Download MATHIS v. THE STATE OF NEW YORK, #2002-013

MATHIS v. THE STATE OF NEW YORK, #2002-013-515, Claim No. 96215
Synopsis
Trial testimony and evidence failed to establish that decisions made during the emergency room
treatment of a patient with a visceral artery aneurysm constituted medical malpractice.
Case Information
UID:
2002-013-515
Claimant(s):
ESTATE OF LUELLA MATHIS
Claimant short name:
MATHIS
Footnote (claimant name) :
Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s):
96215
Motion number(s):
Cross-motion number(s):
Judge:
PHILIP J. PATTI
Claimant’s attorney:
WILLIAM D. WEISBERG, P.C.
BY: ANDREW VELONIS, ESQ.
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: MICHAEL R. O’NEILL
Assistant Attorney General
Defendant’s attorney:
Third-party defendant’s attorney:
Signature date:
July 18, 2002
City:
Rochester
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)
Decision
On May 17, 1995, Luella Mathis, a 58-year-old1 mother of six, was brought to the emergency
room of the SUNY Health Science Center (frequently referred to as “Upstate”) in Syracuse, New York. She had
called 911 shortly after midnight and was transported by ambulance, arriving at the hospital at 1:42 a.m. At
approximately 5:00 a.m., as she was being readied for discharge, she experienced an episode of distressing
symptoms similar to those that had led her to call 911, and the decision was made to admit her to the hospital. As
she was being examined shortly after being admitted to the hospital ward at 9:00 a.m., she collapsed and was
immediately rushed to surgery. Mrs. Mathis died during surgery, shortly after noon. This claim was instituted on
behalf of her estate, based on allegations that the doctors and staff of Upstate were negligent in the care provided to
Mrs. Mathis.
All six of Mrs. Mathis’ adult children testified at trial. Elaine Mathis Gillard, who said that her
mother had previously had gall bladder problems and high blood pressure, stated that she received a call from her
mother shortly after the call had been made to 911. Her mother was aware that any of her children would have
come to take her to the hospital, but indicated that she was in such extreme pain, she wanted to get to the hospital the
quickest, fastest way.
Mrs. Gillard, who arrived at the hospital just as her mother was brought in, described her as being
in extreme pain. Her brother, Alex Mathis, arrived a short while later, and at trial he described his mother as being
in great discomfort, shivering and shaking. Another sister, Ophelia Mathis, has spoken with her mother while she
was being tended by paramedics, and when she later saw her in the emergency room, she was lying on her side,
curled up and obviously in great pain. She said that she had never heard Mrs. Mathis complain about abdominal
pain until that night. Wilhemina Jones, the third sister, also spoke with her mother before she left the house. She
testified that, because Mrs. Mathis had said in the past that she would never call 911 because she would be too
embarrassed, she knew the situation must be serious.
William Mathis went to Upstate shortly after 5:00 a.m. and he also observed Mrs. Mathis lying in
a fetal position and clearly in pain. She told him that they had tried to send her home, but that she didn’t want to go
because she felt too bad. He was present when she was examined by one of the doctors prior to leaving the
emergency room. He urged the doctor to give his mother something for the pain, but the doctor said that they
needed to first find out what was causing it. Before William left, his mother asked him to request that the nurses
bring her a bedpan because she wasn’t able to get up to get to the bathroom, and she also asked that he bring her
glasses from home.
David Mathis was also able to see his mother in the emergency room, just before she was being
transferred to the hospital ward, as they were unhooking the monitors. She asked why he wasn’t at work and told
him that she would be okay, that he wasn’t to worry and to go back to work. He testified that his mother indicated
she wanted to stay at the hospital, rather than going home, because she knew she was not feeling well.
After Mrs. Mathis had been transferred to the hospital ward, none of the family was able to see her
again. They were informed at one point that she had experienced a serious episode, possibly a heart attack, or that
her heart had stopped. Later, after Mrs. Mathis had gone into surgery, they were told by someone named Theresa
that it had not been a heart attack, but rather a bleeding ulcer, and that she would be fine in a few days. Shortly
afterwards, however, the surgeon informed them that their mother had passed away on the operating table.
MEDICAL RECORDS AND TREATING PHYSICIANS
The Prehospital Care Report (Exhibit A-2, section four, page numbered 7), which was completed
by the ambulance team, noted that they reached the home of Mrs. Mathis at 1:06 a.m. She was somewhat lethargic
and hypotensive and complained of abdominal pain that had begun late the evening before. The crew gave her
oxygen and 300 cc’s of saline; they also noted that her abdomen was distended, but found no abdominal mass. Her
systolic blood pressure was 60, but this improved after fluid intake. The ambulance arrived at the hospital at 1:42
a.m. Mrs. Mathis was classified as urgent, which required immediate attention but which, all medical witnesses
agreed, is a classification one step down from “emergent,” which is reserved for the most critical cases.
