New York’s high court just removed one hurdle from recovery for people injured in automobile accidents. See Perl v. Meher, Nos. 206-208, Nov. 22, 2011.
The Court of Appeals held that the treating doctor need not quantify the injured client’s range of motion at the initial examination. Lower courts previously ruled that the doctor’s failure to note and quantify the numbers would defeat a client’s recovery when the entire medical record is reviewed on a defense motion for summary judgment.
Mr. Perl’s physician testified that taking loss of range of motion readings at the initial examination would be useless because the injury is too fresh and acute. He stated that it does not present “correct numbers.” Plaintiff’s doctor relied on his own visual estimates of loss of range of motion. The defense physician agreed with this approach.
Although the treating doctor is not required to take the measurements at the initial examination, he must do so later in the treatment in order to prove a “serious injury.”
This case marks a victory for injured clients. Generally, the courts have been on a steady march of defeating clients’ cases in defense motions for summary judgment. Defendants have been able to get cases dismissed on papers without a trial. Perl marks a retreat. It is noteworthy that the decision was unanimous and was written by Judge Robert Smith, one of the court’s more conservative judges
Jubilation should be reserved because injured clients still have an uphill battle.. The courts have created a body of law and “a culture” hostile to the so-called soft tissue auto case. Perl removes only one hurdle. However, the Perl case is one small step in the right direction.
We salute a friend and colleague, appellate attorney Annette G. Hasapidis who handled the case in the Court of Appeals.
If you have been injured in an automobile accident, please feel free to contact me at 800-581-1434 or write to firstname.lastname@example.org. The consultation is free.
Mark E. Seitelman, 11/25/11, www.seitelman.com.