Opinion
No. 134190
09-10-2024
S.M. Individually and as Natural Parent of M.M. an Infant Claimant(s), v. State of New York, Defendant(s).
Claimant's attorney: Abdella & Sise, LLP By: Robert Abdella, Esq. Defendant's attorney: Hon. Letitia James, New York State Attorney General By: Ramona L. Rabeler, Esq., Assistant Attorney General John Jensen, Esq., Assistant Attorney General
Unpublished Opinion
Claimant's attorney: Abdella & Sise, LLP By: Robert Abdella, Esq.
Defendant's attorney: Hon. Letitia James, New York State Attorney General By: Ramona L. Rabeler, Esq., Assistant Attorney General John Jensen, Esq., Assistant Attorney General
Anthony Brindisi, J.
Claimant S.M., individually and as natural parent of M.M., seeks damages for injuries that M.M. sustained when she fell on June 24, 2019 after stepping into a hole on a walkway located in the Johnson Hall State Historic Site, also known as Sir William Johnson Park, in Johnstown, New York. At the time of M.M.'s fall, she was 11 years old and walking on a designated path while attending a field trip with her school class. Following a trial on the issue of liability, this Court concluded that the hole on the walkway was a dangerous condition, that defendant State of New York had constructive notice of that condition, and that M.M.'s injuries occurred when she fell to the ground after stepping in the hole (see S.M. v State of New York, UID No. 2023-065-XXX [Ct Cl, Brindisi, J.]). The Court found defendant 75% responsible for M.M.'s injuries and M.M. 25% responsible for her injuries (see id.).
A trial on the issue of damages was held on July 1, July 25, and July 30, 2024 in Utica, New York. M.M., claimant, and Dr. Abigail Mantica testified on claimant's behalf. Defendant presented the testimony of Dr. Darren Friedman. During the course of the trial, claimant offered marked Exhibits 3, 5, 6, 7, 10, 11, 12, 13, 14, 15, 16 and 17, which were received into evidence. Claimant's Exhibits 4, 8 and 9 were marked for identification purposes only and not received into evidence. Defendant offered marked Exhibit Q, which was received into evidence. Defendant also offered Exhibits K and P, which were received into evidence, however they were later withdrawn due to Exhibit K being duplicative of claimant's Exhibit 10, and Exhibit P being duplicative of claimant's Exhibit 12. Defendant's Exhibits A through J, and L through O, were marked for identification purposes only and not received into evidence. At the conclusion of trial and in lieu of closing statements, the parties submitted posttrial memoranda.
Drs. Mantica and Friedman testified virtually on the parties' consent.
FACTS
At the time of trial, M.M. was 16 years old (T1-8). She testified that, when the incident occurred on June 24, 2019, she was 11 years old and in fifth grade (T1-9). Prior to her fall, M.M. maintained that she had no pain in her right hip, no difficulty walking, no restrictions on her gym class participation, and that she was not treating with a doctor for any orthopedic problems (T1-10). She had no difficulty walking on the day of the incident before she fell (T1-14).
"T1" will refer to the July 1, 2024 trial transcript,"T2" will refer to the July 25, 2024 trial transcript, and "T3" will refer to the July 30, 2024 trial transcript.
M.M. said that as she stepped in the hole, her right ankle twisted and her leg bent awkwardly, causing her to fall on her mid-thigh (T1-15). The fall caused her to experience pain that she had never felt before (T1-16). She described the pain as a 9.6 out of 10 and said that it felt like her leg was detached (id.). M.M. could not walk or even move her leg (id.). M.M. hopped on her uninjured leg to the school nurse's car with the assistance of a teacher (T1-16 to T1-17). The nurse drove M.M. back to school, where M.M. iced her injury while sitting in a wheelchair (T1-17). During that time, M.M.'s pain was still a 9.6 out of 10 (T1-18), and she had been crying from the time of her fall until she got to the nurse's office (T1-20).
About 30 minutes later, claimant picked M.M. up and drove her to M.M.'s primary care physician (T1-17 to T1-18). Because M.M. could not walk, a doctor advised claimant to take M.M. to St. Mary's Hospital (T1-18). There, staff used a wheelchair to transport M.M. to the waiting room, where she sat for about an hour before being X-rayed (T1-19). The pain had not subsided by this point (id.). The staff at St. Mary's advised claimant to take M.M. to Albany Medical Center (AMC). M.M. rode to AMC in her parents' car, and "every slight bump in the road was very, very painful" (T1-20).
At AMC, M.M. was confused and scared because she speculated that she would need surgery and was unsure how it would impact her life (id.). Ultimately, M.M.'s doctor, Dr. Mantica, explained that surgery was necessary and performed it (T1-21, T1-29). Following surgery, M.M. felt better and thought that her leg felt "reattached" and that she could move it again (T1-21). AMC staff provided M.M. with pain medication, which sometimes helped with the pain, but M.M. remained in pain during her two-day stay at AMC (T1-21 to T1-22). With the pain medication, the pain was an 8 out of 10 (T1-57).
When M.M. returned home, she moved into the basement because accessing that space required her to negotiate fewer stairs (T1-23). During that summer between her fifth and sixth grade years, M.M. was not permitted to put any weight on her right hip (id.). She was homebound and mostly sat "in the basement playing video games and watching YouTube" (T1-23, T1-49). M.M.'s family helped her move or she used a walker and her left leg to ambulate (T1-23 to T1-24). At times, she used her hands and left leg to "scooch up the stairs" (T1-25). Claimant had to help M.M. change her clothes (T1-24). In addition, the family modified the basement by installing a makeshift shower so that M.M. could wash (T1-22, T1-24). That summer, M.M. said that if she moved her hip "the wrong way, it felt like a knife was going into [her] hip and twisting" (T1-24). Over the course of the summer, it got "slightly" better, but "it didn't change much" (id.). M.M. was not prescribed physical therapy that summer (T1-25), but she did take pain medication until she was able to walk again (T1-59).
By fall 2019, M.M. was able to bear weight on her right hip and she moved out of the basement (T1-25, T1-27). When she started sixth grade, M.M. used a wheelchair for about a week if a class was far away, but she could walk for short periods (T1-26, T1-50). For about the first month of school, friends would sometimes assist her in walking through the hallway (T1-50 to T1-51). If she walked for more than three minutes, the pain would get "really bad" (T1-26 to T1-27). She could not participate in gym class (T1-26), nor could she run or jump, so she "wasn't able to do anything fun" (T1-27). By seventh grade, M.M. was participating in gym class, but avoided running and jumping (id.). When M.M. was in eighth grade, she started to develop pain in her left hip (T1-28). However, no doctor has recommended surgery for her left hip (T1-29).
M.M. testified that she has a 2½ inch scar on the side of her right hip about midway down her thigh (T1-32, T1-34, Exhibits 3, 5, 6, 7). M.M. maintains that it still hurts her to run or jump, so she stopped doing those activities (T1-27). As such, she cannot "run around and play with [her] best friends" or her "little sisters" and she cannot jump on a trampoline (T1-34 to T1-35). If she does, it results in "[l]ots and lots of pain" (T1-35). Dr. Mantica directed her not to play sports, but she does lift weights (T1-42 to T1-43, T1-44). She cannot walk to and from school (T1-35). Also, upon her doctor's recommendation, M.M. rides a bicycle sometimes to try to strengthen her hips but the activity causes her pain, especially if she exceeds 20 minutes (T1-30 to T1-31, T1-35).
According to M.M., the pain in her right hip has never completely dissipated (T1-28). She said that she has pain in that hip about three times per week and that it has "only gotten worse over the years" (T1-30). About once per week, the pain is at its worst, which is a 10 out of 10 (id.). Otherwise, the pain is an 8 out of 10 (T1-31). M.M. attended eight physical therapy sessions in 2023, but the therapy was not helpful (T1-46 to T1-47).
M.M. acknowledged that she fell twice in the months before the subject incident. In mid-April 2019, she fell off of playground equipment and landed on her left knee, scraping it (T1-11, T-45). She did not injure her right hip as a result of that fall (id.). On Father's Day in June 2019, M.M. fell again while walking out of her grandmother's house (T1-12, T1-45). M.M. slipped on mud in the driveway and fell onto the steps (T1-12). She briefly experienced some pain in her butt as a result of that fall, but none in her right hip (T1-13, T1-45).
Claimant testified that she owns a deli and grocery, which is located downstairs from the family home (T1-61). Claimant confirmed that M.M. fell on the playground in April 2019 and on Father's Day in June 2019, but reiterated that M.M. did not injure her right hip during those incidents (T1-65 to T1-66). Indeed, prior to June 24, 2019, M.M. had never indicated to claimant that she had pain in her right hip and claimant was not aware of any problems with M.M.'s hips (T1-63 to T1-64). Before the subject fall, M.M. participated in gym class, rode her bicycle, ran around in the backyard with the family's dogs, and had no difficulty walking (T1-64 to T1-65, T1-75).
On June 24, 2019, claimant received a phone call from the school nurse, informing her of M.M.'s fall (T1-62). When claimant picked M.M. up from school, M.M. was crying, shaking, in a lot of pain, and wanted to see a doctor (T1-67). As claimant and the school nurse transferred M.M. from the wheelchair to claimant's car, M.M. was crying and screaming, and saying that she was in pain (T1-69). Later, when claimant drove M.M. from St. Mary's to AMC, M.M. was upset and was yelling in pain when they drove over bumps (T1-72). Claimant confirmed that M.M. remained at AMC until June 26, 2019 (T1-73).
The family's basement did not have a bathroom and, thus, M.M. had to use a commode for the 2½ to 3 months that she stayed in the basement that summer (T1-74 to T1-75). Claimant had to help M.M. with her pants so that she could use the commode and claimant had to empty it (T1-74). That summer, M.M. was not able to do the things that she formerly enjoyed, like playing outside (T1-75).
Claimant recalled that in September 2019, on the first day of school, there was an appointment with Dr. Mantica (T1-76). It was at that point M.M. was told she could walk again, but if it bothered her or if it hurt she was to use a wheel chair (T1-77). M.M. received a gym note from Dr. Mantica dated September 5, 2019 which stated M.M. was to be "excused from activities with running and jumping. During gym class she can walk on a treadmill or around a track or around the gym" (Exhibit 16).
According to claimant, since the incident, M.M. has "slowed down" and "doesn't do as much as she used to do" (T1-78). She does not ride her bicycle or "run around and play" so much anymore (T1-78). She also does not walk the dogs because of her pain (T1-78, T1-87). M.M. also calls claimant from school on occasion and says that she is in pain from carrying her things around and climbing up and down the stairs (T1-79). In the last school year, claimant picked M.M. up from school following those complaints about 10 times (T1-85). M.M. complains about the pain every few days, especially if it is cold and damp (T1-79). M.M. takes Tylenol or Advil to alleviate her pain, which sometimes helps (id.). Claimant testified that M.M.'s doctors have advised that M.M. "could have complications of possible arthritis and possibly have to have a hip replacement down the line" (T1-92).
Dr. Mantica testified that she has been a pediatric orthopedist since 2018 (T2-7). She is licensed to practice medicine in New York and has been board certified since 2020 (T2-8). Dr. Mantica is an AMC employee and is affiliated with Capital Region Orthopedics (T2-9).
Dr. Mantica said that M.M. arrived at AMC's emergency department on June 24, 2019 with an acute slipped capital femoral epiphysis (SCFE) in her right hip (T2-10, T2-14, T2-53). M.M.'s history revealed that she had fallen and could not ambulate (T2-11). Dr. Mantica explained that a SCFE "is an injury through the growth plate at the top of the femur" where "the ball of the femur stays in the socket of the hip" but the "rest of the femur... moves through the growth plate" (T2-14; Exhibits 13, 14). As a result, "there is instability between both parts of the femur" (T2-14). Dr. Mantica described M.M.'s injury as a "severe" SCFE (T2-20). She stated that it would be "challenging" for M.M. to walk with this injury because "she would be in pain" (T2-20 to T2-21).
Dr. Mantica performed a "hip pinning" on M.M.'s right side (T2-21). More specifically, M.M. "had an incidental reduction," meaning that Dr. Mantica repositioned the bone, and then she put a 7.3 millimeter "screw in the hip to hold it together" (T2-21, T2-23; Exhibit 15). The surgery was necessary to allow M.M. to ambulate (T2-22). It was also needed to protect against certain risks, including "avascular necrosis," which occurs "when the top of the femoral head dies because blood supply doesn't get to it," and "proximal femoral deformity," which could affect "hip movement later in life" (T2-21 to T2-22). The surgery was successful and improved M.M.'s anatomy (T2-76). The pin remains in M.M.'s hip (T2-58 to T2-59).
Following the surgery, Dr. Mantica directed M.M. not to put any weight on her right hip for three months (T2-24, T2-39). At a follow-up appointment with Dr. Mantica on July 9, 2019, M.M. "denied pain" and had "no pain with internal or external rotation of her hip" (T2-25 to T2-26). M.M. indicated that she had complied with Dr. Mantica's direction to refrain from putting weight on her right hip (T2-25).
At M.M.'s appointment with Dr. Mantica in January 2020, M.M. again "denie[d] pain," and neither M.M. nor claimant had "concerns or complaints" (T2-40). At that time, Dr. Mantica released M.M. to "activities as tolerated" (T2-41; Exhibit 17). By July 2020, M.M. reported to Dr. Mantica that she gets "random" pain in her right hip, but "other than that, she feels good" (T2-42). M.M. further reported that "[s]he has been able to run, jump, and play with her friends without a problem. Pain never wakes her up from sleep at night" (id.). M.M. also denied pain in her left hip (T2-43). In April and May 2022, M.M. complained of pain in both her right and left hips (T2-45, T2-47). In July 2022, M.M. reported that "physical therapy has improved her hip pain bilaterally... and her pain overall has improved" (T2-48).
Most recently, in April 2024, M.M. said that "she was experiencing pain in both hips with the discomfort being more pronounced on the left side" (T2-50). She rated her pain as a 6 or 7 out of 10 (T2-50). At that appointment, Dr. Mantica noted that M.M.'s left leg is longer than her right (T2-51). The doctor described the condition as a "very mild limb-length discrepancy" and said that it "probably" was "a consequence of the SCFE and the pinning that was required to fix" it (T2-51). However, the discrepancy was not significant enough for Dr. Mantica to recommend any treatment (T2-75). During Dr. Mantica's physical examinations of M.M., she determined that M.M. had a limitation in her range of motion in her right hip (T2-26, T2-41, T2-48, T2-50).
Dr. Mantica opined that M.M.'s acute SCFE was causally related to her fall on June 24, 2019 because she could walk before she fell but could not walk after the fall (T2-53 to T2-54). In other words, M.M. needed surgery to correct the acute SCFE which "happened during the fall" (T2-55). When asked whether M.M. "had a skeletal condition prior to June 24th, 2019 that made her more susceptible to a" SCFE, Dr. Mantica responded that M.M. "was obese," which "puts kids at a higher risk" but "she had no other medical issues that would lead her to have a" SCFE (T2-54). She explained that adults could not have a SCFE, as it only affects children (id.). Dr. Mantica further opined that the acute SCFE that M.M. suffered was "painful" (T2-56).
Dr. Mantica opined that impingement in M.M.'s right hip was caused by the surgery, and the surgery was necessitated by her fall on June 24, 2019 (T2-56 to T2-57). In addition, M.M.'s decreased rotation in her right hip and limb-length discrepancy were "permanent" conditions (T2-58). The doctor explained that a person with a SCFE might "eventually get a total hip replacement if they start having pain and symptoms of arthritis when" they get older (T2-59). Dr. Mantica did not "have an opinion," however, concerning whether M.M. would "have some level of pain in the future" (T2-58).
On cross-examination, Dr. Mantica agreed that "[m]ost cases of SCFE are idiopathic," meaning that doctors do not "really know why it happens" (T2-62). A SCFE often occurs even in the absence of trauma or injury and can be "stable" or "unstable" (T2-62, T2-66). Dr. Mantica did not know if M.M. had a preexisting stable SCFE prior to June 24, 2019 (T2-66, T2-70), but acknowledged that "a stable SCFE could change into an unstable SCFE if it goes untreated" (T2-68). Further, if left untreated, a "SCFE almost always worsens with time" (T2-68 to T2-69). The treatment for a SCFE, whether it is chronic or acute, stable or unstable, is the pinning surgery that Dr. Mantica performed on M.M. (T2-74). Dr. Mantica acknowledged that people with a stable SCFE "are more likely to have arthritis" and "joint pain and alignment problems later in life" (T2-78). Further, people with "mild limb length differences" generally experience "no effect on health and activities" (id.).
Dr. Friedman testified that he has been licensed to practice medicine in New York since 2007 (T3-7). He is board certified in orthopedic surgery and sports medicine and is a fellow of both the American Academy of Orthopedic Surgeons and the Arthroscopy Association of North America (T3-8). He is also the Director of Sports Medicine at New York Presbyterian Lower Manhattan Hospital in New York City and has authored orthopedic publications, clinical studies, and review articles (T3-8 to T3-9; Exhibit Q).
Dr. Friedman explained that a "SCFE is an irregularity and slippage of the growth plate at the top part of the thigh bone or the femur bone" (T3-14). A SCFE occurs when "the two bones on either side of the growth plate... slip and move out of normal anatomic position" (id.). A SCFE "is most common in individuals who are going through a rapid growth spurt" because that is "when the growth plate is most vulnerable to slip" (id.). A SCFE is most common in females around age 11 and males around age 12 (T3-14 to T3-15); it "does not occur in individuals who have reached skeletal maturity" (T3-15).
A SCFE can be stable or unstable (T3-14). "A stable SCFE is a condition where there has been some slippage or movement on the growth plate, but the individual is still able to bear weight and walk on the leg" (id.). By contrast, an "unstable SCFE occurs when the slippage has become more significant and an individual is unable to bear weight or walk on the leg due to the amount of slippage" (id.).
If a person has a stable SCFE, they "tend to complain of intermittent hip pain that may radiate down the leg, into the thigh or into the knee region" (T3-15). A person with a stable SCFE tends to "lose range of motion in the hip and sometimes that can contribute to loss of motion and increased propensity to fall" (T3-16). They also may have an intermittent limp when symptoms flare (T3-15). Dr. Friedman stated that there is a "five to seven times increased prevalence of SCFE in individuals that are overweight" (id.). However, a SCFE is idiopathic, meaning that doctors cannot explain "why certain individuals develop" the condition (T3-16).
A stable SCFE is also "insidious" in the "majority of individuals" (id.). This means that symptoms progress slowly and they may wax and wane (T3-16 to T3-17). "Once th[e] growth plate fuses, the symptoms tend to go away because there's no more slippage occurring" (T3-17). Because the symptoms of a stable SCFE can be intermittent and mild, it "goes undiagnosed quite frequently" (id.). If the condition is diagnosed, "the recommended treatment is... an in-situ hip pinning, which is placing a screw across the growth plate to stabilize the slip to prevent further slippage" (T3-18, T3-24).
Concerning M.M., Dr. Friedman reviewed her medical records, including those from St. Mary's Hospital, AMC, and all outpatient visits with Dr. Mantica (T3-19). He also reviewed the radiographic studies and X-rays from the emergency room and post-surgery (id.). Based on his review of M.M.'s records and the testimony in this case, Dr. Friedman concluded that M.M. had a preexisting "stable SCFE that became unstable" on June 24, 2019 (T3-23, T3-75).
Dr. Friedman cited several factors in reaching his conclusion: M.M.'s two prior falls in April and June 2019, her complaints of "right knee pain prior to the fall" on June 24, and her intermittent limp prior to June 24 (T3-22 to T3-23). These factors were contained in M.M.'s medical records. At St. Mary's, M.M. reported, on June 24, 2019, that she fell on Father's Day 2019 and again on June 24 (Exhibit 10, at 14 ). She reported that "she has been limping" and tried over-the-counter pain medicine "now and then" (id.). She also reported that she had "knee pain on the right side as well" (id.). Claimant reported at St. Mary's that M.M. had complained of right hip pain for two weeks before June 24, 2019 (Exhibit 11, at 134). Claimant said that M.M. "had a couple of falls landing on [right] hip which has been making pain worse" (id.; see id. at 120 [noting that M.M. reported right hip pain after a fall one week before June 24, 2019]). Similarly, upon her arrival at AMC on June 24, 2019, M.M. reported that she had a couple of small falls... with intermittent pain," including the one on Father's Day which resulted in "mild pain" (id. at 93; see id. at 113). Claimant and M.M. reported that prior to June 24, 2019, M.M. experienced "right knee pain" after her prior falls (id. at 159). M.M.'s weight was also a factor influencing Dr. Friedman's conclusion (T3-70).
For exhibits, page numbers refer to the.PDF pagination.
More importantly, however, the X-rays of M.M.'s right hip showed evidence "which clearly delineate[d] a chronic process" (T3-23, T3-52). Dr. Friedman testified that M.M. had a "widened growth plate" on her right side, which "did not occur because of the fall on June 24" (T3-23). Further, "and even more radiographically relevant," M.M. had "beaking," essentially "extra bone growth[,] around the growth plate of the right hip" (id.). This is "an adaptive change that" occurs "in individuals that have a stable SCFE" (T3-24). This "extra bone growth... does not occur due to a fall" (id.). Rather, it only occurs "in someone that's had a [stable] SCFE" (T3-24). Dr. Friedman thus concluded that there was "no question that" M.M.'s injury was "an acute on chronic SCFE," meaning that her "SCFE was stable and pre-existing and then became unstable when she fell" (T3-24, T3-55). The fall "essentially woke up" the SCFE (T3-27).
Dr. Friedman said that it was "pretty irrefutable" that "there was a pre-existing condition here" and pointed out that the "pediatric radiologist who read" M.M.'s X-rays "mentioned some acute chronic changes" (T3-75 to T3-76). The radiologist's impression was that M.M. had "[s]ubacute/chronic changes of a right" SCFE (Exhibit 11, at 7). This impression was based on a "significantly abnormal" right hip "with widening and irregularity of the physis and apparent shortening of the femoral neck with irregularity of the femoral neck cortex and slight 'beaking' of the superior acetabulum, consistent with changes related to" SCFE (id.).
Dr. Friedman testified that absent M.M.'s fall, her SCFE "may not have gone from stable to unstable, but the deformity... would have gotten worse up until skeletal maturity" (T3-27). Still, Dr. Friedman agreed that it is possible for "a small SCFE" to "heal on its own with no long-term consequences" (T3-71). He thought that M.M.'s stable SCFE was unlikely to resolve on its own (T3-72). Ultimately, Dr. Friedman was not sure if M.M.'s "pre-existing stable SCFE condition" contributed to her fall on June 24, 2019 (T3-42). However, the "acute nature" of her SCFE "was due to her fall" on June 24, 2019 (T3-59, T3-80). He testified that the acute, unstable SCFE was "severe" and would have been "extremely painful" for M.M. (T3-55, T3-56). Further, M.M. would not be able to bear weight with her injury (T3-58; Exhibit 14).
Dr. Friedman said that the surgery performed by Dr. Mantica on M.M. "was appropriate, done very well, and had a very good radiographic outcome" (T3-25). Following the surgery, M.M. is likely in a better condition because it left her with something closely akin "to normal anatomy in her hip" (T3-28, T3-94 to T3-95). Had she not had the surgery "she would have likely had an anatomic abnormality in her hip" (T3-28). The surgery "enhances long-term outcomes" because it "prevents further slippage," decreases "the risk of developing... hip impingement," and decreases the risk of arthritis (T3-28 to T3-29, T3-62, T3-65). Impingement is "when there is essentially friction or bumping" between "the neck of the proximal femur" and the "socket" (T3-66).
Dr. Friedman testified that M.M.'s continuing hip pain "is unlikely related to her SCFE and her surgery" (T3-30). Dr. Friedman pointed out that M.M. had no significant complaints in the year after the surgery (id.). The bilateral hip pain about which she started complaining about two years post-surgery "usually comes from the muscles" (T3-31). As such, that pain "is unlikely" to be "related to hip impingement or SCFE"; it is "much more likely to be due to the soft tissues and muscles on the outer part of the hip and not the actual hip joint" (id.).
Dr. Friedman agreed with Dr. Mantica that M.M.'s limb length discrepancy was not "clinically relevant" because it was less than two centimeters (T3-32). And he had no basis to refute Dr. Mantica's finding with respect to M.M.'s limited range of motion in her right hip (T3-60).
On cross-examination, Dr. Friedman acknowledged that he had not examined M.M., written a report concerning M.M., or reduced his opinion to a writing (T3-45, T3-59). He had also not performed a SCFE surgery in 17 years (T3-46). Dr. Friedman further agreed that M.M.'s school health records lacked any indication that she experienced right hip or right knee pain prior to June 24, 2019 (T3-48 to T3-49; Exhibit 12). And he had read no testimony indicating that M.M. was limping prior to that date (T3-50). In any event, complaints of hip or knee pain alone are insufficient to diagnose a SCFE (T3-51).
DISCUSSION
A damages award in favor of "a person injured by the negligence of another" is meant "to compensate the victim" and "restore the injured party, to the extent possible, to the position that would have been occupied had the wrong not occurred" (McDougald v Garber, 73 N.Y.2d 246, 253-254 [1989] [internal citations omitted]). Such an award may include "nonpecuniary damages," meaning "damages awarded to compensate an injured person for the physical and emotional consequences of the injury, such as pain and suffering" (id. at 251).
In awarding damages for pain and suffering, "the conclusion of the fact finder [is] entitled to considerable deference" (Auer v State of New York, 289 A.D.2d 626, 629 [3d Dept 2001] [internal quotation marks omitted]). "[D]amage awards for pain and suffering are inherently subjective and not subject to precise quantification or formulas" (DeMarco v DeMarco, 154 A.D.3d 1226, 1229 [3d Dept 2017] [internal quotation marks omitted]; see Ciuffo v Mowery Constr., Inc., 107 A.D.3d 1195, 1197 [3d Dept 2013]; Auer, 289 A.D.2d at 629). Examination of comparable cases is instrumental in establishing a proper award (see Grasha v Town of Amherst, 191 A.D.3d 1286, 1287 [4th Dept 2021], lv denied 37 N.Y.3d 906 [2021]; Ciuffo, 107 A.D.3d at 1197; Faulkner v State of New York, UID No. 2021-015-064 [Ct Cl, Collins, J., July 13, 2021]). An appropriate damages award "requires consideration of factors such as the nature and extent of the injuries, the degree of past, presentand future pain and the permanency of the injury" (Ciuffo, 107 A.D.3d at 1197; see McDougald, 73 N.Y.2d at 255 ["in assessing nonpecuniary damages," the factfinder may "consider the effect of the injuries on the plaintiff's capacity to lead a normal life"]).
Here, claimant seeks $400,000 for M.M.'s past pain and suffering and $250,000 for M.M.'s future pain and suffering (Cl's Posttrial Brf, at 19). She does not seek any other damages (T3-106 to T3-107). Defendant maintains that no damages are warranted (Def's Posttrial Brf, at 10).
The Court finds, based on the credible testimony of both Dr. Mantica and Dr. Friedman, that M.M. suffered a severe, acute, and unstable SCFE in her right hip. M.M. has a diminished range of motion in her right hip, a mild limb-length discrepancy, and a 2½ inch scar on her right thigh, each of which is permanent.
The doctors agree that, following her fall, M.M. could not ambulate and that her injury would have been extremely painful. Testimony from M.M. and claimant confirmed such pain and immobility in the injury's initial aftermath. M.M. said the pain was unlike any she had ever experienced and that the pain was a 9.6 out of 10. She also stated that she had the sensation that her leg was detached and that she could not walk or move her leg. When claimant saw M.M. at school, M.M. was crying, shaking, and seemed to be in a lot of pain. Defendant concedes that M.M. "suffered pain, and physical and mental discomfort in the immediate aftermath of the fall" (Def's Posttrial Brf, at 6).
M.M. underwent surgery to repair her right hip and had a pin placed in the joint to hold her hip together. The pin remains in M.M.'s hip. M.M. continued to experience significant pain during her two-day stay at AMC, but the surgery was successful in repairing the anatomy of her right hip.
Following surgery, M.M. could not put any weight on her right hip for approximately two to three months. Thus, during the summer between fifth and sixth grade, M.M. lived in her basement, with makeshift bathroom facilities, and mostly played video games and watched videos. She required assistance in tending to her essential needs. She could not participate in her normal activities, like playing outside, and her pain diminished only slightly over the summer. The Court credits the testimony of M.M. and claimant concerning M.M.'s pain and diminished capacity to lead a normal life in the months after the surgery.
The record establishes that M.M.'s pain had greatly diminished one year after her surgery. M.M. denied pain at her July 2019 and January 2020 appointments with Dr. Mantica. In fact, at her July 2020 appointment, M.M. reported that she was able to run, jump, and play with her friends. The Court credits these contemporaneous reports, which are consistent with M.M.'s testimony that she participated in gym class in seventh grade.
M.M. later developed pain in both her right and left hips. She currently has pain in her right hip about three times per week, typically at about an 8 out of 10. The experts reached different conclusions concerning the cause of this pain. Dr. Mantica concluded that M.M. has impingement in her right hip that was caused by the surgery. Dr. Friedman testified that it was "unlikely" that M.M.'s continuing hip pain was related to her SCFE and surgery. Although both doctors were credible, the Court finds that M.M.'s right hip pain was caused by impingement stemming from the surgery. Notably, Dr. Mantica has personally examined M.M., while Dr. Friedman's opinion is based solely on a review of the records. The Court credits the testimony of M.M. and claimant that M.M. she does not run and jump, walk her dogs, or participate in most sports because of her pain.
The Court therefore finds that claimant is entitled to a damages award for M.M.'s past pain and suffering. By contrast, claimant has failed to establish any damages for future pain and suffering. Crucially, Dr. Mantica, claimant's own expert, had no opinion concerning whether M.M. would experience some level of pain in the future. There was simply no non-speculative evidence that M.M. will experience any future damages as a result of defendant's negligent act. Indeed, Dr. Friedman opined that, given his conclusion that M.M. had a preexisting stable SCFE, M.M's surgery actually improved her long-term prognosis.
In establishing damages for M.M.'s past pain and suffering, the Court has reviewed comparable cases, including those cited by claimant. In Fernandez v Urban Health Plan, Inc., a jury awarded the infant plaintiff $550,000 after a delay in diagnosing her SCFE (2006 WL 3490491 [Sup Ct, Bronx County 2006]). In Guzman v Board of Educ. of the City of NY, a jury awarded the infant plaintiff $500,500 after he sustained a SCFE requiring surgery (1990 WL 641041 [Sup Ct, Bronx County 1989]). Notably, neither verdict report cited by claimant stated the distribution between past and future pain and suffering damages.
The Court finds the following cases more persuasive inasmuch as they specifically identify the damages awarded for past pain and suffering. In McDonough v Transit Rd. Apts., LLC, the plaintiff commenced the action after she slipped and fell on premises owned by the defendants (60 Misc.3d 831 [Sup Ct, Erie County 2018]). As a result of the fall, the plaintiff "broke her arm in two places and the ball of her hip" (id. at 832). Her "arm was routinely set and casted," but "the hip injury required an emergent hip replacement" (id.). "After a few days in the hospital, the plaintiff spent the next two weeks in a rehabilitation facility, followed by another 2½ months of outpatient physical therapy" (id.). "The plaintiff's mobility improved and her pain subsided, at least for a while," but the pain in her hip later returned (id.). A jury awarded the plaintiff $350,000 for her past pain and suffering, and the court concluded that the jury's award did not materially deviate "from what would be reasonable compensation" (id. at 836).
Similarly, in Randone v State of New York, the claimant slipped and fell in the shower, breaking her left femur and hip in the fall (UID No. 2011-010-008 [Ct Cl, Ruderman, J., Apr. 7, 2011]). "During surgery, a rod was placed in her thigh and a pin in her hip," and the hardware remained in her body (id.). The claimant spent three or four days in the hospital and then was transferred to a rehabilitation center. She spent a month at the rehabilitation facility and remained confined to a wheelchair. The court awarded the claimant "$270,000 for her past pain, suffering, impairment[,] and scarring" (id.; see also Zapata v Yugo J & V, LLC, 183 A.D.3d 956, 957, 960-961 [3d Dept 2020] [the jury's $200,000 past pain and suffering award was reasonable where the plaintiff fractured her femur, hip, and knee, resulting in surgery to insert rods into her leg, a three week hospital stay, discharge to a rehabilitation center, confinement to a wheelchair for six months, and daily nursing and physical therapy for four months]; Kahl v MHZ Operating Corp., 270 A.D.2d 623, 623 [3d Dept 2000] [affirming reduction of the jury verdict to $125,000 for past pain and suffering where the plaintiff fell and fractured his hip, requiring surgery "in which a large screw was inserted through the femur and up into the ball of the hip joint"]; Spors v Stoll, 256 A.D.2d 1083, 1085 [4th Dept 1998], lv dismissed 93 N.Y.2d 998 [1999] [concluding that $100,000 was appropriate for past pain and suffering where the plaintiff "suffered a fractured dislocation of her hip, necessitating surgery, traction(,) and extended hospitalization"]; Rosario v City of NY, 2010 WL 2854371 [Sup Ct, Bronx County 2010] [parties settled for $375,000 where the infant plaintiff suffered a SCFE, underwent four surgeries, retained a residual limp, and missed a year of school]).
Although each of these cases is distinguishable in some respects, they demonstrate the range of damages for past pain and suffering where, as here, the injury involved a serious and painful hip injury that required surgery and a lengthy recovery period. Accordingly, claimant is awarded the total sum of $340,000, comprised of $340,000 for past pain and suffering and $0 for future pain and suffering. The Court previously found M.M. 25% comparatively liable, thus reducing the total award to $255,000. As noted, claimant did not seek any other damages.
To the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2). Claimant is entitled to statutory interest from the date of the liability decision, dated September 19, 2023.
Finally, because the Court has determined that claimant has established damages causally related to defendant's negligence by a preponderance of the evidence, it denies defendant's motion for a directed verdict made at the end of claimant's case and renewed at the end of trial. Dr. Mantica testified that M.M.'s acute SCFE was causally related to her fall on June 24, 2019. Dr. Friedman agreed inasmuch as he testified that the "acute nature" of M.M.'s SCFE "was due to her fall" on June 24, 2019 (T3-59, T3-80). Both doctors agreed that the acute injury would have been painful for M.M., and M.M. confirmed that she endured such pain. Thus, there was a causal connection between M.M.'s fall and her alleged injuries (see Santana v State of New York, 91 A.D.3d 937, 939 [2d Dept 2012]). All other rulings and motions upon which the Court may have previously reserved, or which were not previously determined, are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.