Archive for the ‘No-Fault’ Category

Dear Judge Smith — You gotta be kidding me.

JudgeRobertSSmith

Hon. Robert S. Smith

Judge Robert S. Smith sits on New York’s highest court, our Court of Appeals. Last week he wrote a dissenting opinion in a case dealing with auto collisions and insurance fraud, Ramkumar v. Grand Style Transportation. This is my open letter to the judge in response to that dissent:

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Honorable Sir:

Let me start by stating that I write this letter with great trepidation. If you take offense at either the content or the tone, you have enormous power as 1/7 of our top court to repay my clients, or other injury victims, in ways that can be quite unfriendly.

But your dissenting opinion last week in Ramkumar v. Grand Style Transportation made me angry and forces me to pound on this keyboard, given your assumptions that the no-fault system is riddled with fraud by claimants. My concern is that if you feel this way, then other jurists might also, and claimants do not appear before our courts with the scales of justice in equilibrium.

For those that missed the case — this is, after all, an open letter and I hope to educate by doing it this way —  this was a simple matter of a plaintiff testifying that he stopped getting treatment after sustaining injuries in an auto collision, because he “was cut off” by the insurance. Those of us on the plaintiffs’ side of the “v” refer to this as standard operating procedure. Insurance companies are in the business of generating profits and satisfying shareholders, and cutting off claimants — oft times with sham exams that last just two to three minutes– bolsters those profits. This is not news to those of us that represent such people.

At issue in Ramkumar was the simple matter of determining what level of proof was needed by the plaintiff to oppose a motion to dismiss his case that was based on defendant’s assertion that the plaintiff lacked a “serious injury” in the ridiculously vague way the Legislature has defined it. The majority said his statement that he wasn’t getting treatment because he was cut off was enough to raise a triable issue of fact. But you dissented.

In arguing for more proof, you went on to allege that there is rampant fraud in the No-Fault arena. But — and this is what raised my anger —  100% of your comments address this from the plaintiffs side of being responsible for fraud. And where is the data coming from for these reports? Insurance companies with a vested interest?

Let me suggest to you, Judge Smith, that there is indeed rampant fraud. Systemic fraud. Nauseating fraud that affects many thousands of cases per year. To prove this, I submit this bill of particulars–

  • A New York Times exposé on sham medical exams by the insurance industry regarding Workers’ Compensation exams, where one doctor that did those exams said:

    “If you did a truly pure report you’d be out on your ears and the insurers wouldn’t pay for it. You have to give them what they want, or you’re in Florida. That’s the game, baby”;

  • Dr. Robert Israel, an orthopedist doing 1,500 defense medical exams per year, is hit with three year sanction for his conduct in doing defense medical exams;
  • Dr. Michael Katz, an orthopedist who once testified to doing 750-1,000 defense medical exams per year, busted for lying on the stand about the length of his exam, testifying it was likely 10-20 minutes. A secret recording documented it at merely one minute 56 seconds;
  • An analysis of exams by orthopedists Edward Toriello (1,500 – 2,000 per year), Lisa Nason and neurologist Jean-Robert Desrouleaux (1,000 – 1,500 per year) all show disturbingly short exams done for insurance companies, averaging less than five minutes per exam, and many times lasting only two to three minutes.
  • Dr. Joseph Tuvia, another frequent flier for the insurance industry (radiology, reviewing 1,000 films a year for litigation), magically has at least five different signatures on his reports that are allegedly signed under oath.
  • Dr. Harvey Goldberg is instructed by the insurance company that hired him to do an exam of the plaintiff to leave out of his report things that would be beneficial to the plaintiff. His original report, it seems, had a favorable causality finding for the plaintiff and he was asked to remove it from his report;
  • An orthopedist that I cross-examined last month, who testified that in describing range of motion losses, he used a different standard of “normal” in another case. Why? Because this “conforms to what this carrier says is normal.”

Now you will notice, your honor, that if you click those links, you will see that all of those stories and investigations, except for the Times piece, were done by me. Think about that for a moment: I’m a solo practitioner, with a full time practice, that blogs a few hours a week.  If I can find that much evidence of tainted and quickie defense medical exams, how much do you think a real investigation would  find? Does the phrase “scratching the surface” seem like a fair one?

We are talking about the potential for an unprecedented level of insurance fraud being perpetrated by the insurance industry.

And after claims are fraudulently denied in No-Fault, what is done with the data? It’s used in a self-fullfilling report to claim insurance fraud? I’m sure you remember the old saying about analysis: garbage in, garbage out.

I don’t blame you, of course, for having skepticism about claims. This what the insurance industry peddles to the world. What troubles me greatly, however, is that your skepticism appears to be one-sided and therefore imbalances the judicial scales before the evidence is even weighed.

You made this comment in your dissent:

If plaintiffs and their witnesses are willing to say under oath whatever they have to say to get past summary judgment, they will succeed in doing so….”

And what of the insurance company doctors — those comically referred to as “independent” as they earn six figure sums (or more) from such exams? Why should a judiciary dismiss cases based on such reports instead of, as Justice Scalia once famously wrote, testing their credibility “in the crucible of cross-examination“?

You seem to trust these insurance doctors very much, as you wrote:

If there is indeed a reasonable explanation for plaintiff’s cessation of physical therapy, he should have had no trouble in offering much better proof of it. He could have submitted an affidavit in opposition to summary judgment, identifying his no-fault carrier, attaching a copy of the written communication, or describing the oral one, in which the carrier cut him off, and saying what, if any, reason the carrier gave.

That any judge would accept an insurance doctor’s opinion on the real reason so many injured people are cut off from benefits reveals to me a judge that is, I’m sorry to say, deeply out of touch with what is actually going on. I see an industry orchestrating what are, little doubt, many thousands of sham exams every year. Those of us in the trenches of practice see a world appearing vastly different to what you’ve described in your view from Eagle Street.

This is not a new issue to you. Back in 2009, in Bazakos v.Lewis, you wrote the majority decision on a case dealing with these so-called “independent” medical exams, (deciding that if one sues a doctor for injuries incurred during the exam, it was subject to the 2 1/2 year medical malpractice statute of limitations).

Your boss, Chief Judge Lippman, made this observation about what is “ known euphemistically as an ‘independent’ medical examination”:

These exams, far from being independent in any ordinary sense of the word, are paid for and frequently controlled in their scope and conduct by legal adversaries of the examinee.

Just to be clear, there are countless cases of No-Fault carriers cutting off benefits claiming no injury, or that treatment wouldn’t benefit the victim, only to have these individuals go in for surgery on knees, shoulders, neck, backs and other body parts. Identical problems are rife in these medical-legal exams of all kinds.

Your faith in the so-called IME seems deeply misplaced given the substantial evidence of insurance company fraud and exploitation, which seems clearly in need of investigation by the Attorney General or Department of Financial Services.

My questions for you judge are these: How would you feel if a 3-minute orthopedic exam would be the basis upon which courts and juries would weigh your claim if you’d been injured? And if you feed your family with physical labor instead of with the pen, and those injuries therefore had a more dramatic effect, how would you feel about that 3-minute exam? And given the substantial evidence of problems, how does a judge simply accept as true the proclamations of an insurance industry that profits from it?

Respectfully yours,

Eric Turkewitz

Cuomo Attacks (Part of) No-Fault Fraud — An open letter to the Governor

Dear Gov. Cuomo:

First, let me tip my hat to you in going after No-Fault fraud, as you announced yesterday.  Your decision to shut down medical mills and strip the licenses of deceptive doctors that churn phony No-Fault claims is admirable. I know this follows on the dozens of arrests made last week by Preet Bharara, the United States attorney in Manhattan for this type of conduct, coming from largely Russian-born individuals living in Brighton Beach.

But — and you knew there was a “but” coming, didn’t you? — I think you have only addressed half the problem. And with No-Fault fraud now on your plate, I think I speak for many when I ask that you authorize a more comprehensive investigation.

For the problem of No-Fault fraud stems not only from doctors doing phony billing, but comes also from sham medical exams by insurance companies to deny benefits.

You see, in order to get No-Fault benefits, an injured person must be examined by a so-called “independent” doctor that is hired by the insurance company responsible for paying, and treatment authorized. But there are way too many accident victims who are denied those benefits after quickie 5-minute exams. In order to appreciate why that would happen, one only needs to understand a fundamental conflict of interest: The more denials a doctor issues, the more sought-after s/he is by the insurance companies for future exams. If you are the insurance company and knew Dr. Smith denied coverage 30% of the time and Dr. Jones denied it 90% of the time, wouldn’t you want to keep sending claimants to the one that saves you money?

New Yorkers surrendered certain rights with the birth of the No-Fault laws. We can no longer bring actions unless we have suffered a “serious injury.” In exchange, we are supposed to get guaranteed medical/economic benefits up to $50,000 in exchange for the premiums that we pay.

But what happens with this kind of insurance fraud? The insurance company benefits because many lawsuits can’t be brought and then a second time by stopping the benefits the claimants were supposed to receive.

Investigation of this fraud should be relatively simple, as you know from being our former Attorney General. If a doctor is seeing 10 patients in an hour for No-Fault exams, and churning out cookie-cutter denials, you can bet your last dollar that doctor isn’t doing it with the best interests of the patients in mind.

So I applaud your efforts to go after No-Fault fraud from those doctors running medical mills and over-billing. And if there are some attorneys in cahoots with the medical providers, go get them too.

But please don’t leave the legitimate auto accident victims, with legitimate injuries, out in the cold because of fraud being perpetrated from the insurance company end of things.

Respectfully submitted,

Eric Turkewitz

 

NY Top Court Reshapes Auto Accident Law (Revamps The Way Courts Determine “Serious Injury”)

Last month I wrote about three cases being argued in New York’s Court of Appeals that had the potential to reshape the entire face of auto accident litigation and the definition of “serious injury.” That decision has now come down, and it reverses growing trends in the lower appellate courts that had thrown out cases as a matter of law if they didn’t have a doctor to show a “contemporaneous” loss of motion, to come within the “serious injury” threshold for the No-Fault law. The courts were refusing to allow juries to act as fact finders.

Unless you are intimately familiar with the subject — and why this is one of the biggest decisions in auto litigation in years — you should read this post first and then return: Court of Appeals Hears Argument On “Serious Injury” in NY Auto Cases (What Should They Do?). In fact, I didn’t just write about this last month, but 13 months ago when I speculated in Perl v. Meher that this issue would come to a head. And two years ago I drew quite similar conclusions to today’s decision.

So yes, I’ve been watching this awhile, as has the entire personal injury bar. Because this is very, very big.

There were three cases before the Court in which plaintiffs had their cases dismissed by judges (two on summary judgment and one after a plaintiff’s verdict).

At issue before the Court were three of the categories of “serious injury” that contain impossibly vague language:

  1. “permanent consequential limitation of use of a body organ or member”;
  2. “significant limitation of use of a body function or system”; and
  3. “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”

The unanimous decision today in Perl v. Meher held that the lower courts were over-reaching in making factual determinations as to what constitutes a “serious injury” and taking cases away from the jury where it belongs if “contemporaneous” loss of motion findings were not made. While hewing to skepticism about many personal injury cases due to problems of fraud, the Court held that:

There are cases, however, in which the role of skeptic is properly reserved for the finder of fact, or for a court that, unlike ours, has factual review power.

The biggest problem in determining the extent of the injury was in measuring it. I noted previously that the very act of measurment can be a problem if  doctors are not litigation-savvy and quantify measurements in their notes.

This was also the view of the dissent in one of the three cases today, that I had quoted extensively from last year, and the Court agreed with those positions, explicitly throwing out the concept of the need for “contemporaneous” range of motion testing. The Court wrote:

We agree with the Appellate Division dissenters in Perl that a rule requiring “contemporaneous” numerical measurements of range of motion could have perverse results. Potential plaintiffs should not be penalized for failing to seek out, immediately after being injured, a doctor who knows how to create the right kind of record for litigation. A case should not be lost because the doctor who cared for the patient initially was primarily, or only, concerned with treating the injuries. We therefore reject a rule that would make contemporaneous quantitative measurements a prerequisite to recovery.

How good is this decision? Let’s just say that the language the court used above matches my own fairly well, regarding penalizing those injured individuals who seek out their own doctors instead of those that are litigation savvy. I wrote this bit back in March of 2009:

New York’s No-Fault law is out of control. It seems to have reached the point where judges are almost demanding one of two things from injured patients: That their doctors get legal tutoring on how to write reports that will satisfy the judiciary, or alternatively, that injured patients seek treatment from only those doctors that already know how to write medical-legal reports.

When the Court of Appeals agrees with you, then it’s a good day.

Court of Appeals Hears Argument On “Serious Injury” in NY Auto Cases (What Should They Do?)

The tangle of New York’s “serious injury” threshold in auto cases came before the state’s highest court yesterday, and the pending decision could hopefully abate the flood of summary judgment motion practice that is has inspired. Three cases were on the calendar, all trying to wrestle with ambiguous language created by the Legislature decades ago that sets forth who may bring a lawsuit for injuries after a car accident. The issue before the Court, was how it should (if at all) address those ambiguities. Because one thing everyone can agree on is this: Vague statutes result in excessive litigation.

A quick primer on the issue, for those visiting for the first time. New York’s No-Fault statute was created in the 1970s, and citizens traded off the right to bring lawsuits for smaller injuries in exchange for some guaranteed medical and lost wage benefits for those with “serious injuries.”

The problem with the statute is the difficulty defining “serious injury.” Back when the law was created, an x-ray was state of the art imaging. The statute defined serious injury as follows (and you can immediately see the problems inherent in several of the definitions, which I’ve placed in italics):

  1. A personal injury that results in death;
  2. Dismemberment;
  3. A significant disfigurement;
  4. A fracture;
  5. The loss of a fetus;
  6. Permanent loss of use of a body organ, member, function or system;
  7. Permanent consequential limitation of use of a body organ or member;
  8. Significant limitation of use of a body function or system; or
  9. 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”.

You don’t have to be a genius here to see the problems, for example, in trying to determine what is a “significant limitation” or “consequential limitation.” If you have difficulty figuring out what the difference is, you are not alone. One Justice wrote about those opaque words:

“The enabling legislation for the No-Fault Law itself provides little or no guidance to the bench and bar as to the scope of the terms used”

Under this definition, a simple fracture of the toe qualifies as serious injury. Why? Because back in the 70s you could see it on an x-ray. Could you see a torn meniscus in the knee? No, because the MRI had not yet been invented. Thus, more serious injuries, such as the torn meniscus in this example, are sometimes thrown out of court as failing to meet the serious injury threshold.

In order to deal with the legislative vagueness, courts started to invent rules. And out of the maelstrom of repeated litigation courts started to demand that an injured claimant have “contemporaneous”, “objective” and “quantifiable” evidence of injury. But you will not find those words in the statute or the legislative history.

So what does that mean in real life? That if injured car accident victims goes to litigation-savvy doctors right after an accident, they may get well-written reports that document with precision the range of motion losses they might be suffering from, and fully document any past problems in order to contrast it with the injuries from the accident. Some doctors, if they are law-savvy, will quantify the impairments, writing for instance, that the patient has 45 degrees range of motion in a body movement when 120 degrees is normal.

Of course, most doctors don’t write that way. They have no need to write in their records what “normal” is, since they already know it. And many will simply write that the range of motion is restricted, impaired, or use similar language. Left unsaid is that, for many injured people, it is actually impossible to quantify the loss right after an accident because the mere act of testing is too painful.

But woe unto the victim that simply goes to his family doctor because he is in pain, and the doctor places barely intelligible chicken-scratch into his notes. At this juncture, neither patient or doctor may know that that pain in the knee or or back is something far more serious. Good quality tests may not come for a very long time. Now what?

According to developing jurisprudence, a litigant may lose his right to proceed in a suit, not based upon his injuries, but because his doctor isn’t up on the law. Even though factual disputes exist between doctors — with a treating physician saying one thing and a hired defense doctor the opposite —  judges are taking cases away from juries and throwing them out on summary judgment, substituting judicially manufactured rules for factual determinations.

We have judges demanding that certain things be written in contemporaneous medical reports, leaving the profoundly disturbing issue of judges telling doctors how to practice medicine. I’ve dealt with this subject before (see: New York’s No-Fault Mess (Do Our Judges Want Doctors To Go To Law School?)) Back then I wrote:

The physicians will have to write the way the judges like, not the way they learned to write in medical school. You may think they are the same, but they are not. If a patient has a range of motion of 90 degrees for a particular movement, a doctor might note that. But if the docs don’t also write what the normal range of motion is (and there would be no need for them to do this on their own, since they already know what normal is) the court might toss it out. That 90 degrees may speak volumes to the doctor but mean nothing to the court. Of course, if the doctor doesn’t quantify it, and merely says “poor” or “limited” the patient is also out of luck, since it must be “quantified.” And if the doctor merely has chicken scratch writing for his notes, then the victim is really in a pickle.

Never mind that many doctors don’t write like this in their notes, the court wants it anyway. So you might have the best doctor in the world, and you might even have gone to the office “contemporaneous to the time of the accident,” but if the doctor doesn’t write reports in the exacting manner that the courts’ want, well too damned bad. The court will simply take the case away from the jury and dump it.

And of course there is the requirement that the testing be objective, which raises three issues. First that the injury is capable of quantitative testing, second that the doctor did it, and third that s/he recorded it (and did so in the exact manner the courts likes). So it isn’t really about the injury, it’s now all about the doctor and the doctor’s knowledge of the law.

Justice, my friends, is not so blind after all. Those in the poorer precincts of the state — who may be going to doctors with lesser medical educations, or who might simply  be too lazy (or too busy) to keep good records, or not be knowledgeable about how judges want them to keep records in case a suit is brought — may be deeply out of luck. Is this what the courts want? Is that what the Legislature intended?

Which brings us back to yesterday’s arguments up on Eagle Street in Albany. The judges pressed on in the three cases regarding the problems inherent to make sense out of what the Legislature wrought 30+ years ago.

I don’t know if the Court will bring clarity to the problem or not, since the legislative language is so poorly drafted. One portion — that being the part about being unable to do substantially all of your usual activities for 90 out of 180 days — actually encourages people to stay home from work. It also discrimimates against the elderly, the unemployed, the stay-at-home mom, and the self-employed who try to get things done where those that punch the clock might not. And what does “substantially” mean? If I have a 1% shoulder impairment it is one thing. But if it happens to Nolan Ryan, as Judge Piggott noted in oral argument, it is something else.

There are two things the court should do with these cases:

1. If there is a factual dispute, let the jury resolve it as with every other type of factual dispute. Stop letting the lower courts invent rules that the legislature never agreed to. If Doctor 1 says his patient’s injury was serious, and Doctor 2 says it wasn’t, let it be hashed out in the courtroom under the ancient crucible of cross-examination. Let the jury decide what is significant  or consequential. It is their job to apply the facts to the law, not the courts. The Legislature created this mess, and if it needs fixing (and it does) then let the Legislature do it.

2. Ask the Legislature — make that beg the Lesgislature — to update this law and bring clarity to the definition of serious injury. We can see things on those CTs and MRIs that couldn’t be seen in the 70s. The torn meinsicus. The ligament damage. The herniated disk. Someone going in for knee or shoulder surgery should not be tossed out of court on summary judgment when the fractured pinky remains.

[Addendum: At TortsProf, Chris Robinette picked up on this post, as he and other academics prepare to present a paper in Malaysia on the subject. New York is not the only one with problems. So, for those interested in exactly how to change it, there is legislation pending that would bring clarity and fairness to the law: (See: New York’s No-Fault Law To Finally Be Updated?) This legislation would account for advances in medical diagnostic technology. Injuries would include:

  • a partial or complete tear or impingement of a nerve, tendon, ligament, muscle or  cartilage;
  • injury to any part of the spinal column that results in injury to an intervertebral disc;
  • impingement of the spinal cord,spinal canal, nerve, tendon or muscle;
  • surgery

There is more on the proposed legislation, and a New York Law Journal article on the subject, here: New York’s No-Fault Law and How Victims Lose Their Day in Court [end addendum]

Back in December 2008 Justice Paul Victor, sitting in the Bronx, cried out for reform of the issue in a scathing opinion:  Frustrated Bronx Trial Judge Takes Aim at Appellate Court, Legislature And Attorneys Over No-Fault Law’s Serious Injury Standard. I hope the Court of Appeals will heed that call, and similarly cry out to the Legislature to untangle this unholy mess.

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For those wanting the details of the underlying decisions argued yesterday, these are the cases and the official summary from the Court of Appeals: PERL v MEHER; ADLER v BAYER; TRAVIS v BATCHI:

The plaintiffs in these cases were injured in three separate motor vehicle accidents and sued for damages under Insurance Law § 5102(d), the No-Fault Law. They claim, among other things, that they raised questions of fact regarding whether they suffered a “serious injury” under the statute based on “permanent consequential limitation of use of a body organ or member.” They offered expert medical evidence that was derived, in part, from range of motion tests conducted by their doctors shortly after their accidents.

The Appellate Division — the Second Department in Perl and Adler, the First Department in Travis — ruled the plaintiffs failed to meet their burden of proof because their treating physicians offered qualitative assessments of their condition and did not numerically quantify the results of their range of motion tests. In Perl, the Second Department said, “It is well established that in threshold serious injury cases, restrictions in range of motion typically are numerically quantified…, compared to the norms…, and based upon identified objective tests….” It said the affirmation of the plaintiff’s doctor “failed to identify the range of motion tests utilized by him, the numerical results of those tests, or the norms against which results are measured. The affirmation, therefore, failed to meet the requirements set forth in this court’s sound and well-established precedents.”

The plaintiffs argue that a physician’s objectively verifiable, though qualitative, assessment of a patient’s limited range of motion is sufficient to raise a question of fact regarding whether they suffered a serious injury. They cite Toure v Avis Rent A Car Sys. (98 NY2d 345 [2002]), which said, “In order to prove the extent or degree of physical limitation, an expert’s designation of a numeric percentage of a plaintiff’s loss of range of motion can be used to substantiate a claim of serious injury…. An expert’s qualitative assessment of a plaintiff’s condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff’s limitations to the normal function, purpose, and use of the affected body organ, member, function or system….”

Updated: 11/22/11: The Court of Appeals took the case and rendered a decision:  NY Top Court Reshapes Auto Accident Law (Revamps The Way Courts Determine “Serious Injury”)

No-Fault Law Headed Back to NY High Court? (Updated)

A 3-2 decision last week in the Appellate Division (Second Department) has set the stage for a return of New York’s problematic No-Fault law to the Court of Appeals, New York’s highest Court. The  issue surrounds judicial determinations without a jury of the definition of the “serious injury” threshold that needs to be met to bring a car accident lawsuit.

The issue, devolving from our poorly written statute, pits the opinions of actual treating physicians against those doctors that were hired strictly for litigation purposes. It has resulted, as I’ve written before, in a jurisprudence that demands doctors keep their medical notes for lawyers and courts instead of the way they were taught in medical school and training. It favors paid medical-legal experts over treating physicians.

In Perl v. Meher the defendant moved for summary judgment at the trial level, claiming that there was no serious injury sufficient to meet threshold. The defendant based the motion on a defense medical exam conducted years after the accident had occurred. The defendants doctor, hired specifically for the purpose of litigation,  concluded that any restrictions in  the plaintiff  were self-imposed and that there were no objective orthopedic findings which would indicate any disability, impairment, or limitation resulting from the accident.

Plaintiff, by contrast,  responded with the affidavit of the plaintiff’s own treating physician, who he had first seen within six days of the accident.  He concluded that the injured plaintiff suffered from numerically and objectively determined restrictions of range of motion of both knees, cervical and lumbar spine.  He further concluded that  the patient’s range of motion was less than 60% of normal in the cervical and lumbar spine and that he had left and right knee extension decrease during that examination. These were injuries that the patient never had before.

And when he did another exam two years later, he conducted cervical/thoracic, lumbosacral spine, and knee joint range-of-motion studies which revealed significant limitations and deficiencies. In his affirmation, he detailed the results of the range-of-motion tests and the norms against which he measured those results in arriving at his conclusions.

Defendant’s motion was, not surprisingly, denied. After all, this has two different doctors saying different things and that means that there is an issue of fact for a jury to determine, right?

But the appellate court reversed the lower one, putting more stock in the defense exam that was done for litigation purposes then the exam of the treating physician. Why?  Because the court didn’t like the way the doctor kept his medical notes.

It seems that the treating physician hadn’t read the high court’s decision in Toure v. Avis in which the court demanded that, when fighting a summary judgment motion based on the No-Fault threshold, the doctor detail an objective baiss for his findings  and compare the plaintiff’s limitations to the normal function, purpose and use of the affected body organ, member, function or system.

And so, because the plaintiff’s treating doctor who saw the plaintiff  just days after the accident wasn’t well-versed in law, his patient’s case was thrown out of court without the opportunity to even present it to a jury.

Justice Leonard B. Austin, writing for the dissent, pointed out that the “standard of medical proof” the majority was demanding  ”can be found nowhere in Insurance Law § 5102(d),” which contains the No-Fault language. In other words, the court was legislating from the bench, and doing so in a fashion that was also taking a factual issue away from the jury.

The crux of the case comes down to who a patient sees in their moments of distress right after an accident; a doctor that they want for treatment or one that is well-versed in litigation? Justice Austin wrote:

The majority assumes that days after an accident, an injured plaintiff presents to his or her doctor for the purpose of litigation rather than treatment. Research reflects no case law which mandates that a treating physician record his or her findings of that initial examination in a particular manner. Rather, so long as the affirmation of the treating physician indicates that his or her contemporaneous testing revealed a measurable limitation of the injured plaintiff’s range of motion, the threshold set forth in Insurance Law § 5102(d) should be deemed to be satisfied.

Framing the issue for the Court of Appeals, Justice Austin noted:

To hold a treating physician to a litigation standard of marking his or her chart at such an early stage effectively turns away plaintiffs with arguably colorable claims who seek treatment with a physician who is more focused on providing care than preparing for litigation. This unfortunate result does little, if anything, to promote the legislative purpose of Insurance Law § 5102(d) which was to “weed out frivolous claims.”

An attempt to clarify our poorly written legislation is now before the legislature. (See:New York’s No-Fault Law To Finally Be Updated?) And that update can come none too soon, as the Court of Appeals may now be hearing the case once again, and dealing with its poorly decided Toure decision that set this mess up, with treating physicians facing off against medical-legal experts hired for litigation purposes.

In March 2009, I write a post entitled New York’s No-Fault Mess (Do Our Judges Want Doctors To Go To Law School?) that pre-saged this dissent and this court battle. I noted in my lede that:

New York’s No-Fault law is out of control. It seems to have reached the point where judges are almost demanding one of two things from injured patients: That their doctors get legal tutoring on how to write reports that will satisfy the judiciary, or alternatively, that injured patients seek treatment from only those doctors that already know how to write medical-legal reports.

And on this exact issue — noting range of motions in records contemporaneous with an accident — I wrote:

The court demands that the range of motion limitations be contemporaneous to the accident. That means the patients must go to the doctors that are willing to write reports, and write them the way the courts want them to, as opposed to going to doctors that they actually like. Many people, especially the poor, already have a hard time finding a doctor, but now they must be savvy enough to find a court-friendly one.

