Opinion
# 2019-053-012 Claim No. 126189
07-11-2019
RAYNES YORKE v. STATE OF NEW YORK
ELEFTERAKIS, ELEFTERAKIS & PANEK BY: Stephen B. Kahn, Esq. Dominick Mingione, Esq. HON. LETITIA JAMES New York State Attorney General BY: Edward J. Curtis, Jr., Esq. Assistant Attorney General
Synopsis
Following a trial on the issue of damages, the Court determined that claimant suffered a complete tear of the rotator cuff as a direct result of the 2015 motor vehicle accident and that the treating surgeon's testimony established that claimant sustained a serious injury within the meaning of Insurance Law 5102 (d). The Court awarded claimant $300,000, consisting of $150,000 for past pain and suffering and $150,000 for future pain and suffering.
Case information
| UID: | 2019-053-012 |
| Claimant(s): | RAYNES YORKE |
| Claimant short name: | YORKE |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126189 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | ELEFTERAKIS, ELEFTERAKIS & PANEK BY: Stephen B. Kahn, Esq. Dominick Mingione, Esq. |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General BY: Edward J. Curtis, Jr., Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | July 11, 2019 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
On March 31, 2015, claimant Raynes Yorke was involved in a motor vehicle accident with a vehicle owned by the State of New York and operated by Rodney James, an employee of the New York State Office for People With Developmental Disabilities. A claim was filed with the Clerk of the Court of Claims and served on the Office of the Attorney General of the State of New York on May 22, 2015 and an answer was filed on July 6, 2015. The trial of this claim was bifurcated and a trial on the issue of liability was held in New York City on January 23, 2018. Following the trial, the Court found the State liable to claimant and that she was not comparatively negligent. On June 20, 2018, an interlocutory judgment was entered. A trial on the issue of damages was held before this Court in New York City on March 12 and 13, 2019. At this trial, testimony was provided by claimant and claimant's treating orthopedic surgeon, Stanislav Avshalumov, M.D. In defense of the claim, the State offered the testimony of an orthopedic surgeon, Ramesh Gidumal, M.D. Following the trial, the parties requested and were granted until May 31, 2019 to obtain and review the trial transcript and submit post-trial memoranda. TESTIMONY OF RAYNES YORKE
The claimant testified that she was born on September 14, 1942. She is retired and previously worked as a registered nurse. Claimant was questioned regarding an automobile accident that occurred prior to the instant claim in September 2013. She testified that her car ran over a metal object in the road, spun out and eventually came to a stop. She did not require an ambulance but later sought medical care in October 2013 with her family doctor, Samuel Akuoku, M.D. with complaints of discomfort in her left shoulder and left arm. Dr. Akuoku took an x-ray, prescribed Naproxen and told her to place warm soaks on her left shoulder. She saw Dr. Akuoku on only two occasions (TT: 5-12).
References to the trial transcript will be made with the designation "TT" and the page number(s).
In March 2014, the claimant testified that she told her endocrinologist, Dr. Hershon, that she was still experiencing a nagging pain in her shoulder and he recommended that she see an orthopedist and referred her to Dr. Kipnis, who she saw in April 2014. Claimant testified that Dr. Kipnis ordered an MRI and that after reviewing the results, indicated that she needed surgery. Claimant testified that she asked if there was any other option and he recommended physical therapy. She participated in physical therapy two times per week for a period of six weeks ending in July 2014, after which she testified that she felt much better (TT: 12-16). Following physical therapy, claimant testified that she wasn't experiencing any pain but felt the need to protect her left arm. Claimant testified that from July 2014 until the day prior to the accident of March 30, 2015, she was not experiencing any pain in her left shoulder and had no restrictions on her activities. She testified that her customary daily activities during that time period included housework, cooking, cleaning, ironing and shopping. Claimant testified that she would also walk in the park once per day for five days per week. She did not see any doctors during this time period for any complaints regarding her left shoulder (TT: 16-19).
The claimant testified that on the day of the accident, March 31, 2015, she was driving a 2001 Toyota Avalon and felt a "big thud" when the State van collided with her vehicle. She further indicated that the force of the impact bounced her vehicle into the lane to her left and she then pulled her vehicle ahead to the right and stopped on the sidewalk. Claimant testified that she was wearing her seat belt at the time of the accident and that the force of the impact jerked her up and to her left, causing her left shoulder to strike the driver's door. No other part of her body came into contact with any other part of the inside of the vehicle. Claimant testified that she did not immediately experience any pain following the accident. She testified that when the police arrived approximately 20 minutes later, she told the police officer "I didn't know if I was hurt. I didn't feel hurt" (TT: 19-22).
