Monk v. Dupuis

In Monk v. Dupuis, 287 A.D.2d 187 (3rd Dept. 2001), a case where the plaintiff did not utilize the services of a medical doctor, but, instead, relied wholly on the affidavit of her treating chiropractor, the court denied defendant's motion for summary judgment. Id. at 189. Significantly, the court added: "Plaintiff has come forth with credible medical evidence consisting of her chiropractor's affidavit . . . . This medical opinion and the underlying diagnoses were expressly based upon frequent examinations of plaintiff as well as diagnostic tests including MRIs." Id. at 192. The court in Monk stated: Our cases have on occasion suggested that "objective medical evidence" or diagnostic tests are required to support a 90/180-claim or, more often, noted that such objective evidence was submitted to support a 90/180-day claim . However, we emphasize that in every case, the medical affidavits and records submitted by the plaintiff in opposition are evaluated for consideration of the stated diagnosis as well as the stated basis for the diagnosis and the medical findings -- including, inter alia, diagnostic tests relied upon, if any, and their results and how the findings relate to a plaintiff's injuries or diagnosis. If no diagnostic tests are relied upon, it is essential that the affidavit reflect observable, palpable, measurable or quantifiable findings upon physical examination. In each case, the critical inquiry is whether the plaintiff has submitted sufficient, competent credible medical evidence based on objective medical findings of a "medically determined injury or impairment of a non-permanent nature" . . . and that the nonconclusory, objective, medical basis for the diagnoses and findings must be ascertainable from the affidavits. . . . We do not, however, require proof in all 90/180 cases of diagnostic tests such as CT scans, X rays or MRIs in order to reach the conclusion that the medical findings are sufficient and credible. (Monk, 287 A.D.2d at 190-191.) Monk establishes that a "medically determined injury or impairment of a nonpermanent nature" may be sustained on the strength of a chiropractor's affidavit or testimony that explains the objective medical tests performed and especially one that connects "the medical findings to a plaintiff's specific injuries or diagnosis." (Monk, 287 A.D.2d at 192.)