An injury sustained as the result of an accident can range from mild (little to no injuries), to severe (fractured bones or a catastrophic injuries). Regardless of the extent, any injury is unfortunate and painful. As such, a person injured as a result of another’s negligence may be eligible to compensation for their injuries. If you’re injured in a car accident, you may be entitled to sue the at-fault drivers. However, in motor vehicle accident cases, New York State requires injured parties to prove they have sustained what is called a “serious injury,” in order to pursue a claim for pain and suffering in the state of New York.  

            In New York State, Article 51 of the Insurance Law requires that a person prove they have suffered a “serious injury.” According to Insurance Law § 5102(d) a serious injury is defined as a personal injury in which results in at least one of the following:

  • 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 function or system
  • Significant limitation of use of a body function or system
  • 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 90 days during the 180 days immediately following the occurrence of the injury or impairment.

            The Insurance Law permits lawsuits for individuals who have been killed, dismembered, significantly disfigured, and/or experience fractured bones, loss of a fetus, permanent loss of use or permanent significant limitation of a body part, and/or are medically impaired for ninety days after the first 180 days following the accident.  This means that injuries must at least meet one of the above standards to file a lawsuit. If a lawsuit is filed for a minor injury, the defendant (party being sued) can have the case dismissed on a motion of summary judgment. Insurance companies are extremely aware of Insurance Law § 5102 (d) and the legal definition of a “serious injury.”  Frequently, insurance companies will argue that an injured party is not entitled to compensation for pain and suffering because their injuries do not meet the “serious injury” threshold. The insurance companies will length to avoid losing money.  Even injuries that are seemingly clearly serious may be brushed off by insurance companies. The attorneys at the law offices of Jennifer G. Tocci, P.C., begin work at the outset of the case to prevent a serious injury from being dismissed.

            While there is a strict threshold to prove you have a serious injury and are eligible to pursue a claim in New York State as mentioned above, there are a few other injuries that you can potentially deem to be a “serious injury,” although not mentioned above. Some injuries such as herniated discs, muscle strains, and other soft tissue injuries could potentially hold enough weight to satisfy this threshold, depending on the individual. It is important to seek medical attention as soon as possible following the day your injury occurs. Your health is of the utmost priority; however, the strength of your case depends on immediate and continuous treatment as well.

            The law allows a party who suffers an injury that is not enumerated in the statute to a claim if that injury satisfies the 90/180 rule.  The 90/180 rule allows injured parties with less severe injuries, that may not constitute as a “serious injury,” to successfully file a lawsuit. The rule requires that the injury impedes on their daily activities for three months out of the six months, immediately following the date of accident. These daily activities may include attending school or work, keeping up with personal hygiene, walking or standing up, etc. This necessitates a medical examination that links a causal connection between the injury and the accident. The medical documents must show that the patient has not been able to perform normal activities as a direct result of the injuries sustained in the car crash.  Those normal activities must be interrupted for at least a period of three-months to satisfy the 90/180 rule. Medical records documenting examination and treatment must immediately follow the accident. A delay in treatment may weaken your case.  The longer the gap between the accident and your treatment time, the more your case is compromised, even if you have suffered a serious injury.  The focus in injuries is to prove how your injuries have affected you in the last 90 days since you experienced the injury.

            If you suffered a serious injury or are unsure if your injury constitutes as a “serious injury” pursuant to New York State’s statute, it is recommended to speak with an attorney who is well versed in personal injury litigation. Contact the Law Offices of Jennifer G. Tocci, P.C. for a free thirty-minute consultation to discuss your specific situation.

Law Offices of Jennifer G. Tocci, P.C.

353 Veterans Memorial Highway, Suite 200

Commack, New York  11725

(631) 343-7676

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