Agnes McDonald, a 55 year old elevator operator,  was a rear seat passenger in a two car accident in Manhattan on January 20, 2005.

She was injured but did not seek medical treatment until four days later when she saw a physician at a local medical clinic, complaining of a stiff neck and a burning sensation down her neck and shoulders to her fingers. She underwent physical therapy, acupuncture and chiropractic care over the next three years and struggled with severe neck pain.

Then, an orthopedic surgeon recommended an MRI which showed a disc herniation at C4-5 with nerve irritation that the doctor found to be the significant cause of Ms. McDonald’s pain. On May 7, 2008, she underwent a cervical discectomy with fusion and plating at the C4-5 level.

Unfortunately, her pain was not alleviated by the surgery and she claimed she was so disabled that she could not pick up her grandson or lift anything and she relied upon others for almost all of her activities of daily living.

In McDonald’s lawsuit against the other driver, liability was resolved in her favor and then, on May 4, 2010, a Queens County jury awarded her damages in the total sum of $700,000 including:

  • $200,00 for pain and suffering ($100,000 past – 3 years, $100,000 future – 8 years)
  • $150,000 for past and future loss of earnings
  • $300,000 for past and future medical expenses and
  • $50,000 for past and future household expenses

In post-trial motions, plaintiff argued that the pain and suffering damages verdict was inadequate and should be increased to $950,000 while the defense argued that plaintiff had not met the “serious injury” standard applicable to car accident cases set out in Insurance Law Section 5102(d) and the case should be dismissed. The judge issued an order denying both motions.

On appeal in McDonald v. Kohanfars (2d Dept. 2013), though, the court reversed and dismissed the entire jury award because plaintiff failed to prove that her injuries were caused by this accident, and not by a 1992 accident that also had resulted in cervical fusion surgery (albeit at C5-6, one level below the new injury).

The key on appeal, and the apparent reason the jury rendered a relatively low award in a spinal fusion case, was the fact that Ms. McDonald had in 1996 undergone cervical fusion surgery at C5-6 due to a 1992 injury from heavy lifting.

While plaintiff testified that she hadn’t received any medical treatment between 1997 and 2005 for the injuries sustained in the 1992 accident and was pain free during that entire period, until the new accident, the appeals court ruled that it had to dismiss the case because the surgeon who operated on her in 2008 and testified at trial rendered medical causation opinions that were speculative.

Since plaintiff’s new surgeon only began treating Ms. McDonald in 2007 and hadn’t reviewed her prior treatment records (except for the 1996 operative report), the appellate judges concluded that the doctor had no basis for his conclusion that Ms. McDonald’s current injuries were caused by the 2005 accident as opposed to being pre-existing. The court therefore dismissed the case entirely because plaintiff had failed to prove she had from this accident sustained a “serious injury” and therefore she failed to meet the statutory threshold.