Docket No.: A-4305-18
Decided March 22, 2021
Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.
In a recent unpublished decision, the Appellate Division reviewed a jury’s dismissal of plaintiff’s complaint for failure to demonstrate a permanent injury even though her doctor recommended surgery.
In Rana, Plaintiff was involved in an automobile accident with another vehicle in March 2016. Because the other car left the accident scene, plaintiff pursued a claim for uninsured motorist benefits against Allstate. She also applied for personal injury benefits (PIP) through Allstate.
Several weeks after the accident, plaintiff sought care from a chiropractor. She was experiencing pain in her neck and low back as well as her shoulders. After several months of treatment, the chiropractor referred plaintiff to an orthopedic surgeon, who sent plaintiff for MRI scans and an EMG, and recommended physical therapy. Plaintiff testified she completed her treatment in October 2016.
In June 2018, plaintiff consulted with Dr. Sheref Hassan for a second opinion regarding her continuing pain in her neck and shoulders. In his subsequent report, he diagnosed plaintiff with bilateral partial rotator cuff tears and rotator cuff tendinosis and bursitis. Because the condition was worse in her left shoulder, the doctor recommended left shoulder arthroscopy with a potential need for a similar surgery on the right shoulder. The doctor opined: “[T]he estimated cost of such future treatments including the planned arthroscopic surgery, anesthesia, medications, injections, physical therapy and facility fees is approximately $100,000 per shoulder.”
Prior to trial, defense counsel objected to the doctor’s testimony as to the description of the surgery and the estimated surgery cost. The trial judge agreed, ruling that the recommendation of surgery is fine, but because plaintiff had not undergone the surgery, he cannot testify as to the details of the surgery or the cost, in light of plaintiff failing to plead economic damages.
Plaintiff was also involved in a 2010 motor vehicle accident in which she sustained injury and sought medical treatment. Plaintiff requested the court prohibit mentioning this accident to the jury, however the judge ruled that the defense could refer to the accident because their medical expert had relied and included the 2010 records in the report.
The jury’s verdict was in favor of Allstate, dismissing plaintiff’s complaint for failing to prove permanent injury. Plaintiff appealed, arguing that judge had erred in denying her doctor from testifying as to the details of the proposed surgery and the costs. In addition, she argued that the defense should not have been allowed to mention the 2010 accident. The Appellate Division affirmed, ruling that the judge appropriately disallowed the doctor from mentioning details as to the surgery and costs simply because they were not relevant as it had not occurred and plaintiff had not plead for economic damages. In addition, defense was entitled to mention the 2010 accident as the expert relied on the records.
This case is important for all personal injury plaintiffs. Insurance is the best way, and sometimes the only way, to recover monetary damages for personal injury. For motor vehicle accidents, in order to recoup damages, the plaintiff must demonstrate a permanent injury to recover damages. Without proving a permanent injury to meet the verbal threshold, plaintiff’s must utilize their own insurance for damages and cannot seek damages from the other driver.
If you or someone you know has been injured in a slip and fall, motor vehicle accident, truck crash, wrongful death, or other premises related injury, you need to make sure you contact a personal injury attorney with experience today. Failing to consider these issues could result in your case be dismissed permanently. Do not hesitate to contact Hark & Hark today to discuss your personal injury.
For personal injury matters, you pay nothing upfront, and our fee is paid as a percentage of your recovery. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic, Burlington, Camden, Cape May, Cumberland, Essex, Gloucester, Mercer, Ocean, and Salem counties. We represent clients in all towns in New Jersey, including Newark, Jersey City, Paterson, Elizabeth, Edison, Woodbridge, Lakewood, Toms River, Hamilton, Trenton, Clifton, Camden, Brick, Cherry Hill, Passaic, Middletown, Union City, Old Bridge, Gloucester Township, East Orange, Bayonne, Franklin Township, North Bergen, Vineland, and Union.