New York State Court of Claims

New York State Court of Claims
WHITE v. THE STATE OF NEW YORK, #2005-015-518, Claim No. 106106
Synopsis

After damages trial court denied recovery for both initial injury and subsequent injuries since proof failed to show that claimant sustained a medically significant injury on May 29, 2001 and failed to establish any causative link between her May 29, 2001 fall and her subsequent falls.
Case Information
UID:
2005-015-518
Claimant(s):
GALE WHITE AND CHARLES L. SCHENCK, III
Claimant short name:
WHITE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106106
Motion number(s):

Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Niles, Cardany, Piller & BracyBy: John Niles, Esquire
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Glenn C. King, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 19, 2005
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:
AFFIRMED 41 AD3D 1071 3D DEPT 6/21/07
See also (multicaptioned case)



Decision
By decision dated August 18, 2004 the Court determined after a bifurcated trial that the State was solely liable for injuries sustained by the claimant in a fall at Upstate Correctional Facility, Malone, New York on May 29, 2001. A trial on the issue of damages took place in Albany on February 24, 2005.
Claimant
[1]
Gale White was called as the first witness. Ms. White testified in relevant part that she is 60 years old and attended Woodbury College in Montpelier, Vermont from 1996 to 1999. After receiving an Associates Degree with a major in paralegal studies she obtained employment with Prisoners' Legal Services (PLS) as a paralegal. Claimant denied having any problem with either knee, her right shoulder or her spine prior to her fall on May 29, 2001.
Claimant offered a brief description of her fall contending that she "fell on my left knee, right knee splayed out" (T 14
[2]
). She made no complaints to anyone that day and when asked what symptoms she experienced she replied "I really didn't – just driving home, maybe a little soreness in my left knee. I – it wasn't a big deal" (T 14). The claimant reported the incident to PLS's co-attorney Ellen Schell but did not complete and submit a written report of the fall until the following day. The report labeled "Employee's Report of Injury or Illness, " received in evidence as claimants' Exhibit 1, merely states that she fell on her left knee. No mention was made of claimant's right knee. Claimant made an appointment to see her family physician, Dr. Charles MacLean in Essex Junction, Vermont on June 7, 2001. An injury/illness investigation report essentially identical to Exhibit 1 but signed by the claimant's supervisor Cheryl Maxwell on June 12, 2001 was received in evidence as Exhibit 2.
The witness averred that a day or two after her May 29, 2001 fall she began to experience puffiness in her left knee. A couple of days later but prior to her visit with Dr. MacLean she noted swelling in both knees. During her appointment with Dr. MacLean on June 7, 2001 claimant related the circumstances of the incident and reported that she "didn't really have any major problems" (T 24). Dr. MacLean reportedly examined both of claimant's knees and recommended an X ray of her left knee and that she take Advil for pain. No follow-up appointment was scheduled. The doctor completed a form entitled "Medical Release of Information for Work-Related Injury/Illness" which states the nature of the injury as "L knee injury 5/29/01" and the treatment as "NSAID's Prn" (non-specific anti-inflammatory drugs as needed) and "knee exercises" (see claimants' Exhibit 3). Dr. MacLean indicated on the form that claimant could return to work with no restrictions.
Claimant alleged that she continued to have swelling in one or both knees after June 7, 2001. She then testified as follows regarding the circumstances of a second fall which occurred while the claimant was returning to her office for a staff meeting on June 11, 2001:
I went down a slope. There was a rock at the bottom of the slope. I felt myself slipping on it. I stiffened up my entire body to try to prevent myself from slipping. I felt a weakness in my knees, I – one or both, and I have no idea which it is, felt like they were giving way, and I fell uphill onto my right shoulder (T 27).

After her fall on June 11, 2001 claimant attended the staff meeting and thereafter asked to be excused from work for the remainder of that afternoon. She visited the Champlain Valley Physicians Hospital (CVPH) emergency room the following morning complaining of pain in her neck, right arm and right shoulder.
Although the Champlain Valley Physicians Hospital emergency room report appears to contain a reference indicating that the patient's "knee gave out" claimant did not recall providing anyone with that information (T 38 - 41). She recalled being examined but could not remember receiving a prescription for painkillers. The claimant went to work later that day to retrieve a file and spent the remainder of the day working at home. The following day at work she completed an employee's report of injury/illness form (claimants' Exhibit 4). Claimant made an appointment to see Dr. MacLean on June 18, 2001.
Claimant continued to work up until her scheduled appointment with Dr. MacLean. She testified that she was diagnosed as having a possible rotator cuff tear during the June 18, 2001 office visit and believes she advised the doctor of continued swelling in her knees which he examined very briefly. When asked if she informed Dr. MacLean of the mechanics of her June 11th fall claimant replied " my – my – my knee, or my knees feeling like they were giving way? I – I don't know. I – I – I'm inclined to believe that I did because I had been talking to him about my knee – both of my knees having swelled up, so it would be my thought that I did, but I wouldn't swear to it" (T 45). The doctor completed the medical provider portion of a Medical Release of Information for Work Related Injury (Exhibit 5).
Cheryl Maxwell prepared an inter-office memo on June 21, 2001 regarding a conversation she had with the claimant the previous day (claimants' Exhibit 6). That memo, in relevant part provides:
Yesterday we met to discuss your medical condition. At that time, you advised me that you had just returned from the doctor. The doctor had confirmed that the knee injury you received when you were in Upstate was not serious. The doctor thought that you had bruised your knee and that it was healing fine. In regard to the injury you received when you fell down the hill, the doctor is not yet sure of the diagnosis. It may be a torn rotator cuff or a pulled muscle or ligaments. You are having an MRI done on July 20, 2001 that will assist the doctor in a diagnosis. The doctor prescribe [sic] medication to assist with the pain.

Claimant testified that she underwent an MRI of her right shoulder on July 7, 2001. She described intense shoulder and neck pain and stated that although the swelling in her knee had abated the right knee became problematic and frequently locked up. After following up with Dr. MacLean claimant was scheduled for an MRI of her right knee which was performed in Plattsburgh, New York on August 19, 2001. Thereafter she was referred to Dr. Lawlis, an orthopedic surgeon, who she visited in September and October 2001. Dr. Lawlis administered a cortisone injection to claimant's right shoulder.
Claimant was subsequently examined by an orthopedist (Dr. Cody) and an orthopedic surgeon (Dr. Abate) for both her shoulder and her knee. She testified that in January 2002 her right knee began locking up for longer periods of time and Dr. Abate recommended arthroscopic surgery to repair a torn meniscus in her right knee. After further complaints and diagnostic testing of her right shoulder Dr. Abate also recommended surgery for that injury as well. Claimant had completed three months of physical therapy prior to her January 29, 2002 visit with Dr. Abate.
Claimant underwent arthroscopic surgery on her right knee on March 21, 2002 and endured several months of physical therapy. At some unspecified time she was given an elastic brace to address instability in her right knee. That was followed by the use of a custom fitted brace.
During the early morning hours of September 5, 2002 claimant got out of bed to go to the bathroom. She was not wearing her newly fitted knee brace and as she returned to the bedroom she felt her right knee "sliding, not really buckling, just kind of sliding again" (T 68) causing her to fall halfway down a set of nearby stairs injuring her spine and ribs. Later that day she went to the Champlain Valley Physicians Hospital emergency room where her chest and spine were X rayed, she was given a CT scan and released. Later that night she was contacted by phone and advised that a radiologist had detected a compression fracture. Two days later she experienced severe breathing problems and returned to the Champlain Valley Physicians Hospital ER where she was diagnosed as having pneumonia and given antibiotics (claimants' Exhibit 19).
A note written on a prescription pad dated 9/11/02 (claimants' Exhibit 10) by Dr. Roberta O'Brien, an associate of Dr. MacLean, relates that the claimant was suffering from pneumonia, a compression fracture of the spine at T-6 and rib fractures and that she would be unable to work for six weeks. Claimant purportedly requested this note from Dr. O'Brien since she was at that time receiving unemployment benefits following a layoff at Prisoners' Legal Services.
Arthroscopic surgery was performed on claimant's right shoulder by Dr. Joseph A. Abate III on November 4, 2002. The claimant testified that several weeks later she had a post-surgical infection which was successfully treated with antibiotics and although at one point her shoulder pain had ceased completely it had returned as of the trial date.
Claimant continued to experience back pain as a result of the compression fracture sustained in the September 5, 2002 fall and was ultimately referred to Dr. Hargraves, a neurosurgeon, who prescribed use of a back brace for a period of six months beginning in November 2002. In the Spring of 2003 claimant was referred by Dr. Hargraves to Dr. Henderson, an assistant professor of neurosurgery at Georgetown University Medical Center in Washington, D.C. specializing in problems involving the thoracic spine. Although Dr. Henderson recommended surgery the claimant has opted not to undergo surgery at this time due to the risks involved including paralysis.
Claimant testified that she has also been referred to a urologist (Dr. Kershon) who diagnosed her as having a neurogenic bladder, a condition which prevents complete emptying of the bladder.
The witness testified that her doctors have cautioned her against certain activities as a result of her various medical conditions including kneeling, bending, squatting, picking up more than two pounds at a time and walking for long distances. She can no longer wallpaper, paint or assist her son with his furniture refinishing business.
Before her injuries claimant, though married, lived fairly independently since her husband was employed by the federal government and was often away from home on business. She plowed and shoveled snow, mowed lawns, cleaned and took care of a horse, a sheep and geese. She now only cares for a dog and a cat and requires assistance to lift them when necessary. Claimant and her husband also used to snowshoe and hike together and the claimant would downhill ski at Lake Placid two or three times per winter.
Claimant identified Exhibit 11 as a pay scale for PLS and Exhibit 12 as a pay stub dated August 31, 2001. Claimant admitted that she has not discussed the possibility of returning to work with any physician currently treating her.
On cross-examination the witness admitted that the accident report she completed regarding her May 29, 2001 fall did not refer to an injury to her right knee and that although claimant testified that both knees were swollen prior to her June 7, 2001 visit to Dr. MacLean the doctor testified at his deposition that he failed to observe any swelling in either knee.
Claimant also admitted that her examination before trial transcript is silent as to what role, if any, an injury to her knee(s) sustained in the May 29, 2001 fall at Upstate played with regard to the happening of her second fall on June 11, 2001. The witness was shown the following questions and answers from that deposition and provided the following responses (T 118-119]:
Mr. King: Counsel, I'm at Page 52, Line 20:
Question: And what type of ground were you walking on when this occurred?
Answer: There was a slope and I was walking down the slope, and when you get to the parking lot, there was a rock at the very bottom adjacent to where the car was parked, and I slipped on the rock and fell uphill.
Do you recall giving that answer to that question?
A. Yes, I do.
Mr. King: Further down, Counsel, Page 53, Line 20:
Question: I think you indicated that you slipped on a rock?
Answer: There was a rock there, yes, and it was the rock ...' Excuse me', ... and it was that rock that I slipped on.
You recall giving that answer –
A. Yes –
Q. – to that question?
A. – I do.

