Sunday, April 25, 2010

Bill Introduced to New York State Legislature to Expand "Serious Injury" Categories and Preclude Defensive Summary Judgment

A bill has been introduced to both houses of the New York state legislature that, if passed, will dramatically expand the number and kind of personal injury lawsuits that can be brought and tried in New York State. 

On April 16, 2010, New York State Assembly Bill No. A10739 and Senate Bill No. S07518 were introduced and immediately referred to each body's Insurance Committee.  The jointly introduced bill
"[a]dds to the definition of serious injury and relates to determining the sufficiency of the evidence related to the serious injury; question of fact determined by the trier."
New York Insurance Law ­­ § 5104 requires the existence of "serious injury" before a person injured in an automobile accident can sue and recover non-economic loss (emotional distress/pain and suffering) in a negligence action against another motorist or vehicle owner.  New York Insurance Law ­­ § 5102 currently sets forth nine categories or types of qualifying serious injuries:
  1. death
  2. dismemberment
  3. significant disfigurement
  4. a fracture
  5. 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
  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 joint bill proposes to add four categories or types of qualifying serious injuries to Insurance Law § 5102's definition of "serious injury":
  1. a partial or complete tear or impingement of a nerve, tendon, ligament, muscle or cartilage
  2. injury to any part of the spinal column that results in injury to an intervertebral disc
  3. impingement of the spinal cord, spinal canal, nerve, tendon or muscle
  4. a surgical procedure to any injured part of the body
What's an impingement of a muscle, and why is it added twice?  Will strains and sprains qualify?  Contusions?  Non-herniated but bulging discs?  Will sutures qualify as a "surgical procedure"?  The imprecision and ambiguity of these proposed additional "serious injury" categories should be embarrassing to the sponsors of this bill. 

The "Justification" section of the sponsors' memorandum for the Assembly's proposed bill makes the following argument in support of the bill:
When the legislature originally passed N.Y.S. Ins. Law § 5102, it never intended that New York's citizens would be deprived of their constitutional right to a trial by jury where they actually sustained a serious injury. The judicial transformation and interpretation of this statute has produced overwhelming obstacles never intended by the legislature and has clogged the courts with boilerplate "threshold motions" which monopolize judicial resources.

Over the past twenty years developments in technology have enabled medical practitioners to identify injuries to ligaments, tendons, tissue, nerves and other non-bony structures through the use of CT Scans, MRIs, EMGs and other methods. Prior to these advances in technology significant injuries would not have been revealed or adequately appreciated but they are now readily identifiable, and the seriousness of their effects are understood far better than ever before.

Unfortunately, current law has not kept pace with modern medicine.  As a result numerous cases where a serious injury was clearly present have been dismissed because the existing law does not clearly and specifically list and identify such injuries as actionable, regardless of how the injury affected the accident victims' lives.

The proposed amendments would curtail summary dismissal of legitimate cases involving significant injuries not objectively verifiable when the law was originally enacted in 1977. The Courts have been flooded with countless motions and extensive appellate practice on the issue of whether a serious injury was sustained, resulting in unfair and contradictory decisions and the dismissal of meritorious claims.  Injured parties in one Judicial Department may have their case dismissed as "non-serious" while in another Judicial Department a case with similar facts is permitted to proceed.
Don't like the courts meddling with the personal injury plaintiffs' lawyers' livelihood?  There's a legislative app for that.  In addition to seeing to it that nearly every minor, soft-tissue injury that results from a car accident will be actionable, cut the damnable courts out of the picture by outlawing summary judgment on the "serious injury" issue.  The jointly introduced bills would add a new section 5102-a to New York's Insurance Law, entitled "Issues of fact and sufficiency of the evidence":
Whether an injury qualifies as a serious injury pursuant to subsection (d) of section five thousand one hundred two of this article shall be a question of fact.  Where evidence is offered as to (a) whether an injury qualifies as a serious injury pursuant to subsection (d) of section five thousand one hundred two of this article, or (b) the causation of such injury, the sufficiency of such evidence shall be determined by the trier of fact.  Sufficiency and weight of evidence offered, including but not limited to that pertaining to qualitative and/or quantitative assessment of injury, shall be reserved for the trier of fact. 
Remarkable.  In no other other area of the law is a defendant denied his or her right to make a dispositive motion.  The very idea is patently ridiculous as antithetical to the rule of law and function of the judiciary.  What about a defendant's constitutional right to not face trial of a frivolous or unmeritorious lawsuit?  I suspect § 5102-a may be just a throwaway component inserted into these bills as a bargaining chip the sponsors may be willing to give up in order to obtain passage of the expanded definition of "serious injury".  But without a prohibition of summary judgment, the hopelessly vague and imprecise four additional types of serious injuries will likely spawn more, not less, motion and appellate practice.

If passed, the bill would apply immediately to all future actions and retroactively to any actions commenced prior to the act's effective (signing) date and pending on the effective date, where as of such date a trial has not yet commenced and a dispositive motion has not yet been filed.  If these bills ever make it out of the insurance committees to the legislature's floor for a vote, expect a deluge of serious injury motions to be filed.

I have an idea.  Let's get rid of no-fault altogether in New York.  No serious injury threshold.  But no pool of $50,000 in basic PIP per person to run up medical bills for unnecessary treatment either.  Remove the incentive to bilk no-fault insurers and medically manufacture qualifying serious injuries.  Everything gets to trial, but who's going to spot the cost of all those back surgeries of dubious medical necessity and efficacy just to pump up the personal injury settlements or verdicts?  Not auto insurers.  Maybe the lawsuit funding companies will.  And we'll solve the no-fault insurance fraud crisis (see my April 22, 2010 post) in one swell foop.  All in favor, say aye.

Update (April 27, 2010, 6:20 a.m.) ~~  For a thoughtful plaintiff's attorney's perspective on this bill, head over to Eric Turkewitz's New York Personal Injury Law Blog.  Eric and I appear to agree that the no-fault system is broken, but we differ on whether and, if so, how it can be fixed.  No one can legitimately argue with the laudable goal of eliminating inconsistencies in appellate decisions and recognizing that a causally related surgical shoulder or knee is more deserving of admission to court than a broken pinky finger or toe.  The proposed additional four categories of serious injuries, however, would make court a general admission event in New York, especially with a repeal of CPLR Rule 3212 only with respect to the "serious injury" threshold issue.

Update (May 11, 2010, 8:12 a.m.) ~~   This past Sunday's Buffalo News featured a front-page article entitled "Thompson legislation stirs new controversy".  It seems that the sponsor of the Senate version of this bill, Sen. Antoine Thompson of Buffalo, himself filed a personal injury action on March 3, 2010 for a 25% torn rotator cuff -- an injury that might not qualify as a "serious injury" unless Thompson's bill, which would apply retroactively to any previously commenced lawsuit that has not yet reached trial or for which a summary judgment motion has not yet been filed, is passed.  Coincidence or conflict of interest? 


Russ said...

Who here could possibly oppose the, "Full employment for plaintff and defense attorneys Act of 2010!"

Unknown said...

You want to talk about ambiguous and redundant, look at the current law:

# 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

What is a body function, system, organ or member and what is the difference between them? What is significant? How did the courts decide that "consequential" as used in the statute meant "of consequence" rather than "as a consequence", i.e., "resulting from". What rational basis was there for the court to imply the word "total" before "loss of use" in the statute, where it clearly was not put there by the legislature?

As for your lamenting the possible death of the threshold motion, where else in summary judgment law does the movant have to merely offer a conlusory "bought and paid for" opinion by a quack DME physician in order to establish prima facie their entitlement to judgment as a matter of law, thereby shifting the burden to the opponent to jump through increasingly shrinking procedural and evidentiary hoops just to "raise a question of fact"? A thing that is done by a mere line or two of deposition or affidavit testimony by the party in any other type of case. Why not show a little balance, for a change?

Larry Rogak said...

Thanks for bringing this to our collective attention, Roy. I'm going to run with it on my own page.

Thomas Brace said...

It's just another example of yet another dirty senator, hardly news anymore, it seems to come with the job. TNB