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Understanding New York's Serious Injury Threshold Law

Posted by attorney Mark Campanella

In an effort to stem the flood of frivolous personal injury lawsuits arising from motor vehicle accidents, the State of New York passed legislation intended to make it more difficult for individuals to sustain an action unless in fact they were “seriously" injured as a result of the accident. The law, which is codified as Section 5102(d) of the New York State Insurance Law, sets forth what has colloquially become known as New York’s serious injury threshold law. Although the code can be a bit convoluted, it really all boils down to this: in order to maintain an action for a personal injury arising out of a motor vehicle accident, you must demonstrate that your injuries satisfy at least one of seven definitions set forth by the State.

The seven categories as set forth by New York are as follows:

  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 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.

So, does that clarify matters at all for you? If I were to guess, I’d probably say no, and with good reason. As a matter of giving credit where credit is due, the first four categories of injury are straight forward enough. If you or a loved one has suffered injuries that qualify under one of those four categories (death, loss of a limb, a broken bone or the loss of a fetus), you are pretty much guaranteed to automatically satisfy the threshold law. There are always exceptions to the rule, but those typically abound when there are questions as to whether your injuries do in fact fall under one of these four categories. It’s usually a black and white proposition, but if a diagnosis is even marginally questionable, the insurance carrier and defense counsel will seize on it as leverage against your case. That, however, is a story for another article.

For all of the simplicity of seemingly being able to satisfy the first four categories, the same can’t be said for the remaining definitions. Despite the legislature’s good intentions, it left much of this law open to interpretation and judicial ruling. For better or worse, this can prove very problematic for many individuals involved in an accident that do not suffer a definite, catastrophic injury as defined by categories one through four.

All too often, individuals involved in an MVA suffer medically less serious injuries that don’t necessarily automatically fit one of these categories, but which are nonetheless very real and very debilitating. Given that categories five through seven are very fact dependent and the subject of extensive and ever growing case law interpreting the statute, it falls on your attorney and treating physicians to demonstrate that your injuries do in fact satisfy the serious injury threshold.

In the process of doing so, don’t be surprised if it ultimately falls on the court to render a decision concerning the legal sufficiency of your injuries satisfying the threshold requirements. When it does so, the court will look to a number of factors. Not only will the court examine your certified medical records and the opinion of your treating physician, but also to such questions as: were your injuries pre-existing and how do they affect this injury; were there gaps in your treatment and why; how long were you incapacitated from engaging in your usual daily activities, including work and grooming; and are your limitations quantified and documented? All of these, plus many other factors, will impact how the court views your particular case.

If you’ve been injured in a motor vehicle accident as a result of the negligence of another, my first piece of advice is to immediately seek the medical treatment you need. Injuries do not always manifest immediately, so it’s critical to obtain treatment as soon as reasonably possible after the accident has occurred. Nothing is more important than your health and recovery, so treat it as paramount. Once your physical needs have been met, it’s then wise to protect the remainder of your interests, and that includes your legal rights against the person or persons who caused your injuries. Always consult with counsel to ensure that you know your rights; only then can you rest assured that you will know your options going forward.

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