Claimant is awarded total damages in the amount of $51,463.86 with interest as a result of a slip and fall at Marcy Correctional Facility.
|Claimant short name:||BROWN|
|Footnote (claimant name) :||Claimant had married between the time of her fall and the date of trial; however, during the trial she was addressed as Ms. Brown.|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||DIANE L. FITZPATRICK|
|Claimant's attorney:||NEWMAN, O'MALLEY & EPSTEIN, P. C.
By: Lawrence Epstein, Esquire
|Defendant's attorney:||ANDREW M. CUOMO
Attorney General of the State of New York
By: Joel L. Marmelstein, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||July 2, 2010|
|See also (multicaptioned case)|
By Decision filed November 15, 2005,(2) this Court determined that the State was 40% liable and the Claimant was 60% liable for injuries Claimant sustained from a fall at Marcy Correctional Facility (hereinafter Marcy) on April 29, 2001. A trial on the issue of damages was held, and the proof thereafter held open for additional submissions and Dr. Crane's deposition. The proof was closed on February 10, 2010. This Decision addresses damages only.
Claimant briefly described how she tripped and fell into a fence at Marcy using her hands to brace her fall. As she tried to grab the fence, her right wrist was cut by a screw. The fence bounced her backward and she fell to her knees. She recalled pain in her right knee and right wrist.
The facility personnel called an ambulance for her, but she would have missed her visit with her son if she went to the hospital immediately, so she declined. Despite declining the ambulance, the ambulance personnel completed a Pre-hospital Care Report.(3) Under the heading "chief complaint" the preparer inserted right wrist laceration and included a similar notation under "subjective assessment." The objective physical assessment also referred to the wrist laceration and noted that the facility nurse had attended to Claimant. Claimant was advised she might require stitches and to seek medical attention if she had further problems.
Claimant drove herself to the Emergency Room at Faxton-St. Luke's Hospital in Utica, near Marcy, after visiting with her son. The Emergency Room records reflect Claimant's complaints.
1. Laceration and contusion to the right wrist
2. Swelling and pain in her left wrist
3. Ecchymosis, swelling and tenderness over the right patella.
She was in pain with a headache and could not use her left hand. Claimant's right wrist required four to six stitches to close. Her left wrist and right leg were X-rayed; she was given antibiotics, pain medication, and a soft splint for her left wrist which had a possible fracture. She was advised to followup with a doctor. Because she was driving back to New York City, she could not take the pain medications. She found she could not use her left hand to operate the directional lever and had to reach around the steering column with her right hand. Her left leg was stiff, and she had significant difficulty exiting her vehicle at a rest stop, and again at the garage in Manhattan.
The stitches were removed 10 days after Claimant's fall by a doctor at St. Clare's Hospital, now St. Vincent's Hospital, in Manhattan. There is a small 5/8 inch scar as a result.
On May 3, 2001, Claimant was seen by Frederic Helbig, M.D.,(4) an orthopedic surgeon. Claimant testified she complained about pain in her right leg. His office records(5) indicate Claimant was seen for her left wrist injury. X-rays were taken that day and the radiologist found the left wrist to be normal with no evidence of a fracture;(6) however, Dr. Helbig diagnosed a non-displaced intra-articular fracture of the distal radius, as did the radiologist at St. Luke's Hospital in Utica, who did the initial X-ray. Claimant was told to wear the splint except to wash her hands. There is no mention of a knee injury in the office records, but Dr. Helbig testified(7) that he had Claimant get an MRI of the right knee. The MRI showed a torn meniscus for which Claimant had arthroscopic surgery performed by Dr. Helbig on June 5, 2001. After the surgery, Claimant was referred to physical therapy for both her wrist and knee. Claimant recalled only getting therapy for her knee. During these treatments she experienced some pain in her right hamstring, behind the knee, and Dr. Helbig asked the therapist to apply some ultrasound. She was given exercises to strengthen and stretch her knee, and said she continued to do them regularly as of the time of trial. Claimant acknowledged having a previous arthroscopic surgery on her right knee in 1998 or 1999. Dr. Helbig testified that there was some evidence of a prior meniscectomy showing in the initial MRI.
Claimant said she wore the cast on her left wrist for approximately six weeks. It made working on the computer difficult and she experienced some pain. Except for a slight ache in bad weather, some limitation of motion, and some weakness, she has few problems with her wrist.
Claimant's right knee, however, has been a continuing source of pain and stiffness. Claimant expected the surgery to bring relief but was disappointed. She used to walk for exercise and loved to dance but can no longer enjoy these activities. Often she has trouble getting comfortable and takes ibuprofen for the pain. In December 2004, Claimant moved to Brazil, and the long flights back and forth from the United States cause her great pain.
According to Claimant, she stopped treating with Dr. Helbig because insurance no longer covered the cost.(8) She did have a follow-up visit in March 2005. The office note says she is stiff in the morning and keeping her knee bent for extended periods is difficult. She limps on occasion. The examination showed a decrease in her range of motion compared to her left leg. Dr. Helbig suspected that Claimant had developed degenerative arthritis and sent her for additional tests. On March 19, 2005, Claimant had another MRI performed on her right knee,(9) which revealed severe osteoarthritis with narrowing of the medial joint space and patellofemoral joint space with hypertrophic spur formation.
The State's only witness was Edward Crane, M.D., an orthopedic surgeon.(10) In preparation for his testimony, he reviewed Claimant's medical records, including X-rays taken in June 2007.(11) Additionally, Dr. Crane examined Claimant in September 2006. During this examination, Claimant confirmed a prior arthroscopic surgery on her right knee for a torn meniscus in about 1999. She complained of right-knee pain and swelling plus lower back pain due to the manner in which she walked when her knee bothered her. She had no continuing complaints about her wrist injuries. There was a 1.5 cm. scar from her laceration. The range of motion within her left wrist was within normal limits.
Dr. Crane noted that Claimant walked normally during the examination without limping or use of a cane. She could walk on her toes and heels without difficulty. Her right knee measured slightly larger than the left and her range of motion was slightly decreased. It was Dr. Crane's opinion that Claimant's knee problems were not the result of her fall but reflective of a preexisting, chronic condition. Nor did he believe her fall exacerbated her knee problems, which opinion is in direct contradiction with that of Dr. Helbig. Both experts testified that Claimant had arthritis in her knee before her fall at the correctional facility, and that such a condition could cause pain and restrictive motion. It was also agreed that the arthritis had become worse from 2001 through 2005 or 2006 when the doctors examined Claimant.
Undisputedly, Claimant suffered a laceration to her right wrist and a minor fracture to her left wrist as a result of her fall. The issue is whether or not her torn meniscus in her right knee was the result of her fall, and, if so, the permanency of her knee injury.
The medical reports of April 29, 2001(12) indicate a bruised, swollen right knee. Dr. Helbig testified that this trauma caused a displacement of the medial meniscus. Thereafter, he performed surgery on the knee and prescribed physical therapy. He had no independent recollection of Claimant or her treatment, so he relied upon his office notes and other medical records for his testimony. Curiously, the notes of Claimant's first visit contain no complaints or concerns about her knee. Dr. Helbig said she must have voiced a complaint because he sent her for an MRI.
Dr. Crane's opinion that Claimant's knee problems were not causally related to her fall was based, in part, on the lack of documentation of a knee injury in the initial reports and office notes.(13) The MRI done May 26, 2001, showed a small joint effusion which Dr. Crane felt was consistent with the arthritis she had, and that extruded meniscal fragments are commonly seen with osteoarthritis.
Despite Dr. Crane's opinion, there was trauma to Claimant's right knee as a result of her fall. At the time, her laceration and left wrist were more painful to her. The Court agrees that Dr. Helbig would not have ordered an MRI of her knee unless there was some impetus to do so. Therefore, the Court finds that Claimant's torn meniscus was the result of her April 29, 2001 accident. However, not all of her current problems are the result of this injury. Claimant had a prior meniscus tear and surgery on her right knee, and she also had arthritis in her right knee before her fall. The arthritis is degenerative and would cause her pain and limitation. No further surgeries or medical treatment are necessary. Claimant had 17.7 years life expectancy at the time of trial (1 NY PJI 3d Life Expectancy Tables, p. 1730).
Claimant, who was 61 at the time of her injury, testified that she was employed as assistant to the president of Great American Knitting Mills in Manhattan. As a result of her injuries, she missed work, but was unsure of how long, maybe four to six weeks. She was compensated through a disability fund and unused sick leave. She continued to work until she was laid off in October 2001. No proof of income was provided, other than her testimony, that she was paid $975 per week. Claimant has not established her entitlement to lost wages or the value of accumulated sick leave.
Claimant seeks $17,549.90 for special damages. The Court has reviewed the evidence and finds the following special damages:
St. Luke's Hospital Emergency Room 102.45
St. Luke's Radiology 11.00
St. Vincent's Hospital 734.88
Medical Services of St. Vincent's 35.00
St. Vincent's Pathology Associates 83.00
St. Clare's Hosp. & Health Center 35.42
Backtec Orthopedic & Sports Physical Therapy 270.00
Frederic Helbig, M.D.
May 3 $ 425.00
August 15 125.00
June 5 5,000.00
Greenwich Medical Anesthesia 990.00
Manhattan Plaza Pharmacy 17.90
Claimant is awarded $8,659.65 for total special damages. The State is responsible for 40% or $3,463.86.
Based upon the evidence and the credibility of the witnesses, the Court finds Claimant is entitled to $80,000 for past pain and suffering and $40,000 for future pain and suffering. The State is liable for 40% or $48,000. Claimant is awarded total damages in the amount of $51,463.86. Interest shall be calculated on the award from the date of the liability determination, October 13, 2005 (Love v State of New York, 78 NY2d 540).
All motions not heretofore decided are now denied, and it is hereby
ORDERED, that 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.
July 2, 2010
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
2. Brown v State of New York, Ct Cl, Fitzpatrick, J., filed November 15, 2005, Claim No. 104477, UID #2005-018-488.
3. Exhibit 7.
4. Exhibit 5.
5. Exhibit 5.
6. Exhibit 5, May 8, 2001 letter/radiology report of Sunil Trasi, M.D.
7. Exhibit 14.
8. Apparently her health care insurer went defunct during her treatment for these injuries.
9. Exhibit 15.
10. Exhibit A.
11. Exhibits D - I.
12. Exhibit 3-A.
13. Exhibits 3, 5, and 7.