Archive for the ‘Car Accidents’ Category

Another Day, Another Accident

Car accident, Nov 21, 2012

First off, let me say this: No one was hurt. Regular readers know that I don’t generally write about local car accidents — unless there is an appellate decision or something legally noteworthy about them. But this was an accident that my family was in.

It was the Wednesday before Thanksgiving, and I was in the front passenger seat with Mrs. NYPILB behind the wheel. We made a right at a light from one main road to another. And out of a parking area on our right came an SUV trying to cross the road. Presumably to get to the other side.

Except that we were passing in front of him; and he t-boned us. Right into the passenger side, with the brunt of the force on the back door where my son was sitting, engrossed in a book.

There are several things that might race through the brain at this point, of which these are three:

1. The Parent (Are my kids OK, and how do we make sure there is no further potential for accident or injury?)

2. The Lawyer (The other driver failed to yield the right of way)

3.  The bureaucrat (Closely linked to the lawyer, this one seeks documentation to make sure that the “i”s are dotted and the “t”s crossed with respect to insurance companies.)

Now this is  not the first time I’ve written about an accident that I was in. It happened five years ago when a car with no lights and no license plates stopped in the middle of the parkway at night. I was driving and I stopped in time. One of the cars behind me did not.

The view of the inside, with the door closed, where my son was sitting

And you know what? I’m no better prepared today for being in an accident than I was back then; because accidents are unexpected. If we expected them, well, we have a better chance of avoiding them.

Because they are unexpected, we often don’t really know, at the time of the impact, the answers to the questions that may one day flow if someone was really injured and an investigation or lawsuit ensued.

How fast were you going?

What lane where you in? (How many lanes were there?)

Where did you look in the seconds before the accident?

Where, exactly,  were you?

While that last question might seem a bit silly, it really isn’t, most especially if it is a highway that you have driven  hundreds of times. Your brain might well be on auto-pilot and while you know generally where you are, the exact location isn’t something that you were keyed in to. You might know, for example, that you needed exit 56, and that you were somewhere around exit 30, give or take. You don’t know exactly, because it isn’t particularly relevant.

The reality is that most of our “recollection” of an accident is our brain reconstructing what has happened as we spin our heads around and say WTF? And when we reconstruct things, we tend to fill in the blanks. This is a mental process that I like to refer to has “normal human behavior.” The psychs like to call it reconstructed memory, and will tell you that the brain abhors a vacuum so it provides the filler it believes to be logical.

But it’s odd when your own brain may be doing the the reconstructing, not someone else’s.

This fill-in-the-blanks view of an accident will generally lead to conflicting accounts of an event. People see things through the prism of their own experiences, both past and present and upon review of the event that just took place, and fill in the missing blanks. We may now see mileposts and exit markers, when before we were just driving merrily along knowing that we were roughly 15 minutes from our exit and keeping an eye on the car in front of us. We see intersections and people (aka witnesses) that we hadn’t really noticed or appreciated before. Because the accident, almost by definition, happened very fast and we had no time to react.

And, of course, the adrenal gland has decided that this would be a magnificent time to give the body a good old shot of hormone that sends the heart and mind racing.

After an accident, nothing is normal at all. But that moment when the mind and body are reeling is the moment the brain is imprinted with the “details” of recollection. Since those recollections are experienced through the prisms of our own histories, the lawyer might well “see” something different in an accident than the doctor, mechanic or cop.

All of this is something that the reader likely already knows, on an intellectual level. And yet, when one actually goes through the event, it doesn’t really matter. The god’s eye view of what happened — that fly on the wall view of things — may well be distorted by emotion, by experience and by reconstruction.

I wrote this post six weeks ago and have been sitting on it ever since, hoping I could come up with some kind of snappy conclusion or insight. But I can’t, other than to say that the most important thing is immediate safety. For us, sitting in the roadway after the accident near a busy intersection, that mean moving the car immediately out of danger into the parking area where the offending SUV came from.

I remember my father telling me, when I was learning to drive some 35 years ago, that if I got a flat tire on a bridge that I should not stop. Drive it off the bridge, and to hell with any additional damage to the car. It is, after all, just a car.

Safety first.

Apple, Siri, Distracted Driving and the Future of the Automobile

A CNET mock-up of an Apple device integrated into a car (though I expect Apple will do a hell of a lot nicer job than this)

Two movements are rapidly coming together and will go head-to-head in the coming years:

First is the push to ban driving while on a cell phone — even if it’s a hands-free device. This is due to so many accidents occurring from distracted driving. There are 10 states that already ban it. The problem is not with drivers taking their eyes off the road, but a failure to concentrate. The National Highway Transportation Board wants to ban it in all 50 states.  A sample story is here, that includes some data:

According to the National Highway Transportation Safety Administration, more than 3,000 persons died in 2010 because of distraction-related accidents, National Transportation Safety Board Chairman Deborah Hersman said last December in calling for a 50-state total ban on the use of cell phones and other portable electronic devices. “It’s time to stand up for safety by turning off electronic devices when driving.”

Now contrast this to the rapid movement of technology, with Apple at the forefront. Just days ago they announced that they were ditching Google maps in favor of their own, and that these would be incorporated into future cars, including BMW, General Motors, Toyota, Mercedes-Benz, Honda, and Audi.

What does that mean? It means that drivers will be able to use Apple’s Siri voice system to input destinations, and Siri will respond without the need to punch in data. From CNET on the announcement:

The new button should be a welcome change for drivers who are used to manually entering their destinations into a GPS, or laboring through complicated voice-activated menu trees to perform simple tasks, like changing the radio station or placing a phone call. By leveraging Siri’s natural language voice control platform, theoretically drivers will be able to keep their hands on the wheel and their eyes on the road to minimize distracted driving.

With Apple integrated into the car, it seems likely that such devices would also include the music that people have on their iPods/iPhones, as well as the ability to use those phones. One need not be a genius to foresee Apple integrating maps, music and phones into one device in the car, and allowing a simple wireless sync either with the handheld device that remains in your pocket or with its cloud based service.  Texting and emailing could be voice-activated.

This means a dramatic rise in driver activity, for what would likely be an extremely popular device. So the future, it seems, is likely to see significant increases in drivers interacting with electronics, albeit it in a safer way than in the past. No one, for instance, will need to take their eyes off the road to punch buttons on radios.

Looking into my crystal ball I see more accidents, of the rear-end I-wasn’t-paying-attention type. As opposed to those that took their eyes off the road and swerved into another lane as they spun the radio dial.

How legislatures (and the National Transportation Safety Board) deal with this remains to be seen, but I would expect vigorous debate to continue that focuses on the issues of the role of government and consumer safety.

NY Top Court Reshapes Auto Accident Law (Revamps The Way Courts Determine “Serious Injury”)

Last month I wrote about three cases being argued in New York’s Court of Appeals that had the potential to reshape the entire face of auto accident litigation and the definition of “serious injury.” That decision has now come down, and it reverses 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.

Unless you are intimately familiar with the subject — and why this is one of the biggest decisions in auto litigation in years — you should read this post first and then return: Court of Appeals Hears Argument On “Serious Injury” in NY Auto Cases (What Should They Do?). In fact, I didn’t just write about this last month, but 13 months ago when I speculated in Perl v. Meher that this issue would come to a head. And two years ago I drew quite similar conclusions to today’s decision.

So yes, I’ve been watching this awhile, as has the entire personal injury bar. Because this is very, very big.

There were three cases before the Court 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:

  1. “permanent consequential limitation of use of a body organ or member”;
  2. “significant limitation of use of a body function or system”; and
  3. “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 today 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. I noted previously that 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 today, that I had quoted extensively from last year, and the Court agreed with those positions, explicitly throwing out the concept of the need for “contemporaneous” range of motion testing. The Court 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.

When the Court of Appeals agrees with you, then it’s a good day.

Scalia Ticketed After Rear-Ending Car

Supreme Court Justice Antonin Scalia, it seems from this news report, started a four-car collision while heading southbound George Washington Parkway across the Potomac River from Washington in Virginia. He was going to work, about to hear arguments in a labor case involving Wal Mart.

Three interesting little tidbits from this story:

Supreme Court Justice Antonin Scalia was ticketed by U.S. Park Police after being found responsible for a four-car traffic accident on his way to the high court Tuesday morning.

Why would Justice Scalia be responsible? Because he hit another in the rear. Assuming local laws down there are the same as up here, that makes him liable for following too close to the car in front of him and failing to see what was there to be seen. No, that “failing to see” is not a political joke, but part of the law. It’s possible, of course, that he has a non-negligent excuse for the accident (for example, the other driver cut him off and slammed on his brakes in traffic). But that doesn’t seem likely from this report from the Washington Post:

Brooke Salkoff saw it all go down. The former NBC reporter told us she was just behind Scalia’s vehicle, a shiny black BMW in the left lane. “It slammed into the car in front of his, which pushed the other two forward,” and caused them all to skew into the right lane, she said.

The second tidbit is this:

“It was a busy traffic area,” [U.S. Park Police spokesman David] Schlosser said. “It just happens.”

Well, no, it doesn’t “just happen.” That makes it sound like an unavoidable accident, like a deer that darts into the road. But an accident like this happens because one (or more) people weren’t driving carefully. Thus, the ticket.

The third tidbit:

No one was injured.

This is possible, but as any doctor that has seen trauma patients will tell you, many to connective tissue and soft tissue structures won’t appear for a day or more, often the result of inflammation that develops after the trauma.

Final note: According to his bio, he spent his first six years as a lawyer at a Cleveland law firm. Did he ever argue a case? If Scalia were to actually show up in court to challenge the ticket, would it be the first matter he ever argued from the courtroom well?

(More at Above the Law)

Takara Davis Files Suit (Teenager that Got Jaywalking Ticket While In Coma)

Takara Davis before and after the accident

Remember Takara Davis? She was the 13-year-old Las Vegas girl who was run down on January 4th, and the cop came to the hospital to hand a jaywalking ticket to the mother to give to for her daughter. If her child lived. SeeCop Gives Ticket to Brain-Damaged Girl (Why? I have a theory…) The story went viral with the phrase Takara Davis Jaywalking now returning over 18,000 hits.

Well, two things have since happened. First, the ticket was dismissed on Monday. And today, she sued the driver of the other car. A copy of the Complaint is here: TakaraDavisLawsuit

When I first read about the suit on Above the Law, something smelled very fishy because of the cop racing to the hospital to give a jaywalking ticket to the child’s mother while her kid was in a coma. That isn’t normal behavior, and I figured the driver was connected somehow by being a cop, firefighter, politician, etc.

We now have more details with the filing of suit, which alleges that the driver was going too fast and failed to see what was there to be seen. No surprise there, as that is stock language. But the Complaint also has a few intriguing details:

1. The girl was hit in the center lane of South Durango Drive near this intersection at 2:30 in the afternoon. And that means the driver wasn’t faced with someone simply stepping off the curb and getting hit. I looked at the street view and satellite view on Google maps and Durango seems to be about three lanes across in each direction.

2. She was with a group of other students, making her all the more visible.

3. The car was moving so fast the child’s head smashed the windshield (causing the head injury) and she was then thrown approximately 100 feet. (News stories say 45 mph, but the Complaint doesn’t specify.)

4. The driver didn’t stop right away, but waited a full block to do so.

5. The police permitted the driver to drive away with a shattered windshield, blood splatter, and extensive damage to the hood.

6. The car was quickly repaired before it could be examined by a representative of Davis.

One of the allegations was that of operating a car in excessive speed near a middle school. Remember, this was 2:30 in the afternoon, when kids are leaving school.

What does all this mean? I’m not sure yet, as these are merely the plaintiff’s allegations. The defense will likely present a different portrait, as they almost always do.

But it seems pretty clear that the first reports and initial reactions of many people that the kid must have done something wrong and been completely at fault because she got a ticket, are likely to be wildly wrong. First impressions based on news stories often are. Further details will take quite awhile to hash out.

This tidbit, however, still intrigues me: The driver, according to this news story,was 21 years old. I want to know who, exactly, her parents are and how they are connected. Because I would bet good money that the cops didn’t just let  the driver leave the scene of a serious accident with a busted windshield and then race to the hospital to give a ticket to the teenager, unless the driver knew someone with some kind of influence. The driver is Lusine Vartanyan, and the owners of the car are Armine Arshhakyan and Armen Vartanyan, according to the Complaint.

Plaintiff is represented by Christian Morris and Lloyd Baker of the Baker Law Offices in Las Vegas.

Elsewhere, before suit was filed:

  • True Crime Report: She may have had bleeding on her brain, and she may have been unable to feel or move her arm and leg on the left side of her body, but in this cop’s mind, there’s never an inappropriate time to give a little girl a misdemeanor citation.”
  • Black  Political Thought: “This is coming from the same police department that allowed Paris Hilton to be afforded the opportunity to be arrested in an “unbecoming” manner.”
  • Overlawyered
  • Fox5Vegas

Cop Gives Ticket to Brain-Damaged Girl (Why? I have a theory…)

Takara Davis, after being hit by a car.

This story is just horrible, on many different levels. Yesterday Elie Mystal at Above the Law wrote about a cop that gave a jaywalking ticket. (Comatose Little Girl Gets Ticket for Jaywalking.)

The problem? The person he was giving it to was 13-year-old Takara Davis, who was in surgery with her brain bleeding after being hit by a car. As Mystal summarizes the story that originally appeared on Channel 8 in Las Vegas, he wrote:

Allegedly, Takara Davis was jaywalking when she got hit. So a police officer showed up at the hospital and gave the ticket to her mother, Kellie Obong. Why did they hand the ticket to the mother? Because Takara was busy being rushed to the operating room as the doctors tried to stop the bleeding in her head…

If you are anything like me, then reading about such a thing and the complete lack of empathy by the cop would make your head explode. And Mystal has some choice words:

But a jaywalking citation while the kid is lying there bleeding in her brain? Are you serious? What kind of self-absorbed jerk of a police officer walks to the hospital to do that job?

I almost felt sorry for the pathetic Las Vegas spokesman who was forced to lie about the incident as the girl moved from surgery to medically-induced coma:

A spokesperson for the Metropolitan Police Department issued a statement about how the citation was issued, saying, “Our officers conduct themselves in a professional and compassionate way. We wouldn’t do anything deliberately insensitive.”

It’s a lie because obviously it was deliberately insensitive. Why would the cop do it and why would a spokesman actually defend such inhuman conduct?

I have a theory. Since no human being in his right mind would ever conduct himself this way (well, almost none), I think someone put him  up to it. Like the driver of the car that hit the kid. I would bet that the driver was a cop. Or friend/relative of the cop. Or local politician. Someone with the ability to influence how the cop does his job. Because I bet there was a driver thinking about liability and being sued, as the child’s life ebbed to the edge of her world. Someone thought giving the kid a ticket would be a good idea to use in a potential civil lawsuit later, and “asked” the cop to do it. I can conceive of no other explanation.

This does not excuse the cop on the scene, of course, who went ahead and did this. I don’t care if it was the Chief of Police that was behind the wheel of the car that hit the kid. You have to act like a human first.

And here’s the thing: This hair-brained ticket idea likely won’t even work as a means of defending against a civil suit, and might well backfire. For a ticket is merely an accusation. You get a chance to fight tickets. To plead not guilty. The fact that someone is accused of something isn’t admissible in any court that I know of.

So there will be a trial if the child doesn’t think she jaywalked. Assuming, of course, she is capable of conversation.

And even if she did jaywalk, it might not excuse the conduct of the driver. The fact that someone might be jaywalking doesn’t give license to run a jaywalker down. This point is self-evident if you think of a drag-racing drunkard. (In Nevada, comparative negligence does not bar recovery so long as the injured party is less than 51% at fault. NRS 41.141)

But there is more to this story. And that more is about the driver and what it is he asked the cop to do at the scene of the accident as the life of the girl hung in the balance. And what it is that driver most likely did, in my opinion, will likely not sit well with a jury one day if it ever comes to that.

Demand for Facebook Records Rejected by NY Appellate Court

The defendant in this car accident case wanted an authorization for the plaintiff’s Facebook account. And a New York appellate court has shot down that demand, for now, in a ruling just released and published in today’s New York Law Journal.

In McCann v. Harleysville Insurance, the plaintiff had successfully obtained the entire insurance policy of a motorist involved in a collision, and now sought the “supplementary uninsured/underinsured motorist coverage” from her own insurance carrier. The insurance company decided it might get lucky by snooping around the plaintiff’s Facebook account, and therefore demanded the plaintiff provide an authorization permitting them to obtain the records.

No dice, said the appellate court, which affirmed a similar decision of the court below. The problem? The defendant had no actual basis for doing said snooping, as it “failed to establish a factual predicate with respect to the relevancy of the evidence.” This was, in the words of the court, simply a “fishing expedition.”

This issue came up just a month ago in Romano v. Steelcase, in which a lower court had ordered the authorization for the Facebook account to be given. In Romano, however, a factual predicate had been established when the court felt the testimony at deposition contrasted with a photograph seen on the plaintiff’s Facebook page. The court wrote:

it appears that Plaintiff’s public profile page on Facebook shows her smiling happily in a photograph outside the confines of her home despite her claim that she has sustained permanent injuries and is largely confined to her house and bed. In light of the fact that the public portions of Plaintiff’s social networking sites contain material that is contrary to her claims and deposition testimony, there is a reasonable likelihood that the private portions of her sites may contain further evidence such as information with regard to her activities and enjoyment of life, all of which are material and relevant to the defense of this action.

While I think the evidence shown in Romano is rather thin to be delving into the Facebook account (and perhaps an appellate court will one day agree with that assessment), it seems clear that the evidence shown in McAnn is simply non-existent.

Thus, for now, there are two New York cases on the subject, one in the lower court and one appellate, and the existing dividing line is on the need for a factual predicate to delve into the accounts.

See past coverage of the Romano case and this issue:

George Bush. A Boat. And a Point About Trial Tactics.

The Associated Press reported on a boating accident last week involving the elder George Bush. This is the way the AP phrased it:

KENNEBUNK, Maine — Former President George H.W. Bush’s fishing boat ended up high and dry on a beach near his Maine home after it ran aground in thick fog.

Now what is so wrong about that that it inspires a blog post? I’ll tell you. The boat didn’t just run aground. Someone most likely caused it to run aground.

Let’s take that language now into the courtroom, and consider an accident at an intersection. This is the way two skilled trial lawyers will try to present it:

Defendant: The accident happened.

Plaintiff: The Defendant caused this car wreck.

For the most part, accidents don’t just happen. I dealt with this back in May when Kentucky Republican Senate candidate Rand Paul seemed willing to give a free pass to BP and its friends who dumped so much oil into the Gulf of Mexico. He wasn’t happy that President Obama criticized BP:

“And I think it’s part of this sort of blame-game society in the sense that it’s always got to be somebody’s fault instead of the fact that maybe sometimes accidents happen,” Paul said, who is a darling of the Tea Party movement.

It’s true that acts of nature may take over, such as the lightening strike that fells a tree right into the path of a car. One might argue that acts of nature are even more likely at sea, given waves and fog, but it is just those types of foreseeable risks that a captain must consider. Only something unexpected would allow the act of nature defense to come into play.

Acts of nature are not how most accidents occur. Returning to former President Bush, the article goes on to give this explanation:

[Bush spokesman Jim] Appleby says Bush was close to shore in low visibility when a wave pushed his boat onto the beach.

It seems to me that if he was running his boat in low visibility it really isn’t fair to blame the boat (“it ran aground”).

And that type of passive language is just the thing that plaintiffs’ lawyers should be on the look out for and ready to counteract. “It” didn’t just happen. Someone most likely made it happen.

Photo credit: jcfmbost, via Flickr

Laura Bush Concedes Negligence in Fatal Crash From Her Youth

Former First Lady Laura Bush has conceded negligence in the November 6, 1963 car crash she was involved in at age 17, in Midland, Texas. She concedes running a stop sign and hitting another car, killing its driver. The driver of the other car, Michael Douglas, was a start athlete and friend of hers.

Her concession comes, according to the New York Times today, in a book that she wrote to be released next month. According to the Times,

Mrs. Bush concedes that she and her friend were chatting when she ran the stop sign. But she also suggests a host of factors beyond her control played a role — the pitch-black road, an unusually dangerous intersection, the small size of the stop sign, and the car the victim was driving.

Those other factors that are mentioned, however, would likely have no bearing on her own fault, a subject she basically acknowledges in discussing her grief over the accident that has carried on for decades.

Since accidents of this type are rather common in the personal injury field, here’s my two rupees of analysis if a civil suit resulted:

In the language of the law — at least in NY — the failure to yield at a stop sign makes someone negligent as a matter of law that requires a court to grant summary judgment if a civil action was brought, unless the defendant could set forth a non-negligent reason for the conduct.   The fact that the road was “pitch-black” would be a reason to be more cautious, but it doesn’t work as an excuse. The fact that the intersection was “unusually dangerous” might play a role in municipal liability, but since she was a local resident presumably familiar with that intersection, that would likely be a tough defense to raise.

As to the “small stop sign,” I don’t know what to think since I’ve only seen one size on roadways and would presume this one was the same as all others. I would not accept her word that it was anything other than a regular sized sign and would want some kind of proof of it being smaller. Since that part of the Times piece is paraphrased, and not quoted, I’ll leave that part as an open question on the issue of municipal liability.

New York’s No-Fault Law To Finally Be Updated?

I’ve railed  before about some of the problems with New York’s No-Fault law, and it appears the Legislature may finally be ready to act. The No-Fault law forms the framework around which all New York auto accident lawsuits are evaluated, so this is no small deal.

Back 30+ years ago, the idea was that all auto accident victims would get  insurance for their injuries regardless of fault, but the trade-off was that only those that crossed a “serious injury” threshold could bring an action for damages. That meant the the law had to define medicine, which is no easy task.

The basic problem regarding the threshold was medical technology was limited as to what could be seen. So while the law still uses the technology from decades gone by, we now find ourselves in a situation where  a fractured pinkie qualifies as a serious injury, but surgery needed for a torn rotator cuff, herniated disk, or torn meniscus, might not.

The MRI, CT, EMG and ultrasound were, at that time the statute was drawn, dreams in the heads of inventors, or experimental prototypes not widely used as diagnostic tools. The x-ray was state of the art when the statute was drawn.  So the legislature defined the threshold in these nine ways:

  1. A personal injury that results in death;
  2. Dismemberment;
  3. A significant disfigurement;
  4. A fracture;
  5. The loss of a fetus;
  6. Permanent loss of use of a body organ, member, function or system;
  7. Permanent consequential limitation of use of a body organ or member;
  8. Significant limitation of use of a body function or system; or
  9. 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 first five are clearly objective measurements. The next four are fuzzier, and they have been fought over time and time again due to a lack of clarity in the statute, particularly the language of “permanent consequential limitation” and “significant limitation.” And the ninth one, referred to as the 90/180 test, is problematic because it clearly favors those with good work benefits who can thus afford to stay home and nurse their injuries. Those that are self-employed may not have that option, and would work despite having the exact same injuries. And the stay at home mom is really in trouble, as she doesn’t have that clock to punch, thereby creating documentation for time missed. The 90/180 rule actually encourages people to miss work.

As it developed, the law also was found to favor those patients that chose doctors fluent in legalese, to deal with some of the odd requrirements that courts started adding to the statute.  Courts started demanding, for example, “objective” findings that were made “contemperaneous” with the accident. That language doesn’t exist in the statute. Lawyers would read decisions and tell doctors what the evolving standards were, to the best they could be defined. And woe unto the accident victim that merely went to a doctor that simply wanted to practice medicine and heal the patient. Now that doctor was forced to write medical-legal reports. And they couldn’t just write like they were trained in medical school and residencies. They had to adopt the language of judges.

Another problem was the accusation that insurance companies were using sham medical exams to cut off the No-Fault benefits. There is no shortage of complaints in New York of 5-minute exams where a doctor finds no objective evidence of injury and the insurance company cuts off the benefits that were supposed to come as the trade-off for surrendering their right to sue.

Last year, a  very frustrated Supreme Court Bronx Paul Victor took a shot across the bow of this law, with a long rant about legislative defects, inconsistent appellate decisions and “a great expenditure of limited judicial time” trying to define “elusive standards” in the law.

How does the Legislature fix the problems?

The Legislature might finally bring the statute into the 21 century, although these technologies were available before the calendar turned 10 years ago and so are long overdue. The idea that a fractured pinkie would be a “serious injury,” while back, shoulder and knee injuries that result in surgeries would not be, is a great example of how a law was turned on its head.

Introduced two weeks ago, the new bill would clarify the definition of the threshold, by specifically by further defining “serious injury” as:

  • a partial or complete tear or impingement of a nerve, tendon, ligament, muscle or  cartilage;
  • injury to any part of the spinal column that results in injury to an intervertebral disc;
  • impingement of the spinal cord,spinal canal, nerve, tendon or muscle;
  • surgery

It should be noted that many of these things already might fall under the definition under the present definitions. The problem is, as Judge Victor pointed out, that it’s largely up to the judge, and the judges do not apply the law evenly. So that currently it’s a crap shoot on which judge (or appellate panel) is assigned to the case. Judge Victor was clear that we have slid a long way from the even administration of law.

Roy Mura over at Coverage Counsel has a different view, as he writes from the insurance company perspective. He sees an expansion of the injuries that qualify under the proposed changes. But he fails to take into account the essential ambiguity in the law as it tries mightily to define medicine, especially given that medicine has moved forward over the last 30+ years. Nor  has he accounted for the problems that Judge Victor discussed with the uneven administration of justice,  with some judges tossing out cases while others would allow the exact same ones to go forward. The bill leaves this essential fact-finding function to the jury, where it belongs.

Vagueness and ambiguity have no place in the law. It creates problems as courts get swamped with motions and appeals that they are ill-prepared to deal with if a legislature hasn’t done a good job of establishing definitions.

The bill would bring some fundamental fairness to New York’s No-Fault law, seeing to it that all people are treated the same.  And that can only be a good thing if you happen to be the person that was injured.

You can find the Assembly version of the bill with its sponsors, here:  Assembly Bill A10739

You should be able to find the Senate version here: Senate Bill S7518

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