Articles Posted in Cervical Spinal Injury

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The complainant also submits the affidavit of a chiropractor. The chiropractor conducted a computerized spinal range of motion exam and a computerized muscle strength test. The results of the tests indicated deviations from normal. The chiropractor states that in his opinion the complainant sustained spinal injuries and limitations to cervical range of motion. In addition, he opined that the herniated discs in complainant’s cervical spine, together with the resulting cervical radiculopathy and limitations to the cervical range of motion, are directly causally related to the automobile accident. He further states that it is possible that a pre-existing conditions, such as a degenerative conditions of the complainant’s spine related to his age, could be a factors which might have increased his vulnerable to the injury. However the factors by themselves would not be enough to explain the symptoms and limitations encountered during my examination and treatment of the complainant. Furthermore, it is his opinion that the injuries sustained by the complainant were such that they definitely and significantly reduced his functional capacity to perform his customary personal activities. The disabilities resulting from the complainant’s injuries manifested themselves following the accident and continued throughout the treatment of the complainant, and are likely to continue indefinitely.

The complainants also submitted the certified medical reports of another physician in support of their opposition to the opponent’s motion.

In reply to the complainants’ opposition, the opponent argue that in opposition, the complainant did not submit an affirmation from a treating physician, but rather came forward with the affirmation of the complainant’s treating chiropractor, which is insufficient to defeat the motion because he does not adequately address the complainant’s termination of treatment a year and half prior to chiropractor recent examination of the complainant, subsequent to the filing of the motion. The complainant’s chiropractor also does not address the two year gap in his treatment of the complainant which is less than two months after the spinal cord accident.

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This action arises from a motor vehicle accident occurred at approximately 5:30 p.m. The complainant asserts that the accident happened when his vehicle, moving slowly in stop, was struck in the rear by the opponent’s vehicle. The complainant claimed that the opponent admitted at his testimony that he did not see the complainant’s vehicle until the moment of collision and offered no explanation for the said incident other than his failure to pay attention to the road. The complainant asserts that the opponent was the negligent party and with that, he failed his duty to exercise reasonable care under the circumstances to avoid an accident. The complainant additionally argues that the opponent cannot come up with a non-negligent explanation for striking his vehicle.

In opposition to the complainant’s motion, the opponent argues that there were no brake lights illuminated on the complainant’s vehicle just before the accident.

Based on records, when the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his or her vehicle to exercise reasonable care to avoid colliding with the other vehicle. In addition, a rear-end collision with a stopped or stopping vehicle creates a case of liability with respect to the operator of the rearmost vehicle, thereby requiring the operator to deny the inference of negligence by providing a non-negligent explanation for the collision. The vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since the following driver is under a duty to maintain a safe distance between his or her car and the car ahead. Lastly, the drivers must maintain safe distances between their cars and the cars in front of them and the rule imposes on them a duty to be aware of traffic conditions including stopped vehicles

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Well established is the rule that a jury may reject any testimony, including testimony of experts, even if not contradicted. Here, the Standard Jury Instruction which was appropriately read to the jury provides that the jury may accept expert witness opinion testimony, reject it, or give it the weight it deserves, considering the knowledge, skill, experience, training, or education of the witness, the reasons given by the witness for the opinion expressed, and all the other evidence in the case. In other words, the jury was free to weigh and reject the testimony of the medical experts who opined that A’s injuries were caused, at least in part, by the automobile accident.

First, the court finds that the expert testimony conflicted with much of the lay testimony presented to the jury. In such cases, where expert testimony conflicts with lay testimony, the trial judge should defer to the jury to weigh the evidence.

Second, in addition to the medical experts, the jury heard testimony from several witnesses, including the plaintiffs, A and his wife. Evidence and testimony introduced at trial portrayed the accident as a mere fender-bender. The jury examined photographs depicting the damage to A’s vehicle, which was described by A as a crack or scrape on the back bumper. According to A, the total damage to his vehicle was estimated to be approximately $800, and at the time of trial or about 2 1/2 years after the accident, the damage to the bumper had not been repaired, and the vehicle was still being driven by A’s wife. Other testimony offered at trial demonstrated that A had an extensive medical history, which included a prior surgery, another automobile accident, and several significant medical diagnoses, and this was also testified to by A. A stated that he had undergone a prior cervical spinal fusion surgery in 1991, he had been in an automobile accident in 1998, in which he was ejected from the vehicle, and he had a back sprain shortly before the 2007 accident. In addition, medical records were introduced at trial revealing that A had visited a hospital in 2006, complaining of severe lower back pain, that A had visited the hospital less than a month before the 2007 accident, complaining of the same symptoms, and that he was taking the pain medication, Lortab, at the time of the 2007 accident. Through the testimony of the medical experts, the jury heard that A had a pre-existing degeneration of his cervical spine. On cross-examination, A revealed a number of other medical conditions affecting his overall health. A testified that he had been diagnosed with emphysema in the early 1970’s, and that he had been hospitalized four times in the year leading up to trial for breathing problems, clogged lungs, pneumonia, and cardiac surgery. Testimony introduced at trial also demonstrated inconsistencies in A’s story on material issues, placing his credibility into question. Regardless of A’s testimony regarding his extensive medical history and pre-existing medical conditions, and that he had not been employed since the 1970’s, he nonetheless testified that before the 2007 automobile accident he was able to work around the house, do carpentry work or mechanic work, and swim, run, and play with his grandkids; that after the 2007 accident, he was unable to engage in these activities. However, when A sought medical treatment following the 2007 accident, he failed to disclose to the treating physician that he had undergone a prior cervical spinal fusion surgery or that he had been involved in an earlier automobile accident. A disclosed the prior cervical spinal fusion surgery only upon inquiry by his neurosurgeon, who discovered indicia of an earlier surgery after reading the results of an MRI scan he had ordered of A’s spine. During trial, the jury observed A wearing a neck brace, but during the cross-examination of A’s neurosurgeon, the physician testified that there was no medical necessity for A to be wearing the neck brace. Thus, under the circumstances, the jury was entitled to judge A’s credibility, whether to accept or reject his testimony on all issues.

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The Facts of the Case:

Sometime in October 2007, an automobile accident occurred involving A and B, A being the injured victim. As a result of the accident, A suffered from a spinal injury. Consequently, A had to undergo a cervical spinal fusion surgery in September 2009. Thereafter, A filed a personal injury action against B and seeks recovery for the personal injuries he sustained. B did not contest his liability for causing the automobile accident, but argued that the accident was not the cause of A’s injury or need for medical treatment; that the nature of the automobile accident was only minor; that A’s medical history which included a prior cervical spinal fusion surgery in 1991, a 1998 automobile accident in which A was ejected from the vehicle, and diagnoses of emphysema and spinal degenerative disease were the main causes of A’s spinal injury. After a three-day trial, the jury returned a verdict in favor of B, finding that A had not suffered an injury as a result of the 2007 accident. A then filed a motion for a new trial and the trial court granted the motion. The trial court concluded that the jury’s verdict finding no causation was contrary to the manifest weight of the evidence in light of the testimony of the three expert medical witnesses, one of whom was a defense witness, who each opined that A’s personal injury and resulting surgery was caused at least in part by the 2007 accident; that while acknowledging B’s arguments and the evidence offered in support thereof, the trial court disregarded all lay testimony bearing on causation of A’s injuries; that the court expressly concluded that in the absence of expert testimony regarding accident reconstruction or other technical matters affecting causation for the injury, no reasonable juror would conclude no causation in light of the opinions of the three doctors; that with regard to A’s credibility, the court found, his credibility had little, if any, weight on the issue of causation in light of the uncontroverted opinions of the three informed and credible doctors; that with regard to A’s pre-existing spinal degeneration, the court again found the expert testimony to outweigh other evidence where no reasonable juror would conclude that degeneration, to the exclusion of the collision, was the cause of A’s injury in light of the testimony of the three doctors.

The Ruling of the Court:

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This action arises from a motor vehicle accident that occurred on April 20, 2008. The complainant man’s vehicle was impacted from the rear by the accused man’s vehicle, while both vehicles were moving in the same lane of travel. The accused man’s vehicle was operated by his son at the time of the accident. As a result of the accident, the Long Island complainant claims to have suffered serious and permanent spinal injuries, including restricted range of motion in the areas of his lumbar and cervical spine.

Based upon his bill of particulars, the complainant is asserting claims of permanent consequential and significant limitation of use of a body function or system, and a medically determined injury or impairment of a non-permanent nature, which prevented him from performing substantially all of his customary daily activities for not less than 90 days during the 180 days immediately following the accident claim.

It is well recognized that summary judgment or judgment without trial is a drastic remedy and as such should only be granted in the limited circumstances where there are no triable issues of fact. Summary judgment should only be granted where the court finds as a matter of law that there is no genuine issue as to any material fact. The Court’s analysis of the evidence must be viewed in the light most favorable to the complainant.

