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March 8, 1996

Gerald Einaugler, M.D., Petitioner, against Supreme Court of the State of New York for the County of Kings, the Honorable Neil J. Firetog, and Edward Kuriansky, Respondents, and Dennis C. Vacco, Attorney General of the State of New York, Additional Respondent.

The opinion of the court was delivered by: KORMAN

 Korman, J.

 Alida Lamour died on May 24, 1990, at the age of seventy-eight. The primary cause of death, as determined by the medical examiner, was "chemical peritonitis following infusion of liquid feeding supplement through [a] peritoneal dialysis catheter placed for treatment of renal failure due to essential hypertension." Tr. 589-90. Other "contributory factors to the cause of death" were "arteriosclerotic cardiovascular disease...commonly known as hardening of the arteries" and diabetes mellitus. Tr. 590.

 Six days before she died, Ms. Lamour had been transferred from Interfaith Hospital, where she had been treated for end-stage renal disease, to the JHMCB Nursing Home located across the street. End-stage renal disease "means that the kidneys stop functioning [permanently] and you need dialysis." Tr. 487. "In dialysis the functions of the kidneys, which include removing waste products from the body and regulating the chemical and water balance, are taken over by a machine." American Medical Ass'n, Family Medical Guide 551 (Charles B. Clayman ed., 3d ed. 1994).

 There are two forms of dialysis. One, hemodialysis, filters waste products from the blood. "To do this, blood from an arm or leg artery is passed along a thin tube to the [hemodialysis] machine, through its filter (called an artificial kidney), and back along another tube into an adjacent vein. A standard treatment, which lasts four hours and is repeated two or three times a week, is enough to control levels of waste products and excess water" in the body. Id.

 Until a few weeks before her death, Ms. Lamour had been receiving hemodialysis treatment at Interfaith Hospital while a resident at the JHMCB Nursing Home. Ultimately, her cardiovascular system could no longer tolerate this form of dialysis. "This was a debilitated elderly lady who had some heart failure and her level of [blood] pressure was not very great and it would not keep the vessels open so we could not continue hemodialysis in the normal way and consequently we switched her over to peritoneal dialysis." Tr. 199.

 The switch to peritoneal dialysis involved the permanent placement of a thin plastic tube, known as a Tenchkoff catheter, in a cavity inside the abdomen called the peritoneal space (the space between the inner and outer layers of the sac lining the abdominal walls). Tr. 488. "A special fluid flows slowly though the tube and fills the peritoneal space. Waste products seep from the blood vessels that line the abdomen into the fluid, which is then drained out along with water. This process takes several hours." Family Medical Guide, supra, at 551. While some patients perform this procedure for themselves, Ms. Lamour was unable to do so. The plan of treatment was to transfer her from Interfaith, where the catheter had been inserted, back to the nursing home, and to move her periodically back to Interfaith for the dialysis procedure. Tr. 206.

 Ms. Lamour was the first peritoneal dialysis patient ever to be a resident at the JHMCB Nursing Home. When she was admitted, the nursing home had no protocols in place for the care of such a resident, and the staff was not trained in the "care of the peritoneal dialysis tube, and how the nurse should change the dressing and a whole list of things to be done...." Tr. 419-20. The transfer to a nursing home that was "not equipped to deal" with her was the beginning of the end of Ms. Lamour's life.

 When she returned to the nursing home on Friday, May 18, 1990, Ms. Lamour was seen by Dr. Gerald Einaugler, who was an attending physician there and who would ultimately be held criminally responsible for her death. Dr. Einaugler observed the peritoneal dialysis tube in Ms. Lamour's abdomen. Unfortunately, he mistook it for a gastrointestinal feeding tube and issued orders for Ms. Lamour to be given Isocal, a feeding solution, via that tube.

 Dr. Einaugler would testify at his trial to several circumstances that influenced his appraisal of the situation. A Tenchkoff catheter, with which he had no experience, is similar in appearance to a kind of tube used for feeding known as a PEG, with which he was more familiar. Tr. 824-25. The placement of the tube was consistent with prudent placement of a feeding tube so as to avoid scar tissue. Tr. 52, 840-41. Although the patient's transfer form indicated that the patient had a Tenchkoff catheter, it also said "Tenchkoff catheter placed for IPD," and "intermittent peritoneal dialysis," which led Dr. Einaugler to believe that the patient was being treated with a form of intermittent dialysis in which a new tube is inserted and removed each time the procedure is done. Tr. 837-38. In addition, the form did not indicate that the patient, who required a special diet, was to be fed by mouth rather than by tube. Tr. 838-39.

 Dr. Einaugler's negligent error was compounded by a staff that was not trained in caring for patients with end-stage renal disease. Thus, the effort to carry out Dr. Einaugler's order continued even after the first nurse who attempted to comply with it was unable to connect the feeding apparatus to the patient's tube because the openings were not compatible. With the assistance of another nurse and a supervisor a plastic cap was removed from the dialysis tube to make it compatible with the feeding tube and the feeding commenced on Friday evening. Tr. 1297-99.

 Although the feeding of Alida Lamour proceeded at regular intervals over the weekend, it was not until approximately 5:30 a.m. on Sunday morning, May 20, 1990, that a nurse noticed that the patient was having difficulty breathing, her abdomen was distended, and she had previously vomited. Tr. 47-49, 295. The nurse realized what had happened and notified her supervisor. The nurses then drained about 2,000 cc's of feeding solution from the catheter by rolling the patient over and rocking her back and forth. At that point, the breathing difficulty subsided, Ms. Lamour's vital signs were normal, and she rested quietly. Tr. 50.

 At approximately 6 a.m., the nurse supervisor notified Dr. Einaugler of his mistake and described Ms. Lamour's condition. Dr. Einaugler then called Dr. Dunn, who was the Chief of Nephrology at Interfaith Hospital and who had treated Ms. Lamour during her last stay. Dr. Einaugler testified that he "told Dr. Dunn that I had inadvertently ordered to feed tubing through a catheter that was in essence a peritoneal catheter. I misjudged it for a PEG. I told him the nurses had fed the patient but they told me that they had drained out most of the fluid, the patient was stable, she had no peritoneal abdominal signs and did not seem to be in any distress." Tr. 844-45. According to Dr. Einaugler, Dr. Dunn told him "don't get panicky. Don't worry, it doesn't seem like any emergency the way you are describing it to me. If she's stable, send her to the hospital on Monday, and then we can evaluate her for dialysis and lavage." Tr. 845.

 After his telephone conversation with Dr. Dunn, Dr. Einaugler testified that he went to the nursing home to examine the patient. She was stable and showed no early signs of an adverse reaction. Tr. 846. Dr. Einaugler testified that he called Dr. Dunn after examining Ms. Lamour and "told him my findings...she seems to be in no distress, bowel sounds are present, there is no fluid percussion that I can feel." Tr. 846. Dr. Dunn, according to Dr. Einaugler, "reiterated in essence again that that's good, it seems that everything is stable, doesn't seem to be a problem at this time, and we can send the patient out on Monday for lavage and dialysis." Tr. 846. Dr. Einaugler testified that he told Charlene Lowe, a nurse who was the evening supervisor at the nursing home, to "document in the chart that I spoke to Dr. Dunn and this is what he told me, that it doesn't seem to appear to him, the way we have described it, as an emergency situation, and that on the following day, transportation to the hospital and evaluation for lavage and dialysis would be done." Tr. 845.

 Sometime between 11 a.m. and 2 p.m., Dr. Einaugler notified Dr. Khaski, the supervising physician at the nursing home, about the feeding tube mistake. Tr. 404-05. The substance of this conversation was likewise the subject of conflicting testimony. Dr. Einaugler and Dr. Khaski both agree that during this conversation petitioner told Dr. Khaski that Dr. Dunn had said that "it was not an emergency, and the patient can be kept there [at the nursing home], and for the following day on Monday." Tr. 396, 851. Contrary to Dr. Einaugler's account, Dr. Khaski further testified that he disagreed with the evaluation and urged that the patient be hospitalized:

I told Dr. Einaugler that the patient should be transferred to the hospital. I do not agree with Dr. Dunn. It's an unusual occurrence, you know, mistake was done and she should be treated in the hospital and not in the nursing home.

 Tr. 396.

 Dr. Einaugler testified that he checked the patient again in the early afternoon and that she was still stable. Tr. 851-52. At approximately 4:30 p.m. he received a call from a nurse advising him that Ms. Lamour was "less responsive," "looked weak," and was not tolerating food by mouth. Tr. 251, 852-53. The nurse's contemporaneous note recorded that Ms. Lamour was "unresponsive" to verbal stimuli, looked "pale and ill," but did not have a fever. Tr. 252. Dr. Einaugler then ordered Ms. Lamour transferred to Interfaith Hospital. Id.

 Shortly after Ms. Lamour arrived at Interfaith, Dr. Dunn began monitoring her condition by telephone. Dr. Dunn testified that although Ms. Lamour entered the hospital through the emergency room, he believed she was "admitted immediately up to a bed on a floor." Tr. 207. He further testified that he had explained to the house staff "what should be done that day and what would be done the next day" and, he continued, "I was content that there was no necessity for me going into the hospital." Tr. 207.

 The treatment Ms. Lamour required after being admitted to the hospital was a continued effort to remove any remaining Isocal from her peritoneum, Tr. 204, and "antibiotic coverage" to prevent the onset of bacterial peritonitis, which would almost inevitably develop from the bacteria in the Isocal. Tr. 209. Although a substantial amount of Isocal had been drained by the staff at the nursing home earlier that day, it was unlikely that all of it had been removed from the peritoneal cavity. The procedure used to remove the remaining Isocal is known as lavage, Tr. 204, a process by which a sterile solution is inserted into the peritoneum and then removed. The process is repeated continuously without allowing the solution to remain in the peritoneum for any extended period of time. "Initially you would not want to have too much of a dwell time because you're interested in getting out particular matter. You're not interested in letting the solution stay there to do the peritoneal dialysis which would ordinarily be done" by a similar process. Tr. 231.

 Although Ms. Lamour was admitted to the hospital at about 5 p.m. on Sunday, it does not appear that she received the critical treatment that she should have received until sometime the next day. Dr. Dunn did not know when lavage was begun. Tr. 228. There was a note in the Interfaith Emergency Room admission records, People's Ex. 1-21, indicating that the plan for the management of the patient included "peritoneal lavage" and another note under it, in parentheses, indicating that this was "done." Dr. Michael Baden, the only witness asked to interpret this record testified that it was "not possible to say from this entry that it was done the same day the patient came in, and my impression from all of the records is that the lavage was done the next day." Tr. 1189. The only other evidence indicating the times that treatment was administered came from Dr. Robert Feingold, an expert prosecution witness, who testified that hospital records, People's Exs. 1-32 and 1-90, indicated that lavage was started at 9 a.m. on Monday and that antibiotics were first administered at one o'clock on Monday, although he could not decipher whether it was a.m. or p.m. Tr. 508.

 The consequences, if any, of the delay in treating Ms. Lamour for peritonitis were not immediately apparent. When Dr. Dunn visited Ms. Lamour for the first time on Monday morning, she was in the same condition that Dr. Einaugler had described to him on Sunday morning. Tr. 239. "She looked pretty good and was very benign and was not running a temperature. The belly was very soft and benign." Tr. 235. Ms. Lamour's condition was, "unbelievable, but wonderful." Id. Nevertheless, she died four days later.

 A grand jury investigation of the circumstances leading to her death resulted in an indictment charging petitioner with reckless endangerment in the second degree in violation of Penal Law § 120.20 and of willful patient neglect in violation of Public Health Law § 12(b). The indictment reads as follows:

Count One
The defendant, Gerald Einaugler, from on or about May 18, 1990, to on or about May 20, 1990...recklessly engaged in conduct which created a substantial risk of serious physical injury to another person in that the defendant, an attending physician...on May 18, 1990 ordered and directed that Alida Lamour, a patient under his care at this nursing home, be administered a feeding solution through an existing peritoneal dialysis catheter. Early in the morning of May 20 of 1990, the defendant became aware that the patient required immediate hospitalization to treat the effects of the introduction of the feeding solution to the peritoneum. The defendant did not order such hospitalization until late in the afternoon of that day, thereby creating a substantial risk of serious physical injury to Alida Lamour.
Count Two
The defendant, Gerald Einaugler...willfully violated Section 2803-d, subdivision 7 of the Public Health Law, Part 81 of the regulations promulgated by the Commissioner of Health therein, that the defendant, a licensed physician, while acting as an attending physician...neglected Alida Lamour, a patient at the nursing home by ordering that the patient be administered a feeding solution through the peritoneal dialysis tube and that after having become aware of that error, and of the necessity for immediate hospitalization in order to rectify that error, he knowingly failed to do so.

