This matter came on before me for a trial on damages only, after a decision by
the Hon. Ferris D. Lebous dated August 23, 2005, which found that liability
should be apportioned 75% to the State and 25% to Claimants for the injuries
sustained as a result of the accident of August 23, 2001.
The testimony established that Claimant Bert
suffered an extremely painful injury
to his right ankle. I will summarize in chronological fashion the medical care
and treatment he received, review the pain and discomfort he has endured and may
continue to endure, all as proximately caused by the accident for which the
Defendant has been found primarily culpable. Damages will then be allocated, in
accordance with the proportional liability previously established, for Claimant
and derivatively for his wife, Claimant Honey S. Rosenthal.
This injury was incurred when Claimants were delivering their daughter for the
start of her college career. As Claimant exited his van in a campus parking
lot, he stepped down some ten inches with his full weight on his right leg and
ankle into a hole where “the curb would have been,” causing the
injuries complained of. After his fall he sat there for 10 or 15 minutes and
eventually made his way, hobbling and holding on to various trees, railings,
building, etc., from the parking lot to his daughter’s dormitory. An
ambulance was called, ice was applied to his right ankle, and he was transported
by stretcher to Lourdes Hospital in Binghamton. He described screaming in
excruciating pain all the while. After an x-ray, which did not show a fracture,
he was diagnosed with a severe sprain and torn ligaments. With his leg being
quite swollen, his ankle was wrapped, put in an air cast, and he was given
crutches, along with pain medications.
Claimant returned home to Brooklyn late that afternoon, with his wife, Claimant
Honey Rosenthal, driving, and his youngest daughter in the front of the family
vehicle, as he lay in the back seat with his feet extended. He tried to cushion
his right ankle, but every bump was very painful. He arrived home, did not go
to work, and after about one week he saw a Dr. Morgan of the Kings Highway
Orthopedic Associates, P.C., who placed his right leg in a hard cast from his
kneecap to his toes, and advised Claimant not to put any weight on his foot.
During this and various periods of his ordeal, Claimant slept alone as any
movement in the bed caused pain and discomfort to his ankle. His wife,
acknowledged to be a restless sleeper, was relegated to the couch.
On September 10, 2001, Claimant was told that another x-ray ostensibly showed
what is now questionably described as a fracture of the right distal
Regardless, Claimant’s right
leg was placed again in a hard cast, and he ambulated with crutches for another
four or five weeks, still unable to return to work. That cast was replaced with
an air cast for another month or so, with Claimant utilizing crutches and then a
cane. Claimant was prescribed anti-inflammatory pills and painkillers.
At all relevant times herein Claimant has been employed as the Executive
Chauffeur of the State Insurance Fund and is the Director of Transportation in
charge of all its vehicles, acting as what he described as the fleet manager.
He chauffeured five different Executive Directors over an 11-year period until
the trial herein. The nature of his injury necessarily affected his ability to
perform his driving/chauffeuring responsibilities.
In January 2002, after feeling a pain running from his ankle to his calf, a
different kind of pain, he saw Dr. Morgan again, was given pain medications and
started using the cane again. An MRI was performed in early April and Claimant
was diagnosed with an osteochondral lesion of the talus, also described as
osteochondral defect, or OCD, with an 8 millimeter lesion in the ankle. After
deferring a surgical option, he tried wearing a hard cast again, for the third
time, from April 15, 2002 until early June. Then, using a cane and engaging in
physical therapy and pool exercise, Claimant was able to return to work, but not
without pain and discomfort, as his job required driving in the stop-and-go
traffic that is indigenous to New York City, and would have to ice his leg every
day when he returned home. He could not walk very far without feeling the
effect of his injury, and continued to see Dr. Morgan intermittently over the
next year or so, having been prescribed anti-inflammatory medications on several
He started treating with Dr. Steven Struhl, a board-certified orthopedic
surgeon, in November 2003, complaining primarily of a burning sensation,
described as nerve pain from the site of the ankle injury to the calf.
