Bent v. JacksonBent v. Jackson
Lead Opinion
OPINION OF THE COURT
In the context of this appeal, we engage in the perennial debate over the issue of whether a plaintiff’s evidence of personal injury meets the statutory threshold set by Insurance Law § 5102 (d), “an elusive standard that all too frequently escapes facile and final resolution” (Brown v Achy,
Defendants established a prima facie entitlement to summary judgment by submitting evidence demonstrating that plaintiff did not sustain a serious injury (see Insurance Law § 5102 [d]). Defendants submitted affidavits of two medical doctors who, upon examining the injured plaintiff, concluded that, although there were positive MRI findings, plaintiff had normal range of motion in his cervical spine, lumbosacral spine, right shoulder and right knee (see Noble v Ackerman,
Initially, we agree with the dissent that the motion court erroneously rejected the positive results of the injured plaintiffs MRI examinations. Indeed, defendants initially presented these results on their motion for summary judgment. Thus, they were properly before the motion court (see Brown,
Other than an initial evaluation of the patient on April 26, 2000, nine days after the accident, a follow-up visit two months later, on June 26, and a series of tests conducted in July, August and October of that year, the record is devoid of any competent evidence of this plaintiffs treatment.
In addition to the lack of a recent medical examination, the record offers no competent evidence of any examination of the injured plaintiff after June 26, 2000 (see n 1). Indeed, in his April 23, 2001 report, Dr. Marini neither indicates he examined this plaintiff that day, nor describes any current objective testing or significant range-of-motion restriction. As for Dr. Yaffe’s report of July 7, 2000, it adds no substantive medical information to support plaintiffs’ claim.
Although we have held that a gap in treatment goes to the weight of the evidence, not its admissibility (see Brown v Achy, supra), here there is not merely a gap in treatment. Rather, the record presents an utterly unexplained cessation of treatment. While plaintiffs’ doctor’s reports refer to a course of physical therapy, we find no competent evidence in the record detailing the course of this therapy or its frequency. Thus, based on this record, there was an initial examination, a follow-up examination, and several medical tests. There is no proof of any course of treatment or any explanation for its termination (compare
We need not reach the question of whether an unexplained gap in treatment, alone, can defeat a claim of serious injury because in the case at bar the medical proof itself is either incompetent or insufficient to raise a triable issue of fact of serious injury.
Furthermore, although the injured plaintiffs MRIs revealed several positive findings, in order to raise a triable issue of fact, these positive findings must be accompanied by objective findings of either a specific percentage of the loss of range of motion or a sufficient description of “the ‘qualitative nature’ of plaintiffs limitations ‘based on the normal function, purpose and use of the body part’ ” (Toure,
This failure of proof is not fatal, as plaintiffs may also establish a significant limitation of range of motion if the doctor describes the qualitative nature of the patient’s limitations
Accordingly, the order of the Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered April 17, 2003, which granted defendants’ respective motion and cross motion for summary judgment dismissing the complaint on the ground that plaintiff Audley Bent did not sustain a serious injury pursuant to Insurance Law § 5102 (d), should be affirmed, without costs.
Notes
. While defendants pinpoint the last examination on April 23, 2001, there is no indication in the treating doctor’s report of same that a physical exam was actually conducted that day. Rather, the report merely describes the results of previous examinations conducted a year earlier on April 26 and June 26, 2000 and test results. In any event, even assuming an exam was conducted on April 23, 2001, there is still an unexplained gap in treatment.
. We consider Dr. Yaffe’s report not because it was incorporated by reference by Dr. Marini in his affirmation in opposition, but rather because defendants initially relied on it in support of their motion.
Dissenting Opinion
The majority continues a recent pattern of requiring injured plaintiffs to establish far more than that which is required by the language of Insurance Law § 5102 (d) and existing case law in order to be deemed to have passed the serious injury threshold.
I would reverse the grant of summary judgment to defendants and reinstate the complaint. Plaintiffs met their burden of producing competent proof sufficient to create an issue of fact as to whether the injuries sustained by plaintiff Audley Bent qualify as serious injury as that term is defined in Insurance Law § 5102 (d).
The definition of serious injury in Insurance Law § 5102 (d) includes: “permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system.”
The affirmation of the injured plaintiffs treating physician, Robert A. Marini, incorporating four reports, three of his own and one by another physician, Michael G. Yaffe, contained sufficient factual assertions to establish serious injury. Notably, the last of Dr. Marini’s reports set forth the results of objective testing and concluded that as a result of the subject motor vehicle accident, plaintiff had sustained injuries to the cervical spine including disc herniations, injuries to the lumbosacral spine with disc involvement, and injuries to the right shoulder, all of which have “caused permanent and consequential limitations.” He recited that these conclusions were supported by various
In dismissing the action, the motion court erred in rejecting out of hand much of the submitted evidence, improperly refusing to give any evidentiary weight to unsworn medical reports, such as that of consultant physician Dr. Yaffe, and Dr. Marini’s report regarding the results of an MRI examination, erroneously requiring that the MRI report be sworn to. The test results reported in the treating physician’s report constituted objective evidence supporting the diagnosis of herniation and other permanent structural damage causing ensuing permanent functional disabilities.
The unsworn nature of a technician’s report upon which a physician relies in assessing the patient’s condition does not render the report invalid for purposes of opposing a summary judgment motion. In Brown v Achy (
While a physician’s affidavit may lack probative value where it neither attached a copy of an MRI report nor indicated that the physician reviewed the actual MRI films, and where it failed to indicate that the physician himself performed any objective tests supporting his conclusions (see Sherlock v Smith,
Dr. Marini’s findings and conclusions were sufficient, and sufficiently supported, to create a question of fact as to whether plaintiffs injuries were permanent or sufficiently significant to
In order to affirm the dismissal of plaintiffs’ claim — while rejecting the motion court’s reasoning — the majority imposes upon a plaintiff opposing a “serious injury” challenge an additional new burden: now, the plaintiff must either demonstrate that he is continuing to receive ongoing treatment or explain any cessation of treatment, and a claim of lost range of motion must be expressed in a particular numerical manner. This requirement goes beyond what is required to satisfy section 5102 (d).
If plaintiff establishes that the accident resulted in a permanent injury such as a herniated disc, and a physician has confirmed that due to that injury plaintiff is unable to do things he was formerly able to do, and if there is no treatment that cures the injury, that is enough. He need not establish that he is continuing to receive “treatment,” nor should he have to do more than explain that regular visits to therapists had not provided relief. While prior cases have referred to a need for a “recent” examination of a plaintiff (see e.g. Grossman v Wright,
A plaintiff, having undergone numerous examinations and testing over a period of months or years, whose treating physician has ascertained that an objectively verified physical injury such as a herniated disc is the cause of the pain and limitation reported by the patient and verified by testing, which symptoms began following the accident at issue, is entitled to a trial on the issue of whether he has suffered a serious physical injury under Insurance Law § 5102. He need not continue to report in for a repetition of the same testing and examinations in order to keep confirming that the same permanent injury remains present.
We require that a plaintiff offer objective medical verification of a claim of diminishment in range of motion; however, this Court should not dismiss plaintiffs’ claim based upon the expert’s manner of expressing the presence of a measurable diminution in the injured plaintiffs range of motion. The majority relies upon the discussion in Toure (
Here, plaintiffs’ expert reported, among other findings, plaintiffs diminished range of motion, using the following type of language:
• “Cervical spine: diminished range of motion to right lateral rotation at 35°, left lateral rotation at 40°.
• “Right shoulder: diminished range of motion to forward flexion at 165°, abduction at 105°, with diminished internal rotation.
• “Lumbosacral spine: diminished range of motion to forward flexion at 65° secondary to spasm with extension at 10°, right lateral rotation is 10°, left lateral rotation is 10°. ”
In view of this specificity, the physician’s failure to designate a
The Toure court explained that its requirement of a quantitative or qualitative assessment by the plaintiff’s expert is to avoid speculative conclusions that cannot be “tested during cross-examination, challenged by another expert and weighed by the trier of fact” (id. at 351). Here, plaintiffs’ expert provided objective measurements of that which he observed; the difference between those measurements and that which was normal for plaintiff would, in any event, be based upon information provided by plaintiff himself.
Moreover, this Court has accepted a similar type of assessment in DaSilva v Storz (
The objective injuries and the range of motion limitations discovered by the physical testing, along with the other positive test results, constituted sufficient supporting objective medical proof to defeat the motion for summary judgment. Accordingly, I would reverse the dismissal of the action.
Sullivan, Williams and Friedman, JJ., concur with Marlow, J.; Saxe, J.E, dissents in a separate opinion.
Order, Supreme Court, Bronx County, entered April 17, 2003, affirmed, without costs.