Once at the hospital, the nursing notes (Exhibit A-2. p. numbered 53) indicated that her blood
pressure was 126/84, and several minutes later, 108 systolic. Her past medical history, as indicated by the notes,
were hypertension and gastrointestinal problems, and her current medications were noted. She was sweating and
lethargic and had slurred speech, and she reported that she had not been able to have bowel movement for four days.
Milk of magnesia was administered, but no other medications were given. Blood and urine samples were taken, an
electrocardiogram was performed; and both chest and abdominal x-rays were taken. The results were not
remarkable, except that the abdominal x-ray showed stool throughout the colon (Exhibit A-2, p. 41); blood results
1
Some records refer to her as 60 or 61 years old.
that were slightly below or above average, including a hematocrit reading of 32, were later determined to be
consistent with her normal readings in the past (see, testimony of Dr. Olsson below). Her vital signs were taken
again around 4:34 a.m., and at that time her blood pressure readings were within normal range: 159/85 (right arm);
148/97 (lying down); 137/84 (sitting), and 150/93 (standing), and there were not other remarkable findings. By
4:45, oxygen and monitors were removed and Mrs. Mathis was being readied for discharge.
At approximately 5:00 a.m., however, as she was moving around getting dressed, Mrs. Mathis
began to moan and say that she felt like she was going to pass out. Her color paled; she became cool and clammy;
she slouched in her chair; and she did not respond to smelling salts. Her blood pressure reading at that point was
75/41, and her pulse was significantly slowed, but those values improved after she was placed in a position to allow
body fluids to go to the upper part of the body. She was returned to bed, monitors were reinstalled, and a repeat
EKG was performed. Her blood pressure readings immediately thereafter showed considerable change over a short
period of time:
5:00 a.m.
75/37
5:02 a.m.
110/71
5:04 a.m.
118/55
5:15 a.m.
74/44
5:35 a.m.
116/62
Additional fluids were administered and she again stabilized. Subsequent blood pressure readings, for the period
from 6:00 to 8:00 were within normal ranges.
Following the 5:00 a.m. episode, the decision was made to admit her to the hospital. The Medical
Attending Resident (MAR), Dr. Al-Andary, examined her around 6:00 a.m., at which time she was reported to be
more awake and able to answer his questions. At about 7:00 a.m., she had a large bowel movement and was
reported to be sleeping for long intervals after that; she was easily aroused, but lethargic when awake. By 8:30
a.m., Mrs. Mathis reported that she felt better as a result of the bowel movement, and at around 9:00 a.m., she was
transferred to the hospital ward.
In the final notes from the emergency room, (Exhibit A-2, section 4, page numbered 11), the
medical attending resident listed the following as possible diagnoses:
1.
vasovagal reflex secondary to abdominal pain
2.
bradyarrhythmia (slow heart beat)
3.
cardiac ischemia
Her abdominal pain was noted with the comment “colicky, probably due to gas,” and he noted that the “doubted”
bowel (illegible), BI bleeding, peptic ulcer disease, or liver or pancreas and that there was no obstruction. Upon
admission to the sixth floor medical ward, Mrs. Mathis’ blood pressure was 123/81, and her pulse was within normal
limits (Exhibit A-2, page numbered 57). Apparently the admission was uneventful and Mrs. Mathis was able to
move from the stretcher to the bed herself, to provide information about her health history, to be weighed and
measured, and to have the call system, telephone and television features explained to her (Exhibit A-2, section 4,
pages numbered 13, 57).
Dr. Daniel Olsson, an osteopath who is Board certified in emergency medicine, testified that he
was the attending physician in the emergency room on the night in question and recalled that he and the two
attending residents were somewhat “perplexed” by Mrs. Mathis’ symptoms. He stated that she had vasovagal
symptoms2 that could have arisen from a number of causes but that she did not respond to ordinary measures as well
as they would have expected. Initially, they concluded that she could go home because of the improvement she
exhibited, but after the episode at 5:00 a.m., it was decided that she should be admitted for continued monitoring:
“We had a reoccurrence of the prior event that we didn’t have a good idea of what the cause was, and we felt that it
was something that should be observed for a longer period of time (Transcript, p. 275). When the decision to admit
her to the hospital was made, a medical consultant, rather than a surgical consultant, was called because Dr. Olsson
and the residents did not feel surgical intervention was needed. As he explained it, she did not exhibit persistent
blood loss and there as no unexplained mass bleeding or severe infection. When asked why the blood tests,
specifically the hematocrit, were not repeated after the 5:00 a.m. episode, Dr. Olsson stated: “We didn’t feel that this
was from blood loss. ...we felt that either this was another unexplained vasovagal episode or some other
arrhythmia, but we did not feel that this was a bleeding episode” (Transcript, p. 284).
