Proving Negligence in a Catastrophic Injury Case
In a legal case that involves personal injury, the attorney must prove that another person’s negligence caused the injury and that damages (economic and non-economic) resulted from the injury.
What Is a Catastrophic Injury?
Based on U.S. Code, “’catastrophic injury’ means an injury, the direct and proximate consequences of which permanently prevent an individual from performing any gainful work.” (42 USCS § 3796b)
The attorney will have to prove the other party’s negligence. Depending on the cause of the injury, this would vary. For example, if the individual suffered injury in a car crash, the lawyer would have to prove the other party was at fault for the accident. If the person suffered injury as a result of surgery, medical malpractice would have to be proven.
Aside from proving negligence, the attorney would have to provide evidence of the damages. Evidence could be in the form of medical reports, statements showing income loss and a doctor’s evaluation regarding inability to work or indication that the person was permanently disabled. This type of evidence would be an important aspect of the case.
Sometimes the degree of injury is not immediately apparent. It may take months for some symptoms to emerge, and of course there is also the unknown factor of whether treatment will result in medical improvement. That is why most lawyers recommend waiting until maximum medical improvement has been reached in order to ascertain the extent of damages in a case.
The New York Serious Injury Threshold
New York State Insurance Law contains a definition for serious injury caused by a motor vehicle accident. This law is known as the “serious injury threshold.” The injured party must establish that he or she has incurred a basic economic loss exceeding $50,000 or has suffered “serious injury.” Serious injuries are defined as one of the following:
- Significant disfigurement
- Loss of a fetus
- Permanent loss of use of a body organ, member, function or system
- Permanent consequential limitation of a body organ or member
- Significant limitation of use of a body function or system
- 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.
When Should You Seek Legal Help?
If your injury is catastrophic or serious, you should consult with an attorney. Compensation for catastrophic injuries or serious injuries is often substantial due to the extreme damages. You should seek legal help right away. An experienced attorney can investigate and gather evidence to build a case.
At Sackstein Sackstein & Lee, LLP, we offer a free initial consultation to discuss your injury and the prospects of pursuing legal action.