Opinion

Alvarez v. United States

Court
District Court, E.D. New York
Filed
Apr 4, 2024
Cited by
0 cases
Authority
More cited than 26.8%

The opinion

UNITED STATES DISTRICT COURT 3:40 pm, Apr 0  4, 2024

EASTERN DISTRICT OF NEW YORK

------------------------------------------------------------------X U.S. DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

OSMAN ALVAREZ, LONG ISLAND OFFICE

MEMORANDUM OF

Plaintiff, DECISION AND ORDER

CV 21-4766 (GRB)(ARL)

-against-

THE UNITED STATES OF AMERICA,

Defendant.

------------------------------------------------------------------X

GARY R. BROWN, United States District Judge:

This action, involving a low speed, low impact car collision, was brought under the

Federal Torts Claims Act and, consistent with the dictates of the statutory scheme, tried before

this Court without a jury. As plaintiff has failed to establish that he suffered a compensable

injury under applicable New York No-Fault Insurance provisions, judgment must be entered in

favor of the United States. Moreover, the evidence, which this Court has considered with great

care, revealed potentially dubious practices by Dr. Ricky Madhok, a practicing neurosurgeon,

that this Court must, in all good conscious, bring to the attention of the relevant state licensing

authorities for further investigation.

Procedural History

On August 24, 2021, after properly exhausting his administrative remedies, plaintiff

commenced this action via the filing of a complaint. Docket Entry (“DE”) 1, 5. The

Government answered, raising several affirmative defenses, including the assertion that the

accident “was not the cause in fact or proximate cause of any injury or damage,” and that

plaintiff had not sustained sufficient economic loss and/or serious injury under the New York

Insurance Law § 5101, et seq. See DE 9. Counsel exchanged substantial fact and expert

discovery, conducted depositions and physical examinations and prepared the case for trial.

Trial commenced on November 28, 2023. DE 22. Plaintiff presented his case over three days;

defendant later rested without presenting a case. DE 22-25, 31-33. Counsel both submitted

Proposed Findings of Fact and Conclusions of Law, supporting briefs and responses thereto. DE

29, 30, 34.

This opinion follows.

Facts

The following facts are drawn from the testimony at trial and the exhibits admitted.

Plaintiff Osman Alvarez, then 40 years old, was involved in a motor vehicle accident on

November 4, 2019, in the early evening hours. At the time of the accident, Alvarez was stopped

in an intersection, wearing his seat belt. A U.S. postal truck pulled up behind him but failed to

stop in time, leading to a rear-end collision of sufficiently modest impact that the airbags did not

deploy. The vehicle sustained several thousand dollars in damage. Alvarez, a Honduran citizen

who does not speak English, did not open his window to speak to the postal driver, waving him

away.

Plaintiff’s sworn accounts of the accident and its purported consequences suffered from

troubling inconsistencies. The clearest of these concerns the force of the impact. On direct

examination, using reference points in the courtroom, Alvarez testified that the impact “pushed

me forward” a distance that the Court observed, and the parties agreed, amounted to about ten

feet. Tr.1 33-34. He alternatively described this distance as essentially the width of an

1 “Tr.” is used to indicate the citation to the transcript of the trial held between November 28-30,

2023, and can be found at DE 31-33.

intersection. Tr. 34 (“I was going to make a left turn and after the impact, I was pushed forward

almost before the next block.”). On cross-examination, plaintiff was confronted with his

deposition testimony, during which he indicated that his vehicle had been pushed only one foot,

which plaintiff claimed not to remember. Tr. 78-79. He also could not recall during cross-

examination the testimony he gave on direct examination. Tr. 78. Such inconsistencies2 raise

fundamental doubts about plaintiff’s credibility about the events in question.

