Just because you were in an auto accident does not mean that you can successfully sue for personal injuries, even if you were in fact injured. In New York State, there are certain standards that must be met in order to initiate a lawsuit. In other words, you must have what is known as a “threshold injury.”
So what are these thresholds?
In order to start a personal injury lawsuit in New York, you have to sustain what is called a “serious injury.” This means that in cases where the injuries or limitations are so minor, mild or slight as to be considered insignificant within the meaning of the Insurance Law §5102(d), the case may be dismissed in court. See, Licari v. Elliot, 57 N.Y.2d 203, 455 N.Y.S.2d 570 (1982). In order for your injury to qualify as a “serious injury,” you must have an injury that meets the criteria of New York Insurance Law § 5102(d) as an injury resulting in:
(3) Significant disfigurement;
(5) Loss of a fetus;
(6) Permanent and total loss of use of a body organ, member, function, or system;
(7) Permanent consequential limitation of use of a body organ or member;
(8) Significant limitation of use of a body function or system; or
(9) 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 90 days during the 180 days immediately following the occurrence of the injury or impairment.
If you’ve sustained any injury as a result of an auto accident, you should contact an attorney who can determine if your injures fall into one or more of these categories. If you believe your injuries fall into one or more of these categories, or are unsure if they do, then a skilled attorney will be able to evaluate your case.
Are there any other qualifications?
If you file a lawsuit, it is the plaintiff’s burden (party who started the lawsuit) to establish that you have sustained as “serious injury.” In order to have a successful claim, your injuries must be evidenced by documented and tested medical evidence. Such documentation can include test results from a CT scan, MRI or other evaluative tests performed after the accident. In most cases, even though you have three (3) years to begin a lawsuit in New York, the tests will have to be performed and documented within a year of the accident or the court may not accept them. Your doctor must also document that the injury was sustained solely from the accident, and not from another medical issue. Although, having a pre-existing condition does not limit your claim, so long as a physician can document that the aggravated injures are a direct result of the accident. Therefore, you may still have sustained a “serious injury” despite having a pre-existing condition.
When should I contact an attorney?
In New York, there is a time limit, or a statute of limitations, for filing a lawsuit. This time limit is three-years from the date that the accident occurred. Waiting months, or even years to contact an attorney could have serious negative impacts on your case. Just because you are still in the process of being treated by physicians, does not mean that you should wait to contact an attorney. Your attorney should act as your trusted advisor, ensuring that you receive direction, protection, and clarity.
For a personalized and free evaluation of your situation, call the Law Offices of Jennifer G. Tocci, P.C. (631) 343-7676.
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