New York State Court of Claims

New York State Court of Claims

Blenman v. THE STATE OF NEW YORK, #2000-013-502, Claim No. 97984


The State of New York is found liable in negligence for injuries sustained by a blind, quadriplegic infant whose arm came into contact with a wheelchair wheel as he was being transported in the SUNY Health Science Center in Syracuse.

Case Information

EVELYN BLENMAN, as Parent and Natural Guardianof DRAKKAR BLENMAN, Infant
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):

Claimant's attorney:
Charles L. Davis, Esq.
Defendant's attorney:
Attorney General of the State of New York
BY: LOUIS J. TRIPOLI, ESQ. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 11, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Drakkar Blenman was born on October 16, 1994, with a microcephalic (abnormally small) head and brain damage. He is blind, has limited hearing, is unable to speak, and has little or no awareness of what is going on around him. He has little control of his extremities and cannot walk. To the extent he can move his limbs at all, his movements are spastic and stiff. He also suffers from seizures.

In December 1996, when Drakkar was two years old, his mother admitted him to SUNY Health Science Center (HSC) in Syracuse for pneumonia. On December 14, 1996, while he was a patient at HSC, Drakkar received a large abrasion on his right lateral forearm in the vicinity of his elbow, which subsequently developed into a very prominent scar measuring about three inches in length by one inch in width.

Claimant is Drakkar's mother, acting as his parent and natural guardian. In this timely-filed claim, she seeks damages for Drakkar's injury, an injury she attributes to Defendant's negligence. A unified trial was held on February 2, 2000 in Syracuse. At the trial, Claimant relied upon her own testimony and upon the deposition testimony of Joyce Rossi and Kristen Christian, who were, respectively, a nurse and doctor who cared for Drakkar during his stay at HSC and treated his abrasion. Defendant relied upon parts of the depositions of Rossi and Christian, both of whom are now beyond the subpoena power of this Court.

None of the witnesses actually saw how Drakkar developed his abrasion. The most complete account of what happened to him was found in a note that Nurse Rossi made on his chart (Exhibit 5), which was received in evidence by stipulation of the parties. In her deposition (Exhibit 1 at p. 14), Nurse Rossi interpreted her note in pertinent part as follows:

Abdominal film (portable) done this a.m. Upright film ordered this p.m. And patient sent to x-ray via wheelchair. Right forearm reportedly must have been brushed against wheelchair wheel, and right forearm is abrased. Seen by HO [House Officer].... Bacitracin ointment with gauze applied. Patient's mom was also notified. Patient napping comfortably.

Rossi testified that the injury occurred while Drakkar was outside the pediatrics ward where she worked. A nurse's aide that Rossi could no longer identify had taken Drakkar in a wheelchair to another part of the hospital to get a chest x-ray. Later she described the incident to Rossi, who incorporated the aide's description into her chart note.[1]
Defendant did not challenge this version of what happened or offer any evidence suggesting that the accident occurred in a different way.
There was a protocol at HSC at the time of the accident for transporting patients in wheelchairs. As Rossi described it, however, it made no provision for safeguarding the extremities of patients like Drakkar who are seizure prone and cannot control their own arms and legs. Rossi testified that the wheelchairs that HSC uses have seatbelts, but do not provide a way to restrain the arms of patients. She also said that there are some wheelchairs that are designed to keep a patient's

arms from coming into contact with the wheels, but that HSC does not own that type of chair. Neither she nor any other witness was aware of any precautions that were taken to protect Drakkar's arm.
On the basis of the trial testimony, I conclude that the abrasion was caused by the negligence of Defendant in failing to use reasonable care to prevent Drakkar's arm from coming into contact with the wheelchair wheel. In this instance, the hospital was aware of the infant's history of seizures and inability to move and control his extremities.[2]
It is clear that with this knowledge the hospital should have applied soft restraints to the infant's limbs or taken other precautions when transporting him so as to avoid an accident such as this. I further find that Defendant was 100% responsible for the injury.
In arriving at what I believe to be fair and just compensation in this case, I am confronted with a myriad of daunting factors. Due consideration must be given to the fact that this infant has survived this long given his tragic handicaps, which is, to say the least, amazing. It is doubtful, in view of his multiple problems, that any expert could estimate his present life expectancy. Indeed, by the time this injury occurred, he had lived beyond what Claimant had been told by his doctors.

In any event, Claimant did not produce any actuarial or medical experts to offer assistance to the Court. The Court cannot help but conclude that she was unable to find any expert who would be able to offer any meaningful testimony on these issues.

Further, my research has been unable to uncover a resource which was of assistance in arriving at a damage figure.

Drakkar, as previously noted, was a microcephalic baby at birth. He is unable to see, walk, talk and is severely brain damaged. There is no proof in this record by any medical expert regarding his sensory functions. His mother offered uncontradicted testimony that he experiences pain as evidenced by the change in his crying sounds. The Court heard the infant cry out several times during the trial, but was advised by his mother that these cries were his normal sounds and that when he is in pain, his cry is distinctly different. She stated that when she arrived on the hospital floor where he was placed on the day of the incident, she could hear his cry of pain, apparently the result of this injury. She also testified that during the next several days when she visited him this cry persisted. He was in pain for at least a week or two after his discharge according to her. Consequently, the Court concludes that this infant could and did suffer pain for a substantial period of time after the accident.

As noted earlier, this accident resulted in a prominent keloid type scar approximately three inches in length by one inch in width on his right arm. It extends from just about the elbow joint to just below that point. Because of his multitude of physical limitations and the lack of medical testimony on this point, it is impossible for me to find that this injury has resulted in an impairment to the use of this limb. It is times and cases such as this that one wishes for Solomon like wisdom. I cannot help but feel that even if one were blessed with this fabled wisdom, arriving at a fair and just award in this instance would, nonetheless, be a difficult task.

After due deliberation and consideration, I hereby award Claimant the sum of Ten Thousand Dollars ($10,000.00) for past and future pain and suffering and Six Thousand Dollars ($6,000.00) for the disfigurement to his arm caused by Defendant's negligence.

All motions not heretofore ruled upon are denied.


April 11, 2000
Rochester, New York

Judge of the Court of Claims

The statements that the aide made to Nurse Rossi that are contained in the medical records are admissible as statements for purposes of medical treatment or diagnosis (see, People v Caccese, 211 AD2d 976, lv denied 86 NY2d 780; Crisci v Sadler, 253 AD2d 447).
The hospital record reflects that the nurses were monitoring Drakkar's condition for evidence of seizures as early as December 14, 1996 and that he apparently had a seizure on December 17, 1996 (Exhibit 5, p. 9).