New York State Court of Claims

New York State Court of Claims

GIBSON v. THE STATE OF NEW YORK, #2004-010-027, Claim No. 104428


Synopsis


Damages to hand and knee awarded $195,000 of which claimant received $146,250 (75 percent liability).

Case Information

UID:
2004-010-027
Claimant(s):
JULIANN GIBSON
Claimant short name:
GIBSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104428
Motion number(s):

Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
THE JACOB D. FUCHSBERG LAW FIRMBy: Alfred L. Odom, Esq.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Dian Kerr McCullough, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 6, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
In a decision dated March 26, 2004 and filed April 19, 2004, this Court apportioned liability 75 percent to defendant and 25 percent to claimant with respect to the injuries claimant sustained when she slipped and fell on August 25, 2000 in the shower area at Taconic Correctional Facility (Taconic). This Decision pertains to the issue of damages.

Claimant seeks damages for pain and suffering related to a laceration in her right hand and a torn meniscus of her right knee.[1] There is no claim for lost earnings.
Claimant testified that when she fell, her legs bent behind her body and her hand was lacerated on broken tile. She observed blood and felt pain in her right hand and right knee. Claimant was transported to St. Agnes Hospital where her hand was sutured and wrapped. For the following two weeks,
claimant's hand was rebandaged daily. The stitches were thereafter removed. Claimant stated that she advised medical personnel at Taconic that she had no feeling in her hand and experienced pain in her knee. Claimant testified that she had tingling and numbness in her hand and it was unusable even when not wrapped.
In November, 2000, claimant was referred to Dr. Magill, a hand surgeon. Magill recommended nerve graft surgery, which he performed at St. Agnes Hospital on February 5, 2001. The surgery involved grafting a nerve from claimant's wrist and implanting it into the palm side of her hand. Claimant has a scar on her wrist and hand. Following the surgery, claimant wore a cast.

Shortly after the surgery, claimant was released from Taconic and the cast was replaced with a brace. She moved back with her parents, who had been caring for
claimant's eight year-old son during claimant's five year incarceration. When claimant first arrived home, she required assistance with daily activities such as dressing, brushing her teeth, washing and cooking. She was not physically able to care for her son.
In June, 2001, claimant visited an orthopedic surgeon and occupational therapy was recommended. From February, 2002 to June, 2004, claimant was employed as a Donor Specialist at the New York Blood Center. Her responsibilities included taking blood pressure and drawing blood.
Claimant's physical limitations necessitated a modification of her technique in performing these tasks. She used her right thumb and pointer finger, rather than the rest of her hand. She never told her employer that she was in pain or had any restrictions.
Claimant maintains that since her fall, she has no strength in her right hand. She cannot close her hand completely and cannot turn things or open bottles. She also contends that her knee injury prevents her from running, playing ball and wrestling with her son as she had done previously.

Correction Officer Shawn Leo testified that he responded to the scene of claimant's accident. He observed claimant on the floor in pain. Leo recalled seeing claimant's hand bleeding and knew that she needed assistance to go to the facility emergency room.

Julia Gibson, claimant's mother, testified that claimant lives in an apartment in Gibson's house. They see each other daily. Gibson observed that when claimant returned from Taconic, she had pain in her right hand and knee.
Claimant's right hand was in a sling, she had no power in it, and she used a cane. Gibson did the cooking and took care of her grandson. Gibson maintains that her daughter is still in pain and often rubs her hand.
Dr. Edward Wang, a Yale Medical School graduate, who is a Board Certified orthopedic surgeon with a certificate in hand surgery, testified on behalf of claimant. He is an assistant professor of orthopedic surgery at the State University Medical School at Stonybrook and devotes approximately 60 percent of his practice to hand surgery. Wang was claimant's treating physician beginning July 31, 2001. At the initial visit,
claimant complained that she was unable to bend her small finger and had abnormal sensation and weakness in her right hand. Wang found that claimant's active range of motion, hand strength and sensation were all reduced. After taking claimant's medical history and performing a physical examination, Wang concluded that claimant had a right hand flexor tendon adhesion and a lacerated radial digital nerve to the right small finger[2]
. Wang determined that there had been an incomplete recovery of the radial digit ulnar repair and he recommended hand therapy for two months to decrease tendon adhesion.
Wang explained that when a nerve is cut, there is loss of feeling from the laceration to the tip of the finger. There may also be, as happened here, a loss of sensation from the formation of a neuroma. These are raw nerve endings at the level of a cut which become a hypersensitive spot characterized by sharp, stabbing pains that cannot sustain normal pressure.

Wang reviewed claimant's medical records from the New York State Department of Correctional Services (DOCS) (Ex. 15). A Request and Report of Consultation dated September 18, 2000 noted that
claimant had a nerve and tendon laceration on her right hand with loss of sensation to the digital nerve (Ex. 15, p B6). Although the injury was worse on September 26, 2000, this report was largely consistent with Wang's findings. The February 5, 2001 operative report of the surgery performed by Dr. Richard Magill described the procedure as a "RIGHT SMALL RADIAL DIGITAL NERVE EXCISION OF NEUROMA AND REPAIR OF DIGITAL NERVE WITH A POSTERIOR INTEROSSEOUS NERVE GRAFT" (Ex. 17).
According to Wang, the limitation of motion in claimant's small finger results in a weakened grip and causes difficulty in picking up items like a broom or a mug. Wang explained that the thumb, second, and third fingers are usually used for precise activities, while the ring and fifth fingers are used to grasp items.

Claimant visited Wang again on February 28, 2003. Wang examined claimant's right hand and noted that the range of motion was still abnormal, motor strength showed residual weakness and sensation was decreased. She had a 3 cm scar on the palm of her hand and a 4.5 cm scar on the dorsal midline of the right wrist (Ex. 19). In Wang's opinion, the laceration of the nerve and tendon was a direct cause of her condition. Considering that it had been two years since the surgery, Wang opined that the status of claimant's finger was unlikely to change. It was apparent to Wang that the nerve repair was unsuccessful. He did not, however, recommend any further surgery. Wang also testified that claimant's small finger was prone to reinjury because it cannot flex inward.

Wang also reviewed claimant's medical records regarding her knee. The records received into evidence documented complaints and findings dating back to the time of the accident (Ex. 15). Claimant complained about right knee pain when she fell and was given permission to use a cane (Ex. 15, pp3, 15). X-rays and an MRI were taken (Ex. 15, pp 25, 27). These tests evidenced joint effusion (fluid on the knee) and "an intersubstance tear and/or myxoid degeneration involving the posterior horn of the medial meniscus" (Ex. 15, p 27). A January 16, 2001 record noted knee effusion, ligament instability and a positive McMurray sign (Ex. 15, p 33).[3]

Dr. Jay Winokur, a graduate of New York University Medical School and a Board Certified Orthopedic Surgeon, testified on behalf of Defendant. Winokur, who is now retired, had been in private practice for 36 years. He has testified in court over 100 times.

On the basis of an examination of claimant on April 29, 2002, the St. Agnes Medical Records and the MRI report of December 6, 2000, Winokur prepared a report dated May 9, 2002. Winokur concluded in his report that
claimant had a right medial meniscal tear related to her fall on August 25, 2000 and aggravated by a motor vehicle accident on May 8, 2001. He also found claimant to have sustained lacerations and tendon injury to her right fifth finger. He opined that claimant had permanent loss of sensation in the right fifth finger and on the ulnar border of the right ring finger, and a permanent restriction of motion (Ex. B).
Winokur subsequently reviewed claimant's knee x-rays, the operative report of the February 5, 2001 hand surgery and Wang's reports of his visits with
claimant. Contrary to his 2002 written report, Winokur testified at trial that the knee problem was more likely degenerative and that there was no tendon injury to claimant's finger.
Winokur conceded that he had not read all of the DOCS records (Ex. 15). These records included the post surgery status report dated February 14, 2001, which noted that
claimant had surgery for a right small digit nerve repair and excision of the FDS tendon tendolysis (stripping adhesions from a tendon) (Ex. 15, p 29); a December 11, 2000 report which evidenced that patient sustained a tendon and nerve laceration in the prison (Ex. 15, p 34); and a September 18, 2000 consult which found a tendon laceration (Ex. 15, p 36). Winokur testified that his revised opinion was based upon his review of the February 5, 2001 operative report that did not reference tendon damage. In Winokur's view, the laceration of the digital nerve of the radial side of the right fifth finger was claimant's major injury.
Dr. Winokur's trial testimony was not persuasive in light of the medical records in evidence, Dr. Wang's testimony and Winokur's own written report. Indeed, Winokur's changed position at trial appeared to be disingenuous and unfounded. Accordingly, the Court credited the testimony of
claimant's expert and rejected the testimony of defendant's expert (see Vona v Wank, 302 AD2d 516; Newman v Shipper, 198 AD2d 129 [trier of fact may accept one expert's opinion and reject another expert's opinion]).
Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds $45,000 to be reasonable compensation for
claimant's past pain and suffering related to her knee injury from August 25, 2000 through May 8, 2001.[4] The Court also finds that claimant is entitled to compensation for $85,000 for past pain suffering and $65,000 for future pain and suffering regarding the injury, limited mobility and resulting scar to claimant's hand.
This Court, in its Decision dated March 26, 2004, determined liability to be apportioned 75 percent to defendant and 25 percent to claimant. Accordingly,
claimant is entitled to recover the sum of $33,750 for the knee injury and $112,500 for the injury to her hand with interest from March 26, 2004, the date of the determination of liability.
It is further ordered that, to the extent that
claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act §11-a(2).
LET JUDGMENT BE ENTERED ACCORDINGLY.

October 6, 2004
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims



[1] The parties stipulated that the claim related to the knee injury is limited to the date of the fall until May 8, 2001, when claimant was in a car accident.

[2]Wang explained that the flexor tendon is the structure that allows a person to bend a finger. Each finger has two tendons and two nerves. The radial nerve runs along the thumb side of the finger.

[3]A McMurray sign is a clinical test for a torn meniscus. A positive sign indicates a possible tear that is usually confirmed by an MRI.
[4] Notably, the Court rejects defendant's argument that claimant cannot recover for her knee injury. Had the tile been properly maintained, claimant would have been able to brace herself from falling and injuring her knee.