First as to yay – an “APPEAL AND OPINION” from the First Department
Delfino v Luzon
2009 NY Slip Op 00317 (1st Dept. 2009)
The defense radiologist’s review of an MRI film of plaintiff’s left shoulder, taken 17 days after the accident, showed normal osseous structures, labrum, deltoid muscle, and biceps tendon, and no rotator cuff [*2]injury, tendinitis, osteochondral defect or fracture. There was some fluid in the acromioclavicular joint, which the radiologist believed would “resolve without intervention due to the absence of any ligamentous, osseous, or tendinous etiology.” An MRI film of plaintiff’s lumbar spine, taken six weeks after the accident, was normal, other than dessication and bulging at the L5 transitional S1 vertebral level, which resulted from a condition with which plaintiff was born. The radiologist stated that the dessication could not have occurred during the interval between the accident and the examination, but rather was “indicative of pre-existing, degenerative change likely associated with the congenital variant.” Similarly, the bulging was “related to ligamentous laxity” and was “degenerative in nature.” Notably, there were no osseous, ligamentous, or intervertebral disc changes of recent or post-traumatic origin.
(Plaintiff expert does not address degenration – only 5102[d] factors – i.e., normal ROM, etc.)
Now this is where Plaintiff went wrong:
“More importantly, plaintiff’s expert did not even address, let alone rebut, the objectively substantiated findings of defendant’s experts that plaintiff’s conditions are congenital and degenerative, and therefore did not raise a triable issue of fact as to causation (see Mullings v Huntwork, 26 AD3d 214, 216 [2006]). In addition, plaintiff’s expert did not attempt to reconcile his conclusory assertion that the shoulder surgery was necessitated by accident-related injuries with the MRI report describing the shoulder as “unremarkable” other than “fluid and/or soft tissue inflammation surrounding the acromioclavicular joint.””
Now as to Nay – an “APPEAL AND OPINION” from the Second Department
Allstate’s counsel argued, without a supporting affidavit from a medical expert, that these code-defined conditions could not have been related to the automobile accident or, at least, raised an issue of fact as to whether the conditions arose from the accident.
This Court determined that in applying Central General Hospital, “the question of whether an injury was entirely preexisting (i.e., not covered) or was in whole or in part the result of an insured accident (i.e., covered) is hybrid in nature, and cannot be resolved without recourse to the medical facts” (id. at 19 [emphasis added]).
While the existence of the diagnostic codes and the clinical definitions of Hafford’s treated medical conditions may not be in dispute, the question of whether such conditions were wholly unrelated to his automobile accident or not exacerbated by the accident “cannot be resolved without recourse to medical facts” (Mount Sinai Hosp. v Triboro Coach, 263 AD2d at 19). Here, Allstate’s counsel, in his affirmation, failed to set forth any basis on which to conclude that he was a medical expert qualified to render an opinion on causality (see Contacare, Inc. v CIBA-Geigy Corp., 49 AD3d 1215; Hofmann v Toys R Us, NY Ltd. Partnership, 272 AD2d 296). No physician or other medical expert affidavit was included in Allstate’s submissions to explain the codes, the diagnoses and, most importantly, the causation or exacerbation, or lack of causation or exacerbation of conditions, in relation to the subject automobile accident. The mere deciphered codes, in and of themselves, are insufficient.
The remaining coded conditions, which on their face might appear unrelated to an automobile accident, could conceivably represent exacerbations of pre-existing conditions in the absence of expert medical opinion attesting otherwise. Exacerbations of pre-existing conditions are covered by the No-Fault Law (see Wolf v Holyoke Mut. Ins. Co., 3 AD3d 660, 660-661; Mount Sinai Hosp. v Triboro Coach, 263 AD2d at 18).
Allstate’s submissions therefore suffer from an inescapable paradox. If the diagnostic codes pertain to conditions unrelated to Hafford’s accident, Allstate was required to submit an affidavit from a medical expert (see Mount Sinai Hosp. v Triboro Coach, 263 AD2d at 19). If, on the other hand, the diagnostic codes represent conditions related to the accident, then Allstate was required to either pay the no-fault claim, or deny payment on other grounds, within 30 days of receiving the demand.
So here you go: You need an affidavit based upon the medical facts to prima facie demonstrate lack of causation. In opposition to a properly supported motion, you need an equally specific affidavit.
