First Department Update

Causation.

In Liz v. Munoz, 2017 NY Slip Op. 03136 (1st Dept. 2017) the plaintiff raised an issue of fact on the question of causation by submitting the affirmed report of her orthopedic surgeon, who “observed a type I SLAP tear during arthroscopic surgery, measured limitations in range of motion both before surgery and over two years later, and provided a sufficient opinion that there was a causal relationship to the accident based on the plaintiff’s history, his own treatment of plaintiff, his review of the MRI report, and observations during surgery.”

In Diaz v. Barimah, 144 AD3d 497 (1st Dept. 2016), where the plaintiff alleged emotional injuries, the defendant met its initial burden that the plaintiff “did not suffer a serious psychological injury as a result of the accident” by submitting the affidavit of a retained psychologist  “who examined her and found no objective symptoms of posttraumatic stress disorder or any other psychological illness.” The plaintiff failed to raise an issue of fact because the treating mental health professional

did not consider or address the evidence in the infant plaintiff’s own medical records suggesting that her psychological symptoms were causally related to her parents’ ongoing divorce and custody dispute, and thus her opinion that the accident caused the psychological injuries is impermissibly conclusory. Id.

In Callahan v. Shekhman, 149 AD3d 454 (1st Dept. 2017) the plaintiff’s “physical therapist’s findings were insufficient to raise an issue of fact, because a physical therapist cannot diagnose or make prognoses, and therefore any opinion she rendered on permanency, significance [or] causation would be incompetent evidence.” (internal citations omitted).

In Dziuma v. Jet Taxi, Inc., 148 AD3d 573 (1st Dept. 2017) the defendant “made a prima facie showing that [the] plaintiff did not suffer any serious injury through the affirmed report of its orthopedist, who found full range of motion in all affected body parts, its radiologist, who opined that the conditions shown in the spinal MRIs were degenerative and that there was no evidence of traumatic injury in the left shoulder. The defendant further established entitlement to summary judgment through the affidavit of its psychologist, who opined that plaintiff did ‘not present with any evidence for any psychological disability’ due to the subject accident.”

In Khanfour v. Nayem, 148 AD3d 426 (1st Dep’t 2017), the plaintiff failed to raise a triable issue of fact on the question of causation. A unanimous First Department panel observed that the opinions of the plaintiff’s medical providers failed to acknowledge, much less reconcile, findings of degeneration in the medical records:

In opposition, plaintiff failed to raise a triable issue of fact as to either his cervical spine or his lumbar spine. As to the cervical spine claim, plaintiff submitted an MRI report finding herniations and the report of his pain management specialist who found persisting limitations in range of motion and opined that they were causally related to the accident. However, plaintiff’s earlier treating physician acknowledged that plaintiff’s own X-ray report revealed multilevel “disc disease” and “bilateral foraminal impingement due to foraminal osteophytes.” Since plaintiff’s own medical records provided evidence of preexisting degenerative changes, his pain management specialist’s conclusory opinion, lacking any medical basis, was insufficient to raise an issue of fact since it failed to explain how the accident, rather than the preexisting disc disease and osteophytes, could have been the cause of plaintiff’s cervical spine condition. Id.

In Khanfour v. Nayem, 148 AD3d 426 (1st Dept. 2017) “[t]here was no evidence contradicting [the] plaintiff’s testimony that his previous back injury had fully healed some 10 years before the subject accident.” At the same time, postaccident treatment records showed that the plaintiff “had normal or near normal range of motion within two months after the accident.” Id. While the plaintiff would later evince significant range-of-motion deficits in the lumbar spine, the treating physiarist “failed to reconcile his findings with the earlier conflicting findings,” warranting summary judgment. Id. 

In Vishevnik v. Bouna, 147 AD3d 657 (1st Dep’t 2017) the plaintiff raised triable issues of fact on the question of causation by submitting

the report of his treating physician and certified medical records, which were sufficient to raise issues of fact as to whether he sustained serious injuries to his cervical and lumbar spine as a result of the accident. At several examinations, his physician found objective evidence of cervical and lumbar disc injuries and significant limitations in range of motion. Further, he opined that the elderly plaintiff’s injuries were causally related to the accident, notwithstanding a minimal finding of degeneration in his lumbar spine MRI, as he had no prior injuries to those parts.

In Diaz v. Almodovar, 147 AD3d 654 (1st Dep’t 2017) the plaintiff raised triable issues of fact on the question of causation by submitting the affirmed report of his physician:

Given the absence of any evidence of degeneration or prior treatment in [the plaintiff’s] own medical records, and in light of his relatively young age, his physician’s opinion sufficiently rejected the opinion of defendants’ expert by attributing the injuries to a different, yet equally plausible, cause, namely, the accident.”

In Frias v. Gonzalez-Vargas, 147 AD3d 500 (1st Dept. 2017) the plaintiff submitted “contemporaneous” proof by “submitt[ing] hospital records reflecting that she did make contemporaneous complaints of neck and back pain.”

In Bonilla v. Vargas-Nunez, 147 AD3d 461 (1st Dept. 2017) the plaintiff raised triable issues of fact on question of causation; “Plaintiff submitted evidence that she sought medical treatment for her shoulder shortly after the accident and that she received MRI testing on the shoulder approximately two months later, which is sufficient to show contemporaneous treatment. The MRI revealed tears in the shoulder, and plaintiff’s expert’s examination revealed that, several years after the accident, plaintiff had limitations of motion in the shoulder, which the expert causally related to the accident.”

In Cattouse v. Smith, 146 AD3d 670 (1st Dept. 2017) the plaintiffs failed to raise a triable issue of fact:

They submitted reports from an orthopedist, who examined [the plaintiffs] shortly after the accident and about two years later, and found limited ranges of motion, and opined that the bulging and herniated discs found in MRI reports were causally related to the accident. The MRI reports reflected findings of degenerative joint disease, and however, the orthopedist did not explain why that joint disease could not be ruled out as the cause of [the plaintiffs] injuries, or provide any objective basis to support a finding of aggravation of such preexisting conditions. Absent objective evidence of injury, plaintiffs cannot demonstrate a serious injury. (emphasis added).

In Cattouse v. Smith, 146 AD3d 670 (1st Dept. 2017) the failure of a treating chiropractor to “address the hospital and medical records showing that [the plaintiff] had no neck limitations or back pain shortly after the accident,” rendered the opinion of the chiropractor speculative.

In De La Rosa v. Okwan, 146 AD3d 644 (1st Dept. 2017) the “conclusory statements” of the plaintiff’s treating doctor “that her shoulder injury was caused by the accident failed to address the findings of bony impingement and large anterior spur found in her own physicians’ MRI and operative reports and to explain why those conditions were not the cause of her shoulder condition.” The complaint was dismissed. Id.

In Gomez v. Davis, 146 AD3d 456 (1st Dept. 2017) the plaintiff raised triable issues of fact by submitting, inter alia, “[t]he affirmed report of her radiologist” which provided “objective medical evidence of the existence of a disc herniation in the cervical spine and disc bulges in the lumbar spine.” A treating neurologist likewise found “significant limitations in range of motion, spasms, and positive clinical test results found upon recent examination, and, based on such findings and his review of plaintiff’s medical records, opined that the symptoms were permanent and causally related to the accident.” Id.

In Shapiro v. Spain Taxi, Inc., 146 AD3d 451 (1st Dep’t 2017) a treating physician

“adequately addressed [the plaintiff’s] acknowledged history of shoulder dislocation, and opined that the accident had caused the re-dislocation of the shoulder, as well as the additional AC joint separation and ruptured ligaments, which required surgical repair.” This raised an issue of fact. Id. 

In Brownie v. Redman, 145 AD3d 636 (1st Dept. 2016) the plaintiff’s orthopedic surgeon sufficiently juxtaposed the pre- and post-collision condition of the plaintiff so as to raise an issue of fact:

plaintiff raised a triable issue of fact as to her left knee injury by submitting the report of her treating orthopedic surgeon, who found persisting limitations in range of motion, and opined, based on his review of the MRI films and observations during surgery, that plaintiff’s injuries were caused by the accident. The surgeon acknowledged the presence of arthritis in plaintiff’s left knee, but pointed to specific medical evidence of trauma to support his opinion that the torn menisci were caused by the accident.

In Brown v. Bawa, 144 AD3d 448 (1st Dept. 2016) the plaintiff failed to raise a triable issue of fact. To the extent that a post-collision MRI report showed an “[u]nfused distal acromial epiphysis consistent with os acromial [sic] with rotator cuff impingement,” the plaintiff was required to address that condition and explain why it was not the cause of his claimed injuries. Id. The opinion of a treating orthopedic surgeon failed to raise an issue of fact. While the orthopedic surgeon “opined, based on his observations and review of medical records, that the injuries were caused by the accident, . . . he did not rebut the opinions of [the] defendants’ experts that [the] plaintiff’s shoulder condition was related to a preexisting congenital condition.” Id.

In Acosta v. Ramos, 144 AD3d 441 (1st Dept. 2016) the defendants argued that a “prolonged delay” by the plaintiff in seeking further treatment after a diagnosis of a shoulder tear precluded a finding of serious injury. Rejecting the argument, a unanimous First Department panel found that the “plaintiff’s explanation for the gap in treatment, including her pregnancy and ensuing care of the baby without help,” was sufficient to raise an issue of fact. Id.

In Acosta v. Ramos, 144 AD3d 441 (1st Dept. 2016) the plaintiff provided “sufficient evidence of contemporaneous treatment to permit a finding that [the] plaintiff’s shouler injuries were a result of the accident.” To this end, the plaintiff submitted treatment records

showing that she complained of shoulder pain to a medical provider six days after the accident, that she continued to complain of shoulder pain while receiving therapy, and that she sought further treatment for her shoulder about four months after the accident; she then underwent an MRI that revealed, supraspinatus and labral tears for which she eventually underwent arthroscopic surgery. Id.

See also Encarnacion v. Castillo, 146 AD3d 600 (1st Dept. 2017) (“. . .  plaintiff provided an adequate explanation by averring that her insurance carrier ceased to pay for her treatment, which she could not cover out of her own pocket.”);

Fathi v. Sodhi, 146 AD3d 445 (1st Dept. 2017) (“Given plaintiff’s relatively young age and the sudden onset of symptoms after being hit by defendants’ vehicle, his physician’s opinion provided a different, yet altogether equally plausible, cause”);

Cattouse v. Smith, 146 AD3d 670 (1st Dept. 2017) (“Nor did [plaintiff] submit her own radiologist’s MRI report to rebut the findings of defendant’s expert or provide a reasonable explanation for her cessation of medical treatment after a brief course of chiropractic treatment after the accident and then a year later.”);

Lopez v. Morel-Ulla, 144 AD3d 504 (1st Dept. 2016) (“Plaintiff’s treating surgeon . . .  adequately addressed the evidence of degeneration in her knees, which was acknowledged by her own radiologist’s report, and explained why he believed the accident caused the meniscal tears that he observed in both knees during surgery.”).

 

 

 

 

 

 

 

 

 

 

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