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New York Car Accidents- Time For Reform

November 20, 2009
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As a New York car accident lawyer, I am frustrated at having to turn away injured clients because they are not hurt enough to sue. The New York Legislature truly sold out its citizens to the insurance companies when it passed New York Insurance Laws 5102 and 5104.

These laws basically state that you cannot recover even a dollar for pain and suffering from a car accident unless you have sustained a “serious injury” as the law has defined it. Under NY Insurance Law 5102(d) a “Serious injury” means 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.

This means that numerous injuries that are indeed serious and cause havoc to people’s lives are not recognized to be serious under New York Law. The result has been that numerous people who have been injured, get their lawsuits dismissed because they were not “hurt enough” or their doctors did not properly diagnose and document their injuries and limitations.

The Courts have restrictively interpreted this law and have held that even injuries which the medical community considers serious are not serious unless it causes someone to loose 90 days of work or permanent loss of motion of the body part. For example,herniated discs, nerve injuries and even torn ligaments, torn rotator cuffs which require surgery have been held not to be serious injuries becuase they did not cause a loss of a range of motion or disaibility for 90 days.

The result is the person who suffers and works in pain, gets their case dismissed while the slacker who stays out of work gets to go to trial. Also, people who have been legitimately injured in car accidents get their case dismissed while the insurance companies walk away laughing. Even more egregious, the winner of a case, gets to have some of their costs paid by the adversary. Therefore, insurance company lawyers who win cases because a person was not “injured enough” are getting judgments against the people who were injured by the negligence of their insured.

This law was sold to the publis as providing “no fault” guarenteed medical benefits for their injuries and lower insurance premiums. The reality is that the insurance companies are cutting off injured people from medical treatment, the first chance they get. They send their insureds to hack doctors who are professional liars and who find that everyone has reached maximum medical improvement and does not need further care.

The result is that the doctors are no longer treating accident victims after the insurance companies cut them off, which in turn makes it more difficult for the accident victim to prove they have the consequential or significant permanent limitations that the Insurance Law requires to bring a lawsuit.

It is time for this terrible and archaic law to be changed. It is time that the New York car accident lawyers who represent accident victims and the Insurance Companies are on an even playing field. The definition of serious injury needs to be amended to include injuries that require surgery, herniated discs, nerve injuries, and other injuries that have long been considered serious. The insurance companies have gotten away with murder and it is time for this to stop.

This law has allowed the insurance companies to victimize those injured in car accidents and legislative reform is necessary.

 
The Law Offices of Michael H. Joseph