They sunk their own battleship

Abdalla v Mazl Taxi, Inc., 2010 NY Slip Op 06071 (2d Dept. 2010)

There is nothing wrong with relying on a party’s opponents to help establish your prima facie defense that threshold was not breached or a service lacked medical utility.  But, as this case shows, watch what you annex to your motions, lest you wish to lose right out of the gate.

“The defendants, in support of their motion, relied on some of the plaintiff’s own medical reports. One such report was that of the plaintiff’s treating physician, Dr. Joyce Goldenberg, which revealed the existence of a significant limitation in the plaintiff’s right knee flexion (see Guerrero v Bernstein, 57 AD3d 845; Mendola v Demetres, 212 AD2d 515). The other was an operative report of the plaintiff’s treating orthopedic surgeon, Dr. Richard Seldes, which revealed, inter alia, the existence of a tear in the posterior horn of the medial meniscus in the right knee. Since the defendants did not meet their prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact”

Can you say sianara?

A signifcant knee surgery does not defeat the 5102(d) serious injury threshold

Travis v Batchi, 2010 NY Slip Op 05862 (1st Dept. 2010)

“The examination records of plaintiff’s own treating physician/expert show that she had full strength and range of motion in the knee both a few weeks and a few months after the accident, after he performed a right knee ACL reconstruction, partial medial and lateral meniscectomy and chrondroplasty.”  “[t]he negative findings cannot be reconciled with the physician’s affirmation submitted in opposition to the motion prepared a few years after the accident.”

I found this case last week but forgot to report it.  I have this fascination with surgery cases not beating threshold.  Just look at the surgery that was done in this case.  This was significantly more than the arthroscopic procedure we always see in our practice.  Had this gone to trial, you could imagine a $500,000 + non-economic damages verdict.

My first observation, and this is a reoccurring theme here, is that gratuitous “affidavits of merit” are without any probative value if controverted by the medical record before the motion court.  This is an important point, and one I am trying to push up the appellate ladder in the no-fault context.  The saying goes: “it is what it is”.  If the assignor’s medical chart fails to discern ROM restrictions, etc., then why should an affidavit that contradicts the medical record raise an issue of fact?

My second observation, and one that the defense bar should be astute to is more pragmatic.  Is sacrificing threshold and allowing a Bronx jury to adjudicate a case like this worth the savings the carriers might obtain through the proposed no-fault reform bills that are out there?  I think the saying goes: pick your poison.

As a public service message, make sure you stay hydrated if you are going outside and exerting any physical activity.

By the way, the court got this once right on the mark, and the defense did a wonderful job in defeating this potential disaster.

The destruction of peer hearsay: It is not hearsay – and much more

Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 2010 NY Slip Op 50987(U)(App. Term 2d Dept. 2010)

This case really should be in the misc.3d reporter and Habif, the last case we discussed, should have the aforesaid (U) cite.  The predominant issue that is presented in this case involves peer hearsay.  But, there is a subtle jab at how certain Kings County judges adjudicate the mailing issue; a mention of 3212(g) and a way to possibly invoke it; and the duty to communicate when an additional verification request is received.  Now on to the discussion of this case.

1. Peer hearsay – exception to the hearsay rule

The case starts off with the observation that the plaintiff assignor’s medical records are fair game under the standard argument that a medical provider is estopped from challenging medical records that reference or discuss the assignor.  This rule follows the long line of cases, which holds that the plaintiff’s medical records constitute admissions when used by the defendant.  The court was correct in invoking this rule, and should have stopped here in its analysis.