Defense counsel then asked the witness to locate any portion of her deposition testimony in which she indicated that her fall on June 11, 2001 was caused by buckling or weakness in either of her knees. Although the claimant was unable to specifically identify any such testimony she referenced statements in her deposition in which she states that her knees were swollen at the time of her second fall on June 11, 2001. She agreed that she was afforded an opportunity to read and amend the transcript and did not make any changes to clarify the manner in which her knees caused or contributed to her fall on June 11, 2001 stating: "I never testified that it was a direct result of that. I simply said that my knees were swollen at the time" (T 123).
Claimant further agreed that, as she testified at her deposition, her second fall occurred at or near her employer's offices at approximately 1:15 p.m. on June 11, 2001. She also acknowledged that she was on her way to a staff meeting that began at 1:00 p.m. at the time of her fall. The claimant then was asked by defense counsel "So - so you took a shortcut, right?" to which she replied "Yes, I did" (T 124). Claimant acknowledged that the accident report she prepared concerning her fall on June 11, 2001 does not state that her fall was caused by a problem with either knee.
The following discussion then took place regarding the history claimant provided to Dr. R. Mitchell Rubinovich, the physician who conducted an independent medical examination at defendant's behest ( T 128-129):
Q. Even when you were examined by Dr. Rubinovich, do you recall that?
A. Yes, I do.
Q. That was January 24th, 2005, just a couple of weeks ago, right?
A. Yes.
Q. And that's the doctor – you understand that to be the doctor that I hired in order to conduct an independent medical examination of you, correct?
A. Yes.
Q. Even when you explained the history to him, you simply indicated that you slipped on a promontory or something like that.
A. Yes.
Q. Isn't it true you didn't make any mention to him that your fall was caused by something having to do with either of your knees?
A. I never told anybody that it was caused – my fall was caused by it. I said that my knees were simply swollen at that time from my fall at Upstate, and that I couldn't – I didn't have strength in them and I couldn't – they – they gave way, one or both, I wasn't sure which one. That's all I've ever stated about that fall.

When asked directly by defense counsel at trial what caused her to fall on June 11, 2001, claimant replied "I don't know" but went on to testify that at the time of her fall she stiffened her body "and my knees gave way, one or both, not sure which" (T 131). The following colloquy then took place (T 132):
Q. Despite your contention that the fall may have had something to do with either of your knees, is that fair to say?
A. I don't believe I gave that information to anybody.
Q. Okay. Okay. Fine, I'll back off of that. Would you indicate then – would you say then that the fall did not have something to do with either of your knees?
A. I can't say that either, Mr. King, not conclusively.

Claimant denied that she first mentioned a problem with her right knee during her office visit with Dr. MacLean on August 9, 2001 and stated that if the doctor testified to that effect he was mistaken. The witness further contended that the account of her September 5, 2002 accident recorded by an emergency room triage nurse which states that the claimant slipped down seven stairs must also be wrong. She did not, however, deny that she gave a similar account to the emergency room doctor. Significantly, while claimant insisted that the September 5, 2002 fall was caused or precipitated by a knee problem she admitted that she does not know whether a knee problem played any role in causing her June 11, 2001 fall.
When asked if she recalled telling Dr. Cody in December 2001 that her left knee was about 100 percent healed the witness replied "There was – there was never an injury to my left knee" (T 141). Claimant was then asked whether she submitted a written request to Dr. Abate that he make a finding for purposes of Workers' Compensation and her claim against the State that both of her knees were injured in the May 29, 2001 fall to which claimant stated, "That's absolutely true" (T 141). To avoid further confusion defense counsel inquired "[d]idn't you just tell us that you didn't injure your left knee?" to which she replied "[t]hat's true" (T 141).
Claimant testified that she was informed by her doctor that she fractured her ribs as a result of the September 5, 2002 fall at her home and expressed surprise that the radiologist report generated by her subsequent ER visit indicates no fractures. Claimants' verified bill of particulars did list rib fractures as an item of damage.
On redirect examination the witness testified regarding her written communication with Dr. Abate that she was attempting to correct an error in Dr. Abate's report to Workers' Compensation which indicated she had had surgery on her left rather than her right knee. The witness was excused at the conclusion of this redirect examination.
Claimant's second witness was her husband and co-claimant Charles L. Schenck who has been married to the claimant for over 40 years. He is currently employed as a facility project manager for the Department of Homeland Security, Bureau of Citizenship and Immigration. The witness alleged that prior to May 2000 his employment with the former Immigration Service (U.S. Immigration and Naturalization Service) required travel throughout 24 states in the Eastern Region of the United States and Puerto Rico. His current duties take him all over the country, although he related that he traveled more often before May 2001 than he does now due to budgetary constraints. Mr. Schenck testified that he is occasionally detailed for 30-40 days at a time and that he travels 2-3 times per month on average.
The witness related that it is difficult for his wife to travel. Claimant no longer goes boating with the witness and they are no longer involved in purchasing, remodeling and selling older homes since claimant is unable to perform the same tasks she could prior to her injuries. She is similarly unable to care for animals, work in the family furniture restoration business or to engage in winter sports like snowshoeing and hiking as she once did. The witness is now required to perform cleaning and maintenance tasks formerly performed by his wife.
Mr. Schenck testified that he and his wife don't sleep together anymore and don't have the "same relationship we had" (T 154). Ms. White sleeps in a small area of the couple's living room so she doesn't have to climb the stairs to the second floor where the bedrooms are located.
On cross-examination the witness testified that his wife has not worked since September 2001. When asked about his wife's specific complaints of pain during the 11 days after her first fall in May 2001 he replied "she – she was banged up, she was bruised" (T 155), although he did not recall any specific complaints of pain. While he did not recall exactly when the couple's present sleeping arrangement was made he remembered that it occurred after she fell and hurt her back.
The witness was not subjected to redirect examination.
The attorneys thereafter stipulated into evidence Exhibits 20, 21, 22, 23 and 24 consisting of videotaped testimony and transcribed depositions of Drs. Abate and MacLean as well as video footage of claimant's May 29, 2001 fall.
A videotaped examination of Charles D. MacLean, M.D. took place on February 9, 2005 in Essex Junction, Vermont. Both a videotape (claimants' Exhibit 21) and a transcript of the examination (claimants' Exhibit 24) were offered and received in evidence.
Dr. MacLean testified that upon examination of the claimant on June 7, 2001 he diagnosed a possible mild meniscal injury and ordered an X ray of her left knee to look for possible underlying arthritis. Dr. MacLean confirmed that claimant provided him a history of her accident on May 29, 2001 and testified that he carefully examined both of the claimant's knees as is his usual custom. The office note prepared by the witness following his June 7, 2001 examination of the claimant reads as follows:
OFFICE VISIT
6/7/01
TEMPORARY PROBLEM: LEFT KNEE PAIN
A. WORKER'S COMPENSATION INJURY, 5/29/01
S: Fell at work on the floor which was slippery. She works at a correctional facility that uses in house videotape monitoring and the whole thing was actually caught on film. She twisted her left knee and it has been bothering her somewhat since. She's been able to work and function in her daily activities, though it does cause some pain along the lateral aspect of the knee joint. She does not have major underlying arthritis problems and no previous major knee injuries.
O: On inspection, she is fairly symmetric with no major effusions noted. There is some mild tenderness along the lateral joint line. No major pain with varus valgus stressing. McMurray's positive for slight pop and grimace. Drawer sign negative bilaterally.
A. Possible mild meniscal injury.
P. An X-ray to look for any underlying arthritis.

Dr. MacLean examined the claimant again on June 18, 2001 subsequent to a second fall which occurred on June 11, 2001. He testified that during the examination the claimant related that she struck her right shoulder on the ground and sustained a whiplash injury to her neck when she fell while walking sideways down an incline or slope. An X ray was ordered to check for fractures to claimant's shoulder as was an MRI to check for a possible rotator cuff injury.
Claimant returned to see Dr. MacLean on July 19, 2001 complaining of continued pain and throbbing in her right shoulder. The witness's office notes indicate that her knees were injured "in this event" and that the claimant had noted some swelling in her left knee and intermittent clicking that "wasn't particularly bothersome" (claimants' Exhibit 24, p 16). The MRI report showed no evidence of a rotator cuff tear but due to the noted presence of calcium in the bursa the witness referred claimant for a local corticosteroid injection and physical therapy.
The witness next saw the claimant on August 9, 2001 for both a general physical examination and to follow up on her prior knee and shoulder complaints. With regard to his examination of claimant's knees Dr. MacLean first referenced a portion of his office notes in which he relates:
To recap she had fallen hard on her left knee and probably tweaked her right knee at the same time. When I had seen her soon after that injury, we had obtained an x-ray which was fine. Her right knee became increasingly problematic subsequent to that and her thinking was that the left knee took the brunt of the injury, but the right knee may have been twisted at the same time.

The doctor testified that on August 9, 2001 the claimant's knees "appeared symmetrical with good range of motion, no lateral instability" (claimants' Exhibit 24, p 19). A McMurray test revealed some clicking and discomfort but there was no significant tenderness along the medial joint line. Dr. MacLean related in his testimony that the previous X rays of claimant's left knee "showed no effusion and no other abnormality" and that he ordered an MRI of claimant's right knee following his August 9, 2001 examination. He also referred claimant to Dr. Lawlis for follow-up examination and treatment for both her knees and shoulder.
The radiologist's report of the MRI of claimant's right knee taken on August 19, 2001 indicated a focal tear of the cartilage of the medial meniscus and stated that if the site of the tear is also the area of clinical concern the patient might benefit from arthroscopy.
The witness detailed subsequent examinations of the claimant which included pre-operative and post-operative visits relative to arthroscopic surgery performed on her right knee and right shoulder. Dr. MacLean's notes also indicate that claimant was treating with a Plattsburgh neurosurgeon (Dr. Hargraves) and Dr. Henderson in Washington, D.C. for pain attributable to a spinal injury sustained in her September 5, 2002 fall. She subsequently developed a condition referred to as neurogenic bladder which involves incomplete emptying of her bladder. Dr. MacLean related this bladder condition to claimant's thoracic spine injury and its effect on a nerve connected to the bladder.
Dr. MacLean appeared to testify that to a reasonable degree of medical certainty there was a high degree of likelihood that claimant's knee, shoulder, spine and bladder problems were causally related to her May 29, 2001 accident. However, in response to more specific questioning Dr. MacLean testified that claimant's knee problems were a result of her May 29, 2001 fall, her shoulder injury is attributable to her June 11, 2001 fall and the thoracic spine condition resulted from her fall on the stairs on September 5, 2002. The cause of the bladder condition is less certain.
On cross-examination Dr. MacLean testified that his office notes contain important information concerning a patient and would typically include complaints regarding instability of a patient's knees. When asked by defense counsel how he would typically check for instability in a patient's knees he stated that there are "a couple different types of tests" (claimants' Exhibit 24, p 60) a primary physician would use for that purpose. These include the Drawer's test to determine posterior instability, the Lachman test which Dr. MacLean generally does not use, varus-valgus stretching to measure lateral instability and other tests related to patellar instability. The doctor distinguished between a patient's complaint of instability and his specific findings from the McMurray, Drawer's, and varus-valgus tests.
Dr. MacLean agreed that his June 7, 2001 office notes do not mention instability in either of the claimant's knees. He further acknowledged that the radiologist report of the X ray of claimant's left knee showed no abnormality and that he had not ordered an X ray of the claimant's right knee. The Drawer's test administered by the witness during claimant's June 7, 2001 office visit was negative, indicating no instability of the ACL joint or ACL ligament. The office notes of June 7, 2001 specifically note that claimant's knees were not swollen and, although the notes do not address whether bruising was evident, Dr. MacLean testified that if there had been bruising "I would have definitely made a note of it" (claimants' Exhibit 24, p 66). The witness did not see claimant between June 7, 2001 and the time of her second fall on June 11, 2001. He stated that his office notes of June 7, 2001 reflect that the claimant had complained only of pain and not instability in her left knee and made no complaints at all regarding her right knee. The witness did not restrict claimant's activities and did not prescribe pain medication.
With reference to claimant's June 18, 2001 office visit, the witness agreed that although his notes contain a description of her fall on June 11, 2001 they make no mention of claimant's knees giving out. The witness asserted that had the claimant advised him that her knee had given out, locked or caught he would have noted that information in his office notes.
On July 19, 2001 claimant made another visit to the witness complaining of neck and shoulder pain. Dr. MacLean's notes state "[f]inally the knees which have been injured in this event are noted by her to still have some swelling on the left and some intermittent clicking, but this is not particularly bothersome right now" (claimants' Exhibit 24, p 74). He could not explain which "event" he was referencing in that note.
Dr. MacLean next examined the claimant on August 9, 2001. The witness admitted that none of his office notes prior to August 9, 2001 contain any reference to claimant's right knee. However, his notes of August 9, 2001 state that "two weeks ago her knee was somewhat exacerbated and. . . feels like it is kind of almost locking up" and that "her thinking was that the left knee took the brunt of the injury, but the right knee may have been twisted at the same time." Although the witness agreed that according to his notes the onset of any locking in the claimant's right knee would have begun during the last week in July, he testified that a delay in the onset of symptoms such as those described by the claimant "doesn't take it out of the realm of being related to that original injury" (claimants' Exhibit 24, p 85):
Dr. MacLean was questioned with regard to his stated opinion that to a reasonable degree of medical certainty claimant's second fall on June 11 was related to her initial fall on May 29, 2001. The following discussion then took place (claimants' Exhibit 24, pp 80-81):
Q. But you have testified that you can state with a reasonable degree of medical certainty that the second fall was related to the first fall?
A. Yeah. I think it's very plausible that, you know, by her account what she remembers is, you know, she fell, she tweaked her right knee, she's [sic] subsequently fell.
Q. Is this the first or second accident you're talking about?
A. The first accident. And that, you know, the reason she fell the second time was related to the first time.
Q. In what way?
A. In that her knees were bothered by the fall and led her to being unstable on this slope. I mean, I can't say with any absolute certainty. I'm saying that it's a plausible mechanism of how this happened.
Q. Well, you have testified with a medical degree of reasonable certainty [sic]. Is that still your testimony?
A. Um, I guess it's, um – I guess it depends on how you define a degree of certainty [sic]. You know.

