Opinion
# 2011-045-509 Claim No. 116699
12-20-2011
SANUTH v. THE STATE OF NEW YORK
Synopsis
trial decision, claimant injured at home then went to hospital where his injury was allegedly exacerbated. Case information
UID: 2011-045-509 Claimant(s): JOHN SANUTH Claimant short SANUTH name: Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote The caption has been amended, sua sponte, to reflect the (defendant name) : State of New York as the only properly named defendant. Third-party claimant(s): Third-party defendant(s): Claim number(s): 116699 Motion number(s): Cross-motion number(s): Judge: Gina M. Lopez-Summa Claimant's O'Rourke & Hansen, PLLC attorney: By: James J. O'Rourke, Esq. Defendant's Hon. Eric T. Schneiderman, Attorney General attorney: By: Bridget Farrell, Assistant Attorney General Third-party defendant's attorney: Signature date: December 20, 2011 City: Hauppauge Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
A bifurcated trial concerning the issue of liability only was held in this matter. The subject claim arose on January 30, 2008 at approximately 3:30 a.m., when claimant, John Sanuth was injured at Stony Brook University Hospital.
Claimant testified that on January 29, 2008 he was injured when he fell down the stairs in his home. Claimant stated that he did not know the time of his fall but that he ultimately arrived at the Stony Brook University Hospital Emergency Room later that evening. While at the hospital, claimant was seen by a physician, taken for x-rays of his left leg and then returned to the emergency room. Claimant was informed that his leg was fractured, that the leg would need to be set and then that he would need surgery for the leg. Claimant stated that his leg was placed in a cast and another x-ray was taken to insure that it was set properly. Claimant testified that after the x-ray he was returned to the emergency room and a resident informed him that he was going to go up to surgery. Claimant also testified that he was not given any pain medication even though he was experiencing a lot of pain. Claimant stated that after a few hours passed he was informed that there would be no surgery that evening and that he was being discharged from the hospital. Claimant testified that he told a doctor that he had no ride home so he stayed on a gurney and slept for a little while. Claimant explained that he believed he was given a voucher for a cab ride home. Claimant then stated at approximately 3:30 a.m., a person he believed to be a nurse came over to him and informed him that he had to be moved. She returned with a wheelchair, helped him into the wheelchair and elevated his leg 45 degrees. Claimant testified that she backed up the wheelchair, turned it and his left foot came into contact with the wall. Claimant described it as a hard contact that lasted for a few seconds. Claimant also testified that as he was being wheeled backward his left leg hit the wall and was dragged for approximately 3 feet.
Claimant testified that he yelled when his leg hit the wall and he informed the woman that his leg hit the wall. He stated that he felt two bones "pop and then weld up against the side of the cast." Claimant testified that she continued to wheel him towards the lobby and then permitted the wheelchair to roll unassisted toward the security guard. Claimant explained that he informed the security guard about what happened and the security guard wheeled claimant back to admissions. Claimant testified that he spoke to admissions and was sent back to the emergency department. He then spoke to Dr. Kottmeier and told him what occurred. Claimant testified that as a result he was taken for left leg x-rays and was informed that his leg needed to be reset. Claimant explained that his cast was cut off, his leg was reset and he was taken back for additional x-rays. When claimant returned to the emergency room, he states that he was told that the leg did not reset correctly so it had to be reset for a third time. Claimant testified he had another x-ray done but it still was not set correctly so he went to surgery.
Dr. John Felix Waller, an Orthopedic Surgeon testified on behalf of defendant. Dr. Waller reviewed all of the medical records and the x-ray films taken at Stony Brook which were admitted into evidence. The records established that claimant was admitted to the emergency room on January 29, 2008 at 9:20 p.m. with a left ankle fracture. Claimant was given 6 mg of morphine in an IV push at 9:45 p.m. and thereafter taken for x-rays. Dr. Waller explained that the first x-ray taken at 9:50 p.m. showed a spiral fracture and a displaced talus with tearing of deltoid ligaments. He explained that surgery would be necessary because it was a sublux fracture and an unstable condition (Def Exhs A-C). Dr. Waller also testified that 6 mg push of morphine is a large dose and would heavily sedate an individual or put them to sleep. He also reviewed the x-ray films taken at 12:39 a.m. which were taken while claimant's leg was in a cast. He testified that the ankle and the talus were still displaced meaning that the ankle was still partly out of joint (Def Exhs G-I). He explained that these x-rays show an injury that is consistent with a fall down the stairs and do not show an adequate reduction. He explained that because the reduction was inadequate, it could not be the sole treatment and that surgery would be necessary.
Dr. Waller opined that once there was swelling and a fracture blister appeared, surgery would have to be delayed. He stated that there was no evidence of a fracture blister in the medical records prior to claimant's discharge. He explained that a fracture blister is a sign of skin compromise and lack of good blood flow and it would be dangerous to operate through or around such a blister. He testified that the fracture blister was caused by the original fracture and swelling inside the cast.
Dr. Waller testified that the bang into the wall as claimant described could not have caused any of the damage shown in the x-rays taken from January 29 through the 30th. He explained that to further displace the ankle there would need to be a direct head-on hit to the bottom of the cast with enough force to break the cast. He explained that the cast was not broken and therefore it still provided support. Dr. Waller also testified that a patient would not be able to feel bones move if they were in a cast unless it was a severe hit and the cast was broken.
