Kathleen Fichner Plaintiff v The Proprietors of Strata Plan #16 Defendants
| Jurisdiction | Cayman Islands |
| Judge | Hon. Justice Charles Quin |
| Judgment Date | 23 June 2010 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | Cause No: 751/2003 |
| Date | 23 June 2010 |
Hon. Justice Charles Quin Q.C.
The Plaintiff's claim arises out of an accident which occurred on the 27th November 2000 whilst the Plaintiff was on holiday in the Cayman Islands and staying at the Seagull Condominium Complex owned and operated by the Defendants.
On that date the Plaintiff returned from the beach and was rinsing off in the fresh water outdoor shower installed for guests to use prior to entering their rooms on the complex as the Defendants' management required.
Whilst the Plaintiff was showering, the shower drain directly beneath the showerhead collapsed, causing the Plaintiff to fall into the shower drain and thereby twisting her left knee.
On the 16th November 2003 the Plaintiff issued a Writ of Summons and a Statement of Claim, claiming damages against the Defendants by reason of the negligence and or breach of duty or care by the Defendants, which caused the aforesaid accident.
On the 29th January 2008 the Plaintiff obtained judgment by consent against the Defendants, thereby leaving the only question before the Court to be one of quantum for the personal injuries, loss and damage sustained by the Plaintiff by reason of the Defendants' negligence and breach of statutory duty.
On the 4th November 2008 the Plaintiff represented by her new attorneys, Murray & Westerborg, filed an amended Statement of Claim in which she set out her particulars of injury being minor abrasions, ecchymosis and contusions to her right side. The Plaintiff sustained a twisting injury to her left knee. The injuries to her left knee caused her to suffer occasional episodes of buckling and generalized complaints, which were finally diagnosed as a torn meniscus and contusion in the medial tibial plateau. The Plaintiff's amended Statement of Claim pleaded that the Plaintiff was deemed to require, and received, surgical arthroscopy of the left knee, a partial meniscectomy and chondroplasty.
Aside from the particulars of injury pleaded in the Plaintiff's Statement of Claim the Plaintiff avers that she will need further medical attention, including the replacement of her left knee and that, although there is evidence of a pre-existing medical condition, the injuries sustained on the 27th November 2000 may have exacerbated the pre-existing medical condition.
The Plaintiff in her Statement of Claim dated 16th November 2003, and in her amended Statement of Claim dated the 4th November 2008, claimed special damages in the sum of US$12,548.00 to include airfares, costs of accommodation, loss of salary and medical expenses. In her amended Statement of Claim the Plaintiff claimed future medical expenses and future loss of earnings.
On the 12th November 2008 the Defendants filed their amended defence in which they admitted liability but averred that the Plaintiff was deemed fit to return to work after the surgical arthroscopy of the left knee, partial meniscectomy and chondroplasty.
The Plaintiff's injuries were limited to the bruising of her left leg and a torn medial meniscus in the left knee. The Defendants aver that the injury to the left knee was successfully treated by Dr. Mark Seckler (‘Dr. Seckler’) and that the Plaintiff had made a full and complete recovery.
The Defendants also aver that the Plaintiff's need for further medical treatment should be discounted by reason of the fact that she would have required a knee replacement in any event. Further, the Plaintiff's medical complaints after Dr. Seckler's treatment related to her patellofemoral condition and had nothing to do with the accident.
The Court has to determine the quantum of general and special damages arising as a direct result of the Defendants' negligence and breach of statutory duty.
In order to determine the quantum of damages it is necessary for the Court to review and analyse the medical treatment and various reports submitted by several doctors.
The Court has to decide:
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i. What were the injuries sustained by the Plaintiff as a result of the accident?
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ii. Is the Plaintiff in need of further and continuing medical treatment as a result of the accident?
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iii. Should the Court reduce the Plaintiff's award by reason of the fact that she had a pre-existing medical condition?
The Plaintiff arrived at the Defendants' property on the 20th November 2000. The accident occurred on the 27th November 2000.
On the day of the accident the Defendants asked the Plaintiff whether she wanted to attend the hospital for examination. The Plaintiff decided that she was unsure about the standard of care provided at the George Town hospital and she therefore declined to go there and decided to wait to be to be treated by her own doctors with whom she was familiar. Consequently, for the remaining two days of her holiday she rested inside the Defendants' complex with ice on her legs.
