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
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
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.
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.
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
Dr. Mosher's January 10
progress notes also suggest that Claimant had developed adhesive capsulitis
). At trial, Dr. Geel
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
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
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
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,
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: