May 19th, 2010

New York’s No-Fault Law and How Victims Lose Their Day in Court

This is a follow-up to my post on my April 26th post: New York’s No-Fault Law To Finally Be Updated?

That post dealt with the Byzantine mess that our courts have made of our primary auto accident statute regarding injuries and when people can sue, and how the same fact patterns lead to different results depending on the bench. This is due, in large part, to vague statutory definitions of what constitutes a “serious injury.”

The newly proposed legislation (S07518, A10739) would bring clarity to the law and guidance to the courts. The main legislative target is the judicial requirement for the presentation of objective evidence of a “serious injury” as defined by Insurance Law 5102(d) within a set time (“contemporaneous”) after the accident.  The “objective evidence” and “contemporaneous” language does not appear in the statute. The intention of the amendments is to prevent the dismissal of those cases where there is a “serious injury.”

Roy Mura dealt with this from the defense side at his blog, Coverage Counsel and asserted that there “will dramatically expand the number and kind of personal injury lawsuits that can be brought and tried in New York State.” Mura worries that each sprain and cut (are stitches surgery?) will somehow qualify as a serious injury.

But it is not claimed by the bill’s supporters that small or minor injuries should be allowed to pass over the No-Fault threshold.  It is claimed, however, that the invisible “statute of limitations” to obtain objective medical evidence contemporaneous with the accident raises an unacceptably high risk of the summary dismissal of claimants who would have been able to prove the existence of a “serious injury” at trial, but who for non-medical reasons were unable to present contemporaneous objective medical evidence in opposition to a defendant’s summary judgment motion.

Such cases should not be summarily dismissed without regard to the evidence submitted, merely because plaintiffs did not know, and could not have known, what kind of tests they had to ask for from their doctors in order to pass the court’s high evidentiary requirements.  More flexibility is required in recognition of the fact that this evidence, through no fault of the plaintiff, is sometimes not obtained in time, or the victim’s doctor happens to keep lousy notes and isn’t litigation savvy.

Since it’s the policy of New York’s judiciary system that actions should be resolved on their merits, it is unfortunate that the current system raises the risk of dismissal based solely on whether the plaintiff’s doctor was informed enough to do range of motion testing (which s/he may have felt was not needed), properly record and describe it, or was available and willing, years later, to authenticate the evidence in admissible form.  It should be self-evident that the harsh, mechanical application of this rule will bring unjust results.

Instead, the focus should be on what is just.  Dismissing cases with evidence of a causally related serious injury,  solely because of the unavailability of objective evidence contemporaneous to the accident, without considering the rest of plaintiff’s evidence, does not accomplish the goal of the No-Fault law. Since those who have a “serious injury” can be thrown out of court under such an interpretation of the statute, it is an outcome that the legislature did not intend.  The No-Fault bar is not intended to dismiss the cases of people who can prove a serious injury, and it should be acknowledged in the law that a lack of objective contemporary evidence establishing duration of injury and proximate cause can exist in a case where there is nonetheless a causally related, longstanding serious injury.

Finally, while the function of Insurance Law 5102(d) and 5104 is to winnow out minor injuries, the function of summary judgment is to determine the existence of bona fide triable issues of fact.  Requiring objective proof of proximate cause and duration of symptoms to raise an issue of fact on a threshold motion, where, for no fault of the plaintiff, such evidence was not obtained in time and preserved, demands more than a mere issue of fact, and raises the threat of injustice in the form of the dismissal of cases where the plaintiff has submitted sufficient prima facie evidence of a serious injury.

There is yet  more on this issue in today’s New York Law Journal, in an article by Kevin R. Morrissey, who is the principal law clerk assigned to Justice Martin Schneier of Supreme Court, Kings County. He writes, however, in his own name.  (sub. req.) Insurance Law ‘Threshold’ Rules Encroach on Trial Practice.  In the article, Morrissey describes how the Appellate Division (Second Department) is now taking the summary judgment language and grafting it on to post-trial motions where a jury has already found that a serious injury has occurred. (see: Jourbine v Ma Yuk Fu)

Morrissey writes:

By grafting the requirement of contemporaneous range of motion testing onto its definition of a serious injury, the Second Department has effectively made this part of the plaintiff’s prima facie burden at trial. This creates substantial problems, particularly for the plaintiff’s bar.

The crux of the problem is that, because the requirement of contemporaneous testing is contained in neither the statute, nor the pattern jury instructions, it is not an issue that plaintiffs are obliged to prove before a jury….

Intellectually, it is disconcerting to have summary judgment criteria that are different than those that constitute the plaintiff’s prima facie burden. In this respect, it is sensible that the rules developed for summary judgment should be the same as those applied at trial. However in the context of the threshold law, these rules were developed to reduce the burden on the courts by allowing them to “weed out” cases that lack merit.11

By the time a plaintiff rests at trial, however, this burden is almost entirely resolved. Moreover, integrating these extra-statutory rules into the plaintiff’s prima facie case renders it inconsistent with the jury instructions and interrogatories. These issues should be considered by the appellate courts should Jourbine be revisited.

Our No-Fault law continues to be a mess, and it is long past time to see the legislature clarify it.


April 26th, 2010

New York’s No-Fault Law To Finally Be Updated?

I’ve railed  before about some of the problems with New York’s No-Fault law, and it appears the Legislature may finally be ready to act. The No-Fault law forms the framework around which all New York auto accident lawsuits are evaluated, so this is no small deal.

Back 30+ years ago, the idea was that all auto accident victims would get  insurance for their injuries regardless of fault, but the trade-off was that only those that crossed a “serious injury” threshold could bring an action for damages. That meant the the law had to define medicine, which is no easy task.

The basic problem regarding the threshold was medical technology was limited as to what could be seen. So while the law still uses the technology from decades gone by, we now find ourselves in a situation where  a fractured pinkie qualifies as a serious injury, but surgery needed for a torn rotator cuff, herniated disk, or torn meniscus, might not.

The MRI, CT, EMG and ultrasound were, at that time the statute was drawn, dreams in the heads of inventors, or experimental prototypes not widely used as diagnostic tools. The x-ray was state of the art when the statute was drawn.  So the legislature defined the threshold in these nine ways:

  1. A personal injury that results in death;
  2. Dismemberment;
  3. A significant disfigurement;
  4. A fracture;
  5. The loss of a fetus;
  6. Permanent loss of use of a body organ, member, function or system;
  7. Permanent consequential limitation of use of a body organ or member;
  8. Significant limitation of use of a body function or system; or
  9. 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 first five are clearly objective measurements. The next four are fuzzier, and they have been fought over time and time again due to a lack of clarity in the statute, particularly the language of “permanent consequential limitation” and “significant limitation.” And the ninth one, referred to as the 90/180 test, is problematic because it clearly favors those with good work benefits who can thus afford to stay home and nurse their injuries. Those that are self-employed may not have that option, and would work despite having the exact same injuries. And the stay at home mom is really in trouble, as she doesn’t have that clock to punch, thereby creating documentation for time missed. The 90/180 rule actually encourages people to miss work.

As it developed, the law also was found to favor those patients that chose doctors fluent in legalese, to deal with some of the odd requrirements that courts started adding to the statute.  Courts started demanding, for example, “objective” findings that were made “contemperaneous” with the accident. That language doesn’t exist in the statute. Lawyers would read decisions and tell doctors what the evolving standards were, to the best they could be defined. And woe unto the accident victim that merely went to a doctor that simply wanted to practice medicine and heal the patient. Now that doctor was forced to write medical-legal reports. And they couldn’t just write like they were trained in medical school and residencies. They had to adopt the language of judges.

Another problem was the accusation that insurance companies were using sham medical exams to cut off the No-Fault benefits. There is no shortage of complaints in New York of 5-minute exams where a doctor finds no objective evidence of injury and the insurance company cuts off the benefits that were supposed to come as the trade-off for surrendering their right to sue.

Last year, a  very frustrated Supreme Court Bronx Paul Victor took a shot across the bow of this law, with a long rant about legislative defects, inconsistent appellate decisions and “a great expenditure of limited judicial time” trying to define “elusive standards” in the law.

How does the Legislature fix the problems?

The Legislature might finally bring the statute into the 21 century, although these technologies were available before the calendar turned 10 years ago and so are long overdue. The idea that a fractured pinkie would be a “serious injury,” while back, shoulder and knee injuries that result in surgeries would not be, is a great example of how a law was turned on its head.

Introduced two weeks ago, the new bill would clarify the definition of the threshold, by specifically by further defining “serious injury” as:

  • a partial or complete tear or impingement of a nerve, tendon, ligament, muscle or  cartilage;
  • injury to any part of the spinal column that results in injury to an intervertebral disc;
  • impingement of the spinal cord,spinal canal, nerve, tendon or muscle;
  • surgery

It should be noted that many of these things already might fall under the definition under the present definitions. The problem is, as Judge Victor pointed out, that it’s largely up to the judge, and the judges do not apply the law evenly. So that currently it’s a crap shoot on which judge (or appellate panel) is assigned to the case. Judge Victor was clear that we have slid a long way from the even administration of law.

Roy Mura over at Coverage Counsel has a different view, as he writes from the insurance company perspective. He sees an expansion of the injuries that qualify under the proposed changes. But he fails to take into account the essential ambiguity in the law as it tries mightily to define medicine, especially given that medicine has moved forward over the last 30+ years. Nor  has he accounted for the problems that Judge Victor discussed with the uneven administration of justice,  with some judges tossing out cases while others would allow the exact same ones to go forward. The bill leaves this essential fact-finding function to the jury, where it belongs.

Vagueness and ambiguity have no place in the law. It creates problems as courts get swamped with motions and appeals that they are ill-prepared to deal with if a legislature hasn’t done a good job of establishing definitions.

The bill would bring some fundamental fairness to New York’s No-Fault law, seeing to it that all people are treated the same.  And that can only be a good thing if you happen to be the person that was injured.

You can find the Assembly version of the bill with its sponsors, here:  Assembly Bill A10739

You should be able to find the Senate version here: Senate Bill S7518


March 24th, 2010

Can Jury Consider All Damages, if Only Some Meet the No-Fault Threshold?

Today’s case solves a quirk in New York’s No-Fault law regarding the “serious injury” threshold that must be met in order to bring a lawsuit. That threshold was established in the ’70s in order to cut back on the number of personal injury cases that resulted from car accidents.

So here’s the question: If the threshold is met under one category of injury, can other categories of injuries be considered by the jury? For example, if the jury finds the threshold has been met with a fracture of the finger (#4 below) but that the back injuries didn’t qualify as a “Significant limitation of use of a body function or system” (# 8 below), can the back injuries be considered by the jury in assessing damages?

These are the categories that the legislature says define “serious injury” under New York’s miserable No-Fault law:

  1. A personal injury that results in death;
  2. Dismemberment;
  3. A significant disfigurement;
  4. A fracture;
  5. The loss of a fetus;
  6. Permanent loss of use of a body organ, member, function or system;
  7. Permanent consequential limitation of use of a body organ or member;
  8. Significant limitation of use of a body function or system; or
  9. 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”.

This issue arose in Rubin v. SMS Taxi, decided yesterday by the Appellate Division (First Department). Defendant had moved for summary judgment claiming that the plaintiff didn’t meet the No-Fault threshold. The lower court granted the motion for all injuries except for the significant disfigurement that the plaintiff suffered. The court then denied plaintiff’s motion for clarification or reconsideration,wherein he wanted to know if, having met threshold in one category, he could proceed to argue all the injuries.

And the First Department reversed with respect to the motion to clarify, and held unambiguously that

“once a jury determines plaintiff has met the threshold for serious injury, the jury may award damages for all of plaintiff’s injuries causally related to the accident, even those not meeting the serious injury threshold.”

In its decision, the court also cited to a Second Department case (Marte v. New York City Transit Auth.) as support.

Without question, it’s an important principle to remember for all practitioners: You only need to prove one of the categories falls within the serious injury threshold to then proceed for an assessment for all of the injuries that were causally related to the accident.


March 21st, 2010

Health Care Bill: Benefits For Personal Injury Victims

The health care reform bill should be a big benefit to personal injury victims. Traditionally, those people most put at risk after accidents were the middle class uninsured. Poor people have Medicaid to fall back on and others have private insurance. Now there will be an additional 32 million with coverage.

While in theory auto accident victims have had No-Fault insurance in New York to protect them, and the bill shouldn’t matter, that is theoretical only. In New York, insurers have long enjoyed a reputation for cutting off benefits to victims after sham medical exams by “independent” examiners hired by the insurance companies. These doctors are anything but independent. Victims are often told that they aren’t injured, despite the pain they are in and their restrictions of motion. Or that the pains that they have are “preexisting” despite the fact that they felt fine before the accident.

Medical malpractice victims, of course, don’t even have the No-Fault.

So with more of the victims covered by their own insurance, we are likely to see these positive effects, the first of which is obvious and the second two more subtle, but most definitely important:

First: People that were previously left to the mercies of existing no-fault laws and the spotty medical care that they provide can continue to get care and, to the extent treatment benefits the quality of life, be healthier.

Second: If an individual believes others are at fault and starts a lawsuit, the injuries that they suffered will be documented by treating medical practitioners. Currently, if a patient stops treating, that is an issue that defense attorneys love to harp on in front of juries. Without having their doctors treating them, plaintiffs must tell juries that the reason they aren’t treating is that they can’t afford it. And with that, their credibility can be attacked, which is far easier than attacking the credibility of multiple physicians, because the plaintiff is an “interested party” in the outcome of the suit.

Third: The existence of continuing health care hamstrings liability insurers that oft times will rush in to accident victims with low ball offers before they have consulted with attorneys. When there is no other insurance or No-Fault gets cut off, and a victim that may not be able to work, a $5,000 offer may be desperately needed money. With the injured already knowing they are covered, they won’t be as vulnerable, and will be in a better position to sit back and objectively evaluate their situation.

So, all in all, this is a good situation for those who have been injured, beyond the most obvious point of simply being able to obtain health care.


March 5th, 2010

Can a sworn medical opinion that relies on unsworn MRI reports constitute competent evidence? (Is that kosher?)

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.