Articles Posted in Brooklyn

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A Brooklyn bagel shop clerk met an accident while driving near the corner of West Merrick and Rockaway Avenue: her car collided with another car on August 21, 2007. As a result of the accident, the bagel shop clerk missed two weeks of work. The pain she felt prevented her from lifting baskets of bagels as she had been doing previous to the accident. She was unable to stand behind the counter for long periods of time as she had been doing before the accident. She held down another part-time job at a clam bar and was also enrolled as a full time college student. She missed two weeks of classes after the accident and she had to stop working at the clam bar.

The owner of the bagel shop allowed the clerk to reduce the number of hours she had to work. She also allowed her more frequent breaks and excused her from having to lift heavy objects while on duty. Still, the woman was unable to continue working full time: she began working part-time and clocked only eighteen hours of work every week. The pain in her neck and back intensified and she resigned from her employment.

She received treatment consistently since the accident and stopped treatment and therapy only when her “no-fault” insurance ran out and she could no longer afford the treatments and therapy. She filed a case in damages seeking compensation for her spinal injury under the Insurance Law. She claims that the use of her cervical spine and lumbar spine has been significantly limited; she also claimed that the spinal injury she sustained resulted in non-permanent impairment which prevented her from performing all the activities of daily living within ninety days from the accident.

The defendant filed a motion for summary judgment asking that the cause of action for damages be dismissed for failure of the plaintiff to present initial proof that the spinal injury she sustained was a serious injury.

The defendant asked that the bagel shop clerk be examined by an orthopedic surgeon. The orthopedic surgeon found that there was no evidence of any spinal injury: there was no fracture, no atrophy of the discs; no bulging or swollen discs and no derangement of the discs in her spine. The orthopedic surgeon also used a hammer, sensory pins and measuring tape to objectively determine the presence of pain or paralysis. He also measured the bagel shop clerk’s range of motion and found these within normal limits. He concluded that there is no evidence of disability resulting from the accident.

For her part, the bagel shop clerk presented the medical findings of the Westchester orthopedic surgeon who treated her within two weeks after the accident. She also presented the report of findings of the neurologist/pain expert who examined her. The orthopedic surgeon noted tenderness in the cervical spine and lumbar spine. He also noted spasms in the cervical and lumbar spine. He found that the bagel shop clerk’s range of motion was restricted and he traces the cause of her loss of use of her neck and lower back to the accident. He also noted that he recommended that she be examined by a pain specialist. He recommended steroid injections directly into the areas of the spine that experienced the pain. In the two years that she had been receiving treatment since the accident, the pain persists and the doctor has opined that if her pain persists, she will be a candidate of surgical repair on her spine.

The court denied the motion for summary judgment, ruling that the bagel shop clerk has succeeded in proving that there are issues of material fact that have to be determined by a jury at trial on the nature and extent of her spinal injury and of the disability she has suffered.
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The plaintiff sustained serious and catastrophic injuries when he fell while traversing a trench at a construction site in the Bronx. As a result of plaintiff’s fall into a trench at the job site he became impaled on a reinforcement bar (rebar) that was surgically removed several hours after his admission to the hospital. It is in this setting that the jury, after a trial and after hearing testimony from plaintiff’s physicians and other experts regarding the devastating and traumatic nature of the personal injuries he sustained, rendered a verdict in the sum of $86 million including $20 million for past pain and suffering and $55 million for future pain and suffering.

A Lawyer said that, plaintiff’s treating physician, the Director of Spinal Cord Services at Helen Hayes Hospital, described in explicit detail the nature and effect of the spinal injuries plaintiff incurred. The Doctor provided the court and jury, inter alia, with a graphic picture of plaintiff’s suffering, stating in part, that the pain plaintiff continues to experience “is of two types. He has nerve pain in his legs, and that nerve pain is perhaps one of the worst pains that you could think of. Imagine somebody stabbing you with a knife, a gazillion times, or with a pin all over the place. That numbness, that tingling, that stabbing sensation” is “present all the time, but it is a constant pain and that pain will not go away.” He depicted plaintiff’s chronic pain by providing the jury with a vivid description of the damage to plaintiff’s spinal column when the rebar went into the area of his spinal cord and the compression fracture also caused by the pipe entering his body. He described the emotional pain sustained by the plaintiff caused by the distress of no longer having the ability to walk and the nerve pain emanating from his legs which he testified was permanent. The jury also heard testimony regarding plaintiff’s chronic bed sores, his cauterization in order to urinate, his inability to control bowel movements, constant urinary tract infections and repeated hospitalization for the conditions described by the Brooklyn Doctor.

A Lawyer said that, the defendant moves pursuant to CPLR §4404 and §5501, to reduce the damages awarded to the plaintiff, after a jury trial, contending that the award is excessive and materially deviates from fair and reasonable compensation.

The issue in this case is whether the damages awarded to plaintiff is excessive and materially deviates from fair and reasonable compensation.

The Court said that, manifestly, pain and suffering awards are not subject to precise standards that permit a purely mathematically evaluation in order to determine whether a verdict deviates materially from what is reasonable compensation. CPLR §5501 requires that: “In reviewing a money judgment in an action in which an itemized verdict is required by rule forty-one hundred eleven of this chapter in which it is contended that the award is excessive or inadequate and that a new trial should have been granted unless a stipulation is entered to a different award, the appellate division shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation.”

It is well established that the language quoted, although specifically directed to the appellate courts, also applies to the trial court mandating the trial court to review jury awards to determine whether the award is excessive or inadequate. Consequently, review under CPLR 5501 requires the trial court to evaluate whether the award deviates from comparable awards and as the court observed, reviewing comparable awards “cannot, due to the inherently subjective nature of non-economic awards, be expected to produce mathematically precise results, much less a per diem pain and suffering rate.” It is also evident that review of jury verdicts for personal injuries to ascertain whether the award is reasonable, involves questions of fact.

