I am in the process of drafting a complaint against a doctor, nurse and hospital for extremely egregious medical malpractice that led to the premature and unnecessary death of an Elmira man.  Included in my complaint is a claim for punitive damages.

In drafting the complaint I did a fair amount of research about punitive damages in New York, and learned several helpful tips for both practitioners and potential claimants.

At the onset, it is critical to understand what punitive damages are designed to do as well as the strict limitations New York Courts apply in their application.  New York’s tort system (the system that allows injured people to recover against the people or entities that caused their injuries through negligence, malpractice and intentional conduct,) generally allows an injured person to only be compensated for actual economic and non-economic injuries directly related to his or her injuries.  These types of damages are called “compensatory damages” because they are designed to compensate victims.  Compensatory damages include such things as lost wages, medical bills, pain and suffering, loss of enjoyment of life and future treatment costs.

Punitive damages, on the other hand, are designed to punish and deter the wrongdoer or “tortfeasor”.  In other words, the purpose of awarding punitive damages is to send a message to the torfeasor and all similarly situated persons or entities that the conduct alleged is so egregious and unacceptable as to require punishment in order to deter others from engaging in the same types of acts.

In 2008 the New York Law Journal published a very interesting article called “The Rules On Punitive Damages.”  In this article authors Steven Napalitano and Hayden Coleman explain, “[t]hese damages, also known as exemplary damages, serve a dual purpose: first, to punish the tortfeasor, and second, to deter both the wrongdoer and others similarly situated from engaging in the same conduct in the future.”

There is no question the bar for allowing an injured person to recover punitive damages in New York is set very high.  In a recent landmark case, New York’s Court of Appeals (the highest court in New York) observed:

“Punitive damages are permitted when the defendant’s wrongdoing is not simply intentional but evince[s] a high degree of moral turpitude and demonstrate[s] such wanton dishonesty as to imply a criminal indifference to civil obligations”. (Ross v Louise Wise Serv., Inc., 8 NY3d 478, 489, quoting Walker v Sheldon, 10 NY2d 401, 405; see Prozeralik v Capital Cities Communications, 82 NY2d 466, 479; Sharapata v Town of Islip, 56 NY2d 332, 335).

Indeed, Napalitano and Coleman assert “New York courts have strictly limited punitive awards to the most reprehensible instances of wrongdoing; they are only awarded in cases involving gross, wanton or willful fraud, or other morally culpable conduct.”

So, the question emerges: are punitive damages appropriate in my case?  Of course, the analysis required to answer this question must be performed on a case-by-case basis.  However, there are a few general considerations every practitioner and potential claimant should keep in mind:

1.   Does the conduct warrant punitive damages?

This is the million dollar (figuratively speaking, of course) question.  In many ways the answer starts in your gut.  Do the tortfeasor’s actions make you mad? Really mad?  Seething mad?  Do they make you want to call the newspaper and the cops and 20/20 because this sort of thing should never happen in the USA?  If the answer is a resounding yes, then perhaps you have a claim.

Much more critically, do the torfeasor’s actions make your 72 year-old/very fiscally conservative/wary of lawsuits/cheerleader of tort reform mother-in-law seething, red-faced mad?  Too often we see our cases through a rose-colored lens, and, after having sat with a grief-stricken family, believe punitive damages are a given.  They’re not.  Ever.  Vet your case out to your neighbors, your families, your colleagues.  Become part of some active list-serves.  Read verdict sheets.  There is simply no substitute for good old research.  It can save you a lot of time (and face) down the road when you are answering the summary judgment motion the defendant will surely bring.

2.   Would the conduct have made your mother-in-law seething, red-faced mad at the time it occurred?

Do not overlook this step!  Determine when the conduct occurred.  Is this a toxic tort case that involved conduct in the 1950’s?  Is this an asbestos case where the building was erected 50 years ago?

According to Napalitano and Coleman, “a claimant should be precise in defining the time period of the conduct allegedly justifying punitive damages. In cases where the conduct at issue happened many years ago, as is often the case in the toxic tort context, a plaintiff must be prepared to show that the conduct was outrageous based on the norms and knowledge then prevailing. Defense counsel may seek to engage an expert witness to establish that the conduct was not sufficiently malicious or vindictive at the time. Finally, if circumstances have changed so that the allegedly offending conduct could not happen today, as with a change in the law, defense counsel may properly assert that the goal of deterring future improper conduct cannot be satisfied.”

3.   Is the claim for punitive damages insured?

As usual, insurance is the 110 pound gorilla in the room.  It is one thing to be a crusader and secure a 10 million dollar punitive damages verdict for your client, but a whole other beast to actually translate the judgment into money your client can take to the bank.

Unfortunately, it appears claims for punitive damages are generally uninsurable in New York.  New York’s Court have ruled the public policy underlying a claim for punitive damages – that tortfeasors actually endure punishment in order to deter future bad conduct – is eradicated if insurance companies simply pick up the tab.

The law firm McCullough, Campbell & Lane, LLP created a detailed list of the rules governing the interplay of punitive damages and insurance in all 50 states, including New York:

Directly assessed punitive damages are not insurable in New York. See Public Service Mut. Ins. Co. v. Goldfarb, 425 N.E.2d 810 (N.Y. 1981); Hartford Accident & Indem. Co. v. Village of Hempstead, 397 N.E.2d 737 (N.Y. 1979); Soto v. State Farm Ins. Co., 600 N.Y.S.2d 407 (N.Y. App. Div. 1993), aff’d 635 N.E.2d 1222 (N.Y. 1994); National Union Fire Ins. Co. of Pittsburgh, Pa. v. Ambassador Group, Inc., 556 N.Y.S.2d 549 (N.Y. App. Div. 1990), appeal dismissed, 571 N.E.2d 85 (N.Y. 1991).

In addition, the court in Home Ins. Co. v. American Home Products Corp., 550 N.E.2d 930 (N.Y. 1990), aff’d in part, rev’d in part, 902 F.2d 1111 (2d Cir. 1990), applied the prohibition to out-of-state punitive damages awards for which the insured seeks coverage in New York. The court pointed out that “the punitive nature of the award, coupled with the fact that a New York insured seeks to enforce it in New York against a New York insurer … calls for the application of New York public policy.” 550 N.E.2d at 933. See Zurich Ins. Co. v. Shearson Lehman Hutton, Inc., 642 N.E.2d 1065 (N.Y. 1994) (noting that only when a statute allowing indemnification awards damages that serve a wholly punitive, and not compensatory, purpose are they precluded by New York policy).

Vicariously assessed punitive damages are not insurable in New York. See Zurich Ins. Co., 642 N.E.2d 1065.

This of course does not mean claims for punitive damages should never be asserted in NY, nor does it mean they are always uninsured.  It simply means practitioners should have their eyes wide open with respect to collections matters.

Thanks for reading!

Christina

_________________________________
Christina Bruner Sonsire, Esq.
NY & PA Injury & Malpractice Lawyer
Ziff Law Firm, LLP
303 William Street
Elmira, New York 14902-1338
csonsire@zifflaw.com
Office: 607.733.8866
Toll-Free: 800.ZIFFLAW (943.3529)
Web: zifflaw.com
Blog: NYInjuryLawBlog.com

Fourth of July in the New York’s Southern Tier was filled with celebration and family fun, though several accidents resulted in needless death.  In one accident, a man was killed on Waneta Lake while riding on a jet ski.

According to WETM TV, 43-year-old Lee Brandt of Wisconsin was on a jet ski with friends Sunday.  While operating his jet ski along the east shore of Waneta Lake in a northbound direction, Brandt turned in front of a second jet ski and collided with it.  Brandt died a short time later.

This sad story presents a good opportunity to review some basic jet ski safety tips:

Learn how to operate a jet ski before climbing aboard.

Jet skis look uber-cool, and the sight of many young people riding them leads to the misconception that they are easy to drive.  However, you wouldn’t hop on a motorcycle and peel away before learning how to operate it.  Take your time, learn to drive and make the lake safe for everyone.

Wear a life jacket.

For most people this is common sense, but I still amazed to see people scream by aboard a jet ski with nothing on top but a shiny layer of tanning oil.  Life jackets are a must – there is no way around it.  Moreover, New York law requires anyone who uses jet ski to wear a life jacket, and your civil case in the event you are injured could be substantially impacted if you “forget” to wear it.

Stay away from other watercraft.

Most jet ski injuries are caused by collisions with boats or other jet skis.  To be safe, stay AT LEAST 100 feet away from other watercraft, divers, water skiers, tubers, knee-boarders, wake-boarders, rafts, and swimmers.

Never jet ski at night.

The bottom line is that open water is dangerous at night. It is nearly impossible to accurately gauge your distance from other watercraft.  Simply put, don’t jet ski at night.  Ever.

Don’t Drink and Ski.

This is another common sense point, but it is worth mentioning.  Drinking at the lake is a favorite pastime for many people.  If you plan to drink before you jet ski, make sure it is or the nonalcoholic sort.

Thanks for reading,

Christina Sonsire

NY & PA Injury & Malpractice Lawyer
Ziff Law Firm, LLP
303 William Street
Elmira, New York 14902-1338
csonsire@zifflaw.com
Office: 607.733.8866
Toll-Free: 800.ZIFFLAW (943.3529)
Web: zifflaw.com
Blog: NYInjuryLawBlog.com

The Elmira Star Gazette reported that Steuben County officials identified the driver in a one car crash that occurred at about 5:00 A.M. on Wednesday, June 30, 2010, in Hornellsville.

Sheriff identifies driver in accident that injured 9

The Steuben County Sheriff’s Office named the driver in the one-car accident that injured nine teens Wednesday morning.

Six of the teens remain hospitalized today, deputies said.

The investigation is ongoing, the sheriff’s office said.

As I reported in an post earlier today, this terrible tragedy highlights a number of issues all parents need to consider.  Aside from the obvious concerns about underage drinking and teen drivers, an accident such as this with multiple victims raises several important questions regarding auto imsurance coverage.

Please take the time to read my earlier post, and do not hesitate to contact me if you have questions about your own coverage.  Many times coverage questions are asked after an accident occurs, and generally that is just too late.

Thanks for reading,

Christina

_________________________________
Christina Bruner Sonsire, Esq.
New York and Pennsylvania Lawyer
Ziff Law Firm, LLP
303 William Street
Elmira, New York 14902-1338
csonsire@zifflaw.com
Office: 607.733.8866
Toll-Free: 800.ZIFFLAW (943.3529)
Web: zifflaw.com
Blog: NYInjuryLawBlog.com

A horrific accident involving nine teenagers occurred at approximately 5:00 A.M. on Wednesday, June 30, 2010, in Steuben County, New York (near Corning).  Aside from highlighting the dangers associated with underage drinking and teen drivers, the accident raises several critical insurance coverage issues that every parent should understand.

According to the Elmira Star Gazette (full article pasted below, nine teens were injured in a one car accident in the Town of Hornellsville following an underage drinking party.

The parents of the nine injured teens are facing — or surely will face — tough questions with respect to how or if their children will be compensated as the teens begin the long road to recovery.

In general, parents of children injured in one-car motor vehicle accidents involving multiple passenger need to be aware of the following insurance coverage information:

1.  BASIC NO-FAULT COVERAGE – New York State Insurance Law requires every driver to provide at least $50,000 of Personal Injury Protection (“PIP”) to each passenger of his vehicle regardless of whether he caused the accident or not.  This type of insurance is generally referred to as “No Fault Insurance” because it is triggered even if the driver was not at fault.

What does this mean?  Every passenger in a vehicle is entitled to $50,000 of PIP coverage under the driver’s insurance policy in the event the passenger is injured in an accident.  In general, PIP covers economic losses such as lost wages and medical bills.

Why is this important?  Here, assuming the driver had proper insurance coverage, all nine teens (the driver is entitled to PIP benefits as well) are likely entitled to receive up to $50,000 to compensate them for their economic loss.  In addition, a passenger may be able to collect No Fault PIP benefits under his own policy once PIP iunder teh driver’s policy is exhausted.  This is called “stacking” PIP coverage, and it often allows a passenger to receive up to $100,000 to cover economic loss.

2.  ADDITIONAL NO-FAULT COVERAGE — Residents of New York are also free to purchase additional No Fault coverage in the event they or members of their families are seriously injured in an accident and their economic losses exceed $50,000.  The two primary types of additional coverage are called Additional Personal Injury Protection (“APIP”) and Optional Basic Economic Loss Coverage (“OBEL”).

What does this mean?  If you or a family member are seriously injured in an accident and your economic loss — again, I am primarily talking about lost wages and medical benefits — exceed the available PIP coverage ($50,000), APIP and OBEL can be triggered to cover your excess expenses.  In addition, as a passenger you may be able to collect against the driver’s APIP and/or OBEL coverage, depending on how the policy is written.

Why is this important? According to the Star Gazette article, at least three of the teens suffered serious injuries and were helicoptered to Strong Memorial Hospital.  A helicopter ride alone generally costs around $2,500, and it is safe to assume the medical bills for these teens could approach $50,000 very quickly.

The passengers first need to determine whether the driver had APIP or OBEL coverage.  If so, it is possible the passengers could be compensated for additional economic loss under the driver’s policy, depending on how it was written.

Next, if the teens’ parents have APIP or OBEL coverage, the teens will likely be considered “Resident Relatives” and will meet the standard to be named an “eligible injured person” under their parents’ polices.  (Important tip — MAKE SURE YOU HAVE APIP AND OBEL NO FAULT COVERAGE.  At Ziff we are willing to review your insurance policy FOR FREE. Just stop in or email us a copy of your policy to info@zifflaw.com.)

3.   LIABILITY COVERAGE– In addition to no-fault coverage, New York State Insurance Law requires all drivers to carry at least $25,000/$50,000  liability coverage.  What does this mean?  It means every driver on the road in New York is required to provide at least $25,000 of coverage to any one injured person for non-economic loss(things like pain and suffering, serious disfigurement and loss of enjoyment of life) because of his negligence.  If more than one person is injured, the total maximum recovery is limited to $50,000 regardless of whether two people are hurt or whether 20 people are hurt.  If there are more than two people hurt, those people would have to split the $50,000 “pie”.

Of course, drivers are permitted to carry — and, in my opinion, SHOULD carry –  much higher liability coverage.  Why is this important?  In an accident such as this — where I am speculating at least eight people sustained serious injuries due to the driver’s negligence — it is possible the maximum amount of liability coverage available to compensate their non-economic losses  is only $50,000, in the event the driver only had a minimum policy.  In other words, unless the driver had enhanced liability coverage, the seriously injured passengers may only have a total pot of $50,000 from which to be compenstated for their non-economic losses.

4.  THE MOST IMPORTANT COVERAGE I HOPE THE PASSENGERS CARRIED– SUPPLEMENTAL UNDERINSURED MOTORIST’S (SUM) COVERAGE– Fortunately, like No Fault, residents may purchase Supplemental Underinsured Motorist Coverage (“SUM”) to avoid the situation described above.  SUM policies of $250,000/$500,000 or $5000,000/$1,000,000 or even higher can be added to almost any insurance policy, and generally cost less than $15.00 PER YEAR.  In my opinion, this is the best money you could spend to make sure you and your family are best protected in the event something really bad happens.

What does this mean?  In the event the driver who caused an accident does not have enough liability protection to fully compensate the people whom he injures, the injured person can trigger his own SUM policy once the full amount of the driver’s policy has been tendered.

Why is this important?  If the Steuben County teens have sustained serious injuries and the driver has a small liability policy, it is likely at least some of the injured teens are not going to be fully compensated for their non-economic losses.   If the teens’ parents have SUM policies, it is possible the teens could meet the “Resident Relative” standard (described above), and trigger their parents’ additional liability coverage.

HOWEVER, New York law is tough in this regard.  In a recent case, the New York Court of appeals held an insured’s SUM policy is NOT triggered unless the amount of the SUM policy is greater greater than the liability policy of the negligent driver, even if the injured party actually collects less than the SUM coverage because of multiple claimants.

Clearly much of this blog post is speculative, but it gets to the heart of some of the most pressing insurance questions.  Bottom line — parents need to protect their families!  Make sure you have adequate No Fault coverage — including APIP and OBEL — and spend the extra dollars each year to buy the biggest SUM policy possible.  Hopefully you will never need it, but if the day comes you will sure be glad you are protected.

I will be following the developing news about this crash and will provide updates as they become available.

Again, bring your insurance policy to Ziff Law at ANY TIME and we will review it for free.  It may be most worthwhile 5 minutes of your entire week!

Thanks for reading,

Christina Bruner Sonsire

Christina Bruner Sonsire, Esq.
NY & PA Injury & Malpractice Lawyer
Ziff Law Firm, LLP
303 William Street
Elmira, New York 14902-1338
csonsire@zifflaw.com
Office: 607.733.8866
Toll-Free: 800.ZIFFLAW (943.3529)
Web: zifflaw.com

Here’s the Elmira Star-Gazette article:

Nine teens packed into car are injured in crash

Nine Steuben County teens packed into a small sedan were injured — six of them seriously — in a one-car accident Wednesday morning in Hornellsville.

County Sheriff Joel Ordway said the car, a 2004 Chevrolet Cavalier, was speeding west on county Route 109 when the driver lost control on a sharp curve about a quarter-mile east of Lain Road and drove into a ditch.

The car continued about 135 feet, struck a concrete culvert, became airborne for 25 feet, overturned and landed on its side in a driveway, deputies said.

Ordway said the crash occurred about 2 miles from the underage drinking party, which was a birthday party. He said alcohol and the car’s speed were factors in the accident.

When emergency responders arrived at the scene, they found nine teens “on top of each other” inside the car, Ordway said.

It was not clear where in the car each of the teens was seated before the crash, though Ordway said they were likely “on top of one another” before the crash. Nobody was riding in the trunk, he said.

Ordway said he knows who was driving, but was not ready to release that information Wednesday afternoon because the investigation is still in progress.

“We’re just going to continue with the investigation,” Ordway said. “In the next couple days, we’ll have some charges, not only on the operator, but also on the source … who provided the alcohol prior to” the crash, he said.

Six of the nine teens in the car suffered serious injuries; one of them suffered a life-threatening head injury, Ordway said.

Emily S. Mayorga and Dylan Henry, both 18 and from Canisteo, and Taylear K. Maiello, 17, of Hornell were taken to Strong Memorial Hospital in Rochester by helicopter. All three were listed in guarded condition Wednesday, according to a hospital spokeswoman. Branden S. Mulhollen, 17, of Canisteo, also was taken to Strong for treatment. His medical status was not available Wednesday.

Bethany Jones, 17, and Carleenea L. President, 18, both of Hornell, were taken to Robert Packer Hospital in Sayre. Both were listed in stable condition Wednesday.

Ordway said the car was traveling between 71 and 78 mph at the time of the crash. The speed limit on the road is 55 mph, though the suggested speed on the downhill curve where the car left the road is lower, about 40 mph, he said.

County Road 109 was closed for several hours Wednesday.

The crash is reminiscent of another serious crash involving underage drinking in western Steuben County in 2007.

That September, three teens and a 21-year-old man were killed when a car hit a concrete abutment and went into Sugar Creek off of state Route 248 near Jasper. Police said all four had been drinking alcohol before that crash.

I am going keep this person’s identity confidential, but I want to share my response because I believe this advice will be useful to other readers.

The person who contacted me had been the victim of an assault. The assailant had pled guilty and awaits sentencing. The victim had a permanent scar from the assault and this damage was the source of the question to me.  As a NY personal injury attorney, could I advise:

1. How the assault victim should act and speak when before the judge.

2. What amount of compensation might be expected for a scar?

3. When would the compensation decision be made and is there a process to collect claims won in Small

Claims Court?

Here is the advice that I offered:

1. Go to court prepared and organized. Have an outline of how you are going to explain what happened to the judge. Take some good pictures of your scar and print them out as 8-inch by 10-inch images so you can give them to the judge.

Go to the Court Clerk’s office and get a copy of the Certificate of Conviction showing the guilty plea. If you have any witnesses to the assault, bring them with you and have them prepared to tell the judge how you were assaulted.

Stay calm and be polite to the judge (say “Yes, sir,” and “No, sir,” etc.).

2. Scars are tough to value and there is no single website where you can get a precise idea of value.

However, with that said, don’t sweat it because the decision about how much your scar is worth is up to the judge anyway. In order to convince the judge to give you the highest amount possible, you need to be prepared to tell the judge in a calm, honest way about the many different ways in which the scar bothers you both emotionally and physically.

Tell your story with as much heart as you can, but be honest and be careful to not come off as a total whiner.

3. In Small Claims Court, the judge makes the decision. Usually he or she makes it that day, but he or she can “reserve decision” to secure more time think about the ruling.

There is a process to collect, and you can read about it in the informational booklet available at Small Claims Court.

I hope this advice helps the reader who contacted me, as well as anyone else anticipating a day in Small Claims Court.

I enjoy working on the NY Personal Injury Law Blog and helping readers make sense of some very complicated and scary legal issues. Please feel free to contact me with questions – I’m happy to help and explain what you need to know.

Thanks for reading,

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.

Boating involves serious preparation and attention to precautions. As a personal injury attorney and a avid boater myself, I thought the beginning of the summer season was a good time to remind everyone of New York state’s Boating Regulations and the New York State Navigation Law.

For more details and updates about these rules, visit the Web site of the New York State Parks and Recreation department (www.nysparks.com).

Know Your Speed Limits: To use cars as a comparison, boats don’t stop as quickly or turn as sharply. That means lake boating speed limits MUST be carefully observed for your own safety and the safety of other boaters and swimmers.

I personally keep a boat on Keuka Lake. On that lake, the boating speed limit is 45 mph during daylight, 25 mph after sunset until sunrise, and only 5 mph within 200 feet of the shore, rocks, docks, rafts or moored vessels. (The exception to the 5 mph rule is when pulling up or dropping off a water skier.)

Save Yourself, Save Others: New York state law requires that sailboats less than 23 feet long, Personal Water Craft (PWC), motor boats and manually powered vessels MUST carry the following safety equipment.

A wearable Personal Flotation Device must be available for every person on the craft. In September 2009, New York expanded its PFD rules, requiring all small boat occupants to wear life jackets during the winter as well. You can read more details about this in the NY Injury Law Blog post, “New York Makes Life Jackets Mandatory November through May.”

The PFD must be appropriate for the person wearing it – children under age 12 on boats less than 26 feet long MUST wear a correctly-sized life jacket while the boat is underway.

Boats are also required to carry throw able life preservers, to haul in anyone who needs help in an emergency.

More required equipment:

One or more fire extinguishers, depending on the size of the craft.

Every craft requires Visual Distress Signals. The form and number vary depending on the time and available light as well as the size of the craft. From sunset to sunrise, boats of 16 feet and longer are required to have red flares. During daylight, orange distress flags qualify as the required Visual Distress Signals.

Boats must have an anchor.

Boats of 39 feet long and longer must have a mechanical sound warning device, such as a horn, bell or whistle. Craft less than 39 feet may get by with a whistle, horn or by mouth – just be able to give a hearty yell of warning.

White navigation lights are a must-have as well. The bow and stern of your craft are required to be marked with white lanterns or lights to warn other boats. Sailboats require additional lighting in some circumstances. It’s best to contact the proper authorities for details.

Optional Equipment it’s Good to Have:

• First Aid Kit
• Bailer
• Boat Hook
• Paddle
• Compass
• Marine Radio

Care for Your Equipment: It’s not enough just to buy the required equipment and stow it on your boat. You’ve got to make sure it works. PLEASE BE AWARE OF EXPIRATION DATES ON FLARES AND FIRE EXTINGUISHERS

Obey the Rules of the Water: Some boating-related activities are regulated with strict rules. While water-skiing, the tow-boat must contain an observer (at least 10 years old) as well as a driver. The water-skier must be wearing an approved PFD and water-skiing is only permitted during daylight. Don’t water-ski between sunset and sunrise.

PWC, such as Jet Skis, also are restricted to use only during daylight. The drivers of such craft must be at least 14 years old, and now matter how old, must have completed – successfully – a New York state-approved safe boating course. It’s like a driver’s license – the certificate has got to be in your possession if you are asked by law enforcement to produce it.

Powerboats require training too. Youth ages 10 to 17 must have successfully completed a state-certified Power Squadron or Coast Guard Safe Boating Course in order to operate a powerboat without adult supervision. Again, the certificates for course completion must be in the operator’s possession on the boat.

A Final Word – ‘Diver Down’ Flags: All boats must stay 100 feet from “diver down” flags. Do you know how to recognize these flags? There are two:

• The Alpha Flag is a blue pennant with a white stripe at the base.
• The Diver Flag is a red rectangle with a white diagonal stripe.

Steer well clear of these flags to preserve the safety of divers. The flags could well be the only evidence of their presence below the surface.

Thanks for reading and taking an interest in boating safety. Here at the Ziff Law Firm, we have successfully handled a number of Finger Lakes boating accident cases. Check our Boating Accident Landing page for brief descriptions of some of the high-profile boating injury cases we have resolved. Many of the incidents could have been avoided entirely, by simply sticking to the rules set by New York State as well as the federal government to keep boating a safe and fun summer activity.

Thank for reading,

Adam
______________________________
Adam M. Gee, Esq.
NY and PA Personal Injury and Malpractice Attorney
The Ziff Law Firm, LLP
303 William Street
Elmira, NY 14901
Phone: (607)733-8866
Fax: (607)732-6062
Email: agee@zifflaw.com
www.zifflaw.com

If you bring an injury lawsuit or file a no-fault claim in New York or Pennsylvania, the insurance carrier has a right to have you examined by a doctor of their own choosing. This is usually referred to as an “IME” which is an acronym for “Independent Medical Examination.” Don’t let this phrase fool you. There is absolutely nothing that is “independent” about this examination.

An IME is an examination paid for by the insurance company with the hope that they will be able to get ammunition from their doctor that will permit them to terminate or minimize their obligation to fully compensate you for your injuries.

Because these exams are NOT “independent,” I refer to an IME as an “INSURANCE Medical Exam.”

Let’s face it, the insurance company is sending you to THEIR doctor with the hope that they may show you are not as disabled as your doctor says. This is a Dr. who is paid a lot of money by the insurance company to tell them exactly what they want to hear: namely, that you are not injured.

Therefore, the “independent” medical doctor who you are going to see will try to show that you are exaggerating, malingering, magnifying your symptoms, or just pretending.

I wouldn’t represent you if I thought that you were guilty of any of these situations. Nevertheless, sometimes doctors make a “mountain out of a molehill” because they are conditioned to believe that most claimants are malingering, pretending, or exaggerating. Some doctors automatically find, and will testify that the results of their examination indicate that you are malingering, pretending, etc.

The defendant’s doctor is listening to EVERYTHING you say and watching everything you do. He will dictate a report of what he sees and hears immediately when you leave his office.

HERE ARE SOME OF THE THINGS THAT YOU SHOULD NOT DO OR SAY AT INSURANCE MEDICAL EXAMINATIONS:

• Don’t lie. Ever. A single lie can undermine your whole case.

• Don’t try to outsmart the doctor. You can’t do it.

• Don’t drive yourself to the visit. Try to have your spouse, friend or neighbor drive you.

• Don’t talk about your accident, injuries, insurance company or case in elevators, common areas or doctor’s waiting room.

• Don’t wear dangling jewelry or earrings.

• Don’t jump on and off of the examination table at the doctor’s office.

• Don’t come in tight jeans or cowboy boots.

• Men, don’t come unshaven.

• Ladies, don’t come with make-up on or wearing high heels.

• Don’t leave the doctor’s office in a running trot or quick walk and jump into your car, because the doctor is probably watching you from his or her window.

• Don’t use medical jargon or fancy terminology when discussing your case or describing your symptoms.

• If you are complaining of a neck injury, don’t twist your head back and forth when the doctor is moving about the room in an effort to follow his movements.

• Don’t discuss money or any plans of retirement with the doctor.

• Don’t discuss your marital situation with the doctor unless the exam is for a psychological injury. Your marital situation is not relevant to the present examination. This is a physical examination.

• Don’t exaggerate your problems. Be truthful, but conservative. On the other hand, don’t minimize your problems. Just tell it like it is.

• Don’t moan, groan and wince or grimace in pain every time the doctor touches you. No matter how lightly or heavily the doctor may touch you, be natural, be yourself, tough it out as best you can. However, if what he is doing hurts you, honestly tell him that he is hurting you.

• Don’t ask the doctor for medication or pain pills.

• Don’t talk about your labor union to the doctor.

• Don’t talk to the doctor about the insurance carrier, attorneys or the adjusters.

• If you have a bad back, don’t bend down and untie your shoes. Wear loafers and kick them off/slide them on.

• Don’t allow the insurance company’s representative to be in the examining room with you when the doctor examines you. Simply explain to the doctor that you deem physical examinations to be private and would like to have the representative leave the room. Be polite and sincere when you say this.

• Do not discuss with the doctor the amount of your claim or the amount of wages you used to make. Politely decline to do so by saying that the insurance company has that information.

• Do not discuss with the doctor whether you have any hearings coming up on your case.

• Do not discuss what you deserve for a settlement or your plans for spending the money you may get.

HERE ARE SOME OF THE THINGS THAT YOU SHOULD DO OR SAY AT THE INDEPENDENT MEDICAL EXAMINATIONS:

• Be honest and cooperative with the doctor.

• Be pleasant. At the same time, you should not behave in such a fashion that the doctor can say you were laughing during the examination.

• Be concerned. Be serious. Be polite. Give the doctor accurate, but brief, history on how your accident or injury occurred.

• Give the doctor an accurate history of your job details and what you do in terms of lifting, bending, stooping, carrying, and walking.

• If the doctor asks you about any previous injuries or illnesses you had before the present one, be honest and tell him the nature of any injuries you had, and whether you had surgery in connection with those previous injuries. On the other hand, do not volunteer information.

• If the doctor asks if you have had any previous workers’ compensation claims, you should say to him, “I’ve had previous workers injuries” (if that is true). However, you should always disclose any injury whether it is work related or not if the doctor asks you for a previous history of injuries.

• Be aware that the doctor is sometimes performing the same test on you in more than one fashion and in more than one way. For example, the doctor may test your legs when you are sitting up and when you are lying down. This is the same test. Therefore, if you complain of pain inconsistently, the doctor is going to make note of it. Don’t try in any way to magnify or exaggerate your pain. Let the truth come out and we will obtain a more favorable report from the doctor. If you exaggerate your pain, or if you are inconsistent, or if you try to impress the doctor with the significance of your pain, this will only give the doctor ammunition with which to hurt your case.

• If you are totally disabled, explain to the doctor that if there was any way you could be back at work, you would be there.

• If you have a long work history (a long history is 5 years or more) emphasize to the doctor that you have worked for this employer for a significant number of years and you would like to get back to work.

• If you have a short history of work with the employer and you enjoyed your job, explain to the doctor that although your employment with this employer was brief, you enjoyed working there and would like to return to work.

• When you are giving a history to the doctor as to how the accident occurred, please mention all injuries that you suffered as a result of this accident. For example, if you mainly injured your back when you fell, but you also hurt your knee, mention that you hurt your left or right knee (as the case may be). If, when you tried to stop your fall you pushed out your hands, mention that your primary pain is in your back, but you tried to break your fall with your hands and you also bruised them.

• Remember, the person who tells the doctor that he/she does absolutely nothing all day is less likely to be believed than a person who says, “I try to be active or I try to do some chores, but I suffer for it the next couple of days.”

• Finally, ask the doctor to send a copy of his or her evaluation to your treating doctor.

IMPORTANT: IME doctors will often exaggerate the time they spent questioning and examining you. To combat this, it is imperative that you keep track of the time you spent with the doctor. Do not be obvious about doing so but glance at your watch so you can accurately advise us of the times.

ALSO IMPORTANT: As soon as you are home, sit down and write down every detail you can recall of your exam (i.e. time spent with a nurse or doctor, questions asked by the doctor and your answers, tests performed by the doctor, etc.). We understand that you can’t remember everything but just do the best you can.

If you have any questions your IME, contact us. The Ziff Law Firm even has a videotape to help clients prepare for an IME. Please contact our office for a consultation, and check the post “IME Doctors Change Diagnoses for Insurance Company Exams” to be forewarned about this important part of your injury case.

Thanks for reading and let me know if you have any questions,
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.

As an experienced injury lawyer, you often demonstrate how smart you are by the cases you DO NOT take – as much so as by those cases that you DO take.

While I certainly don’t mind a challenging case (and I have taken many over the years!), there are certain types of cases where the law is so stacked against you that you just have to know when to say NO.

Sad to say, school sports injury cases are an example of the type of case that is virtually impossible to win.

Why?

Well, the law is stacked against you in many respects.  First, there is a defense known as the “assumption of the risk doctrine.” Basically, this doctrine contends that people who are voluntarily engaging in a sport, assume the risk of the types of injuries that are inherent in that sport, and therefore they cannot recover for those injuries.

For example, if you are a pitcher on a baseball team, you assume the risk that a batter might hit a ball that hits you in the mouth. Likewise, if you are a baseball spectator, you assume the risk that a foul ball might hit you. On both of these scenarios, there are tons of NY cases that have been dismissed by the court because of the assumption of risk doctrine.

Two great blog posts, “Assumption of Risk Doctrine Bars New York Sports Injury Lawsuits – Part 1″ and “Assumption of Risk Doctrine Bars New York Sports Injury Lawsuits – Part 2 (Baseball)”, by NYC attorney John Hochfelder explain the assumption of the risk doctrine as it applies to many sports:  baseball, floor hockey, wrestling and soccer.

With all of that said, there ARE some types of sports injuries cases that MAY be a possible case despite the assumption of the risk doctrine.

These cases usually involve an injury that is NOT inherent in the nature of the sport or a hazard of a type that is generally not assumed in that particular sport. For instance, if there’s a metal spike sticking up out of the ground in the base path to second base and a school knew about that hazard and failed to take any steps to remedy that condition, that might give rise to liability against the school.

The bottom line is that it is VERY difficult to decide if you have a good case or not and therefore it is usually best that you consult with an experienced injury lawyer to determine if you have a case or not.

If you want to e-mail me the details of your case at jreed@zifflaw.com, I am happy to let you know what I think.

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

• a woman from Ithaca, NY who suffered a permanent brain injury due to hitting her head on an ice sidewalk outside a Corning, NY pizzeria;
• a construction worker from Elmira who was caused to suffer a nasty, spiral fracture of his femur when caused to fall on icy steps at a Waverly, NY factory;
• a Binghamton, NY man who badly injured his back in a twisting fall in a shopping mall parking lot.

Each of these cases resulted in very substantial payments by the insurance carriers for the property owners.

The sad part about each of these cases was just how easily they could have been avoided had the property owner just taken the simple (and legally required) step of keeping their property free of snow and ice.

Now don’t get me wrong, as a property owner myself, I know that it’s often a pain in the neck to keep my home and my office clear of snow and ice but I also know that it is my legal responsibility to do so and even more important, I sure don’t want to see one of my family, friends or clients hurt just because I was too lazy to make sure that I kept my property safe.

During the cold and stormy months of winter, it seems as if we just get the sidewalks cleared before Mother Nature strikes with another storm. A new layer of snow and ice coats the area, making roads and sidewalks slippery and dangerous until we can treat and clear them again.

I want to share some advice about winter conditions and legal liability. This is good information to remember, no matter what your “walk” in life. You may a business or building owner with the responsibility of keeping sidewalks and entrances clear and safe, or you could be a victim of a nasty fall on ice, trying to figure out what your legal rights are.

I was inspired to share some information about this issue by a post, Snow and Ice: Five Ways to Avoid Legal Liability by attorney Tim Rayne. Tim’s tips address the potential liability of property owners. He basically cautions them to:

Determine who is responsible for keeping walking areas free of snow and ice. It may be the property owner, or it could be the municipality – the key is to KNOW for SURE and assume the responsibility if it is yours.

Treat ice and snow effectively and get rid of it quickly. Don’t dawdle! If you are a property owner, and you don’t address dangerous walking conditions quickly, you are opening yourself up to a lawsuit.

I want to add that if you are a pedestrian and you note poor conditions, be sure and tell the property owner. You don’t want to be the victim of a slip and fall accident – or allow anyone else to be, either.

And finally, Tim tells property owners to be sure and have enough liability insurance to cover the cost of perhaps serious injuries to victims of slip and fall accidents.

I know from my 20+ years of experience handling personal injury cases that even when insurance adequately covers the costs of physical recovery, serious injuries have repercussions in victims’ family life, careers, mental state and more. First and foremost, we need to keep people aware of their responsibilities and/or risk during this sometimes treacherous season.  Stay safe!

Thanks for reading,

Jim

_________________________________________
James B. Reed, Esq.
NY Fall and Injury 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.

Last April, the New York Times ran an in-depth expose of the New York State workers’ compensation system. The articles and associated videos and resources ran under the umbrella title, “A World of Hurt.”

What did the Times discover? I quote: “New York State’s workers’ compensation system serves no one well and is arguably the most adversarial of any state in the nation.”

IME: The test doesn’t deliver the truth

As a personal injury attorney in New York and Pennsylvania and managing partner of the Ziff Law Firm – which has a Workers’ Compensation and Social Security Disability group headed by attorney Eric Johnson – I’ve long felt strongly about some of the issues this series examined.

In particular, I’m galled about the practice of giving injury victims insurance company-ordered, so-called “Independent” Medical Exams, or IMEs, to prove the validity of injuries. These exams are NOT INDEPENDENT.

As a doctor was quoted in the story: “If you did a truly pure report… you’d be out on your ears and the insurers wouldn’t pay for it. You have to give them what they want, or you’re in Florida. That’s the game, baby.”

Check out the video embedded in this post, depicting a typical IME given by a semi-retired doctor WHO DOESN’T TAKE NOTES.

You can hear the doctor describing the patient’s pains and limitations in the video. The insurance company report of the exam was that the patient was healthy and did not have a valid workers’ comp claim.

When questioned about the different results, the doctor denies responsibility. It must be the fault of the appointment booking agency that transcribed his notes, or the insurance company, he says. Without the video record, it’s the patient’s word against the doctor’s. Guess who wins that bout.

How can insurance companies pay for “independent” exams?

IMEs are meant to flush out people who are faking or exaggerating their injuries. More than 100,000 of these exams are given each year in New York State.

The big irony of the system is that the people who are truly hurt – workers who are suffering both physically and financially – are often further victimized by the system. Their cases get ground to dust by the interlocking gears of the big insurance companies, the “expert” doctors who are essentially paid to save the insurance company money, and the “entities” – exam booking and transcription agencies – who give the doctors and the insurance companies plausible deniability.

Check another post on the NY Injury Law Blog, “NY Accident Lawyer Offers Do’s and Don’ts For Insurance Medical Exams (IME)” for tips about what to wear, how to act and what to do and say during an IME. My recommendations are based on experience advising clients for more than 20 years. It’s a must-read for clients before they have what I refer to as their “Insurance” Medical Exam.

Thanks for reading,
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