With the uptick in surgeries that are taking place in no-fault practice, the question that every claims representative or defense attorney evaluating these types of cases needs to ask is: “was this injury causally related to the accident?”
As a Plaintiff’s attorney, the question you need to ask, in response to this, is how do you at least raise a triable issue of fact when faced with what should be the inevitable summary judgment motion from the defense attorney.
This is a case from the First Department, where in my opinion, they lay out how a plaintiff needs to address this type of defense.
Malloy v Matute, 2010 NY Slip Op 09383 (1st Dept. 2010)
While defendant’s experts found that plaintiff’s injuries were degenerative, plaintiff’s doctors were unanimous in concluding that the subject accident was the sole competent producing cause of plaintiff’s knee injuries, based upon (1) their individual examinations; (2) MRI results; and (3) the necessity of surgery to repair a tear in the medial meniscus, a partial tear of the anterior cruciate ligament, chondromalacia, synovitis, and fibrosis (see Pommells v Perez, 4 NY3d 566 ; Colon v Bernabe, 65 AD3d 969, 970 ). It also bears noting that plaintiff was 37 years old when he was hit on his right side by defendant’s taxi, he had no prior knee problems or injuries to his right leg, and his right knee surgery took place within four months of the accident.”