Posted on Aug 05, 2012

A Queens woman's personal injury lawsuit was recently thrown out of court because she elected to have spinal surgery before an independent medical examination was able to verify the state of her physical condition.

Susanne Mangione suffered a car accident while in a Queens taxi in 2009. In 2010, she filed a suit against her driver, Glener Simbana; the taxi company, Ramabel Limo Inc.; and the driver of the other car involved in the crash, Jules Jacobs.

Magione was ordered to undergo an independent medical examination (IME) three times and skipped each meeting. The examination is necessary for the defense to evaluate the details of her currnet physical condition. Her latest IME was scheduled for February 22 and was postponed for March 7. In the meantime, however, she scheduled an elective spinal surgery for February 27, which effectively prevented the defense from learning the full extent of her injuries.

Mangione's lawyers argued that she had earlier undergone spinal surgery in 2010 and that she had already gone through four IMEs.

However, Queens County Supreme Court Justice Charles Markey dismissed the suit last Tuesday, July 31. He said the earlier IMEs were to determine Mangione's insurance claims, not the legitimacy of her claims to serious injury, which is required to prove damages.

Had her surgery been an emergency or to relieve pain, Justice Markey says the decision to dismiss the suit would have been different. But the surgery was elective.



What's unusual about this decision is that an injured victim has an obligation to mitigate her damages. That means that if she has an opportunity to reduce or minimize the extent of her injuries, she is required to do so. The news report does not appear to address this issue.

Although undergoing a surgical procedure may impair the defense an opportunity to evaluate the injured victim at that moment, the defense will still have access to all the patient records and surgical reports.

They will then have an opportunity to evaluate her condition after her corrective spinal surgery.

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Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer