New York State Court of Claims

New York State Court of Claims
MANLEY v. THE STATE OF NEW YORK, # 2018-041-501, Claim No. 125604


After trial, claimant is awarded damages in the amount of $175,000 for pain and suffering in his left leg, during the period between March 8, 2012 and July 11, 2013, caused by defendant's negligence in failing to perform recommended surgery, thereby depriving claimant of the "substantial possibility" the proposed surgery would have limited, lessened or eliminated the claimant's left leg pain.

Case information

UID: 2018-041-501
Claimant short name: MANLEY
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 125604
Motion number(s):
Cross-motion number(s):
Claimant's attorney: FRANZBLAU DRATCH P.C.
By: Brian Dratch, Esq.
Defendant's attorney: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
By: Belinda Wagner, Esq.
Third-party defendant's attorney:
Signature date: February 14, 2018
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


Matthew Manley (claimant) became a state prison inmate held in defendant's custody, during this claim's relevant period of time, beginning November 15, 2011. Immediately prior to that date, claimant had been in the custody of local authorities at the Franklin County Jail (Franklin).

While housed at Franklin, and for many years before that, claimant had experienced years of back, spine and left leg and foot problems, including degraded physical condition, diminished and lost function and sensation, and pain of varying intensity and seriousness, conditions that were exacerbated by claimant's weightlifting activities while incarcerated prior to November 15, 2011.

On September 19, 2011, while incarcerated at Franklin, claimant had a medical consultation with neurosurgeon John Dalfino of Albany Medical Center (AMC). That consultation was memorialized by Dr. Dalfino (Trial Exhibit 1).

Exhibit 1, among other observations, notes:

1) "Mr. Manley . . complains of intermittent back pain over the last 6 years with an acute exacerbation a few months ago;"

2) "The most recent episode he complains is of severe back pain, which initially radiated into the left lower extremity;"

3) "[H]e continues to have left lower extremity numbness . . . as well as atrophy of his buttocks, and a footdrop on the left side;"

4) "His weakness and numbness have been mildly progressive;"

5) "He has had a recent lumbar spine MRI showing significant herniated disc at L4-L5 and L5-S1;"

6) "Complains of cramping and weakness in the left lower extremity;"

7) Under "PHYSICAL EXAMINATION," Dr. Dalfino measured claimant to have substantially substandard strength and flexion in his left lower extremity, measuring various functions from 0 to 1 to 2+ on a scale of 0 to 5, and found claimant to have decreased sensation in his left calf and left foot;

8) "His gait is affected significantly by the footdrop on the left side;"

9) A June 2011 lumbar MRI revealed, "He has a significant herniated disk with near obliteration of the thecal sac at L4-L5 and to a lesser extent at L5-S1;" and,

10) Under "MEDICAL DECISION MAKING," Dr. Dalfino wrote:

"I went over the options with Mr. Manley. Because he has no pain, I think that it is possible for him to do nothing, and his symptoms may resolve over time. I am concerned; however, that his footdrop and numbness may be somewhat progressive, and because he has such significant findings in the MRI, I do think surgery is a reasonable option. I discussed various approaches with him, and think likely in him that decompression alone will be sufficient, but I have ordered some flexion-extension lumbar x-rays to make sure that there is no instability. I do not think at this point, things like epidural steroid injection, etc., would be appropriate. He is going to think over his options specifically conservative versus surgical therapy and get back to me. If he does agree to surgery, I will perform an L4-L5 and L5-S1 diskectomy (sic) likely from a bilateral approach."

Many of Dr. Dalfino's observations of claimant's conditions had been previously memorialized in claimant's extensive medical records (see Exhibit B), conditions highlighted by the trial testimony of defendant's medical expert, Dr. Brian Gordon, who discussed many of the claimant's medical records that detailed claimant's prior experiences with compromised function and the painful condition of his back, leg and spine (see Trial Transcript, hereafter "TT," pp 305-314).