Claimant testified that by the evening of March 31, 2015, her left shoulder was now hurting and she went to Fiss Chiropractic where she was seen by Dr. July Gaysynsky. She testified that the pain she was experiencing in her left shoulder following the subject accident was "a big difference" from what she had experienced following the 2013 accident as the pain was now constant and bothered her even when lying in bed. Claimant testified that Dr. Gaysynsky prescribed physical therapy and ordered an MRI. Claimant's first physical therapy session was that same evening of March 31, 2015. She continued physical therapy four days per week through mid-May 2015 and testified that unlike the treatments following the 2013 accident, she was not feeling any better. Claimant stated that she continued to experience pain in her left shoulder daily and it affected her ability to perform all of her household activities. Claimant testified that Dr. Gaysynsky told her that she most likely needed surgery and recommended that she see an orthopedic surgeon. He ultimately referred her to Dr. Avshalumov (TT: 22-27).
Claimant testified that when she first saw Dr. Avshalumov in mid-May 2015, she was experiencing pain with everything that she did with her left arm. She described the pain as constant and that it would hurt when lifting, carrying or even when lying in bed. Claimant testified that Dr. Avshalumov told her that she would need surgery to repair a tear in her left shoulder. She testified that she agreed to have surgery this time because the pain now was constant and limiting her activities. Claimant testified that Dr. Avshalumov performed the surgery on May 19, 2015 (TT: 28-30). Following her release from the hospital, she wore a sling for one month that immobilized her left arm and shoulder. During that time she was able to cook but was unable to do other normal activities such as cleaning and grocery shopping (TT: 30-34). Claimant began physical therapy two weeks after the surgery following her first post-operative appointment. She testified that she continued physical therapy through September 2015. During that time period, she testified that she was not able to do a lot of her normal activities, including gardening and cleaning her apartment. Claimant testified that her pain during this time period was tolerable. As of September 2015, claimant testified that she was unable to put her left hand behind her back and that it hurt to stretch her left hand upward. In cold weather she also noticed a clicking sound in her left shoulder and that it generally "hurts a little bit." She testified that she experienced pain in her shoulder "maybe once a month" when she lifted heavy items or stretched her left hand up to a shelf. Claimant testified that other than the one post-operative appointment, she did not see Dr. Avshalumov again until 2016. After the 2016 appointment, she did not see him until the Friday prior to this trial (TT: 35-40). During this time period, claimant testified that she continued with home exercises, which she still performs five times per week. Claimant testified that presently she does not experience pain daily, only when she exerts her left arm. She stated that she has to be careful when raising her arm and that the left shoulder hurts and gets stiff in cold weather. Claimant testified that she occasionally takes Motrin, 200 milligrams. She stated that her present limitations are lifting heavy items, hanging curtains or anything requiring her to lift her left arm, all of which cause pain (TT: 41-45).
During cross-examination, claimant testified that she did not experience any bruising, bleeding, swelling or ecchymosis following the September 2013 accident. She testified that Dr. Kipnis, the orthopedist that she was referred to, had an MRI performed on April 15, 2014 and upon reviewing it, recommended surgery for a torn rotator cuff in her left shoulder. Claimant testified that she asked Dr. Kipnis if there was any option to surgery as she was not experiencing the kind of pain that warranted surgery and he told her that she could try physical therapy. Claimant testified that she went to physical therapy for six weeks and afterward was not experiencing any discomfort or pain. Claimant admitted that she still guarded her left arm because if she would raise her arm, it hurt. For that reason, claimant testified that she avoided carrying anything with her left arm. Claimant confirmed her earlier deposition testimony in which she stated that from the time that she stopped physical therapy in July 2014 until the March 31, 2015 accident, her left shoulder did not bother her except when she carried shopping bags with her left arm or tried to reach for things above her head (TT: 55-59). Following the March 2015 accident, claimant testified that she did not experience any bruising, bleeding, swelling or ecchymosis. She testified that at the time that she saw Dr. Gaysynsky her back hurt more than her left shoulder. Claimant testified that she told Dr. Gaysynsky that she had hurt her left shoulder before. She testified that she went to Dr. Avshalumov because his office was closer to her home than Dr. Pearl, the orthopedist originally referred by Dr. Gaysynsky. Claimant testified that she told Dr. Avshalumov or his physician's assistant that she had previously been in an accident but did not relate that she had previously had an MRI or been recommended for shoulder surgery (TT: 60-67). Claimant testified that between 2013 and the March 2015 accident, she was able to perform most gardening activities because she predominantly used her right arm. She testified that she was unable to garden in 2016 following the March 2015 accident. Finally, claimant testified that she was not told by Dr. Kipnis that there was any risk of tear progression in her left shoulder if she did not go forward with surgery in 2014 (TT: 71-75). TESTIMONY OF STANISLAV AVSHALUMOV, M.D.
The State sought to introduce Dr. Kipnis' records into evidence as Exhibit H. Claimant objected on the basis that the records were not certified in compliance with the requirements of CPLR 3122-a (a) nor was notice given in accordance with CPLR 3122-a (c). The State's counsel admitted that the certification with these records was not sworn to before a Notary Public and did not provide proof that notice had been provided to claimant's counsel as required by CPLR 3122-a (a) and (c). The Court reviewed the proposed exhibit and confirmed that the certification was not notarized and sworn to as required by statute and sustained the objection. The State then sought to admit certain portions of Dr. Kipnis' records on the basis that they had been provided to him by claimant's counsel with a letter dated May 10, 2018 (Exhibit E) and as such, these records were an admission. Claimant's counsel, upon examining Exhibit E, the May 10, 2018 correspondence provided by counsel for the State, stated that this letter accompanied HIPAA authorizations and did not have annexed to it any of the records of Dr. Kipnis that the State's counsel sought to admit. State's counsel admitted that the records of Dr. Kipnis that he sought to be received into evidence were not included with this letter or that these records were certified in accordance with CPLR 3122-a. As a result, the Court ruled that Exhibit E and the records of Dr. Kipnis referenced in one of the HIPAA authorizations included with the letter were not admissible (TT: 45-54).
The State sought to admit Exhibit C, HIPAA authorizations signed by claimant into evidence on the basis that these authorizations were an admission by claimant. Claimant objected to their admission. The State contended that these authorizations for medical records did not advise the State of claimant's previous shoulder injury and that the State did not learn of it until her examination before trial in January 2017. In response, claimant's counsel pointed out that one of the medical authorizations provided at that time was for Quality Health Family Medical Care, which is Fiss Chiropractic and Dr. Gaysynsky and that claimant described her prior injury and treatment at Fiss Chiropractic during her deposition. As such, there was no attempt to hide anything. State's counsel then admitted to the Court that he received all of the records pertaining to the prior shoulder injury around August 2018 and that this resolved any pretrial discovery issue pertaining to the prior shoulder injury. As a result, the Court sustained the objection and Exhibit C was not received into evidence (TT: 67-71).
Dr. Avshalumov is a board certified orthopedic surgeon specializing in joint replacement and sports medicine. He was issued a license to practice medicine in the State of New York in 2003 and was board certified in orthopedic surgery in 2011. Dr. Avshalumov's records of his treatment of claimant were received into evidence as Exhibit 1 (TT: 82-84). He testified that he first treated claimant on May 13, 2015 and that she described the pain level in her left shoulder at that time as a 5 on a scale of 1 to 10. Claimant also stated to him that she was unable to perform simple daily activities that involved any overhead motion and that the pain also bothered her sleep. Dr. Avshalumov's physical examination of claimant indicated positive findings for a rotator cuff tear. In range of motion testing, claimant was able to perform active abduction only to 90 degrees when a normal range of motion is 160 degrees, representing a 40% loss of motion for active abduction. In the passive abduction range of motion test, claimant was again only able to abduct to 90 degrees, representing a 40% loss of motion for passive abduction (TT: 84-89). With the active and passive external and internal rotation testing, claimant was only able to perform to 60 degrees when 90 degrees is normal functioning, representing a 50% loss of motion. Dr. Avshalumov also found positive readings for the drop arm test and empty can test and that motor strength testing showed her shoulder muscle strength to be weak. Dr. Avshalumov concluded from these tests that claimant had a full-thickness tear of the rotator cuff with rotator cuff sprain and strain. He offered claimant surgical intervention to repair her torn rotator cuff tendon (TT: 90-94).
