ROM testing with a touch of CPLR R. 4518

CPLR R. 4518 Business records

I was going to post this for another reason, but JT makes a good point.

Simanovskiy v Barbaro, 2010 NY Slip Op 03304 (App. Div., 2nd, 2010)

Neither plaintiff offered competent medical evidence to demonstrate
the existence of a significant range-of-motion limitation in the
cervical or lumbar regions of their spines contemporaneous with the
subject accident (see Bleszcz v Hiscock, 69 AD3d 890; Caraballo v Kim, 63 AD3d 976, 977; Niles v Lam Pakie Ho, 61 AD3d 657, 659; Washington v Mendoza, 57 AD3d 972; Magid v Lincoln Servs. Corp., 60 AD3d 1008).
Although the affirmations and affirmed [*2]medical
reports of the plaintiffs' treating physician, Dr. Boris Dudelzak,
found "decreased" range of motion in the cervical and lumbar regions of
both plaintiffs' spines, he failed to quantify the results of his
range-of-motion tests
(see Barnett v Smith, 64 AD3d 669, 671; Kuchero v Tabachnikov, 54 AD3d 729, 730; Duke v Saurelis, 41 AD3d 770, 771).
Furthermore, the computerized range-of-motion tests referred to in Dr.
Dudelzak's affirmations were not in admissible form because they were
not affirmed by someone with personal knowledge of the facts
(see Taylor v Flaherty, 65 AD3d 1328; see also Luna v Mann, 58 AD3d 699, 700; Washington v Mendoza, 57 AD3d 972). Without
admissible evidence of quantified range-of-motion limitations
contemporaneous with the accident, the plaintiffs could not have
established the duration of the injuries required to raise a triable
issue of fact as to whether they sustained a serious injury under the
permanent consequential limitation or significant limitation of use
categories of the no-fault law
(see Kuchero v Tabachnikov, 54
AD3d at 730; Ferraro v Ridge Car Serv., 49 AD3d 498).

The affirmed magnetic resonance imaging reports of the
plaintiffs' radiologist, which indicated that the plaintiff Boris
Simanovskiy suffered from bulging cervical and lumbar discs, and that
the plaintiff Nadezhda Simanovskaya suffered from a torn meniscus, also
were insufficient to raise a triable issue of fact. The existence of
bulging discs and torn ligaments is not evidence of a serious injury in
the absence of objective evidence of the extent and duration of the
alleged physical limitations resulting from these injuries (see Casimir v Bailey, 70 AD3d 994; Bleszcz v Hiscock, 69 AD3d 890; Mora v Riddick, 69 AD3d 591; Caraballo v Kim, 63 AD3d 976, 977-978).

And JT found somene making a peculiar argument in Family Court.

Matter of Fortunato v Murray, 2010 NY Slip Op 03122 (App. Div., 2nd, 2010)

The father thereafter filed an objection to the Support Magistrate's
order on the ground that the Support Magistrate erroneously excluded his
medical records from evidence. The Family Court denied the objection,
stating, in an order dated November 19, 2008, that

"[the father] objects to the Support Magistrate's order
on the grounds that the doctor's records dated July 8, 2008, which the
Support Magistrate did not allow into evidence should have been admitted
into evidence. The Support Magistrate denied petitioner's request based
on the fact that the records are hearsay as they deprive respondent of
the right to confront the witness. This Court agrees. The [father]
refers to CPLR 4518(a). This section refers to business records, not
doctors office records or notes."

Contrary
to the Family Court's general statement of the applicable law, "[a]
physician's office records, supported by the statutory foundations set
forth in CPLR 4518(a), are admissible in evidence as business records.
However, medical reports, as opposed to day-to-day business entries of a
treating physician, are not admissible as business records where they
contain the doctor's opinion or expert proof"
(Matter of
Bronstein-Becher v Becher
, 25 AD3d 796, 797 [internal quotation
marks and citations omitted]; see Batts v Rutrick, 298 AD2d 417; Napolitano
v Branks
, 141 AD2d 705, 705-706). Moreover, a physician's office
records "may be received as evidence despite the fact that a physician
is available to testify as to the substance and contents of the records"
(Napolitano v Branks, 141 AD2d at 705-706; see Clarke v New
York City Tr. Auth.
, 174 AD2d 268). Here, upon the father's appeal
of the Family Court's order, this Court does not have the benefit of the
actual medical documents in dispute since the documents are not part of
the original papers before this Court. Thus, from the record, it is
unclear whether the subject documents were the type which this Court
views as admissible. Accordingly, we remit the matter to the Family
Court, Nassau County, for a review by the Support Magistrate of the
subject medical documents in light of and pursuant to the aforementioned
standard as to admissibility.

And one more that I found.  Of course I realized that I read the case about five seconds after I initially published this post.

Elshaarawy v U-Haul Co. of Miss., 2010 NY Slip Op 03273 (App. Div., 2nd, 2010)

On appeal, the defendants contend that the Supreme Court erred in
granting the plaintiff's motion for summary judgment on the issue of
serious injury to his right knee under the 90/180 day category of
Insurance Law § 5102(d). We agree. As the proponent of the summary
judgment motion, the plaintiff had the burden of making a prima facie
showing that he suffered a serious injury pursuant to Insurance Law §
5102(d), and that his injury was causally related to the accident (see Autiello v Cummins, 66 AD3d 1072; McHugh v Marfoglia, 65 AD3d 828, 829; LaForte v Tiedemann, 41 AD3d 1191, 1192; Ellithorpe v Marion, 34 AD3d 1195). The
plaintiff satisfied this burden by submitting the affirmation of his
orthopedic surgeon and his own affidavit, which established that as a
result of the accident he had sustained a "a medically determined
injury" to his right knee which prevented him from performing
substantially all of his usual and customary daily [*3]activities
for at least 90 of the first 180 days following the accident (Insurance
Law § 5102[d]; see Ellithorpe v Marion, 34 AD3d 1195,
1197). However, in opposition, the defendants raised a triable issue of
fact as to whether the plaintiff's knee injuries were caused by the
subject accident by submitting the affirmation of their examining
orthopedic surgeon, and the plaintiff's ambulance report and hospital
emergency room records, which indicated that he made no complaints of
knee pain immediately after the accident, and that examination of his
knees revealed no swelling. Although the ambulance report and hospital
emergency room records were uncertified, a defendant may rely upon
unsworn medical reports and uncertified records of an injured
plaintiff's treating medical care providers in order to demonstrate the
lack of serious injury
(see Hernandez v Taub, 19 AD3d 368; Kearse v New York City Tr. Auth., 16 AD3d 45,
47; Itkin v Devlin, 286 AD2d 477; Abrahamson v Premier Car
Rental of Smithtown,
261 AD2d 562; Pagano v Kingsbury, 182
AD2d 268, 271). Accordingly, the plaintiff's motion for summary judgment
on the issue of serious injury to his right knee under the 90/180 day
category should have been denied. Since the jury was instructed that its
damages award must include compensation for the plaintiff's knee
injuries, which the Supreme Court determined to be causally linked to
the accident, the jury did not expressly find that the plaintiff
sustained a significant limitation of use of his right knee, and the
jury did not specifically allocate damages to compensate the plaintiff
for injuries to any particular parts, functions, or systems of his body,
the judgment must be reversed, and a new trial on the issue of damages
must be granted.

We further note that the Supreme Court erred in permitting the
plaintiff's treating neurologist to testify as to the contents of a
report interpreting magnetic resonance imaging (hereinafter MRI) films
of the plaintiff's cervical spine, which was prepared by a radiologist
who did not testify at trial (see Wagman v Bradshaw, 292 AD2d 84;
see also Clevenger v Mitnick, 38 AD3d 586,
587; Jemmott v Lazofsky, 5 AD3d 558, 560; Beresford
v Waheed,
302 AD2d 342, 343; DeLuca v Ding Ju Liu, 297 AD2d
307). This testimony was improperly admitted because the MRI films were
not in evidence, the plaintiff failed to elicit sufficient proof to
establish that the MRI report interpreting the films was reliable, and
the defendants had no opportunity to cross-examine the radiologist who
prepared the report
(see Wagman v Bradshaw, 292 AD2d at 89-90).

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