Court Decision Protects Plaintiffs By Making Defense Doctors Liable for Bad Advice

Posted on December 30, 2009 by Jim Reed

Most people take it as a given that doctors are accountable for accurate, competent care of EVERY person whom they see in a professional capacity. It’s difficult to believe, but until just recently, there was a big exception to that standard.

It was VERY difficult to successfully sue doctors who conducted medical exams for the defense in no-fault, worker’s compensation and personal injury cases. Typically retained by insurance companies or patients’ employers, these physicians were protected from lawsuits because they did not have a “duty of care” to the patients they saw. This duty wasn’t established because these doctors have a fleeting interaction with patients – seeing them once to collect information for the defense.

That has all changed, however, due to a recent decision by the New York Appellate Court – a decision I found out about via attorney Eric Turkewitz’s New York Personal Injury Law Blog. In the post, “NY Appellate Court Says OK to Sue No-Fault, Workers’ Comp and DME Physicians,” Eric explains this important change – a set of court-established criteria that make these “Doctors for the Defense” accountable for any bad advice or poor care they give the patients they see.

As Eric explains it, the New York’s Appellate Division First Department said that these doctors, can be sued if certain conditions exist. A court panel unanimously set these rules, based on the case Badalto v. Rosenberg:

“In the context of a physical examination conducted for the purpose of rendering an evaluation for a third party, such as an employer or insurer, an implied physician-patient relationship may arise if the physician either affirmatively treats the examinee or affirmatively advises the examinee as to a course of treatment.”

The three conditions set forth by the court are:

1. that the advice was incorrect,

2. that it was foreseeable that the plaintiff would rely on the advice, and

3. that the plaintiff detrimentally relied on the advice.

As an experienced personal injury attorney, Eric not only does a great job of explaining the qualifications demanded to make a case – but the consequences for personal injury law in general. This ruling gives a new protection to plaintiffs – and undermines the practice of quick, shallow medical exams for the defense.

To quote from Eric’s New York Personal Injury Blog posting on the subject:

“All those 5-10 minute quickie exams done by doctors on behalf of insurance companies may now subject those doctors to liability. If a doctor is going to cut off benefits, s/he will now have to write that the worker can go back to work, but also write that the worker shouldn’t actually rely on this opinion. The physicians will have to write, essentially, that their opinions are actually worthless and should not be relied upon. If an injured party shouldn’t rely on it, why should a judge or jury?”

Accountability. Standards. Informed opinions. Should anything less be expected of doctors – for any exam?

Thanks again to Eric Turkewitz for blogging about this and other important developments in personal injury law.

Sincerely,

Jim
_________________________________________
James B. Reed, Esq.
Personal Injury & Malpractice Attorney
Ziff Law Firm, LLP
303 William St., Elmira, NY 14902
Tel. (607) 733-8866 Fax. (607) 732-6062
Toll Free 1-800-943-3529
mailto:jreed@zifflaw.com http://www.zifflaw.com
E-mail me at FreeReports@zifflaw.com for two free books:
NY Car Accidents and NY Car Insurance Secrets YOU Need to Know.

With ‘Veteran of the Game’ Program, Ziff Law Firm Gives Jackals Hockey to Local Veterans

Posted on December 29, 2009 by Jim Reed

I’d like to encourage local readers of the NY Injury Law Blog to nominate a Twin Tiers veteran to receive FREE Elmira Jackals tickets through our NEW ZiffLaw Veteran of the Game program.

We wanted to come up with a program that would show some of our appreciation for the bravery local veterans have shown and the sacrifices they have made in the service of our country.

Veteran of the Game will give four tickets to a local veteran for each Elmira Jackals home game the rest of the season. In addition to a great view of the game for the veteran and his or her guests, the honoree will be featured in a special announcement at the beginning of the game.

Star-Gazette columnist and veteran Roger Neumann recently wrote about our effort in his Roger That blog post “Ziff Law Firm will honor veterans at Jackals’ games.” Thanks, Roger!

YOU CAN HELP us make Veteran of the Game a successful program! We need your nominations of area veterans. To nominate a veteran for this special recognition, just contact us (by e-mail or through our website are the best and quickest means). Visit www.zifflaw.com/veterans, e-mail veterans@zifflaw.com or call (800) ZIFFLAW (943−3529).

Veterans of the Game – so far

Two area veterans have already received Jackals tickets through our plan. The Ziff Law Firm was honored to recognize Brett York and Matthew Fogarty.

Adam Gee and Brett York.

Brett York is a lifelong resident of Chemung County and a 1998 graduate of Southside High School in Elmira. Brett was in the U.S. Army from December 2002 through February 2008. He served a 2-year tour of duty in Korea, from August 2003 through August 2005.

Brett is a member of the National Guard Reserves, which he joined in February 2008.

Christina Sonsire and Matt Fogarty.

Matt Fogarty is also a lifelong resident of Chemung County. Matt graduated from Elmira’s Notre Dame High School in 1994. He served a 9-month tour in the Army National Guard in Iraq, from January through September 2009. He was a 19 D Cavalry Scout with the 56th Stryker Brigade.

Matt is currently a member of the Pennsylvania Army National Guard.

He plans to live in the Elmira area until January, when he will begin pursuing an MBA degree at Kutztown University of Pennsylvania.

We are very thankful to Brett, Matt, and all of the veterans who have served our nation so bravely! And with your help and nominations, we hope to extend our thanks – and hockey tickets – to additional local veterans.

Thanks for reading,

NY Car Accidents and NY Car Insurance Secrets YOU Need to Know.

Lawmakers Must Target Medical Negligence – Not Medical Malpractice Lawsuits

Posted on December 29, 2009 by Jim Reed

Utica’s Observer-Dispatch newspaper recently posted a Guest View column titled “Tort Reform: Make Negligence Behavior Focus.”

I wholeheartedly agree with this Guest View. Rather than blaming the lawyers for the fictitious “lawsuit crisis,” why don’t we blame the true culprit — the parties responsible for injuring innocent people.

The doctors and hospitals that commit malpractice injuring more than 98,000 people a year…

The nursing homes who neglect their elderly patients…

The drunk drivers who maim and kill hundreds of thousands people each year…

You get the picture. I’ve reposted a copy of the column below:

“Tort Reform: Make Negligence Behavior Focus”

(Observer-Dispatch, Utica, 12/13/09)

In Washington, President Obama has said he would be open to suggestions about constraining lawsuits by victims of medical malpractice – and insurance companies and medical organizations are making their case.

In Albany, buttressed by so-called “research,” business advocates are launching their own campaign to insulate negligent entities from having to compensate those they injure.

Lawyers and lawsuits have been attacked politically for years, but in reality, civil lawsuits shine a spotlight on wrongdoing, call the offenders to account, deter future misbehavior and provide justice for people who have been hurt.

Repeated studies have shown that approximately 100,000 people die each year due to medical malpractice in our nation’s hospitals. These are not simply bad outcomes that were unavoidable; they are instances where physicians or hospitals failed to meet the normal standard of care – where other physicians deemed the damage done to have been avoidable.

If a hospital, for example, allows an expectant mother to lie in one of its labor rooms, fails to notice for several hours that the fetal monitor shows the fetus in distress, and the child is born severely brain damaged, should that institution be protected from a lawsuit? How is that family going to pay for a lifetime of care for their child? What incentive is that hospital going to have to correct its procedures to prevent such an incident from ever happening again?

State authorities normally don’t have the power to impose more than minor sanctions in cases like this. The one avenue that leads to a fair outcome is a lawsuit. That family should not be told there is an arbitrary cap on the amount of damages they can receive. They should have the right to have their case heard and decided by a judge and jury in an open courtroom.

This is not a new debate. No one likes to be sued and companies, hospitals and insurers have argued for years that lawsuits should be curbed. They point to a few cases where courts awarded large sums to injured parties. But they ignore some key facts:

The “lawsuit explosion” is a myth. In fact, the opposite is true. The number of tort filings in New York state actually decreased by 30 percent from 1998 to 2008. The total number of tort cases filed was down from 81,952 to 57,023.

These cases often take years to come to a conclusion. Lawyers working for contingency fees don’t get paid unless they win. It would be ludicrous for someone in that position to file a frivolous lawsuit.

There are checks and balances in the system. If someone files a frivolous lawsuit, a judge can sanction the lawyer for doing so and dismiss the case. If a jury awards too large an amount, a judge can reduce it. If the losing side disagrees with the result, they can appeal.

It’s easy to see the benefits to the individuals involved and to our society of these lawsuits.

Companies that have polluted the environment have been deterred by members of communities who have filed lawsuits. Automakers that have sold unsafe cars have been deterred by lawsuits. Manufacturers of items ranging from garage door openers to children’s toys have adhered to higher safety standards after lawsuits showed their products to be defective.

Usually, the people who bring these lawsuits are not people of means. They have no way of fighting back except through our court system. And without lawyers who were willing to work on a contingency fee basis, they would never be able to sustain an action against these deep-pocketed entities.

Anyone who wants to reduce the number of lawsuits should focus on reducing the type of negligent behavior that harms people and causes them to sue. Ignoring the underlying causes and simply blaming the victims and their lawyers for suing undermines an important safeguard that our civil justice system provides to all our citizens.

- Michael E. Getnick, a founding member of the Utica law firm Getnick Livingston Atkinson & Priore LLP, is president of the New York State Bar Association.

Thanks for reading,

Jim

_________________________________
James B. Reed
NY & PA Injury & Malpractice Lawyer
Ziff Law Firm, LLP
Mailto: jreed@zifflaw.com
Office: (607)733-8866
Toll-Free: 800-ZIFFLAW (943-3529)
Web: www.zifflaw.com

Blogs: NYInjuryLawBlog.com and NYBikeAccidentBlog.com

Dangerous Driveway Accidents Pose a Big Risk to Small Children

Posted on December 28, 2009 by Jim Reed

Safety-conscious adults realize that driveways and parking lots are danger zones for children, but I was surprised by some recent information I read about the extent of the risk.

A recent InjuryBoard newsletter included details from Kids and Cars, a non-profit advocacy group that hopes to end non-traffic car accident injuries to children. According to the organization, today’s large SUVs and trucks may have a rear blind-spot up to 50 feet long! The average age of a child involved in a back-over accident is between 12 and 23 months. Compounding the tragedy, statistics show that in more than 70 percent of such accidents, a parent or close relative is driving the vehicle.

I personally have handled several cases of kids badly hurt by driveway accidents. It is ALWAYS a good idea to be very careful when driving into or out of driveways. We all know that young kids are unpredictable and have no conception of just how dangerous a car can be.

Here are 15 tips from Kids and Cars to protect children from driveway back-over accidents:

Walk around and behind a vehicle prior to moving it.
Know where your children are. Make kids move away from your vehicle to a place where they are in full view before moving the car and know that another adult is properly supervising children before moving your vehicle.
Teach children that “parked” cars might move. Let them know that they can see the vehicle, but the driver might not be able to see them.
Consider installing safety devices: cross-view mirrors, audible collision detectors, rear-view video camera and or some type of back-up detection device.
Measure the size of the blind-zone area behind the vehicle(s) you drive. A 5-foot, 1-inch driver in a pickup truck can have a rear blind zone that is approximately 8 feet wide and 50 feet long.
Be aware that steep inclines and large SUVs, vans and trucks add to the difficulty of seeing behind a vehicle.
Hold children’s hands when leaving the vehicle.
Teach your children to NEVER play in, around or behind a vehicle.
Keep toys and other sports equipment off the driveway.
Homeowners should trim landscaping around the driveway to ensure they can see the sidewalk, street and pedestrians clearly when backing out of their driveway. Pedestrians also need to be able to see a vehicle pulling out of the driveway.
Never leave children alone in or around cars, not even for a minute.
Keep vehicles locked at all times, even in the garage or driveway, and always set your parking brake.
Keys and/or remote openers should never be left within reach of children.
Make sure all child passengers have left the car after it is parked.
Be especially careful about keeping children safe in and around cars during busy times, schedule changes and periods of crisis or holidays.

Change is in sight

In February 2008, The Cameron Grubransen Kids Transportation Safety Act was signed into law by President Bush. Two-year-old Cameron was killed in a back-over accident. His father was driving the family’s SUV, and did not see Cameron in the vehicle’s blind spot.

The tragedy inspired legislation which enables the National Highway Transportation Safety Administration to require safety improvements in new vehicles – features including rear-view cameras, automatic shutoffs on power windows, and brake improvements to prevent rollaway cars. All will help prevent injuries to children – amazingly, many of these features are standard on vehicles in Europe.

It may take 4 to 8 years for the Act to have an impact. Even as vehicles improve, ultimately the safety of children depends on drives. It is important that we, as the adult drivers, be extra cautious particularly when we know that there are kids in the area. As always, simple precautions can prevent serious injuries.

Thanks for reading,

Jim
_________________________________________
James B. Reed, Esq.
NY Accident Lawyer
Ziff Law Firm, LLP
303 William St., Elmira, NY 14902
Tel. (607) 733-8866 Fax. (607) 732-6062
Toll Free 1-800-943-3529
mailto:jreed@zifflaw.com http://www.zifflaw.com

E-mail me at FreeReports@zifflaw.com for two free books:
NY Car Accidents and NY Car Insurance Secrets YOU Need to Know.

“Vicious Propensities”: Dog Owners’ Liability and Responsibilty to Spot Warning Signs of Attack

Posted on December 28, 2009 by Jim Reed

What are “vicious propensities”?

As an New York dog bite and dog attack attorney, I am ready to clear up some of the confusing and complicated terms that come up in dog attack cases.

A key element in many such cases is the owner’s knowledge of their dog’s “vicious propensities.” This knowledge – that the animal presented a risk – is required to prove liability in New York dog attack cases. (See my related post “When Dogs Attack: ‘Vicious Propensities’ and Owner Liability Under New York State Law” for more information on this topic).

Just what are vicious propensities? Vicious propensities are something about a dog’s behavior that should have tipped off the owners that the dog might have the tendency to attack. In a dog attack case, the jury decides this based on the facts and actions in the individual case. Below are some things that have indicated vicious propensity in dogs involved in past cases:

jumping aggressively against a fence,
barking and growling, snapping, showing its teeth,
prior attacks of people by the dog and past declaration of a dog as a “dangerous dog.” See the “Dangerous Dogs in New York” post on this blog for more details on what a dangerous dog is.

However, there are some less obvious indications of vicious propensity:

keeping a dog for use as a guard dog,
constructing a pen or fence to keep the dog away from visitors due to past problems,
“beware of dog” and similar signs,
verbal warnings to people not to enter the property because the dog was loose on the property,
records indicating the dog was aggressive,
the type and severity of the attack on the victim,
sometimes, past attacks on other animals.

Again, though, these things are just indications that may help prove vicious propensity.

It is important to remember that just because this has lead a jury to believe or not believe in “vicious propensity” in the past does not mean a jury in every situation will agree. The court and jury will look at all the facts of the situation including how often the dog displayed these propensities, whether it was only directed at a few individuals or all individuals and whether the dog’s vicious propensities are similar to the circumstances of the victim’s attack. For example, if the victim was attacked while walking to a mailbox and the information presented on the dog only showed that the dog barked aggressively at cars, that might not be sufficient to make the owner aware of the dog’s vicious propensities.

The court cannot decide a dog has vicious propensities based SOLELY on their size or breed. For instance, some people have argued that certain breeds (e.g. pit bulls, German Shepherds, Rottweiler’s) should be considered “vicious” just be virtue of the stereotyped nature of the breed as aggressive or vicious. The N.Y. courts have rejected this argument and accordingly, the breed of the dog, standing alone, will NOT be considered proof of the vicious propensity of a particular dog from that breed.

Does the victim have to prove that the owner actually knew his or her dog was vicious?

It is not required that a victim of a dog attack actually prove that the owner KNEW the dog had vicious propensities. That would be very difficult to prove what someone else actually knew. Rather, the victim must prove that that dog had certain vicious propensities. If the vicious propensities shown are enough, the court or jury will decide for the injured person based on the idea that a “reasonable person” would have known that their pet had vicious propensities.

Is there a “One Bite Rule” in New York state dog attack cases?

Some people believe that a “one bite rule” exists. A “one bite rule” requires that a dog must have bit a person prior to the current dog attack; therefore, a dog would have to bite on two different occasions before the owner could get in trouble. Under the “one bite rule,” each dog was allowed “one free bite.”

There is not a “one bite rule” in New York. Therefore, a dog can be found to have vicious propensities without having EVER bitten or attacked in the past, rather, other things such as a dog growling, jumping or being used as a guard dog is sufficient.

In other words, dogs in New York do not get “one free bite.” BUT, just because a dog has attacked a person prior does not necessarily mean the jury will find a dog has vicious propensities, either. The jury has to decide whether the prior incident should have made the owner’s aware of the dog’s tendency to attack. Although it is likely the prior attack will result in a finding of vicious propensities, it is not a sure thing.

We hope you found this information helpful. If you or a loved one has been the victim of a dog attack or dog bite please feel free to contact me directly at jreed@zifflaw.com or call 800-ZIFFLAW (943-3529) to discuss your legal options.

Thanks,

Jim
_________________________________

James B. Reed
NY & PA Dog Bite Lawyer
Ziff Law Firm, LLP
303 William St., Elmira, NY 14902
Phone: (607) 733-8866 Fax: (607) 732-6062
Toll-free: (800)-943-3529
mailto:jreed@zifflaw.com www.zifflaw.com

Dog Attacks: Vicious Propensities

What Are “Vicious Propensities”?

An owner’s knowledge of their dog’s vicious propensities are required to prove liability in New York dog attack cases. See the “Liability in Dog Attacks” blog for more information on this. But, what are vicious propensities? Vicious propensities are something about a dog’s behavior that should have tipped off the owners that the dog might have the tendency to attack. In a dog attack case, the jury decides this based on the facts and actions in each case. Below are some things that have indicated vicious propensity in past cases.

Some examples of vicious propensities may seem obvious: jumping aggressively against a fence, barking and growling, snapping, showing its teeth, prior attacks of people by the dog and past declaration of a dog as a “dangerous dog.” See the “Dangerous Dogs in New York” blog for more details on what a dangerous dog is.

However, there are some less obvious indications of vicious propensity: keeping a dog for use as a guard dog, constructing a pen or fence to keep the dog away from visitors due to past problems, “beware of dog” and similar signs, verbal warnings to people not to enter the property because the dog was loose on the property, records indicating the dog was aggressive, the type and severity of the attack on the victim and, sometimes, past attacks on other animals.

Again, though, these things are just indications that may help prove vicious propensity. It is important to remember that just because this has lead a jury to believe or not believe in “vicious propensity” in the past does not mean a jury in every situation will agree. The court and jury will look at all the facts of the situation including how often the dog displayed these propensities, whether it was only directed at a few individuals or all individuals and whether the dog’s vicious propensities are similar to the circumstances of the victim’s attack. For example, if the victim was attacked while walking to a mailbox and the information presented on the dog only showed that the dog barked aggressively at cars, that might not be sufficient to make the owner aware of the dog’s vicious propensities.

The court can not decide a dog has vicious propensities based SOLELY on their size or breed. For instance, some people have argued that certain breeds (e.g. pit bulls, German Shepherds, Rottweiler’s) should be considered “vicious” just be virtue of the stereotyped nature of the breed as aggressive or vicious. The N.Y. courts have rejected this argument and accordingly, the breed of the dog, standing alone, will NOT be considered proof of the vicious propensity of a particular dog from that breed.

Does the Victim Have to Prove that the Owner ACTUALLY Knew Their Dog Was Vicious?

It is not required that a victim of a dog attack actually prove that the owner KNEW the dog had vicious propensities. That would be very difficult to prove what someone else actually knew. Rather, the victim must prove that that dog had certain vicious propensities. If the vicious propensities shown are enough, the court or jury will decide for the injured person based on the idea that a “reasonable person” would have known that their pet had vicious propensities.

IS THERE “A One Bite Rule” IN NEW YORK DOG ATTACK CASES?

Some people believe that a “one bite rule” exists. A “one bite rule” requires that a dog must have bit a person prior to the current dog attack; therefore, a dog would have to bite on two different occasions before the owner could get in trouble. Under the “one bite rule”, each dog was allowed “one free bite.”

There is not a “one bite rule” in New York. Therefore, a dog can be found to have vicious propensities without having EVER bitten or attacked in the past, rather, other things such as a dog growling, jumping or being used as a guard dog is sufficient. In other words, dogs in New York do not get “one free bite.” BUT, just because a dog has attacked a person prior does not necessarily mean the jury will find a dog has vicious propensities, either. The jury has to decide whether the prior incident should have made the owner’s aware of the dog’s tendency to attack. Although it is likely the prior attack will result in a finding of vicious propensities, it is not a sure thing.

When Dogs Attack: “Vicious Propensities” and Owner Liability Under New York State Law

Posted on December 26, 2009 by Jim Reed

To many people, dogs truly are “man’s best friend.” Certainly, dogs can be wonderful companions and add much to people’s lives.

As a dog lover and past Board member for the Chemung County SPCA, I wholeheartedly agree with all the great sentiments about dogs and the joy that they can bring.

Unfortunately, however, some folks do not realize the responsibilities that come with dog ownership – including controlling your dog and keeping it appropriately fenced or leashed. Often, not controlling or appropriately containing a pet hurts the pet. A dog can easily be the victim of an accident or become lost. In other scenarios, a dog owner’s lack of responsibility hurts other people. Our law firm has seen too many people scared for life from a dog attack or avoiding a dog attack.

When can someone be held responsible for a dog attack?

There is no easy answer to this question. It is more of step-by-step process, decided by a series of standards:

First, was the injured party bit by the dog or hurt while avoiding a dog? When people think of this area of law, many folks think an actual attack is required, but a pet owner can be held responsible if someone is injured fleeing a dog when they believe they are going to be attacked.

Second – and it gets more complicated here – did the dog owner know the dog had “vicious propensities” as is required under N.Y. dog bite law?

“Vicious propensity”… what in the world is that and what does it mean?

Like many things in the law, the answer to is: It’s complicated. See my related post, “Vicious Propensities”: Dog Owners’ Liability and Responsibilty to Spot Warning Signs of Attack” for details.

For the purposes of this post and simply put, it means: Could something about the dog’s behavior have tipped off the owners that this dog might have the tendency to attack someone? It could be something obvious – like vicious growling or biting in the past. However, it could be something less obvious – such as use as a guard dog.

The determination of whether a dog has exhibited vicious propensities must be determined on a case-by-case basis. Clearly, a prior attack or bite by the dog constitutes a vicious propensity, but short of a previous attack or bite, the determination must be based upon the facts of this particular dog’s history.

Can owners be held responsible if their dog is NOT LEASHED and it attacks?

Many municipalities in New York state, including Elmira, have leash laws whereby an owner can be fined for not keeping a dog confined or on a leash. But what about their being held liable in a civil proceeding if their dog is not leashed or confined and it attacks?

In the past, an owner could be held liable through negligence if a person was injured by a dog attack while the owner was violating the leash law.

Negligence? Generally, negligence means having a responsibility to act a certain way and then not doing it.However, it is a bit more complex and usually broken down into parts.

Specifically, negligence means that someone has a duty to do something, that duty is not completed and not following the duty caused the injury with damages. For example, if there was a duty to leash a dog, the owner did not leash it, the dog ran away from the owner and bit someone because it was loose, the person had medical bills and lost work, etc, that would amount to negligence.

Being held responsible for a dog biting when off a leash makes sense, right? After all, if the owner is supposed to keep a dog on a leash and does not, the owner should be held responsible if a person is hurt as a result of the pet being loose. The attack probably would not have happened if they were following the rules! Unfortunately, though, the high court of New York, the Court of Appeals, recently disagreed in the case of Petrone v. Fernandez.

N.Y. Courts take a step backward …

In Petrone v. Fernandez, a dog was not leashed or fenced, in violation of a local leash law. A mail carrier was delivering mail when she turned around to see a large dog running at her, only about six feet way. The mail carrier ran and attempted to jump in her car.

While jumping in her car through the window, her hand was stuck outside the car and she injured her finger, causing her pain for several months, missed work and was only able to engage in limited activities. She sued and, although the incident likely would not have happened had the dog been leashed, the court said that violating a leash law, although an indication of the owners’ negligence, was not enough to hold the pet’s owners responsible.

What does that all mean? It means that, as a result of this case, indications of negligence by the owners, including violating the law by not keeping the pet on a leash, is not enough is make an owner liable. In other words, negligence is NOT enough; the ONLY way that an owner can be held responsible is if they knew the dog had vicious propensities.

Why did the Court of Appeals change the law in the Petrone case?

Why the change and why discourage responsibility? Hard to say.

The court may want to simplify these cases and make them more “cut and dried” or maybe they think that violation of a leash law is not a good enough indication that the owners should be held responsible for their pet’s actions. Maybe they want to limit the cases on this subject.

Whatever the reason, it seems unlikely that insisting on the foreknowledge of “vicious propensities” will make things simpler or do justice to people who have been attacked.

Is it really fair to make someone that has been injured jump through hoops to prove that an owner knew of his or her dog’s vicious propensities – even when the incident likely would not have happened if the owner followed the law? And, what if no vicious propensities can be found – should a victim of such an incident be left without compensation and justice? We do not think so.

We hope you found this information helpful. Be sure to look at our other posts on dog bites and dog attacks here on the NY Injury Law Blog.

If you or a loved one has been the victim of a dog attack or dog bite, please feel free to contact me directly at jreed@zifflaw.com or call 800-ZIFFLAW (943-3529) to discuss your legal options.

Thanks,

Jim
_________________________________

James B. Reed
NY & PA Dog Bite Lawyer
Ziff Law Firm, LLP
303 William St., Elmira, NY 14902
Phone: (607) 733-8866 Fax: (607) 732-6062
Toll-free: (800)-943-3529
mailto:jreed@zifflaw.com www.zifflaw.com

“Dangerous Dog” Law in New York State: The Basics Explained by NY Dog Attack Lawyer

Posted on December 24, 2009 by Jim Reed

Sad to say, but over the years I have handled way too many cases on behalf of people who have been badly injured when mauled in a dog attack or dog bite case.

I am a dog lover myself (and a former Board member of our local SPCA), but the fact remains: not all dogs are safe or fit to be around people.

In this post, I want to explain the basics of dog bite and dog attack law in New York. Of course, because I’m just covering the basics here, I welcome your questions about dog bite law in NY. You can post a comment below or e-mail me directly at jreed@zifflaw.com.

NY’s Dog Laws

New York State Agriculture and Markets Law Section 121 imposes penalties and controls on the owners of dogs who have attacked or threatened to attack.

Penalties for Owners

By statute, the penalties on the owner of a pet who has attacked can range from a fine to the possibility of one year in jail.

The penalty depends on what happened during an attack and whether the pet had ever been declared “dangerous” before. For example, if a dog attacked a person or caused physical injury or serious physical injury to a guide dog, the owner may be fined. However, if the attacking dog was declared dangerous in the past and attacked again, the owner may be charged with a misdemeanor and face up to one year in jail.

Penalties/Controls on the Pet: A Dangerous Dog

If a dog attacks or threatens to attack people or other pets, there can be a hearing in court on whether the dog is a “dangerous dog.” Finding a dog “dangerous” allows the court to force the owners to take action to attempt to make sure the dog interacts safely with others.

The court can request a variety of actions for the pet including:

Requesting that the dog to be leashed or muzzled at all times in a public area,
requesting the owners to confine the pet (by fencing it, etc.) for a specific amount of time,
having the dog trained,
maintaining an insurance policy on the dog in case of future attack, and,
in very serious cases, euthanasia (putting the dog down) or permanent confinement.

Euthanasia or permanent confinement can not be mandated unless the dog caused serious physical injury or death while attacking a person, had attacked a person in the past, OR caused serious physical injury to another animal after being declared dangerous for the same behavior in the past.

What Can I Do if I Believe that a Dog is Dangerous?

First, if you have been attacked or witnessed a dog attack or threatened attack on a person or another animal, you should to make a complaint to an animal control officer as soon as possible.

(If you live in our area of Upstate New York, the link to the Horseheads and Elmira Animal Control Officers are below. If you are out of these areas, contact the police or call the animal control officers in your area.)

After an animal control officer receives a report of a witnessed or threatened attack, he or she will likely start a Dangerous Dog Proceeding with the court system. If the court feels that it is possible that the dog is a danger then the dog will be seized for the safety of the public until a hearing on the matter. Usually a hearing occurs within five days.

To find a dog a “dangerous dog” in a hearing, the animal control officer or person who brought the proceeding must prove that the dog is dangerous by showing that it is “more likely than not that the dog attacked or threatened to attack.” This is called the “burden of proof” and the burden is on the party bringing the dangerous dog complaint to prove that the dog did attack or threatened to attack. To satisfy this burden of proof you must bring witnesses that have first-hand knowledge (eyewitnesses) of the attack, or other proof of the attack (for example, pictures or videos).

The court will consider all the facts of the incident including if the dog was justified in its behavior. To make sure the dog’s dangerous tendencies can be proven, you may have to testify about what you observed.

If the court finds a dog to be dangerous, they will decide between the various penalties discussed above ranging from training to muzzling in public. Generally, euthanasia is not a penalty on the first complaint unless the situation is very serious, as discussed above.

What Do “Dangerous Dogs” and Statutory Penalties Have to Do with Dog Attack Liability?

I recently wrote about an important related topic – DOG ATTACK LIABILITY – in the post “When Dogs Attack: “Vicious Propensities” and Owner Liability Under New York State Law“ here on the NY Injury Law Blog. Under New York state law, the penalties against the owners and the finding of a dangerous dog are separate from the liability I discussed in the post. This means that – if you were attacked by a dog, your case may proceed in both ways.

Why? Because the owner’s liability and the dog’s “dangerous” designation deal with different things. For example, dog attack liability does not have any control over the actions the owner may have to take with the pet and cannot require fines; the dangerous dog sections usually do not compensate a dog attack victim for anything besides his or her expenses as a result of the attack.

However, although is generally separate, sometimes a “Dangerous Dog” finding can be useful in a civil trial by helping to prove vicious propensities.

Last Thoughts and Sources of Help

Please call your local animal control or police if you have been attacked or witnessed an attack by a dog. Also, if you are concerned about a dog’s aggressive behavior, even if they have not attacked or threatened to attack, PLEASE give the authorities a call. It may save you or someone else from a terrifying, painful or even deadly experience.

Who to Call: Upstate NY Animal Control Officers

The area code for the following phone numbers is 607 unless noted.

CHEMUNG COUNTY

The Chemung County Humane Society & SPCA has animal control contracts with nine of the municipalities in the county. Their website is www.chemungspca.org.

Caton, N.Y. Dog Control Officer – David Scouten, (607) 524-8411

Elmira, N.Y. Dog Control: www.cityofelmira.net/shelter/animal_control.html

Elmira City Animal Control Officer, 737-5807

Horseheads, N.Y. Dog Control: www.horseheads.org/index.php?n=Govt.Town#toc2

STEUBEN COUNTY

Addison: Robert Revis, 359-2034

Avoca/Howard: Betty Walden, 776-2453

Bath: Carl and Ruth Tuttle, 583-2229

Bradford: Edward Machuga, 583-2430

Cameron: Darrell Hoad, 776-7070

Campbell: Harold Austin, 527-8183

Canisteo: Gary Hadsell, 698-4350

Caton: David Scouten Sr., 524-8411

Cohocton/Wayland: Deb Breese, (716) 384-5499

Corning City: Linda Holmes, day 936-8422; night 527-8763

Corning Town: Jay Josephson, 524-6603

Dansville: Mary Lackey, 728-2999

Erwin: Jay Josephson, 524-6603

Freemont: John DuPont, 324-0002

Greenwood: John and Annette Jacobs, 478-5314

Hartsville: Michael D. Henry, 689-2677

Hornby: Gardiner Bills, 962-0882

Hornesville: Hornell Humane Society, 324-1270

Jasper/Woodhull: Richard Harrison, 458-5724

Lindley: Douglas Taft, 523-7779

Prattsburgh/Wheeler: Donald Gifford, 776-6058

Pulteney: John and Sherri Ballam, 522-5030

Rathbone: Jerry Aldrich, 359-2908

South Corning Village: Jay Josephson, 524-6603

Thurston: Gregory Crans, 776-2678

Troupsburg: John Space, 525-6354

Tuscarora: Paulena Webester, 350-3604

Wayne/Urbana: Marvin Rethmel, 569-3737

West Union: Alice Delill and Doris Williams, 225-4483

TOMPKINS COUNTY

Town of Ulysses: Chris Austin, Dog Control Officer, 387-9598

Towns of Lansing and Groton: Country Acres Pet Services, 749-2734, cell 423-2888

Town of Dryden: Richard and Gena Leonard, 844-3641, cell (for emergencies only) 351-2144

The City of Ithaca and the Towns of Danby, Caroline, Newfield, Enfield and Ithaca receive animal control services from the SPCA: 319-5067, emergency/off hours 592-6773

If there is not an animal control officer in your community, call your local police department or, in case of emergency, 911 to make sure they are informed of a dangerous animal!

Thanks,

Jim
_________________________________

James B. Reed
NY & PA Dog Bite Lawyer
Ziff Law Firm, LLP
303 William St., Elmira, NY 14902
Phone: (607) 733-8866 Fax: (607) 732-6062
Toll-free: (800)-943-3529
mailto:jreed@zifflaw.com www.zifflaw.com

DOG OWNER LIABILITY UNDER NEW YORK LAW FOR DOG ATTACKS

When Dogs Attack

Error in Judgment Rule FINALLY kicked to the Curb in Pennsylvania

Posted on December 23, 2009 by Christina Sonsire

For the past two years I have been litigating a medical malpractice case involving a woman who was catastrophically injured at a hospital in Northern Pennsylvania when her surgeon cut the wrong part of her anatomy during a routine procedure. The case is seated in Federal Court in the Western District of New York because the woman is a resident of New York and the hospital is located in Pennsylvania. Under the rules governing diversity jurisdiction — a situation where the parties reside or are domiciled in different states — the Federal Court is required to apply Pennsylvania law to the action.

The case is still being litigated, and therefore I will not divulge the details of the woman’s injuries or how the injury occurred. In fact, the interesting part of the case for now does not involve the malpractice itself, but rather the defendants’ primary defense to it.

Throughout the litigation the defendants have relied upon a principle called the “Error in Judgment” rule. Under this principle, a surgeon could be excused for his negligence by claiming that although in retrospect it appears he made errors during a procedure, he used his best judgment at the time and therefore did not violate the standard of care. The main problem with the defense for injured people is that it theoretically excuses medical providers for all but intentional conduct, leaving plaintiffs with little recourse.

However, it appears the days when a surgeon can argue “I thought I did it right at the time and therefore am not to blame” are over, at least in Pennsylvania. In August, Pennsylvania’s Superior Court handed down a ruling in Pringle v. Rapaport, 2009 Pa. Super. LEXIS 3267 (2009) where it held the “Error in Judgment” is inconstant with Pennsylvania law.

Pringle is a medical malpractice case involving a child who suffered extensive nerve damage in his neck as a result of shoulder dystocia, a condition in which an infant’s shoulder is stuck behind his mother’s pubic bone at the time of delivery. The child’s parents sued the delivery physician, claiming the physician negligently executed a maneuver (the “corkscrew maneuver”) to dislodge the child’s shoulder, resulting in injury. The parties agreed the physician correctly diagnosed the child with shoulder dystocia and appropriately chose to administer the corkscrew maneuver. The only remaining issue was whether the physician properly executed the maneuver. At trial, the Court instructed the jury, inter alia, physicians “are not liable for a mere mistake in judgment”. Id. at 1-4.

On appeal, the Superior Court – after addressing several seminal Pennsylvania cases dealing with the “Error in Judgment” charge – held the question of whether a physician exercised sound judgment is not relevant to whether the surgeon committed malpractice. Id. at 40-42. Indeed, the Court further reasoned the “Error of Judgment” charge “is inherently confusing and has no place in medical malpractice cases” for at least two reasons:

“[I]t wrongly suggests to the jury that a physician is not culpable for one type of negligence – the negligent exercise of his or her own judgment”; and

“[I]t wrongly injects a subjective element into the jury’s deliberations”…and may lead the jury “to conclude that only judgments made in bad faith are culpable – even though a doctor’s subjective intentions while rendering treatment are likewise irrelevant to the issues placed before a jury in a medical malpractice action.”

This is very good news for people who suffer injuries due to medical malpractice in Pennsylvania, and will hopefully result in greater safety and caution in hospitals.

Thanks for reading!

Christina Bruner Sonsire, Esq.

A Sobering Statistic in New York and Other States: Alcohol Still Kills Too Many Drivers

Posted on December 16, 2009 by Jim Reed

In New York state, more than 27% of the car accidents in which someone is killed involve at least one driver who is impaired by alcohol.

That statistic really did shock me. When I think of all the possible causes of car accidents – bad road conditions, poor visibility, vehicle problems – it’s extremely sad to think that close to a third of road fatalities are linked to a condition that is totally under individual control. From an early age, even children know you don’t drink and drive.

I started to think about this topic for two reasons: One, I keep tabs on the Day On Torts blog by attorney John Day. Last week John posted an entry about his state, Tennessee, and the prevalence of alcohol-related vehicle accidents there. John related how the National Highway Traffic Safety Administration tracks detailed accident information for every state. So, of course, I went to check out New York’s figures.

According to the NHTSA’s National Center for Statistics and Analysis, there were 1,231 people killed on New York state roads in 2008. Of those fatalities, 341 of them involved at least one driver who had a blood alcohol level of 0.8 or greater.

The second reason: It’s the season. A big part of the holidays are festive gatherings of colleagues, families and friends. Many adults enjoy raising their spirits with spirits – and as John says, “No one is saying that you should not be able to enjoy the holiday season and that, if you are an adult, you cannot enjoy alcohol as a part of celebration of the season.”

Who would deny his final point: “You have no right to place the lives of others at risk because you choose to operate a vehicle while you are impaired.”

It’s simple. Act responsibly – plan a place to stay, designate a sober driver, keep that cab company card in your wallet. Take steps while you are in a clear state of mind and the preparation will serve you well when your thinking might be clouded by alcohol.

Nationwide, 11,773 people died in alcohol-related crashes in 2008. Do what you can this holiday season to act responsibly and get others to do so as well. Hopefully the effort will pay off in much lower numbers when the NHTSA tallies up 2009.

Thanks for reading,

New York Medical Malpractice Lawyer Applauds Hospital Merger

Posted on December 14, 2009 by Jim Reed

As a lawyer who has handled several multi-million dollar cases against the Ira Davenport Hospital (IDH) in Hammondsport, N.Y., I applaud the merger of that hospital and the Arnot-Ogden Medical Center in Elmira, N.Y.

WETM-TV recently posted an Associate Press report that this merger was going through – see the story, “Hospital Merger, WETM 18 Online” (a copy is pasted below).

Why do I care about this merger? Because I truly hope that IDH will finally get some long overdue help in upgrading the quality of its facilities and staff.

In my cases against IDH I was appalled to learn about the total lack of appropriate staff training at the hospital.

Let me give you just one example of what I learned and why I was so appalled.

My first case against Ira Davenport Hospital involved a prolonged delay in the delivery of a baby girl. In that case, the electronic fetal monitoring machine showed clear evidence that the baby was in distress for a prolonged period of time before either the nurses or the doctors did anything to deliver the baby. The whole purpose of putting a mother who is in labor on an electronic fetal monitoring machine is to be able to watch both the interaction between the baby’s heart rate and the mother’s contractions. There are certain patterns of heart rates that are reassuring—they show that the baby is doing well—and other patterns of heart rates that tell you the baby is in big trouble. Labor and delivery nurses, as well as obstetricians who deliver babies, are supposed to be trained to recognize both the good and bad heart-rate patterns. They are also taught what they are supposed to do when they see a bad heart rate on the electronic fetal monitoring machine.

The problem is that all of this presumes that the medical staff are properly trained and it presumes that they are actually paying attention to the printouts from the monitoring machine. Let’s face it, the machine is no go at all if people aren’t properly trained to interpret the information that the machine is printing out and the machine is totally worthless if no one is even bothering to regularly monitor what it is saying.

In my first case against the Ira Davenport Hospital, I was shocked to learn how little training the delivery nurses had received on the fetal monitoring machine. While the nurses were very nice ladies and truly cared about their patients, the only training the two nurses involved in the care of my client received was a very brief course offered via fax machine. Yes, that’s right, their ONLY training was via fax machine during a brief course.

When I questioned the nurses about their knowledge of the various heart-rate patterns, I was shocked to learn that they had no real understanding of the most dangerous patterns. In my client’s case, the ominous heart-rate patterns were there for a long time but the nurses totally failed to understand that the patterns were dangerous. The machine clearly showed that the baby was essentially being choked to death as her brain was being deprived of oxygen. The nurses simply didn’t understand the data that the machine was providing because they had not received adequate training in the use of the machine.

The insurance company for the Ira Davenport Hospital settled that case by paying their full policy limits of $2,000,000.

Now wouldn’t you think if you had to pay $2,000,000 because your nurses were inadequately trained, you would make darn sure that they got additional training so this kind of nightmare would never occur again?

Flash forward five years. I am now handling a second case against the Ira Davenport Hospital. The facts are eerily similar to the first case — a little boy who suffered cerebral palsy – permanent brain damage – due to a delay in delivery. In fact, in this second case, some of the same nurses involved in the first case, are involved in the this case. I am taking their deposition and I ask what I think is a simple question: In the last five years since case #1, what additional training have you received on the fetal monitoring machine? I am expecting to hear that the nurses have received all sorts of additional training.

What I heard shocked me: “Nothing … we have received no additional training.”

You have got to be kidding me…you almost kill a baby……you leave her with permanent brain damage….you have to pay $2,000,000 to settle a lawsuit for the horrible injuries you caused…..and you haven’t done ANYTHING to fix the problem? Unbelievable.

The second case settled for $1,625,000.

Thankfully I haven’t had a third case so I don’t know what additional training the nurses may have received since that case but I can only hope that they received some real, in-depth training.

So this is a long way around saying why I applaud the merger between these two hospitals: I applaud it because I hope that the affiliation between these two hospitals will upgrade the quality of the facilities and the staff training at the Ira Davenport Hospital. As much as I make my living handling medical malpractice cases, I do NOT want to see people unnecessarily hurt by their medical providers so I embrace anything that can be done to improve the quality of the care provided by our local hospitals here in upstate New York.

Thanks for reading,

Jim
_________________________________
James B. Reed
NY & PA Injury & Malpractice Lawyer
Ziff Law Firm, LLP
Mailto:jreed@zifflaw.com
Office: (607)733-8866
Toll-Free: 800-ZIFFLAW (943-3529)
Web: www.zifflaw.com
Blogs: NYInjuryLawBlog.com and
NYBikeAccidentBlog.com

Ira Davenport, Arnot Ogden Hospitals to Merge

(AP, Natario, 12/03)
URBANA – Patients that go to Ira Davenport Memorial Hospital will now have access to more doctors.
The hospital has officially agreed to merge with Arnot Ogden Medical Center in Elmira.
At the Steuben County hospital there will be more surgical doctors on hand.
Ira Davenport will also be under the umbrella of Arnot Ogden, which officials say will help them pay off debts.
Without the merger, officials say there is little doubt the hospital could have remained open.
“Small hospitals across the state of New York are really struggling. Nursing homes in the state of New York are really struggling due to the economics of it all. All of the health care in upstate New York are really struggling. So we felt this was a necessary step”, said James Watson.
New York State is helping to fund the merger through hundreds of thousands of dollars in “Heal New York” grants.
The money helps larger hospitals keep open smaller, rural hospitals.
Besides more doctors, Ira Davenport hospital will also be receiving some structural work.