Claimant was awarded the sum of $42,500.00 for pain and suffering (past and future) resulting from burns to his left thigh, left leg and ankle, in an incident which occurred at Cayuga Correctional Facility.
|Claimant short name:||LAYOU|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||NICHOLAS V. MIDEY JR.|
|Claimant's attorney:||LYNN LAW FIRM, LLP
BY: Thomas F. Shannon, Esq.,
|Defendant's attorney:||HON. ANDREW M. CUOMO
BY: Edward F. McArdle, Esq.,
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 30, 2010|
|See also (multicaptioned case)|
In a decision on liability filed August 30, 2007, this Court found the defendant State of New York 50% liable for personal injuries suffered by claimant in an incident which occurred on December 2, 2002, at Cayuga Correctional Facility (Cayuga), where he was then incarcerated (Layou v State of New York, Ct Cl, August 6, 2007, Midey, J. [UID #2007-009-174])(1) . On that date, claimant suffered burns to his upper left thigh and left buttocks, and his lower left leg and ankle, when the lid came off a 10-gallon container as he was attempting to pour hot coffee from that container into a 5-gallon coffee urn.
A trial limited to the issue of claimant's damages has now been held, and this decision addresses that issue.
Jack E. Keiser, Jr., M.D., was called as a witness by claimant. Dr. Keiser is a physician at Cayuga who provided medical treatment to claimant following this incident. Dr. Keiser testified that he first examined claimant on December 2, 2002, the morning of the incident. He testified that he observed some small blisters at the time of this initial examination, and that he believed that claimant had suffered second degree burns on his left thigh, calf and ankle. Dr. Keiser did not recommend that claimant be transferred to an outside hospital for further treatment, but did place him in the infirmary at Cayuga. He prescribed silvadene, an anti-microbile ointment, for the burns.
Claimant remained in the infirmary from December 2, 2002 through December 5, 2002. During this time, claimant underwent daily dressing changes, and he was provided ibuprofen for his pain. Claimant was discharged from the infirmary on December 5, 2002 at his own request, but he continued to report to the infirmary on a daily basis for application of silvadene and dressing changes.
Dr. Keiser further examined claimant on December 12, 2002, and noted that claimant still suffered from a significant part of the burn on his ankle area. Dr. Keiser also noted an area of numbness on the inferior distal portion, and believed that claimant had suffered some superficial nerve injury. Dr. Keiser testified that there is no readily available treatment for a nerve injury, and that once the peroneal nerve is damaged, such damage is permanent.
Dr. Keiser noted that second degree burns are initially the most painful type of burns during the first several weeks following the injury.
Claimant was seen again by Dr. Keiser on December 19, 2002, when he complained of pain in both his foot and ankle. Dr. Keiser examined claimant once again on January 30, 2003, and he noted that claimant continued to show slow and steady improvement. He saw claimant once again on March 3, 2003, when he observed "moderate pigmentation changes"(2) and released claimant back to full activity.
The report of this neurologist was received into evidence at trial (Exhibit 28). The report of the neurologist indicated that claimant experienced a "[decreased pinprick] in pattern of peroneal [and] deep peroneal nerve" and the neurologist concluded that claimant's burns had resulted in damage to the left peroneal nerve.
Dr. Keiser also testified that although claimant's wounds did not become infected, he sustained some blistering and developed some pigmentation changes. Dr. Keiser further acknowledged that the scars caused by the burns resulted in some contracture of the skin, which could also cause pain and result in certain physical limitations.
Dr. Keiser examined claimant once again on April 14, 2003, and again on August 15, 2003, when claimant complained of intermittent occurrences of numbness in his left leg. On that date, Dr. Keiser referred claimant to a neurologist for a second opinion.
Claimant was the only other witness to testify at trial. He testified that when the coffee was spilled on him, he instantly suffered very intense pain, and that he immediately removed his pants before walking to the infirmary, where he was initially seen by a nurse. When he arrived at the infirmary, he noticed that the skin on his left buttocks and thigh was red, but that skin had been taken off his left leg and calf area, and that there was a small blister on his leg.
He acknowledged that he was treated with ointment applied to the burns. He was also given 600 mg of ibuprofen for pain relief, but that the medicine did not provide any pain relief whatsoever.
He further testified that he remained in the infirmary for three days before requesting that he be returned to the general population. After his release, he continued to report back to the infirmary on a daily basis for reapplications of the silvadene ointment and changes of his wound dressing.
Claimant testified that his wounds were extremely and intensely painful for approximately the first three months following this incident, and that the pain was continuous, during every waking moment. He further testified that after three months, his wounds had closed, but that he still experienced pain, which he described as a "constant sensation" rather than the intense pain that he had initially suffered.
Claimant confirmed that after he was finally examined by a neurologist, the neurologist informed him that he had suffered both second and third degree burns, and that the numbing sensation that he experienced was permanent.
In addition to this trial testimony, relevant portions of claimant's medical records were introduced into evidence (Exhibits 16 - 28), which corroborated the testimony of claimant and Dr. Keiser. Additionally, photographs of claimant's burns taken on December 20, 2002, 18 days after the incident, were received into evidence (Exhibits 1-8), together with photographs taken on December 23, 2003, approximately one year after the incident (Exhibits 9 - 15).
Additionally, counsel for the parties stipulated at trial that the scarring which is present on claimant's left calf and ankle is permanent in nature; that the contracture of the skin that is present in the area of claimant's left ankle is also permanent in nature; and that no surgery is recommended. Furthermore, the parties stipulated that on the date of trial, claimant was 37 years of age, with a life expectancy of 39.0 years.
Based upon the trial testimony, together with the medical records which were received into evidence, the Court finds that claimant suffered severe and intense pain immediately after the hot coffee was spilled upon him. The Court finds that claimant suffered burns to his upper left thigh and left buttock, and more severe burns to his lower left leg and left ankle. The testimony and documentary evidence establish that claimant was confined to the infirmary at Cayuga for three days following this incident, and during this time he received medical treatment for his injuries, including application of ointment, ibuprofen for pain, and regular dressing changes. The Court further finds that claimant's pain continued for approximately three months, with slow and steady improvement during that time.
Additionally, the Court has reviewed the photographs received into evidence, which reveal scarring and pigmentation changes on the lower left leg and ankle, which the parties have stipulated are permanent in nature. There also appears to be permanent discoloration on claimant's left thigh and buttocks area as well.
The Court notes that although claimant testified to a constant and continuing numbing sensation in his lower leg, as well as tightness around his ankle, there was no evidence at trial indicating that claimant had either sought or received any medical treatment for these complaints after claimant was released from State custody. Furthermore, there was no testimony or any evidence of economic loss suffered by claimant as a result of these injuries.
Accordingly, based upon the foregoing findings and the entire trial record, this Court finds that claimant has suffered damages in the amount of $60,000.00 for past pain and suffering and the permanent scarring which has resulted from these burns. Furthermore, medical testimony has established that claimant has suffered some permanent damage to his peroneal nerve, but this damage has not significantly impaired claimant's ability to engage in his normal daily activities. Accordingly, the Court hereby finds that claimant has suffered damages in the amount of $25,000.00 for future pain and suffering. However, this award of $85,000.00 in total damages must be reduced by the percentage of claimant's comparative fault as found in this Court's prior decision on liability. Accordingly, this award is hereby reduced by claimant's 50% comparative fault, resulting in an award to claimant in the amount of $42,500.00.
The amount awarded herein shall carry interest at the rate of 9% per annum from the date of the determination of liability on August 6, 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.
March 30, 2010
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims
1. Unpublished decisions and selected orders of the Court of Claims are available via the Internet at http://www.nyscourtofclaims.state.ny.us.
2. Unless otherwise indicated, all references and quotations are taken from the Court's trial notes.