What if you were unable to seek medical treatment because of the pandemic

In New York State, if you are injured in an accident, you ordinarily have three (3) years to start a lawsuit. [Sidebar: there are certain types of personal injury cases that have critically short filing requirements- some as little as 90 days! It is always best to contact an attorney as soon as you are medically able to ensure you do not waive your rights by failing to timely assert your case.] Despite the law allowing specified periods of time to file your lawsuit, it does not mean that you have three years to seek treatment for your injuries.  In fact, failure to be treated for injuries shortly after the accident and to be treated continuously could seriously reduce the strength of your claim.

What is a gap in treatment?

There are two types of gaps in treatment. First is the gap between the accident and the time you receive medical care. Second is when you take a break from receiving medical care.

Accidents or incidents that lead to bodily injuries can be the basis for a lawsuit against the at-fault parties.  The injured person can sue for economic loss in addition to pain and suffering. Presumably, the more severe the bodily injury, the greater value is placed on pain and suffering. In a motor vehicle accident that occurred in New York state, a person may only recover for pain and suffering if he/she sustained a “serious” injury. In any case, to demonstrate your pain and suffering, you must provide medical proof that you sought treatment and that medical treatment was received within a reasonable time frame after the accident. Delays in treatment in certain cases could bar you from recovery. While we understand that there are injuries, such as non-displaced fractures and tears, which may not present immediately after the incident, delays in treatment need to be explained legally or medically to reduce the negative effect on your case.

Do gaps in treatment affect No-Fault coverage?

In motor vehicle accidents, under No-Fault, medical expenses may be paid without time limit, provided that within one-year after the date of the accident causing the injury, it is ascertainable that further expenses may be incurred as a result of the injury. That is not to say you should wait one-year to seek medical treatment. The sooner you are evaluated by a physician, the better for your health and any potential case resulting therefrom.

What is the effect of a gap in treatment on a personal injury claim?

While the defendant will be sure to point out any gap in treatment, cessation of treatment, or failure to begin treatment within six (6) months could be fatal to your case.  I advise my clients to seek medical treatment early and often. It is better to seek treatment and have a physician tell you that you are not injured than it is to not seek treatment for a serious injury. It is best to seek treatment on the day of the accident. However, if that time period has passed, do not allow three (3) months to go by without treatment. Our aim is to limit the arguments defense counsel and the insurance companies can use against you.  If you did not receive treatment immediately, they are going to argue that you were not injured in the accident or that the injury is not that serious- even if that is not truly the case. If there is a gap in treatment, the defense may argue that the injury is resolved or that it was exacerbated by an additional event unrelated to your accident. The less wiggle room we give the other side, the stronger our position. However, if gaps do exist, it does not automatically bar your claim. Gaps in treatment must be explained in order to satisfy the threshold motion for summary judgment.

How can we explain gaps in treatment?

If there is a gap in your treatment, it must be explained in court. If the gap is not explained in court, your case can be dismissed. See, Pommells v. Perez, 4 NY3d 566. The reason cannot be that the injured party did not feel like treating. A reasonable example of an explanation is that no-fault benefits were terminated or exhausted and there was no other means to pay for treatment. Another legally acceptable explanation was that treatment was no longer helpful, that the plaintiff had reached a plateau of treatment.

Not being able to take off from work in most cases is not a strong explanation for gaps in treatment. This is especially true in cases where you can be compensated for your time off from work, such as no-fault lost wage reimbursement. Even if this were an acceptable excuse, the defense may successfully argue that your injury is not serious enough for you to require medical treatment.

The Second Department (the court that governs Long Island) has held that a gap in treatment is not fatal to the case when the injury is permanent and a physician stated that no further benefit would be derived from additional treatment. See, Toure.

Are gaps in treatment during the COVID-19 pandemic a reasonable explanation?

As we discussed, gaps in treatment require a reasonable explanation.  During the COVID-19 pandemic, “elective” and non-emergency surgeries were postponed by executive order. Visiting an emergency room for non-emergency treatment exposed patients to a potentially deadly virus and the risk outweighed the benefits. COVID-19 caused people to choose not to seek treatment out of fear of contracting the virus.

Moreover, doctors’ offices were closed and there was no way for people to resume treatment. Insurance companies and defense attorneys are aware of the restrictions imposed due to the pandemic. Therefore, gaps in treatment from around March 12, 2020, to approximately May 15, 2020, have an explanation for not receiving treatment.  It can’t be held against you that you weren’t treated if it were near impossible to do so. If you are currently not receiving treatment because your appointments were canceled due to COVID-19, now is the time to schedule a visit. Don’t let any more time-lapse. While the delay is explainable, the longer time goes on, the less reasonable the explanation.

If you did not receive treatment or legal representation due to COVID-19, schedule an appointment to discuss your individual case with our office. Additionally, if you would like assistance determining whether a gap in treatment occurred in your care and whether a legal argument can be made in your case, we invite you to schedule a consultation to discuss your case with us.

At this time, we are conducting in-person, virtual, and telephone meetings for your safety and convenience.

To schedule an appointment to discuss your injuries after an accident, please contact us at your preferred method. T (631) 343-7676 // toccilaw.com // assistant@toccilaw.com.

Law Offices of Jennifer G. Tocci, P.C. 353 Veterans Memorial Highway, Suite 200, Commack, New York  11725.

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