A person injured in a New York car accident must show he or she suffered a serious injury under the New York Insurance Law. The Insurance Law sets forth several categories of significant injuries, including the limitation of use of a body function or system. To defeat a defense motion for summary judgment on the issue of limitation of use, the plaintiff must provide objective medical evidence showing the extent, percentage, or degree of the limitation or loss of range of motion. The plaintiff must also submit evidence of the duration of the limitation. A minor limitation or pain that is unsupported by medical evidence with diagnoses and identification of the injuries will not be considered a significant injury. Medical reports of the examining physician or chiropractor are insufficient, but a plaintiff may rely on an unsworn MRI report if the defendant’s expert referred to it.
In a recent case, the plaintiff’s evidence was found to be insufficient to defeat the defendants’ motion for summary judgment. The plaintiff alleged she was injured when the defendants’ vehicle rear-ended her vehicle while she was stopped at a flashing yellow light. The defendants moved for summary judgment, alleging the plaintiff had not sustained a serious injury as defined in the New York Insurance Law. The defendants’ evidence included the sworn report of the doctor who conducted an independent orthopedic exam. The doctor stated in his report that he found the plaintiff had a full range of motion in the spine, with no evidence of muscle spasms, tenderness, or trigger points. He concluded that the trauma she sustained in the accident had resolved. The doctor further noted that there was no indication she needed further orthopedic testing or treatment for injuries related to the accident. His report also stated that there was no indication she had a residual functional impairment, and she was capable of participating in her daily activities without restrictions.
The court also noted that the plaintiff’s testimony showed that substantially all of her daily activities had not been restricted. She testified she had missed just one day of work due to her injuries, and there was no change in her duties, salary, or bonus as a result. She testified she stopped treatment after six months, but she had continued chiropractic treatment for about a year and a half. At the time of her testimony, she did not have any appointments scheduled related to her injuries.
The court found the defendants met their burden and made a prima facie case. The burden then shifted to the plaintiff to raise a triable issue of fact. The plaintiff argued that the defendants had not met their burden and that the evidence submitted showed she had sustained injuries in both the “limitations of use” and 90/180 categories of serious injuries. The plaintiff submitted uncertified copies of her medical records and affidavits from two doctors. One of the doctors stated she examined the plaintiff on a certain date more than three and a half years after the accident, but she did not state when she first examined the plaintiff. She noted that another doctor had examined the plaintiff a few months after the accident, but the plaintiff had not included that doctor’s medical report. Although the doctor concluded the plaintiff sustained significant limitations of her cervical and lumbar spine as a result of the accident, the court found she was unable to substantiate the extent, degree, and duration of the limitations caused by the accident.
The court found the medical report of the second doctor impermissibly relied on unsworn or unaffirmed reports from other medical providers, specifically an MRI report. The court further found that the limitations noted by this doctor were not significant pursuant to the No-Fault statute.
Without objective medical evidence showing a serious injury, the plaintiff’s own affidavit was insufficient to raise a triable issue of fact. The court found the plaintiff had not raised a triable issue of fact as to the issue of significant injury under the limitation of use category and had not submitted any evidence under the 90/180 category. The defendant’s motion for summary judgment was granted.
In this case, the court found the records submitted by the plaintiff did not substantiate the extent, degree, and duration of the alleged limitation. While it is unclear what the original doctor’s report would have included, the court suggested that information on the examinations occurring closer in time to the accident may have been needed to show the extent and duration of the limitation caused by the accident.
If you have been seriously injured in an automobile accident, you need an experienced New York car accident attorney who knows how to work with doctors and use medical records to support a claim. If you’ve been injured in an automobile accident, call the Law Offices of Marc S. Albert at 1.855.252.3788.
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