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New York Personal Injury Law Blog

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.
 


Thursday, March 13, 2014

What Not to Do After a Car Accident

What Not to Do After a Car Accident

There are many potential missteps after you have been involved in an auto accident. In the minutes, hours and days following a car wreck, it can be difficult to think clearly or to take note of important factors involving liability and compensation. Even if your injuries are minor and your vehicle is not damaged, you should follow these guidelines to protect yourself and preserve your right to compensation for your injuries, vehicle damage or lost income. Often times, your damages are more serious than they appear at first glance.

Don’t Apologize
Even if you think you are clearly at fault for the accident, don’t accept blame or apologize to anyone. The police and insurance adjusters will investigate the collision and determine where the fault lies. If it lies with you, you will most certainly be notified. But affirming your guilt before all the facts are discovered can only serve to undermine your personal injury claim or a potential defense if you are on the receiving end of a lawsuit.

Don’t Compare Notes
Avoid rehashing the accident with the other involved parties. You do not want to inadvertently admit fault for the accident, or make other statements that undermine a future legal claim. Additionally, swapping stories can cause confusion in your own mind regarding what happened immediately before and during the collision. Of course, you should give your statement to the police, if applicable. But further communications regarding the accident, your injuries, damage to your vehicle, or associated expenses for medical treatment or car repairs should be limited to your attorney.

Don’t Get into a Dispute with Other Drivers or Passengers
Tempers can sometimes flare. People may be hurt, property may be damaged. Nobody is getting to their destination, and everyone may be concerned regarding various obligations and future travel arrangements. If other parties become upset, agitated or violent, you should simply walk away. By refusing to engage in emotional dialogue – or worse, a physical confrontation – you avoid turning a routine fender bender into a major altercation which can result in its own legal ramifications.

Don’t Call the Insurance Company
If you think there is any reason why the insurance company may dispute your claim, you should speak with an attorney first. The attorney can advise you regarding what to say – and what not to say – to the insurance adjuster, or can communicate with the adjuster on your behalf. Insurance companies train their adjusters to ask specific questions designed to make your case look as weak as possible. Your insurance company should help you when you’ve been involved in an accident – that’s part of what you pay for – but ultimately the bottom line is of primary importance. The insurance business is far more profitable when the insurance companies do not have to pay out claims.
 


Saturday, March 1, 2014

Have You Been Injured on the Job?

Have You Been Injured on the Job? What if Your Employer Has No Workers’ Compensation Insurance?

In most states, employers are required to carry workers’ compensation insurance to cover workplace injuries sustained by their employees. Workers’ compensation insurance is a “no fault” system which allows every employee to receive benefits for a job-related injury, regardless of who caused the accident or illness, though intentional, self-inflicted injuries may be excluded from workers' compensation benefits. The system balances the needs of workers, who are entitled to receive prompt medical treatment for their injuries, with the needs of employers who can conduct their business operations free from the fear of being sued by an injured employee. Workers’ compensation programs can provide claimants with medical benefits and, provided certain requirements are met, temporary compensation payments until the employee is able to return to work. In certain situations, claimants may also receive permanent benefits such as job retraining or supportive medical care.

But what happens if you get hurt and your employer doesn’t have the required workers’ compensation insurance?

Regardless of whether your employer participates in a workers’ compensation insurance program, it is important that you seek medical attention immediately, to ensure you receive proper treatment and to document your injuries. Typically, an injured worker's only legal option for recovering compensation from the employer is to file a workers’ compensation claim. There are a few exceptions, however, such as when an employer intentionally causes the workplace injury, or when an employer fails to carry the required workers’ compensation insurance.

If you are injured and your employer does not participate in a workers’ compensation insurance program, there may be coverage available to you through a government fund for injured workers whose employers do not have the mandated workers’ compensation insurance. If you find yourself in this situation, check with your state’s Labor Department to find out what programs may be available in your area, and to report your employer’s non-compliance with the workers’ compensation laws.

Injured employees whose employers do not carry valid workers’ compensation coverage also have the option of filing a civil lawsuit against the uninsured employer to recover compensation for their damages. Through the civil court system, uninsured employers may have to pay substantially more in damages to cover the injured employee’s losses including medical bills, future lost earnings, and pain and suffering. In most jurisdictions, workers' compensation insurance programs limit the injured employee’s recovery by disallowing claims for “pain and suffering” or punitive damages which would be allowed in a civil lawsuit. Civil cases also differ from claims made through no-fault workers’ compensation programs in that certain legal principles may apply, such as “contributory negligence,” which can limit an employee’s recovery based on percentage of fault.

