New York State Court of Claims

New York State Court of Claims

BRADT v. THE STATE OF NEW YORK, #2000-004-016, Claim No. 97717


Synopsis



Case Information

UID:
2000-004-016
Claimant(s):
DORIS E. BRADT
Claimant short name:
BRADT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
97717
Motion number(s):

Cross-motion number(s):

Judge:
JEROME F. HANIFIN
Claimant's attorney:
MARTIN, HARDING AND MAZZOTTIBY: Victor L. Mazzotti, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER
ATTORNEY GENERAL
BY: James E. ShoemakerAssistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
November 29, 2000
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

On April 12, 1997, Claimant fell shortly after exiting Bouck Hall on the State University of New York at Cobleskill Campus. She was taken from the scene of her fall to the Bassett Hospital in Cobleskill, New York where x-rays revealed that she had suffered a "displaced fracture through the neck of the left femur with foreshortening". (Cl. Ex. 16, Radiology Report) Claimant was transported to and admitted to the Albany Memorial Hospital (Memorial) on the following day, April 13, 1997. On that same date she was operated on by Dr. Bilfield, an orthopedic surgeon. Dr. Bilfield did not testify at the trial. A transcript of his testimony is in evidence as Cl. Ex. 19 and a videotape of his testimony is in evidence as Cl. Ex. 20. He testified that Claimant had sustained a subcapital fracture and explained that "A subcapital fracture is a break in the ball of the hip joint. The hip joint is a ball and socket. This fracture goes through just below the ball portion and, when it's displaced, requires an endoprosthetic replacement". (Cl. Ex. 19, p 8) Since Claimant had sustained a displaced fracture, Claimant required an endoprosthetic replacement. According to Dr. Bilfield, "the fractured ball was removed and a metal stem and ball was used to replace the fractured portion". (Cl. Ex. 19, p 9) Dr. Bilfield estimated that the surgical incision was six to eight inches long. (Cl. Ex. 19, pp 10-11) Claimant was discharged from Memorial on April 17, 1997 and was admitted to the Eddy Cohoes Rehabilitation Center (Eddy) on that same date. (Cl. Ex. 18, p 1) Claimant received physiotherapy at Eddy until she was discharged on May 2, 1997 at which time she went home.


Claimant testified that after her surgery and while she was still in the hospital she felt "pain". She testified that on the third day, "They got me up and I had a walker and a person by my side". She also recalled that while at Eddy she received physiotherapy treatments which involved "trying to go up a few steps at a time" during which she felt "pain in my hip". It was her recollection that after arriving home she had further physiotherapy aides and nursing assistants at her home for a period of some three or four weeks. Asked how she felt during this period, she testified that she had "pain". Claimant recalled that she saw Dr. Bilfield once in 1997, after having been discharged from the hospital, and that on those occasions she had pain in her hip. Asked how she felt at the trial, she testified that her hip had "pain in it" which she experienced "every once in a while". Asked if weather had any effect, she responded that it did "especially when there is going to be a storm. It feels like a bunch of pins going through there". Asked if she currently takes medication for her hip she responded, "Once in a while, I have to take an Advil".


Claimant had a total left knee replacement in 1994, prior to the subject accident, and a total right knee replacement in November of 1998, subsequent to the subject accident. It does not appear that either of these knee replacements were related to or played a role in the subject accident.


On cross-examination, Claimant testified that she had told Dr. Bilfield that she had pain in her groin every couple of weeks and that the pain would last about ten minutes. She stated that this pain, and this level of frequency, continued up to the date of the trial and that she took Advil to relieve it. Asked if the Advil helped, she testified that she was not "a medicine person", but she agreed that it did relieve the pain.


A review of the Memorial records (Cl. Ex. 17) and the Eddy records (Cl. Ex. 18) reveals that Claimant is not a complainer. While in Memorial she did receive pain medication. (Cl. Ex. 17, Pain Control Flow Sheet) On the other hand, she began to use a walker, with assistance, the day after her surgery which she "tolerated well". (Cl. Ex. 17) At Eddy she received pain medication, but she was also found to be "cooperative and pleasant". (Cl. Ex. 18) At times, she requested pain medication (Cl. Ex. 18) and at other times she denied that she was having any pain or discomfort. (Cl. Ex. 18) On the other hand, it is clear that, while at Eddy, she was experiencing pain in her right knee, the one that ultimately was replaced. In the discharge summary from Eddy we find, "She has become independent in ambulation with a walker and independent in self-care skills. This patient could not progress further to a cane because of pain in her right knee due to osteoarthritis. Therefore, she was kept on the walker". (Cl. Ex. 18, Discharge Summary, p 4)


