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Casinelli v. Manglapus9/22/2004
Argued January 5, 2004
The question presented on this appeal is whether a plaintiff, who belatedly files a physician certification under the New Jersey Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1 to -34, must suffer the dismissal of his or her complaint or whether remedies short of dismissal will suffice. We hold that the physician certification is neither a fundamental element of the AICRA cause of action nor analogous to a pleading and therefore, that neither dismissal with nor without prejudice is compelled. Rather, we view the late filing of the physician certification as akin to a discovery violation, with respect to which the court may resort to any of a full panoply of remedies, ranging from an order to compel production through dismissal, depending on the facts.
I.
On December 27, 1999, a pickup truck, in which Jenevieve Casinelli was a passenger, was struck in the rear by an automobile owned and operated by Wilfredo S. Manglapus. Casinelli was injured in the accident. She was examined by Dr. James Garabo, a chiropractor, who sent her to the emergency room at Rahway Hospital where she was prescribed a cervical collar and over-the-counter pain medication, and advised to see a neurologist. The cervical x-ray taken at the hospital disclosed " oss of normal lordosis with mild kyphosis [backward curvature of the spine] centered on C4-5."
On December 29, 1999, Casinelli was examined by Dr. Nazar H. Haidri, a neurologist, who diagnosed post-concussion syndrome; post-traumatic headaches; acute cervical, dorsal and lumbar sprain; and symptoms consistent with bilateral lumbar radiculopathy. Dr. Haidri also observed a limited range of motion in both the cervical and lumbar areas of Casinelli's spine and spasms "over both cervical para-vertebral muscles." Dr. Haidri noted that Casinelli had been involved in a prior motor vehicle accident in which she had injured her neck and back and determined that the earlier injuries were "markedly aggravated by the accident of December 27, 1999."
Based upon his examination, Dr. Haidri ordered several Magnetic Resonance Imagery (MRI) studies that were read by Dr. Howard Kessler, a radiologist. Dr Kessler issued two reports on February 16, 2000, in which he concluded that the cervical MRI disclosed " eversed cervical lordosis consistent with muscular spasm ... isc herniation at C5-C6, central and left paracentral with sac indentation." As a result, Dr. Haidri referred Casinelli to Dr. Steven L. Nehmer, an orthopedic surgeon, who examined her on May 11, 2000.
In a report dated May 16, 2000, Dr. Nehmer recommended that Casinelli undergo either a cervical epidural injection or physical therapy. In a subsequent report dated September 29, 2000, Dr. Nehmer diagnosed Casinelli as suffering from a cervical disc herniation at C5-6 along with lumbar strain.
Because a cervical MRI taken after Casinelli's 1998 injury had not revealed any disc herniation, Dr. Nehmer opined that Casinelli's injuries were causally related to the accident with Manglapus. Overall, Dr. Nehmer viewed Casinelli's prognosis as "guarded."
On July 17, 2000, Dr. Charles G. Kalko, a neurosurgeon, examined Casinelli and issued a report diagnosing her as having suffered cervical radiculopathy and cervical deformity at C5-C6, as a result of the accident. He recommended that Casinelli "start physical therapy and consider obtaining a cervical CT myelogram and then consider surgical intervention." Dr. Kalko also concluded that Casinelli's injuries were causally related to the accident, and declared her prognosis "guarded pending further diagnostic testing and surgery."
On July 25, 2000,
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