RASKIN v. STATE OF NEW YORK, #2008-037-507, Claim No. 107925
Footnote (claimant name)
STATE OF NEW YORK
Footnote (defendant name)
JEREMIAH J. MORIARTY III
Cantor, Lukasik, Dolce & Panepinto, P.C.By: James A. Verrico, Esq.
Hon. Andrew M. Cuomo
New York State Attorney
By: William D.
LonerganAssistant Attorney General
February 25, 2009
See also (multicaptioned
This Claim arose on June 26, 2001 when Claimant, a junior at State University
College at Buffalo (SUCB), suffered an ankle injury while enrolled in a
three-credit course conducted at Whispering Pines Camp, a facility owned and
operated by SUCB. The issues at trial were bifurcated and in a Decision dated
December 18, 2007, this Court determined that the State of New York was 75%
liable for the injury sustained by Claimant.
trial on the issue of damages has since been held and this decision addresses
At trial, Claimant testified regarding the extent of her injury and the
treatment rendered and she offered supporting testimony from her
, Brian Weber, and her mother, Sally
Raskin. Additionally, Claimant presented testimony from her treating physicians,
Peter J. Riznyk, D.P.M.
, board certified in
podiatric medicine, and Eugene J. Gosy, M.D., a board certified neurologist
specializing in pain management, together with testimony from Alan Winship, a
certified life care planner and Ronald Reiber, Ph.D., an economist. Stephen
Rycyna, M.D., a board certified orthopedic surgeon, performed an independent
medical examination (IME) on Claimant and testified at trial as an expert for
the State of New York. The State also offered testimony from Richard Urbanski, a
private investigator, who produced videotapes (Exhibits O1 & O2) taken a few
weeks prior to trial depicting Claimant engaged in routine daily activities.
The facts of Claimant’s accident and the basis for Defendant’s
liability are set forth in detail in the prior Decision and need not be repeated
here except to note that on the day of the incident Claimant, a 21-year-old
elementary education major, suffered a painful right ankle injury while playing
a children’s game with other students as part of the course
After the accident, Claimant was taken by automobile to the emergency
department at Olean General Hospital where x-rays of her right ankle and foot
proved negative, revealing “no evidence of recent fracture, dislocation or
other bony abnormality” (Exhibit 15) and the resulting diagnosis was an
ankle sprain. The ankle was wrapped, placed in a surgical shoe and Claimant was
released with crutches and pain medication to return to the SUCB facility where
she remained until the course was completed on July 1, 2001. Claimant testified
that she was in constant pain and required the use of crutches to ambulate but
was able to successfully complete the course requirements.
On July 3, 2001, Claimant was examined by Dr. Riznyk, who reviewed the x-rays
from Olean General Hospital and confirmed the negative findings for fracture or
dislocation. Dr. Riznyk opined, based upon Claimant’s complaint of
significant pain over the lateral ankle ligaments together with numbness,
tingling and burning sensations on the top of the foot extending into the third,
fourth and fifth toes, that she suffered a lateral ankle sprain and a midtarsal
joint sprain of the foot. He was also concerned that there was an injury to the
intermediate dorsal cutaneous nerve resulting in neuritis. Concluding from his
diagnosis that Claimant’s ankle required more immobilization, he
discontinued the wrap, placed the ankle in a short leg walking cast and
prescribed a combination of ice and elevation to reduce swelling, together with
physical therapy. Dr. Riznyk followed Claimant for the next several weeks and
noted that, while the injured ligaments seemed to heal, she continued to
experience significant pain over the cutaneous nerve leading him to suspect that
she might be developing chronic regional pain syndrome (CRPS). For that reason,
he referred Claimant to David J. Pochatko, M.D., an orthopedist, and Dr. Gosy
for further evaluation.
After examining Claimant, Dr. Pochatko stated in a report dated November 19,
2001 (Exhibit 18) that Claimant had right foot and ankle pain with neuropathy
and recommended a magnetic resonance imaging (MRI) scan of the right ankle,
together with a consult with Dr. Gosy for pain management. The MRI conducted on
December 10, 2001 found no evidence of fracture, osteochondral injury, joint
effusion or ligamentous disruption. The stated impression was no significant
abnormality in the ankle.
Claimant first consulted with Dr. Gosy on January 21, 2002 and his initial
diagnosis was that she suffered from sympathetically maintained pain or CRPS of
the right foot secondary to the ankle sprain of June 26, 2001. He opined that
CRPS is a permanent, slightly progressive condition which results in mild
partial disability requiring regular medical treatment consisting of prescribed
medications to control the pain and related symptoms. The records of Dr. Gosy
confirm that Claimant was given prescriptions for Topomax and Lidoderm and was
examined at six-month intervals from May, 2002 through April, 2008. Although
Claimant regularly complained of foot and ankle discomfort, Dr. Gosy recorded
the following observations (Exhibit 20):
“Disability status is mild partial. Happily, she is able to carry out her
current activities.” (January 21, 2002)
“She was assured that most likely she is on the edge of remission of her
symptoms.” (February 11, 2003)
“She continues to be highly active, working out several times per week. We
had a long discussion regarding the long-term prognosis of CRPS and I feel that
it is favorable for her since her symptoms are so well-controlled on a minimum
of medication.” (May 26, 2004)
“She is highly functional as a second grade teacher. She continues to be
highly active. When she does wear restrictive footwear, it does tend to
aggravate her overall pain. Happily, the medications are well-tolerated . .
.” (March 28, 2005)
“She states that the right ankle and foot have been significantly better
during the warmer months. She will utilize her Lidoderm patches and Topamax as
needed. She recently went back to school as a second grade teacher and says
that, at the end of the day, she does have some aching. Primarily the tingling
sensation over the dorsal surface of her ankle, lateral foot, and fourth and
fifth toes is constant. It is heightened by any prolonged activities or heavy
shoes. She tolerates the medications well.” (September 19, 2005)
“Generally, she has good and bad days. As the pain levels increase, she
uses Topamax and Lidoderm patch. The pain has not spread. The tingling persists
over the dorsal surface of her ankle, lateral foot and fourth and fifth toes.
The pain is easily aggravated with any prolonged standing that she does have to
do as a teacher or any heavy shoes that she does try to avoid wearing.”
(March 24, 2006)
“She continues to experience intermittent neuropathic pain affecting the
right ankle and foot. Occasionally, she finds the lateral ankle to be swollen.
Other times, she experiences a gripping, squeezing sensation with associated
pressure. She is unable to walk for any long distance. There is pain over the
dorsal surface of her foot and the fourth and fifth toes. Topamax and Lidoderm
patch are highly beneficial in consolidating her symptoms. She tolerates the
medications well . . . . She is highly functional as an elementary education
teacher.” (October 4, 2006)
Dr. Rycyna testified that he reviewed Claimant’s medical records and
conducted an IME on June 11, 2008. He confirmed the prior diagnosis that
Claimant suffered a sprained right ankle on June 26, 2001 and concluded that the
injury is resolved based upon x-rays taken during the examination. Dr. Rycyna
was unable to find any objective evidence that Claimant suffers from CRPS, but
acknowledged that her subjective complaints of pain and discomfort could result
in a minimal partial disability which would be permanent in nature, and that
this condition is directly related to the injury suffered at SUCB.
Based upon the testimony of the medical experts, the Court finds that Claimant
suffered a sprain of her right foot and ankle as a result of the accident at
Whispering Pines Camp on June 26, 2001 and that she was in a cast (in one form
or another) for approximately thirteen weeks. As a result of the injury,
Claimant was prevented from engaging in many physical activities for at least a
year after the injury and the condition of the foot and ankle continues to limit
her participation in some recreational activities.
Once the liability of the Defendant has been established Claimant is entitled
to recover a sum of money which the fact finder determines justly and fairly
compensates her for any injury and conscious pain and suffering to date caused
by the Defendant (see Tate v Colabello, 58 NY2d 84 ). Based upon
the foregoing, the Court awards Claimant damages in the amount of $80,000.00 for
past pain and suffering.
