CARATHERS v. THE STATE OF NEW YORK, #2009-030-025, Claim No. 109001
Reasonable compensation for past pain and suffering is in the amount of
$12,000.00. After fall from wheelchair, inmate claimant had right elbow injury
which resolved in 1 month, and knee injury in the form of sprain of the medial
collateral and lateral collateral ligaments, bruising, and effusion, resulting
in pain and suffering for 12 months. No showing that the fall was causally
related to permanent inability to walk or stand
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
THOMAS H. SCUCCIMARRA
GARY E. DIVIS, ESQ.
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: RACHEL ZAFFRANN, ASSISTANT ATTORNEY GENERAL
September 15, 2009
See also (multicaptioned
Darrin Carathers established during the liability phase of the trial of this
claim that defendant’s agents failed to secure his wheelchair at the
loading dock of St. Agnes Hospital, causing him to fall and sustain injury on
March 26, 2002. [See Exhibit 2]. This Court found the State of New York
100% responsible for the fall and any resulting damage. An interlocutory
judgment was issued on December 10, 2007. This decision addresses the issue of
Mr. Carathers testified
that he was born on
March 9, 1965, and that he was now 44 years
On March 26, 2002, he weighed close to
300 lbs and was six feet tall. Almost 20 years earlier, on April 21, 1981 he
sustained a gunshot wound, and has been confined, for the most part, to a
wheelchair since. As he understood it, he sustained injury to the L-1 level of
his spinal cord leaving him “partially paralyzed” and
1983 and 1985 Mr. Carathers claimed he was able to walk with braces and
crutches. Thereafter, he was “always confined to a wheelchair.”
[T-18]. He said that from the knee down in his right leg he had no muscles or
muscle tone, and was unable to move any portion of the right leg from the hip
down. With regard to the left leg, however, he said he could extend his leg
“to the fullest and I could stand on it . . . My thigh muscle was . . .
. . . I didn’t have a calf muscle, but I had the thigh muscle.”
Asked to describe what he could sense in his left knee, if anything, prior to
the March 2002 fall, he said he could
“feel feeling. I could feel water, I could feel if I was wet, I could
feel if somebody touched me, I could feel if somebody hit me, I could feel if
somebody stick [sic] me with a pin.” [T-23].
Before the accident, the medical devices he used were braces, a wheelchair and
wooden crutches. He said he could not stand or walk “unaided”, but
utilized a combination of a short leg brace for his left leg, and a long leg
brace for his right leg, to walk. He said that the long brace would go on his
right leg, the short brace would go on his left leg, he would lock the brace,
stand up, and, with the use of crutches, walk. He said he could “walk
pretty far . . . several New York City blocks.” [T-27]. For exercise
before the accident, he lifted weights and would walk as described. He claimed
that he would walk around the recreation yard once or twice a week.
Confronted with prior deposition testimony on cross-examination, in which he
had indicated that he did not go walking in the yard at Green Haven at all, he
said at trial that he did walk utilizing his braces and crutches. He later
capitulated somewhat and said that he actually walked between parallel bars for
exercise, but also insisted that he could walk with crutches and braces before
this fall, although nothing in the medical records supports this assertion
except for his own reports to medical personnel postdating this accident, as
recorded by medical personnel. [See e.g.
Exhibit 3, p.
The condition of his right elbow was “pretty good” before the
accident. [T-27]. In terms of any pain he felt in his right elbow immediately
after the fall, on a scale of one to ten, the pain felt in his right elbow was
an eight, and the pain felt in his left knee was about ten. He said he was
prescribed Percocet for the pain.
In terms of subsequent treatment after the immediate fall, he recalled that his
left knee was drained in the Green Haven treatment room, sometime in 2002 when
he was also given a cortisone shot. He testified he was not provided with
physical therapy at Green Haven (although that assertion is belied by the
medical records.) [See Exhibits 1, 3]. After he left Green Haven for
Shawangunk Correctional Facility, he was provided physical therapy because
“they [were] trying to get me to walk.” [T-41]. He claimed that
because his “wheelchair was too wide to get into the cell” at
Shawangunk, they tried to get him to walk for their own convenience rather than
his progress. He testified that when he told them he could not walk, they sent
him down to physical therapy. He said he could not perform physical therapy
because he “couldn’t take the pressure on [his] knee.”
