New York State Court of Claims

New York State Court of Claims

MEDINA v. THE STATE OF NEW YORK, #2007-029-036, Claim No. 102349


Synopsis


Court finds damages of $325,000 for severe laceration of hand.

Case Information

UID:
2007-029-036
Claimant(s):
JOSE MEDINA
Claimant short name:
MEDINA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102349
Motion number(s):

Cross-motion number(s):

Judge:
STEPHEN J. MIGNANO
Claimant’s attorney:
ADAM M. THOMPSON, ESQ.
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Dewey Lee, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 19, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

In the decision rendered after the liability portion of the trial of this personal injury claim,[1] the negligence of both defendant and claimant was found to be the proximate cause of injuries sustained by claimant while closing a window at Green Haven Correctional Facility on February 11, 1999. In accordance with that decision, an interlocutory judgment was entered on March 4, 2005 apportioning liability at 60% to defendant and 40% to claimant. This decision follows the damages portion of the trial.

Claimant testified that his right hand went through the glass of the window he was opening and the hand was “split open”[2] along its palm from the wrist to the area between his second and third digits. He was taken to the facility’s infirmary where the hand was wrapped and from there was taken to St. Francis Hospital where he was seen by a doctor who performed surgery a few hours later. He was returned to the correctional facility the same day.

Claimant advised that he was prescribed pain medication, told not to use the hand for eight days, instructed on physical therapy and given a “plastic hand” to wear over the wound for protection. He spent eight days in the Green Haven infirmary, during which time he was given pain medication which helped “a little,” and was then returned to general population. He received physical therapy at Green Haven and also periodically returned to St. Francis Hospital for therapy. Therapy continued, on a biweekly basis, until sometime in 2000 or 2001 but claimant alleged it was ineffectual.

According to claimant, he is unable to engage in several pre-accident activities he enjoyed. He stated he has no feeling in his fingers and is unable to properly grip a pen or paintbrush and can no longer paint a straight line, which prevents him from doing artwork. He claimed to have been a champion weightlifter within the correction system but is no longer able to perform at his pre-accident level due to inability to properly grip the weights. He also has difficulty washing his clothes and gripping a broom or mop. Prior to the accident, he was assigned as a cook at the correctional facility, which he stated provided him with the top level of pay available to inmates, but following the accident he was assigned as a porter, earning half the amount of money. Five years after the accident, he still suffers from limited use, and pain, in his right hand.

Prior to the subject incident, claimant injured his right hand in a stabbing incident, but he alleged that he had a full recovery from that injury and it did not affect his subsequent activities. He testified that he was previously incarcerated for an armed robbery conviction from 1971 through 1974, was out of custody for one year, and since 1975 has been serving a sentence of 50 years to life for a double-murder conviction.

Mark McMahon, M.D., a board-certified orthopedic surgeon specializing in hand surgery, testified on behalf of claimant. Based on his review of claimant’s medical records [3], Dr. McMahon described claimant’s surgery, which was performed by Dr. D. Tesser, a plastic surgeon specializing in hands. [4] He noted that the surgeon found complete transection of the ulnar digital nerve of the index finger and the radial digital nerve of the third finger. The artery that supplies the same two fingers with blood and the volar plate of the M-P joint (a ligament extending from the base of the first finger into the palm) were also transected. Dr. McMahon described the surgery as very complicated. He testified that it was performed under a microscope to repair a deep T-shaped wound that extended into the first finger’s joint, an injury that was necessarily very painful. The doctor noted that the A-1 pulley of the flexor tendons of the first finger had been injured, and the surgeon decided to completely release the pulley. He stated that the permanent release of the pulley would negatively affect claimant’s strength, movement and dexterity.

Dr. McMahon stated that claimant underwent physical therapy after surgery to improve the hand’s strength, motion and dexterity. The physical therapy continued for two years and consisted of putting the hand into melted paraffin wax to warm the tissues, squeezing a ball to increase range of motion and strength, and other exercises to increase the hand’s strength and dexterity. As time went on, the sensation in claimant’s hand did not return adequately, which the doctor stated was not surprising with a wound of this type. He also suffered from hypersensitivity of the scarred areas, a common consequence when nerves are cut, and stiffness of the joints of the middle finger with weakness of the hand in general. He noted that claimant’s condition reached a plateau and did not improve further.

Dr. McMahon examined claimant on May 3, 2006. He noted a four-inch scar across the palm and a three-inch extension that came through the web space between the fingers and onto the back of the hand. The scars were very sensitive. The index and middle fingers were somewhat atrophied, a sign of weakness and an indication that the ability to use the fingers was limited. He found that the two fingers lacked three degrees of extension and that his ability to flex the fingers (move them downward towards the palm) was significantly limited. Claimant had no sensation to light touch on the two fingers. In terms of strength, he evaluated the index finger at 3+ out of 5 and the middle finger 4 out of 5, and he evaluated claimant’s ability to grip at 4 out of 5.

According to Dr. McMahon, claimant has a significant loss of range of motion and strength and a loss of sensation. He observed that these symptoms would limit his ability to perform activities that require dexterity, such as writing or cooking. He described claimant’s prognosis as poor, with a permanently stiff, weak and numb hand, and opined that his range of motion is likely to deteriorate over time. He thought that periodic physical therapy, perhaps bimonthly, could help maintain claimant’s current condition, but not improve it. He also will continue to require pain medication and anti-inflammatory medication. On the positive side, he thought that claimant should still be able to lift weights, and noted that such activity was often prescribed as therapy for this type of injury. Dr. McMahon did not think claimant would regain his ability to grip a paintbrush. He remembered claimant stating he wears protection over his hand because it is hypersensitive, that he could not make a fist and that he had great difficulty writing.

Andrew Pitcher, a correction officer at Sullivan Correctional Facility, testified for the defense. He stated he was an officer on claimant’s housing unit between 2003 and 2005, during which time claimant was a porter on the unit. As such, he was assigned to sweep and mop floors, take out the trash and operate a floor-buffing machine, a 30- to 40-pound machine that required him to use his fingers in a trigger-like motion and use his hands to guide the machine around the room. He also was able to carry plastic buckets holding four gallons of water up and down stairs and tie and carry large trash bags. The officer could not recall claimant ever complaining about his hands or claiming he could not do something because of a problem with his hands. He said that claimant was probably his best porter and described him as a “workhorse.”

Dennis Harris, an employee at Sullivan Correctional Facility assigned as supervisor of recreational activities, testified that he observed claimant lifting weights on a daily basis, doing “regular workout routines,” using both hands. He also observed claimant playing modified fastpitch softball, pitching with his right hand. He described claimant as the best pitcher in the facility, able to throw different pitches with differing movement of the ball. Harris’s observations covered the period from 2003 through the present. He was not familiar with claimant’s activities prior to the 1999 injury or during the period from 1999 through 2003. Harris conceded that he did not observe claimant closely enough to notice if he was not using certain fingers.

At trial, claimant moved to preclude the testimony of Pitcher and Harris because the identities of these witnesses had not been disclosed to claimant prior to the trial. Decision on that motion was reserved, and it is now denied. As was noted at trial, neither C.O. was a witness to the “alleged incident” which was what claimant demanded in his disclosure demand. Moreover, both witnesses simply described conduct of the claimant, nothing that would be in any way surprising, and admission of their testimony was not unfair to claimant, who effectively addressed it on rebuttal testimony.

Correction Officer Arthur Cash, also a correction officer at Sullivan Correctional Facility, testified that he videotaped claimant while he was working out. Four videotapes [5], each taken during May, 2005, showed claimant lifting weights outdoors in the prison yard. Cash testified that he made the tapes from the guard tower. Cash, who acknowledged that he was not a weight lifter, estimated that claimant was lifting 20-50 pounds with each hand. He agreed with claimant’s counsel that it was obvious, at times, that claimant’s index and middle finger of his right hand, unlike the fingers of his left hand, were extended and not wrapped around the barbells.

Addressing these various contentions on rebuttal, claimant testified that the water bucket he used weighed about four to five pounds half full, which is how he used it, and he noted what was apparent to the court from viewing the videotapes: that there was significant difference between the way he gripped the barbells with his right and left hands. Most important, defendant presented no medical evidence to dispute Dr. McMahon’s description of the extent of claimant’s wound and his surgery, or his conclusions that claimant will not recover further from his injury, that his use of his right hand will be limited for the rest of his life and he will continue to suffer pain in the hand for the rest of his life. The testimony of defendant’s witnesses did not, in any meaningful way, impair these conclusions.

Towards the end of the trial, defendant alluded to three pages from claimant’s medical record that indicate that a CT scan of his chest on February 22, 2006 showed an extremely dangerous medical condition, and a follow-up biopsy report dated March 24, 2006 confirmed this impression. Further discussion of this condition were limited by the fact that the records were certified as complete as of April 14, 2006, a year and three months prior to trial. On April 3, 2006, a doctor’s written impression suggested surgery “ASAP.” An April 5 note refers to “pre-op tests”, and two April 12 notes state that a doctor spoke with a pulmonologist at “AMC” (presumably Albany Medical Center, where the CT scan and biopsy were performed) and the doctor “was advised to admit inmate directly to AMC for ... possible surgery if viable.” The facility received a call that day that a bed was available at AMC and that claimant was going to be transferred there that evening.[6]

There were no further references in the medical records to claimant’s condition, nor was there any testimony on the subject. Claimant was not asked whether the diagnosis was confirmed, whether he had surgery, or anything whatsoever about his medical condition other than the previously-described testimony relating to his hand injury. Although defendant, in its post-trial submission, made reference to statistics showing that the five-year survival rate for males of claimant’s age with the same diagnosis is 15.6%, in view of the almost complete, and unexplained, absence of evidence as to claimant’s condition, treatment or prognosis, this raw statistic has essentially no relevance to the assessment of damages herein.

Life expectancy tables submitted by both parties showed that the statistical life expectancy of a healthy 53 year-old male is approximately 25 years. Just as relevant was claimant’s testimony that he began serving a 50-to-life sentence in 1975, indicating he will spend the next 18 years in State custody, a situation that will limit his activities as much as the injury itself.

Finally, the court notes that there was no claim for lost wages or impairment of earning capacity – claimant’s bill of particulars specifically so states – and defendant’s motion to strike claimant’s testimony as to his earnings prior to his incarceration is now granted.

The court finds that claimant is entitled to an award of damages of $108,000 for past pain and suffering and limitation of use of his hand and $217,000 for future pain and suffering and limitation of use. Reducing those figures 40% to account for claimant’s contributory fault as found in the court’s prior decision, claimant’s damages amount to $195,000 ($64,800 for past pain and suffering and limitation of use of his hand and $130,200 for future pain and suffering and limitation of use). The clerk of the court is directed to enter judgment for said amount, together with interest from February 15, 2005, the date of the liability decision and further providing that claimant may recover any filing fee that he actually paid.


September 19, 2007
White Plains, New York

HON. STEPHEN J. MIGNANO
Judge of the Court of Claims




[1].UID No. 2005-029-468; www.nyscourtofclaims.state.ny.us/decisions.
[2].Unless otherwise indicated, all quotations are from the electronically recorded trial record.
[3].Exhibit 1.
[4].See generally, Id. pp. 118-119.
[5].Exhibits E, F, G and H.
[6].All quotations are from unnumbered pages of Exhibit I.