After reviewing an ER report from Champlain Valley Physicians Hospital dated September 5, 2002 the witness agreed that claimant's knees are not mentioned in the patient's explanation of her fall. Similarly, office notes from a September 11, 2002 follow-up visit with the witness's associate (Dr. O'Brien) contain no mention of claimant's knees playing a part in her September 5, 2002 fall. The radiologist's report of X rays taken after September 5, 2002 indicate a possible compression fracture of claimant's thoracic spine but contain no reference to any rib fractures.
Dr. MacLean admitted that it was "hard to say" with a reasonable degree of medical certainty that a problem with either of claimant's knees caused her second fall on June 11, 2001. He further admitted that his notes do not contain any indication by claimant that her June 11, 2001 fall was caused by a problem with either knee.
On redirect examination the witness agreed with counsel that he does not include everything a patient tells him in his office notes. He further agreed with counsel's suggestion that swelling does not always accompany a meniscus tear. The remainder of the witness' redirect examination and a subsequent re-cross-examination were not significant.
A videotaped examination of Joseph A. Abate III, M.D. took place on February 18, 2005 in Colchester, Vermont. Both a videotape (claimants' Exhibit 20) and a transcript of the examination (claimants' exhibit 23) were offered and received in evidence.
The direct examination of the witness included a brief discussion of his educational background including degrees from Harvard and Tufts, an orthopedic residency at Brown University and a sports medicine fellowship at the Cleveland Clinic.
Dr. Abate recalled that he examined the claimant on January 29, 2002 regarding a knee injury and later saw her for a shoulder injury (claimants' Exhibit 23, p 7). The witness testified that at the January 29, 2002 examination claimant "had no knee instability to ligament exam. She had subjective complaints of knee instability" (claimants' Exhibit 23, p 10).
He then described arthroscopic knee surgery which he performed and acknowledged that claimant's right knee continued to be symptomatic even after surgery in that the patient complained that it felt like her knee was going to give out despite the fact that "ligamentously it was stable" (claimants' Exhibit 23, p 15). He prescribed a valgus unloader osteotomy type brace to remove weight bearing pressure from the medial side and to provide some stability to the right knee.
Additionally, the witness testified that he treated claimant for a right shoulder injury sustained in a fall on June 11, 2001. He described the diagnosis and treatment of this injury which included arthroscopic surgery on claimant's right shoulder. Claimant's healing progressed normally following surgery to a point estimated by Dr. Abate as 4+ on a scale of 1-5. In relation to that injury Dr. Abate was asked the following question and gave the following answer:
Q. And with respect to the shoulder injury, Doctor, did you have – do you have an opinion with a reasonable degree of medical certainty based upon the history that you have learned and the complaints made by the claimant Ms. White as well as your examination and ultimate surgery whether that's related to any particular incident?
A. I thought it was consistent with what she described as her incident of her fall of that June I think it was 11 (claimants' Exhibit 23, p 22-23).

On cross-examination defense counsel inquired whether it was the witness's opinion that claimant's June 11, 2001 fall was somehow related to her May 29, 2001 fall. Although he replied in the affirmative, upon further questioning the witness admitted that his opinion was based solely upon what the patient had told him regarding instability in her knee. He acknowledged that Dr. MacLean's notes do not indicate any complaint of instability and that his own office notes fail to confirm his direct testimony that the claimant advised him that her knee buckled or gave out during her June 11, 2001 fall. Dr. Abate could not testify which knee purportedly gave out at the time of claimant's June 11, 2001 fall but he believed from what she had told him that it was her right knee. He testified that his notes do not include any reference to claimant's June 11, 2001 fall having been caused by her knees buckling. The witness also acknowledged that the ER report of June 12, 2001 contains no reference to a problem with claimant's knee(s) causing claimant's fall.
Upon being shown a letter dated September 26, 2002 the witness admitted the claimant requested that he make a finding that both her knees were injured in the May 29, 2001 fall and that by subsequent correspondence to the Workers' Compensation Board he indeed stated such a finding.
On redirect examination the witness testified that although the June 12, 2001 Champlain Valley Physicians Hospital ER report does contain a reference to the word "knee" the witness could only guess the actual meaning to be ascribed to the entry. The witness explained that it is possible for symptoms such as those described by the claimant to occur a month to six weeks after a traumatic incident. The examination was then concluded.
Defendant's evidence consisted solely of a videotaped examination of R. Mitchell Rubinovich, M.D., defendant's independent medical examiner, which took place in Malone, New York on February 17, 2005. Both a videotape (defendant's Exhibit B) and a transcript of the examination (defendant's Exhibit A) were offered and received in evidence.
After presenting testimony regarding his education and training the witness stated that prior to his examination of the claimant he reviewed documentation from claimant's treating physicians. At the examination he took a history from the claimant and then conducted a physical inspection of her right knee and right shoulder. He also examined her ankles, feet and toes. Based upon her history and his examination the witness testified that he could not categorically state that claimant's fall of June 11, 2001 was unrelated to her fall of May 29, 2001. According to the account of the incident which claimant provided she "slipped off the edge of a promontory, falling forwards and landing and bracing herself with the right shoulder" (defendant's Exhibit A, p 11). The witness stated that such an accident could be attributed to either a slip or an "episode of giving way" (defendant's Exhibit A, p 12).
The witness did, however, express an opinion to a reasonable degree of medical certainty that the fall which occurred on September 5, 2002 was not related to the May 29, 2001 fall. He based that opinion upon the surgical report of Dr. Abate which noted that claimant had osteoarthritis in her right knee. It was the witness's opinion that osteoarthritis caused claimant's third fall.
The witness reviewed claimant's accident report concerning the May 29, 2001 fall and noted that it is silent with respect to any injury to claimant's right knee. The witness related that during the history provided by the claimant she indicated that her right knee was symptom free for quite some time after her May 29, 2001 fall and only later began to bother her and she concluded that her right knee pain which developed subsequently was causally related to her May 29, 2001 fall. With regard to claimant's left knee the witness opined to a reasonable degree of medical certainty that nothing in the record supports a finding of any injury per se.
On cross-examination Dr. Rubinovich stated that his examination of claimant lasted approximately 45 minutes. Questioned about the history of claimant's June 11, 2001 fall the witness clarified his direct testimony by stating that claimant had not tripped but he said that she was not sure exactly how she stepped off the rock. She did not mention that one or both knees buckled at the time of that fall.
The witness was asked whether his report indicated that claimant's knee slid prior to claimant's third fall on September 5, 2002 and he answered in the affirmative. She had also advised the witness that she had started wearing a different knee brace on either September 4 or September 5 and was wearing that brace at the time of her examination by the witness.
Dr. Rubinovich testified that he believed after reviewing Dr. Abate's report the claimant suffered from preexisting osteoarthritis at the time of her arthroscopic examination and that the osteoarthritis had not developed to the degree observed over a ten month period (i.e., May 29, 2001 - March 21, 2002). When asked whether someone with osteoarthritis could have engaged in the number and type of physical activities claimant was reportedly involved in prior to her May 29, 2001 fall the witness answered affirmatively. The witness thought it was possible that a traumatic incident could bring a previously asymptomatic arthritic condition to the forefront. Dr. Rubinovich noted that Dr. MacLean's notes are silent with reference to claimant's right knee until late summer 2001. The witness suggested that "[a]ny number of things could have occurred in a two-month period that could have brought on her symptoms aside from a minor fall" (defendant's Exhibit A, p 35). When questioned further by counsel if it was possible for symptoms to surface one or two months after an accident he responded "I'd be skeptical or I would find it impossible to link the two if someone asked me to do so" (defendant's Exhibit A, p 36).
At the conclusion of the trial testimony claimants' attorney orally moved to conform the pleadings to the proof presented at trial citing references to the incidents of June 11, 2001 and September 5, 2002 in the bill of particulars and extensive testimony regarding these incidents both at trial and during the depositions of both claimants' doctors and the independent medical examiner. Defense counsel acknowledged an absence of prejudice but requested that the motion be denied based upon a lack of credible evidence linking any injury arising out of the May 29, 2001 accident to claimant's subsequent falls on June 11, 2001 and September 5, 2002. Defense counsel also moved to dismiss any such claims permitted by the Court on the same basis.
It is settled that a motion seeking leave to amend a pleading to conform to the evidence adduced at trial pursuant to CPLR 3025 (c) is addressed to the Court's discretion and "should be freely given absent prejudice or surprise resulting directly from the delay (Fahey v County of Ontario, 44 NY2d 934, 935)" (O'Sullivan v O'Sullivan, 126 AD2d 784, 785 appeal dismissed 69 NY2d 984). Here the defendant was apprised relatively early that the claimants were alleging Gale White's subsequent accidents were attributable to an injury occasioned by the defendant's negligence on May 29, 2001. It had a full and fair opportunity to contest the issue of an alleged causal connection between the first injury and claimant's subsequent falls and therefore is not prejudiced by the requested amendment (see Matter of Amy H. v Chautauqua County Dept. of Social Servs., 13 AD3d 1048, 1050). The adequacy of the evidence linking the occurrences will be addressed below.
Claimants' motion to amend the claim to conform it to the proof is granted. Defendant's motion to dismiss the claim as it pertains to causes of action arising out of the events of June 11, 2001 and September 5, 2002 is denied.
Where the Court determines that a claimant was injured as a result of defendant's negligence and, further, that this injury was a substantial factor in causing a subsequent accident, the claimant may recover damages for aggravation of his or her original injuries as well as any additional injuries incurred as a result of the later accident. (Goldman v State of New York, 28 AD2d 782; PJI 2:306). In this regard it has been held that where "[t]he court properly determined that claimant's ankle sprain was a substantial cause of claimant's subsequent falls . . . the State is legally responsible for the injuries that resulted from the subsequent falls (see Zipprich v Smith Trucking Co., 2 NY2d 177, 180; Goldman v State of New York, 28 AD2d 782-783)" (DeLany v State of New York, 256 AD2d 1135, 1136). In Murphy v Islat Assocs. Graft Hat Mfg. Co. (264 AD2d 583) the plaintiff alleged that a slip and fall accident in May, 1987 occurred when his knee gave out as a result of a prior August, 1985 injury which caused "acute instability of the knee". The Appellate Division, First Department reversed a judgment entered upon a verdict in favor of the plaintiff stating:
In his testimony regarding the Tarrytown accident in 1987, plaintiff stated that his "leg gave out" and that he slipped and fell. Despite this testimony, on cross-examination, he could not remember how the Tarrytown accident occurred. He then admitted that he tripped on debris before falling. Plaintiff was also confronted with his deposition testimony in the Suffolk County action where, when asked, "Did your knee buckle at any time when you were on the pier?", he responded, "No". In the face of these discrepancies, plaintiff admitted that he could not remember how the accident had happened. Thus, the trial evidence was insufficient to sustain the finding that the original accident caused the subsequent May 1987 Tarrytown accident and the verdict should be set aside and a new trial ordered . . .
(id. at 584).

The Court finds upon the proof presented at trial that the claimant has failed to establish by a preponderance of the evidence that she suffered an injury to either of her knees when she slipped and fell at Upstate Correctional Facility on May 29, 2001. The Court further finds that in any event the proof is insufficient to establish that any such injury was a substantial factor in causing claimant's subsequent falls on June 11, 2001 and September 5, 2002.
Dr. MacLean examined the claimant on June 7, 2001, one week following her fall at Upstate Correctional Facility on May 29, 2001 and four days prior to her second fall on June 11, 2001. The doctor also examined claimant on June 18, 2001 one week subsequent to the June 11, 2001 incident. Dr. MacLean testified that his usual practice is to examine both knees when presented with a patient such as the claimant and there is no reason to believe that he did otherwise in examining the claimant on June 7, 2001. In his office notes of that day Dr. MacLean indicated that the claimant was able to work and carry on her normal daily activities in the period between her fall on May 29, 2001 and the date of his examination. He described the claimant's knees as "fairly symmetrical." No swelling was apparent and the notes do not reflect complaints regarding instability in either knee or the presence of bruising, both of which the doctor confirmed would likely have been included in his report. A Drawer test (posterior instability) and varus-valgus stretching (lateral instability) which Dr. MacLean described as procedures used to determine the existence and extent of knee instability were both negative. With regard to claimant's left knee, a slight pop and grimace during the McMurray test indicated a "possible mild meniscal injury". Some "mild tenderness" was noted along the lateral joint line, presumably of claimant's left knee. The results of an X ray of claimant's left knee which Dr. MacLean ordered on June 7, 2001 "to look for underlying arthritis" were negative; no effusion was identified and no significant abnormalities were seen.
Subsequent office notes of Drs. MacLean, Cody and Abate are either silent as to any left knee injury or note only claimant's subjective complaints with no objective medical findings to support a claim of injury. In fact when claimant was cross-examined at trial about the healing of her left knee she responded "[t]here was never an injury to my left knee. What ... what could be healed?" (T 141).
Claimant's right knee is not mentioned in Dr. MacLean's office notes of June 7, 2001. In fact, the only proof even suggesting that the claimant's right knee was injured on May 29, 2001 is the claimant's own conjecture, related in Dr. MacLean's office notes of August 9, 2001 which state in relevant part:
To recap she had fallen hard on her left knee and probably tweaked her right knee at the same time. When I had seen her soon after that injury, we had obtained an x-ray which was fine. Her right knee became increasingly problematic subsequent to that and her thinking was that the left knee took the brunt of the injury, but the right knee may have been twisted at the same time.

Claimant did not seek medical attention between the time of her June 7, 2001 office visit with Dr. MacLean and her June 11, 2001 fall and no credible proof was presented at trial suggesting any instability or other knee problem during that period of time.
With regard to the claimant's second fall on June 11, 2001 the Champlain Valley Physicians Hospital minimum data sheet reflects that claimant "fell while walking down steep embankment" and presented complaints of right arm and neck pain. Although another page of the ER records from June 12, 2001 appears to refer to claimant's knee giving out several words within the subject passage, which are necessary for a clear understanding of its meaning, are illegible, rendering the entry of minimal probative value. Importantly, the emergency room report prepared by Josh Schwartzberg, D.O. mentions that claimant had a "history of recent orthopedic evaluation for knee problems" but makes no other mention of claimant's knees including any complaint that one or both of her knees buckled prior to her fall.
Dr. MacLean examined the claimant on June 18, 2001. The office notes for that date provide a description of claimant's fall on June 11, 2001 but do not include any reference to claimant's knees buckling or giving out prior to her fall. Dr. MacLean testified that he would in all likelihood have included any such statement by the claimant had such a statement been made. In fact, the only reference to claimant's knees in the June 18, 2001 office notes is the following: "Her DTRs are 1+ ankles, 1+ knees, 2+ BJ, BRJ, 1+ TJ, all symmetric."
While on direct examination Dr. MacLean appeared to opine with a reasonable degree of medical certainty that an injury sustained to one or both of claimant's knees in her fall at Upstate Correctional Facility on May 29, 2001 caused her subsequent accident on June 11, 2001 he qualified that opinion on cross-examination. The following colloquy is representative:
Q. And you maintain that you can state with a reasonable degree of medical certainty that it was a problem with her knee, either right or left, that caused her to fall on June 11th, 2001?
A. Well, I guess it's hard to say that with a degree of medical certainty.
Q. Well, it's –
A. I think it's, it's a plausible thing based on what has transpired, but I guess I can't say with a strong degree of medical certainty that it is related with the knee that we have (T 97-98).

