Showing a New York car wreck victim sustained a “serious injury” under New York insurance law is an important part of a negligence claim against the other driver. There are several categories of serious injury, including the 90/180 day category, which requires a showing the accident resulted in a disability that prevented the plaintiff from doing his or her regular daily activities for a period of at least 90 of the 180 days after the accident. The relevant period for a serious injury under the 90/180 day category is the 180 days after the accident. A defendant cannot defeat a plaintiff’s claim under this category by showing that the plaintiff does not continue to have impairment, if the plaintiff has evidence showing that he or she was impaired for the requisite period. A New York court recently denied summary judgment to a defendant who tried to show a lack of serious injury with a medical examination that occurred after the 180 day period.
The plaintiff was a taxi driver whose vehicle was hit while stopped at a red light. Later that day, he was driven to the emergency room. He complained of pain in his knee, ribs, shoulder, and lower back. He subsequently filed suit, alleging serious injuries.
The defendant moved for summary judgment, arguing the plaintiff had not sustained a “serious injury” as a result of the accident.
The defendant submitted the bill of particulars, the plaintiff’s deposition testimony, and a recent medical examination report. The bill of particulars indicated the plaintiff suffered injuries to his back, rib, and neck. In his deposition, the plaintiff discussed knee, shoulder, and lower back pain. His x-rays showed no fractures. The plaintiff stopped his physical therapy because he did not think it was helping, but he subsequently sought treatment from another physical therapist. At the time of his deposition, the plaintiff was working, but testified he had a limited capacity to run, squat, climb, and lift.
According to the defendant’s medical examination report, the doctor observed that the plaintiff did not exhibit tenderness , muscle spasm, or pain. His ranges of motion were normal. The doctor concluded the plaintiff did not have any residual orthopedic disabilities.
The defendants argued the plaintiff had not established a prima facie case for a serious injury. The plaintiff argued there were issues of fact that prevented summary judgment. He argued he missed more than five months of work, could not run more than a few blocks, could not lift over ten pounds without difficulty, and had to stop driving after an hour because of the pain in his knee. He submitted his orthopedist’s medical report that stated he had 100% temporary impairment five months after the accident. The doctor cleared the plaintiff to work at that time, with limitations on climbing stairs, kneeling, and lifting.
The plaintiff also submitted doctor’s progress reports that showed a rating of 60% temporary disability. He submitted another report that stated he had a permanent impairment of 40% of the lumbar spine and 30% of the right knee and noted limitations in his physical activities. He also submitted an affirmed report from another doctor that recommended surgery for his knee.
The court noted that the report submitted by the defendants was relatively recent and provided an assessment of the plaintiff’s current condition. The court found that the records submitted by the plaintiff showed that he had suffered a significant limitation of body functions and likely a nonpermanent impairment that prevented him from performing substantially all of his usual material functions for at least 90 days after the accident. The plaintiff had not submitted more recent findings, but did provide sufficient medical proof to preclude summary judgment.
The issue in this case was the timing of the medical examination. The defendants relied on the medical report of a medical examination that occurred in 2016 to show the plaintiff had not sustained a serious injury. That report assessed the plaintiff’s condition at that time. The accident, however, occurred in 2011. The plaintiff’s evidence supported his claim that he had been unable to perform his daily activities as a result of the accident during the 90 days after the accident.
If you have been seriously injured in an automobile accident, a skilled New York automobile accident attorney can help you. The Law Offices of Marc S. Albert know how to use medical records to support a claim of serious injury. Call us at 1.855.252.3788 to discuss your case.
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