If you have been in a car accident in New York and you want to seek compensation for damages from another driver, you will need to prove to the courts that you have met New York’s threshold for a serious injury. The definition of a serious injury, while outlined in New York State law, continues to evolve as the courts rule on motor vehicle cases.
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. The concept is that No Fault will provide immediate coverage for medical expenses and economic loss and, in a trade-off, the law makes it harder for an injured person to sue for additional damages. 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 1982 (in a ruling on the case of Licari v. Elliot), the New York 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."
At the same time, plaintiff attorneys have fought to protect the rights of victims to collect damages for pain and suffering and the full extent of their injuries. The best way to protect your rights? Prepare cases well, do the legal research and fight hard in court and in Albany.
Details of New York’s Threshold for Serious Injury
Section §5102(d) of the New York State Insurance Law defines eight standards for a serious injury. Therefore, a person must satisfy at least one of these eight definitions before he or she can pursue a lawsuit:
· Personal injury which results in death;
· Dismemberment; significant disfigurement;
· Loss of a fetus;
· Permanent loss of use of a body organ, member, function or system;
· Permanent consequential limitation of use of a body organ or member;
· Significant limitation of use of a body function or system; or
· 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, seven and eight 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 eight.
Since the law does not make these definitions clear, the Courts have defined them through rulings by judges, a process 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:
· Do the damages meet one of the eight standards listed in the State Insurance Law?
· Were there pre-existing injuries and how do they affect this injury?
· What is the nature of the injuries and their impact on the plaintiff?
· Were there gaps in treatment and why?
· Are the limitations quantified and documented?
· Are the medical records certified?
Your lawyer will guide you through this process and help prepare your case. A lawyer cannot perform magic: if you lack an injury, your lawyer cannot prove that you have one. However, many car accident cases fall in a gray area where a good attorney will make the difference in how your case is presented and received by the courts.
Preparing Your Case: Get the Medical Care You Need for Your Injuries
If you suffered an injury in car accident, make sure that you seek medical care for your injuries and ensure that your doctor or doctors record the specifics of your injuries and any limitations they may cause. No-Fault insurance will pay for your treatments. Even if you do not have health insurance, No-Fault will pay.
If your doctor prescribes follow up treatment – such as physical therapy – it is important that you receive that treatment both to help you fully mend and to document the extent of your injuries. The number, frequency and duration of your treatments will have an impact on your ability to meet the threshold for a serious injury in New York. I have seen clients who needed physical therapy and had a prescription for it, yet they did not receive that care and that lack of treatment made it impossible for them to meet the serious injury threshold standard.
Retaining an Attorney Experienced with Motor Vehicle Cases and New York’s Threshold Law
If another driver or party caused or contributed to a car accident and if you suffered a serious injury, not only may you sue, but you may need to file a lawsuit to receive full compensation. If you want to sue, I advise you to retain a New York personal injury attorney who handles many car accident cases.
New York law will change from time to time, but more importantly, court rulings continually change the way the courts interpret the laws and view individual cases. In recent years, the Courts have imposed a stricter reading of the threshold law that has resulted in many more denied motor vehicle cases. An attorney who handles many car accident cases will be familiar with the latest court rulings and best know how to present and prosecute your case. Such an attorney will know how the threshold law applies to your case.
I hope you found this information helpful. If you or a loved one has been hurt due to the negligence of another, you may want to consult a New York personal injury attorney. I would be glad to answer your questions and assist you. You can call me at 1-800-660-1466 or email me.
Carol L. Schlitt New York Personal Injury Attorney
The Schlitt Law Firm www.SchlittLaw.com
This material is intended for informational uses only. It is not meant as legal advice. To receive legal advice, you should consult an attorney.
© copyright 2012 by Carol L. Schlitt The material presented in this blog may not be reproduced or appropriated in any way without the explicit permission of the author.
Sign up to receive a 3-part series of useful information and advice about personal injury law.