Where there is any evidence of permanence or future pain and suffering the fact
finder may award damages for future pain, suffering, disability and loss of
ability to enjoy life taking into account Claimant’s life expectancy
(see Fenocchi v City of Syracuse, 216 AD2d 864 ). The Court accepts
Claimant’s testimony that she is somewhat restricted in her recreational
activities as a result of this accident and continues to experience occasional
pain in the ankle and foot. At the time of trial, Claimant was 27 years of age,
with a life expectancy of 53.4 more years (1B NY PJI3d App. A, at 1681 ).
Based upon Claimant’s intermittent pain and the limitations on certain
recreational activities, the Court hereby awards the sum of $60,000.00 for
future pain and suffering.
There was no proof at trial to support any claim for reimbursement of past
medical expenses and Claimant did not seek compensation for loss of past or
Claimant offered the expert testimony of Mr. Winship and Dr. Reiber in support
of her claim for future medical expenses.
Winship presented a life-care plan which projects the amount of medication,
medical care and fitness therapy Claimant will require for pain management over
her lifetime. He admitted that his projections are based on the assumption,
inter alia, that Claimant will require daily doses of prescribed pain medication
for the balance of her life. Dr. Reiber followed with an economic analysis of
the plan which concludes that, based on Claimant’s life expectancy, the
cost of her future medical care could exceed $1,000,000.00.
Claimant, to her credit, testified that she is able to cope with her condition
by only taking pain medication on an as-needed basis and she discontinued use of
the medication for approximately one year prior to giving birth to twins on
March 20, 2008. At the time of trial she had not resumed use of the medication
because she was nursing the children. Therefore, the Court finds that the
life-care recommendations made by Mr. Winship must be severely discounted. Mr.
Winship has recommended medication, medical care and fitness therapy that, in
his estimation, Claimant will require for the balance of her life. However,
there is no indication in the record that Claimant is presently receiving or
will receive in the future such services or treatment to the extent recommended.
The Court therefore concludes that the life-care plan proposed by Mr. Winship,
and the associated expenses for such plan provided by Dr. Reiber, are entirely
too speculative and must be rejected. Accordingly, the claim for future medical
expenses is dismissed.
Accordingly, the Court finds that Claimant has suffered total damages of
$140,000.00 ($80,000.00 for past pain and suffering and $60,000.00 for future
pain and suffering). As stated above, Defendant was found to be 75% liable for
Claimant’s injuries in this Court’s prior decision on liability. As
a result, after applying Claimant’s 25% comparative fault to the total
award, the Court hereby awards Claimant the sum of $105,000.00, together with
interest from December 18, 2007, the date of the decision establishing liability
(see Dingle v Prudential Prop. & Cas. Ins. Co., 85 NY2d 657 ;
Love v State of New York, 78 NY2d 540 ).
Any filing fee paid by Claimant may be recovered pursuant to § 11-a (2) of
the Court of Claims Act.
All motions made at trial and not heretofore ruled upon are hereby
LET JUDGMENT BE ENTERED ACCORDINGLY.
Buffalo, New York
HON. JEREMIAH J. MORIARTY III
Judge of the
Court of Claims
.Raskin v State of New York,
December 18, 2007, Moriarty, J., Claim No. 107925 [UID No. 2007-037-504]. This
and other unreported Court of Claims decisions may be found on the Court’s
website at www.nyscourtofclaims.state.ny.us.
.Claimant was married after this claim was
filed and is now known as Jillian Raskin Weber.
.The testimony of Dr. Riznyk was taken on July
31, 2008, prior to trial. A videotape of his testimony was received into
evidence (Exhibit 17) and was viewed at the trial. A transcript of his testimony
was also received into evidence (Exhibit 17A) and both have been considered by
the Court in this Decision.
.Both experts prepared written reports of
their findings and recommendations which were not entered into evidence at