Plaintiff sustained no head trauma from the accident and remained ambulatory, but was

brought to South Side Hospital where, complaining only of neck pain, plaintiff was prescribed a

muscle relaxant and Tylenol. Tr. 41-42. Following this, based on referrals from his lawyer,

plaintiff visited several no-fault medical providers. Tr. 43. The first was a chiropractor named

Dr. Christopher Whyte, seen one week after the accident. Tr. 43. By this time, plaintiff’s

complaints also encompassed bilateral shoulder and knee pain. Tr. 46-47. These complaints,

made through a translator, included sensitivities variously described as “sharp, aching, spastic,

throbbing, and cramping.” Tr. 48. Dr. Whyte’s records, presumably based on his discussion

with plaintiff, state that “immediately following the accident, the patient’s main complaints

included . . . pain in the low back,” an assertion not supported by the contemporaneous records.

Ex. A at 43. Similarly, during another visit with Dr. Saweh Harhash, a pain and sports medicine

doctor, seen in June 2021, plaintiff “reported he did sustain direct head trauma” from the

accident, a claim also belied by the contemporaneous medical records. Ex. C at 6. These

2 The record is replete with contradictions and failure of recall by plaintiff—of varying degrees

of relevance—which reinforce doubts about plaintiff’s credibility. See, e.g., Tr. 86-87

(inconsistent reporting about resumption of work as a singer and reasons therefore); Tr. 95

(whether plaintiff saw the truck before the accident); 98 (plaintiff claiming injury to hands); Tr.

99-100 (inconsistencies regarding prior work doing heavy construction); Tr. 115 (plaintiff’s

failure to work as a DJ attributable to COVID pandemic, rather than disability).

findings raise questions about the reliability of plaintiff’s subjective complaints of pain and

disability, upon which his case largely rests. For reasons virtually unsupported by this record,

plaintiff underwent a spinal fusion in his cervical spine at C4-5.

Ultimately, though, the case turns on whether plaintiff provided sufficient proof that these

alleged injuries—to the extent they exist—were caused by the accident. Other than plaintiff’s

inconsistent and problematic testimony, the only evidence of causation offered was the expert

testimony of Dr. Ricky Madhok, a neurosurgeon, then operating under the auspices of Neuro-

Axis Neurological Associates, P.C., an entity with which he had some affiliation.3

Dr. Madhok had an initial consultation with plaintiff on March 13, 2020, four months

after the accident occurred. Tr. 53, 212, 216; Ex. G at 2-5. According to Madhok’s records,

plaintiff’s chief complaints were “lumbar pain and rught [sic] shoulder” with a secondary

complaint of neck pain. Exhibit G at 2; Tr. 217. Amazingly, without testing for instability of

plaintiff’s neck or performing any range of motion tests on plaintiff’s neck, back, shoulder or any

other body part, Tr. 221–22, Madhok diagnosed plaintiff with neck pain with associated cervical

spondylolisthesis and recommended surgical stabilization of the C4-5 region to prevent shifting.

Tr. 229–30. He advised that spinal fusion surgery on plaintiff at C4-5 was urgently needed “to

prevent further progression” of the listhesis and to “stabiliz[e]” because of the “risk[] that

subsequent listhesis or progression of that listhesis” could “result[] in potentially permanent and

devastating neurologic injury.” Tr. 152–53. He explained that the condition, if left untreated,

3 The exact relationship between Dr. Madhok and Neuro-Axis was the subject of equivocal

testimony. See Tr. 129 (Madhok “previously associated with” and “affiliated” with Neuro-Axis);

Tr. 130 (“went to private practice with Neuroaxis”); Tr. 213 (“I was a partner in the practice”);

Tr. 226 (“We were acquired by NYU”). Interestingly, a recent pending complaint alleges that

Madhok was an employee without any ownership interest in Neuro-Axis, but falsely claimed an

ownership interest. See Johnson v. Madhok, et ano., Nassau County Supreme Court, Index. No.

616653/2023. Of course, these represent unsubstantiated allegations.

could lead to paralysis or death. Tr. 260, 329. The risk of paralysis and death could arise from

further aggravation of the purported listhesis, which could arise from a second accident or

trauma. Tr. 193.