Dr. Olsson indicated that in 1995 ultrasound equipment was not available in Upstate’s emergency
room, and in order to have an ultrasound or similar procedure performed during the night, they would have to
2
Medical witnesses described this as a sudden, brief innervation of the abdomen and other
organs by the vagus nerve.
contact the radiology department and have the attending radiologist called at home to authorize the procedure and
then call a technician to come to the hospital to carry out the procedure. In any event, even if the procedure had
been easier, he and his staff did not consider ordering an ultrasound or CT scan for Mrs. Mathis. Symptoms that
would have made them consider such procedures, he stated, would be persistent elevated heart rate, persistent low
blood pressure that did not respond to intravenous fluids, abdominal rigidity, or decreased blood flow to the
extremities.
Prior to this time, Dr. Olsson had never examined a patient who had the condition that was later
discovered -- a visceral arterial aneurysm rupture -- although he was familiar with patients who had ruptures of
abdominal aorta aneurysms. Symptoms of that latter condition, which Mrs. Mathis did not exhibit, included severe
back pain, persistent elevated heart rate, persistent low blood pressure, decreased blood flow to the legs, and
decreased ability to move the legs. Those patients would also be alert and awake, while the nursing notes for Mrs.
Mathis noted that she was sleepy and lethargic most of the time.
The emergency room summary, which was signed by Dr. Olsson but written by the resident and
typed up subsequent to Mrs. Mathis’ death (Exhibit A-2, section 4, pages numbered 5 and 6), stated that she arrived
with complaints of “some crampy abdominal pain,” that she had a long history of stomach problems, including
irritable bowel syndrome, diverticulosis, and bouts of constipation, which were monitored by the GI doctors. Her
physical examination was generally unremarkable, except for a note about a “pretty impressive fluid wave” in her
abdomen and sinus tachycardia. Her prior health records were consulted and the laboratory results that deviated
from the normal range were found to be not significantly different from her baseline on prior hospital admissions.
The 5:00 a.m. episode was described as follows:
While the patient was dressing herself she had what appeared to be a vagal episode where she became acutely
diaphoretic and poorly responsive to stimulation. Her heart rate was recorded in the 40s and a blood pressure in the
70 - 80 systolic range. This episode appears to be similar to what the paramedics had witnessed in the patient’s
home. [id., page numbered 6]
The EKG performed after this episode showed “some subtle changes” from the one taken several hours earlier.
Dr. Theresa Rohr-Kirchgraber, an assistant professor of medicine at Upstate since 1994, was the
attending who received a call about Mrs. Mathis asking her to authorize the hospital admission. She was at home
when she was contacted, around 7:00 a.m. or perhaps a little before, by Dr. Al-Andary. He described the patient,
her history, the results of his examination, her lab values and other available data. Dr. Rohr-Kirchgraber agreed to
take Mrs. Mathis into her service.
She explained at trial that within the medical (as opposed to surgical) service, there were six
teams, each made up of a physician, resident and intern. It was the job of the MAR to decide whether a patient
should be referred to a specialized group, such as the “cancer team” or the “stomach team,” or to a general medical
team such as hers. Most commonly, new patients would be referred to the general medical team. In the telephone
conversation with Dr. Al-Andary, possible diagnoses were discussed, and it was decided that the resident should
write orders for cardiac profiling, blood tests to determine if there had been a heart attack, and other normal blood
work for admission. She stated that an ultrasound was not considered at that time because the chief concern was
that the problem might be related to her heart. Dr. Al-Andary was also directed to hold off on any of the patient’s
normal medications.
Dr. Rohr-Kirchgraber arrived at the hospital a little after 8:00 a.m. and saw Mrs. Mathis for the
first time around 9:00 a.m., just after she was moved from the emergency room to the sixth floor. Her principal
complaint at that time was of abdominal pain, “a kind of vague type of pain,” which Mrs. Mathis said might be
associated with a fatty meal she had had the night before. As they were speaking, she complained of some
additional abdominal discomfort. Dr. Rohr-Kirchgraber conducted a physical examination, but aside from some
diffuse tenderness in the abdomen, there were no unusual findings. There were no signs at that time of what the
doctor described as an “acute abdomen” or “surgical belly,” which she described as an abdomen that is tense, rigid,
and painful and that exhibits rebound effect. Patients with an “acute abdomen” typically do not want to sit up or
move and instinctively guard their abdomen when it is about to be touched. Mrs. Mathis also showed no signs of
extensive bleeding, such as fluid in the abdomen, dizziness, or light-headedness. Dr. Rohr-Kirchgraber also noted
no fluid wave in Mrs. Mathis’ abdomen during her examination.
After the examination, Mrs. Mathis sat back up and the interview continued. Very soon,
however, at approximately 10:00 a.m., she fell back onto the bed and started shaking in a tremor or seizure-like
manner and soon lost consciousness. Her blood pressure was not measurable. A “code” was called; the critical
care team arrived; and it was noted that the patient’s abdomen had quickly become markedly distended. She was
sent to surgery for, according to the doctor’s contemporaneous notes, for an exploratory LAP to rule out a ruptured
AAA (abdominal aorta aneurysm) (Exhibit A-2, section 4, page numbered 13).
