New York State Court of Claims

New York State Court of Claims

V. THE STATE OF NEW YORK, #2007-009-177, Claim No. 107158


In this damages decision, the Court awarded claimant the sum of $135,166.95 in total damages.

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):

Claimant’s attorney:
BY: Michael V. DeSantis, Esq.,Of Counsel.
Defendant’s attorney:
Attorney General
BY: Patricia M. Bordonaro, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
September 20, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


In a Decision and Order of this Court dated March 29, 2006[1], claimants were granted partial summary judgment on the issue of liability pursuant to Labor Law § 240(1). Since comparative negligence is not a defense under § 240(1), the State was found 100% liable for the injuries suffered by claimant Robert Tennant in an accident which occurred on November 4, 2002, on State-owned property in the Town of McGraw. A trial pertaining to damages has since been held, and this decision is limited solely to that issue.

At the damages trial, both Robert Tennant and Penney Tennant, the claimants herein, gave testimony, as well as Karen M. Clark, the Business Office Manager at Cortland Regional Medical Center. Testimony from expert medical witnesses for both claimant and defendant was taken prior to the damages trial. Video testimony of claimants’ expert Kye H. Bang, M.D., was received into evidence (see Exhibits 19 and 20), and a transcript of his testimony was also received into evidence (see Exhibit 18). Similarly, video testimony of defendant’s medical expert, Patricia J. Numann, M.D., was also received into evidence (see Exhibits D and E), as well as a transcript of her testimony (see Exhibit F).

Claimant Robert Tennant[2] testified that he was 41 years of age at the time of the damages trial, and had been working as a roofer for most of his life, since he was 17 years of age. He started working for Murphy Construction in 1999, and was working for this employer at the time of his accident on November 4, 2002. He does not recall much about the actual fall, except that he fell several feet from a metal roof. He did recollect that he stood up following his fall, felt pain on the left side of his body, and that he had some trouble breathing. He further testified that he did not remember either going to the hospital for medical treatment or the first few days of his hospitalization. After several days, he finally became aware of his surroundings, and realized that he had been hospitalized. He felt pain on his left side, and any movement or coughing was extremely painful. He also testified that he was only able to take short breaths, due to chest pain.

While in the hospital, his medical providers encouraged him to sit up and walk, to prevent pneumonia from settling into his chest. He was also given respiratory therapy to assist with his breathing.

Claimant testified that he spent eight days in the hospital following his accident, and that he was discharged on November 12, 2002. He testified, however, that his breathing was still labored at the time of discharge, and he was still coughing continually at the time of this discharge. After his discharge from the hospital, Mr. Tennant testified, he needed assistance to walk around his home. He was unable to get in or out of bed, and therefore slept on the couch for approximately three to four weeks. He testified that he continued to be in pain, and as a result, he spent the vast majority of his time on the couch.

Claimant testified that he continued to slowly improve, and he was allowed to return to work on February 3, 2003. Although he did not have any specific restrictions, claimant testified that his duties were reduced for a time, and that he did not do any lifting whatsoever.

Claimant also testified that he experienced a loss of marital relations with his wife for approximately three to four months, and that relations did not become normal for approximately six to eight months. Claimant testified that he was unable to provide any assistance with housekeeping duties for approximately two to four months after the accident.

Under cross-examination, claimant confirmed that during the time that he was out of work following his accident, he usually made less money than in other months, since there usually was not as much roofing work available during the winter months.

Penney Tennant, Mr. Tennant’s wife and also a claimant herein, testified that during the initial days following the accident, Mr. Tennant was heavily medicated, and that he was either sleeping or unconscious during that time. She testified that Mr. Tennant was in the intensive care unit at the hospital for approximately three or four days, and during that time he was in and out of consciousness, and was constantly moaning due to the pain from his injuries, despite the pain medication that he was receiving.

Mrs. Tennant confirmed that upon his discharge, Mr. Tennant needed assistance while walking, and that he spent approximately one month sleeping on the couch because he was unable to get in and out of bed.

Karen M. Clark, the Business Office Manager at Cortland Regional Medical Center, testified with respect to the medical billing procedures of the hospital. She stated that the medical bills were submitted to the State Insurance Fund - Mr. Tennant’s medical insurance carrier through Workers’ Compensation Benefits on this claim. Ms. Clark testified that although there had been a dispute as to the amount of payment from the State Insurance Fund, the Fund eventually made total payment to the hospital on behalf of Mr. Tennant in the amount of $42,396.95. She testified that this total represented payment for Mr. Tennant’s admission and stay in the hospital, as well as for five subsequent out-patient visits. Ms. Clark further testified that the amount paid by the State Insurance Fund was a fair and reasonable amount for the services provided.

Kye H. Bang, M.D., claimant’s treating physician, provided medical testimony on behalf of the claimant. Dr. Bang first treated claimant on November 4, 2002, the date of claimant’s accident. Claimant complained of pain on the left side of his chest and abdomen, as well as difficulty breathing. A CT-scan was performed on that date, which indicated that claimant had suffered a rupture in the lower part of his spleen, and there also were indications of bleeding within and around the spleen. An x-ray was also performed on that date, which showed three broken ribs on claimant’s left side (the seventh through ninth ribs). Based upon a urine test, Dr. Bang was of the opinion that claimant also suffered a possible contusion of his left kidney.

The rupture of the spleen was treated by an embolization of the splenic artery. In this procedure, a metallic coil is placed into the artery, which causes a blood clot to form and block the artery, and stops the bleeding in the spleen. This procedure is utilized as an alternative to removal of the spleen. Claimant’s condition remained stable following the procedure, and the spleen function eventually returned to normal.

Dr. Bang also testified that claimant, during the eight days in which he was hospitalized, was treated with painkilling medication, including morphine, to alleviate the pain.

Additionally, Dr. Bang testified that claimant, during his hospitalization, developed pneumonia, which he attributed to the fact that claimant could not fully expand his lungs because of the pain caused by his fractured ribs, even though he was receiving strong painkilling medication. Dr. Bang referred to a chest x-ray which was taken on November 9, 2002 (Exhibit 4) as evidence of the pneumonia, which was treated with antibiotics.

Dr. Bang testified that after eight days in the hospital, claimant was discharged on November 12, 2002, at which time he was given a prescription for Darvocet for relief of his pain. Following his discharge, claimant met with Dr. Bang for an office appointment on November 14, 2002, at which time claimant still complained of pain on the left side of his lower chest, and Dr. Bang continued the prescription for Darvocet. Claimant then appeared for several office visits in the succeeding weeks, and following his office visit of January 30, 2003, Dr. Bang authorized claimant to return to work as of February 3, 2003. Claimant was finally discharged from any further treatment on May 1, 2003. Dr. Bang noted that claimant was not experiencing any lingering pain on his left side, nor was he experiencing any problems with breathing.

Dr. Bang concluded that the rupture of claimant’s spleen and his fractured ribs were the direct result of the trauma caused by claimant’s fall. Furthermore, Dr. Bang was of the opinion that the pneumonia was secondary to the fractured ribs, and therefore was also a direct consequence of claimant’s fall.

Dr. Bang testified that, in his opinion, claimant was totally disabled from November 4, 2002 until he was cleared to return to work on February 3, 2003. Finally, Dr. Bang testified that claimant had not suffered any permanent injuries by this accident, in that he had fully recovered from the injuries which he described.

Patricia J. Numann, M.D., testified as defendant’s medical expert. Based upon her review of the medical records, Dr. Numann testified that claimant suffered fractures of his eighth and ninth left ribs, with a questionable fracture of his seventh rib. Additionally, claimant suffered a laceration of his spleen, a bruise on his pancreas, and a bruise on his kidney on the left side. Dr. Numann also described the procedure which claimant underwent to stop the bleeding in his spleen.

Dr. Numann’s testimony regarding these injuries, and the medical treatment received by claimant, was very similar to the testimony of claimant’s witness, Dr. Bang.

Contrary to the testimony of Dr. Bang, however, Dr. Numann testified that the breathing difficulties suffered by claimant while he was hospitalized were consistent with a condition known as atelectasis, rather than pneumonia. Atelectasis is a condition often found with persons who have suffered broken ribs, when they do not breathe deep enough to get air into the air sacs at the bottom of the lungs. Dr. Numann testified that pneumonia, on the other hand, is characterized by an elevated white blood count, fever, and bacteria in the sputum, and that there was no evidence in the medical records that claimant exhibited any of these symptoms.

While Dr. Numann acknowledges that the medical report of November 6, 2002 (Exhibit B) indicates a pleural effusion on the left lung, this effusion was small and was without definite signs of pneumonia. Dr. Numann further testified that the medical report of November 14, 2002 indicates that the left effusion had been resolved, and a CT report of December 3, 2002 indicates that the lung

bases were clear, with no sign of the atelectasis. Furthermore, this CT report indicates that the spleen was healing and functioning normally.

Finally, Dr. Numann testified that claimant suffered no permanent residual injury as a result of the accident.

Based upon this trial testimony, as well as the medical records, there is no dispute that claimant suffered at least two (and possibly three) broken ribs and a lacerated spleen as the direct result of his fall. As a result, claimant was hospitalized for a period of eight days for treatment of his injuries, during which time claimant experienced significant pain, even while he was receiving morphine, a strong pain medication. After his discharge from the hospital, claimant continued to experience pain on his left side from the broken ribs, for which he was prescribed Darvocet. Both medical experts agreed that the broken ribs were a competent source of significant pain, and that the broken ribs made it extremely difficult for claimant to breathe normally and remain comfortable.

