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


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]).


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.



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.