No Fault Defender – A Defense Attorney's Perspective on New York No-Fault Law
Archive for July 7th, 2010
A signifcant knee surgery does not defeat the 5102(d) serious injury threshold
Travis v Batchi, 2010 NY Slip Op 05862 (1st Dept. 2010)
“The examination records of plaintiff’s own treating physician/expert show that she had full strength and range of motion in the knee both a few weeks and a few months after the accident, after he performed a right knee ACL reconstruction, partial medial and lateral meniscectomy and chrondroplasty.” “[t]he negative findings cannot be reconciled with the physician’s affirmation submitted in opposition to the motion prepared a few years after the accident.”
I found this case last week but forgot to report it. I have this fascination with surgery cases not beating threshold. Just look at the surgery that was done in this case. This was significantly more than the arthroscopic procedure we always see in our practice. Had this gone to trial, you could imagine a $500,000 + non-economic damages verdict.
My first observation, and this is a reoccurring theme here, is that gratuitous “affidavits of merit” are without any probative value if controverted by the medical record before the motion court. This is an important point, and one I am trying to push up the appellate ladder in the no-fault context. The saying goes: “it is what it is”. If the assignor’s medical chart fails to discern ROM restrictions, etc., then why should an affidavit that contradicts the medical record raise an issue of fact?
My second observation, and one that the defense bar should be astute to is more pragmatic. Is sacrificing threshold and allowing a Bronx jury to adjudicate a case like this worth the savings the carriers might obtain through the proposed no-fault reform bills that are out there? I think the saying goes: pick your poison.
As a public service message, make sure you stay hydrated if you are going outside and exerting any physical activity.
By the way, the court got this once right on the mark, and the defense did a wonderful job in defeating this potential disaster.
