Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.
Issue: Why did the judge dismissed my case and not allow it to go to a jury trial.
This is a very straightforward New Jersey Law Division appeal from a dismissal of a lawsuit because plaintiff did not provide competent medical evidence of an objective permanent injury pursuant to New Jersey’s verbal threshold statute. This case was not allowed to get to a jury because of:
- the medical proofs and
- the attorney’s mistakes.
In this case plaintiff was injured when he was riding his bicycle and was struck by a motor vehicle. His injuries were limited to displaced fractures of four ribs. Plaintiff’s counsel argued the treating doctor/expert report did provided the court with adequate basis of objective findings of permanent injury. The court rejected this argument finding the initial doctor’s affidavit did not reflect scarring on the lungs and decreased lung function. The court also indicated CT scan and x-rays taken make absolutely no mention of any callous or scarring reflecting no permanent injury. The court found the plaintiff did not pierce the verbal threshold at the time of the Motion for Summary Judgment.
After the court dismissed the case plaintiff’s attorney filed a motion for reconsideration asking the summary judgment to be vacated. At that time the plaintiff’s attorney submitted a new affidavit by second doctor reviewing the same treating records. At that time the trial court denied the motion finding the plaintiff was not allowed to produce a new expert report after the discovery window had closed, reviewing the exact same evidence provided previously, and asking the court to consider his decision to dismiss the case at that time.
The medical issues in this case or whether a “displaced fracture” constitutes a permanent injury within a reasonable degree of medical certainty. The court outlines the status of the current law based on New Jersey’s revised verbal threshold statute. The court reiterated the long-standing requirement that a plaintiff prove ‘permanency’ based on objective clinical evidence. In this case, during the discovery. Plaintiff did not obtain a physician’s opinion that his injuries were based upon objective critical medical evidence. I personally believe plaintiff’s new expert’s comments alleging “callous scarring” on plaintiff’s lungs caused by multiple rib fractures could be considered a “net opinion” because it was not based on the objective medical testing used for his treatment; the CT scans or another object of diagnostic test.
What does this mean to you and an injured party attempting to make a claim?
The key to this decision is very simple.
- Any plaintiff/injured party must suffer a permanent injury based upon competent credible objective clinical evidence. Clinical objective evidence in New Jersey comes from CT scans, MRIs, x-rays, EMGs, and other test which cannot be affected by the subjective comments of the patient. In addition:
- These test must be read by qualified medical experts, orthopedist, neurologist, radiologist, and relied upon by doctors with no less than five years of clinical experience reading these reports and using them in there every day medical practice of treating patients.
Finally, you as a plaintiff, injured party, must communicate with your attorney on a regular and ongoing basis so he or she is aware of the status of your treatment and the status of your recovery. In addition, if you are not adequately treating, or not being referred to the appropriate experts and or specialist your case may be at risk of being dismissed. Please understand I am not recommending that you obtain these tests and subject yourself to any unnecessary improper or manufactured medical treatment and or testing. If you were injured and treated with the appropriate experts in their fields of medicine they will be the ones making the proper determination of your treatment.
If you are not injured or it is not important to you to treat, then it will not be important for the doctor to make the appropriate referrals. Remember if your medical recovery and treatment needs are not important to you, your condition and recovery will not be important to anyone else!
Jeffrey S. Hark, Esq.