Cessation of treatment/Pre-existing injuries/Commentary

Latus and Vila concern unexplained treatment histories and medical proof on serious-injury motions. They do not require a patient to keep receiving unnecessary care simply to preserve a lawsuit.

Last reviewed: September 2026.

Legal Update (September 2026): Laws of 2026, chapter 58, Part EE sections 1 and 4 removed the 90/180-day category for actions and proceedings commenced on or after May 26, 2026; Latus and Vila remain historical illustrations of the medical and treatment-gap records they addressed.

What the two 2018 decisions decided

In Latus v Ishtarq, 159 AD3d 433 (1st Dept 2018), the records showed resolved findings, treatment ending after five months and prior conditions that the opposing physician did not adequately address. The plaintiff’s explanation that no-fault benefits had ended did not persuade the court given his acknowledged private coverage. Dismissal was affirmed. The cross-motion was not late, but failed on its merits.

In Vila v Foxglove Taxi Corp., 159 AD3d 431 (1st Dept 2018), the plaintiff’s affidavit conflicted with his deposition about why treatment stopped. An unexplained four-year interval and the medical proof also undermined the claim. Dismissal was affirmed on March 1, 2018, the same day as Latus.

A real explanation, not a deposition script

Pommells v Perez, 4 NY3d 566 (2005) requires a reasonable explanation for stopping treatment, not needless treatment. In its companion Brown case, the treating physician explained that further therapy would be palliative and prescribed home exercises; the claim survived.

A treating professional should guide treatment decisions. In testimony, give the actual reason treatment stopped; a convenient explanation borrowed from a case is no substitute. The lien, assignment and ERISA questions in Jason’s historical comment below were not decided in Latus or Vila.

Jason’s original comment

Jason’s original 2018 commentary follows. His policy criticism and suggested lien, assignment and ERISA strategies are historical observations, not rulings in these cases. The passage about deposition answers is not a script: testimony must be truthful, and treatment decisions require individual medical advice.

Here is some context to this post.  Putting aside the fact that I try plaintiff and defense personal injury cases, I got a phone call today on a no-fault matter.  Injured person is cut off and has his benefits paid for by major medical.  Major medical asserts a lien (the validity is questionable although carrier says it is a self-funded Erisa plan.  Colloquially, I call BS.  Legally, I say you cannot prove this).  Side note: I went to a CLE years ago where I learned that no policy is truly fully self-funded.  The devil is in the details.  Anyway, PI firm settles a minimal policy case with Liability carrier.  Now, PI firm brings an OSC to join the major medial carrier and the no-fault carrier in an attempt to void lien.

Questions to be asked:

(1) Why did PI plaintiff continue treatment despite lien issue and no-fault cut off?  Answer: see cases above.

(2) Why did PI plaintiff not treat with no-fault or continue the treatment on a lien?  Answer: Many medical providers refuse to treat on lien or to allow more than 3-months post IME treatment despite ability to arbitrate.  Cash flow issues for providers pre-ordain these results.

(3) What should PI Plaintiff do?  Probably should either void lien through OSC or pay out lien and then file suit against no-fault carrier.

(3a) How about AOBs that were issued? Prevailing case law would appear to discharge AOB through conduct, i.e., paying for treatment.

(3b) But Jason, the bills were paid by a third party, how can we file suit against no-fault carrier?  Answer: Todaro v. Geico.  Google it.

But what fueled questions 1-3(b)?  The above line of cases.  In my opinion, the cessation of treatment issue involves legislation from the bench and should be statutorily killed.  It is a factor to determine the severity of injury and perhaps it is a factor for a jury to determine whether or not the injury was “serious”.  But why is it a sin qua non of whether a cause of action lies?  It is beyond arbitrary.  All you have to do is tell the  interlocutor at deposition that you stopped treating because the doctor said no further treatment would help  and the injury is permanent.

Should you tell them at deposition that you stopped treating because no-fault benefits were cut off,  then we go into issues of whether (a) you could afford to pay for the care, (b) whether major medical would cover or (c) whether medicaid/medicare would cover.  If you continue treatment with the above-sources, you save you cause of action but now have grief at the end.  If you stop treatment despite above, you are non-suited.

I shall go on record.  The state of law is just absurd and internally inconsistent.  Why should the ability to pay for treatment render “speculative as to the permanency, significance, and causation of the claimed injuries ”  No, I am not writing this at the behest of the NYSTLA.   I think this legal fiction breeds more dysfunction in an already  broken tort system.

Connect to the Encyclopedia

See the pre-existing injury and causation encyclopedia hub for the topic’s case directory and statutory update.

• Goodwin: prior asymptomatic condition and measured restrictions
• Bobbio: missing medical support for aggravation
• Valentin: unanswered degeneration in the medical records
• Grant: competing MRI-based causal explanations

For review of a particular injury or no-fault dispute, contact the office.