Causation on a degeneration

Goodwin v Walter, 2018 NY Slip Op 06643 (4th Dept. 2018)

“We further conclude, however, that defendant submitted evidence establishing that plaintiff’s injuries were caused by a preexisting condition, i.e., ankylosing spondylitis, a genetic condition. Thus, “plaintiff had the burden to come forward with evidence addressing defendant’s claimed lack of causation” (Pommells v Perez, 4 NY3d 566, 580 [2005]). Plaintiff raised a question of fact by submitting the affidavit of her treating chiropractor and the affirmation of her primary care physician. Plaintiff’s primary care physician asserted that plaintiff’s preexisting condition was “asymptomatic” prior to the accident, and both the primary care physician and the treating chiropractor asserted that, after the accident, plaintiff had a quantified limited range of motion in, inter alia, her neck (see Terwilliger v Knickerbocker, 81 AD3d 1350, 1351 [4th Dept 2011]).”

 

Second Department once again now recognizes a gap in treatment as a basis to non-suit Plaintiffs

Chiu Yuan Hu v Frenzel, 2018 NY Slip Op 05445 (1st Dept. 2018)

“In opposition to the defendant’s prima facie showing, the plaintiff raised triable issues of fact as to whether she sustained serious injuries to the cervical and thoracolumbar regions of her spine (see Perl v Meher, 18 NY3d 208, 215-218). Further, contrary to the determination of the Supreme Court, we find that the plaintiff adequately explained the gap in her treatment by submitting an affirmed medical report of her treating physician (see Pommells v Perez, 4 NY3d 566, 577; Jean-Baptiste v Tobias, 88 AD3d 962; Park v He Jung Lee, 84 AD3d 904, 905).”

It got harder as a Plaintiff to  make a living on soft tissue cases today in the Second Department.  I was waiting for the Second Department to follow the First Department.  It has somewhat happened.  Gap in treatment is back.

Second Department recognizes degeneration as a basis to move for summary judgment

Cavitolo v Broser, 2018 NY Slip Op 05442 (2d Dept. 2018)

“In opposition, the plaintiff failed to raise a triable issue of fact. The affirmation of the plaintiff’s expert failed to address the findings of the defendant’s examining radiologist that the magnetic resonance imaging of the plaintiff’s left shoulder, taken shortly after the accident, revealed only pre-existing degenerative conditions (see Franklin v Gareyua, 136 AD3d 464, 465-466, affd 29 NY3d 925, 926; Chery v Jones,62 AD3d 742, 742-743; Ciordia v Luchian, 54 AD3d 708, 708-709).”

Franklin is a First Department case.  Chery and Ciordia are Second Department  Pre-Pehrl cases from 2008 and 2009.  I sense the “affd” is what caused the Second Department to rejoin the other three departments in requiring an affidavit to meaningfully refer or rebut the  degeneration defense.

1.5 million dollar scope and post-concussive injury

Castillo v MTA Bus Co., 2018 NY Slip Op 05134 (2d Dept. 2018)

“The plaintiff further testified: “[The bus driver] just slammed me to the back . . . of the bus . . . . She drove away at a fast pace and that’s when I landed all the way to the back of the bus in a seated down position with my left leg under me.” According to the plaintiff, her fall was of sufficient force that she lost consciousness.”

“During the damages trial, the plaintiff submitted evidence that she sustained disc bulges in almost the entirety of her cervical spine—C2-3 through C7-T1—resulting in diminished range of motion. She also submitted evidence that she sustained lumbar disc bulges at L3-4 and L5-S1, resulting in left S1 radiculopathy, meaning that a loss of function in the S1 nerve caused weakness and loss of sensation in the plaintiff’s left leg. Further, the plaintiff presented testimony that she sustained torn lateral and medial menisci in her left knee, requiring arthroscopic surgery, and that she may need a knee replacement in the future. Moreover, according to the trial testimony, the plaintiff developed postconcussive syndrome following the accident, and she will experience the effects of postconcussive syndrome for the rest of her life.”

“The jury found that the plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d), and awarded her the sum of $500,000 for past pain and suffering and the sum of $1,000,000 for future pain and suffering over 10 years. On November 2, 2015, the Supreme Court entered a judgment in favor of the plaintiff and against the defendant in the principal sum of $1,500,000. The defendant appeals.”

“The award of damages for past and future pain and suffering did not deviate materially from what would be reasonable compensation”

Just let this one sink in for a little bit.

Significant limitaiton prong of Ins Law 5102(d)

Schaubroeck v Moriarty, 2018 NY Slip Op 04453 (4th Dept. 2018)

It is an obsession of mine.  When someone gets into an accident where the threshold applies, has made a complete recovery and can still recover under a non 90-180 basis.  I observed intermittently on here (this is a no fault and not a PI blog) the decoupling years ago of the permanent consequential and significant limitation prong of Ins Law 5102(d).  It is an issue that we do not see too much but it is interesting when we see it.

(1)  The report of defendant’s expert physician “does not establish that plaintiff’s condition is the result of a preexisting degenerative [condition] inasmuch as it fails to account for evidence that plaintiff had no complaints of pain prior to the accident’ ” (id. at 1842; see Thomas v Huh, 115 AD3d 1225, 1226 [4th Dept 2014]). Inasmuch as defendant failed to meet his initial burden on the motion with respect to causation, there is no need to consider the sufficiency of plaintiff’s opposing papers on that issue (see Sobieraj v Summers, 137 AD3d 1738, 1739 [4th Dept 2016]). (First observation on causation)

(2) “Contrary to defendant’s further contention, we conclude that the court properly denied that part of the motion with respect to the significant limitation of use category. Even assuming, arguendo, that defendant made a “prima facie showing that plaintiff’s alleged injuries did not satisfy [the] serious injury threshold” with respect to that category (Pommells v Perez, 4 NY3d 566, 574 [2005]), we conclude that plaintiff’s submissions in opposition to the motion raised an issue of fact. Those submissions included the affirmation of plaintiff’s treating physician, who, after reviewing plaintiff’s medical records and imaging studies, opined within a reasonable degree of medical certainty that plaintiff sustained a folded flap tear at the junction of the mid-body and posterior horn of the meniscus of his right knee, and lateral and medial meniscus tears of both knees that required surgery and were causally related to the accident. He further opined that, consistent with what he observed on the MRI and his observations during plaintiff’s surgery, the meniscus tears limited plaintiff’s ability to walk, sit for long periods, turn, twist, drive for long periods, climb stairs, and walk on uneven surfaces (see Lopez v Senatore, 65 NY2d 1017, 1020 [1985]; LoGrasso v City of Tonawanda, 87 AD3d 1390, 1391 [4th Dept 2011]).”

Out of scope – out of mind

Galluccio v Grossman, 2018 NY Slip Op 03664 (2d Dept. 2018)

“In opposition, the affirmation of the plaintiffs’ expert failed to raise a triable issue of fact. “While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field, the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable” (Postlethwaite v United Health Servs. Hosps., 5 AD3d 892, 895 [internal quotation marks and citations omitted]). “Thus, where a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” (Mustello v Berg, 44 AD3d 1018, 1019; see Behar v Coren, 21 AD3d 1045, 1046-1047). Here, the plaintiffs’ expert, who was board-certified in internal medicine and infectious disease, did not indicate in his affirmation that he had training in emergency medicine, or what, if anything, he did to familiarize himself with the standard of care for this specialty. The affirmation, therefore, lacked probative value, and failed to raise a triable issue of fact (see Lavi v NYU Hosps. Ctr., 133 AD3d 830, 831). Accordingly, the Supreme Court should have granted the motion of Friedman and Island Medical for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.”

Gap in treatment and inconsistent findings

Alverio v Martinez, 2018 NY Slip Op 02417 (1st Dept. 2018)

In addition, defendants submitted medical reports of plaintiff’s treating physician, who found normal range of motion in plaintiff’s lumbar spine and left shoulder the day after the accident (see Jno-Baptiste v Buckley, 82 AD3d 578 [1st Dept 2011]). They also submitted plaintiff’s deposition testimony, in which he acknowledged that he had a preexisting degenerative lower back condition for which he received Social Security disability benefits, and that he stopped all treatment related to the claimed injuries when he was “cut off” five months after the accident (see Pommells v Perez, 4 NY3d 566, 576 [2005]).

