New York State Court of Claims

New York State Court of Claims

POWERS v. THE STATE OF NEW YORK, #2000-001-502, Claim No. 95920


Synopsis


In this damages trial, the Court awards claimant Powers damages totaling $24,108; and awards claimant Levenberg damages totaling $39.20.

Case Information

UID:
2000-001-502
Claimant(s):
SHAUN POWERS and RASSA LEVENBERG
Claimant short name:
POWERS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
95920
Motion number(s):

Cross-motion number(s):

Judge:
Susan Phillips Read
Claimant's attorney:
Finkelstein, Levine, Gittelsohn and PartnersBy: David J. Pollock, Esq., Of Counsel
Defendant's attorney:
Hon. Eliot Spitzer, NYS Office of the Attorney GeneralBy: Paul Cagino, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
July 14, 2000
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
While biking down the tiered concrete ramp connecting with the sidewalk and bicycle path along the span of the Dunn Memorial Bridge and leading into the City of Albany, claimant Shaun Powers ("claimant Powers") injured himself when he lost control of his bicycle, rocketed headlong over the handlebars and plunged some fifteen feet down the ramp before striking the pavement. This accident occurred on July 22, 1996 when claimant Powers was sixteen years old; he was cared for afterwards by his mother, claimant Rassa Levenberg ("claimant Levenberg"), who has a derivative cause of action.

In a decision dated June 28, 1999 and filed July 9, 1999, the Hon. Louis C. Benza found defendant State of New York ("defendant" or "the State") 40% at fault and claimant Powers and claimant Levenberg (collectively, "claimants") 60% at fault. Interlocutory judgment was entered on July 21, 1999; the trial on damages took place in Albany, New York on February 18, 2000.

I. Claimant Powers' Injuries and Subsequent Treatment
After his accident on July 22, 1996, claimant Powers was transported by ambulance to Albany Medical Center where fractures of his right wrist and right clavicle were diagnosed, as well as abrasions and a possible fracture of his left elbow (
see, claimant's exh. 2, 5 pages [front and back] of medical records from Albany Medical Center). Closed reduction was performed on claimant Powers' right wrist, which was placed in a long arm cast; his right upper extremity was placed in a sling and his left elbow in a splint; and he was discharged home and referred to Dr. Christopher D. DeCamp for follow up (id.).
On July 25, 1996, three days after his accident and treatment at Albany Medical Center, claimant Powers, "quite encumbered by casts and splints and straps," visited Dr. DeCamp for the first time (DT-D 7).[1]
Dr. DeCamp is a Board-certified orthopedic surgeon, who also has attained a certificate and qualification in surgery of the hand and is a member of the American Society of Surgery of the Hand (DT-D 4-5).
Dr. DeCamp diagnosed right wrist and right clavicle fractures and left elbow effusion and contusion. While claimant Powers "had had quite a successful closed reduction and casting" of his fractured right wrist at Albany Medical Center (DT-D 6), Dr. DeCamp recommended close monitoring of the joinder of the fracture fragment to the bone (DT-D 9; claimants' exh. 1, Urgent Visit Note, dictated 07/25/96 and transcribed 07/26/96; and claimants' exh. 3, p 016).[2]
He explained to claimants that if the fracture became displaced, he recommended surgery to restore a smooth contour because a jagged edge might lead to traumatic arthritis (id.). He also recommended early range of motion exercises or therapy for claimant Powers' left elbow (id.).
When claimant Powers next visited Dr. DeCamp on July 29, 1996, one week after his accident, the x-rays of his right wrist disclosed that "the fracture that had been set nicely at Albany Medical Center had--over the four days had come apart and was gapped, gapped open and displaced. And I felt at that point in time it was unacceptable to leave it in that position and we were preparing him for surgery" (DT-D 10). Upon re-examination of claimant Powers' other injured areas, Dr. DeCamp discovered that
on the left wrist it was apparent that he was starting to get some pain . . . [and] that he had a small impaction fracture, kind of a crush fracture of one of the small bones in the wrist. And at that time, I believe that was treated with a splint, a removable Velcro splint. And I felt that it would heal just fine in the splint. His elbow range of motion was improving. And it was the right wrist that we were most concerned about at that time, so we were getting him ready for surgery
(DT-D 11-12). Dr. DeCamp recommended physical therapy for claimant Powers' left elbow (claimants' exh. 1, Office Visit Note, dictated 07/29/96 and transcribed 08/02/96; claimants' exh. 3, p 020).
On July 31, 1996, Dr. DeCamp operated on claimant Powers' right wrist, performing an open reduction and internal fixation with a plate and screws under general anesthesia at the Community Health Plan ("CHP")'s Ambulatory Surgery Center (DT-D 12-13; claimants' exh. 3, pp 035-036).

On August 5, 1996, claimant Powers' right wrist was checked by a physician's assistant who worked with Dr. DeCamp (DT-D 13-14). The physician's assistant's notes indicate that claimant Powers was recovering nicely from the surgery and had experienced "
no significant postoperative pain" (emphasis added) (see, claimants' exh.1, Office Visit Note, dictated 08/05/96 and transcribed 08/11/96; claimants' exh. 3, p 040). Claimant Powers apparently returned on August 13, 1996 for removal of sutures (id.; claimants' exh. 3, p 041).
Dr. DeCamp next examined claimant Powers on September 13, 1996, at which time he found the injuries to the left wrist and right clavicle completely healed. The right wrist fracture was "completely healed on x-ray" and claimant Powers' right wrist exhibited good range of motion, lacking only about 10 to 15 degrees of dorsiflexion and palmar flexion as compared to his left wrist; however, he complained about the sensitivity of his surgical scar (claimants' exh. 1, Office Visit Note, dictated 09/13/96 and transcribed 09/18/96; claimants' exh. 3, p 044). Attributing claimant Powers' failure to report to therapy to "confusion," Dr. DeCamp stated that he "needs therapy. We will get that scheduled" and directed "[f]ollow up in six weeks and get therapy. He will return to see me at that time" (
id.; see also, DT-D 14).
When claimant Powers next visited Dr. DeCamp on October 18, 1996, he exhibited range of motion of the right wrist of 45
Ε
dorsiflexion and 60
Ε
palmar flexion, full turning ability of the right forearm and hand, and "[r]ight wrist grip strength . . . grossly equal to the normal left side" (claimants' exh. 1, Office Visit Note, dictated 10/18/96 and transcribed 10/21/96; claimants' exh. 3, p 047). His collar bone fracture was "quite obviously healed," but claimant Powers was quite sensitive to touch there and at the site of the scar on his right wrist (DT-D 15-16).

Claimant Powers had been undergoing physical therapy at Hudson CHP but wished referral to a more convenient location (claimants' exh. 1, Office Visit Note, dictated 10/18/96 and transcribed 10/21/96; claimants' exh. 3, p 047), which Dr. DeCamp accommodated by referring him to a facility in Greenville, New York (claimants' exh. 7, undated Referral Form of CHP Hudson Health Center) described by claimant Levenberg as located across from her son's school. Between November 13 and December 13, 1996, claimant Powers completed a course of six physical therapy treatments apparently designed in part to "push" his right wrist's range of motion (
see, claimants' exh. 7).
When claimant Powers next visited Dr. DeCamp on December 18, 1996, the doctor noted that "[p]hysical examination of the right wrist reveals
excellent full range of motion. He has a very hypertrophic scar in the palmar aspect of the right wrist (emphasis added)" (claimants' exh. 1, Office Visit Note, dictated 12/18/96 and transcribed 12/19/96; claimants' exh. 3, p 049; DT-D 27). Further, claimant Powers "has intact hardware, some irritability from the hardware. He wants the hardware removed," and so Dr. DeCamp scheduled elective surgery for hardware removal to be followed by physical therapy (id.).
On January 29, 1997, Dr. DeCamp operated on claimant Powers to remove the plate and screws from his right wrist. Surgery was again performed under general anesthesia at the Community Health Plan's Ambulatory Surgery Center (claimants exh. 3, pp 051-052, 055-56, 059, 062-065, 067-070, 073), and claimant Powers was scheduled for post-operative appointments with Dr. DeCamp on February 3 and February 10, 1997 (claimants' exh. 3, pp 053, 071). When claimant Powers did not show up for either appointment, he was sent a postcard on March 4, 1997 (claimants' exh. 3, pp 066, 074-075).

