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

Physical Therapist Expert Testimony Limitations in Personal Injury Cases

In New York’s personal injury litigation landscape, understanding the scope and limitations of expert testimony is crucial for both plaintiff and defense attorneys. For legal practitioners throughout Long Island and New York City, the rules governing which healthcare professionals can provide certain types of expert opinions have significant implications for case strategy and outcomes.

Case Analysis: Howard v Espinosa – Physical Therapist Testimony Limitations

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 Standard for Proving Serious Injury

“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 ). 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 ; see Paton v Weltman, 23 AD3d 895, 897 ; John v Engel, 2 AD3d 1027, 1029 ). 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.

The Court’s Analysis of Physical Therapist Testimony

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 . 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 ). 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 prognoss and is incompetent to determine the permanency or duration of a physical limitation” (Delaney v Lewis, 256 AD2d 895, 897 ; see Brandt-Miller v McArdle, 21 AD3d 1152, 1154-1155 ; Tornatore v Haggerty, 307 AD2d 522, 522-523 ).”

Read the bolded portion of this opinion. Thank you.

Understanding the Scope of Physical Therapist Expert Testimony

The Howard v Espinosa decision provides crucial guidance for attorneys handling personal injury cases throughout New York. The court’s analysis of physical therapist testimony limitations has significant implications for case preparation and expert witness strategy.

What Physical Therapists Cannot Do in Legal Proceedings

According to the court’s analysis, physical therapists face specific limitations when providing expert testimony in personal injury cases:

• Cannot provide medical diagnoses – Physical therapists are not licensed physicians and cannot diagnose medical conditions
• Cannot make prognoses – They cannot offer opinions on the future course of a medical condition
• Cannot determine permanency – Physical therapists are not qualified to opine on whether limitations are permanent
• Cannot assess duration of limitations – They cannot provide expert opinions on how long physical limitations will last

What Physical Therapists Can Provide

Despite these limitations, physical therapists can still provide valuable testimony in personal injury cases within their scope of practice:

• Objective range of motion measurements
• Functional capacity evaluations
• Treatment records and progress notes
• Observations about patient’s physical capabilities
• Rehabilitation recommendations within their scope

Strategic Implications for Long Island and NYC Practitioners

For attorneys practicing personal injury law in the New York metropolitan area, the Howard decision underscores the importance of proper expert witness selection and testimony scope.

For Plaintiff Attorneys

When building a case for serious injury under Insurance Law § 5102(d), plaintiff’s counsel should consider:

• Physician testimony is essential – Physical therapist testimony alone cannot establish permanency or duration of limitations
• Causation must be clearly established – Medical experts must specifically connect injuries to the accident in question
• Pre-existing conditions require careful analysis – Experts must differentiate accident-related limitations from pre-existing conditions
• Quantitative assessments are crucial – Courts require objective measurements to differentiate serious injuries from mild or moderate ones

For Defense Attorneys

Defense counsel can use the Howard decision to challenge plaintiff’s expert testimony by:

• Identifying when physical therapists exceed their scope of practice in testimony
• Highlighting lack of physician testimony on permanency and causation
• Demonstrating that pre-existing conditions account for current limitations
• Challenging the absence of quantitative assessments differentiating injury severity

The Broader Context of Expert Testimony in New York Personal Injury Law

The restrictions on physical therapist testimony reflect broader principles governing expert qualifications in New York courts. Understanding these principles is essential for effective case preparation and courtroom strategy.

Professional Licensing and Scope of Practice

New York courts consistently enforce the principle that expert witnesses must stay within their professional scope of practice. This means that each healthcare professional can only testify about matters within their licensed competency.

The Medical Diagnosis Requirement

In serious injury cases, courts require medical diagnoses from licensed physicians. Physical therapists, while highly skilled in their field, cannot provide the medical diagnoses necessary to establish serious injury under the Insurance Law.

Practical Applications for Case Preparation

For attorneys handling motor vehicle accident cases in Long Island and New York City, the Howard decision provides clear guidance on expert witness strategy.

Building a Strong Plaintiff’s Case

Successful serious injury claims require:

• Licensed physician testimony establishing medical diagnosis
• Clear causation analysis linking injuries to the specific accident
• Objective measurements demonstrating the severity of limitations
• Comparison between pre-accident and post-accident conditions
• Expert opinions on permanency and prognosis from qualified medical professionals

Effective Defense Strategies

Defense attorneys should scrutinize plaintiff’s expert testimony for:

• Physical therapists offering opinions beyond their scope
• Lack of physician testimony on key issues
• Insufficient differentiation from pre-existing conditions
• Absence of quantitative assessments
• Gaps in causation analysis

Frequently Asked Questions

Can physical therapists testify as expert witnesses in personal injury cases?

Yes, physical therapists can testify as expert witnesses, but their testimony is limited to their scope of practice. They cannot provide medical diagnoses, prognoses, or opinions on permanency of limitations.

What types of testimony can physical therapists provide?

Physical therapists can testify about range of motion measurements, functional capacity evaluations, treatment records, rehabilitation recommendations, and their observations about a patient’s physical capabilities.

Why can’t physical therapists diagnose medical conditions?

Physical therapists are licensed healthcare professionals, but they are not medical doctors. New York law restricts medical diagnoses to licensed physicians, and courts enforce these professional scope limitations in expert testimony.

What is required to prove permanency in a personal injury case?

To establish permanency of limitations, plaintiffs typically need testimony from a licensed physician who can provide medical diagnoses, prognoses, and opinions about the long-term effects of injuries.

How do pre-existing conditions affect serious injury claims?

When pre-existing conditions are present, medical experts must clearly differentiate between limitations caused by the accident and those that existed before the incident. Objective measurements and comparative analysis are essential.

Contact Our Personal Injury Legal Team

Understanding the nuances of expert testimony requirements in personal injury cases is crucial for successful outcomes. Whether you’re representing injured plaintiffs or defending insurance companies, our experienced legal team provides strategic guidance on expert witness selection and testimony preparation.

With extensive experience handling serious injury claims throughout Long Island and New York City, we understand the complex requirements for establishing or defending against claims under Insurance Law § 5102(d). Our team works with qualified medical experts who understand the legal standards for testimony in New York courts.

Don’t let expert testimony limitations compromise your case. Contact us today at 516-750-0595 to discuss your personal injury matter and ensure your expert witness strategy meets New York’s rigorous legal standards.

Related Articles

• Expert witness qualifications for medical sub-specialists in New York cases
• Expert competency requirements and medical literature in New York courts
• Foundation requirements for medical malpractice expert testimony
• How experts establish competency to testify about medical standards of care
• New York No-Fault Insurance Law

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Legal Update (February 2026): Since this 2010 post, New York’s no-fault insurance regulations under Insurance Law § 5102 have undergone multiple amendments, including updates to fee schedules, diagnostic procedures, and expert testimony standards. Additionally, appellate decisions may have further refined the scope of physical therapist testimony limitations in serious injury determinations. Practitioners should verify current regulatory provisions and recent case law developments when addressing expert testimony issues in no-fault and personal injury cases.