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:
- “permanent consequential limitation of use of a body organ or member”;
- “significant limitation of use of a body function or system”; and
- “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.
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From a plaintiff’s perspective its about time. The only thing I am not clear on from this decision is that if someone is injured and goes to a physician and that physician conducts a range of motion test (“ROM”) under this decision, in order to prove significant limitation at trial do I need to have the original treating physician to conduct another ROM or if the treating physician is not available can I have another physician examine the client and testify on the significant limitation issue.
“A case should not be lost because the doctor who cared for the patient initially was primarily, or only, concerned with treating the injuries.”
That’s powerful and unfortunately there are numerous medical malpractice cases every day. With the amount of time they put into their work, one would think that a doctor would keep a clean slate.
That’s powerful and unfortunately there are numerous medical malpractice cases every day.
This case has absolutely nothing to do with the primary care docs committing malpractice, but with them keeping notes in a manner specified by the lower appellate courts.
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