Defendant referred this Court to several cases in an effort to convince the Court that the award, in the instant case, is not fair and reasonable. At the outset, this court acknowledges that the verdict rendered by the jury in the case at bar is unprecedented in view of the evidence presented regarding plaintiff’s spinal injuries and the jury award clearly exceeds what can be considered fair and reasonable. However, this recognition regarding the size of the verdict in the instant case does not automatically carry with it the court’s determination that the award falls within the boundaries which defendant suggests would be a fair and reasonable award for the plaintiff, who concededly is a paraplegic experiencing constant pain.

Evaluation of prior awards, in similar personal injury cases is intended to provide guidance to the court in resolving disputed contentions regarding the adequacy or inadequacy of a verdict so that issues such as prejudice or sympathy do not become the motivating factor for the award. The trial court, therefore, in reviewing a jury award must consider the nature of the injury sustained by the plaintiff, the plaintiff’s age, the physical condition of the plaintiff prior to the occurrence, the permanency of the injury sustained, plaintiff’s ability to return to gainful employment, the pain, both physical and emotional, experienced and to be experienced in the future, the extent of future hospitalization and ascertain whether the award in part was generated by the devastating effect of plaintiff’s injury. Here, x rays introduced at the trial showing the presence of the rebar that entered plaintiffs body clearly invoked sympathy by the jury causing in part, a huge verdict that was intended to compensate the plaintiff not only for pain and suffering he sustained but the grief experienced by the impact of the steel rod entering his body. Manifestly, modification of damages awards cannot be based on past precedents alone.

This Court’s review of the cases set forth in this opinion denotes the factors which are considered in assessing what would be reasonable compensation. This process, now completed, does not however provide a clear picture that permits the application of some formula that identifies the limits of compensation for injuries that parallel plaintiff’s suffering. It is undisputed that plaintiff who at one time was a strong and vibrant man is now a wheelchair bound paraplegic. The devastating injury he sustained was caused by the pipe that upon entering his body destroyed his bowel requiring a colostomy bag to collect his waste matter and he is required to manage his bladder with catheters. Plaintiff’s nerve pain in his legs is continuous and permanent. Such injuries, including those previously described, including the permanency of his injuries and his inability to return to gainful employment, are the factors that this court has applied in determining what would be reasonable compensation.
For the foregoing reasons, this Court grants defendant’s motion to set aside the verdict as excessive unless within 30 days after service of a copy of this decision and order with notice of entry plaintiff stipulates to reduce the jury award for past pain and suffering from $20 million to $5 million; for future pain and suffering from $55 million to $10 million, and for future medical related expenses from $10 million to $8,295,000.
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One Sunday, plaintiff, then twenty-seven years of age, was returning home from church services with her two children, a daughter then, 3 1/2 years of age and son, then 2 1/2 years of age, accompanied by her mother, then 62 years of age. The group proceeded along Buhrem Avenue in Bronx County and came abreast of defendants’ one-story taxpayer building. At this point, the infant daughter walked ahead, necessitating her mother’s ‘catching up’ to ensure that she did not go near the street. On the top of defendant’s building was a brick parapet approximately seven feet in height and one hundred feet long. This parapet had been observed to be leaning outward toward the sidewalk for a period of at least six months prior to the accident. The falling of this parapet wall occasioned the accident.

A doctor said that, plaintiff testified that she turned around to see how far her mother and son were behind, and heard her son asking for a cookie. Her mother stopped and reached into her bag to get him a cookie. Then plaintiff turned back to her daughter and heard a loud roar. When she turned around, she saw bricks were falling and hit the side of her body. She ran over and saw her mother and son under the bricks. A bystander rushed to aid plaintiff and the fallen victims and through his intervention plaintiff was able to remove her son, who was moaning, from the debris. He took plaintiff and her son to the hospital. Plaintiff, holding her injured son on her lap in the back seat of the vehicle, had for the first time a chance to look at his body. She testified that ‘his legs were hanging off at the sides. He had a little sun suit on, so it was very clear to me what I saw. I went to push his legs back on but I was afraid they would fall off. And as I did so I grabbed his shoes and saw that his ankles were the same way his thighs were’. Plaintiff’s son died on the evening of the same day from cardiac arrest following surgery necessitated by the previous personal injuries he sustained. The personal injuries sustained by plaintiff’s mother were severe, including comminuted compound fractures of the legs, pelvis, and ribs, a severe avulsion laceration of the scalp, and a spinal cord trans-section at about the middle of her back which paralyzed her from that point down. She was conscious with some intermittent periods of unconsciousness, and underwent two operations not under anesthesia. Plaintiff’s mother died as a consequence of her spinal injuries on May 19, 1970.

A Lawyer said that, after trial the jury returned a verdict in favor of plaintiff’s son’s father as administrator of the deceased infant in the amount of $150,000 for wrongful death and $25,000 for conscious pain and suffering. The trial court reduced the award for wrongful death to $40,000 and for conscious pain and suffering to $5,000. The jury verdict in favor of plaintiff’s father, the surviving spouse o plaintiff’s mother, in his capacity as administrator of her estate in the amount of $75,000 for wrongful death and $25,000 for conscious pain and suffering was not disturbed.

Plaintiff in the fourth cause of action set forth in the complaint asserts that her son at the time of the accident was accompanied by members of his family and that she therefore was a witness to the accident and ‘suffered severe emotional and mental trauma and anxiety and grief, with residual physical effects, resulting solely from the negligence of the defendant.’ A Lawyer said that, at the trial’s inception, the corporate defendant for the first time moved to dismiss this cause of action on the authority of the 1969 Supreme Court decision. This motion was granted by the trial court. A Lawyer said that, plaintiff thereupon took exception and moved to amend her complaint by asserting a cause of action, similar to the previously pleaded fourth cause of action, but limiting damages to the emotional trauma sustained as a result of her own involvement in the accident, as distinguished from damages she suffered only because she saw a building fall on her son and mother. The trial court originally granted this application, but subsequently, reversed itself, viewing the amended claim as a ‘new cause of action’ which is barred by the statute of limitations.

The issue in this case is whether plaintiff is entitled to damages for the death of her son and mother.

