Melissa Fonseca was a prisoner at Bayview Correctional Facility on November 6, 2006, working the garbage detail at 5:30a.m. While working in her assigned job, “a large dumpster slammed her left hand against the wall.” Her left pinky finger was stuck between the dumpster and the wall from the knuckle up. Attempts to free her hand were unsuccessful. She was not freed until two other prisoners helped her several minutes later.
After the accident, Fonseca complained of pain and a burning feeling in her arm. She was ultimately sent to a local hospital to receive “seven sutures to her finger.” Prison officials again sent her to the hospital on December 20, 2006, “to further examine [her] tendon and nerve, as [she] could not flex her pinky finger, had a reduced range of motion, and continued to complain of a burning sensation in her left forearm.”
Other than an examination, Fonseca received no further treatment while incarcerated. A job she obtained after parole in April 2007 disqualified her for Medicaid, but when she obtained insurance from her employer the following year she began treatment, which was discontinued in August 2008 because she could not afford a co-payment and the insurance company denied coverage of her pre-existing condition.
At the damages trial, Fonseca’s expert, Dr. Gerard A. Bertuch, said she suffered from decreased cervical lordosis and “diminished spacing in the region of her cervical discs.”
He opined the November 6, 2006 injury to her finger was the cause, “explaining that when [she] pulled and tugged on her trapped hand, a traction type of injury occurred, damaging her cervical spine, tugging the nerve root and causing permanent injury.”
As a result, Fonseca “suffered functional impairment.” Dr. Bertuch testified “that the left wrist impairment was 23%, the left hand impairment was 22%, the left arm (combined) impairment was 75%, and the whole body impairment, upper body was 59%.”
The court gave Dr. Bertuch’s “testimony and report great weight.” It found the State’s “experts testimony” to be of little probative or persuasive value in regard to the determination of damages.
The court’s May 11, 2009 damage award of $60,000 for past pain and suffering, and $135,000 for future pain and suffering, included interest from the date of the liability finding. Fonseca was represented by New York attorney Gary E. Divis. See: Fonseca v. New York, New York Court of Claims, Claim No. 113278.
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Related legal case
Fonseca v. New York
|Cite||New York Court of Claims, Claim No. 113278|
|Level||Court of Claims|