Issues of literature and an expert's competency to render an opinion – *a must read*

Ellis v Eng, 2010 NY Slip Op 01453 (2d Dept. 2010)

This medical malpractice case, I think, is a must read for many reasons.  First, it discusses the issues involving experts offering opinions outside their areas of expertise.  We have been down this path before, but we may have some guidance here as to how to qualify an otherwise unqualified expert.  But second, there is a discussion as to the use of literature and the burden of production of the same.  This is huge for many reasons.  I will share my thoughts at the end of the quoted passage, immediately below.

“In support of their separate motions for summary judgment, Eng, Delphic Surgical, and Gusset established their prima facie entitlement of judgment as a matter of law by submitting evidence demonstrating that they did not depart from accepted standards of medical practice by their failure to recommend adjuvant therapy after the decedent’s surgery, failure to obtain his informed consent for foregoing adjuvant therapy, and failure to refer him to an oncologist. Their submissions included, inter alia, evidence that the clinical practice guidelines of the American Society of Clinical Oncology in 2002 did not support the use of adjuvant therapy for stage II colon cancer. In opposition, the plaintiffs failed to raise a triable issue of fact.

The plaintiffs contend that they were not required to show that clinical practice guidelines required the recommendation of chemotherapy, since clinical practice guidelines “are merely one method of informing the opinion of a qualified medical expert.” Although, in general, evidence of guidelines is not conclusive, and such evidence is not a necessary element of a plaintiff’s proof (see Hinlicky v Dreyfuss, 6 NY3d 636, 645, n5), in this case, the plaintiffs’ experts relied on guidelines.

The plaintiffs’ surgical expert claimed that, since 2000, the American Society of Clinical Oncology recommended chemotherapy for stage II patients with at least one poor prognostic indicator. Since the surgical expert’s specialty was laparoscopic, trauma, and general surgery—not cancer surgery or gastrointestinal surgery—the expert was required to lay a foundation in support of the reliability of the opinions rendered (see Mustello v Berg, 44 AD3d 1018, 1019), and could not rely upon conclusory assertions (see Romano v Stanley, 90 NY2d 444, 452). Since the foundation for the expert’s opinion was the guidelines cited, the validity of the expert’s opinion was dependent on the validity of those guidelines. The plaintiffs’ second expert—an oncologist—also referred to guidelines—this time of the “American Cancer Association [sic]”—which were not produced, and which the expert for Eng and Delphic Surgical claimed did not exist. Therefore, the guidelines of the American Society of Clinical Oncology were crucial to the plaintiffs’ position.

The purported guidelines of the American Society of Clinical Oncology for 2000 are not in the record. The recommendations of the American Society of Clinical Oncology for 2004 are in the record. Those recommendations stated that even in 2004, there was no definite consensus that adjuvant therapy was warranted for high-risk stage II colon cancer patients. Thus, there was no proper basis for the opinion that failure to recommend adjuvant therapy in 2002 was a departure from accepted medical practice.

The plaintiffs further contend that a Frye hearing (see Frye v United States, 293 F 1013 [DC Cir]), would be appropriate to ascertain the reliability of the plaintiffs’ evidence that chemotherapy should have been recommended. A Frye hearing is used to determine whether the expert’s methodologies in arriving at a conclusion are accepted as reliable within the scientific [*4]community; for example, whether the expert’s methodologies in determining the stage of the patient’s cancer are sufficiently accepted as reliable to permit the expert to testify as to his or her results (see Page v Marusich, 51 AD3d 1201). However, where, as here, the challenge is to the reliability of the expert’s conclusions, not whether the expert’s methodologies or deductions are based upon principles that are sufficiently established to have gained general acceptance as reliable, there is no basis for a Frye hearing (see Lipschitz v Stein, 65 AD3d 573, 576; Nonnon v City of New York, 32 AD3d 91, 103, affd 9 NY3d 825).”

My observations:

I have to state that the non no-fault cases that the Appellate Divisions have recently decided have had a more profound impact on no-fault practice in the last six (6) months than the no-fault cases that have been decided.  This case may have extensive ramifications within the no-fault realm, because this case involves the use of literature in the molding of a peer reviewer’s determination as to the necessity of a given service.