Dr. Avshalumov opined that to a certain degree, the accident of March 31, 2015 caused the rotator cuff tear. He also testified that someone with a preexisting injury to her shoulder could re-injure it in a subsequent trauma and that it was his opinion that the accident exacerbated the prior injury to her left shoulder that took place in September 2013. He also testified that with rotator cuff injuries, you do not proceed to surgery right away. Instead, you provide options to the patient such as physical therapy and nonsteroidal anti-flammatory medication and if none of these relieve the symptoms significantly, then surgery is deemed necessary. As such, it was Dr. Avshalumov's opinion that the accident of March 31, 2015 did exacerbate any prior condition existing in her left shoulder from the 2013 accident (TT: 94-97).
Dr. Avshalumov testified that he performed the arthroscopic surgery on May 19, 2015. During the outpatient surgical procedure, he was able to observe that claimant's rotator cuff was completely torn or detached from the humerus. He described further that he observed significant inflammation around her shoulder capsule and shoulder joint. Dr. Avshalumov also testified that he found that claimant had a significant amount of adhesions, a lot of inflammation, and an impingement of the rotator cuff. He explained that when the inflammation process occurs, the patient is unable to fully move her arm and adhesions develop. Dr. Avshalumov explained the surgical technique that he utilized to attach the anchor and the rotator cuff to the bone. He also indicated that he removed the inflammation around the joint. Dr. Avshalumov then opined that the March 31, 2015 accident was the cause for the need for the shoulder surgery, stating that claimant "did not experience any symptoms and pain prior to her injury, and after her accident, she underwent course of physical therapy, which was not providing relief of her symptoms, she was not improving, her quality of life was getting involved and was diminishing, so with a reasonable degree of medical certainty, the accident was a causation of [the] symptoms and that's why I offered her surgery". He also opined that as claimant testified that after she completed physical therapy in 2014 she was not experiencing pain and discomfort in her left shoulder and was not receiving any medical care and treatment or physical therapy and that the need for the surgery was caused by the March 31, 2015 accident (TT: 98-103).
Dr. Avshalumov's first post-operative visit with claimant was eight days following surgery on May 27, 2015. He testified that claimant was then experiencing pain at a level of 6 out of 10. He explained how her left arm and shoulder were placed in a shoulder immobilizer to allow the healing process to occur for her tendon to reattach to the bone. Dr. Avshalumov testified that this healing process typically takes between four and six weeks. He testified that he next saw claimant on June 24, 2015. Dr. Avshalumov testified that he did not move her arm a lot as the healing process was still taking place, but stated that her pain level was now less than before and he requested that she begin aggressive physical therapy three times per week. Claimant's next post-operative appointment was on July 29, 2015 and Dr. Avshalumov stated that her pain level was now a 4 out of 10 (TT: 103-107). Dr. Avshalumov testified that when she next returned to see him on September 11, 2015, claimant was still having slight discomfort and her pain level was now a 3 out of 10. He stated that his physical examination indicated that she had significant improvement and had regained strength and range of motion in the left shoulder. As a result, Dr. Avshalumov stated to claimant that there was nothing more that he could do for her at this point and that she should see him in the future if she was having any problems. Dr. Avshalumov testified that claimant returned to see him one month later on October 14, 2015, indicating that she was still experiencing discomfort in her left shoulder and also indicated that she was experiencing pain in her lumbar spine (TT: 107-109).
Dr. Avshalumov testified that claimant did not return to see him again until May 18, 2016, approximately one year following surgery. Claimant stated to him that she was still experiencing some discomfort and constant pain which was at a level of 4 out of 10 and that the pain was worsened by increased activity. Upon physical examination, Dr. Avshalumov noted a slight decreased range of motion in active abduction and flexion testing and in motor strength testing. He testified that he prescribed Naproxen, a nonsteroidal anti-inflammatory medication. It was his diagnosis that claimant had some inflammation or tendonitis over the repaired rotator cuff in her left shoulder. Dr. Avshalumov did not see claimant again until March 8, 2019, immediately prior to this trial. At that time, claimant was still experiencing discomfort about her shoulder and her pain level was now a 2 out of 10. He performed a physical examination of claimant and determined that she had a slight decreased range of motion. He testified that it was his opinion that claimant had reached her maximum medical improvement for her left shoulder, meaning that nothing further could be done to improve her quality of life or increase her range of motion in the left shoulder. Dr. Avshalumov opined that claimant had experienced significant improvement from the repair to her rotator cuff and that likely as a result of the presence of the plastic anchors at this location which will remain, she had developed some inflammatory process that will require her to perform daily home exercises and take anti-inflammatory medication as needed for the rest of her life (TT: 109-115).
On cross-examination, Dr. Avshalumov stated that he did not review the medical records of Dr. Gaysynsky. He also testified that he was not aware of claimant's earlier accident in September 2013 when he first saw claimant and was not aware that she had injured her left shoulder prior to March 31, 2015. Dr. Avshalumov testified that he did not learn about the 2013 accident until a few days prior to the trial. He also testified that claimant did not tell him that she had an MRI on her left shoulder prior to March 31, 2015. Dr. Avshalumov also stated that he would have wanted to have seen the results of that earlier MRI (TT: 115-119).
State's counsel then renewed its request to introduce the records of Dr. Kipnis, stating that he now had a certification from NYU Langone in compliance with CPLR 3122-a(a). Claimant's counsel renewed his objection on the basis that the State had not complied with the requirements of CPLR 3122-a (c). State's counsel then produced a letter dated September 4, 2018 that was not received into evidence. He claimed this letter was notice of his intention to use these records at trial in compliance with CPLR 3122-a (c). However, nowhere was it stated in this letter that the State would be seeking to introduce these records at trial in accordance with CPLR 3122-a (c). As a result, the objection was again sustained. (TT: 120-124).
Dr. Avshalumov testified that adhesions can develop in two to six weeks, however, it would not be common for a 72 year old to develop adhesions that quickly. He stated that how quickly they develop is dependent upon how much inflammation comes from the injury and that if the patient does not move the shoulder or the arm after injury due to pain, adhesions can develop very quickly. Dr. Avshalumov agreed that adhesions could have formed from the earlier accident in 2013. However, he did not agree that it was more likely that the adhesions were from the 2013 accident as claimant had stated to him that prior to the March 2015 accident, she had a full range of motion and was experiencing no pain. Finally, Dr. Avshalumov testified that he never saw Dr. Kipnis' records (TT: 125-129).
On redirect examination, Dr. Avshalumov stated that when a patient such as claimant comes into his office, he is interested in her symptoms and what she is presenting to him at that time. He indicated that he makes and forms his own diagnosis and treatment plan based upon his observations and testing, not from the advice of any other doctor (TT: 130). TESTIMONY OF RAMESH GIDUMAL, M.D.
Prior to Dr. Gidumal being sworn in to testify, claimant's counsel made a trial motion to preclude his testimony on the basis that Dr. Gidumal never examined claimant and only performed a record review and that his opinions were based upon the records of Dr. Kipnis that are not in evidence. The State's counsel responded that Dr. Gidumal did review Dr. Avshalumov's records, including the 2015 MRI and could testify based on the claimant's testimony in the same manner through hypothetical questions as Dr. Avshalumov had opined. Claimant's counsel then responded that Dr. Gidumal's conclusions in his report dated February 9, 2019 were that all of claimant's pathology was the result of the 2013 accident, not the 2015 accident, which is to be based upon Dr. Kipnis' records and the 2014 MRI, records that were not in evidence. State's counsel then requested that the defendant be granted a continuance of the trial in order to subpoena the records of Dr. Kipnis and the 2014 and 2015 MRI reports. This request for a continuance was denied.
The Court then reserved decision on the admissibility of Dr. Gidumal's testimony as an expert witness for the defendant. In doing so, the Court ruled that Dr. Gidumal may not testify and may not be questioned regarding records not in evidence, including the records of Dr. Kipnis and the 2014 MRI report, nor may he compare the results of the 2014 and 2015 MRI reports (TT: 132-141). It is now the ruling of this Court that Dr. Gidumal's testimony will be considered as restricted at trial, namely, that Dr. Gidumal may offer his opinion as to claimant's injuries and her surgery and treatment with Dr. Avshalumov and the 2015 MRI report, but may not reference, refer to or base any opinion upon the records of Dr. Kipnis or the 2014 MRI report, neither of which are in evidence.
The Court bases this ruling upon the prior decision of the Court of Appeals in Hambsch v New York City Tr. Auth., 63 NY2d 723 [1984], in which it was held that opinion evidence must be based on personal knowledge of the facts upon which the opinion rests; or if the expert does not have personal knowledge of the facts upon which the opinion rests, the opinion must be based upon facts and material that are in evidence (real or testimonial); or if the material is not in evidence, that the material is derived from a witness who is subject to full cross-examination and that material is of the kind accepted in the profession as a basis in forming an opinion; and the out-of-court material is accompanied by evidence establishing its reliability (Id. at 725-726). At trial, the State made no showing that consideration of the records of Dr. Kipnis met either of the standards established by the Court of Appeals in Hambsch. As to Dr. Gidumal offering an opinion based upon a review of the 2014 MRI report, it has been previously held that it would be reversible error for a trial court to permit an expert witness to offer testimony interpreting diagnostic films such as an MRI without the production and receipt in evidence of the original films or properly authenticated counterparts (Wagman v Bradshaw, 292 AD2d 84, 87 [2d Dept 2002]). Accordingly, it would have been improper for this Court to permit Dr. Gidumal to opine based upon his review of the 2014 MRI report or to offer an opinion based upon comparing the findings of the 2014 and 2015 MRI reports.
The defendant offered the testimony of Dr. Gidumal as an expert witness. He testified that he is a licensed physician board certified in orthopedic surgery and maintains a specialty in sports medicine and shoulder surgery. Dr. Gidumal testified that he reviewed certain records in preparation for his testimony, including the records of Dr. Avshalumov. He did not perform an independent medical examination. Dr. Gidumal testified that Dr. Avshalumov's operative report indicated that he performed surgery on claimant for a torn rotator cuff. Dr. Gidumal testified that this report indicated the presence of adhesions, which he described as tissue that is formed between two structures over the course of a long period of time. He testified that adhesions are not something that forms over the course of days or weeks but that it takes months and years for their formation and that in the case of a 72 year old woman such as claimant, it would still take months to years for adhesions to form (TT: 142-146).
Dr. Gidumal opined that the presence of adhesions in claimant's left shoulder would be consistent with an injury to her shoulder from a 2013 automobile accident. He also opined that if an individual has a rotator cuff tear, it depends upon the nature of the tear whether it can be treated with physical therapy, stating that a partial tear can be treated with physical therapy while a complete thickness retracted tear cannot be treated with physical therapy. Dr. Gidumal testified that if claimant became less symptomatic and was happy with the results of her physical therapy in 2014, that the physical therapy was successful (TT: 146-150).
LAW AND DISCUSSION
In order for claimant to recover for non-economic loss resulting from the March 31, 2015 motor vehicle accident, Insurance Law 5102 (d) requires that claimant establish that she sustained a "serious injury". A serious injury is defined by Insurance Law § 5102(d) as:
"a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment."
The claimant contends that she has met the statutory criteria to establish a permanent consequential limitation of use of a body organ or member with respect to her left shoulder as a result of sustaining a full-thickness rotator cuff tear caused by the March 2015 accident. After listening to the testimony of claimant and Dr. Avshalumov at trial and evaluating their demeanor while doing so, I found their testimony to be sincere and credible. The claimant testified that the force of the impact by defendant's vehicle jerked her up and to her left, causing her left shoulder to strike the driver's door. Although claimant testified that she did not immediately experience pain, she treated that evening with Dr. Gaysynsky, who ordered an MRI and prescribed physical therapy. Claimant participated in physical therapy for several weeks but the frequency or intensity of the pain did not lessen. Claimant stated that Dr. Gaysynsky told her that she would require surgery and referred her to Dr. Avshalumov.
Dr. Avshalumov testified that he first treated claimant on May 13, 2015. His office records and testimony reiterate that claimant had been experiencing constant pain in her left shoulder since the time of the March 31, 2015 accident; that the pain was worse with increased activity, lifting and movement; that it interfered with her sleep; and that the physical therapy treatments were intolerable (Exhibit 1). His physical examination quantified a substantial loss of range of motion in her left shoulder and confirmed positive findings for a full-thickness rotator cuff tear. It was his opinion with a high degree of medical certainty that there was a medical necessity to perform arthroscopic surgery. On May 19, 2015, Dr. Avshalumov performed the surgery on claimant's left shoulder and testified that he observed that her rotator cuff was completely torn or detached from the humerus. It was his opinion that the March 31, 2015 motor vehicle accident was the cause for the need for arthroscopic shoulder surgery.
