New York State Court of Claims

New York State Court of Claims
DROGO v. STATE OF NEW YORK, # 2011-018-245, Claim No. 105650


A doctor cannot ignore a patient's evolving medical condition in reliance upon the admitting doctor's diagnosis and plan of care where the standard of care required him to exercise his independent medical judgment and re-evaluate the admitting doctor's diagnosis. Morever, the doctor failed to even follow Dr. Dunbar's order - if irritability increases or he develops a bulging fontanelle, a lumbar puncture should be performed. Both conditions occurred, yet, no action was taken until the infant Claimant suffered a seizure. Claimant's care fell below the standard of care. Claimants established that as a result of this deviation from the standard of care, the infant Claimant suffered injuries. This claim was bifurcated and the full extent of Claimants' injuries will be developed at a damages trial. The Defendant is 100% liable for the injuries Claimants' suffered as a result of the Defendant's deviation from the standard of care.

Case information

UID: 2011-018-245
Claimant(s): DANIEL C. DROGO and PATRICIA DROGO, Individually and as Parents and Natural Guardians of DANIEL J. DROGO
Claimant short name: DROGO
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 105650
Motion number(s):
Cross-motion number(s):
Claimant's attorney: BOTTAR LEONE, PLLC
By: Anthony S. Bottar, Esquire
Defendant's attorney: ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Maureen A. MacPherson, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: December 16, 2011
City: Syracuse
Official citation:
Appellate results:
See also (multicaptioned case)


Claimants seek damages from the State for injuries suffered by their infant son as a result of the Defendant's alleged failure to timely diagnose and treat pneumococcal meningitis at University Hospital, State University of New York Health Science Center (hereinafter University Hospital) in Syracuse. This matter was bifurcated and this Decision addresses only liability.

Patricia and Daniel Drogo are the parents of four children, John, Nicholas, Daniel, and Marissa. Claimant, Patricia Drogo, testified that their third child, Daniel, was born on September 5, 1999, and was a healthy baby.

On November 3, 1999, Daniel developed a high fever, around 104F., and she took him to the pediatrician's office. The medical records(1) reflect that the pediatrician was concerned about possible meningitis so they were sent to the emergency room at Crouse Hospital. A lumbar puncture was performed to rule out meningitis, although the Crouse Hospital records(2) indicate it was to rule out sepsis. Daniel was diagnosed with a urinary tract infection (hereinafter UTI) and admitted. He was treated with intravenous (hereinafter IV) antibiotics and discharged on November 7, 1999. A note in the pediatrician's records on November 26, 1999, indicate Daniel had "spontaneous reflux GIII bilaterally,"(3) and that Mrs. Drogo was referred to a Pediatric Urologist. During that hospital stay, Mrs. Drogo noted that Daniel seemed to improve right away after receiving antibiotic treatment. She said there were follow-up visits with Dr. Mathews, a Pediatric Urologist.(4) Daniel was placed on a prophylactic dose of Bactrim and urine cultures were indicated every three months.

Mrs. Drogo remembered Daniel being healthy through the end of 1999. However, in January 2000, he had a respiratory illness and rash. He was diagnosed with bronchitis and treated. He recovered well.

In mid-February, Mrs. Drogo said Daniel was ill again with a fever, cough, and congestion. The medical records(5) indicate Mrs. Drogo called the pediatrician's office on February 10, 2000, and was advised how to treat him at home. On February 12, 2000, when Daniel's temperature was over 102F., Mrs. Drogo took him into the pediatrician's office and he was seen by Dr. Alvarado. A chest x-ray was performed and he was diagnosed with pneumonia. He was prescribed a 10-day course of Augmentin and he improved. While Daniel was on the Augmentin, Mrs. Drogo stopped the Bactrim regimen. Mrs. Drogo could not recall if she restarted giving the Bactrim to Daniel when the Augmentin was finished.

Mrs. Drogo testified Daniel became sick again on Sunday evening, February 27, 2000. His temperature was over 102F., so she called the pediatrician's office on Monday morning. His fever increased that afternoon to over 104F., and she took him to the doctor.

Dr. Freshman saw Daniel that afternoon and noted that the fever could indicate a viral infection or UTI due to his history of reflux so he took a urinary tract culture. The notes from the visit indicate Daniel was alert and looked well with a flat fontanelle. That night, Daniel started vomiting and still had a fever. There was no improvement in Daniel's condition, so Mrs. Drogo called the pediatrician's office on Tuesday morning. That morning, Daniel was seen by Dr. Dunbar. The nursing notes state that he was vomiting, and he had lost weight. His appetite had decreased, he was cranky with a weak cry, had a fever with a bulging fontanelle. Dr. Dunbar sent Daniel to University Hospital as a direct admission. In her trial deposition,(6) Dr. Dunbar read her notes from that visit as follows:

History of present illness: Five and a half month old male with grade 3

urinary reflux bilateral, and fever to 104 times two day with vomiting.

Seen in office yesterday. Catheterized urine, dipstick was negative for all,

but culture growing 75,000 gram negative lactose fermenter. He has

gotten crankier, and has vomiting since last night, so admitted for IV

medications and observes. History of past illness: Grade 3 reflux

discovered 11/99 as part of rule out sepsis workup, follow by Dr.