We saw the other day in Progressive Med., Inc. v Allstate Ins. Co., 2010 NY Slip Op 50219(U)(App. Term 2d Dept. 2010), how it was important that the literature be probative of the underlying issue or the testimony will be of no significance.  The Appellate Term in Progressive agreed with the District Court that the literature the expert cited to was of no value where the peer doctor “[r]eferred to a report from his board- certifying academy regarding one type of equipment at issue….[of which] the reliability of [the study underlying the report] had not been established.”

What we see here, however, is a complete 180 as to the role of medical literature in medical malpractice and no-fault cases.  Not only are medical treatises permitted to be discussed on direct examination of an expert witness, but the failure to properly cite to a probative study or piece of literature will torpedo a case.  Ellis, I think, represents are marked shift in this arena.  Of course, this was a trend you have seen in my prior posts on this blog.

This brings us to the next issue, and this is somewhat related to the Progressive case.  Must the literature, which we are now going to allow to be used as part of an expert’s direct examination, be produced?  The answer looks to be a qualified no.  Why qualified?  Because of the following line in Ellis: “The plaintiffs’ second expert—an oncologist—also referred to guidelines—this time of the “American Cancer Association [sic]”—which were not produced, and which the expert for Eng and Delphic Surgicalclaimed did not exist. Therefore, the guidelines of the American Society of Clinical Oncology were crucial to the plaintiffs’ position .

A court will thus presume that the cited to treatise exists and is reliable, unless an opposing expert says that the treatise does not exist or does not support the proffering expert’s theory.

In a standard no-fault trial where the plaintiff does not bring a rebuttal witness, this case may be of minimal utility to the plaintiff.  Should the plaintiff have an expert and the cited to literature appears not to exist or to be improperly analyzed, then the plaintiff may be able to force defendant’s expert to make an offer of proof midstream during his testimony viz a vi producing the quoted literature, lest the proffering expert’s testimony be stricken from the record.

What really interests me is how this case will play out in the arbitration front.  Various Applicant attorneys argue that the Respondent insurance carrier is under an affirmative duty to produce cited to medical literature, in response to Applicant’s so-called discovery demands.  I have never subscribed to the theory that the Respondent must produce the literature since it may be found on the internet.  Thus, it would seem that an Applicant will need an affidavit from his own expert saying the literature does not exist or does not stand for the proposition it espouses in order to force Respondent to produce the same.

As it relates to experts of an improper specialty offering an opinion outside the scope of their expertise, it looks like familiarity with relevant literature may assist in allowing a basic foundation to be laid.  But this case is not clear, and one would be asking for trouble to have, for example, an internist commenting on a surgeon’s records or a physiatrist commenting on a chiropractor’s records.

The Appellate Term finds the defense of lack of medical necessity was not substantiated

Progressive Med., Inc. v Allstate Ins. Co., 2010 NY Slip Op 50219(U)(App. Term 2d Dept. 2010):

“On cross-examination, the witness testified that he relied on several out-of-court documents in reaching his conclusion. He also testified that, in his report, he referred to a report from his board- certifying academy regarding one type of equipment at issue. Although plaintiff had previously stipulated to qualifying the witness as an expert, its attorney subsequently objected to this testimony on the ground that it was based upon records that were not in evidence and upon a study, the reliability of which had not been established. The court sustained the objection and ordered the testimony stricken.

“Based upon the court’s statements that the only issue for trial was medical necessity and that a claim form had been submitted and timely denied, as well as defendant’s presentation of its witness instead of moving for judgment pursuant to CPLR 4401, we find that the parties agreed that the sole issue for trial was defendant’s defense of lack of medical necessity. The record [*2]reveals no basis, under the specific facts of this case, for the court’s finding that plaintiff was required to submit a claim form in order to establish, prima facie, “the health benefit’s medical necessity.”

On the other hand, on the scant record provided to this court, there is no basis to disturb the court’s decision to strike defendant’s witness’s testimony. Plaintiff advanced what was, in effect, a hearsay objection. Defendant failed to demonstrate either that the testimony did not rely on out-of-court documents for the truth of the matters stated therein, or that the documents were being relied upon for their truth but fell within an exception to the rule against hearsay. Consequently, we cannot say that it was an improvident exercise of discretion for the court to strike the testimony.”

It looks like the attorney for the defense failed to lay a proper foundation to allow the doctor to testify about the medical records.  What needed to be asked was: how the doctor received the records; what they represented; whether the assignor’s name was on the records; whether the date of loss on the records corresponded to when the accident occurred; whether the claim number on the documents matched the actual claim number;  whether there was other information that would correlate the documents to the assignor; and the veracity of the journal articles.

The courts in the realm of no-fault litigation will generally allow an expert to testify about the documents that purport to be those representing the treatment of the alleged assignor.  The only thing an attorney has to do is find some correlating link between the medical reports and the assignor.  That link is almost always in the reports.  If the link is not there, then look further – you should find it.  If you cannot find that link at all, then the doctor probably did not review the entire medical record, and this is rife with its own issues, none of which are good for the insurance carrier.

This case also asks the following question: how can a medical necessity summary judgment motion be made without annexing the medical records?  Presumably, the attached medical records allow for the inference that they represent the treatment notes of the alleged assignor.  Without those notes, it looks like a peer review by itself must fail on constraint of this case and the others I have previously discussed.

A physical therapist’s affidavit lacks probative value as to the rendering of a medical diagnosis

Howard v Espinosa, 2010 NY Slip Op 00759 (3d Dept. 2010)

This is yet another 5102(d) case.  But, there is a line in this case that I highlighted, which should interest some people out there, especially in light of the discussion that was herein presented on the topic of experts.

“The issue thus distills to whether plaintiffs’ submissions in opposition to the motion raise a triable issue of fact as to the existence of any serious injury related to the 2005 accident (see Lee v Laird, 66 AD3d 1302, 1303 [2009]). With respect to both the permanent consequential limitation and significant limitation categories, Supreme Court correctly concluded that plaintiff failed to submit any medical “quantitative or qualitative assessment to differentiate serious injuries from mild or moderate ones” (Clements v Lasher, 15 AD3d 712, 713 [2005]; see Paton v Weltman, 23 AD3d 895, 897 [2005]; John v Engel, 2 AD3d 1027, 1029 [2003]). Plaintiffs submitted the affidavit of a physical therapist, Steven Bassin, and rely on an independent medical examination conducted in December 2005 by physician Robert Sellig, both of whom reported limitations on plaintiff’s range of motion. Sellig also diagnosed plaintiff with preexisting cervical spondylosis, noted the new bulge at C-7, T-1 and opined that plaintiff’s condition was aggravated by the May 2005 accident. Plaintiff also relies on his own description of the physical limitations he experienced following the accident.

As Supreme Court noted, however, the limitations on plaintiff’s range of motion as reported by Sellig, which are comparable to those reported by Bassin immediately following the [*3]accident, are nearly identical to those taken by the Department of Veterans Affairs approximately eight months prior to the accident in question [FN1]. Further, although Sellig opined that plaintiff’s preexisting disease was aggravated by the 2005 accident, he does not compare plaintiff’s current complaints or limitations with those preexisting the accident or otherwise specify what injuries were caused by the 2005 accident (see Nowak v Breen, 55 AD3d at 1188). Indeed, Sellig never opines either that the C-7, T-1 bulge was caused by the accident or whether and how it might relate to plaintiff’s physical complaints (see June v Gonet, 298 AD2d 811, 812 [2002]). Evidence of the bulge alone, even if there were evidence of causation, would not be sufficient to sustain a claim of serious injury (see John v Engel, 2 AD3d at 1029).

To the extent that plaintiffs continue to rely on Bassin’s conclusion that, despite the fact that plaintiff’s loss of range of motion did not worsen immediately following the 2005 accident, it got progressively worse over the next two years and that this decline was causally related to the 2005 accident’s aggravation of his preexisting spinal stenosis and arthritis, it is misplaced. As Supreme Court properly noted, a physical therapist “cannot by definition diagnose or make prognos[e]s and is incompetent to determine the permanency or duration of a physical limitation” (Delaney v Lewis, 256 AD2d 895, 897 [1998]; see Brandt-Miller v McArdle, 21 AD3d 1152, 1154-1155 [2005]; Tornatore v Haggerty, 307 AD2d 522, 522-523 [2003]).”

Read the bolded portion of this opinion.  Thank you.

