Albany Personal Injury Attorney Explains Recent New York State Court PTSD Decision
Following an automobile crash in July 2015, Joanne Vergine claimed that she suffered injuries to her cervical spine, which in turn triggered several categories of “serious injury” under New York state Insurance Law § 5102 (d). Mrs. Vergine and her husband commenced an action, Vergine v. Phillips, that was heard in state Supreme Court in Schenectady County. The defendant moved to dismiss the complaint for lack of a serious injury. The plaintiffs claimed that Mrs. Vergine suffered post-traumatic stress disorder (PTSD), which qualifies as a serious injury. However, on January 10, 2018, the court dismissed the plaintiffs’ complaint because the PTSD was not diagnosed by a physician.
New York State’s Serious Injury Law § 5102
The plaintiffs filed an appeal; at issue was whether PTSD qualifies as a “serious injury” under § 5102 (d) and whether professionals besides physicians are qualified to make a PTSD diagnosis.
Insurance Law § 5102 (d) defines “serious injury” as:
Death • Dismemberment • Significant disfigurement • Fracture • 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.
Does PTSD Qualify as a “Serious Injury” in New York State?
Recently, however, the state’s Third and Fourth Judicial Departments (together encompassing most of upstate New York; the Capital Region is in the Third) have begun to consider post-traumatic stress disorder (PTSD) as a serious injury under the law’s definition of “significant limitation of use of a body function or system.” To date, the First and Second Departments (encompassing the greater New York City area and Long Island) have not followed suit.
Who Has The Right To Diagnose PTSD Under The Law?
In Vergine, plaintiffs presented the affidavit of Claudia Iantorno, a licensed clinical social worker, who diagnosed Vergine with PTSD, causally related to the accident. In dismissing the complaint, the Supreme Court did not recognize Iantorno as qualified to make the diagnosis because she was not a physician. In the appeal, however, the Appellate Division considered whether other professionals besides physicians were capable of making “an expert’s qualitative assessment of a plaintiff’s condition” and rendering a competent diagnosis. The court noted that case law had already recognized that PTSD may be diagnosed by psychiatrists, neuropsychologists, and psychologists. “The novel threshold question presented here is whether a LCSW is also competent to render such an opinion,” wrote the court in its decision.
Citing three statutes under New York Education Law, the court determined that the licensing, training, and professional functions of a licensed clinical social worker are comparable to those of a psychologist, and concluded “that an LCSW is competent to render an opinion as to whether a person has PTSD for purposes of establishing a serious injury under the Insurance Law…”.
And so the Vergine court held that “causally-related PTSD constitute[ed] a ‘significant’ limitation of the use of a body function or system,” further expanding of the definition of “serious injury” to move it outside the traditionally strictly construed statute.
A Win For Survivors with PTSD in NYS
This is good news for people injured in traffic accidents as well as for mental-health professionals who believe PTSD should be taken more seriously by the courts. The National Center for Biotechnology Information compiles numerous studies on the prevalence of PTSD among road-traffic-accident survivors, finding that, on average, 22% of survivors suffer from PTSD. Other studies suggest that the numbers are higher, somewhere between 25% and 33%.
And PTSD can be as debilitating as a serious physical injury, the dollar and human costs of which might include (but are not limited to) medical treatment, rehabilitation, and long-term therapy; prescription drug care; lost wages and the inability to return to full performance of a previous job; pain and suffering; flashbacks and anxiety; emotional stress and chronic depression; and substance abuse.
Dreyer Boyajian LaMarche Safranko is headquartered in Albany, New York, and advocates for victims who have suffered PTSD because of the negligence of others. If you or someone you know is a survivor with PTSD, call our personal injury lawyers at (518) 463-7784 or contact us for a no-obligation consultation.