Watts v State of New York

[*1] Watts v State of New York 2004 NY Slip Op 51934(U) [21 Misc 3d 1125(A)] [21 Misc 3d 1125(A)] Decided on July 7, 2004 Ct Cl Marin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through December 12, 2008; it will not be published in the printed Official Reports.

Decided on July 7, 2004
Ct Cl

Kathryn Watts, Claimant,

against

The State of New York, Defendant.



104748



APPEARANCES:For Claimant:

Gordon & Gordon, P.C.

By: Peter S. Gordon, Esq.

For Defendant:

Eliot Spitzer, Attorney General

By: Victor J. D'Angelo, Esq., AAG

Alan C. Marin, J.

This is the decision following the damages portion of the trial of the claim of Kathryn Watts, which arose from her injury at Manhattan Psychiatric Center, for which the defendant State of New York was found fully liable by this Court's Decision dated July 9, 2003.

Ms. Watts was a nurse at Manhattan Psychiatric on Ward's Island, and given the nature of her schedule and residence in Suffolk County, was assigned an apartment for her use in the staff house, which she "time-shared" with another nurse.

When claimant returned to her apartment on the morning of October 6, 2000, after working the night shift, pieces of the ceiling fell onto her head (see cl exh 5 from the liability trial). Photographs taken about a week later show a dark bruising under Ms. Watts' left eye and some bruising on her nose (cl exhs 3A-3G). In addition to damages for her physical injuries, claimant seeks damages for the effect on her mental state, including the inability to continue working, and a reduction in her daily activities and ability to care for her husband.

The Effects on Physical Health

Initially, it should be noted that the findings of neurologist Jonathan Winnick - - that claimant suffered no neurological injury on October 6, 2000 - - went undisputed. The results of Watts' EEG and CT-scan were negative.Dr. Winnick's January 2, 2001 report notes that [*2]claimant no longer suffers from dizziness or nausea and that the pains in her head have subsided.[FN1]

Watts had two surgeries within seven months of her injury. The first of these, on December 1, 2000, was described by Dr. Janis DiPietro, a plastic surgeon, as involving "the reduction of the . . . nasal bone fracture and the reconstruction of her septum. . . " Grafts were used to reestablish the shape of the nose. The goal of this first surgery, explained Dr. DiPietro, was to improve claimant's breathing and correct the deformity caused by the fracture of her nasal bones on October 6. Neither this nor the second surgery was performed by Dr. DiPietro, who saw claimant three years after her injury on September 3, 2003 (cl exh 15).

The second surgery, performed on April 26, 2001, was a repair of the lachrymal system which drains the tears from the eyes into the nose; the purpose was to decrease tearing in claimant's left eye. To Dr. DiPietro, there had apparently been an injury to that system, and Watts needed a rerouting of the tears so that they would flow unobstructed. At the time of this surgery, claimant had unrelated cosmetic surgery on both eyelids.

Claimant complained to Dr. DiPietro, in September of 2003, of her left eye tearing, stuffiness of her nose, some "achiness" around her nose and eyes, difficulty in wearing glasses and the scar resulting from the injury and surgery. It was unclear if her complaint about the scar was cosmetic only, or involved some irritation. Watts did not inform Dr. DiPietro that she had had an operation in 1983 for a deviated septum (the wall dividing the nose); DiPietro learned of it from her review of the records of Dr. Thomas Romo, who performed the first surgery.

Dr. DiPietro testified that there was some asymmetry in an implant that was inserted inside Watts' nose: the implant "seemed to me to be a little shifted, which contributed to the fact that her glasses did not sit centered on her nose." Dr. DiPietro explained that such shifting was a normal complication that patients would be warned about before surgery, and that implants can be necessary because even after surgically reducing such a fracture, the deformity may not be fully corrected. Dr. DiPietro observed that Watts also had developed scar tissue inside the nostril that narrows the air passage. As to whether claimant still had partial obstruction of the lachrymal system, the doctor's testimony implied that such might be possible ("a questionable still-partial obstruction"), although DiPietro's report was cast in somewhat stronger terms (cl exh 15).

Whether these things can be corrected by further surgeries is, according to Dr. DiPietro, not known, although the repositioning of the implant is the most likely to be successful. Dr. DiPietro suggested that the implant surgery and repair of the tear duct surgery cost about $7,500, and are apparently separate surgeries. Dr. DiPietro stated that the one thing she could conclude to be permanent is claimant's scar, which is a centimeter and a half in length (0.6 inches). Surgery to mask the scar costs approximately $3,000 to $3,500.

