Plaintiff is 25 years old, married, with two young daughters. She was employed as a secretary at a Hospital. On 29 March 2006, she was approximately three months pregnant, with twins, and was on her way to the Hospital, not to work, but to see a doctor (“the doctor”) whom she had seen three times before. On her way, plaintiff was a passenger in a vehicle owned and operated by defendant-one when it collided with a vehicle owned by defendant-two and operated by defendant-three. After the collision, she was taken to the Hospital where she works by an ambulance.
Allegedly, plaintiff experienced some contractions at the scene of the accident and was contracting at the hospital. She was released that day, after the contractions ceased. According to a report by the doctor, incorporated with several others and adopted as accurate and true, on the day of the auto accident, plaintiff was determined to be unable to work and not expected to be able to perform usual work until 18 of May. In another report, the doctor asserted that plaintiff was totally disabled or unable to work from 29 of March to 17 May 2006. On 7 of June, she was again determined to be unable to work because of preterm labor twin gestation. Under restrictions, the doctor wrote “Bedrest Complete disability”. It was estimated that she would deliver on 14 of October.
On 9 or 10 of July, however, plaintiff returned to the Hospital. She was admitted and remained there until after the delivery of her twin daughters by emergency caesarian section on 31 of July. The doctor’ reports the diagnosis as “Preterm labor, Twin gestation.” The twins remained in the hospital in Manhattan until 10 and 14 of September, respectively.
Subsequently, plaintiff filed a complaint and alleges, among other injuries, premature labor. With her motion, she seeks a determination, that she sustained a serious injury within the meaning of Insurance Law as a result of the accident. Plaintiff contends that she sustained a medically determined injury or impairment of a non-permanent nature which prevented her from performing all of the material acts which constituted her usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment; that she was confined to bed for a period of approximately 15 weeks and was incapacitated from employment for 4 months.
Defendants oppose plaintiff’s motion, and each move for dismissal of the complaint on the ground that plaintiff did not sustain a serious injury as a result of the accident.
The doctor states in his affirmation, presented before the court, that due to the injuries sustained in the car accident, plaintiff experienced pregnancy complications, thus, bed rest was prescribed for the rest of her pregnancy for approximately six months.
Although not common, plaintiffs have been granted summary judgment determination of the serious injury issue. At least one court has granted a plaintiff’s threshold motion under the 90/180 days disability category. If the plaintiff submits admissible evidence demonstrating that she suffered a serious injury, the burden shifts to the defendant to submit competent medical evidence demonstrating the existence of a triable issue of fact.
Here, The Long Island plaintiff submitted competent medical evidence that she was unable to perform substantially all of her daily activities for not less than 90 of the first 180 days subsequent to the subject accident. She also submitted sufficient objective medical evidence relating her inability to work due to the injuries allegedly sustained in the subject accident. Whether characterized as pregnancy complications or preterm labor, the doctor provides sufficient objective evidence to support the determination of disability and to connect that disability to the accident. Contrary to defendants’ contention, it was not necessary, in the first instance, that the doctor describe the precise physiological mechanism of causation or the medical relationship between the diagnosed condition and her determination of disability
If there is a question about the sufficiency of plaintiff’s prima facie showing, it would be whether she sustained a medically determined injury or impairment for purposes of the 90/180 days disability category of serious injury. Do pregnancy complications in the nature of preterm labor constitute an injury or impairment if they are not determined to hinder the plaintiff’s ability to physically perform the tasks of her work, in this case as a secretary, but present a risk of harm to the plaintiff, or her fetus, or both, if the plaintiff continues to work?
In 1984, the No-Fault Law was amended to add loss of a fetus to the list of serious injury categories. Even after the amendment, however, because of limitations on a mother’s claim for emotional distress as a result of a stillbirth, a defendant could contend that, although the loss of a fetus would constitute a serious injury, the plaintiff was still required to prove a compensable injury, i.e., an independent physical injury, in order to recover. Although the contention was properly rejected, the limitations on the mother’s recovery were not definitively removed until the Court of Appeals held in the case of Broadnax that even in the absence of an independent injury, medical malpractice resulting in miscarriage or stillbirth should be construed as a violation of a duty of care to the expectant mother, entitling her to damages for emotional distress.
In the instant case, plaintiff is not, at least on this motion, claiming a medically documented emotional trauma as constituting the medically determined injury or impairment that would support a finding of 90/180 days disability. She testified at her deposition that she did not see a psychiatrist, psychologist, or therapist after the accident. Plaintiff does allege that she suffered depression, anxiety, fear, and emotional upset and shock, but neither in her Affidavit nor deposition testimony is a connection made to the pregnancy complications. Most importantly for this motion, the doctor makes no specific reference to emotional harm and a connection to plaintiff’s preterm labor. The question then is whether preterm labor constitutes an injury for purposes of the 90/180 days disability category of serious injury.
The statute does not define injury and the Court has not found in the voluminous case laws on serious injury any attempt to define injury judicially. The 1984 amendment to the statute, adding loss of a fetus as a category of serious injury, could be argued as suggesting a legislative intent that nothing less will suffice. Or it could be seen as suggesting a legislative purpose to protect pregnancy. The intent of the Legislature relating to Insurance Law was to include pregnancies of any duration within the meaning of the phrase loss of fetus. The herein Court adopts the latter suggestion.
In the report submitted, the doctor included threatened abortion among her objective findings. Since loss of a fetus is a serious injury, the threatened loss of a fetus is an injury as well. When medically determined and related to a motor vehicle collision, and requiring complete bed rest for the statutorily-prescribed period to ensure the continuation of the pregnancy, such a threat to the continuation of the pregnancy qualifies as a serious injury under the 90/180 days disability category.
The Court concludes that plaintiff has sufficiently established prima facie that she sustained a serious personal injury as a result of the collision.
In opposition, defendants submit the affirmations of their respective counsel; defendants add a report of an ob/gyn who examined plaintiff on 29 January 2009; a report of another ob/gyn who examined plaintiff on 7 May 2008; and a document apparently printed from the website of the National Organization of Rare Disorders. Counsel’s affirmations and the attached document address a condition called “hyperemesis gravidarum,” which is noted in one of the doctor’s reports. Another of her reports notes only “hyperemesis.”
Here, counsel purport to describe the condition and its relevance to this motion, but neither attorney is shown to be competent to offer medical evidence and the attached document is clearly inadmissible hearsay. Most importantly, neither the reports of the two ob/gyn doctors make any mention of the condition. Moreover, the report of the first ob/gyn is unsworn and has not been affirmed, and, therefore, without any probative value. No excuse, acceptable or otherwise, is proffered for the failure to provide evidence in admissible form, thus, such report cannot raise a triable issue of fact. On the other hand, the report of the other or second ob/gyn doctor is affirmed in accordance with the rules. The report contains six substantive paragraphs. In four paragraphs, the second ob/gyn doctor describes his review of the records of the Hospital and the doctor, and his findings on examination of plaintiff. “The general physical examination was normal. Pelvic examination revealed a normal vagina, clear normal cervix and normal pelvic viscera. It is in his opinion that the premature labor and the emergency caesarian section bears no relation to the accident; that there was no anatomic injury or elapsed between the motor vehicular accident and the onset of premature labor; that premature labor and delivery is due to the increased distention of the uterus cavity which accompanies multi-fetal pregnancy. The second ob/gyn also cites a professional journal article which states that, generally, twins deliver early. The journal article is not provided, and it would, in any event, be inadmissible hearsay. Assuming that the article served as a basis for the opinion as to lack of causation in this case, rather than merely an interesting statement of general fact, there is no showing that the second ob/gyn could rely on the article in forming his opinion. There are additional difficulties with the second ob/gyn’s report. It is not at all clear that the second ob/gyn is even addressing the preterm labor experienced by plaintiff at three-month gestation, soon after the accident and during the following months, rather than the premature delivery on 31 of July. It is, therefore, only arguably relevant to the condition that has been found to be a medically determined injury for purposes of the serious injury threshold. The Verified Bill of Particulars alleges premature labor and not premature birth.
Plaintiff cannot, of course, recover if her pregnancy and not any accident-producing injury was the medical reason for any limitation on her activities after the accident. But the second ob/gyn’s report does not raise a triable issue of fact that the doctor’s direction to plaintiff that she does not work and rest in bed, and the condition that prompted the direction, were not sufficiently causally related to the subject accident. The second ob/gyn doctor failed to offer any facts or opinion showing any other possible origin or cause for plaintiff’s limitations other than the accident; his opinion as to lack of causation is purely speculative.
In conclusion, plaintiff has established prima facie that she sustained a serious injury under the 90/180 days disability category and defendants have failed to raise a triable issue; plaintiff’s motion is granted and need not, at trial, establish serious injury as defined in Insurance Law as a condition to damages for the non-economic loss; defendants’ respective motions are denied as moot.
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