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This involves a case where the court granted defendant’s motion for summary judgment dismissing the plaintiff’s complaint for failure to prove that the latter suffered serious injury threshold requirement of Insurance Law Sec. 5102 (d).
Plaintiff from The Bronx alleged that a car accident occurred on September 15, 2002 at approximately 5:15 p.m. at the intersection of Carman Avenue and Choir Lane in the Town of Hempstead, New York. Plaintiff claimed that as a result thereof, she suffered serious injuries. At her oral examination before trial, the Plaintiff testified that she had a preexisting spinal injury to her lower back from another car accident in 1988. After being treated for the injuries from that accident, the Plaintiff continued treating with a chiropractor for occasional discomfort to her back, “as needed,” rather than having a set schedule of appointments. Following the subject accident, it was suggested by multiple doctors that the Plaintiff undergo surgery and/or physical therapy, but she declined and chose to continue seeing the chiropractor instead. The Plaintiff also declined pain medication immediately following the accident, preferring over the counter medication. But plaintiff admitted she had her first doctor visit for medical expert opinion after 18 months from the accident. Following the accident, Plaintiff testified to having trouble bending over, walking long distances, participating in her children’s activities, dancing, hiking and brushing her teeth. Plaintiff claimed that she had some occasional discomfort in her back prior to the subject accident, and that the accident exacerbated that pain into a chronic condition.
The Court in Brooklyn held that Plaintiff’s claims that her injuries satisfy the 90/180 category of Insurance Law § 5102 (d) are unsupported and contradicted by her own testimony wherein she states that she only missed a week and a half of work and was confined to her home or bed for one week. Additionally, the Plaintiff does not provide any evidence that she was “medically” impaired from doing any daily activities as a result of this accident for 90 days within the first 180 days following the subject accident.
Having made a prima facie showing that the injured Plaintiff did not sustain a “serious injury” within the meaning of the statute, the burden shifts to the Plaintiff to come forward with evidence to overcome the Defendant’s submissions by demonstrating a triable issue of fact that a “serious injury” was sustained.
The Court held that the ambulance report and emergency room records presented by the plaintiff prove the occurrence of the accident, but do not provide any indication that a serious injury was suffered, and are not relevant for the purpose of determining whether a permanent or significant limitation resulted. Further, even with competent evidence, the unexplained 18 month gap in the Plaintiff’s medical attention following the accident is fatal to her claim of serious injury. More specifically, the Plaintiff appeared to receive no treatment following the accident, aside from seeing a chiropractor who she had been seeing before the subject accident.
According to the court, while a cessation of treatment is not dispositive * * * a plaintiff who terminates therapeutic measures following the accident, while claiming “serious injury,” must offer some reasonable explanation for having done so.
The Plaintiff provided no explanation as to why she failed to pursue any treatment for her injuries in the year and a half following the accident, nor did her doctors. Therefore, the unsworn medical records of her physicians should be deemed as stale and insufficient to present an issue of fact.
The 18 month gap between the accident and the Plaintiff’s first doctor visits renders the medical expert’s later opinion on causation speculative and places into question the seriousness of the injuries themselves. While the Court of Appeals recently pronounced in Perl, supra, that a quantitative assessment of a plaintiff s injuries does not have to be made during an initial examination, it did not dispense with the requirement that a plaintiff must submit objective medical findings contemporaneous with the subject accident in order to raise an issue of fact with respect to causation. Additionally, the physician’s opinion, in conjunction with the medical evidence as a whole, fails to describe how the Plaintiff’s injuries amount to a “serious injury” as defined by Insurance Law § 5102 (d).
Stephen Bilkis and Associates with its New York Spinal Injury Lawyers can fully assist you in claiming your rights provided by law. It has offices conveniently located within New York Metropolitan area, including Corona, New York.
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