Rodriguez v. AbdallahRodriguez v. Abdallah
The record evidence supports the motion court‘s determination that defendants established their entitlement to summary judgment as a matter of law. Defendants’ experts—a neurologist, an orthopedic surgeon and a radiologist, each board certified—submitted affirmed, objective medical reports sufficient to disprove plaintiffs’ claims of serious injury on the theories of permanent consequential limitation of use of body organ or member, significant limitation of the use of a body function or system, and the 90-out-of-180-day period of disability im
In particular, plaintiff failed to rebut defendants’ objective medical proof that some 331/2 months after the accident, the neurologist, after performing various tests on the injured plaintiff, found his neurological condition to be “essentially normal“; the orthopedic surgeon, after examination, found that any spinal injuries (sprains and strains) from the accident had healed and that disc bulges in the lumbar spine were degenerative and not traumatic; and that the radiologist, after review of an MRI taken less than two months after the accident, found no evidence of acute traumatic injury to the lumbar spine, that the disc bulges in the lumbar spine were “chronic and degenerative in origin,” and that there was “no causal relationship between the claimant‘s alleged accident and the findings on the MRI examination.” Specifically, Dr. Berkowitz, the radiologist, explained that she found “no evidence of acute traumatic injury to the lumbar spine such as vertebral fracture, asymmetry of the disc spaces, ligamentous tear or epidural hematoma.”
Dr. Melamed stated in his affidavit that he treated the injured plaintiff‘s symptoms—pain, tenderness and spasms in the posterior cervical spine with highly restricted movement of the head and neck—for six months with physical therapy, chiropractic and acupuncture. He also alleged that he instructed this plaintiff to refrain from activities that caused discomfort, and the patient exercised his discretion by staying home from work for three months. Dr. Melamed‘s review of the MRI led him to conclude that the disc bulges were caused by the accident, not by the aging process; however, unlike Dr. Berkowitz, he offered no objective medical support for his opinion on this issue. Finally, Dr. Melamed stated that on the patient‘s last visit, approximately five weeks before he was examined by defendants’ medical experts, he performed undisclosed range-of-motion tests in response to complaints of back pain with numbness and tingling aggravated by “pulling, pushing, stretching, cold and humidity.” Dr. Melamed found a 30% restriction in the lumbosacral spine and a 15% restriction in the posterior cervical spine. He concluded, without detailing an objective basis for his assessment, that these conditions were caused by the injured plaintiff‘s accident, and that they would require physical therapy into the indefinite future, rendering the patient permanently disabled.