In Hernandez v. Almanzar, 2006 NY Slip Op 06350, the First Department considered the issue of whether the plaintiff in a personal injury case had suffered a "serious injury" within the meaning of the No-Fault Law. The plaintiff was involved in a car accident in February of 2002 and subsequently filed suit. Defendants moved for summary judgment alleging that she failed to establish that she'd suffered a serious injury.
The defendants submitted reports from an orthopedist and a neurologist, both of whom, not surprisingly, opined that she had not suffered from a serious injury. More importantly defendants submitted the plaintiff's deposition testimony in which she testified that she'd been in two additional automobile accidents in 1999 and 2003.
In opposition to the motion, the plaintiff submitted the affirmation of a neurologist dated April 19, 2005 in which he reported "certain alleged range-of-motion deficits due to neck and back injuries he attributed to the February 2002 accident" based upon an examination of the plaintiff.
Unfortunately, the Court did not note the date of the neurologist's examination of the plaintiff, and it's unclear whether his affirmation included that information.
The Court concluded:
Although Dr. Hausknecht acknowledged that plaintiff had been injured in the October 1999 and January 2003 accidents, he did not explain the basis for his claim that the deficits he allegedly found in April 2005 — more than three years after the subject accident in February 2002 — were proximately caused by that accident, rather than by the October 1999 accident, and were only exacerbated (not caused in the first instance) by the January 2003 accident. Accordingly, plaintiff failed to come forward with evidence sufficient to prove "a serious injury causally related to the [subject] accident" (Pommells v Perez, 4 NY3d 566, 579  [emphasis added]).
To the extent Dr. Hausknecht's conclusions were based on the unaffirmed reports of plaintiff's treating physicians, such reports do not constitute admissible evidence, and therefore do not suffice to defeat a well-supported summary judgment motion...In any event, such reports, which were created within two months after the February 2002 accident, are not probative of the existence of a permanent injury.
Does anyone else find the Court's rationale to be confusing?
Assuming that the neurologist's exam occurred close in time to the preparation of his April 2005 affirmation (and that's a big assumption--I wish the court had been clearer on that issue), based on the facts of this case, it makes sense that the plaintiff's neurologist's affirmation was inadequate in light of the failure to explain why he thought that the 2002 accident was the proximate cause of her injuries.
But, what I find confusing is the latter half of the Court's holding--that the reports by her physicians prepared a few months after the 2002 accident were not probative as to the existence of a permanent injury. If the information contained in those reports (let's assume they were offered in admissible form) cannot be used to establish that she suffered from an injury at the time of the 2002 accident that ultimately resulted in a permanent limitation in the range of motion for her back and neck, then how is she to prove that her injuries were causally related to the 2002 accident as opposed to one of the other accidents?
Is a plaintiff who has the bad luck of being in a number of car accidents in a short time effectively prevented from recovering for injuries sustained in any accident under this reasoning? Or would affidavits from one of those treating physicians who examined her within months of the accident suffice as long as the physician was able to conclude based upon subsequent examinations that the alleged injuries were proximately caused by the 2002 accident? What if she'd switched physicians and was never examined by those initial physicians again? Would she then be out of luck?
What evidence should the plaintiff have submitted in order to defeat the motion for summary judgment on the issue of serious injury? I'm not sure that I know the answer to that, but perhaps I've overlooked an obvious solution.