Key Takeaway
Court case examines objective medical tests for proving continuing disability in personal injury cases, including EMG tests, straight leg tests, and muscle spasm documentation.
New York’s no-fault insurance system requires injured parties to meet specific thresholds to pursue personal injury claims beyond basic economic losses. One critical element in these cases involves demonstrating “objective signs” of continuing disability through medical evidence. The distinction between subjective complaints and objective findings can make or break a case.
The Appellate Division’s approach to categorizing certain medical tests as “objective as a matter of law” creates interesting dynamics in personal injury litigation. This classification affects how courts evaluate evidence and can significantly impact case outcomes, particularly when contemporaneous medical records support or contradict these findings.
Understanding which diagnostic tests courts consider objective versus subjective is crucial for both plaintiffs and defendants in personal injury cases. The legal system’s treatment of medical evidence continues to evolve, creating strategic considerations for attorneys on both sides.
Jason Tenenbaum’s Analysis:
Harrity v Leone, 2012 NY Slip Op 01933 (4th Dept. 2012)
“Plaintiff, however, raised an issue of fact with respect to those two categories by submitting the affidavit of her treating physician, who outlined the objective medical evidence of plaintiff’s injury in those two categories, including a positive EMG test indicating acute bilateral radiculopathy at the L5 nerve root (see Frizzell v Giannetti, 34 AD3d 1202, 1203), positive straight leg tests (see id.; see also Lavali v Lavali, 89 AD3d 574, 575), positive Patrick tests (see Parczewski v Leone, 14 Misc 3d 1218 , 2003 NY Slip Op 50065, *2 ; see also Navedo v Jaime, 32 AD3d 788, 788), and notations of muscle spasms and trigger points (see Pagels v P.V.S. Chems., Inc., 266 AD2d 819, 819)”
I find it ever so amusing, if not a tad ingenuous, when the Appellate Divisions decide that certain “tests” are objective as a matter of law. It probably works well as a defense attorney in an IME doctor v. plaintiff hired gun case. It obviously is lethal to a defense attorney in a BI case. Still, you have to wonder.
Key Takeaway
Courts recognize specific diagnostic tests as “objective as a matter of law,” including EMG tests, straight leg tests, Patrick tests, and documentation of muscle spasms. This legal classification creates strategic advantages and challenges depending on which side of a personal injury case you represent, fundamentally affecting how medical evidence is evaluated in threshold determinations.
