New York State Court of Claims

New York State Court of Claims

MACKEY v. New York, #2000-015-501, Claim No. 96267


Synopsis


When the issues of causation and injuries involve matters beyond the common knowledge of a lay person, expert medical testimony is required in order for the claimant to prevail.

Case Information

UID:
2000-015-501
Claimant(s):
JIMMY MACKEY
Claimant short name:
MACKEY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
96267
Motion number(s):

Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Galvin and MorganBy: Madeline Sheila Galvin, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Phelan, Burke & Scolamiero, LLPKevin Burke, Esquire, appearing
Third-party defendant's attorney:

Signature date:
March 20, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
The trial of this claim was bifurcated and this decision addresses the issue of damages.

In a decision filed on June 21, 1999, fault was apportioned 15% to claimant and 85% to the State with respect to an incident in which claimant sustained personal injuries as a result of a one vehicle motorcycle accident that occurred at approximately 12:30 a.m. on April 25, 1997 on State Route 5S at its intersection with the New York State Thruway at Interchange 26. Claimant was operating his motorcycle in a westerly direction upon I-890 traveling in the direction of Route 5S when his vehicle entered into an excavated area of the highway. The excavation was part of a highway improvement project in which a 28 foot by 150 foot section of roadway was removed to a depth of six inches below grade. Claimant testified during the trial of the liability issue that as his motorcycle entered the depression it fishtailed causing him to struggle to maintain control. At the western end of the depression his motorcycle hit the lip of the pavement and became airborne causing him to strike the pavement and lose consciousness.

At the opening of the trial, claimant sought to elicit the testimony of psychiatrist Henry A. Camperlengo regarding both alleged psychological trauma sustained by the claimant and the extent to which his physical injuries had impacted upon his employment. The Court sustained the defendant's objection and precluded the testimony of Dr. Camperlengo upon the ground that the proposed testimony would address injuries not set forth in the bill of particulars (
Chapman v State of New York, 227 AD2d 867, 868). The Court also denied the claimant's motion to amend the bill of particulars to add the injuries sought to be covered in Dr. Camperlengo's testimony. This action was taken because permitting the amendment would have been prejudicial to the defendant in that it had never conducted a medical examination of the claimant by a psychiatrist, claimant failed to provide a reasonable excuse for the delay in seeking the amendment and did not establish the potential merit of the proposed amendment (Smith v Plaza Transp. Ambulance Serv., 243 AD2d 555). Thus, claimant's proof was limited to the injuries set forth in the claim, verified bill of particulars, and supplemental verified bill of particulars. Paragraph three of the claim alleges as follows:
3. As a result of this incident, Claimant suffered damages and losses to the Claimant including costs of a seriously injured shoulder and side resulting physical therapy and medical treatment, attendant loss of work time and for personal injuries sustained by Claimant. Claimant also suffered extensive property damage to his 1983 Honda Gold Wing motorcycle.
In the wherefore clause claimant sought $15,000.00 in medical expenses, $5,000.00 in property damage to the motorcycle, $5,000.00 for miscellaneous personal expenses and $100,000.00 for past pain and suffering. He did not seek any recovery for lost wages or future pain and suffering. In paragraph 13 of his bill of particulars claimant alleged his injuries as "a strain to the rotator cuff and a severely contused shoulder and resulting physical therapy and medical treatment, and attendant loss of work time". The bill of particulars alleged that the injuries were permanent and that claimant had incurred lost wages in the amount of $6,040.28. Paragraph 13 of claimant's supplemental verified bill of particulars provides as follows:
13. As set forth in his verified Bill of Particulars, Claimant suffered a strain to the rotator cuff and a severely contused left shoulder and resulting physical therapy and medical treatment, and attendant loss of work time. In addition to the injuries set forth in his verified Bill of Particulars, Claimant also suffered injuries that resulted in difficulty raising his left arm and a resulting weakness in his right arm. Moderate DJD at the AC joint but no separation with an apparent break in the acromium.; aggravation of a pre-existing condition, knee patellofemeral disease and degenerative joint disease; limitation of the range of motion in left shoulder and left and right arms; pain in the left hip centralized in the left buttock and radiating down the left leg into his ankle in and toes, a condition that has been diagnosed as progressively worsening; progressive numbness in his right arm.
In an attempt to establish the injuries alleged in the claim, bill of particulars, and supplemental bill of particulars claimant introduced into evidence Exhibit 2 (medical records of his treating physician Gregory J. Strizich), Exhibit 3 (medical records from the emergency department of Ellis Hospital) and Exhibit 4 (medical records of Kaiser Permanente). Claimant also testified on his own behalf.

Claimant's testimony related that he lost consciousness after striking the pavement and eventually came to in a daze. He stated that he could not feel his legs and expressed concern regarding the extent of his potential injuries. An unidentified woman came to his assistance and assured him that his legs were not injured. She helped claimant to his feet and at that point he noticed that he could not raise his left shoulder and had pain in his hip. A rescue squad arrived and its members bandaged an abrasion on claimant's left forearm, strapped him onto a backboard with a neck restraint, loaded him into a van and transported him to Ellis Hospital. Claimant complained on the way of pain in his left shoulder.

Claimant arrived at the emergency department of Ellis Hospital with a complaint of pain in his left shoulder. He was examined by a physician and claimant at that time denied any neck, back, chest or abdominal pain. Physical examination disclosed a tenderness of the left shoulder and X rays of the cervical spine and left shoulder were ordered. The radiologist report contained in Exhibit 3 relates that the examination of the cervical spine showed normal alignment of the vertebral bodies with good preservation of the inter spaces. The examination of the left shoulder showed no fracture or other bony abnormality. After the X rays were taken claimant was again examined by a physician who checked the bandages on his left arm, provided him a sling to immobilize the left arm, prescribed Vicodan and Advil for pain and referred him to his personal physician.

Claimant had been employed as a correction officer by the New York State Department of Correctional Services for approximately twelve and one-half years at the time of the accident and was enrolled in the Community Health Plan, a health maintenance organization subsequently acquired by Kaiser Permanente. After leaving Ellis Hospital claimant stated that his "body stiffened up" and he felt like he had "been beaten up" with pain in his left shoulder, left elbow and hip. Later the same day he appeared at the Delmar office of Community Health Plan and was examined by Dr. David A. Krischer because his regular treating physician, Dr. Gregory Strizich, was not available. Dr. Krischer made the following record of his physical examination of claimant's left shoulder and arm:
LEFT SHOULDER/ARM: He has no more than 10 to 20 degrees of abduction of the left shoulder, and beyond this is limited by pain. He is tender over the apex of the shoulder around the AC joint. There is no visible abnormality of this area. There is a superficial, silver dollar sized abrasion over the dorsal aspect of the mid left forearm.
Dr. Krischer cleaned the left forearm abrasion, directed claimant to continue use of the sling and reviewed X rays which disclosed to him that there was no evidence of separation of the acromioclavicular joint of the left shoulder. Dr. Krischer referred claimant for physical therapy and directed him not to return to work until May 5, 1997. Claimant's physical therapy took place at the Rotterdam office of the Community Health Plan and consisted of therapeutic exercise two to three times a week through June of 1997. Claimant was examined by Dr. Strizich on May 7, 1997 who noted claimant's statement that the physical therapy seemed to be increasing the range of motion and strength of his left shoulder and that he had developed a significant amount of pain in his left posterial buttock region and left thigh. Dr. Strizich recorded that the left forearm abrasion was almost totally healed and prescribed Darvocet and Voltaren for pain and Flexerol for spasms. Since claimant had not yet been examined by the orthopaedic department Dr. Strizich again referred him for a consultation. Dr. Strizich directed claimant not to return to work until cleared to do so by the orthopaedic physician.

