In a decision on liability filed October 29, 2007, this Court found the
defendant State of New York 60% liable for personal injuries suffered by
claimant when she fell on August 24, 2004 as she exited Neubig Hall, a building
on the campus of the State University of New York at Cortland (SUNY Cortland).
A trial limited to this issue of claimant’s damages has now been held, and
this decision addresses that issue.
Claimant, who was born on February 1, 1981, testified at this trial. She was
23 years of age at the time of the incident, and testified that she was a
full-time student at SUNY Cortland, and was also employed on a part-time basis
at Home Depot. She further testified that subsequent to the incident, she
received a degree in therapeutic recreation from SUNY Cortland in 2005.
Following graduation, she was employed full-time as a recreation assistant at
the Iroquois Nursing Home from October 2005 through March 2006, and is now
employed full-time at Broome Developmental Center as a recreation therapist.
Claimant testified that when she fell, she suffered immediate and severe pain
to her left knee and leg, and endured further extreme pain during her
examination and treatment in the emergency room at Cortland Memorial Hospital,
where she was taken following her fall.
For a period of approximately three months, her left leg was immobilized with a
removable splint from just below her hip down to the lower portion of her leg.
During this time, claimant was unable to walk normally, she was unable to climb
stairs without assistance, she was unable to drive, and could not perform any of
her usual household duties or participate in any recreational activities. She
testified that during this time, she experienced constant pain in her left leg.
Claimant was prescribed Tylenol with codeine for pain, and she also took an
anti-inflammatory drug to reduce swelling and relieve pain.
Claimant testified that upon her return to employment, she continued to
experience pain in her leg, and she was unable to stand for any long periods of
time. She had to, therefore, take frequent breaks. She testified that she
continues to have considerable pain in her leg and knee in her current
employment at Broome Development Center. Furthermore, she also testified, due
to the limitations caused by her injury, she is prevented from advancing to the
next available level (and higher pay grade) in her field of employment.
In addition to the restrictions in her employment, claimant testified that the
pain which she continues to experience from her injury has prevented her from
engaging in recreational activities such as rollerblading and long walks.
Michael T. Clarke, M.D., an orthopedist, testified as claimant’s treating
physician and medical expert.
testified that he first examined claimant on September 1, 2004, approximately
one week after she fell. Based upon his review of the x-ray films from Cortland
Memorial Hospital (Exhibits 6 through 8), Dr. Clarke testified that claimant had
sustained a comminuted fracture of her left knee extending from the anterior to
the posterior of the interior pole of her left patella. Upon examination, Dr.
Clarke found that the fracture was non-displaced and that the knee mechanism had
not been disrupted. Although claimant reported tenderness in this area, she did
not have significant fluid within the joint, and with a splint, she could bear
weight on her left leg.
Dr. Clarke continued to treat claimant, and during his examination on October
13, 2004, Dr. Clarke determined that the fracture had completely healed in
anatomic alignment. Dr. Clarke instructed claimant on home exercises that would
help rehabilitate the knee, and recommended physical therapy.
Based upon his treatment during this time, Dr. Clarke determined that claimant
was totally disabled from employment for the period of August 24, 2004 through
November 13, 2004.
Since that time, Dr. Clarke has not treated claimant for this injury, and did
not conduct any further examination of claimant until May, 2008, a short time
prior to this damages trial. During that examination, Dr. Clarke noted that
claimant had a normal gait, full extension, and flexion of 140% (considered to
be within the normal range) and showed no signs of instability in her leg. He
did not observe any indication of inflammation or any evidence of fluid in her
knee, and did not find any significant patellar malfunction or instability. At
that time, claimant did relate to Dr. Clarke that she continued to experience
pain in her knee and that she had difficulty performing such activities as
squatting, walking up and down stairs, and rising from a seated to a standing
Dr. Clarke further testified that claimant does have some preexisting
congenital conditions of valgus (“knock-knees”), patellar
maltracking, and flat feet, and that these conditions can themselves cause pain.
However, it was his opinion that in this case, these conditions may have
exacerbated claimant’s pain, but it is her fall, which occurred in 2004,
which was the actual cause of the pain which claimant was, and still is,
suffering. Since claimant still registers complaints of pain after four years,
Dr. Clarke recommended further treatment, including physical therapy, a
glucosamine supplement, and anti-inflammatory medication on an as-needed basis.
John Cambareri, M.D., an orthopedist and orthopedic surgeon, was qualified as
an expert and offered testimony on behalf of the defendant. Dr. Cambareri
testified that he conducted an independent medical examination of claimant on
June 19, 2008. At that time, claimant complained of pain in her left knee,
which became worse with extended walking and going up or down stairs.
Dr. Cambareri testified that during his examination, claimant walked with a
normal gait, had full extension of her knee, and also had normal range of
motion. Claimant was able to fully extend her leg and walk normally, without
any limp. Dr. Cambareri did not find any evidence of fluid within the knee or
any nerve damage. He did note that claimant was “knock-kneed” and
that she had flat feet.
Based on his examination, Dr. Cambareri concluded that claimant had suffered a
non-displaced fracture of the patella which had healed completely, and that she
had regained normal function of her knee during the three months that she was
treated by Dr. Clarke. He further testified that the non-displaced fracture
suffered by claimant normally heals completely, without any future problems or
pain. Although he could not state it with complete certainty, he did not expect
claimant to develop any post-traumatic arthritis related to this injury.
Although the fracture necessarily caused the formation of scar tissue in the
knee, Dr. Cambareri did not believe that claimant would suffer any
permanent disability as a result of this fracture.
