Bill to Expand Definition of “Serious Injury” in New York

By Rheingold Giuffra Ruffo & Plotkin LLP

New York’s Sen. Antoine Thompson (D-Buffalo) withdrew his sponsorship of S. 7518, a Senate bill that would broaden the definition of serious injury under the state’s insurance law 5102(d), after it became clear that he had a personal stake in the outcome. Thompson crafted the new definition to include soft-tissue injuries, and made the changes retroactive to cover pending litigation – which dovetailed nicely with his own recently filed lawsuit against a truck driver who hit his vehicle in 2007.

While Thompson’s apparent conflict of interest has tainted S. 7518 and created a public backlash against the bill, the proposed redefinition of serious injury still has support from personal injury lawyers who complained of deficiencies in insurance law 5102(d) before Thompson’s accident. Because the law sets a threshold for recovering damages for noneconomic loss, many injured drivers in New York are limited to recovering for economic loss only. Recovery for noneconomic loss requires meeting a stringent threshold that includes such factors as death, dismemberment, fetal loss, or loss or significant limitation of a body part.

When proof of the effects of injuries relies heavily on testimony of the injured party rather than verifiable medical evidence, the claims often fall by the wayside. Under S. 7518, serious injury would be redefined to specifically cover a complete tear or impingement of a nerve, tendon, ligament, muscle or cartilage. Spinal injuries, known for their difficulty of nontestimonial proofs, would be added to the definition of serious injury. So, too, would surgical losses.

And the new law in New York would leave no doubt that the issue of whether an injury satisfies the definition of serious injury is a question of fact to be determined by the judge or jury hearing the case.

If passed, S. 7518 will lead to more recoveries. Plaintiffs’ attorneys will applaud the change for bringing fairness to litigants who suffer from debilitating pain not readily ascertainable through medical testing, while insurance companies will balk at the prospect of serious injury allegations that can’t be medically disproven. The bottom line is that the law places trust in judges and juries to weigh the evidence and evaluate credibility in deciding whether plaintiffs deserve noneconomic compensation for serious injury.

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