Dr. Gerald Stoller, an ophthalmologist, examined Ms. Watts on October 30, 2002, nearly a year earlier than Dr. DiPietro, and elicited fewer, and different, complaints than did Dr. DiPietro:"Her main complaint was she had a foreign body sensation and that she had blurred vision, both in the left eye." Dr. Stoller was convinced - - and persuasive - - that any blurry vision could not have been the result of the October 2000 subject injury. Stoller observed no difficulty on the part of claimant in seeing or reading. [*3]

Watts apparently did not raise the issue of discomfort in wearing her glasses, although Dr. Stoller testified that: "The patient is more myopic in the left eye than the right eye. This may explain her complaint of blurred vision in the left eye as she doesn't wear glasses all the time" (def exh E, p. 2). Dr. Stoller did not discuss the asymmetry of the implant directly; nor did Watts complain about it to him. He did allow for the possibility that the tear duct surgery could lead to "an infection in the future. It might be irritating to her."

Dr. Stoller saw no evidence of tear lake formation, which if found would indicate that tears are not going down the normal channel, but conceded there could be some blockage. Stoller did a thorough examination, except that claimant refused to allow him to irrigate her tear ducts because of the prior surgery. The doctor found that the iris and pupil were normal, as was that part of the eye between the outer cornea and the inner iris, and that intraocular pressure was normal, as was the patient's peripheral vision. Dr. Stoller did note a dandruff-like appearance on the lower left lid which he stated could not could not have been the result of her accident. As to the complained-of foreign body sensation in her left eye, Dr. Stoller conducted a thorough work-up, including staining the cornea, and found no evidence thereof.

I conclude that claimant has satisfied her burden that certain objective conditions in or near her nose were caused by the October 6, 2000 accident, and not by the 1983 surgery (or in the case of the misaligned implant, by an intervening event), namely: the asymmetrical implant, some narrowing of the nasal passage, occasional tearing and a 1.5 centimeter scar.

Kathryn Watts was born in 1945 and according to the actuarial tables has a life expectancy of 25 years. PJI, Volume 1B, App A, Table 3. In view of the foregoing, I find that Ms. Watts' damages in pain and suffering from her physical injury amount to $150,000 in the past, and $100,000 in the future.

As to future surgery, with respect to the scar, Dr. DiPietro noted that it is difficult to predict the result as another operation would create more scar tissue. But Ms. Watts had cosmetic surgery after her injury and I conclude she would do so here. Using the upper range mentioned by Dr. DiPietro, the cost would be $3,500. Also, for the other two surgeries, to repair the implant and ameliorate any tearing problem ($7,500 each), I conclude that such would be undertaken, amounting to total future medical costs of $18,500. However, with regard to the nasal passage narrowing, claimant did not elicit any cost information and in any event, as Dr. DiPietro noted, it is formed by scar tissue, and there may be less likelihood for successful repair of the passage.

The Effects on Mental Health

Ms. Watts testified that after the injury - - and as a consequence thereof - - she was unable to concentrate, gets confused, has nightmares as well as flashbacks, suffers anxiety attacks, palpitations and, at times, hyperventilates. These are all subjective complaints and claimant was less than forthcoming about her pre-accident mental condition. Dr. John Walsh, a family practitioner who had been treating claimant before the subject injury, on July 26, 1999 prescribed Xanax because claimant told him she that she was under "some stress." Dr. Walsh saw her on February 25, 2000 and again wrote that she had anxiety in his consult notes and continued the prescription for Xanax (def exh A).

Claimant put Dr. George Fairey, a psychiatrist, on the stand; defendant also called a [*4]psychiatrist, Dr. Allen Reichman. Much of the testimony turned on whether claimant had Post Traumatic Stress Disorder (PTSD), which if obtaining, could then be traced to a specific event, i.e., the subject injury. This is not to say that Watts may not have exhibited some psychological conditions, but the issue at bar is whether such is a result of the events of October 6. The standard is proximate cause (PJI 2:70), whether the subject injury was a substantial factor in bringing about the condition(s).

Dr. Fairey had begun treating Watts on October 30, 2000, but in fact had known her for years beginning in 1982 when they both worked at the outpatient clinic of the Central Islip Hospital. Dr. Fairey's opinions lacked credibility. At one point, he said, "I became aware of the errors of my diagnostic criteria by reviewing the Diagnostic and Statistical Manual IV [DSM-IV] on the way to court today." When asked whether something he wrote in connection with his diagnosis of Watts is one of the examples contained within DSM-IV, Dr. Fairey responded, "I would have no idea." In addition, Fairey maintained that for the purposes of PTSD, Watts' physical injuries were on a par with the loss of a limb.

Even though he knew that Dr. Walsh had prescribed Xanax before the accident, Dr. Fairey contended that he was unaware of any diagnosis of anxiety prior to the events of Oct 6, 2000, then a few moments later said that Xanax is used to treat acute anxiety and panic attacks, although he did recover somewhat by stating that the everyday stresses of life usuallydo not require treatment with Xanax. Fairey was also vague about his knowledge of claimant's diabetes and when he learned of it. Dr. Walsh testified that his diagnosis of Type-II Diabetes-Mellitus was made in July of 1999; Dr. Fairey on the stand said that he believed he had been aware that Ms. Watts had diabetes as of the first time he treated her on October 30, 2000 from "[s]ometime in the conversations we had between 1985 and 2000 in reference to other people in her life." This followed his statement that he did not discuss her prior medical condition in that first meeting.

In contrast, Dr. Reichman's diagnosis was highly credible and persuasive to this trier of fact. At most, he concluded, claimant had post-concussive syndrome, which involves memory problems and is short-lived. Reichman concluded that Ms. Watts did not have Post Traumatic Stress Disorder; I find the following explanation by Dr. Reichman to be highly persuasive, and would note that Watts' testimony was inconsistent at best on whether she feared for her life: [T]he person has to be involved with a traumatic event in which two things were present objectively. The first is that the event that the person was - - experienced, witnessed or confronted with an event that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others. And the second criteria is that the person's response involved intense fear, helplessness or horror.I don't believe either of those threshold criteria . . . were present, certainly not according to the description given to me by Ms. Watts. And if those criteria are not present objectively, the diagnosis can not be made regardless of what symptoms the person is experiencing.

Dr. Reichman also ruled out panic disorder, stating that while Watts described some symptoms of panic disorder, in an actual panic disorder, "symptoms arrive spontaneously. They [*5]are not precipitated by a specific trauma . . ." Ms. Watts had anxiety before her accident, and Reichman observed that whether and how much it was worsened by the events of October 2000 was difficult to say. The burden is on claimant, and her less than forthcoming testimony in a number of areas, for example on her family stressors, undermines the argument for exacerbation of a preexisting condition. In sum, I find no effect on Ms. Watts' mental health that satisfies the requisite proximate causation and thus no damages arising therefrom.

Wage Loss

Dr. Reichman's diagnosis of post-concussive syndrome, which includes short term memory loss, was not connected to Watts' ability to work. Claimant's expert economist, Dr. Frank Tinari, based his analysis of her wage loss on mental health related effects, not on any physical injury (cl exh 23, p.6). For her part, Watts emphasized the emotional aspects of her damages, and did not make any connection between her ability to work and her physical injuries. Given that I have found no mental health condition as a result of claimant's accident, there are no lost wages correspondingly attributable thereto.

Household Expenses

Ms. Watts testified that following her accident, she hired an individual to clean her house, paying $60 every two weeks. Given the physical injuries sustained, it is a fair inference that it was necessary for claimant to hire someone to help with, or to do, the household cleaning. However, no showing has been made that such was necessary for a period much beyond her second surgery in late April of 2001, namely for more than one year. Claimant is thus entitled to $1,560.

***

In sum, claimant Kathryn Watts has sustained the following losses as a result of her injury of October 6, 2000:

Therefore, Kathryn Watts is awarded $270,060 with interest thereon to accrue from July 9, 2003. To the extent that claimant has paid a filing fee, it may be recovered pursuant to subdivision two of §11-a of the Court of Claims Act.

LET JUDGMENT BE ENTERED ACCORDINGLY. New York, New York July 7, 2004 ALAN C. MARIN Judge of the Court of Claims [*6] Footnotes

Footnote 1: Referenced in def exh B, p.4; claimant did not object to any portion of this exhibit.