The Court said that, study of the rationale set forth in the 1969 case, impels the conclusion that plaintiff may not recover merely because she was an eyewitness to the occurrence resulting in the deaths of her infant son and mother. Similarly, it does not stand for the proposition that she cannot recover because she was an observer of the accident. Beyond peradventure plaintiff was not only an observer of, but a participant in the occurrence. In analyzing the considerations which give rise to the rule enunciated in the 1969 case, the then Chief Judge, initially observed that as to the scope of duty to one who is not directly the victim of an accident causing severe physical injury to a third person, the problem is ‘whether the concept of duty in tort should be extended to third persons, who do not sustain any physical impact in the accident or fear for their own safety’. Plaintiff did not under the facts as narrated by her sustain injury solely as the result of the personal injuries directly inflicted on her son and mother, but sustained harm as a consequence of being within the zone of danger and responding to her natural instinct to rescue her child and mother during the course of the occurrence. The bricks were still falling, according to plaintiff, as she advanced to her infant son and her mother and she was struck by some of them. The circumstances herein are unique and fall without the ambit of the rule enunciated in the 1969 case. Being directly involved in the accident, said plaintiff’s claim does not create the problem of unlimited liability which engaged the attention of the then 1969 case court.

Viewing the allegations of the fourth cause of action asserted by plaintiff in the context of the type of accident occurring, namely, the collapse of an entire parapet wall with consequent raining of hundreds of bricks into the street below, the defendants could not reasonably construe the averment that plaintiff ‘was a witness to the aforesaid occurrence’ in a narrow sense. It was clearly averred that the infant decedent was accompanied by members of his family at the time of the occurrence. On a motion to dismiss for failure to state a cause of action, the pleading must be liberally construed and every fair intendment given to the allegations contained therein. Thus viewed, the complaint served to put defendant on notice that plaintiff’s status as a witness may well have been imparted because of her status as a participant in the occurrence. Under these circumstances, plaintiff should not be penalized for failing to specifically assert a claim for recovery based upon physical contact with the falling bricks. Despite the information given in the bill of particulars relating to plaintiff’s physical ailments and confinement as consequence of the severe emotional and mental trauma suffered, defendant awaited the eve of trial with the apparent expectation that through a statute utilization of the 1969 case, it could effectively non-suit this plaintiff.

Confronted with the trial court’s rulings striking the fourth cause of action and refusing to allow amendment of said cause, plaintiff’s counsel made an offer of proof not in the jury’s presence to the effect that plaintiff, since the events of May 10, 1970, was on a prescription of tranquilizers, distraught, disoriented, constantly apprehensive of things falling upon her from the sky; that she walked on the curb line of sidewalks, and finally that she compelled her husband to reconstruct their own home although there was nothing wrong with the brickwork. Further, an offer of proof was made to the effect that the physician treating plaintiff for her emotional trauma would have testified that the accident of May 10, 1970 was the competent producing cause of her emotional and psychological traumas and fears. Parenthetically, it is noted that the plaintiff’s counsel in his brief asserts that defendant Buhre Avenue Co. Inc.’s counsel received the doctor’s report prior to filing of the note of issue but that said defendant opted not to conduct any examination before trial of plaintiff and decided to forgo a physical examination of her as well.

At this point it should be remembered that the 1969 case enunciated a policy determination with respect to substantive law, to wit, that ‘no cause of action lies for unintended harm sustained by one, Solely as a result of personal injuries inflicted directly upon another, regardless of the relationship and whether the one was an eyewitness to the incident which resulted in the direct injuries’. The zone of danger rule was regarded as ‘quite relevant’ to the problem of allowing recovery to an eyewitness. Peculiarly, although the 1969 case was decided on the pleading alone, which pleading alleged psychic injury from the fact that a mother witnessed an accident to her child, the Court of Appeals in Brooklyn was cognizant of the fact as developed in an examination before trial that the mother involved did not in fact witness the accident. Patently, the harm to plaintiff was direct. The corporate defendant cannot reasonably claim surprise or that, it was misled. Essential justice mandates affording this litigant her day in court.

Accordingly, the judgment of the Supreme Court, Bronx County, should be modified to the extent of reversing, on the law, the dismissal of the cause of action of plaintiff, said cause of action should be reinstated and a new trial granted thereon, without costs and without disbursements; further, the judgment should be modified, on the law and the facts, so as to grant a new trial to defendants-appellant as against plaintiff’s father, as administrator of the estate of plaintiff’s deceased mother, solely on the issue of damages with respect to the wrongful death claim of said administrator, unless he, within 20 days of service upon him by the defendants-appellants of a copy of the order entered herein, with notice of entry, serves and files in the Office of the Clerk of the Supreme Court, Bronx County, a written stipulation consenting to reduce the verdict in his favor on the wrongful death claims to $60,000 and to the entry of an amended judgment in accordance therewith.
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Brooklyn Claimant sustained injuries arising out of and in the course of her employment on two occasions. First was in December 1988, when claimant injured her neck, back, shoulders, knee and left elbow, and the second was in September 1989, after claimant had been released to return to full-duty work, when claimant injured her fingers. Since her first injuries, claimant has been treated by a doctor, doctor-one, who is a board-certified orthopedic surgeon. Doctor-one diagnosed claimant as suffering from cervical and lumbar spondylosis or arthritis.

According to doctor-one, claimant had suffered from a pre-existing arthritic condition which was exacerbated by her work related injury; that, because of claimant’s arthritis, she was not going to get better, that is, she would continue to experience good periods and bad periods, as she had for some time; that there was little that he could offer claimant in the way of new treatment. Doctor-one prescribed physical therapy which had included traction, heat, ultrasound and electrical stimulation for some time, for temporary relief of claimant’s symptoms; and recommended that claimant continue to receive physical therapy as needed. However, according to the claimant, the physical therapy prescribed by doctor-one provided only temporary relief from her symptoms. Thus, she wanted to be treated by doctor-two, a chiropractor, by reason of the fact that her husband had been treated successfully by the said doctor, and she felt that doctor-two could achieve similar results with her. Claimant then filed a claim seeking authorization for a chiropractic treatment to be conducted by doctor-two.
Consequently, doctor-two was called to testify. According to doctor-two who is a chiropractic physician, claimant is suffering from cervical neuralgia, cervical myofascitis, a strain or sprain of the thoracic spine, a lumbar strain or sprain, sacroiliac disorder and temporal mandibular joint pain-dysfunction syndrome. Based upon his diagnosis, doctor-two concluded that claimant was a candidate for chiropractic therapy which basically consists of adjustments or manipulations to correct the osseous disrelationships of her entire spine and sacroiliac joints; that he would use traction in the low back, exercises and some electrical stimulation. Doctor-two opined that chiropractic treatment would be beneficial to the claimant because the key thing is to get the vertebrae that are out of place, or the subluxated, back into their proper respective position and functioning again, and he saw nothing about claimant’s condition to suggest that it would be inappropriate to treat her in such a way.

Now, over the objection that he was unqualified to render such opinions, doctor-one states that he tried to read a lot of chiropractic literature; that he was familiar with the general nature of treatment modalities that a Westchester chiropractor offers; and that he had had training in some forms of manipulation; that, within a reasonable degree of medical probability, while manipulation in the proper hands in the proper situation is beneficial, in claimant’s case manipulation might be harmful; that arthritic joints which would be placed through a motion that they would not normally be placed through in some respects would be like going through the trauma or the initial auto accident that the patient describes; that it could increase the symptoms; and that the treatments other than manipulation which were normally used in the practice of chiropractic were not different from those already available to claimant through physical therapy.

Thereafter, the judge of compensation claims concluded that doctor-two should not be authorized because based upon doctor-one’s testimony, manipulation would be inappropriate, given claimant’s condition; that, other than manipulation, claimant was already receiving essentially the same treatment that doctor-two recommended; and that claimant’s request was motivated by unrealistic expectations, because she believed that chiropractic treatment would result in a cure. The judge issued a worker’s compensation order denying the claimant’s request for authorization. Thus, claimant now seeks for a review of the order.

Here, claimant argues that the conclusions of the judge of compensation claims is not supported by competent substantial evidence because doctor-one, as an orthopedic surgeon, was not qualified to render opinions on the subject of the appropriateness of chiropractic treatment, thus, doctor-two’s testimony that chiropractic treatment was appropriate was not controverted. The court finds this bereft of merit.

Under the law, an employer is required to furnish to the employee such medically necessary remedial treatment, care, and attendance by a health care provider and for such period as the nature of the injury or the process of recovery may require. The terms “medically necessary” is defined as any service or supply used to identify or treat an illness or any personal injury which is appropriate to the patient’s diagnosis, consistent with the location of service and with the level of care provided; and the service should be widely accepted by the practicing peer group, should be based on scientific criteria, and should be determined to be reasonably safe. While it may well be true that, in a majority of cases, only a similar health care provider will possess the qualifications necessary to permit him or her to testify regarding whether a requested care or treatment is medically necessary, this is not the case herein. Under the Evidence Code, the determination of a witness’s qualifications to express an expert opinion is within the discretion of the trial judge, whose decision will not be reversed absent a clear showing of error. The court does not see why a different standard should be applied in workers’ compensation cases.
It is unquestionable that doctor-one, as an orthopedic surgeon, possesses the qualifications necessary to permit him to offer opinions regarding the effect of arthritis upon a person’s joints in general, and spine in particular. And, there can only be a little question regarding doctor-one’s qualifications to offer opinions as to the likely effect of unusual or abnormal movement of the spine upon one suffering from arthritis. Such opinions are clearly based upon his knowledge acquired as an orthopedic surgeon. The only real question presented is whether doctor-one possesses enough knowledge about chiropractic manipulation to be able to render an opinion as to the effect of such movement upon the spine of someone like claimant, who is suffering from arthritis. It must be noted that doctor-one tried to read a lot of chiropractic literature; that he was familiar with the general nature of treatment modalities that a chiropractor offers; and that he had had training in some forms of manipulation. The court believes that such testimony was sufficient to permit the judge of compensation claims to conclude that doctor-one knew enough about chiropractic manipulation to opine whether, from a medical standpoint, such movement of the spine would be likely to help or to harm claimant. In fact, the court fails to see any meaningful distinction between such testimony and testimony that, within a reasonable degree of medical probability, a particular type of unusual or abnormal movement, such as might occur during a fall or an auto accident, would be likely to cause a spinal injury, or a cervical or lumbar sprain or strain. Clearly, an orthopedic surgeon would be permitted to offer the latter opinions.

In sum, it is without a doubt that the record contains competent substantial evidence to sustain the finding of the judge of compensation claims that chiropractic manipulation would be inappropriate given the claimant’s arthritic condition. The court finds that the evidence is indeed sufficient to support the decision of the judge of compensation claims to deny the request to authorize doctor-two by reason of the fact that the requested chiropractic treatment was not medically necessary. Thus, the order appealed from must be affirmed.
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This action was commenced by a man to recover damages for personal injuries allegedly sustained in a motor vehicle accident. He alleges that he sustained neck and back injury when the vehicle he was driving, which was stopped for a red light, was struck in the rear by a vehicle driven by a woman. More specifically, the man alleges in his bill of particulars that he suffered spinal injuries as a result of the subject accident. At a deposition conducted, he testified that he is employed as a Bronx laborer for a Brooklyn construction company, and that he missed 11 days of work due to his spine injuries.

The opponent woman moves for summary judgment dismissing the complaint on the ground that the man is precluded by Insurance Law from recovering for non-economic loss, as he did not sustain a serious injury within the meaning of Insurance Law. The woman’s submissions in support of the motion include copies of the pleadings; a transcript of the man’s deposition testimony; medical reports prepared by the complainant man’s treating chiropractor, and his treating neurologist; and magnetic resonance imaging (MRI) reports regarding the man’s cervical and lumbar regions prepared in February 2005. Also submitted by the woman in support of the motion is a sworn medical report prepared by the orthopedic surgeon. At the woman’s request, the orthopedic surgeon conducted an examination of the man on June 28, 2006, and reviewed various medical records related to the man’s alleged spinal injuries.
The orthopedic surgeon’s report states that the man presented with complaints of chronic neck and back pain, as well as an occasional limp. The report states, in relevant part, that the man exhibited full range of motion in his cervical and lumbar regions, with no palpable muscle spasm or tightness, during the physical examination. It states that the man stood erect, with no evidence of asymmetry, and that he moved easily during the examination. The report also states that the man demonstrated full range of motion in his upper and lower extremities; that there was no evidence of muscle atrophy or compression neuropathy; and that there was no evidence of any motor or neurological dysfunction. The orthopedic surgeon opines that the man suffered cervical and spine injuries as a result of the accident, and that both conditions have resolved. He further concludes that there was no evidence that the man suffers from any ongoing orthopedic dysfunction or disability.

The man opposes the motion for summary judgment, arguing that the proof submitted by the woman fails to establish legitimately that he did not suffer a significant limitation of use in his lumbar spine as a result of the subject accident. Alternatively, the man asserts that medical evidence presented in opposition raises a triable issue of fact as to whether he sustained injury within the significant limitation of use category of Insurance Law. The Court notes that although the affirmation by the man’s counsel states that a denial of benefits statement from the no-fault carrier, the insurance company was included with the opposition papers, no such statement was annexed thereto. In addition, while an affidavit by the man states that he treated with a doctor until September 2005, the doctor’s affidavit states that the man ceased treatment in July 2005, because of financial constraints.

Insurance Law 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.
An accused seeking summary judgment on the ground that a complainant’s negligence claim is barred under the No-Fault Insurance Law bears the initial burden of establishing a legitimate case that the complainant did not sustain a serious injury. When an accused seeking summary judgment based on the lack of serious injury relies on the findings of the accused party’s own witnesses, those findings must be in admissible form, and not unsworn reports to demonstrate entitlement to judgment as a matter of law. An accused also may establish entitlement to summary judgment using the complainant’s deposition testimony and medical reports and records prepared by the complainant’s own physicians. Once an accused meets the burden, the complainant must present proof in admissible form which creates a material issue of fact, or demonstrate an acceptable excuse for failing to meet the requirement of tender in admissible form. However, if an accused does not establish a legitimate case that the complainant’s injuries do not meet the serious injury threshold, the court need not consider the sufficiency of the complainant’s opposition papers.

Contrary to the conclusive assertions by the man’s counsel, the medical evidence presented by woman establishes legitimately that the man did not suffer a serious injury as a result of the accident. The Court notes that an accused who submits admissible proof that a complainant has full range of motion and suffers no disabilities as a result of the subject accident establishes a legitimate case that the complainant did not sustain a serious injury, despite the existence of an MRI report showing a herniated or bulging disc. The burden, therefore, shifted to the man to raise a triable issue of fact.

A complainant claiming injury within the limitation of use categories must substantiate his or her complaints of pain with objective medical evidence showing the extent or degree of the limitations of movement and their duration. He or she must present medical proof contemporaneous with the accident showing the initial restrictions in movement or an explanation for its omission, as well as objective medical findings of limitations that are based on a recent examination of the complainant. In addition, a complainant claiming serious injury who ceases treatment after the accident must offer a reasonable explanation for having done so.

The man’s submissions in opposition are insufficient to raise a triable issue of fact. The affidavit by the man’s doctor improperly relies on unsworn reports of others in concluding that the man suffered significant limitations in spinal function as a result of the accident. Further, the man’s doctor’s affidavit states that on February 22, 2005, the man was sent for spinal rave of motion testing using a dual inclinometer and details the degrees of movement measured at that time. It states that range of motion testing using a dual inclinometer was performed again in March 2005 and provides the measurements taken, yet does not indicate who performed such testing. The doctor’s affidavit, therefore, is without probative value on the question of whether the man suffered a serious injury in the accident.

Moreover, the man failed to present competent medical proof contemporaneous with the accident showing significant limitations in spinal movement and the duration of such limitations. He also failed to provide evidence substantiating his allegations that he was forced to cease medical care just months after the accident, because his no fault benefits were terminated and he lacked the financial means to pay for such care. Finally, absent objective medical proof as to the significance or duration of the alleged spinal injuries, the man’s self-serving affidavit, which contains allegations of continued lower back pain and restricted movement, is insufficient to defeat summary judgment. Accordingly, summary judgment dismissing the complaint based on the man’s failure to meet the serious injury threshold is granted.
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The Bronx complaint of this action sets forth causes of action sounding in medical malpractice, lack of informed consent asserted on behalf of the complainant woman and a derivative claim asserted on behalf of her spouse. It is claimed that the accused parties negligently departed from good and accepted standards of medical/surgical/anesthesia care and treatment when the complainant woman was admitted to the hospital for a scheduled right total hip replacement due to osteoarthritis and lack of blood flow on the right hip, and failed to inform her of the risks and complications associated with the surgery, anesthesia, and treatment with an anti-coagulant drug. It is claimed that due to the negligence of the orthopedic surgeon, the anesthesiologist and the hospital, the woman was caused to suffer extensive bleeding in the area of the lumbar plexus and to sustain serious injury and nerve damage resulting in right lower extremity weakness, foot drop, and numbness due to the failure of the accused parties to properly and timely treat her condition. It is further claimed that the accused doctors and hospital failed to properly provide information concerning the risks, benefits and complications to her to enable her to give an informed consent. The orthopedic surgeon performed the hip replacement, the anesthesiologist administered the spinal anesthesia for the surgery, and postoperative placed a lumbar plexus block and peripheral nerve block.

The moving doctors and hospital seek an order granting summary judgment dismissing the complaint asserted against them on the basis they did not deviate from good and accepted standards of care during the care and treatment and admission of the woman which proximately caused the claimed injuries she suffered.

The accused orthopedic surgeon and anesthesiologist individually submitted their attorney’s affirmation; the affidavit, copies of the summons and complaint, answer, amended answer; the complainants’ verified bill of particulars; and copies of the transcripts of the examinations before trial It is noted that the deposition transcripts of the two doctors are not in admissible form and are not accompanied by an affidavit pursuant to the Civil Practice Laws and Rules, and therefore, are not considered.

