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New York Personal Injury Law Blog

Monday, March 2, 2015

Medical Malpractice, Standards of Care and Your Legal Rights

Despite efforts to mitigate their occurrence, medical errors by doctors, nurses and other healthcare providers result in a significant number of injuries and deaths every year.  It is important to note that not every treatment which results in the degradation of the patient's condition(s) or in failure to restore health constitutes medical error or malpractice.  Instead, malpractice occurs when there is professional negligence by healthcare providers or facilities. 


Professional negligence by act or omission by a health care provider occurs when the treatment provided falls below the accepted standard of practice in the medical community and causes injury or death to the patient. In order to determine whether there was malpractice, the key issue is whether physicians and caretakers followed accepted standards of care.

What are standards of care?
Though medical care is highly complex, there are a finite number of issues that afflict people with any regularity. Because of this, standards have emerged that the medical community has agreed should be followed in almost any given medical situation.

Therefore, if a patient arrives at a medical facility with one or several symptoms, the attending physician should perform a series of predetermined steps to diagnose and treat the patient. These rather inflexible, predetermined steps are standard; they are standards of care. Standards of care can vary by specific circumstances but most often involve questions and steps such as:  

  • Was an investigation conducted and did the doctor take steps that he or she would have been reasonably expected to take?
  • Was a diagnosis pursued?
  • Was treatment provided in a timely manner?
  • Was the patient informed of risks? This is known as informed consent.
  • Did the healthcare facility provide a healthcare professional who was qualified to provide to the care that was needed?
     

What Other Issues Can Arise Regarding Standards of Care?

Standards of care involve agreed-upon rules, but medical professionals can nonetheless disagree on what action should have been taken in relation to specific situations. Questions regarding the medical issue itself may affect standards of care, as well as the location of the facility in which the care was provided and the resources at the facility’s disposal. For instance, a small, rural clinic may operate on a different standard of care than a well-funded urban or university hospital. Most medical malpractice cases, therefore, rely on medical expert testimony for proof that malpractice occurred and that a deviation from standards of care was made. Only other physicians are qualified to testify regarding the competence of a doctor who may have committed medical malpractice, and only specific physicians are able to testify knowledgeably regarding the limitations and capabilities of a specific health care facility.

If you suspect that you have suffered injury at the hands of a doctor who did not follow the standard of care, contact a medical malpractice attorney who can provide effective counsel regarding the building and management of your case. 


Monday, February 16, 2015

Be Wary of Carbon Monoxide Levels During Winter

If you live in cooler climates, winter is a time to take precautions against carbon monoxide poisoning.  Residents of the northern parts of the country who seal up their homes to keep them warm over the winter may increase the threat of carbon monoxide poisoning.  


According to the Centers for Disease Control and Prevention, carbon monoxide poisoning is the leading cause of accidental poisoning deaths in the United States.  Rates of injury and death are highest in the winter and among residents of the Midwest and Northeast United States.  To minimize risk, it is important to understand the symptoms of carbon monoxide poisoning and how to prevent it in your home and other sealed locations like your car and garage. .

Carbon monoxide is a dangerous gas that you cannot see, smell, hear, taste or feel.  Without detection equipment, your first clue that carbon monoxide is present may be symptoms of poisoning in yourself or a loved one.  Many household appliances produce carbon monoxide, including oil- and gas-burning furnaces, portable generators and charcoal grills.

Symptoms of Carbon Monoxide Poisoning
A person with carbon monoxide poisoning may exhibit flu-like symptoms, such as:

  • Headache
  • Dizziness
  • Chest pain
  • Nausea and vomiting
  • Fatigue
  • Confusion

Pets as well as humans can exhibit these symptoms.  If anyone in your home shows these signs, it is important to immediately:

  • Provide fresh air, either by leaving the premises or opening all doors and windows
  • Put distance between the victim and the likely source of the carbon monoxide
  • Call 911 and state that you suspect carbon monoxide poisoning
  • Get medical attention for the victim
  • Have your home inspected before returning (your local fire department or police department should be able to help with this)

Preventing Carbon Monoxide Poisoning
Carbon monoxide can easily be fatal if untreated, especially among children and the elderly,.  Increase your family’s peace of mind by taking the following steps to prevent carbon monoxide poisoning:

  • Install CO detectors outside every bedroom and in the basement or where your oil or gas-powered appliances are.
  • Get regular service for appliances that use oil or gas.
  • Do not use appliances to heat your home that are not built for that purpose, such as portable camping stoves, lanterns, charcoal grills or your oven.
  • Never sleep in a room heated by a gas or kerosene space heater.

Taking these simple steps can keep your family safe from CO poisoning throughout the winter months.
 


Monday, February 2, 2015

What Should You Do When Your Insurer Wants to Settle Your Personal Injury Case?

Hint: When You Are Injured, Your Relationship with Your Insurer Changes

Have you ever marveled at how much better an airline, retailer or other business is at processing your order and taking your money than it is at providing a refund? The reason is not technological and it is not because the refund process is somehow more difficult. It is because the nature of the relationship between you and the business has changed. You are no longer a prospective customer the business is trying to woo or a current customer the business is trying to please. Instead, you’re a liability. And liabilities are on the bottom of most businesses’ priority list. 

Likewise, when you are looking to buy car insurance or other insurance involving personal injury, insurers are anxious to “sign you” and lock in the premiums you will pay. When you are injured though, you are a liability and chances are you will be treated like one. 

Following an Accident, Your Insurer May Try to Save Money at Your Expense

Here is how most insurance companies respond to news of a serious accident on the part of one of their insureds. 

Perhaps a car accident has resulted in the need for expensive surgery, physical therapy and home care. Like everyone, you are afraid of a protracted delay in the payment of your medical expenses and other costs. Your insurer is aware that you are likely experiencing this anxiety. 

By offering you a quick settlement, the insurer can capitalize on your anxiety by offering you far less than your claim for damages is likely worth. For instance, perhaps you are insured for $1 million. Your medical costs and other losses may total $300,000. By offering you a fast settlement of $75,000, your insurer can appear helpful and concerned while actually saving $225,000.

 

Not all insurers handle claims like this example every time, but you should be aware of insurers’ motivations following an accident and make informed decisions accordingly. The best way to make informed decisions is with the assistance of an experienced personal injury attorney. 

A Personal Injury Attorney Can Protect Your Rights and Interests.

A qualified personal injury attorney can protect your interests by dealing knowledgeably with the facts of your case. What is the likely extent of your injuries? What are the limits of your insurance policy? What would a jury likely award you based on the facts of your case? And what is the actual value of your case, based on the answers to these questions?

Once your attorney investigates your case in conjunction with medical providers to assess your injuries and determines the value of your claim, he or she can work from a position of strength to negotiate with your insurer. Remember, an insurance policy is a legally binding contract. If you are injured and covered by insurance, your insurer is obligated to pay you the full value of your claim, unless you make the mistake of settling for a lesser sum early in the process. Contact a personal injury lawyer as quickly as possible whenever questions regarding insurance policy payouts arise. 


Monday, September 22, 2014

On-the-Job Injuries, Worker’s Compensation and Third-Party Claims

 

Worker’s Compensation Benefits Only Go So Far

Workers’ compensation laws have two primary objectives:  The first is to ensure that injured workers receive the compensation they need following an on-the-job injury and the second is to ensure that injured workers received the compensation they need quickly and easily, and without anxiety as to whether the funds will actually be available.

Millions of injured workers have received funds dispersed by the Office of Workers' Compensation Programs (OWCP), which compensates workers for lost wages, medical expenses and other expenses directly related to their injuries and losses sustained on the job. There is another loss for which the OWCP cannot reimburse workers: pain and suffering. This means that, despite injuries that are severe, injured workers are barred from OWCP compensation for:

  • Mental trauma associated with a serious injury or disability
  • The inability to accomplish the activities of daily living
  • Diminished quality of life
  • Loss of consortium on the part of a spouse or family member (in the event of the death of a worker)
  • Loss of mobility (except in relation to diminished earning capacity and other direct financial loss)

Fortunately, there is often a way for workers and their families to obtain additional, high-value, lump sum compensation following an injury on the job – a third-party claim.

