I have represented many injured clients and recovered substantial damages for their personal injuries. “Personal injury” cases are legal disputes that arise when a person suffers injury or harm from the negligence or carelessness of another and are considered to be “accidental” in that the injury was not intentional. Most personal injury claims are based upon the negligence of the party that caused the injury or accident. There are, however, personal injury cases based on intentional acts such as assault, battery, defamation and intentional infliction of emotional distress. Most liability insurance policies do not provide coverage for intentional acts.
Negligence and intentional acts causing personal injury are known as “torts”. Generally the time to bring an action for an intentional tort is only one year from the date of the intentional act causing injury and three years from the date of the negligence causing injury unless you have a medical malpractice claim in which the time to bring suit is two and a half years from the date of the medical malpractice. Damages may be obtained for both out of pocket (economic damages such as lost wages and non-covered medical bills) and non-economic damages, known as “pain and suffering” proximately caused by the negligent party. Pain and suffering is a type of non- economic damages that includes the “physical and emotional consequences of the injury” and loss of enjoyment of life.
In New York State, a person must have sustained a “serious injury” (a shifting standard subject to continuing judicial revision) under §5102 of the Insurance Law in order to recover non-economic damages for his or her injuries resulting from the operation of a motor vehicle (see * below for the definition of serious injury if you dare). A person who has been injured due to negligence needs to consult with an attorney to see if the serious injury threshold has been met. It is critical that a person who sustains serious injuries in a car crash treat with a doctor after the accident or as soon as possible thereafter so that the doctor or hospital can document the objective nature of the complaints and injuries that may satisfy the serious injury threshold. It is not a good idea for an injured person to decline medical care or down play his injuries as an injured person needs competent medical care to recover and documentation of the injuries caused by the accident at the time of the accident, not a month and a half later. Often a person believes that they cannot have sustained serious injuries because the vehicles are not badly damaged. Irrespective of the amount of damage to the vehicles, you should go to your doctor or hospital ED for treatment after the accident. Do not be a martyr and ignore your body and not get competent medical car after the accident. I know of many cases where a seemingly minor accident resulted in serious injuries. Many times the pain from an injury will increase over time after the accident. Be safe and get medical care after an motor vehicle accident.
A personal injury claim can also involve a claim for damages caused by intentional acts such as a false arrest, battery or excessive use of force by a person “acting under color of law” such as a police officer in violation of a person’s constitutional rights under the 4th Amendment. In that situation, a person has both state law tort and constitutional violation claims. We successfully handled a jail wrongful death case under state and federal law when we recovered $450,000 from the municipality and its private health care provider (http://www.corrections.com/articles/9043). We also obtained a $650,000 verdict in federal court after two weeks of trial based on a malicious prosecution for grand larceny that was initiated by a business against a former employee.
Many cases can be settled without “going to court”. A personal injury court case is started through a civil court proceeding that seeks to find others legally responsible (negligent) through a judicial judgment that determines fault and awards money damages. Many such claims may be resolved by settlement before a case goes to court. We negotiated payment of the liability insurance policy limits of $100,000 for a client’s fractured vertebrae from a motor vehicle crash caused by a drunk driver without having to litigate the case.
* New York State Insurance Law § 5102(d) provides:
“Serious injury” means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system, or 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 that ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.