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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.

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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.

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On 1994, a man was admitted to a NYC hospital for the treatment of his spinal injuries. Prior to the man’s cervical spine surgery his physician ordered a cervical myelogram and CT scan. The procedure was performed by another physician and a nurse. The man does not recall the whole procedure, but remembers waking up in great pain. The man was advised by his admitting physician, that he obtained dislocation on his shoulder during a grand mal seizure. The man was told that he was suffering from spinal stenosis and diseases of the spine. He was also told that the seizure could have resulted from natural causes and the spinal diseases were normal complications from the myelography procedure.

Subsequently, the man obtained legal counsel and brought a medical negligence action against the doctor who performed the procedure for injuries he received during the cervical myelogram. Afterwards, the physician filed an answer to the complaint and included as an affirmative defense that the man’s damages were caused in whole or in part by third parties. The physician also discussed the risks associated with a myelogram, including the possibility of a seizure. He added that the risk of seizure is decreased when the patient’s head is elevated. He further opined that the nurses may not have followed his postoperative orders concerning the maintenance of the man’s head because when he saw the man during the seizure, the man was lying fairly flat. The man then filed the notice of intent to initiate litigation against the hospital and the nurse. He also modified his complaint to include them as opponents in the lawsuit.

In a request for the dismissal of the case, the hospital and the nurse claimed that the man’s claim for negligence was barred by the law of limitations. They claimed that the man was aware of them as potential opponents immediately following his injuries.

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On 1994, a Queens man was admitted to a hospital for the treatment of his spinal injuries. Prior to the man’s cervical spine surgery his physician ordered a cervical myelogram and CT scan. The procedure was performed by another physician and a nurse. The man does not recall the whole procedure, but remembers waking up in great pain. The man was advised by his admitting physician, that he obtained dislocation on his shoulder during a grand mal seizure. The man was told that he was suffering from spinal stenosis and diseases of the spine. He was also told that the seizure could have resulted from natural causes and the spinal diseases were normal complications from the myelography procedure.

Subsequently, the man obtained legal counsel and brought a medical negligence action against the doctor who performed the procedure for injuries he received during the cervical myelogram. Afterwards, the physician filed an answer to the complaint and included as an affirmative defense that the man’s damages were caused in whole or in part by third parties. The physician also discussed the risks associated with a myelogram, including the possibility of a seizure. He added that the risk of seizure is decreased when the patient’s head is elevated. He further opined that the nurses may not have followed his postoperative orders concerning the maintenance of the man’s head because when he saw the man during the seizure, the man was lying fairly flat. The man then filed the notice of intent to initiate litigation against the hospital and the nurse. He also modified his complaint to include them as opponents in the lawsuit.

In a request for the dismissal of the case, the hospital and the nurse claimed that the man’s claim for negligence was barred by the law of limitations. They claimed that the man was aware of them as potential opponents immediately following his injuries.

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On 2003, a complainant man obtained a back injurywhile he was employed. Shortly thereafter, his employer accepted his injury’s compensability and commenced the payments of both medical and indemnity benefits. An Nassau authorized orthopedist initially diagnosed the complainant man with disc herniation with chronic low back pain. After that, a surgical procedure was performed and the orthopedist’s explained that the surgery revealed spinal stenosis with no evidence of disc herniation. The orthopedist also informed the attorney of the man’s employer that one hundred percent of the complainant’s need for medical treatment was caused by pre-existing degenerative changes due to his personal condition. The complainant then filed an appeal for benefits requesting authorization of a neurologist and compensability of the claim, which the carrier timely controverted because of the opinion of the complainant’s treating orthopedist.

After the trial, the judges of compensation claim accepted the opinion of the treating orthopedist that the complainant’s injury was wholly attributable to his preexisting condition and therefore found that his current condition is not compensable as it did not arise out of the course and scope of his employment and no further treatment is awarded.

The Suffolk judges of compensation claim further concluded that there was nothing in the record that would have reasonably placed the employer on notice of the complainant’s personal condition being the major contributing cause of the injury until the conference between its attorney and the orthopedist was done. As a result, the employer denied the medical treatment within 120 days from the notification it had then received and the compensability of the injury was considered timely denied. With that, the judges of compensation claim refused both the claims for compensability of the complainant’s back condition and authorization of a neurologist.

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