Claimant was again examined by Dr. Strizich on June 13, 1997. A progress note contained in Exhibit 4 reflects that the claimant was receiving physical therapy for his shoulder pain and complained of low back pain of one week's duration. Dr. Strizich's progress note also recorded that claimant had a history of recurrent lumbar sprain syndrome predating the motor vehicle accident which was most recently exacerbated by a long motorcycle ride to Montreal. On May 8, 1997, claimant was examined by orthopaedist Frank Mlinar and the notes of his examination, contained in Exhibit 4, relate the following:
O: Examination today shows a morbidly obese black male. Examination of his shoulder shows that he has minimal tenderness. He has active abductive arc to about 90 degrees and passively I can take him all the way to 180 degrees. Internal and external rotation were normal. There is no instability. There is a negative impingement, negative apprehension signs. Neurovascular examination was within normal limits.

X-rays reviewed and show moderate DJD at the AC joint but no separation and there appears to be a beaking [sic] of the acromion.

A: Contusion left shoulder with DJD of the shoulder.

P. At this point he started therapy just this week so I want him to continue that. Continue on his anti-inflamatories. We will continue him out of work and I will see him back in two weeks' time. He is to call if any further problems or changes in his condition.
Dr. Mlinar next examined claimant on May 14, 1997 and noted in his written report that claimant's knee patellofemoral disease and degenerative joint disease was progressing well and that the left shoulder was slowly getting better. In his examination of May 23, 1997, Dr. Mlinar recorded that claimant had abduction of the left shoulder of 150 degrees but still had tenderness over the anterior shoulder. Physical therapy was to continue. Claimant was cleared to return to his work as a correction officer on June 25, 1997.

Claimant testified that at the time of trial he still suffered from a limited range of motion of his left shoulder, weakness of the left arm and shoulder and constant pain in his left shoulder, elbow and arm. He stated that his personal activities such as golf, archery, hunting and playing with his grandchildren have all been affected by his injuries. He also stated that he was limited in his work as a correction officer due to his shoulder and arm injuries. Upon the completion of claimant's testimony the parties stipulated to the fact that claimant had sustained lost wages of $6,040.00. At that juncture, claimant rested and the defendant moved to dismiss upon the ground that claimant had not presented any expert evidence upon the causation issue relating the alleged injuries to the accident with a reasonable degree of medical certainty. The Court reserved decision upon the motion and then granted the claimant's motion to reopen his case in order to permit the testimony of his treating physicians.

Dr. Krischer testified that he examined claimant on April 25, 1997 with respect to his shoulder injury and also for an unrelated scalp rash. An examination of the left shoulder and arm revealed an abrasion on the left forearm and a limited range of motion of the left shoulder with complaints of pain. As a result of the examination, Dr. Krischer directed claimant to remain out of work, to continue to use the sling, ordered X rays which were negative for fracture or other injuries and referred claimant for an orthopaedic consultation. Dr. Krischer had no further contact with claimant after that examination and disclosed upon cross-examination that claimant made no complaints of a hip injury or pain.

Dr. Gregory Strizich testified that he has been board certified in internal medicine since 1991 and was claimant's primary care physician. He first examined claimant with respect to the shoulder injury on May 7, 1997 when he noted an improving range of motion and a complaint of soreness of the left buttock and thigh. He referred claimant for an orthopaedic consultation. Dr. Strizich reviewed the orthopaedic consultation notes contained in Exhibit 4 which related that by May 23, 1997 claimant could be pushed to a full range of motion of the left shoulder. The orthopaedic diagnosis was a contusion of the left shoulder with arthritis, which is referred to in the orthopaedic notes as "DJD" (degenerative joint disease). Dr. Strizich testified that the arthritis in the left shoulder predated the accident and that claimant had a history of recurring lumbar sprain prior to the motorcycle accident. The doctor stated that he had no office visits with claimant for shoulder or hip pain after February 9, 1998 and reviewed the September 1, 1998 orthopaedic referral progress note which related that claimant had an initial visit for an orthopaedic consult concerning left hip pain and numbness of the left foot and toes of approximately eight to nine month's duration. Dr. Strizich gave his opinion that claimant had never injured his left hip and that his left hip pain was caused by a nerve impingement or disk problem of the spine. Claimant's left hip pain was from his chronic lumbar sacral sprain syndrome which predated the accident. Dr. Strizich testified that he was unable to comment upon the condition or prognosis of claimant's left shoulder as he did not treat the shoulder after referring claimant for an orthopaedic consultation.

Defendant called claimant as its sole witness. He testified that he sustained an injury to his lower back on April 25, 1993 when he fell off a chair and that he underwent physical therapy for back pain associated with the injury. He further testified that he injured his back on February 28, 1992 resulting in lower back pain. On January 2, 1989, claimant fell down on ice. On December 14, 1987, claimant testified that he injured his back while lifting a bench. The defendant renewed its motion to dismiss the claim following the conclusion of claimant's testimony due to the lack of expert evidence upon the causation and injury issues. The Court will now address that motion.

In a negligence action such as this, the claimant has the burden of establishing by a preponderance of the evidence that the defendant's conduct was the proximate cause of his or her injuries (
Brewster v Prince Apartments, Inc., ____ AD2d ____, 695 NYS2d 315, 318). If the events giving rise to the injuries and the injuries themselves are of such a nature as to be within the common knowledge of laypersons, then the injured party is not required to submit expert medical proof to the trier of fact upon the causation and damages issues (Shaw v Tague, 257 NY 193; Lanpont v Savvas Cab Corp., 244 AD2d 208, 212). In such a situation, a claimant can meet his burden of proof through his own testimony and the introduction of his medical records (Falcaro v Kessman, 215 AD2d 432; Alvarez v Mendik Realty Plaza, 176 AD2d 557). Bruises and contusions resulting from a body's impact with a fixed object do not necessarily require expert testimony to establish proximate cause (Rivera v State of New York, 115 Misc 2d 523, 525).
If causation and any resulting injuries are not within common knowledge, a claimant must present competent expert medical testimony upon those issues in order to prevail (
Duffen v State of New York, 245 AD2d 653). This showing is ordinarily accomplished by the injured party producing "objective medical testimony by his treating physicians as to the medical causation or permanency of his alleged injuries" (Khalil v Marion, 200 AD2d 500, 501). In the case of Matott v Ward, 48 NY2d 455, 459, the Court of Appeals set forth the circumstances requiring expert testimony and the necessary qualifications of the expert as follows:
Generally speaking, a predicate for the admission of expert testimony is that its subject matter involve information or questions beyond the ordinary knowledge and experience of the trier of the facts. Moreover, the expert should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable. (McCormick, Evidence [2d ed], § 13; see, generally, § 10; Wigmore, Evidence, vol 2, §§ 555-567; vol 7, §§ 1917-1929; Richardson, Evidence [10th ed - Prince], §§ 366-368.)
While the expert's medical testimony need not be expressly stated to be within a "reasonable degree of medical certainty" to be accepted (
John v City of New York, 235 AD2d 210), his or her testimony upon the issues of causation and injury must be so phrased as to establish a "substantive indication of reasonable reliability" (Matott v Ward, 48 NY2d 455, supra at page 463) as a physician's testimony that is "tenuous and speculative" will not suffice to support a damage award (Taieb v Hilton Hotels Corp., 131 AD2d 257, 264). Of particular application to this case is the New York rule that aggravation of a pre-existing condition must be specifically pleaded and proved and such a claim will be dismissed if "there is no medical proof that the pre-existing condition was aggravated by the incident" (De Mento v Nehi Beverages, 55 AD2d 794, 795). Aggravation of a pre-existing injury may be established through the opinion of a qualified medical provider contained in a report, coupled with the claimant's testimony and claimant's medical records (Aragones v State of New York, 247 AD2d 657, 658).
With the foregoing rules of law established, a review of the claimant's alleged injuries and supporting proof is required in order to decide the dismissal motion. In paragraph 13 of the verified bill of particulars, Mr. Mackey asserts that he suffered a "strain to the rotator cuff and a severely contused shoulder" as a result of the accident. In his supplemental bill of particulars claimant again refers to a strain of the rotator cuff and a severe contusion of the left shoulder and adds allegations of difficulty in raising his left arm and resulting weakness in the right arm, moderate degenerative joint disease at the AC joint with no separation but an apparent break in the acromium, aggravation of a pre-existing condition, limitation of the range of motion in the left shoulder and left and right arms and progressive numbness of the right arm. The severe contusion referred to in the bill of particulars and supplemental bill of particulars and described by claimant in his testimony, as well as in the testimony of Dr. Krischer and Dr. Strizich, is the type of injury which is within the common knowledge of an ordinary layperson. Although neither physician testified that to a reasonable degree of medical certainty, or its equivalent, claimant sustained a severely contused left shoulder as a direct cause of this accident, the proof in the record is such as to obviate the need for expert medical testimony upon that issue. Claimant has demonstrated to the satisfaction of the Court that he sustained an abrasion of his left forearm and a severely bruised left shoulder with a resulting temporary loss of range of motion as a result of the accident. He has further demonstrated to the satisfaction of the Court that he was out of work from April 25 to June 25 of 1997 as a result of his injuries and sustained lost earnings of $6,040.00.

