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When your personal injuries pass the “Thershold” / “Serious Injury”

HOME -> Our blog -> When your personal injuries pass the “Thershold” / “Serious Injury”

20 July 2013
Personal Injury


In the State of New York, a plaintiff in a personal injury action arising out of the negligent use or operation of a motor vehicle, must establish that he or she has suffered a “serious injury.”  Article 51 of the Insurance Law defines a serious injury as an injury that results in:

  • Death
  • Dismemberment
  • Significant disfigurement
  • Fracture
  • Loss of a fetus
  • Permanent loss of use of an body organ, member, function or system
  • Permanent consequential limitation of use of a body function or system
  • Medically determined injury/impairment of a non-permanent nature which prevents an injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury/impairment

Establishing certain “serious injuries” such as a fracture or dismemberment are fairly straight-forward.  However, the last three categories contain language that is incredibly vague and has led to wildly inconsistent rulings across the courts.

The Court of Appeals recently took a step towards clarifying what constitutes a “serious injury” pursuant to Insurance Law §5102.  In Perl v. Meher, 18 N.Y.3d 208 (2011), the Court of Appeals considered categories of “serious injury” cases that involve:

  • Permanent loss of use of an body organ, member, function or system
  • Permanent consequential limitation of use of a body function or system
  • Medically determined injury/impairment of a non-permanent nature which prevents an injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury/impairment

Previously, plaintiffs with these categories of “serious injury” had to present evidence that was both quantitative and contemporaneous with the injury.  Quantitative evidence of a “serious injury” often meant that physicians would have to designate a specific numeric percentage of loss of range of motion or use of body function to substantiate a claim of “serious injury.”  Generally, this meant measuring a plaintiff’s range of motion with limitation and comparing it to the normal range of motion and calculating a percentage of loss.

In Perl, the Court of Appeals realized the problem with requiring medical evidence that was quantitative and contemporaneous – it punished plaintiffs who treated with physicans who were not savvy to the intricacies of Insurance Law §5102.  Those physicians who are unaware of the requirements of this statute may not meticulously quantify measurements in their notes.  This does not mean these physicians are not treating their patients properly – it simply means that they are thinking primarily about treating the patient and not about any litigation that their patients may be pursuing.

The Court of Appeals wrote in Perl:  “We agree with the Appellate Division dissenters in Perl that a rule requiring “contemporaneous” numerical measurements of range of motion could have perverse results. Potential plaintiffs should not be penalized for failing to seek out, immediately after being injured, a doctor who knows how to create the right kind of record for litigation. A case should not be lost because the doctor who cared for the patient initially was primarily, or only, concerned with treating the injuries. We therefore reject a rule that would make contemporaneous quantitative measurements a prerequisite to recovery.”

What does this mean for personal injury plaintiffs?  Primarily, this means that a plaintiff can meet the “serious injury” threshold even when his or her physician does not document the specific percentage of loss.  A physician can document a plaintiff’s limitations by discussing his or her observations of plaintiff’s limitations in his or her medical records.  Accordingly, a medical record that states that plaintiff has a permanent restriction of use of the injured area that was causally related to subject motor vehicle accident, and sets forth what activities this restriction limits, can be sufficient to establish a “serious injury” under Insurance Law §5102.  Prior to Perl, this would not have satisfied the statute without a quantitative measurement.

At The Platta Law Firm, we have the experience and expertise needed to navigate this issue and all other issues arising from motor vehicle accidents. If you or a family member has been injured in a motor vehicle accident or as a pedestrian struck by a motor vehicle, contact The Platta Law Firm immediately and schedule a consultation



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