On cross-examination, however, claimant said he did not receive physical
therapy after Green Haven and, indeed, failed to pursue physical therapy,
because it “stunk.” [T-83]. Medical records indicate an inability to
stand as early as February 4, 1993 [Exhibit A]. A note from May 2003 records
that claimant “has no desire to attempt strengthening (for
standing)” rendering physical therapy not “feasible.” [Exhibit
3, p. 109]. Whether it stunk, or not, it appears that physical therapy was
attempted in 2003 at Shawangunk.
Mr. Carathers said the last time he felt pain in his right elbow was
“maybe a month after
. . . the fall.” [T-47]. He explained:
“I still have pain in my left knee when I do certain things, but
it’s not like it used to be before. The pain - - you know, I just
don’t feel pain, but when I go to tie my shoe and)I’ve got to cross
my leg and stuff like that, I still feel pain then.” [T-47]
He was unable to lift his right leg at the time of trial, and said he could not
do so before the 2002 fall either. In order to put on shoes, for example, he
must move the leg with his hands.
On cross-examination, however, Mr. Carathers said that before the accident, he
could not bend his left knee, but is now able to put a sneaker on his left foot
by himself, bending the same knee.
Claimant raised his left leg 30 to 40 degrees off the floor in response to a
request for a demonstration, but said that before March 26, 2002 he could
“move it more” and “could straighten it out then.”
[T-54]. He said that his left leg was “bigger” and had more muscles.
[T-52]. There was no difference in the left calf muscle, he said.
On cross-examination Mr. Carathers confirmed that the right elbow injury healed
in about a month or so, and that he currently does not suffer from any
limitations due to the right elbow injury. [T-56-57]. He conceded that he was
continuously taking Percocet for pain in the months prior to the accident,
prescribed for the chronic back pain he suffers because of the bullet lodged in
his back. He recalled the dosage as two tablets, three times a day. The
prescribed dosage was scheduled, rather than taken on an “as needed”
basis. [T-57-58]. With the Percocet, he said that on a scale of one to ten (ten
being excruciating pain and one no pain at all) the level of pain was
“maybe four. Around four.” [T-58].
Claimant also has an extensive history of using illegal drugs. He said he began
smoking marijuana daily as a teenager, until he was approximately 19 or 20 years
old. As a 20-year-old, he started using between half a gram and a gram of
cocaine twice a week. He “graduated to smoking it” and estimated he
had a cocaine habit “maybe a little under ten years.” [T-73].
Heroin use overlapped his cocaine habit as well. He said he “started using
heroin 1990 somewhere,” and generally used “two bags a day”
for approximately nine years “to help me with my pain.” [T-73-75].
Interspersed with the illegal drug use, claimant indicated that he had been
prescribed 35 milligrams per day of methadone in 1987, then was
“off” it, then “got back on” in 2003. [T-75 -76]. He
said he stopped using methadone in 2007.
Claimant confirmed that prior to his release from DOCS in 2003, he fell and
broke his left hip. The entire hip bone was removed surgically in November 2004
as a result of this injury. As a result of that surgery he cannot walk. He
said, however, that
“the reason why my hip bone was taken out it was because the doctor said
since I can’t use my feet he says it don’t make no sense for him
putting a plastic hip in me, which could cause an infection if I’m not
using it anyway. So that’s why he never put the plastic hip in."
He agreed that the removal of the left bone from his hip is unrelated to his
fall on March 26, 2002. [T-78]. No medical testimony from medical witnesses
concerning any rationale for installing (or not installing) a plastic hip was
Jerome A. Davis, M.D., a retired neurosurgeon, testified as claimant’s
expert.[ See Exhibit 5]. Before testifying he reviewed medical records
and depositions, but did not perform a physical examination of claimant. Indeed
neither claimant nor defendant’s expert had an opportunity to physically
examine the claimant, although Dr. Davis had the opportunity to observe
claimant’s video testimony at trial, and observe him move as requested
when he testified.
