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“trauma increase the rate of disc dessication”March 14, 2018

Giap v Hathi Son Pham, 2018 NY Slip Op 01568 (1st Dept. 2017)

Since plaintiff’s own medical records showed evidence of preexisting degenerative conditions, she was required to address those findings and explain why her current reported symptoms were not related to the preexisting conditions (see Lee v Lippman, 136 AD3d 411 [1st Dept 2016]; Alvarez v NYLL Mgt. Ltd., 120 AD3d 1043, 1044 [1st Dept 2014], affd 24 NY3d 1191 [2015]). To the extent plaintiff’s physicians asserted that plaintiff Pham had degenerative joint disease which was common for her age, that she was previously asymptomatic, that the accident aggravated her underlying degenerative joint disease, and that trauma “increases the rate of disc desiccation,” rendering her now symptomatic, this was sufficient to raise an issue of fact as to causation (see McIntosh v Sisters Servants of Mary, 105 AD3d 672, 673 [1st Dept 2013] [while the plaintiff’s medical records showed degenerative osteoarthritic changes, she was asymptomatic for four years before the accident, and expert’s explanation that the injuries sustained were “superimposed upon her already delicate medical condition” sufficed to raise issues of fact as to the significant limitations of her spine]).

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