The spread of fusion surgeries in personal injury cases in recent years, in New York and across the country, has been remarkable. More and more plaintiffs are undergoing cervical and lumbar fusion surgeries. Even in cases involving very minor motor vehicle collisions, and questionable causation claims, the odds of a verdict in plaintiff's favor is substantial. Juries frequently agree with plaintiffs and their experts that fusion surgeries are causally related, even to a low-impact collision event.

In view of the growing importance of defending these claims, this article will explore updated strategies for defending low-impact collisions and fusion surgeries in New York. We will examine the usual toolkit of expert trial presentations, and potential strategies for improving that formula. We will then discuss novel approaches, such as video and computer simulation reconstruction for use during trial.

The Typical Approach

The standard defense is essentially to hire a well-credentialed biomechanical engineer and orthopedic surgeon, and present their testimony to the jury on the issues of medical necessity and causation. Ideally, the expert testimony will be supplemented with vehicle photographs and damage estimates, along with any available lay testimony, in support of the defendant's position that the collision event was too minor to cause the fusion surgery or surgeries. Testimony from an accident reconstruction expert may also be presented.

This strategy is often ineffective. The plaintiff's bar is adept at presenting testimony from their own biomechanical engineer, accident reconstruction expert, and medical professionals (frequently the plaintiff's own treating surgeon). The plaintiff's surgeon will often be more persuasive regarding causation, because he or she has the benefit of having personally seen the plaintiff's spine during surgery. Their opinion of a traumatically-induced injury is more persuasive than a defense physician who never saw the inside of the plaintiff's spine up close, and is instead relying on a physical examination done long after the fact, as well as diagnostic studies (and, possibly, photographs taken during the surgery).