Dr. Davis agreed during voir dire that as a neurosurgeon, wherein he was
involved in the “medical treatment of the head, brain, the back, spinal
cord and the peripheral nerves,” he would “not usually” treat
knee injuries or elbow injuries. [T-102]. Unless there were a related nerve
injury, he would refer a patient to an orthopedist or an orthopedic
Dr. Davis explained that paraplegia is a weakness or inability to use one side
of the body or one half of the body. He said that paraplegia has an effect on
the motor function of a person, and may also have an effect on the sensory
function of the lower extremity if the spinal cord is implicated. Asked to
explain what L-1 paraplegia is, Dr. Davis said that what the descriptor
describes is weakness beginning “at the L-1 level and L-1 is Lumbar
1.” [T-108]. Nerve roots there come off to innervate the lower
extremities for sensation and muscular function. Depending on what fibers or
roots have been injured by a gunshot wound, L-1 paraplegia does not necessarily
imply total loss of movement. Dr. Davis said that you could have a total loss of
motor function on one lower extremity, while on the other there could remain
some residual motor function.
Reviewing medical records relative to claimant’s gunshot injury, Dr.
Davis said that the gunshot at the L-1 level destroyed bone presumably
[“although I don’t see any report to that”] and also injured
“what they call the spinal cord. [It] could be the spinal cord, or it
could be the conus medullars or the nerve roots that come forth from the spinal
cord. There’s nothing in the notes and the information that I read which
tells me exactly what was involved.” [T-110].
It then transpired that the only records Dr. Davis reviewed prior to testifying
were the DOCS medical records from January 1, 2002 to July 24, 2002 [Exhibit 1];
DOCS medical records from July 18, 2002 to December 21, 2004 [Exhibit 3], and
records from the BOP from 2007 and 2008 [Exhibit 4], rather than additional
records from 1993, 1998, 1999 and 2000 submitted by defendant that contain some
better descriptions of claimant’s condition prior to the accident of
March, 2002. [See Exhibit A].
Dr. Davis said that the effects in a person’s lower legs that would
generally be expected from a gunshot wound in the spine between L-1 and L-2
would include weakness, sensory loss, and difficulty with the urinary tract,
including difficulty with urination. The voluntary range of movement would be
limited depending upon what muscle groups remain. Over time, movement and
strength would probably decrease if there were little movement left initially,
simply as a neurological effect from disuse. Muscle strength would diminish
because of disuse and atrophy. The exercise claimant testified to, utilizing
crutches and leg braces, is the sort of exercise that would maintain the range
of movement and muscle strength.
Shown a report of a physical examination of claimant dated April 30, 1993 that
he had not reviewed before trial, and had not utilized in forming his opinion
therefor, Dr. Davis interpreted some of the medical notations. [ Exhibit A]. He
said that the notations indicate that with regard to his left leg, claimant
exhibited a 45-degree range of motion, and that some vascular system examination
was conducted showing that there was some strength and some motor function to
that leg (although he did confuse the two legs during his testimony). Dr. Davis
said the entry also indicates “decreased sensation bilateral soles,”
and presumed that the reference is to the soles of both feet; and indicates
there is not range of motion to the right leg. [T-118-119].
Reading an entry from January 20, 1999, Dr. Davis said (interpreting the note):
“It says that there is atrophy and paraplegia of the left lower - - of
lower extremities. I think they meant both of them.”[ T-121].
Reading another entry dated March 24, 2000, [Exhibit A], Dr. Davis said that
claimant’s paraplegia secondary to a gunshot wound is noted, as is the
information that the claimant indicated to the recorder that he had not walked
since 1986, and . . . “walked only sporadically before that with bilateral
extremity braces and assistance . . . device.” [T-121]. Mr.
Carathers’ “upper extremity strength” is noted as “five
over five bilateral.” [T-121-122].
Dr. Davis confirmed that he had heard the description claimant had given of his
use of the short and long brace with crutches to walk and other testimony, and
repeated his familiarity with what medical records he had been able to review.
It was his opinion, within a reasonable degree of medical certainty based upon
claimant’s testimony and those medical records, that while Mr. Carathers
had weakness in both lower extremities prior to March 26, 2002, on the left side
“he had more function.” [T-123]. Before the accident
“. . . he could theoretically get up a little bit out of the wheelchair.
He used both lower extremities, the right leg with the long brace and the left
leg with the short brace . . . he had some use of both legs prior to the
He also opined that because of the fall off the wheelchair, the condition of
his left knee and left leg changed. He said that . . . “the use of his
left knee and his left leg diminished after the accident where . . . the
wheelchair turned over [from the blunt force trauma to the left knee],”
that there was no fracture, but the knee joint was asymmetrical when “a
knee joint should be symmetrical,” and that there was swelling.
Dr. Davis opined to a reasonable degree of medical certainty that the change in
the left knee was causally related to the injuries sustained on March 26, 2002.
Part of the reason that he thought there was a causal relationship was the
claimant’s testimony, supported by what he recalled of the medical
records, that medical personnel were removing fluid from the knee, and injected
Cortisone at the same time as the removal, demonstrating that “they were
trying to treat this effusion, . . . the trauma to the knee that occurred at the
time of the incident.” [T-133]. He further opined that the injuries were
permanent to November 2004 (when claimant underwent surgery resulting in hip
removal) largely because of the effusion or swelling of the knee, and
“the fact . . . that he seems to have less use of that knee since the time
of the incident . . . I think
that with . . . correct treatment and physiotherapy and with the use of braces
he probably would
have been able to walk, but he can’t walk. It’s gotten worse . .
On cross-examination, Dr. Davis agreed that one would need to know how Mr.
Carathers functioned prior to the accident to know if there was a difference
after the accident. Although he conceded that he only reviewed medical records
dated from July 2002 through current medical records from the Federal BOP, he
said that he read historical notations in the records that he did have, and had
additionally reviewed the claimant’s testimony. Overall, Dr. Davis had
difficulty pointing out in the medical records he reviewed notations
establishing claimant’s baseline abilities with his left leg and knee. Dr.
Davis admitted that he relied (mostly) on claimant’s deposition,
claimant’s trial testimony and conversations with claimant’s
attorney, and agreed that generally one does not rely only on a patient’s
report that his knee hurts, for example, without further examination and
testing. Additionally, he would likely refer the matter to an orthopedist once
he performed an initial exam and ordered an x-ray. He agreed that when there is
no opportunity to perform objective tests, using the traditional methodology of
combining a patient’s assessment with one’s own physical examination
and objective tests, there are limits on understanding the patient’s
condition. He acknowledged that patients may exaggerate injuries.
Dr. Davis agreed that there is no evidence “in the documents [he]
read” that the right elbow injury has any permanent effect on claimant.
[T-154]. The doctor acknowledged that he was aware that in 2001 claimant
reported to a medical provider that he had not been ambulatory since 1994, but
said that he was also aware that claimant said that “he could get up and
take a step or hold on to something and take a step or two.” [T-158].
Dr. Davis also agreed that putting aside the gunshot wound in 1981 there is no
evidence “as of now” that as a result of the accident in 2002 any
neuropathy has developed to his knee or elbow, or that his range of motion in
his elbow has been limited. [T-161]. With regard to changes in the range of
motion in his left knee, Dr. Davis said that based on what he observed of
claimant during his testimony, and upon unspecified portions of the medical
records he reviewed, “I would presume he had a greater range of movement
and motion prior [to the fall],” [T-164] but had to acknowledge such
assessments are very subjective, and that even a 15 degree difference in a range
of motion assessment could be the result of the subjective way someone is
viewing the movement. More significantly, range of motion alone is not going to
make a difference as to whether or not a person can walk.
Asked to discuss his opinion concerning the derangement of the left knee as
provided in one of the expert notices, Dr. Davis said that although it was not
shown in an x-ray he reviewed, it was “in one of the doctor’s
reports” he reviewed. [T-170]. When the issue was further probed, he
agreed that a report from May 21, 2002 [Exhibit 1] instead “says:
‘MCL [medial collateral ligament] and NCL sprain. Should heal
spontaneously.’ ” [T-171]. Asked if he had a reason to believe the
diagnosis was incorrect, Dr. Davis said that he did not, but he did think it was
“incomplete” since fluid accumulated, suggesting that there was more
going on than a sprain of the medial collateral ligament and lateral collateral
ligament of the left knee that would heal spontaneously with time and physical
Dr. Davis ultimately agreed, however, that as of the trial date, there was
nothing in the medical records to support the conclusion that once that water
was removed from the knee, that there were any other side effects from the fall
in the seven plus years since the accident.
Barry Kraushaar, MD, an orthopedic surgeon, testified as defendant’s
expert. [See Exhibit C]. Board certified in orthopedic surgery and in
sports medicine, he said that “on the medical side” of his work, he
evaluates people who have injuries to the muscular skeletal system, and that
“on the surgical side,” he treats fractures and does joint
replacements, among other things. [T-203]
Prior to testifying Dr. Kraushaar reviewed medical records from 1989 through
2007 and depositions. The impact of the 1981 spinal injury at the L-1 level, he
said, is that it affects both sensation and movement from the level of the
injury and downward. An L-1 level injury would have affected nerves from the
spinal cord starting at the level of the first lumbar vertebra, “which is
right at the bottom of the rib cage and all the way down to both legs.”
[T-205]. It was his opinion that based upon the L-1 level of this 1981 injury,
as well as the lack of documentation in the medical record, that prior to March
26, 2002 claimant was not walking as he had indicated. Indeed, medical providers
reported in the record that claimant himself stated he had not been ambulatory
Dr. Kraushaar also said that sensation would be affected by an injury at the
L-1 level. From the records he saw, while Mr. Carathers had some sensation at
the L-3 level, there was no clear documentation of sensation below L-3. The
witness explained that there might be some sensation at L-3 with an L-1 level
“[b]ecause some of the nerves that feed the L-3 area take off about the
area of his spinal cord injury . . . some got by . . . Mr. Carathers’
ability to sense pain or any feeling at all starting with the area of L-1 . . .
downward, quickly diminishes. He was able to have sensation from the waist and
the top of the thigh area and some sensation, although not complete, . . . from
the hip to the knee. He had no sensation from the knee down or no appreciable
sensation that was documented in the record.” [T-206].
He thought that prior to March 26, 2002 claimant did not have sensation below
the knee on either leg, including behind the leg. The lack of sensation behind
the leg up behind the back of the thigh and buttocks is shown in the medical
records because the presence of skin ulcers on the buttocks is recorded. He said
“the sensation for Mr. Carathers was absent in his buttocks even though
it’s above the knee because it’s in the back of the leg. So, the
only sensation he had would be in front of his hip pocket and to the front of
his knee and some partial sensation in his knee.” [T-206-207].
The presence of the pressure sores on his buttocks suggests that Mr. Carathers
had no “protective sensation” in that area, in that he could not
sense that the sores were present, therefore he did not (or could not) shift his
body or lift it from his sitting position in a natural, protective, response to
discomfort or pain. [T-207].
The notations in the examination of April 30, 1993 [see Exhibit A] to
the effect that Mr. Carathers had “decreased sensation bilateral
soles” is an indication that he had no feeling in the bottom of his feet,
which would also be consistent with an inability to sense below the knee. Dr.
Kraushaar said lost sensation would not return. He inferred from this record
that “when he walks, if he were to walk, he wouldn’t be able to feel
the floor.” [T-210].
In terms of motor function, it was Dr. Kraushaar’s opinion the 1981 L-1
level injury would dilute motor function even more completely than sensory loss.
“[E]ven though Mr. Carathers could feel the top of his knee, his motor
loss would be higher up than that ... L-1 is the level where the hip flexures
occur. In other words, Mr. Carathers had weakness of the ability to flex his
hips, and he had weakness of the ability to extend his knee because those are
the last levels of any possible motor function in this case. In this case, the
loss of function at L-1 means complete loss of the ability to bend his ankle
upward or downward actively, and it also means the loss of his hamstring
function behind his thigh, which at best could twitch, but could not function as
a true hamstring... [I]f one is going to try to get out of a chair to try to
walk, you can’t push yourself out of your chair unless you have hamstrings
to help push out of the chair, and if one is going to stand, then an L-1
function isn’t going to allow him to stand.” [T-210-211].
Dr. Kraushaar said that based on the scoring system from the American Spinal
Injury Assessment system (ASIA), one is wheelchair-bound with an L-1 or L-2
level injury. With an L-3 level injury, the patient is a candidate for walking,
but that has to be true for both legs. In his experience, an individual with an
L-1 level injury cannot walk. Dr. Kraushaar said:
“You can’t have an L-3 level on the left leg and an L-1 level on
the right leg and expect to walk. [Y]ou have to have both legs capable of L-3
nerve function before you can walk.” [T-211].
With regard to injury to his knee resulting from the fall on March 26, 2002,
Dr. Kraushaar agreed that Mr. Carathers suffered a superficial injury to his
knee in the form of a contusion or an abrasion to the knee, as well as an
effusion or swelling in the knee. Additionally, the records showed that he
suffered injury in the form of a sprain (rather than a tear) to the medial
collateral ligament [MCL] of the left knee, or “the two ligaments on the
side of the knee” [T-212]. Such an injury generally resolves itself with
time. For a person in a wheelchair, he said, “there’s no necessary
treatment for it,” although an individual who walks or an athlete might be
afforded a brace “for a couple of weeks” primarily for their own
comfort and to prevent re-injury when walking. [T-215].
In terms of pain from the MCL sprain, Dr. Kraushaar said Mr. Carathers would
have had only partial sensation in the MCL, but said that
“everybody might feel a different degree of pain from the same injury,
but all I can say with any medical authority is that Mr. Carathers’...
ability to sense was less than anybody with a normal spine would have
With regard to range of motion, Dr. Kraushaar said that it is a way of
“notating how a joint moves.” [T-216]. He said that an MCL sprain
would not affect the range of motion in the knee in the long term, although in
the short term a person with normal sensation might feel uncomfortable. More
significantly he said, the range of motion would not really be affected because
the MCL sprain is in the sides of the knee. The knee can flex and extend
Dr. Kraushaar said that an effusion or water on the knee can happen with an MCL
injury. The treatment depends on the level of swelling. From the records, Mr.
Carathers had his knee drained, and was prescribed two anti-inflammatories,
first Indocin and then Naprosyn. Dr. Kraushaar said the effusion of the knee is
not indicative of some permanent injury (as had been suggested by Dr. Davis),
and is not treated aggressively.
His review of the medical records did not show that there was an indication of
instability to Mr. Carathers’ left knee caused by the accident. With
regard to claimant’s range of motion , he saw notations after March 26,
2002 to the effect that he had a range of motion of 30 degrees at one point, 45
degrees at another, and “another record in the same handwriting of full
extension of the knee” [T-229; see Exhibit 3, p. 15]. He
explained, however, that to describe a range of motion, two numbers are used.
One for how straight the knee goes, and another to express how far the knee
bends. Dr. Kraushaar said:
“You need the amount of extension, i.e., zero degrees to 90 degrees. The
range of motion will be zero to 90. It wouldn’t be 90 degrees of range of
motion. Now, if you want to say...that’s a total range of motion of 90
degrees, then you could say there was 90 degrees of movement of the knee. In
... Mr. Carathers’ case, he was capable of full extension... . [I]f he
could sit in a wheelchair, his legs were hanging to the floor, that’s
close to 90 degrees. So, his range of motion had to be more than 30 or even 45
degrees in the left knee, at least at some time before and after his...injury
[to be capable of full extension].” [T-231].
Based on his review of the records through 2007, Mr. Carathers’ knee
injury resolved somewhere in the time period between November 2002 and March
2003. Dr. Kraushaar remarked that the reason that he gave such a range was that
claimant was reported as suffering some patella tendinitis in July 2002, which
appeared to resolve in November 2002, but was again being treated for pain in
the left knee in December 2002 and March 2003. [Exhibit
As far as what degree of pain Mr. Carathers might have been experiencing, Dr.
Kraushaar repeated that the experience of pain for Mr. Carathers (as with any
person) is very subjective. The witness remarked that claimant was taking strong
narcotic medication (Percocet) for pain before the subject accident, and was
taking the same medication dosage after the accident. Dr. Kraushaar opined that
the knee injury suffered by Mr. Carathers was trivial in the medical sense. He
did not “damage his bones, he sprained one ligament, he bruised his knee
in the front and he got some fluid in the joint.” [T-235]. Compared to a
broken leg, or a dislocated knee or some trauma requiring more intensive
intervention, the injury was minor.
In terms of function, Dr. Kraushaar opined that claimant was a
wheelchair-dependent person who was not going to walk independently given his
spinal injury prior to this accident, and remained in the same status after this
accident. Dr. Kraushaar said that the attempts to get Mr. Carathers to ambulate
were “heroic measures” but there is no record of any success in
those attempts. Amplifying on his testimony that a patient with an L-1 level
injury does not walk, Dr. Kraushaar said:
“[Y]ou can’t walk with an L-1 nerve level ... and even an L-2
nerve motor level because you cannot extend your hip, and if the quadriceps
function is weak, you cannot stand on these legs for any longer. A brace that
goes from around the hip all the way down the leg to the ankle with heavy
brackets was suggested by the physical therapist in Mr Carathers’ case as
something that might help if it were tried, but we’re not just talking
about the left leg. We’re talking about the right leg too, because Mr.
Carathers had an extremely weak right leg, and on a scale of zero to five where
zero means complete dead paralysis of the leg, his left leg had at best a three
in his quadriceps muscle, and below the knee had nothing, and his hamstring had
a two. You can’t walk with numbers like this. You can’t train
these to be stronger than this....[F]unction doesn’t come back ...”
With regard to Mr. Carathers’ indications that he could hold his leg,
Dr. Kraushaar said
“Holding your leg up against gravity when you’re sitting in a
wheelchair is a whole lot different than holding your body up against gravity
when you’re standing, and braces can’t give you that strength back.
Braces can provide a railing or a support upon which you can stand, but it
doesn’t give you lift. It doesn’t give you any sustenance, and Mr.
Carathers could not walk down the hallway with any form of balance or endurance
with a weak right leg and with a weak left leg even if his left knee was totally
Finally, Dr. Kraushaar said that given Mr. Carathers’ own testimony that
he had no right leg muscles in either the upper or the lower leg, he could not
possibly have walked.
On cross-examination, Dr. Kraushaar conceded that claimant’s pain
threshold might have been very low compared to a normal person’s, and that
he would have no way of knowing what claimant’s pain was. He also agreed
that the loss of sensation in the soles of his feet was likely not 100% given
the notations of some sensation below the left knee, but repeated that it was
nonetheless mostly lost. By saying that, he explained, he was leaving room
“for a strand of sensation to be present in his soles” as well as
the inherent inability to “get inside Mr. Carathers’ head” to
experience what he experiences. [T-246-247].
In terms of the word “ambulate”, Dr. Kraushaar said that there was
only one indication in the record from the notes of the physical therapists,
wherein “a glimmer of hope of ambulation” was shown. [T-247]. The
only kind of ambulation, however, was “two physical therapists standing
next to him in the parallel bars in the therapy center using braces to try to
get him to stand.” [T-247]. No independent ambulation in a functional way
was seen in the record, and Dr. Kraushaar did not see any record of the
ambulation utilizing the short and long braces described by claimant, saying
“I defy him to walk without the use of the right leg . . . he has no right
leg strength ...” [T-249].
DISCUSSION AND CONCLUSION
The primary disagreement between the experts was the extent and degree if any
of claimant’s ability to ambulate (if at all) prior to the subject
accident. In this regard, the court finds that while both witnesses were
presented with the task of assessing the claimant’s historic and present
physical condition based only upon medical records, Dr. Kraushaar’s
synthesis of the information available was simply far more comprehensive and
credible than that of Dr. Davis, and more related to his medical specialty. Dr.
Davis relied primarily on the claimant’s own reports of his history, and
could not, when pressed, point to support in the medical records for his
Indeed, Dr. Davis himself recognized that he was stepping outside of his realm
of expertise by saying that presented with an individual who had fallen from his
wheelchair onto his elbow and knee, he would have referred the matter to an
orthopedist unless there was a related nerve injury of some type. While it is
true that a medical witness may testify in areas in the general medical domain,
and testimony beyond a particular expertise may be heard, this is a case where
the weight of the testimony is not substantial given the lack of foundation both
in Dr. Davis’s almost exclusive reliance on the reports of the claimant
and his attorney as to underlying facts, and a lack of familiarity with the
complete medical record available.
Claimant’s own testimony concerning his abilities is not borne out by the
medical records, and was inconsistent. While it is understandable that one might
exaggerate one’s abilities in retrospect, claimant was not consistent in
his direct testimony, his cross-examination testimony and what portions of his
deposition testimony were highlighted. At most – and this was recognized
by Dr. Kraushaar as well – claimant could move with the assistance of
therapists between two fixed parallel bars. Nothing in the records reviewed
showed that claimant could walk city blocks as claimed. Moreover, even assuming
that there was some limited ability to stand with the aid of multiple braces and
crutches as testified to by claimant, and limply adopted as fact by Dr. Davis
despite the absence of support in the medical records, no creditable causative
connection was made between a fall occurring on March 26, 2002 and any supposed
elimination of an ability to stand or walk thereafter. The barest perusal of the
medical records submitted in evidence show an individual with multiple medical
issues including obesity, who for any number of reasons may have been less
mobile over time, and not a candidate for hip replacement after a completely
unrelated fall subsequent to the fall of March 26, 2002.
A large part of the resolution of this issue rests upon the relative
credibility of the witnesses, and the weight of the evidence claimant presented
to substantiate his claim. Upon review of all the evidence, including listening
to the witnesses testify and observing their demeanor as they did so, the Court
finds that while claimant is entitled to some reasonable compensation for his
injury and past pain and suffering, there is no credible basis for finding as
suggested that this medically trivial fall resulted in his permanent inability
to walk, or stand.
There is an inherent subjectivity to evaluating an individual’s
experience of pain and to forming a diagnosis or an opinion based in part on
such complaints. Opinions are even more removed when they are based on medical
records alone rather than when given in testimony by treating physicians. This
makes the most elusive aspect of any damages award for personal injury - past
pain and suffering experienced by a claimant - even harder to quantify. Courts
sometimes look to other awards given because this item of damages is not subject
to “precise quantification.” Karney v Arnot.-Ogden Mem.
Hosp., 251 AD2d 780, 782 (3d Dept 1998 ), lv dismissed 92 NY2d 942
The claimant’s history of drug use as remarked upon by defendant’s
expert, and readily acknowledged by claimant, would be relevant here only in
terms of suggesting, as noted by Dr. Kraushaar, that he may have a low pain
threshold. Indeed, claimant said his drug use stemmed from, in part, a need to
remove the pain (presumably from the results of the 1981 gunshot wound).
Counsel for claimant has provided references to cases involving far more severe
injuries than those presented here, and asks for $160,000.00 in damages overall.
Counsel for defendant has included citations to cases of even more minimal
injury than those presented here, and suggests compensation in the amount of, at
most, by this Court’s calculation, $6,000.00.
Nonetheless, while case law sometimes is of assistance in assessing what
circumstances warrant a particular type of monetary award, each situation is
different, and is driven by its peculiar facts. The Court is persuaded that
immediately after the fall of March 26, 2002 Mr. Carathers suffered knee pain
from the trauma of his fall, resulting in the sprain of his medial collateral
ligament and lateral collateral ligaments in his left knee, some swelling in his
left knee, and an elbow injury. He experienced pain and suffering for
approximately one month with regard to the elbow, and approximately twelve
months with regard to the left knee. There is not, however, any permanency to
either of these injuries. It was not established by a preponderance of the
credible evidence that any inability to walk was causally related to the sprain
he sustained to his left knee ligaments. Any future pain and suffering is
entirely unrelated to this fall.
Accordingly, the Court finds that the claimant has suffered damages resulting
from the accident of March 26, 2002 for past pain and suffering, and that
reasonable compensation for same is in the amount of $12,000.00. The Clerk of
the Court is directed to enter judgment in the amount of $12,000.00, together
with interest from October 22, 2007, and to return the amount of any filing fee
All motions made at trial and not heretofore ruled upon are hereby
Let judgment be entered accordingly.
September 15, 2009
Plains, New York
HON. THOMAS H. SCUCCIMARRA
Judge of the Court of
. Mr. Carathers testified using video
conferencing technology from Lexington Kentucky Federal Medical Center. He is
currently in the custody of the Federal Bureau of Prisons [BOP].
.The Court took judicial notice that his life
expectancy was 30.1 years. [PJIVol 1B page 1617] (3d Edition 2006).
. Quotations are to the trial transcript
unless otherwise indicated, here [T-17].
. The writer records in the entry dated April
11, 2003 that Mr. Carathers “states could stand before 3/02 accident with
braces on both legs.”
Exhibit 3, p. 15, 11-6-02 note
concerning left knee pain; p. 5, 12-4-02 note concerning left knee pain; p. 133,
2-7-03 note concerning discomfort and swelling left knee; p. 64, 2-24-03 note
quoting physical therapist as saying “non-compliant to functional
assessment and states that his [left] knee is . . . couldn’t tolerate the
functional assessment;” p. 112, note 2-26-03 indicating left knee pain;
and p.111, 3-3-03 note indicating left knee pain.