Hernandez v Marcano, 2018 NY Slip Op 03816 (1st Dept. 2018)
However, in any event, defendants Marcano and Crescent Cab Corp.’s expert found full range of motion and absence of injury to the left shoulder, and defendants Alvarado and Cook submitted plaintiff’s hospital records showing that plaintiff sought no treatment for her shoulder after the accident, indicating that any shoulder condition was not causally related to the accident (see Lee v Rodriguez, 150 AD3d 481 [1st Dept 2017]).
In opposition, plaintiff raised an issue of fact as to her cervical and lumbar spine through her physician’s affirmed report, which found continuing range of motion limitations, positive results on objective tests for cervical and lumbar injury, and causally related these injuries to the accident (Moreira v Mahabir, 158 AD3d 518, 518-519 [1st Dept 2018]; Encarnacion v Castillo, 146 AD3d 600 [1st Dept 2017]; Santana v Tic-Tak Limo Corp., 106 AD3d 572 [1st Dept 2013]). Plaintiff also submitted affirmed reports of MRIs of her spine performed shortly after the accident.
To the extent plaintiff asserts a left shoulder injury, as noted, it was not pleaded in her bill of particulars, and, in any event, she submitted no evidence of contemporaneous treatment of the shoulder in the period following the accident, indicating a lack of any causal connection (see Rosa v Mejia, 95 AD3d 402 [1st Dept 2012]).
The bolded was my argument over 10 years ago in Stephen Fealy v. State Farm. Well, I knew I was right then and I am correct now,
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.”
Campbell v Drammeh, 2018 NY Slip Op 03643 (1st Dept. 2018)
In opposition, plaintiff failed to raise an issue of fact as to his claimed spinal injuries, since he submitted no opinion about whether those injuries were caused by the accident, rather than degeneration (see Walker, 132 AD3d at 478—79), and no evidence of treatment (see Pommells, 4 NY3d at 572). As for his right shoulder claim, plaintiff’s orthopedic surgeon opined before performing surgery that any injuries were causally related to the accident. However, he failed to address or explain either the findings in plaintiff’s own MRI of hypertrophic changes and of no acute fracture or dislocation. He also did not address his own operative finding of bursitis (see Franklin v Gareyua, 136 AD3d at 465-466; Walker, 132 AD3d at 478—479). Moreover, plaintiff provided no explanation for his complete cessation of treatment after the surgery (see Pommells, 4 NY3d at 574; Baez v Rahamatali, 24 AD3d 256 [1st Dept 2005], affd 6 NY3d 868 ; Frias v Son Tien Liu, 107 AD3d 589, 590 [1st Dept 2013]).
Cooper v Nestoros, 2018 NY Slip Op 01716 (4th Dept. 2018)
“Plaintiff’s chiropractor testified that, based on that history, he did not believe that plaintiff had suffered a neck injury before the date of the accident, and he further testified that he would have to reevaluate his conclusion if he had been given inaccurate information. Plaintiff’s orthopedic surgeon testified that he initially believed that plaintiff’s shoulder pain was caused by an injury to her neck but ultimately concluded that it was caused by an injury to her shoulder. Although plaintiff maintained on direct examination that she did not suffer a neck injury prior to the date of the accident, that testimony was directly contradicted by her medical records, which indicated that she had complained of chronic neck pain five months before the accident. Thus, we conclude that there is a rational process by which the jury could have found that the accident was not a substantial factor in causing plaintiff’s injuries “
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 ; Alvarez v NYLL Mgt. Ltd., 120 AD3d 1043 [1st Dept 2014], affd 24 NY3d 1191 ).”
(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.
Sanchez v Oxcin, 2018 NY Slip Op 00343 (1st Dept. 2018)
“The orthopedic surgeon also measured contemporaneous and continuing limitations, and opined that the cervical spine injury was caused by the subject accident, specifically noting that plaintiff had recovered from the injuries sustained in the earlier accident before incurring the current serious injuries (see James v Perez, 95 AD3d 788, 789 [1st Dept 2012]; Yuen v Arka Memory Cab Corp., 80 AD3d 481, 482 [1st Dept 2011]). Plaintiff also submitted certified records of all treatment provided by the surgeon who performed the cervical spine surgery and, although not admissible, because unsworn (CPLR 3212[b]), these records are consistent with the sworn expert report (cf. Garcia v Feigelson, 130 AD3d 498 [1st Dept 2015] [unaffirmed MRI reports were of no avail to plaintiff even if admissible because they did not address causation or compare results of earlier MRIs]). Since there is no medical or other evidence in the record indicating that plaintiff had a herniated disc in her cervical spine before the subject accident, nothing further was required of her in opposing the dismissal of her claim of serious injury to that part of her body.”
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 ; see also Franchini v Palmieri, 1 NY3d 536, 537 ).”
(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 ). 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“
Dovberg v Laubach, 2017 NY Slip Op 07238 (2d Dept. 2017)
(1) “Prior to the commencement of a trial on the issue of damages, the defendants served an expert witness disclosure notice pursuant to CPLR 3101(d), advising the plaintiff that they intended to call Dr. Alfred Bowles, a biomechanical engineer and board-certified surgeon, who would testify that the force generated by the accident could not have caused any of the plaintiff’s alleged knee injuries, and that those alleged injuries were the result of wear and tear from athletic [*2]activities. The expert disclosure notice indicated that the proposed testimony would be based upon Bowles’s review of deposition testimony and the plaintiff’s medical records. The plaintiff moved in limine to preclude Bowles from testifying, arguing that his proposed testimony was speculative and without basis in fact, and that the expert disclosure notice did not make reference to any empirical data that Bowles may have relied upon, or any peer-reviewed journals, studies, treatises, or texts showing that an accident that does not meet a specific severity threshold cannot cause injury. In opposition, the defendants alleged that Bowles’s testimony would be based on scholarly works that were published in the fields of medicine and biomedical engineering, and had gained general acceptance in those fields. In support of this claim, the defendants listed the names of three works, which, according to their titles, involved head, neck, and mandible injuries. The authors, years of publication, and contents of these works were not set forth.”
(2) “The Supreme Court denied the plaintiff’s motion, and permitted Bowles to testify at the damages trial. Bowles thereafter testified that in his opinion, with a reasonable degree of engineering certainty, the force generated by a low speed rear-end collision that propelled a vehicle into a 2000 Ford Taurus would not have caused the driver of the Ford Taurus to hit her knees against the dashboard. In reaching his conclusion, Bowles relied upon the defendant driver’s deposition testimony that he was driving at a speed of no more than 10 miles per hour at the time of the collision, and the plaintiff’s deposition testimony that she was driving at a speed of 3 to 5 miles per hour. Although Bowles did not know how close the plaintiff’s seat was positioned to the steering wheel and dashboard at the time of the accident, he maintained that moving the seat up would not increase the likelihood of a driver’s knees hitting the dashboard in a rear-end collision. At the conclusion of the damages trial, the jury returned a verdict finding that the accident was not a substantial factor in causing the injuries alleged by the plaintiff. The plaintiff then moved to set aside the verdict as contrary to the weight of the evidence and for a new trial, and the Supreme Court denied the motion. A judgment in favor of the defendants was subsequently entered, and the plaintiff appeals.”
(3)… “The expert disclosure notice simply stated that Bowles analyzed “the medical and engineering aspects of the accident.“ While the defendants cited to three works in opposition to the motion in limine, they did not identify the [*3]authors, years of publication, and contents of those works, or any explanation as to their relevance in evaluating the cause of knee injuries. Moreover, the defendants provided no description of the methodology Bowles utilized to determine the force of the accident, and the biomechanical engineering principles he relied upon in reaching his conclusion that the force generated by the accident could not have caused the plaintiff’s knees to come into contact with the vehicle dashboard. Under these circumstances, the Supreme Court should have granted the plaintiff’s motion to the extent of precluding Bowles from offering his opinion testimony that the force generated by the accident could not have caused the plaintiff’s knee injuries (see Saulpaugh v Krafte, 5 AD3d 934; cf. Valentine v Grossman, 283 AD2d 571). Accordingly, we reverse the judgment and remit the matter to the Supreme Court, Suffolk County, for a new trial on the issue of damages.”
It is interesting to see a more robust review of what is required to allow a bio-mechanical engineer give testimony on the basis of a 3101(d). It would appear to me that a report with relevant and appropriate citations to the principles set forth herein would be the best way to go about this.
Shur v Unitrin Advantage Ins. Co., 2017 NY Slip Op 51011(U)(App. Term 2d Dept. 2017)
“Here, the affirmed report of the doctor who had performed an independent medical examination (IME) of the assignor contained contradictory statements (see e.g. Black v County of Dutchess, 87 AD3d 1097; Coscia v 938 Trading Corp., 283 AD2d 538 ) as to whether the injury to plaintiff’s assignor’s right knee was “partially causally related to” the accident at issue or caused by “preexisting degenerative changes.” Furthermore, an MRI report that was reviewed by the IME doctor did not set forth an impression of degenerative changes. Nor did the IME doctor indicate that he had examined an operative report on the arthroscopy at issue. Thus, contrary to the determination of the District Court, defendant failed to make a prima facie showing of lack of causation. Consequently, defendant’s motion should have been denied.”
The above raise two issues: examination of operative report and examination of the MRI report play. Both of these documents play a critical role in whether a peer doctor’s causation analysis (who opines that surgery is not related to the accident) is valid. I sense a lot of causation peer reviews will not survive the Vladamir Shur test.
*** It was a Thomas Nipper peer review **
Aliosha v Ostad, 2017 NY Slip Op 06055 (2d Dept. 2017)
“In attempting to refute the opinion of the defendant’s expert regarding good blood flow to the right testicle, the plaintiff’s expert did not actually review the ultrasound images on which the defendant’s expert opinion was based, but reviewed only the ultrasound report”
The case came down to proximate cause and the Court found proofs to be insufficient based upon the failure to review the actual films. Interesting.