EMAIL TO A FRIEND COMMENT

 

Complaint Dismissed; Personal Injury Expert Established Plaintiff Not Seriously Injured


A man injured a woman in an accident. The woman sued the man to recover damages for personal injuries.

 

The man filed a motion for summary judgment asking the court to dismiss the complaint on the ground that the woman did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. In support of his motion, the man relied upon the affirmed medical report of his examining orthopedist, as well as the hospital records and medical reports of the woman's treating medical care providers, and a transcript of the woman’s deposition testimony. The man's examining orthopedist opined that the condition of the thoracolumbar region of the woman's spine was the result of preexisting degenerative disc disease and a prior motor vehicle accident, and he provided a nonconclusory explanation for that opinion. The man's examining orthopedist concluded that slight limitations in the range of motion that he noted with respect to the woman's left shoulder were insignificant. In opposition, the woman provided the medical reports and records of her treating physicians.

 

The Suffolk County Supreme Court denied the motion.

 

The Appellate Division of the New York Supreme Court, Second Department, reversed and granted the man’s motion for summary judgment dismissing the complaint. The court held that the man met his prima facie burden of showing that the woman did not sustain a serious injury to the thoracolumbar region of her spine and left shoulder within the meaning of the statute as a result of the subject accident and the woman failed to raise a triable issue of fact.

 

The man met his prima facie burden of showing that the woman did not sustain a serious injury to the thoracolumbar region of her spine and left shoulder within the meaning of the statute as a result of the accident. In addition to noting the man’s examining orthopedist’s testimony, the court found that the man demonstrated that during the 180–day period immediately following the subject accident, the woman did not have an injury or impairment which, for more than 90 days, prevented her from performing substantially all of the acts that constituted her usual and customary daily activities.

 

The woman failed to raise a triable issue of fact. The medical reports and records of her treating physicians failed to set forth any quantified range-of-motion findings or a qualitative assessment of the woman's left shoulder, or an opinion as to the cause of any limitations in the range of motion of the lumbar region of the woman's spine. The woman also failed to submit any competent medical evidence that the injuries she allegedly sustained in the subject accident rendered her unable to perform substantially all of her daily activities for not less than 90 days of the first 180 days subsequent to the subject accident.

 

The Appellate Division of the New York Supreme Court, Second Department, reversed and granted the man’s motion for summary judgment dismissing the complaint.

 

See: Pryce v. Nelson, 2015 WL 359090, 2015 N.Y. Slip Op. 00741 (N.Y.A.D. 2 Dept., January 28, 2015) (not designated for publication).

 

See also Medical Law Perspectives, October 2014 Report: Backaches and Court Battles: When Chronic Back Pain Leads to Litigation

 

See also Medical Law Perspectives, June 2013 Report: Independent Medical Evaluations: Legal Risks and Responsibilities

 

 

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