New York has a unique law that comes into play when you are injured in a vehicle accident caused by the negligence of someone else. Per Section 5104(a) and (b) of the Insurance Law, in order to sue the person responsible for your injuries, you must be able to establish that you incurred a “basic economic loss” of more than $50,000 or that you suffered a “serious injury.”
Under Section 5102(d), a serious injury is one of the following:
- Significant disfigurement
- Loss of a fetus
- Permanent loss or use of a body organ, system, function or member
- Permanent consequential limitation of a body member or organ
- Significant limitation of use of a body system or function
- Medically determined non-permanent injury or impairment that prevents you from performing substantially all of your usual and customary daily activities for at least 90 of the 180 days immediately after your accident
Permanent Loss or Use
New York courts consistently interpret permanent loss or use of a body organ, system, function or member to mean a total loss only. Thus, it often is difficult to prove that a soft tissue injury is a serious injury. For instance, if your injuries result in a herniated or bulging disc, you likely cannot meet the serious injury threshold because you have not sustained a total loss of the use of your spine. Even if your disc must be removed and you thereby lose the use of certain cervical and/or lumbar vertebrae, this still is not a total loss of use.
Permanent Consequential Limitation
In order to meet the serious injury threshold of a permanent consequential limitation of a body member or organ, you must present objective, quantitative medical evidence of your diminished range of motion or qualitative medical evidence that compares your present limitations to the way in which your affected organ, member or system would function had you not suffered your injuries.
A simple conclusory statement from your medical care provider is not sufficient. Courts have held that (s)he must include not only the methods by which (s)he arrived at his or her conclusion, but also the details of his or her findings. In addition, the statement must show a clear causal connection between your present limitations and the accident you are alleging caused your injuries.
You may encounter another difficulty in your serious injury claim if there is a gap in the treatment you received for it. Courts tend to question the reliability of your medical expert’s opinions and conclusions if (s)he did not treat you continuously after your accident. The longer the gap, the more likely the difficulty you will encounter. In a 2005 Court of Appeals case, however, the Court held that the plaintiff’s 2-1/2 year gap in treatment was justified based on the evidence that it was due to the treating doctor’s determination that further therapy would be palliative only and that the patient should stop treatment in favor of continued home exercise.
Pre-existing or Intervening Medical Problem
You may encounter still another difficulty in meeting the serious injury threshold if you had a pre-existing condition prior to your accident or received additional injuries subsequent to it. Your medical evidence must specifically address any such situation and clearly establish that the injuries and/or limitations you are claiming were indeed the result of the accident for which you are suing. Again, a simple conclusory statement from your physician is insufficient. (S)he must include an explanation of the materials (s)he relied upon to reach the conclusion and a detailed discussion of why this specific accident, rather than your pre-existing condition or an intervening accident, caused your injuries.
If you need a personal injury litigator or if you are an attorney who needs outside personal injury litigation help, please call Richard A. Dubi toll-free at 833-FOR-DUBI (833-367-3824).