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]).”

Significant limitation v. Permanent consequential

Mejia v Ramos, 2015 NY Slip Op 00311 (1st Dept. 2015)

To the extent plaintiff contends the [surgical] report itself found abnormalities in the knee, such symptoms, without evidence of some permanent or significant limitation, do not constitute a serious injury under the statute (see Jno-Baptiste v Buckley, 82 AD3d 578, 578 [1st Dept 2011]). Contrary to plaintiff’s contention, defendants’ expert need not review plaintiff’s actual MRI films or intra-operative photographs to make a prima facie showing (see Rosa-Diaz v Maria Auto Corp., 79 AD3d 463, 464 [1st Dept 2010]).

In opposition, plaintiff failed to raise a triable issue of fact as to the existence of a “permanent consequential limitation of use” of the knee. Although the report of his recent examination shows permanency, the persisting limitations noted are not sufficiently meaningful to sustain a permanent consequential limitation claim (see Arrowood v Lowinger, 294 AD2d 315, 316 [1st Dept 2002]). Plaintiff did, however, raise a triable issue of fact as to whether he sustained a “significant limitation of use” of the knee by submitting reports from his treating physiatrist and orthopedic surgeon finding significant limitations and positive clinical findings about 1½ months after the accident, and weeks before surgery (see Thomas v NYLL Mgt. Ltd., [*2]110 AD3d 613, 614 [1st Dept 2013]). Plaintiff also raised a triable issue of fact as to causation, since his surgeon concluded that the injuries he observed during surgery were traumatically-induced and causally related to the accident (see Vargas v Moses Taxi, Inc., 117 AD3d 560 [1st Dept 2014]; Prince v Lovelace, 115 AD3d 424 [1st Dept 2014]; Calcano v Rodriguez, 103 AD3d 490 [1st Dept 2013]). Based on his treatment and review of plaintiff’s medical records, the treating physiatrist also opined that the injuries observed during surgery were traumatic in nature and causally related to the accident (see McSweeney v Cho, 115 AD3d 572 [1st Dept 2014]; James v Perez, 95 AD3d 788, 789 [2012]).

The divorcing of “significant limitation” from “permanent consequential” has opened the portion of the floodgates in letting in threshold cases that Perl kept locked.  Now, the carriers have to eat it on the no-fault end and on the BI end.  Not sure this is what the legislature meant when it imposed a serious injury threshold.


The missing EMG/NCV undermined the expert’s analysis

Crewe v Pisanova, 2015 NY Slip Op 00041 (4th Dept. 2015)

(on to permanent consequential/significan limitation)

“Defendants’ expert opined that plaintiff did not have a serious injury within the meaning of those two categories, based upon his examination of plaintiff and his review of plaintiff’s medical records. The expert concluded, inter alia, that plaintiff did not sustain a serious injury because she did not have radicular pain. In addition, however, defendants submitted an electromyography study of plaintiff in support of their motion, indicating that plaintiff suffered from “moderate chronic left C5-6 radiculopathy.” Further, when defendants’ expert reviewed plaintiff’s medical history, it was admittedly missing the first page of that electromyography study. That is the page containing the conclusion that plaintiff has “moderate . . . radiculopathy,” and we thus conclude that the basis for the expert’s conclusion was thereby undermined.”

(on to 90/180)

SLOPPY EBT:  “To qualify as a serious injury under the 90/180[-day] category, there must be objective evidence of a medically determined injury or impairment of a non-permanent nature . . . as well as evidence that plaintiff’s activities were curtailed to a great extent” (Zeigler v Ramadhan, 5 AD3d 1080, 1081 [internal quotation marks omitted]; see Licari v Elliott, 57 NY2d 230, 236). Here, defendants rely on plaintiff’s deposition testimony addressing how her activities were curtailed as of the time of the deposition, over a year after the accident, rather than how they were curtailed during the relevant statutory period….”

More than $50,000 in basic economic loss (recovery limitation): “[P]laintiff[] correctly contend[s] that [she] need not await the full $50,000 payout for basic economic losses . . . before making a claim under Insurance Law § 5102 (a) for those additional economic losses that exceed the basic economic loss threshold” (Wilson v Colosimo, 101 AD3d 1765, 1767; see generally Montgomery v Daniels, 38 NY2d 41, 47-48; Colvin v Slawoniewski, 15 AD3d 900, 900; Barnes v Kociszewski, 4 AD3d 824, 825; Watkins v Bank of Castile, 172 AD2d 1061, 1062). Here, the three-year period in which plaintiff may accrue economic loss in excess of basic economic loss, as set forth in Insurance Law § 5102 (a) (2), commenced on the date of the accident and had not yet elapsed when the motion was decided. Therefore, summary judgment on this ground was premature.”


Triable issue of causation established

Vargas v Marte, 2014 NY Slip Op 08561 (2d Dept. 2014)

Triable issue of fact on causation

“In particular, plaintiff’s surgeon, recognizing that plaintiff had sustained a prior left knee injury and some age-related degeneration, opined, following his review of plaintiff’s MRIs from before and after the accident, that the lack of left knee pain prior to the accident, coupled with the acute onset of pain after the accident, showed that plaintiff’s left knee meniscal tears were causally related to the subject accident”

Assuming you do not have the MRI’s, would the remainder of the passage be sufficient to defeat summary judgment?  Unsure – but probably yes in light of Perl.