Tragically, just 40 minutes can make the difference between a healthy baby and a little girl who will never walk, never talk, never feed herself, never have a boyfriend, never get married…

In this case handled by Elmira medical malpractice attorney Jim Reed, the Labor and Delivery nurses hooked the Mom up to an electronic fetal monitor and then left the Mom unattended for 40+ minutes. Unfortunately, fetal monitors are absolutely no good if no one is there to read the results….

That’s why the standard of care for labor and delivery nurses requires nurses to review the monitor strips for the first 20 minutes that the mother is placed on the monitor. If all is OK after 20 minutes, the Mom can then be left unattended for short periods of time. If the strips are not OK, then the nurse is trained to immediately intervene and summon a doctor if necessary.

In this case, a careful review of the medical records revealed that the mother had been left totally unattended for the first 40+ minutes she was placed on the fetal monitor. As you might have guessed, the monitor strips were bad meaning that the baby was in trouble and needed immediate delivery. The problem is that no one was in the room to hear read the results and respond to the baby’s cries for help. As a result, the necessary C-section to rescue the baby was delayed by more than an hour causing the baby to suffer profound brain damage (Cerebral Palsy). The baby was rushed from the Corning Hospital to the Neonatal Intensive Care Unit at the Arnot Ogden Medical Center in Elmira, but the damage was already done. The baby had a permanent brain injury called Hypoxic Ischemic Encephalopathy (HIE) which means that the baby’s brain was deprived of oxygen at birth. Read the rest…

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.

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

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

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

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

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

The three conditions set forth by the court are:

1. that the advice was incorrect,

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

3. that the plaintiff detrimentally relied on the advice.

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

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

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

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

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

Sincerely,

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

It is the little dark secret that peeks inside the courtroom through stoic-looking windows or the elephant in the room that no one is allowed to speak of, or reference, or even whisper in the presence of the jury. It’s taboo, prohibited, proscribed, the poster child of Orwellian Newspeak for modern day litigation. Say the word — one word — and you and your client are out. Quite literally.

What is the demonized word so carefully excluded from nearly all jury trials in the United States? You guessed it. The magic word is…(drum roll)…INSURANCE.

Anyone who has ever sat on a jury likely understands what I mean. Many jurors ask themselves throughout trial, “doesn’t the defendant have insurance?” And, most question why none of the attorneys are talking about the defendant’s insurance policies.

Let me put a few things to rest:

1. Yes, the defendant has insurance. Although this is not true all of the time, in nearly ALL cases the defendant in a personal injury or malpractice case has insurance coverage — and plenty of it. The reason is simple: lawyers are not going to put their clients through lengthy litigation and invest hundreds of hours of work hours into a case unless there is a reasonable likelihood their client is going to be able to recover just and fair compensation at the end of the day. In other words, most lawyers avoid Read the rest…

WETM-TV reported the story below about a recent trial verdict in Steuben County, Bath, NY. This is not a case handled by our firm and I am trying to contact the Corning attorney who represented the injured woman to see what happened in the case. Stay tuned for more info.

You may wonder, why do I care about a care about a case handled by another lawyer? Pretty simple. As trial lawyers we often learn a lot by finding out what went wrong for another lawyer in another case. Likewise, when there is a big verdict for the injured party, we learn by finding out what went right. The bottom line is that to be an effective trial lawyer, you have to be learning all the time…..

Thanks for reading,

Jim Reed
NY and PA Injury and Malpractice Lawyer
jreed@zifflaw.com

Jury Rules City Not Responsible For Police Car Crash

A New York State Supreme Court jury has ruled that the City of Corning is not responsible for the injuries a woman suffered when her car collided with a police car. That’s according to the attorney representing the city in the case, Andrew Schwab.

The crash happened three years ago at the intersection of Bridge and Pulteney Streets. Schwab says 21-year old Maurica Tallarida was seeking over a million dollars in damages in the civil trial. She was ticketed for failing to yield the right of way but a Corning City Court judge threw out the ticket, citing witnesses that said it was the police car that ran the red light.

The Supreme Court jury ruled that the officer was not negligent. We were unable to reach Tallarida’s attorney for comment Friday night.

“A stitch in time saves nine.” I never really understood this proverb when I was growing up, though I certainly heard my father use it on more than one occasion as he cautioned me to take my time before embarking on a new endeavor.

As a personal injury attorney in the Elmira/Corning, New York area, I have now come to understand the true wisdom behind those words, especially when it comes to automobile maintenance. Accidents certainly do happen, but general awareness of basic automobile maintenance can go a long way toward preventing personal injuries and saving lives. Although I do not profess to be an expert mechanic in any way, I have decided to post basic auto tips periodically this summer to inform – or more likely, remind – readers of simple steps you can take to protect your families from injuries sustained in automobile accidents.To many people summer is synonymous with road trips and family vacation, and I hope my tips will help readers stay safe when hitting the roads.

Tip #1 – Check your Tires

Today is my parents’ 40th wedding anniversary. My father, ever the romantic, decided to take my mother to the Sherwood Inn in Skaneateles, New York for a little getaway. Alas, as my parents pulled out of Horseheads to begin their journey, they got a flat tire. Luckily neither was injured and my dad had the tools to change the tire, though they may have been “spared” (I couldn’t resist) a short delay if only my dad had followed his own advice and checked car before getting on the road.

