Butler v. State

THOMAS H. SCUCCIMARRA

Synopsis

After 30% reduction, damages in the amount of $28,000.00 - $17,500.00 past pain and suffering and $10,500.00 future damages - awarded for reduced range of motion in finger and functionality associated with the accident where claimant placed hand in exposed fan blades. Claimant did not establish causal link between the accident and injury to digital nerve on the palmar side of finger. No award for lost income or income potential or past or future medical expenses. Case information

UID: 2011-030-023 Claimant(s): KEVIN BUTLER Claimant short name: BUTLER Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 110073 Motion number(s): Cross-motion number(s): Judge: THOMAS H. SCUCCIMARRA ROBERT W. NISHMAN, ESQ. Claimant's attorney: BY: SCHNEIDER, KAUFMAN & SHERMAN, P.C. BY: HOWARD B. SHERMAN, ESQ. HON. ERIC T. SCHNEIDERMAN ATTORNEY GENERAL OF THE STATE OF NEW YORK Defendant's attorney: BY: JOHN M. HUNTER ASSISTANT ATTORNEY GENERAL Third-party defendant's attorney: Signature date: October 3, 2011 City: White Plains Comments: Official citation: Appellate results: See also (multicaptioned case) Decision

Kevin Butler, while incarcerated at Arthur Kill Correctional Facility [Arthur Kill], injured his right hand on October 30, 2004 on exposed fan blades as he tried to reposition the fan. By decision filed May 6, 2009, Judge S. Michael Nadel found the defendant to be 70% responsible for the accident which resulted in injury to claimant. This decision addresses only the issue of damages, after a trial commenced on December 3, 2010 and concluded on February 8, 2011, and submission of post-trial memoranda.

Mr. Butler and his expert, Dr. Nelson G. Botwinick, testified on claimant's direct case. Defendant offered the expert testimony of Dr. Roy Kulick. While the experts agreed on certain aspects of Mr. Butler's injury, they disagreed as to the extent and severity of same.

Claimant, who was born in 1956, was 48 years old on the date of the accident and is right-handed. The accident occurred when - without unplugging it - he tried to reposition a floor fan by moving it by the fan cage. Because of an opening in the fan cage the fan blades were exposed, and cut his right hand, specifically injuring his right ring finger. He immediately felt a sharp pain in his hand, and saw blood. He was treated in the facility emergency room, taken to Staten Island University Hospital - where he received 15 stitches and ibuprofen - and was returned to the facility hospital for some additional ibuprofen, and thereafter to his housing unit, the same day.

The lacerations received were at the tip of his finger as he recalled it, including part of the nail bed, and across the top of his finger. He did not testify as to any laceration on the underside - or palmar side - of his finger. Indeed, emergency room records from Staten Island University Hospital mention only lacerations to the top of the finger as noted at intake in the nursing record, as well as in the physician record. [See Exhibit 3].

The nurse noted then that there was full range of motion. [Exhibit 3]. Referencing the hand diagram on the intake form, the emergency room physician noted only an injury to the top (dorsal) side of the finger, with a hockey stick shaped cut at the PIP joint [proximal interphalangeal joint], a horizontal cut just below the DIP joint [distal interphalangeal joint], and a vertical cut at the top through the nail bed. [Ibid.]. The physician noted that the tendon functions were normal and that Mr. Butler's sensation and motor functions were intact. [Ibid.]. X-rays showed degenerative changes to the wrist related to an earlier wrist injury suffered in 1989, which Mr. Butler mentioned in his testimony.

The ring finger consists of three phalanges: the proximal phalanx closest to the hand and the middle and distal phalanges. The joint between the proximal and middle phalanges is called the proximal interphalangeal or "PIP" joint, and the joint between the middle and distal phalanges is called the distal interphalangeal or "DIP" joint. [See Stedman's Medical Dictionary 1176 (25th ed 1990)].

In the months following the accident, Mr. Butler said he continued to complain of pain and tingling and swelling in the tip of his ring finger, was prescribed ibuprofen every other day, and lost feeling in the finger as a mass on his finger grew to approximately one-half inch high between the tip of his finger and the knuckle (referring to the PIP joint).

On April 18, 2005 he saw Dr. Armen Kasabian, a hand surgeon at Staten Island University Hospital. Dr. Kasabian wrote in his consultation report that Mr. Butler had suffered a

"laceration of the dorsum of his right IV finger in a fan on October 30, 2004. He had the laceration sutured. After the wound healed, he noted a painful mass in the area of the laceration . . . His prior surgical history is positive for a right scaphoid fracture open reduction(2) . . . Physical examination reveals a mass of the dorsum of the right IV finger. X-ray shows no foreign bodies and no fractures. There is no calcium in the mass. My impression is that this is either scarring or a foreign body granuloma. He desires excision. He understands that there is a risk of recurrence and further scarring and he accepts this." [Exhibit 3].

A photograph included in the consultation report shows Mr. Butler's ring finger, and a mass between the DIP and PIP joints on the top of his hand. [Ibid.].

On June 10, 2005 Mr. Butler returned to Staten Island University hospital for ambulatory surgery to remove the mass. He was released with directions to keep his hand elevated and the bandage dry, and to take Tylenol as needed. Dr. Kasabian's report of a follow-up visit on June 20, 2005 notes that

"[i]n the operating room an exostosis was noted and removed. Examination today reveals good healing of the wound. The sutures were removed and steri strips applied. He should continue with a splint for two more weeks in extension. After that he may start therapy . . . " [Exhibit 3].

After the surgery, Mr. Butler said he attended therapy twice weekly for four (4) weeks at the hospital, although the hospital records submitted do not show any entries concerning claimant's attendance at therapy for his finger. [See Exhibit 3]. He also said that he received therapy at Arthur Kill approximately twice weekly for four (4) weeks. The physical therapy consultant's report from October 3, 2005 notes claimant's complaints of decreased motion of the finger and that it remained in a flexed position. [Exhibit 1A]. After this therapy at Arthur Kill in 2005, Mr. Butler said that he did not receive any treatment for his finger. Although at the time of trial Mr. Butler said he had been attending physical therapy at Lincoln Hospital within three months of the trial, no medical records were offered nor was the therapy described.

Prior to his incarceration, Mr. Butler said he had worked for three years as a security guard and worked in construction for an unspecified amount of time. In prison, he had been working as a library clerk at Arthur Kill before the accident, and since, although he claimed that he had difficulty typing. Since his release from prison after his 20 year incarceration in September 2007, he worked briefly at a construction site first as a laborer, and later as a hoist operator since all that work involved was "press[ing] the button" [T-41], versus closing his right hand tightly as was required to hold a jackhammer or a mallet. At the time of trial, he was working as a security guard at a construction materials site. Other than his own testimony, no evidence of any of his work history was presented. He indicated on cross-examination that he is not a member of a union, and had always performed "pick up" construction jobs. [T-51].

Mr. Butler said that his finger remains swollen. Medical records do not note any swelling other than immediately after the accident, and shortly after the June 2005 surgery. [See Exhibits 1, 2, 3]. He said he remains unable to make a tight fist or bend his finger all the way to his hand, or straighten it entirely, and continues to experience "not a severe pain" but a "numbness" and a "pins and needles" feeling in the tip of his finger. [T-45-46]. He said he tended to use his index finger for small motor functions, such as buttoning a shirt or lacing his shoes, although after the surgery a friend in prison had assisted him with such activities including helping him wrap the bandage with plastic so that he could take a shower. He said he continues to be unable to straighten out his finger completely.

Dr. Nelson G. Botwinick, a Board Certified hand surgeon, examined Mr. Butler on January 6, 2010 and testified as his expert witness. In addition to his surgical affiliations with the New York University Hospital for Joint Diseases, Bellevue Hospital, New York Downtown Hospital and Beth Israel Hospital, he is a Clinical Assistant Professor at New York University School of Medicine teaching residents in orthopedic and hand surgery.

Dr. Roy Kulick, also a Board Certified hand surgeon, examined Mr. Butler on October 14, 2009, and testified as an expert witness for the defense. Dr. Kulick is the Chief of Hand Surgery at Montefiore Medical Center, and is affiliated with Westchester Square Hospital. He is also an Associate Professor of Orthopedic Surgery at the Albert Einstein College of Medicine, teaching residents hand surgery as well as teaching anatomy to medical students.

Each expert had deficits in their review of claimant's medical records, and examined claimant only once. Dr. Botwinick only reviewed the records of Dr. Kasabian, and thus did not review the Arthur Kill records [Exhibit 1], the emergency room records at Staten Island University Hospital [Exhibit 3] or the physical therapy records from Arthur Kill covering the period from August 2, 2005 through October 3, 2005 [Exhibit 1A]. Dr. Kulick reviewed claimant's records more comprehensively, utilizing the medical records from Arthur Kill, Staten Island University Hospital as well as those of Dr. Kasabian. He had not reviewed records of physical therapy treatment at Arthur Kill [see Exhibit 1A] either. However, other than reflecting Mr. Butler's expected complaints of swelling and pain after the June 2005 surgery, and confirming Mr. Butler's complaints of an inability to complete a closed fist, to move the PIP and DIP joints voluntarily, and numbness at the tip of the finger, Dr. Kulick stated that these records did not alter his view of the functionality of claimant's finger.

Both claimant's and defendant's experts agreed that Mr. Butler sustained a laceration to the extensor tendon of the right ring finger and as a result does not have full, active extension of the finger. Dr. Botwinick found that the extent of the lack of active extension at the PIP joint was 50%, while Dr. Kulick found that there was a 30% loss of motion at the PIP joint. The joint could be moved passively from zero to 90 degrees. Both experts opined that the condition of the finger was permanent, and would not improve with any further course of treatment. Mr. Butler's metacarpophalangeal joint [MP joint] (at the base of the finger by the knuckle) was completely normal.

In addition to the 50% loss of motion, Dr. Botwinick opined that there was a loss of sensation, that Mr. Butler was unable to close a fist completely because he could not bring his finger all the way down to the palm, and that he suffered from triggering or locking of the finger. He said that there was also limitation of motion with respect to the right wrist, however such was separate from his findings with respect to Mr. Butler's finger. He also said that he saw "an oblique . . . angular type wound over the palmar surface of the finger" (the underside of the hand) that ran from the DIP joint down to the PIP joint. [T-84]. Using monofilaments, he checked for loss of sensation. He noted that there was

"some loss of sensation in the tip of his finger . . . [W]hen I palpitated, when I pressed on his finger and tapped on his finger, there's an area of hypersensitivity . . . the Tinel, right where one of the cuts is on the palmar surface."[T-85].

This finding of this hypersensitive area on the palmar side indicates, he said, that one of the two digital nerves in Mr. Butler's finger was cut. Describing the location of the two digital nerves, Dr. Botwinick said that they fork off from the "palmar crease" to the side of each finger, and give sensation and feeling, and the ability to feel hot and cold for example, from the tips of the fingers and the palmar side of the fingers. [T-89]. Each finger has a radial and ulnar nerve. The ulnar is on the pinkie side of the finger, and the radial is on the thumb side. On cross-examination, Dr. Botwinick opined that it was the radial digital nerve that was injured.

Other than affirmative responses to hypotheticals posed by claimant's counsel, wherein counsel purportedly described the physical therapy received before and after the surgery, and then asked the doctor if claimant would be disabled from using the computer, typing, and checking books in and out, for a period after the injury, and then asked whether the original injury could cause a present difficulty in typing, Dr. Botwinick gave no testimony concerning any inability to perform any employment related activities due to Mr. Butler's injuries.

Counsel for claimant asked Dr. Botwinick if difficulties with wrapping his own hand in plastic for a shower, and difficulty using buttons and tying laces for a period of many months post injury, were the types of problems that would be caused by the injury, the doctor said "yes." [T-93]. Other than the foregoing, there was no testimony to the effect that Mr. Butler would be unable to perform any of his usual and customary daily functions currently.

Dr. Botwinick's current diagnosis for Mr. Butler was laceration to the extensor tendon that has not been repaired, laceration to the digital nerve that has not been repaired, and a posttraumatic exostoses, that has been removed surgically. His opinion was that the injury that occurred in October 2004 directly caused the complaints with regard to the ring finger, specifically the numbness, the loss of extension at the PIP joint and difficulty closing the finger at the DIP joint. [T-130].

On cross-examination, Dr. Botwinick admitted that he did not take any measurement of claimant's grip strength, despite claimant's complaints about his grip, and said that claimant made no complaints about being unable to perform any particular type of work nor was work discussed. He also agreed that the emergency room records from Staten Island University Hospital note only lacerations on the dorsal side of the finger on the hand diagrams, and none on the palmar side of the hand diagrams and all mention of lacerations throughout the medical records reference only injuries to the dorsal aspect.

Dr. Botwinick said, however, when shown the Staten Island University Hospital record of the initial emergency procedure on October 30, 2004 on redirect examination, that there could be a notation concerning a laceration on the palmar aspect based upon an illegible word in the section on location of the wound that he thought mentioned - in addition to a laceration being 2 centimeters long - the word volar, which would refer to the palm. [Exhibit 3]. Although the fact that more than one laceration is noted, there is no other measurement written down, thus claimant suggests that the notes were not very precise.

Dr. Botwinick conceded only that the hospital did not diagnose an extensor tendon cut on the date of the injury based upon the records and noted that in his experience, tendon injuries are very commonly missed. Later, he agreed that in order to perform the surgery on June 10, 2005, Dr. Kasabian would have split the extensor tendon to get to the bone mass, and said that the surgeon repaired the split he made in the tendon. He agreed that a trigger finger is common in people of all ages for different reasons, including causes other than traumatic injury, and conceded that there was nothing in the medical records showing that Mr. Butler ever complained about his finger locking.

Dr. Kulick's opinion varied from that of Dr. Botwinick mostly with respect to the functionality of the finger which, overall, he addressed more specifically than did Dr. Botwinick, and with regard to the finding of a causally related digital nerve injury as shown by the hypersensitivity at a scarring on the palmar side of the finger, and numbness at the tip. He noted that lack of active extension at the PIP joint does not render the finger non-functional, because Mr. Butler had almost complete flexion of the finger, which is the hand position that enables its utility. He opined that it did not have any effect on small motor skills, and saw no reason why keyboard work would be affected, as it takes minimal pressure to depress keys. Additionally, he thought it would have no impact at all on work as a security guard.

While Dr. Kulick did agree that a laceration to the palmar side of the finger would be necessary to sustain a digital nerve injury, he testified that none of the contemporaneous medical records in evidence show such a laceration. [See Exhibits 1, 1B, 2, 3]. He testified that during his October 14, 2009 examination of Mr. Butler he saw scarring on the palmar aspect of the middle phalanx - the same scarring seen by Dr. Botwinick - in addition to the scarring on the dorsum of the right ring finger over the middle phalanx, as well as a laceration near the tip of the finger. Dr. Kulick did not test for a measurement of sensation, and acknowledged that Dr. Botwinick did use a generally recognized tool for the measurement of sensation. He also said, however, that Tinel's and mere sensitivity are different things, and while a tingling and numbness sensation at the tip of the finger is noted in the physical therapy records [see Exhibit 1A], there is no indication of hypersensitivity on the palmar side.

No other witnesses testified.

Based on the foregoing, the Court finds that as a result of the accident of October 30, 2004, Kevin Butler has suffered an injury to his right ring finger causally related to his reduced voluntary range of motion in the PIP joint of between 30% and 50% - both substantial percentages - and reduced motion in the DIP joint. Mr. Butler testified that these limitations cause him some awkwardness, and that his finger locks on occasion, but did not say that he currently suffers from pain. During the time immediately following the accident, and then following the surgery of June 10, 2005, certainly, pain and swelling is expected and Mr. Butler testified credibly to experiencing same. He said that he cannot make a fist, and both experts found that the ring finger did not reach all the way to the palm in an attempt to make a fist, because of the reduced motion at the DIP joint, since the tip of the finger would not meet the palm.

In terms of any current discomfort, Mr. Butler said he experiences tingling and numbness in the tip of his finger or a pins and needles feeling, but did not call it painful. Dr. Botwinick quantified a lack of sensation by utilizing monofilaments to test the area, while Dr. Kulick did not, apparently, use any tests, and thus noted the complaint of lack of sensation but does not appear to have tested it extensively. Both agreed, however, that a cut digital nerve would be a necessary cause of the hypersensitive loss of sensation on the back of the finger found by Dr. Botwinick on his examination of claimant.

It is the claimant who has the burden of establishing a causal link between the accident of October 30, 2004, and any injury suffered. This he did not do with regard to a claim that a digital nerve was cut on the palmar side. While both examining physicians found that there was a loss of sensation at the tip of Mr. Butler's finger, there is nothing in the contemporaneous medical record as submitted in evidence to show that a laceration to the palmar aspect of the finger - implicating the digital nerve found there - occurred during this accident.

Claimant argues that this might have been faulty record keeping. Defendant argues that the lack of any notes attesting to any injury to the palmar side of the finger, throughout the treatment of claimant, suggests that such a laceration did not occur. In addition to the emergency room records that note only lacerations to the dorsum, the surgeon who operated on claimant in June 2005 - a little more removed from the stress of emergency driven notes - refers only to lacerations on the dorsal aspect, none on the palmar, and the physical therapy notes do not mention such a wound. Mr. Butler himself testified only to lacerations on the top of his finger. No treating physician testified, nor did any of the makers of the records from Arthur Kill or Staten Island University Hospital testify as to what they observed on October 30, 2004. Neither expert had the benefit of having treated claimant, and Dr. Botwinick had not reviewed the contemporaneous records of the injury prior to testifying or read claimant's prior testimony on the mechanics of the accident.

Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court first finds that claimant has not at all met his burden of proof with regard to any lost income or income potential, and any award with regard to same would be pure speculation, as such has not been established with reasonable certainty. No award is made for any past or future medical expenses.

The Court does find, however, that claimant has suffered pain in the past, and will continue to have discomfort and a minor loss of functionality in the future, and finds, accordingly $40,000.00 to be reasonable compensation for claimant's past and future pain and suffering, allocated as $25,000.00 for past pain and suffering, and $15,000 for future discomfort and reduced range of motion and functionality associated with the accident of October 30, 2004. Reduced by the 30% determination of liability attributed to the claimant, this results in an award of damages to the claimant $17,500.00 past pain and suffering and $10,500.00 future damages, for total damages of $28,000.00 with interest from April 7, 2009, the date of determination of liability, plus the amount of his filing fee, if any, in bringing the claim, pursuant to Court of Claims Act § 11-a (2).

All motions not previously decided are hereby denied.

Let Judgment be entered accordingly.

October 3, 2011

White Plains, New York

THOMAS H. SCUCCIMARRA

Judge of the Court of Claims