Based on his examination, Dr. Cambareri concluded that claimant’s
complaints of pain in 2008 were not consistent with a normal recovery from this
kind of injury, or with his objective findings from his examination. He
concluded, to a reasonable degree of medical certainty, that claimant had
recovered completely from this knee fracture, that there was no indication of
any permanent disability and no need for any further treatment.
Based on the medical records submitted at trial and the testimony of both Dr.
Clarke and Dr. Cambareri, it is obvious to this Court that claimant suffered a
non-displaced, comminuted left patellar pole fracture. Both doctors agreed that
this was a very painful injury, and further agreed that as a result of this
injury, claimant was immobilized and under a total disability for approximately
three months. The Court accepts Dr. Clarke’s testimony that claimant was
fully disabled from work for the period of August 24, 2004 (the date of the
accident) through November 13, 2004. The Court further finds that during this
period, claimant was employed on a part-time basis at Home Depot as a cashier.
Although there was testimony from both physicians relating to claimant’s
preexisting valgus (“knock-knees”) and her flat feet, the Court
finds (as it stated at the trial) that there is no evidence that these
preexisting conditions were a cause of the pain suffered by claimant.
During this three-month period of disability, not only was claimant unable to
work, she was also unable to perform any of her usual household duties, nor was
she able to participate in any of her preferred recreational activities such as
rollerblading and walking.
The two physicians, however, differed somewhat in their opinion as to whether
claimant suffered any permanent injury to her knee and whether she could expect
to suffer any pain or suffering in the future as a result of the injury. Dr.
Cambareri, as noted, concluded that claimant had completely recovered from her
fracture without any future need for medical treatment, which was normal with
this type of fracture. Dr. Clarke, on the other hand, stated that
claimant’s condition has persisted for approximately four years, and that
she is likely to experience pain and require further treatment on a long-term
The Court finds it significant that no evidence was introduced to suggest that
claimant had sought or received any medical treatment, prior to trial, since
November 2004, when she was last seen by Dr.
Additionally, there was no evidence
that claimant had participated in physical therapy at any time during the
four-year period from August, 2004 to the date of this trial, or any indication
that she was taking any prescribed medication. Accordingly, although it is not
insensitive to the complaints of pain made by claimant, the Court finds that
such complaints must be relatively minor, since claimant has not felt the need
to seek further medical treatment or undertake a regimen of physical
Based on the foregoing, with emphasis upon the Court’s findings that
claimant suffered considerable pain from the fracture in her knee, and was
incapacitated and totally disabled from work for the period of August 24, 2004
through November 13, 2004, this Court concludes that claimant has suffered
damages in the amount of $50,000.00 for past pain and suffering.
Although claimant testified to the pain she continues to experience in her knee
resulting from this accident, she is not currently undergoing any medical
treatment for this pain, nor is there any evidence that she received any medical
treatment since November 2004 for this injury. The Court, however, does accept
claimant’s testimony that this injury prevents her from participating in
certain recreational activities, and that she continues to experience some pain
and limitations from the injury to her knee. As of the date of this trial,
claimant was 27 years of age, with a life expectancy of 53.4
. Accordingly, the Court hereby
determines that $10,000.00 is an appropriate award for future pain and
There is no dispute that claimant was totally disabled from employment from
August 24, 2004 through November 13, 2004, or approximately 12 weeks. Evidence
established that claimant was being paid at the rate of $8.50 per hour at the
time of the accident, and was averaging approximately 30 to 34 hours per week.
Based upon an average work week of 32 hours, therefore, claimant suffered a pay
loss in wages of $3,264.00 during this time of total disability.
Claimant also contends that due to the continued pain in her knee, and the
limitations that prevent her from standing for long periods of time or from
easily rising from a seated to a standing position, she was unable to advance in
her employment at Home Depot, and that these conditions continue to restrict
her from advancing in her current employment as a recreational therapist at
Broome Developmental Center. The Court finds that such a contention is purely
speculative and therefore makes no award for any loss of earnings capacity.
As set forth above, claimant was not covered by medical insurance prior to her
current employment, and medical bills totaling $1,655.50 were admitted into
evidence at trial (Exhibits 11 through 13). Defendant contends that claimant
could possibly have been covered by medical insurance through her parents at the
time of the fall, and that such coverage would then have constituted a
collateral source against any award for out-of-pocket medical expenses.
However, the fact remains that claimant was not covered by health insurance at
the time of this accident. Furthermore, there is no credible evidence
establishing that claimant was eligible for coverage under a policy of medical
insurance available to one or both of her parents, or any evidence as to the
cost of this coverage to claimant, assuming that such coverage was in fact
available. The Court therefore concludes that defendant’s argument
requesting a collateral source offset is purely speculative. Accordingly, the
total amount of medical costs, in the amount of $1655.50, constitutes an
Therefore, based on the foregoing, this Court makes a total award of
$64,919.50, covering past and future pain and suffering, lost wages, and
reimbursement of medical expenses.
As stated at the outset of this decision, this Court, in its prior decision on
liability, found the State 60% liable for claimant’s injuries. As a
result, claimant is entitled to an award of $38,951.70, and the Clerk of the
Court of Claims is hereby directed to enter judgment in this amount in favor of
claimant Lindsay McKee.
The amount awarded herein shall carry interest at the rate of 9% per year from
the date of the determination of liability on October 1, 2007 (Dingle v
Prudential Prop. & Cas. Ins. Co., 85 NY2d 657; Love v State of New
York, 78 NY2d 540). Additionally, to the extent claimant has paid a filing
fee, it may be recovered pursuant to Court of Claims Act, § 11-a(2).
LET JUDGMENT BE ENTERED ACCORDINGLY.