Furthermore, it is also undisputed that claimant suffered a laceration of his spleen. Even though Dr. Numann testified that claimant would not have experienced any pain as a direct result of this injury, claimant was required to undergo a separate medical procedure, while hospitalized, to preserve his spleen.

Testimony further established that following his discharge from the hospital, claimant was essentially immobile for several weeks, as his condition made it too painful for him to walk or move. Additionally, while hospitalized, claimant developed pneumonia-like symptoms due to his difficulties in breathing, which both medical experts attributed to the broken ribs suffered in this accident. Whether or not this condition is viewed as pneumonia or atelectasis, there is no question that claimant experienced difficulties in breathing for a considerable period of time due to the pain caused by the rib fractures.

Based on the foregoing findings and the entire trial record, the Court finds that claimant has suffered damages of $80,000.00 for past pain and suffering.

The testimony from claimant and both medical experts establishes that claimant fully recovered from his injuries, and has suffered no permanent disability or residual effects from this accident. As a result, claimant does not seek, nor does this Court award, any sum for future pain and suffering.

Testimony also established that Penney Tennant attended to her husband’s special needs when he was discharged from the hospital. She provided him with his pain medication, she assisted him in walking, and she performed the majority of the housework during his recuperation. Testimony from both Mr. and Mrs. Tennant established that they experienced a loss of marital relations for approximately three to four months. Based on the foregoing, therefore, the Court hereby awards the sum of $7,500.00 on Penney Tennant’s derivative claim for loss of consortium.

Testimony from Karen M. Clark established that the State Insurance Fund (the insurance carrier for Workers’ Compensation benefits) was billed the total amount of $42,396.95 for medical services provided to claimant for the period of his hospitalization from November 4, 2002 through November 12, 2002, including some minor charges for subsequent outpatient services. Although there was some testimony that claimant, if he had been uninsured, would have been billed a different and lower amount, Ms. Clark testified that the amount billed through the State Insurance Fund, after a billing dispute, was ultimately paid by the State Insurance Fund in full satisfaction of the hospital’s charges. She further testified that this amount was a fair and reasonable amount based upon recognized standards.

Additionally, during his testimony Dr. Bang reviewed his bill for medical services provided to claimant in the amount of $1,370.00.

Based on the foregoing, therefore, the Court finds that the sum paid to Cortland Regional Medical Center by the State Insurance Fund in the amount of $42,396.95 represents a fair and reasonable amount for medical expenses. The Court further finds that the $1,370.00 representing the bill from Dr. Bang is also fair and reasonable. Accordingly, the Court hereby awards claimants the sum of $43,766.95 for medical expenses incurred in this claim.

Claimant also established that he was completely disabled from the date of his accident on November 4, 2002 until he was cleared to return to work as of February 3, 2003. Claimant was therefore disabled and unable to work for a period of approximately 13 weeks. To establish his income, claimant produced his 2002 income tax return (Exhibit 17), as well as his W-2 Forms for that year (Exhibit 15). These records established that claimant earned the sum of $11,695.50 in 2002 and also received unemployment compensation totaling $5,424.00 for that year. Taking into consideration the fact that claimant did not work for the last two months of 2002 due to the injuries suffered by him in this accident, claimant submits that his average weekly wage for 2002 is approximately $400.00 per week. However, claimant acknowledged under cross-examination that as a roofer, he does not have as much roofing work available during the winter months, and admitted that his wages would have been lower during the time that he was out of work due to his injuries (November, 2002 - January, 2003). Accordingly, based upon the foregoing, the Court awards claimant the sum of $3,900.00 for his lost wages.

In sum, based upon the foregoing, the Court hereby makes the following awards:
Past pain and suffering $80,000.00
Loss of consortium $ 7,500.00
Medical Expenses $43,766.95
Lost Wages $ 3,900.00

The amount awarded herein shall carry interest at the rate of 9% per year from the date of the determination of liability on March 29, 2006 (Dingle v Prudential Prop. & Cas. Ins. Co., 85 NY2d 657; Love v State of New York, 78 NY2d 540). Additionally, to the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act, § 11-a(2).


September 20, 2007
Syracuse, New York

Judge of the Court of Claims

[1]. Tennant v State of New York, Ct Cl, March 29, 2006, Midey, J., Claim No. 107158, Motion No. M-70824 and Cross Motion No. CM-70857, [UID #2006-009-020]). Unpublished decisions and selected orders of the Court of Claims are available via the Internet at
[2]. The claim of Penney Tennant is derivative in nature. Therefore, all references to claimant, unless otherwise specified, are to Robert Tennant.