What Is a Third-Party Claim?

To understand third-party claims, it’s important to understand that Worker’s Compensation claims are paid via the employer’s Worker’s Compensation insurance. In exchange for the benefit of receiving lost wages, medical expenses and other expenses to employees injured on the job, the injured employee relinquishes the right to sue the employer for damages.  Federal law limits what the insurance covers, leaving injured workers uncompensated for a range of losses.

Successful third-party claims result in compensation paid to an injured worker, or his or her family, not by Workman’s Compensation insurance but by a third party. A third party can be the insurer of a contractor, subcontractor, vendor or other party on a work site that was responsible for the accident and subsequent injuries, but not the injured worker's employer.

A third-party claim could look, generally like this:

While working for a roofing company, a roofing assistant sustains a concussion when a can of paint, owned by the house-painting contractor, falls on him from above. In the wake of the injury, the employee requires a great deal of medical care resulting in high medical bills and a month of missed work. The worker files for and receives compensation from the Office of Worker’s Compensation Programs through his roofing company employer but this compensation only covers medical expenses and lost wages. In order to recover damages for the pain and suffering associated with the injury, the assistant hires a personal injury attorney and receives a high-value award for the other losses resulting from the injury. The award is not paid by the Office of Worker’s Compensation Programs but instead by the insurer of the painting company whose negligence caused the injury. 

If you or a family member endured the pain, shock and loss of a serious on-the-job injury, you should investigate the possibility of a third-party claim. A third-party claim can result in compensation that covers your whole loss, not just the losses directly related to medical and wage expense. To learn more about third-party claims, contact a personal injury lawyer. 


Friday, September 12, 2014

Truck Accident Personal Injury Claims: Are They Different From Car Accident Claims?

 

While automobile and truck accidents have many aspects in common with each other, in certain respects, they differ greatly. Due to the specialized knowledge required to successfully resolve these types of matters, it’s important that you hire an attorney who knows the ins and outs of truck accident law if you’ve suffered an injury from an accident involving a truck.


How Do Truck Accident Claims Differ from Car Accident Claims?

Truck accident claims involve many of the same basic questions that car accident claims involve. Who was negligent? How did the accident occur? And what insurance coverages apply to the claim?

Numerous circumstances can occur during truck accidents, though, that are unique to crashes involving commercial vehicles and large vehicles. For example:

 

  • Semi truck drivers are required to stop and rest at legally mandated intervals. Drivers’ logs, driver and expert testimony, witnesses’ testimony and other evidence can be used to prove that a truck driver was fatigued at the time of the accident.
  • Semi trucks must be regularly maintained in order to be operated safely. Maintenance records obtained via the discovery process may prove the truck was unsafe to operate.
  • Semi truck drivers are barred from operating a vehicle under the influence of drugs, alcohol and certain prescription medication. If the driver was under the influence of a substance, or had a history of substance abuse that went unnoticed when he or she was hired, the driver or transportation company can be held liable for damages.
  • Transportation companies are legally required to employ safe and cautious drivers, and to competently screen drivers. If a transport company fails to determine that a new hire has a history of traffic violations, it can be held liable.
  • New trucks are often now equipped with technology similar to jumbo jets’ “black boxes”. If an accident occurs, a truck accident attorney can subpoena possible evidence of negligent driving via the black box.
  • Truck drivers, more so than car drivers in many jurisdictions, are barred from using cell phones while driving. Following a truck accident, a lawyer can subpoena the truck driver’s personal and or company cell phone records to determine whether he or she was using the device at the time of the accident.

Other complex legal issues can arise when a commercial vehicle such as a delivery truck, pickup truck or even company car is involved in a crash. The question of whether the driver was “on the clock” immediately comes into play. If a driver was returning from a sales appointment, leaving work, or running an errand that involved both work and non-work-related stops, complex questions can arise regarding whether company-purchased insurance coverage applies.

Car and truck accident claims begin at the same spot – negligence, fault, cause and coverage – but truck accident claims involve numerous additional federal regulations and state laws. When hiring a personal injury lawyer following a truck accident, make sure he or she has the necessary knowledge to help you obtain the best possible result.