Dr. Rohr-Kirchgraber did not accompany the patient to the operating room but stated that while
the operation was proceeding, she attempted to stay in touch with what was happening and spoke with the Mathis
family members on occasion, just to let them know how the operation was proceeding when she received
information. At one point, she was told that the surgical team had found a bleeding ulcer and that they were hoping
to stop the bleeding, and she conveyed this optimistic information to the family. The next word she received,
however, was that the patient had died.
Dr. Frank S. Szmalc, a surgeon who specializes in transplant surgery, testified that he was
contacted as Mrs. Mathis was being rushed to the operating room and that the code team was still working on her
when he arrived, sometime around 10:32 a.m. The critical findings related to him at that time were severe
distension of the abdomen, hypotension and extremely low hematocrit and hemoglobin, so low that they were
almost incompatible with life. It was immediately apparent that she had had some type of abdominal “catastrophe.”
He also assumed that they were dealing with a ruptured abdominal aortic aneurysm, which he described as an
abnormal swelling or ballooning of the aorta as it passes from the heart into the abdomen. Dr. Szmalc told her son
prior to beginning the operation that he felt she had no better than a 50/50 chance of survival.
In the operating room, the patient’s chest was opened and the aorta was clamped to prevent further
blood loss. At this time, the patient was in full code, with no measurable blood pressure, but once the aorta was
clamped and medications administered, some pressure was restored. No pathology was observed within the
thoracic cavity. When an incision was made into the abdomen, however, there was a large amount of free blood,
almost three liters worth. The surgical team also observed a large area of clotted blood in the area under the
diaphragm. After investigating the aorta and splenic artery and finding them intact, they concluded that the rupture
was most likely in the right gastric artery. This type of aneurysm is very unusual, and Dr. Szmalc testified that he
has only seen one other, when he was in medical school. The artery in question is comparatively small, perhaps the
size of a pencil, as compared to the aorta, which is approximately two inches in diameter.
At approximately the same time that they made this discovery, Mrs. Mathis went into a
coagulopathic state, in which the blood ceases clotting, and irreversible shock ensues. Blood pressure could not be
restored and she was declared dead shortly thereafter. Dr. Szmalc was the surgeon who spoke with the family and
informed them of their mother’s death. He acknowledged that he may have said something to the effect that if he
had been able to perform surgery earlier, she might have been saved.
The symptoms exhibited by Mrs. Mathis prior to her last collapse were not, according to Dr.
Szmalc, those typically found with abdominal aortic aneurysms: extreme back pain, loss of consciousness, and
palpable masses or pulses in the abdomen. An abdominal aortic aneurysm will most often show up on x-ray as
well, because that artery frequently has a type of eggshell calcification within it. In contrast, the signs of a visceral
aneurysm are not so specific to that condition. The symptoms are primarily abdominal pain, from the blood itself
or the stretching of small vessels, and low blood pressure, although it is possible for the patient to feel no pain.
These symptoms, of course, can indicate a number of other conditions as well. He explained that because visceral
arteries are so much smaller than the aorta, their aneurysms can be as small as the size of a pea. When there is a
rupture, it can begin as a slow leak, the equivalent of dripping blood, and at some later point suddenly enlarge and
become a full rupture. The clots of blood found under this patient’s diaphragm were an indication that there had
been some bleeding a while before her final collapse.
EXPERT TESTIMONY
The testimony of Claimant’s expert was presented by way of a video deposition (Exhibits 7-A,
7-B, 11 [transcript]). Dr. Carlton Futch, a board-certified surgeon with specialities in vascular and thoracic surgery
and extensive emergency room experience, reviewed the events surrounding the treatment of Mrs. Mathis on the day
in question, her medical records, and the deposition testimony of her treating physicians. He indicated that
extremely low blood pressure readings, such as Mrs. Mathis had on several occasions, is usually either a sign of
bleeding or caused by heart malfunction. Sweating (“diaphoretic”) is a symptom most often associated with pain or
excessive bleeding, and he stated that it is usually not present in typical, vasovagal fainting spells.
In Dr. Futch’s opinion, based on his review of the records, Mrs. Mathis was probably bleeding
internally at home before she was ever picked up by the ambulance. Her stabilization upon receiving fluids is
typical in patients with aneurysms, as replacing lost fluid raises the blood pressure and normalizes other systems.
While he might have asked for a surgical consult early on, because of the low hematocrit reading, in his opinion,
continuing to monitor her after her arrival at the emergency room was not a departure from the professional standard
of care. He was critical, however, of the fact that no repeat hematocrit reading was obtained during this time period
and felt that there was no serious attempt to account for her strong, although admittedly intermittent, complaints of
abdominal pain. While an abdominal x-ray was taken and showed nothing abnormal, other measures -- such as an
abdominal tap, a sonogram, or a CT scan -- were not pursued and could have provided important information and
indicated an abnormal amount of fluid in the abdomen.
