Car accident lawyers in New York State know that there is something special about car accidents. Article 51 of the Insurance Law says that victims of traffic accidents must prove that they have a serious injury before they can get money to pain and suffering. What does this all mean?
It means very little when it comes to medical bills, lost wages, and a few other relatively minor items. New York No-Fault law guarantees that the injured person will be compensated in these areas. The insurance company for the car you were with must pay your medical bills and lost wages. In almost all cases you will not need a lawyer. While we are beginning to see insurance companies unreasonably refuse to pay in some cases, this is still rare. Also, for most of these denials, the amount of money involved is not enough to justify the legal expenses. We advise our clients when it comes to no-fault denials, and in cases where the issue is substantial, we represent them. We usually fight the denial in arbitration.
The serious injury threshold for car accidents is a compromise, at least in theory. Since routine expenses were covered by the personal injury protection line of insurance under No-Fault, liability expenses were supposed to be reduced in the bodily injury liability line. There could be a vigorous debate about whether this compromise was wise or fair, but someone else can write that article.
The standard of what is a serious injury is quite complicated. There are several categories of serious injuries. The most common ones we see involve fractures, other injuries that cause a significant limitationor a substantial amount of time off work.
You’d think the fracture category would be pretty straightforward. In most car accident cases it is. But there are some types of fractures where it is not so clear. Court decisions suggest that a broken bone meets the criteria. Fractured cartilage will not normally qualify, and the same applies to a fractured organ. We had a case with a “liver fracture”. It sounds strange, but that’s what the doctors called it. The case was settled, so we never tried that in court. The other question is when is a fracture a fracture? A hairline fracture counts, but a “greenstick” fracture does not.
The significant limitation category has given rise to hundreds of cases discussing when a limitation is significant and what the injured person has to prove to prove it. The defendant’s attorney will often move around summary judgment to dismiss the case. After the injured person was examined by his own doctor in a independent medical examination (also known as IME, and many of us question the use of the word “independent”), the defense attorney files the expert report which usually indicates that the injured person is fully recovered. The plaintiff’s car accident lawyer then responds, usually with a report from the attending physician, describing the details of the injury and why it is or was significant. If the plaintiff’s response is insufficient, the case is often dismissed. To avoid this, the evidence must show that the injury was more than slight, minor, or slight, and that this is related to aim findings (such as an abnormality on an x-ray or MRI, or in many cases a finding of moron.
The category of being out of work is known among lawyers as the 90/180 category. This refers to the law that requires a person to be substantially impaired in all daily activities for 90 days or more out of 180 days after the accident. Most of the time this means three months without work in the six months after the accident. In response to a motion, the plaintiff’s attorney must demonstrate, through medical evidence, that the person had to remain out of work for the three months, and that this was related to objective medical findings.
For the last two categories, we often win the motion by pointing out a key flaw in the IME. In most cases, the IME doctor does not talk much about previous problems and treatments. We argue that this means that the defense does not meet your burden in your movement. They did not show the Tribunal that the limitation was not significant, or that the time away from work was inappropriate, because the IME doctor does not talk about those issues. In our experience, most judges understand this and keep the case alive.
There are other categories and a host of other complex issues that can arise in car accident cases involving the serious injury threshold, but that’s a good start.