Tires are crucial to vehicle’s handling, traction, and stability, and can cause an automobile to loose alignment if they are not in proper working order. In general, you should check each of tire periodically, or about once a month.

When checking your tires, first look for obvious defects and damage, and visit a professional if anything looks seriously amiss.

It is very wise to carry a tire gauge in your automobile at all times, and you should check the pressure in each of your tires every time you check them. Tire pressure changes due to a variety of factors, though they are most commonly affected by changes in weather or air temperature. A decrease in air temperature often causes a loss in tire pressure, while an increase in air temperature often causes a gain.

Each vehicle has its own recommended air pressure, and information about it can likely be found in your vehicle’s owners manual. Although a tire’s maximum pressure is listed on its in fine print, you should never use max pressure as a guide when filling your tires because over-inflation allows tires to puncture more easily and can create instability for your automobile.

As an avid bicycle rider, I realize the importance of checking the pressure of my bike’s tires before every ride I take to avoid an accident (and make the ride more enjoyable!) Although checking a vehicle’s tires before every trip may be a bit overly onerous, it is something all of us could do a bit more frequently in order to stay safe.

Thanks for reading,

Christina Bruner Sonsire

Calling all Constitutional Law Junkies: June 26, 2008 was a monumental day.

It is not often (yet more frequent these days than is perhaps appropriate) that the U.S. Supreme Court authors a decision in which it offers — in nearly 150 pages of disparate, arguably subjective detail — overtly telepathic insight into the minds and hearts of the framers cast under a thin, unimpressive veil of stare decisis. A day to celebrate? Perhaps, as it was for the N.R.A. supporters and the libertarian crowd who view the District of Columbia, et. al. v. Heller through a narrow pragmatic lense as a promotion of individual liberties (and security that they can keep their guns.) A day for outrage? Apparently for a “frightened” Mayor Daley, as he trumpeted the call to fight for the right to ban guns in his hometown and plans were made to challenge similar laws in megapolises across the country.

I felt something in between. I feel scholastic excitement, to be sure. Heller , like Bush v. Gore, will certainly endure as a landmark case in Constitutional Law 101 for centuries to come. The majority opinion, authored by Justice Antonin Scalia and joined by Justices Roberts, Thomas, Alito and Kennedy, is bursting with interesting (if somewhat trivial given Scalia’s general predisposition against extra-four corners constitutional analysis) historical references — James Madison’s inclusion of a conscientious-objector clause in his original draft of the Second Amendment; E. de Vattel’s 1792 “The Law of Nations, or, Principals of the Law of Nature”; England’s 1671 “Game Act”; and, of course, the mighty and ever-persuasive Federalist Papers. (As a reverent admirer of the Papers, Read the rest…

In a world seemingly dominated by all-encompassing HIPAA protections (i.e. the dozens of forms you are asked to sign when treated in the hospital) and daunting HIPAA fears (i.e. your boss’s warning that you cannot repeat, recite nor should you even remember information you learn from HIPAA sensitive documents while on the job,) the question inevitably arises: What can I do if I feel my so-called “HIPAA rights” are violated?

Proper analysis of that inquiry requires a basic understanding of Health Insurance Portability and Accountability Act of 1996. (A complete copy of the HIPAA statute can be found at http://aspe.hhs.gov/admnsimp/pl104191.htm.) Read the rest…

Alternative dispute resolution (or ADR for short) is being increasingly pushed by the judiciary and insurance companies involved in civil litigation. The Federal courts even have pilot programs where ADR is mandated before a case can proceed to trial. The question for the personal injury attorney and client is whether ADR is a good thing.

There are three different methods of ADR presently in use in New York. They are mediation, arbitration and summary jury trials. Mediation and arbitration are by far the two most common, but summary jury trials are also increasing in frequency. Mediation is a process by which all parties agree to meet with a mediator. The mediator does not have authority to determine any issues, but merely tries to foster agreement among the parties and broker a settlement. The mediator has no interest in the outcome of the case, and acts as a neutral third party who looks at the potential evidence with the clear eye of someone not personally involved in the litigation. A skilled mediator can help each side to see their potential problem areas, and arrive at a reasonable settlement figure in light of the strengths and weaknesses of their case. If at the end of the mediation no agreement is reached, the case proceeds to trial.

Read the rest…

It’s that time of year again. The days are getting longer, the weather is getting warmer and the runners and cyclists are getting restless-er. However, a word to all wise dog owners – make sure your pet does not follow suit and, following a lazy winter of prolonged naps and indoor play, become caught up in the spring fever and use all of his pent up energy to harass – or worse, injure – an innocent passer-by.

New York law imposes a high standard on dog owners, particularly owners of dogs that have ever shown “vicious propensities,” (legalese for prior displays of mean, unruly and aggressive behavior.) As a dedicated marathoner, I must say I am glad the law seeks to hold pet owners responsible for misdeeds, yet as a former and likely future dog owner, I recognize the necessity for understanding the basics of New York’s dog owner liability doctrine to avoid legal entanglements.

In brief, under New York law a dog owner is potentially liable for injuries his dog causes to another person if Read the rest…