After two years why was my personal injury case against the defendant dismissed even though I am still in a lot of pain and discomfort and my prior injuries were made substantially worse?
Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.
This is a straightforward personal injury action against a school board for injuries suffered by a employee of a subcontractor who came to school property to perform work. The employee was injured when school property fell on him while setting up a Christmas concert at an elementary school. In New Jersey the Tort Claims Act provides immunity to public entities. In order to be successful against any public entity you have to fall within one of the exceptions of the TCA and in personal injury actions, among other hurdles a plaintiff must overcome, s/he must show a permanent injury and relationship between the permanent injury and the alleged negligence of the public entity.
In this case the court dismiss plaintiff’s claim because, after reviewing his medical records, the trial judge ruled the plaintiff could not sustain the summary judgment burden that there was a question of material fact that he suffered a permanent injury provable by objective medical evidence. The court ruled the plaintiff’s doctor’s opinions were based solely on the plaintiff’s subjective complaints of pain, and no objective medical tests existed which revealed any permanent injury or the exacerbation of prior condition made worse from the current traumatic event. As a result, the court ruled the plaintiff was not able, as a matter of law, to sustain his burden of proof against the public entity at trial so the defendant’s motion for summary judgment was appropriate. The appellate division affirmed the trial court’s decision concluding that no rational trier of fact could conclude plaintiff suffered a permanent injury.
As I have said many times before and other blogs. Objective medical testing includes x-rays, MRIs, CAT scans, EMGs and operative reports post-surgery. In addition, if somebody is claiming a aggravation of a pre-existing injury there has to be a comparison between old objective tests a new objective test to reveal a increase in the permanent injury. If your attorney is not addressing these issues and or your doctors are not communicating to you the steps that need to take place to obtain these objective test contact our office and we will try to help you so your case is not dismissed, in other words, your injuries do not support additional testing under the current care paths of treatment, or you have not suffered any such exacerbation.
Jeffrey S. Hark, Esq.