New York State Court of Claims

New York State Court of Claims

PEREZ v. THE STATE OF NEW YORK, #2006-010-026, Claim No. 104161-A


Award for inmate claimant’s injury to middle finger. She suffered from pain and loss of range of motion.

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:
JOHN D. B. LEWIS, ESQ. & GARY E. DIVIS, ESQ.By: Gary E. Divis, Esq
Defendant’s attorney:
Attorney General for the State of New York
By: Gwendolyn Hatcher, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 27, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

In a Decision, dated August 26, 2005, and filed October 4, 2005, this Court determined that defendant was 100 percent liable for the personal injuries claimant sustained on July 2, 1999 during her incarceration at Bayview Correctional Facility (Bayview). This Decision pertains to the issue of damages.
On July 2, 1999, claimant was performing an outside work detail with another inmate and, in the process of moving a garbage-filled dumpster, claimant’s right hand became caught between the dumpster and a pole. It was later determined that claimant sustained a fracture to her middle finger.
Claimant testified that, at the time of her accident, she momentarily blacked out from the pain. Claimant was bleeding and her hand was swollen and appeared black and blue. Claimant described her pain as beyond 10 on the pain chart. She was taken to the facility infirmary where the wound was cleansed with peroxide. She was then transported to Saint Vincent’s Hospital where x-rays were taken and antibiotics were administered intravenously. Claimant sustained a fracture to her middle finger. A splint was applied and positioned claimant’s hand cupped in a 30 to 40 degree angle. Claimant testified that she returned to her cell and had difficulty sleeping because the pain was excruciating. In mid-July, she was fitted with a new splint; this procedure caused claimant to cry in pain. In August, Dr. Magill, an orthopedist, removed the splint and chartered a course of physical therapy. On November 1, 1999, claimant had the first of approximately 10 to 12 physical therapy sessions with Jorma Huttunen. According to claimant, the physical therapy was painful and did not result in any improvement. Claimant was seen by an occupational physical therapist, Jeanette Bilicznianski. Claimant had four sessions with Bilicznianski, ending in March 2000, and that concluded claimant’s physical therapy. The only other treatment claimant received was Percocet for pain.
Dr. Rhodina Williams was in charge of claimant’s medical care at Bayview. Claimant’s activity was restricted from July 7, 1999 to September 7, 1999. She was not permitted to go to the gym or to perform any tasks such as mopping, grounds work, or heavy lifting (Ex. 1, p 2).
Claimant described her mental state in March 2000 as disappointed and depressed because her hand had not improved. According to claimant, her condition has remained the same. She continues to feel hopeless and inadequate. Claimant has scars on the top of her hand. She also testified that she cannot make a fist or touch her index, middle, and ring fingers to her palm and that when she tries to do so she experiences pain in all of her fingers, except her thumb. She explained that her pain level varied and that heavy activity causes her shooting pain up her wrist, swelling, and discoloration on the top of her hand. Claimant has adapted her daily activities to accommodate her pain and restrictions in movement. During household chores, she takes frequent breaks because of swelling. She has been forced to use her left hand to do the things she once did with her right hand, such as turn newspaper pages, use toilet paper, and open jars. She has difficulty writing script and cannot type.
Dr. Gary Bromley offered expert testimony on behalf of claimant. Bromley, a graduate of the University of Rochester and the Cornell University Medical College, is board certified in plastic surgery and hand surgery. Bromley opined that claimant’s linear non-displaced fracture of the proximal phalanx,
as noted in her medical records, was related to the injury sustained July 2, 1999. In his view, a fracture of one finger affects all the fingers because they work together. Bromley testified that claimant had stiffening of her hand, which is secondary to scar formation. He explained that, when a hand is fractured, healing occurs and scar tissue forms which limits motion around the ligaments.
Bromley examined claimant on January 26, 2006. He noted that claimant’s gripping strength was 50 pounds in her right hand and 55 pounds in her left hand, despite the fact that she is right hand dominant. He assessed claimant’s active range of motion for the joints of her four fingers and determined that they were limited in several respects. Bromley explained that each joint has its own range of motion. Additionally, claimant could not bring her fingers down to her palm. Based upon this examination and his review of claimant’s records, Bromley concluded that claimant did not have full functioning of her hand. Assessing the degree of loss and applying the standards set forth in New York State Workers’ Compensation guidelines, Bromley assigned a loss of use of 25 percent to claimant’s hand. Using what he described as medically accepted broad standards for functional loss, which range from mild to severe, he characterized claimant’s loss as moderate and permanent. Bromley conceded that categorizing the degree of loss is subjective. He evaluated the number of activities during the day where claimant has restricted use of her hand.
Dr. Salvatore Lorenzo offered expert testimony on behalf of defendant. Lorenzo, a graduate of the University of Pennsylvania of the New York University School of Medicine, is board certified in orthopedic surgery and hand surgery. He characterized claimant’s injury as a trivial fracture with superficial lacerations. Lorenzo testified that he has treated thousands of patients with claimant’s type of injury and, while there may be residual stiffness, complications are usually minimal. He testified that most people recover full range of motion in two to three weeks and he would not expect long range problems for claimant.
Lorenzo examined claimant on March 16, 2006. Consistent with Bromley’s results, a dynamometer revealed that claimant’s gripping strength was 50 pounds in her right hand and 55 in her left. Lorenzo testified that it is normal for the dominant hand to be approximately 10 percent stronger. Lorenzo’s assessment of claimant’s condition, however, differed form Bromley’s in that Lorenzo found that claimant had full range of passive motion and that there was an “overlay in her restricted active range of motion of the finger” (Ex. A). Lorenzo explained that the term “overlay” meant that he felt claimant was not giving a fair effort to the requested action. Lorenzo testified that claimant had full extension of her middle finger and that, at the very worst, claimant was only one centimeter short of touching her distal palm with her middle finger. In his opinion, the level of function of claimant’s right hand was excellent and did not require any further care.
Based upon Lorenzo’s treatment of thousands of patients with fractures similar to claimant’s, and, given that her injury was seven years old and she could grip at a strength of 50 pounds and had full passive range of motion, Lorenzo suspected that claimant was not truly representing her injury during his examination of her. He also noted that she showed no signs of discomfort when she grabbed the dynamometer.
Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds $90,000 to be reasonable compensation for claimant’s past pain and suffering related to her injury, limited mobility, and resulting scar. Significantly, the Court found the testimony of claimant’s expert to be more convincing than the testimony of defendant’s expert. Notably, while defendant’s expert maintained that most people would recover full range of motion within two to three weeks of the injury, claimant’s splint was not removed until August, more than three weeks post-injury, and claimant clearly did not regain full range of motion. The Court also found that claimant was forthright in her testimony regarding her pain and limited range of motion.
This Court, in its Decision dated August 26, 2005 determined that defendant was 100 percent liable for claimant’s injury sustained on July 2, 1999. Accordingly, claimant is entitled to recover the sum of $90,000 for the injury to her hand with interest from August 26, 2005, 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).
All motions not previously ruled upon are now denied.

November 27, 2006
White Plains, New York

Judge of the Court of Claims

[1]. Bromley explained that such fractures are a straight line where the bones are in normal alignment and the skin is not broken. Claimant’s fracture was on her middle finger and the proximal phalanx refers to the lower portion of the finger.