Serious injury, causation and the ability to recover

Hojun Hwang v Doe, 2016 NY Slip Op 07610 (1st Dept. 2016)

(1) “Defendant made a prima facie showing that plaintiff did not sustain a serious injury to his right knee, by submitting the report of their orthopedic surgeon who found full range of motion, and opined, upon review of intraoperative photographs, that plaintiff’s knee surgery was not causally related to the accident (see Hernandez v Cespedes, 141 AD3d 483 [1st Dept 2016]; Acosta v Zulu Servs., Inc., 129 AD3d 640 [1st Dept 2015]).

(2) “Plaintiff’s failure to raise an issue of fact as to whether his right knee condition was causally related to the accident means that he cannot recover for any right knee injury, regardless of whether he meets the serious injury threshold with respect to his cervical and lumbar spine claims (see Rubin v SMS Taxi Corp., 71 AD3d 548, 549 [1st Dept 2010]).”

This is an example of the causation defense at its worst.  Plaintiff in his BP/Supp BP appears to have pleaded neck, back and right knee with surgery.  The value of the case would rest with the right knee injury.  The court in the SJ motion dismissed threshold on the right knee injury based upon lack of causation.  The neck and back remain.  The net effect because the Court found lack of causation (as opposed to lack of serious injury) is that the knee injury cannot be considered at all if the neck and back surpass threshold.  The decision makes sense.

The causation piece fits within the more contemporary manner of trying an extremity of surgery where hevay reliance is placed on the operative photos and mininal reliance is palced on the MRI filns.

Causation not proved

Bobbio v Amboy Bus Co. Inc., 2016 NY Slip Op 07101 (1st Dept. 2016)

(1) “[defendant] found no objective neurological disability or permanency and full range of motion (see Birch v 31 N. Blvd., Inc., 139 AD3d 580 [1st Dept 2016]; Mayo v Kim, 135 AD3d 624 [1st Dept 2016]). Their orthopedist’s finding of minor limitations in range of motion does not defeat this showing (see Stephanie N. v Davis, 126 AD3d 502, 502 [1st Dept 2015]). Defendants also relied on plaintiff’s deposition testimony that she had been found to be disabled as a result of a neck condition more than six years before the subject accident, thereby shifting the burden to plaintiff to demonstrate a causal connection between the accident and her claimed cervical injury.”

(2)  “Her orthopedist acknowledged that an MRI of the cervical spine taken four years before the accident showed a preexisting condition, but he provided no objective basis, only the history supplied by plaintiff, for his opinion that the accident exacerbated the preexisting condition (see Campbell v Fischetti, 126 AD3d 472, 473 [1st Dept 2015]). Plaintiff offered no evidence of any injuries different from her preexisting condition, and her orthopedist failed to explain why her preexisting conditions were ruled out as the cause of her current alleged injuries”

On causation (and we are assuming the only issue is cervical injury), a prima facie showing was satisfied through a disability caused because of a neck injury.  The failure to adduce that the injuries were different as a result of the new injury was fatal to plaintiff’s case.

5102(d) baseline under an aggravation and exacervbation

Boroszko v Zylinski, 2016 NY Slip Op 04830 (4th Dept, 2016)

In the realm of a complaint seeking to breach the serious injury threshold where significant limitation permanent consequential is pleaded in the BP, under an exacerbation and aggravation theory, how does a defendant knock out a case (or part of case) on threshold grounds?

Leave it to the upstate Appellate Divisions to divine on these issues, and it is interesting enough for me to share on here:

“The physician and the radiologist opined that plaintiff’s complaints following the second accident were the same as those prior to that accident, that plaintiff’s MRIs and X rays—which showed degenerative changes—were unchanged after the second accident, and that there was no evidence of posttraumatic injuries to plaintiff’s cervical or lumbar spine following the second accident (see Garcia v Feigelson, 130 AD3d 498, 499; Heatter v Dmowski, 115 AD3d 1325, 1326; Pina v Pruyn, 63 AD3d 1639, 1639; Faso v Fallato, 39 AD3d 1234, 1234). Although plaintiffs correctly note that the physician documented limited range of motion in plaintiff’s cervical spine upon his examination of her, the Peca defendants’ submissions also included a December 2010 chiropractic record that the physician reviewed. That chiropractic record showed that plaintiff had essentially the same levels of decreased range of motion just weeks before the January 2011 accident, and thus established that there was no aggravation or exacerbation of plaintiff’s condition as a result of the second accident.”

Since two MVA’s were included in the action, the second one was dismissed and the first one remains.

One last thought.  A lot of insurance carriers take the position that someone with priors will have a difficult time proving their case.  This case shows the perils of aggravation/exacerbation cases when there are priors close in time.  The situation of more remote priors and an injured person worse than their baseline should be remembered.

But one line of defense does not work on an aggravation and exacerbation theory: the biomechanical defense.  This assumes the person could not be injured due to the forces.  An aggravation and exacerbation case assumes prior injury and an eggshell Plaintiff.  This disallows reliance on a biomechanical defense.

A Wagman/Bradshaw foundation is necessary for EMG/NCV results

Ramjit v Motor Veh. Acc. Indem. Corp., 2016 NY Slip Op 26153 (App. Term 2d Dept. 2016)
“In this action to recover for personal injuries allegedly sustained in a motor vehicle accident, liability had been determined, and the matter went to trial on the issue of damages. Over defendant’s objection, the Civil Court admitted into evidence electrodiagnostic test reports which had been prepared by a doctor who did not testify. The court determined that the records were admissible pursuant to CPLR 3122-a and CPLR 4532-a. Plaintiff’s examining doctor testified that his range of motion testing revealed restrictions as compared to normal in plaintiff’s cervical spine. However, he expressly stated that his diagnosis of cervical and lumbar radiculopathy “was based upon the electrodiagnostic testing reports.” The witness admitted that he had not performed the electrodiagnostic tests, and never testified that he had interpreted the data himself. Following the close of defendant’s case, the jury returned a verdict in favor of plaintiff, finding that plaintiff had sustained serious injuries under the significant limitation of use and consequential limitation of use categories of Insurance Law § 5102 (d). As limited by its brief, defendant appeals from so much of the judgment, entered upon the jury’s verdict, as awarded plaintiff the principal sum of $50,000.”

It is not clear whether plaintiff’s expert witness relied only upon the raw data contained in the reports (see CPLR 4532-a) or whether he relied, to any extent, upon the interpretations and diagnosis of the reporting doctor also set forth in the reports. “A written report prepared by a nontestifying doctor interpreting the results of a medical test is not admissible into evidence” (D’Andraia v Pesce, 103 AD3d 770, 771 [2013]; see Clevenger v Mitnick, 38 AD3d 586 [2007]; DeLuca v Ding Ju Liu, 297 AD2d 307 [2002]; Wagman v Bradshaw, 292 AD2d 84 [2002]). Plaintiff did not demonstrate that the reports fell within an exception to the rule against hearsay and, upon a review of the record, we cannot conclude that any cumulative effect of the jury’s access to the electrodiagnostic test reports was harmless error (see Clevenger, 38 AD3d at 587).  Thus, contrary to the Civil Court’s finding, the electrodiagnostic test reports should not have been admitted.

This is pretty large for the simple fact that if the testifying expert cannot read the raw data that an EMG/NCV produces, then the expert does not have a valid opinion.

90/180 from the Fourth Department

Williams v Jones, 2016 NY Slip Op 03607 (4th Dept. 2016)

The no-fault geeks can skip passed this post.  As to the others: what is necessary to raise an issue of fact to defeat a 90/180 MSJ threshold?  Here is an answer.

” In our view, when a plaintiff presents objective evidence of a medically determined injury along with evidence that a medical provider placed restrictions on his or her daily activities, and there is no apparent explanation unrelated to the accident for those restrictions (cf. Dongelewic v Marcus, 6 AD3d 943, 945; Kimball v Baker, 174 AD2d 925, 927), it cannot be said as a matter of law that causation is lacking or that the plaintiff’s limitations are based solely on subjective pain”

ALSO – do not forget that even through permanent consequential and significant limitation were thrown out, prevailing on the 90/180 allows plaintiff to recover for all causally related injuries.


Degeneration was not really that

Armella v Olson, 2015 NY Slip Op 09467 (App. Term 2d Dept. 2015)

“Plaintiff submitted the affidavit of his treating physician, who reviewed plaintiff’s cervical MRI and opined that plaintiff sustained a cervical whiplash superimposed on a degenerative cervical spine and at least two levels of cervical herniations. His physical examination of plaintiff revealed muscle spasms, which constitute objective evidence of injury (see id. at 1544), and plaintiff’s range of motion was limited to a moderate or marked degree. He opined that, given plaintiff’s absence of any prior neck pain, stiffness, or radiculopathy prior to the accident, the accident was a substantial factor in causing previously asymptomatic degenerative conditions in plaintiff’s spine to become symptomatic, and in causing plaintiff’s neck pain, stiffness, spasms, and restricted range of motion. “It is well settled that the aggravation of an asymptomatic condition can constitute a serious injury”

This is a great case for learning on the PI side how a plaintiff can  prove a denegerative injury is actionable.

The $1,000,000 herniation

Waring v Sunrise Yonkers SL, LLC, 2015 NY Slip Op 09174 (1st Dept. 2015)

(1) “$100,000 for past pain and suffering, $500,000 for future pain and suffering, $80,000 for past lost wages, and, as stipulated to by plaintiff, $200,000 for future lost wages and $65,000 for future medical expenses, unanimously affirmed, without costs.”

(2) “We reject defendant’s argument that plaintiff failed to mitigate his damages. There is no evidence that either plaintiff’s failure to fully comply with physical therapy orders or his sleeping [*2]on couches while homeless affected his recovery or contributed to his injuries (cf. Robinson v United States, 330 F Supp 2d 261, 275 [WD NY 2004] [physical therapist reported that plaintiff’s poor attendance “had affected his progress in physical therapy”]), and there is no evidence that plaintiff, who obtained a GED to increase his employment prospects and was looking for work, made, as defendant claims, only minimal effort to seek employment.”

(3) “Plaintiff sustained two bulging cervical discs and three lumbar herniations with impingement, and experienced only limited improvement from physical therapy and epidural injections. He is still in treatment for his injuries, which are permanent, he suffers daily pain and will require surgery and/or a spinal cord stimulator and continuing pain management, and he must restrict his activities, although he may perform sedentary work”

It is point 3 that justified the $1,000,000.00 verdict.  AMAZING.

I suspect the demand was between $50k-$80k.  Well, when you take your chanced with a Bronx jury, these things can happen.

Dr. Dov

Dov Berkowitz – Oh no.

First, happy Labor Day here.  Second, this article was too good not to post, although it is the type of red meat I save for my Facebook feed.  It is relevant too all practitioners, whether you retain him as your expert in a PI case or oppose him, represent him or oppose him on his no-fault collections, or have a pulse and want to know what is going on here.

Assuming that Dr. Berkowitz and his entities places his receivables into arbitration, this will never come out except as an “oh by the way”.  On his Plaintiff no-fault cases, it would make decent cross-examination fodder.  On a  PI case, I would be looking for a new expert.

Suspended physician

Ocean v Hossain, 2015 NY Slip Op 02840 (1st Dept. 2015)

“The court concluded that Dr. Bhatt’s affirmation could not be considered because he was no longer licensed to practice medicine in New York. In the context of the renewed motion for summary judgment, this was error. Dr. Bhatt’s medical license was revoked before the renewed motion was argued. However, he was licensed to practice medicine in New York when the affirmation was subscribed and when it was submitted to the court in opposition to defendants’ original motion for summary judgment (see Fung v Udin, 60 AD3d 992 [2d Dept 2009]). The revocation of Dr. Bhatt’s license raises issues of credibility, but “[i]t is not the court’s function on a motion for summary judgment to assess credibility

The affirmation was executed prior to the physician’s loss of license.  Thus, the affirmation goes to credibility, not admissibility.

Interesting discussion as to causation

Campbell v Fischetti, 2015 NY Slip Op 01898 (1st Dept. 2015)

Furthermore, an X ray taken on the accident date revealed that plaintiff had sustained only a contusion, and had chronic degenerative changes with severe medial joint space narrowing.

In opposition, plaintiff failed to raise a triable issue of fact. Her orthopedic surgeon diagnosed her with left knee osteoarthritis before and after surgery, and provided “no objective basis or reason, other than the history provided by plaintiff,” in support of his opinion that the accident was causally related to the knee surgery nine months later (see Farmerat 562 [internal quotation marks omitted]). Moreover, plaintiff failed to provide evidence of any injuries that were different from her preexisting arthritic condition (see Kamara v Ajlan, 107 AD3d 575, 576 [1st Dept 2013]).”