Mathews. Is supposed to be on Bactrim prophylaxis, but mom may

not have restarted it on 2/22. Was on Augmentin and nebulizer, 2/12

to 2/22 for reactive airway disease and pneumonia. Renal scan done

last week. Results not available to me yet. In view of previous

admission showed that ampicillin, gentamycin, was changed to Kefzol

when urine sensitivities were available, so assume his E-coli was not

sensitive to ampicillin, so will start with Kefzol IV this time 'til get

sensitivities tomorrow. Physical exam: Alert, quiet when held, somewhat

full fontanelle but not what I would consider bulging, weight: 8.3 kilograms,

yesterday 6.5. HEENT negative, chest negative, core negative, abdomen

negative, GU: Uncircumcised male. Assessment: Urinary tract infection,

doubt meningitis, but if becomes fussier or fontanelle tense will need to

do lumbar puncture. Mom aware. Plan: Number one, bud culture, CBC,

SMA; number two: Intravenous Kefzol pending urine sensitivities which

will be available Wednesday; number three, maintenance IV fluids; number

four, if clinically worsens, increased irritability, may need lumbar puncture.

Dr. Freshman to follow. Please let Dr. Mathews know. He is in the

hospital. M. J. Dunbar, M.D.

During the office visit, Mrs. Drogo asked the doctor if she thought Daniel had meningitis and she said no, but if he became fussier or his fontanelle got full, she would order a lumbar puncture. Her diagnosis was a UTI based upon the urine culture results. She was also concerned that he had urosepsis(7) and that he was dehydrated. It was Mrs. Drogo's understanding that Daniel was to be monitored at the hospital; he was not being admitted to have a lumbar puncture.

Daniel was a "direct admit," according to Dr. Dunbar, because it is a faster procedure and treatment can be started more quickly. Instead of having the patient go through the emergency room, Dr. Dunbar as the admitting doctor, calls the admitting resident to advise of the child's imminent arrival. In this case, it was a female resident and Dr. Dunbar told her how she wanted Daniel treated. The resident determines the availability of a bed which can be in either University Hospital or Crouse Hospital. At some time after the Drogos left the office, Dr. Dunbar testified that she had the admitting note, quoted above, faxed to the hospital, and that during their telephone call she told the admitting resident that Mrs. Drogo was worried about meningitis, so if Daniel became fussier or his fontanelle got full she wanted a lumbar puncture performed. The note, Dr. Dunbar believes, was faxed to the hospital. Dr. Dunbar's admitting note(8) does not appear in the hospital records; however, Dr. Mirza Beg, a second-year pediatric resident who saw Daniel, recalled receiving the information it contained from the senior medical resident, Dr. Tsoline.

Mrs. Drogo testified that they arrived at the hospital admission office about noon. Daniel was examined and blood was drawn. They were moved to a room on the fourth floor, pediatric unit, about 1:00 p.m., and an IV with fluids and antibiotics was started. She recalled speaking with a nurse, giving her a history, and paperwork being completed. After that, no one came into the room for a while, then as Mrs. Drogo recalled, a woman with dark hair came in and spoke to her, but did not examine Daniel. According to Mrs. Drogo, at that time there was no change in Daniel's condition from when they left Dr. Dunbar's office.

The nurse's progress notes(9) made at the time of Daniel's admission, recite his recent medical history and indicate his temperature was 38.4 C., and his heart rate was 210. Additionally, the note reads, "soft, full fontanelle and tense moist mucus membranes. . .neck supple."

Dr. Meike Rose saw Daniel when he arrived on the pediatric floor and she described him as fussy. She prepared an admitting note.(10) Dr. Mirza Beg also saw Daniel at this point and admitting orders were prepared.(11)

In the "Physicians Orders,"(12) at 1300, (1:00 p.m.) Dr. Beg wrote that Daniel was diagnosed with a UTI. IV fluids were started which included the antibiotic Kefzol for the infection.(13) Dr. Rose wrote that the House Officer(14) should be called if Daniel's temperature exceeded 38.5C., or if his heart rate went above 200 or below 90.(15) Dr. Beg, in his trial deposition, said that these orders were important as they would allow the doctors to reexamine the patient to determine whether the signs and symptoms still match the working diagnosis; i.e., UTI.

Between 1:00 and 3:00 p.m., Mrs. Drogo stayed with Daniel and noticed changes in his condition. He became fussier, was hot to the touch, and would not eat. Mrs. Drogo noticed his arms stiffening. She felt his fontanelle and she thought it was starting to "stick out," "come up a bit,"(16) instead of its typical appearance of being slightly depressed. She called a nurse who took Daniel's temperature, it was over 104F. (40C.), and Mrs. Drogo asked to see a doctor. The nurse went to get one.

The next person Mrs. Drogo saw was Dr. Beg, who introduced himself as he came into the room. Mrs. Drogo told Dr. Beg that she believed Daniel's fever had spiked, and that he was behaving differently then when he had the UTI at Crouse Hospital the previous November. Specifically, she told him that when Daniel had a UTI before and was given antibiotics, he noticeably improved shortly after the medication began but this time he was not improving. His fever did not spike in November, he did not vomit, and his arms did not get stiff. She told Dr. Beg his arms were sticking out and that she was concerned about his fontanelle. She asked if he would test for meningitis. Dr. Beg checked the IV bag and said that Daniel was only on medication for a few hours and that he would wait before doing the test. Mrs. Drogo told him Daniel had a prior lumbar puncture in the Emergency Room at Crouse Hospital when his only symptom was a high fever. She told him she was concerned about meningitis. Dr. Beg said he believed Daniel had another UTI and he needed time for the medication to take effect; he did not examine Daniel at that time. Mrs. Drogo was standing, patting Daniel in the crib during her conversation with Dr. Beg. She testified that she believes Dr. Beg saw the stiffness in Daniel's arms.

