Break in the chain of causationDecember 4, 2014

Kester v Sendoya, 2014 NY Slip Op 08379 (1st Dept. 2014)

“While plaintiff’s certified medical records may be referenced to show her complaints and the doctor’s referral for treatment (see Salman v Rosario, 87 AD3d 482, 483 n [1st Dept 2011]), those records demonstrate that in the months following the February 2010 accident plaintiff sought treatment for other conditions but made no complaint of shoulder pain until June 2010. She was then referred to an orthopedist, but did not seek medical treatment for her shoulder injury until August 2010, some six months after the accident, and had an MRI performed the next month. Absent any evidence of contemporaneous, postaccident treatment or evaluation of plaintiff’s shoulder, she failed to raise an issue of fact as to whether her shoulder condition was causally related to the accident (see Henchy v VAS Express Corp., 115 AD3d 478, 479 [1st Dept 2014]; Rosa v Mejia, 95 AD3d 402 [1st Dept 2012]). Furthermore, the affirmed report of her orthopedic surgeon, who first examined plaintiff a year after the accident, was insufficient to raise an issue of fact”

The failure to treat for a particular condition (or to show evidence of same) for 6 months following the motor vehicle accident will break the chain of causation and render an opinion on causation as speculative.  This is the extension and really what the Appellate Term meant when it reversed Amato.

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