However, whether the claimant suffered a strain to the rotator cuff, "[m]oderate DJD at the AC joint but no separation with an apparent break in the acromium", aggravation of a preexisting condition, weakness and a limited range of motion in his right shoulder and arm or a progressive numbness in the right arm are issues beyond the common understanding of a trier of fact and require competent medical evidence to establish that those injuries were sustained and are causally related to the incident giving rise to the claim. Claimant did not submit such proof. Neither Dr. Krischer nor Dr. Strizich testified to a reasonable degree of medical certainty that claimant suffered any of these alleged injuries as a result of the accident. In fact, Dr. Strizich testified that the degenerative joint disease of the left shoulder predated the motorcycle accident and he did not state that it was aggravated as a result of the accident. Furthermore, as best the Court can discern from the medical exhibits, in particular the orthopaedic consultation note of Dr. Mlinar dated May 23, 1997 (Exhibit 4) which states that claimant was at that point capable of a full range of motion of the left shoulder, claimant did not sustain any permanent loss of range of motion of his left shoulder or arm. There is no medical evidence in this record concerning a loss of range of motion of the right arm or of a progressive numbness of the right arm causally related to this accident.

The allegation contained in the supplemental verified bill of particulars that claimant sustained or aggravated pre-existing knee patellofemeral disease and degenerative joint disease is wholly unsupported by competent medical proof. In fact, the entries in Exhibit 4 establish that this condition predated the motorcycle accident. With respect to the reference in the supplemental verified bill of particulars to "pain in the left hip centralized in the left buttock and radiating down the left leg into his ankle and toes" the Court accepts the testimony of Dr. Strizich that this condition is caused by claimant's chronic lumbar-sacral sprain which predated the motorcycle accident. There is no medical evidence from any source stating that the motorcycle accident aggravated that condition.

Upon this record the Court holds that as a result of the motorcycle accident claimant sustained a badly contused left shoulder and temporary loss of range of motion together with an abrasion of the left forearm. Those injuries were the proximate cause of pain and suffering on claimant's part of at least two months' duration and caused him to miss work from April 25, 1997 to June 25, 1997. Claimant is awarded $6,040.00 for past lost wages and $20,000.00 for past pain and suffering. Claimant did not submit any proof concerning past medical expenses or property damage to the motorcycle resulting in no award for those items. In sum, claimant is awarded $26,040.00 which when reduced by his 15% proportionate share of fault results in a total award of $22,134.00. The defendant's motion to dismiss the allegations concerning all injuries other than the bruised left shoulder with temporary loss of range of motion and abrasion of the left forearm for failure to establish a prima facie case through the submission of competent medical evidence is granted.

The clerk is directed to enter judgment in accord with this decision.

March 20, 2000
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims