OPINION OF THE COURT
These three cases examine the nature and extent of qualitative, objective medical proof necessary for a plaintiff to meet the "serious injury" threshold under the No-Fault Law. We conclude that plaintiffs Toure and Manzano have satisfied their burden under Insurance Law § 5102 (d),
This Court has long recognized that the "legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries" (Dufel v Green, 84 N.Y.2d 795, 798 ; see also Licari v Elliott, 57 N.Y.2d 230, 234-235 ). As such, we have required objective proof of a plaintiff's injury in order to satisfy the statutory serious injury threshold (see e.g. Dufel, 84 NY2d at 798; Lopez v Senatore, 65 N.Y.2d 1017, 1020 ); subjective complaints alone are not sufficient (see e.g. Gaddy v Eyler, 79 N.Y.2d 955, 957-958 ; Scheer v Koubek, 70 N.Y.2d 678, 679 ).
In order to prove the extent or degree of physical limitation, an expert's designation of a numeric percentage of a plaintiff's loss of range of motion can be used to substantiate a claim of serious injury (see e.g. Dufel, 84 NY2d at 798; Lopez, 65 NY2d at 1020). An expert's qualitative assessment of a plaintiff's condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system (see Dufel, 84 NY2d at
Toure v Avis Rent A Car Systems, Inc.
Plaintiff commenced this action to recover damages for neck and back injuries allegedly suffered when the vehicle he was driving was struck by an automobile operated by defendant Susan Duncan and owned by defendant Avis Rent A Car Systems, Inc. Following joinder of issue, plaintiff served a bill of particulars alleging that he suffered a "permanent consequential limitation of use of a body organ or member" and a "significant limitation of use of a body function or system," two of the statutory categories defining "serious injury" under Insurance Law § 5102 (d).
In support of their motion, defendants submitted various medical records of plaintiff and an affirmation from a neurologist, Dr. Ralph Olson. Dr. Olson conducted a physical examination of plaintiff and reviewed plaintiff's medical records, including reports from plaintiff's chiropractor and reports of x-rays and an MRI of plaintiff's back. He concluded that a "clinical examination of the central and peripheral nervous system, cervical, dorsal and lumbosacral spine fails to reveal any objective abnormalities to indicate any residual disability" and that "[f]rom a neurologic standpoint [plaintiff] has recovered from his various injuries."
In opposition, plaintiff submitted his own affidavit and an affirmation from Dr. Joseph Waltz, a neurosurgeon who had
Based on his review of medical records from plaintiff's prior health care providers, Dr. Waltz noted that an earlier MRI test of plaintiff's cervical spine—taken one month after the accident—revealed one bulging and two herniated discs. As a consequence, he had plaintiff undergo additional testing—a CT scan of his cervical spine and an MRI of his lumbar spine. According to Dr. Waltz, the CT scan indicated "significantly bulging possibly herniated discs" and the lumbar MRI revealed "significant bulging discs." While conducting a physical examination, Dr. Waltz observed that plaintiff "had paraspinous muscle spasms in the lumbosacral area and a decreased range of motion in his lumbar spine." He opined to a reasonable degree of medical certainty that plaintiff's disc pathology was caused by the motor vehicle accident and that plaintiff's injuries are "permanent and result in restriction of use and activity of the injured areas and permanent limitation of his spine and peripheral nervous system." Moreover, Dr. Waltz related this assessment to plaintiff's complaints of difficulty in sitting, standing and walking for extended periods of time and plaintiff's inability to lift heavy objects at work by concluding that these limitations are "a natural and expected medical consequence of his injuries."
Based on these submissions, Supreme Court granted defendants' motion and dismissed plaintiff's complaint. The Appellate Division affirmed, with two Justices dissenting. Plaintiff appealed to this Court as of right.
Although Dr. Olson's affirmation was sufficient to meet defendants' initial burden to establish a prima facie case that plaintiff's alleged injuries did not meet the serious injury threshold under the No-Fault Law (see e.g. Gaddy, 79 NY2d at 956-957), plaintiff's proffered evidence raises issues of material fact as to whether he sustained a "permanent consequential limitation of use of a body organ or member" or a "significant limitation of use of a body function or system."
We cannot say that the alleged limitations of plaintiff's back and neck are so "minor, mild or slight" as to be considered insignificant within the meaning of Insurance Law § 5102 (d) (Licari, 57 NY2d at 236; see also Gaddy, 79 NY2d at 957; Scheer, 70 NY2d at 679). As our case law further requires, Dr. Waltz's opinion is supported by objective medical evidence, including MRI and CT scan tests and reports, paired with his observations of muscle spasms during his physical examination of plaintiff. Considered in the light most favorable to plaintiff, this evidence was sufficient to defeat defendants' motion for summary judgment (see Lopez, 65 NY2d at 1020). Given this ruling, we need not pass on plaintiff's remaining claim under section 5102 (d).
Manzano v O'Neil
After her vehicle was rear-ended by an automobile operated by defendant, plaintiff and her husband initiated this lawsuit alleging that she sustained a serious injury pursuant to Insurance Law § 5102 (d), specifically, a "permanent consequential limitation of use of a body organ or member." Prior to trial, the parties stipulated to defendant's liability but agreed to litigate
Plaintiff testified that after the accident, she was taken to a hospital because of pain in her lower back and "tingling" in her neck and spine. She was released that same day. When her pain persisted, she sought treatment from various health care providers and attended physical therapy. Despite these measures, plaintiff described her condition by stating: "I can no longer do heavy lifting of any kind. I cannot shovel the driveway like I used to. I don't clean the house like I used to. I can't carry the vacuum cleaner. I can't pick up my children." Plaintiff's husband provided similar testimony regarding her limitations.
Dr. John Cambareri, an orthopedic surgeon who treated plaintiff on four occasions, testified on her behalf. On plaintiff's first visit, he conducted an orthopedic examination of her neck and lower back. As a result of this examination, he found that plaintiff had tenderness in her neck and lower back as well as "discomfort with extremes of motion of her neck." He diagnosed plaintiff as having a cervical and lumbosacral sprain and opined that this injury was consistent with a rear-end collision. In light of complaints of persistent pain, Dr. Cambareri subsequently referred plaintiff for an MRI scan of her cervical and lumbosacral spine. Based on his review of the MRI films, which were admitted into evidence, he concluded that plaintiff suffered two herniated discs in her cervical spine. He further opined that this injury was consistent with plaintiff's complaints regarding the physical limitations of her neck and back. Dr. Cambareri also stated that plaintiff's injury was permanent, a conclusion founded on plaintiff's "history, physical examination, [and] the review of the MRI scan."
At the conclusion of plaintiff's proof, defendant moved for a directed verdict primarily on the ground that plaintiff failed to meet her burden of proving a prima facie case of serious injury. Supreme Court reserved judgment on the motion. Defendant then rested without calling any witnesses. Subsequently, the jury awarded plaintiff $70,000 in damages.
Defendant renewed her previous motion and moved to set aside the verdict. Supreme Court denied both motions. Defendant then sought to correct or vacate the judgment, arguing that the amount of prejudgment interest due was improperly computed. That motion also was denied. The Appellate Division reversed the judgment and dismissed the complaint, holding
In this case, plaintiff presented the testimony of her treating physician, Dr. Cambareri, who opined that plaintiff suffered two herniated cervical discs as a result of the automobile accident. His conclusion was supported by objective evidence introduced at trial, namely, the MRI films that he interpreted. Although this medical expert did not assign a quantitative percentage to the loss of range of motion in plaintiff's neck or back, he described the qualitative nature of plaintiff's limitations based on the normal function, purpose and use of her body parts. In particular, Dr. Cambareri correlated plaintiff's herniated discs with her inability to perform certain normal, daily tasks. These limitations are not so insignificant as to bar plaintiff's recovery under the No-Fault Law (see Licari, 57 NY2d at 236). Viewing the evidence in the light most favorable to plaintiff, it cannot be said that there is no valid line of reasoning and permissible inferences that could possibly lead rational persons to the conclusion reached by the jury (see Parkin v Cornell Univ., 78 N.Y.2d 523, 526 ).
Defendant further contends that plaintiff failed to establish a permanent consequential limitation of use because the testimony of her expert was based on an examination that was conducted more than four years prior to trial. Defendant's argument is not persuasive. Dr. Cambareri testified that at the time of his last examination of plaintiff, he concluded that plaintiff's injuries were permanent and there was no benefit in her continuing to seek medical treatment for this condition. Defendant presented no medical evidence to the contrary. Defendant's remaining contentions are either unpreserved or without merit.
Nitti v Clerrico
Plaintiff brought this personal injury action after she sustained injuries as a passenger in a vehicle struck by defendants' car. In her bill of particulars, plaintiff alleged that she suffered a serious injury as defined by Insurance Law § 5102 (d) under the following categories, among others: "significant limitation of use of a body function or system" and "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
At trial, plaintiff described the back pain she experienced due to the accident and how, as a result, she was unable to return to work on a consistent basis for approximately six months. She testified that during this time, she was unable to participate in many of the daily activities that she had engaged in prior to the accident, including exercising and household chores.
Plaintiff further presented the testimony of Dr. Daniel Patriarco, a chiropractor who twice examined her in connection with an independent evaluation. On plaintiff's first visit, he performed an examination of plaintiff's cervical and lumbar spine. At some point during this exam, Dr. Patriarco detected a spasm "in the right cervical spine which radiated into the shoulders." Additionally, he conducted several tests from which he concluded that plaintiff had restricted range of motion in her back and neck. However, on cross-examination, he conceded that these tests were subjective in nature as they were dependent, at least in part, on plaintiff's complaints of pain. Ultimately, he diagnosed plaintiff with a "lumbosacral, sacroiliac and cervical sprain/strain with some secondary pain in the back of the head" and that she had a "mild partial disability," which was caused by the motor vehicle accident. As a result, Dr. Patriarco restricted plaintiff from lifting more than 20 pounds and recommended further chiropractic care.
Dr. Patriarco testified that he next examined plaintiff six months later. Once again, he conducted a physical examination of plaintiff. He also reviewed a report of an MRI of plaintiff's spine, which report was not introduced into evidence. Based on his examination of plaintiff and the MRI report, he opined that plaintiff "sustained an L4-5 intervertebral disk disorder with associated neuritis, which was further complicated by a congenital anomaly," which would prevent her from exercising and other activities. He again correlated this diagnosis to the accident.
At the close of plaintiff's case, defendants moved for a directed verdict on the grounds that plaintiff failed to establish a prima facie case of negligence and serious injury. As to their serious injury argument, defendants contended that Dr. Patriarco's opinions were not supported by objective medical proof. Supreme Court denied the motion on both grounds. Defendants
The jury found that defendants were negligent and that plaintiff sustained a serious injury under the 90/180 category, but not under the significant limitation category, and awarded plaintiff $45,000. In their motion to set aside the verdict, defendants asserted that Dr. Patriarco's testimony was legally insufficient to support a finding of serious injury because it lacked an objective medical basis. Supreme Court denied the motion, and the Appellate Division, in a three-two decision, affirmed the judgment entered in plaintiff's favor after the denial of the motion to set aside the verdict. This appeal as of right ensued.
This case concerns a different category of serious injury—the "90/180" category. Although this statutory category lacks the "significant" and "consequential" terminology of the two categories at issue in Toure and Manzano, a plaintiff must present objective evidence of "a medically determined injury or impairment of a non-permanent nature" (Insurance Law § 5102 [d]; see also Licari, 57 NY2d at 236-239).
Plaintiff contends that the testimony of her chiropractor, Dr. Patriarco, regarding his detection of a back spasm and his review of an MRI report, together with the testimony regarding the limited range of motion in her neck and spine, are sufficient to support the jury's finding that she suffered a serious injury. Based on the proof adduced at trial, we disagree.
Although medical testimony concerning observations of a spasm can constitute objective evidence in support of a serious injury, the spasm must be objectively ascertained. This requirement was not satisfied by the testimony of plaintiff's expert that he detected a spasm, where he did not, for example, indicate what test, if any, he performed to induce the spasm. Furthermore, Dr. Patriarco testified on cross-examination that the tests he administered to reach his conclusion regarding plaintiff's limitation of motion were subjective in nature as
Accordingly, in Toure v Avis Rent A Car Systems, Inc., the order of the Appellate Division should be reversed, with costs, and defendants' motion for summary judgment denied. In Manzano v O'Neil, the order of the Appellate Division should be reversed, with costs, and the case remitted to the Appellate Division for consideration of the facts and issues raised but not determined on the appeal to that Court. In Nitti v Clerrico, the order of the Appellate Division should be reversed, with costs, and the complaint dismissed.
In Toure v Avis Rent A Car Sys: Order reversed, etc.
In Manzano v O'Neil: Order reversed, etc.
In Nitti v Clerrico: Order reversed, etc.