New York Serious Injury Law and Disc Herniations
Defendant’s Burden to Establish the Lack of a Serious Injury
In a case where the car crash victim sustains an injury to the spine such as a herniated or bulging disc, it is common for the defendant to move for summary judgment asking the judge to dismiss the case.
In this motion practice, the defendant must first make a prima facie showing that the plaintiff did not sustain a “serious injury” within the meaning of Section 5102 (d) of the Insurance Law. See, Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 384 (2005). Where the movant fails to make the appropriate showing the burden does not shift to the plaintiff to show that she has sustained a serious injury and the court need not consider the sufficiency of the opposing papers. Kennedy v. Brown, 23 A.D.3d 625, 626, 805 N.Y.S.2d 408, 409 (2nd Dept. 2005).
The Insurance Law § 5102(d) defines a “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.”
When relying on a qualitative evaluation to support the motion for summary judgment, the defendant’s doctor must describe the nature of plaintiff’s limitations, or lack thereof, based on normal function, purpose and use of her body that correlates the injury or lack thereof with plaintiff’s ability to perform certain normal daily tasks.
In order to establish that the plaintiff did not sustain a serious injury where there is objective MRI evidence of a bulging or herniated disc, the defendant must make a prima facie showing that either the bulging or herniated discs were not causally related to the accident [Papadonikolakis v. First Fidelity Leasing Group, Inc., 283 A.D.2d 470, 724 N.Y.S.2d 635 (2nd Dept. 2001)], or that any limitation of function or use is not significant [Toure v. Avis Rent A Car Systems, Inc., 98 N.Y.2d 345, 353, 746 N.Y.S.2d 865 (2002)]. As to the latter, this can be established by either an examining doctor’s quantitative assessment of plaintiff’s injuries showing normal ranges of motion, or by a qualitative assessment correlating plaintiff’s injuries with the normal function, purpose and use of her body parts. Toure, supra.
Where the defendant’s expert doctor fails to opine that the cervical disc herniations or bulges were not causally related to the accident, or that any limitation of function or use was insignificant either on a quantitative or qualitative basis, the defendant has not establish a prima facie showing of entitlement to summary judgment. Papadonikolakis, supra.
Even where the expert sets forth certain range of motion findings, the expert must specify the objective tests that were relied upon in arriving at these findings. The failure to set forth the objective tests used to support a finding that plaintiff had no, or insignificant, limitation of motion is fatally deficient to the motion. Kennedy v. Brown, supra (defendant’s examining physician failed to set forth the objective tests which were performed to support his conclusion that neither of plaintiffs suffered from any limitations of range of motion); (Zavala v. DeSantis, 1 A.D.3d 354, 355, 766 N.Y.S.2d 598 (2ndDept 2003) (“both examining physicians failed to set forth the objective tests they performed to support their findings that the plaintiff had no limitation of range of motion”); and Junco v. Ranzi, 288 A.D.2d 440, 733 N.Y.S.2d 897 (2nd Dept 2001) (defendants’ medical expert did not set forth the objective tests he performed during his examination which led him to conclude that the plaintiff suffered no limitation to the range of motion of plaintiff’s neck or back).
When relying on a qualitative evaluation to support the motion for summary judgment, the defendant’s doctor must describe the nature of plaintiff’s limitations, or lack thereof, based on normal function, purpose and use of her body that correlates the injury or lack thereof with plaintiff’s ability to perform certain normal daily tasks. See for example, Toure, supra. In Toure, the Court of Appeals stated:
Although this medical expert did not assign a quantitative percentage to the loss of range of motion in plaintiff’s neck or back, he described the qualitative nature of plaintiff’s limitations based on the normal function, purpose and use of her body parts. In particular, Dr. Cambareri correlated plaintiff’s herniated discs with her inability to perform certain normal, daily tasks.
Id., at 98 N.Y.2d, at 355.
Bald conclusory opinions [for example: “I see no reason why the claimant should not be able to perform activities of daily living and seek or return to gainful employment activities, without restrictions, from a neurologic perspective, based upon his physical examination findings noted today”] are patently insufficient to establish that plaintiff’s injuries were not significant. Toure, supra.
Plaintiff’s Burden to Establish Serious Injury
Where defendant does make a showing of entitlement to summary judgment based on the lack of a serious injury, plaintiff must counter by establishing that he or she sustained a significant limitation of function and use of the cervical spine, supported by objective medical evidence and by both a quantitative assessment of plaintiff’s injuries showing significant limitations in ranges of motion and by a qualitative assessment correlating plaintiff’s injuries with the normal function, purpose and use of his body parts. Toure, supra.
Objective MRI findings of a cervical disc herniation or bulge taken together with the assigned quantitative percentages of loss of range of motion of the cervical and lumbar spine is sufficient to establish a “significant limitation of use of a body function or system” under Insurance Law § 5102 (d). See, Pommells, supra; and Toure, supra. When plaintiff makes such a sufficient showing, it raises a question of fact for the jury to decide and the motion to dismiss will be denied.
Conclusion
Given the complexity of the law, it is important that you do not make an uniformed opinion about the nature of your injuries if you are injured in a car accident. Experienced plaintiff’s personal injury lawyers know the law and will help you evaluate your claim based on all of the evidence. When you or a loved one is injured in a motor vehicle accident, speak with a personal injury lawyer about your rights as soon as possible.
