Whiplash injury cases are very difficult to prove so it is essential that you hire the right lawyer. Whiplash injuries are common in motor vehicle accidents. The back-and-forth movement of the neck which is both rapid and forceful causes whiplash injuries. The neck cracks like a whip, giving the injury its name.
Personal injury lawyers know that these accidents occur most often in rear-end collision accidents. In New York, to bring a lawsuit stemming from a motor vehicle accident, you must show that you sustained a “serious injury.”
Serious Injury Threshold
New York’s No-Fault laws require all people injured in motor vehicle accidents have their medical treatment covered, regardless of fault. Because of this protection, the legislature added an injury threshold to motor vehicle accident lawsuits. An injured motorist, pedestrian, or passenger must show that they sustained a “serious injury.” The legislature enumerated a series of injuries that qualify as “serious injuries.” These include death, dismemberment, disfigurement, and fractures. It is clear that whiplash injuries do not fall under any of these categories.
There are a few more ambiguous categories of “serious injuries”, including a permanent consequential limitation of use of a body part, a significant limitation of use of a body function or system, or an medical injury of a non-permanent nature that prevents a person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for at least 90 of the first 180 days immediately following the accident (commonly referred to as 90/180). When a person sustains an auto whiplash injury, their lawyer will argue it qualifies under one these serious injury categories.
A Whiplash Injury Case
In a recent whiplash injury case, the plaintiff was injured when rear-ended. She complained of pain to her neck. Her lawyer commenced a whiplash injury lawsuit against the rear driver. During the lawsuit she appeared for medical examinations with the defendant’s doctor who noted that she had a limited range of motion in her neck. Her doctor reviewed x-rays of her neck, which demonstrated a straightening of her spine. Her doctor described that injury as a whiplash injury. He found the rear-end accident caused the plaintiff’s injury.
The defendant moved to dismiss the case on the ground that the whiplash injury was not a serious injury. While the Court found that there is no question that plaintiff did not establish a total loss of her neck, the Court found questions of fact as to whether the plaintiff sustained a permanent consequential limitation of her neck. The Court specifically noted the range of motion testing demonstrated limitations existed. A jury would need to determine whether the limitation was permanent.
Similarly, the Court found a question of fact as to whether 90/180 applied to this whiplash injury. The testimony and records showed that the plaintiff was out of work for a month following the accident. She also could only return to work part time for the following seven months. She claimed she could not engage in other normal activities such as grocery shopping and cooking during this period of time. The Court again held that a jury would need to determine whether 90/180 applied.
The case proceeded to trial. Surviving summary judgment does not guarantee success at trial. It is still possible that a jury will determine that the whiplash injury does not constitute a serious injury. For that reason, it is important that you find the best whiplash injury lawyer.