Larkin v. State

• Decision Date: 22 January 1982
• Citation: 446 N.Y.S.2d 818,84 A.D.2d 438
• Parties: Jean LARKIN, as Administratrix of the Estate of Richard Carl Larkin, Deceased, Appellant, v. The STATE of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 818

446 N.Y.S.2d 818

84 A.D.2d 438

Jean LARKIN, as Administratrix of the Estate of Richard Carl Larkin, Deceased, Appellant, v. The STATE of New York, Respondent.

Supreme Court, Appellate Division Fourth Department.

Jan. 22, 1982.

Bernstein, White & Bernstein, Rochester, for appellant; Richard A. Bernstein, Rochester, N. Y., of counsel.

Robert Abrams, Atty. Gen., Albany, for respondent; Peter J. Dooley, Asst. Atty. Gen., Albany, of counsel.

Before DILLON, P. J., and SIMONS, HANCOCK, DOERR and SCHNEPP, JJ.

SCHNEPP, Justice.

This appeal concerns the liability of the State of New York for its alleged failure to use acceptable medical procedures in the care and treatment of Richard Carl Larkin while he was a prisoner in the Attica Correctional Facility and particularly for its alleged failure to diagnose and treat what was later determined to be a berry aneurysm. ¹ Larkin died on January 3, 1976 at the age of 28. The autopsy report indicates that the immediate cause of his death was a "berry aneurysm with massive subdural ² and subarachnoid ³ hemorrhage". At the conclusion of the trial of the claim to recover damages for Larkin's wrongful death, the Court of Claims held that the claimant failed to prove medical malpractice and dismissed the claim.

The events leading to Larkin's death are largely undisputed. On December 2, 1975 he went to the prison clinic complaining of a headache that started the night before. Dr. Vratislav Kejzlar, a graduate of a European medical school who was not licensed but permitted to practice in New York State pursuant to a statutory exemption (see Education Law, § 6526, subd. 1), examined Larkin and made an entry in the medical records that Larkin had spasms in the back of his neck and a headache. He prescribed medication consisting of Roboxin, a muscle relaxant, and Darvon, an analgesic. On December 8 Larkin, complaining that he had "headaches for last week or so", was again seen by Dr. Kejzlar. He was given more Darvon and Orinade, an antihistamine. On December 12 Larkin, complaining of vomiting, was seen at the clinic by a physician's assistant. An entry was made on his medical records that he had a history of ulcers. On December 19 Larkin was treated for urethritis, an unrelated condition. On December 21 Larkin went to the clinic where he stated that he had a headache and had passed out. His blood pressure, pulse and temperature were normal. A registered nurse prescribed Darvon and told him to report on sick call. On December 22 Larkin was again seen at the clinic complaining of a headache. A registered physician's assistant prescribed Roboxin and Tylenol. On December 23 Larkin again went to the clinic with complaints of a stiff neck and pain. A registered nurse gave him Roboxin and Darvon and told him to report in the morning. On December 24 Larkin appeared at the clinic and told Dr. Kejzlar about his continuing headaches and the neck pain and stiffness; Darvon was prescribed for a one-week period along with Roboxin. On December 25 Larkin again went to the clinic where a registered nurse gave him one injection of dihydroergotamine for probable migraine headaches. Later the same day Larkin passed out in the dining hall and was carried to the clinic on a stretcher. The medical records state that he was conscious but unresponsive. A registered physician's assistant tested Larkin's tendon reflexes (Babinski test) and found them to be normal. He also performed tests on Larkin's eyes with similar negative results. There was no indication of a neurological deficit and the physical examination was within normal limits. Larkin was admitted to the prison hospital with the diagnosis of possible drug reaction to the injection he had received earlier in the day. The nurse's record for December 25 contains the entry under "remarks" that Larkin "frequently of severe headaches ... he thinks he may have a stroke". That night Larkin, according to the nurse's record, was "all night pain behind eyes, at temples and neck muscles. Very restless". On December 26 Larkin, who was still complaining of headaches and neck stiffness, was examined by Dr. Kejzlar who performed a simple neurological test (Kernig test) to determine whether Larkin had any kind of irritation of the central nervous system. The results of the test were negative. The physical examination was also negative except for the finding that the "muscles of dorsum of neck palpably tender". Dr. Kejzlar discontinued Valium which had been prescribed on December 25 and prescribed Darvon. He discharged Larkin from the prison hospital. The health record signed by Dr. Kejzlar reflects that no abnormality was found for Larkin's complaint of headaches and that his vital signs were normal. The hospital summary for December 25 and 26 signed by Dr. Kejzlar indicates that Larkin had a history of headaches for three weeks; that the headaches remained constant during his hospital stay; and, that Darvon provided "mild relief" from the headaches. The hospital summary contains a final diagnosis of "headaches". On December 29 Larkin returned to the prison clinic complaining of a headache. Dr. Jelinek, a certified radiologist, clinic physician and immediate supervisor to Dr. Kejzlar, examined Larkin and x-rayed his cervical spine. The x-rays showed a straightening of the normal lordotic curvature which was consistent with muscle spasm. The doctor noted in the record that Larkin was "better, still some muscle spasm". Larkin next appeared at the clinic on January 3, 1976, the date of his death. He complained of a headache and neck stiffness. The health record notes that Larkin "appears very apprehensive". Darvon was continued. Later that day, Larkin was found unconscious by a nurse. Dr. Kejzlar summoned an ambulance and Larkin died en route to the hospital in Batavia.

Claimant contends that the State failed to employ proper medical techniques or adequate medical personnel in the care, treatment and diagnosis of Larkin's complaints and failed to exercise professional judgment in the diagnosis of his condition by simply treating him for headaches and releasing him time after time. The proof to support this claim of medical malpractice came from Dr. Charles Salamone, a qualified neurologist, who testified that berry aneurysms are treatable, that a severe headache, along with associated stiffness and neck pain and possibly vomiting, are the symptoms of a hemorrhaging aneurysm, and that the condition does not usually cause a neurological deficit. He said that altered consciousness or loss of consciousness "may occur immediately with the initial bleed or with subsequent leakage or bleeds, if the patient survives." In his opinion the general physician should have realized, at least within the first week, that he was not dealing "with a simple muscle contracture headache on the basis of the patient's history, complaints and findings"; that the continuation and worsening of the headaches were significant; that good and accepted medical practice demanded either that Larkin be referred to a specialist such as a neurologist or a neurosurgeon or that a spinal tap to detect the presence of a hemorrhaging berry aneurysm be performed; and, that the treatment afforded Larkin was not in accordance with good medical practice. He testified that a negative Babinski test would not be unusual and that the Kernig test "is an involuntary sign of meningeal irritation" which has the "same implication that a stiff neck does". The "ultimate test", according to Dr. Salamone, is a spinal tap which can be performed by a general physician. Such a test, he said, "would have shown blood the first day, ... on the 2nd of December" because Larkin was hemorrhaging at that time and continued to hemorrhage until his death. Dr. Salamone testified that surgery or conservative treatment such as bed rest and sedation are the two possible methods of treating a berry aneurysm. According to Dr. Salamone, Larkin's aneurysm could have been treated and cured anytime prior to the "blowout" on January 3. He said that the aneurysm was accessible and that with surgical treatment there was "at least a 75 per cent chance of survival...." Dr. Salamone conceded that the frequency of aneurysms generally increased with age with the highest percentage occurring in the fifth to sixth decades of life and that Larkin's symptoms were common and could be caused by other ailments. Nonetheless, he testified that aneurysms are not difficult to diagnose; that the critical factor in this diagnosis is the patient's history; and, that with Larkin's symptoms the physician's obligation was to consider at least the possibility of an aneurysm. He said that after Larkin passed out on December 21 the physician should have considered this symptom in conjunction with the "whole spectrum of symptoms" and recognized that there was "something more organically wrong than simple muscle contraction with a headache". Dr. Salamone also opined that the injection of dihydroergotamine on December 25 was not good and accepted medical practice because it "works by constricting the arteries which is exactly what you don't want to happen in this situation" and because the drug was ostensibly prescribed by a registered nurse who had no authority to do so.

The only proof that the State presented at trial consisted of Larkin's prison and medical records and certain portions of the examination before trial of Dr. Kejzlar. Although Dr. Kejzlar, in his testimony, conceded that it would have been good and accepted medical practice to have referred Larkin to a neurologist on December 26, he refused to concede that the failure to do so violated accepted medical standards. Dr. Kejzlar also testified that a referral to a licensed physician or to his immediate supervisor (Dr. Jelinek) on December 26 would have constituted...