New York State Court of Claims

New York State Court of Claims

TAMBE v. THE STATE OF NEW YORK, #2003-005-001, Claim No. 93276


Synopsis


Damages for spiral fracture of femur and insertion of intermedullary rod for 48 year old male.

Case Information

UID:
2003-005-001
Claimant(s):
IN THE MATTER OF THE CLAIM OF SAMUEL K. TAMBE
Claimant short name:
TAMBE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
93276
Motion number(s):

Cross-motion number(s):

Judge:
DONALD J. CORBETT, JR.
Claimant's attorney:
Fiandach & FiandachBy: Edward L. Fiandach, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Thomas G. Ramsay, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 3, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


After a bifurcated trial on the issue of liability in this claim, in a decision dated July 10, 2002, I held the State liable for Claimant's fall due to a defect in a sidewalk (a raised slab) at Groveland Correctional Facility (Groveland). I directed the entry of an interlocutory judgment and this decision follows the trial on damages.

Claimant was injured on October 22, 1995, at approximately 3:00 p.m. at Groveland when he fell down. He immediately felt pain in his right upper thigh and was taken to the Groveland infirmary, where, after a two hour wait, he was given medication for pain. Thereafter, he was taken by ambulance to the Noyes Memorial Hospital in Dansville, New York, for additional pain medication. His trip by ambulance continued and he was then transported to the Erie County Medical Center (ECMC) where he was admitted. He experienced severe pain and discomfort during this travel.

At ECMC, x-rays were taken and Claimant was diagnosed with a spiral fracture of the right proximal femur. Open reduction surgery was performed for internal fixation with a cerclage wire and an intramedullary nail or rod was inserted. The surgery was performed on October 23, 1995. The operative report[1]
explains the details of this procedure for the placement of an intramedullary nail with locking screws. Claimant was discharged from ECMC on October 30, 1995, and was returned to Groveland where he remained housed in the infirmary until the end of November. At trial, Claimant recounted his excruciating pain and physical limitations due to the injury. At first, he was unable to bend his knee, used crutches and also a wheelchair to move around, and finally used a cane. He received no physical therapy at Groveland.
In June of 1996, some seven months after the accident, Claimant was able to ambulate with partial weight bearing on his leg, although he was still suffering with pain and physical limitations.

Claimant testified credibly that he still suffers pain every day of his life and is unable to walk long distances, exercise or play golf, and still has difficulty bending his knee. He is unable to exercise at all. The intramedullary rod, which still remains in his leg, triggers metal detectors at airports and the like.

There is a permanent surgical scar of nine and one half inches which runs on his right leg from his hip downwards to his knee, with the retained fixation material. Claimant's right thigh and calf have atrophied and his right gluteus has mild atrophy. He suffers from the loss of bone density or osteoporosis. The pain that Claimant continues to have is also permanent, and he has a reduced capacity for strenuous use of the right lower limb.

The latest x-rays show the existence of the internal fixation materials and overall shows excellent healing of the femur bone. The x-ray report of Defendant's orthopaedic surgeon was received and considered for this decision.

Claimant was born on June 3, 1947, and at the date of this accident was 48 years of age. At the time of the conclusion of this trial on damages, Claimant was 55 years old, and has a life expectancy of 23.3 years.[2]
No evidence was presented, and no claim was made with respect to a loss of past or future earnings. Accordingly, the only damages which I will consider are those for pain, suffering and the enjoyment of life.
Considering the entire trial testimony and evidence presented concerning the injuries and enduring pain sustained by Claimant Samuel Tambe, I award the sum of $65,000.00 for his past pain and suffering from the day of the accident on October 22, 1995, until the date of the trial on damages, a period of some 7½ years, and for his future pain and suffering and the loss of enjoyment of life from the trial on damages for some 23.3 years thereafter, I award $115,000.00. In sum, therefore, Claimant is entitled to $180,000.00.

Claimant is entitled to appropriate interest from the date of my earlier decision on liability herein, July 10, 2002.

All motions not heretofore ruled upon, are now denied.

THE CLERK IS DIRECTED TO ENTER JUDGMENT ACCORDINGLY.


June 3, 2003
Rochester, New York

HON. DONALD J. CORBETT, JR.
Judge of the Court of Claims




[1]Exhibit D - 1.
[2]I have taken judicial notice of 1 NY PJI 3d, p 1494 (2003), Table 2, Life Table for Males.