 After a jury trial, Dr. Einaugler was convicted of both charges and sentenced to incarceration for fifty-two weekends. The Appellate Division affirmed his conviction, People v. Einaugler, 208 A.D.2d 946, 618 N.Y.S.2d 414 (App. Div. 2d Dep't 1994), and Judge Simons denied his application for leave to appeal, 623 N.Y.S.2d 187 (1995). Dr. Einaugler now petitions for a writ of habeas corpus. The principal claims raised by petitioner are that his convictions on the two counts are not supported by sufficient evidence and that he was denied a fair trial because of the admission of evidence that Ms. Lamour died of chemical peritonitis following the infusion of Isocal through the peritoneal dialysis catheter.


 This is a sad case. Alida Lamour was the victim of multiple acts of medical malpractice. She was returned to the JHMCB Nursing Home where the staff was not trained to care for her. A chemical irritant was mistakenly fed into her peritoneal dialysis catheter; it took a day and one-half before the mistake was noticed; she was not immediately transferred to Interfaith Hospital for treatment that would have addressed the potentially life threatening effects of chemical peritonitis which she contracted as a result of being fed through the catheter; and, when she was finally admitted to Interfaith Hospital, she may not have immediately received the treatment that she should have been given.

 The only person held accountable in any way for this neglect is petitioner. The distinction between the conduct that formed the basis for the indictment and the other acts of neglect is that petitioner is alleged to have deliberately failed to take steps that he knew he should have taken. The linchpin of both counts is not the careless error that caused the patient to be fed Isocal through the dialysis catheter. This error, however horrifying and incompetent, was a mistake from ignorance, not a mistake made with any apparent criminal intent. Instead, the criminal conduct alleged in the indictment was petitioner's failure to hospitalize the patient after he became aware that it was necessary "to treat the effect of the introduction of the feeding solution to the peritoneum," (Count One) and to "rectify the error" (Count Two).

 While each of the two charges contains different elements, the one element they have in common is, under different formulations, that the defendant consciously deviated from what he knew to be the appropriate standard of care. Accordingly, before proceeding to discuss separately petitioner's challenge to the sufficiency of the evidence as to Counts One and Two, it is necessary to address this common element.

 The evidence was undisputed that Ms. Lamour required hospitalization in the early morning hours of May 20, 1990, when petitioner first learned that she had been fed through the peritoneal dialysis catheter. Doctor Dunn and Dr. Feingold, the prosecution's key expert, as well as the defense's two expert witnesses, all testified that they would not have delayed transferring the patient to the hospital. The physicians for the defense stated they would have begun treatment immediately even though the patient was experiencing at most a "mild" case of peritonitis on Sunday. Tr. 1049, 1091, 1314, 1358. Dr. Feingold stated that, even if her condition did not appear serious, a severe reaction could develop later. Dr. Feingold called this the "calm before the storm." Tr. 495. Although Dr. Dunn stated that, based on the patient's condition on Sunday, "I would not think that there was an emergency situation at that moment in time, that her life was in danger momentarily," Tr. 238, and that "even on Monday morning...she was not in immediate danger of dying," Tr. 239, he also testified that he would not have delayed transferring her to the emergency room.

 There was also sufficient evidence, if credited by the jury, to establish that petitioner knew of the need for prompt hospitalization. Petitioner testified that he did not exercise any independent judgment in determining how to treat Ms. Lamour. Instead, he followed the advice of Dr. Dunn:

So basically, by calling Dr. Dunn, if he would have given me an input, look send the patient down that day, or write orders for certain dialysate, what has to be done, I would have followed the instructions, but he did not give me orders for that. He basically said the patient appeared stable and this could be managed on Monday, and his expertise and knowledge of the patient; and I have never handled this type of problem before. I relied on his expertise.

 Tr. 849. In response to a direct question from his attorney, petitioner reiterated that, if Dr. Dunn had told him that Alida Lamour "should have been transferred to the hospital immediately," he would have done so "because I was relying on his expertise. It was a new situation which I had never encountered." Tr. 849-50.

 Dr. Dunn, however, flatly contradicted petitioner's version of his conversation with petitioner. Dr. Dunn testified that, when he spoke to petitioner on Sunday morning, he told petitioner to hospitalize Ms. Lamour and he denied saying that her hospitalization could be delayed until Monday. Dr. Khaski, with whom petitioner spoke in the early afternoon, testified that he explicitly told petitioner that Ms. Lamour's hospitalization could not be delayed until Monday. Their testimony, as Dr. Einaugler acknowledged, was not consistent with his:

Q. And did you hear Dr. Dunn say in words or substance that he told you to send the ...

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