New York State Court of Claims

New York State Court of Claims

RIVERA v. THE STATE OF NEW YORK, #2000-007-514, Claim No. 93403


Claimant awarded $20,000 for temporary exacerbation of preexisting spondylolysis suffered in a fall at a correctional facility.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

John L. Bell
Claimant's attorney:
John D. B. Lewis(Gary E. Divis, Esq., of Counsel)
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General
(Michele M. Walls, Esq., Assistant Attorney General,of Counsel)
Third-party defendant's attorney:

Signature date:
May 15, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


The court previously found, following a trial solely on the issue of liability, that claimant slipped and fell in the bathroom of the L-2 dormitory at Bare Hill Correctional Facility (hereinafter "Bare Hill") on September 16, 1994 as a result of defendant's negligence in permitting water to accumulate on the floor from a sink that had been leaking for several days prior to the mishap (
Rivera v State of New York, Ct Cl, Aug. 12, 1999 [Claim No. 93403], Bell, J.).
At the damages phase of the trial claimant's counsel introduced extensive medical and hospital records of claimant produced by the Department of Correctional Services (hereinafter "DOCS"). When the court reviewed such records following the conclusion of the trial, certain statements attributable to physicians and health providers relative to how the accident occurred proved disturbing. In a pre-hospital care report apparently prepared by an ambulance attendant during the course of claimant's transportation to the Alice Hyde Memorial Hospital at Malone, New York immediately following claimant's accident, it is reported: "Patient fell from standing position in shower, struck head, patient was unconscious for few seconds." The nursing assessment note of the emergency room record of the hospital at the time of claimant's admission reads that claimant was transported to the emergency room with a hard cervical collar and backboard, "S/P [status post] falling in shower of bathroom injuring back of head & lower back."[1]
An October 31, 1994 report of M. Azar, M.D., claimant's neurologist, reads: "This 28 year old right handed inmate is experiencing low back pain radiating to the right lower extremity since a fall following taking a shower on about 9-16-94." In the court's decision relative to liability, the court credited claimant's testimony that he had entered the bathroom while wearing sneakers and holding a toothbrush, went to a sink and thereafter fell after he started to leave the bathroom.
During the liability phase and the subsequent damages phase of the trial defendant did not offer any portion of the recited history or produce any of the individuals who prepared the recited records in an effort to impeach claimant's version of the happening of the accident itself. The court does observe that a notation in the handwriting of the acting emergency room director of the Alice Hyde Memorial Hospital reads, "[S]lipped on wet floor & fell striking head & [illegible] hurting his back." In a DOCS form entitled "Report of Inmate Injury," it is reported that other inmates stated that "he slipped and fell in the shower room and now can't move." Since claimant was not cross-examined concerning several seemingly inconsistent versions of the happening of the accident as testified to by claimant on the one hand and that reported by an ambulance attendant, an emergency room nurse and Dr. Azar on the other hand and the latter individuals were not produced to testify, the court does not make any
de novo findings concerning how the accident happened and adheres to its original decision relative to defendant's liability.
Claimant seeks to recover damages for a low back injury allegedly resulting from his fall. Initially, it must be observed that claimant had a low back condition denominated a spondylolysis of his lumbar spine, specifically at L-5, S-1. Spondylolysis has been defined as deficient or incomplete development of the articulating part of a vertebra, or as stated by defendant's expert, Dr. Robert N. Greene, a defect in the pars inter articularis where the lumbar spine joins the facet joints.

Claimant testified on direct examination that he was in excellent health until the date of his fall on September 16, 1994 but that he had been given a pain analgesic by a nurse at Clinton Correctional Facility (hereinafter "Clinton") in November 1993 for a strained back muscle incurred while he was engaged in vocational plumbing. Entries in claimant's ambulatory health records during his incarceration demonstrate, however, that a relatively long period of lower back pain antedated the accident of September 16, 1994.

Claimant testified that after he fell in the bathroom at Bare Hill following his transfer from Clinton, he was transported to Alice Hyde Memorial Hospital where X rays were taken and a CT scan was performed. He returned to Bare Hill and remained in its infirmary for two days.

Claimant testified that Jerome Davis, M.D., an attending neurosurgeon at the Champlain Valley Physicians Hospital Medical Center and now retired, examined him in October 1994. Dr. Davis ordered electromyography (EMG) testing. At the trial Dr. Davis testified that based upon earlier testing and reports, the EMG report that he had ordered and his physical examination of claimant, he was of the opinion that claimant not only suffered from preexisting spondylolysis but also had a herniated disc at L-5, S-1.

Claimant testified that ultimately he agreed to surgery and that Dr. Davis operated on his low back on January 24, 1995. He asserted that he had great pain after the surgery and remained hospitalized for six days. Claimant's medical records reveal that on March 3, 1995, he complained that his low back pain was the same as before the surgery. Claimant related that he received physical therapy following the surgery at the Alice Hyde Memorial Hospital and thereafter at Albany Medical Center Hospital and a Poughkeepsie hospital subsequent to his transfer to Fishkill Correctional Facility (hereinafter "Fishkill"). He testified that he has worn a back brace since 1996.

