New York, N.Y. (September 27, 2023) – Our New York office continues its efforts to expand the playbook for successfully defending claims brought by plaintiffs who undergo surgery following motor vehicle accidents. In many motor vehicle cases, it is very questionable whether any post-accident surgery was medically necessary, and/or causally related to the alleged impact from the accident. In New York, practitioners sometimes overlook the “serious injury” defense of NY Insurance Law § 5102(d) when it comes to claims where the plaintiff undergoes a discectomy, laminectomy or a fusion after the accident. Under NY Insurance Law § 5104(a), a plaintiff who has not sustained a “serious injury” (as defined in Insurance Law § 5102(d)) has no private cause of action for non-economic loss; rather, they must pursue No-Fault insurance as their sole remedy.

“'Serious injury' means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.”

Plaintiffs will often argue that a spine surgery automatically qualifies as a “serious injury” under the statute. However, the statute does not say any surgery qualifies as a “serious injury,” because regardless of whatever treatment the plaintiff had, there must be a showing that the underlying injury that led to the treatment was causally related to the accident. Cividanes v. City of NY, 95 A.D.3d 1 (1st Dept. 2012); Walton v. Lumbermens Mut. Cas. Co., 88 N.Y.2d 211 (1996). In the right case, therefore, if medical and biomechanical experts can establish the surgery was not causally related to the accident, the plaintiff cannot, and should not, recover under Insurance Law § 5102(d).

For example, in a recent case in Bronx County, our office was successful in obtaining partial summary judgment, even though the plaintiff underwent cervical and lumbar discectomy and fusion at multiple levels. We moved for summary judgment under Insurance Law § 5102(d), supported by the opinion of a biomechanical expert and orthopedist. The lower granted the motion to the extent of dismissing two categories of “serious injury,” the “90/180 day” category and the “total loss of use” category. Although the court found a question of fact under two other categories, the defense can still be made at trial that those categories do not apply. To that end, defense counsel should request a jury charge on “serious injury” threshold whenever the evidence supports that defense, and even if the plaintiff had spine surgery after the accident. 

Indeed, in September 2023, our office obtained a defense verdict in the Supreme Court, Nassau County in a vehicle case where the plaintiff had a two-level cervical fusion after the accident. We presented evidence at trial that the plaintiff had a pre-existing condition, and had fusion surgeries at other levels before the accident. The court granted our request for jury charges on whether the plaintiff sustained a “serious injury” under the “permanent consequential limitation” and “significant limitation of use” categories of Insurance Law § 5102(d). Thereafter, the jury returned a defense verdict based on its finding that plaintiff had not sustained a “serious injury” as a result of the accident, notwithstanding the two-level cervical fusion.

Additionally, in March 2023 our office obtained a defense verdict in New York federal court in a case where a plaintiff was claiming fusion surgery as a result of a collision with a tractor trailer. We presented evidence the plaintiff's surgery was necessitated by lifelong degeneration, and was not causally related. The court denied plaintiff's motion in limine to preclude the defense biomechanical expert from testifying. Thereafter, the jury returned a defense verdict based on the “serious injury” causation defense.

Our office will continue to press the defense in all cases where the evidence warrants. This aggressive tactic can be used as leverage to obtain a dismissal or more favorable settlement. Since questionable spine claims continue to proliferate, defense counsel must explore ways to expand the current list of conventional methods to defend these claims.

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