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In the state of New York, there are several barriers that a resident must overcome to commence an action. Sometimes these barriers can be procedural, as in filing a claim within the statute of limitations. Other barriers are substantial, and that includes serious injuries. For victims who are injured in a Queens car accident, or any other accident, both serious injury and the statute of limitations must be satisfied to file a lawsuit. Many ask about what constitutes a serious injury in a Queens car accident, and how can they prove it.
The experienced NYC personal injury lawyers at Cohen & Cohen Personal Injury Lawyers P.C., know the ins and outs of New York law. They also know how important it is for the victims and their families to receive compensation for their injuries and emotional distress. Victims may be able to seek compensation for expenses such as:
Pain and Suffering
Past and Future Lost Wages
Medical Bills
Loss of Consortium
Property Damage
Many more
Cohen & Cohen Personal Injury Lawyers P.C. have all the necessary experience and knowledge to help victims of car crashes and other motor vehicle accidents. They know exactly what to do to prove that injuries are serious in a court of law, and they will always fight for the rights of their client to the fullest extent. Contact Cohen & Cohen Personal Injury Lawyers P.C. for a free case consultation to learn how they can fully protect your rights in and out of the courtroom.
Under New York law all motorists are required to hold a minimum of a $25,000/$50,000 insurance policy. This policy pays out $25,000 per person and a total of $50,000 per accident. Any motorist who does not have this basic form of insurance can be fined if they are caught driving a vehicle. Drivers should also carry SUM coverage which will cover above and beyond what insurance the defendant may have. This insurance policy only covers the purchaser and their direct family members which means the premiums go directly to the insurance policyholder. Experienced car accident attorneys in Queens always recommend purchasing as much SUM coverage as they can afford to be fully protected if serious injuries are sustained in a car accident.
New York is a no-fault state which is why they require a minimum amount of insurance to be held for each driver. This means that when a driver or passenger is in an accident, they can immediately turn to their own insurance company to receive compensation for their injuries. This lessens the number of hurdles that victims have to jump through to have their medical bills paid no matter who is at fault.
Once fault is established, the victim’s insurance company can go after the at-fault insurer to receive a contribution or indemnification. To do this, special requirements must be met, and one of those is proving that the injuries sustained were in fact serious.
A serious injury is found under the definitions section of insurance law, and victims must prove that they meet this definition to file a claim or lawsuit. These definitions are put into place to prevent excessive motor vehicle injury lawsuits for drivers who have moderate or mild injuries. This is known as a threshold requirement.
New York Insurance Law Section 5102 (d) defines a serious injury as:
“... personal injury that results in death; dismemberment; significant disfigurement; a fracture; loss of fetus; permanent loss of use of 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.”
To file a claim for injuries sustained in a motor vehicle accident, they must prove that they sustained one of the injuries defined above. If the victim has not received an injury that can be defined as serious, then the defense may move to have the claim dismissed.
While the requirements for filing a claim for serious injury compensation are straightforward, the definition of a type of serious injury under New York insurance law may be very broad. Litigation and judicial decisions are the ultimate defining factor that will evaluate the requirements. Serious injury law is normally contested and is a frequent issue in Queens car accident cases.
Death - This is the most serious of injuries. This will obviously not be litigated by the victim, but by their families.
Significant Disfigurement - When there are widespread burn injuries or catastrophic facial injuries, this type of injury can be easier to prove than in certain scarring cases. Additionally, an amputation or limb loss would also qualify as this type of injury, however, dismemberment would fit better.
Dismemberment - Not as common, but easily proven as the victim will be missing a limb.
Loss of Fetus - This is a very rare and catastrophic injury and loss. This can be easily proven in court.
Fracture - This is the easiest and most common type of injury sustained in car accidents. A fracture is considered any broken bone that was not pre-existing at the time of the car accident.
Grouping together:
Permanent loss of use of a body organ, member, function, or system;
Permanent consequential limitations of a body organ or member; and
A significant limitation of use of a body function or system:
These types of injuries are usually grouped as one or more can be related. They are also the most commonly plead or argued serious injuries in car accident cases, especially in soft tissue injuries in the neck and back. Torn rotator cuffs, meniscus, knee ligaments, and other injuries that require a scope surgery or similar treatment also apply.
Using objective evidence, the victim must prove that these injuries are established. Objective evidence can be MRI scans or medically confirmable doctor testing or other things along the same lines. Objective evidence cannot be subsequent complaining of pain from the victim, because this cannot be objectively identified.
When victims receive permanent injuries, a doctor must testify that the injuries sustained in the car accident are permanent with reasonable medical certainty and that the condition may improve minimally, but not completely return to normal.
For consequential limitations, the injuries must be more than inconvenient or more than a slight injury. It must have a true impact on the victim. Having a range of motion restriction that is more than 20% of what the victim previously had is enough to receive a motion for summary judgment. It’s generally enough to establish serious injury during a bench trial, but may not be enough in a jury trial.
As a catchall type of serious injury, this is the last but also most commonly plead. An individual must have been unable to perform his or her usual and customary daily activities for 90 days after a Queens car accident to qualify for this category. This is a temporary but substantial injury. An example of this is being under doctor's restrictions for more than 90 days after an injury, including not being able to work, lift objects, drive a vehicle, or do anything strenuous at home. Additionally, a victim's bed rest at home for this period can be established. Nonetheless, being unable to work for 90 out of the first 180 days usually isn't sufficient in and of itself. In most cases, additional daily activities are also needed, such as being able to shower, wear clothing, and even walk the dog.
We work really hard for our clients here at Cohen and Cohen Personal Injury Lawyers P.C. We protect our clients' rights when someone or something causes needless and reckless harm to them. You or a loved one may be entitled to compensation under New York law if you or a loved one were seriously hurt in a Queens car accident. Our NYC car accident lawyers offer a FREE consultation to explain your rights to compensation. Learn how we can help you by calling 718-568-5673 for a FREE case evaluation or use our convenient and easy-to-use contact us box available here.
