Permanent Injury from a Motor Vehicle Accident and Attorney Malpractice
Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.
In this case the plaintiff was injured in a motor vehicle crash. She went to a physiatrist who prescribe MRIs. She treated with the physiatrist for approximately two years. The MRIs and EMG revealed a bulging disc in the cervical and lumbar spine as well as bilateral lumbar ridiculopathy in the neck and low back, however, the doctor when he wrote his report did not provide an opinion that the diagnosis were “permanent” and the injuries were causally related to the motor vehicle crash. Permanency is required under the verbal threshold statute and the causal relationship is a basic tenants of tort law which requires plaintiffs to relate their injuries to the motor vehicle crash for which she is bringing a claim by way of credible medical evidence. Failure to address both of these issues would make the claim fatal and subject to dismissal at summary judgment.
This is exactly what happened in this UIM claim which the plaintiff filed in conjunction with her law suit against the tortfeasor and her own insurance company for an excess possible verdict once the discovery window closed in April 2014. Several procedural missteps took place in this case which were fatal to the claim. They are; a) after the discovery end date the plaintiffs’ attorney served a new report alleging permanent disability and relating it to the October 2011 motor vehicle crash, b) the plaintiff’s attorney never filed a “verbal threshold certification”, c) the plaintiff’s attorney did not certify, pursuant to the rules of court, that the expert report could not have been provided 20 days prior to the close discovery window. As a result the trial judge exercised his discretion and granted defendant Allstate’s motion for summary judgment dismissing the case against it. The court found the procedural missteps of the plaintiff’s attorney were the reason the case was to be dismissed against Allstate.
It is unfortunate that the case progressed this way against the UIM first party insurance coverage company. Plaintiff was not served well by her attorney’s of lack of hands-on effort on the case. Had the attorney reviewed the file prior to filing suit and prior to the discovery end date s/he would and should have reached out to the treating doctors, obtained the proper certification, requested an extension if necessary, and obtained a adequate and extensive report. If the doctor was unable to provide that information of causal relationship then no suit should have been filed. This appellate panel merely affirmed the trial judges well reasoned foundation to preclude the late submissions as part of the trial judges power and proper exercise of his discretion. In fact, the appellate panel found the plaintiffs attorney did not provide any basis to excuse or demonstrate the lack of due diligence in obtaining the proper report and the ability to supplement the record within the proper time.
The full case can be read here: Llanes v Allstate
Jeffrey S. Hark, Esq.