Miscarriage of One-Week Pregnancy Found to Be a "Loss of a Fetus" and Constitute a "Serious Injury" Under New York Insurance Law § 5102

AUTO – SERIOUS INJURY – LOSS OF A FETUS
McKendry v. Thornberry
(Sup. Ct., Rensselaer Co., decided 1/26/2009)

New York's No-Fault Law was enacted in 1973 to assure prompt and full compensation for economic loss and to provide for non-economic loss in the case of serious injury.  As originally enacted, it contained two categories of “serious injury”:  first, claims for death, dismemberment, significant disfigurement, certain types of fractures and permanent loss of use of a body organ, member, function or system; and second, claims for medical charges as a result of an injury that exceeded $500.

In 1977, the definition of "serious injury" was enlarged to mean:

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 than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.  (Insurance Law § 5102[d])

Merriam-Webster Online Dictionary defines "fetus" as "an unborn or unhatched vertebrate especially after attaining the basic structural plan of its kind; specifically: a developing human from usually two months after conception to birth[.]"

Plaintiff sued defendant for the "loss of [her] unborn child" allegedly due to an auto accident.  Defendant moved for summary judgment on the basis that plaintiff failed to sustain a serious injury as defined by Insurance Law § 5102(d).  Defendant submitted an affirmed report from a doctor who opined that plaintiff was "no more than 1 week pregnant" at the time of the accident and that "from conception to 6 weeks gestation, the pregnancy is in the embryonic stage and the product of conception is an embryo and not a fetus."  In opposition to defendant's motion, plaintiff argued that a pregnancy of any duration constituted a "fetus" as the term is used in Insurance Law § 5102(d).  Plaintiff also argued that the rules of statutory construction require that the intent of the Legislature be given priority over medical definitions and dictionary definitions because the term "fetus" is a word of technical or special meaning.

In denying defendant's motion, Rensselaer County Supreme Court Justice Henry Zwack ruled that pregnancies of any duration fall within the meaning of "loss of a fetus":

This motion also presents a question of statutory construction and the Court notes that its primary consideration must be "to ascertain and give effect to the intention of the Legislature" (Statutes § 92). "The legislative intent is to be ascertained from the words and language used, and the statutory language is generally construed according to its natural and most obvious sense, without resorting to an artificial or forced construction" (Statutes § 94). "A basic consideration in the interpretation of a statute is the general spirit and purpose underlying its enactment, and that construction is to be preferred which furthers the object, spirit and purpose of the statute" (Statutes § 96). "The words and phrases used in a statute should be given the meaning intended by lawmakers" (Statutes § 230). "Dictionary definitions may be useful as guideposts in determining the sense with which a word was used in a statute, but they are not controlling" (Statutes § 234). "Where a word is susceptible of two or more significations, the meaning to be given must be determined from the context of the statute, the purpose and spirit of it, and the intention of the lawmakers" (Statutes § 235).

Regarding the question of whether a one week pregnancy constitutes a "loss of a fetus" within the meaning of the Insurance Law's serious injury definition, this Court finds that it does, pursuant to the rules of statutory construction. In coming to this conclusion, the Court finds that the term "fetus" is a word of technical or special meaning. The rules of statutory construction state as follows: "Words of technical or special meaning are construed according to their technical sense, in the absence of anything to indicate a contrary legislative intent." The Court finds that the legislative intent appears to indicate an intent to include a pregnancy of any duration. The Memorandum in support of the legislation discusses a court opinion which dismissed the case of a woman who was nine months pregnant when she was in a motor vehicle accident and delivered a stillborn baby due to the accident. However, the Legislature does not engage in any discussion of the definition of the term "fetus," and there is also a reference to the phrase "loss of pregnancy". This Court has weighed heavily the fact that the Legislature referred to "loss of pregnancy" and also the fact that the Legislature did not make any clear reference that indicated an intent to limit the statute's application to pregnancies of a certain duration. The Memorandum in support of the legislation states in relevant part as follows:

A major objective of New York's no fault insurance law was to alleviate litigation by limiting recovery for damages for non-economic loss to instances of serious injury. Since the courts have interpreted the loss of a fetus not to be a serious injury, this legislation is necessary to clarify the statute.

A woman who is involved in an automobile accident that results in the termination of her pregnancy has suffered a serious injury and should have the right to recover from a negligent operator for her non-economic loss. She should not be subjected to an inequitable law that is inconsistent with the original intent of the no fault insurance law.

The Court also notes that the term "fetus" does not have a clear common meaning or a clear definition within the medical community. This further supports a finding that the Legislature did not intend to limit the term to a pregnancy of a certain duration.

The fact that plaintiff's doctor did not oppose the motion by setting forth his opinion of the definition of the term "fetus" is of no moment. The Court's inquiry into the statutory construction may take medical definitions into account, but the nature of this inquiry is not one that is determined by medical experts of the parties. The Court is required to determine the legislative intent behind the use of the term "fetus" in the statute and to determine whether a one week pregnancy falls within that definition as a matter of law.

Based upon the foregoing, the Court finds that the intent of the Legislature relating to Insurance Law § 5102(d) was to include pregnancies of any duration within the meaning of the phrase "loss of fetus".

A Serious Rant About the Permanent Consequential and Significant Limitation "Serious Injury" Threshold Categories

AUTO – SERIOUS INJURY THRESHOLD – INSURANCE LAW § 5102
Vidal v. Maldonado
(Sup. Ct., Bronx Co., decided 12/8/2008)

Okay, maybe "rant" is too harsh a term for the court's critical exposition of the state of the common law on the "serious injury" threshold in New York State. But for those who deal with automobile personal injury claims, this decision is a must read. I first spotted this case over at Eric Turkewitz' New York Personal Injury Law Blog.

Bronx County Supreme Court Justice Paul Victor sets the stage for his discussion of seemingly conflicting New York "serious injury" case law with the following commentary:

The defendants' motions and plaintiffs' responses have become almost assembly line, "cookie cutter" prototypes; and attorneys for defendants (and most plaintiffs) have become expert on how to present or attack a serious injury claim.

Defendants are very adept at providing prima facie proof demonstrating that plaintiff has not suffered a serious injury; proof at the very least sufficient to meet their "initial burden" to present competent evidence that plaintiff has no cause of action. Plaintiffs, too, have become quite conversant with the requirements to defeat defendant's motion.

* * * * *

The enabling legislation for the No-Fault Law itself provides little or no guidance to the bench and bar as to the scope of the terms used. For example, one should reasonably assume that the legislature sought to distinguish "significant limitations of a body function or system" from a "consequential limitation of a body organ or member". However, there appears to be no practical difference. Some courts have held that "consequential" means "significant" (See, e.g. Altman v. Gassman, 202 AD2d 265 [1st Dept. 1994]); and there are abundant cases in which all of the above terms (including body function, system, organ or member) are used interchangeably. The guidelines, conditions and examples provided by the Court of Appeals in a series of decisions, including Toure (cited and discussed, infra ) although very helpful, have not entirely unburdened the trial courts; and these serious injury claims continue to be the cause of incessant motion practice, and an abundant use of judicial resources at both the trial and appellate levels.

You can read the decision itself for Justice Victor's discussion and analysis of the Toure, Brown and Parreno decisions. After again noting that "[t]his legislatively imposed task has caused more than a season of judicial discontent and frustration, [and] has resulted in an extremely difficult and flawed process which results too often in an inconsistent and unfair application of the law", the court denied defendant's motion for summary judgment, even though plaintiff's treating internist had not set forth numeric percentages of any decreased range of motion in plaintiff's cervical and lumbar spine regions. The court found that a "less than normal" qualification of the ROM test findings was sufficient to create a question of fact when coupled with a positive MRI and the treating internist's finding of back spasms.

Presuming the defendant appeals this decision, we'll see what the First Department has to say. There are no bills currently pending in Albany that I found to amend the "serious injury" categories or proof requirements of Insurance Law § 5102(d).