Jun Suk Seo v Walsh, 2011 NY Slip Op 01619 (2d Dept. 2011)
This is the big decision of the week as far as I am concerned.
The cases involved two accidents and the allegation that the injuries of the second accident were pre-existing. The issue presented involved whether the discectomy surgery caused the serious injury thereshold to be breached. The case went to a jury verdict, which ruled that the injuries were either “not serious” or “causally related” to the subject accident. The post-trial motion to vacate the jury verdict was denied.
The Appellate Division reversed.
The reason for the holding is quite surprising: “Significantly, none of the defendant’s witnesses rebutted the plaintiff’s showing that he underwent a discectomy, or provided any testimony that the discectomy was unnecessary.”
Is lack of medical necessity part of an defendant’s case in defeating a 5102(d) action at trial?
2 Responses
The discectomy is unimpeached evidence of serious injury.
Defendant’s expert also created the issue regarding med necess. by asserting that the herniations were really merely “bulges,” which is pretty irrelevant given the point that the patient had this surgery on the herniations, necessarily resulting in perm reduction in ROM.
Wouldn’t the reverse be true? If there is a BI trial or Arb on the issue of serious injury, where the “serious injury” involved a surgical procedure, then wouldn’t a finding of lack of serious injury mean that the procedure was not necessary? It is just the corollary of this principle.