According to Dr. Bilfield, Claimant's x-rays show, "excellent position of the prosthesis". (Cl. Ex. 19, p 14) When he saw her in April of 1998 Dr. Bilfield found that Claimant was walking without the use of a cane or a crutch, but that she did complain of "occasional discomfort in the left groin, which was lasting twenty minutes two to three times a month". (Cl. Ex. 19, p 15) Dr. Bilfield saw Claimant again on May 13, 1999 at which time she complained of having an occasional "catching in the left groin once or twice a week, lasting about 10 to 15 minutes". (Cl. Ex. 19, p 16) He noted that she had previously undergone a total knee replacement on the right side since he had last seen her, but was able to walk without the use of a cane or crutch. He last saw her on July 12, 2000 at which time he found that she was not "having very many complaints except again ten minutes of left groin pain once every two weeks". (Cl. Ex. 19, pp 17-18) X-rays at that time showed that the hip prosthesis was in good position. (Cl. Ex. 19, p 18) Asked his opinion whether Claimant "suffers from any disability as a result of her injury to her left hip" Dr. Bilfield responded that she did suffer "some disability". (Cl. Ex. 19, pp 18-19) He noted that Claimant had a "reasonably good result", but that she still complained of pain so he believed there was "some partial disability here". (Cl. Ex. 19, p 19) It was also his opinion that there was a "very good possibility" that Claimant would need a "revision of that prosthesis to a total hip, because you have metal against living cartilage. Some people require surgery, a revision; some people do not. It's difficult to tell who will and who will not, but the potential is there". (Cl. Ex. 19, p 20) Dr. Bilfield opined that if Claimant did have the complete hip replacement at some time in the future she would be hospitalized and in rehabilitation for approximately the same periods of time that were triggered by her prior hip surgery. He estimated that, in current dollars, her hospitalization and rehabilitation could run anywhere from $10,000 to $15,000 and that the physician's fee would be "Maybe a couple thousand up here". (Cl. Ex. 19, p 21)


On cross-examination, Dr. Bilfield was asked if the disability that he described "means there's something she could have done prior to surgery that she cannot now do?" and he responded,
No. What it means is that she's got a metal surface against living cartilage, which produces complaints of pain and that potentially...you have the problem with walking, sitting and standing. I'm not saying that she's having a problem, but the fact that she complains of pain means that something's going on there, even though I don't see it on the x-ray. When they have pain and they have a prosthesis in place, that means there's something going on between the metal and the cartilage.

(Cl. Ex. 19, pp 21-22)

He agreed, however, that some patients do not need a total hip replacement. Dr. Bilfield testified that he evaluates Claimant every year to check the condition of the prosthesis, "because in some instances - - what can happen is you can have a wearing away of the cartilage and you start to see the metal ball progressing in towards the center of the pelvis. Even though the patient isn't having - - their complaints may not be changing, when you start to see erosion and the ball starting to erode into the pelvis, even though the patient says, ‘I'm not having pain,' you know something has to be done, otherwise you're going to end up with that prosthesis inside the pelvis". (Cl. Ex. 19, p 23) Dr. Bilfield was questioned on September 14, 2000, three years after the surgery. He was asked if he observed any of such changes yet and he responded, "Not yet". (Cl. Ex. 19, p 23)

The State rested at the end of Claimant's proof.


There are Medicare liens in the amount of $18,043.22 (Cl. Ex. 22) which the State does not contest.


Claimant was born on June 29, 1926 and on April 12, 1997, the date of her fall and injury, she was a few months short of her 71
st year. The Court finds that she had a life expectancy of approximately 14 ½ years.

In reaching the result that follows, the Court has considered Claimant's life expectancy, the medical expenses incurred in the past and which are likely to be incurred in the future.


The Court finds that Claimant suffered considerable pain, as a result of the injury, and inconvenience as a result of her hospitalization and physiotherapy treatments. The Court further finds that Claimant had a good surgical result and that the pain that she has experienced after the completion of her physiotherapy treatment and continuing to date has been relatively minor. In this regard, the Court notes that there is no proof that the pain or catching that Claimant occasionally experiences in her groin is caused by or related to the injury to her hip or the surgery on the hip. In point of fact, causation with regard to this complaint was not even addressed at the trial. Thus, the Court is left in the dark with regard to the etiology of that pain. In any event, it appears that whatever pain Claimant experiences (and in this regard the subject of pain as a result of the total knee replacements was unexplored) is controlled by an occasional Advil tablet. The Court further finds that while her hip does not physically disable her in any way currently, the likelihood is that she will have to undergo a total hip replacement in the future which will entail not simply further medical expense, but further pain and inconvenience, as well. Weighing all these factors, among others, the Court finds that Claimant has sustained past damages in the amount of $50,000 and future damages in the amount of $100,000. Since this Court has previously found that the State is 75% responsible for Claimant's fall and the injuries caused thereby, (
Bradt v State of New York, Claim No. 97717, Decision, Hanifin, J., filed May 16, 2000) Claimant is awarded the sum of $112,500 with interest from May 5, 2000, the date of this Court's determination of liability decision (Love v State of New York, 78 NY2d 540) at the presumptively fair and reasonable statutory rate. (Rodriguez v New York City Housing Authority, 91 NY2d 76)

ENTER JUDGMENT.




November 29, 2000
Binghamton, New York

HON. JEROME F. HANIFIN
Judge of the Court of Claims