Proving Permanent Injury Martin and Kent Law Article

Proving Permanent Injury

If you have been injured in a car accident, the extent and severity of your injuries matter, not just for obvious reasons but also because it may impact the compensation you can claim. When an injury is permanent, your economic and non-economic damages may be ongoing, and any settlement or judgment you receive must reflect that fact.

Proving Permanent Injury Martin and Kent Law Article

Proving an injury is permanent requires substantiating evidence. If you need to prove you have a permanent injury, you may need the knowledge, resources, and advocacy of an experienced personal injury lawyer.

No-Fault State

New York is a no-fault state. That means any person who registers a vehicle in the state must purchase personal injury protection insurance to cover themselves in the event of an accident. Such insurance requires a minimum of $50,000 coverage for injuries to the policy owner, others also named on the policy, and passengers in the owner’s vehicle who do not have personal injury protection, regardless of who was at fault. This basic policy helps pay for reasonable and necessary medical costs, including hospitalization, surgery, physical therapy, psychiatric services, rehabilitation, and long-term professional health services. In addition, the coverage provides for up to 80 percent of lost income, or up to $2,000 a month for up to three years.

No-fault insurance is a requirement in New York to ensure faster compensation for people who have been injured in an accident, as well as to ease the pressure on overcrowded courts by eliminating most car accident litigation. However, under New York law a person who has been severely and permanently injured in a car accident caused by the negligence or recklessness of another party may pursue compensation for their damages through a personal injury lawsuit.

What Is a Permanent Injury?

A permanent injury is one that, as far as anyone can know, will never go away. A straightforward example of a permanent injury is a severed spinal cord. As of now, there is no cure and the victim will suffer the consequences of their injury for life. Other injuries may not be as easily categorized as permanent. Some victims with severe injuries achieve full recovery, even when recovery may be improbable. Still others may suffer injuries that seem less serious and yet will cause permanent pain or quality of life limitations. If you are wondering whether your injury meets to the definition of “serious and permanent,” a personal injury lawyer can help you make that determination.

Under New York law, all car accident-related personal injury claims must pass the serious injury threshold in order to file a lawsuit. That means the damages for such injuries must exceed the required $50,000 policy limits. Additionally, by statutory definition, serious injuries include:

  • Death;
  • Dismemberment;
  • Severe disfigurement;
  • Fractured bones;
  • Loss of a fetus;
  • Permanent loss of use of a body organ, member, function, or system;
  • Significant limitation of use of a body function or system; or
  • A medically determined injury or impairment of a non-permanent nature that 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.

How Do You Prove that Your Injury is Permanent?

If you are involved in an accident it is important that you are treated for your injuries right away. You may use your personal injury protection insurance for your initial care. Doing so may help ensure you have the best chance for recovery, and will also provide the documentation necessary to prove your injury is permanent. If you need to file a personal injury lawsuit based on your injuries, you must do so within three years of the date of your accident, with some important exceptions. For example, the statute of limitations is shorter if your lawsuit must be filed against a government entity.

Proving that your injuries are permanent requires expert opinions from medical professionals who specialize in treating injuries such as yours. In some cases, the doctors who treated your injuries, ordered your tests, and documented your medical records may qualify as experts. However, in other cases, other professionals and experts may be required to examine you and give their opinions to the court for the purpose of your claims.

You should ask the doctors who have treated you to provide their written professional opinion if they believe your injuries are permanent and qualify under New York’s insurance laws. These opinions may be provided to the court. An experienced personal injury attorney should also have their own network of experts who may be used to substantiate your claims and damages.

What Is Pure Comparative Negligence?

New York is a “pure comparative negligence” state. That means that even if you were partially to blame for the accident that caused your injuries, you may still qualify to recover your damages as long as you can prove the defendant’s negligence. However, any damages you may be awarded will be reduced according to your percentage of blame. For example, if you were 10 percent at fault for your accident, your damages would also be reduced by 10 percent.

Defense attorneys commonly attempt to discredit medical experts and their opinions, and also often use comparative negligence as a strategy to minimize their client’s liability by claiming the victim was partially or even entirely at fault for the accident.

If the doctors who are treating you and other medical experts agree your injuries are permanent, you may file a personal injury lawsuit. You may claim economic and non-economic damages, including but not limited to:

  • Medical costs;
  • Future medical expenses;
  • Lost wages;
  • Loss of future earning capacity;
  • Rehabilitation services;
  • Pain and suffering;
  • Loss of consortium;
  • Scarring and disfigurement; and,
  • In cases where a wrongful death claim may be made, funeral and burial expenses.

How We Can Help

If you have been injured in a car accident in the Bronx and your injuries may be permanent, speak to an experienced personal injury lawyer as soon as possible. Contact The Law Offices of Ivan M. Diamond today or dial (718) 588-2000 to schedule a free consultation and learn if we can help you.