Dr. Waller also reviewed x-rays taken at 1:49 p.m. on January 30, 2008. He testified that these x-rays also show that the ankle was displaced. He explained that there was a difference in these films versus the x-rays taken at 12:39 a.m. in that the earlier films showed a better reduction. He opined with a reasonable degree of medical certainty that the change was due to the fact that a cast is not rigid immobilization and an unstable fracture with torn ligaments could slip even in a cast (Def Exhs J & K). Dr. Waller testified that the bang into the wall as claimant described could not have caused any of the damage shown in the x-rays. At 7:30 p.m. additional x-rays were taken and at 8:30 p.m. orthopedics was paged because claimant continued to state that the cast was too tight. Claimant was reporting throbbing pain and his toes had mild edema. Dr. Waller reviewed x-ray films taken on January 30, 2008 at 7:38 p.m. Dr. Waller testified that these films showed no change from the last two sets of film (Def Exhs L-N).
The medical records also established that on January 31, 2008 a closed reduction under anesthesia was performed at 6:38 p.m. The post operative report states that the patient had a highly unstable displaced left ankle fracture as a result of his fall. The report continued that there was tissue swelling and a medical blister which prevented the performance of an open reduction surgery at that time. On February 4, 2008 an open reduction with internal fixation was performed on claimant's left ankle and concluded at 7:30 p.m. The inter-operative x-rays showed a good reduction of the ankle with good alignment.
Dr. Waller testified that claimant required surgery, to wit, an open reduction with internal fixation from the very outset due to the nature of the fracture. Dr. Waller explained that prior to the closed reduction on January 31, the ankle was always subluxed. Dr. Waller testified that in his review of the records, the treatment plan never changed. The medical records from the Department of Orthopedics on January 30, 2008 at 12:30 a.m. indicated that claimant needed an open reduction with internal fixation when the swelling decreases. Dr. Waller examined claimant on May 4, 2011 and found no deformity of ligaments but did find osteoarthritis in his ankle which he attributed to walking on the ankle too soon after surgery.
A discharge summary was prepared on February 8, 2008. It stated that "patient was initially closed reduced in the emergency room and placed in a long-leg cast. However, during his emergency room stay, the patient reports having been bumped into another person and subsequently developed left ankle pain again, and therefore orthopedics was called to evaluate the patient. Repeat x-rays demonstrated a subluxed left ankle fracture. After attempts to close reduce the patient in the emergency room under local anesthesia was unsuccessful, a decision was made to admit the patient and reduce the fracture in the operating room" (Exh 1-D).
To establish a prima facie case of negligence claimant must demonstrate by a preponderance of the credible evidence that defendant owed claimant a duty of care; defendant breached that duty; and the breach of that duty was a substantial factor in the events that caused the injury (see Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]).
The Court found much of claimant's testimony to be unreliable. Claimant's testimony is completely at odds with the hospital record. Claimant recounts that immediately upon his readmission he underwent a number of x-rays followed by resets of his leg and surgery. This recitation of events is belied by the medical records which indicate that x-rays were not taken until January 30, 2008 at 1:49 p.m.; then at 7:38 p.m. and at 10:27 p.m. and that a closed reduction under anesthesia was not performed until 6:38 p.m. on January 31, 2008. Claimant's narrative regarding the events surrounding his injury is also brought into question by the amount of pain medication he was given during his hospital stay. Although claimant stated that he was not given any pain medication the medical records indicate that claimant was in fact given pain medication. Specifically, on January 29, 2008 at 9:45 p.m. claimant was given 6 mg of morphine in an IV push, at 11:05 p.m. he was given an additional 5 mg of morphine in an IV push, at 12:00 a.m. another 4 mg of morphine was given and on January 30, 2008 at 2:30 a.m. another 4 mg of morphine was given. Dr. Waller testified that one 6 mg dose of morphine would heavily sedate an individual. Claimant's recollection of the time his leg was thrust into the wall would have coincided with the time period he was heavily sedated. Thus, the Court finds that claimant has failed to establish by a preponderance of the credible evidence that claimant's leg was caused to strike a hospital wall through the negligence of defendant.
Assuming arguendo that the Court found that claimant's leg did strike the wall, claimant has failed to establish that the bump into the wall was the proximate cause of claimant's injury. Claimant admitted that he was informed of the necessity for surgery when he was seen by a physician in the emergency room prior to the alleged injurious act. The medical records prior to the alleged bump into the wall also indicate that surgery would be necessary once the swelling decreased.
Additionally, even in a claim for negligence, where medical issues are not within the ordinary experience and knowledge of a fact finder, expert testimony is a required element of a prima facie case (Myers v State of New York, 46 AD3d 1030 [3d Dept 2007]). Defendant's expert witness testified that claimant's ankle fracture was subluxed prior to the alleged bump into the wall and also required surgery to stabilize the fracture prior to the alleged incident. Whether or not surgery was warranted and when it became warranted is not within the knowledge of the fact-finder and therefore claimant's testimony alone is insufficient to establish proximate cause.
Therefore, based upon the foregoing, the Court finds that claimant has failed to prove, by a preponderance of the credible evidence, his claim against defendant in this action. Accordingly the claim is hereby dismissed in its entirety.
The Clerk of the Court is directed to enter judgment accordingly.
December 20, 2011
Hauppauge, New York
Gina M. Lopez-Summa
Judge of the Court of Claims