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.
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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