What is the law if you are injured in a vehicle accident?
In New York there is a distinction between a vehicle accident and all other types of torts. The No-Fault Law or Insurance Law § 5101 et seq. provides compensation for basic economic loss that happens when injuries occur involving an insured motor vehicle regardless of fault. However, the No-Fault Law bars recovery in automobile accident cases for anything other than basic economic loss unless the plaintiff has a “serious injury” as defined in statute NY CLS Ins § 5102(d). Basic economic loss includes medical and any other professional health service costing up to $50,000. Having a serious injury is very important, because without a serious injury as defined by the statute a plaintiff cannot recover anything above $50,000.
What is a serious injury?
A serious injury as defined by § 5102(d) means: “a personal injury which results in death; dismemberment; significant disfigurement; a fracture; 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”.
This statute can be broken down into 9 parts.
- Significant disfigurement;
- A fracture;
- Loss of a fetus;
- permanent loss of use of a body part;
- Permanent limitation of use of a body organ or member;
- Significant limitation of use of a body function or system; or
- A non-permanent injury, which prevents a person from doing substantially all of his usual activities for at least 90 days out of 180 immediately following the injury.
Numbers one through six are fairly self-explanatory. Significant disfigurement will be briefly discussed, but the others do not need further discussion. Numbers seven through nine are more complicated and will be discussed in further detail. In all instances of a serious injury if a defendants’ evidence offered in support of summary judgment is determined to be sufficient, then the burden shifts to the plaintiffs to submit evidence based on objective medical findings and diagnostic tests to show that an issue of material fact exists. Perl v. Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655 (2011). The plaintiff must show objective proof of a serious injury; a subjective complaint alone is not sufficient. Id.
Permanent and significant physical limitation
In order to prove that a serious injury exists based on a permanent or significant physical limitation a two-prong test is used involving a quantitative and/or a qualitative prong. Id. One of these prongs must be satisfied by an expert who has examined the plaintiff. Id. The quantitative prong is a numeric percentage of a plaintiff’s loss of range of motion. Id. An expert’s qualitative assessment of a plaintiff’s condition must compare the plaintiff’s limitations to how the affected area would normally function. Id. While the qualitative prong can prove serious injury, it is much easier to prove based on the quantitative prong, as an exact percentage of the limitation that exists is easier to prove objectively. There is no set number on the quantitative prong for loss of range of motion, but it must be more than minor, mild or slight. A 10 percent loss of range of motion in the shoulder would be considered minor and not constitute a serious injury. Sellitto v. Casey, 268 A.D.2d 753, 702 N.Y.S.2d 177 (App. Div. 2000). On the other hand, a 25 percent loss of motion of the lumbosacral spine could constitute a serious injury. Gentile v. Snook, 20 A.D.3d 389, 799 N.Y.S.2d 230 (App. Div. 2005). There is no timeframe as to when the quantitative prong must be measured. Recovery is not barred if the injury is treated by a doctor immediately and a quantitative measurement not taken until a later date. Perl v. Meher, 18 N.Y.3d 208 (2011). However, it is important to initially prove causation. This is because it becomes difficult to make a causal connection between the symptoms and the accident if the examination by a doctor takes place years later. Id. But once causation is proved, it is allowable to measure the severity of the injuries at a later date. Id.
The 90/180-day threshold
A non-permanent injury, which prevents a person from doing substantially all of his usual activities for at least 90 days out of 180 immediately following the injury raises the question of what does the term “substantially all” mean? According to the courts “substantially all should be construed to mean that the person has been curtailed from performing his usual activities to a great extent rather than some slight curtailment”. Licari v. Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570 (1982). It is also important to note that the 90-day requirement is not flexible and is a threshold number which must be met in order to prove a serious injury under this category. If someone was to return to work after 80 days and resume all their normal activities, even though they were out for a significant amount of time they would not meet the 90-day threshold and would not be considered to have had a serious injury under the statute, unless they could satisfy one of the other 8 categories. While when someone return to work is important in determining if they will meet the 90-day threshold, it is not dispositive. For instance, in a case where the plaintiff went back to work before 90 days, but was required to rely on assistants to carry everything for him except very light objects, could not perform his usual household duties, could not participating in recreational activities, and could not engaging in sexual relations for more than three months following the accident, there was a sufficient question of fact if the plaintiff suffered from a “medically determined injury that curtailed him from doing substantially all of his usual activities to a great extent rather than merely a slight curtailment”. Judd v. Walton, 259 A.D.2d 1016, 703 N.Y.S.2d 845 (App. Div. 1999).
A disfigurement is significant if “a reasonable person viewing the plaintiff’s body in its altered state would regard the condition as unattractive, objectionable, or as the subject of pity or scorn”. Waldron v. Wild, 96 A.D.2d 190, 468 N.Y.S.2d 244 (App. Div. 1983). The number of scars, length, and position of the scaring play a key role in determining if there is a significant disfigurement and therefor a serious injury. For instance, the court determined that multiple facial lacerations could constitute significant disfigurement. Id. However, a 3-inch-long scar on the plaintiff’s head that was covered by his hair was not considered a significant disfigurement. Caruso v. Hall, 101 A.D.2d 967, 477 N.Y.S.2d 722 (App. Div. 1984). A court found that a 6-inch-long scar on a plaintiffs’ shoulder could be considered a significant disfigurement. Matula v. Clement, 132 A.D.2d 739, 517 N.Y.S.2d 100 (App. Div. 1987). However, a 1/8th inch scar on a baby’s face, near his eye, that was barely visible did not constitute a significant disfigurement. Koppelmann v. Lepler, 135 A.D.2d 507, 522 N.Y.S.2d 12 (App. Div. 1987). As you can see from the examples, significant disfigurement is based on a case by case analysis and there is no set standard as to what length or placement of the scares constitute a serious injury as define by the statute.
Causal connection between the accident and the injury
Lastly, is the question of what constitutes a causal connection between the accident and the injury? First, even if you have a preexisting injury, you can still raise a triable issue of fact as to the causal connection between the accident and the injury. Perl v. Meher, 18 N.Y.3d 208 (2011). For instance, in Perl the plaintiff’s injuries were degenerative and longstanding in nature, before the accident occured. Id. In Perl even though the plaintiffs’ contrary evidence claiming the damage was from the specific trama was weak, it was still sufficient to raise a triable issue of fact. The radiologist said that a single MRI while consistent with degenerative disease cannot rule out the possibility that the patient’s suffered damage as a result of a specific trauma. Id.
The treating physician in Perl stated that the findings were causally related to the accident because the plaintiff had “not suffered any similar symptoms before the accident or had any prior injuries/medical conditions that would result in these findings”. Id. Even though the plaintiff was 82 and the injuries could have been from degenerative disease, in Perl it was decided that it was a question of fact for the jury. This is because it could not be said with certainty what the cause of the damage was. Id. When it is undeterminable if an accident worsened or exacerbated a pre-existing injury, that becomes a question of fact for the jury as to if there is a causal connection between the accident and the injury.