Fact Issue Arising From Explanation for Gap in Treatment Precludes Summary Judgment as to “Serious Injury” in Car Accident Case

In Ramkumar v. Grand Style Transportation Enterprises, Inc., the New York Court of Appeals recently reversed a summary judgment for defendant in plaintiff’s lawsuit seeking recovery for injuries sustained in a car accident.

This case addresses the sufficiency of evidence for a plaintiff to claim that s/he suffered a “serious injury” despite their discontinuance of (or gap in) medical treatment.

“Serious Injury” Generally

In a nutshell, if you have been injured in a car accident in New York, you may only file a lawsuit if your injuries fall into at least one of the categories of “serious injury” as defined under Article 51 of the New York Insurance Law, otherwise known as the “No-Fault Law“.

Ramkumar – Appellate Division Decision

In Ramkumar, the Appellate Division, First Department dismissed plaintiff’s complaint because he did not suffer a “serious injury”.  It held, based on the Court of Appeals’ 2005 decision in Pommells v. Perez, that plaintiff’s complaint should have been dismissed because plaintiff “failed to offer a reasonable explanation for a significant gap in his medical treatment.”  

Plaintiff testified that he was “cut off” from receiving physical therapy five months before his deposition in July 2008, and the record did not indicate that plaintiff received any medical treatment for two years before responding to defendants’ motions.

This was, according to the Appellate Division, fatal to his claim:

A bare assertion that insurance coverage for medically required treatment was exhausted is unavailing without any documentary evidence of such or, at least, an indication as to whether an injured claimant can afford to pay for the treatment out of his or her own funds. Plaintiff, who was employed and living with his parents, gave no such indication.

The Court of Appeals Reverses

The Court of Appeals disagreed, finding “a triable issue of fact as to whether plaintiff has offered ‘some reasonable explanation’ for the cessation of physical therapy treatment for his injury” under Pommells.

It stressed that while Pommells requires a plaintiff claiming a “serious injury” to offer a reasonable explanation for terminating treatment, a plaintiff need not submit “any particular proof regarding that explanation.”

Furthermore:

The Appellate Division’s requirement that plaintiff either offer documentary evidence to support his sworn statement that his no-fault benefits were cut off, or indicate that he could not afford to pay for his own treatment, is an unwarranted expansion of Pommells. Plaintiff testified at his deposition that “they” (which a reasonable juror could take to mean his no-fault insurer) cut him off, and that he did not have medical insurance at the time of the accident. While it would have been preferable for plaintiff to submit an affidavit in opposition to summary judgment explaining why the no-fault insurer terminated his benefits and that he did not have medical insurance to pay for further treatment, plaintiff has come forward with the bare minimum required to raise an issue regarding “some reasonable explanation” for the cessation of physical therapy. Additionally, the qualitative assessment of [] plaintiff’s condition (Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351 [2002]) rendered by the physician who performed arthroscopic surgery on plaintiff’s knee was that plaintiff’s meniscal tear injury was causally related to the car accident, and that the meniscus has permanently lost its stability with onset of scar tissue, instability, loss of range of motion, and pain, which plaintiff will have for the rest of his life.

The Court therefore held that summary judgment dismissing plaintiff’s complaint was, on this record, improper.

Judge Smith’s Dissent

Based on what he perceives as rampant fraud and abuse in the no-fault system, Court of Appeals Judge Robert S. Smith dissented.

He argues that the majority “dilutes” the Pommells rule that a plaintiff who terminates post-accident therapeutic measures must offer a “reasonable explanation” for the termination, which is “designed to make unjustifiable recoveries more difficult in so-called ‘gap in treatment’ cases.”

In the context of this case, Judge Smith maintains that plaintiff’s “ambiguous and self-serving” deposition statement is not a “reasonable explanation” for his cessation of treatment, and that the courts “should demand more”.  Specifically, he states:

If there is indeed a reasonable explanation for plaintiff’s cessation of physical therapy, he should have had no trouble in offering much better proof of it. He could have submitted an affidavit in opposition to summary judgment, identifying his no-fault carrier, attaching a copy of the written communication, or describing the oral one, in which the carrier cut him off, and saying what, if any, reason the carrier gave. For all that appears in this record, the carrier might have refused to continue paying for therapy because it did not think plaintiff had an injury serious enough to justify it. Plaintiff could also have said in an affidavit, if he could truthfully do so, that he did not have other insurance or other resources that would cover the cost of treatment.

New York personal injury lawyer Eric Turkewitz took issue with Judge Smith’s dissent in a pointed open letter, titled “Dear Judge Smith – You Gotta Be Kidding Me“, that is definitely worth a read.