Senate Bill S3790

                                BILL NUMBER:S3790

TITLE OF BILL:
An act
to amend the insurance law, in relation to the definition of serious
injury and determining the sufficiency of the evidence with respect
thereto

PURPOSE OF BILL:
To provide fairness, guidance, clarity and consistency in the
application of the law determining "serious injury", to more
accurately and equitably administer the original intent of the
No-Fault law.

SUMMARY OF PROVISIONS OF BILL:
Section 1- would amend the definition of "serious injury" under
§5102(d) Ins. Law as follows: a personal injury which results in
death; dismemberment; significant disfigurement; a fracture; 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 intervettebral disc; impingement of the
spinal cord, spinal canal, nerve, tendon or muscle;
loss of a fetus; permanent total or partial loss of use of a body
organ, member, function or system; a surgical procedure to any
injured part of the body; any other permanent consequential
limitation of use of a body organ, member, function or system; any
              

other significant limitation of use of a body organ, member, function
or system; or any other medically determined injury or impairment of
a permanent or 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. A finding of
serious injury under any of the above enumerated categories in this
definition shall be a sufficient basis for an award for past and/or
future damages.

Section 2 would create a new section, §5102-a, as follows:

Issues of fact and sufficiency of the evidence. Whether an- injury
qualifies as a serious injury pursuant to subdivision (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 subdivision (d) of section five
thousand one hundred two of this article, or (b) the causation of
such an 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.

JUSTIFICATION:
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.

In all of the following New York Cases, the courts ruled that based on
the current definition and interpretation of "Serious Injury" that a
jury was precluded from determining whether a serious injury was
sustained and therefore the case was dismissed:

MATRA V. RAZA - a person suffered injuries requiring surgery to both
knees as a result of an automobile accident;

TAYLOR V. AMERICAN RADIO DISPATCHER, INC. - an accident victim
sustained a tear of the anterior talo-fibular ligament of her ankle
and a tear of the meniscus of her right knee confirmed by MRI
requiring surgery;

BYRD V. LIMO - a person suffered a tear to the musculature of their
shoulder requiring surgery;

DANVERS V. NEW YORK CITY TRANSIT AUTHORITY - a victim of a motor
vehicle accident sustained a torn ligament to the ankle that required
surgery;

CARTHA V. OUIN - a person sustained injuries to their elbow requiring
invasive surgery;

VALENTIN V. POMILLA - a person suffered herniated discs to their
spinal column with consequential nerve damage, which were confirmed
by objective and positive EMGs, and sustained injury to their right
knee, which required surgery.


These and countless other cases like them have all been dismissed by
our courts for the same reason: despite clearly evident and
debilitating injuries being present, these types of injuries have all
been denominated as "non-serious" by current judicial interpretations
of 5102(d) of the Insurance Law.

Moreover, the judiciary has seemingly usurped the authority of the
Legislature by unilaterally imposing "requirements" for proof of a
serious injury. While the existing statute does not require proof of
contemporaneous quantitative testing or require non-stop medical
treatment for all victims of vehicular negligence the judiciary has
created these as additional hurdles for an injured person to leap
over to prove that they are seriously injured.

Decisional law has repeatedly provoked courts to dictate medical
practices to physicians by imposing these requirements in to the
vagaries of treatment every time a "threshold" motion is interposed.
However, not all judges have approved of this judicial expansion into
usurping the roles of the Legislature, physicians, and juries.
The judiciary has repeatedly asked the Legislature for clarification
of the statute and firm guidance as to its application, to ensure
fairness and consistency in applying the "serious injury threshold"
and ease the enormous burden the current law inflicts on the bench
and upon citizens that have suffered serious injuries.

The amendments proposed by this Bill would remedy these problems by
clarifying what qualifies as a "serious injury" and promote fairness
and consistency in its application, taking into account modern
medicine and technology which have enabled medical practitioners to
identify with more specificity and clarity those injuries having real
and serious consequences. The amendment would further call for jury
determinations on factual issues surrounding the nature and extent of
the claims, rather than continuing to hamstring an already
overburdened judiciary with myriad "threshold" motions. Most
importantly, these amendments would promote fair, swift, consistent,
rational, just and easily comprehensible results, in keeping with the
intent of the original law.

LEGISLATIVE HISTORY:
A.10739 of 2009: Referred to Assembly Insurance Committee

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None.

EFFECTIVE DATE:
This act shall take effect immediately and shall be applicable to: (i)
all actions and proceedings commenced on or after the effective date
of this act; and (ii) all actions and proceedings commenced prior to
the effective date of this act and pending on the effective date of
this act, whereas of such date a trial of the issues thereon has not
yet commenced and a dispositive motion has not yet been filed.