5102(d) litigation: Plaintiff’s own records non-suit him

Khanfour v Nayem, 2017 NY Slip Op 01637 (1st Dept. 2017)

The prior medical conditions of Plaintiff’s looking to beat the threshold get it their way, many times.  This case is a great example of causal relationship gone awry

Cervical spine

“However, plaintiff’s earlier treating physician acknowledged that plaintiff’s own X-ray report revealed multilevel “disc disease” and “bilateral foraminal impingement due to foraminal osteophytes.” Since plaintiff’s own medical records provided evidence of preexisting degenerative changes, his pain management specialist’s conclusory opinion, lacking any medical basis, was insufficient to raise an issue of fact since it failed to explain how the accident, rather than the preexisting disc disease and osteophytes, could have been the cause of plaintiff’s cervical spine condition”

Lumbar spine

However, plaintiff’s postaccident treatment records show that he had normal or near normal range of motion within two months after the accident, which is insufficient to support a serious injury claim (see Gaddy v Eyler, 79 NY2d 955 ). Three years later, plaintiff’s pain management specialist found arguably significant limitations in [*2]lumbar spine range of motion, but failed to reconcile his findings with the earlier conflicting findings, and defendants are therefore entitled to summary judgement.

As to the lumbar spine, this actually conflicts (somewhat) with the no-fault case of Huntington Med. Plaza, P.C. v. Travelers Indem. Co., 43 Misc. 3d 129(A) (App. Term 2d Dept. 2014): “As the Civil Court stated, one of those doctors specifically noted that a person’s condition can “wax and wane” after a motor vehicle accident and that, therefore, a finding that the treatments at issue in the prior cases were not medically necessary does not conclusively prove that the treatments at issue in this case were not medically necessary.”

The analogy being that if the Claimant is deemed fine, there needs to be more of an explanation then “good days and bad days” to escape the finding of lack of causation (assuming resolved injuries).  I never liked Huntinton/Travelers for the reason that once its prima facie proven that the injury is resolved, the “good day/bad day” analogy is weak.

Related Articles

• Why Conclusory Affidavits Fail: Building Strong Opposition to Medical Necessity Summary Judgment Motions
• An IME doctor must offer an explanation why he believes a Claimant’s diminished range of motion is self restricted
• Medical Necessity in No-Fault Insurance: Understanding the First Department’s Victory for Insurance Carriers
• A prima facie case of medical necessity?
• New York No-Fault Insurance Law