DORIS M. KORNSPAN v. DUSHYANT S. SHAH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1275-07T11275-07T1

DORIS M. KORNSPAN and MELVIN

S. KORNSPAN, her husband,

Plaintiffs-Appellants,

v.

DUSHYANT S. SHAH,

Defendant-Respondent,

and

BRIAN J. DEUIARTE and CHASE

MANHATTAN AUTO FINANCE CORPORATION,

Defendants.

_______________________________________

 

Submitted July 15, 2008 - Decided

Before Judges C.S. Fisher and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Union County,

Docket No. L-4385-05.

Budin, Greenman & Greenman, attorneys

for appellants (Arnold I. Budin, of counsel

and on the brief).

Gelfand, Barone & Bava, attorneys for

respondent (Donald M. Barone, on the brief).

PER CURIAM

The trial court awarded defendant Dushyant S. Shah summary judgment and dismissed plaintiff Doris M. Kornspan's automobile negligence complaint. Plaintiff's lawsuit was subject to limitations on recovery for noneconomic loss pursuant to N.J.S.A. 39:6A-8a, a provision of the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35.

The judge found that plaintiff had a magnetic resonance imaging (MRI) scan and knee surgery prior to the accident and pain and swelling of her knee after the accident. The judge concluded that there was "no objective medical proof to support" the doctor's opinion that plaintiff "suffered a permanent injury by aggravation." Because the trial court overlooked objective medical evidence of plaintiff's post-accident permanent injury, we reverse and remand for trial.

Prior to this accident, plaintiff had difficulty with her right knee. In July 2003, her doctor referred her to Dr. Warshauer of Associated Orthopaedics. He took x-rays that showed "moderate tricompartmental degenerative changes." She also had an MRI. The MRI showed "a bucket handle tear of the medial meniscus, tear of the posterior horn of the lateral meniscus, [and a] partial tear of the ACL." On December 30, 2003, after a course of more conservative treatment, plaintiff underwent arthroscopy. Dr. Warshauer performed the procedure, viewed the "arthroscopic pictures" and found "Grade IV chondromalacia of the medial joint, [and] bone on bone arthritis." He concluded that she would "likely need a total knee arthroplasty in the future." By February 4, 2004, Warshauer found that plaintiff was "doing very well in physical therapy," had "[m]uch less pain than prior to surgery," "0-120 [degrees] of flexion," and "a little bit of swelling in her knee" with "[n]o significant effusion."

The car accident happened on February 22, 2004. Plaintiff was sixty-one years of age at the time.

On February 25, 2004, plaintiff returned to Dr. Warshauer. He found "diffuse swelling and tenderness as well as ecchymosis particularly on the medial side." His "[d]iagnostic [i]mpression" was "[c]ontusion and sprain of the right knee." He prescribed medication and physical therapy. By April 21, 2004, plaintiff reported worse pain, and her flexion had decreased from 0-120 degrees to 5-115 degrees. X-rays taken on April 21 showed moderate to severe degenerative changes and no evidence of "gross fracture." Repeat x-rays taken on September 22, 2004 showed "progressive degenerative change and narrowing, particularly [in] the medial joint."

Dr. Warshauer's final diagnoses were "[c]ontusion with sprain of the right knee" and "[p]osttraumatic arthrosis of the right knee." In the doctor's opinion, which was given within a "reasonable degree of medical probability," "the injuries this [plaintiff] sustained are permanent and significant in nature and causally related to the accident [that] occurred on or about February 22, 2004."

The doctor explained:

Although the patient does have a documented history of pre-existing arthritis of the right knee and underwent surgical arthroscopy of the right knee on December 30, 2003, prior to the accident she was doing well in physical therapy and had much less pain than prior to her surgical procedure. Her range of motion was approximately 0 - 120 degrees with only minimal swelling about the knee.

The accident has resulted in a significant increase in her symptoms including pain, swelling, as well as permanent loss of motion to the right knee. The patient has also undergone a rapid progression in the advancement of her arthritis to the right knee as evidenced by her clinical symptoms, physical examination and her rapid progression of arthritis as noted on her follow[-]up x-rays.

This evidence alone was adequate to require denial of defendant's motion for summary judgment. In order to pass the threshold and recover noneconomic damages, a plaintiff subject to N.J.S.A. 39:6A-8(a) must prove that the injury falls within one of the categories identified in the statute. DiProspero v. Penn, 183 N.J. 477, 493 (2005). In this case, plaintiff alleged "a permanent injury." N.J.S.A. 39:6A-8(a). "'[A]n injury [must be] considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment.'" DiProspero, supra, 183 N.J. at 493 (quoting N.J.S.A. 39:6A-8a). To meet this standard, plaintiff's proofs must include objective credible medical evidence of the injury. Id. at 495. There is no question that x-rays that depict abnormal conditions provide objective medical evidence of the conditions shown. N.J.S.A. 39:6A-4(a), -4.7, -8a; see DiProspero, supra, 183 N.J. at 489.

In this case, Dr. Warshauer's reports provide a description of the conditions shown on x-rays prior to and following the accident. Fairly read, his opinion that plaintiff sustained a permanent injury to her knee in this car accident "posttraumatic arthrosis" and "exacerbation of her condition" is supported by the "rapid progression of arthritis as noted on her follow[-]up x-rays."

In Davidson v. Slater, 189 N.J. 166, 169 (2007), the Court addressed the quantum and quality of evidence needed when the plaintiff has sustained an injury to the same body part prior to the accident at issue. The Court concluded, that a plaintiff who "does not plead aggravation of pre-existing injuries," need not provide a comparative analysis to prove that the accident caused the injury. Id. at 170. Conversely, "[w]hen

a plaintiff alleges aggravation of pre-existing injuries . . . , then plaintiff must produce comparative evidence . . . ." Ibid.

Plaintiff's complaint does not allege aggravation of a pre-existing condition, but even if we were to assume that Dr. Warshauer's opinion warranted application of the standard used when aggravation is alleged, which is a matter we need not decide in this case, it was error to grant summary judgment in favor of defendant. Plaintiff's evidence included a sufficient comparative analysis to withstand defendant's motion. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Reversed.

Plaintiff's claim alleging negligence by Brian S. DeUiarte was dismissed one month earlier.

There was no oral argument, and the judge's findings are reported in a note at the foot of the order granting summary judgment and dismissing plaintiff's claim. There are no findings other than those stated above.

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A-1275-07T1

July 31, 2008