Gaps in treatment and the need for contemporaneous treatment

Understanding Treatment Gaps in New York Personal Injury Cases

Treatment gaps can significantly impact personal injury cases in New York. The recent First Department decision in Jackson v Doe, 2019 NY Slip Op 04765 (1st Dept. 2019) demonstrates how delayed or interrupted medical treatment can undermine even legitimate injury claims.

This case highlights critical differences between First and Second Department approaches to treatment gaps, with significant implications for personal injury cases throughout New York and Long Island.

The Jackson Case: Treatment Gaps Defeat Serious Injury Claims

In Jackson, the defendant successfully challenged the plaintiff’s serious injury claim by pointing to several problematic gaps in medical treatment:

Key Factual Issues

• Plaintiff returned to work as a personal trainer within two months
• Only three months of physical therapy were received
• No treatment sought after November 2014 lumbar procedure
• Two separate two-year gaps in treatment
• First medical examination occurred six months after the accident

The court found these facts defeated both the 90/180-day claim and demonstrated that injuries were minor rather than serious.

Contemporaneous Treatment Requirements

The First Department’s decision emphasizes the critical importance of seeking medical treatment immediately after an accident:

Causation Issues

“In the absence of any admissible evidence of contemporaneous, post-accident treatment or evaluation of his alleged injuries, plaintiff failed to raise an issue of fact as to whether his conditions were causally related to the accident.”

This ruling creates a high bar for establishing causation when treatment is delayed, particularly in cases involving:

• Pre-existing conditions
• Degenerative conditions that worsen over time
• Soft tissue injuries without objective findings
• Psychiatric or psychological injuries

First vs. Second Department Approaches

The Jackson decision highlights significant differences in how New York’s appellate departments treat treatment gaps:

First Department (Stricter Standard)

• Requires explanation of treatment gaps
• Emphasizes need for contemporaneous treatment
• Views gaps as evidence against serious injury
• Places burden on plaintiff to explain delays

Second Department (More Lenient)

• Treatment gaps irrelevant absent prima facie proof of lack of causation
• Does not require contemporaneous treatment (citing Perl)
• More plaintiff-friendly approach overall
• Focuses on objective medical evidence rather than timing

Strategic Implications for Personal Injury Cases

These jurisdictional differences require careful strategic planning:

Immediate Post-Accident Actions

In all New York personal injury cases, but especially those in First Department counties, immediate medical attention is crucial:

• Emergency room evaluation when warranted
• Prompt follow-up with primary care physician
• Referrals to appropriate specialists
• Documentation of all symptoms and complaints
• Consistent treatment patterns

Explaining Treatment Gaps

When gaps occur, they must be adequately explained:

• Financial hardship preventing treatment
• Relocation or travel issues
• Physician recommendations for conservative treatment
• Insurance authorization delays
• Family emergencies or personal circumstances

Common Causes of Treatment Gaps

Understanding why treatment gaps occur can help prevent them:

Insurance-Related Issues

• No-fault benefit exhaustion
• Authorization delays for specialized care
• Network provider limitations
• Coverage disputes

Economic Factors

• Loss of income due to injury
• High deductibles or copayments
• Lack of health insurance
• Transportation costs

Medical Factors

• Physician recommendations for rest
• Trial periods off treatment
• Surgery scheduling delays
• Recovery periods between treatments

Best Practices for Avoiding Treatment Gap Issues

Injured parties and their attorneys should implement these practices:

Documentation Strategies

• Maintain detailed injury diaries
• Document all symptoms and limitations
• Keep records of all treatment attempts
• Save communications about treatment delays

Alternative Treatment Options

When traditional treatment is unavailable:

• Seek second opinions
• Consider different treatment modalities
• Utilize telehealth options when appropriate
• Maintain contact with treating physicians

Frequently Asked Questions About Treatment Gaps

Will a gap in treatment automatically defeat my personal injury case?

Not necessarily, but it can significantly weaken your case, especially in First Department counties. The key is having valid explanations for any gaps and maintaining some level of medical documentation throughout your recovery.

How long is too long for a treatment gap?

There’s no bright-line rule, but gaps of several months or more require strong explanations. The Jackson case involved two separate two-year gaps, which proved fatal to the plaintiff’s case.

What should I do if I can’t afford continued treatment?

Document your financial situation and explore alternatives like payment plans, charity care programs, or different providers. The key is showing you wanted to continue treatment but were prevented by circumstances beyond your control.

Can I restart treatment after a long gap?

Yes, but you’ll need to explain the gap and may face challenges establishing that ongoing problems are related to the original accident rather than intervening causes.

Do different types of injuries have different requirements for continuous treatment?

Yes. Acute injuries generally require more immediate and continuous treatment, while chronic conditions may have natural fluctuations in treatment intensity. The type and severity of your injury will influence how courts view treatment patterns.

If you’ve been injured in an accident in New York or Long Island, don’t let treatment gaps undermine your recovery. Our experienced legal team understands how to protect your case from the start and can help explain any unavoidable gaps in care. Call 516-750-0595 for a free consultation.

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