Exercises and anti-inflammatory medications were utilized without measurable
benefit. Claimant then availed himself of the recommended alternative course of
treatment, and on December 29, 2003, Dr. Struhl performed ambulatory
arthroscopic surgery under a general anesthetic. This surgery was described as
cleaning out dead and devitalized tissue, making little drill holes in healthy
bone to make it bleed and bring out bone marrow, whose stem cells will
eventually lead to new fiber cartilage, albeit a “biologically imperfect
solution.” Claimant remained home for more than three weeks, could not
place any weight on his ankle, was prescribed pain medications, and again his
wife was relegated to the couch because movement was painful to Claimant.
During the next few months he saw Dr. Struhl every week or two, and he began to
notice an improvement, less pain and he started to feel
This lasted until perhaps March 2005, although Claimant noted that he
frequently had to ice his leg and that he experienced severe pain and swelling.
He received a cortisone shot into his ankle on March 1, 2005. Claimant had
further surgery on his ankle on November 4, 2005, similar to his surgery some
two years earlier,
and was out of work for one
month. He used crutches for three weeks and then a cane, with similar
segregated sleeping arrangements at home. He continued to do the recommended
exercises, albeit with limited benefit. The pain and discomfort persisted, as
he continued to treat with Dr. Struhl, and in May 2006, Claimant was given
another cortisone shot in his ankle. It would appear that Claimant obtains
temporary relief from each cortisone shot, but that the effects wear off, and
the pain, swelling and discomfort return in one fashion or another.
Dr. Struhl provided an explanation of an osteochondral lesion of the talus, an
injury to the cartilage, that is instructive. It could be created
instantaneously after an initial trauma to the ankle, or there can be a delayed
presentation and the cells die and the rest of the structure dies. It makes
little difference in the end result, and, regardless, here the focal lesion was
created as a result of the fall in question. He opined that Claimant will
continue to have pain, tenderness and swelling in the ankle.
I have considered the testimony of the Defendant’s expert witness, Dr.
Leon Sultan, also an orthopedic surgeon, and, while he seems to have carefully
examined the relevant medical records, films, etc., I find his physical
examination of the Claimant seems to have been relatively cursory. Claimant
measured the brevity of the interview and physical exam in minutes, while Dr.
Sultan was unable and declined to provide any duration of time, saying he never
times his examinations. And of course I appreciate his position that the
sufficiency of any physical examination is not time dependent and in essence
that it is the thoroughness that counts. Moreover, one cannot compare the
period of time spent by a treating physician with that of a physician whose
physical examination is limited to a single occasion. That being said, I found
myself persuaded by the testimony of Dr. Struhl, who had been treating Claimant
for some 2½ years before the trial, who had performed two surgical
procedures, who observed the progress and regression of the treatments, and
whose assessment differed sharply from that of Dr. Sultan. Thus, while I do not
totally reject the opinions of Dr. Sultan, I gave greater credibility to, and
rely upon, those opinions expressed by Dr. Struhl. Dr. Sultan believes there
was a prior injury to the ankle, as the subchondral lesion would not be seen in
the films of August 31, 2001, because the sclerosis would not have formed in
such a short period of time. He believed it was an old lesion, a cystic lesion
or an area of osteochondritis desiccants (Trial Transcript - p. 244), an opinion
objected to by Claimant on the basis that sclerosis was not raised in Dr.
Sultan’s IME report. I allowed the testimony regardless. Dr. Sultan
noted hyalin cartilage damage (Trial Transcript - p. 285) and the formation of
post-surgical fibrocartilage. He acknowledged that x-rays do not show
cartilage. He strongly disagreed with the purported size of the lesion, noted
to be 8 millimeters, observing that it was based solely on the measurement
provided by the radiologist, which he contends was erroneous. However, as Dr.
Struhl observed, the MRI indicated an 8-millimeter lesion “which was
pretty much confirmed at the time of surgery” (Trial Transcript - p. 159).
Indeed, this testimony provides support for the greater reliance I have given to
the testimony of Dr. Struhl, the treating surgeon.
Dr. Sultan concluded that there was no evidence of instability, no motion
restriction, no neurological damage and no swelling detected on the date of his
examination of Claimant (about one month prior to the May 2006 cortisone shot),
and that his “ankle sprain is resolved.” He suggested that
Claimant’s complaints about swelling and pain in his ankle are readily
explained by the aging process and the change in circulation. These opinions
are simply not persuasive.