The proof at trial failed to establish that the claimant sustained any medically significant injury to her knees on May 29, 2001. Even had the fact of injury been established, the medical proof offered was inadequate to connect any such injury to the claimant's fall on June 11, 2001. Although Dr. MacLean and the other medical witnesses testified that it is possible the claimant suffered an injury which became symptomatic over time, and could therefore have contributed to her fall on June 11, 2001, they were unable to state with the requisite certainty that the symptoms experienced by the claimant (buckling or weakness in her knees) on June 11, 2001 were related to an injury incurred in her fall on May 29, 2001. In addition, the medical opinions offered rely significantly, if not exclusively, upon the subjective medical complaints of the claimant making them of limited value.
It is well settled that "[w]here, as here, there is more than one possible cause of a claimant's injury and the defendants are not responsible for one or more of those causes, there can be no recovery because the claimant cannot establish that the defendants' negligence caused his or her injury (see Wendt v Jacus, 288 AD2d 889, 890, lv denied 98 NY2d 604; Wiwigac v Snedaker, 282 AD2d 801, 803-804; see also Blanco v Oliveri, 304 AD2d 599, 600; see generally Bernstein v City of New York, 69 NY2d 1020, 1021-1022)" (Love v New York State Thruway Auth., 17 AD3d 1000, 1002). "A plaintiff is not required to exclude every other possible cause, but need only offer evidence from which proximate cause may be reasonably inferred. Plaintiff's burden of proof on this issue is satisfied if the possibility of another explanation for the event is sufficiently remote or technical 'to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence' [citations omitted] (Burgos v Aqueduct Realty Corp., 92 NY2d 544, 550)" (Brewster v Prince Apts., 264 AD2d 611, 613, appeal dismissed 94 NY2d 875). The claimant described the circumstances surrounding her fall on June 11, 2001 in her direct testimony as follows (T 26 - 27):
A. I was coming back to the office for a staff meeting, which was at track level where the conference room and my office was located. I was not – I was a little avoiding the stairs the past – the – the few days before that just to get the swelling to go down in my knee, so I took a shortcut. I went down a slope – I parked my car, I went down a slope. There was a rock at the bottom of the slope. I felt myself slipping on it. I stiffened up my entire body to try to prevent myself from slipping. I felt a weakness in my knees, I – one or both, and I have no idea which it is, felt like they were giving way, and I fell uphill onto my right shoulder.

During her somewhat contentious cross-examination the claimant addressed more specifically the involvement of her knees, if any, in her fall of June 11, 2001:
Q. Despite your contention that you fell as a result – well, I don't even know. Why don't you just tell me, ma'am, what caused you to fall on June 11th –
A. I don't know.
Q. – 2001?
A. I simply described that I was walking down a hill, a slope, and that there was a rock at the bottom of it, and that my knees – I stiffened – it's a normal reaction, I stiffened up my entire – my entire body in order to try and prevent the fall, and my knees gave way, one or both, not sure which (T 131).
Q. Despite your contention that the fall may have had something to do with either of your knees, is that fair to say?
A. I don't believe I gave that information to anybody.
Q. Okay. Okay. Fine. I'll back off of that. Would you indicate then – would you say then that the fall did not have something to do with either of your knees?
A. I can't say that either, Mr. King, not conclusively (T 131-T 132).

The description of the events surrounding her fall on June 11, 2001 contained in both claimant's deposition testimony and her testimony at trial failed to establish that the claimant fell as a result of her knee(s) buckling or giving out. Claimant was repeatedly unable to identify which knee (or both) buckled or gave way and could not explain the specific role, if any, a problem with her knees played in causing her June 11, 2001 fall. More importantly, claimant admittedly slipped on a rock prior to her fall. She further admitted that she encountered the rock while taking a shortcut down a slope or embankment while on her way to a staff meeting for which she was fifteen minutes late. Upon these facts it is as likely claimant fell and was injured because she lost her balance when she slipped on the rock as it is her fall was caused, in whole or in part, by a weakness or buckling in her knees attributable to her previous fall on May 29, 2001.
While the September 5, 2002 slip and fall on her home stairs may have resulted from slippage of her right knee as the claimant asserts, her intervening fall on June 11, 2001 for which the defendant is not liable may well have caused or contributed to both the instability of her knee and the resulting fall. Nothing in this record supports a causal connection between the May 29, 2001 incident from which no objectively determined medical injury resulted and the September 5, 2002 fall.
The Court finds the claimant failed at trial to establish by a preponderance of the credible evidence that she suffered a compensable injury on May 29, 2001 or that the defendant is liable for injuries sustained by her on June 11, 2001 and September 5, 2002. The claim is, therefore, dismissed.
The derivative claim of Charles L. Schenck III likewise fails for the reasons set forth above. Judgment dismissing the claim shall be entered in accord with this decision.

August 19, 2005
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims




[1]References to claimant in the singular refer to claimant Gale White unless otherwise noted.
[2]References to "T" refer to pages of the trial transcript.