New York Office Expands "Serious Injury" Defense For Surgery Claims

• Published date: 28 September 2023
• Subject Matter: Insurance, Litigation, Mediation & Arbitration, Insurance Laws and Products, Personal Injury
• Law Firm: Lewis Brisbois Bisgaard & Smith LLP
• Author: Mr Nicholas Hurzeler and Greg Katz

New York, N.Y. (September 27, 2023) - Our New York office continues its efforts to expand the playbook for successfully defending claims brought by plaintiffs who undergo surgery following motor vehicle accidents. In many motor vehicle cases, it is very questionable whether any post-accident surgery was medically necessary, and/or causally related to the alleged impact from the accident. In New York, practitioners sometimes overlook the 'serious injury' defense of NY Insurance Law ' 5102(d) when it comes to claims where the plaintiff undergoes a discectomy, laminectomy or a fusion after the accident. Under NY Insurance Law ' 5104(a), a plaintiff who has not sustained a 'serious injury' (as defined in Insurance Law ' 5102(d)) has no private cause of action for non-economic loss; rather, they must pursue No-Fault insurance as their sole remedy.

''Serious injury' means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ...