New York State Court of Claims

New York State Court of Claims

GUGLIOTTA v. THE STATE OF NEW YORK, #2002-001-504, Claim No. 96538


Case Information

JOSEPH A. GUGLIOTTA, an Infant under the age of fourteen (14) years, by his Parents and Natural Guardians JOSEPH L. GUGLIOTTA and ELLEN M. GUGLIOTTA, and JOSEPH L. GUGLIOTTA and ELLEN M. GUGLIOTTA, Individually
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:
Robert George Bombara, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Michael W. Friedman, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
November 15, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

While camping on July 15, 1995 with his parents, Joseph L. Gugliotta ("claimant father") and Ellen M. Gugliotta ("claimant mother") and his two brothers at North/South Lake Camp Ground, a State-owned facility located about 35 miles southwest of Albany, New York, claimant Joseph A. Gugliotta ("infant claimant"), who was just shy of six years old at the time, suffered a spinal cord injury when an internally decayed tree fell during a severe wind and rainstorm and crushed the pop-up camper in which he was sleeping. In a decision dated November 3 and filed November 12, 1999, the Hon. James P. King found defendant State of New York ("defendant" or "the State") wholly at fault; interlocutory judgment was entered accordingly on November 19, 1999.
  1. Infant Claimant's Condition Before and After the Accident and his Treatment and Prognosis
  1. Infant claimant's testimony
Infant claimant recalls awakening in the hospital after the accident at the camp site as well as that he was operated on, remained hospitalized for about two months and wore a back brace (claimants' exh. 14). Before the accident, he was able to "ride [his] bike, run around, swim"[1]
when he went camping. Afterwards, he could "not really" engage in these activities. In addition, he now urinates by inserting a catheter through his penis every four hours; he wears diapers because he has no voluntary control over his bowels.
Infant claimant has sensation in his left leg "a little bit below [the] hip" and on the right side, "above the knee." When asked how he felt "about what happened to [him] that day," infant claimant replied "I don't like it--a lot."

Since the accident, infant claimant has been hospitalized once for hip surgery that was needed because he "walk[ed] like slanted." He received treatment (therapy) three times a week for awhile to learn how to walk better; however, he has not recently undergone physical therapy. He can walk "pretty far" with his braces and crutches, but uses his wheelchair when he needs to travel long distances.

Infant claimant sleeps in an upstairs bedroom in the family home, and in the immediate aftermath of his accident, his father carried him up and down the stairs. Now he crawls up the stairs and slides down; he also crawls to move about the house. He gets into an automobile by transferring or sliding in from a wheelchair.

Infant claimant attends regular classes in school and, in fact, started the first grade in the fall of 1995 after the accident. He used a wheelchair at school until he reached the fourth grade, when he began to wear braces on both legs. He also uses crutches as well as a wheelchair "when [his] crutches are broken."

Infant claimant travels to school each day in a wheelchair-accessible bus, and attends classes from 8:00 A.M. until 3:00 P.M., moving from class to class using his braces and crutches and the elevator. He catheterizes himself during the school day at the school nurse's office. He leaves school at 3:00 P.M., and takes the bus home.

Infant claimant is doing well in school (almost a 90 average), where he participates in chorus and gym. His extra-curricular activities include "select chorus," which, as he explained it, is a group of vocalists who are "good." For "a couple years" he has played wheelchair basketball (the St. Charles Shooting Stars) at the Nassau County Community College through an organized league or group. He has friends in the neighborhood with whom he plays at their houses or his; he works on the computer, plays video games, goes to the movies and watches hockey on television or live at Madison Square Garden and Nassau Coliseum. He vacations with his family, and has gone camping with them in a pop-up camper since the accident. Infant claimant particularly enjoys swimming, and swims during the summer in an above-ground pool at his aunt's house or in a neighbor's in-ground pool.
  1. Claimant father's testimony
Claimant father testified that following the accident on July 15, 1995, he accompanied infant claimant, who was transported from the camp site by ambulance to Columbia Hospital, where he stayed for an hour or two before continuing on to Albany Medical Center Hospital ("Albany Medical Center") in Albany, New York. Claimant father testified that his most vivid memory of this trip is his son's repeated complaints of thirst.

The accident occurred on a Saturday morning, and infant claimant was operated on at Albany Medical Center on the following Monday. He remained bedridden at Albany Medical Center until July 27, 1995, with his parents taking turns keeping him company for 24 hours a day, seven days a week.

Infant claimant was transferred by ambulance from Albany Medical Center to St. Charles Hospital and Rehabilitation Center ("St. Charles"), where he was treated for another two months. While infant claimant was at St. Charles, his parents again took turns staying with him: claimant father went to St. Charles at dinnertime and stayed with infant claimant overnight while claimant mother stayed with him during the day after he returned from physical therapy.

In late September 1995, infant claimant was discharged from St. Charles to his home, a two-level cape cod-style house, and started first grade. For roughly the first three years after infant claimant's accident, claimant father routinely transported him about the house and elsewhere by carrying him. The family owns a van for long-distance transportation.

When asked to describe his son's activities before the accident, claimant father testified that he was the "best soccer player on the soccer team" that he coached; that he learned to ride a bicycle at the age of three and one-half; climbed trees and generally "was ripping up the neighborhood." Since the accident, infant claimant has been unable to ride a bike. Nor has he played organized sports, "which he's getting into right now with the school, but we're working on it, . . . he's very good, he's probably the ace on his [wheelchair] basketball team." In short, infant claimant "tries . . . to do whatever he can do; he stays active." Swimming is his "number-one sport" in addition to wheelchair basketball because "he can be very competitive with other kids." Claimant father described his son as "a very popular little guy" who loves to play video games with his friends.

The family still goes camping in a pop-up camper in the summertime. Claimant father described an August 2001 trip to a campground near The Six Flags Great Adventure, the amusement park in New Jersey, which he took with his wife and infant claimant and an older brother, both of whom had invited a friend along. Infant claimant "loves amusement parks" and participated in the rides with the others, having gotten "more adventurous" in this regard within the past year. He enjoys fishing and canoeing while on camping trips, and also goes canoeing on a pond near his home.

When asked if his son was "involved in any kind of counseling program," claimant father replied that "[w]e're just starting to reach that point, [infant claimant]'s not on any particular regimen, they see him in school." The family has not participated in any kind of counseling related to infant claimant's injuries.

At the time of the accident, claimant father was working in a manufacturing facility as a woodworker. He became unemployed in 1995 within a few months after infant claimant's accident because the contract for the project on which he was working expired. For about three years thereafter he worked at odds and ends as he tried unsuccessfully to get a painting business established; attended school part-time either at day, while his son was at school, or at night in pursuit of his teaching certification; performed his six months of student teaching and some substitute teaching; and obtained his provisional teaching certification in August 2000. Since September 2000, claimant father has taught "technology," a course of study that he testified was formerly known as "industrial arts," to seventh- and eighth-graders. In the summers, he "usually [will] try to do things around the house," such as painting.

During the school year, claimant father leaves the house at 6:45 A.M. and returns at 3:00 P.M. to 3:30 P.M., arriving home before infant claimant returns from school. His wife works from 9:00 A.M. until 2:00 P.M., and both are usually at home in the evening with infant claimant and an older brother. (Their eldest son attends college and no longer lives at home.) The family does not employ home health aides to assist with infant claimant's care, nor does the family employ any housecleaning help.
  1. Claimant mother's testimony
After the first few days of infant claimant's hospitalization at Albany Medical Center, claimant mother returned to the family residence on Long Island to search for a nearby rehabilitation facility for him. A day or so after choosing St. Charles, she returned to Albany Medical Center and "started to get the transfer . . . of getting [infant claimant] back home." Claimant mother and her husband essentially alternated their daily visits with infant claimant during his hospitalization at St. Charles.

After infant claimant was discharged from St. Charles to his home and started first grade, claimant mother met him each day when he returned home from school. She testified that at that time, he "really was not mobile, very much. He would pretty much sit in the chair or in his wheelchair. He could roll from one room to another. What we did work on [was] exercises and strengthening and stretching with him at home." She described her activities at that time as
mostly a lot of therapy, a lot of exercising, lot of balancing exercises, a lot of strengthening. Because he was in his wheelchair they wanted to make sure that he had the strength to push the wheelchair. Any skin care that needed to be done. He was incontinent of urine and bowel, so his diaper had to be changed. We would put him on the toilet every four hours because what we found in the hospital is if he pushed hard enough--originally when we were in the hospital they were straight-cath[eteriz]ing him, which means exactly what we do now--but they found that he was able to push and empty his bladder, so that's why we kept doing that up until the time when we had the urologic consult. Other than that, his safety in transfers, getting him used to the house, how to get around the house, how to get up and down the stairs, he really--he was little at the time so my husband would carry him up and down the stairs. I tried to occasionally, but I gave up after awhile, he's too heavy. . . . I would help him in and out of the tub. Getting over, into the tub and hence we got a whirlpool tub, which helped with circulation . . . with his legs.
She took her son to physical therapy roughly three times a week for two or three years. After infant claimant's surgery for a hip contracture, she took him to further physical therapy for perhaps six weeks. She testified that he also received physical therapy in school, and that physical therapy outside school stopped "because [her] insurance benefit wore out, ended." She added that "[a]ctually they only normally give a year, but I wrote to the Medical Director of Aetna/U.S. Healthcare and they extended it."

Infant claimant underwent physical therapy in school for three times a week and then two times a week. The family discontinued his in-school physical therapy in June 2001, however, because "[t]he therapist . . . felt that [infant claimant had] made enough--he was able to do what he needed to do while he was in school, and that's what the therapy worked on, to make sure that he could get between classes, his strengthening, his balance. [The physical therapist] felt that he met the goals in school that he needed." Claimant mother testified that infant claimant was not undergoing physical therapy in his school or elsewhere, and that claimant mother "left it open at the latest meeting at the school that if [she] felt that [infant claimant] had lost any functions, any of his strength, we left it open with the special education department that we would start physical therapy again."

Claimant mother testified that her son got his first set of braces in October or November 1995, and "they started working at therapy with him. And he had that set, which was a full--up to his chest the braces went--and I think they last[ed] at least six to eight months, and then they were able to drop him down to the full-leg brace on one side and the lower-leg on the other side." She estimated that infant claimant was now outfitted with his fourth pair of these smaller braces.

When asked to describe how she currently takes care of infant claimant, claimant mother testified that
[a]t the present time, . . . you have to keep a close eye on him because . . . when he crawls, his skin breaks down very quickly. He's had [inaudible] on both of his knees that we've had to do wound care on. You have to keep a close eye where his braces are because . . . they irritate him very quickly. I always make sure that he does his catheterizations on time; I make sure that he takes his medications on time. I always make sure that he washes his hands--with the catheter you have to make sure he doesn't get an infection. And as he crawls around, he doesn't have any sensation in his legs, so he bruises quite easily at times. And basically safety, safety in transfers, safety that he doesn't catch his leg in a reclining chair, he doesn't fall and twist anything.

She testified that infant claimant was currently taking Bactrim once a day at night to prevent infection, Ditropan for the bladder and a stool softener/stimulant for his bowel.
She testified that her son required four to six diapers a day on account of his bowel incontinence, and catheterized himself every four hours while awake. From January 1999 until early 2001, she performed the catheterization while infant claimant was at home, and the school nurse assisted infant claimant with this procedure while he was at school. He was able to change his own diapers a year or so earlier than he was able to self-catheterize.

When asked to describe her son before the accident, claimant mother stated that he had done "everything and anything that he could as much as any other little kid." Following the accident, "[h]e tries very hard to keep up with the other kids and he does, to a point. He obviously can't do a lot of the things that other kids can do, but he tries to stay involved with many things, like he has the wheelchair basketball." She also testified that infant claimant was the manager for the little league team the prior year, swims and "really does as much as he can." When asked how well infant claimant had adjusted to his injury, she testified that "[h]e has done very well. I honestly believe that"; however, "this year in school, it becomes team sports . . . I mean he would love to play football, he would love to play . . . every other team sport that goes on in school, but he feels he can do it, but football he's not playing. You know there's a lot, he can't do a lot of the things that he would like to do. . . . He feels a little funny about it at this time."
  1. Medical testimony
  1. Testimony of Dr. Robert E. Steckler ("Dr. Steckler")
Dr. Steckler graduated from Albany Medical College in 1985; he has been licensed to practice medicine in the State of New York since 1986, at which time he was a resident at New York Hospital-Cornell Medical Center in New York City, where he trained for two years in general surgery and for four years in urology. In 1991, he undertook a two-year fellowship in pediatric urology at The Hospital for Sick Children in Toronto, Canada.

In July 1993, Dr. Steckler commenced an academic practice at the University of Medicine and Dentistry of New Jersey in Camden, New Jersey. After three years there, he relocated to Tampa, Florida, where he practiced medicine for a year before relocating his private practice to Long Island, where he grew up.

Dr. Steckler's practice is "devoted to taking care of children from birth, generally up to the age of 21 [although] there are special circumstances where [he will] follow a patient into adulthood if it's a problem that is best taken care of by a pediatric urologist." He defined "urology" as "the care for the urinary tract in males and females, as well as the genital tract in males, and to some extent females as well."

Infant claimant first visited Dr. Steckler, who is Board-certified and specializes in pediatric urology, in November 1998. He explained that upon joining his current practice, he assumed the care of all the children, and "as with all children who have any kind of spinal injury, whether it's congenital or post-traumatic, they have bladder and bowel-related problems and they get a thorough evaluation in that regard." Dr. Steckler conducted a "thorough history and physical" in this initial visit, during which he found "evidence consistent with [infant claimant's] injury to L-1 and L-2, which is a level of the spinal cord that he had sustained his trauma. . . . [O]n the left side he had a motor level of L-1, L-2, and on the right side he had a motor level somewhere around S-1 and S-2, and that was . . . consistent with his history."

As part of this initial examination and evaluation, Dr. Steckler ordered an ultrasound of infant claimant's kidneys and bladder; an x-ray of his bladder (called a voiding cystourethrogram, or "VCUG"); and, following those, urodynamics. He described ultrasound as "a test that will help you assess the gross anatomies of the kidney and the bladder. It doesn't necessarily give you very fine detail, but can give you a lot of important information"; the VCUG as "a test that

gives . . . some more detail on the bladder, and on . . . [the] bladder neck, which is the sphincter mechanism, as well as the urethra, the tube through which he voids"; and urodynamics as "a test that assesses the pressure-volume dynamics of the bladder."
According to Dr. Steckler, infant claimant's initial ultrasound showed a grade 3 hydronephrosis of the left kidney, "hydronephrosis referring to dilatation of the interior of the kidney," meaning "the kidney in [infant claimant's] case was not draining freely," which "puts the kidney at risk for both infection and for damage." On the ultrasound, the bladder was noted to be thickened, which "would imply that the bladder is having to work harder; it's not working properly." The VCUG showed that infant claimant had reflux, "which means that the urine backed up from the kidney to the bladder and this was grave reflux on the right side." Dr. Steckler described the effects of the reflux as similar to those of hydronephrosis: "It places the kidney at risk for infection and should the kidney get infected, then there's an increased risk of permanent kidney damage."

In light of these results, Dr. Steckler recommended that infant claimant commence a regimen of intermittent catheterization. He explained that infant claimant had been "voiding by straining his abdominal muscles, which is an inefficient and potentially dangerous way to evacuate the bladder."

When asked to explain how a catheterization is performed, Dr. Steckler replied that it was

done by the patient or a caretaker. A sterile technique is not necessary. You don't even necessarily have to wear gloves, but you do need to wash your hands. [You] have some lubricant, you'll pass the catheter through the urethra, and then manipulate the catheter something a little back and forth until the bladder is completely empty, you get no more urine back.
While the intermittent catheterization does not prevent reflux, "it insures that the bladder is being emptied at regular intervals." Dr. Steckler also started infant claimant on a medication called Ditropan, "which is a medication to try to control some of the bladder's increased pressure and try to inhibit some of the bladder's contractions, which can be contributing to the thickening of the bladder and the reflux, the back-up." Dr. Steckler also placed infant claimant on Bactrim, an antibiotic, as a prophylactic measure to decrease the risk of infection from reflux.
Infant claimant underwent the urodynamics testing in May 1999. By that time, he was catheterizing approximately every four hours and taking the Ditropan. The urodynamics revealed that infant claimant's "bladder pressures were good, were being controlled with his medication, and that . . . the bladder was not contracting abnormally." Because "the study was promising" and "showed that treatment was having beneficial effects," Dr. Steckler "was happy with the way things were going."

When asked whether "anything was done with respect to [infant claimant's] bowel movements," Dr. Steckler replied that "[a]s with any spinal injury, the bowels are affected in similar fashion as the bladder. We had discussed a bowel regime, putting him on some fiber, and starting him on laxative. . . . As of March 2000 we had done very well with his bladder, but hadn't made significant progress with his bowels at that point, and we were continuing to work on that." In March 2000, Dr. Steckler also switched infant claimant to a once-a-day formulation of Ditropan "to make things easier for him."

Infant claimant, who sees Dr. Steckler about twice a year, underwent repeat testing in the spring of 2000, which "showed that the reflux had actually resolved, and that the hydronephrosis had resolved as well. . . . So within two years, we were really able to make very significant strides, although still not as much on his bowels." Dr. Steckler had decided to stop the antibiotics "because [infant claimant] no longer had reflux, but shortly after stopping his antibiotics, he got an infection" and so prophylactic antibiotic treatment was resumed.

According to Dr. Steckler, infant claimant has most recently been catheterizing every four hours "and reported no problems" and that he "was basically perfectly dry, relating to the bladder." When Dr. Steckler inquired why infant claimant continued to wear a diaper, he was told "that was because he still had no bowel control, so we tried to intensify his treatment with fiber and a stool softener/laxative that he's taking." As Dr. Steckler put it, "[w]e still have progress to make with his bowels, and that's not unusual that bowels take more effort and more tinkering to get a program that works."

When queried further on cross-examination about infant claimant's prospects for improved bowel control, Dr. Steckler explained that he "hoped to be able to give him control--not voluntary control--but assisted control so that he doesn't need to wear a diaper at all." When asked if that were a "realistic goal," Dr. Steckler replied "I think so." He described the treatments needed to achieve this goal as "any combination of fiber, laxatives, suppositories, enemas, that sort of thing. . . . some dietary manipulation"; and commented that infant claimant was "right now . . . taking some fiber in a combination laxative/stool softener, but we're going to need to intensify that." In addition, whether infant claimant "is going to need to have suppositories on a regular basis, or enemas, his last x-ray showed . . . that he is quite constipated." Moreover,
children who are resistant to medications, enemas, you name it, there is a surgical procedure that sometimes that we opt for that was developed about ten years ago that works exceedingly well. . . . but it would be more than premature to say [he] needs that. That's something that we hold in our pocket . . . for someone who's resistant to everything else.
Dr. Steckler described the elements necessary for infant claimant to achieve assisted bowel control, which would eliminate the need for him to wear diapers, as "finding the cocktail, the regime that works," and that he was "mixing and matching and playing with things, it's empiric, you just have to play, manipulate things [to] find what works for him. Every patient's a little different." Dr. Steckler readily agreed with the characterization of this aspect of infant claimant's treatment as a "work-in-progress"; he reiterated that the goal, which he considers attainable, is to eliminate infant claimant's dependence on diapers because "to achieve bladder control without the bowel, that's only half the game."

Dr. Steckler testified that infant claimant's condition was caused by his spinal cord injury, and "barring some fantastic new research," this condition is permanent. When asked if infant claimant would ever have voluntary control of his bladder, he replied that "voluntary, meaning free of catheterization and medication, no. He'll always have to have those aids." When asked whether infant claimant would ever have voluntary control of his bowels, he responded similarly.

When asked his opinion about infant claimant's sexual functioning, Dr. Steckler replied that he had not yet explored this issue, as infant claimant was "just beginning to go through puberty." Specifically, he testified that he "did not have that data" but that
patients with similar levels of injury . . . about 25% of those patients would be expected to be able to have what's called reflexogenic erections. . . . Even if [infant claimant]--take our worst-case scenario--was unable to, there are medications to assist with that, potentially surgical procedures to assist with erectile function. In terms of reproductive function again . . . if he had erectile dysfunction, ejaculation should not be a problem. Again, worst-case scenario, with anyone with either congenital or spinal cord injury, even if they can not have ejaculation or emission on their own, there are assisted procedures, such as electro-ejaculation to stimulate the process or even to extract sperm. There are things that can be done to help him if he is not able to do this on his own.
When asked about the need for future surgery, Dr. Steckler testified that "either for his bladder or his bowel management, the need for surgery is always possible. If we get [infant claimant] to 18, or rather than pinning it on a specific age, if he's fully grown in terms of stature, things are unlikely to change significantly in terms of urinary tract or bowels. Things will likely stay the same, and just need due diligence to maintain the program. It's impossible to predict until such time." With respect to infant claimant's life expectancy, Dr. Steckler testified that "if things were to stay as they are now in terms of his urinary tract--he has no reflux; the bladder pressures are under control; he has no hydronephrosis; . . . he remains infection free--his life expectancy should be pretty normal."
  1. Testimony of Dr. John J. Labiak ("Dr. Labiak")
In 1986, Dr. Labiak graduated from the Upstate Medical Center in Syracuse, New York. He subsequently interned in general surgery and completed a residency program in orthopedic surgery at New York Medical College, as well as a fellowship in orthopedic surgery of the spine at the Hospital for Joint Diseases, Orthopedic Institute. Dr. Labiak is Board-certified and currently practices orthopedic surgery with a specialty in the spine.

At the request of Dr. Lois Saltzman, a physiatrist at St. Charles, Dr. Labiak examined infant claimant on July 31, 1995 for a fracture dislocation with traumatic paraplegia and thereafter continued to follow and evaluate him during his convalescence at St. Charles from the surgery performed at Albany Medical Center. Dr. Labiak described infant claimant's condition as post-fracture dislocation of L-1, L-2 with open reduction and internal fixation and spinal fusion. When asked to explain what was involved with this kind of surgery, Dr. Labiak testified that "at the time of the injury, the spine was dislocated completely, meaning that one vertebra was completely forward of the next vertebra." Accordingly, open reduction "refers to opening the skin, moving the muscles out of the way and actually putting the spine back to where it belongs"; internal fixation refers to "the metallic devices that were used, the screws and wire that were used to then fix [the spine] and keep it in place"; and finally, "the fusion is accomplished by removing the surface of the bone, and then putting bone grafts in to allow those bones to heal together, which is ultimately what provides the stability of the spine."

Dr. Labiak maintained infant claimant on the TLSO (thoraco/lumbo/sacro orthosis), a plastic brace (claimants' exh. 14), in which infant claimant was placed after his surgery at Albany Medical Center in order to augment stability and facilitate spinal fusion. Dr. Labiak testified that he began to wean infant claimant from this brace on October 18, 1995, a process that takes a few months. Dr. Labiak testified that infant claimant eventually underwent hip surgery to relieve a contracture because he had begun to lose motion in the hip and was unable to fully extend or straighten it.

Dr. Labiak testified that x-rays taken of infant claimant in late 2001 showed a mild scoliosis, or curvature of the spine. He described the two effective forms of treatment for scoliosis as bracing or surgery, which involves "fusing the spine and potentially straightening it somewhat and then stabilizing it. Most commonly, depending on the age group, using implants, rods, screws, wires or some combination of those."

According to Dr. Labiak, as a result of the accident infant claimant suffers from "scoliosis, a hip flexion contracture, and uncovering of one of the hips because of pelvic obliquity, meaning his pelvis is not level--it's higher on one side than the other--so one of his hips is not fully covered by the socket on that side; and he has a neurologic injury with paraparesis and sensory loss in his lower extremities." He characterized infant claimant's future prognosis as "guarded," meaning that "with regard to his neurologic status, he's not going to improve" and that "he will need surgery for his spine" because "the risk of . . . having a progressive scoliosis with a neurologic injury such as this is virtually one hundred percent. He will most probably need further hip surgery as well." When asked how much hospitalization would be required for such scoliosis surgery, Dr. Labiak replied five to seven days; as to the fee, he "would be guessing" $15,000 to $20,000; as to the length of the recovery period, he testified that "activity restriction is really in effect until the fusion is solid, which takes approximately one year." He also testified that hip surgery would require hospitalization for three to five days.

When questioned further about the prospects for infant claimant to ambulate in the future, Dr. Labiak opined that "[a]t this point [infant claimant] ambulates with the . . . assistive devices in braces. Essentially, as a child, you're really in your best position to do that, so I would say that as he gets older and loses some coordination and strength, that his ability to ambulate will probably diminish and stop," at which point he would be wheelchair-bound. He estimated that, while "difficult to pinpoint exactly," this would happen "probably [in] middle age."

In summary, Dr. Labiak testified that in the future infant claimant would require surgery for the scoliosis and hip; and that "the sensory change . . . presents an increased need for diligence as far as his skin goes. For instance, he's not susceptible to the sensory feedback for thermal I think, so he's more susceptible to burns. Pressure . . . with regard to his skin. And then the offshoot of his neurological injury would be bowel, bladder and sexual function, so he'll need ongoing care in each one of those areas." He further opined that infant claimant's life expectancy was nonetheless "approximately normal."

On cross-examination, Dr. Labiak described his current function as "observing [infant claimant] for the potential complications of having a fracture dislocation and a neurologic injury and treating him along the way with things such as bracing [and] physical therapy." Because of infant claimant's age, Dr. Labiak now sees him yearly, but will probably see him every three or four months when he "goes into his adolescent growth spurt" because of "its effect on his scoliosis and his hips." Dr. Labiak, who prescribes physical therapy, testified that he did not know if infant claimant was currently undergoing physical therapy, but he would need physical therapy in the future "periodically." He last prescribed physical therapy for infant claimant prior to his hip surgery and after late August of 1998. The last brace that he prescribed for infant claimant was an orthosis for his wheelchair; that is, a brace for an insert for the wheelchair. He has not prescribed any leg braces for him.

Dr. Labiak testified that the "most common way" to "communicate the measurement" of scoliosis is by degrees, by a technique called the Cobb method. Normal is 0 degrees with a margin of error of ±4 degrees. He reviewed an x-ray report dated November 20, 2001, which stated that "thoraco-lumbar scoliosis 7
to the right in the upper portion and 5
to the left in the lower portion. Post-operative changes with screws noted in the posterior aspect of L-2." Dr. Labiak also reviewed a report dated January 23, 2001 that he had prepared in which he noted that infant claimant had "minimal scoliosis, less than 10
in the lumbar region."

When questioned as to how, in light of these findings, he could "with any certainty" predict that infant claimant would require future surgery on the spine, Dr. Labiak replied as follows: "Well, I can certainly call upon the literature and my experience with patients of this type to determine essentially what he's going to need or encounter, so you know with any certainty, yeah." When pressed as to whether he agreed that "it's individualized with a particular patient," Dr. Labiak responded that "[w]ell, everything's individualized with respect to the individual patient, but certainly there are things in him that are extraordinarily probable if not guaranteed, based on the medical literature and based on our experience with similar patients." When asked to expand on this answer, he replied that "medical literature" is "a broad term, but certainly in orthopedic spine surgery, the journals that I read regularly [
The Journal of Bone and Joint Surgery and The Journal of Spinal Disorders] as well as myriad textbooks, and things of that nature. . . . [t]here have been numerous articles actually on the progression of neuro-muscular scoliosis in children with paraparesis"; further, in James Weinstein's book Pediatric Orthopedic Surgery "there's an excellent summary of that, which would indicate that a child . . . prior to [his] growth spurt who sustains a spinal cord injury with paraparesis has a virtually 100% chance of having a progressive scoliosis and needing surgery," and "The Textbook of Spinal Surgery has a similar reference."
When queried as to whether he considered this medical literature a reliable basis for his prognosis of further surgery for infant claimant, Dr. Labiak replied "Well, yes. Certainly the medical literature is not to be taken verbatim--any individual article--however, having read both of those textbooks in their entirety and reading [the journals] regularly, I mean I think it's a well-documented point in this case." He further testified that he had treated perhaps 50 to 100 patients with spinal cord injuries similar to those suffered by infant claimant.

Dr. Labiak identified the future medical problems that someone in infant claimant's situation might face as bladder, bowel, sexual dysfunction and skin (sensitivity to dermal pressure) problems as well as deep vein thrombosis. When asked if the medical literature indicated that the life expectancy of those suffering spinal cord injuries was "somewhat shorter" than would otherwise be the case, he testified that "Well, I think that they are, certainly they're more susceptible to those things, but I don't believe it effectively shortens their lifespan that I know of. I don't think I have ever seen a number for the lifespan of somebody who has a certain level of paralysis, and I don't know that that literature exists because it's such a commingled group of people." When then asked whether he had searched the medical literature for information on this subject, Dr. Labiak responded that he "[couldn't] say that [he had] actually, actively gone back and looked for a specific reference on it."

In short, Dr. Labiak was convinced that infant claimant would suffer progressive scoliosis, which would ultimately require surgery to arrest the progression and to fuse his spine. He characterized the risk of further hip surgery as less certain, although still significant.
  1. Testimony of Dr. Patricia Tan ("Dr. Tan")
Dr. Tan graduated from the University of Santo Tomas in the Philippines in 1984; she came to the United States, took her certifying examinations and entered into a five-year double-board residency program at Long Island Jewish Medical Center, from which she graduated in 1995. Since then, she has worked there and at St. Charles. She specializes in pediatrics, particularly traumatic brain injury and spasticity, and also practices physical medicine and rehabilitation, or physiatry, in which she is Board-certified.

When Dr. Tan first examined infant claimant in April 1996, he exhibited gross atrophy of his lower extremity muscles, particularly those required for walking. He also "had a lot of problems in terms of his sensation because of his injury from the hips and below" as well as spasms of the right extremity and "problems with his functional mobility." Further "[b]ecause of his weakness [infant claimant] was unable to move independently and therefore he was able to scoot around without any assisted device. Assisted device in this case would mean a brace. He had a long-leg brace on one side, on . . . the left leg, and a short-leg brace on the right and then he also required some crutches, Lofstrand crutches." She added that, with those assisted devices, infant claimant was able to ambulate around the office. Dr. Tan determined that infant claimant would benefit from physical therapy, with the goal of preventing contractures of the lower extremities; strengthening his residual muscle power; and assisting him with functional mobility, in particular, transfers and independence in ambulation with the assisted device.

She next saw infant claimant in July 1996 as a follow-up for his musculoskeletal problems, in particular tightness on the left side and pelvic obliquity. Then in January 1997, she treated him for a breakdown on the right knee, a stage 2 pressure sore, caused by the way he moved around his home on his knees without braces or the assisted devices. She added that because of the level of his spinal cord injury, infant claimant has no sensation from his hips down and is therefore "very prone to these ulcers." She also continued to follow him for his functional mobility to make sure that he did not develop any range-of-motion contractures and that he continued to improve with his balance and show progress with therapy. She noted that, at that point, infant claimant was able to transfer with minimal assistance from supine to sit and sit to stand; he was able to ambulate short distances with long-leg braces. She referred him to Dr. Labiak, whom she characterized as an expert in scoliosis.

Dr. Tan saw infant claimant again in March 1997 for follow-up of a pressure sore that he had developed on the right knee. In December 1997, she saw him on account of another stage 2 breakdown on the right knee, and she was also following him for his functional mobility. By that time, he was more ambulatory with the help of his Lofstrand crutches and the braces.

When Dr. Tan saw infant claimant in September 1998, he had developed an isolated contracture, which prompted a consultation with an orthopedic surgeon. She also wanted "to rule out whether the hip was getting . . . dislocated from the socket," so x-rays (which were negative) were taken; however, the contracture was affecting his gait and independence in transfers and therefore she prescribed physical therapy for "aggressive stretching" of the contracture. She also recommended that he visit the spasticity clinic because "at that point there was a question whether he was developing spasms, which were causing him to develop that contracture"; however, "after evaluation of the entire team, [infant claimant] was deemed not a candidate for injections of Botox or any other intervention other than surgical intervention. It was a fixed contracture because it was developing over the course of time. It required surgical release of that contracture." Infant claimant underwent the surgical release in January 1999 at St. Charles.

After this surgery, Dr. Tan saw infant claimant in March 1999 for a pressure sore on the left knee, and placed him in physical therapy for strengthening and follow-up for the braces. She added that he is "very active," which requires that she "be sure that the braces still fit well. He has a lot of wear-and-tear with his braces and therefore [she has] to be sure that the fit is well, and that there is no breakdown." She saw him for further follow-up late in March 1999.

In November 1999, Dr. Tan saw infant claimant to treat another pressure sore, a stage 3 ulcer, and to fit him for new braces. She also noted that she follows infant claimant for his bowel-bladder problem; i.e., she checks on him to make sure that he is performing the catheterizations and taking his medication.

Infant claimant next visited Dr. Tan in April 2000, when he was seen for a brace repair. Noticing a leg length discrepancy, she also prescribed a shoe lift on the left side to improve his gait and prevent further scoliosis. She also recommended that he continue physical therapy.

In October 2000, when she saw infant claimant for a left heel ulcer, Dr. Tan also made a finding that he was developing a deformity on the right foot as a result of the contracture. Continuing to follow his range-of-motion, she determined that infant claimant's left side was weaker than his right side.

Dr. Tan next saw infant claimant in October 2001 for new braces because "once again, the wear-and-tear on the brace required [a] prescription of new braces." Moreover, she continued to follow him for an abrasion that he had suffered on his left knee as a result of rubbing in the brace and assessed his overall medical status (bowel-bladder and scoliosis) as well as his progress in school and social history. Upon physical examination, she again remarked that he has greater weakness on the left side than on the right, and insensate problems (on the left side, no sensation from the left hip; on the right side, no sensation from the right mid-thigh).

Dr. Tan continues to follow infant claimant functionally, and characterized him "as quite independent in terms of his ambulation," but noted that "he does require assisted devices and . . . some reminding to perform this therapies." Dr. Tan attributed the conditions for which she has treated infant claimant to the injuries that he sustained to his spinal cord in 1995, which are "permanent and irreversible."

Dr. Tan opined that infant claimant requires assistance for his daily living activities; specifically,
because of his age, he still requires assistance . . . donning and doffing . . . the brace. . . . Because of his insensate problem, it's very important that. . . the brace be put properly. They have all sorts of metal joints and hinges and to put it appropriately requires some discipline, which, at his age, is not fully developed and we need to have somebody supervise him. He has to have socks underneath those braces that are stretched without any wrinkles so that he doesn't develop any breakdown. He requires supervision in taking his medications. He's on a lot of bowel-bladder medication . . . which he will require for the rest of his life and if he doesn't take [the medication], it could lead to problems, such as constipation, malnutrition, all that. He requires . . . some assistance with bathroom activities, such as going to the shower and helping him out . . . in terms of checking his pressure sores. He requires that someone be able to check the front of him and the back of him because of his problems. He is prone to skin breakdowns. As you've already heard, he's had all these breakdowns on the knee, but that doesn't mean that he doesn't have [a] breakdown on the back. If he goes for long distances, he sits on the wheelchair and he will develop pressure sores also in his gluteal area . . . where he sits if he doesn't do his pressure relief. So somebody has to check to be sure that he doesn't have [a] breakdown in that area.
She estimated that infant claimant requires five hours of assistance each weekday and eight hours for a weekend day, taking into account the time he currently spends at school and will in the future spend at work; and that he would require this level of assistance for the remainder of his life.
Dr. Tan further opined that she "would recommend that [infant claimant] receive physical therapy at least two times a week, about thirty- to forty-five minute sessions" because he is prone to develop contractures on account of his spinal cord injury. She defined the goal of this therapy as "supervis[ing] [infant claimant] so that he performs his therapies, range-of-motion exercises, he doesn't develop contractures" and "strengthen[ing] whatever muscle power is left in his right extremity as well as his left." In addition, because "he has some tightness, he needs to be stretched" and "[I]f he needs to have some modalities applied by a physical therapist, then they can do so." Finally, infant claimant "needs to work on his balance and his sitting balance, standing balance and his walking, his gait training. Especially when he has new braces, they have to supervise him when he walks with his new braces [to] check that he doesn't have any contractures."

When asked the length of time the physical therapy that she described would be required, she responded that "ideally, it would be his entire lifetime"; and added that the "reason why" was "because as [infant claimant] gets older, he will be less mobile, and as he gets more and more wheelchair-bound . . . it will make him prone to develop all these contractures, and all these complications . . . mentioned and therefore the need for therapy will be increased throughout his lifetime." When asked again what type of therapy she would recommend, Dr. Tan answered "physical therapy, supervised by a licensed therapist. It could either be through school or through . . . after school as an out-patient basis, or home therapy. Either way, as long as it's supervised."

Finally, Dr. Tan testified that infant claimant would require "a lot of durable medical equipment" over the course of what she anticipates will be a normal life span. Specifically, "his braces will have to be overhauled . . . maintained and replaced as needed" and he will need Lofstrand crutches, catheters, medications and a lightweight wheelchair for long distances. When he is old enough to drive, he will need a van with special controls; he will need "a special type of van that will accommodate the wheelchair." In addition, he will need the proper ramps to access his home, which has to be wheelchair-accessible; i.e., the doorways and shower have to be wide enough to accommodate a wheelchair; the kitchen has to be accessible at a level to allow him to be independent.

On cross-examination, Dr. Tan acknowledged that in her three most recent medical or progress reports she had observed that infant claimant is independent in his activities of daily living and ambulation; attends regular school; is quite active in sports, including wrestling and swimming, and does not participate in physical therapy through his school or otherwise as a result of any medical prescription (defendant's exhs. B, C and D). She has not to date prescribed any outside help (i.e., home care or home health aides) for infant claimant.
  1. Damages
  1. Claimant father's testimony
Claimant father described various modifications made to the family home to accommodate infant claimant after the accident, including renovating the bathroom to include a wheelchair-accessible sink, pocket doors and a jacuzzi; removing a wall in the kitchen/hallway/dining room area and replacing the existing floor coverings with wood floors; increasing the width of doorways; installing a wheelchair-accessible island in the kitchen; and enclosing a breezeway at the side of the house to provide wheelchair access to the house in the absence of ramps. He testified that these modifications cost $20,948.00 (claimants' exhs. 17 and 21, 22, 23, 24 and 25), and he performed some of the labor. He testified that further house modifications are needed; specifically, some means for infant claimant to negotiate the stairway, other than crawling (for example, a chair glide), and a ramp into the house's back or front entrance.
  1. Claimant mother's testimony
Claimant mother is a registered nurse who received her B.S. degree in 1979 from the State University College at Brockport. Prior to infant claimant's accident, she worked full-time at South Shore Home Health Services, Inc., earning $23.56/hour with full benefits for a 40-hour workweek (claimants' exh. 8). After the accident, she began to work part-time 25 hours a week because she "wanted to be home to take care of [infant claimant]" when he came home from school. As a part-time employee, claimant mother's salary dropped to $21.00/hour and she had to pay for one-half of her health insurance benefits (
As a result of subsequent salary increments, claimant mother was earning $23.05/hour (gross salary of $576.25/week) by the end of 2001 (
id.). She described her job as supervising "Medicaid, New York State cases that have personal care aides" by "go[ing] into the homes just to make sure the aides are doing what they're supposed to be doing." She also supervises two nursing cases to "make sure the nurses are doing what they're supposed to be doing."
Claimant mother's pay stubs confirm that her gross pay was $942.40/week ($23.56/hour for 40 hours/week) and her net pay was $727.44 for the pay period ending June 25, 1995, or just prior to infant claimant's accident (claimants' exh. 16-B); her gross pay was $525.00/week ($21.00/hour for 25 hours/week) and her net pay was $437.14 for the pay period ending November 12, 1995 (claimants' exh. 16-A); her gross pay was $525.00/week and her net pay was $389.14 for the pay period ending December 31, 1995 (claimants' exh. 16-C); her gross pay was $546.00/week ($21.00/hour for 26 hours/week) and her net pay was $387.88 for the pay period ending May 25, 1997 (claimants' exh. 16-D); her gross pay was $601.65/week ($23.14 [rounded]/hour for 26 hours/week) and her net pay was $426.59 for the pay period ending April 19, 1998 (claimants' exh. 16-E); and her gross pay was $576.25/week and her net pay was $370.09 for the pay period ending October 8, 2000 (claimants' exh. 16-F). These stubs reflect deductions of $48.00 for health insurance during the pay period ending December 31, 1995 (claimants' exh. 16-C); $63.86 for health insurance during the pay period ending May 25, 1997 (claimants' exh. 16-D); and $47.68 for health insurance during the pay period ending October 8, 2000 (claimants' exh. 16-F). She stopped paying for health insurance coverage through her employer as of October 1, 2000 when her husband obtained full-time employment and health insurance benefits through his employer. When infant claimant underwent hip surgery in January 1999, claimant mother took five weeks of unpaid leave pursuant to the Family Medical Leave Act.

Prior to infant claimant's accident, the family employed a babysitter for an hour or an hour and a half a day five days a week, who was in the home to meet the three children when they arrived home from school. During cross-examination, claimant mother insisted that she continued to work part-time after infant claimant started first grade solely because of his injury, although her husband was unemployed because "he really wasn't home all day. He would either be out making an estimate or working painting." She acknowledged, however, that her decision to work part-time so that she could spend more time at home allowed her husband to pursue a business and go to school. When asked if she could have returned to full-time work once infant claimant had become older and more self-sufficient and her husband got home from his job as a teacher at 3:00 P.M., she answered "Could I? I could." Claimant mother testified that full-time work had become possible again for her when infant claimant began self-catheterization in January 2001. She added, however, that she "still want[ed] to be there to make sure that [infant claimant]'s able . . . right when he comes home, I want to make sure that he's catheterized correctly," although her husband is also able to do that.

Claimant mother has incurred unspecified out-of-pocket expenses on account of infant claimant's post-accident care for diapers, wound-care supplies and the stool softener. She also paid the required fifteen-dollar co-payment for infant claimant's periodic physical therapy and made co-payments for prescription medicines. Claimant mother knows of no social services liens against infant claimant's recovery.
  1. Testimony of Alfred Samenga ("Samenga")
Samenga styles himself a legal and health care specialist. His company, A. Samenga and Associates, Inc., which he founded in 1990, provides expert witness services to plaintiffs and defendants and to insurance companies to prepare life care plans, which he defined as "in essence . . . [a] damage analysis of the patient's needs." From 1976 to 1990, he worked as the executive vice-president and chief operating officer of an international home care company that provided nursing services, durable medical equipment, orthotic and prosthetic devices, therapy services and modifications to both homes and facilities. He holds a bachelor's degree in marketing from St. John's University, and a master's degree in supervision and administration from Long Island University.

Samenga testified to various costs in 2001 dollars for medical services or products that he was asked to assume that infant claimant would require. Specifically, he testified (1) that it cost $200.00 to visit a urologist, $150.00 to visit an orthopedist, $150.00 to visit a physical medicine/rehabilitation specialist and $125.00 to visit a licensed physical therapist; (2) that a semi-private hospital room, not accounting for any diagnostics, cost roughly $1,000.00 per day; (3) that someone who is wheelchair bound or unable to use the legs in the operation of a vehicle requires a specialized van, with a five-year lifespan and an adaptation for the wheelchair lift, at a cost of $25,000.00 to $30,000.00, and an additional cost of $5,000.00 for hand controls; (4) that Lofstrand crutches cost approximately $75.00 and have to be replaced approximately annually; (5) that a knee/ankle/foot orthosis and a hip/knee/ankle/foot orthosis cost approximately $5,000.00 to $5,500.00 and require replacement roughly annually (assuming ongoing repairs) from the ages of 12 to 18 or 20, and approximately every three to four years after that; (6) that diapers cost $1,040.00 per year, assuming five to six changes daily, and that the accompanying over-the-counter wipes to prevent infection cost $287.76 annually; and (7) that one-a-day Ditropan costs $900.00 per year, one-a-day Bactrim costs $264.00 per year, one-a-day stool softeners cost $72.00 per year, medicated cream costs $77.88 per year, catheters (assuming catheterization four times daily) cost approximately $8.00 to $10.00 per day and KY jelly (used to assist in catheterization) costs approximately $75.00 to $100.00 per year. When asked how much it would have cost for someone to come into the home to catheterize infant claimant three times daily for the period January 1999 until January 2001, Samenga testified that a registered nurse would provide this service at a cost of $125.00/catheterization.

Samenga was also asked about the cost of certain home modifications in 2001 dollars. Specifically, he testified that a stair glide costs approximately $2,000.00; that a ramp's cost varies from approximately $2,500.00 to $6,000.00 to $7,000.00, depending upon where it is located in the house. (After visiting infant claimant's house, however, he estimated a cost of $5,000.00.) Samenga estimated $32,000.00 per year (at $15.00/per hour) as the cost for assistance in the home with activities of daily living for five hours a day during the week and eight hours a day on weekends.

When asked on cross-examination how he went about preparing a life care plan, Samenga testified that "generally speaking, . . . certain documents, medical records, depositions, bill of particulars, would be submitted" and he "would do a review of the records . . . then normally . . . a preliminary analysis, and then based upon direction, from the carrier or law firm, do a visit with the family, and then refine the product once again for final submission." When asked to specify what he had reviewed in this case, he replied that he no longer recalled.

Samenga identified the life care plan prepared on behalf of infant claimant as his work product virtually exclusively (i.e., he might have asked a nurse to review the costs of the prescriptions). In developing the costs for the life care plan in this case, he looked at the prevailing Medicare rate in the area or the usual and customary charges of physicians; however, "most of the costs . . . for instance, the personnel costs, [were] based upon [his] working knowledge of the region and representing these particular health care providers." For example, the costs that he attributed to orthotics were based on his "involvement in the area, [his] contact with p. and o. shops, prosthetic and orthotic shops, in verifying the costs," back-up references that he failed to provide or cite.

Samenga further acknowledged that he had prepared two widely varying life care plans for infant claimant. In his initial life care plan (circa the spring of 2001),[2]
which was submitted to defendant during discovery, Samenga estimated that infant claimant would require home health aides or in-home assistance for 24 hours a day/seven days a week. He acknowledged that he had not interviewed infant claimant's family before preparing this report (although he had previously testified that he routinely conducted an interview as part of his usual procedure for developing a life care plan); he claimed that he had been provided with medical reports prior to his preparation of this initial life care plan, though. When questioned about his reason for concluding that infant claimant required 24-hour-a-day/seven-day-a-week care, Samenga responded that "prior to meeting with the family, the basis for it was quite honestly that the family should be provided as much care as possible. They should not have to be the primary health care providers for the individual." He acknowledged that in the spring 2001 he did not realize that infant claimant was attending regular school or was out of the house for seven or eight hours a day, and made no effort to determine such facts "at that time." When asked why he issued a second report, Samenga testified that "after meeting with the family and discussing with the family and meeting with the child . . . it was apparent that this [his second] plan better reflected [infant claimant 's] condition and his needs."
  1. Testimony of Leonard R. Freifelder, Ph.D. ("Dr. Freifelder")
Dr. Freifelder performs economic analyses "almost exclusively in various types of litigation" as well as "statistical analyses and sometimes actuarial studies for the same types of purposes." He earned an undergraduate degree with a major in actuarial science as well as a masters and Ph.D. in operations research from the University of Pennsylvania. He taught for ten years at the college level, and then was employed by various types of employers to perform actuarial science studies and economic and statistical work, including rate-making studies in the field of automobile insurance as the Special Deputy Commissioner at the New Jersey Department of Insurance. Prior to forming his own consulting firm, Leonard R. Freifelder and Associates, he was employed at a company that was a third-party administrator for automobile insurance carriers and at the Center for Forensic Economic Studies, an economics and statistical consulting firm headquartered in Philadelphia.

Dr. Freifelder analyzed the various life care plans prepared by Samenga in this case to develop the costs of infant claimant's future care (i.e., future damages) by looking at each of the services or products (e.g., medical services, medications, medical equipment, etc.) that Samenga had identified as required by infant claimant over the course of his lifetime; fitting these services or products into categories for which there is published data as to how costs change over time; and then projecting the cost of each service or product independently over infant claimant's life expectancy; i.e., until about two-thirds of the way through 2064, based on the United States Life Tables, 1998, published by the United States government, which indicated that on the date of infant claimant's accident, when he was 5.95 years old, he had a life expectancy of 69.15 years. That is, Dr. Freifelder took the initial-year (2001) cost for each service or product in Samenga's life care plan; selected the data category into which in his opinion each particular service or product best fit; increased the initial-year cost for each service or product by the selected data category's percentage growth factor for each of the years remaining in infant claimant's anticipated lifespan (apparently, 62.6863 years); and added all these numbers up. As he further explained, a life care planner
might put the cost of a dentist alongside the cost of a physician and . . . treat that as the same kind of cost. From my point of view those costs are different because the economic data that exists, which is the consumer price index, has sub-components which allows me to identify how the cost of dental services change relative to the cost of medical services. And so in order to be as accurate as possible, I want to associate the costs with categories for which there is data in order to project each cost independently. The best example in this particular case is that there are estimates for various types of medical equipments, medical supplies, other things. . . . [M]edical equipment and medical supplies to the life care planner are different. To me as an economist, they're the same because there is no data on medical equipment independent of medical supplies. So I have to break the data up and re-form it in a way that allows me to make the projections. Once I've done that, I then calculate a growth rate for each element of the life care plan and I project that cost over the plaintiff's remaining life expectancy.
Dr. Freifelder testified that in this instance he selected growth rates for the different services or products from among those for the various sub-categories of the Consumer Price Index for All Urban Consumers ("CPI-U"),[3]
as published in the Statistical Abstract for the United States,[4] with two exceptions:[5] he based the cost for therapeutic services on the employment cost index for professional, specialty and technical workers; and he estimated the future cost of transportation with reference to the Economic Report of the President (2001), "which has the same data as the Statistical Abstract, but it's one year more current."
The categories into which Dr. Freifelder grouped the services and products in Samenga's life care plan were medical services; therapy; medications; medical equipment and supplies; home care; transportation; and a one-time cost for home modifications: (1) in the category of medical services (e.g., the costs of treatment by physicians in the various specialties from which infant claimant requires treatment), he computed an annual growth factor of 4.63%, "which represents the average rate of growth in the cost of physicians' services over the decade ending 1999, so 1989 through 1999," based on the relevant index values in the CPI-U;[6]
(2) in the category of therapy (the cost of physical therapy), he used an annual growth factor of 4.62%, which he describes as the average annual growth over the past 20 years (1980-2000) in the wages and salaries of professional, specialty and technical workers; (3) in the category of medications (Ditropan, Bactrim and a stool softener [colace, as he recalled]), he computed an annual growth factor of 5.17%, which is "the average annual growth in the cost of prescription drugs for the decade . . . between 1989 and 1999 according to . . . that sub-component of the Consumer Price Index";[7] (4) in the category of medical equipment and supplies (e.g., catheters, crutches), he computed an annual growth factor of 4.43%, "which is the . . . ten-year period, 1989 through 1999, the average annual growth in non-prescription drugs/medical supply sub-component of the Consumer Price Index"; (5) in the category of home care costs (the cost of a home health aide), he used an annual growth factor of 3.82%, which he described as the average annual growth in the wages and salaries of workers in the private sector health care industry; and (6) in the category of transportation, he used an annual growth factor of 2.31%, which he described as the average annual change in the cost of new vehicles from 1980 to 2000. Finally, he added the cost for a one-time modification to the house in which infant claimant lives. Applying these growth factors to the 2001 figures set forth for each category in Samenga's most recent life care plan, Dr. Freifelder calculated future damages in the amount of $16,373,842.00. The summary of his analysis and background information comprise claimants' exh. 19.[8]
Dr. Freifelder also testified that before trial he had reviewed defendant's life care plan (defendant's exh. A), which he determined "contained exactly the same elements"[9]
as Samenga's most recent plan, but "the numbers . . . are different, and as a result of the numbers being different, each of the individual categories has a different value." By applying exactly the same methodology to defendant's life care plan as he had applied to project future damages in Samenga's life care plan, he arrived at a figure of $8,702,028.00 for future damages. The summary of this analysis and background information comprise claimants' exh. 20.
On cross-examination, Dr. Freifelder readily acknowledged that he "merely took [Samenga's life care plan] and played out the numbers." Thus, when given Samenga's initial life care plan, he calculated future damages in the amount of roughly $48 million; then, when given Samenga's November 2001 life care plan, he calculated future damages in the amount of roughly $24 million; and, finally, when given the life care plan about which Samenga testified at trial, he calculated future damages in the amount of roughly $16,373,842.00. He did not independently assess any of the medical information with which he was provided (e.g., Dr. Tan's reports [defendant's exhs. B, C and D], which belie any need for home care for 24 hours a day/seven days a week, a major element of Samenga's spring 2001 life care plan).

Dr. Freifelder likewise accepted the cost for transportation provided by Samenga, who did not subtract the base cost of a vehicle. He testified that "[i]t could be argued that it's more appropriate to extrapolate the incremental cost between the type of vehicle that [infant claimant] would [otherwise] purchase and the van," and agreed that this was probably the better way to arrive at an initial cost for this item of future damages.

Dr. Freifelder balked at using the per cent changes in all items of the CPI-U (either from December to December or from year to year) for the years 1995 through 1999 as the reference point for predicting future inflation rates, as suggested by defendant's counsel.[10]
He opined that it was "proper" to look at the "actual experience of the different elements of care over the relevant period of time," which he generally identified in his testimony as the components and expenditure categories in the Medical Care major item group of the CPI-U for the ten-year period from 1989 to 1999. More specifically, Dr. Freifelder testified that "one should not look at the last five years solely" and that these all-items indices "generally are not the sub-indices of the consumer expenditure which I relied on and which I believe are appropriate to rely on."
  1. Testimony of Sharon L. Reavis ("Reavis")
Reavis graduated from a hospital school of nursing, and also holds a bachelor's degree in health care management and a master's degree in rehabilitation counseling, a field in which she has completed post-graduate work. She is a registered nurse, a certified case manager and a registered provider of rehabilitation care; she is also certified as a rehabilitation counselor, which is a national board certification, and as a national counselor, which is a general counseling certification, and has worked as a rehabilitation counselor and case manager since 1978.

Reavis has also taught the medical component, which she identified as the core component, in graduate programs in rehabilitation counseling at the Medical College of Virginia and Virginia Commonwealth University. She teaches roughly two seminars annually in the area of case management and life care planning; specifically, she has most recently taught courses in cost research, traumatic brain injury and general life care planning. For the State of Virginia, Reavis developed a fee schedule for rehabilitative services, including medical treatment and cost of equipment (e.g., wheelchairs), for individuals who are the State's clients. For the federal government, she has developed life care plans in instances where they are required (e.g., for vaccine-related cases).

Reavis defined rehabilitation counseling as "working with individuals who have disabilities and developing long-term treatment plans for those individuals to allow them to reach their highest functional capacity"; or "[i]n short . . . coordinating services and working with individuals who have disabilities." According to Reavis, a case manager "basically does the same thing as a rehabilitation counselor"; specifically, a case manager
coordinates services for individuals and these individuals generally have long-term disabilities or chronic illnesses. The case manager may provide discharge planning from the hospital, set up home care, oversee home care, work within the treatment team to act as a liaison to coordinate services, provide long-term care planning, find services for the individual--be it rehabilitation services and/or equipment--oversee the care, make sure the person receives the care, review the bills, a little bit of everything.
Since January 1, 1989, Reavis has been employed as a case manager at Health Information Services, Inc. ("HIS"), located in Glen Allen, Virginia, a group of case managers, both medical and vocational, who work with individuals who have disabilities and their families to provide rehabilitation and case management services. While at HIS, she has worked with hundreds of individuals with spinal cord injuries comparable to infant claimant's.

Reavis defined a "life care plan" as "basically, a rehabilitation plan. ‘Life care plans,' that phrase was really coined when they were used in forensic practice, but it's basically the same rehabilitation plan that's been utilized by rehabilitation counselors for many, many years--back to the fifties." She described the methodology for devising a life care plan, including its associated costs, as requiring her "to review the medical records and determine the disability--the

disability . . . is the diagnoses--and to gather information regarding the particular individual
and . . . particular handicaps from that disability and/or other secondary complications; to establish what the care needs are and then to research the cost of care in that geographic area, if the geographic area can be identified." Reavis has prepared many life care plans since 1978 and the early 1980's when the cost of care "began to be a problem . . . and became much more important."
Following the methodology that she described, Reavis first reviewed the records of infant claimant's initial hospitalization and follow-up treatment; the records of the various physicians who treated him (his urologist, his general practice physician, his rehabilitative medicine physician, his orthopedist); and the records from his subsequent hospitalization and surgical procedure (the contractual release); i.e, all the records related to "the medical services that have been provided to him or for him since the time of his injury," as well as the bill of particulars.

She then interviewed infant claimant briefly, but spoke mostly with his parents by conference call to ascertain "additional information for specifics of activities of daily living and that type of thing"; specifically, the purpose of an interview is to elicit "those details that aren't always available within the medical record . . . there's always some updating regarding some changes in treatment or just to specify for sure if the doctors [who] are following that individual continue to be the same doctors." Reavis added that the information sought in the interview varies depending on the particular case, but that she conducts a structured interview.

Reavis described the basic kinds of information that she seeks in her structured interview as "information about the family situation; particularly with a child, school attendance, does the child have an individualized educational plan or a 504 plan; what the particular protocol is for any medication administration, in this case such things as his bladder and bowel program; the equipment that he utilizes, problems he may have had with equipment; basically the total medical treatment program." She characterized infant claimant's parents as "very helpful" in her telephone conference call interview with them.

Because the cost of medical care varies geographically, Reavis next "looked at providers in the specific geographic area, and researched by developing direct information from them, the cost of care, and then do some comparisons." In addition, she also has "a significant [proprietary] database that [she] can use for geographic areas by area code that [she] can go back and compare with as well," such as Long Island and the metropolitan area of New York, the relevant geographic area here.

The life care plan that Reavis developed for infant claimant as a result of this methodology is set forth in a report (defendant's exh. A), which includes a narrative background and a series of charts. The charts specify by category the items of service delivery or equipment required by infant claimant as a result of his injuries, the unit cost of each item and the frequency with which and period over which each unit cost is incurred.

Under the category of "complications," Reavis explained that an individual who has experienced a spinal cord injury is inherently at risk for certain complications, which may require in-patient hospitalization over the course of a lifetime. In this case, Reavis testified that she was able "to assign a figure to a hospitalization, [but] what would be speculative would be to determine how many" hospitalizations infant claimant "would have over his lifetime." Specifically, "he is at risk for orthopedic complications. He has had one surgery and there may be more of those in the future. He's at risk for urological complications and there may be hospitalizations associated with that, but to say that there are going to be so many per year would be speculating." Accordingly, Reavis "researched the cost of a medical hospitalization" in the Long Island area, which she determined to be $8,680.00.[11]
She emphasized, however, that she could not project from infant claimant's medical records how many, if any, such hospitalizations might become necessary; therefore, she assigned a cost of $0.00 to this category.
Under the next category, "drugs and supplies," Reavis listed eight products, their purpose, a specific supplier (either national or local), the period and frequency of their use and a unit cost. Those costs include the cost for one straight catheter per month: according to claimants, infant claimant washes his catheter; i.e., he uses a clean catheter program/intermittent catheterization and so washes the catheter after use and replaces it once a month. With respect to the briefs or diapers, Reavis included a cost for periodic replacement, recognizing, however, that an appropriate bowel training program should eliminate this cost.

Under the category of "educational services," Reavis provided a cost of $0.00 because of infant claimant's eligibility under a federal program for special education, which "means that if [he] require[s] any assistance in school to allow [him] to attend school and function appropriately, then the school is mandated to provide that assistance." She noted that infant claimant had been "operating under an individual educational plan" or "IEP," but in the current school year was "operating under a 504 plan, which is just a different degree of that, so that if services are required for him in school, they would be provided." When asked if such educational services might encompass physical therapy, she replied that it could since "the plan is put together by the parents and the teachers and the therapists, etc. and they can provide anything from nursing care and physical and occupational therapy to having a child closer in the classroom, any type of accommodation."

Under the category of "wheelchair," Reavis assumed that infant claimant would need a new chair once every five years. She assigned a unit cost for a titanium manual wheelchair ($2,495.00) that "works very well for a lot of situations [and is] probably the most universally accepted chair by most of the patients." She added that "it's a little bit more expensive than the typical wheelchair, but it works extremely well and the titanium makes it lightweight, which is a big issue. And secondly, [infant claimant's] parents indicated that he was interested and did participate in wheelchair sports, and this is an easier chair to use for that as well." In other words, she selected a chair that was compatible with the level of infant claimant's activities. Under this category, Reavis also specified a frequency and unit cost for maintenance ($250.00 yearly minus 11 replacements) and cushion replacement ($400.00 every three years).

The category of "home accessories and equipment," includes "assisted aids within the household, some [infant claimant] uses now, some he doesn't, but [he] may want to use [them] in the future." These include a transfer bench to provide shower access ($139.95, replaced once every five years); crutches, which he currently uses because he ambulates with long-leg braces ($89.95, replaced once every five years); reachers, which "sometimes the teenagers don't bother with [but] when they get older they do think they're important" ($13.95, replaced once every five years); and a hand-held shower, which infant claimant would use when he sits in the shower to bathe himself ($41.95, replaced once every ten years).

The category of "home services" encompasses both respite care until infant claimant reaches age 16, and household services to allow him to live independently once he reaches the age of 18. When asked to define "respite care," Reavis explained that infant claimant's parents "provide his supervision now or assist him with access in the community, and there can be situations where it's not convenient for them to provide that and therefore respite care can be brought into the home to give them some additional flexibility." She noted that infant claimant was independent in his personal care and "does a great job, and of course as he gets older he'll be more independent, but there's a few things that need some consideration such as queuing for his intermittent cath[eterization]s, that type of thing." When asked if she had inquired whether claimants were using any kind of in-house assistance or care, she replied "No, I don't believe they have used any." Nonetheless, Reavis included respite care (alternative assistance/12 hours per week, which amounts to $9,360.00 annually until infant claimant reaches 16 years of age) in this category as part of her overall plan of reasonable services, given infant claimant's disability. She also included $9,360.00 annually for "homemaker services" (independent/household/

adult/12 hours per week/age 18 to life expectancy), assuming that infant claimant wants to be independent at age 18, whether or not he goes to college. Finally, she included $3,120.00 yearly for "housecleaning service" (independent/household/adult/periodic/age 18 to life expectancy) to allow infant claimant to maintain an independent household as an adult.
Under the category of "medical routine," Reavis included the costs for the medical follow-up that infant claimant will require throughout his life; therefore, she looked at the costs for his current "treatment team" as well as the costs for physicians in the relevant specialties (urology; physical medicine and rehabilitation; orthopedist) from whom he will need treatment as an adult. Under the related category of "medical services," Reavis included the costs for medical surveillance that infant claimant will require (i.e., renal ultrasound; cystometrogram and scoliosis study). The costs for physicians totaled $575.00 annually until age 18, and $265.00 annually thereafter; the costs for medical monitoring until age 18 totaled $2,340.00 plus $936.00 for three cystometrograms; and from thereafter, $250.00 annually plus $1,925.00 for five cystometrograms.

Reavis provided $19,997.50 under the category of "home modifications." She noted that "it is very hard to project home modifications for someone who doesn't have a permanent home yet [so she] tried to use a general idea of what any home with accessibility features would require," which includes ramping for safety and kitchen and bathroom modifications.

Reavis described the category of "orthotics/prosthetics" as "basically bracing"; i.e., infant claimant wears a knee/ankle/foot orthosis on one leg and a hip/knee/ankle/foot orthosis on the other leg. She assigned a cost to these appliances of $1,655.57 annually for the former until age 18, and $2,657.68 for the latter until age 18, which accommodates for growth as well as activity; and $1,655.57 every three years for the former and $2,657.68 every three years for the latter as an adult. Reavis based her three-year estimate for the frequency of replacement on her experience with the hundreds of patients with whom she has dealt.

Next, Reavis testified that infant claimant is "very fortunate that he is able to brace-walk because that's excellent upright therapy for him . . . physiologically and etc., but there are a lot of recreational activities that are . . . prohibitive to him, and an excellent means for him to stay conditioned and socialized and be involved with good exercise would be a swimming program," which he enjoys. She noted that she chose the YMCA under the category of "therapies" because the YMCA nationwide has the "appropriate, accessible pools, and they're well-heated, which is great for muscles." Accordingly, she indicated a youth and then an adult membership for infant claimant in the YMCA, for which she assigned costs (youth membership/student membership, totaling $1,275.00; adult joining fee of $45.00 plus a yearly membership fee of $290.00).

Under this category, Reavis also assigned a cost of $2,976.00 for intermittent physical therapy (12 sessions every two years for the remainder of infant claimant's life). Reavis noted that infant claimant was apparently not currently participating in physical therapy in school and that she had not seen an order for it in his medical record.

Next, she included physical therapy as directed by IEP or 504 at $0.00; and family/individual counseling until age 18 (six times at a unit cost of $1,200.00). With respect to the latter, Reavis noted that infant claimant "seem[ed] to be making a great adjustment, but things can happen periodically, for instance leaving home or other particular issues that may require some intermittent counseling, adjustment issues. It's hard to tell when, but over [a] lifetime [he's] likely to need it at some point"; however, she noted that she was unaware that infant claimant or his family were currently receiving any counseling.

Finally, under the category of "transportation requirements," Reavis included $15,950.00 for a one-time conversion to retrofit a van for a wheelchair lift. She testified that once infant claimant is able to drive, he would probably require hand controls as well, and so she included a cost of $17,895.00 (every six years) for this modification to a van plus maintenance fees of $150.00 (annually, minus nine modifications).

The table in the last two pages of Reavis's report, entitled "Cost Summary," sets forth the cost for each category of products and services (each unit cost in a category multiplied by the number of times incurred and then all these figures summed) and a lifetime total cost of $1,419,004.50 in 2001 dollars (the sum of the costs from all of the categories). Reavis did not attempt to project 2001 costs into the future.[12]
  1. Findings and Awards
  1. Past damages
  1. Claimant mother's past damages
Claimant mother seeks as damages (1) $309,875.00, which is $125.00 per catheterization (or $375.00 [$125.00 × 3] per day for each school day and $500.00 [$125.00 × 4] per day for each non-school day) for the time period from January 25, 1999 through calendar year 2000; (2) reimbursement of the fifteen-dollar co-payment that she made for the physical therapy treatments that infant claimant received roughly three times a week for two to three years; and (3) loss of income and benefits in the amount of $147,816.56.
Claimant mother is entitled to recover the reasonable value of the nursing services that she necessarily furnished to infant claimant (
King v State of New York, 56 AD2d 964; PJI: 2:318.1), and this would certainly include the catheterizations that she performed daily until infant claimant reached an age where he was able to self-catheterize; however, the record is bereft of credible evidence to support an award of $309,875.00 as the reasonable and customary value of these services. Dr. Steckler testified that catheterization is "done by the patient or a caretaker" (emphasis added) and that "[a] sterile technique is not necessary." Yet Samenga equated the reasonable value of claimant mother's catheterization services to the cost of having a registered nurse make a home visit, which he estimated (without giving any specific basis for his estimate) as $125.00/catheterization or $125.00 for each of three or four daily visits. In short, although claimant mother happens to be a registered nurse (who testified, by the way, to a salary of $23.56/hour as a full-time nursing supervisor in 1995), the record does not suggest that someone with a registered nurse's training and skill was required to catheterize infant claimant and thus does not support the measure of damages proffered by Samenga to compensate claimant mother for providing this care to her son.
There was, however, evidence that the salary of a home health aide was $15.00/hour in 2001 dollars: Samenga testified to this hourly wage and Reavis's report supplies a yearly cost in 2001 dollars of $9,360.00 for twelve hours a week of respite care (i.e., 12 hours/week × 52 weeks/year = 624 and $9,360.00 ÷ 624 = $15.00/hour). Assuming that this hourly wage was somewhat less in 1999 and 2000 (say $14.25 in 1999 and $14.65 in 2000, which assumes approximately a 3% inflation rate) and (as claimants proposed) that claimant mother performed catheterization services during 154 school days and 186 non-school days in 1999 and 191 school days and 175 non-school days in 2000, the reasonable value of providing this care amounts to $35,835.00 (rounded), which the Court therefore awards her.

Next, the Court credits claimant mother's testimony that she took infant claimant to physical therapy sessions roughly three times a week for approximately two or three years, making a co-payment of $15.00 per visit. Accordingly, the Court awards claimant mother past medical expenses in the amount of $5,850.00 ($15.00/visit × 3 visits/week for 2½ years = $5,850.00).

The Court also awards claimant mother $14,695.00 (rounded), which represents her out-of-pocket expenses to purchase health insurance coverage for infant claimant from December 1995 until October 2000 (
see, claimants' exh. 16) when her husband obtained full-time employment and health insurance benefits through his employer. Finally, although claimant mother testified that she lost earnings because she worked part-time or otherwise took leave solely to care for infant claimant, any such lost earnings are not recoverable (Barnes v Keene, 132 NY 13; Syczhk v Szczerbaniewicz, 233 App Div 342).
  1. Claimant father's past damages
The Court credits claimant father's testimony, substantiated by various receipts (claimants' exhs. 17, 21, 22, 23, 24 and 25), that he incurred expenses in the amount of $20,948.00 to modify the family home to accommodate infant claimant's injuries, and therefore awards him damages in this amount.
  1. Future damages
Infant claimant suffered a spinal cord injury on July 15, 1995 as a consequence of which he will require lifelong medical surveillance and prophylactic care for the management of his condition and the prevention of complications, as well as equipment and services and accommodations to allow him to live an independent and productive life. Both parties have prepared and presented life care plans to detail the level of the medical and other care or products or equipment required by infant claimant over the course of his life expectancy, and the Court finds that the life care plan prepared and presented by Reavis is far more credible than the life care plan prepared and presented by Samenga.
Reavis is a health care professional with extensive experience in rehabilitation counseling, case management and life care planning, who has worked with hundreds of individuals with spinal cord injuries comparable to infant claimant's. The Court was impressed by the degree to which the life care plan that she developed for infant claimant was tailored to his specific needs and exhibited attention to detail. For example, Reavis was familiar enough with infant claimant's medical history and knowledgeable enough generally to include costs in the life care plan for future medical testing (i.e., renal ultrasound; cystometrogram and a scoliosis study) specific to his condition. Similarly, she was astute enough to learn from infant claimant or his family about his love for swimming, which claimant father described as his son's "number-one sport," and so included the cost of lifetime membership in the YMCA as an element of a reasonable conditioning program for him. She, in fact, included in the life care plan any number of products or services not considered by Samenga. Moreover, she substantiated her 2001 costs by identifying a specific provider (local to Long Island or the metropolitan area of New York) or supplier (local or national) for each service or product in the life care plan.

By contrast, Samenga, who is not a health care professional, presented a life care plan at trial (his third effort) that exhibited scant awareness of infant claimant's actual medical condition or situation. As defendant's counsel pointed out, Samenga's initial life care plan provided for home health aides or in-home assistance for infant claimant for 24 hours a day/seven days a week although nothing in the medical record (to which Samenga admittedly had access) remotely suggests that infant claimant's degree of disability ever warranted this level of care. Dr. Steckler prescribed a clean catheter/intermittent catheterization (i.e., not a sterile technique) program for infant claimant and Reavis learned from her interview that infant replaced his catheter once per month. By contrast, Samenga seems to have assumed that infant claimant used a fresh catheter for each catheterization. In addition, Samenga provided no back-up references, relying instead on his "working knowledge of the region and representing . . . particular health care providers."

In his final version of a life care plan for infant claimant, Samenga established the level of therapy and home care by reference to the testimony of Dr. Tan. Specifically, Dr. Tan testified that she "would recommend" that infant claimant receive supervised physical therapy two times a week, "ideally" for the remainder of his life; and that he required and would continue to require home care for assistance with activities of daily living for five hours each weekday and eight hours each weekend for the remainder of his life. Samenga placed the cost of a visit to a licensed physical therapist in 2001 dollars at $125.00/visit and estimated an annual cost in 2001 dollars of $32,000.000 for 41 hours a week of home care. From these 2001 costs, Dr. Freifelder calculated $4,699,579.00 as the full amount of future damages for therapy, and $8,246,977.00 as the full amount of future damages for home care.

Reavis, by contrast, provided for intermittent physical therapy (12 sessions every two years for the remainder of infant claimant's life); and lifetime membership in the YMCA, as discussed earlier, in view of infant claimant's enjoyment of swimming and the "excellent means [thus provided] for him to stay conditioned and socialized and be involved with good exercise." As for home care, she provided for 12 hours a week of alternative assistance for life (with a one-year gap) and for a housecleaning service from age 18 to life expectancy.

In other words, both Dr. Tan and Reavis agree that infant claimant will benefit from supervised physical therapy and will always need some assistance in the home. The Court must decide what infant claimant reasonably requires or what reasonably compensates his loss in this regard, and here the Court finds that Reavis's testimony is more convincing than Dr. Tan's.

First, the Court notes that Dr. Tan talked in terms of what she would ideally recommend for infant claimant in the way of physical therapy. As a matter of fact, though, neither she nor any other physician had prescribed physical therapy for him at the time of the trial in December 2001 (or, apparently, since shortly after his surgery for a hip contracture in January 1999); Dr. Labiak testified that he did not know if infant claimant was receiving physical therapy at the time of trial (as just indicated, he was not), but that he would need physical therapy in the future "periodically." Although claimant mother testified that she exhausted her health insurance coverage for this benefit during the two- to three-year period after the accident when infant claimant underwent intense physical therapy, since October 1, 2000 infant claimant has been covered under another health insurance policy and there is no indication in the record that any physician has failed to prescribe or that infant claimant has gone without necessary physical therapy because of any problem with health insurance coverage. In fact, claimant mother further testified that the family had discontinued her son's physical therapy in school in June 2001 because he had met the goals of the program, and that she "left it open at the latest meeting at the school that if [she] felt that [infant claimant] had lost any functions, any of his strength, we left it open with the special education department that we would start physical therapy again." As Reavis pointed out, infant claimant is entitled to receive physical therapy in school at no cost under the terms of a federal program. As was also apparent from the testimony, infant claimant is quite active in sports, including swimming and wrestling (
see also, defendant's exh. C).
Next, Dr. Tan has never prescribed any home care for infant claimant. Quite to the contrary, she has consistently recognized that he is "quite independent in his ambulation" (defendant's exh. D) and "ambulatory independently with his braces" (defendant's exh. C) and "independent in his activities of daily living including dressing, bathing and hygiene, feeding, writing, computer usage as well as leisure activities" (defendant's exh. B). Moreover, "[h]e needs a little reminding to do his skin check, but otherwise he is independent in his ADLs" and maintains a "very active lifestyle" (defendant's exh. C). These comments strike the Court as inconsistent with the need for a lifetime regimen of home care for 41 hours each week and, indeed, from his and his parents' description of his daily routine, infant claimant did not require this level of care even as a 12-year old.

Next, the Court must determine a reasonable inflation rate to apply to determine the full amount of future damages, an issue on which the State chose not to present any expert testimony. Claimants' expert, Dr. Freifelder, who holds an undergraduate degree with a major in actuarial science and a masters and Ph.D. in operations research, offered his opinion, but the Court considers his testimony problematic in several respects.

First, Dr. Freifelder's testimony was marred by minor errors and inconsistencies (
see, n 4, 5 and 7, supra ). He provided his calculations and a back-up sheet to support the calculations of future damages that he made using Samenga's and Reavis's 2001 costs as the starting point (claimants' exhs. 19 and 20 respectively), but the back-up sheets (claimants' exhs. 19-000009 and 20, p 9, which are actually quite difficult to read because of the small size of the print) do not readily illustrate how Dr. Freifelder derived the various inflation rates that he proposed for the different categories of costs. Nor did he ever explain why he considered the ten-year period from 1989 to 1999 as the "relevant period of time" on which to base his inflation forecasts for the costs of goods and services within the components and expenditure categories in the Medical care major item group of the CPI-U. Likewise, Dr. Freifelder did not explain why he looked to data over longer time periods to predict inflation rates for other kinds of goods or services. Several such ambiguities and inconsistencies are on display in claimants' exh. 20.
In this exhibit, Dr. Freifelder purported to show how he arrived at a figure of $8,702,028.00 for future damages by applying the same methodology and percentages to project future damages based on defendant's life care plan as he had applied to project future damages based on Samenga's life care plan. The Summary Table (claimants' exh. 20), shows that Dr. Freifelder attributed $5,614,600.00 of these future damages to the category of home care, a category in which Reavis provided for respite care (alternative assistance/12 hours per week, which amounts to $9,360.00 annually until infant claimant reaches age 16), homemaker services (independent household/adult/12 hours per week, which amounts to $9,360.00 annually from age 18 to infant claimant's life expectancy) and a housecleaning service such as The Merry Maids at a cost of $3,120.00 annually from age 18 to infant claimant's life expectancy. But the 2001 dollar cost that Dr. Freifelder used was $18,720.00, or
double the 2001 cost for respite care, in fact, provided by Reavis ($9,360.00), and he provided no explanation for this significant change.[13] Moreover, he inflated both this cost and the cost of the housecleaning service at a rate of 3.82%, which he described as a rate reflecting the average annual growth in the wages and salaries of workers in the private sector health care industry.[14] In other words, although Dr. Freifelder promoted his proposed inflation rates figured to the hundredth of the percentage point as particularly proper or appropriate because fashioned from historical data more specific to a particular product or service, in this case he used historical wage and salary data for workers in the private sector health care industry to predict the future costs of housecleaning.
Notwithstanding these criticisms, the Court agrees with Dr. Freifelder that historical data from the CPI-U provide a (if not the only) rational point of departure for the prediction of future inflation. Nor are Dr. Freifelder's proposed inflation rates wildly out of line with those applied in other claims to determine the full amount of future damages. Moreover, as noted previously, the State simply did not provide any expert testimony on this issue. The Court therefore finds that 5 per cent is a reasonable inflation rate to apply to those costs in defendant's life care plan encompassed within the Medical care major item group of the CPI-U; and that 3 per cent is a reasonable inflation rate to apply to all other costs. The Court notes that 5 per cent is the average (rounded) of the inflation rates suggested by Dr. Freifelder for medical services (4.63%), therapy (4.62%),[15]
medications (5.17%) and medical equipment and supplies (4.43%); that 3 per cent is the average (rounded) of the inflation rates suggested by Dr. Freifelder for home care (3.82%) and transportation (2.31%); and that, in addition, 3 per cent is the average (rounded) and 3.0% is the median value of the year-to-year percent changes in the all-items CPI-U index for the years 1989 through 1999.
Finally, the Court finds that infant claimant's life expectancy is properly measured by reference to the life expectancy table in the Pattern Jury Instructions (1B NY PJI3d 1462 [2002]), which is 62.3 years for a male reaching the age interval of 12-13 in 2002.[16]
Given this life expectancy and inflation rates of 3 per cent and 5 per cent, the Court has computed future damages for each product or service comprehended in defendant's life care plan by category, as explained below.
  1. Drugs and Supplies
The Court awards infant claimant future damages for drugs and supplies in the amount of $824,204.00. This number is computed as follows: $815,752.00 (rounded) (the 2001 yearly costs provided by Reavis for a straight catheter, gloves, KY jelly, Ditropan, Bactrim and Peri-Colace [$1,952.27] × 1.05 = $2,049.89 compounded by 5% for 62.3 years = $815,752.00 [rounded] [the sum of the values for years 1 through 62.3]) plus $8,452.00 (rounded) (the 2001 yearly cost provided by Reavis for Depends-briefs [$730.00] × 1.05 = $766.50 compounded by 5% for 9 years (because infant claimant reaches the age interval of 20 to 21 in year 9) = $8,452.00 [rounded] [the sum of the values for years 1 through 9]) equals $824,204.
00. The Court determined the costs of Depends-briefs for a nine-year period in light of Dr. Steckler's testimony that assisted bowel control, which would eliminate infant claimant's dependence on diapers, was a "realistic goal" and achievable for him, with some further experimentation or "mixing and matching and playing with" various combinations of such things as fiber, laxatives, suppositories, enemas and dietary manipulation.
  1. Wheelchair
This category of future damages is comprised of the costs of (1) a wheelchair (replaced every five years); (2) wheelchair maintenance (yearly except in those years when the wheelchair is replaced); and (3) a wheelchair cushion (replaced every three years). The Court therefore (1) took the 2001 cost provided by Reavis for a wheelchair ($2,495.00) × 1.05 = $2,619.75, compounded this number by 5% for 62.3 years and summed the values for years 1, 6, 11, 16, 21, 26, 31, 36, 41, 46, 51, 56 and 61 = $216,572.00 (rounded) (dividing the first-year cost by five and compounding by 5% for 62.3 years yields a roughly equivalent value of $208,505.00 [rounded] as the sum of the values for years 1 through 62.3); (2) took the 2001 cost provided by Reavis for wheelchair maintenance ($250.00) × 1.05 = $262.50 compounded by 5% for 62.3 years = $104,462.00 (rounded) (the sum of the values for years 1 through 62.3) and subtracted $21,701.00 (rounded) (the sum of the values for years 1, 6, 11, 16, 21, 26, 31, 36, 41, 46, 51, 56 and 61; i.e., every year in which it is assumed that a wheelchair is new) = $82,762.00 (rounded); and (3) took the 2001 cost provided by Reavis for a wheelchair cushion ($400.00) × 1.05 = $420.00 ÷ 3 (to reflect replacement every three years) = $140.00 compounded by 5% for 62.3 years = $55,713.00 (rounded) (the sum of the values for years 1 through 62.3). Thus, $216,572.00 (rounded) plus $82,762.00 (rounded) plus $55,713.00 (rounded) equals $355,047.00, which the Court awards infant claimant as future damages.
  1. Home Accessories and Equipment
The Court awards infant claimant future damages for home accessories and equipment in the amount of $22,134.00. This number is computed as follows: $20,379.00 (rounded) (the 2001 costs provided by Reavis for a tub transfer bench, Loftstrand crutches and reachers [$243.85] ×1.05 = $256.04 ÷ 5 [to reflect replacement every 5 years] = $51.21 compounded by 5% for 62.3 years = $20,379.00 [rounded] [the sum of the values for years 1 through 62.3]) plus $1,755.00 (rounded) (the 2001 cost provided by Reavis for a hand held shower [$41.95] × 1.05 = $44.05 ÷ 10 [to reflect replacement every 10 years] = $4.41 compounded by 5% for 62.3 years = $1,755.00 [rounded] [the sum of the values for years 1 through 62.3]) equals $22,134.00.
  1. Home Services
The Court awards infant claimant future damages for home services in the amount of $2,252,760.00. This number is computed as follows: $1,705,160.00 (rounded) (the 2001 yearly costs provided by Reavis for respite care/homemaker services [$9,360.00] × 1.03 = $9,640.80 compounded by 3% for 62.3 years = $1,705,160.00 [rounded] [the sum of the values for years 1 through 62.3]) plus $547,600.00 (rounded) (the 2001 yearly costs provided by Reavis for a housecleaning service [$3,120] × 1.03 = $3,213.60 compounded by 3% for 62.3 years minus the sum of the values for years 1 through 6 [$20,786.89] [because this cost begins when infant claimant reaches the age interval of 18 to 19 in year 7] = $547,600.00 [rounded] [the sum of the values for years 7 through 62.3]) equals $2,252,760.00. Defendant's life care plan provides for respite care for infant claimant through age 16, and for homemaker services beginning at age 18 and continuing through life expectancy. The Court has eliminated the resulting one-year gap, which was unexplained in the record.
  1. Medical Routine
The Court awards infant claimant future damages in the amount of $112,943.00 for his prospective medical routine. This number is computed as follows: $39,695.00 (rounded) (the 2001 cost provided by Reavis for an orthopedist [$95.00 once a year] × 1.05 = $99.75 compounded by 5 % for 62.3 years = $39,695.00 [rounded] [the sum of the values for years 1 through 62.3]) plus $1,143.00 (rounded) (the 2001 cost provided by Reavis for a pediatric and physical medicine specialist [$80.00 for each of two visits a year = $160.00 yearly] × 1.05 = $168.00 compounded by 5% for 6 years = $1,143.00 [rounded] [the sum of the values for years 1 through 6; i.e., until infant claimant reaches the age interval of 18 to 19 in year 7]) plus $2,285.00 (rounded) (the 2001 cost provided by Reavis for a pediatric urologist [$160.00 for each of two visits a year = $320.00 yearly] × 1.05 = $336.00 compounded by 5% for 6 years = $2,285.00 [rounded] [the sum of the values for years 1 through 6; i.e., until infant claimant reaches the age interval of 18 to 19 in year 7]) plus $32,857.00 (rounded) (the 2001 cost provided by Reavis for an adult urologist [$80.00 once a year] × 1.05 = $84.00 compounded by 5% for 62.3 years = $32,857.00 [rounded] [the sum of the values for years 7 through 62.3]) plus $36,963.00 (rounded) (the 2001 cost provided by Reavis for an adult physical medicine and rehabilitation specialist [$90.00 once a year] × 1.05 = $94.50 compounded by 5% for 62.3 years = $36,963.00 [rounded] [the sum of the values for years 7 through 62.3]) equals $112,943.00.
  1. Medical Services
The Court awards infant claimant future damages in the amount of $116,544 for medical services. The Court computed this number as follows: $104,462.00 (rounded) (the 2001 cost provided by Reavis for a renal ultrasound [$250.00 once a year] × 1.05 = $262.50 compounded by 5% for 62.3 years = $104,462 [rounded] [the sum of the values for years 1 through 62.3]) plus $1,141.00 (rounded) (the 2001 cost provided by Reavis for a pediatric cystometrogram [$312.00, three times through age 18] × 1.05 = $327.60 compounded by 5% for 6 years and the values for years 2, 4 and 6 summed = $1,141.00 [rounded]) plus $9,941.00 (rounded) (the 2001 cost provided by Reavis for an adult cystometrogram [$385.00, five times from age 18 to life expectancy] × 1.05 = $404.25 compounded by 5% for 62.3 years and the values for years 9, 19, 29, 39 and 49 summed = $9,941 [rounded]) plus $1,000.00 (rounded) (the 2001 cost provided by Reavis for a scoliosis study [$140.00, yearly until age 18] × 1.05 = $147.00 compounded by 5% for 6 years [because infant claimant reaches the age interval of 17 to 18 in year 6] = $1,000.00 [rounded] [the sum of the values for years 1 through 6]) equals $116,544.00.
  1. Home Modifications
The Court awards infant claimant future damages in the amount of $19,998.00 (rounded), representing the one-time cost estimated by Reavis for such features as ramping and bathroom and kitchen modifications.
  1. Orthotics/Prosthetics
The Court awards infant claimant future damages in the amount of $580,060.00. This category of future damages is comprised of the costs of a knee/ankle/foot orthosis and a hip/knee/ankle/foot orthosis, which are replaced yearly through age 18 and every three years thereafter to life expectancy. The Court therefore took the 2001 cost provided by Reavis for these orthoses ($4,313.25) × 1.05 = $4,528.91, compounded this number by 5% for 62.3 years and summed the values for years 1 through 6 (because infant claimant reaches the age interval of 17 to 18 in year 6) and for years 9, 12, 15, 18, 21, 24, 27, 30, 33, 36, 39, 42, 45, 48, 51, 54, 57 and 60, which equals $580,060.00 (rounded).
  1. Therapies
The Court awarded infant claimant future damages for therapies, which includes physical therapy treatments, in the amount of $681,866.00. This number is computed as follows: $51,540.00 (a one-time student membership fee for the YMCA [$225.00] + an adult joining fee [$45.00] + $51,245.00 [rounded] yearly fees [$290.00] × 1.03 = $298.70, compounded by 3% for 62.3 years and the values for years 6 through 62.3 summed = $51,540.00) plus $621,756.00 (rounded) (the 2001 cost provided by Reavis for 12 physical therapy sessions [$2,976.00] × 1.05 = $3,124.80 ÷ 2 [to reflect that this cost is incurred over a two-year period] = $1,562.40 compounded by 5 % for 62.3 years = $621,756.00 (rounded) [the sum of the values for years 1 through 62.3]) plus $8,570.00 (the 2001 cost provided by Reavis for family/individual counseling [$1,200] × 1.05 = $1,260.00 for six times only for years 1 through 6 [i.e., until infant claimant reaches the age interval of 18 to 19 in year 7] = $8,570.00) equals $681,866.00.
  1. Transportation Requirements
This category of future damages is comprised of the costs of (1) a one-time conversion to retrofit a van with a wheelchair lift; (2) hand controls once infant claimant is old enough to drive, which Reavis estimated would need to be replaced every six years; and (3) maintenance fees for the hand controls in those years when they are not new. The Court therefore awards infant claimant future damages in the amount of $546,729.00 to meet his transportation requirements, computed as follows: $16,429.00 (rounded) (the 2001 one-time cost provided by Reavis for a van conversion [$15,950.00] × 1.03 = $16,429.00 [rounded]) plus $507,707.00 (rounded) (the summed values for years 4, 10, 16, 22, 28, 34, 40, 46, 52 and 58, given the 2001 cost provided by Reavis for a van conversion for hand controls [$17,895.00] compounded by 3% for 62.3 years) plus $22,593.00 (rounded) (the 2001 cost provided by Reavis for maintenance of hand controls [$150.00] × 1.03 = $154.50 compounded by 3% for 62.3 years = $27,326.00 [rounded][the sum of the values for years 1 through 62.3]
$4,733.00 [rounded] [the sum of the values for years 1 through 4 and 10, 16, 22, 28, 34, 40, 46, 52 and 58]) equals $546,729.00.
  1. Pain and suffering
In fashioning compensation for infant claimant's injuries and long-term consequences, the Court recognizes that "personal injury awards, especially those for pain and suffering, are not subject to precise quantification" (Karney v Arnot-Ogden Mem. Hosp., 251 AD2d 780, 782, lv dismissed 92 NY2d 942; see, Kahl v MHZ Operating Corp., 270 AD2d 623). Although no two cases are alike, claimants point to the Third Department's decision in Auer v State of New York (289 AD2d 626) as the lodestar and seek $1 million for infant claimant's past pain and suffering and $7.5 million for his future pain and suffering.
Auer, the Third Department affirmed an award of $1.5 million for past pain and suffering and increased the award for future pain and suffering from $750,000 to $1.5 million. The claimant's physical injuries in that case were, however, catastrophic: claimant Melody Auer suffered severe contusion and bleeding of the brain, which caused quadriplegia and significant cognitive defects; two severely comminuted fractured legs, requiring surgery and the placement of permanent steel rods and screws; three fractured vertebrae in her lumbar spine; a fractured eye socket; spasticity and contractures in all four limbs, causing ongoing pain and restriction of motion; and emotional distress and depression (Auer v State of New York, Ct Cl, unpublished decision filed Dec. 30, 1999, King, J., Claim No. 86167, p 2). As a result of these injuries, she was on a mechanical ventilator for nine days, had a tracheostomy in place for 98 days, was on a feeding tube for seven months and was hospitalized for 344 days during which she underwent seven surgical procedures (id., pp 2-3). Her physical impairments included a lack of muscular control of the mouth and tongue muscles (id., p 9) and severely impaired speaking ability with marked spastic dysarthria and dysphonia of speech (id., p 33); the inability to ambulate, roll over on both sides or exercise independently (id., p 9); and severe and continual physical pain (id., pp 20, 25-26). Some of her mental processes were affected, yet she remained cognitively aware of her surroundings and able to interact with others (id., p 3). She will require 24-hour supervision and care to carry out any and all daily living activities for the remainder of her life, which was determined to be 38 years (id., pp 3, 11).
Infant claimant's physical injuries, although undeniably serious and life altering, are nonetheless (and obviously) markedly less severe than Melody Auer's, and, again unlike Melody Auer, his prospects for continuing to enjoy a well-rounded life with a high degree of independence and achievement are quite good. The Court therefore finds that $500,000.00 is reasonable compensation for infant claimant's past pain and suffering and that $1,000,000.00 is reasonable compensation for infant claimant's future pain and suffering.[17]
  1. Conclusion
In summary, the Court finds that claimants are entitled to the following damages, based on a fair preponderance of the credible evidence:

Claimant Mother
nursing care $35,835.00
co-payments $5,850.00
health insurance premiums $14,695.00
TOTAL $56,380.00

Claimant Father
home modifications $20,948.00

Infant Claimant
Past pain and suffering $500,000.00

Infant Claimant
Drugs and supplies $824,204.00
Wheelchair $355,047.00
Home accessories and equipment $22,134.00
Home services $2,252,760.00
Medical routine $112,943.00
Medical services $116,544.00
Home modifications $19,998.00
Orthotics/Prosthetics $580,060.00
Therapies $681,866.00
Transportation requirements $546,729.00

Future pain and suffering $1,000,000.00
  1. 6,512,285.00

Since the amount of future damages exceeds $250,000.00, a structured judgment is required (CPLR 5041 [e]). The Court therefore directs that judgment be held in abeyance pending a hearing pursuant to CPLR article 50-B. The Court encourages the parties to agree upon an attorneys' fee calculation and the discount rate to be applied and to formulate a structured settlement of their own (
see, CPLR 5041 [f]). In the event that this does not prove possible, each party shall submit a proposed judgment in writing conforming to the requirements of CPLR article 50-B within 120 days of service of this decision upon them by the Clerk of the Court. A hearing will thereafter be scheduled at the mutual convenience of the parties and the Court.

November 15, 2002
Albany, New York

Judge of the Court of Claims

Unless otherwise indicated, quotations are from the Court's trial notes or audiotapes of the trial on damages.
Sometimes the witnesses and counsel referred to this as Samenga's April 2001 life care plan; at other times they referred to it as Samenga's May 2001 life care plan.
Dr. Freifelder subsequently generally referred simply to the "Consumer Price Index" or the "CPI" in his testimony. The CPI reflects spending patterns for two population groups: All Urban Consumers, or the "CPI-U," which represents about 87% of the total population of the United States, and Urban Wage Earners and Clerical Workers, or the "CPI-W" (see, Frequently Asked Questions [last modified Aug. 7, 2002] <>). Dr. Freifelder clearly relied on index values from the CPI-U to calculate those growth factors that he derived from the Consumer Price Index ("CPI") (see, claimants' exh. 19-000009, claimants' exh. 20, p 9).
Dr. Freifelder identified the Statistical Abstract as a publication of the United States Department of Labor, Bureau of Labor Statistics. Actually, the United States Census Bureau publishes the Statistical Abstract annually, but the United States Department of Labor, Bureau of Labor Statistics, is the source for the tables or information in the Statistical Abstract related to the CPI.
As his testimony subsequently developed, he actually relied on non-CPI data in three instances, not two.
"Medical care" is one of the eight major item groups within the CPI, and consists of two components: "Medical care commodities" and "Medical care services." The former component, "Medical care commodities," is organized into two expenditure categories: "Prescription drugs" and "Nonprescription drugs, medical supplies." The latter component, "Medical care services," is organized into two expenditure categories: "Professional medical services" (which is further subdivided into "Physician's services," "Dental services" and "Eye care") and "Hospital and related services" (which includes a category for "Hospital rooms") (see, e.g., U.S. Census Bureau, Statistical Abstract of the United States: 2000, Table 770 [Consumer Price Indexes for All Urban Consumers (CPI-U) for Selected Items and Groups: 1980 to 1999]).
The Court notes that none of the testimony indicates that the stool softener used by infant claimant is a prescription drug. Indeed, colace appears to be an over-the-counter medication; i.e., a nonprescription drug. As noted at n 6, supra, "Prescription drugs" and "Nonprescription drugs, medical supplies" are separate expenditure categories within the component "Medical care commodities."
The precise figure for the total future care costs specified in the summary of Dr. Freifelder's analysis (claimants' exh. 19) is $16,378,342.00, which he was asked to reduce by $4,500.00 in light of testimony about the cost of home modifications.
In fact, defendant's plan included additional elements.
Defendant referred specifically to Table B-63 at p 347 of the Economic Report of the President, transmitted to the Congress in January 2001. The source of these data is the Bureau of Labor Statistics, and a table with year-to-year percentage changes for all items and by major groups is routinely published as part of the Statistical Abstract of the United States (see, e.g., Statistical Abstract of the United States: 1995, Table 761 [Consumer Price Indexes (CPI-U), by Major Groups: 1960-1994]; Statistical Abstract of the United States: 1999, Table 776 [Consumer Price Indexes (CPI-U), by Major Groups: 1980-1999]).
She assumed that a renal complication was the most likely cause of any such admission; therefore, this figure represents the cost associated with the average length of stay and treatment of a renal complication in a Long Island hospital.
Claimants' counsel was quite critical of this methodology, and Dr. Freifelder testified that it is "not uncommon . . . for life care planners . . . [to] take . . . . the care costs that they've identified and the costs that they've determined [are] appropriate and then . . . multiply . . . by the person's life expectancy and that produces a number. It's a number without any . . . inflationary growth added to it." As the Court understands it, this is an accepted methodology for determining a present value for future damages, based on an assumption that the inflation and discount rates are equal over time and so totally offset each other; however, the Court does not understand the State to dispute that the Court here must perform the two-step exercise of making a finding as to a future inflation rate and a finding as to a discount rate in the subsequent CPLR article 50-B proceeding.
Whatever the explanation, the effect, by the Court's calculation, is to increase this category of future damages by roughly $2.4 million.
Although the Court does not recall that Dr. Freifelder testified as to his reference period for these data, the back-up sheets suggest that he may have looked at data for the time period of 1985 to 2000 (see, claimants' exhs. 19-000009 and 20, p 9).
Price observations for physical therapists are encompassed within the Professional medical services expenditure category of the Medical care services component of the Medical care major item group (see, Measuring Price Change for Medical Care in the CPI [last modified Oct. 16, 2001] <>).
The Court notes that this life expectancy is virtually identical to the life expectancy used by Reavis (life expectancy through 2063) and Dr. Freifelder (life expectancy to roughly two-thirds of the way through 2064).
Both claimants' and defendant's life care plans attributed $0 for future hospitalizations for infant claimant. All the physicians and Reavis recognized that infant claimant was at risk for future complications requiring future hospitalizations, however, and Dr. Labiak considered scoliosis surgery a near certainty. The Court has taken the prospect of future hospitalizations into account in setting reasonable compensation for future pain and suffering.