Claimant Powers did not visit Dr. DeCcamp again until May 6, 1997, at which time the doctor noted that his patient had been "lost to follow-up since his surgery" and "has not had any physical therapy" (claimants' exh. 1, Office Visit Note, dictated 05/06/97 and transcribed 05/07/97; claimants' Exh. 3, p 077;
see also, DT-D 17-18). Dr. DeCamp found the surgical wound to be well healed, and a less hypertrophic but still quite a thick scar to have re-formed. Claimant Powers' range of motion in the right wrist was "quite acceptable in flexion but in extension he is missing about 20 or 30 degrees, it is very tight," and "[h]is grip strength is a little diminished" (claimants' exh. 1, Office Visit Note, dictated 05/06/97 and transcribed 05/07/97; claimants' exh. 3, p 077). Dr. DeCamp ordered physical therapy at the CHP-approved facility in Greenville, New York where claimant Powers had been treated the previous fall and directed his patient to see him again in six weeks.
Claimant Powers did not show up for his follow-up appointment with Dr. DeCamp scheduled for June 23, 1997 (claimants' exh. 3, p 078) but instead next visited Dr. DeCamp on December 15, 1997, "wondering if physical therapy can help him. He states that the wrist hurts him some" (claimants' exh. 1, Office Visit Note, dictated 12/15/97 and transcribed 12/16/97; claimants' exh. 3, p 080). Upon physical examination, Dr. DeCamp found a "slight decreased range of motion and dorsiflexion of about 10 degrees compared to his normal left wrist. Pronation supination is full. Grip strength is almost 90% of his left side. Examination of the right shoulder is normal" (
id.). Dr. DeCamp discharged claimant Powers from his care, commenting that "I do not think therapy will benefit him at this time. He is many many many months post injury" (id.).
II. Claimants' Damages
A. Claimant Powers' Testimony
Claimant Powers testified that when he struck the ramp's pavement he rolled over on his back in pain and his arm felt loose "like it was not connected" and his collarbone was "sticking out of his chest" and his right wrist throbbed.[3]
While in the ambulance and at Albany Medical Center, he experienced pain and was administered pain medication once his mother, claimant Levenberg, arrived at the hospital. Upon his discharge home, he felt "out of it" and spent a painful, sleepless night.
After the surgery on July 31, 1996, claimant Powers' right wrist was sore and throbbing, and he was nauseous from the anesthesia. He could "do nothing" with his right arm and wrist, and little with his left once it was placed in a brace. For some time, he depended on others to feed him and tend to his needs because he "couldn't move [his] arms that well."

Claimant Powers returned to high school on schedule in September. He is left-handed and could write when the brace was removed from his left wrist. He was excused from physical education class.

In the summer of 1996, prior to his accident, claimant Powers worked as a caddy at Shaker Ridge Country Club, earning $40 to $50 a weekend.
But for his accident, he would have continued caddying until high school classes resumed in September. At the time of trial, claimant Powers was enrolled at Hudson Valley Community College and worked part-time approximately nineteen to twenty hours a week stocking store shelves.
Claimant Powers testified that his right wrist did not feel "full speed" as compared to his left; specifically, he experiences some soreness and cramping in the right wrist in cold weather or when the weather changes; does not have full range of motion of his right wrist; can not push properly with his right hand; and can not bend his right hand completely when he grasps an object. He takes aspirin and rests his right hand awhile whenever he experiences discomfort in the right wrist when using a computer to type school papers or when playing video games or engaging in any activity requiring him to move his hands.
Claimant Powers has a 2-inch scar at the site of the surgical incision on his right wrist. His left wrist is non-symptomatic as is his right clavicle; however, he has a visible, walnut-sized lump where the right clavicle fractured. The lump is sensitive to touch or pressure and irritates him if he wears a backpack or places the passenger-side seatbelt strap over his right shoulder.

Claimant Powers testified that he does not play sports. He purchased a new mountain bicycle in the summer of 1999; he swims and hits golf balls at the driving range.

B. Claimant Levenberg's Testimony
Claimant Levenberg testified that her son, claimant Powers, depended on her nearly completely for approximately six to eight weeks after his accident. He was heavily medicated for pain for awhile and so burdened with casts and slings and straps that he could not feed himself, take his medication, walk up and down stairs, go to the bathroom, reposition himself when lying down or even operate the remote control on the television set without her assistance. He was "uncomfortable" and "miserable" after his first surgery; after his second surgery he was again sore and unwell, although his "mood was a little better" because he knew that the hardware had been removed from his right wrist.

According to claimant Levenberg, her son has not been as athletically active since his accident as he had been before, i.e., he has not picked up a baseball bat; he has not gone tubing; he showed no interest in biking again until the summer of 1999. Moreover, he remains self-conscious--perhaps "a little vain"-- about the 2-inch scar on his right wrist and the lump on his right clavicle and so will not wear a short-sleeved shirt in public or swim without wearing a tee shirt to cover his chest.

Claimant Levenberg and her family, which included claimant Powers and his three siblings, moved to Hannacroix in Greene County, New York along with her boyfriend and his two children approximately two weeks before claimant Powers' accident. She had a job lined up at $7/hour for a 40-hour workweek, but she delayed starting work in order to nurse her son.

C. Medical Testimony
Dr. DeCamp opined that the 10
Ε
deficits in claimant Powers' extension and flexion of the right wrist and his 10% loss of grip strength on the right side are likely permanent conditions, as are the cosmetic deformity of the right clavicle, the internal and external scarring of the right wrist and the achiness of the right wrist that claimant Powers experiences in cold weather or with strenuous use of his right hand (DT-D 19-22). Dr. DeCamp acknowledged that a 10
Ε
deficit in range of motion was "pretty much back to normal" (DT-D 30).

Dr. DeCamp does not "think [claimant Powers'] wrist is going to loosen up much further [because] he has quite a significant amount of injury there, scar tissue from the injury, scar tissue from two surgeries. And . . . what you see is what you'll get forever in that wrist" (DT-D 22-23). In his opinion, physical therapy would not restore full range of motion to the right wrist because "[u]sually you have a window of opportunity of three to four months after an injury or some surgery before scar tissue really matures and thickens. So a lot of people in the hand surgery field feel that you better get it moving as soon as possible or else you're going to really lose that range of motion and develop some pretty mature scar tissue" (DT-D 32-33).

While testifying that claimant Powers has "more chance of getting arthritis" and has a "higher chance of developing carpal tunnel syndrome" in the right wrist solely because he once fractured it (DT-D 23-24), on cross-examination Dr. DeCamp characterized carpal tunnel syndrome as "a possibility. It's not a definite, but it's certainly a possibility" (DT-D 24) and agreed that the risk of arthritis is "speculative" (DT-D 25). In Dr. DeCamp's opinion, claimant Powers' left wrist has healed fully with no residual symptoms, and his right clavicle has healed fully with no residual symptoms except for the small bony prominence at the fracture site (DT-D 25).

Dr. Louis J. Benton, Jr., who performed the independent medical examination of claimant Powers and testified on behalf of the State, is Board-certified in orthopedic surgery and held a fellowship in hand surgery at Baylor Medical College (DT-B 4-5).[4]
His testimony and Dr. DeCamp's were virtually congruous throughout. Dr. Benton, however, did not consider claimant Powers at greater risk of developing arthritis or carpal tunnel syndrome in his right wrist solely because he once fractured it (DT-B 13-14) and opined that claimant Powers' range of motion in the right wrist would likely improve, principally because of his youth: "He's only 20;. . . . just the passage of time will cause further maturation of this scar tissue. The passage of time and everyday use will loosen up this [10Εof flexion and 15Ε of extension] range of motion
decrease . . . approximately 80 per cent" (DT-B 13).
III. Conclusion
Based on a fair preponderance of the credible evidence, the Court therefore makes the following findings and awards:
(1) As a result of his accident on July 22, 1996, claimant Powers fractured his right wrist and right clavicle; suffered a small impaction fracture of one of the small bones in the left wrist; left elbow contusion and effusion; and sustained abrasions and bruises. These injuries had healed within approximately eight weeks after the accident. The Court bases these findings on exh. 2 (medical records from Albany Medical Center), exh. 1 (Dr. DeCamp's office visit notes); exh. 3 (claimant Powers' medical record at CHP/Kaiser Permanente); and the testimony of Dr. DeCamp.

(2) Dr. DeCamp performed two surgeries on claimant Powers: on July 31, 1996, he operated to insert a plate and screws in claimant Powers' right wrist; on January 29, 1997, he operated to remove the plate and screws from Claimant Powers' right wrist. Prior to the second surgery, claimant Powers had regained "excellent full range of motion" of the right wrist. The Court principally bases this finding on exhs. 1, 3 and 7.

(3) Claimant Powers' injuries proximately caused by his accident on July 22, 1996 and his surgery on July 31, 1996 and his surgery on January 29, 1997 produced past pain and suffering for which the Court finds $30,000.00 reasonable compensation.

(4) As a result of his accident on July 22, 1996, claimant Powers has a permanent mild to moderate cosmetic deformity where the right clavicle fractured and a permanent 2-inch scar where the surgical incision was made to insert and later to remove the plate and screws from his right wrist, based on the testimony of Drs. DeCamp and Benton. Claimant Powers also has a slight (10
Ε
to 15
Ε
) loss of range of motion in his right wrist, which Dr. DeCamp opines is no longer susceptible to improvement by physical therapy and therefore is permanent, and which Dr. Benton opines will essentially disappear with time. Based upon claimant Powers' testimony, the Court also finds that he experiences some achiness of his right wrist with exertion and in cold weather, which is alleviated by aspirin and rest.

(5) While claimant Powers testified that he diligently followed a physical therapy regimen to regain full range of motion of his right wrist subsequent to his accident and surgeries, the Court finds that he did not undertake physical therapy for his right wrist after his second surgery within the "window of opportunity of three to four months after an injury or some surgery," when, in Dr. DeCamp's opinion, physical therapy is efficacious (DT-D 32): (a) claimant Powers missed his scheduled appointments with Dr. DeCamp to follow up the second surgery on his right wrist (claimants' exh. 3, pp 053, 066, 071, 074-075); (b) claimant Powers visited Dr. DeCamp three months after his second surgery but failed to pursue the recommended physical therapy for his right wrist or to appear for his next scheduled follow-up appointment (claimants' exh. 1, Office Visit Note, dictated 05/06/97 and transcribed 05/07/97; claimants' exh. 3, p 077-078; claimants' exh. 7, CHP Referral Form, signed by Dr. DeCamp and dated May 6, 1997); and (c) when claimant Powers visited Dr. DeCamp some seven months later, "wondering if physical therapy [could] help him," Dr. DeCamp considered too much time to have by then elapsed since the injury and discharged claimant Powers from his care (claimants' exh. 1, Office Visit Note, dictated 12/15/97 and transcribed 12/16/97; claimants' exh. 3, p 080).