Plaintiff’s position regarding causation was that “Dr. Madhok’s opinion, to a reasonable

degree of medical certainty, was that plaintiff [] suffered a permanent injury to the cervical spine

as a result of the motor vehicle accident.” DE 29 ¶ 62 (citing Tr. 209).4 As discussed further

below, Dr. Madhok’s testimony proved unreliable in several respects.5 Even assuming,

however, that the Court could rely upon Dr. Madhok’s opinion, the bases for this assertion prove

insufficient.

Dr. Madhok offered the following as the sole basis for his opinion:

Patient did not have symptoms prior to the accident. Symptoms began after the

accident. Imaging was concorded with an injury to the spine and clinical symptoms

were concorded. He underwent surgery and his symptoms improved afterwards.

Tr. 209. Notwithstanding this conclusory testimony, cross-examination revealed the limitations

of Dr. Madhok’s causation testimony. Dr. Madhok had no training or expertise in accident

reconstruction and acknowledged being incapable of calculating the accident’s impact upon

4 Another formulation of Dr. Madhok’s causation position suggested that “[plaintiff’s] cervical

injury and lumbar injury were as a result of the accident he sustained.” Tr. 213.

Understandably, plaintiff appears to have abandoned his position regarding injury to the lumbar

portions of his spine, as Dr. Madhok conceded that his review of MRI films taken of plaintiff

identified “only potentially degenerative or age-related conditions in plaintiff’s lumbar spine.”

Tr. 251.

5 Dr. Madhok’s credibility came into question in several areas, including that of his

compensation. The doctor was paid $13,000 for a few hours of testimony because it required

him “to clear [his] schedule for the full day,” and had charged (and been paid) an additional

$13,000 because of a change in the trial schedule. Tr. 133–34. Madhok testified that this

represented “in terms of the typical day, the amount of surgery of the patients we would see in a

day.” Tr. 134. However, when asked by the Court if he, in fact, generated $65,000 in the typical

five-day week, Madhok responded that he “can’t answer that,” but directed the Court to “general

literature” suggesting that “a neurosurgeon typically generates . . . anywhere from 5 to 20 million

as a providing physician.” Tr. 135–36.

plaintiff’s body. Tr. 214–15. He was unaware of the speed at which the vehicles were

travelling, whether the airbags deployed, whether plaintiff’s body came into contact with any

part of the car, how plaintiff was positioned or whether plaintiff sustained bruising or swelling

from the accident. Tr. 214–16. Though he conceded that it was “important to know . . . how [the

injury] occurred to [plaintiff’s] neck,” Tr. 322, Dr. Madhok did not take the time to even ask

plaintiff how he injured himself in the accident. Tr. 217.

The truth is that Dr. Madhok relied almost exclusively upon plaintiff’s subjective reports

and descriptions of pain6 to form the opinion that he was injured in the accident. The only

exception (and the sole objective finding supporting spinal fusion surgery) was a single set of x-

ray films purportedly showing listhesis, which Dr. Madhok claimed to have taken on March 13,

2020, but failed to produce in discovery and, he testified, is no longer in his possession and the

whereabouts of which are unknown. Tr. 166, 325–26. Dr. Madhok’s records are devoid of the

measurement of the degree or grade of this purported finding and, more importantly, there is no

objective evidence linking the listhesis, even assuming it existed, to the accident. Cf. Tr. 362–66

(Dr. Richter explaining grades of listhesis). Moreover, competent evidence of record ties

plaintiff’s subjective complaints to pre-existing injuries or conditions. See, e.g., Tr. 272, 315

6 On cross-examination, Dr. Madhok testified that plaintiff’s subjective complaints of pain

became an objective measure because the doctor had asked plaintiff to rate the pain on a ten-

point scale and “he rated it 9 out of 10.” Tr. 235. To support this rather extraordinary assertion,

Dr. Madhok explained that “the American Medical Association now associates pain as the fifth

vital sign.” Tr. 235. Unfortunately, notwithstanding Madhok’s testimony, (1) the AMA’s

recommendation that pain be deemed a vital sign does not transmute a subjective report into an

objective measure, see Tr. 408 (plaintiff’s second medical expert testifying that pain is

subjective), and (2) the AMA no longer maintains this position and has not for some time. See

Clara Scher, BA et al., Moving Beyond Pain as the Fifth Vital Sign and Patient Satisfaction

Scores to Improve Pain Care in the 21st Century, NATIONAL LIBRARY OF MEDICINE,

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5878703 (last visited Apr. 4, 2024)

[https://perma.cc/5XNS-AFMA] (“[D]elegates at the 2016 American Medical Association

(AMA) meeting voted to stop treating pain as the fifth vital sign . . . .”).

(discussing the presence of osteophytes associated with degenerative changes that take years to

develop); 253–54 (independent findings made ten days after the accident of “acute on chronic”

pain, suggesting plaintiff’s pain existed well before the accident); 248–49 (MRI finding of disc

desiccation defined as “dryness that comes from aging”); 287 (testimony concerning facet

hypertrophy as a pre-existing spinal condition).

In response to questioning by the Court, however, as to the magnitude of the risk of

paralysis or death from subsequent injury, Madhok twice observed that it was a “very good

question,” then acknowledged that there is no “medical literature to document that risk.” Tr.

186. In other words, he simply did not have an answer and “cannot give an exact number.” Tr.

186, 189. Eventually, Madhok testified that risk would be “significantly elevated as opposed to

someone without these findings.” Tr. 193.7 Yet, this unquantifiable risk represented the

principal, if not exclusive, justification for the surgery. Tr. 187 (testifying that pain relief would

be a secondary benefit, but without the unquantifiable risk of paralysis, conservative treatment

would be warranted); cf. Tr. 372, 375 (Dr. Richter testifying about pain following spinal fusion:

“[y]ou hope for it to be better but you don’t count on that”).

Records kept by Madhok and associated providers are laden with deficits and errors. In

one note, plaintiff is described as having suffered from a “neck fracture,” which is plainly

incorrect. Ex. L at 7; Tr. 170–71. Another notation refers to the ENT providing service for

“exposure rheumatology” which Madhok describes as a “typo.” Tr. 171. Notwithstanding the

significant deficiencies in his records, Madhok carefully documented his repeated cautions to

plaintiff concerning the other potential risks from the surgery, which included “neurologic and

7 Importantly, the findings he referred to included observations purportedly made during the

cervical fusion procedure. Tr. 193. However, these post-hoc rationalizations for the surgery

were not objectively demonstrated.

healing risks, risks of bleeding stroke, heart attack, death, pneumonia, infection” and deep vein

thrombosis, the risk of which he set at “up to five percent.” Tr. 188–89. Additionally, he

cautioned plaintiff of a ten to fifteen percent risk of “adjacent level disease,” meaning the spinal

fusion could fail and/or negatively impact the adjacent vertebral spaces. Tr. 190.

Finally, Madhok testified that plaintiff has now suffered a “permanent partial disability”

because he medically fused plaintiff’s joint. Tr. 198 (“[W]e call that a level of permanency due

to the fusion of the joint”). Dr. Richter, a second expert called by plaintiff, lacked sufficient

information to opine as to whether the spinal fusion was necessary or appropriate. Tr. 363–64.

As the trier of fact, this Court harbors substantial doubts as to the credibility of plaintiff and Dr.

Madhok, and, for the reasons that follow, finds their testimony insufficiently reliable to satisfy

plaintiff’s burden of causation.

Discussion

The parties agree that this case is not only governed by the limited waiver of sovereign

immunity contained in the Federal Tort Claims Act but must also satisfy the provisions of New

York’s No-Fault Law. In Pommells v. Perez, 4 N.Y.3d 566, 570–72 (2005), the New York Court

of Appeals reiterated the purposes underlying the No-Fault provisions, highlighting the

difficulties applying its requisites to cases like the one at bar:

In 1973, the Legislature enacted the “Comprehensive Automobile Insurance

Reparations Act” (see L 1973, ch. 13)--commonly known as the No-Fault Law--

with the objective of promoting [] prompt resolution of injury claims, limiting cost

to consumers and alleviating unnecessary burdens on the courts (see Governor’s

Mem approving L 1973, ch. 13, 1973 McKinney’s Session Laws of NY, at 2335).