Finally, in portions of claimant's examination before trial (Exhibit F), claimant discussed the physical challenges he endured prior to entering defendant's custody on November 15, 2011, which, among other effects, would cause "numbness shooting down into my left leg," "crazy pain," an inability to sleep or "function" or "even walk," paralysis in his left leg, muscle atrophy "down the whole left leg," an inability to lift his left foot, and a loss of function of the left foot ("flail foot"). Claimant testified that he had been "living in pain for years," and had endured "insane pain . . . like I was getting stabbed everywhere."

Claimant was initially undecided about whether to elect surgery as a method of treatment for his back, leg and spine issues after his consultation with Dr. Dalfino on September 19, 2011. Claimant was thereafter transferred to defendant's custody on November 15, 2011. Claimant, while in defendant's custody, first elected surgery on March 8, 2012 to treat his conditions, and he executed an AMC medical consent form on that date (Exhibit 11) to undergo "bilateral L4-5 and L5-S1 laminectomy/discectomy." For unexplained reasons, claimant never did undergo surgery while in defendant's custody. Ultimately, in 2013, all parties agreed that the contemplated surgery, given claimant's then physical condition, would be of no benefit to claimant.

As a result, claimant filed a claim founded in medical malpractice against defendant on February 3, 2015, alleging, among other things, defendant failed "to refer Claimant for appropriate neurosurgical evaluation and surgery which is (sic) has caused Claimant to suffer from permanent neurological deficits including, a drop foot as well as continued pain and suffering . . .to timely and properly diagnose and treat claimant's severe disc disease of the spinal cord . . . to timely and properly diagnose and treat claimant's progressive neurological symptomology . . .to timely perform appropriate testing; including but not limited to, MRI or Cat Scan evaluation . . . to timely refer Claimant for neurosurgical evaluation . . . to timely review the results of the MRI . . . to timely refer Claimant for a neurosurgical evaluation in light of the findings on Claimant's August 2012, MRI spinal cord . . . to timely refer Claimant for emergency neurosurgical evaluation in light of Claimant's continuing and progressive neurological symptomology . . . [and] to timely intervene surgically as to decompress the condition of Claimant's severe disc problems to his lumbar spine."

Claimant must prove, generally through expert medical opinion testimony, two essential elements: (1) a deviation or departure from accepted practice, and (2) that such departure was a proximate cause of plaintiff's injury (Carter v Tana, 68 AD3d 1577, 1579 [3d Dept 2009]).

Defendant is required to exercise professional medical judgment within the range of accepted medical standards in its treatment of claimant. The law is clear that "neither a medical provider . . . nor the State or governmental subdivisions employing the medical provider, may be held liable for a mere error in professional judgment" (Ibguy v State of New York, 261 AD2d 510, [2d Dept 1999], lv denied 93 NY2d 816 [1999]; Sciarabba v State of New York, 182 AD2d 892, 893-894 [3d Dept 1992]).

Conclusory allegations of medical malpractice, unsupported by competent evidence establishing its essential elements, are insufficient to state a prima facie case. Through a medical expert, it must be shown that defendant deviated from the standard for good and acceptable care in the locality where the treatment occurred and that the deviation was the proximate cause of the injury (Torns v Samaritan Hosp., 305 AD2d 965, 966 [3d Dept 2003]; Yamin v Baghel, 284 AD2d 778, 779 [3d Dept 2001]; Bracci v Hopper, 274 AD2d 865, 867 [3d Dept 2000]).

The Court of Appeals additionally explains, in Oakes v Patel (20 NY3d 633, 647 [2013]), that:

"It is often true, as it is in this case, that causation issues are relevant both to liability and to damages. Thus, in a medical malpractice case, liability cannot be established unless it is shown that the defendant's malpractice was a substantial factor in causing the plaintiffs injury . . . But even where liability is established, the plaintiff may recover only those damages proximately caused by the malpractice."

A unified trial of the claim was conducted April 25 and 26, 2017. Three witnesses testified for claimant - - claimant, Dr. Dalfino, as a treating physician, and claimant's medical expert, Dr. John Kirby. One witness testified for defendant, its medical expert, Dr. Brian Gordon.

That claimant, prior to entering defendant's custody in November 2011, had pre-existing, long-term, seriously debilitating issues with, and conditions of, his back, spine, legs and feet, including a herniated spinal disc, muscle atrophy and weakness, numbness, paralysis, pain of varying intensity, footdrop and flail foot, and periodic difficulty standing and walking, is abundantly clear.

Even so, claimant never consented to surgery while in defendant's custody until March 8, 2012, when he executed Exhibit 11, a surgical consent form to permit a laminectomy/discectomy, a "decompressive" surgery for impinged nerves, be performed, even as he had discussed surgery as an option with Dr. Dalfino on September 19, 2011 (see Exhibit 1). Claimant testified that he, subsequent to his consultation with Dr. Dalfino, wanted to discuss the issue of surgery with his wife. Moreover, trial evidence made clear that surgery was but one option to proceed, doing nothing being another option, and that surgery, beside being of potentially dubious benefit or efficacy, had its own set of substantial risks, some of which had the potential to leave claimant in a worse condition than pre-surgery. Defendant's medical records for claimant (Exhibits 9 and 10, dated March 8, 2012 and March 9, 2012, respectively) discuss the referral of claimant to Dr. Dalfino for the contemplated spinal surgery and on March 8, 2012 claimant executed written consent to surgery.

Accordingly, unless and until claimant elected and authorized surgery while in defendant's custody, first manifested by execution of his surgical consent form on March 8, 2012, defendant's failure to provide claimant surgery cannot be the basis of a medical malpractice claim. Indeed, the failure of defendant to secure claimant's written consent in advance of such surgery while claimant was in defendant's custody could well have exposed defendant to allegations of medical malpractice and/or battery upon claimant. The Court will therefore assess defendant's medical treatment of claimant and its conduct, of commission or omission, subsequent to March 8, 2012.

The following documentary evidence memorialized defendant's care and treatment of claimant subsequent to claimant consenting to surgery:

1) Defendant refers claimant on April 25, 2012 for neurosurgical consultation (Exhibit 12);

2) Defendant notes on April 25, 2012 (Exhibit 13) that claimant "needs to stay where he is having surgery" (emphasis added);

3) Claimant is seen at AMC by neurosurgeon John Dalfino on May 30, 2012 (Exhibit 14), and, among other notes, Dr. Dalfino expresses a desire for an updated MRI (updated from a 2011 MRI) before performing surgery;

4) Claimant's Ambulatory Health Record (AHR) dated July 9, 2012 states, "Inquiring about MRI" (Exhibit 17);

5) Claimant's AHR dated July 24, 2012 (Exhibit 19), under "Assessment," states, "Need to find ppwork of 5/30 - neurosurg;"

6) Two MRI imaging requests for claimant are made, the first on July 26, 2012 (Exhibit 20) and the second on August 2, 2012 (Exhibit 18) which is, at that point, more than two months after Dr. Dalfino had expressed a desire for an updated MRI;

7) The findings of claimant's August 31, 2012 MRI are set forth (Exhibit 21);

8) Defendant prepares a "DOCS Surgery Request Form" for claimant on November 8, 2012 (Exhibit 22), noting a three hour surgical time;

9) Claimant's health records of November 8, 2012 (Exhibit 23) note a "completely numb left foot," and compressed nerves that have stopped working, further stating, "Scheduled for L4-S1 TLIF" (see Exhibit 23 [emphasis added] and TT, pp 148-149);

10) Exhibit 24 is claimant's "Pre-Operative Testing/Admission Orders," dated November 8, 2012;

11) Exhibit 25, dated December 18, 2012, a defendant "Health Services System Referral Overview," notes, "Please Resubmit This Referral After Planned Surgery (TLIF) Completed" (emphasis added);

12) Defendant's "NYSDOCCS Request & Report of Consultation" of January 10, 2013 (Exhibit 26) notes that "surgery may NOT helpful (sic) @ this point" (see Exhibit 26 and TT, pp 152-155);

13) Claimant undergoes another MRI on or about February 1, 2013 (see Exhibit 27 and TT, pp 45-46);

14) Defendant's medical records for claimant dated February 28, 2013 (Exhibit 28) note "No plans for surgery @ this time," and,

15) Defendant again refers claimant to Dr. Dalfino on July 11, 2013, and, at that point in time, Dr. Dalfino is no longer recommending surgery for claimant (see Exhibit 29 and TT, pp 157-160).

Claimant never did undergo laminectomy/discectomy spinal surgery while in defendant's custody. No explanation or proof of why the surgery was not performed was presented at trial.

Claimant's medical records, augmented by the testimony of all four trial witnesses, established that beginning in early 2013 surgery as a viable treatment option for claimant was diminishing. As a result, by February 28, 2013, surgery was no longer planned (see Exhibit 28), and when claimant next thereafter saw Dr. Dalfino on July 11, 2013, claimant had suffered permanent nerve damage and was no longer considered by Dr. Dalfino to be a viable surgical candidate.


Dr. Kirby, for claimant, and Dr. Gordon, for defendant, each testified earnestly and credibly. That being said, the two experts expressed diametrically opposed expert opinions. In essence, Dr. Kirby opined that a series of failures of defendant to act and to timely provide claimant spinal surgery, to the point in time of rendering such surgery non-efficacious, constituted medical malpractice that has caused claimant to permanently lose certain functionality of his left foot, and Dr. Gordon opined that at no point was claimant's need for surgery emergent, and that defendant's medical care of claimant was at all times appropriate and non-negligent. The Court found persuasive certain portions of each expert's testimony and further found that neither expert was completely persuasive as to all of his respectively expressed opinions.

All three doctors appearing at trial, including claimant's treating neurosurgeon, testified that the decompressive surgery being considered by claimant, to relieve pressure upon his affected spinal nerves, had two distinct objectives and potential goals, recovery of left leg/foot function and relief of pain.

Dr. Kirby distinguished between the surgical goals of pain relief and recovery of nerve function to address claimant's motor deficits of footdrop and muscle atrophy (TT, pp 138-140).

Dr. Dalfino, claimant's treating physician, after discussing the surgical aspects of addressing both pain relief and motor problems (see TT, pp 215-216) later testified:

"Q. So the foot drop would remain, and the muscle function would not return, but the benefit would be less pain in the back and the leg.

A. Yes" (TT, p 250, lines 13-16).

Dr. Gordon also distinguished between the two surgical objectives, testifying,

"Now, having said that, that doesn't mean that Mr. Manley is not a surgical candidate, but we have to look at what we are operating for. If we're operating, because Mr. Manley has terrible leg pain, surgery can still have an 80 percent chance of making that better, but if we're operating to make the muscle weakness better, I think we have very little, if any chance of making that better" (TT, p 318, lines 1-8).

Additionally, Dr. Gordon took care to further distinguish between a surgical objective of relief for lower back pain and one for relief of leg pain, testifying at TT, pp 315-316:

"When we talk about an operation to relieve pressure on nerves, our most reliable effect, the most - - the thing that we can most reliably make better is pain in the lower extremity. If we're going to go ahead and do a procedure, a decompressive procedure, whether that be a laminectomy or a combination of a laminectomy and discectomy, we tell patients the goal of that operation is to relieve the pain in the leg.

Those operations are notoriously unreliable for relief of back pain, and, in fact, relief of back pain is not an indication to do a decompressive procedure. It's for the leg symptoms."

Dr. Kirby's opinions that claimant consistently presented as a patient in appropriate need of spinal surgery, that defendant negligently delayed the necessary prerequisite steps to such surgery, and that defendant's ultimate failure to provide claimant such surgery amounted to medical malpractice, was persuasive. His opinion and reasoning was supported by, among other things, defendant's unexplained failures to timely, or at all, treat claimant for long periods of time between March 2012 and July 2013, in anticipation of claimant's scheduled surgery.

Dr. Gordon's opinion that defendant's inaction during the relevant periods of time never constituted substandard medical care because, among other reasons, the proposed surgery would have been of no benefit to claimant was unpersuasive. Further, Dr. Gordon's opinion was belied by the previously delineated timeline of defendant's care of claimant between March 2012 and July 2013, which clearly demonstrated that during that period of time, Dr. Dalfino, claimant's treating neurosurgeon, and defendant itself, continued to consider claimant's contemplated laminectomy/discectomy surgery to be a viable and potentially, if partially, efficacious option to medically treat claimant. Indeed, during that period of time, defendant took several preliminary steps in anticipation of claimant's surgery, including having two preparatory MRI's performed on claimant, completing a surgery request form for claimant and having claimant undergo preoperative testing.

Accordingly, the Court finds that defendant's failure to provide claimant with timely spinal surgery, after claimant consented to that surgery, was medical malpractice. However, the resultant consequences to claimant, if any, of defendant's malpractice, must also be established.

Functionality/Motor Deficits

Both documentary and testimonial proof established beyond dispute that prior to entering defendant's custody, claimant had footdrop of his left foot. Beyond the substantial testimonial proof, claimant's memorialized consult with Dr. Dalfino on September 19, 2011 (Exhibit 1) notes claimant's footdrop condition, and claimant's health screening when processed into defendant's custody (Exhibit 2) notes "Lt foot drop" as a then current health problem or complaint. Dr. Gordon convincingly opined that by November 15, 2011, when claimant entered defendant's custody, and certainly by March 8, 2012, when claimant first consented to surgery while in defendant's care and custody, claimant's pre-existing and long-standing conditions of footdrop of his left foot and of muscle atrophy and weakness were permanent conditions that were beyond surgical salvation, while also opining that surgery to relieve leg pain, but not back pain, remained a potential treatment option (see TT pp 313-320 and pp 323-326).

Where, as here, claimant asserts that his injuries resulted from some omission or delay on defendant's part, defendant's negligence can be shown to have been a substantial factor in causing those injuries if it deprived claimant of a "substantial possibility" of avoiding them (see Wild v Catholic Health Sys., 85 AD3d 1715, 1717 [4th Dept 2011], affd 21 NY3d 951 [2013]; Cannizzo v Wijeyasekaran, 259 AD2d 960, 961 [4th Dept 1999]; Marchione v State of New York, 194 AD2d 851, 854-855 [3d Dept 1993]; Brown v State of New York, 192 AD2d 936, 937 [3d Dept 1993]; PJI 2:150 [XII. Causation; A. Loss of Chance]).

Based upon the trial evidence, including Dr. Gordon's opinion, the Court finds that defendant's malpractice in failing to provide claimant a laminectomy/discectomy did not, as claimant has argued, deprive claimant of an "opportunity to have surgery for a reasonable chance that the surgery would have a benefit to Claimant," at least in terms of addressing claimant's footdrop, left leg muscle atrophy or left foot dysfunction.

Additionally, no persuasive expert medical proof was presented to establish that if the planned surgery had gone forward after March 8, 2012, there was a "substantial possibility" that the surgery would improve claimant's footdrop or arrest claimant's muscle atrophy, or that there was a "substantial possibility" claimant would recover lost functionality in his left foot. On this point, Dr. Kirby's entire testimony, unsupported by further elaboration, support or explanation, was two sentences, concluding "there would have been at least a reasonable expectation in a young, healthy man of recovery of function that had been previously lost" (TT, p 168). The persuasive trial proof, on the contrary, established that claimant's physical condition on March 8, 2012 was such that surgery to recover the lost function or musculature of claimant's left foot and leg would have been ineffective.

To summarize then, the Court finds that defendant's malpractice caused claimant no injuries of permanent impairment of function, including footdrop and muscle atrophy in his left foot and lower left leg, for two related, but distinct, reasons.

First, Dr. Gordon persuasively testified, consistent with overwhelming documentary evidence, to claimant's substantial, long-term, pre-existing deficits and convincingly opined that claimant's recovery of left leg and left foot function and condition were beyond surgical repair on March 8, 2012.

Second, claimant failed to prove by a preponderance of the credible evidence that surgery after March 8, 2012 would have resulted in the "substantial possibility" that claimant's lost function and physical degradation of his left leg and foot would improve.

Pain Relief

Nevertheless, that is not to say that surgical intervention by defendant after March 8, 2012 would have been of no benefit to claimant.

The following documentary evidence addressed the issue of claimant's left leg pain between March 8, 2012 and July 11, 2013:

1) Exhibit 9, defendant's Request and Report of Consultation for claimant, dated March 8, 2012, notes "pain of 6-7 on scale (1-10) documented . . . . [p]ain in theLt leg and now Rt leg sciatica;"

2) Exhibit 10, claimant's AHR dated April 7, 2012, notes a renewal of baclofen, a pain reliever (see Exhibit 14), for claimant;

3) Exhibit 14, dated May 30, 2012, notes reviewed and signed by Dr. Dalfino, state that claimant, "came from prison today to discuss his low back pain with radiation into his left leg with occasional radiation into his right leg that has been going on for over a year now . . .[h]e does get pain all the way down his leg, namely in his anterior shin, calf, and foot . . . [h]e says he is not getting any relief with this medication [baclofen and ibuprofen]." Later in Exhibit 14, it is noted: "He complains of muscle cramps in his back and in his lower extremities. He has difficulty simply due to the pain;"

4) Exhibit 19, claimant's AHR records for July 24, 2012 and July 27, 2012, note that claimant "Has been soaking foot . . . [s]till bothering him," and prescribe 10 mg of Baclofen for him, respectively;

5) Defendant's medical notes for claimant (Exhibit 23), dated November 8, 2012, "restart" claimant on 10 mg of Baclofen;

6) Defendant's medical notes for claimant (Exhibit 28), dated February 28, 2013, continue claimant on 10 mg of Baclofen; and,

7) Defendant's medical notes for claimant (Exhibit 29) dated July 11, 2013, note "No complaints of pain" and "Painless nerve damage will not likely respond to decompression."

Dr. Kirby persuasively opined that between March 8, 2012 and July 11, 2013, defendant's failure to provide claimant the contemplated surgery was substandard medical care, and that defendant's inaction at a number of points in time constituted several and separate departures from acceptable medical care of claimant. He further testified that one of the surgical goals for such surgery would be pain relief "with respect to Mr. Manley's lower back problems and into the lower extremity" (TT, pp 138-139). He also noted that more conservative therapy, "meaning medications and physical therapy has failed and that surgery needs to be scheduled" (TT, p 141). Dr. Dalfino testified that the contemplated surgery would have been beneficial to claimant, improving the pain in claimant's back and in his leg (TT, pp 248-249), and even if claimant's function was beyond being helped by surgery, less back and leg pain would be a surgical benefit (TT, p 250).

Dr. Gordon, defendant's medical expert, also testified to the potential surgical benefit to claimant of leg pain relief (TT, pp 315-318), going so far as to say, "[i]f we're operating because Mr. Manley has terrible leg pain, surgery can still have an 80 percent chance of making that better." Further, Dr. Gordon, upon cross-examination, agreed that if more conservative modes of care to relieve claimant's leg pain had failed, defendant's failure to provide claimant surgical intervention for the purpose of relieving that leg pain would be a deviation from acceptable medical care (TT, pp 389-390).

Trial proof, both documentary and testimonial, conclusively established that claimant's involved spinal nerves had been permanently damaged by July 11, 2013, that he was no longer experiencing left leg pain and that further, accordingly, the anticipated laminectomy/discectomy as a surgical option to relieve claimant's leg pain was neither indicated nor of any potential benefit to claimant. Additionally, there was no specific or explicit trial testimony or documentary proof, expert or otherwise, proving that claimant would endure left leg pain into the future.

Based upon the foregoing, the Court finds that the claimant endured left leg pain between March 8, 2012 and July 11, 2013 which went unaddressed by surgical intervention, and that defendant's inaction was a deviation from acceptable medical care of claimant that deprived claimant of the "substantial possibility" his proposed and scheduled surgery would have limited, lessened or eliminated the left leg pain he was experiencing.


Beyond the findings of the Court, which necessarily limit claimant's recoverable damages caused by defendant's negligence to compensation for the pain and suffering claimant endured between March 8, 2012 and July 11, 2013, the trial proof concerning future consequences to claimant, by reason of defendant's medical malpractice, was speculative and unconvincing.

Despite never having examined claimant prior to the morning of trial, and further, despite being unaware that claimant had congenital defects of both hips, Dr. Kirby testified that he "expect[ed] down the line, several decades from now, [claimant] will develop arthritis in his hips, yes" (TT, p 199-200). To this point, Dr. Gordon testified, "Q. We heard testimony yesterday that Mr. Manley may have arthritis in his left, his right or both hips decades from now. Do you have an opinion with a reasonable degree of medical certainty as to whether Mr. Manley will have arthritis? A. That would be purely speculation. He does have an underlying condition noted on a prior x-ray, a femoroacetabular impingement syndrome though," (TT, p 342), and then Dr. Gordon further described claimant's "developmental abnormality" (see TT, pp 342-344).

For the reasons set forth above, claimant is awarded no damages, past or future, related to the permanence of his footdrop, to his muscle atrophy or to the lost functionality of his left foot, and further, claimant is awarded no future damages for pain and suffering.

Defendant is 100% liable to claimant for the left leg and left foot pain and suffering that claimant endured from March 8, 2012 to July 11, 2013.

Appellate guidance is scarce regarding damages awarded for past pain and suffering specifically involving a footdrop condition. In Johnston v Joyce (192 AD2d 1124 [4th Dept. 1993]), the Court found a jury award of $200,000 for past pain and suffering to be "fair and reasonable compensation."

Damage awards for past pain and suffering related to nerve impingement or disc herniation vary dramatically, ranging from $9,000 (Perry v. Wilson, 2015 WL 4993634 [Supreme Court, Queens County, Index No. 143-12, August 5, 2015]) to $1,000,000 (Ramnath v Brooklyn Institute of Arts and Sciences, 2017 WL 5593612 [Supreme Court, Queens County, Index No. 702884-14, May 2017). The Court also considered awards or settlements in such cases of $100,000 for past pain and suffering (Mroz v 3M Company, 2015 WL 10792242 [Supreme Court, Erie County, Index No. 1433-2011, November 16, 2015]) and $150,000 and $375,000 (Zadykowicz v Williams, 2015 WL 10861089 [Supreme Court, Queens County, Index No. 702979-2013, December 14, 2015]) and Sanez v 69 Sam Ave. Realty Corp 2016 WL 7411008 [Supreme Court, Kings County, Index No. 505750-14, October 2016], respectively), neither of which differentiated between past and future pain and suffering awards.

Martinez v Manhattan & Bronx Surface Tr. Operating Auth. (23 AD3d 302 [1st Dept 2005]), concerned a plaintiff with lifestyle limitations as a result of a herniated disc at the L5-S1 level with nerve root impingement and resulting back pain, leg numbness and restriction in ranges of motion. The Martinez plaintiff was never hospitalized and did not have surgery nor was he expected to have surgery, was able to return to his job as a cab driver and was able to manage his lower back and leg pain with over-the-counter medication. In those circumstances, the court found a $150,000 award for past pain and suffering over more than seven years to be reasonable compensation.

In Tonaj v ABC Carpet Co., Inc. (43 AD3d 337, 339-340 [1st Dept 2007]), the court determined $500,000 to be appropriate past pain and suffering damages for a period of nearly 7 years where the plaintiff: Was hospitalized for two days after accident, suffered herniated disks, vertebral bulging and compression, nerve impingement of his right leg and shoulder, and ulnar neuropathy causing tingling and numbness in two fingers of his left hand, stayed at home for two months due to pain, and thereafter went to physical therapy three times per week, underwent surgery for one of his herniated disks and for his shoulder, and had to use crutches for about 1 months and a cane for 3 years.

Finally, the Court additionally considered two Court of Claims decisions that awarded damages for past pain and suffering under analogous circumstances (see Sharma v State of New York, UID 2001-019-003 [LeBous, J., March 28, 2001], awarding $150,000 for "a fair degree of past pain and suffering" involving several years of, among other things, leg numbness and dysfunction, and Quackenbush v State of New York, UID 2003-013-502 [Patti, J., April 11, 2003], awarding $300,000 for left leg pain, weakness and numbness in an individual who exhibited footdrop).

In consideration of all of the foregoing, claimant is awarded damages in the amount of $175,000 for the pain and suffering he endured between March 8, 2012 and July 11, 2013, by reason of defendant's negligence.

Claimant may further recover the amount of his filing fee, if any, pursuant to Court of Claims Act Section 11-a(2).

All motions not previously decided are hereby denied.

Let judgment be entered accordingly.

February 14, 2018

Albany, New York


Judge of the Court of Claims