Opinion
# 2015-015-599 Claim No. 121677
05-05-2015
ROLAND CHISHOLM a/k/a RONALD CHISHOLM v. THE STATE OF NEW YORK
Robert G. Spevack, Esq. Honorable Eric T. Schneiderman, Attorney General By: Michael I. Getz, Esq. Assistant Attorney General
Synopsis
Inmate was awarded $15,000 for a head injury which resulted in severe headaches and the need for medication.
Case information
| UID: | 2015-015-599 |
| Claimant(s): | ROLAND CHISHOLM a/k/a RONALD CHISHOLM |
| Claimant short name: | CHISHOLM |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121677 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Robert G. Spevack, Esq. |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Michael I. Getz, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 5, 2015 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, a former inmate, seeks damages for personal injuries sustained when he sat in a broken chair in the transition services room at Wallkill Correctional Facility (Wallkill) on July 6, 2012. Following a bifurcated trial on the issue of liability, the Court found defendant 100% responsible for the accident.
At the damages trial held on January 7, 2015, claimant testified that he fell backward immediately after sitting in the chair, striking his head on the corner of the wall and floor in the area depicted in the upper right-hand photograph received as Exhibits 3 and 3-A. Claimant testified that he was in pain and felt his head bleeding. Correction officers responded to the scene and took him to the facility infirmary where a nurse cleaned and examined the wound; however, because the nurse was unable to control the bleeding, he conferred with a physician from Albany Medical Center who advised him to bring the claimant to the hospital. Claimant was transported by van to Albany Medical Center where a physician examined him and placed three staples in the back of his head to close the wound. According to both the claimant and the medical records from Albany Medical Center (Exhibit 2), the staples were applied without the benefit of anesthesia, an event which claimant described as very painful. Claimant was discharged from Albany Medical Center after a period of approximately 1 ½ to 2 hours and was taken to Shawangunk Correctional Facility (Shawangunk) where he was admitted to the facility's infirmary for the next three days, before being returned to Wallkill.
Claimant testified that he received no treatment other than ibuprofen during the time he was in the Shawangunk infirmary. However, he began experiencing headaches and neck pain for which he was seen in the facility infirmary the day following his return to Wallkill. Claimant testified that his headaches became progressively worse after the accident. As a result, he was seen weekly in the facility infirmary until his release from prison on February 26, 2013, a period of approximately eight months. Claimant testified that he was treated at the infirmary with shots of Toradol and ibuprofen. Approximately one month after the accident, he was given daily patches to place on his neck which he testified numbed his neck and eased his headache pain. Claimant used the patches for the remainder of his eight-month period of incarceration. During this time he also underwent an MRI and a CT scan in response to his complaints of headaches and blurred vision. Claimant testified that he still has headaches, which are triggered by various environmental factors. He also stated that he has difficulty sleeping as the result of the injuries sustained in this accident.
On cross-examination, claimant testified that he was not sure whether he lost consciousness after the accident but stated that he did complain of headaches during the period he was in Shawangunk. Claimant conceded, however, that he was unable to identify where his complaints of headaches were recorded in the medical records relating to the three-day period of his confinement at Shawangunk. Claimant denied that he suffered prior neck or back pain, and also denied that he told a nurse in preparation for a prison transfer that he had occasional back pain. Claimant testified that after the MRI was performed he was told that he had a malformation in his brain. Claimant agreed he has been in fist fights in the past and previously suffered a laceration to the back of his neck. Claimant testified that he has several tattoos and a scar on his abdomen.
Claimant's medical records from both Albany Medical Center and the Department of Corrections and Community Supervision were received in evidence without objection. Review of the claimant's medical records from Albany Medical Center indicates he was treated in the emergency department on the date of the accident, and that three staples were applied to the back of his head without anesthesia. The staples were to be removed within 7 to 10 days. Claimant was admitted to the infirmary at Shawangunk on July 7, 2012 at 1:00 a.m. The Progress Notes from the facility infirmary indicate that the staples remained intact and the claimant denied headaches or blurred vision. Claimant remained in the infirmary at Shawangunk until July 9, 2012 when he was returned to Wallkill. Claimant was seen in the Wallkill infirmary on July 9, 2012 at 3:30 p.m., where he was examined and the wound was noted to be without redness, drainage or swelling. Claimant was next seen in the Wallkill infirmary on July 16, 2012, at which time he complained of headaches which had been ongoing for one week, beginning Monday night, July 9, 2012. Under the categories of objective assessment, a progress note states "post-head trauma HA" (Exhibit 1, Ambulatory Health Record Progress Note of July 16, 2012). Claimant was prescribed Motrin and advised to limit his reading. On July 23, 2012 claimant was seen again in the Wallkill prison infirmary where it was noted that his headaches were continuing and he was not sleeping well. An entry in the medical record states "See 7/16/12- p can expect HA" (Exhibit 1, Ambulatory Health Record Progress Note dated July 23, 2012). Claimant was given Tylenol and a shot of Toradol. On July 27, 2012 claimant was seen in the Wallkill infirmary with complaints of left-sided abdominal pain and continuing headaches. He was admitted to Shawangunk infirmary on July 28, 2012 for his complaints of abdominal pain and was discharged back to Wallkill on July 31, 2012. Claimant was referred for an MRI of his brain on August 8, 2012 due to "unrelenting" headaches (Exhibit 1, Request and Report of Consultation dated July 26, 2012) which was performed on August 13, 2012 (Exhibit 1, MRI report of the brain dated August 13, 2012), The clinical history portion of the MRI report states "[h]eadache for six weeks, status post head trauma, no prior surgery" (id.). The MRI examination revealed claimant had an "unusual variant of Chiari I malformation. Clinical correlation is recommended, as indicated" (id.) This examination also revealed a "[n]onspecific right cerebral white matter lesion. Differential diagnosis includes the sequel of closed head injury, demyelination, inflammation/infection, toxic metabolic, thrombophilic, and less likely chronic small-vessel ischemic etiologies. Clinical correlation and imaging followup are recommended, as indicated" (id.). Claimant was referred for a neurological consultation and diagnosed with occipital neuralgia for which daily Lidoderm patches were prescribed on September 12, 2012 (Exhibit 1, Consultant Report dated September 12, 2012). Another progress note of September 19, 2012 indicates claimant suffered from occipital neuralgia and "chiari" (Exhibit 1, Ambulatory Health Record Progress Note of September 19, 2012). A reference to neck pain, stiffness and tingling appears in a progress note on October 16, 2012 with a referral for physical therapy. Claimant was referred for a cervical MRI examination which indicated "[m]ild diffuse degenerative changes" (Exhibit 1, MRI of the cervical spine dated November 8, 2012). He was seen again by a neurologist on November 14, 2012 who opined with respect to claimant's headaches that "doubt [headaches] related to Chiari I" (Exhibit 1, Consultant Report dated November 14, 2012).
Claimant underwent a regimen of physical therapy for his cervical complaints and was seen regularly in the infirmary until his release in February 2013. He was last seen in the Wallkill infirmary on February 6, 2013 at which time his prescription for Lidocaine patches was continued with weekly refills. Claimant was released from prison on February 26, 2013. At trial, claimant's counsel limited the claim to past pain and suffering.
To establish a prima facie case of negligence claimant is required to establish not only defendant's breach of its duty of care, but that said breach was a proximate cause of his injuries (Atkins v Glens Falls City School Distr., 53 NY2d 325, 333 [1981]). Here, defendant contends the claimant failed to establish that his headaches were causally related to the accident because he failed to present expert testimony and the medical records reveal several possible causes for this condition, including claimant's Chiari I malformation and his cervical arthritis. However, claimant need not "positively exclude every other possible cause" of his injuries (Gayle v City of New York, 92 NY2d 936, 937 [1998]). Rather, the "proof must render those other causes sufficiently 'remote' or 'technical' to enable the [factfinder] to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence" (Schneider v Kings Hwy. Hosp. Ctr., 67 NY2d 743 [1986] [citation omitted]; Madsen v Merola, 288 AD2d 520 [3d Dept 2001]; see also Quiroz v 176 N. Main, LLC, 125 AD3d 628 [2d Dept 2015]; Skelly-Hand v Lizardi, 111 AD3d 1187 [3d Dept 2013]). The medical records of July 16, 2012, which were admitted into evidence without objection, reflect a diagnosis of "post-head trauma [headaches]" (Exhibit 1, Ambulatory Health Record Progress Note of July 16, 2012) and the consulting neurologist diagnosed claimant as suffering from occipital neuralgia (see Exhibit 1, consultation report dated September 12, 2012). In addition, a notation on that date indicates that claimant's complaints of headaches started on July 9, 2012, only three days after the accident. Giving due consideration to these medical records as well as the temporal proximity of claimant's complaints to the date of the accident, the manner in which the accident occurred (see Madsen v Merola, supra), and the consulting neurologist's opinion that it was doubtful the Chiari I malformation caused the claimant's headaches, the Court concludes that it is more likely than not that claimant's persistent headaches were proximately caused by the accident. In this regard, the Court notes that there is a complete absence of evidence in claimant's medical records that he suffered from headaches prior to the accident.
To the extent defense counsel asserts in the posttrial brief that the hearsay diagnosis of the consulting physician contained in claimant's medical records is inadmissible because he is unavailable for cross-examination, the Court need only note that these records were admitted into evidence upon the stipulation of the parties and without objection from the defendant.
To the extent claimant seeks recovery for his complaints of cervical pain, however, a contrary determination is reached. No evidence was adduced at trial establishing either an aggravation of claimant's pre-existing cervical arthritis or that his complaints of pain were in any way related to the subject accident.
Based on the foregoing, the Court finds an award of $15,000.00 for claimant's past pain and suffering is reasonable compensation. Although the scar on claimant's head is not visible, application of the staples without anesthesia was painful and he suffered persistent and unrelenting headaches following the accident (compare Vogt v Paradise Alley, 30 AD3d 1039 [4th Dept 2006] [award of $75,000 for past pain and suffering was reasonable for plaintiff who sustained four lacerations on her forehead, the surgical removal of glass, and postconcussive syndrome which included headaches and memory impairment for a period of time after the accident]; Hornicek v Yonchik, 284 AD2d 895 [3d Dept 2001] [dog bite victim was entitled to an award of only $750 notwithstanding scar on his thigh where victim was unaware that he had been bitten at time of bite and injuries were minimal]; Pfeifer v Musiker Student Tours, 280 AD2d 266 [1st Dept 2001] [award of $200,000 for plaintiff's minor scars under her chin, on the right hip and right elbow was reduced to $150,000]; Olsen v City of Schenectady, 214 AD2d 869 [3d Dept 1995] [award of $80,000 for fine-scar line in the shape of a Y on plaintiff's forehead was affirmed]). Inasmuch as claimant makes no claim for future damages or economic loss, the Clerk is directed to enter a Judgment in favor of the claimant in the amount of $15,000.00 with interest at the statutory rate from June 18, 2014, the date of the decision in favor of claimant on the issue of liability (CPLR 5002; Love v State of New York, 78 NY2d 540 [1991]).
To the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2).
Any and all motions on which the Court may have previously reserved or which were not determined are hereby denied.
Let judgment be entered accordingly.
May 5, 2015
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims