New York Personal Injury Law Blog

Monday, June 26, 2017

Why You Need a Personal Injury Attorney

If you have been in injured in an accident, the consequences can long lasting. In addition to pain and suffering and medical expenses, you may be unable to work or provide for yourself and your family.

That's the bad news. The good news is that you may be entitled to meaningful compensation if the accident was the result of the negligent or reckless conduct of another person.

In order to determine if you have grounds for a lawsuit, however, it is crucial to engage the services of an experienced personal injury attorney. While many injury claims are settled through a negotiation with an insurance company, insurers are more concerned about profits than injury victims. These companies typically make settlement offers that are far below the full value of the claim. In addition, the scales are tipped in their favor because insurers has vast financial resources and teams of attorneys, claims adjusters, medical experts and private investigators. For this reason, it is crucial to have an attorney in your corner who will fight for right to just compensation.

In addition, personal injury attorneys often have expertise in assessing claims and can help determine how much you case is really worth. Moreover, injury claims involve a number of complexities such as obtaining evidence that will support you case, interviewing witnesses, reconstructing the accident scene, all of which are aimed at demonstrating the other parties liability.

It is also necessary to submit doctor's reports, medical tests, proof of medical expenses and other relevant information. Because attorneys often collaborate with a network of medical experts and investigators, they can level the playing field against the insurance company. Lastly, most personal injury cases are handled on a contingency basis, which means that you do not pay attorney fees unless you recover settlement money.

If you were injured in an accident that was not your fault, you may be able to recover damages for pain and suffering, lost wages, medical expenses and property damage. A savvy personal injury attorney will also ensure that any settlement considers future physical, emotional and financial harm you may suffer.

Being injured in an accident is a frightening experience, and the road to recovery can be long. Don't go it alone, call a personal injury attorney today.


Monday, June 19, 2017

Common Construction Accidents

Because construction work is inherently dangerous, the risk of injury to workers is greater than in other industries and workplaces. However, construction workers have a right to a safe work environment. While construction injuries are usually covered under workers' compensation laws, it may be possible to pursue a lawsuit based on negligence against site owners, contractors, subcontractors, their employees and agents for violations of applicable safety laws.

There are number of causes of construction accidents, including:

  • Falls - from roofs, ladders scaffolding and other heights
  • Falling objects - improperly secured tools, equipment and construction material can fall and strike a worker, causing head, neck, brain and spinal injuries
  • Equipment accidents - workers can be injured by machinery and equipment such as forklifts, cranes, nails guns and dumpsters
  • Fires and explosions - hazards arise from exposed wires, flammable materials, blow torches and leaking pipes which can lead to catastrophic injuries and fatalities
  • Trench/ Building Collapses - workers can be buried, injured and killed in trench collapses or by buildings that are being constructed or demolished
  • Repetitive Motion Injuries - physical labor often requires bending and lifting that can lead to muscle and joint damage
  • Respiratory illnesses - as a result of exposure to dust, asbestos, and other pollutants

Construction accidents can lead to a variety of injuries. For example, many injuries require fingers, toes and limbs to be amputated. In addition, broken bones and fractures are common as are shoulder, knee and ankle injuries. Workers can suffer head or brain injuries from falls or falling objects as well as spinal cord injuries or paralysis. Other common injuries include eye injuries or loss of vision, and hearing loss.

If you are a construction worker who has been injured on the job, you have the right to be treated for your injuries and the right to receive workers' compensation benefits. If the injury was the result of negligence, however, you may be able to pursue a personal injury lawsuit.

Monday, June 12, 2017

Leading Reasons for Medical Malpractice

People who need medical care put their trust in doctors, hospitals and other healthcare providers. When that trust is violated and a patient is injured because of a medical mistake or incompetence, there may be grounds for a medical malpractice lawsuit. This is a brief overview of leading reasons for medical malpractice.

Misdiagnosis or Delayed Diagnosis

Many medical practice claims arise from misdiagnosis or delayed diagnosis. A patient whose injury or illness is not accurately or quickly diagnosed may not receive the necessary treatment and suffer serious harm or death. Having a valid claim requires demonstrating that a reasonably skilled doctor would not have made the same mistake under the same circumstances.

Medication Errors

Medication errors occur when the wrong drug or dosage is prescribed or the medication is not properly administered. These errors often occur when hospitalized patients are given the wrong drugs or equipment such an IV pump malfunctions and overdoses a patient. In most cases, prescription errors cause patients to receive to little or too much of a medication, often with catastrophic consequences.

Surgical Errors

A variety of mistakes can occur during surgical procedures. In some cases, a negligent surgeon may operate on the wrong bodypart, fail to close a bleeding vein or artery, puncture a vital organ, or leave sponges or surgical instruments inside a patient's body. In addition, the nursing staff may be negligent during post-operative care by failing to notice complications.

Anesthesia Errors

Mistakes by anesthesiologists are especially dangerous and even a small error can lead to a permanent injury or death. These mistakes have a variety of causes, such as defective equipment or patients not being properly intubated. In many cases, injuries arise when anesthesiologists fail to adequately review a patient's medical history and administer too much anesthesia.

In the end, the fact that a doctor, hospital, or other medical professional makes a mistake does not mean they were negligent. In order to have grounds for a medical malpractice lawsuit, it is necessary to demonstrate that medical professional failed to provide the appropriate level of care.

Monday, May 29, 2017

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.
Read more . . .

Monday, May 22, 2017

Negligence Claims Against the Government

When an individual is wronged or injured by a federal agency or government employee, that person may have an actionable negligence claim against the government. It is necessary to seek legal counsel to determine whether or not the government is immune in this particular case or whether a legitimate claim can be brought under the Federal Tort Claims Act (FTCA).

Pursuant to the FTCA, if the incident arose from an act by a federal employee who was “acting in the scope of” his or her employment, an action may be brought.  Claims against the government, however, are often complex, burdened with various restrictions.  It is always advisable to consult with an attorney in such cases, rather than attempting to bring a lawsuit independently.
Read more . . .

Monday, May 15, 2017

Does Willful Conduct Automatically Lead to Higher Recoveries?

Personal injuries usually arise from accidents.  Whether the circumstances include a motor vehicle, slip, trip and fall or a variety of other situations, it is a rare occasion that the conduct that caused the injury is intentional.  But sometimes this is the case and the law makes special provisions for these situations.

Personal injury actions can be based on a number of theories including negligence, recklessness or willful conduct.  Each theory requires the plaintiff to prove something different.  A finding of negligence requires that the plaintiff prove that the defendant failed to act as a reasonably prudent person would under similar circumstances.  Recklessness requires that it be proven that the defendant knew or should have know of the risk of harm but proceeded with the course of conduct anyway.  To find that the defendant acted willfully, there must be enough evidence to show that the defendant intended to cause harm.  While there is a fine line between negligence and recklessness, causing the two to usually be alleged in conjunction with one another, willful conduct is a different allegation completely.  A good example of willful conduct is in the case of battery, where one person makes contact with another person without consent and with the intent of causing them physical harm.

While it is not automatic or guaranteed that someone will recover more if they can prove willful, as opposed to negligent or reckless conduct, it is a distinct possibility.  First, the ordinary damages awarded in these cases might be increased due to the finding that the defendant acted intentionally.  Second, punitive damages may be awarded.  Punitive damages are those awarded with the purpose of punishing the defendant for their conduct as opposed to compensating the plaintiff for their loss.  Punitive damages are often times awarded with the purpose of making an example out of the defendant to deter others from future conduct.  These damages are rare but are awarded in certain situations, especially when the conduct that caused the harm was found to be intentional.  The conduct usually has to be outrageously bad for a judge to award this type of compensation.  Punitive damages are governed by state law and therefore awards of this nature vary across the county. 

If you suffered personal injuries as a result of another individual or entities willful conduct, you may be entitled to a significant amount of compensation.  Contact our experienced personal injury attorneys for a consultation today. 

Monday, April 24, 2017

Injured While On Medicare: What Happens Now?

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.


Monday, April 17, 2017

Respondeat Superior and Vicarious Liability

The first question an attorney must ask when filing a lawsuit is who is responsible for the damages to his or her client. A lawyer must figure out who to name as a party in the lawsuit. This is incredibly important, because, if the wrong parties are named, the victim may be left with no way to recover for the injuries suffered. This would be a travesty of justice and is unacceptable.

It is prudent to name every party that might be responsible when filing a lawsuit. Only an attorney can make the determination as to who might be liable for an individual’s personal injuries. It is particularly important to make sure that the parties who are named are capable of contributing to the damages, either through wealth or insurance. For example, if a person who does not normally drive and has no insurance is borrowing a friend’s car, and causes a car accident, that person is likely to be unable to pay for the damage he or she caused. Similarly, if a person makes a mistake while working and causes personal injury, that individual may be the one who caused the injury, but the individual is not the only one who can be held accountable for the pain and suffering.

The legal doctrine of Respondeat Superior is Latin for “let the master answer.” It places vicarious liability on any third party that had the right, ability, or duty to control the individual who caused a personal injury. Respondeat Superior is one of the oldest traditions in the practice of law. It predates our Constitution and goes back to English Common Law. Without it, corporations and municipalities would have little reason to enforce standards of care among their employees. Employers would avoid liability for their employee’s negligence, but injured people would have no way to collect money damages for their pain and suffering. Respondeat Superior is an integral part of American jurisprudence. The most common uses of this doctrine are to hold employers liable for the actions or omissions of their employees, to hold owners of property liable for the negligence of those allowed to use that property, and to hold parents liable for their unsupervised children. 