2. Peer hearsay – it is non hearsay

“Moreover, we note that, while defendant’s peer review doctor may have considered medical records received from other providers who had rendered treatment to the assignor, defendant was not seeking to use such records to establish the truth of the facts set forth therein. Defendant was not attempting to prove that Rafailova was injured as documented in her medical records, or that she was treated as set forth in those records. Instead, defendant’s peer review doctor simply opined that, assuming the facts set forth in Rafailova’s records were true, the treatment allegedly provided was not medically necessary. Therefore, as defendant was not using the underlying medical records for their truth, such records were not being used for a hearsay purpose (see e.g. Dawson v Raimon Realty Corp., 303 AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]). This is distinguishable from a situation in which a medical expert relies upon medical records to establish the fact of an injury (see e.g. Hambsch v New York City Tr. Auth., 63 NY2d 723 [1984]; Wagman v Bradshaw, 292 AD2d 84 [2002]). Consequently, plaintiff’s argument that defendant failed to establish the reliability of the underlying medical records in support of its claim that the treatment provided was not medically necessary is irrelevant.”

I am not sure that I agree with theabove reasoning.  If a patient’s medical chart shows normal Range of Motion and symmetrical Deep Tendon Reflexes, then of course I as a competent defense attorney am going to use these findings for their truth, to show that certain diagnostic testing was medically unreasonable.  This also runs counter to the Ninth and Tenth Districts’ determination in Progressive Medical Inc. v. Allstate.  Finally, it runs counter to the Second, Eleventh and Thirteenth Districts’ determination in Pan Chiro, P.C. v. Mercury Ins. Co.

But, the real problem with this case is the application it has to personal injury and medical malpractice litigation.  I will let your imagination craft the creative lawyering this case presents.

3. Mailing

The rule in Civil Kings with certain judges is that the affidavit must be specific as to the dates an item is mailed.  It is insufficient, according to these judges, to present an affidavit that discusses the general mailing procedure, which will allow a reader to infer that an annexed denial was mailed on the date of the denial or the next business date.  The fact that certain plaintiff’s prevailed using this argument forever baffled my mind, and was always a key determination as to whether or not I appealed an adverse decision.  Here is an example of case from Kings County where I reversed a judge who said my affidavit was not specific enough: Quality Psychological Services, P.C. v. Mercury Ins. Group, 27 Misc.3d 129(A)(App. Term 2d Dept. 2010).  Here is an example from Queens County where I reversed a judge who said my affidavit was not specific enough : Innovative Chiropractic, P.C. v. Mercury Ins. Co., 25 Misc.3d 137(A)(App. Term 2d Dept. 2010).

Here is the language from Urban:

“The Civil Court denied the motion due to the lack of specificity in the affidavit of defendant’s mail clerk regarding mailing of the denial & requests for additional verification.  The instant appeal by defendant ensued. Contrary to the determination of the Civil Court, the affidavits of defendant’s no-fault claims examiner and mail clerk were sufficient to establish that defendant had timely mailed the additional verification requests and NF-10 denial of claim forms in that they described, in detail, based on the affiants’ personal knowledge, defendant’s standard office practice and procedure designed to ensure that said documents were mailed”

4. Communicate or be estopped

A reoccurring theme in the case law has involved the insurance carrier sending a verification request  to a provider who the insurance carrier knows, or should know, does not have the requested information.  A similar theme involves the sending of verification requests to a provider when they have an attorney submitting their bills.

The Court, in following recent precedent, held that the provider must communicate that it does not have the information in order to stop the tolling of the time to pay or deny the claim.  The Urban court said the following: “While plaintiff argues that the requests should have been sent to the referring physician, inaction was, in this case, not a proper response (see Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 555 [1999]). Plaintiff should have informed defendant that the requests should be sent elsewhere.”

5. The door opens up to the invocation of 3212(f)

“Furthermore, plaintiff did not demonstrate that it needed the records from the other providers in order to raise a triable issue of fact as to whether the services at issue were medically necessary when they were rendered (see CPLR 3212 [f]; GZ Med. & Diagnostic, P.C. v Mercury Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), and that it had served discovery demands during the ample opportunity that it had to commence discovery proceedings to obtain such records before the instant summary judgment motion was brought (see Meath v Mishrick, 68 NY2d 992 [1986]).

It looks like the Defendant failed to annex the medical records that its peer review doctor relied upon in its motion for summary judgment.  Interestingly, the court held that if Plaintiff was diligent in seeking discovery, it would have been able to invoke 3212(f).  This is very interesting and it also makes sense.

All that in one case.

A Plaintiff’s own hospital records defeated his own threshold summary judgment motion

In support of the plaintiff’s [respondent’s] cross motion, she relied upon, inter alia, Dr. Westreich’s affirmation, which was sufficient to meet her prima facie burden of showing that she sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident, inasmuch as she sustained a fractured nose. In opposition, the appellants [defendants] raised a triable issue of fact as to the existence of a fracture on the day of the accident and, thus, whether the accident caused a fractured nose. In this respect, the appellants relied upon, inter alia, the plaintiff’s hospital records, which revealed that the CT scan of her head on the day of the accident was “unremarkable.”

This case is interesting because the Appellate Division, in a 5102(d) matter, looked to see if the injured persons medical records contradicted the affirmation of the injured person’s expert.  This does not happen too frequently in no-fault practice, as we learned in Co-Op City Chiropractic, P.C. v. Mercury Ins. Group, 26 Misc.3d 145(A)(App. Term 2d Dept. 2010) and  Infinity Health Products, Ltd. v. Mercury Ins. Co., 26 Misc.3d 142(A)(App. Term 2d Dept. 2010).

A Plaintiff's own hospital records defeated his own threshold summary judgment motion

In support of the plaintiff’s [respondent’s] cross motion, she relied upon, inter alia, Dr. Westreich’s affirmation, which was sufficient to meet her prima facie burden of showing that she sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident, inasmuch as she sustained a fractured nose. In opposition, the appellants [defendants] raised a triable issue of fact as to the existence of a fracture on the day of the accident and, thus, whether the accident caused a fractured nose. In this respect, the appellants relied upon, inter alia, the plaintiff’s hospital records, which revealed that the CT scan of her head on the day of the accident was “unremarkable.”

This case is interesting because the Appellate Division, in a 5102(d) matter, looked to see if the injured persons medical records contradicted the affirmation of the injured person’s expert.  This does not happen too frequently in no-fault practice, as we learned in Co-Op City Chiropractic, P.C. v. Mercury Ins. Group, 26 Misc.3d 145(A)(App. Term 2d Dept. 2010) and  Infinity Health Products, Ltd. v. Mercury Ins. Co., 26 Misc.3d 142(A)(App. Term 2d Dept. 2010).

Causation, Renewal and a probable trip to the Court of Appeals

It is rare to see a 5102(d) case, which has broad implications in various areas of law, find a probable trip to the Court of Appeals.  Absent a settlement or change of heart, this case can prove to be a landmark of sorts – unless relegated to a three sentence memorandum decision.

This is a long post by the way – it involves a lot of copying and pasting. But, it is necessary.

Henry v Peguero, 2010 NY Slip Op 03477 (1st Dept. 2010)

“Plaintiff alleged that he was injured on September 27, 2006 when a Lincoln Town Car, owned and operated by defendants, struck the passenger side of his Honda Accord. Plaintiff did not seek immediate medical treatment but flew to Florida to visit a friend, initially consulting Dr. Bhupinder S. Sawhney on October 11, 2006, following his return. The doctor’s November 20, 2006 report of an MRI of the lumbar spine notes a degenerative condition (“Facet arthropathy from L4 through S1 is evident bilaterally”), and a subsequent report by Dr. Shahid Mian states, “MRI scan of the cervical spine dated 10/12/06 report [sic] diffuse disc dessication.” On the prior motion, defendants sought dismissal on the ground that plaintiff had failed to demonstrate that he sustained a serious injury (Insurance Law § 5102[d]). Defendants tendered the report of a physician, Dr. Gregory Montalbano, who observed that the November 20, 2006 MRI, consistent with one performed on March 23, 2007, showed “degenerative changes which occur over time.” Noting that “[s]ingle level acute disc herniations typically cause incapacitation for two or more weeks and require marked activity modification, bed rest and strong prescription pain medications,” Dr. Montalbano concluded that plaintiff “suffers from a pre-existing condition of degenerative disc disease involving the lumbar spine at multiple levels which is reported for both scans.”

