New York Personal Injury Lawyers: Defining Tort Law

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Here is a very important and informative write-up about personal injury and the right New York personal injury lawyers for every type of case.

The Serious Injury Requirement of New York’s No Fault Auto …

Question: What types of bodily damages go beyond what New York’s No-Fault will cover? According to New York State Law, if you suffered a “serious injury,” you may be entitled to additional compensation. If your injuries involve broken bones, surgery, hospital stays, long absences from work, lengthy physical therapy programs, permanent injuries and enduring pain, then you may be entitled to compensation beyond what No-Fault will cover.

New York’s No Fault Insurance law limits the ability for car accident victims to sue for pain and suffering. Chapter 51 of New York State’s Insurance Law – the No-Fault Insurance Law – limits the ability of victims of car crashes to sue for damages beyond the No-Fault benefits. New York State Insurance Law requires a person to have sustained a “serious injury” before that person can seek damages. This limit is known as the threshold law for serious injuries.

The threshold for a serious injury is a contentious area of New York State Law. As far back as the 1982 case of Licari v. Elliot, the NY Court of Appeals made clear their intention to strictly enforce the threshold for serious injury so as to limit the number of lawsuits. In that decision, the Court wrote, “that one of the obvious goals of the Legislature’s scheme of no-fault automobile reparations is to keep minor personal injury cases out of court.”

How New York Law Defines a Serious Injury

Section §5102(d) of the New York State Insurance Law defines seven standards for a serious injury.  Therefore, a person must satisfy at least one of these seven definitions before he or she can pursue a lawsuit:

  1. Personal injury which results in death;
  2. Dismemberment; significant disfigurement;
  3. Fracture;
  4. Loss of a fetus;
  5. Permanent loss of use of a body organ, member, function or system;
  6. Permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or
  7. A medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

You will notice that the law defines items one through four clearly and makes those items relatively easy to determine. However, items five, six and seven leave room for debate and argument. In many cases, the ability of a person to meet the serious injury standard depends on meeting one of the requirements listed in items five through seven. This is especially true for people who have suffered “soft tissue” injuries, which are common in car accidents.

Proving that a Soft Tissue Injury Meets the Serious Injury Threshold

Since the law does not make these definition of a serious injury clear, the Courts have defined them through rulings by judges, which is known as “case law.” Proving that you have suffered a serious injury in the eyes of the court requires your attorney to review your medical files and consult with your doctors. Given that diagnosis and analysis, your attorney will then research the case law to find cases that show that your injury does or does not meet the legal threshold for a serious injury.

The court will look at several key issues in assessing an injury:

  1. Do the damages meet one of the seven standards listed in the NY State Insurance Law?
  2. Were there pre-existing injuries and how do they affect this injury?
  3. What is the nature of the injuries and their impact on the plaintiff?
  4. Were there gaps in treatment and why?
  5. Are the limitations quantified and documented?
  6. Are the medical records certified?

The case law is constantly changing. This situation certainly clouds the threshold for a serious injury in New York creating doubt for all parties, especially plaintiffs. If a person has a broken bone or a fracture of any kind, that injury immediately meets the threshold requirement.  Many car accidents result in “soft-tissue” injuries such as sprains or bulging discs in the spine. The courts have been making it harder and harder to meet the threshold requirement with soft tissue injuries. Anyone who has suffered from a badly sprained knee or ankle or who has suffered from bulging disks in the neck or back knows that such an injury can be more painful and debilitating than a broken finger, yet the law and the courts automatically treat the broken finger as a serious injury and may dismiss the soft-tissue case.

Consider the confusion created by three court decisions issued in 2005 in response to defense motions to dismiss cases for failing to meet the serious injury threshold:

1. In the first case, the plaintiff had six months of physical therapy after the accident and was out of work for six months as well.  He sustained a herniated disc and four years after the accident, his doctor said that he still had limitations in the movement of his spine.  The Court dismissed the case saying that six months of treatment was insufficient, that there was no medically determined reason as to why he was out of work and that the cessation of treatment after 6 months until an examination some 4 years later was fatal to the case.  The Court dismissed the case on motion without a trial.

2. In the second case, a 17-year-old plaintiff sustained three bulging discs and one herniated disc in his low back as the result of an accident.  Plaintiff underwent eight months of physical therapy until the doctor said that therapy was no longer serving any useful purpose.  It was not that he was recovered; it was that the therapy was not effective.  At the time of the Court’s decision, plaintiff was 20-years-old and the movement in his low back was about 50% of normal for his age.  He was also starting to show early signs of degenerative arthritis.  Under those circumstances, the Court held that the question of serious injury could be evaluated by a jury and refused to dismiss the case.

3. In the third case, the plaintiff sustained four herniated discs and one bulging disc in his neck and back.  Plaintiff obtained continuous therapy [two to three times per week] for eight months and was discharged from therapy with instructions to continue home exercise and to avoid activities that would exacerbate his injuries.  Nevertheless, the Court dismissed the case on motion without a trial.

Successful soft-tissue cases are those that have some or all of the following:

  • Clearly documented injury (muscle or ligament tears)
  • Requires surgery
  • Keep a person from work for an extended period of time
  • Require extensive rehabilitation and physical therapy
  • Require uninterrupted treatment for an extended period of time

Each case requires an independent assessment. A lawyer reviewing medical records and consulting with medical professionals can offer the best guidance on a case. It is getting harder for soft tissue injuries to meet teh serious injury criteria, but a well documented, well presented case can still succeed.

I hope you found this information helpful.

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