Defendant’s counsel usually submits at least two (sometimes three) affirmations of so-called “independent”1 medical experts (an orthopedist, a neurologist, and radiologist, usually from the same stable of defense medical experts), each of whom examine the plaintiff and/or the reports and tests submitted by plaintiff, and then by affirmation refute plaintiff’s claim to have sustained a serious injury. These examinations usually take place years after the automobile accident which has been alleged to cause injury, and each of the defendant’s medical experts conclude that plaintiff is no longer impaired or injured; that all tests and findings are normal; that if originally injured, said injuries have resolved; and that, in any event, all of plaintiff’s claimed limitations or impairments have been caused, not by the accident, but by degenerative (normal aging process) changes in the cervical and lumbar regions. Except for the dates and the unique peripheral circumstances presented by each case, these medical reports and affirmations submitted by defendant’s chosen medical experts, are virtually identical. Plaintiff’s submissions, made in opposition to a defendant’s motion, are no less boilerplate.
The issue in this case is whether plaintiff sustained serious injury.
This case, like all other “serious injury” cases, presents the court with the ongoing and frustrating conundrum of deciding when a plaintiff’s injury qualifies as significant within the meaning of the No-Fault Law.
Under the No-Fault Law, in order to maintain an action for personal injury, a plaintiff must establish that a “serious injury” has been sustained. The term “serious injury” is defined in section 5102 of the Insurance Law as follows: “(d) `Serious injury’ means a personal injury which results in death; dismemberment; disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or 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 person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.”
To Be cont…