The accused Brooklyn hospital also submitted an attorney’s affirmation; copies of the pleadings and the woman’s verified bill of particulars; certified copy of the woman’s hospital record; expert affirmation of the anesthesiologist and copies of the transcripts of the examinations before trial of the orthopedic surgeon. It is noted that the deposition transcripts of the orthopedic surgeon and the anesthesiologist are not in admissible form and therefore, are not considered.

The orthopedic surgeon opines with a reasonable degree of medical certainty that his care and treatment of the woman was well within the standard of care. He states he took a proper history during a telephone call with her, ascertained that she had hypertension for which she was taking medication, she had a previous knee surgery, she had no allergies, and he advised her that she would have to obtain medical clearance with her internist and have preoperative testing at the hospital. He dictated a history and physical note and indicated she was taking medications for her blood pressure. He states all of his actions demonstrate that he took a proper pre-surgical medical history. He further avers that he is not an anesthesiologist, and did not direct the anesthesiologist to place the psoas block, he did not have a role in the placement of the needle either for spinal anesthesia or the catheter for the psoas block. He states that it is the standard of care to place all patients undergoing a total hip replacement on anticoagulation therapy postoperatively to prevent the possibility of deep vein blood clot, and the anesthesiologist was aware of that. He further states it is the standard of care to place a psoas block for post-operation pain management in a patient receiving postoperative anticoagulation therapy. He discussed the risks of surgery with the woman as is his custom and practice, and advised of the risks of blood clot, lung artery blockage, death, infection, dislocation, and fracture, forming of bone tissues outside the skeleton, leg length inequalities, alignment issues, neurovascular injury, pain and stiffness. The orthopedic surgeon states he saw the woman every day in the hospital and her first complaint that she was unable to move her right lower extremity. He states his treatment was appropriate as he reviewed x-rays of the hip and a CT scan of the abdomen and pelvis, ordered pain medication and physical therapy. As an orthopedist, he states, he does not treat neurological problems such as foot drop, and the next day, called in a neurologist to evaluate her. He states he timely addressed the neurological complaint and did not fail to institute emergency measures, did not take improper corrective measures; and called in a specialist.

Based upon the foregoing, it is determined that the orthopedic doctor has not demonstrated legitimate entitlement to summary judgment dismissing the complaint. He does not state that he advised the woman of the possibility of bleeding from the therapy and thus that she received proper informed consent concerning the use of anticoagulant therapy. He opines that he timely and properly addressed the neurological complaint and did not fail to institute emergency measures, but does not state what the proper standard of care is for the neurological problem which the woman was experiencing and the time frame for such treatment, nor what his emergency measures were. Nor has he submitted the affirmation from an expert neurologist in support of his claim that his treatment of the woman’s neurological condition was timely and appropriate and the proper emergency measures to be taken. Further, he does not set forth the standard of care for a patient taking anticoagulation therapy and whether this standard was followed and the results of such treatment and testing. He does not state the proximate cause of the patient’s neurological injury and does not rule out that such injury was not caused by the surgery he performed, or that it was caused by any acts or omissions on behalf of the anesthesiologist.

The anesthesiologist has submitted the affirmation of his expert anesthesiologist who sets forth that he is a physician licensed to practice medicine in the State of New York and is board certified in Anesthesiology. Based upon his review of the relevant pleadings and bill of particulars, it is his opinion that he has become fully conversant with the allegations and opines with a reasonable degree of medical certainty that the care and treatment rendered by the accused anesthesiologist at all times comported with good and accepted medical practice without any deviation or departures there from, and that none of the care provided by the accused anesthesiologist contributed in any manner to the woman’s alleged personal injuries.
Based upon the foregoing, it is determined that the accused anesthesiologist has not demonstrated legitimate entitlement to summary judgment dismissing the complaint against him on the issue of liability and proximate cause as he has not addressed the issue of lack of informed consent and has not opined whether or not informed consent was provided to the woman concerning her anesthesia choices, risks, benefits and complications.

The hospital has submitted the affirmation of a physician duly licensed to practice medicine in the State of New York, board certified in neurology. It is his opinion with a reasonable degree of medical certainty that the care and treatment rendered at the hospital by its employees did not depart from good and accepted standards of medical care and treatment and there is no action, treatment, diagnosis, finding, study, recommendation, or care provided, or omission, which was the cause of, or a significant contributing factor to, any injury alleged to have been sustained by the woman.

It is hospital neurologist’s opinion with a reasonable degree of medical certainty that the staff of the hospital carried out all physician orders in a timely and appropriate manner; none of the orders made by the woman’s physicians were contraindicated by normal practice; the woman was appropriately monitored and observed; the chart is thorough and well-documented; the woman’s symptoms and complaints were timely and appropriately heeded and were relayed to her physicians in a timely manner and responded to timely and appropriately by the hospital; a neurologist was appropriately called and appropriate diagnostic studies were performed; and that none of the alleged acts or omissions of the hospital proximately caused or contributed to the woman’s injuries.

Based upon the foregoing, it is determined that the hospital has demonstrated a legitimate entitlement to summary judgment dismissing the complaint as asserted against it based upon the neurologist’s opinion.

There has been no affidavit submitted by the complainants to rebut the neurologist’s opinion demonstrating legitimate entitlement to summary judgment dismissing the complaint as asserted against the hospital on the basis that the hospital and its employees did not depart from accepted standards of care and that none of the alleged acts or omissions proximately caused or contributed to the woman’s injuries. Accordingly, the motion by the hospital for summary judgment dismissing the complaint is granted and the complaint is dismissed with prejudice as asserted against the hospital.

A doctor states he is a physician duly licensed to practice medicine in the State of New York and is a diplomat of the American Board of Anesthesiology and board certified by the American Academy of Pain. It is his opinion to a reasonable degree of medical certainty that during the hip replacement procedure, there were complications as a result of the negligence of the accused doctors which caused a bleed around the lumbar plexus which caused the woman to sustain a nerve root injury causing a foot drop, and there were numerous medical malpractice which caused the devastating injuries to the woman.

Based upon the foregoing, it is determined that the anesthesiology diplomat has raised factual issues concerning whether the woman was on an anticoagulant drug prior to surgery creating factual issues with regard to both accused doctors’ care and treatment, and whether she was taking the anticoagulant drug and when it was started. The anesthesiology diplomat further opines that the accused orthopedic doctor, as leader of the surgical team, deviated from the standard of care concerning positioning of the woman, proximately causing her injuries. Although a further affirmation has been submitted in the Reply papers in an attempt to counter some of the anesthesiology diplomat’s opinions, summary judgment may not be awarded where the parties adduce conflicting opinions of medical experts; when experts offer conflicting opinions, a credibility question is presented requiring a jury’s resolution. Additionally, an affirmation received in a Reply deprives the woman from responding to such affirmation, and all arguments in support of the doctors’ motion should have been made in the moving papers to establish legitimate entitlement to summary judgment. There are further factual issues concerning whether the level of the placement of the catheter could in fact proximately cause the injuries claimed. Accordingly, the motion by the orthopedic doctor, and cross motion by the anesthesiologist for an order granting summary judgment dismissing the complaint as asserted against them are denied.
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On March 16, 2003, two cars were involved in a head-on collision in an expressway in Brooklyn, New York. Both the drivers of the two cars claimed damages for serious spinal injuries they allegedly sustained. Both claim that they lost the function of their lumbar or cervical spine. Both claimed bulging discs at the cervical spine, herniated discs at the lumbar spine, sprain and nerve damage. The drivers sued each other as well as their insurers for damages.

Both submitted magnetic resonance imaging scans which their medical experts used as basis to find that there were degenerative changes in the cervical and lumbar spine which show herniation (swelling).

However, the medical reports issued by the examining neurologist at the time of the accident only found the two drivers to be suffering from cervical and thoracic spinal sprain and right shoulder sprain. In the weeks that followed the accident, the same attending neurologist made follow-up reports of the development of the injuries sustained by both the drivers and reported that the spinal sprains have resolved themselves. Even the sprain in the right shoulder and right arm were also resolved. This is evidence, according to the insurers, that neither driver sustained serious injury such that they can be compensated under the Insurance Law. There is no evidence that links their injuries as caused by accident.

For their part, the drivers both answered the contention of their respective insurers that the injuries sustained by them were not serious injuries. They both claimed that at the time of the accident, their injuries were “serious” enough to cause them pain and to cause them to refrain from their normal activities. They could not go to work and had to rest in bed. They both claim that is only thanks to rigorous physical therapy. They produced authenticated medical records from the neurologists and radiologists they consulted who all opined that the bulging and swollen discs of their cervical and lumbar spine were all directly caused by the accident.
The insurers filed motions for summary judgment asking that the complaints against them be dropped. They both claim that while both the drivers sustained injuries as a result of the accident, their injuries may not be serious injuries as defined by the Insurance Law such that the insurers cannot be made liable to pay therefor.

The only question before the trial court was whether or not the summary judgment should be granted and the case against them be dismissed. The trial court granted the summary judgment. Both drivers then appealed.

Upon appeal, the only question before the Court is whether or not the order granting the motion for summary judgment was proper.

The Court held that the insurers gave acceptable preliminary proof that the two drivers did not sustain a serious injury as it is defined under the Insurance Law. The drivers have succeeded in proving that they both suffered from bulging or swollen spinal discs. However, swollen spinal discs by themselves cannot be considered as acceptable evidence of a serious injury.
Both the drivers have to submit proof that the swollen spinal discs constitute serious injury that would disable them from doing their usual work and daily activities. The Court held that when they submitted scans and reports of their own physicians, the two drivers have raised a material issue of fact that has to be tried. That is to say, both the drives were able to submit evidence that raised an issue of fact which a jury alone can determine.

Thus, the Court remanded the case for further proceedings to determine the material issue of fact raised by the two drivers.
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This involves a motion where the court denied defendant’s prayer for summary judgment to dismiss the claim of plaintiff.

Plaintiff Bianca and her mother commenced an action to recover damages for personal injuries allegedly sustained in a car accident that occurred on Prospect Street in Kings County on October 25, 1996. The accident allegedly happened when a vehicle driven by defendant struck the rear of a vehicle operated by plaintiff, which was stopped due to traffic conditions on Prospect Street. The bill of particulars alleges that plaintiff sustained various injuries as a result of the collision, including a bulging disc at level L5-S1 of the lumbosacral spine; lumbar radiculopathy; right knee sprain/strain; cervical and lumbosacralsprains/strains; and “cervical paraspinal myofascitis with discogenic radiculopathy.” It further alleges that plaintiff, who sought treatment at the emergency department of Brooklyn Hospital Center immediately after the accident, was confined to home for approximately six months due to her injuries.

Defendant moves for summary judgment dismissing the claim of plaintiff on the ground that she is precluded by Insurance Law §5104 from recovering for non-economic loss, as she did not sustained a “serious injury” within the meaning of Insurance Law §5102 (d).

Insurance Law § 5102 (d) 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.”

According to the court, a defendant seeking summary judgment on the ground that a plaintiff’s negligence claim is barred under the No-Fault Insurance Law bears the initial burden of establishing a prima facie case that the plaintiff did not sustain a “serious injury”. ]). When a defendant seeking summary judgment based on the lack of serious injury relies on the findings of the defendant’s own witnesses, “those findings must be in admissible form, i.e., affidavits and affirmations, and not unsworn reports” to demonstrate entitlement to judgment as a matter of law. A defendant also may establish entitlement to summary judgment using the plaintiff’s deposition testimony and medical reports and records prepared by the plaintiff’s own physicians . Once a defendant meets this burden, the plaintiff must present proof in admissible form which creates a material issue of fact, or demonstrate an acceptable excuse for failing to meet the requirement of tender in admissible form. However, if a defendant does not establish a prima facie case that the plaintiff’s injuries do not meet the serious injury threshold, the court need not consider the sufficiency of the plaintiff’s opposition.

