Was the femur broken in the accident?

Peterson v Ward, 2017 NY Slip Op 09024 (4th Dept. 2017)

“We conclude, however, that there are material issues of fact whether plaintiff’s alleged injury, i.e., a fractured femur, was caused by the motor vehicle accident and thus that the court properly denied that part of plaintiffs’ motion on the issue of serious injury (see generally Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980], rearg denied 52 NY2d 784 [1980]). Specifically, there is an issue of fact, among others, concerning whether plaintiff would be able to ambulate freely without assistance for a day and a half following the accident if she had sustained a fracture to her femur as a result of the collision.”

Interesting observation by the court and defense counsel.


The cited to report raised an issue of fact

James v Thomas, 2017 NY Slip Op 09025 (4th Dept. 2017)

“Although defendants’ expert ultimately opined in his report that plaintiff’s injuries were not causally related to the accident, that report relies on plaintiff’s medical records, which conclude that plaintiff sustained injuries that were causally related to the collision. The report also noted the quantitative assessments of plaintiff’s physicians with respect to her limited range of motion in her cervical and lumbar spine after the accident. Thus, defendants failed to eliminate all issues of fact with respect to whether plaintiff sustained serious injuries that were causally related to the accident under those two categories”

Oh somebody had a bad day.

Matter of Travelers Indem. Co. of Am. v McGloin, 2017 NY Slip Op 08643 (1st Dept. 2017)

I put this on my facebook page because it was both funny and sad.  Call this is a lesson on what not to do when dealing with an SUM claim.  Poor guy now has a legal malpractice claim hanging over his head.

Respondent was injured in an automobile accident while driving a vehicle owned and insured by her employers. Through counsel she notified petitioner, the insurer of the vehicle, of her intent to seek underinsured motorist benefits and she commenced an action against the driver of the other vehicle involved in the crash. She subsequently settled the action against the other driver for the limits of his insurance policy without seeking petitioner’s consent. Petitioner disclaimed coverage on the ground of the settlement of the action without its consent, in violation of the Supplementary Uninsured/Underinsured Motorists (SUM) endorsement of the policy, impaired its right to subrogation.

Respondent’s assertion that she could not have been aware of provisions of the policy that were never provided to her is unavailing. The SUM endorsement is mandated by regulation (see 11 NYCRR 60-2.3; see also New York Cent. Mut. Fire Ins. Co. v Danaher , 290 AD2d 783 [3d Dept 2002]), and Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.1 requires an attorney to possess the requisite legal knowledge and skill reasonably necessary to represent a client. Moreover, at the framed-issue hearing before the Referee on the issue of whether respondent should have had knowledge of such provisions, petitioner’s technical specialist who handled the claim testified, inter alia, that on claims he has handled in the past, attorneys would call and seek consent before settling cases at the limits of an adverse driver’s insurance policy.

However, respondent’s counsel who handled her underinsurance claim and lawsuit against the adverse driver did not testify, despite being present at the hearing. Accordingly, the Referee did not err in drawing an adverse inference against respondent on the factual issue of [*2]whether her attorney/agent had actual knowledge of the provisions of the SUM endorsement (see generally People v Gonzalez , 68 NY2d 424, 427 [1986]), or in determining that her attorney/agent should have and actually did have such knowledge.

The injuries are “not-related” peer review in a 5102(d) case

Eason v Blacker, 2017 NY Slip Op 07674 (3d Dept. 2017)

This is an important case because it really gives the defendant who obtains the correct records ammunition to attack causal relationship claims.

(1) The notion of the peer review as fully and wholeheartedly now been accepted in 5102(d) practice.  Amazing.

“Defendants met their initial burden of establishing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) by submitting a transcript of plaintiff’s deposition, his medical records and the affirmation of Robert Hendler, an orthopedic surgeon who rendered his opinion based on a review of plaintiff’s medical records without conducting a physical examination of plaintiff (see D’Auria v Kent, 80 AD3d 956, 957-958 [2011]; see also Franchini v Palmieri, 1 NY3d 536, 537 [2003]).”

