Recent Court Decision Highlights Need to Reform No-Fault Motor Vehicle Insurance Law to Include “Surgery” Within the Definition of “Serious Injury”

In 1975 New York enacted a “no-fault” insurance plan that in theory was designed to keep small cases involving motor vehicle accidents out of court in exchange for relatively immediate payment of expenses for hospital and medical bills and reimbursement of lost earnings without the injured party having to prove that the other party was at fault for the accident. One would think that needing to undergo surgery to repair injuries sustained in an accident would not be considered too small of a case to be allowed to proceed, particularly where the surgeon states that the injuries he observed during the surgery would result in a permanent limitation of motion and other problems. Wrong. In Ramkumar v. Grand Style Transportation Enterprises Inc., 2012 WL 1164882 (April 10, 2012), the Appellate Division, Second Department in Brooklyn dismissed just such a case.

The mechanism that is used to determine whether the injuries sustained in a motor vehicle accident are significant enough to warrant recovery in a lawsuit is to determine whether the injury is a “serious injury” as defined in New York’s Insurance Law. “Surgery” is not presently within the definition of serious injury, so that having surgery is not alone enough to qualify as a serious injury. Instead, what is needed is that even with the surgery the injured person has a “permanent consequential limitation” of use of the body part involved in the surgery.

This seems to me to be inconsistent with the goal of the “no-fault” law, but that is the law as presently interpreted. There is a tremendous amount of litigation about whether an injury qualifies as a serious injury, with the courts skeptically reviewing the plaintiff’s medical proof. One factor heavily relied upon is whether there has been an unexplained gap in treatment, which courts often use as a basis to dismiss cases.

In fact, that is exactly what the court in Ramkumar v. Grand Style Transportation Enterprises Inc. did. Apparently not too long after the plaintiff had surgery, a doctor examining him on behalf of (and paid either directly or indirectly by) the insurance company paying his medical bills determined that no further treatment was required, as a result of which the insurance company denied paying any further benefits. This caused the plaintiff to stop receiving physical therapy. The plaintiff had received no treatment for the 24 months prior to the defendant’s motion to dismiss his case on the basis that his injury did not qualify as a serious injury.

To me the Appellate Division’s application of the gap in treatment factor is wildly misplaced. Here we have a person who injured his knee and had to have surgery to repair the damage, including a torn meniscus. The court found that the plaintiff’s doctors adequately established that the accident caused the injury for which surgery was performed. The surgeon also submitted an affidavit stating that the condition of the meniscus as he personally observed during surgery would result in a permanent limitation of motion. A person in this position should not have to continue to undergo further physical therapy in order to prove that he has a permanent injury and is entitled to a recovery. The court’s approach seems to be an improvident application of form over substance, taking the term gap in treatment to a level that is unwarranted.

The appellate court’s decision had two dissents, meaning that the case can be appealed as of right to the Court of Appeals. Having recently explained the fallacy of the lower courts’ requirement that a measurement of range of motion be conducted contemporaneously with the initiation of treatment in Perl v. Meher, 18 N.Y.3d 208, 960 N.E.2d 424 (2011), hopefully Ramkumar v. Grand Style Transportation Enterprises Inc. will be reversed as well.

Another solution would be an amendment to the definitions of “serious injury” to include surgery. Such an amendment would be a logical and fair thing for the legislature to do.

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