Claimant testified that while taking physical therapy following the surgery, he was taught to express pain levels in terms of zero to ten. Since claimant was examined by Dr. Greene, defendant's expert witness, on November 18, 1999, his counsel inquired about pain levels on November 18th, 19th and on some of the preceding days. When claimant testified, he had a chart before him on which he had noted alleged pain levels on certain days. He reported that on November 4, 1999 his pain level was two plus and that his pain level was five plus on November 10th through November 13th, six on November 14th, six plus on November 15th, and seven on November 16th. When defendant's counsel objected that claimant was reading from a document that had not been marked for identification and the court then asked if claimant could recall his pain level on particular days without referring to his chart, he answered, "Yes." After then being questioned by the court concerning his pain level on November 28, 1999, he responded, "six," and upon then being asked his pain level on December 1st, he replied, again without use of his chart, "four plus." Claimant's counsel then secured a response that claimant's pain level was seven plus on November 18, 1999 when he was examined by Dr. Greene following his long bus ride from Fishkill and seven plus on November 19th. Claimant characterized a pain level of seven to ten as being so severe that one could not move.

Claimant's counsel, having seen videotapes taken by defendant surreptitiously while claimant was working as a porter in the Special Housing Unit (SHU) at Fishkill, introduced a portion of one of the videotapes. Although the surveillance tape shows claimant working as a porter and carrying some bags of other inmates containing items of personal property, it, of course, did not demonstrate that claimant had no pain as he performed porter tasks. Similarly, claimant's counsel elicited the fact that claimant had engaged in a fight in the recreational yard at Fishkill. Although claimant related near the end of his direct testimony that he was not troubled physically before the accident date, he acknowledged, upon prodding by his counsel, that he had experienced a problem that "came and went" as regards a back muscle. Finally, he testified that presently his lower back and right leg trouble him constantly, that he can sit for only 20 minutes, and that he has a problem sleeping and no longer can jog, play handball or lift light weights.

On cross-examination, claimant acknowledged that he had volunteered to be a porter at SHU at Fishkill and engaged in a fight involving five other inmates at the facility in April 1999. He testified that he handled food trays as a porter, carried property bags of other inmates and sometimes dragged heavy bags. He professed that he had never sustained any accidents or injuries involving his back. In June 1994, upon his transfer to Bare Hill, he met with a counselor and, acknowledged on cross-examination, that his signature appeared on claimant's Exhibit 6, an interview form prepared by the counselor. Although the interview form, which also was signed by the counselor, reads: "Lower back pain from ‘87 injury / ‘93," claimant denied any back injury in 1987 and asserted that he did not remember telling the counselor that he had lower back pain in 1993. He avowed that certain head pain he had experienced when he fell on September 16, 1994 lasted only two days.

Although claimant denied having chronic back complaints before his September 16, 1994 accident, his ambulatory health records belie such assertion. An entry on February 25, 1993, more than 18 months before the subject accident, reads: "Back pain, chronic." A subsequent entry on November 17, 1993 provides: "C/o of chronic back pain - states Advil doesn't help. Requests back brace." Another entry on November 19, 1993 reads: "Low back pain over at least 1 year" and "3 days ago, lifted drinking fountain, and has low back spasm." On January 28, 1994, he reported to the infirmary at Clinton and his ambulatory health record recites: "Up for chronic back pain in back for mos. Wants xrays. Doesn't want bed rest." An April 5, 1994 entry reads that claimant has a history of "low back pain."

Significantly, following claimant's transfer from Clinton to Bare Hill, a June 30, 1994 entry in his ambulatory health record under the category "subjective" reads that claimant had a history of lower back pain times six years. July 29, 1994 entries in claimant's ambulatory health record indicate that claimant had chronic lower back pain and a history of lower back pain "since lifting a water fountain over 1 yr ago."

On August 26, 1994, 21 days before the subject accident of September 16, 1994, the notation that claimant has lower back pain and "has been doing exercises w/o relief" appears in his ambulatory health record. Lastly, the court observes that on August 26, 1994, CT scans were ordered and thereafter performed on September 7, 1994, nine days before the subject accident.

