A 3-2 decision last week in the Appellate Division (Second Department) has set the stage for a return of New York’s problematic No-Fault law to the Court of Appeals, New York’s highest Court. The  issue surrounds judicial determinations without a jury of the definition of the “serious injury” threshold that needs to be met to bring a car accident lawsuit.

The issue, devolving from our poorly written statute, pits the opinions of actual treating physicians against those doctors that were hired strictly for litigation purposes. It has resulted, as I’ve written before, in a jurisprudence that demands doctors keep their medical notes for lawyers and courts instead of the way they were taught in medical school and training. It favors paid medical-legal experts over treating physicians.

In Perl v. Meher the defendant moved for summary judgment at the trial level, claiming that there was no serious injury sufficient to meet threshold. The defendant based the motion on a defense medical exam conducted years after the accident had occurred. The defendants doctor, hired specifically for the purpose of litigation,  concluded that any restrictions in  the plaintiff  were self-imposed and that there were no objective orthopedic findings which would indicate any disability, impairment, or limitation resulting from the accident.

Plaintiff, by contrast,  responded with the affidavit of the plaintiff’s own treating physician, who he had first seen within six days of the accident.  He concluded that the injured plaintiff suffered from numerically and objectively determined restrictions of range of motion of both knees, cervical and lumbar spine.  He further concluded that  the patient’s range of motion was less than 60% of normal in the cervical and lumbar spine and that he had left and right knee extension decrease during that examination. These were injuries that the patient never had before.

And when he did another exam two years later, he conducted cervical/thoracic, lumbosacral spine, and knee joint range-of-motion studies which revealed significant limitations and deficiencies. In his affirmation, he detailed the results of the range-of-motion tests and the norms against which he measured those results in arriving at his conclusions.

Defendant’s motion was, not surprisingly, denied. After all, this has two different doctors saying different things and that means that there is an issue of fact for a jury to determine, right?

But the appellate court reversed the lower one, putting more stock in the defense exam that was done for litigation purposes then the exam of the treating physician. Why?  Because the court didn’t like the way the doctor kept his medical notes.

It seems that the treating physician hadn’t read the high court’s decision in Toure v. Avis in which the court demanded that, when fighting a summary judgment motion based on the No-Fault threshold, the doctor detail an objective baiss for his findings  and compare the plaintiff’s limitations to the normal function, purpose and use of the affected body organ, member, function or system.

And so, because the plaintiff’s treating doctor who saw the plaintiff  just days after the accident wasn’t well-versed in law, his patient’s case was thrown out of court without the opportunity to even present it to a jury.

Justice Leonard B. Austin, writing for the dissent, pointed out that the “standard of medical proof” the majority was demanding  “can be found nowhere in Insurance Law § 5102(d),” which contains the No-Fault language. In other words, the court was legislating from the bench, and doing so in a fashion that was also taking a factual issue away from the jury.

The crux of the case comes down to who a patient sees in their moments of distress right after an accident; a doctor that they want for treatment or one that is well-versed in litigation? Justice Austin wrote:

The majority assumes that days after an accident, an injured plaintiff presents to his or her doctor for the purpose of litigation rather than treatment. Research reflects no case law which mandates that a treating physician record his or her findings of that initial examination in a particular manner. Rather, so long as the affirmation of the treating physician indicates that his or her contemporaneous testing revealed a measurable limitation of the injured plaintiff’s range of motion, the threshold set forth in Insurance Law § 5102(d) should be deemed to be satisfied.

Framing the issue for the Court of Appeals, Justice Austin noted:

To hold a treating physician to a litigation standard of marking his or her chart at such an early stage effectively turns away plaintiffs with arguably colorable claims who seek treatment with a physician who is more focused on providing care than preparing for litigation. This unfortunate result does little, if anything, to promote the legislative purpose of Insurance Law § 5102(d) which was to “weed out frivolous claims.”

An attempt to clarify our poorly written legislation is now before the legislature. (See:New York’s No-Fault Law To Finally Be Updated?) And that update can come none too soon, as the Court of Appeals may now be hearing the case once again, and dealing with its poorly decided Toure decision that set this mess up, with treating physicians facing off against medical-legal experts hired for litigation purposes.

In March 2009, I write a post entitled New York’s No-Fault Mess (Do Our Judges Want Doctors To Go To Law School?) that pre-saged this dissent and this court battle. I noted in my lede that:

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.

And on this exact issue — noting range of motions in records contemporaneous with an accident — I wrote:

The court demands that the range of motion limitations be contemporaneous to the accident. That means the patients must go to the doctors that are willing to write reports, and write them the way the courts want them to, as opposed to going to doctors that they actually like. Many people, especially the poor, already have a hard time finding a doctor, but now they must be savvy enough to find a court-friendly one.

This decision, and this battle, and this unholy mess of jurisprudence, needs a desperate makeover. As former Justice Paul Victor once noted in a decision, the legislation has resulted in a never-ending battles over all the motion practice that comes from the No-Fault law that is swamping the courts, and doing so with conflicting opinions.

Updated: 11/22/11: The Court of Appeals took the case and rendered a decision:  NY Top Court Reshapes Auto Accident Law (Revamps The Way Courts Determine “Serious Injury”)