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.
Good Article Eric.
It caught my attention because British Columbia Courts have been struggling with the issue of what weight to give radiologist reports at trial when they are relied on by a physician who provides medico-legal evidence but who does not review the diagnostic studies first hand.
Here is an article I recently wrote on this topic: