THE LANGUAGE OF THE “SERIOUS INJURY” STATUTE: WHO CAN SUE?

HOW DO YOU PROVE YOUR INJURY?

By Alice Kupferberg, Esq.
Budin, Reisman, Kupferberg & Bernstein, LLP



Are you “seriously injured”? You may be surprised who decides.

We now know, if you have followed the two preceding articles, what to do after an accident and how to commence a file for Worker’s Compensation or No-Fault insurance. The next phase is how to deal with the medical aspects of your claim.

One can assume, at this point, that you are experiencing enough pain that your activities of daily living are interrupted. In order to sue for pain and suffering in New York State, as opposed to simply making claim for your medical bills, your wages, and your out-of-pocket expenses, the legislature saw fit to require you to suffer a “serious injury”. This ever evolving standard for determining whether you are “seriously injured” is, surprisingly, on the minds of the plaintiffs’ bar, the defense bar, the Courts and, most definitely, the insurance industry. If you are not “seriously injured” by the standards of the last three entities mentioned your case will not succeed in the Courts of New York State.

The actual law lays out what a “serious injury” is. Some aspects are clear: a broken bone, a disfiguring scar, the loss of a fetus. Where the problems arise are in the details of, to paraphrase, a significant limitation of a body function and a medically determined injury that prevents a person from performing their usual and customary daily activities for ninety days. The volume of legal work generated by these definitions has bogged down the courts, both the lower and the appeal court and has pitted plaintiffs’ lawyers against the insurance bar in an epic battle for the rights of the injured. Sadly, the Courts, in an effort to lessen their burden, understandable in these economically depressed times, have become very motivated to dismiss cases. Despite having what would have passed for a “serious injury” five years ago, we have seen decisions denying “serious injury” status to:

• the elderly (with degenerative findings),
  
  
  
• the unfortunate driver who has had accidents before (pre-existing injury),
  
  
  
• those who have stopped treatment because of no improvement of their condition and go for evaluation to defend against the motions challenging their injury (gap cases),
  
  
  
• the obese (their disability relates to weight not trauma), and
  
  
  
• even those with injuries, impairments - whose doctors fail to test with specific instruments. The Courts have deemed, inexplicably, an examination of the driver with the specific instruments is necessary to determine impairment.
  

Due to this inherent imbalance, a more knowledgeable plaintiff can help his or her case come to a successful conclusion.

So, how does an injured driver prevent someone else from finding him or her not “seriously injured”? What a claimant must do is:

• Find a doctor who “handles motor vehicle cases”. Your primary care physician, your walk-in clinic doctor, your specialist is most likely not going to accept No-Fault insurance or Worker’s Compensation insurance as payment, nor do they know how to characterize an injury so it fits with the language of the law.
  
  
  
• Secondly, you don’t pay your accident doctors when you leave their office, they must bill your insurance company themselves. In all likelihood, their offices are used to co-pays or major medical coverage. Neither scenario is normally applicable in motor vehicle accidents.
  
  
  
• Further, with the short filing time frames afforded “No-Fault” patients, your primary care physician, your walk-in clinic doctor or your specialist are out of their depth in figuring out who to bill and when.
  
  
  
• Finally, if no broken bones or disfiguring scarring occurred, the practitioner must set out to establish that serious injury occurred with his or her first treatments.
  

You would be amazed at how innocently a doctor can ruin a “soft tissue” case by failing to detail all aspects of the injury in a manner consistent with the phrases recognized by the Court. So, in this third installment of the articles, we return to the advice given in the preceding articles... that is, “Go to a lawyer who practices plaintiffs’ personal injury law”. The plaintiffs’ lawyers have the most up-to-date knowledge regarding the “serious injury” threshold, the most up-to-date knowledge of the doctors capable of the precise testing needed, and they have the staff in place to handle the unusual submissions needed during the course of litigation.

Finally, the plaintiff’s personal injury lawyer works on a contingency fee so no payment of hourly fees are due, an ideal situation when an injured driver is unable to work.

As idiosyncratic as personal injury law is, you don’t want to entrust your future recovery to attorneys who are not thoroughly versed in this area of law. It has been said that knowledge is power. Working with attorneys who handle solely plaintiffs’ personal injury cases is an undeniable asset if you are unfortunate enough to have been injured in a motor vehicle accident.

Next month, we’ll help you make sense of the litigation process, what you can expect in terms of time, and what alternatives there are to resolve your personal injury lawsuit.