(6) The Court determines that claimant Powers, whose life expectancy at the time of trial was 53.3 years (
see, PJI vol 1A, app A), will experience future pain and suffering for which $40,000.00 is reasonable compensation in consideration of the permanent mild to moderate cosmetic deformity of the right clavicle and the 2-inch scar on the right wrist; the slight loss of range of motion of the right wrist, for which claimant Powers may be held in part accountable because of his failure to undertake physical therapy after his second surgery and which may improve in any event; and the mild discomfort he experiences in the right wrist in cold weather and with exertion. The Court credits Dr. Benton's testimony that (a) he found no evidence of traumatic arthritis in claimant Powers' right wrist, and (b) claimant Powers' history of fracture of the right wrist does not place him at greater risk of developing arthritis or carpal tunnel syndrome in the future than would otherwise be the case.
(7) The Court finds that claimant Powers lost $270.00 ($45.00 x 6 weeks) in past income, based on his testimony that he earned $40.00 to $50.00 caddying weekends prior to his accident on July 22, 1996 and expected to continue caddying weekends until the school term commenced in September, 1996.

(8) The Court awards claimant Powers $0 dollars for future lost income and $0 for future medical expenses, for both of which no proof was offered.

(9) The parties have stipulated to past medical expenses in the amount of $98.00 (14 x $7.00, the co-payment made by claimant Levenberg for each of claimant Powers' six visits to the physical therapist and his eight visits to Dr. DeCamp).

(10) The Court does not award claimant Levenberg any other expenses because she offered no proof to support a claim for loss of services ( PJI 2: 317) and no proof to support a claim for any recoverable expenses except past medical expenses (PJI 2: 318); specifically, she offered no proof as to the reasonable value of any nursing services she may have necessarily provided to claimant Powers during his convalescence ( PJI 2: 318.1). While she offered proof that she lost earnings because she postponed starting employment in order to care for claimant Powers, any such lost earnings are not recoverable (
Barnes v Keene, 132 NY 13; Syczhk v Szczerbaniewicz, 233 App Div 342).
Based on a fair preponderance of the credible evidence, in summary, the Court therefore finds claimant Powers suffered damages on his claim as follows:
Past Pain and Suffering $30,000.00

Future Pain and Suffering $40,000.00
Past Lost Income $ 270.00

Future Lost Income $ 0.00

Future Medical Expenses $ 0.00

Total $70,270.00


The Court finds claimant Levenberg suffered damages on her derivative claim as follows:
Past Medical Expenses $ 98.00
Other Expenses $ 0.00


Total $ 98.00

Since claimant Powers has been found 60% at fault for his accident, the Court awards him damages totaling $28,108.00; and awards claimant Levenberg damages totaling $39.20. The Court exercises its discretion to set interest on these awards at the presumptively reasonable statutory rate of 9%, to run from June 28, 1999, the date of the liability decision. Any motions on which the Court previously reserved judgment or which were not previously decided are denied. The Chief Clerk is directed to enter judgment accordingly.

July 14, 2000
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[1]
"DT-D" refers to the transcript of Dr. DeCamp's videotaped deposition conducted on February 9, 2000 (claimants' exh. 4-A), which was admitted into evidence along with the videotape (claimants' exh. 4).
[2]
Dr. DeCamp's office visit notes comprise claimants' exh. 1 and are also found in claimants' exh. 3, the Bates-stamped documents comprising claimant Powers' medical record at Community Health Plan/Kaiser Permanente.
[3]
Unless otherwise indicated, quotations are from the Court's trial notes or audiotapes of the trial on liability.
[4]
"DT-B" refers to the transcript of Dr. Benton's videotaped deposition testimony conducted on February 14, 2000 (defendant's exh. A-1), which was admitted into evidence along with the videotape (defendant's exh. A).