Bowen v. Saratoga Springs City School District et al., N.Y. Supreme Court, Appellate Division, 3d Dept., Case No. 512164, decided October 20, 2011
In New York, a person injured in an automobile accident cannot recover non-economic damages in a negligence lawsuit against the insured driver of the other vehicle unless the injured plaintiff has suffered a “serious injury” as defined in section 5102 of the New York Insurance Law. In Bowen, the Appellate Division granted summary judgment to the defendant school district where the school district presented medical evidence tending to show that no such serious injury was present.
Because the defendants sought to have the case dismissed on summary judgment (that is, on motion made to the court following the close of discovery but before a trial), they bore the initial burden of establishing “through competent medical evidence, that plaintiff did not sustain a serious injury as a result of the motor vehicle accident” at issue in the case. The court found that this burden was satisfied by numerous pieces of objective medical evidence (including physician testimony and the results of tests performed immediately following the accident) that tended to show that the plaintiff had pre-existing conditions that could be to blame for her complaints, and also that her “subjective complaints of pain were disproportionate to and could not be explained by” the test results.
On the strength of this evidence, the burden of proof shifted to the plaintiff to submit “objective proof” that she had, in fact, suffered a “serious injury.” The Court found, however, that the proof submitted by the plaintiff was insufficient. In particular, the Court found that while the plaintiff’s treating chiropractor stated in an affidavit that the plaintiff had experienced pain and decreased range of motion for more than six months following the accident, his assessment was not supported by contemporaneous quantitative (i.e., objective) testing. The Chiropractor’s tests were done two years after the accident, and so the results could not be linked, objectively, to the accident. Nor were the results of tests performed by another doctor one month after the accident sufficient to meet the plaintiff’s burden of proof, since this physician failed to compare the results to the plaintiff’s pre-accident condition, or to opine as to whether the results reflected a “serious injury” as defined by the Insurance Law.
In sum, Bowen is a succinct reminder of the importance role that objective medical evidence plays in personal injury cases – especially in automobile accident cases, where the lack of such evidence is fatal to a plaintiff’s ability to recover for a driver’s negligence.