New York State Court of Claims

New York State Court of Claims

SHOCKLEY-GOTTLIEB v. THE CITY UNIVERSITY OF NEW YORK, #2003-014-501, Claim No. 93456


Synopsis


Award of damages for pain and suffering and loss of consortium, as the result of injury to hand, wrist and arm.

Case Information

UID:
2003-014-501
Claimant(s):
MARY SHOCKLEY-GOTTLIEB and STEVEN GOTTLIEB
Claimant short name:
SHOCKLEY-GOTTLIEB
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
93456
Motion number(s):

Cross-motion number(s):

Judge:
S. Michael Nadel
Claimant's attorney:
Lonnie G. Tishman
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy Gail Pierce-Siponen, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 12, 2003
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
By decision filed on January 23, 2001, the defendant was found 75% liable for injuries the claimant Mary Shockley-Gottlieb sustained on March 22, 1995 when she fell on a walkway at the grounds of Queens College. This decision pertains to the issue of damages.

Mary Shockley-Gottlieb (hereinafter referred to as "claimant") testified that as she fell she extended her hands out in front of herself in order to break the fall. As her right hand made contact with the ground she heard a "pop." Once composed she made her way to the campus guardhouse at the front gate of the school where an ambulance was called. During this time she experienced throbbing in her shoulder and her asthmatic condition, which was triggered by the event, caused difficulties in breathing. She
was taken by ambulance to a hospital where X-rays were taken of the injured right wrist area, and she was informed that she had a fractured right wrist. Her arm was placed in a cast and she was prescribed a pain killer. Upon her release from the hospital, after about five hours, she was in "a lot of pain." The claimant testified that she was right hand dominant and that prior to this accident she had never injured her right hand or wrist.
She testified that during the next day the medication did nothing to alleviate her pain and that she needed assistance from her friends and family in order to perform some basic functions. Later that day she first went to see Dr. Lenzo, who took X-rays and fitted her wrist with a new cast. She described the pain she suffered for two months following the accident as "terrible." Her hand was continually swollen, and her skin turned green and began to peel. When the cast was removed after two or three months, the pain subsided but was still present. She then began a course of physical therapy where she would visit a therapist several times a week, each session lasting for one-half hour to 45 minutes, over a period of four to five months. In addition she performed therapy exercises at home several times a week.
The claimant testified that from the time the cast was removed two months later through December 1995, she was still in "a great deal of pain," and needed the assistance of family members and neighbors to dress, and clean the house. It was difficult for her to brush her teeth or brush her hair.
She underwent surgery in January 1996, in hopes of strengthening her hand and to alleviate some of the pain she was experiencing. She entered the hospital in the morning and left that evening. She received IV anesthesia prior to the operation. She stated that she was in pain following the surgery but that it was an improvement over what it had been prior to the surgery. She was unable to sleep for approximately one week after the surgery was performed. She continued to see Dr. Lenzo every several weeks. When the cast was removed from her arm she resumed the therapy regimen. She stated that as a result of the surgery she developed a scar which runs from her wrist to the index finger.

Throughout 1996 she experienced continued pain and numbness in the affected area. In December 1996, Dr. Lenzo performed another surgical operation, as
claimant explained, to determine if something was wrong with the "nerves that run up and down your arm that control the fingers and thumb . . . ." She entered the hospital as an ambulatory patient and was discharged later that same day. For one week following the procedure her arm was bandaged from just below her shoulder to below her wrist, after which time it was changed to a shorter bandage which remained on her arm for approximately six weeks. She resumed a course of therapy on a twice weekly basis. She testified that Dr. Lenzo informed her in April 1997 the damage was permanent and there was nothing else that could be done. Thereafter she had no follow-up orthopedic therapy or treatment of any kind. She did not see Dr. Lenzo again until over four years later.
Nearly seven years after the injury occurred,
Mary Shockley-Gottlieb testified that she was still experiencing pain, tingling and numbness in her right hand and arm and was unable to use them as she had prior to the fall. She has three scars on her right arm. The numbness in her right arm is intermittent but she has no feeling in the right thumb and index finger. As a result, she testified, she is unable to hold a pencil, open a jar or a can, type proficiently or utilize other skills she had developed when she was employed as secretary. She is unable to do things she used to do such as knit, play tennis, bowl, dance, or swim. Others, including her husband and her daughter, have taken over most of the household tasks that she had performed prior to the incident. At some time during 1996 she began to drive on her own but said she would not drive if the weather was inclement.
The claimant testified that relations with others, including her family, have suffered as a result of the injury. She has been unable to spend time with her active 15 year old grandson and is tentative about holding her infant grandson.
She stated that as a result of her injuries and the subsequent surgeries, the once active sex life she and her husband shared has been reduced to "practically nothing." She sought counseling which continued for a few months. She is not currently using any medications for depression or any other psychotropic medications.
Mary Shockley-Gottlieb summed up the effects the March 22, 1995 accident has had on her life as follows: "It has changed me . . . from one person that I was, active, outgoing, enjoying life, to a person that is very into herself, very nervous about everything . . . I don't have the same feelings inside."
Steven Gottlieb, who is also a claimant in this matter, has been married to
Mary Shockley-Gottlieb for 16 years. He testified that when he returned home from work on March 22, 1995, his wife was lying in bed in a great deal of pain, crying. He stated that his wife slept little that night and periodically moaned. The following day he accompanied his wife to Dr. Lenzo's office. She remained in bed for three or four days after the accident because of the pain, eating food only at his prodding. He testified that he had to learn how to carry out household tasks that his wife at first was no longer able to perform, and that he still does the majority of the cooking and helps with cleaning and laundry.
Mr. Gottlieb
testified that prior to March 22, 1995, he and his wife would engage in leisure and recreation activities such as bowling, swimming, miniature golf, walking, and dining with friends. Subsequent to the accident many of these activities have either ceased or have decreased in frequency. He described their current social life as "very bad," and their once "very good" sex life as "terrible." He stated that despite changes in their relationship since the accident they have not considered separation or divorce and they have not sought marriage counseling.
Robyn Shockley-Sutera, the claimant's daughter, testified that she lived with the claimant until early 1999.
She stated that after her mother's first surgery in January 1996 "everything changed." Her mother was not able to carry out her normal household routines, including: cleaning, cooking, sewing, and helping her type papers for school. She stated that she, her father and her brother helped her mother with these activities. After the second surgery in December 1996, her mother still was unable to fully dress herself and needed help with zippers and tying her shoes.
Dr. Salvatore Lenzo with use of his notes, which were entered into evidence as claimants' Exhibit 18,
testified on behalf of the claimants. He stated that on his initial examination of the claimant, she presented to him distal radius fracture in the right hand which caused swelling and decreased sensation in her fingers, difficulty making a fist, and subjective complaints of pain, which according to Dr. Lenzo, were consistent with the injury she suffered. Dr. Lenzo took X-rays which indicated to him that the fracture was in good alignment and that surgery would not be necessary. He did not observe any evidence of prior trauma of injury to the right arm, wrist, or hand. He testified that in his initial narrative of treatment he mistakenly recorded the claimant as left-hand dominant, but corrected the records when she brought the error to his attention over a year later.
Dr. Lenzo
testified that he examined the claimant on several follow-up visits. X-rays indicated that the radius fracture was in good alignment, however, she presented with residual stiffness in her right hand and numbness in the thumb. On May 5 ,1995, he removed her cast and applied a splint. The examination revealed that she had decreased sensation in areas on her hand, was unable to flex the thumb, and exhibited tenderness over the nerve in her upper forearm. An X-ray revealed callus formation and healing of the fracture. At this time he initiated a six week long course of occupational therapy, which included office visits and home exercises, in order to restore motion and build up strength in her wrist and hand. As of September 1995, his patient continued exhibiting nerve weakness and numbness which prompted him to recommend surgery as being the only way to alleviate the ongoing symptoms.
Dr. Lenzo performed the surgery on January 3, 1996. Two incisions, one in the palm of the hand and the other in the forearm near the elbow, were made so that a procedure could be performed to remove "pressure off the nerves." In a follow-up examination on January 16, 1996, he removed the surgical dressing. According to Dr. Lenzo, the claimant's flexation and numbness symptoms had improved, however there were some complaints of pain in the area where she had fractured her wrist which he treated by injecting cortisone in the tendon area. A therapy program was initiated. An examination on March 1, 1996, indicated that the claimant had improved, gaining a full range of motion and good sensation, but some tenderness still remained in her wrist joint which he treated with a cortisone injection. An X-ray taken at her next visit on May 31, 1996, indicated that the radius had healed with good alignment, but there were some advancing degenerative changes at the base of the thumb, which Dr. Lenzo testified were proximately related to the injury sustained on March 22, 1995. Several office visits later led him to perform a second surgical procedure on December 23, 1996, which involved an arthroscopy of the wrist, and excision of a bone and reconstruction of ligaments in the thumb.
Following the second operation
he examined the claimant on several occasions, and he gave her cortisone injections to alleviate continued pain in her thumb. On April 4, 1997, he examined her, at which time he observed that she was doing extremely well with regard to pinch strength, but still was experiencing residual tenderness within the wrist joint. On that day an appointment was scheduled for an examination in eight weeks but she did not return to see him until November 6, 2001, prior to the time of this trial. There is also no indication of her returning to occupational therapy after a March 24, 1997 visit (claimants' Exhibit 19, Occupational Therapy Progress Notes).
At the November 6, 2001 examination
he observed the following which he opined was caused by the injuries sustained March 22, 1995: 1) multiple surgical incisions were healed, but left visible scars; 2) she had "considerable weakness" in her right hand with a pinch strength of one pound as compared to what would be expected at eight pounds; 3) her grip strength was ten pounds as compared to what would be expected at fifty pounds; 4) she had decreased sensation in the median nerve distribution and weakness; 5) an X-ray revealed that the radius healed, and the removal of the arthritic bone and ligament reconstruction showed good results.
Dr. Lenzo was of the opinion that Mary Shockley-Gottlieb will never again have full functional use of her right hand and arm, and that the condition is permanent.
The defendant offered no evidence. It is the defendant's position that the evidence offered by the claimant does not support the extent and severity of the injuries she claims to have sustained.

Based upon the evidence presented at trial, the Court finds that the claimant Mary Shockley-Gottlieb suffered injuries to her arm, wrist, and hand causing pain and limitations which she has endured and will continue to endure for the remainder of her life. Before she was injured, the claimant cared for her home and family and engaged in an active social life. Since then, her ability to perform household tasks, socialize, and to maintain a complete relationship with her husband, all of which provided enjoyment, have been curtailed. At the same time, by her own testimony the claimant resumed driving her car in 1996, an activity which indicates that her condition does not render her without any use of her right hand, wrist, or arm. The unrebutted expert medical testimony that the claimant will never again have full functional use of her right hand and arm, and that the condition is permanent provides support for the claimant's otherwise self serving descriptions of the effect her injury has had, which, in any event, the Court found credible.
See, Prescott v LeBlanc, 247 AD2d 802 [a "determination not to accept expert testimony and opinion must be supported by other testimony or by the cross-examination of the expert (see, 3 Bender's New York Evidence §7.01[8], at 7-48)."]
The argument by the defendant that the claimant failed to mitigate her damages when she did not return to see Dr. Lenzo and did not continue therapy after April 1997, is unsupported by competent evidence. While the claimant clearly concedes that she stopped seeing Dr. Lenzo and that she did not continue therapy, her testimony that Dr. Lenzo told her at that time that the damage was permanent and that nothing more could be done stands unrebutted. The subject was not raised during Dr. Lenzo's cross examination. There is nothing in the record which supports an inference that had she continued to see him her condition would be any different than it is.

Based on the foregoing, the Court determines damages as follows: $100,000 for the past pain and suffering of Mary Shockley-Gottlieb; $125,000 for the future pain and suffering of Mary Shockley-Gottlieb[1]
; $25,000 for Steven Gottlieb's loss of consortium[2]. At trial, both sides stipulated that the amount of medical expenses to be included in the award is $26,831.25.
The total award is $276,831.25. In accordance with the Court's determination that the defendant was 75% liable, the claimants are awarded the sum of $207,623.43, with interest thereon at the statutory rate of 9%, from January 4, 2001, the date on which the liability of the defendant was determined.

All motions on which the Court may have reserved decision or which were not previously determined are denied

LET JUDGMENT BE ENTERED ACCORDINGLY.


June 12, 2003
New York, New York

HON. S. MICHAEL NADEL
Judge of the Court of Claims




[1]At the time of this trial, the claimant was 54 years old, with a life expectancy of 28.2 years (PJI 1B, 1498).
[2]At the time of this trial, Mr. Gottlieb was 50 years old, with a life expectancy of 27.4 years (PJI 1B, 1495).