The complainant man commenced a personal injuryaction against a driver, the taxi company and the medallion owner of a New York City taxi after a motor vehicle accident at the traffic light in Brooklyn. The complainant alleges that he was stopped at the light when the driver rear-ended his vehicle. The driver’s whereabouts throughout the proceeding have been unknown, and the taxi company was held vicariously liable for the driver’s negligence in the court’s earlier decision.
The decision also denied the portion of the defendants’ summary judgment cross motion, which was based on the complainant’s alleged failure to establish a qualifying serious injury, but said denial was without prejudice to renewal upon completion of discovery. The court held, as a matter of equity, that the complainant be given additional time to locate his doctors and obtain affirmations about his medical condition. A renewed cross motion has ensued.
The defendants argue that the complainant has failed to meet the statutory requirements of a serious injury under Insurance Law, which defines serious injury as a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment. They present affirmed medical reports from two physicians in support of their argument. First, they submit the affirmed report of the defendants’ orthopedic surgeon, regarding the complainant’s examination. The report references the complainant’s repeated complaints of lumbar pain resulting in his inability to sleep through the night or remain standing pain free. It is noted that the complainant specifically stated that he can’t sleep. He has permanent pain in the back and he can’t stand for 15 minutes. However, the orthopedic surgeon’s physical exam found that the complainant exhibited a normal range of motion and moved pain free within the normal range. The orthopedic surgeon also found the complainant able to walk normally, rapidly and without limping. He measured both of the complainant’s arms, conducted manual muscle testing, and again found each arm normal. Similarly, the orthopedic surgeon measured the circumference of the complainant’s legs; conducted manual muscle testing and pin prick simulation, and found normal, symmetrical measurements, movements, and response.
The complainant’s first argues that the defendants improperly filed their renewed cross motion. He cites in this regard the res judicata doctrine, incorrectly identified as the res adjudicata doctrine. In seeking denial of the defendants’ cross motion, the complainant claims that the prior determination granting him summary judgment resolved both the liability and serious injury issues presented therein and contends that the defendants needed to pursue any remedy through appeal. The complainant requests denial of the defendants’ renewed summary judgment cross motion and seeks sanctions against the defendants’ counsel.
The complainant provides only one medical affirmation about the 2001 accident; namely, a report by a New York licensed neurologist, commenting on an August 6, 2007 examination. The license neurologist also references the unauthenticated January 26, 2001 images studied by the defendants’ radiologist, and affirms that the complainant has developed tingling and numbness in his right and left arms radiating into his right and left leg as a result of the January 1, 2001 accident. The neurologist finds that the patient’s sensory thresholds are all within normal limits, except for a decreased sensation on the outer aspects of the bilateral leg to pin and decreased sensation on the outer aspect of the bilateral arm to pin. The neurologist, unlike the defendants’ orthopedist, found the complainant had decreased spinal range of motion. She maintains that the complainant had weakness in the arm and leg muscles and relies on the 2001 images to highlight the presence of a chronic bilateral spine injury secondary to his motor vehicle accident of 2001. The neurologist thus reports permanent restrictions in range of motion of the cervical and lumbar spine region and neurological disability that would require a series of three epidural injections to the neck and systematic physical therapy and pharmacological pain management.
The complainant, though, despite several requests, has failed to provide the court with affirmations from his treating physician at the time of the January 1, 2001 accident or with affirmations from those doctors treating him in the time period between the 2001 accident and his decision to obtain treatment from the neurologist in May, 2007.
The complainant also cites the January 31, 2001 un-affirmed report of a psychologist. He asserts that the report demonstrates that he is suffering both emotionally and cognitively and that the negligence of defendants is the proximate cause of his psychological injury. Next, the complainant refers to an unsworn MRI scan report of his lumbosacral spine performed by a radiologist. The radiologist opines in an unsworn report that the complainant is suffering from various spine injuries including anterolisthesis, disc space narrowing, dessication, and a herniated disc. Additionally, the documents provided in response to the complainant’s subpoenas also include a small number of other un-affirmed documents referencing the 2001 accident. These documents are un-affirmed medical records from emergency rooms visits by the complainant apparently for treatment received as a result of his complaints of lower back pain.
In sum, the complainant argues that the unsworn and sworn medical reports he has submitted in opposition to the defendants’ renewed summary judgment cross motion demonstrate that he has suffered permanent and significant limitations of use in his neck and back. Using copies of excerpts of correspondence from the Social Security Administration (SSA), the complainant further notes that the SSA has determined that he is disabled.
The defendants have made their legitimate showing that the complainant did not sustain a serious injury as defined by Insurance Law in the instant motion through their doctors’ affirmed reports and affirmations citing objective tests that found a normal range of motion and no disabilities causally related to the 2001 accident.
The burden then shifts to the complainant to present admissible evidence demonstrating a triable factual issue about each alleged injury. In the instant case, the court specifically directed the complainant to meet the required legal burden by supplying physician affirmations outlining his post-accident condition and subsequent treatments. The complainant, though, has failed to provide treating physicians’ affirmed statements regarding his injuries resulting from the 2001 accident.
In addition, the affirmation of the neurologist regarding her August 6, 2007 examination of him lacks sufficient supporting range of motion testing. Even proof of a herniated disc, without additional objective medical evidence establishing that the accident resulted in significant physical limitations, is not alone sufficient to establish a serious injury. Further, the neurologist does not state that the permanent restrictions suffered by the complainant are severe enough to reach the threshold required by Insurance Law. The images alone fail to meet the high threshold set by the New York legislature for the complainant to have suffered a legally recognizable serious injury.
The complainant fails to explain the gap in treatment between the 2001 visits to the Brooklyn Hospital and the 2007 visits to the neurologist. To satisfy the statutory burden, the complainant must have suffered permanent injuries that have impaired his daily activities. The cessation of treatment without evidence about the reason behind the gap requires granting summary judgment for the defendants.
When we acquire injuries, it is our obligation to our self that we seek medical attention. If we don’t, then we prolong our agony and we risk the possibility of finding out any possible serious illness that could be addressed immediately. A New York City Spinal Injury Lawyer or a NYC Personal Injury Attorney can help you find legal ways to claim for your spine-related injuries. Stephen Bilkis and Associates can also provide a NY Injury Lawyer if you need to hire one.