New York State Court of Claims

New York State Court of Claims

HARRIS v. THE STATE OF NEW YORK, #2000-013-504, Claim No. 89530


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):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 16 , 2001

Official citation:

Appellate results:

See also (multicaptioned case)


On December 2, 1993, Claimant, Iva Harris fell in a parking lot owned and maintained by Defendant's SUNY Health Science Center, University Hospital in Syracuse. She was 67 years old.

By Memorandum Decision filed on December 17, 1999, I found Defendant liable for negligently failing to maintain the parking lot and a pedestrian walkway used for ingress and egress. I apportioned 60% of the responsibility to Defendant and 40% to Claimant. This decision pertains to the damages phase of the claim, which the parties tried before me on September 26, 2000 at the Court of Claims in Syracuse.

The evidence showed that Claimant was transported after the fall to the emergency room at the Health Science Center for examination and treatment. X-rays revealed a right humeral neck fracture and a fracture or other injury affecting her left wrist or lower forearm.[1]
Claimant also had an abrasion on the left side of her face between her temple and her lower cheek (Exhibit16, p. 5).
Defendant's emergency room staff cleaned the abrasion. They placed her left arm in a sling and cast, immobilized her right shoulder by securing her right arm to her body and gave her pain medication. They also scheduled an orthopedic consultation for the following Wednesday (December 8, 1993). At , about 3:30 p.m., about six to eight hours after her fall, they discharged her.

Christopher Geel, M.D., an orthopedic specialist at the Health Science Center, evaluated Claimant's shoulder and wrist injuries on December 8
, and continued to treat her until May 1994. On his initial examination, Dr. Geel concluded that Claimant had a four-part proximal humerus fracture affecting her right shoulder.[2] He decided upon physical therapy to help the fracture heal and to assist Claimant in regaining a full range of motion in her right shoulder. If that was not successful, he contemplated performing a partial arthroplasty (shoulder replacement), a procedure that "will not reveal a normal shoulder . . . but should be pain free and should be sufficient for the daily activities " (Exhibit 18, p. 1).
As Dr. Geel explained at trial, the shoulder injury did not respond well to physical therapy. In May 1994, Dr. Geel observed that Claimant's range of motion was blocked at 90 degrees abduction and elevation due to a "bony block" (Exhibit 18, p. 3). After consulting with his partner, John F. Mosher, Jr., M.D., Dr. Geel decided that arthroplasty was not appropriate for Claimant but that surgery might be necessary to eliminate the bony block and to repair damage to her rotator cuff. He referred Claimant to Dr. Mosher for further assessment and for possible surgery.

When Dr. Mosher evaluated Claimant in July 1994, he found that she could forward flex her right humerus only to about 60 degrees, that she could abduct to just 45 degrees and that she could externally rotate her shoulder only about 30 degrees (Exhibit 18, p. 6). He recommended surgery to perform an anterior acromioplasty and, if necessary, to repair Claimant's rotator cuff.

The surgery was delayed to give the humerus fractures time to heal and to allow Claimant to pursue physical therapy for as long as it was of benefit to her. When the procedure finally took place on September 9, 1994, Dr. Mosher surgically reshaped the anterior acromion. He also repaired a tear in the supraspinatus tendon of Claimant's rotator cuff by roughening the humeral head below the tear, placing two Mitec suture anchors in the humeral head and tying the rotator cuff over the anchors (Exhibit 18, p. 8)

Claimant remained in the hospital until September 13, 1994. Upon her discharge, she underwent a course of physical therapy. Dr. Geel testified that the surgery and physical therapy produced improvement in the function of Claimant's shoulder. Progress notes following from October 18, 1994 indicate that she was able to elevate her arm to 150 degrees and had good strength following the surgery (Exhibit 18, p. 4). But the notes from her last visit with Dr. Mosher, on January 10, 1995, record that she was able to elevate her arm to only 145, degrees, somewhat less than she had previously been able to accomplish (
Dr. Mosher's January 10
progress notes also suggest that Claimant had developed adhesive capsulitis (id.). At trial, Dr. Geel[3] described adhesive capsulitis as a scar buildup at a surgical site which causes pain and limits motion. He opined that Claimant will not attain full range of motion on all three planes of her shoulder (flexion, extension, and rotation) and that these permanent limitations are directly related to the injuries she suffered when she fell on December 2, 1993. He did, however, believe that Claimant would be able to perform most household activities.
The January 10
appointment marked Claimant's last visit to Dr. Mosher, and apparently also ended her treatment for her shoulder injury. Prior to the January 10 visit, Claimant had already stopped going to physical therapy. She testified that she terminated this treatment because she felt that it was no longer helping her and that she was not gaining any further strength or elevation in her left arm or shoulder. Although she did not take advantage of it, Dr. Mosher continued to prescribe physical therapy through January 1995 when Claimant's insurance benefits ended.
It is evident that Claimant also sustained a left wrist injury at the time of her December 2, 1993
fall. There is some dispute about the nature of that injury. Defendant's position is that any fracture observed was preexisting; Claimant contends that there was a fracture which occurred during the fall.
The controversy stems from the fact that Claimant had previously broken her left wrist. Also, the physicians who examined Claimant were divided, or at least uncertain, as to the nature of her wrist injury. Progress notes from Claimant's emergency room evaluation on December 2, 1993 describe a
new cortical disruption at the site of a possible older, ununited fracture. However, Dr. Geel's December 8, 1993 examination notes characterize Claimant's wrist injury as a "questionable distal radius fracture" (emphasis added) (Exhibit 18, p. 1).
In the final analysis, the precise nature of the injury is irrelevant, because all of the evidence suggested that the wrist pain and limitation Claimant experienced were traceable to her fall and not to any earlier incident. Claimant testified she was not treating with any doctor for a wrist injury at the time of the December 2, 1993 fall, and had not, prior to that date, experienced any ongoing pain or problems from her earlier fracture. This evidence was uncontroverted.

The evidence also showed that rehabilitation of Claimant's wrist began after Dr. Geel removed the cast from her arm in January 1994, and that she received physical therapy for her wrist while she was receiving therapy for her shoulder.

Dr. Geel testified that Claimant was able to regain good range of motion as a result of the therapy. He opined that her wrist was now fully healed and would not pose significant problems for her in the future. Dr. Cambareri, who examined Claimant on behalf of Defendant, essentially agreed with Dr. Geel's assessment (Exhibit D).

Claimant testified that she found it difficult, following her fall and after her shoulder surgery, to reach for objects or to extend her arms. As a result, she required assistance to complete ordinary tasks that she had previously had little or no difficulty performing on her own. She had to get the help of her husband, her daughter and her grandchildren to do things like eating, combing her hair, administering her insulin shots, or performing tasks of personal hygiene. Depending upon the nature of the task, this could be very embarrassing for her.

At the time of the damages trial, seven years after the fall, she said she was still experiencing pain in her right arm and had not regained full elevation in her right shoulder. The injury to her right upper extremity has also reduced the strength she had in that limb. Consequently, Claimant, who is right handed, said she is limited in her ability to perform necessary household tasks such as mopping, sweeping, cleaning her refrigerator, or reaching for stacked dishes. She also has difficulty lifting heavy objects such as pots and pans with her left hand. It takes her longer to do things and she tires more easily. She continues to take medication to relieve pain and discomfort she experiences as a result of her injuries.

Defendant's expert, Dr. Cambareri did not dispute that Claimant's daily life has been affected by her shoulder injury. He felt, however, that the limitations were less severe than Claimant described them. In his opinion, Claimant was not limited in normal activities of daily living as long as the tasks did not involve strenuous pushing or pulling involving the right upper extremity or any activity where she has to raise her right arm above her shoulder (Exhibit D).

When the accident occurred, Claimant was retired but had an active life. She cared for a home and husband and volunteered for the American Cancer Society, transporting cancer patients to and from the SUNY Health Science Center for radiation and chemotherapy treatments. More recently, she and her husband have been raising two of their grandchildren. Since the accident, she is restricted in her ability to perform household tasks. She has also been unable to continue her volunteer work. She is no longer able to crochet, an activity in which she engaged since her childhood, which provided enjoyment, and on occasion, remuneration.

Based upon the evidence presented, I find that Claimant suffered injuries to both her shoulder and her wrist because of her fall, that she has endured and will continue to endure the pain and limitations that she and Dr. Geel described. For her pain and suffering (including loss of enjoyment of life), I award her damages, reduced by her comparative fault as follows:
Past Pain and Suffering $ 85,000
Future Pain and Suffering
$ 50,000

Claimant's comparative fault at 40%
- 54,000

Total Award $ 81,000

with appropriate interest from the date of the liability decision, November 30, 1999.
All motions not previously ruled upon are now denied.


March 16 , 2001
Rochester, New York

Judge of the Court of Claims

As will be discussed below, the parties dispute the nature of the left wrist injury.
For clarity purposes, I will discuss Claimant's shoulder injuries and then turn to her wrist injuries.
Dr. Geel had not evaluated Claimant for this condition and therefore could not say whether she was suffering from it. He was relying upon the examination and conclusions of his colleague, Dr. Mosher.