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How "Permanent" Must a Disability Be to Bring a Personal Injury Claim?

In order to bring a personal injury lawsuit in New York, a plaintiff must present a court with evidence that he or she has suffered a “serious injury.” In this context, “serious” means the victim has endured some sort of permanent disability or loss as a result of a defendant's negligence. This loss must render the victim unable to perform his or her “customary daily activities” during a period of at least 90 of the first 180 days following the accident in question.

Proving the existence of a permanent disability is often an uphill climb for plaintiffs. Even if a doctor examines the victim and determines there is such a disability, that may not be enough for a judge. Here is a recent example from Long Island where a judge would not even let a plaintiff pursue her claim past summary judgment due to insufficient medical documentation of her alleged disability.

Gomez v. Salmeron

This case arises from a 2010 automobile accident in Nassau County. The plaintiff was riding in a taxicab. Another vehicle, attempting to make a left-hand turn, collided with the cab. The plaintiff was then taken to the local emergency room, where she complained of knee, neck and shoulder pain. She was prescribed pain medication and discharged, only to return the next day because she was not “able to move.”

The plaintiff subsequently began seeing a chiropractor on a regular basis. She stopped treatments about 18 months later, in 2013, because her “insurance didn't want to continue paying for it.” Several other physicians examined her in the years following the accident. According to a physician who examined her in 2014, the plaintiff had a “permanent disability in regards to the neck, lower back, left knee, and shoulder.” The doctor based these findings on assessments regarding the plaintiff's limited range of motion in these areas.

The plaintiff ultimately sued the driver of the cab, as well as the driver and owner of the other vehicle. She alleged a “serious injury” in the form of the aforementioned permanent disability. The defendants disputed this claim and moved for summary judgment. On February 19 of this year, Judge Randy Sue Marber of Nassau County Supreme Court granted the defendants' motions and dismissed the case.

Judge Marber said the defendants presented ample expert testimony of their own establishing the plaintiff's alleged permanent disability did not meet the “serious injury” threshold required by New York law. A defense medical expert examined the plaintiff and found “her post-accident complaints were resolved, no further treatment was necessary, and no functional disability was present.” Judge Marber also noted the plaintiff's own testimony failed to establish any “permanent restriction of her daily life activities,” and her own physician's conclusion that she was permanently disabled was insufficient to establish her case. There was no “objective evidence” demonstrating any permanent disability as far as the judge was concerned.

Judge Marber also noted that in order to establish a permanent disability, the plaintiff had to adequately explain her decision to cease chiropractic treatment after 18 months. Although she said it was due to the lapse of her no-fault benefits, Judge Marber said that was not enough. Given the absence of other medical evidence supporting the plaintiff's disability claim, the court required additional documentation on this point. All of these concerns led Judge Marber to conclude there was no “triable issue of fact,” thus warranting summary judgment for all defendants.

Good Representation is Not Optional

A decision like this may seem discouraging to other personal injury plaintiffs. But, it also illustrates the importance of working with a qualified New York accident attorney. There are a lot of factors to consider when bringing a personal injury lawsuit, and a qualified attorney is not a luxury, but a necessity. Contact our office today if you need to speak with an attorney right away.

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