In most jurisdictions, employers who fail to carry workers’ compensation insurance are not only liable to their injured workers, but also face penalties for violating the law.


Wednesday, February 26, 2014

Do You Have a Medical Malpractice Case?

Your Doctor Made a Mistake – But Do You Have a Medical Malpractice Case?

The term “medical malpractice,” sometimes called medical negligence, refers to a situation in which a health care provider fails to act in accordance with standards of accepted medical practice, causing injury or death to the patient. A physician, nurse or other health care professional is considered negligent if his or her conduct is below the “standard of care,” i.e. the degree of care and skill that the typical health care professional would provide to a patient seeking treatment for similar symptoms or under similar circumstances.

It’s not just doctors and nurses who can be sued for medical malpractice. Any licensed health care provider who is in a position of trust can be held accountable for diagnosis or treatment that causes injury or death. These can include lab technicians, radiology technicians, specialists who interpret your test results, ambulance companies and their employees, and facilities such as hospitals, nursing homes and pharmacies.

There are many types of mistakes which may be considered “medical malpractice,” depending on the overall circumstances of your injury or illness and the treatment you received. Common medical malpractice claims include:

  • Incorrect or missed diagnosis
  • Failure to conduct appropriate diagnostic tests
  • Failure to properly treat your medical condition
  • Failure to properly administer medications
  • Failure to properly perform a surgical procedure
  • Failure to manage a pregnancy or safely deliver a baby
  • Failure to warn you of the risks of treatment, which would enable you to give your fully informed consent to the treatment
  • Failure to anticipate a problem which should have been anticipated in accordance with the standard of care

Even if your medical treatment results in a negative outcome, the doctor’s or nurse’s conduct may not rise to the level of malpractice or negligence. Furthermore, even if the treatment you received clearly fell below the standard of care and is deemed “negligent,” you may run into difficulties bringing your claim due to the high cost of litigating a medical malpractice case. Because medical malpractice cases often hinge on the definition of the “standard of care” required for that particular situation, experts must be consulted and retained to prepare reports, give depositions and testify in court.

You should consult with an experienced medical malpractice attorney who can help you determine whether the health care provider’s negligence was truly the result of malpractice and whether your case is worth pursuing. Your attorney will review your medical records and will likely have to retain a medical expert who can review your records to evaluate the merits of your claim. Due to the significant expense involved in performing such reviews and obtaining assistance of experts for a medical malpractice claim, the vast majority of meritorious cases settle before the case goes to trial.
 


Friday, February 14, 2014

How are Damages Calculated in Personal Injury Cases?

How are Damages Calculated in Personal Injury Cases?

If you have been injured as a result of someone else’s negligent conduct, you may be considering a lawsuit to recover compensation. The compensation awarded to you, called “damages,” falls within two categories: compensatory damages and punitive damages. Compensatory damages are designed to compensate the plaintiff for actual losses sustained, and are further divided into “special damages” and “general damages.”

Special damages are those fixed amounts relating to your actual losses, such as medical expenses, lost income or costs to repair your property. General damages, on the other hand, include non-monetary losses, such as “pain and suffering”, your decreased ability to perform certain functions, or the loss of a loved one. Punitive damages, sometimes called exemplary damages, are designed to punish a defendant or deter similar conduct in the future.

The damages to which you are entitled are typically calculated based on the severity of your injuries, the underlying circumstances of the incident in question, and whether the case settles or proceeds to a trial. The following factors are typically considered:

  • Medical treatment expenses
  • Estimated costs of future medical treatment or therapy
  • Past lost wages or income
  • Future lost wages or income
  • Costs to repair or replace damaged property
  • Your out-of-pocket expenses, such as insurance deductibles or copayments
  • Rental car expenses
  • Funeral expenses, in wrongful death cases
  • Emotional distress
  • Pain and suffering
  • Punitive damages, if the underlying act was particularly egregious or intentional

In the American legal system, damages are intended to compensate the plaintiff sufficiently to make him or her “whole,” i.e. restore the plaintiff to the same position he or she was in prior to the accident or injury. If you mediate your dispute or otherwise settle it out of court, the parties and lawyers will negotiate each item and come to an agreement. If your case is tried in a court, the judge or jury will calculate how much you are entitled to receive, based on the evidence presented at trial.


Wednesday, February 5, 2014

5 Tire Safety Hazards

5 Tire Safety Hazards

Proper maintenance of your vehicle is an important step toward ensuring your safety on the road. Tire failures at high speeds can result in vehicle rollovers, serious injuries and death. Below are five safety hazards to watch out for; the presence of any of these conditions can indicate that your tires should be repaired or replaced – before it is too late.

Tires Not Inflated to the Proper Air Pressure: Incorrect tire pressure compromises both the comfort and safety of your ride. Improper pressure affects braking, cornering, stability, mileage and tire life. Furthermore, tires that are not inflated to the proper pressure face a higher risk of catastrophic failure resulting in a serious accident. Low tire pressure causes increased friction and can overheat the tire, causing tread separation. The recommended tire pressure is always less than the maximum allowable pressure stated on the tire itself. Your vehicle’s recommended tire pressure can be found in the owner’s manual, or the label on the car’s driver’s side door, glove compartment or gas tank door.

Worn Tread: If the tread on your tires has worn down, you are at an increased risk of a blowout or hydroplaning accident.  Additionally, worn tread may indicate a more serious problem, such as improper balance, suspension or alignment. Finally, tires with worn tread are more likely to be underinflated, affecting steering, braking and mileage, and causing further safety risks due to improper air pressure.

Tire Repeatedly Loses Air Pressure: If you often notice that one of your tires seems low, despite the fact that you have inflated the tires to the proper pressure, this could indicate a leak. There may be a small puncture in the tire’s tread, perhaps caused by driving over a nail, or it may be caused by a poor seal between the tire and rim or a damaged valve. These problems can often be repaired, rather than having to replace the tire. Ignoring the problem can lead to a sudden drop in tire pressure while on the road, which can result in a blowout or loss of control.

Bulge in the Sidewall: Any budge, regardless of size, indicates that the tire’s integrity has been compromised and the tire should be replaced immediately. This could be due to an impact with a curb or pothole. When such a bulge occurs, the steel belts inside the tire have weakened and can no longer ensure safe operation of the vehicle. Care should also be taken to ensure that the impact that caused the tire bulge did not also cause damage to the wheel itself.

Old Tires/Vehicles in Storage: If your tires are old or the vehicle has been immobile for a lengthy period of time, the tires may be affected by a form of “dry rot.” Regardless of how climate-controlled the storage environment is, tires that sit for extended periods will weaken over time until they are unsafe for travel. Similarly, old tires will show signs of degradation. You can identify this problem by examining the tire for small cracks in the tire’s sidewall. If any cracks are present, the tire should be replaced.


Tuesday, January 28, 2014

Pros and Cons of Settling a Case

The Pros and Cons of Settling a Case

If you have been injured by the negligent actions of another, you may be entitled to compensation for your medical expenses, physical and emotional pain and suffering, permanent physical impairment or disfigurement, lost income, decreased earning capacity, property damage, or other economic losses. Deciding whether to settle a personal injury lawsuit without taking the case to trial is a major decision demanding the full consideration of many factors.

Some plaintiffs wish to settle the matter quickly, while others want to let a judge or jury determine whether damages should be awarded and how much. There are advantages and disadvantages to each option; only you can decide what is best for your specific situation but an attorney can help you put the pros and cons of each option into perspective.

The vast majority of personal injury lawsuits never see a courtroom, evidence that the benefits of early settlement are compelling to a great number of injury victims. Settling a case is often more advantageous to the injured party, rather than taking the case to trial.If you have received a settlement offer from the defendant or the defendant’s insurance company, you should review the offer with your attorney as soon as possible.

Settlement agreements have many advantages. Settling your case is much quicker than taking your case to trial, which can take up to a year – or more, depending on the jurisdiction and the complexity of the case. You can receive the money, or at least a portion of it, immediately so you can pay off your medical bills and repair property damage. Your attorneys’ fees and other legal costs are greatly reduced by avoiding protracted discovery and the trial itself. Additionally, the emotional benefits are undeniable. You have the peace of mind of knowing exactly how much money you will receive, and you can get emotional closure right away so you can move on. Finally, settlement agreements can remain confidential, whereas court proceedings are public records.

On the other hand, there are tradeoffs. In exchange for the benefits stated above, you will typically have to accept a smaller monetary award than you might get if the case goes before a judge or jury.

Taking your case to trial, letting the court decide the outcome, also has its advantages and disadvantages. If you go to trial and win, you may feel a sense of emotional satisfaction having prevailed in the lawsuit. And, as noted above, you may be awarded a much higher amount than what was offered in the settlement negotiations.

However, there is never any guarantee that you will win your case at trial, or that the amount awarded will be more than what you could have settled the case for. The value of any settlement offer or potential court verdict must be weighed against the increased costs of dragging the case out for many more months before a trial can take place. In considering your options, an experienced personal injury lawyer can provide you with a realistic assessment of whether a settlement offer is fair, and the likelihood of winning a greater award at trial.


Wednesday, January 15, 2014

Claiming for Injuries When the Accident Was Partly Your Fault

In order to prevail in a personal injury case, you must be able to prove that your injuries were directly caused by the negligent actions of another. If you can prove that your injuries were at least partly caused by another, you may be able to receive compensation for your medical expenses, physical and emotional pain and suffering, permanent physical impairment or disfigurement, lost income, decreased earning capacity, property damage, or other economic losses.


Read more . . .


Wednesday, January 1, 2014

Injuries in Automobile Accidents

Common Injuries in Automobile Accidents

If you have been involved in an automobile accident, you may be seriously injured and not even realize it. At least, not immediately. Serious injury can occur even in slow or low-impact collisions, and accidents which cause no damage to the vehicle. For example, accident victims can suffer from “whiplash” in collisions involving a sudden change in vehicle speed of just 2.5 miles per hour.    

Motor vehicle collision injuries range from minor cuts and scrapes to catastrophic, life-ending trauma.  Bleeding, broken bones or bruising are obvious indications that a driver or passenger has sustained an injury and needs treatment. However, there are also less-obvious injuries that are much more difficult to diagnose and treat, including myofascial injury (“whiplash”) and mild traumatic brain injury.

“Whiplash” is one of the most common auto accident injuries. The Insurance Institute for Highway Safety recognizes whiplash as “a range of neck injuries related to sudden distortions of the neck that commonly occur in rear-end crashes.” Specifically, this term may refer to a cervical strain, cervical sprain or hyperextension injury. Any sudden impact, even at very low speeds, can cause a whiplash injury to the ligaments, muscles and vertebrae in the neck or back, although the damage may not become apparent for several hours or days. A whiplash injury can be mild, such as a muscle strain, or more severe, including nerve or disc damage, ruptured ligaments or vertebrae fractures.

Treatments for whiplash can include ice, anti-inflammatory medications (such as ibuprofen), physical therapy, chiropractic adjustments, muscle relaxants, massage therapy, or immobilization of the neck or back with a cervical collar or brace. In cases involving severe muscle or ligament damage, cervical traction or surgery may be required. Recovery time for a whiplash injury is typically between a few weeks and three months. Untreated whiplash victims can suffer lasting effects, including chronic pain, an increased susceptibility to future neck or back injuries and posture problems.

Mild traumatic brain injury (MTBI) is a high-level concussion, defined by the Brain Injury Association of America as a “physical injury to the brain that causes a disruption of normal functioning.” MTBI involves a loss of consciousness or loss of memory before or after the accident. There are a wide range of MTBI injuries, from a temporary disruption of normal brain activity to permanent brain changes that affect how a person functions physically, mentally, emotionally and behaviorally. Early MTBI symptoms can include mild symptoms, such as headache, dizziness or confusion. In later stages, MTBI sufferers can face difficulty concentrating, irritability, anxiety, depression, fatigue or a quick temper. These later stage symptoms can be difficult to attribute to the auto accident because they only become apparent long after the injury was sustained.

In the immediate aftermath of an accident, the body’s natural physiological responses often mask the soft-tissue injuries that can occur. But once your body has had a chance to relax, you may experience a number of symptoms related to the accident, including neck and back pain, limited range of motion, muscle spasms, headaches, dizziness, difficulty maintaining balance or equilibrium, shooting pains, muscle soreness, numbness or tingling in the extremities, emotional and behavioral disturbances, or memory and concentration difficulties.


Thursday, December 12, 2013

Should I Sue for My Injuries?

Whether you’ve been injured as result of a car accident, fall at the local market or a bite by a neighbor’s pit bull, you may be asking yourself, “Should I Sue?” Most people think they should, and that a sizable settlement payment will be forthcoming.

In our legal system, a negligent party is expected to pay for damages you incurred because of the accident or injury, such as medical costs, lost income, property damage, and pain and suffering. In certain cases, punitive damages may be awarded if a person’s conduct was malicious or intentional. Nevertheless, just because you have been injured does not necessarily mean that you should file a lawsuit, a decision which rests on multiple factors.


Read more . . .


Friday, December 6, 2013

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.


Read more . . .


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