On November 22, 2011, the highest court in the State of New York, the Court of Appeals, issued a decision in Perl v. Meher, 2011 N.Y. Slip Op. 08452 (2011), which will prove unfavorable for defendants challenging a plaintiff’s showing of “serious injury” under the No-Fault Law, particularly those “serious injury” claims involving soft tissue injuries, and will ultimately lead to an increase of these claims that survive summary judgment and get before a jury.
In determining whether the plaintiffs met the statutory definition of “serious injury,” specifically those categories that define a “serious injury” as “permanent consequential limitation of use of a body organ or member” and “significant limitation of use of a body function or system,” the court rejected the rule that plaintiffs furnish contemporaneous quantitative test results, i.e., an expert’s assessment of the plaintiff’s degree of physical limitation based upon specific, numerical range of motion testing, contemporaneous with their accident, to substantiate a claim of “serious injury.” Instead, the court held that a comparative qualitative assessment, i.e., an expert’s assessment of the plaintiff’s physical deficits described in more general terms, provided the evaluation has an objective basis and compares the plaintiff’s limitations to the normal function, would be accepted as evidence sufficient to raise an issue of fact as to whether a “serious injury” exists.
The Perl case is comprised of three (3) unrelated personal injury actions, each of which arises out of a motor vehicle accident. The plaintiffs’ treating physician examined plaintiffs soon after their accidents and simply noted some abnormality, including difficulty moving and diminished strength. The treating physician did not quantify those limitations upon initial evaluation. However, upon re-examination years later, the treating physician did use medical tools to objectively measure and specifically quantify the plaintiffs’ range of motion.
While recognizing the over-abundance of frivolous claims arising out of motor vehicle accidents, the court nonetheless upheld the dissenting opinion of the Appellate Division, which stated that “[p]otential plaintiffs should not be penalized for failing to seek out, immediately after being injured, a doctor who knows how to create the right kind of record for litigation. A case should not be lost because the doctor who cared for the patient initially was primarily, or only, concerned with treating the injuries.”
Although the Appellate Division had rejected the claims of “serious injury” presented in each of the three (3) underlying cases, two were reversed by the Court of Appeals, as the court held that there existed triable issues of fact as to whether the plaintiffs 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.”
The Perl holding serves to permit plaintiffs greater flexibility in satisfying their burden of proof as to “serious injury,” particularly in the Appellate Division, Second Department, where plaintiffs previously needed to offer contemporaneous quantitative measurements as a prerequisite to recovery under the No Fault Law.