In opposition, plaintiff failed to raise an issue of fact. Plaintiff’s physician averred that she found significant limitations in range of motion of plaintiff’s cervical spine, lumbar spine and left shoulder both shortly after the accident in 2010, and, most recently, in December 2013. However, she failed to explain the conflicting findings of full range of motion in her own reports prepared the day after the accident and in the next two months (see Colon v Torres, 106 AD3d 458 [1st Dept 2013]; Thomas v City of New York, 99 AD3d 580, 581 [1st Dept 2012], lv denied 22 NY3d 857 [2013]). Moreover, plaintiff failed to adequately explain his cessation of treatment for these claimed injuries five months after the accident, notwithstanding that he had medical coverage through Medicare, and continued to see his primary care doctor regularly for other conditions (see Green, 140 AD3d at 547; Merrick v Lopez-Garcia, 100 AD3d 456, 456-457 [1st Dept 2012]). In light of the extended gap in treatment, plaintiff’s physician’s opinion that the more severe range-of-motion limitations she found in December 2013 were causally related to [*2]the accident is speculative (see Pommells, 4 NY3d at 574; Merrick v Lopez-Garcia, 100 AD3d at 457).

Feigned issue of fact coupled with cessation of treatment

Alston v Elliott, 2018 NY Slip Op 02019  (1st Dept. 2018)

The feigned issue of fact

(1) “In opposition, plaintiffs submitted affidavits that contradicted their sworn deposition testimony concerning the reasons for their cessation of medical treatment. Plaintiff Alston testified that she terminated treatment after about three months because therapy wasn’t “helping” her. Plaintiff Brown testified that he terminated treatment because it made him feel worse afterwards. However, in opposition to defendant’s motion, in near identical affidavits, both plaintiffs asserted that they ceased treatment because no-fault benefits were discontinued, and they could no longer afford to pay “out of pocket.” A party’s affidavit that contradicts his prior sworn testimony “creates only a feigned issue of fact, and is insufficient to defeat a properly supported motion for summary judgment”

Went back to work and did not go for treatment for 7 years.

(2)”Moreover, the evidence that both plaintiffs returned to work shortly after the accident and ceased treatment within three months, demonstrates that their injuries were minor in nature, involving neither “significant” nor “permanent consequential” limitations in use of their spines ”

‘…Moreover, defendant argued that both plaintiffs’ claims of serious injury were belied by their having ceased all treatment about seven years earlier, within three months of the accident, which they were required to explain”

“trauma increase the rate of disc dessication”

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]).

Cessation of treatment/Pre-existing injuries/Commentary

CASE #1

Latus v Ishtarq, 2018 NY Slip Op 01417 (1st Dept. 2018)

(1) “Plaintiff’s medical records demonstrated prima facie that plaintiff ceased treatment five months after the accident, after his doctor found that he had full range of motion and that his diagnosed conditions had resolved, and that plaintiff had preexisting conditions that may have contributed to his conditions, including corrected spina bifida and osteoarthritis. Defendants thus shifted the burden to plaintiff to explain his cessation of treatment and to address why his preexisting conditions were not the cause of his current reported symptoms (see Pommells v Perez, 4 NY3d 566, 574-575 [2005]; Alvarez v NYLL Mgt. Ltd., 120 AD3d 1043 [1st Dept 2014], affd 24 NY3d 1191 [2015]).”

(2) “In opposition, plaintiff submitted his own affidavit and the affirmation of his orthopedist. The scrivener’s error concerning the date of the accident was minor and did not warrant rejecting plaintiff’s submissions entirely. Nevertheless, when reviewed on the merits, plaintiff’s evidence was insufficient to raise an issue of fact.

(a) Plaintiff’s physician provided only a conclusory opinion that plaintiff’s injuries were caused by the accident, without addressing the preexisting conditions documented in his own MRI, or explaining why plaintiff’s current reported symptoms were not related to the preexisting conditions (see Nakamura v Montalvo, 137 AD3d 695, 696 [1st Dept 2016]; Farmer v Ventkate Inc., 117 AD3d 562, 562 [1st Dept 2014]).

(b) Further, plaintiff’s claim that he ceased treatment after no-fault benefits were discontinued is unpersuasive since he acknowledged that he had private insurance through his union (see Green v Domino’s Pizza, LLC, 140 AD3d 546, 547 [1st Dept 2016]; Merrick v Lopez-Garcia, 100 AD3d 456, 457 [1st Dept 2012]).

CASE #2

Vila v Foxglove Taxi Corp., 2018 NY Slip Op 01415 (1st Dept. 2018)

(a) “At his deposition, plaintiff testified that he terminated treatment after about six months because he didn’t “like doctors,” and, at the time of the accident, he had private insurance through his employment, and was covered by Medicaid thereafter.”

(b) In his affidavit, however, plaintiff averred that he ceased treatment after three months because no-fault benefits were discontinued, and he could no longer afford to pay on his own. He further stated that an unnamed physician informed him that any further treatments would only be “palliative in nature.”

Rule of law: “A party’s affidavit that contradicts his prior sworn testimony “creates only a feigned issue of fact, and is insufficient to defeat a properly supported motion for summary judgment” (Harty v Lenci, 294 AD2d 296, 298 [1st Dept 2002]; see Cruz v Martinez, 106 AD3d 482, 483 [1st Dept 2013]).”

(c) Moreover, plaintiff’s excuse of inability to pay due to lack of no-fault insurance “makes no sense” in this case, since he testified that he had other insurance (see Cruz v Martinez, at 483; Merrick v Lopez-Garcia, 100 AD3d 456, 457 [1st Dept 2012]). The unexplained four-year period of time in which plaintiff failed to seek treatment for any accident-related injuries, also renders the opinion of his medical expert, who provided a report in opposition to the motion, speculative as to the permanency, significance, and causation of the claimed injuries ”

Here is some context to this post.  Putting aside the fact that I try plaintiff and defense personal injury cases, I got a phone call today on a no-fault matter.  Injured person is cut off and has his benefits paid for by major medical.  Major medical asserts a lien (the validity is questionable although carrier says it is a self-funded Erisa plan.  Colloquially, I call BS.  Legally, I say you cannot prove this).  Side note: I went to a CLE years ago where I learned that no policy is truly fully self-funded.  The devil is in the details.  Anyway, PI firm settles a minimal policy case with Liability carrier.  Now, PI firm brings an OSC to join the major medial carrier and the no-fault carrier in an attempt to void lien.

Questions to be asked:

(1) Why did PI plaintiff continue treatment despite lien issue and no-fault cut off?  Answer: see cases above.

(2) Why did PI plaintiff not treat with no-fault or continue the treatment on a lien?  Answer: Many medical providers refuse to treat on lien or to allow more than 3-months post IME treatment despite ability to arbitrate.  Cash flow issues for providers pre-ordain these results.

(3) What should PI Plaintiff do?  Probably should either void lien through OSC or pay out lien and then file suit against no-fault carrier.

(3a) How about AOBs that were issued? Prevailing case law would appear to discharge AOB through conduct, i.e., paying for treatment.

(3b) But Jason, the bills were paid by a third party, how can we file suit against no-fault carrier?  Answer: Todaro v. Geico.  Google it.

But what fueled questions 1-3(b)?  The above line of cases.  In my opinion, the cessation of treatment issue involves legislation from the bench and should be statutorily killed.  It is a factor to determine the severity of injury and perhaps it is a factor for a jury to determine whether or not the injury was “serious”.  But why is it a sin qua non of whether a cause of action lies?  It is beyond arbitrary.  All you have to do is tell the  interlocutor at deposition that you stopped treating because the doctor said no further treatment would help  and the injury is permanent.

Should you tell them at deposition that you stopped treating because no-fault benefits were cut off,  then we go into issues of whether (a) you could afford to pay for the care, (b) whether major medical would cover or (c) whether medicaid/medicare would cover.  If you continue treatment with the above-sources, you save you cause of action but now have grief at the end.  If you stop treatment despite above, you are non-suited.

I shall go on record.  The state of law is just absurd and internally inconsistent.  Why should the ability to pay for treatment render “speculative as to the permanency, significance, and causation of the claimed injuries ”  No, I am not writing this at the behest of the NYSTLA.   I think this legal fiction breeds more dysfunction in an already  broken tort system.