New York Court of Appeals rules on Personal Injury law
In November 20111 three cases were being argued in New York’s Court of Appeals that had the potential to reshape the entire face of accident litigation and the definition of “serious injury.” The decisions have now come down, and reverse growing trends in the lower appellate courts that had thrown out cases as a matter of law if they didn’t have a doctor to show a “contemporaneous” loss of motion, to come within the “serious injury” threshold for the No-Fault law. The courts were refusing to allow juries to act as fact finders.
There were three cases before the New York Court of Appeals in which plaintiffs had their cases dismissed by judges, two on summary judgment and one after a plaintiff’s verdict.
At issue before the Court were three of the categories of “serious injury” that contain impossibly vague language:
- “permanent consequential limitation of use of a body organ or member”;
- “significant limitation of use of a body function or system”; and
- “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”
The unanimous decision in Perl V. Meher held that the lower courts were over-reaching in making factual determinations as to what constitutes a “serious injury” and taking cases away from the jury where it belongs if “contemporaneous” loss of motion findings were not made. While hewing to skepticism about many personal injury cases due to problems of fraud, the Court held that:
There are cases, however, in which the role of skeptic is properly reserved for the finder of fact, or for a court that, unlike ours, has factual review power.
The biggest problem in determining the extent of the injury was in measuring it. The very act of measurment can be a problem if doctors are not litigation-savvy and quantify measurements in their notes.
This was also the view of the dissent in one of the three cases, and the Court of Appeals agreed with those positions, explicitly throwing out the concept of the need for “contemporaneous” range of motion testing. The Judges wrote:
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.
How good is this decision? Let’s just say that the language the court used above matches my own fairly well, regarding penalizing those injured individuals who seek out their own doctors instead of those that are litigation savvy. I wrote this bit back in March of 2009:
New York’s No-Fault law is out of control. It seems to have reached the point where judges are almost demanding one of two things from injured patients: That their doctors get legal tutoring on how to write reports that will satisfy the judiciary, or alternatively, that injured patients seek treatment from only those doctors that already know how to write medical-legal reports.
The Personal Injury Lawyer NY is the best bet for any victim to fight the case for him, as he or she is very well aware of the circumstances, as well as existent and non existent laws besides having years of experience in dealing and solving such cases. If you are not able to find that confidential partner for yourself, who will help you, then go ahead and seek an appointment with New York personal injury lawyer. One has to trust his lawyer completely as he is the one who will get a favorable result to you from a court and it is always important to have that faithful relationship in such cases.
