DOES YOUR "SOFT TISSUE" INJURY SATISFY NEW YORK'S SERIOUS INJURY THRESHOLD?

For those readers familiar with my articles, you might recall a previous piece in which I discussed New York State’s serious injury threshold law. In part, the article discussed how New York, years ago, implemented legislation intended to make it more difficult for individuals to maintain legal actions against negligent drivers unless they were “seriously” hurt as a result of the accident. This was done for a number of reasons, not the least of which included efforts to reduce state court dockets and the legislature succumbing to pressure from the insurance lobby. Propriety of the legislation aside, New York’s law, often referred to as the serious injury threshold law, achieves its aims by instituting certain criteria that must be met in order to maintain a legal action.

The legislature provides for seven different categories of injury that satisfy the threshold law:

1. Personal injury which results in death
2. Dismemberment; significant disfigurement
3. Fracture
4. Loss of a fetus
5. Permanent loss of use of a body organ, member, function or system
6. Permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system
7. 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.

As even unfamiliar readers will note, there are some stark differences qualitatively speaking as far as how the law treats each category. Unlike the first four categories, which one either definitively suffers or doesn’t, the latter categories are more open to interpretation. In practice, categories 5 through 7 are the subject of ongoing legal debate and are continually changing.

While what qualifies as a serious injury under these categories is always fact dependent, they at other times appear subject to judicial whimsy. While the system isn’t always fair, leveling that accusation against the courts isn’t exactly fair either. The courts have undoubtedly left their mark on the law, but it and all of its intended or unintended ramifications are very much a creature of legislative design.

Let’s be frank, and I’ll offer an extreme example to demonstrate my point. There is a significant difference between a broken finger and a bulging disc in one’s back. Broken fingers, although perhaps uncomfortable while healing, rarely cause permanent problems once they’ve healed. That broken finger, however, will automatically qualify as a serious injury under the law, despite the fact that its impact is likely minimal. The same can’t be said for bulging discs and other soft tissue injuries, however. For anyone who’s ever suffered one, they can be utterly debilitating, cause regular pain and go unresolved for the balance of one’s lifetime. Despite that reality, unless certain factors are on your side, your soft tissue injuries may well not be compensable because they simply don’t rise to the level of a “serious injury” under the threshold law.

When I talk about soft-tissue injuries, I am basically talking about injuries that you suffer to your connective tissue, including muscles, tendons, ligaments and discs (the spongy, shock-absorbent tissue stuff between your vertebrae). These injuries can take the form of strains, sprains, tears and the like. Typical soft tissue injuries suffered in motor vehicle accidents are bulging discs and/or whiplash.

If you’ve suffered a soft-tissue injury in a MVA through the fault of another, you need to evaluate with an experienced attorney whether your situation rises to a level enabling you to maintain a legal action. There are numerous criteria that should be evaluated during this process, but here are a few of the more important ones to consider.

You first need to consider the nature of your injuries and how they’ve impacted your life. Many successful soft-tissue cases hinge on factors such as whether the injury required surgery or prevented you from working for an extended period of time. Hand in hand with those factors, one also needs to evaluate how the course of treatment progressed. Did the victim require an extensive and uninterrupted course of treatments since the accident, or were there gaps in treatment? The more of these factors you have on your side, the better your odds of surviving an inevitable motion by the defense to dismiss your case.

When it comes to soft-tissue injuries, another factor that plays into your likelihood of maintaining a successful case is your ability to produce objective medical evidence regarding the nature of your injuries and your accompanying limitations. It’s a rare occasion when I question a client’s reports of pain; who am I to say that they’re not feeling something other than what they claim. In the eyes of the court, however, that won’t be enough. Even the most horrific subjective reports of ongoing pain, when unaccompanied by objective medical evidence to substantiate those reports, are likely to get kicked by the court. For this reason, it’s imperative that you and your attorney learn all they can from your treating physicians about the true nature of your injuries and how they may or may not help you qualify under the threshold system.

There is no question that not all soft-tissue injuries meet the serious injury threshold, but under the right circumstances, one can meet those criteria. This has been one of the more chilling effects of the law. Is the threshold system fair? By no means would I even begin to suggest that, but it is the best we have and the one we are forced to work under. That said, if you’ve suffered an injury at the hands of a negligent driver, while your focus should be on healing, don’t forget to protect your legal interests. Soft tissue injuries can and often times do last a lifetime; while no-fault can often return you to your pre-accident baseline, sometimes it’s not enough. When that’s the case, don’t hesitate to explore your legal rights and options.