New York State Court of Claims

New York State Court of Claims
BUCHMANN v. STATE OF NEW YORK, # 2021-058-043, Claim No. 131744


After liability trial, claim alleging medical malpractice and a derivative loss of consortium claim dismissed; The adverse reaction suffered by Claimant from the placement of an IV was not the result of any negligence by Defendant in failing to properly sterilize her hand.

Case information

UID: 2021-058-043
Claimant short name: BUCHMANN
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 131744
Motion number(s):
Cross-motion number(s):
Claimant's attorney: DeFrancisco & Falgiatano Law Firm
By: Jeff D. DeFrancisco, Esq.
Defendant's attorney: Hon. Letitia James, New York State Attorney General
By: Joseph D. Callery, Esq. Assistant Attorney General
Third-party defendant's attorney:
Signature date: September 13, 2021
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


Claimants seek damages for negligence and medical malpractice as well as loss of consortium for an incident that occurred at Upstate University Hospital (Upstate) on November 22, 2017. Claimant Mary Buchmann (Buchmann)(1) alleges while undergoing a procedure at Upstate, a nurse failed to properly sterilize an area of her hand before inserting an intravenous syringe (IV), which thereafter purportedly caused injury to her hand. Buchmann alleges Defendant was negligent in the supervision, hiring, and/or training of Upstate employees; failed to adequately clean and/or sterilize Buchmann's hand; failed to properly place the IV on or about Buchmann's body; failed to insert the IV in accordance with generally accepted medical standards; and failed to provide medical care and treatment in accordance with generally accepted medical standards. Claimant Joseph Buchmann (Joseph Buchmann) alleges he suffered loss of services, household contribution, consortium, and financial support due to the injuries his wife, Buchmann, suffered.

The liability trial of this Claim was conducted virtually from May 10, 2021 through May 13, 2021 upon stipulation of the parties.(2) Claimants testified and called three additional witnesses. Claimant marked seven exhibits for identification of which five exhibits, specifically, Exhibits 1, 3, 4, 5, and 6 were received into evidence by stipulation of the parties. Defendant called three witnesses and marked eight exhibits, Exhibits A through G and G-1(3) inclusive, for identification purposes. Exhibits G and G-1 were received into evidence by stipulation of the parties.

During the testimony of Buchmann, the Court permitted Claimant's Exhibit 2 to be received into evidence over Defendant's objection. Exhibit 2 is a Facebook posting which Buchmann testified was made by her on November 24, 2017 after purportedly having a diagnosis of cellulitis confirmed by a medical professional. This exhibit was referred to by various witnesses during the trial. As Defendant maintained its objection throughout the trial regarding this exhibit, the Court permitted the parties to submit posttrial memoranda limited to the admissibility of Exhibit 2. After reviewing the parties' submissions, the Court adheres to its trial ruling permitting Exhibit 2 into evidence and giving it the weight this Court deems appropriate.

At the conclusion of Claimant's case, Defendant made a motion to dismiss; Claimant opposed; and the Court reserved decision. At the conclusion of Defendant's case, Claimant moved for a directed verdict relative to the issue of causation; Defendant opposed and cross-moved for dismissal of the Claim which Claimant opposed. The Court reserved decision on all motions.

After considering the testimony of the witnesses and evidence received at trial, as well as reviewing the applicable law and arguments made by the parties, the Court grants Defendant's motion to dismiss made at the conclusion of trial and dismisses the Claim.