The greatest departure from acceptable medical care, according to Dr. Futch, was the several hour
delay between the second episode at 5:00 a.m. and Mrs. Mathis’ examination by the medical consultant, which did
not occur until 9:00 a.m. Moreover, in his opinion, the initial call should have gone for a surgical consultant rather
than to the medical service. Although the source of the bleeding -- a visceral artery aneurysm -- is not particularly
common and is admittedly difficult to diagnose, the doctors should have suspected and looked for evidence to
confirm or rule out abdominal bleeding, from whatever source, much earlier. Once surgery was initiated, the actual
location of a bleed would have been determined relatively quickly.
I really feel that had this lady been diagnosed early, taken to the operating room at the appropriate time before she
had that final bleed and bled out into her abdomen, that she might have survived the episode. Therefore, I think the
care fell below the standard.
(Exhibit 11, p. 51.) If the delay had not occurred, according to Dr. Futch, he feels that Mrs. Mathis would have had
at least a 50/50 chance of survival. He explained that, unless an aneurysm ruptures free initially (in which case the
patient quickly dies), two phenomenon often allow time for a diagnosis and successful intervention. If the blood is
“caught” by another surface, such as the wall of the peritoneum, clots can form that slow down the bleeding. Even
if clots do not form, if the initial bleed is into an enclosed area, such as the mesentery, the blood will be contained in
that space until it is filled and ruptures through that enclosure into the abdominal cavity. The only opportunity to
save a patient who is experiencing an aortic or arterial aneurysm rupture is to intervene while bleeding is slowed by
clots and/or being confined in a secondary, smaller space rather than flowing freely into the abdomen. It appears
that Mrs. Mathis definitely had some clotting, which could explain some of the times of apparent improvement, and
in Dr. Futch’s opinion, the initial bleeding went into the mesentery and when it became filled up, around 9:00 a.m.,
it became a free rupture and caused her death.
On cross-examination, Dr. Futch rejected suggestions that the initial misdiagnosis of an abdominal
aortic aneurysm, which was made immediately before surgery, played a critical role in the outcome. Because this
condition is the most common source of intra-abdominal bleeding, it would be the logical first diagnosis, and, in any
event, it is not unusual, he stated, for the exact source of abdominal bleeding to be unknown until surgery is under
way. Whatever the precise source, unless there is bleeding directly into free abdominal space -- in which case the
patient dies almost immediately -- bleeding from an aneurysm rupture will be slowed by clotting and/or initially fill
the mesentery or peritoneum and then eventually rupture out of the abdominal wall. In this case, Dr. Futch believes
that during the interval from the 5:00 a.m. episode until her final collapse just prior to surgery, the bleeding
continued and was collecting in the mesentery. This he stated, provided a window of opportunity in which action
could have been taken before the full rupture into the abdominal cavity.
If he had been in charge following the 5:00 a.m. episode, Dr. Futch stated, he would have ordered
a repeat hematocrit, which would undoubtedly have indicated continued bleeding, and then ordered a sonogram,
since that is noninvasive and easy to do. The sonogram, in turn, would have shown some fluid in the abdomen,
which would warrant ordering an abdominal tap. If the fluid extracted from the abdomen contained blood, that
would be clearly abnormal and sufficient reason to take her into the operating room. Diagnosing the precise source
of the bleeding, therefore, was much less important than diagnosing the fact that she was bleeding.
Dr. Paul Adler, who holds degrees as a Doctor of Osteopathic Medicine and Master of Business
Administration and specializes in administration and emergency medicine, with Board certification in the latter
field, testified on behalf of Defendant. He stressed that the emergency physician’s primary task is to triage: to
decide who needs immediate treatment, who should be admitted to the hospital and who should be discharged, and
what, if any, specialist should be called in. He stated that Mrs. Mathis’ initial condition certainly indicated that
something was wrong, but that the test results did not point in any one particular direction. The episode that
occurred around 5:00 a.m., particularly the EKG results, which were still within normal range but significantly
different than the first results obtained, and the fluctuating blood pressure, would have indicated to him that the
problem was with her heart. The emergency room staff must have had the same suspicions, he stated, because they
ordered a left-sided EKG performed before she was transferred to the medical ward. He testified that when
someone has a syncopic episode such as Mrs. Mathis experienced, 50 percent of the time no specific diagnosis is
ever made, and the vast majority of those are determined to be caused by either a transitory vasovagal reaction or
cardiac causes.
When asked to give his opinion about the course of treatment provided to Mrs. Mathis on this
occasion, the Defendant’s expert stated that the initial response, conducting normal tests and examination and
monitoring vital signs, was appropriate because, more often than not, a patient who has an undocumented syncopal
episode will recover on their own. He saw no reason to have ordered a CT scan or ultrasound of the abdominal
area, because none of the symptoms suggested abdominal causes and the physical examination of that area was
unremarkable. When it appeared that she had recovered, it was also not inappropriate for discharge to be
contemplated.
