New York State Court of Claims

New York State Court of Claims

KELLOGG v. THE STATE OF NEW YORK, #2005-010-018, Claim No. 101872


At damages trial, claimant awarded $95,000.00 for pain in suffering resulting from shoulder injury.

Case Information

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):

Terry Jane Ruderman
Claimant's attorney:
Defendant's attorney:
Attorney General for the State of New YorkBy: Dian Kerr McCullough, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 3, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

In a Decision dated April 30, 2004 and filed May 5, 2004, this Court determined that defendant was 100 percent liable for the personal injuries claimant sustained on November 7, 1999 at Bedford Hills Correctional Facility (Bedford). This Decision pertains to the issue of damages. By Stipulation, the parties agreed that the time period considered for any award ended on April 21, 2004 when claimant had a subsequent injury.
On November 7, 1999,
claimant slipped and fell on a puddle of detergent in the laundry area of her housing unit at Bedford. She testified that, after the fall, she experienced sharp pain in her arm, shoulder and chest. That evening, she went to the facility clinic where she was given ice, ibuprofen and Percogesic. Two to three days later, claimant had an appointment with a doctor who added Tylenol to the above. This regimen did not relieve the pain. In addition, claimant had difficulty sleeping because she awakened when she rolled on her shoulder.
At the time of her fall,
claimant was assigned to work with the Fire and Safety Office, had housing unit responsibilities and did peer counseling. After the fall, she had difficulty performing her work duties which included posting signs, carrying hoses, a 30-pound toolbox, and moving and lifting fire extinguishers. She also had problems completing her housing unit assignments, such as mopping and sweeping. In addition, after the accident, claimant did less peer counseling because she was tired, in pain and not as patient.
laimant had no strength in her right hand and could not even carry packages from the commissary or hold a cup of coffee. She could not lift her arm higher than her shoulder and this made it difficult to dress herself.
Claimant was treated by Dr. Jonathan Holder, an orthopedic surgeon. He recommended physical therapy; applying ice, a heating pad and hot water bottle; taking Celebrex and Ultram; and using a TENS unit. Claimant was issued a permit for the TENS unit and for a second mattress and cervical roll pillow to keep pressure off her shoulder. Despite this regimen, claimant continued to have throbbing pain and sleepless nights.
On December 30, 2003, Dr. Holder performed surgery on
claimant. The stitches were supposed to be removed within seven to ten days. When they were not and the skin was growing over the wound, claimant removed the stitches herself. She was kept in a sling for 30 days until her next visit with Holder. Although Holder recommended that physical therapy be started three days after the surgery; it did not begin for three months. By that time, claimant had a frozen shoulder and could not raise her arm.
Claimant testified that she was in the Special Housing Unit (SHU) from April 9, 2004 to August 5, 2004. When she entered SHU, her medical equipment, second mattress, and all her medications were taken away. After six to eight weeks, her medications were reissued but Feldene was substituted for Celebrex, and claimant found it to be less effective. Although the TENS unit was returned after one month, it lacked batteries and was therefore useless. During this period, whenever claimant left SHU, she was placed in full restraints which aggravated her pain.
According to
claimant, the shoulder injury has impacted visitation with her family because she cannot put her arm around her mother and cannot play with her two teenage sons. She has been removed from her job at Fire and Safety and has been assigned as a porter on her housing unit. Although she has a medical limitation order restricting sweeping, mopping and carrying, she still is required to perform her job, which includes these activities.
Dr. Jonathan Holder,
claimant's treating physician, testified that he is a board certified orthopedic surgeon. Holder holds a monthly orthopedic clinic at Bedford and first examined claimant in September 2000. At that time she had limitation of her range of motion and her shoulder blade winged away from the chest wall. Based upon this examination and a review of her films and records, he diagnosed claimant with scapular muscle weakness evidenced by the shoulder blade not being in the right position; tendonitis of the rotator cuff and arthritic changes in the acromioclavicular joint. By explicit references to an MRI taken April 27, 2000 he originally reviewed in 2000 (Ex. A), Holder explained how he reached his conclusions. He demonstrated the signs of fluid, which was indicative of tendonitis and the thickening arthritic changes. A second MRI was taken on December 10, 2002. Although it is not stated in the 2002 MRI report, based on his personal viewing of the MRI, Holder testified that he saw a partial tear of the rotator cuff tendon on this film.
By 2002, it was apparent that conservative treatment had failed. C
laimant was not progressing with physical therapy and remained in pain. Holder recommended arthroscopic surgery to correct what he described as tendonitis with impingement syndrome.
On December 30, 2003,
claimant underwent surgery under general anesthesia. During this minimally invasive procedure, Holder removed thickened tissue and shaved the bone, which had greater than expected arthritic changes. Holder testified that the procedure was painful. The post operative care called for removal of stitches one week later, a sling for two weeks, and the commencement of physical therapy.
Holder testified that the use of a sling for a month, rather than the prescribed two weeks, may have slowed
claimant's recovery because muscles and joints should be kept limber. He also explained that since bleeding occurs after the surgery, the sooner the limbs are moved, the less likely it is that scar tissue will form.
Holder conceded that
claimant never had a torn rotator cuff. In surgery, he would only have repaired a partial tear if he deemed it imminent to cause a complete tear. Holder also noted that claimant had a sloping acromion, a congenial condition which might have contributed to the impingement in her shoulder. This, however, did not change his opinion that the fall caused her injury.
Dr. Michael Pierre Rafiy, a board certified orthopedic surgeon, testified on behalf of
defendant. Rafiy, who was educated in France, practiced in the United States from 1961 to 2001. He has since semi-retired and no longer performs surgeries.
Rafiy examined
claimant on September 7, 2002 and reviewed her medical records. Like Holder, he diagnosed her condition as an impingement syndrome of the right shoulder and arthritic change of the acromioclavicular joint. Rafiy read only the MRI reports and not the actual films. None of the records indicated a rotator cuff tear. Rafiy also testified that claimant's acromion sloping was a congenital condition, but that there was no doubt that the fall had caused aggravation to claimant's shoulder and that, prior to the fall, she had no problems. The fall was a significant factor in causing claimant pain.
Rafiy agreed that surgery was indicated and painful. The fact that there was greater arthritis involved meant that
claimant was in greater pain. He noted that a patient would have greater pain without her TENS unit and hot water bottle and if she engaged in physical activity. He had no reason to disagree with Holder's statement that the frozen shoulder may have been caused by keeping claimant in a sling too long and that a frozen shoulder was a painful condition which made physical therapy even more painful. Upon reading the report of the MRI taken April 27, 2000, Rafiy testified that the "T2 signal intensity in the neck of the glenoid extending to body of the glenoid fossa suggestive of bony contusion" was caused by the trauma and indicative of pain (Ex. A, p 270).
Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds $95,000 to be reasonable compensation for claimant's past pain and suffering from November 7, 1999 through April 21, 2004. Interest shall run from April 30, 2004, the date the liability decision was signed (see Love v State of New York, 78 NY2d 540).
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).

March 3, 2005
White Plains, New York

Judge of the Court of Claims