Brown v. Achy

Friedman, J. (dissenting).

Plaintiff walked away from the scene of the subject automobile accident and thereafter traveled by subway and train from the Bronx to Long Island. Ultimately, she went for three years (from September 1998 to September 2001) without seeking medical care for her alleged serious injuries. Nonetheless, plaintiff alleges that she suffered a “serious injury” within the meaning of Insurance Law § 5102 (d). The majority, relying on “objective” evidence supplied only by unsworn and unaffirmed reports that defendants submitted for purposes of refutation, now holds that plaintiff is entitled to a trial on this issue. In my view, because plaintiff has not given us any substantive explanation for her protracted period without treatment, Supreme Court’s order dismissing her action should be affirmed. Accordingly, I respectfully dissent.

On December 25, 1997, plaintiff, who then resided at a rehabilitation center on Long Island, visited her sister in the Bronx. After the visit, while defendant Achy was driving plaintiff to a subway station, a car operated by defendant Reynoso collided with the driver’s side of the Achy vehicle. When the police arrived, plaintiff—who had been sitting in the front passenger’s seat of Achy’s car—declined their offer of ambulance transportation to a hospital, explaining that she wished to comply with her rehabilitation center’s curfew policy. Accordingly, instead of going directly from the scene of the accident to a hospital, plaintiff walked to the subway station, and thereafter made the long trip from the Bronx to Long Island by public transportation.

After arriving at the rehabilitation center, plaintiff went to the emergency room of a hospital in Bay Shore, Long Island, where she was examined, x-rayed, given Motrin and discharged, all during the evening of the day of the accident. Plaintiff alleges that she was bedridden for two weeks after the accident. *36 She resumed full-time work the following month (January 1998).

It appears that the first professional plaintiff consulted about her alleged injuries (after her brief emergency room visit) was her lawyer. According to plaintiffs deposition testimony, it was her lawyer who referred her to Dr. Jacqueline Dimalante, a chiropractor, whom plaintiff first visited 10 days after the accident. Plaintiff visited Dr. Dimalante periodically from January to July of 1998, and then once more the following September, to receive treatment for neck and back pain. During the three years from her last visit to fir. Dimalante in September 1998 until her papers opposing defendants’ summary judgment motion were submitted in September 2001, plaintiff apparently did not receive any treatment for physical complaints allegedly connected to the subject accident. 1

Dr. Dimalante referred plaintiff to Dr. Isaac Sultan, a neurologist, to whom plaintiff made only one visit, on June 11, 1998. In an unsworn, unaffirmed report, Dr. Sultan recommended various forms of follow-up care. Aside from seeing Dr. Dimalante several more times through September 1998, plaintiff did not avail herself of any of the follow-up care Dr. Sultan recommended. Dr. Dimalante also referred plaintiff to Dr. Howard M. Rombom, a psychologist, for treatment of an “adjustment disorder w[ith] mixed anxiety [and] depressed mood” that was alleg *37 edly an outgrowth of the car accident. Between April and June of 1998, plaintiff made 12 visits, of 15 to 20 minutes each, to Dr. Rombom.

An MRI of plaintiffs cervical spine was made in April 1998, apparently also upon Dr. Dimalante’s reference. According to the unsworn and unaffirmed MRI report of Dr. Michael Carlin, dated April 17, 1998, the only abnormality the MRI revealed was “[c]entral disc herniation at C3-C4.” “No other focal disc herniation is seen,” Dr. Carlin reported. The report of another physician based on an examination of the same MRI, that of Dr. Frank M. Hudak, dated September 14, 1999, reached a different conclusion. Dr. Hudak—who affirmed his report—made the following findings:

“Review of actual MRI of the claimant’s cervical spine failed to reveal an acute herniated disc at any level and no herniated disc at the particular C3-4 level as mentioned in the radiology report [of Dr. Carlin].”

In moving for summary judgment in this action, defendants submitted Dr. Hudak’s MRI report, as well as his affirmed report based on an examination of plaintiff conducted in May 1999. Dr. Hudak’s examination report noted that plaintiff’s stated height was 5 feet, 3 inches, and her weight was then 290 pounds. From the examination, Dr. Hudak concluded:

“[Plaintiff] is not disabled as a result of that accident [of December 25, 1997] and requires no further orthopedic care or physical therapy. There are no objective findings at this time to confirm the presence of an acute herniated disc in the area of the cervical spine related to the accident of 12/25/ 97.”

Among other things, Dr. Hudak took range of motion measurements for both the cervical and lumbar spine. Dr. Hudak noted that “[e]xamination of both upper extremities reveals full range of motion of shoulders, elbows, wrist, and hands with no pain noted.” He further noted that, with regard to her lower extremities, plaintiff had “bilaterally negative straight-leg raising tests.” While acknowledging that Dr. Sultan’s unaffirmed 1998 report referred to “electrophysical evidence of acute left sided L5-S1 radiculopathy,” Dr. Hudak noted that plaintiff “had no complaints of such a condition” at the time he examined her.

Defendants also submitted the affirmed report of Dr. Jay A. Rosenblum, dated March 1, 2001, which was based on a *38 neurological examination of plaintiff Dr. Rosenblum conducted on that date. After conducting a variety of tests, Dr. Rosenblum concluded that there “is no neurological sequela from the trauma of 12-25-97.” Among other things, Dr. Rosenblum noted that “[a] seated straight leg test [of plaintiff] was negative.”

This Court has held that, under Toure v Avis Rent A Car Sys. ( 98 NY2d 345 [2002]), summary judgment should be granted on the issue of “serious injury” within the meaning of Insurance Law § 5102 (d) where the plaintiff fails to proffer a sufficient explanation for the passage of a lengthy period of time during which he or she was not treated for the alleged injuries attributed to the car accident (see Pommells v Perez, 4 AD3d 101, 101 [2004] [unexplained gap in treatment of nearly four years rendered speculative any conclusion as to causation of plaintiffs alleged injuries]; Shinn v Catanzaro, 1 AD3d 195, 198-199 [2003] [no triable issue as to serious injury existed where, inter alia, 4V2-year lapse in treatment was unexplained]; Melendez v Feinberg, 306 AD2d 98, 99 [2003], lv denied 1 NY3d 508 [2004] [no triable issue where lack of treatment from January 1998 to May 2001 was unexplained]; Vaughan v Baez, 305 AD2d 101, 101-102 [2003] [no triable issue where lack of treatment from late 1999 to May 2001 was unexplained]; cf. Toure, 98 NY2d at 355 [extended period during which plaintiff did not receive treatment was sufficiently explained by physician’s testimony that plaintiff would derive no benefit from continued medical treatment]). Significantly, the three-year period without treatment in this case is approximately twice as long as the period without treatment in Vaughan v Baez (not cited by the majority). To the extent (if any) plaintiff’s medical evidence might otherwise be deemed to have raised a triable issue as to the existence of a statutory “serious injury,” I believe that such evidence is negated, as a matter of law, by plaintiffs unexplained failure to obtain any treatment for her alleged injuries for a period of about three years prior to the submission of her opposition to the summary judgment motion.

I cannot agree with the majority’s view that plaintiff has proffered a sufficient explanation for the lengthy period during which she received no treatment. Dr. Hausknecht and Dr. Dimalante opined only that plaintiff had reached the point of “maximal medical improvement.” This altogether vague and conclusory assertion, without any substantive elaboration, simply does not explain the gap in treatment. Moreover, neither physician stated that plaintiff could not derive any benefit from *39 further treatment, which was the explanation found sufficient in Toure 2 1 disagree with the majority’s view that the “maximal medical improvement” statements made here are “similar for all practical purposes” to the certification in Toure that further treatment would afford no benefit. The majority ignores the possibility that further medical treatment might well be useful for purposes of pain management, assuming that plaintiff’s injuries are as severe as she claims. Nothing stated by Dr. Hausknecht or by Dr. Dimalante negates this possibility.

Even more significantly, the majority disregards the statements of plaintiffs own experts that actually support the view that plaintiff would benefit from continuing treatment. Dr. Hausknecht, for one, concluded his affirmation with the statement that plaintiff “will continue care under my supervision” (although he failed to describe any prior care that had been provided under his supervision). In addition, an earlier report by another of plaintiffs physicians (Dr. Isaac Sultan), based on his neurological examination of plaintiff on June 11, 1998, recommended “[c]ontinu[ing] the present pain management and follow-up care,” and a “[f]ollow-up evaluation [with Dr. Sultan] in 3-4 weeks or sooner.” Again, it is uncontroverted that plaintiff never followed up as recommended by Dr. Sultan, and the majority can point to no explanation for her failure to do so.

I would further note that, even under the majority’s holding that summary judgment should be denied, defendants should have an opportunity at trial to establish that any test results submitted by plaintiff do not constitute objective evidence of serious injury because they are based on plaintiffs subjective reactions. In Nitti v Clerrico (one of the cases addressed by the Court of Appeals in the Toure decision), the Court of Appeals held that a chiropractor’s opinions concerning the plaintiffs limitation of motion did not constitute objective medical proof of serious injury because the chiropractor “testified on cross-examination that the tests he administered to reach his conclusion regarding plaintiffs limitation of motion were subjective in nature as they relied on plaintiffs complaints of pain” ( 98 NY2d at 357-358 ). It is significant, given the instant plaintiffs reliance on straight-leg raising tests (which, when administered by defendants’ experts, yielded negative results), that the chiroprac *40 tor’s limitation of motion opinion in Nitti was also based on, among other procedures, a straight-leg raising test (see Nitti v Clerrico, 291 AD2d 807, 807 [2002], revd 98 NY2d 345 [2002]). Here, the existing record does not establish whether the particular tests used by plaintiff’s medical experts were based on subjective complaints of pain, and defendants should not be precluded from exploring this issue at trial.

Finally, I observe that there is a troubling aspect to plaintiffs opposition to the motions for summary judgment, in that it depends, in the final analysis, on unsworn and unaffirmed reports. Specifically, Dr. Carlin’s unsworn and unaffirmed MRI report, and Dr. Sultan’s unsworn and unaffirmed report referring to certain electrodiagnostic tests, comprise the sole “objective medical evidence” (Toure, 98 NY2d at 353 ) plaintiff offers to support the affirmed diagnoses of Drs. Hausknecht and Dimalante. Although the majority finds that defendants, by submitting the Carlin and Sultan reports with their own moving papers, have waived any objection to the admissibility of such reports, I note that defendants plainly submitted those reports—whose conclusions are contradicted by the affirmed reports of defendants’ experts—for the purpose of refuting them, not in order to place reliance on them. Even if defendants have waived the objection to the admissibility of these reports, it is noteworthy that plaintiff has essentially failed to submit any legally admissible objective medical evidence in support of her claim. In light of this deficiency in plaintiff’s evidence, the majority’s overlooking of the lengthy gap in the treatment of plaintiffs allegedly “serious injury” is even more difficult to understand.

Mazzarelli, J.P., and Gonzalez, J., concur with Marlow, J.; Andrias and Friedman, JJ., dissent in a separate opinion by Friedman, J.

Order, Supreme Court, Bronx County, entered May 6, 2002, reversed, on the law, without costs, defendants’ motions for summary judgment denied and the complaint reinstated. Appeal from decision, same court, entered on or about March 18, 2002, dismissed, without costs, as taken from a nonappealable paper.

. Contrary to the majority’s assertion, the record contains no evidence that plaintiff received any medical treatment (as opposed to diagnostic examination) after September 1998. The majority, while conceding that there was a gap in treatment of more than two yéars, miscalculates the extent of that gap, a miscalculation that appears to arise from the majority’s assumption that the period without treatment ended with the November 9, 2000 examination conducted by Dr. Hausknecht. While the November 9, 2000 examination provided part of the basis for Dr. Hausknecht’s August 2001 affirmation opposing defendants’ motion for summary judgment, the Hausknecht affirmation does not describe any treatment that Dr. Hausknecht rendered to plaintiff on November 9, 2000, on August 2, 2001 (when he again examined her), or on any other date. Rather, Dr. Hausknecht specifies, in conclusory fashion, only the diagnostic procedures he conducted. Surely, a medical examination conducted for the sole purpose of providing a basis for an expert affirmation to be used in litigation cannot be considered “treatment.” The fact that plaintiff made her two visits to Dr. Hausknecht before defendants moved for summary judgment, provides no indication that the visits had any purpose other than furthering this litigation. Both visits occurred while this action was pending, and, to reiterate, plaintiff has not identified any treatment Dr. Hausknecht provided during either visit. Surely, plaintiffs counsel anticipated that defendants would move for summary judgment. In fact, defendant Reynoso’s motion for summary judgment came just days after plaintiffs second visit to Dr. Hausknecht.

. It is noteworthy that this portion of Toure relates to the Manzano case, which was an appeal after a trial at which the plaintiffs offered the only expert testimony.