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A New York automobile accident victim must have suffered a serious injury as defined by the New York Insurance Law in order to recover for noneconomic loss. New York car accident attorneys know that defendants often seek summary judgment on the ground that the plaintiff did not sustain a serious injury. If the defendant files for summary judgment, the defendant has the burden of making a prima facie showing that the plaintiff did not suffer a serious injury. If the defendant meets this burden, the plaintiff must then present evidence that raises a triable issue of fact that he or she did suffer a serious injury.

A New York court recently considered a case in which the plaintiff was able to raise a triable issue of fact through the submission of medical records and doctors’ affirmations. The plaintiff testified he had driven himself to the emergency room after the accident and sought additional treatment from a doctor within a week. He testified he had not seen any doctors regarding the accident in the past year and was not currently taking any medications. The plaintiff could not remember if he had been employed at the time of the accident, or if he missed any work as a result of the accident.

In support of a motion for summary judgment, the defendant submitted an affirmed medical report from the doctor who performed an independent evaluation of the plaintiff. The objective tests and range of motion tests had results within the normal range. The doctor opined that the plaintiff’s injuries were partly related to the accident but were also related to previous injuries. He concluded the plaintiff could perform all activities of daily living. The doctor found no medical necessity for further treatment or diagnostic testing.

The defendant argued the evidence was sufficient to establish a prima facie case that the plaintiff had not sustained a “serious injury.” “Serious injury” is defined in New York Insurance Law § 5102(d). The definition includes several specific types of injuries, and also three broad categories: a permanent consequential limitation of use of a body organ or member; a significant limitation of use of a body function or system; or a nonpermanent injury that prevents the person from performing substantially all of the material acts constituting his or her usual and customary daily activities for at least 90 of the 180 days immediately after the accident. The defendant argued that the plaintiff did not meet any of these categories, and specifically that he did not meet the final category because he could not remember if he had to miss any work.

In opposition to the motion for summary judgment, the plaintiff submitted an affidavit. He affirmed that he stopped treatment because he had reached the maximum medical level of improvement but still experiences daily neck and back pain. Although he had been injured in a prior accident, he was not experiencing pain in his spine at the time of this accident.

He also submitted medical records and affirmations from his doctors. His doctor found a direct causal relationship between the accident and the plaintiff’s injuries. The plaintiff’s most recent range of motion testing in July 2017 showed limited ranges of motion in the cervical and lumbar spine. The plaintiff had been advised to refrain from a number of ordinary activities, such as prolonged sitting or standing, and to be cautious in the performance of other activities like performing household chores. The plaintiff missed six weeks of work due to his injuries and had also been advised to limit certain work activities. The doctor noted the plaintiff had fully recovered from the prior accident when he began treatment for the injuries from this accident. The doctor opined that the plaintiff sustained a permanent partial disability to his lumbar, cervical, and thoracic spine as a result of the accident.

The court found the defendant had met the prima facie burden of showing the plaintiff had not sustained a serious injury as defined in Insurance Law § 5102(d). The plaintiff, however, had raised triable issues of fact that he had sustained serious injuries under the permanent consequential and/or significant limitation of use category and the 90 / 180 day category by submitting the affirmations from the doctors. The affirmations had attested that the plaintiff had sustained injuries from the accident, stated findings that the plaintiff experienced significant range of motion limitations shortly after the accident and more recently, and included conclusions that the limitations were permanent and causally related to the accident. The court further found the gap in treatment was explained by the plaintiff reaching maximum medical improvement, even though he continued to experience symptoms. The court denied the motion for summary judgment.

This case illustrates the importance of strong medical documentation in a personal injury case. Here, the plaintiff’s testimony was not sufficient to show that he had suffered a serious injury, but the information from his doctors was enough to raise a triable issue of fact. Gaps in treatment or a lack of recollection in the plaintiff can raise questions as to the severity of the injury, but the medical records may be able to address those issues, as they did here.

An experienced New York automobile accident attorney knows how to work with doctors and use medical records to support a claim. If you’ve been injured in an automobile accident, call the Law Offices of Marc S. Albert at 1.855.252.3788.

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