Proof of a herniated disc, without additional objective medical evidence establishing that the accident resulted in significant physical limitations, is not alone sufficient to establish a serious injury. While an expert's qualitative assessment may suffice, that evaluation must have an objective basis and compare the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system.
Plaintiff Nissette Gonzalez claimed that she suffered serious injuries under Insurance Law § 5102 (d) when defendant Katharine L. Green's vehicle struck the vehicle in which plaintiff was riding. Plaintiff appealed a summary judgment dismissal of her complaint.
Should the summary judgment dismissal of Nisette Gonzalez's complaint be reversed?
The court affirmed the summary judgment dismissal of Gonzalez's complaint. The court found that defendants met their initial burden of establishing that plaintiff did not sustain a serious injury for 90 of the first 180 days after the accident, as required for liability under § 5102(d). A physician's medical report, based on plaintiff's medical reports and an examination of plaintiff, opined that there were no objective medical findings to support plaintiff's claims of a serious injury to her back, left shoulder, and neck. Also, plaintiff's medical records from the first 90 days after the accident showed that the physicians who initially treated her did not treat the injury as a serious one. The burden then shifted to plaintiff to offer admissible proof to create a material issue of fact on whether she suffered a serious injury. The affidavit she submitted from a physician who later treated her did not identify objective medical evidence to support his opinion that plaintiff's limitation was significant. Regardless, that physician treated plaintiff outside the 180-day statutory period.