Today’s blog is primarily for attorneys.  I mention this because I understand the blogs go automatically to our office Facebook page. Many attorneys from out of and within New York State call on us to deal with insurance companies, handle their clients injury case, and often seek advice from us on New York personal injury questions. This will answer some.

This week, the New York Court of Appeals issued a trilogy of opinions which will become the lead cases in defining a serious injury for motor vehicle crashes. A person must have an injury defined as serious by insurance law section 5102 (d) to recover against a driver causing a crash.

The cases are Perl v. Meher, Adler v. Bayer and Moonan v. Batchi, all decided November 22, 2011. They address three categories of serious injury frequently disputed by insurance companies:

1.) Permanent consequential limitation of use of a body organ or member;

2.) Significant limitation of use of a body function or system; and

3.) A medically determined injury or impairment of a non– permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such persons usual and customary daily activities for not less than 90 days during the 180 days following the occurrence of the injury.

All three cases turn on the sufficiency of plaintiff’s proof. Over time many Appellate Division cases suggested treating doctors records must provide specific numerical measurements of loss of range of motion and restrictions at the time of the accident, suggesting if not, the doctors were merely recording  the patient’s subjective complaints.

In Perl and Adler the treating physician performed a number of clinical tests but did not fully describe them in the record. In both cases, after several years the Dr. used instruments to make specific numerical range of motion measurements.

The treating physician, Dr.Bleicher testified that on initial examination  if the patient has recent acute injuries, it is better to go with the visual parameters because measuring range of motion of the joint of the acutely injured is not reliable and doesn’t provide correct numbers.

The court found the contemporanious doctors report is  proof of causation and where causation is proved, it is not unreasonable to measure severity of injury at a later time.

The Court of Appeals reversed the appellate division and held a rule requiring contemporaneous  numerical measurements was not needed. The Court recognized  such a requirement could have a perverse result, and  plaintiffs should not be penalized for failing to seek out, immediately after being injured, a Dr. who knows how to create the right kind of record litigation.

The Court  rightly recognized a case should not be lost because the doctor who cared for a  patient initially was primarily, or only, concerned with the treating the injuries.  It expressly rejected a rule which would require contemporaneous quantitative measurements as a prerequisite to recovery.

The 82-year-old plaintiff in Perl had his case dismissed based upon the Defense Radiologist’s opinion that the  MRI showed  Mr. Pearl’s injuries were degenerative and longstanding, pre-existing the accident. Mr. Pearl submitted an affidavit of a radiologist stating while some findings from the MRI were consistent with degenerative disease, a single MRI could not rule out the possibility that the plaintiff’s soft tissue findings were the result of a specific trauma. That question could best be judged by the patient’s treating physician in conjunction with exam, history and any previous tests.

The treating physician’s opinion was that since Perl did not have any similar symptoms before the accident the symptoms were causally related to the accident. Holding: the case should not have been dismissed, it was for a jury to decide because there was a question of fact.

In Travis the evidence submitted by the plaintiff was simply lacking. The treating physician submitted a report concluding Ms. Travis having mild permanent partial disability but did not describe the disability.

Takeaways: don’t let a defendant use Appellate Division cases which have been reversed by the above trilogy, be sure to show contemporaneous causation, the more specifics you can show, the better, for permanency see that the physician articulates specific findings. Hopefully you can help your clients secure fair compensation for their losses.

Attorney John Feroleto

Attorney John Feroleto understands the value of hard work. He is known in the community and by his peers for his willingness to work and go the extra mile. Other lawyers often ask John to handle their trial matters to maximize clients’ recovery. Trial lawyers know who the best trial lawyers are. He was also named Trial Attorney of the Year in 2012 by the Western New York Affiliate of New York State Trial Lawyers Association. [ Attorney Bio ]

Request Free

    438 Main Street
    Buffalo, NY 14202

    (716) 854-0700