When Dr. Davis first examined claimant on October 19, 1994, he took a history of claimant's having fallen on September 16, 1994 in a bathroom. He testified that the accident occurred "where [claimant] was staying." Dr. Davis could not recall whether claimant advised him of any lower back pain before the subject accident and acknowledged that he did not have a copy of claimant's prior medical records when he examined him. Dr. Davis' physical examination demonstrated weakness and numbness of claimant's right lower extremity, a diminished right ankle jerk and a three plus straight leg raising. His tentative diagnosis was "irritation to nerve root" at L-5, S-1. Thereafter, Dr. Davis reviewed an MRI report of an examination by a Malone physician on October 11, 1994. The report, in part, suggested a left, paracentral disc herniation at the S-1 level. Dr. Azar also performed an EMG study and his report concluded that claimant had a "proximal right L-5 root dysfunction without denervation" and a "severe right S-1 root dysfunction with subsequent denervation potentials." When Dr. Davis saw claimant for the second time on November 21, 1994, his physical findings were essentially the same as on his first examination. He concluded that claimant had a "disc out of place" resulting from the subject fall that claimant had related to him. He further concluded that claimant required a decompression laminectomy and a discectomy. On January 24, 1995, Dr. Davis operated on claimant's low back and discovered that claimant did not suffer from a herniated disc but rather had bilateral spondylolysis. It is undisputed and claimant's records demonstrate that claimant had spondylolysis before the subject accident. Dr. Davis testified that the condition makes one's spine mobile. He related that he removed the lumina and abnormal articulation, and chipped away some bone to give the nerve roots more room. He further testified that he found claimant's nerve roots mildly swollen. When asked by claimant's counsel as to the age of the swelling, Dr. Davis stated that it would be "very difficult to be sure" and one would have to take in the history given the patient and "presume that the swelling began at the time he fell and that's just a guess." Ultimately, Dr. Davis concluded that the accident of September 16, 1994 was the competent producing cause of claimant's "injury." Since Dr. Davis acknowledged the existence of preexisting spondylolysis and it is apparent to the court that Dr. Davis had not considered the long and extensive history of claimant's low back pain preexisting the subject accident, the court cannot find that claimant, based upon Dr. Davis' testimony, sustained his burden of proving that the subject accident caused the condition or the "injury" testified to by Dr. Davis. During the early part of his testimony Dr. Davis asserted that he could not state whether claimant's "condition" was permanent but thereafter testified to the contrary.

Dr. Robert N. Greene, an orthopedic surgeon who resides in Malone, testified on behalf of defendant. Dr. Greene, who completed his orthopedic residency and fellowship in 1987, proved to be a very credible and impressive witness. Before examining claimant on November 18, 1999, Dr. Greene reviewed claimant's medical records, reports, X rays and X ray reports. He noted that claimant had an L-5, S-1 spondylolysis preexisting the subject accident of September 16, 1994. Dr. Greene concluded that the recitations in claimant's medical records of a six-year history of low back pain also demonstrated strong evidence that claimant had experienced pain from the L-5, S-1 spondylolysis prior to the subject accident.

When Dr. Greene performed a detailed neurological examination of claimant, he found it difficult to examine claimant because of the latter's complaint of pain. He found discrepancies that should not have existed when he performed straight leg-raising tests and certain pin-prick tests. Dr. Greene's inconsistent findings as regards several key tests suggested to him that claimant either was not trying to assist in the testing or was faking his symptoms. He also suggested that a fusion of L-5, S-1 was indicated when Dr. Davis operated on claimant and found that claimant did not have a herniated disc but rather spondylolysis and slightly swollen nerve roots. While Dr. Greene testified that claimant's fall could have exacerbated claimant's low back pain, he concluded that the present cause of claimant's pain relates to preexisting spondylolysis. When asked on cross-examination whether claimant's fall on September 16, 1994 could have resulted in loose lamina being pushed into claimant's spinal column, Dr. Greene rejected any such conclusion based on claimant's history of falling on a flat floor. Dr. Greene opined that claimant's falling on a flat floor would have resulted in stress being dispersed over a wide area and that it would have required a force such as claimant's being hit directly in the L-5, S-1 area with something such as a baseball bat to effect the hypothetical result posed by claimant's counsel.

The court acknowledges the outstanding legal representation afforded claimant by his counsel. In the final analysis, however, claimant did not prove to be a credible witness on the issue of damages. A review of the entire medical and hospital records of the claimant and the medical testimony of Drs. Davis and Greene on the issue of damages demonstrates that claimant has not sustained his burden of proving any permanent low back condition resulting from his falling in the shower room at Bare Hill on September 16, 1994. Instead, the credible proof demonstrates that he sustained only a temporary exacerbation of preexisting spondylolysis at L-5, S-1, for which the court makes an award in the amount of $20,000.00, with appropriate interest from August 10, 1999.

Defendant is directed in accordance with the terms of the orders of the court, filed December 15, 1998, March 25, 1999, and December 28, 1999, to submit to the court an affidavit from a knowledgeable individual setting forth expenses incurred in producing claimant at trial. The affidavit must be mailed to the court within 20 days of the filed-stamped date of this decision and an affidavit of service of a copy of the papers upon claimant's counsel must be included.

Entry of judgment shall be held in abeyance pending submission of defendant's affidavit.

May 15, 2000
Plattsburgh, New York

Judge of the Court of Claims

All quotations are either from medical and hospital records or the court's trial notes.