Consider this scenario. You’re driving and stopped at a red light when another vehicle hits you from behind hard enough to deploy your airbags. You quite literally feel like you’ve been hit by a truck. A few minutes later, when the shock begins to recede, you notice a painful sensation in your arm, which is at an odd angle. You think it best to get emergency treatment.
A visit to the local Emergency Room, together with charges for x-rays, a radiologist’s review and an orthopedic consult, can easily run into the thousands, with even more on the horizon for follow-up treatment, possible surgery and physical therapy. You have medical insurance, but you’re not concerned about things like deductibles and co-pays; since the other driver was completely at fault, it shouldn’t be too hard to have his insurance company cover the bills.
Your thought process is logical but possibly incorrect. In New York and other No-Fault states, your own automobile insurance covers your medical bills, even if the accident was completely the other driver’s fault. The intent underlying the No-Fault system is to secure payment of accident-related medical bills without regard to fault so as to remove relatively minor motor vehicle accidents from the Court docket.
In exchange for the prompt payment of medical expenses, the No-Fault system restricts the ability to sue an at-fault driver for non-economic loss, commonly referred to as pain and suffering. In New York, an injured party can sue only if a “Serious Injury” is sustained. The term in quotes is defined in the New York Insurance Law; some definitions are specific (“fracture”), while others (“significant limitation of use of a body function or system”) are vague enough to have spawned significant quantities of appellate level case law to interpret its meaning.
According to Nationwide Insurance, 18 states currently have a No-Fault system; in three of those states, No-Fault is optional, such that the insured can choose whether to be bound by its dictates. The details vary widely from state to state in terms of what is and is not covered, as well as the dollar limits of the coverage.
In Michigan, for example, the coverage amount is optional, ranging from $50,000 to $500,000; additional medical coverage is required in order to choose a lower benefit level. The liability component of the policy covers an owner or driver for causing damages if someone is killed, seriously injured or permanently disfigured. The Utah statute has much lower limits, whereby injured drivers must seek payment of the first $3,000 in medical expenses from their own insurance carrier.
No-Fault is a controversial system because it restricts an injured party’s right to sue for pain and suffering damages. In New York, the statute permits such lawsuits upon proof of a fracture. Since the law does not specify the severity required, a non-displaced fracture of the pinky—a minor injury at best—is not differentiated from an open, compound fracture of a limb. The former injury may or may not require a splint for a few weeks, while the wrist fracture will probably require surgery. But in either case, the victim is in the Serious Injury “safe harbor.” Sustain a fracture, and you’re in!
No-Fault Insurance can be a positive. A system that secures the prompt payment of accident-related medical bills without litigation is a “Good Thing.” Without the benefit of No-Fault insurance, the driver in the above scenario would have to litigate in order to recover a relatively small amount in expenses. And if liability were to be contested—for example, each driver states that the other driver failed to stop at a stop sign—the question of fault would have to be determined before medical expenses would be covered. If someone did not have medical insurance, bills for necessary treatment would not be covered for a sustained period of time, if at all.
However, the system could stand some improvement in its definition of “Serious Injury.” As it now stands, one can undergo significant treatment for a full-thickness rotator cuff tear with surgery and follow-up physical therapy and still have to contend with a Serious Injury defense at the time of trial, whereas someone with a pinky fracture has automatically complied with the Serious Injury definition. This is especially uneven with the type of accident that occurs. A motorcycle accident lawsuit may include more serious injury than one with two SUVs.
While the No-Fault system may seek to remove motor vehicle cases from the courtroom, there are still plenty of them on the docket. The New York system, for one, could stand improvement in its application—permit the payment of medical expenses while creating a safe harbor to allow recovery of pain and suffering damages for injuries like a double disc herniation which requires a laminectomy, discectomy or fusion.
No need to torpedo the entire system; take the positive aspects and fix the rest in order to make its application more equitable.
Michael L. Taub is a partner with The Platta Law Firm, PLLC, in New York City. He has been a member of the New York Bar and a practicing attorney for 38 years.
