Vaughan v. LeonVaughan v. Leon
Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered August 6, 2010, which denied defendants’ motion for summary judgment dismissing the complaint, modified, on the law, to dismiss the 90/180-day category of plaintiff’s
In this action for personal injuries plaintiff alleges that she sustained a serious injury as a result of a car accident that occurred
Plaintiff commenced this action alleging that she sustained a serious injury under
Notwithstanding that plaintiff’s approach into the intersection was regulated by a stop sign and defendant driver’s approach was not regulated by a traffic control device, issues of fact about plaintiff stopping at the stop sign and which vehicle entered the intersection first preclude a finding as a matter of law that plaintiff’s conduct was the sole proximate cause of the accident (see Rivera v Berrios Trans Serv. Inc., 64 AD3d 416 [2009]). Further, plaintiff’s testimony that she was traveling between 5 and 10 miles per hour and that the impact of the two vehicles was “very heavy” presents issues of fact whether defendant driver was negligent (Nevarez v S.R.M. Mgt. Corp., 58 AD3d 295, 299 [2008]).
Although defendants established prima facie that plaintiff did not sustain a serious injury within the meaning of
In opposition to defendants’ motion, plaintiff submitted the affirmation of her treating physician, Dr. Khakhar, who first saw her nine days after the accident. He concluded that plaintiff’s injuries were caused by the accident. Dr. Khakhar based this conclusion on the MRI report of the lumbrosacral spine and right shoulder taken on July 16, 2007,1 electrodiagnostic testing, the patient’s medical records, and objective clinical examinations of plaintiff, which revealed a painful and limited range of motion when compared to normal ranges, that began a week after the accident and continued for a period of approximately five months thereafter. This submission, which was based on objective findings by the doctor, as well as plaintiff’s subjective complaints, was sufficient to substantiate a claim of serious injury (Yuen v Arka Memory Cab Corp., 80 AD3d 481 [2011]).
Although the dissent makes much of plaintiff’s failure to annex the MRI reports, Dr. Khakhar affirmed that he reviewed them, and then made his own clinical findings based on the history provided by plaintiff and his education, training and experience (Baez v Boyd, 90 AD3d 524 [2011] [plaintiff raised an issue of fact by submitting the affirmed report of his treating orthopedist, who had reviewed the MRI films]). Moreover, although Dr. Khakhar did not explain what was in the MRI report or whether the MRI report he reviewed was affirmed, Dr. Khakhar’s report itself was affirmed and is sufficient to raise an issue of fact. The dissent cites no cases in support of its argument that plaintiff’s doctor must describe the specific contents of the MRI report for plaintiff to defeat a summary judgment motion.
Furthermore, although Dr. Khakhar did not expressly reject defendants’ expert’s conclusion that the injuries were degenerative in origin, by attributing the injuries to a different, yet equally plausible cause, plaintiff raised a triable issue of fact
The dissent unpersuasively argues that the Court of Appeals’ brief references to Pommells v Perez (4 NY3d 566 [2005]) in the Perl opinion mandate a ruling in defendants’ favor unless plaintiff’s submissions specifically explain why the conclusion of degeneration by defendants’ doctors is incorrect; this is not what Perl holds. Rather, the Court in Perl concluded that the plaintiff’s contrary evidence presented on a summary judgment motion, even if “hardly powerful,” merely must be sufficient to raise an issue of fact (Perl, 18 NY3d at 219). In fact, the Perl opinion focuses on whether the numerical measurements of range of motion were contemporaneous, which is not the central issue in this case. As the dissent notes, the record here does not contain as much detail in the treating physician’s affirmation as was contained in the Perl affirmation, but such detail is not required. Plaintiff, at her deposition, explained that she had not previously been injured before this accident, and Dr. Khakhar noted she was acutely symptomatic when he saw her about a week after the accident. Here, this information, combined with Dr. Khakhar’s affirmation and conclusion as to causation, contained sufficient detail. The dissent’s suggestion that there is a specific catechism that plaintiff’s doctor must recite ignores the central purpose of a summary judgment motion, which is to determine whether there are factual issues to be resolved at trial.
Nor is Carrasco v Mendez (4 NY3d 566 [2005]), one of the three appeals decided in Pommells, similar to plaintiff’s case, as the dissent contends.2 Carrasco’s original doctor concluded in his final report that Carrasco’s pain was related to a prior degenerative condition, thereby agreeing with the defendant’s analysis (id. at 579-580). Dr. Khakhar, however, found just the opposite with regard to plaintiff, and concluded that her injuries were casually connected to the accident. The dissent incorrectly argues that Carrasco turns on the lack of detail in the doctor’s conclusions. However, the Carrasco Court found that the
The court should have dismissed plaintiff’s 90/180-day claim. Plaintiff’s deposition testimony that she was confined to her home for only one month after the accident and her treating physiatrist’s statement that she was “partially incapacitated” are insufficient to raise the inference that plaintiff was prevented from performing her usual and customary activities for at least 90 of the 180 days following the accident (
Andrias, J.P., and Friedman, J., dissent in part in a memorandum by Friedman, J., as follows: Plaintiff claims to have suffered injuries to her lumbar spine as a result of the subject motor vehicle accident. In support of their motion for summary judgment, defendants submitted competent medical expert evidence, in the form of an affirmed MRI report, explaining in detail why the reporting radiologist concluded that plaintiff’s lumbar spine exhibited changes due to preexisting degeneration rather than traumatic injury. In opposition, not only did plaintiff fail to submit any report by a radiologist, the physiatrist whose affirmation she submitted completely ignored the likelihood raised by the defense radiologist that plaintiff’s lumbar deficits were the result of degeneration. Moreover, the two other medical reports plaintiff submitted—putting aside that neither one was sworn or affirmed—both explicitly acknowledged (presumably based on a radiological report absent from the record) that the lumbar spine MRI evidenced “degenerative changes,” and drew no connection between plaintiff’s condition and the accident.
Because plaintiff submitted no evidence specifically addressing and rebutting the view of the defense radiologist that plaintiff’s deficits were the result of a degenerative condition that preexisted the accident, under precedent of the Court of Appeals and of this Court, defendants are entitled to summary judgment dismissing the complaint insofar as it seeks recovery for a “permanent consequential limitation of use of a body organ or member” or “significant limitation of use of a body function or system” comprising a “serious injury” under the No-Fault Law (
In my view, the medical evidence concerning the etiology of plaintiff’s lumbar spine condition suffices, by itself, to require the dismissal of her claim under the “permanent consequential limitation” and “significant limitation” prongs of the No-Fault Law’s definition of “serious injury.” Accordingly, I will restrict my discussion of the medical evidence to the material bearing on the origin of the spinal condition.1
Plaintiff was involved in a two-car collision on June 30, 2007, when she was 54 years old.2 She did not have any physical complaints immediately after the accident. The next day, she went to an emergency room because she “felt a little pain” in her back and right shoulder. The hospital told plaintiff that it was “just a sprain,” gave her Motrin and sent her home, without taking any X rays. On July 9, 2007, she first visited Gautam K. Khakhar, M.D., a physiatrist, who found her to be “partially incapacitated,” started her on a course of physical therapy, referred her to an orthopedist for an electrodiagnostic test, and ordered an MRI of, inter alia, the lumbosacral spine. Dr. Khakhar subsequently referred plaintiff to a pain management specialist. Plaintiff treated with Dr. Khakhar until December 17, 2007, when he determined that she had reached “maximum medical improvement from conservative management.” More than a year and a half later, on August 31, 2009 (after this action had been commenced), plaintiff again visited Dr. Khakhar, who examined her, referred her to physical therapy and advised her to consult a spinal surgeon. Plaintiff was examined by Dr. Khakhar once again on October 26, 2009 (after defendants moved for summary judgment).
In support of their motion for summary judgment, defendants
”IMPRESSION: Diffuse disc bulge, L5-S1. Disc bulges are chronic and degenerative in origin. There is no evidence of acute traumatic injury to the lumbar spine such as vertebral fracture, asymmetry of the disc spaces, ligamentous tear or epidural hematoma.
”CAUSAL RELATIONSHIP: Evaluation of this MRI examination reveals no causal relationship between the claimant’s alleged accident and the findings on the MRI examination.”
In opposing the summary judgment motion, plaintiff did not submit a report by any radiologist who had examined the MRI of her lumbar spine. She did submit an affirmation by Dr. Khakhar, plaintiff’s treating physiatrist, but Dr. Khakhar did not claim to have reviewed the MRI or even to be qualified to undertake such a review. While Dr. Khakhar stated in his affirmation that “MRI reports of the lumbosacral spine and right shoulder taken on July 16, 2007 are annexed hereto as Exhibit ‘A,’” in the record before us, no such reports are annexed to his affirmation. Neither does Dr. Khakhar’s affirmation offer any substantive description of the contents of the MRI reports or explain how those reports support his conclusion that plaintiff’s symptoms were “a result of the [subject] motor vehicle accident.”
The report on the MRI of the lumbosacral spine referred to by Dr. Khakhar is presumably the same one mentioned in plaintiff’s counsel’s opposition affirmation. Specifically, counsel’s affirmation makes reference to “Dr. Mark Frelich’s impression of an ‘MR Scan of the Lumbosacral spine,’” states that Dr. Frelich’s report is annexed as “Plaintiff’s Exhibit ‘D,’” and quotes a sentence said to be from that report.3 However, there is no MRI report by a Dr. Mark Frelich, or by any physician having a similar name, to be found anywhere in the record.4
Plaintiff submitted two reports by physicians other than Dr. Khakhar, but neither of these reports was sworn or affirmed,
In the end, the only evidence plaintiff submitted concerning the origin of her symptoms and impairments were Dr. Khakhar’s bare assertions in his affirmation to the effect that those symptoms “were caused by the motor vehicle accident of June 30, 2007.”5 Dr. Khakhar gave no account of the basis on which he reached this conclusion. Although he claimed to have reached his conclusions based upon, inter alia, an MRI report on the lumbosacral spine (which, to reiterate, was not annexed to his report), he did not explain how anything in that unsubmitted MRI report supported his attribution of the impairments to an accident. Equally important, he made no mention at all of the defense radiologist’s view that the condition revealed by the MRI of the lumbar spine was a preexisting degenerative condition. Dr. Khakhar simply ignored the possibility that plaintiff’s symptoms had a degenerative etiology, notwithstanding that the reports of two physicians to whom he referred her both make reference to evidence that she suffers from a degenerative condition.
The problem with plaintiff’s opposition to the summary judgment
In sum, in response to defendants’ expert radiological evidence attributing plaintiff’s impairments to a preexisting degenerative condition, plaintiff submitted nothing but the boilerplate, unexplained and unsupported assertion of her treating physiatrist that the impairments resulted from the subject accident. Dr. Khakhar, plaintiff’s physiatrist, utterly failed to address the view of the defense radiologist that plaintiff was simply experiencing the effects of the degenerative changes that had accumulated over the 54 years of her life preceding the accident. Indeed, Dr. Khakhar ignored the well-supported opinion of the defense radiologist even though the reports of the orthopedist and pain specialist to whom Dr. Khakhar referred plaintiff made reference to an MRI report (not submitted by plaintiff) that evidently supports the same view. Under controlling case law,
In an action to recover for serious injury under
The Court of Appeals’ discussion of Carrasco v Mendez, one of the three appeals decided in the Pommells opinion (cited with approval in Perl v Meher, 18 NY3d at 218) illustrates how the rule described above operates in a scenario similar to the one before us. In Carrasco, the defendant submitted in support of his summary judgment motion the report of a medical expert who, based on MRIs and other evidence, “concluded that the pain in areas identified as herniated . . . was caused by preexisting and degenerative conditions” (4 NY3d at 579). The defendant also submitted a report by the plaintiff’s “original doctor . . . not[ing] . . . that plaintiff’s pain was related to a prior condition” (id.). In response, the plaintiff offered the report of his treating physician, who “opin[ed] that plaintiff suffered serious and permanent injuries which were causally related to the accident” (id. at 579-580). The Court of Appeals held that this did not suffice to defeat the summary judgment motion because “plaintiff did not refute defendant’s evidence of a preexisting degenerative condition. To the contrary, the [physician’s] report supplied by plaintiff explained that the pain and loss of range of motion in the cervical spine was entirely consistent with those formations identified by the MRI and set forth by [the physicians relied on by the defendant] as related to a degenerative condition. In this case, with persuasive evidence that plaintiff’s alleged pain and injuries were related to a preexisting condition, plaintiff had the burden to come forward with evidence addressing defendant’s claimed lack of causation. In the absence of any such evidence, we conclude . . . that defendant was entitled to summary dismissal of the complaint” (id. at 580).