Contrary to the assertions by the Staten Island defense counsel, the sworn medical report by the physician is insufficient to demonstrate prima facie that plaintiff did not suffer a serious injury in the subject accident. Although the physician concludes in his report that his examination revealed that plaintiff only has “minimal residual cervical sprain without functional deficit” and no evidence of residual lumbosacral sprain or other orthopedic disability, his report fails to indicate the objective tests performed to support these finding. Further, while the report states that plaintiff exhibited “good” cervical movement and “no loss” in rotation, lateral bending and extension in the lumbar region, it does not indicate the range of motion measurements taken during the examination. Moreover, the physician indicates in his report that plaintiff exhibited “20 degrees decreased flexion” in her cervical spine and did not offer any cause for such limitation other than the accident or show that such a limitation is insignificant.

The motion for summary judgment, therefore, is denied, as defendant failed to establish prima facie that plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102 (d) as a result of the subject accident.
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A independent building and construction contractor was working for a construction corporation in a project in Panama City on September 3, 1985. He was at the office working on some paper work. While he was seated at his desk, he reached out to his left to a cubby hole near his desk for some more blueprints. As he reached for the blueprints he turned in his seat. He twisted his trunk and he could not move: hand outstretched, trunk twisted to the left in his seat. He remained there until his wife found him forty-five minutes later. An ambulance was called to rush the independent contractor to the hospital.

His wife took him to the emergency room where he was diagnosed to be suffering from paralysis from the neck down. CT scans were performed on him in Panama City and he was diagnosed with sudden quadriparesis (weakness in the muscles of the four limbs) of unknown origin. The doctor in Panama City opined that his injury was vascular in origin and it must have been a pre-existing vascular anomaly.

The Panamanian construction company, his employer, paid for his medical bills and paid for temporary partial disability benefits. When the man returned for further diagnoses and treatment in the United States, he consulted his general physician, the one he had been seeing for most of his adult life. His general physician referred him to a neurosurgeon who conducted more tests on him. His American doctor found that what happened to the independent contractor was spinal contusion. As the man turned and reached for the blueprints while he was seated, his spine was twisted out of shape and there was a momentary loss of blood supply to his spine. The momentary loss of blood supply to the spine resulted in lack of oxygen and thus, paralysis. The vascular disability resulted from the blood supply loss and the oxygen deprivation of the spine.

Physical therapy and medication were advised. A year after the incident, the independent contractor was still suffering from muscular weakness in all his four limbs but he was able to walk around with the aid of a cane. He was able to do very light work for a short time. The American neurosurgeon opined that spinal injuries heal very slowly and it may take two years before the true extent and nature of the independent contractor’s injuries and disabilities are.
Further MRI scans revealed that the acute quadriparesis occurred spontaneously and that the spinal cord in the neck, the upper and lower back was within normal limits. With the help of these medical findings, the American neurosurgeon ruled out pre-existing muscular anomalies. The damage to the membranes covering the spinal cord, the myelin, looked to be healing. The general physician of the independent contractor testified that the independent contractor did not have any history of back pain although he had a history of migraine headaches.

The deputy commissioner for compensation claims found that although the medical evidence regarding the independent contractor’s condition was largely conflicting, the evidence that the sudden loss of blood circulation in his spine was not due to a pre-existing medical condition. There was no known cause. The onset was sudden. The injury occurred while the independent contractor was at work and it was occurred as he was discharging his functions at work. Had he not been at work, seated at his desk and doing paperwork, he would not have reached out to get blueprints from a nearby cabinet and he would not have twisted his spine so as to cut-off the blood supply to his spine. It was the turning and bending motions while seated at his desk which caused the internal spinal injury to the independent contractor.
The commissioner’s order for the employer to pay temporary total and temporary partial disability benefits, medical bills and to furnish medical care and treatment to the independent contractor is upheld.

Doctors in The Bronx and Brooklyn are taking note.
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The ability to prove that an injury that has been sustained in an automobile accident is serious under the essential elements of the laws of New York can be a daunting experience. The law is clear on what is considered a serious personal injury. In order for a person to recover damages associated with an accidental injury, the person must be able to present medical evidence that demonstrates that the person has a loss of use of a limb, a serious spinal injury, or a serious brain injury. The mere contention that an injury is serious and painful does not constitute a serious injury under the law. There must be some corroborating medical evidence of the injury. It is not even sufficient to bring in a doctor who is willing to testify that the person has experienced a serious injury that is life changing. That doctor must be able to show that he performed or administrated accepted medical tests that demonstrate that the injury is severe enough to be life altering.

That means that the injury that is sustained must be so severe that the person injured is not able to do the things in life that they did for enjoyment or work before the accident. The problem is that many doctors do not agree on diagnoses. Anyone who has gone to numerous doctors and had each one give them a different diagnoses understands this problem. It is frustrating when it is not something that will be presented in court. It is unnerving when it is. That is a major problem for anyone who has suffered a life changing accident only to have to find a doctor who is willing to interpret the test results to a court in verification of what the patient already knows to be true. One case of this nature was commenced on December 16, 2008.

That was the date that an injured man filed his personal injury lawsuit in New York. He was injured in a motor vehicle accident on January 9, 2008. His car was stopped at a traffic light when another car struck it with enough force to knock it off of the roadway and into a fire hydrant. The man maintained that he sustained serious spinal injury, and injury to his right knee that has resulted in an altered gait and a limp. He also maintained that he received a head injury that has left him with headaches, dizziness and post-concussion syndrome. He presented numerous medical records, x-rays and MRI reports to support his allegations.

The Brooklyn insurance company for the man who hit him requested that he be examined by a doctor of their choosing. That doctor stated that there was nothing wrong with him. That doctor stated that he did not have an altered gait and that his range of motion was normal. The insurance company contends that the spinal complaints that the man has are not related to the automobile accident at all, but rather to an incident that happened in 2001. In 2001, the man was shot in the back. As a result of that incident, the man still has a bullet in his back and that bullet is located in the left side of his colon where it presses on the nerves that control his left leg. He stated that the second bullet that hit him was removed by the hospital on the date that he was shot. The CT scan presented as evidence, however, showed that there was a bullet lodged in the region of his L5-S1 region of his back that has caused the machine to not be able to evaluate the underlying injury. The doctors stated that impingement cannot be excluded. Based on the evidence presented and the fact that it appears that the man still has a bullet wedged into his back, the request by the insurance company for summary judgment releasing them from liability is granted.
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