What Needs To Be Proven In Order To Sue For Injuries and Damages In A Motor Vehicle Accident Case?
Irrespective of any right you have to receive immediate coverage for your medical expenses and other coverage described as “Basic Economic Loss” above under No-Fault, the law in New York State requires you to prove that you have sustained a “serious injury” (a legal definition) before you can collect money damages in a lawsuit for pain, suffering and the debilitating and chronic effects of injuries sustained in a motor vehicle accident. In this regard, the State of New York through statute(s) enacted by legislation and case law (Court decisions) has made clear that it intends to strictly enforce the threshold for serious injury so as to limit the number of lawsuits involving motor vehicle accidents. Obviously, the intent is to keep minor personal injury cases out of Court.
The Law Offices of Ira M. Perlman, P.C. & Robert D. Rosen, P.C. have fought and will continue to fight to protect all of the rights of the victims we represent in order to pursue damages for pain and suffering and the full extent of our client’s injuries. It is for this reason that we urge all of our clients to make sure that proper care and treatment is received from the onset of any complaints or symptoms and that all injuries including any symptoms and complaints are fully documented by any treating health care provider from the inception of treatment.
The number, frequency and duration of your treatments will certainly have an impact on your ability to meet the threshold for a serious injury in the State of New York.
Section 5102(d) of the New York State Insurance Law defines eight standards in order to meet the “serious injury” threshold. Therefore, in order to pursue a lawsuit for “noneconomic loss” (pain and suffering) a person must satisfy at least one of the following definitions:
- A personal injury which results in death;
- Dismemberment or 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 (90) days during the one hundred eighty (180) days immediately following the occurrence of the injury or impairment.
You will notice that the law defines items 1-4 clearly and makes those items relatively easy to determine. However, items 5-8 leave room for interpretation and argument subject to disagreement among reasonable people. In many cases, the ability of a person to meet the serious injury standard depends on meeting one of the requirements listed in items 5-8.
Obviously, talking to our attorneys will help you comprehend these definitions with more clarity. Unfortunately, the Courts have made determinations and given rulings which further define these definitions through a process known as “case law”. In this regard, 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. As a result of your various injuries and the diagnoses given by your doctors and any other health care providers, we will be able to analyze your injuries in conjunction with the various case law that exists to find legal support in order to prove that your ongoing injuries meet the legal threshold for “serious injury” or be able to tell you that in our opinion your injuries do not meet the legal threshold enabling you to bring a lawsuit for pain and suffering.
The Court will look at several key issues in assessing an injury such as follows:
- Do the damages meet one of the 8 standards listed above?
- Were there pre-existing injuries that the individual suffered from and if so how do those pre-existing injuries affect any injury that is being claimed?
- What is the nature of any injuries and their impact on the Plaintiff?
- Was there any gap in treatment where somebody did not go to the doctor or any other health care provider for a significant period of time and if so why?
- Are any of the physical limitations in terms of body function quantified and documented by any of the treating health care providers?
- Are the medical records that are being used to prove a serious injury certified or reliable enough for the Court to utilize in making this determination?
Your lawyer must guide you through this process and help prepare your case in order to prove all of the necessary elements of a “serious injury”. As lawyers, we cannot perform a miracle or even attempt to show that which does not exist. If you lack an injury, we cannot prove that you have one. However, there are many motor vehicle and/or pedestrian accident cases which do fall in a gray area where having a good attorney will make a big difference in how your case is presented and received by the Courts.
Learn More During A Free Consultation
The Law Offices of Ira M. Perlman, P.C. & Robert D. Rosen, P.C. offers free initial consultations so you can discuss your case and begin working with a proven injury attorney to help secure maximum compensation for your injuries. Call our office at 212-668-0100 or contact us online to make an appointment.