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.
3 Responses
J.T. it seems like the citizens have given up a lot in return for prompt payment of medical bills. Although according to Montgomery the citizens need not get anything in return for a hosing.
But nevertheless I do believe that if done right certain of the no fault reforms could lead to a finding that 1)the coerced purchase of insurance from corporations in combination with 2) being stripped of your right to sue for what in your words amounts to a significant injury 3) and the denial of payment of medical bills on a whim wherein the citizen’s only recourse is 4) arbitration which, as you reported here and experienced, is the land of lawlessness and good luck with the appeal — well maybe that is just too much of a hosing.
Is that what you are alluding to.
Ray, your comment was edited for content and clarity. Your point is well taken. My point, and that of most people on both sides of the aisle, is that any reform that comes from Albany will probably be a wash. This case typifies what is at stake. The insurance companies are going to pay out these claims, either on the liability end or the PIP end.
My going joke is that my brethren and I are either going to continue doing no-fault (if there is no reform) or we will be doing more BI (if there is a reform viz watering down the threshold).
Also, I am impressed that you cited to my post about the lawlessness of arbitration, and how I feel I can get a better shake litigating these things. I forgot about about Mercury v. Healthmakers, and do not wish to be reminded.
Finally, I am not afraid of the rules of evidence. I embrace it because I think there is so much out there for the defense bar to use. And god invented the Appellate Courts when things do not go your way.
Whatever you edited out it worked. I never wrote so well. Could you be my editor. Was there invective. Curses. Give me some tips. Oh yeah I found some reason to attack a brother Plaintiff’s attorney. Thanks.