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My body my choice December 8, 2021

Gilliam v Uni holdings, 2021 NY Slip Op 06798 (1st Dept. 2021)

Oh, I have wanted to type this on a legal blog that has nothing to do with the Mississippi debacle that the US Supreme Court and the GOP have welcomed with open arms but will leave them all with forlorn results.

(1) “The state of one’s body is fundamentally different from inanimate evidence, and medical treatment, including surgery, is entirely distinct from the destruction of documents or tangible evidence which spoliation sanctions attempt to ameliorate. To find that a person has an “obligation,” to preserve his or her body in an injured state so that a defendant may conduct an ME, is antithetical to our belief in personal liberty and control over our own bodies.”

(2) “It should also be noted that defendant has mischaracterized the nature and role of “independent” MEs in personal injury litigation, presumably to cast plaintiff’s surgery as an egregious and sanctionable act. Such examinations “far from being independent in any ordinary sense of the word, are paid for and frequently controlled in their scope and conduct by legal adversaries of the examinee. They are emphatically not occasions for treatment, but are most often utilized to contest the examinee’s claimed injury and to dispute the need for any treatment at all” (Bazakos v Lewis, 12 NY3d 631, 638 [2009] [Lipman, Ch. J., dissenting]). Viewed in this context, an ME is simply one piece of evidence in a personal injury action.”

(3) “Plaintiffs must be free to determine when to undergo medical treatments based on personal factors such as doctor’s advice and their specific pain and discomfort level. It would be absurd for courts to require a plaintiff to forego surgery (or other medical treatment) for an injury so as not to potentially compromise a lawsuit against the party(s) alleged to have caused the injury.

(4) Thus, plaintiff’s pre-ME spine surgery did not result in the spoliation of evidence. Defendant’s categorization of the plaintiff’s surgery as “non-emergency” does not alter this conclusion.

(5) In addition, defendant was not “prejudiced” by plaintiff’s medical treatment, as there is other evidence upon which defendant may rely, including plaintiff’s pre-surgical and post-surgical medical records.

The whole early IME thought process has not been case aside.

$29 million November 24, 2021

Yvonne Y. v City of New York, 2021 NY Slip Op 06468 (1sr Dept. 2021)

I was at first taken aback when I saw the number. Then I saw the injuries and I almost gagged, because this cannot be a life that many would find enjoyment living. Interestingly, I have handled RSD cases n/k/a CRPS cases, and the thought of living with that disorder makes me feel ill. This is about 30x worse.

We can all debate the low impact cases and argue whether the Delta V can or cannot cause the injuries. I cannot offer an opinion because, strangely, I end up on both sides of that equation depending on whether I am doing defense or plaintiff work. But we can all agree this is just atrocious.

“Plaintiff, then 16 years old, suffered catastrophic physical injuries, with psychological and emotional sequelae, when he was set on fire during a chemistry demonstration at the New York City public high school he attended as a student. The physical injuries included, among other things, third-degree burns to 31% of plaintiff’s body — mainly on his face, ears, neck, arms, and hands — as well as degloving injuries to his hands and a corneal abrasion to his right eye. The record shows that plaintiff never lost consciousness. Within the first 24 hours of his hospital admission immediately following the accident, 38 pounds of fluid were pumped into plaintiff’s body in an attempt to provide adequate fluid replacement to his damaged tissue, and plaintiff was placed in an induced coma for three days.

After the induced coma was terminated, plaintiff’s treatment consisted of a series of major operations to remove as much of his burned skin as possible and replace it with skin grafts. Cadaver grafts were initially used as a temporary measure before permanent skin grafts could be harvested from other parts of plaintiff’s body. Plaintiff contracted a MRSA infection while in the hospital, causing loss of half of the cadaver skin grafts. The skin grafts also required thousands of staples in order to affix the new skin. Between the skin that was burned in the accident and harvested for grafting, approximately half of plaintiff’s skin was removed.

The third-degree burns that plaintiff suffered also destroyed the nerves and sweat glands underneath his skin, causing him both to lose sensation in those areas and to be unable to regulate his own body temperature. Following his two-month hospital stay, plaintiff was required to wear compression [*2]garments, which caused him to overheat. Plaintiff’s treating physician testified not only that these injuries were permanent and incurable, but that plaintiff will also suffer from “double or triple” the problems he ordinarily would have as he ages due to skin atrophy, i.e., the loss of elasticity and thickness of the skin. Options for future treatment included reconstructive surgery for plaintiff’s ears — which, plaintiff said, were “completely burned off” — and plastic surgery to even out his skin tone and scarring.

As for his psychological and emotional suffering, plaintiff testified, in detail, about the sensations he experienced being on fire. Despite stopping, dropping, and rolling in a futile attempt to extinguish the fire, plaintiff said that he “felt trapped in [his] own body” and “completely helpless.” He described it as “the worst pain [he had] ever felt in [his] entire life,” and that “[n]ot a day passes by where [he does not] think about it.” Plaintiff also attested to the unceasing, excruciating physical pain that he endured during his hospital stay, which was minimally alleviated, if at all, with pain medication.

Plaintiff also described the sense of losing himself that developed not only from having 31% of his skin burned away, but also from the affixation of cadaver grafts and the harvesting of another 19% of his own skin. He also recounted the horror and hopelessness he felt the first time that he saw his reflection in the hospital, and his father attested to, and recounted instances of, plaintiff’s despair during his hospital admission. Plaintiff further described how, upon being released from the hospital, his confidence and self-esteem plummeted. Plaintiff, who is nearsighted, developed a coping mechanism of removing his glasses while in public so that he could not see others’ reactions to his appearance.”

When personal knowledge is not so personal November 22, 2021

Psychology After Acc., P.C. v New York Cent. Mut. Fire Ins. Co., 2021 NY Slip Op 51072(U)(App. Term 2d Dept. 2021)

“The proof submitted by defendant was sufficient to demonstrate that plaintiff’s assignors had failed to appear for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; cf. Satya Drug Corp. v Global Liberty Ins. Co. of NY, 65 Misc 3d [*2]127[A], 2019 NY Slip Op 51505[U] [App Term, 1st Dept 2019]), which showing plaintiff failed to rebut”

When someone avers that they were present somewhere and an event did not occur, that is different than laying a business record foundation for the proof that the even did not occur.

Agency for subrogation purposes November 10, 2021

American Tr. Ins. Co. v Smiley, 2021 NY Slip Op 05807 (1st Dept. 2021)

(2) “Before Supreme Court, defendants did not contest the affiant’s assertion that the September 7, 2017 notice was mailed the same day, three days before Ortiz signed the general release in question (see CPLR 2103[b][2] [service completed when mailed])”

(1) “The notice dated September 7, 2017, advising defendants’ insurer of the payment of PIP benefits covering the medical bills of nonparty Damaris Ortiz and demanding reimbursement, establishes that plaintiff insurer’s “right to subrogation ‘accrue[d] upon payment of the loss'” on September 5, 2017″

(3) Contrary to defendants’ contention, the notices were not required to be sent directly to them, instead of their insurer, which was their “agent acting within the scope of [its] agency” (Center v Hampton Affiliates, 66 NY2d 782, 784 [1985]), and from which plaintiff had already recovered payments it made for another injured individual’s medical bills due to defendants’ liability arising from the same automobile accident (see Insurance Law § 5105[a]). The insurer’s “knowledge” of plaintiff’s subrogation right “is imputed to [its] principal[s],” who are “bound by such knowledge although the information is never actually communicated to [them]” (Center, 66 NY2d at 784 [citations omitted]). Notably, prior to plaintiff’s first payment of benefits covering Ortiz, the bill of particulars served by Ortiz upon defendants in her personal injury action advised of the expected PIP coverage by plaintiff. As such, defendants “kn[e]w[] or should have known that a right to subrogation exist[ed]” at the time Ortiz signed the general release”

Under the law of agency, “Defendant” knew of APIP subrogration prior to the release execution. The end result is the defendant carrier will either stick its insured with ATIC’s bill or pay over the limits.

It is not a doc in the box November 10, 2021

Quality Health Supply Corp. v Progressive Ins. Co., 2021 NY Slip Op 51028(U)(App. Term 2d Dept. 2021)

“Upon a review of the record, we find that the testimony of defendant’s senior litigation representative, as well as the certified FOIL documents entered into evidence at trial, were insufficient to establish that plaintiff did not have a Department of Consumer Affairs license for the time period of January 2010 to June 2016 (cf. Bath Med. Supply, Inc. v Allstate Indem. Co., 27 Misc 3d 92 [App Term, 2d Dept, 9th & 10th Jud Dists 2010]). The FOIL evidence solely established that a company named “Quality Heath Supply Corp. Inc.” was not licensed during this time period and no evidence was provided that plaintiff “Quality Health Supply Corp.” is the same entity as “Quality Health Supply Corp. Inc.” As there was no other evidence to establish that plaintiff was not properly licensed at the time it sold the durable medical products to its assignor, plaintiff should have been awarded a judgment in its favor.”

Let us assume of for the sake of argument that Progressive got this right. The Mallela case is clear that technical violations will not satisfy an insurance carrier’s burden to prove a non licensure defense. The Appellate Division was clear that PHL violations were not sufficient to withhold medical benefits. Mallela is limited to the “doc in a box” defense. Beyond that, a claim for fraud or the monthly Rico’s that GEICO files is the way around this.