During his testimony, Dr. Avshalumov also addressed the issue concerning the presence of adhesions in claimant's left shoulder. The defendant and their expert witness, Dr. Gidumal, contend that the presence of adhesions establishes that plaintiff had a pre-existing injury resulting from a September 13, 2013 motor vehicle accident and that claimant did not provide sufficient evidence to establish that the accident exacerbated a pre-existing injury. In this regard, the Court finds the claimant's testimony credible that following the September 2013 accident, she experienced discomfort in her left shoulder and that her treating physician at that time, Dr. Kipnis, ordered an MRI and then recommended surgery. Claimant testified that she asked Dr. Kipnis if there was any option to surgery and he indicated that she could pursue physical therapy, which she opted to do. I also find claimant's testimony credible that she participated in physical therapy until July 2014, that the regimen of physical therapy was successful and that she was no longer experiencing pain and had no restrictions upon her daily activities. Furthermore, I find as credible that claimant did not treat with any physician, receive any treatment or participate in any additional physical therapy for her left shoulder between July 2014 and the March 31, 2015 accident.
Dr. Avshalumov testified that when a patient experiences inflammation in the shoulder area, adhesions result when the patient is unable to fully move her arm. It was his opinion that adhesions can develop in two to six weeks but that it would not be common for a 72 year old woman like claimant to develop adhesions that quickly. Dr. Avshalumov testified that how quickly adhesions develop is dependent upon how much inflammation arises from the injury and how restricted the patient is in being able to move her shoulder or arm. On the other hand, Dr. Gidumal testified that adhesions would only develop over a long period of time and that it would take months or years for them to develop in a 72 year old woman. On cross-examination, Dr. Avshalumov agreed that adhesions could have formed from the earlier 2013 motor vehicle accident but he did not agree that it was more likely than not that they were caused by the 2013 accident because he found it significant that prior to the March 31, 2015 accident, claimant was not experiencing pain and had a full range of motion in her shoulder.
In that claimant testified that she had a favorable recovery from her physical therapy following the 2013 accident and that she was asymptomatic from July 2014 up to the time of the March 31, 2015 accident, and as the defendant produced no evidence contradicting her testimony, I find that the adhesions visualized by Dr. Avshalumov during his May 2015 surgery formed after the March 2015 accident. I also find Dr. Avshalumov's testimony credible that claimant suffered a full-thickness labral tear of the rotator cuff in her left shoulder as a proximate result of the March 31, 2015 accident. In this regard, I also considered the testimony of Dr. Gidumal, who stated that a complete rotator cuff tear may not be treated with physical therapy. This is further evidence that the complete rotator cuff tear observed by Dr. Avshalumov was the result of the March 2015 accident, not the September 2013 accident. As a result, I find that claimant was asymptomatic between July 2014 and the March 31, 2015 motor vehicle accident and that the symptoms that she treated for with Dr. Gaysynsky and Dr. Avshalumov were causally related to the March 31, 2015 accident. Accordingly, I do not find that claimant had a pre-existing tear that was aggravated by the March 2015 accident and instead that she suffered a full or complete thickness tear of the rotator cuff as a direct result of the March 31, 2015 accident (see Bonilla v Vargas-Nunez, 147 AD3d 461 [1st Dept 2017]; DiBenedetto v Abreu, 107 AD3d 840 [2d Dept 2013]).
I also find that Dr. Avshalumov's testimony was credible that prior to the May 2015 surgery, his physical examination of claimant's left shoulder determined that she had a 40% loss of motion for active abduction, 40% loss of motion for passive abduction and a 50% loss of motion for active and passive external and internal rotation testing. He further testified that a few days prior to this trial he performed a physical examination of claimant's left shoulder and determined that she still has a loss of 20 degrees range of motion in her left shoulder that he believes will be permanent. Dr. Avshalumov opined with a reasonable degree of medical certainty that claimant has received the maximum benefit from the surgery performed by him and that claimant will need to continue with home exercises five days per week and take anti-inflammatory medication as needed for the rest of her life. As a result, I find that Dr. Avshalumov's testimony placing a numeric percentage on claimant's loss of range of motion in her left shoulder substantiates and establishes that claimant has sustained a serious injury, i.e., a permanent consequential limitation within the meaning of Insurance Law § 5102(d) (Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Perez v Vasquez, 71 AD3d 531 [1st Dept 2010]).
