90/180 discussion – interpretation of Perl.

Crawford-Reese v Woodard, 2012 NY Slip Op 03502 (3d Dept. 2012)

Interesting discussion on this 5102(d) topic. The evidence that Defendant presented in his 90/180 threshold motion:

The police report reflects that no injuries were reported at the accident scene and, although plaintiff sought medical treatment at a hospital emergency room eight days later complaining of pain in her chest, neck, shoulder and right knee, radiology reports from the hospital indicate calcification and arthritic changes, with no acute fractures or malalignment. Thereafter, several times over the next few months, plaintiff sought medical treatment for various complaints, including chest, head, neck, arm, hip and knee pain, but no limitation of range of motion was documented in the months following her accident, nor were there any recommendations for limitations on plaintiff’s work or activities. Diagnoses by various physicians who examined plaintiff during this period included muscle strain, tendinitis, mild arthritis, degenerative arthritis and obesity . Two independent medical examinations conducted on plaintiff by different doctors in 2007 found no disabilities that would limit her work status or daily activities. Significantly, plaintiff could not remember whether she had been working at the time of the accident or enrolled as a student but, in any event, no evidence was submitted demonstrating that plaintiff missed any time from work or classes as a result of her injuries”

[It is not always to say “I don’t know” at the deposition.  It comes back to haunt you sometimes]  There was insufficient evidence in Plaintiff’s answering papers. But the conclusion of law is interesting:

“Further, although quantitative testing of an injury made years after an accident may be relevant to ascertain the severity of a permanent injury suffered by a plaintiff (see Perl v Meher, 18 NY3d 208, 217 [2011]), contemporaneous findings of injury are highly relevant to causation (see id. at 218) and to establishing the 90/180-day category of serious injury (see Houston v [*3]Hofmann, 75 AD3d at 1049; Tuna v Babendererde, 32 AD3d 574, 577 [2006]).”

The contemporaneous hurdle that was determined to be an issue of in Perl came back on this case as a barrier as a matter of law.

5102(d) and a dissent discussing "no-fault"

Ramkumar v Grand Style Transp. Enters. Inc., 2012 NY Slip Op 02597 (1st Dept. 2012)

Plaintiff in a 5102(d) action must prove that (s)he was cut off from no-fault and that (s)he had an inability to pay the ensuing medical bills…

“Plaintiff’s accident occurred on April 8, 2007 and he underwent arthroscopic surgery on his right knee on June 29, 2007. As of July 5, 2007, plaintiff’s orthopedic surgeon recommended physical therapy. When asked when he last received physical therapy, plaintiff testified that he was “cut off” five months before his July 2008 deposition. Therefore, the record gives no indication that plaintiff received any medical treatment during the 24-month period before he submitted answering papers to defendants’ motions. We assume, as the dissent does, that there are limits to the amount of no-fault coverage for medical services such as physical therapy. The inquiry, however, does not end there. A bare assertion that insurance coverage for medically required treatment was exhausted is unavailing without any documentary evidence of such or, at least, an indication as to whether an injured claimant can afford to pay for the treatment out of his or her own funds (see e.g. Gomez v Ford Motor Credit Co., 10 Misc 3d 900, 903 [Sup Ct Bronx County 2005]; see also Salman v Rosario, 87 AD3d 482 [2011]; Jacobs v Rolon, 76 AD3d 905 [2010]). Plaintiff, who was employed and living with his parents, gave no such indication. Also, the dissent’s theory that “[i]njuries are not always treatable by physical therapy” is speculative and finds no support in the record.”

And now the dissent

“In support of imposing such an obligation on plaintiff, the majority cites Salman v Rosario (87 AD3d 482 [2011]) and Jacobs v Rolon, 76 AD3d 905 [2010]), in which this Court accepted the explanations provided by the plaintiffs that once their no-fault benefits stopped, they could not afford to pay for continued medical care. There is nothing incorrect about these rulings, but they were never intended to establish the minimum acceptable explanation as contemplated in Pommells v Perez.

Also offered in support for the majority’s ruling is a lower court decision in Gomez v Ford Motor Credit Co. (10 Misc 3d 900, 903 [Sup Ct Bronx County 2005]). The court in Gomez analyzed the requirements set out in Pommells v Perez and concluded that a plaintiff’s burden of explaining a gap or cessation in treatment was not satisfied by the explanation that no-fault benefits had been discontinued. The court there held that the plaintiff was required to submit substantiation for the assertion that no-fault benefits were discontinued, adding that “[a]t the very least, counsel for plaintiff should have provided a letter from the insurance carrier as to when and why the carrier discontinued coverage” (id.). It termed an unsubstantiated claim “conclusory and nonprobative” (id.). It then went even further, blaming the plaintiff for failing to “provide[] an [*6]explanation as to why he could not have continued treatment paid out of his own pocket” (id.).

This proposed requirement in Gomez of “substantiation” of the plaintiff’s explanation for the cessation of treatment would engraft onto § 5102(d) an unfair and unreasonable standard of proof. Anyone who has ever dealt with no-fault carriers would understand the likely futility of obtaining the suggested letter from them. The onerous nature of the Gomez requirements is highlighted by the companion requirement suggested there — one that seems to be adopted by the majority here — requiring a plaintiff to “explain” why he could not have paid out of pocket to continue his treatment when insurance benefits terminated. If we were to adopt such a requirement, a plaintiff with a substantial, lasting injury that was not healed during the course of the covered therapeutic treatment, would not be entitled to proceed with a lawsuit unless and until the plaintiff either dug deep into savings to pay for continued therapeutic treatment, or explained why his or her financial circumstances did not permit it. Indeed, consistent with Gomez‘s proposed “substantiation” requirement, proof of the plaintiff’s financial condition would be necessary.

The fact of the matter is that for most people, when insurance coverage ends, treatment ends. Very few people have the means to pay the substantial fees that the uninsured are charged for medical care. People who are employed have regular expenses on which they must spend their earnings; even people with savings most often have plans for the use of those funds. The right to sue for a serious injury cannot be predicated on the plaintiff paying those substantial fees out of pocket, assuming that the funds exist.

They call her crash

Hedgecock v Pedro, 2012 NY Slip Op 02005 (4th Dept. 2012)

Four accidents and a court having to discern which accidents are sufficient to sustain a serious injury.

I am not sure if there is a no-fault link except for the nascent issue of which claim or insurance policy should cover the medical bills.  But, what interests me is that the court actually delineated between the “significant limitation” and “permanent consequential” categories of 5102(d).  It is also another example of the role that chiropractor’s play in these cases.

“In opposition to the motions, plaintiff submitted her entire deposition testimony, the affidavit of her treating chiropractor and the affidavit of her treating neurologist.

(1) Combined effect of all accidents: Inasmuch as the treating neurologist discussed the combined effect of all four accidents on plaintiff’s symptoms, his affidavit fails to raise a triable issue of fact whether the first or second accident caused a serious injury (see generally Zuckerman v City of New York, 49 NY2d 557, 562).

(2) Accident number one: With respect to the first accident, the affidavit of the treating chiropractor detailed plaintiff’s worsening migraine symptoms following that accident and noted that there were muscle tension and trigger points upon palpation following that accident. The treating chiropractor also stated that plaintiff’s symptoms improved prior to the second accident, but that her medical condition had not returned to the state it had been in immediately prior to the first accident.

(3) Accident number two: With respect to the second accident, the treating chiropractor stated that plaintiff’s symptoms had not improved with treatment prior to the third accident, which occurred nearly one year after the second accident, and he outlined the quantitative restrictions of the range of motion of her cervical and lumbar spine, comparing those restrictions to the normal range of motion (see Burke v Moran, 85 AD3d 1710, 1711; cf. Houston v Geerlings, 83 AD3d 1448, 1449-1450). Further, plaintiff was granted a medical withdrawal from her graduate studies immediately following the second accident based upon the frequency and intensity of her migraine headaches, each of which lasted up to 24 hours and prevented her from driving, attending classes or doing household chores.

(4) The Courts decides: Thus, we conclude that plaintiff raised a triable issue of fact sufficient to defeat those parts of each motion with respect to the significant limitation of use category (see generally Roll v Gavitt, 77 AD3d 1412), as well as the 90/180-day category (see generally Houston, 83 AD3d at 1450). Because plaintiff’s treating chiropractor stated that plaintiff’s symptoms had not improved in the nearly one-year period between the second and third accidents, we conclude that plaintiff also raised a triable issue of fact sufficient to defeat that part of the Sterman defendants’ motion with respect to the permanent consequential limitation of use category (see generally Roll, 77 AD3d 1412). We further conclude, however, that plaintiff failed to raise a triable issue of fact sufficient to defeat that part of Pedro’s motion with respect to the permanent consequential limitation of use category, inasmuch as plaintiff’s treating chiropractor stated that her symptoms improved prior to the second accident, and thus that the court erred in denying the motion in its entirety. We therefore modify the order accordingly.”

What are objective signs of continuing disability?

Harrity v Leone, 2012 NY Slip Op 01933 (4th Dept. 2012)

“Plaintiff, however, raised an issue of fact with respect to those two categories by submitting the affidavit of her treating physician, who outlined the objective medical evidence of plaintiff’s injury in those two categories, including a positive EMG test indicating acute bilateral radiculopathy at the L5 nerve root (see Frizzell v Giannetti, 34 AD3d 1202, 1203), positive straight leg tests (see id.; see also Lavali v Lavali, 89 AD3d 574, 575), positive Patrick tests (see Parczewski v Leone, 14 Misc 3d 1218 [A], 2003 NY Slip Op 50065[U], *2 [Sup Ct, Queens County]; see also Navedo v Jaime, 32 AD3d 788, 788), and notations of muscle spasms and trigger points (see Pagels v P.V.S. Chems., Inc., 266 AD2d 819, 819)”

I find it ever so amusing, if not a tad ingenuous, when the Appellate Divisions decide that certain “tests” are objective as a matter of law. It probably works well as a defense attorney in an IME doctor v. plaintiff hired gun case.  It obviously is lethal to a defense attorney in a BI case.  Still, you have to wonder.

A bad day for Mr. Pearson

Pearson v Miles,  2012 NY Slip Op 50423(U)(App. Term 2d Dept. 2012)

“The Civil Court found that, in opposition to the motion, plaintiff had raised a triable issue of fact as to whether he had sustained a medically determined injury which prevented him from performing [*2]substantially all of the material acts which constituted his usual and customary activities for not less than 90 days during the 180 days immediately following the accident at issue. However, the record shows that plaintiff failed to allege injuries under this category in the verified bill of particulars. Consequently, defendant was not required to address plaintiff’s allegations of injuries in this regard”

The injury was serious and not pre-existing because the medical necesity of the surgery was not challenged

Jun Suk Seo v Walsh, 2011 NY Slip Op 01619 (2d Dept. 2011)

This is the big decision of the week as far as I am concerned.

The cases involved two accidents and the allegation that the injuries of the second accident were pre-existing.  The issue presented involved whether the discectomy surgery caused the serious injury thereshold to be breached.  The case went to a jury verdict, which ruled that the injuries were either “not serious” or “causally related” to the subject accident.  The post-trial motion to vacate the jury verdict was denied.

The Appellate Division reversed.

The reason for the holding is quite surprising: “Significantly, none of the defendant’s witnesses rebutted the plaintiff’s showing that he underwent a discectomy, or provided any testimony that the discectomy was unnecessary.”

Is lack of medical necessity part of an defendant’s case in defeating a 5102(d) action at trial?

How the medicine and the law fit like a hand in a glove

Mahmood v Vicks, 2011 NY Slip Op 00653 (2d Dept. 2011)

Call this one: why an MRI performed more than 6 weeks after the MVA is actually advantageous to the personal injury plaintiff.  As anyone who reads this blog knows, an MRI of the spine performed within 4-6 weeks of the initial examination when the allegation in a “soft-tissue” injury case will usually be grounds to prima facie uphold the lack of medical necessity of the service.  Of course, this requires the testimony of a physician or chiropractor who cites to the 3 or 4 journal articles that correctly stand for this proposition.  Thus, an MRI performed later in the patient’s treatment will usually fare better at trial.

But this case demonstrates another reason why it might be in the patient/plaintiff’s best interest to wait at least two months post evaluation to perform these tests:

“Dr. Tsatskis’s range-of-motion and other tests revealed more than minor limitations in the cervical, thoracic, and lumbar regions of the plaintiff’s spine, as well as in the plaintiff’s right shoulder and left knee. The MRI study of the lumbar region of the plaintiff’s spine, performed about four months after the subject accident, revealed, inter alia, muscle spasm and a bulging disc. The MRI study of the cervical [*2]region of his spine, performed almost a year after the subject accident, revealed muscle spasm and a central disc herniation. This evidence of the extent and duration of the plaintiff’s claimed injuries was sufficient to raise a triable issue of fact under the significant limitation of use category of Insurance Law § 5102(d)”

Now, there are certain attorneys who preach that they are better than other attorneys because they know the medicine better than anyone else.  While that is great, it is even more important to know how the law effects the timing, duration and scope of the medicine.

Exageration of symptoms beats a threshold motion

Cheour v Pete & Sals Harborview Transp., Inc., 2010 NY Slip Op 06614 (2d Dept. 2010)

“While Dr. Farkas stated that the plaintiff presented with “extreme exaggeration of symptoms” and that the decreased ranges of motion noted by him were “not true pathologic findings” and were instead exaggerated subjective complaints, he failed to explain or substantiate those conclusions with any objective medical evidence”

An expert must explain or substantiate a claim that an examinee is lying, otherwise “no dice”.

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.