New York State Court of Claims

New York State Court of Claims

NORRIS v. THE STATE OF NEW YORK, #2009-033-599, Claim No. 110028


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:
The Law Office of David W. McCarthyBy: David W. McCarthy, Esq.
Defendant’s attorney:
Andrew M. Cuomo, New York State Attorney General
By: Steven C. Kletzkin, Assistant Attorney Generaland Albert Masry, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 21, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


This is a claim by Irene Norris (hereinafter “claimant”) for damages due to the alleged medical malpractice and/or negligence of defendant. The alleged wrongful actions took place on April 15, 2003, at the Islandia Outpatient Cardiology Facility of Stony Brook University Hospital Cardiology Department in Islandia, New York. The trial of this matter was held on October 6 and 7, 2008.

Claimant testified that she had been having chest pains in 2003 and saw Dr. Lickens[1], who prescribed a nuclear stress test for her. Claimant had the first part of the test on April 14, 2003 and returned for the second part of the test on April 15, 2003. The second part of the test was the treadmill portion. Claimant testified she was hooked up to a monitor for an EKG and given an IV. Claimant recalls a nurse and a technician being in the room. Claimant indicated defendant’s employees aided her in getting from the stretcher, where she was wired for the EKG and given the IV, to the treadmill.[2] According to claimant, the technician told her the treadmill would start slow and would gradually increase.

When claimant was on the treadmill, it started. Claimant indicated the technician was at the front of the machine to claimant’s right and the nurse was also on claimant’s right but at the rear of the machine. Prior to the treadmill starting, a man was brought into the room for the test. He was positioned to claimant’s left and rear. After the treadmill had been going a while, claimant indicated to one of the nurses that she could not continue. Claimant said she was told to continue on. Shortly after this, claimant passed out. Prior to passing out, claimant was holding the rail of the treadmill. When claimant regained consciousness, she was on the floor.

On cross-examination, claimant acknowledged that at her deposition she testified her statement about not being able to continue was only as loud as a whisper. According to claimant, she was unaware of her surroundings and incoherent at the time of her accident.

Mary Datz, one of the nurses, testified that during the stress test, she monitored the patient’s vital signs, inserted IVs and preped patients for the test. The witness prepped claimant’s chest with electrodes and inserted an IV into her. The treadmill test takes place in stages. Each stage is three minutes long and then the next stage begins. As the stages progress, the treadmill gets faster and adjusts to a steeper incline. During the test, the isotope is injected into the IV. In order for the test to work, the isotope must circulate in a patient for a minute at an accelerated heart rate. Thus, when a patient indicates he or she wants to stop, the staff tries to coach the person to go a little longer. However, claimant indicated she wanted to stop and just stopped walking. At that point, claimant’s knees began to buckle because the belt was still moving and the machine was turned off.

When claimant’s knees buckled, she was still holding on to the front of the machine. The technician and the witness were on either side of the claimant. They took claimant by the arms and guided her down to the ground and then to a bed. During her cross-examination, the witness stated she was within two feet of claimant during her exam. Her proximity to the claimant was necessary because the witness was monitoring claimant’s blood pressure.

Claimant called Deborah Adkins, the nurse practitioner to testify. The witness administered claimant’s cardiac stress test. The witness noticed an increased shortness of breath in claimant when claimant began the second stage of the treadmill test. Ms. Adkins never heard claimant say she wanted to stop the test. The witness pressed the “end test” button on the treadmill. Claimant had nearly completed one minute post injection of the isotope and she was fatigued. According to the witness, shortness of breath and fatigue are common symptoms of stress tests. The object of the stress test is to increase the workload of the heart to rule out coronary artery disease.

The witness testified claimant did fall while on the treadmill. Claimant ended up half on and half off the treadmill. The witness remembers one knee being off the treadmill. The treadmill was slowing down, claimant stopped walking and her feet went back while claimant held on to the bar at the front of the treadmill. Ms. Adkins testified on cross-examination that she, Mary Datz, and Raymond Lopez grabbed onto claimant to ease her down to the treadmill as she fell.

Raymond Lopez was the last witness to testify. He was the nuclear medicine technologist. He was the person to inject the radioactive isotopes into claimant. The witness stated he was alerted by Mary Datz to support claimant. At that point, he reached out to support her. Mr. Lopez stated claimant never fell. Claimant’s knees went down on the treadmill while she was supported. The witness stated part of claimant’s body was off the treadmill and part of her was on the treadmill.

Claimant asks for an adverse inference charge due to a missing incident report. Defendant’s employee, Deborah Adkins, testified she prepared a report and sent it to Stony Brook University Hospital. According to1A NY PJI3d 1:77:
The failure of (plaintiff, defendant) to produce [state nature of document] cannot be the basis of an inference against (it, him, her) unless you are satisfied from the evidence in this case that these conditions have been met: first, that there is a document in (its, his, her) possession which relates in an important way to the issue of [identify issue] and, second, that (it, he, she) has not offered a reasonable explanation for the failure to produce the document. If these two conditions are met, you may, in weighing the evidence, although you are not required to, infer that the document if produced would not have supported (plaintiff, defendant) on that question [if opposing side introduced evidence on the issue] and would not contradict the evidence offered by (plaintiff, defendant) on that question, and you may, although you are not required to, draw the strongest inference against the (plaintiff, defendant) on that question which the opposing evidence permits.

The Court finds the report existed, was under defendant’s control, and defendant failed to offer any reasonable explanation for failing to produce the report. In its examination and deliberation of the facts, the Court declines to attribute a strong inference against the missing report. Based upon the credibility of the witnesses employed by defendant, the Court believes the missing report would be consistent with the testimony of defendant’s employees.

Defendant moved to dismiss at the close of claimant’s case for lack of a medical expert to sustain a medical malpractice claim.

Claimant argues this is a case of negligence and not medical malpractice. In the event the Court finds it is for medical malpractice, claimant contends there is no medical knowledge or specialized skill to evaluate defendant’s conduct.

The Court notes this was not a timely filed claim. Claimant was given permission to file a late claim (M-68387). As part of the late claim application, claimant submitted a certificate of merit; a physician’s affirmation indicating that it was a departure from good and accepted medical practice in failing to terminate the test when movant complained of shortness of breath; and a physician’s affirmation indicating that it was within a reasonable degree of medical certainty that the fall from the treadmill caused movant’s injuries.

The law will hold a defendant liable for medical malpractice if it fails to exercise reasonable care and diligence in the treatment of a patient (Snow v State of New York, 98 AD2d 442, aff’d 64 NY2d 745). Expert testimony is normally required to establish a prima facie case in a medical malpractice action (Tleige v Troy Pediatrics, 237 AD2d 772). Claimant’s failure to present any expert testimony to show harm or a departure from good and accepted medical standard results in her inability to prove a prima facie case. The Court finds the administration and supervision of a nuclear stress test takes a level of knowledge and skill above the level possessed by an ordinary person. It is clear a patient’s heart rate must be elevated in order to put sufficient stress upon the heart to circulate the radioactive isotopes. What is an acceptable level of fatigue and shortness of breath is a judgment for a person in possession of medical knowledge to make. The Court dismisses claimant’s first cause of action for medical malpractice.

Claimant brought a second cause of action based upon ordinary negligence. To meet her burden of proof, it is incumbent upon claimant to establish: the existence of a foreseeably dangerous condition; that the State created the condition or had either actual or constructive notice of the condition; that the State failed to remedy the condition within a reasonable time; that such condition was a proximate cause of claimant’s accident; and that damages were sustained (Gordon v American Museum of Natural History, 67 NY2d 836).

The Court finds no dangerous condition existed and no duty to protect claimant was breached. The Court finds claimant stopped walking while the treadmill was slowing down, which was the direct cause of her “fall”. Claimant did not fall in the traditional sense, the Court finds she was guided down to her knees as she became unsteady.

Based upon the foregoing, the Court dismisses claimant’s first cause of action for failure to prove a prima facie case, and the Court finds in favor of defendant for claimant’s second cause of action and dismisses the claim. All motions not specifically ruled upon are denied.

Let judgment be entered accordingly.

September 21, 2009
Hauppauge, New York

Judge of the Court of Claims

[1].This is the phonetic spelling of the doctor’s name based upon claimant’s pronunciation.
[2].At the time of the test, claimant was approximately 5' 5" tall and weighed about 265 pounds.