Catastrophic & Serious Injury Lawsuits

Serious bodily injury (or catastrophic injury) refers to a limited type of physical injury that is particularly serious, and typically arises in the context of insurance or criminal cases but can also occur in other situations, including medical malpractice. This is distinguished from general personal injury cases which encompass a wider array of less serious injuries from accidents, including car accidents and slip and fall incidents.

There are many different types of serious bodily injury that can occur in a variety of settings. Some of these injuries include the following:

• Paralysis
• Scarring or serious disfigurement
• Loss of a limb
• Serious burns
• Blindness
• Spinal cord injuries

• Emotional or Mental Distress (by itself)
• Minor physical injuries (includes minor cuts, scrapes or bruises not causing long term health impairment)
• Temporary physical injuries or impairments

State Laws

Criminal Laws

Many serious bodily injury cases begin in the context of criminal law. If serious bodily injury results during the commission of a crime, it generally changes the level of the crime from a misdemeanor to a felony. If you are the victim of a crime, and are seriously injured, you should be aware of the definition of serious bodily injury under the criminal law in your state. An example is contained in the New York Criminal Law.

New York Criminal Law

New York Penal Law Section 10.00 – Under this law, the crimes of Assault, Burglary and Robbery, include the term “Serious Physical Injury” as a component. If the victim suffers an injury as defined in this section, the prosecutor will increase the charge from a misdemeanor to a felony.

Definition of Serious Physical Injury, New York Penal Law Section 10.00 (10)

• Creates a Substantial Risk of Death
• Causes Death
• Causes a Serious and Protracted Disfigurement
• Causes a Protracted Impairment of Health
• Causes a Protracted Loss or Impairment of the Function of Any Bodily Organ

Other states have similar legal definitions, so it is important to consult an experienced attorney if you believe that you were seriously injured during the commission of a crime. Following the prosecution of the crime you may want to file a civil tort lawsuit for damages based upon your injuries.

State Tort Laws

Under the tort laws in your state, you may sue for damages resulting from a variety of injuries, including, serious or catastrophic injuries. States have different requirements for the following:

Limitation on Damages – Some states have a limit on the amount of damages that you may recover from your injury, while others have no cap. An attorney can assist you in determining the amount of damages you can recover.

Statutes of Limitation – The statute of limitations is the length of time you have to file a lawsuit. The time limit for tort cases in general is relatively short in most states. For example, in New York the statute of limitations is three years.

Insurance Laws

Serious bodily injury is generally part of insurance policies in the context of automobile accidents. The insurance law in your state will include definitions of what constitutes serious physical or bodily injury. Most states permit injured parties to file lawsuits following car accidents, based upon certain limitations. Twelve states have no-fault insurance laws, that compensate regardless of injury, and a victim can only file a lawsuit if certain conditions are met.

What is a No-Fault Law?

If your state has a no-fault insurance law, that means that drivers in car accidents may not file a lawsuit or be sued unless the injuries meet the definition of “serious” under the state insurance law. An example of this definition is contained in the New York Insurance Law.

New York Insurance Law

Article 51, Section 5102 (d), of the New York Insurance Law specifies the injuries that qualify as serious bodily injury and permit an accident victim to file a lawsuit for damages.

• Death
• Significant disfigurement
• Dismemberment
• Loss of fetus
• Permanent loss of a bodily organ, function or system
• Fracture

Other injuries such as strains and soft tissue injuries may constitute a serious bodily injury if they result in a significant limitation on the use of a body organ, member, or system, for at least 90 days after an accident.

Criminal Prosecutions

If you are the victim of a crime, as defined under your state law, and injured as a result, the criminal charge may increase based upon whether the injury is considered serious. For example, if you are attacked and robbed, resulting severe fractures the prosecutor may charge your assailant with robbery, assault, and battery in the first degree, which are felonies.

Civil Lawsuits Resulting from Criminal Cases

If you were the victim of a felony, and had serious bodily injuries, you may be able to file a civil lawsuit for damages arising from your injuries once the criminal case is concluded.

Insurance Lawsuits

Serious bodily injury is generally defined in an insurance policy that compensates victims of an accident. The insurance policy that covers the party at fault will pay for damages you incurred as a victim of the accident. Whether you can file a separate lawsuit, depends upon whether your state has no-fault or at-fault insurance laws.

No-Fault Insurance States – To file a lawsuit in a no-fault insurance state, your injuries generally must meet the threshold for serious bodily injury under your state’s insurance law. For example, New York, New Jersey, and Pennsylvania are some of the 12 no-fault insurance states. It is important to consult the specific laws in your state to find out their specific threshold requirements for filing a lawsuit.

At-Fault Insurance States – In an at-fault insurance state, the damages are paid by the insurance company based upon tort liability. This depends upon the degree to which each party is at fault. If an injured party does not receive sufficient compensation, he or she may file a lawsuit for unrecovered economic damages.

Medical Malpractice Lawsuits

You may suffer a catastrophic injury during a surgical procedure that involves negligent or reckless conduct, including physical impairment from errors in surgery or the use of anesthesia. Consulting an attorney is important because some states limit medical malpractice damages to a maximum amount. In addition, the statutes of limitations for medical malpractice cases in most states are relatively short, ranging between two and three years.

Tort Lawsuits

When you are injured due to the negligence or intentional act of another you may file a lawsuit for damages arising from that conduct. To file a claim for catastrophic injury in your state, there are specific requirements that must be met. Each state is different, and it depends upon whether your injury occurred in a car accident or other setting. In general, however, you should take some basic steps to prove your case.

• Serious injury – The injury you sustained must constitute a serious injury to your body, as opposed to just a mental or emotional injury or a minor physical injury. The specific definition will depend upon the law in your state, and whether your case is criminal or civil.
• Causal connection – It must be established that your injury is clearly the result of the incident or accident that occurred. Difficulties can arise if there are pre-existing health conditions or medical treatment is not continuous.
• Get medical treatment – It is important to seek medical treatment after your accident or any other incident. Medical records are a critical aspect of proving your potential case.
• Take photos and videos of injuries and accident ccene – Documenting your accident or other incident, and initial physical condition is important as this will preserve the scene and your injuries which may change with time.
• Keep records of all documents – You should ensure that any insurance, medical, police or other relevant documents are available to prove your case, particularly if you decide to file a lawsuit.

Types of Damages for Serious Bodily Injury

Damages for serious bodily injury can include the following:

Economic Damages

• Lost wages
• Lost future earning capacity
• Medical costs and expenses

Non-Economic Damages

• Pain and suffering
• Loss of consortium
• Mental anguish

Since serious bodily injuries have a long-term impact on the victim’s life, as well as the family, the amount of damages sought is generally high. The precise amount depends upon various factors that an experienced attorney can help decide. As previously mentioned, some states limit the amount of damages that a plaintiff can recover in a tort case; other states, such as New York, do not have a limit on monetary damages.

If you or someone you know has suffered a serious bodily injury in any context, and are interested in filing a lawsuit, it is important to consult with attorneys who are experts in this type of law. Please contact Emerson Firm LLP, to schedule a free consultation.