In 2011 there were over 11,000 motor vehicle accidents involving severe injury or death in New York State.1 Should you or a loved one ever have the misfortune to become a member of this depressing statistic, it may suddenly become important for you to understand, at least generally, how motor vehicle insurance works. Specifically, it may be helpful to understand how the law defines a “serious injury” under the Insurance Law.
The New York State legislature enacted no-fault automobile liability insurance in 1973. No-fault insurance creates an entitlement to certain payments to any “covered person”2 injured as a result of the use or operation of an automobile in the state. Generally, injured parties are compensated for their “basic economic loss”3, up to a maximum of $50,000, without regard to who was at fault in the accident. This means that medical bills and some lost wages will be paid up to the $50,000 limit, assuming that the insurance carrier does not cut off your benefits. No-fault insurance is paid by your insurance company.
The catch, however, is that no-fault insurance restricts a covered person’s right to commence a lawsuit for personal injuries arising from an automobile accident. In other words, your right to sue the other driver who caused the accident is limited or conditional. Covered persons (you) are only permitted to bring lawsuits against other covered persons (the other driver) for the recovery of: (1) property damage; (2) death benefits; (3) economic losses not included under “basic economic loss” or in excess of the $50,000 limit; and (4) noneconomic losses if there is a “serious injury”. If the damages you are seeking do not fall into one of these categories than your lawsuit will be dismissed.
In many instances it is a person’s severe injuries that prompt them to commence a lawsuit following an automobile accident. In order to file suit the injury must be “serious.” “Serious injury” is defined by the Insurance Law § 5102(d) as:
…a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a 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.
Some of these injuries will be readily apparent and are easily demonstrated – a fracture for example. But as you go further down the list defining a “serious injury”, it gets more confusing. In many cases there is heated contention regarding whether the plaintiff’s injury is “serious.” Because the Insurance Law requires that a plaintiff meet the legal definition of “serious injury”, it is important for a plaintiff (you) to do what she can to demonstrate that her injuries meet the definition. There are a few actions that an injured person can take to help demonstrate that they have suffered a “serious injury”:
Use the language of the statute when visiting your doctor
Doctors’ reports can have great evidentiary value in a case. If you use language that is similar to the language in the Insurance Law when visiting your doctor, and if the doctor writes that language down in her report, you may have just helped your case.4 Most of the injuries sustained in motor vehicle accidents result in resort to the portion of the definition involving “significant limitation of use of a body function or system”. Generally the systems involved in the injury are the central and peripheral nervous system and the musculoskeletal systems. The body functions include walking, sitting, sleeping, working, and the like. Think of them as activities of daily living.
So, for example, if you are experiencing significant limitation of use of a body function or system, use that language when visiting your doctor. “Doctor, my ability to [use my body function or system] is significantly limited [in the following ways].” If your injury prevents you from performing many of the acts that you usually perform in your day-to-day life, tell that to your doctor and do so using language similar to the language of the statute. “Doctor, my injury is preventing me from performing almost all of my usual daily activities, [such as x, y, z].”
There is a vocabulary that is commonly used in describing pain. It can be sharp and localized, or radiating down your arm or leg. Pain can also be described as dull, aching, burning or stabbing. Think about the right words to describe your pain before you see your doctor.
It should go without saying that you cannot lie or exaggerate your injuries and symptoms. But if you have injuries and symptoms that you believe fall within the Insurance Law definition of “serious injury”, tell your doctor and use the language of the statute. Don’t do this just one time. Do it every time you see the doctor. And do not let your doctor end the visit after a 60 second examination, before you are able to get the words out of your mouth – you have a right to describe your symptoms to your doctor, and this is not the time to be shy or passive. Increase the likelihood that language similar to the language of the Insurance Law finds its way into the doctors’ reports by using appropriate words and descriptions.
Keep a pain journal
If you keep a journal of your symptoms as they occur, it helps your doctor understand your injury and it will help you recall details.5
If a journal is kept, entries should be made consistently – it would be a bad idea to start a pain journal and then leave large gaps in time where there is no entry. While entries should be made on a regular basis, they do not need to be long. For example, an entry would include the date and then may say something like “tried to go for a walk but could not move around easily due to leg pain,” or “tried to garden but could not due to back pain.”
Pain can be recorded on a 1 to 10 scale. You should note frequency, intensity, location and duration of pain. This will help your doctors help you.
Once again, it should go without saying that you cannot lie or exaggerate your injuries and symptoms. But the idea behind the pain journal is to assist your doctor in diagnosing your injury and developing a treatment plan. It has the additional benefit of demonstrating to your doctor that you are a serious patient.
The No-Fault Law is complex, and there are many more considerations that go into a case than have been addressed here. However, as described above, there are certain actions you can take to help demonstrate to a court that you have a “serious injury” as defined by the Insurance Law.
If you or a loved one have been seriously injured in a motor vehicle accident you should contact a personal injury attorney to discuss your rights and options.
1 New York State Department of Motor Vehicles, Summary of Motor Vehicle Crashes, 2011 Statewide Statistical Summary, available at https://www.dmv.ny.gov/Statistics/2011NYSCrashSummary.pdf.
2 Although the full definition is a little more complex, for purposes of this article you can assume that you are a “covered person” under the Insurance Law if you are a pedestrian or if you have motor vehicle insurance.
3 A complete definition of “basic economic loss” is beyond the scope of this article. For our purposes, let it suffice to say that basic economic loss includes necessary medical expenses and loss of earnings from work which a person would have performed had they not been injured.
4 Making sure you describe your injuries and symptoms to your doctor using the language of the statute may help your case, but your subjective description of your injuries alone cannot win your case. Ultimately, more medical evidence will be required to demonstrate a “serious injury”. Toure v. Avis Rent a Car Sys., 98 NY2d 345 (2002).
5 Once again, while keeping a good quality pain journal may help your case, your subjective description of your injuries alone cannot win your case. Toure v. Avis Rent a Car Sys., 98 NY2d 345 (2002).
Tobias A. Lake is an associate with the firm’s Municipal and Environmental/Land Use Teams, concentrating in land use, municipal and environmental law as well as being a member of the firm’s Litigation Team. He can be reached by phone at 845-778-2121 toll free or 845-778-2121 and by email.