Monday, April 10, 2017

Where Can You Bring a Personal Injury Lawsuit

Accidents happen and we do not have any control over their circumstances, including the location where they occur.  You might be injured while passing through or spending significant time in a state other than the one you live in.  If you are, you might become worried that it will be difficult to recover for your injuries or that you may be unable to recover at all.  This is not the case, as you can sue to recover for personal injuries in a variety of states, depending upon the circumstances of your case.

In order for a court to hear a particular case, it must have jurisdiction.  There are two types of jurisdiction and both are required.  Subject matter jurisdiction relates to the type of case being brought.  For example, a family court can only hear certain cases that relate to domestic relations.  The subject matter jurisdiction of a court is decided by statute.  Personal jurisdiction is the courts ability to decide a case on behalf of a particular party.  Usually, personal jurisdiction rules are examined in relation to a defendant.

For the most part, if the defendant that caused your injuries resides in or does business in a particular state, you can bring a lawsuit in that state.  When the defendant does not do business in or reside in the state where you want to bring a lawsuit, the rules become a bit more complex.  A lawsuit can be brought in any state where service of process was affected.  This means that as long as the person was served with the requisite legal paperwork in the state, the lawsuit can be brought there.  Also, simply put, a defendant can be sued in any state where they have a reasonable amount of contacts.  This is decided on a case by case basis, but, the general theory is that if a defendant could have reasonably known that they may be sued in a particular state, the suit can be brought there. 

Many personal injury actions result from automobile accidents of some kind.  Each state has a statute granting it jurisdiction to decide suits stemming from automobile accidents that occur on their roads.  When you drive in a particular state, you are consenting to be subject to a lawsuit there should you be involved in an accident.  These motorist statutes are often utilized by personal injury attorneys.

The rules relating to where a lawsuit can be brought can be complicated and difficult to understand.  If you were injured and are concerned about where to bring a lawsuit, contact us for a case evaluation today.

Monday, March 27, 2017

Injured By A Product: Do You Have A Claim?

Most of the items we use on a daily basis are manufactured by a business operating somewhere in the world.  Think about it:  the vacuum cleaner, water heater, cell phone, the things we take for granted every day.  What if the water heater malfunctioned and you were burned or the vacuum cleaner exploded while you were using it.  If these accidents were due to a defect in the product, you might be entitled to compensation.

The elements for a products liability claim are relatively simple but can be difficult to prove.  Generally, in order to have a successful claim based on a defective product, the product must be faulty in one of three ways: manufacturing, design or marketing.  A manufacturing defect is one that occurs during production of the product.  A defect in design is one that exists in all of the products.  That is, something about the product makes it inherently dangerous.  A marketing defect exists when the product is dangerous in some way and a party involved in the manufacturing or sale failed to provide sufficient instructions or warnings to prevent people from being injured.  It takes research and often experts to discover a defect and an experienced personal injury attorney should be utilized in this process.

The second element in a products liability case is injury.  Someone must have been injured or sustained a loss in order to bring a products liability action.  They must also prove that the defect was the cause of the injury.   Proving that the defect was the cause of the injury can be difficult in products liability cases and it takes someone knowledgeable in the field to be successful.

In addition, in order to have a valid products liability claim the product must have been being used in the way it was intended used or in a manner that was foreseeable.  For example, a person cannot use the clothing iron to flat iron their hair and then claim that they were burned.  The clothing iron was not intended to be used this way and this would cause the products liability action to fail.

In the event that a person is injured and they have satisfied all of the other requirements for a products liability action, they have a valid claim.  Bear in mind that it is often difficult to determine if all of the elements were met until you consult with a seasoned attorney.  Contact us for a free consultation to discuss the specifics of your case. 

Monday, March 20, 2017

The Difference between Defamation, Libel and Slander

If you have worked hard to build and maintain a good reputation, either personally or in a business context, you likely understand the affects that damage to this reputation can have.  If someone does engage in conduct that is damaging to your reputation, tort law provides an avenue for you to take action: a lawsuit for defamation.

Defamation can arise in various forms and be claimed by an individual, business or other entity.  While defamation is the term encompassing all types of statements that cause injury to one’s reputation, you can be defamed in a number of ways. Libel is defamation that occurs in a written format.  For example, statements written in an article or book that are damaging to one’s reputation constitute libel.  With the ever expanding use of the internet, written statements in website content, social media and even chats are considered libelous if they are likely to cause injury.  Slander is defamation done orally.  It is important not to underestimate the power of the spoken word when it comes to reputation and anyone injured by this type of speech may have an action.

Although defamation can be committed in a few different ways, the elements of each action are usually the same.  In order to have a successful claim for defamation, libel or slander, it must be proven that a false statement was made.  It must also be proven that the maker of the statement had some level of intent, at the very least negligence.  This means that a statement made either with intent to cause injury, knowledge of the injury that could result or without the appropriate amount of care, can result in a claim for defamation.  The statement must also have been published in some way to at least one other person and there must be proof of damages.  You will likely not be able to determine if all of these elements are satisfied and it is therefore important to consult with an attorney knowledgeable in the field to find out whether you have a claim.  Contact us today for a consultation.

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