Whiplash Lawsuit Seeking Compensation Without Proof of Serious Injury*

In this instance the plaintiff is Karol Wild. The defendants are Dar Bren as the Administrator of the Estate of Angel Mura, Deceased. This is an appeal from a lower court that granted the defendant's motion for judgment dismissing the complaint.

The plaintiff Wild was involved in an automobile accident with the defendant, as a result of which she brought this whiplash lawsuit seeking damages for the personal injuries she sustained. The defendant successfully sought summary judgment on the ground that the plaintiff did not suffer a `serious injury´ within the meaning of Insurance Law. The plaintiff is now appealing that decision.

The defendant clearly established, prima facie, that the plaintiff did not suffer a serious injury. At issue here then is whether the plaintiff Wild produced competent medical evidence raising a material issue of fact as to the existence of a serious injury.

The record reveals that the plaintiff suffered a soft-tissue injury that she claims constitutes a "significant limitation of use of a body function or system" and a "permanent consequential limitation of use of a body organ or member," two of the categories encompassed in the definition of "serious injury."

The plaintiff Wild submitted the affirmation and office records of one of her treating physicians for this whiplash lawsuit. The doctor opined that the plaintiff suffered a chronic lumbar strain, whiplash-type cervical strain and myofascial pain syndrome, which is permanent and will prevent the plaintiff from engaging in many routine activities.

She further stated the plaintiff suffered "a significant limitation and/or loss of use of her neck, upper back and trapezius region," which "is more than mild or slight."

Such conclusory statements are not sufficient to raise a question of fact as to the seriousness of the plaintiff's injuries. Rather, the plaintiff's physician must either describe whatever limitations are found to exist and assign a numeric percentage to them or provide a qualitative assessment of the plaintiff's condition and compare it to the normal function, purpose or use of the affected body, organ, member, function or system.

The doctor failed to do this and the lower court properly granted the defendant's motion. The lower court´s judgment was therefore affirmed in the current whiplash lawsuit.