Every car owner must carry automobile insurance, which will compensate injured

parties for “basic economic loss” occasioned by the use or operation of that vehicle

in New York State, irrespective of fault (Insurance Law § 5102 [a]; § 5103). Only

in the event of “serious injury” as defined in the statute, can a person initiate suit

against the car owner or driver for damages caused by the accident (Insurance Law

§ 5104 [a]).

No-Fault thus provides a compromise: prompt payment for basic economic loss to

injured persons regardless of fault, in exchange for a limitation on litigation to cases

involving serious injury (see Montgomery v Daniels, 38 NY2d 41, 50-51 [1975]).

Abuse nonetheless abounds. From 1992 to 2000, reports of No-Fault fraud rose

more than 1,700% and constituted 75% of all automobile fraud reports received by

the Insurance Department in 2000 (see Matter of Medical Socy. of State of N.Y. v

Serio, 100 NY2d 854 [2003]; see also State Farm Mut. Auto. Ins. Co. v Mallela, 4

NY3d 313 [2005]). There is, similarly, abuse of the No-Fault Law in failing to

separate “serious injury” cases, which may proceed in court, from the mountains of

other auto accident claims, which may not. That “basic economic loss” has

remained capped at $50,000 since 1973 provides incentive to litigate.

In the context of soft-tissue injuries involving complaints of pain that may be

difficult to observe or quantify, deciding what is a “serious injury” can be

particularly vexing. Additionally, whether there has been a “significant” limitation

of use of a body function or system (the threshold statutory subcategory into which

soft-tissue injury claims commonly fall) can itself be a complex, fact-laden

determination. Many courts have approached injuries of this sort with a well-

deserved skepticism. Indeed, failure to grant summary judgment even where the

evidence justifies dismissal, burdens court dockets and impedes the resolution of

legitimate claims. As a hint of the dimension of the situation, in less than three

years, Toure v Avis Rent A Car Sys. (98 NY2d 345 [2002])--addressing similar

issues--already has been cited more than 500 times in published decisions of our

trial and appellate courts (representing only a small portion of the trial court

activity).

As a partial response to these difficulties, courts have carefully examined cases to ensure that a

plaintiff’s injuries constitute serious injury as defined by the statute and have also scrutinized the

proof of causation offered by plaintiffs. Thus, as one state appellate court noted:

To recover damages for noneconomic loss related to personal injury allegedly

sustained in a motor vehicle accident, the plaintiff is required to present

nonconclusory expert evidence sufficient to support a finding not only that the

alleged injury is “serious” within the meaning of Insurance Law § 5102 (d), but

also that the injury was causally related to the accident.

Diaz v. Anasco, 38 A.D.3d 295, 295–96 (1st Dept. 2007). Other cases have reached similar

holdings. See, e.g., Chung v. State, 70 Misc. 3d 775, 786 (N.Y. Ct. Cl. 2020) (“Claimants must

submit objective expert evidence showing that their injuries satisfy the serious injury threshold;

medical opinions based upon a claimant’s subjective complaints alone are not enough.”).

In Pommells, the New York Court of Appeals held that where, as here, “additional contributory

factors interrupt the chain of causation between the accident and claimed injury—such as a . . .

preexisting condition—summary dismissal of the complaint may be appropriate.” 4 N.Y.3d at

572 (emphasis added). Indeed, the New York Court of Appeals found on summary judgment

that a defendant “properly relied on medical records and reports prepared by plaintiff’s treating

physicians to establish that plaintiff did not suffer a serious injury causally related to the

accident” and shifted the burden to plaintiff to come forward with proof on these issues.

Franchini v. Palmieri, 1 N.Y.3d 536, 537 (2003). Notably, plaintiff’s “experts failed to

adequately address plaintiff’s preexisting back condition and other medical problems, and did

not provide any foundation or objective medical basis supporting the conclusions they reached,”

warranting the entry of summary judgment. Id.

