NEW YORK ACCIDENT ATTORNEY COMMENTS ON STEUBEN COUNTY CRASH INVOLVING NINE TEENS

Posted on July 1, 2010 by Christina Sonsire

: Image via Wikipedia

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 Continue reading →

Personal Injury Lawyer Offers Advice for Success in Small Claims Court

Posted on June 17, 2010 by Jim Reed

I was recently contacted by e-mail for some legal advice by a reader of the NY Injury Law Blog. This person had gone over some of my posts, particularly “The “People’s Court”– NY Small Claims Court.”

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.

NY Accident Lawyer Offers Do’s & Don’ts for Insurance Medical Exams (IME)

Posted on May 20, 2010 by Jim Reed

In a previous post here on the NY Injury Law Blog, I explained the truth about “Independent” Medical Examination (IME) with the insurance company’s doctor. In the original post: “IME Doctors Change Diagnoses for Insurance Company Exams”, I explained how some doctors deliver the diagnoses that the insurance companies want – because the insurance companies pay fees to the doctors.

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.

Your “Independent” Medical Examination (IME) with the

Insurance Company’s Doctor

If you bring an injury lawsuit or file a no-fault claim in NY 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 abbreviation for “Independent Medical Examination”. But don’t let this phrase fool you. There is absolutely nothing that is “independent” about this examination. This 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”.

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.

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.

If you have any questions about the above, please let us know now, before your IME. If you have not already viewed the videotape regarding preparing for your IME, please contact our office to set up an appointment to see the videotape before your IME.

Ziff Law Firm, LLP

303 William St., Elmira, NY 14902

Tel. (607) 733-8866 Fax. (607) 732-6062

Toll Free 1-800-943-3529

www.zifflaw.com

Record Upstate NY Settlement in Albany Medical Malpractice Case

Posted on April 9, 2010 by Jim Reed

Albany Medical Center Hospital

I wanted to offer my congratulations to attorney John Powers for a record settlement in a tragic medical malpractice case. John is an excellent Albany attorney with whom I have had the pleasure of working on several cases.

The Albany Times-Union carried the story, “$5.2 M benefit can’t heal loss.” John handled the case for the family of Diane Rizk McCabe. Diane died in 2007, at age 32. The Caesarean delivery of her second child was not handled correctly. Diane slowly bled to death over 15 hours. Albany Medical Center Hospital will pay the cash settlement for malpractice and mandated changes in procedure.

The McCabe family took a settlement, but John was able to bring this case to an unusual conclusion. The monetary settlement is substantial, but what this family truly wanted two things: To make Diane a remembered presence to her two children and to force the hospital to make changes that would prevent this kind of loss from happening to any other families.

John represented Joseph McCabe, Diane’s widowed husband and a Schenectady police officer. In the Times-Union story, John says he was ready to take the case to trial in August.

“It was never about the money with the family,” John was quoted as saying. “It came down to the non-monetary aspects involved with the settlement. They wanted to do something to make certain this doesn’t happen to someone else and to create a memorial to Diane for the children as they grow up that they’ll know that their mother is being remembered in this way.”

If the McCabe family had pursued the trail, they couldn’t have won those very important non-monetary stipulations. The Albany Medical Center Hospital must fund for the next 20 years a Diane McCabe Memorial Quality Lecture series focusing on topics related to enhancing patient safety.

The hospital must also buy a maternal and neonatal simulator for staff training and to change monitoring procedures for women during childbirth.

I just want to congratulate John for being able to bring such a tragic case to a resolution that really means something to the McCabe family. He’s also a past president of the New York State Academy of Trial Lawyers. The organization sent an e-mail to members with an announcement of this extraordinary settlement.

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.

TOWANDA, PENNSYLVANIA ACCIDENT ON NATURAL GAS RIG HIGHLIGHTS SAFETY CONCERNS

Posted on March 12, 2010 by Christina Sonsire

: Image via Wikipedia

The Elmira Star Gazette is reporting a breaking news story regarding a death on a natural gas site. Reports say Greg Allen Henry, a 31-year-old worker, died on March 11, 2010 after falling 20 feet off a natural gas rig in Towanda Township, Pennsylvania. The man was working on a Nomac Drilling site located just off Plank Road.

