ANOTHER INJURED CAR ACCIDENT VICTIM DENIED HER DAY IN COURT DUE TO LEGAL TECHNICALITY

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Queens Injury Attorney)

A new case is reported from New York State's Appellate Division on an appeal from a Manhattan case; and boy, am I angry! I've seen this sort of thing time after time.

Of what do I speak?

New York State's No-Fault "serious injury" requirement. This dumb technicality is used time and again to throw accident victims out of court and onto their posteriors.

Basically a car accident victim must suffer one of nine different types of injury to have an accident case heard in court. The kicker is that whether or not the injury qualifies can be hard to figure out.

Some are easy. Like "death." Or a "fracture." But other categories make less sense, like "significant limitation of use of a body function or system," etc. For more on this, see my FREE Special Report at:

http://www.garyrosenberg-law.com/documents/Reports/Report_10.PDF

On to the personal injury case at hand, Travis v. Batchi, which was decided by the Appellate Division, First Department, on July 1, 2010 and is reported at 905 N.Y.S.2d 66.

The holding of Travis is that the accident victim did not suffer a serious injury within the meaning of the No-Fault law. So what happened?

The injured plaintiff made a mess of her right knee, requiring major surgery, including reconstruction of her anterior cruciate ligament, partial medial and lateral meniscectomy and chrondroplasty. This is pretty serious stuff.

However, like many surgeons in love with their own results, the injured plaintiff's orthopedist

reported in his records that his patient made a great recovery after the accident, and that the knee regained full strength and range of motion. Also, Ms. Travis worked from home beginning two months after the accident through her return to her office five months after the accident.

In opposition to the defense motion, plaintiff's knucklehead lawyer went back to the same orthopedist and got him to sign an affidavit saying that there was NOT a full recovery of that rascally ol' knee; without performing any testing to show any range-of-motion impairment.

It was not lost on the Court that this affidavit contradicted the doctor's own office records!

This is an on-going problem: surgeons who love their own results. In 25+ years I have yet to see a surgeon's records that say something like, "I did the best I could, but the result - after surgery - is pretty good but just not perfect." So, if you, Mr. or Ms. Plaintiff's Personal Injury Lawyer, find yourself in this situation, don't be lazy and don't be cheap. Send your client to a doctor other than the surgeon, who can more easily criticize the surgeon's result.

The problem with losing these motions is that it encourages the defense to keep making them. As long as some of us plaintiff's injury lawyers keep getting our butts kicked on New York's No-Fault "serious injury" threshold, we'll have to keep fighting. Hard.

See, also, my FREE book: WARNING! THINGS THAT CAN DESTROY YOUR CAR ACCIDENT CASE (And the Insurance Companies Already Know These Things).