Court of Appeals on Serious Injury for Car, Truck, Bus Wrecks

Today’s blog is primarily for attorneys.  I mention this because I understand the blogs go automatically to our office Facebook page. Many attorneys from out of and within New York State call on us to deal with insurance companies, handle their clients injury case, and often seek advice from us on New York personal injury questions. This will answer some.

This week, the New York Court of Appeals issued a trilogy of opinions which will become the lead cases in defining a serious injury for motor vehicle crashes. A person must have an injury defined as serious by insurance law section 5102 (d) to recover against a driver causing a crash.

The cases are Perl v. Meher, Adler v. Bayer and Moonan v. Batchi, all decided November 22, 2011. They address three categories of serious injury frequently disputed by insurance companies:

1.) Permanent consequential limitation of use of a body organ or member;

2.) Significant limitation of use of a body function or system; and

3.) 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 persons usual and customary daily activities for not less than 90 days during the 180 days following the occurrence of the injury.

All three cases turn on the sufficiency of plaintiff’s proof. Over time many Appellate Division cases suggested treating doctors records must provide specific numerical measurements of loss of range of motion and restrictions at the time of the accident, suggesting if not, the doctors were merely recording  the patient’s subjective complaints.

In Perl and Adler the treating physician performed a number of clinical tests but did not fully describe them in the record. In both cases, after several years the Dr. used instruments to make specific numerical range of motion measurements.

The treating physician, Dr.Bleicher testified that on initial examination  if the patient has recent acute injuries, it is better to go with the visual parameters because measuring range of motion of the joint of the acutely injured is not reliable and doesn’t provide correct numbers.

The court found the contemporanious doctors report is  proof of causation and where causation is proved, it is not unreasonable to measure severity of injury at a later time.

The Court of Appeals reversed the appellate division and held a rule requiring contemporaneous  numerical measurements was not needed. The Court recognized  such a requirement could have a perverse result, and  plaintiffs should not be penalized for failing to seek out, immediately after being injured, a Dr. who knows how to create the right kind of record litigation.

The Court  rightly recognized a case should not be lost because the doctor who cared for a  patient initially was primarily, or only, concerned with the treating the injuries.  It expressly rejected a rule which would require contemporaneous quantitative measurements as a prerequisite to recovery.

The 82-year-old plaintiff in Perl had his case dismissed based upon the Defense Radiologist’s opinion that the  MRI showed  Mr. Pearl’s injuries were degenerative and longstanding, pre-existing the accident. Mr. Pearl submitted an affidavit of a radiologist stating while some findings from the MRI were consistent with degenerative disease, a single MRI could not rule out the possibility that the plaintiff’s soft tissue findings were the result of a specific trauma. That question could best be judged by the patient’s treating physician in conjunction with exam, history and any previous tests.

The treating physician’s opinion was that since Perl did not have any similar symptoms before the accident the symptoms were causally related to the accident. Holding: the case should not have been dismissed, it was for a jury to decide because there was a question of fact.

In Travis the evidence submitted by the plaintiff was simply lacking. The treating physician submitted a report concluding Ms. Travis having mild permanent partial disability but did not describe the disability.

Takeaways: don’t let a defendant use Appellate Division cases which have been reversed by the above trilogy, be sure to show contemporaneous causation, the more specifics you can show, the better, for permanency see that the physician articulates specific findings. Hopefully you can help your clients secure fair compensation for their losses.

Have a great Thanksgiving – and think of others

I have great memories of riding in my brother-in-law, Phil Occhino’s tow truck to different jobs. car crashes, truck and tractor trailer crashes, overturns, and vehicles off the road. It amazed me  how he could untwist and upright the wrecks with cables, a winch and booms. A few sentence newspaper article made me think of Phil.

A tow truck driver helping with a vehicle was struck and killed by a tractor trailer 11 p.m. Sunday on the eastbound Thruway,I-90 near the Syracuse, New York Interstate 481, exit in Manlius. The big rig operator was charged with switching lanes unsafely; the rig rolled over several times after the crash.

Many of us will be traveling for the Thanksgiving holiday.  whether it’s law enforcement, construction workers’ disabled vehicles, pedestrians or bicyclists – slow down and give plenty of room.  And have a great Thanksgiving.

Heated Jackets. Too good to be true?

We work and live in Buffalo, NY.  We understand the need for good winter gear.   While a heated jacket sounds like a dream come true to many of us living in the north, such a product may actually be but a dream.

The brand “Columbia” is recalling its Omni-Heat Rechargeable Battery Packs which power heating systems in some of its jackets.  The batteries have a defect which can lead to overheating and poses a potential fire hazard.

If you own these battery packs remove them from your jackets and contact “Columbia” for replacement batteries. 

Are hybrids safer?

According to a new study, hybrids are safer than similar size vehicles. The Highway Loss Data Institute  should be reported in national news media soon. As an attorney who represents people harmed by truck accidents, car crashes or other catastrophic life events, I am acutely aware of injuries which may differ based on the vehicle, or even the position of someone within the vehicle.

The study suggests hybrids shield their occupants from injuries in crashes with the odds of being injured being  25 percent lower for people in hybrids compared to nonhybrid twins.

“Weight is a big factor,” according to Matt Moore, author of the report. Hybrids on about 10 percent heavier than their counterparts.  “This extra mass gives them an advantage in crashes that their conventional twins don’t have.” 

You may thought about a hybrid to help the environment, you may also be helping yourself and your passengers in the event of a crash.

Colgan Air hides e-mails

Many have commented on Colgan Air’s failure to provide key documents in the wrongful death lawsuits against the airline for the negligence, lack of training of its pilots, obvious errors and management of its operations.

What is not making the news is that major corporations and their insurance companies all too often hide key evidence and get away with it. Many courts, particularly state courts are reluctant to sanction these tactics which are improper and obstruct the civil justice process. The good news is that the Colgan withholding of emails is getting the attention of newspaper editorial boards, politicians and others.

We must be diligent in seeing that civil justice processes is fair to both sides. This can only be done if all of the evidence is available to the parties, the court and the public.

More rock climbing gear being recalled

The Joss Rock Climbing Cam, sold by Sierra Trading Post and manufactured in Italy is being recalled  due to the risk of the devise failing unexpectedly.  If you own any of these, do NOT use them.  Return them to Sierra Trading Post.  Cams are devises that rock climbers place into cracks of rocks to support their weight.  But most “rocks” being climbed are mountains, usually with a close to sheer face, making the use of cams necessary.