(Barrington v State of New York, supra)
Claimant testified that, at the clinic, Nurse Eileen cleaned his nose and face
and put an ice bag on his leg and a brace on his neck. He described his pain at
the time as a seven on a scale of one to ten. In addition to the fractured leg,
he had a bloody nose, the side of his face was swollen and he had pain in his
wrist and neck. He was taken to St. Francis Hospital by ambulance and he stated
that something happened that greatly increased his pain when he was being
transferred to the ambulance.
Dr. William Thompson, a board-certified orthopedic surgeon specializing in
sports medicine, examined claimant in the emergency room, where he was
complaining of pain in his left leg, neck, back, face and head, and crying out
“cut my leg off” (Exhibit 3, p 6). He was administered IV morphine
in the ER. Claimant told the doctor that he had been in an altercation with the
guards and that his leg had been twisted and he heard a loud crack and had
immediate pain. X-rays (Exhibits DD and GG) showed a spiral fracture of the
left femur in the metadiaphyseal region of the knee, not intruding into the
joint. Dr. Thompson advised that the mechanism of such a fracture is a
“twisting motion,” which was consistent with what claimant described
to him (TM Vol. 1, p 18). 
The x-rays also
showed a plate and screws that had been used in the repair of a previous
fracture of claimant’s left tibia.
Dr. Thompson explained that the proximity of the fracture to the knee joint
necessitated an open reduction with the placement of a metal plate and thirteen
screws, because the forces exerted on the joint by the quadriceps and hamstring
muscles would otherwise prevent proper healing. The surgery was successful and
claimant was discharged from the hospital on June 2, 2005.
Claimant spent about two months in the Green Haven infirmary after his
discharge from the hospital. After that, he was in the special housing unit for
a few days and was then transferred to general population on keeplock status.
Claimant did not recall the name of the pain medication he was given in the
infirmary but stated it was something stronger than ibuprofen. His Ambulatory
Health Record (Exhibit 4) shows the administration of Percocet through mid-June,
at which time he was switched to Ultram. He was on crutches for nine or ten
months after the surgery and after that was allowed to use a cane, which he
stated he used through the latter part of 2008. He had three or four courses of
physical therapy, each course lasting approximately eight weeks. Claimant
testified that he still does not have full use of his leg, and that he still has
pain for which he takes Naprosyn 500 mg twice a day. He claimed he can no
longer play soccer or basketball, which he previously did, and he has a surgical
scar on his left leg running from the thigh to the knee.
Claimant is currently able to walk without the aid of crutches or a cane, but
he stated that when he moves around too much he sometimes experiences a sharp
pain in his left knee.
On cross-examination, claimant was asked about his rather extensive medical
history, which includes multiple gunshot wounds (Exhibit A, p 59), a plate and
screws installed in his left knee to repair a prior fracture of the tibia and
“several severe bilateral knee problems,” including degenerative
joint disease in both knees (id., pp 61-62). He nevertheless claimed
that prior to the May 2005 injury that was the basis of this claim he only
experienced minor pain that did not require medication.
Following claimant’s discharge from the hospital, Dr. Thompson next saw
him on June 20, 2005, at which time he prescribed a course of physical therapy.
The doctor noted that claimant was still complaining of pain. On July 26, Dr.
Thompson saw claimant again and performed tests that showed that the range of
motion of claimant’s left knee was zero to 95 degrees rather than the
normal zero to 130 or 140 degrees. The doctor recommended continued physical
therapy. Dr. Thompson’s next examination, on September 6, 2005, records
that claimant’s range of motion had improved to 115 degrees but claimant
was complaining of pain in his right leg, which the doctor attributed to
overusing the leg to compensate for the limitations of the injured left
Dr. Thompson’s next examination was November 19, 2008, in preparation for
his trial testimony. He found that claimant had full extension of the left leg
but flexion was “limited at 100 degrees with a firm end point . . . once
he hit 100 degrees, it was fairly rigid, which is usually due to muscular
incompliance or non-compliance or stretch ability of the muscle and/or
scarring” (TM Vol. 1, p 30). X-rays showed that the fracture had fully
healed and that the installed hardware was properly in place. Dr. Thompson
found a degree of muscle atrophy of the lower thigh muscle, which he stated was
the result of disuse, and noted that claimant complained of pain particularly
with use of the knee, often associated with changes in the weather. Claimant
told him that he was taking Naprosyn 500 mg two or three times a day for the
pain. The doctor observed that claimant had not had any improvement in three to
four years and opined that it was not likely that claimant would experience any
further recovery and that his condition is permanent.
According to Dr. Thompson, claimant might benefit from a total knee replacement
sometime in the future to alleviate the result of the effects of the subject
injury as well as claimant’s prior tibia fracture.
On cross-examination, Dr. Thompson stated that his conclusion that claimant
suffered from muscle atrophy of his left thigh was based on visual comparison
with claimant’s right thigh, but he did not do an examination of
claimant’s right leg and did not evaluate the range of motion of the right
leg for the purpose of comparison. He acknowledged that claimant had arthritis
in his left knee and that such condition pre-existed the subject injury. He was
also aware that, in addition to the pre-existing fracture of the left tibia,
claimant also had a previous fracture of his right leg.
Dr. Robert Hendler, also a board-certified orthopedic surgeon, examined
claimant on November 10 and December 16, 2008, and testified for the defendant.
He stated he conducted a complete examination of both legs, and found that
claimant’s right leg had a “bow leg deformity (TM Vol. II, p 207),
significant atrophy of the right thigh and advanced osteoarthritis of the right
knee. He found that claimant’s left knee had full extension and 140
degrees of flexion, which is considered normal. He also found that the
ligaments in the left knee were not damaged or stretched and that the knee was
stable, and that there was no muscle atrophy of the left leg. Claimant walked
with a normal gait, without a limp.
Looking at claimant’s medical records and x-rays, Dr. Hendler opined that
Dr. Thompson did an “exemplary job” in the surgical repair of the
fractured femur (id., p 216), which healed in anatomic alignment. He
noted that unlike the prior tibial fracture, the fractured femur did not extend
into the knee joint and would not likely lead to arthritic changes.
Dr. Hendler’s conclusion was that the injury sustained in the subject
incident did not lead to any permanent loss of function or use, did not result
in any loss of range of motion or stability of the knee and had no effect on the
pre-existing arthritis of the knee.
On cross-examination, Dr. Hendler acknowledged that the type of femur fracture
sustained by claimant is initially very painful and that the installation of
hardware typically results in chronic or permanent complaints of aches and pain
in damp weather, which he described as the most common complaint after such a
fracture has been successfully treated surgically. On the other hand, he stated
that pain without weather changes was unusual and that there would be no reason
for episodes of sharp pain after the fracture was healed.
While there is no question that claimant suffered a severe and painful injury
to his left femur in the subject incident, it is equally clear that, as of the
date of the injury, claimant had a lifetime history of significant injuries to
his legs, including the prior fracture of the left tibia that, unlike the
current injury, extended into the joint itself, and a prior fracture of his
right femur (Exhibit 4, p 66). It is also clear that both his left and right
knees demonstrated “post-traumatic degenerative joint disease” on
x-rays taken shortly after the May 30, 2005 fracture of the left femur and that
such degenerative changes predated and were unrelated to the injuries suffered
in this incident (id., p 71, see generally pp 66-72).
Thus, although claimant is entitled to compensation for the pain and suffering
he sustained as the result of the use of excessive force by defendant’s
employees, the court finds that, other than the occasional aches and pains that
both doctors agreed are typical after an open reduction and internal fixation of
a femur fracture, claimant failed to prove that any of the symptoms and
limitations of his activities following the healing of the fracture can be
attributed to this injury rather than the pre-existing condition of his legs.
Even accepting Dr. Thompson’s evaluation that the range of motion of
claimant’s left knee is limited – an evaluation with which Dr.
Hendler did not concur – there is no basis for the conclusion that it is
more likely than not that such limitation is the proximate result of the subject
injury, as opposed to the prior tibia fracture, which had a greater impact on
the knee than the femur fracture.
Lastly, the court has also considered the short-term, non-permanent injuries to
claimant’s face and wrist resulting from the incident. On the record
here, these injuries are not implicated in any future award.
There is no support in the trial record for any award for future medical
expenses, notwithstanding Dr. Thompson’s speculation that claimant might
benefit in the future from knee replacement surgery to address the effects of
the repeated knee injuries. There is also no basis for an award for past
medical expenses as the only information before the court is that
claimant’s hospital bill was paid by some combination of Medicaid,
insurance and direct payment by the State. There is no indication that any
liens have been asserted against the recovery in this case.
Based on the foregoing, the court finds that claimant is entitled to damages of
$105,000 for past pain and suffering and $30,000 for future pain and suffering.
The Clerk of the Court is directed to enter judgment in the amount of $135,000,
together with interest at the statutory rate from July 25, 2008, the date of the
liability decision and the return of any filing fee actually paid.