This decision, and this battle, and this unholy mess of jurisprudence, needs a desperate makeover. As former Justice Paul Victor once noted in a decision, the legislation has resulted in a never-ending battles over all the motion practice that comes from the No-Fault law that is swamping the courts, and doing so with conflicting opinions.

Updated: 11/22/11: The Court of Appeals took the case and rendered a decision:  NY Top Court Reshapes Auto Accident Law (Revamps The Way Courts Determine “Serious Injury”)

New York’s No-Fault Law and How Victims Lose Their Day in Court

This is a follow-up to my post on my April 26th post: New York’s No-Fault Law To Finally Be Updated?

That post dealt with the Byzantine mess that our courts have made of our primary auto accident statute regarding injuries and when people can sue, and how the same fact patterns lead to different results depending on the bench. This is due, in large part, to vague statutory definitions of what constitutes a “serious injury.”

The newly proposed legislation (S07518, A10739) would bring clarity to the law and guidance to the courts. The main legislative target is the judicial requirement for the presentation of objective evidence of a “serious injury” as defined by Insurance Law 5102(d) within a set time (“contemporaneous”) after the accident.  The “objective evidence” and “contemporaneous” language does not appear in the statute. The intention of the amendments is to prevent the dismissal of those cases where there is a “serious injury.”

Roy Mura dealt with this from the defense side at his blog, Coverage Counsel and asserted that there “will dramatically expand the number and kind of personal injury lawsuits that can be brought and tried in New York State.” Mura worries that each sprain and cut (are stitches surgery?) will somehow qualify as a serious injury.

But it is not claimed by the bill’s supporters that small or minor injuries should be allowed to pass over the No-Fault threshold.  It is claimed, however, that the invisible “statute of limitations” to obtain objective medical evidence contemporaneous with the accident raises an unacceptably high risk of the summary dismissal of claimants who would have been able to prove the existence of a “serious injury” at trial, but who for non-medical reasons were unable to present contemporaneous objective medical evidence in opposition to a defendant’s summary judgment motion.

Such cases should not be summarily dismissed without regard to the evidence submitted, merely because plaintiffs did not know, and could not have known, what kind of tests they had to ask for from their doctors in order to pass the court’s high evidentiary requirements.  More flexibility is required in recognition of the fact that this evidence, through no fault of the plaintiff, is sometimes not obtained in time, or the victim’s doctor happens to keep lousy notes and isn’t litigation savvy.

Since it’s the policy of New York’s judiciary system that actions should be resolved on their merits, it is unfortunate that the current system raises the risk of dismissal based solely on whether the plaintiff’s doctor was informed enough to do range of motion testing (which s/he may have felt was not needed), properly record and describe it, or was available and willing, years later, to authenticate the evidence in admissible form.  It should be self-evident that the harsh, mechanical application of this rule will bring unjust results.

Instead, the focus should be on what is just.  Dismissing cases with evidence of a causally related serious injury,  solely because of the unavailability of objective evidence contemporaneous to the accident, without considering the rest of plaintiff’s evidence, does not accomplish the goal of the No-Fault law. Since those who have a “serious injury” can be thrown out of court under such an interpretation of the statute, it is an outcome that the legislature did not intend.  The No-Fault bar is not intended to dismiss the cases of people who can prove a serious injury, and it should be acknowledged in the law that a lack of objective contemporary evidence establishing duration of injury and proximate cause can exist in a case where there is nonetheless a causally related, longstanding serious injury.

Finally, while the function of Insurance Law 5102(d) and 5104 is to winnow out minor injuries, the function of summary judgment is to determine the existence of bona fide triable issues of fact.  Requiring objective proof of proximate cause and duration of symptoms to raise an issue of fact on a threshold motion, where, for no fault of the plaintiff, such evidence was not obtained in time and preserved, demands more than a mere issue of fact, and raises the threat of injustice in the form of the dismissal of cases where the plaintiff has submitted sufficient prima facie evidence of a serious injury.

There is yet  more on this issue in today’s New York Law Journal, in an article by Kevin R. Morrissey, who is the principal law clerk assigned to Justice Martin Schneier of Supreme Court, Kings County. He writes, however, in his own name.  (sub. req.) Insurance Law ‘Threshold’ Rules Encroach on Trial Practice.  In the article, Morrissey describes how the Appellate Division (Second Department) is now taking the summary judgment language and grafting it on to post-trial motions where a jury has already found that a serious injury has occurred. (see: Jourbine v Ma Yuk Fu)

Morrissey writes:

By grafting the requirement of contemporaneous range of motion testing onto its definition of a serious injury, the Second Department has effectively made this part of the plaintiff’s prima facie burden at trial. This creates substantial problems, particularly for the plaintiff’s bar.

The crux of the problem is that, because the requirement of contemporaneous testing is contained in neither the statute, nor the pattern jury instructions, it is not an issue that plaintiffs are obliged to prove before a jury….

Intellectually, it is disconcerting to have summary judgment criteria that are different than those that constitute the plaintiff’s prima facie burden. In this respect, it is sensible that the rules developed for summary judgment should be the same as those applied at trial. However in the context of the threshold law, these rules were developed to reduce the burden on the courts by allowing them to “weed out” cases that lack merit.11

By the time a plaintiff rests at trial, however, this burden is almost entirely resolved. Moreover, integrating these extra-statutory rules into the plaintiff’s prima facie case renders it inconsistent with the jury instructions and interrogatories. These issues should be considered by the appellate courts should Jourbine be revisited.

Our No-Fault law continues to be a mess, and it is long past time to see the legislature clarify it.

New York’s No-Fault Law To Finally Be Updated?

I’ve railed  before about some of the problems with New York’s No-Fault law, and it appears the Legislature may finally be ready to act. The No-Fault law forms the framework around which all New York auto accident lawsuits are evaluated, so this is no small deal.

Back 30+ years ago, the idea was that all auto accident victims would get  insurance for their injuries regardless of fault, but the trade-off was that only those that crossed a “serious injury” threshold could bring an action for damages. That meant the the law had to define medicine, which is no easy task.

The basic problem regarding the threshold was medical technology was limited as to what could be seen. So while the law still uses the technology from decades gone by, we now find ourselves in a situation where  a fractured pinkie qualifies as a serious injury, but surgery needed for a torn rotator cuff, herniated disk, or torn meniscus, might not.

The MRI, CT, EMG and ultrasound were, at that time the statute was drawn, dreams in the heads of inventors, or experimental prototypes not widely used as diagnostic tools. The x-ray was state of the art when the statute was drawn.  So the legislature defined the threshold in these nine ways:

  1. A personal injury that results in death;
  2. Dismemberment;
  3. A significant disfigurement;
  4. A fracture;
  5. The loss of a fetus;
  6. Permanent loss of use of a body organ, member, function or system;
  7. Permanent consequential limitation of use of a body organ or member;
  8. Significant limitation of use of a body function or system; or
  9. 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.

The first five are clearly objective measurements. The next four are fuzzier, and they have been fought over time and time again due to a lack of clarity in the statute, particularly the language of “permanent consequential limitation” and “significant limitation.” And the ninth one, referred to as the 90/180 test, is problematic because it clearly favors those with good work benefits who can thus afford to stay home and nurse their injuries. Those that are self-employed may not have that option, and would work despite having the exact same injuries. And the stay at home mom is really in trouble, as she doesn’t have that clock to punch, thereby creating documentation for time missed. The 90/180 rule actually encourages people to miss work.

As it developed, the law also was found to favor those patients that chose doctors fluent in legalese, to deal with some of the odd requrirements that courts started adding to the statute.  Courts started demanding, for example, “objective” findings that were made “contemperaneous” with the accident. That language doesn’t exist in the statute. Lawyers would read decisions and tell doctors what the evolving standards were, to the best they could be defined. And woe unto the accident victim that merely went to a doctor that simply wanted to practice medicine and heal the patient. Now that doctor was forced to write medical-legal reports. And they couldn’t just write like they were trained in medical school and residencies. They had to adopt the language of judges.

Another problem was the accusation that insurance companies were using sham medical exams to cut off the No-Fault benefits. There is no shortage of complaints in New York of 5-minute exams where a doctor finds no objective evidence of injury and the insurance company cuts off the benefits that were supposed to come as the trade-off for surrendering their right to sue.

Last year, a  very frustrated Supreme Court Bronx Paul Victor took a shot across the bow of this law, with a long rant about legislative defects, inconsistent appellate decisions and “a great expenditure of limited judicial time” trying to define “elusive standards” in the law.

How does the Legislature fix the problems?

The Legislature might finally bring the statute into the 21 century, although these technologies were available before the calendar turned 10 years ago and so are long overdue. The idea that a fractured pinkie would be a “serious injury,” while back, shoulder and knee injuries that result in surgeries would not be, is a great example of how a law was turned on its head.

Introduced two weeks ago, the new bill would clarify the definition of the threshold, by specifically by further defining “serious injury” as:

  • a partial or complete tear or impingement of a nerve, tendon, ligament, muscle or  cartilage;
  • injury to any part of the spinal column that results in injury to an intervertebral disc;
  • impingement of the spinal cord,spinal canal, nerve, tendon or muscle;
  • surgery

It should be noted that many of these things already might fall under the definition under the present definitions. The problem is, as Judge Victor pointed out, that it’s largely up to the judge, and the judges do not apply the law evenly. So that currently it’s a crap shoot on which judge (or appellate panel) is assigned to the case. Judge Victor was clear that we have slid a long way from the even administration of law.

Roy Mura over at Coverage Counsel has a different view, as he writes from the insurance company perspective. He sees an expansion of the injuries that qualify under the proposed changes. But he fails to take into account the essential ambiguity in the law as it tries mightily to define medicine, especially given that medicine has moved forward over the last 30+ years. Nor  has he accounted for the problems that Judge Victor discussed with the uneven administration of justice,  with some judges tossing out cases while others would allow the exact same ones to go forward. The bill leaves this essential fact-finding function to the jury, where it belongs.

Vagueness and ambiguity have no place in the law. It creates problems as courts get swamped with motions and appeals that they are ill-prepared to deal with if a legislature hasn’t done a good job of establishing definitions.

The bill would bring some fundamental fairness to New York’s No-Fault law, seeing to it that all people are treated the same.  And that can only be a good thing if you happen to be the person that was injured.

You can find the Assembly version of the bill with its sponsors, here:  Assembly Bill A10739

You should be able to find the Senate version here: Senate Bill S7518

Can Jury Consider All Damages, if Only Some Meet the No-Fault Threshold?


Today’s case solves a quirk in New York’s No-Fault law regarding the “serious injury” threshold that must be met in order to bring a lawsuit. That threshold was established in the ’70s in order to cut back on the number of personal injury cases that resulted from car accidents.

So here’s the question: If the threshold is met under one category of injury, can other categories of injuries be considered by the jury? For example, if the jury finds the threshold has been met with a fracture of the finger (#4 below) but that the back injuries didn’t qualify as a “Significant limitation of use of a body function or system” (# 8 below), can the back injuries be considered by the jury in assessing damages?

These are the categories that the legislature says define “serious injury” under New York’s miserable No-Fault law:

  1. A personal injury that results in death;
  2. Dismemberment;
  3. A significant disfigurement;
  4. A fracture;
  5. The loss of a fetus;
  6. Permanent loss of use of a body organ, member, function or system;
  7. Permanent consequential limitation of use of a body organ or member;
  8. Significant limitation of use of a body function or system; or
  9. 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”.

This issue arose in Rubin v. SMS Taxi, decided yesterday by the Appellate Division (First Department). Defendant had moved for summary judgment claiming that the plaintiff didn’t meet the No-Fault threshold. The lower court granted the motion for all injuries except for the significant disfigurement that the plaintiff suffered. The court then denied plaintiff’s motion for clarification or reconsideration,wherein he wanted to know if, having met threshold in one category, he could proceed to argue all the injuries.

And the First Department reversed with respect to the motion to clarify, and held unambiguously that

“once a jury determines plaintiff has met the threshold for serious injury, the jury may award damages for all of plaintiff’s injuries causally related to the accident, even those not meeting the serious injury threshold.”

In its decision, the court also cited to a Second Department case (Marte v. New York City Transit Auth.) as support.

Without question, it’s an important principle to remember for all practitioners: You only need to prove one of the categories falls within the serious injury threshold to then proceed for an assessment for all of the injuries that were causally related to the accident.

Health Care Bill: Benefits For Personal Injury Victims


The health care reform bill should be a big benefit to personal injury victims. Traditionally, those people most put at risk after accidents were the middle class uninsured. Poor people have Medicaid to fall back on and others have private insurance. Now there will be an additional 32 million with coverage.

While in theory auto accident victims have had No-Fault insurance in New York to protect them, and the bill shouldn’t matter, that is theoretical only. In New York, insurers have long enjoyed a reputation for cutting off benefits to victims after sham medical exams by “independent” examiners hired by the insurance companies. These doctors are anything but independent. Victims are often told that they aren’t injured, despite the pain they are in and their restrictions of motion. Or that the pains that they have are “preexisting” despite the fact that they felt fine before the accident.

Medical malpractice victims, of course, don’t even have the No-Fault.

So with more of the victims covered by their own insurance, we are likely to see these positive effects, the first of which is obvious and the second two more subtle, but most definitely important:

First: People that were previously left to the mercies of existing no-fault laws and the spotty medical care that they provide can continue to get care and, to the extent treatment benefits the quality of life, be healthier.

Second: If an individual believes others are at fault and starts a lawsuit, the injuries that they suffered will be documented by treating medical practitioners. Currently, if a patient stops treating, that is an issue that defense attorneys love to harp on in front of juries. Without having their doctors treating them, plaintiffs must tell juries that the reason they aren’t treating is that they can’t afford it. And with that, their credibility can be attacked, which is far easier than attacking the credibility of multiple physicians, because the plaintiff is an “interested party” in the outcome of the suit.

Third: The existence of continuing health care hamstrings liability insurers that oft times will rush in to accident victims with low ball offers before they have consulted with attorneys. When there is no other insurance or No-Fault gets cut off, and a victim that may not be able to work, a $5,000 offer may be desperately needed money. With the injured already knowing they are covered, they won’t be as vulnerable, and will be in a better position to sit back and objectively evaluate their situation.

So, all in all, this is a good situation for those who have been injured, beyond the most obvious point of simply being able to obtain health care.

Can a sworn medical opinion that relies on unsworn MRI reports constitute competent evidence? (Is that kosher?)

Today’s issue starts out straightforward with a malpractice case. But pay attention, because the real application of this decision is in New York’s No-Fault law and litigation over “serious injuries” in car accidents.

Plaintiff brought a malpractice case against chiropractors alleging that they caused her to suffer severe spinal cord injury requiring surgical intervention. Defendants move to dismiss. In response, plaintiff puts in an affidavit from a chiropractor. Since it’s an affidavit, it’s sworn. But the chiropractor relies on unsworn MRI reports. Is that OK?

Yes, says the Appellate Division (Third Department) in a decision released yesterday, Caulkins v Vicinanzo. While it is true that “uncertified medical records and unsworn letters or reports are of no probative value” in opposing a summary judgment motion, in this case the affidavit is a sworn document. And the appellate court, in holding that the affidavit could rely on unsworn documents, plucked a footnote from the Court of Appeals decision in Pommells v. Perez, which said:

“Though the MRI reports were unsworn, the various medical opinions relying on those MRI reports are sworn and thus competent evidence.”

Now in theory, the case favors neither plaintiffs or defendants, since either can make a motion for summary judgment.

But that’s only theory. It’s real application comes not in the world of medical malpractice, where summary judgment motions are relatively rare, but in the realm of car accidents and defense allegations that the “serious injury” threshold under New York’s miserable No-Fault law was not met.

The reality is that some offices are fighting these types of summary judgment motions every day. (And the courts hate them.) And many of those cases have small insurance policies (25K) that make it essential for personal injury lawyers to litigate with great efficiency. Defense lawyers, of course, being funded by the multi-billion dollar insurance companies, don’t have that problem. If the plaintiffs need additional affidavits from radiological experts to corroborate what the initial radiologist said, it is an additional expense.

So you can bet that this case will be cited in the months and years to come for those that fight those battles. Ultimately, it’s a win for car wreck victims as it helps to streamline an already miserable part of New York’s auto accident practice.

Efficiency is a good thing when you work on contingency. And it’s good for the victims too, who often have trouble finding counsel for cases that have limited upside due to small insurance policies.

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