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Rita Baytsayeva v. Maksim Shapiro

January 20, 2012


The opinion of the court was delivered by: Dearie, District Judge.


Plaintiff, a 50-year-old former medical assistant born in the former U.S.S.R.*fn1 and now a U.S. Citizen, alleges that defendants negligently struck her with their car while she was crossing the street on foot, causing severe and continuing physical and emotional injuries. Defendants move for summary judgment, arguing that plaintiff is barred from recovery in tort because she has not sustained a "serious injury" pursuant to New York Insurance Law § 5102(d). Because plaintiff has plainly met her burden of establishing a prima facie case of "serious injury," the defendants' motion for summary judgment is DENIED.


A. The Accident

On January 4, 2008, while crossing the street at the intersection of Bath Avenue and 23rd Street in Brooklyn, New York, plaintiff was struck by a car allegedly driven and/or owned by defendants. ECF Docket # 34 at 21-25, Complaint ("Compl.") ¶¶ 1, 4-9, 11-12. At the time of the accident, plaintiff was employed by Omega Health Services as a "home attendant" and when struck, was assisting an elderly client cross the street. ECF Docket # 32, Plaintiff's Exhibit ("Pl. Exh.") K., Affidavit of Plaintiff ("Pl. Aff.") ¶ 1; see ECF Docket # 34 at 45-50, Defense Exhibit ("Def. Exh.") D., Plaintiff's Response to Interrogatories ("Pl. Inter.") ¶ 8. The circumstances surrounding and immediately subsequent to impact are not entirely clear. According to plaintiff, "[t]he car struck my right side, I fell back on the pavement hitting my head. I was thrown back and down to the black ground. I was trying to get up, I couldn't I fell back down again. I passed out while on the ground." Pl. Aff. ¶ 2. In her deposition, plaintiff was unsure whether she lost consciousness. ECF Docket # 34 at 63-81, Deposition of Plaintiff, 3/22/10 ("Pl. Dep.") at 55 ("Q. And did you lose consciousness at any point? A. I wasn't sure. I don't know. . . . I assuming I was kind of unconscious."). In any event, plaintiff remained laying on the street until an ambulance arrived, at which point, she was placed on a stretcher, given a neck brace and ice, and transported to Lutheran Medical Center ("Lutheran"). Id. at 70-73.

Upon arrival at Lutheran, the triage physician noted that plaintiff "[p]resents with Head Trauma Occipital B . . .. The Onset is acute. The symptoms are Mild, achey [sic]. . . . [She is] fully immobilized . . . [and] also c/o [(complains of)] neck pain . . .." ECF Docket # 34 at 51-62, Def. Exh. E., Lutheran Medical Report ("Luth. Rep.") at 3. The Lutheran Report notes that plaintiff had no relevant past medical history and prior to the accident was not taking any medications. Id. at 3, 8.*fn2 A physical examination revealed full range of motion ("ROM") of plaintiff's extremities, back and neck; a CT scan of the spine revealed "[n]o evidence of acute fracture or dislocation;" and a CT scan of the head revealed "[s]light soft tissue swelling at left parietal scalp." Id. at 3, 4, 10. Plaintiff was diagnosed with "head trauma" and "occipital hematoma" and prescribed medications for inflammation, pain, and severe nausea. Id. at 4, 6.

After determining that there were "[n]o Sx(s) [(symptoms)] or objective findings that are life or limb threatening[,]" plaintiff was released from the emergency department with instructions to contact a physician for a follow up appointment within two days and "return [to the hospital] immed [(immediately)] if sxs [(symptoms)] worsen . . .." Id. at 3-4, 6. Plaintiff was later picked up by her daughter and left the hospital walking "with steady gait." Id. at 7.

B. Doctor Miller and First Year of Treatment (January 2008 -- January 2009)

Five days later, on January 9, 2008, plaintiff visited Doctor Jean D. Miller, M.D. ("Dr. Miller")*fn3 "seeking medical attention secondary to unremitting pain, which started the day, the accident [sic]" with numerous complaints, both psychological and physical. ECF Docket # 33-1, Pl Exh. M., Miller Comprehensive Medical Initial Report at 1.*fn4 After reviewing plaintiff's hospital records, observing that plaintiff had no significant past surgical or trauma history, and listening to plaintiff's complaints, Dr. Miller conducted a "thorough physical examination," including, but not limited to ROM testing of the cervical spine/neck, thoracic spine, and lumbar spine. Id. at 2-3. With regard to plaintiff's cervical spine/neck, Dr. Miller found severe loss of ROM of between 43% to 88%, central neck pain, and "significant tenderness," "severe spasm," and "[t]ender points" throughout. Id. at 2. Although there was full ROM in plaintiff's thoracic and lumbar spine, the doctor noted pain in both areas, as well as "significant tenderness," "severe spasm," and "[t]ender points" throughout. Id. at 3. Based on the foregoing, Dr. Miller made the following diagnostic impression:

Headache, post concussion syndrome, head injury, TMJ syndrome, vertigo/dizziness, anxiety, nervous tension, acute reaction to stress, insomnia, post-traumatic cervical sprain/strain, R/O cervical intervertebral disc injury, cervical & brachial radiculitis, cervical myalgia/myofascitis, R/O internal derangement of R/L shoulder, sprain/strain of R/L shoulder and upper arm, sprain and strain of thoracic spine, contusion of chest wall R/L, lumbar sprain/strain, R/O lumbosacral radiculopathy, R/O lumbosacral intervertebral disc injury, lumbar myalgia/myofascitis.

Id. at 4. The doctor prescribed Elavil for depression and Esgic for headaches, ordered an x-ray of the right and left temperomandibular joint,*fn5 and recommended supervised physical therapy multiple times per week. Id. at 4-5. The doctor further ordered that "because [of] her injuries no heavy work should be performed at this time." Id. at 4.

Plaintiff began physical therapy right away and according to detailed daily physical therapy progress notes taken by Dr. Miller-ostensibly based off of first hand reporting by plaintiff's physical therapist-plaintiff attended physical therapy sessions two and three times per week between January 10, 2008 and March 10, 2008, the first two months post-accident, and one and three times per week from March 10, 2008 through May 19, 2008. ECF Docket # 33-1, Pl. Exh. M., Miller Daily Physical Therapy Progress Notes. Physical therapy included thermotherapy, electrotherapy, and massage therapy to the lumbosacral spine, left and right shoulder, thoracic spine, and cervical spine. Id.

Nevertheless, plaintiff's symptoms did not improve. In the report from plaintiff's follow-up visit on February 13, 2008, for example, Dr. Miller indicated that plaintiff's "symptoms have gotten worse since the previous examination." Pl. Exh. M., Miller 2/13/2008 Follow-Up Visit Report at 1. Though testing revealed that the cervical spine's ROM had slightly improved (now indicating loss of ROM between 10-50% across all motion categories), Dr. Miller reported 33% loss of ROM of extension and left lateral flexion in plaintiff's lumbar spine, where no loss had previously existed. Id. at 1-2. Dr. Miller noted pain throughout plaintiff's body, that plaintiff reported experiencing headaches three times per day, and was not sleeping well. Id. Although the primary diagnoses remained the same, Dr. Miller ordered an MRI and added Neurontin to the list of plaintiff's medications. Id. at 5.

Between March 19, 2008 and July 23, 2008, Dr. Miller examined plaintiff once a month. See Pl. Exh. M., Miller 3/19/2008, 4/21/2008, 5/7/2008, 6/11/2008, 7/23/2008 Follow-Up Visit Reports. *fn6 At each visit, plaintiff complained of daily headaches, severe pain primarily in her neck and lower back, and sleeping issues, as well as dizziness and anxiety. See id. According to plaintiff, the symptoms affected her ability to carry out daily tasks.*fn7 During this period, loss of ROM in plaintiff's cervical spine/neck ranged from a low of 0% across all motion categories without pain to and high of 50% in left and right lateral flexion with pain. Id. Loss of ROM in plaintiff's lumbar spine ranged from 33% in right and left rotation to between 33% and 66% in extension, all with pain.*fn8 Id. The MRI of plaintiff's cervical spine-ordered by Dr. Miller in January-was performed on April 2, 2008 and revealed that "small diffuse annular bulges and/or osteophytic ridges are seen at C5-6 [and] C6-7 without spinal cord compression or foraminal encroachment." ECF Docket # 34-2 at 40-49, Def. Exh. K. ("MRI Reports") at 8.

During Dr. Miller's treatment, which transpired during at least the first ten months following the accident, plaintiff did not work a single day and as described more fully, infra Part I.E., has not worked a day since. See Pl. Aff. ¶¶ 4-7. Plaintiff filed for, was awarded, and began receiving workers' compensation benefits soon after the accident, which continued up to at least January 2011. See Pl. Aff. ¶ 5; ECF Docket # 30-7, Pl. Exh. G., Kuhn Workers' Compensation Forms, 1/6/2011. Dr. Miller filed sworn workers' compensation reports, eight of which-ranging from January 10, 2008 to January 9, 2009-are included in the record, all indicating that there was no "history or evidence of pre-existing injury, disease or physical impairment;" that plaintiff is "disabled from regular duties or work;" that plaintiff's disability is "total;" and that plaintiff "can[not] . . . do any type of work." Pl. Exh. M., Miller Workers' Compensation Forms, 1/10/2008-1/9/2009 (emphasis added).*fn9

Although plaintiff did not-and could not, according to Dr. Miller-return to work, plaintiff did continue to attend morning and evening courses and completed the Spring 2008 semester at the Long Island University Hospital where plaintiff was in the middle of completing a Bachelor of Arts in nursing.*fn10 ECF Docket # 24, Defendants' Memorandum of Law in Support of their Motion for Summary Judgment ("Def. Mem.") at 2; ECF Docket # 30, Plaintiff's Memorandum of Law in Opposition to Summary Judgment ("Opp. Mem.") ¶ 7. She withdrew, however, after the semester because of her injuries,*fn11 and at least as of her March 2011 deposition, had not attended school since.*fn12

C. Dr. Neystat and Treatment (January 2009 -- November 2009)

In January 2009, plaintiff stopped seeing Dr. Miller and began to see Doctor Marina Neystat, M.D. ("Dr. Neystat"), a Diplomat of the American Board of Neurology and Psychiatry. See ECF Docket # 30-4, Pl. Exh. C., Neystat Affidavit at 1. According to plaintiff, Dr. Miller did not provide treatment for what plaintiff feared were potentially far more extensive neurological problems. See Pl. Dep. at 96-97. In addition, her pain was getting far worse and was transferring to different parts of her body: "I didn't feel this relief. It was even worse. My spine feels like electrocuting me, paralyzing me. All kind of every different type of pain." Id. at 97.

At a January 19, 2009 initial neurological and physical examination with Dr. Neystat plaintiff complained of "ssevere [sic] neck pain, right leg pain 8/10 burning as well as severe low back pain . . . positional vertigo . . . memory loss, confusion, inability to sleep . . . [and] up to 5 episodes a day of confusion and disorientation." ECF Docket # 31, Pl. Exh. H., Neystat Neurology Initial, 1/19/2009 at 1.*fn13 Dr. Neystat noted that plaintiff's "[p]ast medical history is unremarkable" and that plaintiff had not had any "previous surgeries." Id. The neurological exam-though the specific test employed was unspecified-revealed an "anxious and depressed" mood, but no "abnormal or psychotic thoughts." Id. at 2. A "musculoskeletal examination" revealed "cervical and lumbar right and left paraspinal tenderness and muscle spasms." Id. at 3. A ROM test revealed that the thorasic spine and neck ROMs were within normal limits, but that the "[l]umbar sacral spine . . . shows decreased flexion, decreased extension, decreased R Tilt, decreased R Rotation." Id. Although Dr. Neystat's ROM testing included no numeric percentages, her office's physical therapist conducted ROM and "Manual Muscle" Testing, which revealed losses of ROM in plaintiff's neck across all motion categories of between 21% to 33% and losses of ROM in plaintiff's trunk across all motion categories of between 43% and 66%. ECF Docket # 31, Pl. Exh. H., 1/20/2009 Physical Therapy Evaluation at 2. Dr. Neystat concluded that plaintiff was "totally disabled," diagnosed "[p]ostconcussion syndrome [a]djustment disorder with depression [and] . . . [c]ervical and lumbar radiculopathy." Pl. Exh. H., Neystat Neurology Initial, 1/19/2009 at 3. Dr. Neystat prescribed Lexapro for depression and anxiety, recommended that plaintiff begin physical therapy with her office's physical therapist, and ordered an "EEG and EMG and nerve conduction studies lower extremeties [sic]," as well as an MRI of the brain and lumbar spine. Id.

The "EMG needle evaluation of the Right MedGastroc and the Right LatGastroc . . . reveal[ed] evidence of lumbar L5-S1 radiculopathy on the right." ECF Docket # 34-2, Def. Exh. L. at 86, Neystat Test Results. The MRI of the brain, conducted on February 12, 2009, found that "Nonspecific mild white matter signal abnormalities," MRI Reports at 1, but "no evidence of disease," Pl. Exh. H., Neystat 4/2/2009 Follow-Up Visit Report at 1, and the MRI of the lumbar spine, conducted on March 16, 2009, showed that plaintiff had a "left paracentral herniated disk with mild focal narrowing of the thecal sac" at L1/2 "with mild spinal canal stenosis."*fn14 MRI Reports at 4.

The record contains three more reports of follow-up visits with Dr. Neystat through September 10, 2009, during which the doctor conducted the same physical and neurological testing as described above and found no reason to change her diagnoses. See Pl. Exh. H., Neystat 4/2/2009, 7/9/2009, 9/10/2009 Follow-Up Visit Reports. Follow-up ROM tests conducted by Dr. Neystat's physical therapist on March 5, 2009 and September 10, 2009 demonstrated continued, significant losses of ROM.*fn15 See ECF Docket # 34-2, Def. Exh L. at 65-67, 3/5/2009 Physical Therapy Follow-Up Report; Pl. Exh. E., 9/10/2009 Physical Therapy Follow-Up Report. All of Dr. Neystat's reports reflect that plaintiff was experiencing intense pain (i.e. 6 through 9 on a scale of 10), in her neck, legs, and back, severe headaches, an inability to sleep, memory loss, confusion, and disorientation. See Pl. Exh. H., Neystat 4/2/2009, 7/9/2009, 9/10/2009 Follow-Up Visit Reports. Between January 21, 2009 and November 2, 2009, Dr. Neystat filed workers' compensation forms, all of which state that there is "no evidence of pre-existing condition;" that plaintiff is "disabled from regular duties or work;" that plaintiff's disability is "total;" that plaintiff "can[not] do any type of work;" that the "injury result[s] in permanent restriction, total or partial loss of function of a part or member, or permanent facial, head, or neck disfigurement;" and that the January 4, 2008 accident was "the competent producing cause of the injury . . . sustained." ECF Docket # 30-5 & 31, Pl. Exhs. E., H., Neystat Workers Compensation Forms 1/21/09-11/2/2009.

D. Dr. Kuhn and Treatment (June 2009 to Present)

While seeing Dr. Neystat, plaintiff also began to see Doctor Daniel Kuhn, M.D. ("Dr. Kuhn"), a New York State certified psychiatrist and Diplomat of the American Board of Neurology. ECF Docket # 30, Pl. Exh. A. at 1-4, Kuhn Affidavit. Dr. Kuhn originally saw plaintiff on June 3, 2009 for the first of three 75-minute intake examinations, which formed the basis for an "Initial Neuropsychiatric Evaluation Report," dated July 13, 2009.*fn16 See Pl. Exh. A., Kuhn Initial Neuropsychiatric at 1. During the three sessions, in addition to interviewing plaintiff and reviewing plaintiff's medical history, records, and test results, Dr. Kuhn performed a Memory Test, Digit Span Tests, Beck Depression Inventory ("BDI"), and the Conner's Continuous Performance Test II ("CPT II"). Id. at 4-5. The Memory Test revealed "impaired short term memory;" plaintiff failed the Digits Span Tests; plaintiff's score of 38 on the BDI indicated a "severe degree of depression[, which] justifies psychotherapy with medication;" and the CPT II indicated "a severe attention disorder, with a pattern similar to that seen in neurological conditions." Id. Dr. Kuhn used the Diagnostic and Statistical Manual of Mental Disorders ("DSM") "multi-axial" system to diagnose plaintiff as totally disabled.*fn17 See id. at 6. Dr. Kuhn diagnosed plaintiff with:

Axis I -- Depressive Disorder, secondary to a traumatic Brain Injury and chronic physical disability. Attention, memory and cognitive disorder, NOS [(not otherwise specified)], Post Traumatic Stress Disorder [("PTSD")].

Axis II -- Personality changes NOS [(not otherwise specified)]

Axis III -- Post Concussion Encephalopathy, Status post Traumatic Brain Injury with a loss of Consciousness, Lumbar disc ...

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