The Court concludes based upon a preponderance of the credible evidence that claimant is entitled to an award of non-economic loss to justly and fairly compensate her for the injuries she sustained as a result of the March 31, 2015 accident. When deciding on an award of damages to a person injured by the negligence of another, the objective is to compensate the victim, not to punish the wrongdoer 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 NY2d 246, 253-254 [1989]). The Court finds that claimant suffered damages comprised of past and future pain and suffering. Awards for pain and suffering are not subject to a precise calculation and the "factors to be considered . . . include the nature, extent and permanency of the injuries, the extent of past, present and future pain and the long-term effects of the injury" (Nolan v Union Coll. Trust of Schenectady, N.Y., 51 AD3d 1253, 1256 [3d Dept 2008], lv denied 11 NY3d 705 [2008]).
The defendant contends that claimant failed to establish a serious injury or that the March 31, 2015 accident exacerbated an existing injury. The defendant did not offer any medical testimony to contest the issue of causation, that the cause for the need for surgery was the the subject accident or to contest claimant's allegations that she was asymptomatic prior to the March 2015 accident. In any event, it has previously been held that the defendant must take the claimant as she is found and may be liable for damages for aggravation of a pre-existing injury (Matter of Tobin v Steisel, 64 NY2d 254, 259 [1985]). Based upon the proof presented at trial, I find that claimant did injure her left shoulder in a 2013 accident, that through physical therapy she recovered from that injury, was pain free, and from July 2014 to March 31, 2015 was able to perform all of her activities of daily life without restriction. I also find that following the March 31, 2015 accident, claimant was in constant pain and unable to perform most activities of daily living and required arthroscopic surgery to repair a complete tear of her rotator cuff in May 2015. I find that by September 2015, following the completion of physical therapy that claimant was able to resume most daily activities with the exception of gardening and experienced pain in her left shoulder about once per month upon lifting heavy objects or stretching her left arm and hand in an upward motion. I find that claimant presently does not experience pain daily but that when she does, she will take Motrin and that she continues to perform home exercises five times per week to counteract inflammation due to the hardware placed in her left shoulder during surgery. Claimant also testified that she has to be careful when raising her left arm and that the left shoulder will hurt and get stiff during cold weather. Finally, I also find that claimant's present limitations on her daily activities include lifting heavy items, hanging curtains or anything that would require that she lift up her left arm. I also find credible, Dr. Avshalumov's testimony that claimant will have a permanent loss of 20 degrees range of motion in her left shoulder.
The State contends that the failure to produce Dr. Kipnis' medical records at trial requires this Court to take an adverse inference that this evidence would not support her claim that claimant's pre-existing left shoulder injury was exacerbated by the March 31, 2015 accident and thus did not suffer a serious injury within the meaning of Insurance Law § 5104(a). The Court disagrees and in fact, claimant has proven that she sustained a full-thickness tear of the rotator cuff of her left shoulder that the Court finds to be a permanent consequential limitation to her left shoulder. The Court finds that the State did not establish its entitlement to an adverse inference as it failed to establish that Dr. Kipnis' records were solely under claimant's control. The State had the ability to subpoena these records for trial but failed to do so in accordance with CPLR 3122-a (see Wilkie v New York City Health & Hosps. Corp., 274 AD2d 474 [2d Dept 2000]).
Upon consideration of the testimony provided at trial, I find that claimant is entitled to an award of $150,000 for past pain and suffering and an award of $150,000 for future pain and suffering (see Purkiss-Riddle v New York City Tr. Auth., 89 AD3d 1001 [2d Dept 2011]; Keaney v City of New York, 63 AD3d 794 [2d Dept 2009]). As such, in accordance with CPLR § 5002, the Court awards the claimant the total sum of $300,000, together with statutory interest from May 29, 2018, the date of the Court's decision establishing the liability of the State (Dingle v Prudential Prop. & Cas. Ins. Co., 85 NY2d 657 [1995]; Love v State of New York, 78 NY2d 540 [1991]). In addition, to the extent that claimant has paid a filing fee, this too may be recovered in accordance with Court of Claims Act § 11-a (2).
As to any objections upon which this Court reserved decision during the course of the trial and as to any motions made at trial upon which the Court previously reserved or which remain undecided, all are hereby denied.
Let judgment be entered accordingly.
July 11, 2019
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims