Bicycle Accidents and the Serious Injury Threshold
There’s a lot that goes into any personal injury case, especially bicycle accidents. Yet whether our office or a defense attorney is analyzing a case that involves an injured cyclist, almost every aspect of a case falls into one of two buckets: liability and damages.
“Damages” means exactly what it sounds like, i.e., the injuries suffered by the plaintiff cyclist. In order to successfully bring a case that involves a bicycle and a motor vehicle, the plaintiff must prove that the damages meet the serious injury threshold according to New York Insurance Law § 5102(d), which include the following:
Death
Dismemberment
A significant disfigurement
A fracture
The 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
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 90 days during the 180 days immediately following the occurrence of the injury or impairment.”
Most of the above injuries are straightforward. The last four are more complicated because there is more room for interpretation. Many cases have attempted to clarify and define each of these categories.
It's important to note that injuries must be verified by way of objective, diagnostic testing. Courts have consistently determined that an injury will not be considered “serious” if there are no objective medical tests confirming your pain or limitations.
Specifically, the last category is what’s known as the 90/180 Rule. Basically, plaintiffs can file a lawsuit if they can show medical evidence that they were unable to perform daily activities such as getting out of bed, going to the bathroom unassisted, walking, etc., for at least three out of the first six months following an accident.
Unfortunately, curtailment of recreational activities such as going to the gym, playing golf, etc., does not constitute an inability to perform activities of daily living.
If you believe your injuries are “serious,” you can expect an argument to the contrary from the insurance company. Also, a conclusory statement from your physician will be insufficient to prove your case, especially if your injury falls within one of the last four categories listed above.
Rather, there must be credible evidence that shows the accident caused your serious injury, the methods by which the medical provider arrived at their conclusion, as well as details of their findings. Things get thornier if there have been gaps in your treatment. Additionally, a pre-existing condition can further complicate your claim. Medical evidence must clearly establish that the injury you are suffering from is indeed the result of the accident for which you are suing.
Proving a serious injury case is often challenging, in addition to dealing with an insurer that is disputing your claim. Obtaining legal representation will protect you and will help ensure you do not accept an underestimated settlement offer.