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Of all the personal injury cases in New York, one of the hardest to prosecute successfully is a case arising from injuries suffered in a motor vehicle accident. This is because New York is a "no fault" state, where each driver’s own insurance should cover his or her injuries and those of his or her passengers, in the event of an accident.

Pursuant to New York Insurance Law 5102, a person who claims to have been injured in a motor vehicle accident must demonstrate that he or she has suffered “serious physical injury” to seek compensation through litigation that goes beyond that available under No Fault Insurance. Insurance Law 5102 defines a “serious physical injury” as one resulting in:

1. Death;

2. Dismemberment;

3. Significant disfigurement;

4. A fracture;

5. Loss of a fetus;

6. Permanent loss of use of a body organ, member, function or system;

7. Significant limitation of use of a body organ, member, function or system;

8. Permanent consequential 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.

Case law interpreting subdivisions 6-8 require that a plaintiff must prove that the limitation of use is either "permanent" or "significant" to prove that he or she has suffered a "serious injury" within the meaning of the statute. Kordana v. Pomellito, 121 A.D.2d 783 (3d Dep’t 1986) appeal dism’d 68 N.Y.2d 848 (1986); Countermine v. Gaalka, 189 A.D.2d 1043 (3d Dep’t 1993). Specifically, with regard to subdivision seven, the limitation of use of a body organ, member, function or system must be proven significant as well as permanent. Countermine, 189 A.D.2d at 1045. Prior to the Court of Appeals’ decision in Oberly v. Bangs Ambulance, Inc., 96 N.Y.2d 295 (2001), it was well-settled with regard to subdivision six, the loss of use of a body organ, member, function or system must be shown permanent, but not necessarily significant, as is also the case with subdivision eight. See Gaddy v. Eyler, 79 N.Y.2d 955 (1992); Scheer v. Koubek, 70 N.Y.2d 678 (1987); see also Miller v. Miller, 100 A.D.2d 577 (2d Dep’t 1984), rev’d on other grounds 68 N.Y.2d 871 (1986); Scamacca v. Bennett, 161 A.D.2d 1197 (4th Dep’t 1990). Oberly, however, makes clear that “only a total loss of use is compensable under the ‘permanent loss of use’ exception to the no-fault remedy.”

What does this mean in practice? New York courts have grown increasingly strict in recent years about allowing a motor vehicle accident case to go forward without exacting proof that the plaintiff has suffered a "serious physical injury" under the statute. Accordingly, defendants’ attorneys will invariably bring a motion for summary judgment, asking the court to dismiss a car accident case on the allegation that the injuries suffered do not meet the threshold set forth in the statute. On these motions, the courts require admissible sworn statements by treating physicians and other health care providers, certified medical records supported by physicians’ or record custodians’ affidavits, objective proof of injury in the form of X-rays, MRI or CT Scanning and specific statements by the treating physicians about their findings on physical examination and throughout the patient’s course of treatment. For example, recent cases have held that it is not enough for a physician to state that the patient has a diminished range of motion — that statement must also set forth the specific range of motion found on physical examination as compared with the normal range of motion for the limb or joint or body part at issue.

How best to be sure I can successfully prosecute my claim for car accident injuries? First and foremost, seek immediate medical assessment and care — don’t tell yourself it’s best to "tough it out" because you will not only be hurting your chances of successfully litigating your claim. You may, in fact, be causing yourself greater injury by not seeking timely medical care or failing to comply with your doctor’s recommendations.

If your doctor recommends further treatment or diagnostic testing, do what he or she tells you, whether that means getting additional radiological films taken, or undergoing electromyelogram testing to determine if you have suffered neurological injury or undergoing therapies directed toward alleviating your pain and dysfunction. If your doctor has prescribed physical therapy, go for the therapy and cooperate with the therapist’s directions for exercises and continuing treatment.

Be sure to keep careful notes and records about all medical treatment you seek, and to document and preserve your notes about the names and addresses of all healthcare providers who treat you. Be sure you know where you had MRIs or CT Scanning done.

Seek legal representation as early as you know you have suffered a serious injury, because your attorney can then contact all treating physicians and other providers to be sure that records are properly maintained and gathered, that doctors’ reports are in the proper form for admissibility in court, and that all other records, like radiological films, are similarly prepared and maintained in admissible form. Even the passage of a relatively short time can result in the loss of vital medical records and treaters can leave a clinic or hospital, making it impossible to obtain properly admissible statements later. If your doctor tells you to stay home from work or to limit your work or social or excercise activities, follow his or her orders to the letter.

Preserve all physical evidence of the accident and reports relating to the incident. If you believe there was a defect in your car or the tires, don’t let your insurance company destroy the car or the tires until your lawyer has had a chance to document their condition and to offer the defendants’ attorneys the same opportunity. The loss of such evidence, even if it is not the result of an intentional act, can result in your claim being dismissed or your attorney being severely limited in what evidence he can argue to the jury at trial. Get copies of all insurance reports and police reports, and be sure you have the names of insurance investigators and police officers who take statements from you. Give this information to your attorneys at the earliest possible opportunity.

Most importantly — be sure to continue to keep both your attorney and your treating physician and other therapists up to date with all continuing complaints of pain and dysfunction. If you are not getting better — be sure to tell your treating physician and therapists. If you have a further injury, tell them that too. You may feel that there is no utility to continuing in physical therapy or in returning to your physician if your pain is not resolving over time, but a defendant’s lawyer will argue that your injury could not have been all that serious if you stopped going to the doctor for treatment or failed to obtain a consultation or test that he recommended.

The purpose of no-fault laws, and of the court’s adherence to such exacting standards is to clear the courts’ overflowing dockets of cases that really should have been addressed by your own no-fault insurance. If you have suffered a serious injury that merits a law suit outside of the no-fault statute, it is your responsibility to be sure that you comply with your doctors’ orders and recommendations, and that you are diligent in seeking treatment and therapy, to document your injury and its continuing effect on your day-to-day life.

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