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.

Attorney Jim Reed recently posted a very informative blog about school-sports injuries at “NY Accident Lawyer Explains Why He Probably Won’t Take Your School Sports Injury Case.”  However, if you’re injured while participating in work-related athletic activity you may very well have a Workers’ Compensation case.

You might have a Workers’ Comp case if you’re injured when the employer required you to participate in the athletic activity, the employer compensated you for participating in the activity or the employer otherwise sponsors the activity.

I’m certainly not interested in discouraging employers from sponsoring athletic activity.  I am encouraging employers to keep safety in mind.  For example, some time ago the folks at the Ziff Law Firm got together for some firm sponsored paintball.  Anyone who knows anything about paintball will tell you that you can, and often will, get injured playing paintball.  Beyond that, given the competitive nature of folks at this firm, permanent disabilities were likely.  I encouraged Jim Reed, the firm’s managing partner, to make sure good safety equipment was available and used.  I’m happy to report that no employees of the Ziff Law Firm were seriously physically injured :  )

If you’re injured while participating in work-related athletic activity, protect yourself and talk to an attorney.

Thanks for reading,
Eric

____________________________________________
Eric L. Johnson, Esq.
Workers’ Compensation and Disability Attorney
Ziff Law Firm, LLP
303 William St., Elmira, NY 14901
Tel: (607) 733-8866
Fax: (607) 732-6062
Toll Free: 1-800-943-3529
Email: ejohnson@zifflaw.com
Web: http://www.zifflaw.com
Twitter:  http://twitter.com/AttorneyEric
Admitted to practice in New York and North Carolina

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.

There was an inaccurate statement in my blog post yesterday “Good News for NY Workers’ Compensation Claimants and Physicians.” In my rush to get that information out, I didn’t read the Board’s release as closely as I should have and I apologize for that. I got an email this afternoon from Joseph Cavalcante, Assistant Director of Public Information for the NYS Workers’ Compensation Board, informing me about my error. I thank Mr. Cavalcante for reading and letting me know about the inaccuracy.　

My statement should be corrected to read “as a measure to deal with that shortage, Mr. Beloten temporarily rescinded the mandate that AUTHORIZED providers IN THE PROVIDER TEMPORARY SHORTAGE AREA file a C-4 form in order to be paid for seeing claimants. With regard to the rest of New York, authorized providers may file the new or older versions of the C-4. Doctors outside provider temporary shortage area are not authorized to submit the CMS-1500 as a result of this subject number.”

In short, only providers in the temporary shortage area are relieved of having to file C-4 forms. However, the good news for any provider statewide is that they have the option of filing the older and easier C-4 form and still have their bills enforced by the Workers’ Compensation Board.

Being in a rush is a pitfall of having a busy practice area such as Workers’ Compensation, but I’m not going to make any excuses and I do apologize for any inconvenience this may have caused.

As always thanks for reading,
Eric

______________________________________
Eric L. Johnson, Esq.
Workers’ Compensation and Disability Attorney
Ziff Law Firm, LLP
303 William St., Elmira, NY 14901
Tel: (607) 733-8866
Fax: (607) 732-6062
Email: ejohnson@zifflaw.com
Web: http://www.zifflaw.com

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

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

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

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

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

Veterans of the Game – so far

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

Adam Gee and Brett York.

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

Christina Sonsire and Matt Fogarty.

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

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

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

Thanks for reading,

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.

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

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

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

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

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

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

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

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

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

Thanks for reading!

Christina Bruner Sonsire, Esq.

The Ziff Law Firm is proud to announce that Adam Gee, one of our injury and malpractice attorneys and an author of this blog, was recently added to the faculty of Solo Practice University™ . Solo Practice University™ is a web-based educational and professional networking community for lawyers and law students. Adam will be teaching a class on one of his favorite areas of practice, motorcycle accident law. Adam is the author of a book on motorcycle insurance entitled “Would You Ride Your Motorcycle Naked?”

“Motorcycle collisions have become an important part of my practice, and I learned very quickly that motorcycle collisions aren’t like other automobile cases” explains Adam. “The biggest mistake an attorney new to handling motorcycle cases can make is assuming the way they handle a car crash will work in a motorcycle case; the rules are different, the people are different, the science is different, and the attitudes of the insurance adjusters and jurors are different. Recognizing this at the front end is key to obtaining a just result for your client at the conclusion of your case.”

When asked why he agreed to join the faculty of Solo Practice University™, Adam explained there were two major reasons. “First, I want to do whatever I can to make sure that bikers receive top notch representation. If I can help other attorneys across the country avoid some of the pitfalls and overcome the problems I have discovered in handling these case, I feel it is my obligation to share that information. Secondly, I fundamentally agree with the message and purpose of Solo Practice University™. Law school teaches you how to think like a lawyer. They teach you how to read and analyze cases, where to find the law, and give you the very basics in a number of different areas of practice. The scary reality is that law schools are horrible at teaching you how to actually practice law. Solo Practice University™ bridges that gap by allowing experienced attorneys to give real world instruction on finite areas of law. This is what law schools should be teaching their students.”

Please visit Adam and a host of other great attorneys as they teach the topics they know best at Solo Practice University™.

For the next 30 days, in the spirit of Trick or Treat and good fun, the Ziff Law Firm will send a batteryless flashlight to any New York resident who can post as a comment to this blogpost, an original good reason why a represented Workers’ Compensation claimant should talk to any representative of the insurance company.

The flashlight is pictured in this post. It doesn’t require batteries and don’t ask me how it works. It’s approximately the size of a business card, but gives off a surprising amount of light.

My 5th Commandment of Comp is: Do not talk with insurance company claim representatives or investigators. Inform them that you’re represented and let your attorney talk to them. I said that in my “10 Commandments of Workers’ Comp” and I stand by that statement.

I issue this challenge in the spirit of good fun and I promise to use good faith in deciding whether or not an answer qualifies for a flashlight. As I said, to qualifiy the answers have to be posted as original comments to this blogpost.

By the way, I didn’t talk to my managing attorney about this so I reserve the right to withdraw this offer if he pitches a fit. I don’t expect to send out a single flashlight, but I look forward to any and all comments.

Good luck and thanks for reading,
Eric

___________________________________________
Eric L. Johnson, Esq.
Workers’ Compensation and Disability Attorney
Ziff Law Firm, LLP
303 William St., Elmira, NY 14901
Tel: (607) 733-8866
Fax: (607) 732-6062
Toll Free: 1-800-943-3529
Email: ejohnson@zifflaw.com
Web: http://www.zifflaw.com

From time to time, I ask other folks who work in the “injury” world — doctors, lawyers, physical therapists, insurance agents, etc. — to guest post on the NY Injury Law Blog.

Below is a guest post from Stephen Nagle, a local Allstate agent who has been selling insurance for 20+ years in the Elmira, Corning and Horseheads area.

While I joke that anyone from the insurance industry is my sworn enemy from the “Dark Side,” because I spend 95% of my day fighting to make sure insurance companies fairly settle my client’s claims, the bottom line is that insurance agents play a very important role in ensuring that people have the proper insurance coverage to protect them in the event of damage to a person or property.

Stephen does a great job explaining why it is so important to make sure your boat is properly insured:

The first thing that people think about when they look for insurance is how to cover the “value” of something they own: the home, car, boat, etc. If there is a loan or promissory note out on the value of the object they need to have coverage to indemnify the lender in the case of a loss.

The second thing people think about is their liability exposure related to use or ownership of the home, car, boat, etc. If what they own has little value or no loan, people do not think about their exposure to a lawsuit that could come from use or ownership of the “thing.” Studies show that people view it as an inconvenience to have liability coverage until they understand what they are protecting. If you have a vehicle of any sort, you have a liability exposure that you need to protect, particularly if you have a boat.

As an insurance agent for more than 20 years I ask my customers to think just a little differently. Sure, they need coverage for the value of a loan, but the value of the loan is usually less than the value of their future earnings. The “thing” that is lost is replaceable for an attainable price. The bank gets paid and the insurance company tries to restore the client to being whole.

However, if they are found legally responsible for damage to a third party there is a need to protect earning value far greater than the value of their things. In New York state, people need liability coverage to register a car whether or not they need coverage on the car itself. They give little thought to the value of the liability and other underlying coverage that could pay bills far and away more expensive than replacing the car.

Years ago, an elderly fisherman came into my office with his wife. He was eager for me to explain to his wife why he didn’t need coverage on his old fishing boat and his wife was just as eager for me to explain to him why he did. He didn’t want coverage on the boat, it was “only” worth about $5,000 and he had heard that his boat liability was covered by his homeowners policy. He recognized the need because he often had friends on board. He could hit another boat or damage a dock. Sometimes he took grandkids and their friends waterskiing or tubing – what if they were injured while having fun? He could be held responsible for a fuel spill if he dumped oil or gas overboard while fueling or transferring fuel.

He was partially correct. Homeowners policies extend liability to cover small boats subject to policy provisions which vary from company to company. It is typical to see coverage for boats under 50 HP with inboard/ inboard-outboards motors or under 50 HP for outboards and to sailboats under 26 feet. We reviewed his policy and he realized that his older cuddy cabin 21 footer with a 185 HP I/O was not covered.

A $500,000 liability policy covering anything for which he could be held legally liable with optional coverage for $5,000 med pay turned out to be less than $100 for a year. Full coverage for damage to the boat for ACV up to $5,000 was an additional $86. Needless to say, he took the full package. We wrote a personal umbrella policy for him as well, but that is another story.

- By Steven Nagle, Allstate Insurance in Horseheads. (607) 739-7991

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

An unfortunate local story points out a big problem with newspapers’ transformation into online information centers with 24/7 commentary from anyone with free time.

Journalists are compelled by the law, ethics – and job security- to supply correct information to the public – and their names are on the stories they write. The public isn’t under the same obligations, and has the anonymity of user names. Malicious, even just careless remarks can be attached to news stories, to linger on the Web indefinitely.

The local story I referred is that of a teenage employee at the Corning YMCA falsely blamed for an awful crime on a newspaper’s website – not by the newspaper or the police, but by a citizen commentator. WETM published the tale online with the title “YMCA Employee Wrongly Named” (Meagan Kolkmann, 8/13).

The teen was falsely named as the employee arrested last week for having pornographic photos of children supervised at the YMCA.

The actual 18-year-old perpetrator, also accused of sexually assaulting a 2-year-old girl he was related to, was arrested and charged (though he’s currently out on bail).

The Corning YMCA sent a letter to parents after the false online accusation. The letter stressed three key points:

• The YMCA plans to review its employee screening process and supervision guidelines for the Child Watch program and the entire organization.

• YMCA employees are “shocked and saddened” by the betrayal of trust by the guilty employee.

• The teenager falsely named had nothing to do with the crime. J.D. Young, president of the YMCA board and the letter’s author, calls him a “dedicated employee and a great human being.”

Whoever wrongly pointed the finger at the poor kid may be facing a big lawsuit. Online, lies can spread quickly and be promulgated by people who don’t think it matters if they don’t have all the facts. A well-publicized lawsuit might make them think differently.

Thanks for reading,
Jim
_________________________________________
James B. Reed, Esq.
New York Accident 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