New York State Court of Claims

New York State Court of Claims

ROSENTHAL v. THE STATE OF NEW YORK, #2008-013-502, Claim No. 105222


Damages for pain and suffering awarded for an osteochondral lesion of the talus, an injury to Claimant’s ankle.

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:
Defendant’s attorney:
Attorney General of the State of New York
BY: JOSEPH F. ROMANI, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 29, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


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 Rosenthal[1] 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 fibula.[2] 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 occasions.

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 better.[3]

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,[4] 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 $50,000.00.

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 permanent.

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 be awarded.

Considering the entire trial testimony and evidence presented concerning the injuries and enduring pain sustained by Claimant Bert Rosenthal, I award the sum of $155,500.00 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 years[5] thereafter, I award the sum of $296,200.00 for a total award for pain and suffering of $451,700.00. I also find he is entitled to an award for future medical expenses in the amount of $35,000.00.[6]

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 [1982]).

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:

Claimant Bert Rosenthal
Past Medical Costs and Expenses: $8,200.29

Less 25% $ 6,150.00(r)

Past Pain and Suffering: $155,500.00

Less 25% $116,625.00

Past Lost Earnings: $23,293.28

Less 25% $ 17,470.00(r)

Future Pain and Suffering: $296,200.00

Less 25% $222,150.00

Future Medical Expenses: $35,000.00

Less 25% $ 26,250.00

TOTAL $388,645.00

Claimant Honey S. Rosenthal - Derivative Damages

Past: $24,500.00 - Less 25% $ 18,375.00

Future: $63,000.00 - Less 25% $ 47,250.00

TOTAL $ 65,625.00

Interest on these awards is to run from August 23, 2005, the date liability was determined (Love v State of New York, 78 NY2d 540). It is ordered that to the extent that Claimants have paid a filing fee, it may be recoverable pursuant to Court of Claims Act §11-a(2). Since the net amounts of future damages for each Claimant do not exceed $250,000.00, a structured judgment is not required.

There is one final matter to address, and that is the finding of Judge Lebous in his decision on liability that a hearing on the imposition of sanctions was to be held simultaneously with the trial on damages (Rosenthal v State of New York, UID 2004-019-515, Ct Cl, Claim No. 105222, Motion No. M-67867, March 2, 2004, Lebous, J.). Counsel for both parties have stipulated, and the Claimants’ attorneys of record have agreed, to the reimbursement to the Defendant for the wages and fringe benefits in the amount of $244.42 for the two employees of the State who appeared under subpoena for trial on June 26, 2003 (Trial Transcript - p. 317). That expense is to be paid in its entirety by counsel and shall not be a cost, expense or disbursement for which the Claimants shall bear any financial responsibility. Beyond that, upon review and consideration of Judge Lebous’s earlier decisions, and the otherwise exemplary behavior and cooperation of Claimants’ attorneys of record, particularly including trial counsel herein, who was not involved with this claim whatsoever until after the June 26, 2003 proceeding, I impose no further monetary or other sanction. Payment of the $244.42 shall be made to the Defendant within 30 days of service of a file-stamped copy of this decision, and the Clerk shall not enter judgment herein until he has been provided with such documentation that reflects the transmittal of such payment.

All motions made at trial and not heretofore ruled upon are hereby denied.


February 29, 2008
Rochester, New York

Judge of the Court of Claims

  1. [1]For ease of reference and unless otherwise specified, the term “Claimant” shall mean Bert Rosenthal, as the claim of Honey S. Rosenthal is derivative.
  2. [2]Claimant’s treating physician, Dr. Steven Struhl, reviewed the same x-rays and the notes from Kings Highway Orthopedics, and concluded that there never was a fracture. The Defendant’s IME physician, Dr. Leon Sultan, similarly concluded that no fracture is discernible from the films.
  3. [3]While the Defendant elicited, and Claimant acknowledged, treatment and massage therapy, including one cortisone shot in May 2004 related to his lower back and left hip, these conditions appear unrelated to the injury sustained in the accident, were treated separately, and, according to Claimant, were resolved at that time.
  4. [4]In the second surgery, Dr. Struhl did not touch the bone, just shaved the soft tissue.
  5. [5]Bert Rosenthal’s date of birth is March 6, 1946, and, while not requested by the parties, I have taken judicial notice of his life expectancy at the time of the trial of damages, which I calculate to be 19 years (1 NY PJI 3d 1635 [2008], Table 2, Life table for males).
  6. [6]There was no discussion or evidence with respect to possible medical insurance coverage for such future medical expenses, and thus this award contemplates none.