Wednesday, September 3, 2014

Recovering Damages for a Dog Bite: Do I Have a Case?

Recovering Damages for a Dog Bite: Do I have a case?

While dogs are fondly referred to as “man’s best friend”, not all are friendly and each year thousands of people across the United States are injured by dog bites. If you’ve suffered an injury as a result of a dog attack, you’ve probably wondered whether you should bring a lawsuit to collect damages. The success of your case likely depends on the following:

State Statutes
Each state has its own set of laws when it comes to dog owner liability. Some are very strict, holding the owner liable for all damages resulting from a bite or attack by the dog on another person, domestic animal or property. In others, you may only be able to bring suit if the owner knew or should have known that the dog was a danger or "had vicious propensities."

Location of the Attack
If you were attacked in a public place or on your own property, you may have a better chance of collecting damages than if you were on the owner’s property where they could reasonably argue that you were trespassing.

Was the Dog Provoked?
If the owner can prove that you provoked the dog prior to the attack, you may not be able to collect for damages. For instance, if you threatened the dog’s owner by yelling or engaging in a physical assault, or if you went to take a bone that the dog was carrying, you may not have a basis for your claim because the dog’s action could be expected as a way to protect the owner or his “property.”

Evidence
As with any injury, it’s absolutely essential that you have evidence of the bodily harm. Were there witnesses who saw the attack? Did you file a police report? Take photos and keep a copy of the medical report? All of this evidence is necessary to prove liability and help to prove why you are entitled to receive compensation.

In many cases, a dog owner’s homeowners insurance will cover some or all of the damages. In instances where insurance is not available and the dog’s owner does not have the means to pay for the damages, there may be a third party such as the landlord who allowed a dangerous animal to reside on their property who can be held liable. A qualified personal injury attorney can help you better understand local statutes, your rights as an injured party and protect your best interests to make sure you receive just compensation for your injury and suffering.


Wednesday, August 27, 2014

Underinsured and At-Fault

Almost all states require some form of auto coverage insurance. This may include Bodily Injury Coverage, Personal Injury Protection, Property Damage Liability, Collision Coverage, and even Uninsured Motor Coverage. Depending on the state, the coverage level will vary greatly. For instance, you may only be required by to carry $25,000 in bodily injury coverage. While a relative residing across the country may be required to carry $50,000 in bodily injury coverage.  And while mandated requirements are often used as guides by drivers when selecting their policies, these coverage levels are not always enough to cover the cost of an accident. So what happens if you are underinsured and at fault in an accident?

The course of action will vary greatly depending on whether you are in a state with no-fault laws or traditional tort insurance laws. In states with no-fault laws, your insurance company will pay your damages while the other party’s insurance company will be responsible for theirs so if you choose to carry low levels of coverage the amount you receive after an accident will be capped by the coverage you selected. In states where traditional tort insurance laws exist, fault is established and the party at fault is responsible for the damages. If the driver at fault is underinsured in a traditional tort state, both parties may be in trouble.

Following the accident, your insurance company will seek to settle all claims as soon as possible. Even if you carry the lowest possible coverage, your insurer is responsible for your legal representation. If the opposing party has injuries exceeding your coverage level, and has Underinsured or Uninsured Motor Coverage, he or she may be able to collect the difference from this policy. However, if they don’t have this extra protection net from their own insurer or the damages exceed the policy limits, the injured party may file a lawsuit against you where your personal assets are at risk. 

In selecting an auto insurance policy, you might consider purchasing coverage above the minimum limits to protect your assets and livelihood. While a limit of $25,000 may seem high, the costs of healthcare continue to soar and just a one week stay at a hospital following an accident can easily exceed that amount.

 


Tuesday, May 6, 2014

Can you be sued for hurting someone's feelings?

Can you be sued for hurting someone's feelings?

In a civilized society, citizens are expected to conduct themselves with at least a small amount of regard for the feelings of others.  To prevent behavior that can cause severe anguish, the law has created a tort called “intentional infliction of emotional distress”. An intentional infliction of emotional distress claim allows those who are emotionally injured by another person to recover for emotional injuries as well as any physical injuries that result from distress induced by the bad behavior, such as migraines, ulcers or a miscarriage. 

In order to prove intentional infliction of emotional distress, four elements must be shown. First, the defendant must act either intentionally or recklessly. The defendant’s conduct must be extreme and outrageous. Third, the plaintiff must have suffered extreme emotional distress.  And lastly, the plaintiff’s conduct must be the cause of that distress. In addition, some states require that the incident that caused the emotional distress must have taken place in public. 

Some examples of behavior that may constitute intentional infliction of emotional distress include a person telling a parent their child has died, while knowing it wasn’t true; a medical professional telling a patient he or she is HIV positive as a joke; or a person threatening to shoot another person if he or she does not meet certain demands. Some behavior that may seem like intentional infliction of emotional distress but probably is not would include a person having an affair with a friend’s spouse; a landlord evicting a dying person who hasn’t paid rent for a few months; or an action that was intended as a harmless prank, such as toilet papering someone’s house. 

When determining whether intentional infliction of emotional distress has occurred, a judge or jury must take into account the emotional state of the victim and whether the plaintiff knew of that emotional state. For example, a person locking another person who is scared of roaches in a closet filled with roaches could be intentional infliction of emotional distress in that instance, while it may not be to a person who isn’t afraid of roaches. 

Intentional infliction of emotional distress can be hard to prove. The hardest element to show is that the defendant’s conduct was so extreme or outrageous to be completely intolerable in a normal society. It is not enough for the defendant to simply have behaved badly or even very badly – the behavior must be atrocious and harmful to one’s mental health. 


Thursday, April 24, 2014

Wrong-Site Surgeries Increase in Number

Wrong-Site Surgeries Increase in Number

Imagine that you’re a patient going in for routine surgery.  Now imagine that you’re one of 40 U.S. patients a week who awakens from anesthesia– only to find that your surgeon has operated on the wrong site.  Say for example, your right leg instead of your left leg. What would you do? Sue your doctor? The hospital? A surprising report from The Joint Commission, which accredits and certifies healthcare organizations in the United States, finds that the problem of wrong-site surgery has worsened, not improved.  More and more medical patients are waking up to find that their doctors made an error in a common surgical procedure. 

According to Kaiser Health News, wrong-site surgeries continue to occur on a regular basis. This comes years after the president of The Joint Commission introduced mandatory rules aimed at preventing surgeons from performing procedures on the wrong site.  The study found that wrong-site surgery occurs an estimated 40 times a week in U.S. hospitals and clinics. However, according to the commission, which encouraged surgeons to submit cases of error, only 93 cases were reported in 2010.   

According to the commission, reporting of such incidents is voluntary and confidential.   This policy is in place to encourage doctors and hospitals to come forward .  Aside from the commission, the laws in about half the states, do not require reporting.   

Despite campaigns to encourage surgeons to participate in a timeout at the start of every surgery, where each surgical team takes a moment to verify the procedure to be performed, the article posits that the mistakes may be explained by the increased time pressures surgeons face. Because reporting is not required by many states, the number of estimated wrong-site surgeries could be a gross underestimation. 

Interestingly, a smaller percentage of wrong-site procedures are litigated in medical malpractice suits than one might think.  Settlements in these cases are substantially lower than those where the wrong-site patient seeks representation. 

According to a 2010 study, which reviewed 132 wrong-site cases, about one-third of procedures resulted in death or serious injury.   Despite these horrific outcomes, the average compensation to victims was approximately $80,000 in cases that resulted in a lawsuit and $47,000 in cases settled without legal action.  As incidents of wrong-site surgery continue to increase, patients and their advocates should continue to press for more accountability from their hospitals and their doctors. 


Wednesday, April 2, 2014

Defensive Medicine

Defensive Medicine: Many Doctors “Over-Treat” Patients Due to Fear of Medical Malpractice Claims

The skyrocketing cost of medical malpractice insurance premiums has changed the way many physicians practice medicine, prompting some to refuse certain patients with complex medical problems or to order unnecessary tests on other patients. Such “defensive medicine” can involve unwarranted lab tests or x-rays or even more invasive procedures to help ensure “certainty” regarding a diagnosis. Even more troubling for the most vulnerable patients, defensive medicine can result in a surgeon’s refusal to perform a complex operation on a sick patient for fear of a negative outcome and eventual malpractice lawsuit.

A recent study published in the Archives of Internal Medicine revealed that many patients receive “too much” medical care and treatment. The study found that 42 percent of American primary care physicians believe that patients receive more aggressive medical care than is necessary. The study also revealed that many doctors feel they must provide “excessive care” to patients, due in large part, to concerns about being the subject of medical malpractice claims.

The study involved 627 physicians, most of whom had practiced medicine for nearly 25 years. Of the doctors surveyed, just 6 percent expressed concern that patients were receiving too little care. Most doctors reason that they could risk medical malpractice lawsuits if they fail to take every conceivable measure to cure or prevent an illness. They admitted over-treating and over-testing, in order to attain clinical performance standards, despite the small amount of time they have to actually consult with each patient.

The vast majority of physicians surveyed – 83 percent – believe they could be sued if they opted not to order every test that is indicated for a particular situation. On the other hand, just over 1 in 5 doctors believe they could be sued for ordering an unnecessary test.

Nearly half of the survey respondents reported that nurse practitioners and physician assistants provided more aggressive treatment than primary care doctors, and 61 percent indicated that subspecialists also provide more aggressive treatment. Experts believe that defensive medicine could be mitigated if doctors more effectively communicated with their patients about their illness and the pros and cons of various tests.


Thursday, March 27, 2014

Confidential Settlements

Confidential Settlements

The vast majority of significant personal injury settlement offers come with a catch – the defendant wants a confidentiality clause included in the settlement agreement, barring the plaintiff and his or her attorneys from publicly discussing the facts of the case or terms of the settlement.In exchange for keeping their “mouths shut”, plaintiffs often benefit by obtaining higher compensation.  In many circumstances, the plaintiffs also have a preference for maintaining their own privacy.

Why do the defendants’ attorneys routinely insist on confidentiality clauses in their settlement agreements? Typically, defendants – and their attorneys – want to prevent evidence, such as witnesses or documents, from being accessible to future plaintiffs. In the grand scheme of things, this makes the defendant less accountable for its conduct.

Arguably, our legal system and the overall population would benefit from an outright rejection of confidential settlement agreements. Yet, most plaintiffs’ lawyers quickly capitulate; a settlement in hand is a sure thing, prevents future expenses necessary to bring a case to trial, and avoids the uncertainty regarding how much a jury might award in damages. Plaintiffs typically agree to maintain secrecy, as well. Seriously injured victims and their family members may be struggling financially and emotionally, and have a strong desire to put the matter behind them. It is understandable that they focus on their own needs and recovery, rather than how it may impact future plaintiffs’ or the public’s access to information and evidence.

Some attorneys and ethicists believe that lawyers’ rules of professional conduct provide them with sufficient grounds to reject secrecy clauses. Most states’ ethical rules favor enabling the public to have a realistic understanding of which attorneys have expertise in cases involving certain circumstances or against particular defendants.

However, those same rules of professional conduct also require attorneys to act in the best interests of the client – which often means agreeing to a speedy or generous settlement offer. Some legal ethicists suggest addressing confidentiality upfront, at the beginning of settlement negotiations. However, this approach may reduce the amount of a future settlement offer, or cause the defendant to take settlement off the table entirely. This risk, too, must be discussed with and agreed to by the client.

Furthermore, in this type of situation, the risk is borne by the plaintiff but the benefits are only realized by the general public, as mentioned above, or the lawyer who later enjoys “bragging rights” when he would otherwise be muzzled. It can be a tough sell, and one fraught with its own ethical implications. In the end, only the client can decide what is best for his or her situation. Some will agree to the risk “for the greater good” while others must do what is best for them and their families.
 


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  The New York City (NYC) personal injury law firm, Friedman, Levy, Goldfarb & Green P.C., represents clients in Manhattan and New York County, Brooklyn and Kings County, the Bronx, Queens, Staten Island, as well as serving Nassau County and Long Island, Suffolk County, Rockland County, Westchester County, Harlem and throughout the State of New York.



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