I heard today from a woman who was hit in the rear while stopped at a traffic light. She immediately felt some pain in her back and neck, most likely from the whiplash of moving forward and then her seatbelt pulling her back. The police came and offered to have an ambulance take her to the hospital, but she refused. The next day, she went to her doctor who sent her to see an orthopedist. The orthopedist took x-rays, but found no fractures; nonetheless, the doctor prescribed some painkillers and muscle relaxants and a course of physical therapy. The woman has subsequently had an MRI that revealed a herniated disc.
She called me with some questions:
Can I sue the driver who hit me even if I have no broken bones?
Is it too late to sue the driver who hit me?
While it is always good to receive immediate care – meaning if offered an ambulance, it is helpful to get checked out – this woman did the right thing by immediately following up with her own doctor. Her situation and questions touch on some important issues:
The Deadline for Filing a Lawsuit in a Car Accident in New York
All states establish Statutes of Limitations, the time by which a lawsuit must be filed. (To learn more about New York’s Statute of Limitations, click here.) New York State law permits you to start a lawsuit within three years from the date of the accident. This applies to cases involving two or more motor vehicles or motor vehicles involved in accidents with pedestrians or bicyclists.
Note: While the statute of limitations for bringing a lawsuit is three years, New York No-Fault insurance requires you to file a claim within thirty days of the accident. I have written an article that explains New York’s No Fault Law and you can read it here. In addition, if you have a claim against a municipality [The State of New York, The City of New York, the New York City Transit Authority, the MTA Bus Company, a county, or a town] or a municipal employee with respect to the operation of a vehicle, the statute of limitations can be as short as one year and additional restrictions apply to the case.
Proving a Case against another Driver in a Car Accident
To prove a case against the other driver, this woman will need to prove that the other driver acted negligently or recklessly and that the negligence caused her injuries. In this case, the driver hit her from behind. New York State law assumes that a driver who strikes a car from the rear bears responsibility for the accident unless he or she can document unusual circumstances.
Proving damages can be tricky in this case because all plaintiffs in New York must meet the serious injury threshold. If you have a broken bone or a fracture, you automatically meet this requirement. The New York courts have increasingly been ruling that soft-tissue issues, such as herniated discs, bulging discs and related issues, do not qualify. The ability to meet the serious injury threshold with a soft tissue or whiplash injury depends upon the length and nature of treatment and the nature of the diagnosis. I have had success settling soft tissue and whiplash cases and winning in court with such cases, though that is not true in all cases. I must evaluate each case on an individual basis. You can read more about the serious injury issue here and here.
I hope you have found this information helpful. If you or a loved one has suffered an injury in a car accident, you may be entitled to compensation. If you have questions about a potential auto accident case, you should consult an experienced personal injury lawyer in New York. I will be glad to answer your questions and assist you. There is never a charge for this consultation. You can call me at 1-800-660-1466 or email me. You can also visit my website or read more on my blog, New York Law Thoughts.