(2) The ACL injury could not be related to the accident ** Powerful medical rationals**

“Hendler noted that, although an August 14, 2013 MRI depicted a possible partial ACL tear, subsequent arthroscopic surgery established that there was no ligament injury and that the knee was completely stable (see Scott v Aponte, 49 AD3d 1131, 1133 [2008]). Moreover, Hendler opined that, had plaintiff sustained an ACL injury on the date of the accident, he would have immediately experienced significant pain, and the fact that he did not seek treatment for several months after the accident is inconsistent with his claim of having sustained a knee injury

(3) Cannot even win on the spine – pre-existing verses current  condition

Although Episalla also concluded that plaintiff had a preexisting history of cervical and thoracic spine pain and degenerative disc disease, he failed to set forth any “objective medical evidence distinguishing [plaintiff’s] preexisting condition from the injuries claimed to have been caused by this accident”

(4) Diminished range of motion has no objective basis

“Furthermore, although records submitted by defendants document diminished ranges of motion in plaintiff’s cervical and thoracic spine and right knee, plaintiff submitted no objective medical evidence linking such limitations to the accident

An expert who saw plaintiff once may testify


“At the damages trial, the plaintiff testified as to his symptoms and complaints. His expert, Jerry Lubliner, who was board-certified in orthopedic surgery and sports medicine, did not treat the plaintiff, but examined the plaintiff on March 6, 2014, more than two years after the accident. He reviewed the plaintiff’s medical records, magnetic resonance imaging (hereinafter MRI) reports, and actual MRI films. He concluded that the accident was the cause of bulging discs in the cervical and lumbar regions of the plaintiff’s spine, and a meniscal tear in his right knee. He testified that, by the time of his examination, 2½ years after the accident, “you can realistically state that this is going to be a problem for the rest of [the plaintiff’s] life.” He opined that the plaintiff had [*2]suffered a permanent consequential loss of use of the lumbar region of his spine, as well as swelling, weakness, and loss of range of motion of his right knee. The Supreme Court did not allow Lubliner to testify about the plaintiff’s future treatment or prognosis because Lubliner only examined the plaintiff once and did not treat him. The court instructed the jury to consider the plaintiff’s damages from the date of the accident to the date of the verdict, and refused to submit the issue of future pain and suffering to the jury. The jury awarded the plaintiff damages in the principal sum of $80,000 for past pain and suffering.

A treating physician may testify as to the plaintiff’s complaints and how the accident occurred, if the plaintiff’s statements to the physician are related to the diagnosis and treatment of the plaintiff (see People v Gross, 26 NY3d 689, 695-696). That hearsay exception does not apply to a nontreating physician, “to prevent unfair bolstering of a party’s credibility” (Daliendo v Johnson, 147 AD2d 312, 320). However, a nontreating physician is not precluded from testifying as to a relevant medical opinion (see id. at 320). A physician who sees the plaintiff once can testify as to the plaintiff’s future prognosis, even if the witness does not provide treatment (see Singh v Catamount Dev. Corp, 21 AD3d 824, 825). Further, a nontreating physician can testify as to future pain and suffering (see id. at 825; DaSilva v State, 2007 NY Misc LEXIS 8932 [Ct Cl, No. 104938]). Thus, Lubliner was improperly precluded from testifying as to future pain and suffering. The weight to be given his testimony was a consideration for the jury. Further, the issue of damages for future pain and suffering should have been submitted to the jury. Accordingly, the plaintiff is entitled to a new trial on the issue of damages for future pain and suffering.”

This is an interesting case because I recall a verdict that was reversed due to a non-treating doctor testifying based upon conversations (s)he had with the patient during the one time visit.  I am assuming the preclusion motion was based on that case.  The Court clarified that this conversation would be hearsay; however, a review of the medical records will allow the expert to offer an opinion within a reasonable degree of certainty as to the past and future pain and suffering.

The $200,000 bulge

Eastman v Nash, 2017 NY Slip Op 06523 (2d Dept. 2017)

This is any defense attorney’s nigthmare.  Losing on a bulge under the significant limitation and permanent consequential prong of the no-fault law and getting his for $200,000.00

(1)  “In an action to recover damages for personal injuries, (1) the defendant Clifford C. Nash appeals, and the defendants New York Ambulette Transport, Inc., and David Fiorentino separately appeal, from a judgment of the Supreme Court, Kings County (Vaughn, J.), entered December 5, 2014, which, upon a jury verdict finding that the plaintiff sustained a serious injury under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d) and that the plaintiff sustained damages in the principal sums of $150,000 for past pain and suffering and $50,000 for future pain and suffering, is in favor of the plaintiff and against them in the principal sum of $200,000, and (2) the defendant Clifford C. Nash appeals, as limited by his brief, from so much of an order of the same court dated June 17, 2015, as denied his motion pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of damages and for judgment as a matter of law, or, in the alternative, to set aside the verdict as contrary to the weight of the evidence and excessive and for a new trial.”

(2) “ORDERED that the judgment is affirmed; and it is further,”

(3) The plaintiff allegedly was injured when a vehicle in which she was a passenger, driven by the defendant David Fiorentino and owned by the defendant New York Ambulette Transport, Inc. (hereinafter together the Ambulette defendants), collided with a vehicle driven by the defendant Clifford C. Nash. At a trial on the issue of damages, the plaintiff presented the testimony of a neurologist, who testified that he measured the range of motion of the plaintiff’s lumbar spine, and found deficits of up to 50%. The plaintiff’s neurologist also reviewed an MRI film of the [*2]plaintiff’s lumbar spine taken after the accident, and concluded that it showed no major preexisting conditions. He concluded that the accident caused a disc herniation at L4/5.”

(4)  I have to imagine the demand was near $25,000?  GEICO probably put $10,000 on the case.  When that was rejected, GEICO wanted a “control contract.”  Plaintiff probably said not on your life and  a $200,000 came from the jury’s lips to the Gecko’s ears.

Very interesting discussion on Perl

Santos v Traylor-Pagan, 2017 NY Slip Op 05502 (1st Dept. 2017)

“Plaintiff failed to raise a triable issue of fact as to whether his carpal tunnel syndrome was causally related to the accident (Perl v Meher, 18 NY3d 208, 217-218 [2011]). This Court, in Rosa v Mejia (95 AD3d 402, 404 [1st Dept 2012]), opined that the decision in Perl did not abrogate the need for at least a qualitative assessment of injuries soon after an accident. This Court then affirmed the dismissal of a plaintiff’s case where the plaintiff had presented no admissible proof that she saw any medical provider for any evaluation until 5½ months after her accident (id.). Plaintiff here was treated on the date of the accident and released from the emergency room at Westchester Medical Center, where he was diagnosed with a right elbow laceration, which was treated with three sutures. He never had any further medical treatment until he first saw an orthopedist 13½ months after the accident, and then allegedly had a few months of physical therapy, although there are no details of any such therapy in the record. He did not see a neurologist about his carpal tunnel syndrome until almost four years after the accident

I always read Perl for the proposition that issues regarding qualitative evaluation and “causation” following the accident were questions of fact for the jury.  I think the Second Department reads Perl the same way as they have not kicked a case on contemporaneous treatment issues since Perl.  Remember, the crux of this case is that causation is not established without contemporaneous treatment.  In the no-fault world, the same argument could hold since the burden on summary judgment for lack of causation is the same in the 5102(d) and first-party benefit sense.

Mild, minor, slight

Cabrera v Apple Provisions, Inc., 2017 NY Slip Op 05044 (1st Dept. 2017)

As to the cervical spine claim, plaintiff’s treating physician found normal range of motion in February 2013, but some limitations a month later. The physician’s failure to explain the inconsistencies between her findings of deficits before and after the findings of full range of motion, renders her opinion speculative (see Santos v Perez, 107 AD3d 572, 574 [1st Dept 2013]; Colon v Torres, 106 AD3d 458 [1st Dept 2013]). As to the lumbar spine, plaintiff’s treatment records showed that he had normal or near-normal lumbar spine range of motion within two months after the accident, which is insufficient to support a serious injury claim (see Gaddy v Eyler, 79 NY2d 955, 957 [1992]; Eisenberg v Guzman, 101 AD3d 505, 506 [1st Dept 2012]).

Regarding the left knee, plaintiff presented medical evidence of a lateral meniscal tear, which his physician stated was causally related to the subject accident. However, his physician failed to make any measurements of his knee, relying on unaffirmed records of his surgeon, which was impermissible (see Malupa v Oppong, 106 AD3d 538, 539 [1st Dept 2013]). In any event, the last measurement found in the surgeon’s records showed only a five-degree deficit in [*2]range of motion, which, again, was too minor in extent, degree and duration to support a serious left knee injury claim involving significant limitation of use (see Gaddy v Eyler, 79 NY2d at 957; Vasquez v Almanzar, 107 AD3d 538, 539-540 [1st Dept 2013]).”

Interesting issues.  1) Full ROM at or near time of accident spells doom for later diminishment; 2) 5 degree deficiency in ROM not enough to prove serious injury,

Police report and CPLR 4518(a)

Shehab v Powers, 2017 NY Slip Op 03790 (2d Dept. 2017)

“Information in a police accident report is “admissible as a business record so long as the report is made based upon the officer’s personal observations and while carrying out police duties” (Memenza v Cole, 131 AD3d 1020, 1021; see Matter of Chu Man Woo v Qiong Yun Xi, 106 [*2]AD3d 818, 819; Yeargans v Yeargans, 24 AD2d 280, 282). Conversely, information in a police accident report is inadmissible where the information came from witnesses not engaged in the police business in the course of which the memorandum was made, and the information does not qualify under any other hearsay exception (see Matter of Chu Man Woo v Qiong Yun Xi, 106 AD3d at 819; Holliday v Hudson Armored Car & Courier Serv., 301 AD2d 392, 396).

Here, the Supreme Court did not err in redacting certain information from the police report with respect to the location of the accident. There was insufficient evidence at trial to demonstrate that the disputed information was derived from the personal observations of the responding police officer, who did not witness the subject accident (see Wynn v Motor Veh. Acc. Indem. Corp., 137 AD3d 779, 780; Memenza v Cole, 131 AD3d at 1022; Noakees v Rosa, 54 AD3d 317, 318; Gagliano v Vaccaro, 97 AD2d 430). Moreover, the court did not err in precluding the plaintiff from cross-examining his own witness, the responding police officer, with respect to the accident location”

The police report many times is a vital piece of information in PI cases.  The rules regarding their admissibility becomes a hot bed of issues.

SUM jury verdict sustained

Pyong Sun Yun v GEICO Ins. Co., 2016 NY Slip Op 08214 (2d Dept. 2016)

(1) “At the trial, the plaintiff presented the testimony of his treating orthopedic surgeon, who testified that he performed arthroscopic surgery on the plaintiff’s left shoulder less than three months after the accident. The plaintiff’s orthopedic surgeon further testified that he examined the plaintiff’s shoulder again in January 2013. He found that for elevation and abduction, the plaintiff’s shoulder had a range of motion limitation that was “minimal but perceptible,” and for internal rotation, the shoulder’s range of motion was “almost to normal, but not quite.” The defendant presented the testimony of an orthopedic surgeon who examined the plaintiff’s left shoulder in April of 2012, and found that its range of motion was “within normal limits.”

(2) “Here, the jury’s finding that the plaintiff did not sustain a serious injury to his left shoulder under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) was based on a fair interpretation of the evidence submitted at trial.”

He said she said.  The gecko won.