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What is a “Serious Injury” and how do I Prove I Have one so I can Bring a Claim for my Car Accident Injuries in NY?
Our Syracuse car accident lawyers are well versed in New York’s “no-fault” law, which requires injured car accident victims to have a “serious injury” before they can bring a claim for pain and suffering compensation.
But let’s back up. We need to first understand a bit about the “no-fault” law in New York. Under today’s New York no-fault law, if you are injured in a car accident, you are automatically entitled to “no-fault benefits” from the insurance for the car you were driving or riding in (regardless of who was at fault). The same is true for an injured pedestrian hit by the car. “No-fault” benefits consist of up to $50,000 in medical expenses and/or lost income. The lost income claim is limited to three years from the date of the accident, but the medical expenses claim has no time limit. Normally, you don’t need a lawyer to represent you on a no-fault claim; it is automatically paid without question. Our lawyers don’t get involved in no-fault claims unless things go wrong, which usually does not happen.
But you do need one of our Syracuse car accident attorneys to present your “pain and suffering” claim against the at-fault driver. That’s because unless you have suffered what the Insurance Law calls a “serious injury” you cannot bring any claim at all for “pain and suffering compensation”. All you get is your no-fault benefits. Often, only your lawyer can figure out whether you have a serious injury. It’s complicated! And even if it is simple, you will need that lawyer to argue the value of your claim to the insurance carrier and/or in court. You certainly should not bring that claim on your own. The insurance company will take advantage of your inexperience and lack of knowledge. They will likely “low ball” you a puny settlement offer. Our Syracuse car accident lawyers are here to help you so give us a call for a free consultation.
What is a “serious injury”? You can read the different categories of “serious injury” right in Insurance law §5102(d). But to summarize, a “serious injury” under the no-fault law is when you have a significant scar, or have a permanent and significant loss of use of a body part (such as your neck, arm, leg, back), or you suffered a fractured bone, or if the injury kept you from doing the kinds of things you usually do for ninety out of the first 180 days after the accident. If you were killed, this is obviously also serious, and your family can bring a claim. Also, if you lost a fetus in the accident, that’s considered “serious”.
The problem with the no-fault list of “serious injuries” is that it leaves a lot out. A lot of injuries that people get in car accidents feel serious, even if the Statute does not consider them “serious”. For example, it is very common to get a “whiplash” type injury to the neck in a car collision. This is what is known as “connective” or “soft tissue” injury. But even if you end up with permanent and significant pain in your neck, it is hard to prove it is a “serious injury” within the meaning of the Statute because you don’t have a fractured bone, and you were not taken out of work for 90 days within the first 180 days, etc., etc. You don’t fall into any of the “categories”. And under the no-fault law, “subjective” (“it hurts”) symptoms don’t qualify for a “serious injury” on their own. There has to be something else, for example, a significant permanent loss of use of the body part. And the symptoms have to be objectively measurable. (Example: the doctor measures a range of motion limitation, or sees a herniated disc on your cervical MRI that he says was created by the forces of the collision).
In sum, to qualify for any compensation for pain and suffering in a New York State car accident case, you must meet the “serious injury threshold” in at least one of the categories listed in Insurance Law section 5102. It isn’t always easy to reach the threshold.
One more thing: Even if your injury does not qualify as “serious”, you may be able to bring a claim against the at-fault car’s insurance for “excess economic loss”. This means any lost wages or medical expenses that were not covered by the $50,000 no-fault insurance limit.
Call our Syracuse car accident attorneys today for a free consultation. For more detailed information about the “serious injury” threshold, see our “special report” on this subject here.
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