In opposition, plaintiff submitted an affirmation by Dr. Mian stating that “Mr. Henry’s injuries are causally related to the motor vehicle accident of 9/27/06.” However, in the order from which renewal was sought, Supreme Court agreed with defendants that plaintiff’s “injuries and his subsequent surgery were due to a pre-existing degenerative condition,” further finding that plaintiff had “failed to provide an adequate explanation for the gap in treatment.”

On his motion for renewal, plaintiff offered an addendum from Dr. Mian, which [*2]concluded that the “disc herniation of L4-5 and L5-S1 of the lumbar spine are causally related to the accident, and not from a pre-existing condition or long standing degenerative process.” The addendum adds that “the impact from the subject accident plainly made the disc pathologies symptomatic.”

“As this Court has emphasized, “Renewal is granted sparingly . . . ; it is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation”

This construction is consistent with this Court’s view that motion practice in connection with summary judgment should be confined to the limits imposed by CPLR 2214(b). As we have stated, “We perceive no reason to protract a procedure designed ‘to expedite the disposition of civil cases where no issue of material fact is presented to justify a trial’ (Di Sabato v Soffes, 9 AD2d 297, 299) by encouraging submission of yet another set of papers, an unnecessary and unauthorized elaboration of motion practice” (Ritt v Lenox Hill Hosp., 182 AD2d 560, 562 [1992]). Thus, a deficiency of proof in moving papers cannot be cured by submitting evidentiary material in reply (see Migdol v City of New York, 291 AD2d 201 [2002]), the function of which is “to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds for the motion” (Dannasch v Bifulco, 184 AD2d 415, 417 [1992]). Nor can a deficiency in opposing a motion be cured by resorting to a surreply (see e.g. Garced v Clinton Arms Assoc., 58 AD3d 506, 509 [2009]).

“Supreme Court’s grant of renewal in this matter contravenes this Court’s policy of confining motion practice to the limits imposed by the CPLR. Neither of the statutory requirements for renewal was satisfied by plaintiff. Dr. Mian’s addendum was not the result of any additional examination or medical testing; rather, the doctor’s conclusion was based on the medical information previously available to him and could have been included in his original affidavit (see Cillo v Schioppo, 250 AD2d 416 [1998]). While, in appropriate circumstances, renewal may be predicated on previously known facts, it is settled that “[t]he movant must offer a reasonable excuse for failure to submit the additional evidence on the original motion” (Segall v Heyer, 161 AD2d 471, 473 [1990]), which plaintiff neglected to do.”

“Even if this Court were to accept the proffered addendum, it is insufficient to rebut the finding of defendants’ physician that plaintiff’s affliction is degenerative in nature rather than the consequence of a serious injury causally related to the accident (see Lopez v American United [*3]Transp., Inc., 66 AD3d 407 [2009]; Eichinger v Jone Cab Corp., 55 AD3d 364 [2008]). While Dr. Mian’s addendum states that the accident caused plaintiff’s underlying pathology to become manifest, it utterly fails to explain the two-week gap between the accident and the commencement of treatment, which “interrupt[s] the chain of causation between the accident and claimed injury” (Pommells v Perez, 4 NY3d 566, 572 [2005]). Thus, we conclude that defendants submitted “evidence of a preexisting degenerative disc condition causing plaintiff’s alleged injuries, and plaintiff failed to rebut that evidence sufficiently to raise an issue of fact” (id. at 579).”

The proof tendered in support of the motion were plaintiff’s mri REPORTS and a peer doctor who opined, based upon the two reports, that the injuries were degenerative and not traumatically induced.  Plaintiff in his original answering papers stated that the injuries were causally related to the accident.  Nothing more.  In his renewal, he expanded on this a bit.

Supreme Court, as you can see, held that the proof under either paradigm was insufficient to raise an issue of fact.  The Court also went to great pains to explain that renewal is not a second bite at the apple.

Now the dissent.

This case, like the recent case of Linton v Nawaz, 62 AD3d 434 [2009], presents the vexing question of the quantum of proof necessary to raise a triable issue of fact concerning causation where defendant alleges the existence of a pre-existing, degenerative condition. Defendants failed to present persuasive proof of a pre-existing degenerative condition, as described in Pommells v Perez (4 NY3d 566 [2005]), and plaintiff’s submissions sufficiently raised a triable issue of fact as to whether his injuries were attributable to the accident as opposed to a pre-existing, degenerative condition. I would accordingly affirm the order of the motion court in all respects.

“[I]n his supplemental bill of particulars, plaintiff noted that he had undergone a percutaneous discectomy at L4-L5 and L5-S1 levels with the Stryker Dekompressor System.

“Defendants filed a motion for summary judgment dismissing the complaint on the ground that plaintiff failed to establish the existence of a “serious injury” (Insurance Law § 5102[d]). In support, defendants submitted, inter alia, an affirmation from Dr. Gregory Montalbano, who performed an orthopedic examination of plaintiff on March 14, 2008.”

“Dr. Montalbano opined that plaintiff had not sustained an injury to the lower back as a result of the accident. Dr. Montalbano based this conclusion on two factors. First, he noted that immediately after the accident, plaintiff flew to Florida for a week, which was “extremely unusual behavior” for anyone traumatically sustaining not one but two disc herniations. Dr. Montalbano stated that single level acute disc herniations typically caused incapacitation for two or more weeks, and required marked activity modification, bed rest and strong prescription pain medication. Second, Dr. Montalbano opined that the degenerative changes shown in both MRIs, i.e., multiple level disc bulges and herniations and facet arthropathy from L4 through S1, were the type that would occur over time and not over a two-month period [FN1]. These degenerative changes were consistent with plaintiff’s age and occupation as a boiler fireman. Dr. Montalbano further opined that the discectomy surgery was performed for the purpose of correcting plaintiff’s pre-existing lumbar condition.”

In opposition to the motion, plaintiff relied on Dr. Greenfield’s MRI report of plaintiff’s lumbar spine on November 20, 2006; the March 20, 2007 affirmed medical report of his surgeon, Dr. Mian, who opined that plaintiff’s injuries were causally related to the accident; the June 3, 2008 affirmed report of neurologist Paul Lerner, who found deficits in lumbar range of motion and opined that plaintiff’s injuries were causally related to the accident; and the affirmed report of Dr. Mitchell Kaphan, an orthopedist who examined plaintiff on December 21, 2006 and found range-of-motion limitations in the cervical and lumbar spine, and opined that plaintiff’s injuries were causally related to the accident.

“In opposition to the motion, plaintiff relied on Dr. Greenfield’s MRI report of plaintiff’s lumbar spine on November 20, 2006; the March 20, 2007 affirmed medical report of his surgeon, Dr. Mian, who opined that plaintiff’s injuries were causally related to the accident; the June 3, 2008 affirmed report of neurologist Paul Lerner, who found deficits in lumbar range of motion and opined that plaintiff’s injuries were causally related to the accident; and the affirmed report of Dr. Mitchell Kaphan, an orthopedist who examined plaintiff on December 21, 2006 and found range-of-motion limitations in the cervical and lumbar spine, and opined that plaintiff’s injuries were causally related to the accident.”

By order entered November 10, 2008, the court granted defendants’ motion for summary judgment dismissing the complaint in its entirety, finding that defendants had established, prima facie, that plaintiff had not sustained a “serious injury.” The court relied, inter alia, upon Dr. Montalbano’s opinion, based on his examination of plaintiff and his review of the medical records, that plaintiff did not sustain cervical or spinal injury as a result of the accident, and that the MRI of plaintiff’s lumbar spine demonstrated he suffered from pre-existing degenerative disc disease. The court found, in turn, that plaintiff had failed to raise a triable issue of fact as to whether he had sustained a serious injury within the meaning of the statute. The court noted that “not one of the records or reports” of plaintiff’s treating physicians “addresses the pre-existing degenerative disc disease reported by Dr. Greenfield and described in Dr. Montalbano’s affirmed report,” or “give[s] any objective basis for concluding that plaintiff’s alleged limitations result” from the accident rather than his pre-existing degenerative condition, rendering causality conclusions speculative and insufficient to defeat the summary judgment motion.”

By order entered November 10, 2008, the court granted defendants’ motion for summary judgment dismissing the complaint in its entirety, finding that defendants had established, prima facie, that plaintiff had not sustained a “serious injury.” The court relied, inter alia, upon Dr. Montalbano’s opinion, based on his examination of plaintiff and his review of the medical records, that plaintiff did not sustain cervical or spinal injury as a result of the accident, and that the MRI of plaintiff’s lumbar spine demonstrated he suffered from pre-existing degenerative disc disease. The court found, in turn, that plaintiff had failed to raise a triable issue of fact as to whether he had sustained a serious injury within the meaning of the statute. The court noted that “not one of the records or reports” of plaintiff’s treating physicians “addresses the pre-existing degenerative disc disease reported by Dr. Greenfield and described in Dr. Montalbano’s affirmed report,” or “give[s] any objective basis for concluding that plaintiff’s alleged limitations result” from the accident rather than his pre-existing degenerative condition, rendering causality conclusions speculative and insufficient to defeat the summary judgment motion.

Plaintiff moved, by order to show cause, for renewal of the order pursuant to CPLR 2221(e), based on the December 11, 2008 “addendum” report of Dr. Mian. Counsel asserted that plaintiff had not submitted the addendum report in his original opposition papers because both counsel and Dr. Mian were under the belief that the doctor’s determination that plaintiff’s injuries were causally related to the subject accident — which was based upon his review of the MRI films, the MRI report, his examination of plaintiff and observation of the injured discs [*5]during the operation he performed on plaintiff — had been sufficient to rebut Dr. Montalbano’s findings of degeneration, which were based solely on the latter’s review of the MRI report and not review of the actual MRI films.

In his addendum report, Dr. Mian opined, based on his review of the MRI films, his examination of plaintiff, plaintiff’s lack of any prior neck or back injury, and complaints relating to his neck and lower back since the accident, that plaintiff’s lumbar disc herniations were causally related to the accident and not a pre-existing condition or long-standing degenerative process. Dr. Mian further opined that “even if the disc pathologies reflected in [plaintiff’s] MRI scans were pre-existing or degenerative in nature, given [plaintiff’s] complaints relating to his back since the accident and his lack of any prior injury to those parts of his body, the impact from the subject accident plainly made the disc pathologies symptomatic.”

I would hold that the lower court properly granted the motion to renew, and thereupon properly denied defendants’ motion to dismiss the complaint to the extent indicated above. It was within the court’s discretion to grant leave to renew upon facts known to the moving party at the time of the original motion. Plaintiff provided a reasonable justification for the failure to include information provided in the addendum of his medical witness, citing counsel’s belief that the medical submissions in opposition to defendants’ summary judgment motion were sufficient to rebut defendants’ expert’s finding that the injuries claimed by plaintiff were degenerative (see Rancho Santa Fe Assn. v Dolan-King, 36 AD3d 460 [2007] [court, in its discretion, may grant renewal, in the interest of justice, upon facts known to
the movant at the time of the original motion]; Nutting v Associates in Obstetrics & Gynecology, 130 AD2d 870 [1987] [court properly granted motion to renew based on affidavit of medical doctor where defendants reasonably believed plaintiffs’ failure to provide an affidavit of merit from a medical expert would preclude plaintiffs from successfully vacating default]).

