction in blood pressure.
1.Dr. Lamm indicated that claimant’s
Whipple procedure removed approximately 90% of her pancreas.
.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).