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New York’s trial and intermediate appellate courts are wasting too much time debating whether injuries suffered in car accidents are serious enough to merit lawsuits, a state appeals panel said Tuesday. Writing in two cases in which the court said suits were properly dismissed, Justice George D. Marlow of the Appellate Division, 1st Department, said the time has come for the Court of Appeals or the state Legislature to reform the definition of “serious injury” under New York’s insurance law. “One need only examine the scores of repetitive judicial and legal debates on this issue to conclude reasonably and quickly that the status quo is a diversion of precious court resources which is correctable in the interests of fairness, justice and efficiency,” Marlow wrote in Thompson v. N&A Taxi, 4505. He said a “brighter line” needs to be drawn between those cases that reached a “serious injury” threshold and those that did not. In a dissent, Justice David B. Saxe said the majority was “pressing a relentless assault” on the serious injury threshold and increasing the burden of plaintiffs. “Characterizing its discussion as merely ‘respectfully urging’ further review by the Legislature or High Court, the majority uses the expression of this lofty concern to convey a neutral high-mindedness while imposing upon injured plaintiffs new impediments to litigation, which will have the effect of shutting the door on legal claims to which they are now entitled under existing law,” Saxe wrote. In a second case, Bent v. Jackson, 3935, Marlow wrote a majority opinion that reached the same conclusion. Saxe dissented in that ruling as well. New York Insurance Law �5102 defines “serious injury” as “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.” Among the injuries noted in the statute are death, dismemberment, significant disfigurement, fracture and loss of a fetus. In Thompson, the 1st Department reviewed a trial court ruling that dismissed a suit by Samuel Thompson, who was injured in a November 1999 car accident. Thompson was taken to the hospital and released with a cervical collar and pain medication. He saw a chiropractor the next day. He missed only a week of work but alleged that he continued to seek treatment for spine injuries. He sued N&A Taxi over the accident, claiming he had suffered a serious injury. The 1st Department majority ruled that Thompson had no “competent evidence” of continued medical treatment over the next two and one-half years. The majority rejected assertions by Thompson’s doctor that his injuries resulted from the accident, saying the claim was not based on competent evidence. Marlow added that N&A Taxi had submitted affidavits from two doctors who said Thompson had normal range of motion in his cervical spine. “Given plaintiff’s prompt return to work and the absence of any medically objective evidence, his subjective claims of pain and his unsubstantiated claim of inability to perform his customary daily activities are insufficient to raise a triable issue of fact,” Marlow wrote. Saxe said Thompson had submitted enough evidence, including evidence of physical therapy sessions, to merit a trial over his alleged injuries. Moreover, Saxe said, Thompson’s doctor, who had identified the injuries soon after the accident, confirmed them years later. “One may wonder what more the majority would like the physician to do in order to conclude that an injury is permanent and was caused by the accident,” the judge wrote. Should the majority’s interpretation stand, Saxe said, plaintiffs would need to undergo immediate and expensive medical tests as soon as they are injured, rather than having the option to rest and monitor injuries. They would then have to seek the same treatment repeatedly to validate the injury, he said. “Not every permanent injury can be resolved by treatment; back and neck injuries are frequently handled with the type of ongoing self-administered therapeutic approach that plaintiff ultimately adopted here,” Saxe wrote. “The absence of a medical treatment and cure does not negate the existence of the injury, or its permanence.” Justices Peter Tom and John W. Sweeny joined Marlow in the majority in Thompson. Justices Joseph P. Sullivan, Milton L. Williams and David Friedman joined Marlow in Bent. Lawrence B. Lame of the Law Office of Daniel Chavez represented Thompson. Thomas Torto and Jason Levine represented N&A Taxi. In Bent, Christopher J. Crawford and Brian J. Isaac of Pollack, Pollack, Isaac & DeCicco represented the plaintiff, Audley Bent. Charles R. Gueli of Brand & Brand in Garden City represented the defendants.

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