PORTER v. THE STATE OF NEW YORK, #2008-015-509, Claim No. 112727
Claimant was awarded $200,000 ($150,000 past pain and suffering; $50,000 future
pain and suffering) for ruptured patellar tendon which required open reduction
with internal fixation.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FRANCIS T. COLLINS
Greenberg & GreenbergBy: Mark D. Greenberg, Esquire
Honorable Andrew M. Cuomo, Attorney General
Kent B. Sprotbery,
EsquireAssistant Attorney General
December 8, 2008
See also (multicaptioned
In a Decision filed April 11, 2008, the Court directed entry of an
interlocutory judgment holding defendant 100% liable for the injuries suffered
by claimant on an indoor basketball court at Hudson Correctional Facility. The
damages phase of the trial of this claim was conducted on September 11,
The claimant, Barry Porter, testified on his own behalf at trial. Mr. Porter
was born in Brooklyn, New York on April 5, 1964. He graduated from high school
in 1982 and attended The State University of New York at Albany from which he
graduated in 1987. Mr. Porter related his employment experience which included
work for a variety of social and human services organizations.
The claimant testified that he was convicted of attempted robbery and
incarcerated by the State of New York beginning on May 10, 2003. Mr. Porter was
first housed at Cape Vincent Correctional Facility for a period of two years and
was then transferred to Hudson Correctional Facility in 2005. It was there that
he was injured while playing basketball on November 7, 2005. As described in
the Court's earlier decision on the issue of liability, Mr. Porter was injured
while playing basketball at Hudson Correctional Facility as the result of the
negligence of the State of New York in failing to ensure that the basketball
court had properly dried after mopping and before allowing the inmates to begin
The claimant testified that after slipping on a wet substance on the surface of
the basketball court, he heard his knee pop and fell to the ground. He
experienced pain in his knee and looked to observe that his kneecap had
dislocated and was lodged in his thigh. Claimant testified that his knee was
swollen and that he experienced a great deal of pain. He could not stand and
remained on the floor until a nurse came to the gym and he was thereafter moved
by stretcher to the infirmary. According to the claimant the journey to the
infirmary was painful and bumpy because the stretcher was required to be taken
down stairs to reach the infirmary.
Following his arrival at the infirmary the claimant was transported by
ambulance to Columbia Memorial Hospital. No pain medications were provided
either at the infirmary or during the transport by ambulance to the hospital.
Mr. Porter was received at the Columbia Memorial Hospital Emergency Room where
he was advised by a physician that he had ruptured his patellar tendon and that
surgery would be required. Claimant was admitted to the hospital and surgery
was performed three days later. During the three days preceding his surgery
claimant experienced pain for which he was provided medication. Following
surgery, Mr. Porter described his knee as "tender" and more painful than it had
been prior to surgery. Claimant was given pain medications to address the pain.
Mr. Porter testified that he was at Columbia Memorial Hospital for approximately
one week, after which he was discharged and taken to the regional medical unit
at the Coxsackie Correctional Facility where he stayed for an additional three
to four weeks.
The claimant testified that while at the Coxsackie Correctional Facility he was
confined to his room and provided pain medication for two or three days.
Claimant testified that he experienced pain throughout his period at
Mr. Porter was returned to Hudson Correctional Facility following his discharge
from the regional medical unit at Coxsackie Correctional Facility. At Hudson
Correctional Facility he ambulated using crutches including while walking to
meals and programs. Claimant also wore a metal knee brace, which extended from
his thigh to his calf, for "a couple of months." He continued using crutches
until February or March 2006 when he began using a cane. While at Hudson
Correctional Facility he attended physical therapy twice each week through April
2006. Mr. Porter left Hudson Correctional Facility in September 2006 and was
sent to Queensboro Correctional Facility for approximately three to four weeks.
He was not using crutches at the time of his transfer to Queensboro Correctional
Facility although he continued to have pain and was unable to walk long
distances. Following his October 10, 2006 release from Queensboro the claimant
moved in with his sister in Brooklyn, New York where he still resides. Mr.
Porter testified that he is unable to walk long distances and experiences
chronic pain which is increased upon walking up stairs or down an incline.
Upon his discharge from incarceration Mr. Porter applied for public assistance
due to the fact that he could not work as a result of his inability to sit or
stand for long periods. While receiving public assistance claimant was assigned
to work in a program designed to assist individuals with physical disabilities
to return to work. He was eventually hired by the program, Abor Education and
Training, and currently works as a case manager assisting clients with medical
limitations secure employment.
Mr. Porter testified that he currently lives in the basement of his sister's
house in Brooklyn, New York. He related that his left knee feels "tight" when
he wakes up in the morning and that he engages in a stretching routine every
morning for approximately five to ten minutes. He related that he experiences
pain in his knee when it snows or rains and that his knee feels sore and stiff
as a result of the air conditioned environment at work. Mr. Porter stretches
his knee several times a day and experiences difficulty kneeling and squatting.
He testified that he can feel the cable which was inserted in his knee and that
the knee sometimes "gives out on me." He does not have full sensation on the
left side of his left knee and experiences swelling and constant pain. He
cannot run and experiences pain while walking up or down stairs and hills.
Although he played basketball on weekends prior to his accident he has not
played the sport since. He continues to wear an elastic knee brace and has a
four-inch scar on the front of his knee slightly above his kneecap.
On cross-examination the claimant testified that he had not injured his left
knee prior to November 7, 2005 although he suffered neck and shoulder injuries
in a car accident which occurred in March 1992. Claimant was involved in a
second automobile accident in September 1992 which aggravated the neck and
shoulder injuries first suffered in March of that year. In 1994 the injuries to
claimant's neck and shoulder were determined to be permanent and claimant was
advised that he would suffer continuing limitations as a result. Mr. Porter
also acknowledged that he injured his right shoulder in an April 2001 car
accident. Surgery was required to repair his injured shoulder and claimant was
advised by his doctor that he should not participate in lifting or repetitive
bending as it could result in re-injury to his shoulder and neck. Mr. Porter
testified that he stopped wearing the knee brace in January 2006 and
discontinued the use of crutches in favor of a cane in February or March 2006.
He further acknowledged that he progressed physically as a result of physical
therapy that he received following surgery to his left knee. Following his
release from prison the claimant moved into the second floor of his sister's
home. He later decided to move into the basement of his sister's home, which
required him to walk two flights of stairs to the second floor shower each
Claimant offered a portion of the examination before trial of Mark Consul in
which Mr. Consul testified that he observed claimant's knee to be "swollen and
twisted" and that the claimant appeared to be in pain while lying on the
gymnasium floor following the incident on November 7, 2005.
Claimant called Dr. Barry Constantine as an expert medical witness. Dr.
Constantine related that he is a licensed physician in the State of New York and
that he has been involved in orthopaedic medical practices in Troy and Oneonta,
New York since January 1983. He estimated that he has performed 25 to 30 open
reduction repairs of ruptured patellar tendons. Dr. Constantine reviewed
claimant's medical records and performed independent medical examinations of the
claimant's left knee and lower extremity in May 2007 and July 2008.
Dr. Constantine testified that the claimant suffered a ruptured patellar tendon
as well as injury to the quadricep mass or muscles on both sides of the
quadricep tendon. He described claimant's observation of his kneecap in his
thigh, approximately eight inches above his knee, as consistent with the type of
injury suffered. He described claimant's injury as involving significant pain.
Injury to the tendons and muscles involved results in heavy bleeding which
causes tension in the knee joint and, in turn, substantial pain.
According to Dr. Constantine, the claimant's surgery was performed within a
reasonable period of time and involved the use of cables to reinforce the
surgical repair to claimant's patellar tendon. Although the witness testified
that the use of cables was not inappropriate given the type of injury involved,
he does not personally use cables in performing such repairs due to the
potential for the cables to break or protrude through the skin requiring a
second surgery to correct.
