December 22, 2011

PN Partner Joseph D. Nohavicka published in today's New York Law Journal

Serious Injury' Threshold Prism Polished by Court of Appeals

The case Perl v. Meher,1 decided by the Court of Appeals on Nov. 22, 2011, is a trilogy of automobile accident personal injury cases out of the First and Second Departments addressing the vexing application of the serious injury threshold under the New York State Insurance Law in a litigation realm replete with fraudulent and frivolous claims.

The Appellate Division in each case rejected allegations of serious injury as a matter of law. The Court of Appeals in Perl reversed two of these decisions: the lead case, Perl v. Meher2 (on a summary judgment motion), and Adler v. Bayer3 (on a CPLR 4401 motion for JMOL), both out of the Second Department; and affirmed the third case: Travis v. Batchi4 (summary judgment), from the First Department. The plaintiffs in all three cases relied on the two "limitation of use" categories of the statutory definition—categories that in substance require some significant, permanent impairment.5

Notwithstanding the reinstatement of two personal injury claims, Judge Robert S. Smith spearheads his opinion in Perl v. Meher with a quotation from Pommells v. Perez, 4 N.Y.3d 566, 571 (2005), where then Chief Judge Judith Kaye described the working of the no-fault law by saying: "Abuse…abounds." Judge Smith noted further that "[i]n 2010, no-fault accounted for 53% of all fraud reports received by the Insurance Department (Annual Report to the Governor and the Legislature of the State of New York on the Operations of the Insurance Frauds Prevention Act at 23).

The Perl decision, however, while acknowledging that "'[s]erious injury' claims are still a source of significant abuse, and it is still true, as it was in 2005, that many courts, including ours, approach claims that soft-tissue injuries are 'serious' with a 'well-deserved skepticism,'" admonishes that a "case should not be lost because the doctor who cared for the patient initially was primarily, or only, concerned with treating the injuries."

'Perl' and 'Adler'

In the Perl and Adler cases, though unrelated, the plaintiffs in each case relied on the testimony of the same expert, Dr. Leonard Bleicher. Both plaintiffs testified that their ability to function had been significantly limited since their accidents. Joseph Perl, 82 when the accident occurred, testified that he could no longer garden, carry packages while shopping, or have marital relations. David Adler, a school teacher, testified that he could not move around easily, could not read for a long time and could not pick up his children.

In each case, Dr. Bleicher testified that he examined the injured plaintiff shortly after the accident; performed a number of clinical tests that indicated some abnormality; observed that the patient had difficulty in moving and diminished strength; and that the patient's range of motion was impaired. However, at his initial examination of Perl and Adler, Dr. Bleicher did not quantify the range of motion he observed, except to say that Perl's was "less than 60 percent of normal in the cervical and lumbar spine."

But Dr. Bleicher re-examined the patient several years later and used medical instruments to make specific, numerical range of motion measurements. In Perl andAdler, the defendants argued that Dr. Bleicher's quantitative findings were made too long after Perl's and Adler's accidents.

The Second Department held that Dr. Bleicher's affirmation (and testimony) was insufficient, standing alone, to meet the applicable legal standards, as he failed to specify the percentage of the restrictions in motion or to set forth the underlying clinical tests supporting his stated observations. As the dissent observed, the majority noted that: Dr. Leonard Bleicher examined the injured plaintiff on May 2, 2005, shortly after the accident, as Dr. Bleicher was his treating physician. The affirmation of Dr. Bleicher, submitted in opposition to the defendants' motion for summary judgment, the majority continued, failed to identify the range of motion tests utilized by him, the numerical results of those tests, or the norms against which results are measured. Therefore, the affirmation failed to meet the requirements set forth in this court's sound and well-established precedents.

Perl, 74 AD3d 930 (dissent).

The Appellate Division majority then commented on the position espoused by their dissenting colleagues that Dr. Bleicher's arguably adequate findings from the examination of the injured plaintiff on June 25, 2007, some two years after the accident, quantifying restrictions compared to norms and based upon objective tests, can, in effect, be stretched to remedy the multiple deficiencies of the 2005 findings which were made only days after the accident.

Rejecting that position, the majority stated that "while a physician's description of 'norms' may be capable of transfer from one examination to another by that physician, the same cannot be said for the quantification of an examinee's restricted motion and of the objective tests utilized to measure restrictions, since such information may differ from one examination to the next."

The majority then concluded that "Dr. Bleicher's failure to identify, inter alia, the objective tests utilized by him during his 2005 examination of the injured plaintiff deprives the plaintiffs of admissible qualitative assessmentopinion."

The dissenting opinion, which was ultimately adopted by the Court of Appeals, stated that in his affirmation, Dr. Bleicher noted that when he examined the injured plaintiff on May 2, 2005, six days after the subject accident, and as a prelude to treatment rather than litigation, "[t]he patient's range of motion was less than 60% of normal in the cervical and lumbar spine." Additionally, Dr. Bleicher reported finding a "left and right knee extension decrease" during that examination. Based on his findings and the fact that the injured plaintiff had neither suffered any similar symptoms before the accident nor had any prior injuries or medical conditions which would result in such findings, Dr. Bleicher concluded that his findings on May 2, 2005, were related to the subject accident.

Responding to the majority, the dissent wrote the following:
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.

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" (Dufel v. Green, 84 NY2d at 798; see Licari v. Elliott, 57 NY2d 230, 234-235 [1982]). On the other hand, years after the accident, and in consultation with defense counsel, the defendants' doctors see an injured plaintiff solely for the litigation purpose of dismissal of that plaintiff's claim. This places an injured plaintiff and his or her treating physician at a severe disadvantage in opposing a defendant's summary judgment motion.

The Court of Appeals explicitly rejected the Second Department's purported rule that contemporaneous quantitative measurements are a prerequisite to recovery under the no-fault law. The Court stated as follows: 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.

The rule, simply stated, is that a treating health care provider cannot doom a claim for serious injury if their findings during the initial visit are not recorded in a manner consistent with the evidentiary requirements of an action brought under Insurance Law §5102(d).6

Quantitative and Qualitative

What is the difference between a quantitative and qualitative medical assessment? A quantitative assessment ascribes a specific percentage, for example, to the loss of range of motion with the use of medical measurement equipment. Qualitative data are used to describe certain types of information. A qualitative medical assessment recites the quality of the nature of physiological deficits.

It is easiest to explain that through an example: While conducting a physical examination, the treating doctor observed that plaintiff had paraspinous muscle spasms in the lumbosacral area and a decreased range of motion in his lumbar spine. He testified to a reasonable degree of medical certainty that plaintiff's disc injury was caused by the motor vehicle accident and that plaintiff's injuries are permanent and result in restriction of use and activity of the injured areas and permanent limitation of his spine and peripheral nervous system. In addition, the doctor related this assessment to plaintiff's complaints of difficulty in sitting, standing and walking for extended periods of time and plaintiff's inability to lift heavy objects at work by concluding that these limitations are a natural and expected medical consequence of his injuries.

While the doctor's testimony does not ascribe a specific percentage to the loss of range of motion in plaintiff's spine, and therefore, is not quantitative, he specifically describes the quality of distinctions of plaintiff's limitations based on the normal function, purpose and use of the body part. The doctor further attributes the limitations in plaintiff's physical activities to the nature of the injuries sustained by opining that plaintiff's difficulty in sitting, standing or walking for any extended period of time and his inability to lift heavy boxes at work are a natural and expected medical consequence of his injuries. That is a qualitative medical assessment.

It is important to keep in mind that subjective complaints alone are not sufficient to support a claim of serious injury; there must be "objective proof."7 An expert's qualitative assessment of a plaintiff's condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system. When supported by objective evidence, an expert's qualitative assessment of the seriousness of a plaintiff's injuries can be tested during cross-examination, challenged by another expert and weighed by the trier of fact. Id.

Conversely, a defendant fails to meet his initial burden when he relies upon an examining physician's report that identifies limitations or restrictions in a part of the body where the plaintiff claims to have sustained a consequential or significant injury, but which does not sufficiently quantify or qualify the resulting limitations so as to establish that they are permanent or significant.

For instance, courts have found a defendant's medical expert's report setting forth numerical ranges of motion of a plaintiff's cervical and/or lumbar spine deficient where it fails to compare those findings to the normal range of motion.8 Failure to provide a comparison to the normal range of motion requires speculation concerning the significance of the numerical results.9

A medical expert's report describing a decrease of ranges of motion of a plaintiff's cervical and/or lumbar spine as "mild" or "insignificant" are similarly deficient where no quantitative percentage or qualitative assessment of the degree of restriction of the range of motion is provided.10 Absent such comparative qualification, courts cannot assess whether the described decrease of movements of the cervical and lumbar spine are insignificant in comparison to the normal range of motion expected in a healthy person of the same age, weight and height. 11

Remarkably, after Judge Smith's powerful opening admonishment to the lower courts to keep the vigil against frivolous and suspect claims, the Court held plaintiffs' evidence of serious injury in both Perl and Adler to be legally sufficient, even though "both cases have troubling features." Judge Smith conceded, though, that "[t]he issue presented by this evidence, of course, is one of credibility, which is not for this Court to decide." However, the subtext of the decision is crystal clear: The threshold prism that is used to analyze claims of serious injury has been polished and is to be used by the lower-tier fact-finding courts.

Joseph D. Nohavicka is a partner at Pardalis & Nohavicka, in Astoria.


1. 2011 NY Slip Op 08452 (2011).

2. Perl v. Meher, 74 A.D.3d 930 (2d Dept. 2010).

3. Adler v. Bayer, 77 A.D.3d 692 (2d Dept. 2010).

4. Travis v. Batchi, 75 A.D.3d 411 (1st Dept. 2010).

5. Section 5102(d) defines a serious injury as one that falls within one or more than one of the nine delineated categories:
(i) Death;
(ii) Dismemberment;
(iii) Significant disfigurement;
(iv) Fracture;
(v) Loss of a fetus;
(vi) Permanent loss of use of a body organ, member, function or system;
(vii) Permanent consequential limitation of use of a body organ or member;
(viii) Significant limitation of use of a body function or system;
(ix) A medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing all of the material acts which constitute such person's usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment.

6. Id.

7. Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345 (2002).

8. See e.g. Spektor v. Dichy, 34 A.D.3d 557, 824 N.Y.S.2d 403 (2d Dept. 2006).

9. Cf. Vasquez v. Reluzco, 28 A.D.3d 365, 814 N.Y.S.2d 117 (1st Dept. 2006).

10. Yashayev v. Rodriguez, 28 A.D.3d 651, 812 N.Y.S.2d 367 (2d Dept. 2006).

11. Milazzo v. Gesner, 33 A.D.3d 317, 822 N.Y.S.2d 49 (1st Dept. 2006).

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