Personal Injury Lawsuits

Parents and other caregivers understandably become invested in the well-being of the children in their care. When one of those children is harmed by a doctor who was supposed to make them well, the regret can feel overwhelming.

The New York City medical malpractice attorneys at Friedman, Levy, Goldfarb & Green often answer questions from parents who suspect pediatric malpractice as the cause of their child’s condition. Here are some of most common concerns.

How common is pediatric malpractice?

Compared to other areas of medical practice, pediatricians are less likely to be accused of malpractice. Despite this, a study by a major national malpractice carrier found that their malpractice payments are among the largest. This is a testament to the long-term effects that a breach in medical care can have on a child.

What constitutes pediatric malpractice?

Like other types of medical malpractice, pediatric malpractice occurs when a pediatrician or other health care provider acts negligently this means the treatment did not meet the standard of care that similarly-situated doctors would have provided – and that the negligence caused harm.

There are a number of ways a medical professional can commit malpractice. In pediatrics, the most common ways are:

• Failure to diagnose a condition – meningitis tops the list of most common missed diagnoses, with appendicitis coming in second
• Medication errors, whether caused by the wrong dose, mistakes in administration, problems in ordering, or something else

How is malpractice proved?

The practice of medicine is outside the scope of knowledge of the average juror. To bring a lawsuit, a plaintiff needs to provide expert testimony. An absolute necessity is an expert witness to explain what a reasonable doctor would have done in the same situation and how the defendant’s actions fell short. Other experts may be offered as well, including medical experts to explain the long-term impact of the injury, financial experts to illustrate the costs associated with care, or other experts that may be helpful for the specifics of the case.

How to file a pediatric malpractice case in New York

There are some requirements to meet in order to file a malpractice lawsuit in New York. As mentioned, a plaintiff must have an expert witness ready to state how the doctor’s treatment was negligent. In addition, the case must be filed within the statute of limitations period.

In general, the NY statute of limitations for malpractice is 2.5 years (30 months). However, it can be extended in certain cases including when the victim is a minor. Guessing when the statute of limitations runs can be disastrous so it is important to speak with an experienced NYC malpractice attorney.

If you suspect your child has been harmed by a doctor’s negligence, it is important to speak with a pediatric malpractice attorney who can help investigate the claim to determine whether it is viable. He or she will also formulate a legal strategy and oversee the litigation process.

The attorneys at Friedman, Levy, Goldfarb & Green know the process of malpractice claims inside and out and we handle them with seriousness and compassion. If your child has been injured by a medical professional, call one of our attorneys today. From our Manhattan office, we can take care of your legal needs, whether you are in the Bronx, Brooklyn, or elsewhere in NYC or Long Island.

Additional NY pediatric malpractice resources:

1. NCBI, Pediatrics: Malpractice Risk Among US Pediatricians, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3666113/
2. New York State Senate, Civil Practice Laws & Rules, Section 214-Ahttps://www.nysenate.gov/legislation/laws/CVP/214-A, https://www.nysenate.gov/legislation/laws/CVP/214-A

In the wake of a loved one’s death, grieving family members are left to pick up the pieces. If the death stems from the negligence of another party, they may be wondering whether they should file a wrongful death lawsuit.

What Is Wrongful Death?

“Wrongful death” is a specific type of case in which the death or injury eventually leading to the death is caused by negligent actions of another. In other words, the death should not have happened, but was caused by an accident, disregard of laws and regulations, or error.

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Multiple types of accidents can be wrongful death. A car accident in which the other driver or faulty manufacturing is at fault may be a candidate for wrongful death. A medical error can result in wrongful death. The failure of a construction company to provide adequate safety equipment for their crew, if a crew member is injured in a way that leads to death, can be wrongful death. These are just some representative examples, though; the best way to determine if a case constitutes wrongful death is to consult an attorney specializing in wrongful death cases.

Factors in Determining a Wrongful Death Lawsuit Claim

It’s natural for people left behind by a loved one’s death to wonder what a wrongful death suit may be worth. Many families struggle financially in the wake of a loved one’s death, especially if the deceased has been the primary provider for the family. These struggles are an additional burden those dealing with a great emotional loss must face.

Because of the multiple causes and circumstances in wrongful death cases, the amount courts award in wrongful death cases varies substantially. It can be helpful to know, however, what damages can be compensated under New York wrongful death law.

Wrongful Death Compensation Amounts in NY

In New York, surviving members of a family can be compensated for the loss of financial support the deceased contributed. Typically, a court will factor in the deceased’s earnings, age, life expectancy, and education, among other elements, in determining the award.

However, potential wrongful death damages are far from limited to this. Child may be able to receive damages due to the loss of a parent’s guidance, instruction, and nurture. Medical expenses related to the injury that caused the wrongful death may be compensated. Funeral costs may be, as well.

There are also emotional considerations in any wrongful death suit. If the loved one experienced pain and suffering, or was aware of their impending death, those experiences could be grounds for damages. So can any loss of enjoyment of life the loved one suffered prior to death.

Some states allow suits to recover damages for pain and suffering experienced by survivors. New York state law, however, does not allow this.

Finally, New York has a contributory negligence law. “Contributory negligence” means that the deceased may have contributed in some way to the accident or condition that caused death. Awards may be reduced by the percentage the court decides contributory negligence was a factor.

Talk with an experienced personal injury attorney for a free consultation!

Experienced Wrongful Death Attorneys in New York

If your loved one died as a result of another party’s negligence, the best course of action to consult an experienced wrongful death lawyer in NYC at Friedman, Levy, Goldfarb & Green. Initial consultations are always free.  Please call us today to discuss your case.

Additional Resources:

1. Insurance Journal, Family of Slain University of Virginia Student Refiles $30M Wrongful Death Lawsuit, https://www.insurancejournal.com/news/east/2018/12/05/511073.htm
2. Annuity.org, Wrongful Death Claims and Settlements, https://www.annuity.org/structured-settlements/wrongful-death-claims/

When you are injured in an accident due to the negligent, reckless or willful conduct of another, you may be entitled to receive a settlement. Often times, these settlements are paid out by insurance companies. Unfortunately, if you are a Medicare beneficiary, you may have to forfeit some or all of the settlement you receive.

Medicare is federally provided health insurance. Those that are 65 years or older and some younger people with qualifying conditions have the option to be covered by this type of insurance. If you are injured in an accident, Medicare may cover some of the costs of your medical treatment. But, pursuant to the Medicare Secondary Payer laws, Medicare does not have to pay for medical expenses if an enrollee is receiving a settlement or other award from an insurance company as a result of their injuries. Medicare can ask to be reimbursed for the money it paid out for medical expenses.

Generally, if you are a Medicaid enrollee, are injured in an accident and make a claim against a defendant that has liability insurance, you must report the case to Medicare. Once a case is reported to Medicare and they determine that they may be able to recover any of the money they laid out for medical bills, they will send you a Rights and Responsibilities letter outlining the process. You will then usually receive a Conditional Payment Letter within approximately two months. This letter will detail all of the claims they paid and expect to be reimbursed for once you receive a settlement. It is important to note that the amount listed on the letter is usually not the final amount. These letters are updated and reissued every 90 days and all of the claims on the letter may not be related to the accident. Therefore, you must review the claims to determine which need to be deleted. Once you do this, you can contact Medicare using the instructions included in the letter to have the amount updated. Once you receive a settlement, you must, again, let Medicare know. They will then issue a Demand Letter with a final amount due and the date by which payment must be submitted.

If you were injured while receiving Medicare benefits and have filed a lawsuit, you might find yourself faced with a Conditional Payment Letter. Be sure to show this letter to your attorney as soon as possible.

Each year, over 70 million tickets to Major League Baseball games are sold in cities across the country. Fans flock to these games for the live action – the opportunity to see their favorite players in the flesh, enjoy a few hot dogs and belt out the fan favorite “Take Me Out to the Ballgame” with thousands of other die-hards during the seventh inning stretch. Unfortunately, each year some of this “live action” causes injuries to spectators when a foul ball or flying bat (and occasionally, a player trying to get that heroic out) finds its way into the crowded stands. If you’ve witnessed one of these incidents or have been a victim of one, you’ve likely wondered what happens next? Will the team pay for medical care? Does the injured party have a right to sue?

Under “the baseball rule” owners must demonstrate a high degree of care for visitors to their stadiums, taking measures to protect spectators in high-risk areas (such as behind home plate) and areas where spectators can expect to be protected. Under the rule, spectators in the unprotected areas of the stadium should assume the inherent risks of the game that include balls travelling at very high speeds and pieces of equipment that might be propelled into the seating areas.

On the back of nearly every ticket for a professional sporting event, you will find a warning of these inherent risks, and a statement that explains that the team and stadium is not responsible for any injuries resulting from the game. This ticket is seen as a form of an adhesion contract which is a standardized agreement that a party is bound to once they purchase the ticket (even if the ticketholder was unaware of the terms and failed to read them prior to attendance).

In deciding civil suits pertaining to injuries at baseball games and other professional sporting events, the courts have often looked to the baseball rule in making their judgments. It is, however, important to note that not all states adhere to the rule that limits the liability of owners assuming the standard of care to visitors is met.

In one recent case Rountree v. Boise Baseball, LLC, et al., the Idaho Supreme Court balked at the century old baseball rule and ruled that a gentleman who had lost his eye when he was hit with a foul ball at a game of a minor league affiliate of the Chicago Cubs could seek damages from the baseball organization.

If you’ve been injured at a major sporting event, you may be entitled to seek compensation for your pain and suffering. It’s important that you contact an experienced personal injury attorney who can help you understand the laws in your state, all applicable court rulings and work with you to determine the best strategy for recovery.

If you have been injured in an accident, and another party is to blame, you may be able to obtain monetary damages from that person or business to compensate you for medical expenses, loss of income and pain and suffering as a result of the accident.

There are a variety of types of damages allowed in personal injury cases. Those damages can be divided into several categories. First, there are compensatory damages and punitive damages. There are also two types of compensatory damages: economic and non-economic.

Compensatory damages are damages that are intended to compensate a person for a loss or problem relating to a personal injury, including monetary losses, pain and suffering and physical impairment. Punitive damages are intended to punish the negligent party for its wrongdoing, and aren’t specifically related to a loss the plaintiff suffered.

For example, if a company decided to dump toxic waste into a creek instead of disposing of it safely, and as a result a woman living next to the creek developed cancer, her compensatory damages may include amounts for her medical expenses, her lost wages, and her pain and suffering. In addition to these damages, the jury may also decide to award punitive damages, which are strictly intended to punish the company for its wrongdoing. Punitive damages are somewhat rare – in most cases, plaintiffs only receive compensatory damages.

Compensatory damages can be further divided into economic damages and non-economic damages. Economic damages are those damages that result in an identifiable economic loss. For example, economic damages include medical expenses, lost wages, the cost of hiring a helper or nurse, and the cost of special transportation or medical equipment that’s needed as a result of the accident.

Non-economic damages are damages for harm relating to the injury sustained that are difficult to quantify using a specific dollar amount. Instead, non-economic damages are awarded to a person who has suffered a diminished quality of life as a result of the accident. Some examples of non-economic damages include emotional distress, pain and suffering, embarrassment or humiliation, loss of enjoyment of life, loss of consortium (sexual relations) and scarring or disfigurement. Although non-economic losses can be difficult to quantify, they are an important component of a personal injury case.

We have a new client who was out for a walk when he was hit by a car, suffering multiple fractures to his legs, wrist and hand. From the address in Brooklyn of the offending driver on the police report, and the fact that he was driving a 14 year old Chevrolet, I had a pretty good hunch that he had a minimal $25,000 insurance policy. I asked my new client if he had a car and he said he did. I asked him about his insurance coverage and he said he had the most wonderful insurance brokers who have been handling his family’s business for decades and that I should call them and that they would send over the declarations page. He did know that he had a two million dollar umbrella policy, which I knew could not be issued unless he had several hundred thousand dollars in liability coverage. “Thank goodness” I thought, since this poor man would not be limited to the $25,000 of the offending driver’s insurance coverage. Surely his own policy had Supplementary Uninsured/Underinsured Motorist (SUM) coverage matching his own high liability limits, and therefore he could likely collect several hundred thousand dollars as compensation for his terrible injures.

I returned to the office and called his “most wonderful brokers” and they happily took my call and promptly emailed his declarations page to me. I looked at his coverage and I felt like I had been punched in the gut. His “most wonderful brokers” had in fact obtained liability coverage for him of $300,000 with a two million dollar umbrella; ample coverage if he ran someone over and they sued him. They had also gotten him $100,000 extra no-fault coverage to pay his medical bills, and he had full collision and comprehensive. This was not an inexpensive policy written by some no-name insurance company, but rather a fairly expensive policy issued by one of the largest and most well known insurance companies.

What his “most wonderful brokers” did not get for him however was Supplementary Uninsured/Underinsured Motorist (SUM) coverage of more than the minimum $25,000 required by law in New York. As a result, this poor man with two young children who was hit by a 19 year old kid driving a 14 year old car he bought used two weeks earlier for $900, could only collect $25,000 for his injures. I called his brokers and asked them to explain why my client was sold every high premium, high limit coverage available, but was not advised to purchase SUM coverage matching his $300,000 liability limits. I knew why, but I wanted to hear them say it. Instead they said they couldn’t speak to me anymore and hung up.

PLEASE DO NOT LET THIS HAPPEN TO YOU or your loved ones. For those of you who don’t work with auto insurance everyday, Supplementary uninsured/underinsured (SUM) coverage is a type of insurance coverage on every auto policy in New York which provides you with coverage to collect against on your own policy if you are injured by another vehicle that has lower liability coverage than you have on your vehicle. The amount of coverage available to you is automatically set at the required minimum of $25,000, even if your liability coverage is much higher, but you have the option of purchasing additional coverage up to the limits of your own liability coverage.

In the case of my client, he could have purchased up to $300,000 SUM coverage and collected $25,000 from the policy of the person that hit him and $275,000 more from his own SUM coverage IF he had had it. But he didn’t have it and here is why; New York State insurance regulations limit the amount of money an insurance company can charge for SUM coverage. While the premium on $300,000 liability coverage may cost more than a thousand dollars, insurance carriers can only charge about $45 for $300,000 SUM coverage. Because the amount the insurance company can charge is so small, the insurance companies, and their brokers, would actually prefer you not buy the SUM coverage because if you make a claim against it, it throws off the premium collected to claims paid out ratio (“claims loss ratio”) used to determine broker bonus compensation and insurance company profits. Making a claim against your own SUM coverage also does not effect your own rates, because there is no finding of fault involved.

New York State Courts have held that a broker is NOT required to advise you to buy extra SUM coverage, and that they have no liability for failing to obtain extra SUM coverage for you unless you specifically request that coverage. The Courts have held that statements such as “give me the best insurance” or “give me full coverage” or “give me high limits” is not a specific request for SUM coverage. You must say “make my SUM coverage limits match my liability coverage limits” or “give me $300,000 (or more if your liability coverage is higher) SUM coverage” for the broker to be required to get it for you.

I want each one of you to take out the declarations page of your car insurance and check to see what your SUM coverage is. If it does not match your liability limits, your broker or insurance company has done you a tremendous disservice. Call them up and ask them why they did not advise you to get SUM coverage matching your liability coverage, and anything they say other than “because I don’t make any money from it” is a complete and utter lie. Tell them to they are fired for putting you and your family at risk, and find a new broker or carrier who has your best interests at heart. For those of you who do not know me, I do not sell insurance. I am just the personal injury lawyer who has to break the bad news to you after it’s too late to fix it.

Please share this with everyone you know and help them help themselves.

