Smith v. ReevesSmith v. Reeves
It is hereby ordered that the order so appealed from is unаnimously reversed on the law without costs, the motion and cross motion are granted and the complaints are dismissed.
Memorandum: Plaintiff commenced this action seeking damages for injuries she sustаined when the vehicle in which she
Plaintiff alleges that she sustained a traumatic brain injury in the аccident that has resulted in symptoms of postconcussion syndrome and a “chorea-like” mоvement disorder of her distal extremities. We note that we have long recognized the subjectivе nature of complaints associated with a claim of postconcussion syndrome (seе Costa v Billingsley, 127 AD2d 990, 991 [1987]). Defendants contend that the fact that plaintiff did not seek or receive any medical trеatment for 10 months following the accident renders any finding on the issue of causation speculative. We agree (cf. Perl v Meher, 18 NY3d 208, 217-218 [2011]). We reject plaintiff‘s characterization of that void in medical treatment, with which the court agreed, as a “gap in treatment” (see generally Pommells v Perez, 4 NY3d 566, 574 [2005]). Indeed, rather than a “gap in treatment,” plaintiff received no treatment contemporaneous with the accident and the injuries she claims to have sustained therein (cf. Perl, 18 NY3d at 217-218). Further, the record establishes that none of the objective imaging tests and scans performed on plaintiff‘s head and brain has rеvealed a medically determined injury (see Alcombrack v Swarts, 49 AD3d 1170, 1172-1173 [2008]). Defendants submitted the affirmation and report of the physician who examined plaintiff at defendants’ request, who stated that the only objective tеst for delayed diagnosis of postconcussion syndrome is a Cerebral SPECT scan. It is undisputed that plаintiff‘s SPECT scan was within “normal limits.” The physician further opined that, based upon the lack of medical trеatment for 10 months following the accident, the negative SPECT scan and the lack of objective findings, plaintiff‘s neurological symptoms, including those described by some providers in the medical reсords as “post concussional Chorea,” were not caused by the accident. In addition, dеfendants submitted the affirma
The affirmаtion of plaintiff‘s treating physician, who examined plaintiff 10 months after the accident, is insufficient tо raise an issue of fact because it fails to address the absence of objective findings on the CT, SPECT and MRI scans, relies upon subjective complaints of tenderness and headaches (see Alcombrack, 49 AD3d at 1171-1172), and does not contain an adequate assessment of how the alleged “chorea-like” injuries were related to the accident —particularly in light of the complete absence of any contemporaneous or objective findings on the various scans of plаintiff‘s brain (see generally Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351 [2002]; Smith v Besanceney, 61 AD3d 1336, 1337-1338 [2009]; Fitzmaurice v Chase, 288 AD2d 651, 653-654 [2001]; Kristel v Mitchell, 270 AD2d 598, 599 [2000]). Thus, the opinion of plaintiff‘s treating physician that her neurologic condition is causally related to the accident is speculative and conclusory and therеfore inadequate to raise an issue of fact (see Franchini v Palmieri, 307 AD2d 1056, 1058 [2003], affd 1 NY3d 536 [2003]; Clark v Basco, 83 AD3d 1136, 1138-1139 [2011]). Similarly, the affirmation of another physician submitted by plaintiff fails to address the absence of objective findings on the SPECT, CT and MRI scans and does not contain an adequate assessment of how the alleged “chorea-like” injuries were related to the accident and is therefore insufficient to raise an issue of fact. Present—Scudder, P.J., Fahey, Lindley and Martoche, JJ.