Following the second syncopal episode in the emergency room, particularly because it occurred
when she stood up after having been lying down and because of the changes in her EKG profile, admission to the
hospital was appropriate, as was referral to a medical, rather than a surgical, consultant. In his opinion, if they had
called a surgical consultant at that point, he or she would have looked for things such as rebound, abnormal x-ray,
abnormal rectal exam or abnormal cardiac exam. Further, the surgeon would have been informed of Claimant’s
past history of GI problems (irritable bowel disease and diverticulitis), and would have been advised that her bowel
sounds were normal, with no rebound or perineal signs. In Dr. Adler’s opinion, this surgeon having been so
informed, and knowing her prior history of hypertension and the fact that there had been a cardiac change, would
have concluded that she was not a surgical patient at that time, but could consult with them again in the morning if
deemed necessary.
Dr. Adler agreed that a visceral artery aneurysm is unusual and could not recall having ever
encountered one in his years of practice. He stated that there are no particular signs or symptoms to differentiate
them from other conditions or other types of aneurysms and, tragically, they are usually diagnosed on autopsy. He
stated that 90 percent of gastric visceral artery aneurysms are not picked up until they rupture, and that in 70 percent
of those cases, the person dies. On cross-examination, he acknowledged that while pain may be connected to the
cause of a synoptical incident, pain itself is not part of the series of symptoms that define such an incident.
Dr. Adler was questioned about the hospital’s failure to retest Mrs. Mathis’ hematocrit, after her
first test at approximately 2:30 a.m. resulted in a reading of 32.2, slightly below normal. He noted that this result
was determined, while she was still in the emergency room, to be consistent with her prior readings. The
hematocrit, he stated, essentially measures how many red blood cells are in the blood stream, and with no reason to
suspect bleeding as the cause of her problems, there was no reasons to run successive tests for this measure. No
retest was performed until 10:30, after she had arrested, at which time it had gone down from 31 to 7.
LAW AND ANALYSIS
In order to establish a prima facie case of malpractice, the injured party must prove that the
Defendant breached the standard of care in the locality where treatment occurred and that the breach was the
proximate cause of injury (see, McDermott v Manhattan Eye, Ear & Throat Hosp., 15 NY2d 20; Meiselman v
Crown Heights Hosp., 285 NY 389). Medical professionals owe to their patients three basic duties: (1) the duty to
possess the requisite knowledge and skills possessed by the average member of their profession; (2) the duty to use
ordinary and reasonable care in applying such professional knowledge; and (3) the duty to use his or her best
judgment in the exercise of such knowledge (Pike v Honsinger, 155 NY 201; Littlejohn v State of New York, 87
AD2d 951; Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804; Jacques v State of New York, 127
Misc 2d 769).
More than a mere honest error in professional judgment is required for liability to be imposed
(Nabozny v Cappelletti, 267 AD2d 623; Schrempf v State of New York, 66 NY2d 289; Pigno v Bunim, 43 AD2d
718, affd 35 NY2d 841), and “a bad result does not, ipso facto, support a claim for medical malpractice” (Schoch v
Dougherty, 122 AD2d 467, 468, lv denied 69 NY2d 605). On the other hand, medical decisions that are not
based upon careful or intelligent examination cannot be considered to be an exercise of professional medical
judgment (Clark v State of New York, 99 AD2d 616; Bell v New York City Health & Hosps. Corp., 90 AD2d
270).
Ultimately, in this case, the allegations of negligence come down to questions about four specific
decisions of the hospital’s medical staff: Should a repeat hematocrit reading have been ordered while she was still
in the emergency room? Should a sonogram, CT scan or abdominal tap have been ordered while she was still in the
emergency room? Should the emergency room staff have referred Mrs. Mathis to a surgical, rather than a medical,
service? Should the service to which she was referred have acted more promptly and had an attending physician
evaluate her condition sooner?
I am willing to credit and accept the testimony of Claimant’s expert that a different course of
action, different decisions at these choice points, may well have resulted in a different and much more acceptable
outcome for Mrs. Mathis and her family. Even if the specific diagnosis of a visceral artery aneurysm rupture was
not made, it is evident that had the medical staff seriously suspected that abdominal bleeding, from whatever source,
was the problem, different diagnostic procedures would have been pursued and, quite possibly, surgical intervention
would have occurred much sooner. Indeed, none of Defendant’s witnesses attempted to argue against this
conclusion, and, as Dr. Szmalc acknowledged to the family at the time of their loss, it might have been possible to
save her if the operation had been performed before the final, catastrophic rupture.
The issue before this Court, however, is not whether another course of action or different decisions
could have saved Mrs. Mathis. What must be determined here is whether the actions and decisions of the hospital’s
medical staff, specifically those occurring between the hours of 5:00 a.m. and 9:00 or 10:00 a.m. on the morning of
May 17th, constituted a breach of the physicians’ duty of care to their patient. That duty, as mentioned above, is to
possess the requisite knowledge and skills of their profession and to use ordinary and reasonable care and their best
judgment in applying that knowledge.
While Claimant’s expert, Dr. Futch, stated that he considered the initial hematocrit reading to be
significantly low, the emergency room physicians were able to compare that reading, and other blood values, to
those obtained for Mrs. Mathis during other hospitalizations and to find that those readings which were deviations
from the norm (i.e., from average readings) were, in fact, consistent and therefore “normal” for her. In some
respects, this is a round-robin argument. If the doctors had ordered a subsequent hematocrit, they might have been
alerted to the possibility of internal bleeding, but the reason such a test would have been ordered would be because
they suspected internal bleeding. Was failure to order the test, under these circumstances, a departure from the
professional medical standard of care? I think not.
There is at the very least a legitimate difference of expert opinion as to whether the failure to order
this test, given the symptoms which Mrs. Mathis exhibited at the time, was such a departure (see, Sciarabba v State
of New York, 182 AD2d 892). The initial hematocrit reading was not low for Mrs. Mathis, and this fact was
known to the doctors treating her. There were no other signs or symptoms clearly pointing to the possibility of any
sort of bleeding. Dr. Futch is correct that no adequate cause was determined for her intermittent, although strong,
complaints of abdominal pain. That pain, however, could have had many other causes, some of which were far
more probable in a woman with a history of diverticulosis and other gastrointestinal problems and who
acknowledged that she had not had a bowel movement for several days, whose x-ray showed an unusually filled
colon, and who stated at one point that the pain had improved after the medicine she was given allowed her to
move her bowels.
Moreover, it required some degree of speculation on the part of even Dr. Futch to conclude that, if
the test had been repeated earlier, it would have actually made a difference in the diagnosis. While he believes that
the hematocrit level would have been sufficiently lower to create a strong suspicion of internal bleeding if she had
been tested between 5:00 a.m. and 9:00 a.m, there is no concrete evidence from which such a conclusion can be
drawn. A slightly lower reading, in fact, might well have been explained by the dilution of her blood stream from
the fluids she had been given. It cannot be malpractice to fail to order tests if the result of such tests would not have
been productive or helpful (Chapman v State of New York, 97 AD2d 975).
It goes without saying that if a retest of Mrs. Mathis’ hematocrit levels would have had the effect
posited by Dr. Futch, it is tragic and extremely regrettable that it was not performed. That does not make it
malpractice, however, to fail to order it, particularly for emergency room doctors who are engaged in triage type
decisions for a number of patients, when no need was indicated either by her current symptoms or by previous test
results.
Those same considerations -- the emergency nature of treatment that is to be given by these
doctors and the apparently non-critical, although distressing, nature of Mrs. Mathis’ abdominal symptoms -- lead
even more easily to the same conclusion with respect to the doctors’ failure to considering ordering a sonogram or
CT scan, or to carry out an abdominal tap. While one would hope that today, with the increased use of technology,
ultrasound scanning is a more normal part of emergency room procedure in situations where the diagnosis is
uncertain, it was quite clearly an extraordinary procedure in the Upstate emergency room in 1995. There was
nothing in her symptoms or level of distress to suggest that such a procedure was needed immediately or that the
results would have made a critical difference. Dr. Futch admitted, in fact, that a CT scan would not have
differentiated between blood and other fluids in the abdomen. While, according to him, abdominal taps are
performed fairly routinely by surgeons, they are nevertheless invasive procedures which, he concedes, may not have
been within the expertise of emergency room doctors in 1995. In any event, with the other possible and even more
likely explanations for the abdominal pain experienced by Mrs. Mathis and the absence of other symptoms pointing
to abdominal bleeding, it seems highly unlikely that any physician would have approved this kind of procedure
unless and until there was more reason to suspect that internal bleeding was the central problem.
With respect to the decision to refer Mrs. Mathis to a general medical team rather than a surgical
team, I believe that the testimony of Dr. Adler accurately sums up the situation. Based on the complaints and the
physical findings that were known at 5:00 a.m., hospital admission was certainly warranted, but there was little, if
anything, to suggest that this was going to be a matter requiring surgery. The possible diagnoses considered most
likely at the time -- vasovagal reflux resulting from pain, cardiac involvement, and possibly even a continuation of
her pre-existing chronic gastrointestinal disorders -- would not have involved surgery or required a surgical consult.
It is true, as Dr. Futch states, that if the doctors had earlier suspected an abdominal aortic
aneurysm rupture, the treatment for that condition would have resulted in appropriate treatment for the type of
aneurysm rupture that, it was later learned, she was experiencing. But while cause and treatment of the two
conditions may be similar, unfortunately -- and tragically in this case -- the earlier signs and symptoms of each
condition are quite different. Mrs. Mathis exhibited none of the symptoms that would indicate an aortic rupture:
severe back pain, persistent elevated heart rate, persistent low blood pressure, decreased blood flow to the legs, and
decreased ability to move the legs. Consequently, her condition at that time did not signal either the likelihood of
abdominal bleeding or the need for surgical intervention.
Finally, as to the delay of several hours between determining that Mrs. Mathis should be
hospitalized and having her examined by an attending physician, I cannot find a departure from accepted medical
practice under other circumstances. She was examined, by 6:00 a.m. if not earlier, by the MAR, who found nothing
to suggest internal bleeding. Even when she was later examined by the attending physician, there was still no
suspicion of the true nature of her illness, and there is no reason to believe than an earlier examination by the
physician would have had any different results.
In short, there was simply no reason for the doctors to conclude that the situation was critical.
Mrs. Mathis may have been uncomfortable, but she was not in extreme distress, as evidenced by her ability to sleep
and rouse normally during the time that arrangements were made to transfer her to the sixth floor, and, except for the
brief period when she was preparing to leave for home, monitors were attached to her, and they did not signal
imminent danger. In fact, Mrs. Mathis herself, despite the fears she expressed earlier in the morning, was not
unduly alarmed by the symptoms she was experiencing. As late as 9:00 a.m., she was anticipating a prolonged
hospital stay and she suggested to the doctor that her complaints might have resulted from a particularly heavy meal
the night before. Thus, while there was no justification for ignoring her condition and the possibility of serious
illness, I can find nothing in the record to indicate that prior to her final collapse there was any information to
suggest the need for extraordinary speed in determining the cause.
The unfortunate and tragic reality is that Mrs. Mathis suffered from a rare condition that simply is
very difficult to detect in time for successful intervention. The undisputed testimony that 90 percent of gastric
visceral artery aneurysms are not diagnosed until they rupture and that, following rupture, 70 percent of the patients
die tells its own story. The symptoms exhibited by these patients do not clearly suggest the problem, and they are
not similar to those of other conditions that would require the same treatment.
This situation is in sharp contrast to those cases in which liability has been imposed because
symptoms are ignored and appropriate tests or consultations are not ordered over a period of weeks (see, e.g., Larkin
v State of New York, 84 AD2d 438; Windisch v Weiman, 161 AD2d 433). I also note that proceeding too quickly
to surgery, without thorough investigation of possible diagnoses that could be resolved nonsurgically, can be the
basis for a finding of liability (Brown v City of New York, 63 AD2d 635).
The failure of emergency room medical staff to accurately diagnose the cause of a patient’s
condition does not necessarily mean that the failure resulted from malpractice, even when the undiagnosed condition
is one that is considered grave (see, Perrone v Grover, 272 AD2d 312 [emergency physician’s failure to accurately
diagnose pericardial effusion is not malpractice]). This is not to say that the pressures of an emergency room
absolve the medical staff of all errors. In the cases where liability has ensued in that setting, however, the negligent
nature of the treatment provided, or withheld, is much more apparent than the arguably wrong, or at least
unfortunate, decisions made here. In DeCoste v Champlain Val. Physicians Hosp. (147 AD2d 793, lv denied 74
NY2d 604), a patient with a history of hypertension and complaints of chest pain demonstrated excessively high
blood pressure and produced abnormal EKG results, but he was nevertheless diagnosed with reflux esophagitis,
without admission of a simple blood enzyme test that would have revealed the cardiac condition that caused his
death twelve hours later. In Wolfe v Samaritan Hosp. (104 AD2d 143), a patient who was initially diagnosed with
a viral infection collapsed while waiting for an ambulance to return him to his home. The emergency room
physician who then examined him felt that he should be hospitalized but nevertheless (for reasons unexplained in the
decision) released him. Later, his condition was correctly diagnosed as a subarachnoid hemorrhage and, although
he received prompt treatment, he eventually died. Where, however, the medical staff’s failure to take steps that
would have resulted in an accurate diagnosis has been caused by the absence of symptoms or test results pointing in
the correct direction, rather than ignoring those symptoms that do, the result must be different. A finding of
liability cannot be based on hindsight in which conclusions about what should have been decided are based on facts
that simply were unknown at the time decisions were actually being made (Oelsner v State of New York, 66 NY2d
636; Lederman v Lawrence Hosp., 202 AD2d 198).
There is no escaping the fact the events leading to the death of Mrs. Mathis were tragic and I
believe, with hindsight, that each of the medical professionals who made one of the questioned decisions
undoubtedly wishes that they had been inspired to take a step that might not have been warranted by the information
before them, but that might have saved her life. Determination of liability or responsibility for this tragedy must be
based, however, on what they knew at the time and whether their decisions were based on reasoned judgment in
applying the knowledge and skills of their profession to the known facts. I conclude that their actions did, in fact,
meet that standard.
The Chief Clerk is directed to enter judgment dismissing the claim.
All motions not heretofore ruled upon are now dismissed.
LET JUDGMENT BE ENTERED ACCORDINGLY.
July 18, 2002
Rochester, New York
HON. PHILIP J. PATTI
Judge of the Court of Claims