A physical therapist's affidavit lacks probative value as to the rendering of a medical diagnosis

Howard v Espinosa, 2010 NY Slip Op 00759 (3d Dept. 2010)

This is yet another 5102(d) case.  But, there is a line in this case that I highlighted, which should interest some people out there, especially in light of the discussion that was herein presented on the topic of experts.

“The issue thus distills to whether plaintiffs’ submissions in opposition to the motion raise a triable issue of fact as to the existence of any serious injury related to the 2005 accident (see Lee v Laird, 66 AD3d 1302, 1303 [2009]). With respect to both the permanent consequential limitation and significant limitation categories, Supreme Court correctly concluded that plaintiff failed to submit any medical “quantitative or qualitative assessment to differentiate serious injuries from mild or moderate ones” (Clements v Lasher, 15 AD3d 712, 713 [2005]; see Paton v Weltman, 23 AD3d 895, 897 [2005]; John v Engel, 2 AD3d 1027, 1029 [2003]). Plaintiffs submitted the affidavit of a physical therapist, Steven Bassin, and rely on an independent medical examination conducted in December 2005 by physician Robert Sellig, both of whom reported limitations on plaintiff’s range of motion. Sellig also diagnosed plaintiff with preexisting cervical spondylosis, noted the new bulge at C-7, T-1 and opined that plaintiff’s condition was aggravated by the May 2005 accident. Plaintiff also relies on his own description of the physical limitations he experienced following the accident.

As Supreme Court noted, however, the limitations on plaintiff’s range of motion as reported by Sellig, which are comparable to those reported by Bassin immediately following the [*3]accident, are nearly identical to those taken by the Department of Veterans Affairs approximately eight months prior to the accident in question [FN1]. Further, although Sellig opined that plaintiff’s preexisting disease was aggravated by the 2005 accident, he does not compare plaintiff’s current complaints or limitations with those preexisting the accident or otherwise specify what injuries were caused by the 2005 accident (see Nowak v Breen, 55 AD3d at 1188). Indeed, Sellig never opines either that the C-7, T-1 bulge was caused by the accident or whether and how it might relate to plaintiff’s physical complaints (see June v Gonet, 298 AD2d 811, 812 [2002]). Evidence of the bulge alone, even if there were evidence of causation, would not be sufficient to sustain a claim of serious injury (see John v Engel, 2 AD3d at 1029).

To the extent that plaintiffs continue to rely on Bassin’s conclusion that, despite the fact that plaintiff’s loss of range of motion did not worsen immediately following the 2005 accident, it got progressively worse over the next two years and that this decline was causally related to the 2005 accident’s aggravation of his preexisting spinal stenosis and arthritis, it is misplaced. As Supreme Court properly noted, a physical therapist “cannot by definition diagnose or make prognos[e]s and is incompetent to determine the permanency or duration of a physical limitation” (Delaney v Lewis, 256 AD2d 895, 897 [1998]; see Brandt-Miller v McArdle, 21 AD3d 1152, 1154-1155 [2005]; Tornatore v Haggerty, 307 AD2d 522, 522-523 [2003]).”

Read the bolded portion of this opinion.  Thank you.

More on expert opinions

I posted about the matter entitled People v Verrilli, 2010 NY Slip Op 00714 (2d Dept. 2010), involving the qualifications of certain experts on the evidence blog.  This issue has been recently discussed on this blog.  It would behoove the practitioner to familiarize himself or herself with this issue.

Affirmation of opposing expert sufficient to thwart summary judgment in a malpractice case

Plourd v Sidoti, 2010 NY Slip Op 00056 (3d Dept. 2010)

“Plaintiff thereafter commenced this action, alleging that the failure of the emergency room [*2]physician, defendant Louis Sidoti, to diagnose the fracture caused her unnecessary pain and led to the need for surgery….”

“[d]efendants met their initial burden of demonstrating a prima facie entitlement to summary judgment as a matter of law…. plaintiff submitted the affidavit of G. Richard Braen, a physician licensed to practice in New York who is board certified in internal medicine and currently employed in the field of emergency medicine. Initially, given that the alleged malpractice occurred in the context of emergency medicine, Braen’s board certification and his employment support an inference that his expert opinion was a reliable one, “and any alleged lack of skill or experience goes to the weight to be given to the opinion, not its admissibility” (Bell v Ellis Hosp., 50 AD3d at 1242; see Borawski v Huang, 34 AD3d 409, 410 [2006]).”