In my view, the foregoing authority—including the decision of the Court of Appeals in Pommells, as substantially reaffirmed in Perl—requires that defendants be granted summary judgment dismissing the complaint on the ground that plaintiff has failed to address the medical evidence attributing her alleged injuries
In this case, the only admissible radiology report in the record attributed the observed condition of plaintiff’s lumbar spine to degenerative changes. Moreover, two other physician’s reports submitted by plaintiff herself, although not admissible because not sworn or affirmed, referred to another radiological report based on the same MRI noting degenerative changes in the lumbar spine.9 The only expert who attributed plaintiff’s impairments to the accident was Dr. Khakhar, who simply asserted that such a causal relationship existed, without explaining his reasoning and, most importantly, without addressing the defense radiologist’s view (supported by the reports of his own orthopedic and pain management consultants) that plaintiff was experiencing the effects of degenerative changes. Indeed, Dr. Khakhar did not even claim to have ascertained that plaintiff’s symptoms began only after the accident.
The instant case is readily distinguishable from Perl v Meher (supra), in which the plaintiff’s radiologist and treating physician both specifically rebutted the defense radiologist’s view that the MRI established that the symptoms were the result of degeneration. The plaintiff’s radiologist in Perl, “while [acknowledging that] some findings from the MRI ‘are consistent with degenerative disease,’ [opined that] a single MRI cannot rule out the possibility that ‘the patient’s soft tissue findings are . . . a result of a specific trauma.’ That question, [the plaintiff’s] radiologist said, can best be judged ‘by the patient’s treating physician in conjunction with exam, history and any previous tests’” (18 NY3d at 219). Further, the treating physician in Perl opined that the plaintiff’s symptoms were “based upon a traumatic event and not degeneration” (emphasis added) because he was “asymptomatic before the motor vehicle accident.”
In asserting that Perl is not distinguishable, the majority ignores the fact that the result in Perl was based on the affirmed statement by the treating physician that, because the plaintiff “‘had not suffered any similar symptoms before the accident or had any prior injuries/medical conditions that would result in these findings,’ the findings were causally related to the accident” (18 NY3d at 219). Again, the record in this case contains no such statement. The majority reads Perl’s characterization of the plaintiff’s evidence in that case as “hardly powerful” (id.) to abolish any requirement that a plaintiff, in opposing summary judgment in a no-fault case, specifically address a defendant’s a prima facie showing that the symptoms are attributable to a preexisting degenerative condition. I see no warrant for this reading of Perl.
Nor does the majority’s attempt to distinguish Carrasco v Mendez hold water. There is no indication in the Court of Appeals’ decision that the view of the Carrasco “plaintiff’s original doctor . . . that [his] pain was related to a prior condition” (4 NY3d at 579) was essential to the Court’s holding that the defendant in that case was entitled to summary judgment.10 In Carrasco, as here, the plaintiff presented a treating physician’s unsupported and unexplained conclusion that the symptoms were “‘a result of the motor vehicle accident’” (id.). This was held to be insufficient in Carrasco, and nothing in Perl indicates that the Court of Appeals has abandoned this holding.11
The majority asserts that I “cite[ ] no cases in support of [my] argument that plaintiff’s doctor must describe the specific
The majority distorts my position by asserting that I am “suggest[ing] that there is a specific catechism that plaintiff’s doctor must recite.” On the contrary, it is my view that the plaintiff’s medical expert must provide some substantive explanation—even a weak one—for his or her rejection of the defense expert’s view that the symptoms are degenerative in nature. It is the majority that is allowing plaintiff to defeat a well-supported summary judgment motion with nothing more than a boilerplate, uninformative “catechism” over a physician’s signature.
For the foregoing reasons, the majority, insofar as it sustains the complaint, erroneously departs from the course charted by the Court of Appeals. I therefore dissent from that aspect of the majority’s decision.