Indeed, the reports of plaintiff’s experts, who had examined him and opined that his injuries were causally related to the accident, were more than sufficient to raise a triable issue of fact (see Norfleet v Deme Enter., Inc., 58 AD3d 499 [2009]). Their conclusions that plaintiff’s symptoms were related to the accident were not speculative or conclusory, but rather, based on physical examinations of plaintiff made shortly after the onset of his complaints of pain and other symptoms, which he claimed arose after his involvement in the motor vehicle accident. By attributing plaintiff’s injuries to a different, yet equally plausible cause (i.e., the accident), the affirmations of plaintiff’s experts raised an issue of triable fact, and a jury was entitled to determine which medical opinion was entitled to greater weight (see Linton v Nawaz, 62 AD3d [*6]434, supra).

In this case there is no “persuasive” evidence of a pre-existing injury of the type described in Pommells v Perez (4 NY3d 566, supra). Dr. Montalbano, who examined plaintiff 1 ½ years after the accident, merely opined that the type of injuries revealed by plaintiff’s MRI (i.e., multi-level disc bulges and herniations and facet arthropathy) were degenerative changes consistent with plaintiff’s age and occupation. Significantly, he did not examine the MRI films themselves, more specifically describe the nature of plaintiff’s injuries or explain why he had conclusively determined that plaintiff’s injuries were degenerative in origin.[FN2]

In any event, the addendum provided sufficient evidence to rebut defendants’ expert’s finding that disc pathologies were degenerative in nature rather than a serious injury causally related to the accident. Dr. Mian opined that the disc pathologies observed by Dr. Montalbano were causally related to the accident, based on his examination of plaintiff, his review of the MRI films, plaintiff’s lack of prior neck or back injury, and the onset of plaintiff’s symptoms following the accident. Dr. Mian further opined that even if disc pathologies were pre-existing in nature, the accident served to aggravate them. This was more than sufficient, at this stage, to raise a triable issue of fact regarding causation (see e.g. Hammett v Diaz-Frias, 49 AD3d 285 [2008] [report of plaintiff’s doctor that her symptoms were caused by accident, and that her condition was permanent in nature and in part an “exacerbation of underlying degenerative joint disease and prior injuries,” sufficient to raise a triable issue of fact]).”

Just note that throughout this discussion, nobody ever examined the actual FILMS!

Second, also note that the dissent was happy to grant renewal for the purpose of forwarding their point of view on the substantive issue.

Now, a probable trip to the Court of Appeals.

Causation defense rebuffed – notice the subtleties of this case

McDuffie v Rodriguez, 2010 NY Slip Op 03366 (1st Dept. 2010)

“Defendants met their prima facie burden of establishing that plaintiff did not sustain a serious injury by submitting the affirmed reports of experts who, after examining plaintiff and reviewing her medical records and MRI studies, found a lack of causation between her complaint of right knee pain and the subsequent arthroscopic surgical repair and the accident, and instead attributed plaintiff’s condition to pre-existing degenerative osteoarthritis (see Jean v Kabaya, 63 AD3d 509 [2009]). In opposition, plaintiff raised a triable issue of fact, as her treating physician noted acute injuries related to the automobile accident as well as degenerative changes. Defendants’ remaining arguments need not be addressed.”

What was not reviewed?  The MRI FILMS.

Why does this matter?  Well, what is the standard to defeat to a causation defense based upon a radiologist’s review of the films finding that the condition is degenerative?

I will tell you this much: it is more than some “[p]hysician not[ing] acute injuries related to the automobile accident….”  The answer may be found here.

Court of Appeals tells the Appellate Division to adjudicate 5102(d) motions as either “all or nothing”

Linton v Nawaz, 2010 NY Slip Op 02835 (2010)

“[t]he evidence plaintiff proffered relating to injuries to his right shoulder and lumbosacral spine raised a triable [*2]question of fact as to whether he suffered a serious injury that was causally related to the accident under the permanent consequential limitation of use of a body organ or member and/or significant limitation of a body function or system criteria (see Insurance Law § 5102[d]). Since plaintiff established that at least some of his injuries meet the “No Fault” threshold, it is unnecessary to address whether his proof with respect to other injuries he allegedly sustained would have been sufficient to withstand defendants’ motion for summary judgment.”

In the context of this 5102(d) action, once a plaintiff raises an issue of fact as to any of the pleaded threshold categories, the defendant’s motion must be categorically denied.  This case seems to direct the lower courts to stop using CPLR 3212(g) to limit the proof that may be adduced at trial to support a threshold case.  DG over in CPLR land discussed the First Department case of Rubin v SMS Taxi Corp., 2010 NY Slip Op 02414 (1st Dept. 2010) where the Appellate Division held that once an issue of fact exists as to any of the threshold categories, the inquiry should stop at that point.  This is because: “once an alleged claim meets at least one of the serious injury thresholds, the statute’s gate keeping function, to reduce caseloads by limiting what the courts adjudicate, is satisfied. As the case is already in the gate, so to speak, judicial economy is no longer a reason to preclude plaintiff from presenting to the jury all injuries causally related to the accident. This comports with the general principle that a plaintiff is entitled to recover damages that justly and fairly compensates him or her for all injuries proximately caused by the accident.”

Procedurally, the newest issues involving 5102(d) are quite intriguing.

Court of Appeals tells the Appellate Division to adjudicate 5102(d) motions as either "all or nothing"

Linton v Nawaz, 2010 NY Slip Op 02835 (2010)

“[t]he evidence plaintiff proffered relating to injuries to his right shoulder and lumbosacral spine raised a triable [*2]question of fact as to whether he suffered a serious injury that was causally related to the accident under the permanent consequential limitation of use of a body organ or member and/or significant limitation of a body function or system criteria (see Insurance Law § 5102[d]). Since plaintiff established that at least some of his injuries meet the “No Fault” threshold, it is unnecessary to address whether his proof with respect to other injuries he allegedly sustained would have been sufficient to withstand defendants’ motion for summary judgment.”

In the context of this 5102(d) action, once a plaintiff raises an issue of fact as to any of the pleaded threshold categories, the defendant’s motion must be categorically denied.  This case seems to direct the lower courts to stop using CPLR 3212(g) to limit the proof that may be adduced at trial to support a threshold case.  DG over in CPLR land discussed the First Department case of Rubin v SMS Taxi Corp., 2010 NY Slip Op 02414 (1st Dept. 2010) where the Appellate Division held that once an issue of fact exists as to any of the threshold categories, the inquiry should stop at that point.  This is because: “once an alleged claim meets at least one of the serious injury thresholds, the statute’s gate keeping function, to reduce caseloads by limiting what the courts adjudicate, is satisfied. As the case is already in the gate, so to speak, judicial economy is no longer a reason to preclude plaintiff from presenting to the jury all injuries causally related to the accident. This comports with the general principle that a plaintiff is entitled to recover damages that justly and fairly compensates him or her for all injuries proximately caused by the accident.”

Procedurally, the newest issues involving 5102(d) are quite intriguing.

Knee surgery to fix an ACL and Medical Meniscus insufficient to beat threshold

The buzz on the street over the last few years is that “surgery” is necessary to breach the serious injury threshold.  On the no-fault side, this has translated into insurance carriers seeing many more surgery cases than in years past.  It seems that surgery might not even save the threshold case as seen below:

Rodriguez v Grant, 2010 NY Slip Op 01780 (2d Dept. 2010)

“The affirmed magnetic resonance imaging report of Dr. Raymond Rizzuti merely revealed the existence of a tear of the anterior cruciate ligament and medial meniscus in the plaintiff’s left knee. A tear in tendons, as well as a tear in a ligament, is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the injury and its duration.”

So does this relate to a service lacking medical reasonableness based upon the absence of objective evidence of the nature and extent of the underlying injury?  This raises a really interesting question about what this means for certain no-fault medical necessity surgery cases.