Opinion
23087/2003.
Decided January 3, 2006.
In this action, plaintiff Kabine Berete seeks to recover money damages for personal injuries sustained in a three-car accident involving cars operated by plaintiff and defendants Sandro Sansotta and Niseldo Vega.
The spouse of the injured plaintiff also asserts a derivative claim for loss of consortium. Defendants now move and cross move for summary judgment dismissing the action on the ground that the injured plaintiff did not sustain a "serious injury," as that term is defined by Insurance Law § 5102. An issue of apparent first impression is raised by this motion in determining whether plaintiff's duty under Pommels, infra, and its progeny, to proffer an explanation for any significant gap in treatment, is obviated by a treating physician's opinion, rendered prior to the gap/cessation of treatment, that plaintiff has suffered a permanent back injury.
Discussion
On a motion for summary judgment for the failure to sustain a "serious injury" within the meaning of Insurance Law § 5102(d), the movant must make a prima facie case showing that the injured plaintiff did not sustain a "serious injury" within the meaning of the statute. Once this is established, the burden shifts to the plaintiff to come forward with evidence to overcome the defendant's submissions by demonstrating a triable issue of fact that a "serious injury" was sustained. See Pummels v. Perez, 4 NY3d 566 (2005); Gaddy v. Eyler, 79 NY2d 955 (1992); Grossman v. Wright, 268 AD2d 79, 84 (2nd Dept. 2000).
In this case, in support of their motion, defendants have submitted, inter alia, an affirmation of Dr. Richard Weinstein, M.D., a Board Certified Orthopedic Surgeon, with regard to the doctor's physical examination of plaintiff on September 29, 2004. Defendants have also submitted an affirmation of Dr. Rene Elkin, M.D., a Board Certified neurologist, with regard to the doctor's physical examination of plaintiff on August 12, 2004.
Defendants' submission reveals that plaintiff's current, subjective complaints of pain are not supported by any objective medical findings and that any injury which plaintiff may have sustained is transitory, occasional and not significant. Based upon such submission, defendants met their burden of establishing that plaintiff did not sustain a "serious injury" under Insurance Law § 5102, under the claims of "serious injury" that allege some sort of permanent or significant injury, that is, an injury which has an extended duration element (categories of "permanent consequential limitation of use of a body organ" and "significant limitation of a body function or system").
In opposition to the motion and cross motions for summary judgment, plaintiff submits, inter alia, an affirmed report of his treating physician, Dr. Naum S. Meyerovich, M.D., with regard to the doctor's physical examination of plaintiff on September 6, 2005. The examination reveals plaintiff's current back condition (including cervical and lumbosacral sprain/strain and posterior herniations in the cervical and lumbar spine) which was based upon objective medical observations, as well as objective testing such as range of motion tests and MRI results. Dr. Meyerovich details plaintiff's symptoms, including recurring pain and limitation of movements in the cervical and lumbar spine. Such recent examination, which indicates significant limitations in the lumbar and cervical spine is usually sufficient to raise a triable issue of fact. See e.g., Rosario v. Universal Truck Trailer Service, 2 AD3d 362 (1st Dept. 2003); Campbell v. Cloverleaf Trans Inc., 5 AD3d 169 (1st Dept. 2004).
However the Court of Appeals recently held that certain factors may override a plaintiff's objective medical proof of such limitations and permit dismissal of the complaint. Specifically, in Pommels v. Perez, the Court of Appeals recently held that additional contributing factors, such as a gap in treatment, an intervening medical problem, or a preexisting condition, would interrupt the chain of causation between the accident and the claimed injury. Id. at 4 NY.3d 566, citing Franchini v. Palmieri, 1 NY3d 539 (2003). See also, Mohamed v. Siffrain, 19 AD3d 56 (2nd Dept. 2005); Brown v. Achy, 9 AD3d 30 (1st Dept. 2004).
In this case, there is an undisputed two-year gap in treatment, beginning four months after the accident, and continuing until the preparation of the medical affidavit relied upon by plaintiff in opposition to the motion for summary judgment. In Pommels v. Perez, supra, the Court held that while "the law surely does not require a record for needless treatment in order to survive summary judgment, where there has been a gap in treatment or cessation of treatment, a plaintiff must offer some reasonable explanation for the gap in treatment or cessation of treatment." Id. See also, Colon v. Kempner, 20 AD3d 372 (1st Dept. 2005); Neugebauer v. Gill, 19 AD3d 567 (2nd Dept. 2005).
Plaintiff, however, argues that his duty under Pommels and its progeny, to proffer an explanation for a significant gap of treatment, is obviated by the treating physician's opinion, rendered prior to the inception of the gap, that plaintiff had suffered a permanent back injury. Specifically, four months after his accident, plaintiff was examined by Dr. Meyerovich, M.D., who concluded, based upon a physical examination, including range of motion tests, that plaintiff's back injuries were permanent.
This Court finds plaintiff's position untenable as a matter of law. Dr. Meyerovich's projection of permanency of the back injuries have no probative value when based upon an examination within a short period of time after the accident. Indeed, courts have consistently held that, within the context of back injuries (e.g. cervical and lumbar sprain, strain, herniation bulges, etc.,) the projection of permanent limitations has no probative value in the absence of a recent examination. See e.g., Evans v. Mohammad, 243 AD2d 604, 605; Mohamed v. Dhanasar, 273 AD2d 451; Smith v. Askew, supra, Kauderer v. Penta, supra; Bidetto v. Williams, 276 AD2d 516, 517 (2nd Dept. 2000) Kauderer v. Penta, 261 AD2d 365 (2nd Dept. 1999); Thomas v. Roach, 246 AD2d 591(2nd Dept. 1998). As the Second Department explained in Evans v. Mohammad, supra, opinions by doctors that a plaintiff suffered a permanent back injury based solely on an examination that is too remote is insufficient to create an issue of fact when faced with an opinion from a defendant's doctor that is based on a more recent examination. Id. at 605.
Accordingly, the two-year gap of treatment must be explained notwithstanding the fact that it was preceded by a doctor's projection of permanency of the back injuries. Courts that have applied Pommels, supra, have consistently held that to be reasonable the explanation must be concrete and substantiated by the record. For instance, an explanation that further treatment would have been futile or merely palliative has been deemed insufficient when based solely upon a plaintiff's own subjective beliefs, uncorroborated by medical evidence. See e.g., McNamara v. Wood, 19 AD3d 92 (3rd Dept. 2005). Moreover, even where such explanation has been proffered by a doctor, it has been deemed insufficient where it is contrary to the medical record. See e.g., McNamara v. Wood, 19 AD3d 921 (3rd Dept. 2004). For example, in Shapurkin v. SSI Services, FLQ, Inc., plaintiff explained that he failed to pursue treatment because "it provided only temporary relief." 2005 WL 2002452 (EDNY 2005). Such explanation was substantiated only by an affidavit from a doctor who treated plaintiff four years after the cessation of treatment. The court, however, found that the doctor's explanation lacked any probative value; what was required, the court explained, was evidence contemporaneous with the cessation of treatment, such as a doctor's recommendation that further treatment would be merely palliative. Id. Cf. Stein v. Benton, 2005 WL 224831 (EDNY 2005).
This Court finds that plaintiff here failed to meet her burden under Pommels, supra . Plaintiff refers to the explanation proffered by her examining doctor in his report, which was based upon his examination of plaintiff conducted on September 6, 2005. Specifically, Dr. Meyerovich reports now that the "[p]atient] reached maximum medical improvement and treatment was discontinued [two years earlier]." An explanation for cessation of treatment that continued treatment would not produce any benefit has been found sufficient when rendered by an expert competent to make such medical determination. See Toure v. Avis Rent A Car Sys., 98 NY2d 345, 355 (2003) (extended period without treatment was sufficiently explained by expert testimony that continued treatment would not produce any benefit). Here, however, the explanation — that plaintiff reached maximum medical improvement is belied by the medical record. In his report, based upon plaintiff's examination before the gap/cessation of treatment, Dr. Meyerovich did not indicate that plaintiff had reached maximum medical improvement. To the contrary, Dr. Meyerovich indicated that the "patient has demonstrated moderate response to physiotherapy" and that "[f]ollow-up reevaluations have been advised during times." Thus, like the courts in McNamara v. Wood, supra, and Shapurkin v. SSI Services, FLQ, Inc, supra, this Court rejects an explanation proffered by a doctor that is contrary to the medical record.
While this Court finds that plaintiff has provided an insufficient explanation for the three-year gap of treatment, such unexplained gap is not dispositive of the claim of serious injury under the 90/180 day category. As this Court explained in Gomez v. Ford Motor Credit Co., ___ NYS2d ___, 2005 WL 3193696, 2005 NY Slip Op. 25503, N.Y.Sup., Nov 28, 2005);
Where there is a lengthy gap of treatment, the gap must be explained to dispel the suggestion that any injury plaintiff sustained has resolved, thus eliminating any possibility that the plaintiff sustained a "serious injury" that alleges some sort or permanent or significant injury — that is, an injury that has extended duration element [categories of "permanent consequential limitation of use of a body organ" and "significant permanent of a body function or system.]" However, a 90/180-day "serious injury" claim by its term does not have a duration element beyond the 180-day period set forth by Insurance Law § 5102, making a plaintiff's current condition irrelevant as to whether the plaintiff was unable to carry out her normal and customary activities during the statutory period. See e.g., Peplow v. Murat, 304 AD2d 633 (2nd Dept. 2003); Troutovski v. Sitner, 180 Misc 2d 124 (New York City Civ. Court 1989). Therefore, a gap or cessation of treatment is irrelevant as to whether the plaintiff sustained a "medically determined injury or impairment of a nonpermanent nature which prevents an injured person from performing all the material acts which constitute such usual and customary activities for no less than 90 days during the 180-days immediately following the occurrence of the injury or impairment.
Accordingly, this Court must examine whether a 90-180-day claim of "serious injury" must be dismissed, notwithstanding the unexplained two-year gap in treatment. Under the 90/180 day category, "serious injury" is defined as a plaintiff's inability to perform "substantially all of the material acts which constitute[d] [her] usual and customary activities" for not less than 90 of the 180 days immediately following the date of the accident. Insurance Law § 5102(d); see also, Mikl v. Shufelt, 285 AD2d 949 (3rd Dept. 2001); Sellitto v. Casey, 268 AD2d 753, 755 (3rd Dept. 2000). Significantly, to prevail under that category, a plaintiff must demonstrate through competent, objective proof, a "medically determined injury or impairment of a nonpermanent nature" (Insurance Law § 5102[d]) "which would have caused the alleged limitations on the plaintiff's daily activities," Monk v. Dupuis, 287 AD2d 187, 191 (3rd Dept. 2001), and, furthermore, a curtailment of the plaintiff's usual activities "to a great extent rather than some slight curtailment" Licari v. Elliott, 57 NY2d 230, 236 (2982); see also, Sands v. Stark, 299 AD2d 642 (2nd Dept. 2002).
This Court finds that defendants have met their burden of establishing that plaintiff did not sustain a 90/180-day "serious injury." Specifically, the evidence submitted by defendants demonstrate that plaintiff cannot establish an inability to perform the requisite acts within the prescribed period. For instance, in his deposition testimony, plaintiff claims she was unable to return to work for about a year after the instant car accident. However, the medical record is devoid of any evidence that such lengthy absence from work was at the direction of a doctor, and, thus, not medically determined. Cf. Nelson v. Distant, 308 AD2d 338 (1st Dept. 2003) (Court held that defendant met its burden on the 90/180-day serious injury claim, even though the plaintiff claimed she missed 11 months of work as a home nursing healthcare worker, and where the plaintiff could not remember if any doctor told her that she had to stay home from work). See also, Shinn v. Cantazaro, 1 A.D.3rd 195 (1st Dept. 2003); Relin v. Brotherton, 221 AD2d 840 (3rd Dept. 1995). Nor did plaintiff mention any curtailment of customary activities at home.
Based upon such submission, the burden shifted to plaintiff to raise a triable issue of fact. Plaintiff, however, failed to meet her burden as she did not address this claim in her opposition to the motion and cross motions for summary judgment on the threshold issue of "serious injury." Thus, the 90/180-day "serious injury" claim must also be dismissed.
Conclusion
For the foregoing reasons, the motion and cross motions by defendants, seeking summary judgment dismissing the action, on the ground that plaintiff did not sustain a "serious injury," as that term is defined by Insurance Law § 5102, are granted and the Clerk is directed to dismiss the action and grant a judgment in favor of defendants.
This constitutes the Decision and Order of the Court.