In the State of New York, whenever you are involved in an automobile/car accident, the “serious injury threshold” law applies.
Many individuals right after a car accident want to know the simple question, “Do I have a case”? Frequently, the answer is “it depends.” Clients look startled and/or stunned after I explain that even though the person that caused the car accident might be 100% responsible, they “may” have a case depending on their injuries, time out of work, and treatment. With other accidents such as trip and falls, slip and falls, elevator accidents or many other accident, the serious injury threshold does NOT apply. It only applies to automobile accidents. Weird right? Essentially someone who trips and falls and has a minor scratch can still sue even if they don’t have a “serious injury” which is odd. Even though you may have two people, with the same injury, both may not have a case depending on how their accidents occurred.
Serious Injury Threshold only applies to Automobile/Car Accidents. Article 51 of the NYS Insurance Law states in order to have a serious injury you need one of the following:
- Death (so yes you have to be dead) or;
- Have a Significant Disfigurement (which is like a bad scarring that would subject a ordinary person to pity from the general public);
- Loss of a Fetus (death of an unborn baby);
- Fractured Bone (which means a broken bone);
- At least 90 out of the first 180 days all of your Daily Life Activities are Substantially Impaired due to a Medically Determined injury or Impairment (this is a big one – everyone is different and your “daily life activity” may be different if you are 15 years old vs 90 years old, or whether you went work or attend school and couldn’t due to the accident and all other factors that may be applicable – it doesn’t have to be 90 consecutive days but at least 90 days out of 180 days right after the accident);
- Permanent Consequential Limitation of a Body Organ or Member (which means a body organ or member has been limited permanently such has having your lungs collapse and then having breathing problems after due to the lung being limited permanently due to the accident);
- Permanent Loss of Use of a Body Organ, Member, Function, or System (which means you permanently lose the use of an organ, member, function or system such as go blind or cannot get an erection anymore at all and therefore can be sexually active);
- Significant Limitation of Use of a Body Function or System (which mean that you can lose “range of motion” in a body part has been significant which will be determined by range of motion testing or of a system and degrees of limitation of a body part).
So as one can see, it depends whether you have a serious injury which will determine whether you have a case whenever involved in a car accident. The threshold law does not apply to motorcycle accidents.
Essentially, if you don’t have an injury contained in 1-4 above, then we will have to see if you “qualify” as having a serious injury depending on what body parts you injured. Factors that will be looked at is treatment frequency and duration, your recovery after receiving treatment, whether you missed time from work and how long, whether you had surgery or injections and other factors.
What is important that even if you don’t have a serious injury after a car accident, no fault will pay for your time loss out of work if a doctor determines that you cannot work, for your mileage to and from doctors, for your medical bills, medication and other expenses. But you must timely file an application for no fault benefits and a doctor would have to give you a disability note directing you to refrain from work. That is separate and apart from whether you have a serious injury and whether you can recover for your “pain and suffering” and “future medical bills” and other recoveries.
Like I explain to every one of my clients who are involved in a car accident, what is most important after an accident is your health. Getting a lawyer by your side to defend you against the ferocious insurance companies is critical. You need to worry about getting better, not worry about paperwork and arguing with insurance companies.
Contact our office today at (718) 340-3385 to see if you have a serious injury and to discuss your rights after an accident. Note there are very strict deadlines with automobile accident cases so getting a lawyer immediately to protect all your rights is critical. Thank you for reading and wish you a speedy recovery!
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