So in another case, an opposing expert’s affirmation will be sufficient to raise an issue of fact when the expert is of the same specialty as that of the moving expert.  Of course, the moving expert has to be of the correct specialty otherwise the burden will never shift to the non-movant to raise an issue of fact.

And, the lack of skill and experience merely goes to the weight of the evidence, provided a threshold showing is made that the expert is appropriately credentialed.

Proof that the physician was an internist is sufficient to allow the affirmation to be considered in oppposition to a summary judgment motion

One of the issues that regular readers of the blog know that I discuss is whether an affirmation or affidavit of a physician is sufficient to support or defeat a summary judgment motion.  The general rule is that an expert must be of the same specialty as the physician who performed the treatment being commented upon, or have a sufficient background or knowledge that would allow a court to infer that the affiant’s affirmation or affidavit should be accepted.

This appears to be the case in Ocasio-Gary v Lawrence Hosp., 2010 NY Slip Op 00003 (1st Dept. 2010), where the court observed the following:

“The trial court should not have rejected the expert’s opinion on the ground that the expert failed to expressly state that he or she possessed the requisite background and knowledge in emergency medicine to render an opinion. The expert, who is board certified in internal medicine, is qualified to render an opinion as to diagnosis and treatment with respect to the symptoms presented by the decedent. In contrast, the expert’s affirmation in Browder v New York City Health & Hosps. Corp. (37 AD3d 375 [2007]), cited by the trial court, failed to indicate either the expert’s specialty or that he or she possessed the requisite knowledge to furnish a reliable opinion.”

Dave Gottlieb over at the CPLR blog also discusses this issue.

The Appellate Division discusses how an expert becomes comptent to testify about the standard of care in a specific area of practice

The Appellate Division, Second Department, in Shectman v Wilson 2009 NY Slip Op 09208 (2d Dept. 2009), observed the following:

“Here, the defendant physicians established their prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that their care and treatment of the plaintiffs did not depart from good and accepted medical practices. In opposition, the plaintiffs came forward with the affidavit of a physician, specializing in the fields of obstetrics and gynecology, who contested the opinions of the defendants’ respective experts concerning the proximate cause of the infant plaintiff’s developmental disabilities. The affidavit of the plaintiffs’ expert did not mention whether the physician had any specific training or expertise in pediatrics, psychiatry, or particularized knowledge as to the relevant disabilities of the infant plaintiff. Moreover, the affidavit did not indicate that the physician had familiarized himself with the relevant literature or otherwise set forth how he was, or became, familiar with the applicable standards of care in this specialized area of practice. 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'” (Behar v Coren, 21 AD3d 1045, 1046-1047, quoting Postlethwaite v United Health Servs. Hosps., 5 AD3d 892, 895). 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 (see Geffner v North Shore Univ. Hosp., 57 AD3d 839, 841; Bjorke v Rubenstein, 53 AD3d 519, 520; Glazer v Lee, 51 AD3d 970, 971; Mustello v Berg, 44 AD3d 1018, 1019; Behar v Coren, 21 AD3d at 1046-1047; Nangano v Mount Sinai Hosp., 305 AD2d 473, 474). In the circumstances of this case, as the plaintiffs’ expert failed to lay the requisite foundation for his asserted familiarity with pediatric developmental disabilities, his affidavit was of no probative value. Accordingly, the plaintiffs failed to raise a triable issue of fact, and the Supreme Court improperly denied that branch of Wilson’s motion which was for summary judgment dismissing the complaint insofar as asserted against him and Duncan’s motion for summary judgment dismissing the complaint insofar as asserted against her.”

Med Mal and Procedural case

This is similar to the cases where a peer doctor fails to review sufficient documentation before arriving at an opinion.

“Lack of Foundation to form an expert opinion”

Luu v Paskowski
2008 NY Slip Op 10135 (2d Dept. 2008)

The pertinent portion of this case is as follows:

“[Plaintiff’s expert] Zola did not refer to any part of the hospital records, and did not state when the blood loss occurred or how it caused the small bowel obstruction and hematoma. Zola made no reference to any of the hospital records in his affidavit, and did not state that he had reviewed the pleadings and depositions. Zola’s affidavit was conclusory and lacked a foundation (see Thompson v Orner, 36 AD3d at 792; Furey v Kraft, 27 AD3d at 418).

Procedural – default viz a vi failure to obtain an adjournment on the record

Diamond v Diamante
2008 NY Slip Op 10117 (2d Dept. 2008)

“plaintiffs and their attorney, nonparty James D. Reddy, appeal from a judgmentwhich, inter alia, upon the denial of the plaintiffs’ application for an adjournment, is in favor of the defendants and against the plaintiff, dismissing the complaint, and against the nonparty James D. Reddy awarding costs and imposing sanctions.”

“Where, as here, the order appealed from was made upon the plaintiffs’ default, “review is limited to matters which were the subject of contest below” (Matter of Constance P. v Avraam G., 27 AD3d 754, 755 [internal quotations marks omitted]; see James v Powell, 19 NY2d 249, 256 n 3; Wexler v Wexler, 34 AD3d 458, 459; Brown v Data Communications, 236 AD2d 499). [*2]Accordingly, in this case, review is limited to the denial of the plaintiffs’ request for an adjournment, on the appeal by the plaintiffs, and the award of costs and imposition of sanctions against nonparty James D. Reddy, on the appeal by the nonparty (see Matter of Paulino v Camacho, 36 AD3d 821, 822; Tun v Aw, 10 AD3d 651, 652).

Turning to the merits, “[t]he granting of an adjournment for any purpose is a matter resting within the sound discretion of the trial court” (Matter of Anthony M., 63 NY2d 270, 283; see Matter of Steven B., 6 NY3d 888, 889; Matter of Sicurella v Embro, 31 AD3d 651, lv denied 7 NY3d 717), and its determination will not be disturbed absent an improvident exercise of that discretion (see Davidson v Davidson, 54 AD3d 988). “In making such a determination, the court must undertake a balanced consideration of all relevant factors” (Matter of Sicurella v Embro, 31 AD3d at 651), including “the merit or lack of merit of the action, extent of the delay,” the number of adjournments granted, the “lack of intent to deliberately default or abandon the action” and the length of the pendency of the proceeding (Belsky v Lowell, 117 AD2d 575, 576; see Matter of Claburn v Claburn, 128 AD2d 937, 938).”

The future is bright for medical necessity msj's

Again, this is not necessarily a pure no-fault post. However, this is a no-fault post by analogy. I came across a doosy of a decision and order from the Appellate Division, Second Department. It kind of cuts both ways on two different issues. Hopefully you will see where I am going with this, after you see the excepts I am publishing.

Geffner v North Shore Univ. Hosp.
2008 NY Slip Op 10124 (2d Dept. 2008)

To support her allegations [of medical malpractice and in opposition to Defendant’s motion for summary judgment], the plaintiff submitted the expert affidavit of Charles Phillips, a physician certified in emergency medicine. Dr. Phillips’ affidavit was of no probative value, however, as it contained opinions outside his area of expertise and did not establish a foundation for his opinions (see Glazer v Choong-Hee Lee, 51 AD3d 970; Mustello v Berg, 44 AD3d 1018, 1018-1019; Behar v Coren, 21 AD3d 1045, 1046-1047)….

“Finally, the plaintiff submitted the expert affirmations of Howard C. Adelman, a physician certified in clinical pathology and cytopathology, which alleged that the defendant doctors misdiagnosed the decedent as suffering from myelodysplastic syndrome, acute myeloid leukemia, and adenocarcinoma. Dr. Adelman’s affirmations were insufficient to raise a triable issue of fact with respect to the alleged misdiagnoses since they failed to address the evidence relied upon by North Shore’s experts in rendering their opinions that the diagnoses were correct (see Germaine v Yu, 49 AD3d 685, 687; Fhima v Maimonides Med. Ctr., 269 AD2d 559, 560).

Issue #1: Doctors who give opinions outside their scope of expertise.

This is a problem, however, an accounting of their skills and expertise should get one of the trouble that was wrought in this cae

Issue #2: Failure to address movant’s proof.

Big problem in no-fault litigation.