A sudden car accident can cause soft tissue injuries like whiplash, leaving you with severe pain. To sue the other driver for your suffering, you’ll need to demonstrate that your case meets New York’s “serious injury threshold.” However, soft tissue injuries aren’t often highly visible, and insurance companies love to argue that victims are exaggerating the debilitating symptoms they experience.
At Chopra & Nocerino, we’re committed to powering through insurer nonsense and fighting to get New Yorkers like you the payday they deserve. To learn more about how we can build airtight medical evidence to prove your pain, reach out today for a free consultation.
KEY TAKEAWAYS
- To file a lawsuit for pain and suffering after a car accident in New York, you’ll have to meet the “serious injury threshold” necessary to move beyond the no-fault system.
- Soft tissue injuries like whiplash often don’t leave many physical signs, allowing insurance companies to argue that their symptoms are minor and unworthy of significant compensation.
- The experienced New York car accident lawyers at Chopra & Nocerino can help you deliver a legal knockout, proving the debilitating impacts of your soft tissue injuries and securing the compensation you deserve.
Understanding New York’s No-Fault Law and Pain and Suffering Lawsuits
After New York car accidents, injured people may seek compensation through two paths:
- No-fault benefits for basic economic losses: New York’s no-fault system pays expenses regardless of who caused the accident. For occupants, benefits typically come from the insurer covering the vehicle they occupied. Basic economic loss coverage provides a combined total of up to $50,000 per person for necessary medical expenses, 80% of lost earnings—subject to a $2,000 monthly maximum for up to three years—and certain other reasonable expenses.
- Claims against at-fault parties: Most people covered by the no-fault system must establish a “serious injury” to recover non-economic damages, such as pain and suffering, from an at-fault driver or responsible party. However, the threshold generally does not prevent someone from pursuing economic losses exceeding basic economic loss.
For people with whiplash or other soft tissue injuries, proving a serious injury is often where the legal battle begins.
Why Insurance Companies Target Whiplash and Soft Tissue Claims
When a car accident victim has soft tissue injuries, such as whiplash, neck sprains, and disc bulges, insurance companies often see an opportunity to dodge liability. Insurers will lean on various tactics to dismiss or undermine a soft tissue injury lawsuit before it reaches a jury, including:
- Summary judgment motions: Insurance companies will frequently ask the judge to rule that the case isn’t valid, arguing that the victim’s injuries don’t meet the serious injury threshold.
- The “invisible injury” defense: Insurers will claim the victim is exaggerating the extent of their pain, using the fact that soft tissue injuries don’t appear on X-rays to insinuate that they can’t be impactful.
- Low-impact defense: If the car’s bumper only received minor damage, insurers will argue that the victim only sustained a minor injury — regardless of how much kinetic force the victim’s body actually absorbed in the collision.
Statutory Categories That Can Qualify Soft Tissue Injuries as ‘Serious’ Under § 5102(d)
People covered by New York’s no-fault law generally must establish a serious injury under New York Insurance Law § 5102(d) to recover non-economic damages, including pain and suffering. The categories include significant disfigurement, dismemberment and fractures. Soft tissue claims rely on:
1. Permanent Consequential Limitation of Use
A diagnosis such as nerve damage or cervical disc herniation does not automatically satisfy it. Medical evidence must show the crash caused a permanent, consequential limitation in the use of a body organ or member. Mild symptoms are insufficient.
2. Significant Limitation of Use of a Body Function or System
A claimant may satisfy this category by showing an injury caused more than a mild, minor or slight limitation of a body function or system. Objective range-of-motion testing or a qualitative medical assessment may help establish it. The limitation need not be permanent, but its nature, extent and duration remain important.
What Counts as “Objective Medical Proof” Under New York Case Law?
Pain complaints alone generally cannot establish a serious injury. New York courts require objective medical evidence showing a claimant’s physical limitation and connecting it to the crash. Evidence commonly takes two forms:
- Quantitative proof: A medical professional may use recognized tests to measure range-of-motion loss numerically and compare it with normal ranges.
- Qualitative proof: Under the New York Court of Appeals’ 2002 decision in Toure v. Avis Rent A Car Systems Inc., a medical professional may describe functional limitations without assigning a percentage. However, the assessment must have an objective basis and compare those limitations with the normal function, purpose and use of the affected body part or system.
MRI, electromyography and nerve conduction studies may support a claim. However, an abnormal result or medical diagnosis, including a herniated disc, does not establish the threshold by itself. The evidence must show a qualifying limitation caused by the accident.
Overcoming Pre-Existing and "Degenerative" Allegations
Insurance companies will do anything to undermine your claims and avoid paying you what you deserve. If you have a pre-existing medical condition, insurers will claim it is to blame for your pain, not a soft-tissue injury. If you’re older and have an MRI showing damage to your spinal discs, their medical examiners may pin it on “pre-existing age-related degeneration” rather than the effects of the crash.
Our experienced attorneys know how to counter underhanded insurance company tactics. We’ll work with radiologists, orthopedic specialists, and other medical experts to prove that your symptoms either come from a new condition or the significant aggravation of an existing one.
Frequently Asked Questions About NY Whiplash & Threshold Claims
Can I Sue for Pain and Suffering if My Injury Is “Only" Whiplash?
Even if whiplash is your only injury, your symptoms may still meet the “serious injury threshold,” allowing you to sue for pain and suffering. Our knowledgeable car accident lawyers can help determine whether you have a valid case.
What Happens if I Have a Gap in My Medical Treatment?
Having a gap in your medical treatment after a car crash can hurt your chances of recovering compensation for a serious injury, but it doesn’t have to end your case. Our attorneys can review your case and explain your options.
How Long Do I Have to File a Whiplash Lawsuit in NY?
The New York statute of limitations for car accident claims is generally three years after a crash. To maximize your chances of success, it’s important to seek medical attention and speak to an experienced lawyer as soon as possible after an accident.
Contact Chopra & Nocerino’s NYC Car Accident Lawyers Today
Don’t let insurance adjusters tell you that whiplash “isn’t a real injury.” Your pain is real, and our trusted lawyers will fight to make the insurance company feel that pain in its wallet.
Call Chopra & Nocerino today at (855) NYC-HURT or contact us online for a free consultation. Our team is available 24/7 to take your call and answer your questions in 11 different languages — and you won’t pay any fees unless we recover compensation for you.