Upon the Plaintiff's arrival home in New Jersey, USA, she contacted her physician, Dr. Miguel Cherciu (‘Dr. Cherciu’) to have her leg and knee which were still swollen and painful, checked. After this examination Dr. Cherciu sent the Plaintiff off to have an MRI done on her left knee.
On the 9th December 2000 a Radiologist, Dr. Janet Spector (‘Dr. Spector’), conducted an MRI examination on the Plaintiff. Dr. Spector's report said that the posterior cruciate ligament (‘PCL’) was intact. Her report stated that the anterior cruciate ligament (‘ACL’) was intact in its proximal and mid portion, however, the distal portion was not well demonstrated and a partial tear could not be excluded. Her report also stated that no definite meniscal tears were demonstrated, although there was some high signal noted in the posterior horn of the medial meniscus, which did not definitely contact the articular surface.
Dr. Spector said that this likely represented intrameniscal myxoid changes. She noted that the patella, disal quadriceps tendon and patellar tendon were intact. Dr. Spector added that the patellar cartilage was normal.
Upon receipt of Dr. Spector's MRI report, the Plaintiff's physician, Dr. Cherciu, then referred the Plaintiff to Dr. Manuel Banzon (‘Dr. Banzon’), an orthopaedic surgeon for further examination.
On the 20th December 2000 the Plaintiff attended Dr. Banzon who gave the following report.
Dr. Banzon said an examination of the knee showed minimal effusion. His report stated that there was no hypermobility of the patella, and that there was tenderness over the medial joint line. Dr. Banzon's report stated that Lachman, Drawer, and Pivot Shift tests were essentially negative. McMurray's sign was, however, positive, permitting both external and internal rotation. The MRI showed an osteochondral fragment involving the medial tibial plateau. Dr. Banzon's diagnosis was a partial ACL tear and a left osteochondral defect.
On the 16th January 2001 the Plaintiff was seen by Dr. Seckler who specialized in sports medicine, arthroscopic surgery and knee and shoulder reconstruction. Further x-rays of her leg and knee were done. Dr. Seckler's report stated that the MRI by Dr. Spector had shown a grade II tear in the posterior horn of the Plaintiff's medial meniscus, and a small osteochondritic defect in the medial tibial plateau, consistent with the meniscus injury.
Dr. Seckler found slight effusion with mild patellofemoral symptoms. Dr. Seckler reported that the Plaintiff had positive lateral and medial joint line tenderness, with the medial greater than the lateral. Dr. Seckler also reported that the Plaintiff's provocative tests were positive and that she was ligamentously completely intact. Dr. Seckler agreed with Dr. Spector and confirmed that the Plaintiff had a small osteochondritic defect in the medial tibial plateau and a grade II, if not grade III, meniscal tear. Dr. Seckler said that because the osteochondritic defects were small, they should be left alone and would heal on their own. Dr. Seckler finally confirmed that the patellofemoral aspect should be addressed with quad strengthening in the post operative period. Dr. Seckler recommended an arthroscopy of the left knee to address the torn meniscus.
On the 28th February 2001 under anaesthetic the standard arthroscopic portals were made. The medial hemijoint was entered. Dr. Seckler reported that the medial femoral condyle and the medial tibial plateau were normal. He noted that there was a tear in the posterior horn of the medial meniscus. Using an upbiting punch, a partial meniscectomy was performed. Using a full radius aggressive shaver, the rim of the meniscus was balanced and saucerized to a stabilized edge. In addition the arthroscope was placed in the intracondylar notch. The ACL and PCL were visualized to be normal. In addition, with the leg in a modified figure four, the lateral hemijoint was entered. It was noted that the lateral femoral condyle, lateral tibial plateau, lateral meniscus and popliteus tendon were normal. Dr. Seckler's diagnosis was that there was a left knee medial meniscus tear and patellofemoral syndrome after which the medical operations of a surgical arthroscopy of the left knee, a partial meniscectomy and a chondroplasty were done.
On the 15th March 2001 Dr. Seckler wrote to the Plaintiff's physician, Dr. Cherciu, and stated that 15 days after the arthroscopy of the Plaintiff's left knee she was doing very well. The portals were healed nicely, neurovascularly intact, with no signs of infection. Dr. Seckler also stated that the Plaintiff had a good range of motion with good quad strengthening. He again confirmed that she had a torn medial meniscus and patellofemoral syndrome. He also confirmed that she underwent a partial...
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