New York Car Accident and “Serious Injury”

You are injured in a New York car accident that was caused by the fault of another. You are treating with a doctor, possibly undergoing physical therapy. You’re not sure what your rights are and you decide to consult with a New York personal injury lawyer.

When someone brings a claim for injuries sustained in a New York car accident, the law requires that they prove they sustained a “serious injury” as defined by statute.

The New York Insurance Law defines a “serious injury” as an 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.”

In New York, there are numerous court opinions that have interpreted the law to determine what is a “serious injury.” Most of the litigation concerns the areas of the of the law that are not so obvious, to wit, “permanent consequential limitation of use of a body organ or member” and “significant limitation of use of a body function or system.”

The issue arises when counsel for a defendant makes a motion to the court asking the court to dismiss the case as a matter of law because the plaintiff did not sustain a serious injury as defined by the law.

Generally, these cases involve neck or back injuries, such as disc herniations, or sprains of an extremity.

If the defendant makes a prima facie showing that the plaintiff did not sustain a serious injury, the burden will shift to the plaintiff so show that he/she did. This must be done by submitting objective medical evidence in admissible form. An MRI result is objective evidence and the results must be certified by a medical doctor. All medical records submitted must also be certified to be considered by the court. In addition, an affirmation by a treating doctor stating the results of tests that were performed as compared to what is considered normal. The doctor must also aver that the injury is significant and permanent and causally related to the accident.

If this rebuttal is done in a proper fashion, this raises a question of fact for the jury to decide and the court should deny defendant’s motion and let the case be submitted to trial.

At trial, the jury will again decide the issue of whether plaintiff sustained a serious injury as a result of the New York car accident.