Buchmann testified she presented herself at Upstate on November 22, 2017 for an outpatient, stent removal procedure. Her husband, Joseph Buchmann, was with her throughout the day except for when she underwent the surgical procedure. Buchmann arrived at the hospital where she met with nursing staff who were charged with, among other things, obtaining her medical history and personal information, and inserting an IV. Buchmann described that, within a short period of time, she went upstairs to meet with the surgical team who indicated they were ready for her. Upon arriving at the endoscopic suite, Buchmann described the upstairs area as frantic with staff moving around quickly. Buchmann surmised that since it was the day before Thanksgiving, staff wanted to leave work early for the holiday. Buchmann testified she was placed in a curtained bay area and had two nurses assigned to her. Since the nursing staff she initially met with did not complete their tasks of obtaining vitals and/or inserting an IV, the nurses in the endoscopic suite did so. Buchmann explained one nurse took her vital signs and imported information into a computer while the other nurse was attempting to insert an IV. Buchmann testified the nurse inserting an IV was on her right side and the other nurse was approximately three feet away on Buchmann's left side. Joseph Buchmann was at the foot of her bed approximately one to two feet from Buchmann's right hand where the IV was inserted. Buchmann further testified the nurse took a swab and attempted to clean her hand. Buchmann explained that after the nurse made a singular swipe with a ChloraPrep pad to sterilize her hand, the pad fell to the floor. The nurse, without obtaining another pad or further sterilizing her right hand, then inserted an IV into Buchmann's right hand near her pinky finger. Buchmann testified she was concerned about this minimal sterilization process and looked at her husband with a purported expression of concern but did not say anything to him or to the nurses in the room. Buchmann further stated she believed the nurses were rushing to get her ready quickly for surgery. Buchmann testified two doctors, Drs. Roy and Howard, visited with her before undergoing her stent removal procedure, but she did not voice any concerns regarding the sterilization of her hand or the IV placement to them. Buchmann explained after the stent was removed, she was placed in recovery and went home later that day. Buchmann confirmed she did not inform any medical staff before or after her stent removal procedure about her concern relative to the sterilization of her hand and/or the IV placement.

Buchmann testified she experienced pain, swelling and soreness at the IV site on her right hand the next day, which was Thanksgiving. After calling a doctor on the discharge paperwork provided to her, she drove herself and sought medical treatment at Auburn Hospital, claiming she was in excruciating pain. Auburn medical staff advised Buchmann that she may have an infection or a hematoma and advised her to elevate the hand, keep heat on the hand, and continue to monitor the hand. Buchmann testified that by the following day, November 24, 2017, her hand was swollen, discolored and her right arm hurt as well. Consequently, Buchmann went back to Auburn Hospital where she was diagnosed with cellulitis. While in the process of being discharged from Auburn Hospital on November 24, 2017, Buchmann testified she made a posting on her Facebook page.(4) Buchmann testified upon discharge from Auburn on November 24, 2017, her hand continued to be swollen, red, and painful. As a result, in the ensuing weeks, Buchmann sought additional treatment from physicians and was diagnosed with Complex Regional Pain Syndrome (CRPS). Additionally, Buchmann testified she spoke with Dr. Howard (Howard), the anesthesiologist during Buchmann's procedure, approximately three weeks after the IV placement to discuss the difficulties she was experiencing with her hand. Buchmann testified she had previously experienced several IV insertions without incident. Buchmann's testimony and Exhibit 1 indicates several procedures which would have required an IV, including but not limited to an appendectomy, cholecystectomy, knee surgery, sphincterotomy/papillotomy, shoulder surgery, tonsillectomy, total thyroidectomy, wrist surgery, stent insertions and stent removals among others.(5)

Joseph Buchmann corroborated the testimony of his wife. He stated he was with Buchmann throughout her pre-operative procedures, witnessing the sterilization of her hand and IV placement. He also described the endoscopic suite as hectic. Joseph Buchmann described there were two nurses in the room. The nurse on his wife's right unwrapped a ChloraPrep pad and began to sterilize his wife's hand. Joseph Buchmann believed the nurse, while swabbing the hand with the ChloraPrep pad, hit a knuckle causing the pad to fall to the floor. Joseph Buchmann explained he looked at the floor and then his wife and observed the nurse place the IV immediately thereafter in his wife's right hand near the pinky. At no time did Joseph Buchmann voice any concern to medical staff regarding the sterilization procedure or IV placement. Joseph Buchmann testified the second nurse was not observing the sterilization process or IV placement as she was entering information into a computer with her back to his wife and the IV nurse. Joseph Buchmann corroborated his wife's version of events in that she suffered from pain, swelling, and redness at the IV site the next day and drove herself to Auburn Hospital. Additionally, in the ensuing weeks, his wife continued to treat with medical professionals regarding her hand. Notably, Joseph Buchmann did not testify to any loss of services, household contribution, consortium, and/or financial support as a result of injury incurred by his wife from the sterilization process and/or IV placement.

Claimants called two expert witnesses to testify, Mende Costello (Costello) and Dr. Christopher G. Gharibo (Gharibo). Costello has been a registered nurse for 14 years who became a Legal Nurse Consultant (LNC) in May 2020. Claimants' case is the first matter reviewed by Costello since receiving her LNC certificate. Costello testified she has inserted over one thousand IVs during her career. She averred there is very minimal risk with IV placements when the proper standard of care is followed. She further described the procedures utilized by a nurse relative to IV placement, which includes using a ChloraPrep pad, sterilizing the IV site for approximately 30 seconds and then inserting an IV. She testified this procedure is necessary as there is bacteria on skin. Costello opined the nurse who inserted the IV at Upstate deviated from the general accepted nursing standard of care by failing to adequately disinfect Buchmann's right hand prior to the IV insertion. In reaching her opinion, Costello relied upon the Claimants' deposition testimony; a Facebook posting by Buchmann;(6) the fact Buchmann was diagnosed with cellulitis; and the fact Buchmann had several prior IV placements without incident. Costello did not credit the deposition testimony of the two nurses assigned to Buchmann on November 22, 2017. Upon cross-examination, Costello affirmed that the failure to properly sterilize Buchmann's hand was the only deviation from the standard of nursing care.

Gharibo has been licensed to practice medicine in New York State since 1997 and is board certified in anesthesiology and pain medicine. Gharibo testified to his understanding and experience with CRPS and cellulitis, including signs and symptoms. He explained that it is extremely important to thoroughly clean and disinfect an area where an IV will be inserted so as not to introduce bacteria on the skin into the body. Gharibo opined it would be an extremely remote probability for a patient to develop cellulitis if an IV site is properly sterilized. Gharibo testified an infection and/or cellulitis does not occur immediately but develops within 24 to 72 hours. Gharibo opined that, assuming there is a deviation of nursing standard of care in the IV sterilization and insertion process, the failure to properly sterilize an IV site is a substantial factor in a diagnosis of cellulitis and the development of CRPS.

Claimants also called Dr. Wendy Howard (Howard), the anesthesiologist during Buchmann's procedure on November 22, 2017 at Upstate, to testify. Howard testified Dr. Roy was the surgeon performing the stent removal. Howard affirmed neither she, the procedure, nor the endoscopic suite was rushed or chaotic on November 22, 2017, and that Buchmann was the only patient waiting for a procedure at the time. Howard testified that, at the time she met with Claimants in the endoscopic suite, she had additional time to converse with Claimants as Dr. Roy had not yet arrived. Prior to the procedure, Howard recalled having a "lovely conversation"(7) with Claimants and learning about them. Howard recalled conducting a pre-operative physical; reviewing Buchmann's history; discussing Buchmann's blood sugar; checking for any allergies; discussing medication to be utilized; and obtaining consent to the administration of anesthesia, among other things. Howard testified that Buchmann was "very verbal about her care." Buchmann discussed with Howard her preference to morphine rather than Howard's use of fentanyl.(8) Additionally, Howard testified she examined the IV site and affirmatively stated there was no problem with Buchmann's IV on November 22, 2017. At no time did Claimants discuss any issues with the sterilization procedure or IV site with Howard. Howard further testified if she was made aware of any issues, she would have discussed same with the nursing staff and weighed the benefits and risks of removing and/or replacing the IV, as well as documenting the issue.

Howard testified she spoke with Buchmann on December 13, 2017 via telephone regarding a problem with her IV site. Howard did not remember the conversation wherein Buchmann purportedly advised that the ChloraPrep pad fell to the floor during the sterilization and IV insertion process. Howard did make notes of the December 13, 2017 conversation, indicating she remembered Claimants. Howard's note of the conversation documents that Howard explained to Buchmann nothing unusual occurred except a burning sensation at the IV site due to the administration of propofol, which is a typical reaction. Howard's note indicated that all the staff checked the IV site to be sure "it wasn't infiltrating. [Buchmann] received IV fluids and procedure was done in 6 minutes" and she was discharged with no complaints.(9) Howard explained medical literature informs that patients with diabetes are prone to infection and she was aware Buchmann was a diabetic. Howard also testified that there is always a risk of infection with an IV insertion even if every procedure is properly followed.

Defendant called the two nurses, Debra Malay (Malay) and Carmella Mertz (Mertz), who assisted Buchmann during pre-operative procedures on November 22, 2017. Malay became a licensed registered nurse in 1978 and has been a nurse for 43 years. Malay testified she had been retired but served as a per diem nurse at Upstate, filling in when the hospital was short staffed. Malay testified that on November 22, 2017 she was working in Upstate's endoscopic suite importing patient information into a computer and assisting Mertz while Mertz undertook the IV sterilization and placement procedure of Buchmann. Malay described Mertz as very proficient with IV insertions and that other nurses would call on Mertz if they needed assistance. Malay testified that, generally, nurses work as a team where one nurse imports information in the computer and assists while the other nurse inserts the IV. Both nurses stand bedside to the patient. Malay testified Joseph Buchmann was at the end of the bed facing his wife; Mertz was to Buchmann's right; and Malay was on Buchmann's left side. Buchmann had the IV inserted in her right hand as she would be laying on her left side during the stent removal procedure. Upon questioning, Malay indicated that if she witnessed Mertz incorrectly sterilizing an area, Malay would intercede to correct the problem by either obtaining an additional chloraprep pad or verbalizing any concerns to Mertz. Malay continued her testimony that, although she did not have a specific recollection of Claimants or the IV procedure, her practice when working with another nurse is to observe and assist her nursing partner with whatever was needed during an IV insertion. Further, Malay stated she would not have been importing information into a computer or facing away from either Mertz or Buchmann during the IV placement as it was her responsibility to observe and assist Mertz. Malay affirmed she had known and worked with Mertz for many years and never had to intercede to correct Mertz during an IV procedure.

Mertz testified she became a licensed registered nurse in 1982, had worked at Upstate for 37 years, and had inserted thousands of IVs during her career. Mertz stressed that her "number one" priority is patient safety and minimizing risk to the patient. Generally, Mertz described the physical layout of the endoscopic suite and assignments made to nurses. Mertz recalls the endoscopic suite was not particularly busy on November 22, 2017. Mertz indicated neither she nor the staff in the endoscopic suite were trying to leave early as they had their shift to complete. Mertz testified she remembers Buchmann and inserting her IV on November 22, 2017. Mertz described that she introduced herself, washed her hands, and had a discussion with Buchmann regarding the IV placement and the best vein to utilize. Mertz determined she would be inserting the IV into Buchmann's right hand.. Mertz identified Exhibits G and G-1 as examples of the chloraprep pad utilized to sterilize the hand before inserting Buchmann's IV. Mertz explained that she put Buchmann's hand in her hand; squeezed the applicator of the chloraprep pad, which saturated the area with a sterile solution; and then scrubbed the applicator back and forth on the IV insertion area for approximately 30 seconds to one minute. Mertz testified there was no problems with the IV insertion. Mertz also stated she had no recollection of dropping the chloraprep pad. Mertz testified that, based upon her nursing experience, that there is still a risk of infection even after the sterilization process because the skin is broken where bacteria could enter.

Defendant called Dr. Kathleen Ann Steinmann (Steinmann) as an expert witness in the field of nursing. Steinmann became a nurse in 1977 and received her doctorate in nursing in 2015. Steinmann testified with a reasonable degree of nursing certainty that having two nurses working together, like Malay and Mertz, met the standard of nursing care and there was no deviation in care given to Buchmann. In contrast to the opinion of Costello, which was based solely on the statements made by Claimants, Steinmann's opinion was based upon the testimony of Claimants, Malay, Mertz, and Howard, as well as Buchmann's medical records from Upstate, St. Joseph's Hospital, and Auburn Hospital. Steinmann testified there is nothing in the record she reviewed which indicated any deviation from the standard of care. Steinmann opined that if a nurse cleans an area appropriately and all proper procedures are followed there is still a risk of infection to a patient. Steinmann further testified there is also an increase in the risk of infection if a patient suffers from diabetes, as with Buchmann.

Steinmann opined that two nurses working in "tandem," watching each other during the pre-operative preparation procedure with the obligation to intervene if witness to an improper procedure, and with no problems documented in the medical records, was good and acceptable nursing practice. Steinmann also relied upon the medical records wherein Howard documented a telephone call of December 13, 2017, noting Howard commented on the proper nursing and medical procedures undertaken on November 22, 2017.


"The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury" (Gilmore v Mihail, 174 AD3d 686, 687 [2d Dept 2019]; see Snyder v Simon, 49 AD3d 954, 956 [3d Dept 2008]). "A medical malpractice cause of action may be asserted against a registered nurse for departures from good and accepted nursing practice that proximately cause a [claimant's] injuries" (Schmitt v Medford Kidney Ctr., 121 AD3d 1088, 1089 [2d Dept 2014]; see Bleiler v Bodnar, 65 NY2d 65, 71-72 [1985]). Indeed, medical malpractice actions have been maintained upon a nurse's failure to place and/or monitor an intravenous connection (see e.g. Studdivant v Bronx-Lebanon Hosp. Ctr., 82 AD3d 654, 654 [1st Dept 2011]; Goldstein v Hauptman, 131 AD2d 724, 726 [2d Dept 1987], lv denied 71 NY2d 801 [1988]). It is well settled that "[g]eneral allegations of medical malpractice, [which are] merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient" to state a prima facie case (Alvarez v Prospect Hosp., 68 NY2d 320, 325 [1986]). It is the province of the factfinder to weigh the evidence, assess credibility of the testifying witnesses, and ultimately determine whether the defendant's actions were negligent (see Calhoun v County of Herkimer, 114 AD3d 1304, 1308 [4th Dept 2014]; see also Novick v Godec, 58 AD3d 703, 704 [2d Dept 2009]).

At issue in this claim is whether the nursing staff at Upstate properly sterilized Buchmann's hand and inserted an IV consistent with good and acceptable nursing practices. Thus, credibility of witnesses was germane to making a factual determination. The Court does not credit the testimony of either Claimant and does indeed credit the testimony of nurses Malay and Mertz. Buchmann, having previously undergone numerous procedures requiring the insertion of an IV, was fully familiar with the process. Buchmann was described by Howard as fully engaged and a very vocal advocate relative to her health care, requesting morphine rather than fentanyl, as an example. Therefore, it belies credibility that if Buchmann believed she was the recipient of an inappropriate practice, she would not have articulated her immediate concerns. The Court also finds the testimony that, after the ChloraPrep pad purportedly fell to the floor, the Claimants looked at each other and did not articulate any concern to medical staff, to be incredible. Moreover, even assuming arguendo the ChloraPrep pad fell to the floor, the Court finds as a matter of fact that nurse Mertz properly sterilized Buchmann's hand by saturating the hand with sterilizing solution, scrubbing the hand before properly inserting the IV. Therefore, the choloraprep pad purportedly falling to the floor is irrelevant. Additionally, it should be noted that Claimants did not articulate any concerns regarding the sterilization and/or IV placement process to Drs. Roy or Howard who spoke with Claimants before the procedure and specifically checked the IV site, or to any nurse, physician or medical staff at any time on November 22, 2017. The testimony of two long-term and experienced nurses, Malay and Mertz, was credible, professional, sincere, and demonstrated to this Court they provided patient care consistent with good and acceptable nursing practices. Moreover, Defendant's expert witness, Steinmann, testified that patients can suffer from adverse reactions from an IV insertion even when properly sterilized. Lastly, Steinmann opined patients with health issues, like diabetes, are at an increased risk of infection despite an IV site properly sterilized. Accordingly, this Court finds that the adverse reaction suffered by Buchmann from the placement of the IV was not the result of any negligence by Defendant in failing to properly sterilize her hand.

Further, the Court finds Claimants presented no evidence let alone not proved beyond a preponderance of the credible evidence that Defendant failed to properly supervise, hire and/or train Upstate employees.

Therefore, upon consideration of the testimony of the trial witnesses, observing their demeanor and assessing their credibility as well as reviewing all exhibits received at trial and reviewing the applicable law, this Court hereby grants Defendant's motion to dismiss made at the conclusion of trial and dismisses the Claim as it relates to Claimant Mary Buchmann.

In light of the Court's dismissal of the medical malpractice claim asserted by Buchmann, the derivative claim for loss of consortium asserted by Claimant Joseph Buchmann must be dismissed (see Klein v Metropolitan Child Servs., Inc., 100 AD3d 708, 711 [2d Dept 2012] ["a spouse's cause of action to recover for loss of services or consortium does not exist independent of the injured spouse's right to maintain an action for injuries sustained" and "the derivative cause of action cannot survive the dismissal of the main claims for damages"]; accord Allington v Templeton Found., 167 AD3d 1437, 1440 [4th Dept 2018]).

Accordingly, Claim Number 131744 is dismissed in its entirety. Any and all other evidentiary rulings or motions upon which the Court may have previously reserved, or which were not previously determined are hereby denied.


September 13, 2021

Albany, New York


Judge of the Court of Claims

1. All references to claimant or Buchmann shall be to Mary Buchmann unless otherwise noted as Joseph Buchmann's claim is derivative in nature.



Court Ex 1.



Defendant's Exhibit G is a ChloraPrep package containing Exhibit G-1 which is a ChloraPrep pad.



Ex 2.


5 Ex 1 at

13, 14.


6 Ex 2




Quotes are references to trial testimony.



Ex 1 at 21.



Ex 1 at 26.