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Medical Malpractice and Personal Injury Articles and Updates

Section 5102(d) of the New York State Insurance Law defines seven standards for a serious injury which must be met for a person to succeed in a lawsuit related to car crashes.  Therefore, a person must satisfy at least one of these seven definitions before he or she can pursue a lawsuit:

  • Personal injury which results in death
  • Dismemberment; significant disfigurement
  • 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
  • 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 and seven 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 seven.

Since the law does not make these definitions clear, the Courts have defined them through rulings by judges, which is 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 seven 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?

The case law is constantly changing. This situation certainly clouds the threshold for a serious injury in New York creating doubts for all parties, especially plaintiffs. An attorney handling auto accidents or other accidents that involve the threshold requirement needs to stay on top of all court decisions and research the particular application of the case.

Posted in: FAQ, Legal Concepts
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