The credible evidence establishes that Claimant’s ankle had never been
injured previously, that it had never been casted prior to the instant injury,
and that the injuries and treatments described above were all proximately caused
in the incident occurring on August 23, 2001, for which the Defendant has been
held primarily culpable.
Dr. Struhl, with a reasonable degree of medical certainty, opined that Claimant
will continue to experience pain in the ankle, which could be relieved with a
variety of over-the-counter medications, as well as injections, all of which
treat the symptoms but not the problem. The conclusion I have drawn from
Claimant’s testimony and medical history, and from the testimony and
conclusions of Dr. Struhl, is that Claimant has an osteochondral lesion of his
ankle, a permanent injury that will not improve over time.
Claimant has moreover established through the testimony of Dr. Struhl, with a
reasonable degree of medical certainty, that he will require future medical
treatment in the form of “some variation of an arthroplasty,” to
wit, a replacement or some variation of a replacement, possibly an osteochondral
allograft or a chondrocyte transplant. Dr. Struhl estimated the total related
expense of either such future surgery to be a minimum of $30,000.00 to
Claimant is required to wear high-top shoes with laces, no loafers or slip-ons.
He regularly, generally after work, has to elevate his foot to reduce swelling
and ice his foot on and off for one hour. He can no longer participate in
athletic activities like racquetball, tennis, bicycle riding and other
“cardio” exercises as he did before, and he can only dance for one
number and cannot step on a ladder or walk up and down stairs as he did before.
This has impacted his everyday life, and has eliminated certain types of
vacations and trips, leisure strolls in his neighborhood and at the beach,
sitting in restaurants or movies where he cannot elevate his foot, or occasions
where walking for any measurable distance is required. He described the
negative effect this event has had on his previously upbeat personality and the
degree of physical intimacy with his wife. In sum, his lifestyle, his work
life, his home life, and his physical comfort have all been adversely affected
by the injuries he sustained in this accident. I find that they are
The testimony of Honey Rosenthal paralleled that of her husband. She confirmed
the pain, discomfort and treatment regimen that he endured and the impact that
it has had on their lifestyle and relationship. She described her new driving
responsibilities for the family, inherited post-accident, somewhat ironic given
her husband’s employment duties at the State Insurance Fund. Not
surprisingly, she found him to be a “terrible backseat driver.” She
described the forced alteration of their leisure activities, including walking
and strolling in the neighborhood, and the permanent modification of future
travel and vacation plans, all because of the limitations resulting from her
husband’s ankle injury, to wit, that he cannot stand or walk for extended
periods of time. In sum, there is a permanent, albeit not drastic, diminishment
of their marital partnership and relationship for which just compensation must
Considering the entire trial testimony and evidence presented concerning the
injuries and enduring pain sustained by Claimant Bert Rosenthal, I award the sum
for his past pain and suffering from the day of the
accident on August 23, 2001, until the date of the trial on damages, a period of
nearly five years. For his future pain and suffering and the loss of enjoyment
of life from the trial on damages for some 19
thereafter, I award the sum of
for a total award for pain and suffering of
. I also find he is entitled to an award for future medical
expenses in the amount of
The parties have stipulated to past lost wages and benefits (consisting of lost
overtime pay of $8,140.00; the expended use of accrued leave credits
[vacation, sick, personal, etc.] of $15,153.28; and a lien of
$8,200.29 to GHI), for a total of $31,493.57. Based upon this
stipulation, I therefore make an award for past lost wages and benefits in the
amount of $23,293.28. The stipulation of the dollar amount of the lien
of GHI “for benefits provided to claimant Bert Rosenthal in connection
with the treatment provided for injuries from August 23, 2001" is construed as
constructive proof of past medical expenses, and as such I award
$8,200.29. There is no application for future lost wages. To the extent
that Claimants have sought punitive damages, none are available against the
State of New York (see Sharapata v Town of Islip, 56 NY2d 332
I award Claimant Honey S. Rosenthal the sum of $87,500.00 on her
derivative cause of action: $24,500.00 for past damages and
$63,000.00 for future damages.
These awards must be reduced by 25% in accordance with the prior liability
determination of Judge Lebous as follows: