Soft Tissue Injuries
When an individual is involved in a motor vehicle accident and does not sustain a fracture, or require surgery, the issue of whether the car accident victim sustained a “serious injury” will inevitably come up during litigation. Under Section 5102(d) of the New York State Insurance Law, a serious injury is defined as (a) a medically determined injury or impairment of a non-permanent nature (b) which prevents the injured person from performing substantially all of the material acts (c) which constitute such person’s usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence. This is an issue of law to be decided by the court and defense counsel will inevitably move for summary judgment on this issue.
Neck and Back Injuries
In a case currently being handled by the firm involving three Plaintiffs who suffered neck and back injuries in a New York City auto collision, the Court ruled in favor of the firm’s clients and denied the defendants’ motion for summary judgment on the issue of serious injury. The Court initially analyzed the issue and held that the proponent of a summary judgment motion, in this case, the defendants, must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. The court further held that in order to satisfy their burden under Insurance Law Section 5102(d), a Plaintiff must meet the “serious injury” threshold.
Testimony of Treating Physician
In reference to the first car accident victim, the Court held that her treating physician recorded losses of range of motion in the lumbar spine ranging from 17% to 22%, thereby raising an issue of fact precluding defendant’s motion for summary judgment as to “serious injury.” The Court also concluded that the second occupant of the vehicle had a partial permanent injury and that prognosis for a full and complete recovery was poor, according to her treating physician. Her treating physician also recorded losses of range of motion in the lumbar spine ranging from 20% to 33% loss. The Court similarly found, that here, an issue of fact as to “serious injury” did not allow the defendants to win their Summary Judgment argument.
As to the final injured vehicle occupant, his chiropractor submitted an Affidavit conceding that he had treated this Plaintiff previously for a prior accident which occurred in 1999, and concluded that the prior injuries were not a cause of the injuries for which the chiropractor found him to have sustained as a result of the accident at issue. The chiropractor found restrictions in this individual’s cervical spine and lumbar spine.
Accordingly, the Defendant’s Summary Judgment Motion was denied and the auto accident victims’ lawsuit will proceed to trial in New York City Supreme Court.