This accident highlights concerns regarding safety on natural gas rigs shared by many people throughout New York’s Southern Tier and Pennsylvania’s Northern Tier. As exploration of the Marcellus Shale continues to increase, many rural areas are experiencing (or hope to soon experience) strong economic growth. However, this growth may come at a steep price, as the family of Mr. Henry is no doubt realizing today. Natural gas drilling is risky business, and the desire to work quickly in order to maximize profits may lead to unnecessary injuries — and even death.

I will follow-up on this post as more details become available.

Thanks, 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

New York Accident Lawyer: Non Party Witnesses NOT Entitled to Counsel At Deposition

Posted on March 10, 2010 by Adam Gee

As a Plaintiff’s Attorney who conducts depositions on a regular basis, one of the more frustrating issues I encounter is the non-party witness (NPW) who is represented by counsel. Sometimes the NPW brings in their own outside counsel to represent them. More commonly, the NPW has some loose affiliation with the interests of the Defendants in the case, and defense counsel tries to claim that they are also representing the NPW. Defense counsel then obstructs objects and delays, hoping to prevent me from obtaining damaging information from the NPW. These kinds of tactics usually end up in the deposition being adjourned, or a call to the judge to determine the extent to which the defense attorney will be allowed to participate, with wildly varying decisions froom the judges who have addressed the issue.

Thankfully, the Appellate Division has finally ruled on the issue. In Thompson v. Mather, the NYS Appellate Division, Fourth Department recently ruled that while an NPW is certainly entitled to whatever counsel they want, the NPW’s attorney IS NOT entitled to participate in the deposition. So they can’t object or obstruct or delay or do any of the many other things that slow, and sometimes stop a deposition dead in its tracks.

This is a boon for not just plaintiffs attorneys, but for every attorney who handles depositions. The trial judges who have to field phone calls from attorneys complaining of these tactics will be happy to hear of this decision as well. Many thanks to our good friend Eric Turkewitz, who wrote about the topic here. It seems that the scales of justice may be tipping toward common sense!

Thanks for reading,

_______________________________
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

NY Malpractice Lawyer Discusses Dangerous Drug Avandia Causing Heart Attacks; Why Drug Manufacturers Should Just Come Clean

Posted on March 5, 2010 by Jim Reed

When will these drug manufacturers learn that it is NOT acceptable to keep distributing a drug they KNOW is causing injury and death?

Haven’t they learned anything from the asbestos cases, the Vioxx cases, the Levaquin cases? The bottom line is that they will NOT be able to conceal damaging information forever. In today’s age of free exchange of information, it is becoming more difficult than ever for any manufacturer to keep a lid on problems with their products. In the old days, a heart attack victim in Pennsylvania might know nothing about a heart attack victim in New York, but those days are over. Online communities of patients, doctors and medical researchers can now share their experience with people around the world with just a click of a button.

If this is so obvious to me, why isn’t it obvious to these drug manufacturers who mistakenly believe they can hide the damaging information from the public? Hmmmm, perhaps it is the lure of BIG DOLLARS. The longer you wait to recall a drug can mean millions if not billions of dollars of drug sales.

Heck, why not try to make as much money as possible on a drug before you pull the plug on it? It sure makes business sense but it totally forgets that you are injuring or killing innocent people in exchange for a few more $. Sadly, big business often cares more about profits than people.

A recommendation to manufacturers

Here’s what I would like to tell the companies who have learned that a product they thought was safe but has now been revealed as dangererous: IMMEDIATELY stop distribution of any suspected dangerous product BEFORE more people are permanently injured or killed. Toyota, are you listening?

It appears that Avandia is among the latest drugs to join the “dangerous drug concealed from the public” camp. Avandia, manufactured by GlaxoSmithKline, is a popular diabetes drug. Unfortunately, Avandia has a deadly side effect of drastically increasing the risk of heart attacks and causing liver damage.

A 2007 study in the highly respected New England Journal of Medicine revealed the increased heart attack risks associated with Avandia. CNN did a great video report on the dangers of Avandia and how those dangers were well known to GlaxoSmithKline long before they publicly revealed any information:

Avandia Linked to Heart Attacks – CNN “American Morning”

More details about Avandia:

Avandia (rosiglitazone maleate) is a GlaxoSmithKline (GSK) drug developed to treat type 2 diabetes mellitus. First approved by the FDA in 1999, the agency reported 8 years later a significant increase in the risk of heart attack in those patients to whom Avandia had been prescribed. And many deaths have been linked to Avandia. More recently, two independent studies showed that bone fractures, particularly in female patients, have been associated with this popular diabetes drug, while a third study has found a link between Avandia and liver failure.

Safety concerns and side effects that have been associated with Avandia include the following:

hypersensitivity
cardiac failure
hepatic impairment
macular oedema
bone fracture

In addition to these serious side effects, several other risk factors associated with consuming Avandia include: weight gain, cold, cough, headache, inflammation of sinuses, back pain, swelling, fluid retention and cardiac arrest.

If you or a family member have used Avandia and have suffered heart attack or liver damage after taking Avandia, please consult with an experienced malpractice lawyer ASAP so you can learn about your legal options. If you do not know an experienced malpractice lawyer, you can feel free to e-mail me at jreed@zifflaw.com.

Thanks, 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

NY Malpractice Lawyer Explains Difficulty of Determining the Time Limits to Bring a Claim

Posted on February 25, 2010 by Jim Reed

I recently had an e-mail from a concerned personal injury victim about his case. The writer is not a client of mine, but he was hoping I could give him some advice about the statute of limitations on legal malpractice claims.

I told him that the time limit to bring a legal malpractice claim in NY is “generally” 3 years from the date of the alleged malpractice by the attorney (ie the first date you feel the lawyer screwed up).

The reason I qualified this statement by saying “generally” is that there are a few, very limited exceptions to this 3 year time limit requirement (more on this below).

In this man’s situation, his case may be dismissed – and that could have been caused by legal malpractice by his own attorney. Through no fault of his own, this victim is looking at his case being dismissed before he even really gets started because the time limit to bring a NY legal malpractice case (3 years) has already expired.

The sad part is that he might not have any recourse because he was so caught up in his medical situation that he didn’t even know the applicable time limit for bringing a lawsuit against his lawyer. Now he has discovered that he may have to hurry up and file a legal malpractice case – if he can – before the 3-year window to bring a legal malpractice case closes.

He wanted to know if this was all the time his case had left – and if there were anything else he could do.

Statute of limitations in legal malpractice cases can be very tricky to determine and often are very fact-dependent.

My usual rule of thumb is to use 3 years from the date of the alleged malpractice. Any date other than that can become very risky because you are relying on exceptions to the general rule.

With that said, there is an exception generally referred to as the “continuous treatment doctrine” that is occasionally applied in medical malpractice cases. It says the clock doesn’t start to tick on the time limit to file a malpractice claim until the last date the defendant doctor continued to provide active treatment to the patient.

The corollary to this exception in the legal malpractice world is the “continuous representation doctrine” and it would suggest that the clock doesn’t start to tick on the attorney’s malpractice until the last date the attorney represented you on the particular matter that you allege he screwed up.

As I said before, these are general exceptions and the courts can be very strict in applying these exceptions to the facts of any particular case. Accordingly, competent malpractice lawyers prefer not to ever rely on these exceptions and try to bring the action within 3 years of the date of the alleged malpractice. I refer to this as the KISS principle: Keep It Simple, Stupid!

Because determining the proper time limit is so important (and fatal to your case if you do it incorrectly!), I urge anyone with a this issue to consult with an experienced malpractice lawyer ASAP!

I hope this helps.

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

NY Accident Lawyer Explains Why He Probably WON’T Take Your School Sports Injury Case

Posted on February 17, 2010 by Jim Reed

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

NY Injury Lawyer Urges: Protect Yourself And Your Patrons – From Treacherous Winter Walking Conditions

Posted on February 8, 2010 by Jim Reed

Over my 23 years of practice in Upstate NY and PA, I have handled my share of tragic cases due to falls on snow and ice:

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.