Each year, thousands of Americans take to the roads on bicycles. This mode of transportation is touted as being more cost-effective and more environmentally friendly than motor vehicles but when it comes to safety, cycling can come with a much greater risk. According to the National Highway Traffic Safety Administration, 39,000 individuals were injured in motor vehicle crashes in 2012. That same year, 724 cyclists lost their lives following accidents on the roads.

In addition to the dangers of moving vehicles, cyclists often suffer injury from being “doored”; this occurs when a driver, or passenger, of a stopped vehicle, suddenly opens the door into a cyclist’s path of travel. Injury can also occur from street defects, such as large pot holes or uneven manhole covers that can cause the cyclist to lose control. If you’ve suffered an injury while riding your bike, it’s important that you consult a personal injury attorney who has experience representing cyclists. Unlike other accidents, cycling accidents have a number of unique considerations; these include:

Insurance Coverage May Be Different for Cycling Accidents
Many attorneys have litigated car accident cases and may assume that the insurance process works the same way for cycling incidents, but this is rarely the case. In fact, many states have unique rules regarding the minimum coverage and payouts when a cyclist collides with a motor vehicle, even when the driver of the vehicle isn’t found to have been negligent.

The Laws of the Road Differ for Cyclists
In determining fault, your attorney must understand the roles and duties of all parties involved. When it comes to cycling accidents, few are intimately familiar with the laws that apply to cyclists but such knowledge is imperative for case success.

The Injuries Are Different
Injuries sustained when riding a bike are vastly different from those sustained when driving, or riding in, a car.An attorney who has represented injured cyclists will likely have a much better idea of how much money will be required for immediate and long-term treatment.

As experienced personal injury attorneys, our firm can help you through the complex litigation process following a cycling injury and help you receive the compensation you need to recover, and get back on that bike as soon as possible.

Sometimes, individuals are in need of urgent medical attention. There aren’t always trained professionals around to help. Ordinary citizens who see someone in distress could be afraid to help, for fear that they may be held liable for doing something wrong. Good Samaritan laws originated to avoid that scenario.

As a result, many states have enacted “Good Samaritan” laws that protect people who come to the assistance of others from legal responsibility. Good Samaritan laws in general provide that a person who sees another person in imminent danger, and tries to rescue the injured party, can’t be charged with negligence if the rescue attempt does not go well.

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Good Samaritan laws are intended to encourage people to assist others by removing the fear of legal responsibility for damage done by the rescue attempt. For example, a Good Samaritan may see an overturned car beside the road, and discover the driver is trapped. If the Good Samaritan pulls the trapped driver out of the car, he or she may exacerbate the driver’s injuries. If the driver suffers a spinal injury while being pulled out of the car, he or she cannot later sue the Good Samaritan for negligence under the Good Samaritan law of his or her state.

In general, in order to use the Good Samaritan law as a defense to negligence, there are four elements that must be met. First, any assistance provided must be given as a result of an emergency. Second, the emergency that necessitated the care can’t be caused by the Good Samaritan. Third, the emergency services provided by the Good Samaritan can’t be given in a grossly negligent manner. Finally, if it’s possible to obtain permission from the accident victim, the victim must have given permission for the rescue. This may involve calming the person down before asking if he or she needs assistance. One extra requirement in some states is that the aid rendered must be free – if a doctor renders aid and sends a victim a bill later, the doctor could lose protection under the Good Samaritan law.

Currently, all 50 states plus the District of Columbia have some form of Good Samaritan law. There are many variations on the laws from state to state. Some states have different standards for emergency first responders, and some Good Samaritan laws limit who can provide medical assistance to someone in need. Also, most states providing Good Samaritan protections require that the medical care take place outside a hospital or other medical facility – so if a person goes into distress inside a hospital, and a professional renders aid, that person can be held liable if the aid is rendered negligently.

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Another type of Good Samaritan law actually requires people to call 911 in some situations – usually if you cause an accident and someone is hurt, or if you happen upon an accident. For example, Vermont has a law that says if an individual sees someone who needs help, that person must call 911 or could face prosecution. This type of Good Samaritan law is not as common, but it’s important to be aware of your state’s requirements for mandatory assistance.