At approximately 3:00 p.m., Nurse O'Connor recalled that Daniel's fever was above 40C., and she spoke to Dr. Beg at that time, although Dr. Beg denies being notified about this. Nurse O'Connor testified that she needed a physician's order to administer Tylenol and that Dr. Beg wrote one. The hospital records, however, indicate an order for Tylenol was written by Dr. Rose at 1:00 p.m. Tylenol was administered at 3:00 p.m.

Other than his orders on Daniel's admission, Dr. Beg did not document any other visit to Daniel's room until the next day. He testified that there was no need to do so if he was responding briefly to a request by a child's parents. Since there is no specific record of the number of times, nor the time of day that he saw Daniel, the Court has relied on the parents' recollections.

From 3:00 to 5:00 p.m., Daniel was inconsolable, according to his mother. When she held him, he was better but still fussy. His arms were too stiff to cuddle him and he would not nurse. He continued to get worse. The nurse gave him something which temporarily lowered his fever, but then his fever rose again. On the "Patient Care and Observation Sheet," between 1530 - 2330 (3:30 - 11:30 p.m.), Nurse Volcko wrote "tachycardic [with] fever" and "ant. font. soft & full," and that he was sleepy, lethargic, and irritable.

At 5:00 p.m., Daniel's arms were still stiff and he would not eat. Mr. Drogo arrived at the hospital. When he took Daniel from his wife, he said Daniel flinched. Mrs. Drogo went to teach a course at University College nearby, and Mr. Drogo held Daniel until she returned. Mrs. Drogo planned on stopping back at the hospital and then going home to feed her other children. She returned about 7:00 p.m. When she walked into the room, she saw Mr. Drogo holding Daniel. She could tell he was worse. He was no longer fussy; he was lethargic. His arms were sticking out, and his fontanelle was bulging. Mrs. Drogo took Daniel and Mr. Drogo went to get someone. It seemed as though his fever was up and when she tried to feed him, Mrs. Drogo said he could not turn, it looked like he was in pain. She had never seen a baby like that.

Dr. Beg returned to speak with the parents. Mrs. Drogo said Daniel was getting worse and she told him about the symptoms. She wanted him to be tested for meningitis; it had not yet been ruled out. Dr. Beg said there were no set symptoms of meningitis. He said he would call someone, perhaps the pediatrician's office, about the test. Dr. Beg did not examine Daniel. Mr. Drogo followed Dr. Beg into the hallway and reiterated the concerns his wife expressed about Daniel's worsening condition. He requested that Daniel be seen by another physician.

About 20 minutes later, Dr. Beg returned and said they weren't going to test for meningitis because it wasn't necessary. Dr. Beg still had not done any physical examination of Daniel. Mrs. Drogo stayed at the hospital, and Mr. Drogo went home to be with their other children. Mrs. Drogo did not put Daniel down.

In his deposition testimony, Dr. Beg could not consistently recall whether he spoke with Dr. Dunbar, Daniel's pediatrician and the admitting physician. Dr. Dunbar testified that she spoke to a female resident to arrange the direct admit. That resident was, apparently, Dr. Tsoline, who relayed the admitting information to Dr. Beg. Later that afternoon, before Dr. Dunbar left her office, she recalled speaking to a male, second-year resident about Daniel, specifically his fontanelle, and whether or not to perform a lumbar puncture. This resident told Dr. Dunbar that Daniel's mother was concerned about meningitis. That resident also told Dr. Dunbar that he had felt Daniel's head and the fontanelle was not bulging, and Daniel seemed comfortable being held by mom. The resident indicated he felt a lumbar puncture was not needed at that point. The timing of this call, based upon Dr. Dunbar's testimony, would have been before 5:00 p.m., not after 7:00 p.m. Although Dr. Beg noted in the hospital chart the next morning that he spoke to Dr. Dunbar, he testified that he did not actually speak to her, what he documented was what he was told by someone else. According to Dr. Beg, he and Dr. Rose (a woman) were the residents in the pediatric ward that afternoon and evening.

Thereafter, Daniel's condition was not checked by anyone until midnight. Daniel's condition did not improve during this time. Nurse Kerryanna Kershner went on duty at 11:30 that night and checked on the Drogos. At midnight, she administered more Kefzol and examined Daniel. In her observations, she noted: "Anterior fontanelle bulging, soft & pulsatile. Dr. Mirza Beg aware."(17) In her deposition, she did not specifically remember speaking with him but it was her custom and practice to make a note of such things.

Between 2:00 and 2:45 a.m., Mrs. Drogo heard Daniel gasp and she called the nurse who came in and yelled code. Daniel was convulsing and not breathing. They were not sure if Daniel would live. Mrs. Drogo called her husband to come back to the hospital. At 2:45 a.m., on March 1, almost 14 hours after Daniel was admitted, Dr. Beg wrote an entry in the chart. It reads, "On examination [patient] was febrile [with] full ant[erior] fontanelle. P[atient's] condition discussed [with] Dr. Dunbar. She advised continue present management and hold LP now."(18) Dr. Beg testified that this information was from the time of Daniel's admission. He denied ever speaking directly with Dr. Dunbar, instead including information he claimed was told to him by someone else. The rest of that notation documented the events just prior to and during the seizure.

Daniel was taken to the Pediatric Intensive Care Unit (hereinafter PICU). A CT scan was done. Daniel was in the PICU for five- to- six days. At some point during Daniel's stay in the PICU, Mrs. Drogo was with him when there was a loud noise, and all the babies flinched except Daniel. Mrs. Drogo had never known this to happen before and she reported it. Tests were done and Mrs. Drogo was told Daniel had lost his hearing but it might be temporary, caused by fluid buildup.

Daniel was diagnosed with pneumococcal meningitis. The extent of his impairment due to this infection was unknown during his hospitalization. Thereafter, the Drogos were referred to numerous specialists for testing and treatment. Testing revealed severe hearing loss - total bilateral deafness. Some time later, he received cochlear implants. Daniel was also placed on seizure medication and given speech therapy, occupational therapy, and physical therapy. Mrs. Drogo testified that Daniel has trouble speaking because he has difficulty processing what he hears, and he also has gross motor skill deficits. At the time of trial, Daniel was no longer on seizure medication.

Claimants called three medical experts. One of Claimants' experts, Santa A. Johnston, M.D., is a Board Certified Pediatric Critical Care Physician, and practices in Norfolk, Virginia. Dr. Angelo Scotti, is a physician, Board Certified in Internal Medicine and Infectious Diseases. Dr. Scotti practices Internal Medicine and Pediatrics, and as an Infectious Disease Specialist in New Jersey. Claimants also called Heather Martin, who is a Nurse Practitioner and Director of Pediatric Nursing Quality Assurance and the Emergency Department Quality Assurance Coordinator at Strong Memorial Hospital in Rochester, New York.

Both Dr. Johnston and Dr. Scotti described pneumococcal meningitis and its symptoms. Typically, the pneumococcal organism enters the spinal fluid via the bloodstream and infects the outer lining of the brain, the meninges. In a five-month-old, the signs and symptoms of this disease are fever, irritability, anorexia, bulging fontanelle, stiffness, and lethargy. Both physicians indicated these are relatively nonspecific symptoms, meaning they can be the result of a number of illnesses - except for the bulging fontanelle and the extent of inconsolable irritability. Dr. Scotti noted that infants with meningitis rarely get nuchal rigidity or neck stiffness as adults do. As the infection progresses, the symptoms get worse and seizures can occur. A spinal tap or lumbar puncture, where a sample of the cerebral spinal fluid is withdrawn, is the definitive test for meningitis, although, a blood culture is usually done as well. The lumbar puncture takes about five minutes to complete, and the primary risks of the procedure are bleeding or infection. Dr. Scotti said when the lumbar puncture is done, the intracranial pressure is tested. Increased intracranial pressure can occur with meningitis. At the time the test is taken, the appearance of the fluid is also evaluated. If the spinal fluid is cloudy instead of clear, it is indicative of inflammation and bacterial meningitis. The spinal fluid is then sent to the laboratory for additional testing. Within minutes, the lab can have the results of sugar, protein, and white blood cell counts. If the sugar is low, the protein high, and there are white blood cells present, the results are highly suggestive of bacterial meningitis.

The treatment of choice for pneumococcal meningitis in a five-month-old in 2000 would be two antibiotics: Vancomycin and Cefotaxime. Dr. Scotti said Claforan could also be used. Dr. Johnston said the two drugs are used in combination to overcome the organisms' resistance to antibiotics and to cover all the likely organisms until the exact organism is determined after further testing. A steroid, Dexamethasone, can also be used to reduce the body's inflammatory response. Dr. Scotti testified that many of the neurological problems that meningitis can cause are due to inflammation. Steroid use results in less damage. The failure to treat this illness is fatal and even a delay in treatment can result in brain injury.

Dr. Johnston was asked about the specifics of this case. She indicated that from the nursing note made on Daniel's assessment sheet(19) at 12:35 p.m. Daniel's irritability was a "huge red flag for meningitis."(20) Given the seriousness of this illness, "meningitis should be ruled out before you go any further."(21) The doctor explained that meningitis is a catastrophic illness and delay in treatment increases the risks of permanent injuries.

Dr. Johnston also pointed to the nurse's notation that Daniel's urine was dark and concentrated. Although nonspecific, it can indicate a problem with the secretion by the brain of an antidiuretic hormone which can be consistent with meningitis.

On admission Daniel had anorexia, irritability, and vomiting. Dr. Johnston testified these systemic symptoms are unusual for a child with only a UTI. Daniel's heart rate and blood pressure readings were also grossly abnormal. Nowhere in the admitting records does the assessment and plan for treatment address what Dr. Johnston described as grossly abnormal vital signs.

Dr. Johnston opined that good and accepted standards of medical practice required a further evaluation of Daniel on admission based upon the presenting symptoms, vital signs, and lab results. Urosepsis and meningitis should have been on the differential diagnosis and the failure to include them was a deviation from the standard of care. The plan of treatment also did not meet the accepted standard of care.

The antibiotic, Kefzol, which was administered to Daniel was not used to treat meningitis in 2000. If Daniel had been treated for meningitis at 1:00 p.m., Dr. Johnston testified, the consequences he suffered would not have been as severe.

At 3:00 p.m., Daniel's temperature rose to 104.5 F. As a result, Dr. Johnston said the medical providers needed to reevaluate their admitting diagnosis of UTI; the failure to do so was a deviation from the acceptable standard of care. The nurses should have reported the temperature increase to a doctor as set forth in the physicians orders.(22) Again, meningitis should have been considered and a lumbar puncture done. The failure to reexamine this child at any time thereafter, in light of the continuing symptoms and parental concerns that Daniel was getting worse, failed to meet the standard of care.

Dr. Johnston also opined that the child's primary care physician should have been consulted about the changes in his condition. This failure, too, was a deviation from the standard of care, in her opinion. Documentation of such contact and any treatment changes are required to be made in the patient's chart.

Dr. Johnston opined that Daniel's symptoms indicated a central nervous system infection. A lumbar puncture should have been performed and his medication changed to address the likelihood of meningitis. Dr. Johnston also noted that even after Daniel was given Tylenol at 3:00, he still had a fever at 5:00 p.m.

It was Dr. Johnston's opinion that the failure to do a lumbar puncture and to administer Vancomycin, Cefotaxime, and Dexamethasone at 1:00 p.m., after 3:00 p.m., or between 7:00 and 8:00 p.m., were competent-producing causes of Daniel's seizure and his neurologic sequelae including his hearing loss, developmental delay, and gross motor deficit. The failure to contact Daniel's primary care physician at 3:00 p.m., was also a competent-producing cause of Daniel's injuries.

Dr. Scotti testified that with bacterial meningitis, the sooner a patient is treated the possibility of permanent sequelae diminishes. He testified that if bacterial meningitis is treated late, the damage can include brain injury, which can take the form of problems with muscular function. It can take the form of mental inability, retardation, cognitive problems, and memory problems. It can take the form of losing any one of your cranial nerves, blindness, deafness,


Dr. Scotti said that from the perspective of the central nervous system, pneumococcal meningitis is the worst form of meningitis. Sometimes, patients that have pneumococcal meningitis have previously had pneumonia as Daniel had.

Dr. Scotti voiced concern about Daniel's care from admission. He felt Daniel should have been admitted to the PICU because of his elevated temperature and heart rate and in conjunction with his history. Since Daniel had been on antibiotics for a UTI and pneumonia, there was an implication that his illness was resistant to those medications. In Dr. Scotti's opinion, the failure to put Daniel in the PICU was a deviation from good and acceptable standards of practice.

Both Dr. Johnston and Dr. Scotti felt that when Daniel's temperature increased to 40C., at about 3:00 p.m., a reevaluation of his admitting diagnosis was required, and the failure to do so was a deviation from good and accepted practice. They also both testified that the failure to administer Dexamethosone, Vancomycin, and Cefotaxime at that time deviated from acceptable practice. Dr. Scotti was confident that had a lumbar puncture been done about 3:00 p.m., the results could have been obtained within 15 minutes and would have shown low sugar, high protein, and abnormal cells indicating meningitis. The continued failure to reevaluate Daniel and administer the other antibiotics before he suffered a seizure were deviations from the standard of care and competent-producing causes of Daniel's seizure and resulting neurological injuries.

Dr. Scotti also noted that Drs. Rose and Beg were not scribes but were responsible for developing their own differential diagnoses based upon their own examinations of the patient.

Claimants' nursing expert, Heather A. Martin, testified that a urine sample taken from Daniel upon his admission was negative for nitrates. This test result should have been available within two hours and does not support a UTI diagnosis. She opined that the failure of the nurse who documented the urinalysis result to inform the doctors of the inconsistency was a deviation from the accepted standards of nursing practice. Ms. Martin believed the nurse should have noted the significance of the lab results, if she understood the implications of those results.

Similarly, the blood test results from the same time frame showed 21 bands present which are indicative of significant infection. This finding, combined with the lack of nitrates, should have alerted the nurses that the infection was not coming from his urine. These blood test results also should have been presented to a physician. The failure to do so was a deviation from accepted nursing standards.

Ms. Martin testified there were other deviations from good and accepted nursing practice:

The failure to advise a doctor of Daniel's temperature rising above 38C., at 7 and 11:00 p.m.;

The failure to notify a doctor that Daniel's urinalysis and temperature did not match the working diagnosis;

The failure to heed the concerns expressed by Daniel's parents, and;

The failure to go up the chain of command to attempt to get a change in treatment for Daniel.

The defense also called two doctors and a nurse as experts. Dr. Paul J. Edelson is a

Medical Officer with the Centers for Disease Control (CDC) and is an Adjunct Professor at Columbia University in the Pediatrics Department. Dr. Martha L. Lepow is a Professor of Pediatrics and a Consultant in Pediatric Infectious Disease at Albany Medical College. Both doctors are Board Certified in Pediatrics and Pediatric Infectious Diseases as a sub-specialty.

Dr. Edelson testified about the mortality and morbidity - long-term complications associated with pneumococcal meningitis. He agreed with Dr. Scotti about the seriousness of this disease, but noted the mortality rate has decreased due to more effective antibiotics, specifically, the third-generation of cephalosporins. Dr. Edelson indicated that 30 to 40 percent of meningitis survivors are left with hearing loss, seizure disorders, mental retardation, motor abnormalities, vision and speech abnormalities, hydrocephalus, and cranial nerve abnormalities. He generally described the symptoms of the disease - similar to the other doctors, but did not find stiffness to be a symptom of meningitis in an infant.

Dr. Edelson explained that the disease in a child can have a fulminant presentation - a rapid onset of symptoms and rapid deterioration - which generally results in a poor prognosis with a high mortality rate. They can also have a slower or indolent presentation that develops over a few days. Dr. Edelson said the mortality rate with an indolent presentation was low, but the morbidity can be significant. Typically, the child will have upper respiratory infection symptoms and, over the course of a day or two, become more ill. For Dr. Edelson, a key sign is a child who is lethargic and cannot be comforted by the mother; although this indicates a very ill child and is not specific to meningitis. Some children have an intermediate presentation that develops between one- to- two days. Dr. Edelson acknowledged on cross-examination that Daniel presented with signs of meningitis, fever, decreased intake or lack of interest in feeding, vomiting, irritability, inability to be consoled, and lethargy. Dr. Edelson also noted that a lab result showing low sodium could also be related to meningitis because the antidiuretic hormone causes the retention of fluid, or it could also be the result of too much IV fluid. There is no indication that the doctors considered or investigated the low sodium count.

When asked about the relationship between Daniel having pneumonia in early February and his pneumococcal meningitis, Dr. Edelson believed that there was no connection. He stated that most pneumonia in children is viral, not bacterial, and that Daniel's course was consistent with a virus. The records indicate that Daniel had made a full recovery, so there was no reason to associate that illness with his meningitis.

Dr. Edelson also disagreed with Claimants' experts about the appropriate treatment for pneumococcal meningitis in infants in 2000. He said that the standard was to use a third-generation cephalosporin such as Cephalexin or Ceftriaxone alone without Vancomycin. Since then, depending upon the community, the bacteria's resistance level may warrant the use of Vancomycin initially, before a bacterial diagnosis. The third-generation cephalosporins are still effective alone if the central nervous system is not infected, but to get enough antibiotics to penetrate the central nervous system with enough concentration to kill the bacteria, Vancomycin is necessary.

Dr. Edelson was asked about the use of steroids in an infant with pneumococcal meningitis to control the inflammatory response from the infection. He explained that the studies prior to 2000 found a benefit predominantly with children with H-flu meningitis. There was less consensus with pneumococcal meningitis. Dr. Edelson opined the scientific evidence did not support a benefit for children with pneumococcal meningitis or a reduced risk of hearing loss.

Dr. Edelson testified that prompt administration of antibiotics, within 12 hours of onset, lowers the mortality rate of insidious pneumococcal meningitis but does not impact on morbidity. Discussing hearing loss, Dr. Edelson said meningitis is the leading cause of acquired hearing loss in children with about 30 percent of children suffering this complication as a survivor of pneumococcal meningitis. Dr. Edelson testified, however, there is no correlation between the hearing loss and the length of time the children were ill before antibiotics were given. Except for hydrocephalus, Dr. Edelson stated there is no consistent relationship between the time of onset, the timing of treatment, and the outcome. Dr. Edelson also testified that there is no relationship between the likelihood of seizure and the timing of antibiotic treatment.

Dr. Edelson also opined that the height of a fever is not indicative of the severity of the illness and did not reflect a deteriorating condition in Daniel. Fevers accompany bacterial infections and other illnesses and vary over the course of the day.

The urine culture taken by Dr. Freshman grew an E-coli organism with 75,000 colonies per milliliter of urine. Because it was done by catheterization, which is a means of collection which has less risk of contamination, this minimum level of colonization would be considered positive for a UTI, according to Dr. Edelson.(23) Symptoms for the UTI would be the same nonspecific range of symptoms that occur with other bacterial infections, including meningitis. Treatment for a UTI would be antibiotics and Kefzol is an appropriate drug. If the infant was vomiting, as Daniel was, the antibiotic would be administered intravenously. Dr. Edelson opined it can take 48- to- 72 hours to see a clinical response to treatment.

In Dr. Edelson's opinion with a clinical diagnosis of a UTI, there was no reason to do a lumbar puncture absent a change in the level of the child's consciousness. The seizure was a change in Daniel's clinical status, and at that time, a meningitis diagnosis should have been reconsidered. Dr. Edelson did acknowledge that despite Daniel having symptoms of meningitis and the indications for performing a lumbar puncture on admission, Dr. Beg or Dr. Rose did nothing to rule out meningitis.

The parental reporting of stiffness in Daniel's arms or his movement was not indicative of meningitis but, more likely, in Dr. Edelson's opinion, the result of his fever. Nor was the soft, pulsatile, bulging fontanelle indicative of meningitis. Rather, the fontanelle, according to Dr. Edelson, would be hard or tense with meningitis. He had no explanation for Daniel's bulging fontanelle, other than his hypothesis it was attributable to the baby's crying.

Dr. Martha L. Lepow was Defendant's other expert physician. She was called to discuss Daniel's hearing loss and its possible prevention. In her opinion, Daniel's hearing loss would not have been prevented if appropriate antibiotics had been given before March 1, 2000. Dr. Lepow explained that the bacteria travel through the bloodstream into the meninges which covers the brain. There is a connection between where the cerebral spinal fluid is between the meninges and the cochlea in the inner ear. There is a small passage and the bacteria get into the ear quickly; as a result, hearing loss can occur even before other symptoms arise. In her experience and her review of studies, hearing loss and the appropriate administration of antibiotics are not related. In other words, antibiotic treatment does not affect hearing loss.

The other neurological sequelae may have been prevented by earlier antibiotic treatment, in Dr. Lepow's opinion. Dr. Lepow agreed with Claimants that prompt treatment of bacterial meningitis in children is the standard of care, and that prompt treatment of pneumococcal meningitis lessens the risk of long-term sequelae. She also agreed that a delay in starting

antimicrobial therapy in some patients, or in sterilizing cerebral spinal fluid cultures has been recognized to increase the rate of adverse symptoms.(24)

In 1998, Dr. Lepow authored a chapter in a textbook, A Guide to the Primary Care of Neurological Disorders, in which she wrote "Dexamethasone [a steroid] may be used in children over two months of age for H-flu Type B as well as for meningococcal and pneumococcal meningitis in children to prevent deafness."(25) At trial, she renounced her writing stating that the studies regarding use of steroids showed beneficial results for use in H-flu but not necessarily pneumococcal meningitis.

The State's nursing expert was Donna Joanne Parks, who has a Master's Degree in Nursing as a Pediatric Clinic Nurse Specialist currently employed at Crouse Hospital in Syracuse as an Education Coordinator. She had prior clinical experience in various settings. As part of her current duties, she teaches nursing documentation. She reviewed Daniel's chart and found the nurses' screening assessment, plan of care, and patient observation notes consistent with the standard of care. The administration of ordered medications, Kefzol and Tylenol, was timely. In her opinion, the standard of care for nursing documentation was met. She did acknowledge that there was no notation that a doctor was notified the three times it was noted that Daniel's temperature exceeded 38.5C., in accordance with the physician's orders.

Nurse Parks was not given Mr. or Mrs. Drogo's depositions to review in preparing for her testimony and, therefore, did not know of the concerns Mrs. Drogo shared with the nursing staff on February 29. Nurse Park acknowledged the chart did not reflect Daniel's mother's concern that he was getting sicker. Nurse Parks agreed that a nurse has an independent duty to the patient, and that if a nurse feels the doctor is incorrect, there is a chain of command which can be used to alert others to a possible problem. Ultimately, Nurse Parks said that the documentation should be accurate, timely, and complete but does not need to contain every conversation held regarding a patient.


To establish liability in a medical malpractice case, it is Claimants' burden to show that Defendant deviated or departed from good and accepted medical practice which proximately caused Claimants' injuries (Rivera v City of New York, 80 AD3d 595 [2d Dept 2011]; Alicea v Ligouri, 54 AD3d 784 [2d Dept 2008]). The proof must be sufficient to allow a reasonable person to conclude that it is more likely than not that Defendant's deviation from the standard of care caused Claimants' injury (Johnson v Jamaica Hosp. Med. Ctr., 21 AD3d 881, 883 [2005]). After considering all of the documentary evidence and testimony, the Court finds Claimants have met their burden.

In reviewing a case such as this, contemporaneous records are often very helpful and persuasive in determining the most accurate representation of events before the commencement of a lawsuit or the risk of a defensive posture - even unconscious and unintentional - which may taint memories. Unfortunately, in this case the medical records show that after admission Daniel was not examined or fully evaluated by a physician for more than 13 hours and only then when he suffered a seizure. The nurses made a written assessment of Daniel's condition once during each shift and checked his temperature every two hours and vital signs every four hours. Nurse O'Connor indicated during her deposition that during her shift, which ended at 3:30 p.m., she checked on Daniel several times in addition to the documented observations. Although Mrs. Drogo recalls speaking with Dr. Beg at least once that afternoon and again after 7:00 p.m., at no time did Dr. Beg examine Daniel or feel his fontanelle. Despite this, Dr. Beg represented to the pediatrician, Dr. Dunbar, before 5:00 p.m. that day, that Daniel's fontanelle was not bulging and although irritable, he was comforted by his mother. Based upon this, Dr. Dunbar felt a lumbar puncture to rule out meningitis was unnecessary at that time. Dr. Beg denies speaking with Dr. Dunbar but also lacks any recollection of seeing Daniel that day.

At some time after 3:30 p.m., when the nurse on the evening shift assessed Daniel, and before Nurse Kershner's assessment at 11:30 p.m., Daniel's fontanelle became bulging. Every expert acknowledged this as a symptom of meningitis and every practitioner recognized it as suggestive of meningitis. The bulging fontanelle was unrelated to other systemic bacterial infections to which Daniel's other symptoms could be attributed. Even more telling is the fact that after Nurse Kershner notified Dr. Beg of Daniel's bulging fontanelle, coupled with all of Daniel's other symptoms, Dr. Beg did not examine the infant, order a lumbar puncture test for meningitis as advised by Dr. Dunbar, or consult with the pediatricians. Dr. Edelson, after describing a bulging fontanelle as a symptom of meningitis, then conditioned his response on redirect to a "typically" tense or a hard, bulging fontanelle. He had no other explanation for the pulsatile bulging fontanelle other than suggesting it was the result of Daniel's crying. How or why crying could cause a bulging in the membranes that cover the brain under the skull was not explained.

Although, by all accounts, Daniel presented to the hospital on February 29, 2000, with most of the symptoms of meningitis, in the assessment and plan (A/P) portion of the progress notes signed by Dr. Rose on Daniel's admission, he was definitively diagnosed with a urinary tract infection. There is no indication either Dr. Rose or Dr. Beg considered meningitis. Although the results of the pediatrician's catheterized urine sample showed 75,000 colonies per millimeter of urine, the minimum necessary, according to Dr. Edelson, to diagnose a UTI, the urinalysis performed at the hospital on February 29, showed no growth. These urine test results, an increasing fever, relieved only temporarily by Tylenol, the parents' impression that Daniel was getting worse because he was more irritable, showed signs of stiffness and then lethargy, coupled with the seriousness of meningitis in comparison to a urinary tract infection supports finding there was a deviation from the standard of care. Dr. Beg had a duty to reexamine Daniel for meningitis, perform a lumbar puncture to definitively test for it, or to contact the pediatrician to address Daniel's condition by early evening, and certainly before he seized the next morning. Although a parent's opinion, lacking in medical expertise, cannot be determinative of the medical course required, a parent's knowledge of what is normal behavior or a typical condition of the child must come into play in assessing the need for further evaluation.

The parents also described Daniel developing stiffening of his limbs during the afternoon and evening of February 29, 2000. This was not documented in the medical records, although given the span of time between documented evaluations by the nurses, the stiffening may not have been apparent at 3:30 and, at the time of Nurse Kershner's assessment, the infant was sleeping. Claimants' experts and, interestingly, Dr. Beg all described stiffness as an indication of meningitis. Dr. Edelson disagreed but had no explanation for the stiffness the parents observed other than seizure or muscle aches from a febrile bacterial condition. It would seem that the development of this symptom would warrant at least a re-evaluation of the infant or the reconsideration of the UTI diagnosis, since even Dr. Beg felt this to be a symptom of meningitis. Yet, this did not occur. Instead, Dr. Beg, who recognized that, as a medical doctor, he had an independent obligation to evaluate a patient based upon the symptoms and condition found upon examination, tries to insulate himself with the diagnosis the pediatrician, not employed by the State, made before noon that day. The shield from liability for the medical care provided by the admitting physician does not protect the State from liability here, where that admitting physician was not present in the hospital and did not have up-to-date information about changes to the patient's condition over a significant passage of time after admission. A doctor cannot stick his head in the sand and ignore a patient's evolving medical condition in reliance upon the admitting doctor's diagnosis and plan of care where the standard of care required him to exercise his independent medical judgment and re-evaluate the admitting doctor's diagnosis. Morever, Dr. Beg failed to even follow Dr. Dunbar's order - if irritability increases or he develops a bulging fontanelle, a lumbar puncture should be performed. Both conditions occurred, yet, Dr. Beg took no action until Daniel suffered a seizure. Dr. Beg's care of Daniel fell below the standard of care.

Claimants have also established that as a result of this deviation from the standard of care, Daniel suffered injuries. Since, upon stipulation of the parties, this claim was bifurcated, the full extent of Claimants' injuries will be developed at a damages trial.

Accordingly, based upon the foregoing, the Defendant is 100% liable for the injuries Daniel suffered as a result of the Defendant's deviation from the standard of care.

A damages trial will be scheduled as soon as possible.


December 16, 2011

Syracuse, New York


Judge of the Court of Claims

1. Exhibit 12.

2. Exhibit 14.

3. Various medical witnesses explained that Daniel's urine would flow backwards up the ureter toward the kidney. Grade 3 reflux is substantial reflux with risk of infection of the kidney in addition to the urinary tract.

4. The records reflect two visits with Dr. Mathews on December 30, 1999 and March 19, 2000 (Exhibit 16).

5. Exhibit 12.

6. Exhibit 20, pp. 19-20.

7. The presence of pathogenic organisms or their toxins in the blood or tissues from infected urine (Stedman's Medical Dictionary, p. 1598 & 1895 [26th ed. 1995]).

8. Exhibit 31.

9. Exhibit 2.

10. Exhibit 2.

11. Exhibit 3.

12. Exhibit 3.

13. Exhibit 4.

14. A House Officer is a resident, in this case either Dr. Rose or Dr. Beg (Exhibit 23).

15. Daniel's heart rate was above 200 on admission.

16. Trial Transcript, October 20, 2009, Mrs. Drogo, p. 41.

17. Exhibit 1, p. 150.

18. Exhibit 2, Exhibit 23, p. 28.

19. Exhibit 9.

20. Transcript, Day 2, p. 326

21. Transcript, Day 2, p. 326.

22. Exhibit 3.

23. Where the urine sample is taken by a "clean catch" 100,000 or more colonies per milliliter of urine is the criterium necessary to support the diagnosis of a urinary tract infection (Transcript, Day 2, p. 208).

24. Trial Transcript, October 23, 2009, p. 464.

25. Trial Transcript, October 23, 2009, p. 472.