At his examination of the claimant in March 2007 Dr. Constantine observed a
well-healed longitudinal anterior incision on claimant's left knee. He noted
tenderness in the area of claimant's left knee. He also noted that although the
claimant was able to fully extend his left knee he lacked ten degrees of flexion
in that knee compared to his uninjured right knee. He further noted a
discrepancy in the amount of mass in claimant's left knee as compared to his
right. Dr. Constantine measured the circumference of claimant's left knee at 25
inches and his right knee at 26 inches. He attributed the reduction in mass
of the left knee to secondary muscle atrophy. The doctor noted no instability
in claimant's left knee. The witness related that the claimant complained of
intermittent chronic pain in his left knee, limited mobility (bending), buckling
of the knee which was diminishing over time and weakness in his left knee which
resulted in difficulty ascending or descending stairs. Claimant also complained
that he was unable to jog or participate in sporting activities. According to
Dr. Constantine, claimant's subjective complaints are consistent with his
findings on examination and are related to the injury suffered on November 7,
The witness stated that in his opinion the claimant had suffered a mild to
moderate permanent functional impairment of his left knee as a result of the
incident on November 7, 2005.
At the examination conducted in July 2008, Dr. Constantine noted that the
claimant still lacked ten degrees of flexion in his left knee. He again
measured the circumference of claimant's left knee, which he determined at that
time to be 25½ inches as compared to 26 inches in claimant's right knee.
He explained that he determined claimant to have a mild to moderate permanent
impairment in that claimant could participate in normal activities of daily
living but could not participate in heavy physical or sports-related
On cross-examination Dr. Constantine testified that he did not consider
claimant's previous automobile accidents in determining the extent of claimant's
impairments and that it was possible limitations arising from the injuries
sustained in the automobile accidents may also limit claimant's activities in
the future. He agreed that the increase in the circumference of claimant's left
knee noted between the examination in May 2007 and the examination conducted in
July 2008 indicates an increase in the strength of claimant's left thigh and
knee which would not be expected to the extent that atrophy was present.
The claimant rested his case at the conclusion of Dr. Constantine's
The defendant offered no witnesses or exhibits at trial and rested its case at
the conclusion of claimant's proof.
Exhibit 1 received in evidence is an Inmate Injury Report dated November 7,
2005 which notes that the claimant injured his left knee while playing
basketball. The report reflects that the claimant was complaining of severe
pain and was transported to the Columbia Memorial Hospital Emergency Room for
evaluation. The Inmate Injury Report • Medical Exam form dated November
7, 2005 (6:40 p.m.) contained within Exhibit 2 relates "[l]eft knee with edema,
complained of severe pain, unable to move or walk." By all accounts claimant's
surgery was both timely and successful. The Columbia Memorial Hospital
Operative Report completed by Dr. Charles Kenny (Exhibit 4) states:
"Quadriceps mechanism was noted to be ruptured with a large smile-like tear
extending from approximately 3-4 inches medial to the patella tendon to about
3-4 inches lateral to it. The entire quadriceps had ruptured and the patella
was retracted approximately 2-3 inches higher from its usual position. The
patella tendon was avulsed in 3 parts."
A #2-0 cerclage cable was placed through drill holes in the tibial tubercle and
the distal portion of the patella to supplement the surgical repair of
claimant's patellar tendon and quadriceps mechanism. Dr. Kenny noted that the
claimant "tolerated the procedure well."
Exhibit 4 includes the Columbia Memorial Hospital Discharge Summary which
relates that the claimant was "doing very well" and that his wound "is healing
nicely." He was discharged from the hospital on November 15, 2005 with
instructions to wear a Bledsoe brace locked in full extension for at least six
weeks. The medications prescribed upon discharge included Lortab for pain and
Coumadin, a blood thinner. During the course of his hospital stay the claimant
was prescribed various medications for pain, including Morphine, Percocet,
Demerol and Tylenol. The discharge summary reflects a final diagnosis of a
ruptured patellar ligament, left knee, diabetes and tachycardia.
Exhibit 5 contains treatment notes from medical staff at the Hudson
Correctional Facility as well as correspondence from Mitchell Rubinovich, M.D.,
an orthopaedist whom claimant consulted with regard to his injuries. Dr.
Rubinovich first saw the claimant on December 23, 2005. During his examination,
Dr. Rubinovich removed claimant's brace, instructed him to continue using
crutches and advised that he should start physical therapy as soon as possible.
Dr. Rubinovich stated that the claimant "has relatively good range despite the
immobilization. He goes from 0 degrees to about 60 degrees. The patellar
tendon appears to be intact. The wound is clean" (Exhibit 5).
Claimant's initial evaluation by the physical therapy staff at Hudson
Correctional Facility on December 29, 2005 noted swelling in the claimant's left
knee. In notes relating the results of subsequent physical therapy sessions
claimant was described as improving. No complaints of pain are noted until the
physical therapy session on January 31, 2006 where it is noted that the claimant
complained of soreness in his left knee but "not bad". Slight soreness in
claimant's left knee is noted on February 2, 2006. Claimant described his left
knee as feeling "tight today" at the physical therapy session held on February
9, 2006 and the claimant complained of left knee soreness on February 14, 2006.
A further complaint of soreness was noted in the physical therapy notes dated
February 16, 2006. Thereafter the notes of therapy sessions through March 10,
2006 reflect that the claimant is improving and note that there were no
complaints of pain in his left knee.
On March 10, 2006 claimant was seen again by Dr. Rubinovich. His summary of
the examination states that claimant's range of flexion was from 0 degrees to
"about 130 degrees". He noted a slight tenderness and occasional "picking"
around the knee but stated that there is no instability and the patellar tendon
appears to be intact. Physical therapy notes for the period subsequent to March
10, 2006 continue to indicate that the claimant is doing well and no complaints
of left knee pain are noted. Claimant saw Dr. Rubinovich again on May 12, 2006
at which time complaints regarding neck and shoulder pain are noted. The
remainder of the Hudson Correctional Facility medical notes contained within
Exhibit 5 relate to treatment of neck and shoulder pain and do not involve
treatment of claimant's left knee.
Exhibit 8 contains a summary of an independent medical examination performed at
the defendant's request on October 19, 2007 by Dr. Louis J. Benton, Jr., an
orthopaedic surgeon. Dr. Benton relates that the claimant complained of chronic
pain which was particularly acute during wet or cold weather. He related
difficulty going up and down stairs and that his left knee occasionally gives
out. Claimant was not using either a cane or crutch at the time he was seen by
Dr. Benton. Dr. Benton found the following:
"At the left knee, there is a 17 cm scar over the anterior aspect of this knee.
He has some mild decrease in light touch laterally over this scar area. There
is no effusion palpable. He has full extension and he flexes to 125°, no
further due to discomfort over the anterior aspect of the left knee. There is
no instability to gentle medial/lateral stress testing. There is no evidence of
any anterior or posterior instability of the left knee. He has mild discomfort
to retro patellar compression at the left knee. He has mild discomfort over
the lateral joint line of the left knee. The left and right knee quadriceps
measure 48 cm."
Dr. Benton concluded that the claimant has had a "very good result post
patellar tendon rupture". His range of motion is "functional and almost
normal, with a very minimal decrease in full flexion." Dr. Benton stated that
claimant's post-surgical physical therapy has been successful and that he has
regained almost complete motion of the left knee. Dr. Benton did not find any
evidence of quadricep atrophy. Dr. Benton concluded:
"I believe that he demonstrates a mild to moderate permanent disability at this
time at the left lower extremity; however, his physical therapy program has been
most helpful in his rehabilitation, and it is possible that he will continue to
see improvement concerning his residual symptoms."
The undisputed evidence substantiates the claim that as the result of the
subject accident claimant suffered a ruptured patellar tendon as well as injury
to the quadricep muscles requiring open reduction with internal fixation. He
was hospitalized for one week and was thereafter transferred to the medical
unit at Coxsackie Correctional Facility where he remained for three to four
weeks. Claimant underwent an extensive regimen of physical therapy through
approximately April, 2006. He ceased use of a full leg brace in December, 2005
and stopped using crutches in favor of a cane in February or March of 2006.
Although claimant's injury certainly involved significant pain, by all accounts
his surgery and subsequent physical rehabilitation were successful. Both Drs.
Constantine and Benton concluded the claimant suffered a mild to moderate
impairment of his left knee which is permanent in nature. Claimant suffers
intermittent weather-related pain. In addition, claimant established that he
experiences pain while walking up stairs and while walking uphill or down a
slope. He is unable to run or participate in sports and has difficulty kneeling
and squatting. There is no credible evidence that claimant's shoulder and neck
pain is causally related to the incident of November 7, 2005 and the Court
rejects as overly speculative Dr. Constantine's assertion that future surgery
may be required should the cerclage cable installed in claimant's knee break or
otherwise malfunction. The court also rejects Dr. Constantine's finding of
atrophy in claimant's left knee/thigh as contrary to both his finding of an
increase in the circumference of claimant's knee over time and Dr. Benton's
finding that both "[t]he left and right knee quadriceps measure 48 cm" (Exhibit
Comparison of other similar cases leads this Court to the conclusion that the
injuries sustained entitle the claimant to an award of $150,000.00 for past pain
and suffering and $50,000.00 for future pain and suffering (cf.
Calderon v Moriello, 11 Misc 3d 137 [A] [App Term 2006] [jury's award of
$165,000 for past pain and suffering and $165,000 future pain and suffering was
affirmed on appeal where plaintiff sustained torn lateral and medial menisci in
knee which required arthroscopic surgery and injuries to neck and back
consisting of intervertebral disc syndrome, segmental dysfunction and lumbar
radiculopathy]; Hoerner v Chrysler Fin. Co., L.L.C., 21 AD3d 1254 
[award of $375,000 for past pain and suffering and $1,000,000 for future pain
and suffering was reduced on appeal to $250,000 for past pain and suffering and
$250,000 for future pain and suffering where the plaintiff suffered a patella
injury and would require surgeries due to degenerative changes but he had a
functional, if imperfect, patella]; Semple v New York City Tr. Auth., 301
AD2d 514  [jury award of $134,000 for past pain and suffering and $95,000
for future pain and suffering was affirmed on appeal for 60-year-old plaintiff
who suffered torn meniscus and possible tear of the medial collateral ligament];
Myers v Schaffer Grocery Corp., 281 AD2d 156  [order setting aside
the verdict unless the defendant stipulated to increase the awards for past and
future pain and suffering from $0 and $0 to $300,000 and $120,000, respectively,
was affirmed on appeal where the 33-year-old plaintiff suffered a tear in the
cruciate ligament of his knee and underwent several months of physical therapy
leaving him unable to participate in strenuous sporting activities]; Juliano
v Prudential Sec., 287 AD2d 260  [aggregate award of $68,000 for past
and future pain and suffering increased on appeal to an aggregate sum of
$200,000 for a medial meniscus tear of the right knee which required two
Interest shall run from March 24, 2008, the date of the decision establishing
liability (see Love v State of New York, 78 NY2d 540 ; CPLR
§ 5002). All trial motions not heretofore decided are deemed denied.
To the extent claimant has paid a filing fee, it may be recovered pursuant to
Court of Claims § 11-a (2).
LET JUDGMENT BE ENTERED ACCORDINGLY.
December 8, 2008
Springs, New York
HON. FRANCIS T. COLLINS
Judge of the Court of