Sworn Statement of Our Client’s Physician in Support of Her Claim of Bodily Injury – Part 2 of 3

As discussed in the previous post, recently a defendant who had slammed his bread truck into the rear of our client’s automobile, causing physical injuries to her, filed a written motion requesting the court dismiss the lawsuit on the grounds that, even though my client said she was in pain, the medical records failed to show an objectively verifiable injury.

We opposed the defendant’s request to dismiss the case. Our papers were in three parts: a sworn affidavit from one our our attorneys; a sworn affidavit from a radiologist; and a sworn affidavit from a treating physician.

All three sworn affidavits submitted in support of our client’s case will now be posted to this website. This post constitutes part two of three. Printed below is the sworn affidavit from our client’s treating physician, in its entirety:

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF WESTCHESTER

—————————————————————————x

SELENA CALDERON ORTEGA,

                                                           Plaintiff,                AFFIRMATION OF

                                                                                           MAXWELL DOLAN, M.D.

                        -against-

                                                                                           Index No: 09648/2017

RILEY BAUMES and

WOLFGANG LINE HAUL, LP,

                                                            Defendants.

—————————————————————————x

            MAXWELL DOLAN, M.D., a physician duly licensed to practice medicine in the State of New York, hereby affirms under penalty of perjury pursuant to CPLR 2106 the following to be true:

  1. I am a physician licensed to practice medicine in the State of New York.  My area of specialty is neurology.  I maintain an office at 38 Brockway Place, White Plains, New York.  I make this affirmation at the request of the attorneys for the plaintiff Selena Calderon Ortega.
  2. I affirm that the medical records attached are true and accurate copies of the records kept by me in the ordinary course of business.  I affirm the authenticity and truthfulness of the records under penalties of perjury.
  3. I examined Selena Calderon Ortega on October 16, 2016; November 13, 2016; January 22, 2016; February 26, 2015; May 4, 2015; August 13, 2015; and October 12, 2015.
  4. I first examined Selena Calderon Ortega on October 16, 2016.  She reported that she was the restrained driver of a vehicle that was rear ended on September 16, 2016.  She reported no head injury and no loss of consciousness.  Ms. Calderon Ortega reported that after a week of back pain she went to Phelps Memorial Hospital emergency room, where she was evaluated, x-rayed, and released.  She presented complaining of middle and lower back pain with muscle spasms.
  5. Thoracic spine examination on October 16, 2016 revealed spasm and tenderness of the muscles.  Lumbar spine examination on October 16, 2016 revealed decreased range of motion.  Lumbar spine flexion-extension to seventy five degrees, right and left lateral flexion to twenty degrees.  Lumbar spine examination revealed spasm and tenderness of the paraspinal muscles.  On October 16, 2016, my diagnosis was:  Thoracic paraspinal muscle spasms; Lumbar spine injury with signs of radiculopathy.  The patient had limitations with lifting and bending.  I recommended that the patient obtain an MRI of the lumbar spine and to schedule a follow up examination.
  6. I next examined Ms. Calderon Ortega on November 13, 2016.  The patient continued to complain of back pain with difficulty in walking.  Examination on November 13, 2016 revealed antalgic gait due to back pain; straight leg raising was normal to ninety degrees on the left and elicited pain at seventy five degrees on the right.  Thoracic spine examination revealed spasm and tenderness of the muscles.  Lumbar spine examination revealed decreased range of motion; flexion-extension to seventy five degrees, right and left lateral flexion to twenty degrees; spasm and tenderness of the paraspinal muscles.  MRI of the Lumbar Spine performed November 12, 2016 revealed L3-L4 disc bulge, L4-L5 and L5-S1 disc herniation.  My diagnosis was:  Thoracic paraspinal muscle spasms; Lumbar spine injury with signs of radiculopathy; L3-L4 disc bulge; and L4-L5 & L5-S1 disc herniation.  The patient had limitations with lifting and bending.  After examination of the patient on November 13, 2016, it was my opinion, with a reasonable degree of medical certainty, that the patient was totally disabled, with her limitations and functional disabilities causally related to the aforementioned accident.  I recommended that the patient continue with Physiatry and physical therapy treatments, and to schedule a follow up examination.  I prescribed Flexeril 10mg (once a day for pain & stiffness caused by muscle spasms) and Mobic 7.5 mg (once a day for pain relief). 
  7. I next examined Ms. Calderon Ortega on January 22, 2015.  The patient continued to complain of back pain.  The patient stated that she is unable to exercise, that she has interrupted sleep, and that she is feeling angry.  Examination on January 22, 2015 revealed antalgic gait due to back pain; straight leg raising elicited pain at seventy five degrees bilaterally.  Cervical spine examination revealed spasm and tenderness of the muscles.  Thoracic spine examination revealed spasm and tenderness of the muscles.  Lumbar spine examination revealed decreased range of motion; flexion-extension to seventy five degrees, right and left lateral flexion to twenty degrees; spasm and tenderness of the paraspinal muscles.  MRI of the Lumbar Spine performed November 12, 2016 revealed L3-L4 disc bulge, L4-L5 and L5-S1 disc herniation.  My diagnosis was:  Thoracic paraspinal muscle spasms; Lumbar spine injury with signs of radiculopathy; L3-L4 disc bulge; and L4-L5 & L5-S1 disc herniation.  The patient had limitations with lifting and bending.  After examination of the patient on January 22, 2015, it was my opinion, with a reasonable degree of medical certainty, that the patient was totally disabled, with her limitations and functional disabilities causally related to the aforementioned accident.  I recommended that the patient continue with pain management and continued physical therapy treatments, as well as continue on prescribed Flexeril 10mg (once a day for pain & stiffness caused by muscle spasms) and Mobic 7.5 mg (once a day for pain relief).  I asked that she schedule a follow up examination.
  8. I next examined Ms. Calderon Ortega on February 26, 2015.  The patient complained of persistent low back pain and with continued inability to do her exercises.  She also had trouble sleeping.  Examination on February 26, 2015 revealed straight leg raising elicited pain at seventy five degrees bilaterally.  Lumbar spine examination revealed decreased range of motion; flexion-extension to seventy five degrees, right and left lateral flexion to twenty degrees; spasm and tenderness of the paraspinal muscles.  MRI of the Lumbar Spine performed November 12, 2016 revealed L3-L4 disc bulge, L4-L5 and L5-S1 disc herniation.  My diagnosis was:  Thoracic paraspinal muscle spasms; Lumbar spine injury with signs of radiculopathy; L3-L4 disc bulge; and L4-L5 & L5-S1 disc herniation.  The patient had limitations with lifting, bending, and prolonged standing.  After examination of the patient on February 26, 2015, it was my opinion, with a reasonable degree of medical certainty, that the patient was totally disabled, with her limitations and functional disabilities causally related to the aforementioned accident.  I recommended that the patient continue with pain management for epidural steroid injections, to continue physical therapy treatments, to continue on prescribed Flexeril 10mg (once a day for pain & stiffness caused by muscle spasms) and Mobic 7.5 mg (once a day for pain relief), and to schedule a follow up examination. 
  9. I next examined Ms. Calderon Ortega on May 4, 2015.  The patient complained of persistent back pain.  Examination on May 4, 2015 revealed straight leg raising elicited pain at seventy five degrees bilaterally.  Lumbar spine examination revealed decreased range of motion; flexion-extension to seventy five degrees, lateral flexion to twenty degrees bilaterally accompanied by spasm and tenderness of the paraspinal muscles.  MRI of the Lumbar Spine performed November 12, 2016 revealed L3-L4 disc bulge, L4-L5 and L5-S1 disc herniation.  My diagnosis was:  Thoracic paraspinal muscle spasms; Lumbar spine injury with signs of radiculopathy; L3-L4 disc bulge; and L4-L5 & L5-S1 disc herniation.  The patient had limitations with lifting, bending, and prolonged standing.  After examination of the patient on May 4, 2015, it was my opinion, with a reasonable degree of medical certainty, that the patient was totally disabled, with her limitations and functional disabilities causally related to the aforementioned accident.  I referred the patient to Dr. Shea for pain management, and recommended the patient continue with pain management for epidural steroid injections, to continue physical therapy treatments, to continue on prescribed Flexeril 10mg (once a day for pain & stiffness caused by muscle spasms) and Mobic 7.5 mg (once a day for pain relief), and to schedule a follow up examination. 
  10. I next examined Ms. Calderon Ortega on August 13, 2015.  The patient stated that she felt the pain was better during the day, but it was severe at night and interfered with her sleep.  Examination on August 13, 2015 revealed straight leg raising elicited pain at seventy five degrees bilaterally.  Cervical spine examination revealed spasm and tenderness of the paraspinal muscles.  Thoracic spine examination revealed spasm and tenderness of the paraspinal muscles.  Lumbar spine examination revealed decreased range of motion; flexion-extension to seventy five degrees, lateral flexion to twenty degrees bilaterally accompanied by spasm and tenderness of the paraspinal muscles.  MRI of the Lumbar Spine performed November 12, 2016 revealed L3-L4 disc bulge, L4-L5 and L5-S1 disc herniation.  My diagnosis was:  Thoracic paraspinal muscle spasms; Lumbar spine injury with signs of radiculopathy; L3-L4 disc bulge; and L4-L5 & L5-S1 disc herniation.  The patient had limitations with lifting, bending, and prolonged standing.  After examination of the patient on May 4, 2015, it was my opinion, with a reasonable degree of medical certainty, that the patient was totally disabled, with her limitations and functional disabilities causally related to the aforementioned accident.  I recommended the patient should obtain an EMG/NCV of the lower extremities to evaluate lumbar motor root involvement, to follow up with Dr. Shea for pain management, to continue physical therapy treatments, to continue on prescribed Flexeril 10mg (once a day for pain & stiffness caused by muscle spasms) and Mobic 7.5 mg (once a day for pain relief), and to schedule a follow up examination. 
  11. At the most recent examination on October 12, 2015, Ms. Calderon Ortega reported that she had been suffering from back pain, she had difficulties sleeping, and she reported feeling anxious.  The patient was well developed, oriented x3 and cooperative.  Speech was clear and coherent with no language disturbance noticed.  On mental status exam, there was no evidence of cognitive impairment or manifest mood disturbance.  The patient’s head was normocephalic with no evidence of recent trauma or bruits.  Cranial nerves revealed normal fundi and full visual fields.  There was full extraocular movements with no nystagmus.  The pupils were isocoric, symmetrically reactive to light and accommodation.  Facial sensation was normal with corneal reflexes being symmetrical and normoactive.  There was no gross paresis of the seventh nerve.  The patient’s hearing was within normal limits, with the Rinne and Weber test being physiologic.  The ninth through twelfth nerve were intact. 
  12. Motor examination on October 12, 2015 revealed adequate strength and tone in all major groups 5/5.  Sensory was intact to touch, pain, position, and vibration sense.  Deep tendon reflexes were normal and symmetrical.  Plantar reflexes were flexor.  There were no cortical release signs.  Coordination testing including finger to finger, finger to nose, rapid alternating movements and tandem gait were normal.  Gait was normal including tandem, on toes, and on heels.  The Station and Romberg test were negative.  Straight leg raising was normal to ninety degrees bilaterally.  Cervical spine examination revealed normal range of motion. 
  13. Thoracic spine examination on October 12, 2015 revealed spasm and tenderness of the paraspinal muscles.  Lumbar spine examination on October 12, 2015 revealed spasm and tenderness of the paraspinal muscles. 
  14. As noted on earlier reports, MRI of the lumbar spine (11/12/2016) revealed disc bulge of L3-L4 flattening the sac.  At L4-L5 there is a subligamentous central and bilateral disc herniation lateralizing to the right giving mild mass effect on the anterior aspect of the sac with mild productive changes of the facet joints.  At L5-S1 there is a small central and bilateral disc herniation lateralizing to the right reaching the sac and the right S1 root. 
  15. The patient has limitations with lifting, bending, and prolonged standing. 
  16. My diagnosis is: Thoracic paraspinal muscle spasms; Lumbar spine injury with signs of radiculopathy; L3-L4 disc bulge; L4-L5 & L5-S1 disc herniation.  With a reasonable degree of medical certainty, it is my opinion that the patient is partially disabled.  Her limitations and functional disabilities are causally related to the aforementioned incident.
  17. In addition, I have reviewed a narrative report affirmed by Charles Burns, M.D., radiologist, who reviewed the MRI of the lumbar spine performed November 12, 2016 at White Plains Radiology and concluded that the MRI demonstrated the loss of the normal lumber curvature as seen on T2 weighted sagittal images.  Dr. Burns concluded this latter structural change is due to traumatic soft tissue injury, muscle spasm, or pain that caused straightening to the lumbar alignment.  Dr. Burns observed they are accompanied by chronic disk herniations at L3-L4 and L4-L5 noted on the axial and sagittal T2 weighted images.  Dr. Burns concluded these changes resulted in bilateral neural foramina narrowing at L4-L5 and L5-S1 which were precipitated by the loss of the lumber curvature/lordosis.  Dr. Burns observed accompanying the prior change is the annular tear at L4-L5, which is a definite cause for back pain.  Dr. Burns affirmed that these myriad of findings all contribute to the patient’s clinical symptoms.  Dr. Burns affirmed that the above findings confirm traumatic soft tissue injuries as indicated by annulus tear and loss of lumbar curvature, are superimposed on chronic disk herniations of the lumbar spine as confirmed by the MRI performed on 11/14/2016.  Dr. Burns affirmed the findings are directly and causally related to the date of loss of 9/16/2016 in his professional opinion.   
  18. Based upon my clinical examinations of Selena Calderon Ortega that have taken place over the last year plus, the objective diagnostic tests described above, as well as my review of Dr. Burns’s affirmation, I have formed an opinion with reasonable medical certainty regarding Selena Calderon Ortega’s injuries.  The automobile accident of September 16, 2016 caused her body to be thrust forward and back.  This caused sudden extension and flexion of the neck and back.  This sudden movement caused thoracic spine injury and lumbar spine injury, affecting the nerves, causing signs of radiculopathy indicated in my clinical diagnosis.
  19. This injury correlates to the body mechanics of the accident, and Selena Calderon Ortega’s complaints are those to be expected from this type of condition.  The pain that results from this condition causes limitations in lifting, bending and prolonged standing.  Since this condition has persisted for over a year, it is my opinion that this is a permanent condition.  Surgery may be an option, but that is too fraught with many risks, and success is never guaranteed.
  20. In my opinion, with reasonable medical certainty, Selena Calderon Ortega has sustained significant limitation of use of her thoracic and lumbar spine as a result of the accident of September 16, 2016.  The natural range of motion in the thoracic spine and lumbar spine has been compromised and limited by the pain caused by this accident.  Moreover, since Selena Calderon Ortega has displayed these symptoms over the course of over a year, it is my opinion that this is a permanent condition.
  21. Therefore, it is also my opinion with a reasonable degree of medical certainty, that Selena Calderon also sustained a permanent consequential limitation of use of a body organ as a result of the September 16, 2016 accident.  As a result of this accident, the thoracic and lumbar spine can no longer move naturally through its full range of motion without causing pain, thereby limiting the normal use of the spine. 
  22. Lastly, based on the records available to me, and the medical history provided by the plaintiff Selena Calderon Ortega, that for at least three months after the accident she was unable to leave the house, it is also my opinion that she has sustained a medically determined injury that prevented her from performing substantially all of her material acts that constituted her customary daily activities for not less than ninety days during the one hundred eighty days immediately following the accident.
  23. I affirm under penalty of perjury pursuant to CPLR 2106 that the statements contained in this affirmation are true and accurate with reasonable medical certainty.

Dated: White Plains, New York

May      , 2016

                                                                        __________________________________

                                                                        MAXWELL DOLAN, M.D.