Here, after a full trial of the issues, plaintiff has failed to establish that the complained of

injuries were causally related to the accident. Dr. Madhok’s conclusory opinions concerning

causation—which, as discussed, were woefully unsupported and undocumented—were

ultimately “subjective in nature as they were dependent, at least in part, on plaintiff’s complaints

of pain,” and therefore insufficient to establish causation. Toure v. Avis Rent A Car Sys., Inc., 98

N.Y.2d 345, 356 (2002). Plaintiff bore a significant burden given that the record contains

“strong evidence of degenerative changes as a likely cause of [plaintiff’s] symptoms,” requiring

him to “come forward with evidence that the accident was a substantial factor in causing [his]

injuries.” Chung, 70 Misc. 3d at 791 (citing Thompson v. Bronx Merchant Funding Servs., LLC,

166 A.D.3d 542, 544 (1st Dept. 2018) (imposing summary judgment where plaintiff’s experts

“provided conclusory opinions that her claimed injuries in those parts were causally related to

the accident, without adequately addressing the degenerative findings by defendants’ radiologists

and the findings in plaintiff’s own MRI reports, including disc desiccation [and] osteophytes”)).

In sum, then, after trial of this case, plaintiff has failed to meet his burden to establish that

any injuries complained of constituted serious injury causally related to the accident in this case.

As such, judgment must be entered in favor of defendant.

Referral to NYS OPMC Regarding Conduct of Dr. Madhok

This Court cannot fully evaluate the conduct of a medical professional. However, the

evidentiary record of this case—portions of which are detailed in this decision—raises sufficient

concerns about the conduct of Dr. Ricky Madhok, a neurosurgeon, such that further inquiry may

be warranted. Those concerns include the circumstances under which the subject spinal fusion

surgery was performed, the necessity for such surgery, the failure to maintain adequate

radiological and narrative records documenting the need for the subject surgery and the manner

in which consent was obtained in connection therewith. Further, as detailed herein, the Court

found aspects of Dr. Madhok’s testimony wanting, which could bear on his moral fitness and

professional competence.8

The New York State Health Department’s Office of Professional Medical Conduct (NYS

OPMC), together with the State Board for Professional Conduct, is charged with investigating

complaints of negligence, incompetence, and lack of moral fitness lodged against licensed

physicians. See New York State Department of Health, Understanding New York’s Medical

8 Other recent court decisions have questioned Dr. Madhok’s professional activities. For

example, a court found that a dislodged screw “was actually malpositioned by his surgeons,”

including Dr. Madhok, during a laminectomy, providing a defense to a hospital sued for

displacement of that screw. Sottosanti v. St. Francis Hosp., 2023 WL 4421177, at *1-4 (N.Y.

Sup. Ct. June 6, 2023). In another matter, a trial court has twice rebuffed efforts by Madhok to

obtain summary judgment in a case alleging negligent performance of a cervical fusion

procedure, quoting an expert report opining that “the surgery performed by Dr. Madhok on the

plaintiff was in a manner not consistent with accepted standards of medical practice.” McKinnon

v. Madhok, Index No. 600001/2014 (Sup Ct. Nassau County July 6, 2023).

Conduct Program – Physician Discipline, https://www.health.ny.gov/publications/1445/ (last

visited Apr. 4, 2024) [https://perma.cc/QV2N-T6NF]. Via this Opinion, which will be

transmitted to OPMC, this Court specifically requests that Dr. Madhok’s conduct be investigated

by OPMC, and that all further appropriate steps and procedures be implemented by that entity.

OPMC and its investigations may request additional materials from the United States Attorney’s

Office, Civil Division, 610 Federal Plaza, Central Islip, NY 11722-4454, which is hereby

directed to provide reasonable assistance as requested.

Conclusion

Based on the foregoing, the Clerk is directed to:

1. Enter judgment in favor of defendant, closing the case, and

2. Provide a copy of this Order to NYS OPMC at the following address:

New York State Department of Health

Office of Professional Medical Conduct

Riverview Center

150 Broadway, Suite 355

Albany, New York 12204

opmc@health.ny.gov

which shall investigate further as it deems appropriate.

SO ORDERED.

Dated: April 4, 2024

Central Islip, New York

/s/ Gary R. Brown

GARY R. BROWN

United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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