Kenneth E. Pitcoff and Andrea M. Alonso ()
The Court of Appeals has not revisited the area of the determination of what constitutes a “serious injury” as defined in Insurance Law §5102(d) since 2011. Then, in Perl v. Meher, 18 N.Y.3d 208, the court explicitly held that there is no requirement to prove quantitative measurements of range of motion contemporaneous to the accident although a contemporaneous medical report as to injuries is important proof of causation.
Since Perl, some noteworthy cases have been handed down by the Appellate Divisions clarifying the definition of “serious injury”. Regarding the proof of a “significant disfigurement” it seems clear that a photograph of the alleged scar is de rigueur in order to win a summary judgment motion. Forster v. Novic, 127 A.D.3d 605.
‘Loss of a Fetus’
“Loss of a fetus,” a category added to the No-Fault Law in 1984, has been further defined. In Leach v. Ocean Black Car, 122 A.D.3d 587, the plaintiff suffered a placental abruption causing her son to be born prematurely and delivered by Caesarean section. The Supreme Court, Nassau County, reasoned “loss of fetus” included any termination of a pregnancy caused by an accident regardless of whether the fetus was born alive. The Second Department reversed and held that “loss of fetus” does not include premature birth of a living child and recovery is limited to cases where a viable pregnancy is terminated and the fetus is deceased.
Insofar as measurement of range of motion in the “significant limitation” category is concerned, the courts are continuing to de-emphasize the need for quantitative measurements. In Liz v. Munoz, 149 A.D.3d 646, the First Department emphasized that a surgeon is not required to use a particular instrument in measuring range of motion. As held in Pupko v. Hassan, 149 A.D.3d 988, the examining physician must merely compare his findings to what is a normal range of motion.
Where plaintiff’s own physician finds a minor limitation in motion, summary judgment will be granted. Such were the facts in Stevens v. Bolton, 135 A.D.3d 647, where plaintiff’s own orthopedic surgeon used the language “minor” with regards to permanency of the injury. The use of language by plaintiff’s experts must be examined carefully. Words such as: normal, minor, insignificant, not permanent, transient, subjective all inure in favor of granting of a summary judgment motion.
Doubling down on the Court of Appeals’ decision in Perl, the courts have continued to hold that contemporaneous quantitative measurements are not required to defeat a summary judgment motion. McEachin v. City of N.Y., 137 A.D.3d 753. The contemporaneous report of the alleged injury may be necessary, however, to establish causation. Streeter v. Stanley, 128 A.D.3d 477.
‘Gaps in Treatment’
In Perl, the court also addressed the need for the plaintiffs to explain any gap in medical treatment. It has since become accepted that a plaintiff can explain gaps in treatment when treatment was no longer covered by insurance. Such was the case in Gomez v. Davis, 146 A.D.3d 456, where plaintiff’s new insurance company would not cover further treatment. In contrast, defendants will be successful in a summary judgment motion where plaintiff’s own physician recommends further treatments and plaintiff fails to provide reasonable explanation for ceasing treatment. Nicholas v. Cablevision Sys., 116 A.D.3d 567.
In a related issue, plaintiff is required to explain why one month after the accident plaintiff demonstrated normal range of motion and then three years later the same surgeon found a deficit in range of motion. In Perdomo v. City of New York, 129 A.D.3d 585, the court concluded that the plaintiff’s failure to provide evidence reconciling such a gap entitled the defendants to summary judgment on all claims of permanency.
‘Previous Accidents and Pre-Existing Conditions’
The failure to properly explain previous accidents and pre-existing conditions is the most vulnerable area of weakness in plaintiff’s opposition to summary judgment motions. Plaintiff in Khanfour v. Nayem, 148 A.D.3d 426, had suffered two previous accidents 10 years earlier. In opposition to the summary judgment motion, plaintiff submitted a pain management specialist’s opinion that the court found lacked medical basis and failed to explain how the accident, rather than the pre-existing condition, could have caused the plaintiff’s injury. Similarly, in Shea v. Ives, 137 A.D.3d 1404, defendant provided evidence of a pre-existing generative condition. Plaintiff’s own records showed years of complaints of knee conditions. The court found that the plaintiff’s submission of an orthopedist’s opinion that the accident caused the injury was insufficient because it lacked a factual explanation distinguishing the plaintiff’s pre-existing knee condition.
Plaintiff can raise a question of fact on the issue of a pre-existing condition when their treating physician addresses the pre-existing condition, notes that it had improved with therapy prior to the subject accident and that the subject accident caused significant injury. Sutliff v. Qadar, 122 A.D.3d 452. In that case, that statement coupled with evidence that the plaintiff had returned to work full time over a year prior to the subject accident was sufficient to raise a triable issue of fact.
The catch-all category of 90/180 days claim continues to be the most difficult for plaintiffs to prove. Returning to work part-time prevents plaintiffs from asserting a “serious injury” under the 90/180 claim. Callahan v. Shekhman, 149 A.D.3d 454. Confinement to home or bed for roughly five weeks is insufficient. Dziuma v. Jet Taxi, 148 A.D.3d 573. Lastly, leaving work early on several occasions in a sales position does not constitute a serious injury under the 90/180 days category. Carpenter v. Steadman, 149 A.D.3d 1599.
What is “serious injury” continues to be a heavily litigated area of the No-Fault Law. While the need for contemporaneous quantitative measurements has been diminished by the courts, the contemporaneous report may be crucial to establishing causation. Gaps in treatment must be explained, although lack of insurance is now an acceptable excuse. Pre-existing conditions and prior accidents must be thoroughly distinguished by the plaintiff. 90/180 days remains the most difficult definition of “serious injury” for plaintiff to meet.