Top NY Court Questions Privacy On Facebook Posts, So Think Before You Post

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If you think your private Facebook account and its personal photos will never be exposed publicly, think again.

The top court in New York State recently ruled that parts of Facebook users’ private profiles are fair game to opponents in a lawsuit and can’t be shielded by privacy settings.

 

According to news reports, the Court of Appeals case in question involved a woman’s serious fall from a horse in a Long Island park in 2011. Kelly Forman sued the horse’s owner, claiming a strap attaching the stirrup to the saddle broke, leading her to fall. She said she suffered traumatic brain damage that has caused memory loss and difficulty communicating, among other problems.

 

Attorneys for Mark Henkin, the horse’s owner, wanted access to Forman’s Facebook account, saying they needed that to evaluate her credibility and injuries. A trial court granted access to private sections of her Facebook account, but an Appellate Division decision said Forman only had to show photos and messages she planned to reveal at her trial.

 

The Court of Appeals decision basically said Forman can’t decide what Facebook information can be revealed in her trial.

 

The case returns to the trial court now, where the horse owner’s attorneys can pursue Forman’s Facebook information.

 

The Court of Appeals, in the 7-0 opinion, compared social media material like Facebook photos to information kept in a file cabinet and said it should be available in a lawsuit if relevant.

 

NY Court of Appeals Chief Judge Janet DiFiore.

NY Court of Appeals Chief Judge Janet DiFiore.

Chief Judge Janet DiFiore compared Facebook information and medical records in writing for the court. If a patient commences a lawsuit, the patient may have to release private files if they pertain to the lawsuit, she wrote.

 

For example, if a person brings a lawsuit, the other side – the insurance company and their lawyers – often ask the person suing to see their Facebook postings, including photos. In some cases, they want to see why you are not able to do something now that you were able to do before.

 

Previously, NY courts have been specific that a defendant and their insurance company and their lawyers didn’t have a right to look beyond a person’s public settings in Facebook. If you permit everyone to see everything on Facebook, then defense lawyers and their insurance companies can see everything, too. But if you lock down your settings to friends only, posts were off-limits to the other side.

 

With the new ruling, the courts are not going to automatically allow access beyond a privacy setting. Trial judges will decide on a case-by-case basis if it’s appropriate for a defendant and their insurance company to see what was posted privately.

 

There is a very good reason for that decision: what the court is saying is just because you label something as “private” doesn’t necessarily mean that information is not relevant for the other side to be able to see. People often have to disclose private information in a lawsuit because the courts consider it relevant.

 

Here is the bottom line to remember from this case: there is no such thing as 100 percent privacy once you post something online.

 

Think before you post.

Thanks for reading,

Jim

___________________________________

James B. Reed
Best Lawyers’ “2015 & 2017 Lawyer of the Year”
NY & PA Injury & Malpractice Lawyer
Ziff Law Firm, LLP
Office: (607)733-8866
Toll-Free: 800-ZIFFLAW (943-3529)
Blogs: NYInjuryLawBlog.com and
            NYBikeAccidentBlog.com

Ziff Law Lawyers Fighting In Albany For NY Families

 

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Christina Sonsire and Adam Gee of the Ziff Law Firm recently went to Albany to fight for grieving families in New York State – like Craig and Melissa Storms, who lost their 2-year-old son in a hospital emergency room.

“Knowing that the same family could recover if they lived just across the border in Pennsylvania due to its strong wrongful death laws makes it even tougher for us to deal with families in New York,” said Adam Gee.

“Knowing that the same family could recover if they lived just across the border in Pennsylvania due to its strong wrongful death laws makes it even tougher for us to deal with families in New York,” said Adam Gee.

Christina and Adam lobbied with other members of the New York State Trial Lawyers Association in the New York State Legislature to fight for reforming New York’s 153-year-old wrongful death law, something the lawyers at Ziff Law have been doing for nearly a decade.

“We have been to Albany numerous times to fight for justice for those who lose a loved one due to negligence. It’s one battle we will never stop waging until the laws in New York finally improve,” Christina said.

Under the present wrongful death statute in New York, the assessment of damages is based almost exclusively on expected future income, something that is very biased toward the state’s highest-earning residents. Worse, New York is one of only seven states that do not compensate family members for their grief and sorrow.

“The reality is that New York law discriminates against people who are very young, retired or out of the work force, such as stay-at-home parents or people with disabilities,” said Christina Sonsire. “The families of people who are not actively engaged in the work force have little to no claim for wrongful death in New York.”

“The reality is that New York law discriminates against people who are very young, retired or out of the work force, such as stay-at-home parents or people with disabilities,” said Christina Sonsire. “The families of people who are not actively engaged in the work force have little to no claim for wrongful death in New York.”

“The reality is that New York law discriminates against people who are very young, retired or out of the work force, such as stay-at-home parents or people with disabilities,” Christina said. “The families of people who are not actively engaged in the work force have little to no claim for wrongful death in New York.”

Having to tell a family that we cannot take a case because their loved one’s life is worthless in the eyes of New York State law is a very difficult thing to do, Adam said. “Knowing that the same family could recover if they lived just across the border in Pennsylvania due to its strong wrongful death laws makes it even tougher for us to deal with families in New York.”

The tragic case of 2-year-old Zachary Storms highlights the discriminatory nature of New York’s wrongful death law.

Zachary’s story is heartbreaking.

Craig and Melissa Storms rushed their child to a hospital emergency room because they feared he may have ingested some red and blue dye from a child’s chemistry set.

They did all the right things. They consulted with the American Association of Poison Control Centers, which recommended, to be safe, that they take the child to a local hospital for precautionary treatment.

Things turned nightmarish quickly.

The Poison Control Centers urged “observe-only” to the hospital, but instead, the doctor forced young Zachary to drink an activated charcoal solution. He vomited and refused to drink more and the hospital put a gastrointestinal tube down his throat and poured so much liquid that it filled his throat, stomach, and lungs, killing him almost instantly.

“He was running around the emergency room, playing. Then he was dead,” said Melissa Storms.

“This is about justice and holding the people who caused his death accountable,” said Craig Storms.

However, New York’s wrongful death law only values financial loss, not human loss. A toddler, Zachary clearly was not earning any income, and his young age made it too speculative to project what he would make in the future. Therefore, under New York’s current wrongful death law, Zachary’s life was worthless.

When Congress established the Sept. 11th Victim Compensation Fund, it circumvented the law so surviving victims and victims’ families could be properly compensated. “Congress understood New York’s law is antiquated, and doing something like denying compensation to the parents whose children died that day was just wrong,” said Christina.

It’s time for New York State to do the same and take a giant step toward civil justice reform.

The lawyers at the Ziff Law Firm will not stop fighting for families until New York State changes this law.

Contact your local state representative and tell them about Zachary and why it’s important to modernize the state’s wrongful death law.

Thanks for reading.

Jim

___________________________________

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

 


Doctors Struggle To Curb Patients Who Pose Serious Danger To Other Drivers On The Road, Says NY and PA Medical Malpractice Lawyer

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Doctors face a daunting challenge when they are treating a patient who is impaired or has a disability that makes that patient an unsafe driver.

the-information-age-has-enabled-doctors-to-view-patient-data-on-laptops-_1508_608708_0_14091474_500Many doctors will want to get the patients’ keys away from them quickly and without incident, but they have to take great care not to breach that patient’s confidentiality.

Doctors shouldn’t notify the New York State Department of Motor Vehicles without talking with the patient, and with the patient’s permission, notify their family and the DMV, unless the patient has already done so.

Those are some of the key conclusions discussed in a story in the Spring 2016 Dateline newsletter published by the Medical Liability Mutual Insurance Co.

According to Donnaline Richmond, counsel to the company, doctors need to document every step they take to protect themselves and their employer.

Doctors know patients will rarely do what’s required and report a disabling condition to the DMV, Richmond said. So doctors need to inform and warn patients of the risk of their medical condition – and fully document those warnings.

According to Richmond, among the steps doctors should document:

  • How medication or a medical condition make it unsafe for the patient to drive.
  • All attempts to communicate doctors’ concerns to the patients and their families, and their attempts to gain consent from patients.
  • All DMV paperwork completed for the patient, once the doctor has the patient’s written authorization.
  • All phone records from calls to patients and their family members regarding the patients’ inability to drive.
  • Patients’ written authorization to release medical information.
  • Reports to the Commission for the Blind and Visually Handicapped, if it applies.

Thanks for reading.

Christina Sonsire
[email protected]

 

 

 

 

 

 

 

 

 

 

 

 


Ziff Law’s Christina Sonsire Wins $2.1 Million Medical Malpractice Award For 7-Year-Old Girl

Attorney Christina Sonsire of the Ziff Law Firm has won a major medical malpractice verdict in an Otsego County court for a 7-year-old girl who suffered a birth injury.

Christina Sonsire.

Christina Sonsire.

The girl and her parents were awarded $2.1 million by a jury Tuesday evening at the conclusion of a three-week trial. Christina was the trial attorney representing the family.

The jury of three men and three women determined the settlement in the Supreme Court of Otsego County in Cooperstown. Justice Donald Cerio presided over the case.

Attorney John Pollock of Binghamton represented the defendants, Mary Imogene Bassett Hospital in Cooperstown, Bassett Healthcare and certified nurse midwife Patricia Brown.

Here is Christina’s report on the trial:

The jury found that the midwives at the hospital did not provide appropriate prenatal care for the girl’s mother and midwife Patricia Brown caused the injury by pulling too hard on the baby’s head during delivery. As a result, the child has suffered a permanent injury to the nerves in her neck and has limited mobility in her left arm.

The case has national significance because the verdict involves an injury called Erb’s palsy, in which a newborn suffers paralysis in an arm during an abnormal or difficult childbirth or labor.

Attorneys across the country were paying attention to this trial because the defendants claimed this injury happened before the girl was born. The case will have significance in all future litigation of this type of case.

Renowned Long Island attorney Joseph Lichtenstein, of Mineola, N.Y., who was hired to represent the family and brought Christina in to try the case, praised Christina’s work in the courtroom.

“Ms. Sonsire brings a unique combination of talent, intelligence and drive to her work as a trial lawyer, as well as an acute sensitivity to issues involving women and birth trauma,” Lichtenstein said. “She was able to present this highly complex case in a way the jury could fully understand. She is truly remarkable.”

Christina worked day and night for more than a month to earn this incredible verdict. It goes to show you that when you combine hard work, intelligence and fearlessness, great things can happen. We are so happy for this little girl, who deserves compensation for the injuries inflicted upon her by medical personnel. She was lucky to have Christina as her attorney.

Thanks for reading!

Jim

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

 

 

 


Defective Hip Prostheses Cause Pain And Suffering For Patients, Says NY and PA Injury Lawyer

Hip failures caused by faulty medical implants will cost taxpayers, employers, insurers and others billions in the coming years, experts say.

A recent News York Times article discussed the very high costs associated with victims of failing artificial hip prostheses. The story is particularly compelling for me because I represent a number of local people who are suffering horribly with medical complications caused by defective hip prostheses:

  • A Hammondsport, N.Y.,  man who had the misfortune to receive the DePuy A.S.R. hip prosthesis that was recalled last year by its manufacturer, Johnson & Johnson. This poor fellow has already suffered through several surgeries in an unsuccessful attempt to replace the defective hip prosthesis but he continues to suffer significant ongoing complications.
  • A Bath, N.Y., woman who also had the DePuy A.S.R. hip prosthesis and who is suffering dramatically elevated chromium and cobalt levels in her blood.
  • Two women, from Corning, N.Y., and Big Flats, N.Y.

Although prosthetic devices can fail for a number of reasons (poor design, improper materials, improper installation, etc.), these particular cases involve hip prostheses that failed because of their metal-on-metal design.  Metal wear due to metal grinding on metal causes small flakes of metal debris to contaminate both the artificial joint and the patient’s bloodstream. This metal wear causes premature failure of the hip joint itself and has the nasty effect of causing all sorts of medical complications due to the metal contamination.

It is important to note that in our cases we are NOT claiming that the doctors who performed the surgery to implant the prosthesis were negligent. Our claims are against the manufacturers like Johnson & Johnson, who released a defectively designed product without performing appropriate long-term testing or otherwise confirming that the prosthesis as designed was safe.

The New York Times story points out a staggering toll from this failure:

  • “Until a recent sharp decline, all-metal implants accounted for nearly one-third of the estimated 250,000 hip replacements performed each year in the U.S.
  • Some 500,000 people have received an all-metal replacement hip!
  • “Medical and legal experts estimate the hip failures may cost taxpayers, insurers, employers and others billions of dollars in the coming years.”
  • Lawsuits and complaints against the makers of all-metal hip replacements have passed the 5,000 mark.
  • Private insurers are warning patients that they plan to recover their expenses from any settlement money the patients receive, and Medicare expects to try to recover its costs, too.

The New York Times reporter also answers readers’ questions about the story here. And there is also a graphic here that explains why the implaints fail.

If you or someone you love in Elmira, Corning and the Twin Tiers has an artificial hip, be sure they are checked by their medical doctor to see whether they have an all-metal implant that could cause them major medical complications.

Thanks for reading.

Thanks, Jim

_________________________________

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


Maps Of Road Fatalities A Reminder Of Toll Of Distracted Driving, Says NY and PA Accident Lawyer

Check out where fatal accidents have occurred in your community in recent years.

A United Kingdom transportation company has created a website that allows anyone to track road fatalities in the United States by location, including in Elmira, Corning and the Twin Tiers.

You can find the exact scene of an accident that led to a death between 2001 and 2009. I drilled down to the local fatalities in Elmira, Horseheads, and Corning and learned that I handled a large number of the wrongful death cases displayed on the local map.

I have worked on many cases in the last 26 years, and each of the little dots is a reminder of what I know to be devastated family and friends. … The 14-year-old cyclist mowed down by a hit-and-run driver, the elderly pedestrian hit by a driver who admitted she was busy adjusting her radio and on and on ….

It’s very unsettling and sad.

But it’s important that everyone take a look at the map of their community. Notice where people died when you look at the map of Chemung County — Lower Maple Avenue in Elmira, County Route 64 in Big Flats, Interstate 86 and the Miracle Mile (Corning Road) in Horseheads. Look at the grouping of fatalities, on I-86, Route 352 and Route 64. Those are high-traffic areas where everyone should be their most vigilant. Those should be no-distraction zones, and that means turning the radio or CD down, too!

Some of the fatalities were pedestrians, some were drivers or their passengers, and some were on motorcycles or bikes. Yes, it’s important to know where the most dangerous spots are in Watkins Glen and Southport and Pine City, then south to Towanda, Sayre and Athens, Wellsboro and Mansfield.

But there is a larger lesson here.

The maps serve as a stark reminder to all of us to SLOW DOWN and PAY ATTENTION TO THE ROAD. Shut off the cell phone. Cut down the chatter. Be vigilant. Live in the present.

Respect the lives of others, and be mindful of the dangers around you. Distracted driving kills. Next time you’re on the road, think of the people lost in accidents on that map.

Please have a safe and joyous holiday season free of heartbreaking accidents.

Thanks for reading.

Thanks, Jim

_________________________________

James B. Reed
NY & PA Injury & Malpractice Lawyer
Ziff Law Firm, LLP
Mail to: [email protected]
Office: (607)733-8866
Toll-Free: 800-ZIFFLAW (943-3529)
Web: www.zifflaw.com
Blogs: NYInjuryLawBlog.com and
NYBikeAccidentBlog.com


Fatal Franklin Township Crash Offers Two Lessons for Drivers, Explains NY & PA Personal Injury Attorney

CB064247I was shocked and saddened when I read the news of a fatal auto accident early Friday afternoon in Franklin Township. The driver, a woman from Monroeton, drove into the side of a church. She lost her life and a passenger in her car was injured badly enough to warrant his transport to a hospital in Philadelphia.

What happened? According to police, the driver, 66-year-old Gloria E. Morse, drifted into the wrong lane, then over-compensated by veering back so sharply that she lost control of her vehicle. A complete description of the accident, as reported by The Daily Review, “Monroeton Woman Killed When Car Crashes Into Church”, is pasted below. To compound the  tragedy of the crash, Morse was not wearing her seat belt.

This sad accident teaches two important lessons, one of which I have harped on many times—ALWAYS wear your seat belt—and a new subject but an important driving tip—Be very careful in correcting when your tires mistakenly travel on to the shoulder.

Over the years, I have handled countless car crash cases involving fatalities and serious injuries that were caused by a driver “over-correcting” when their wheels drifted off on to the shoulder.

Driving instructors teach that your driving movements must always be smooth and fluid because it is the abrupt turn of the wheel that causes the driver to lose control of their car. We often see this phenomena when driving in the snow or rain.

The bottom line is that when you encounter any slipping or sliding of your vehicle that you react coolly and deliberately to regain control of your car. Resist the temptation to abruptly spin your steering wheel in the opposite direction. SMOOTHLY turn your steering wheel to bring you back to your proper direction of travel.

Some of you may be wondering if the injured passenger, William Buckley, would have a valid lawsuit against the insurance company for the driver. The short answer is Yes. As a person injured as a result of the actions of the negligent driver, a passenger has a right to bring a claim against the driver’s insurance company.

Thanks for reading. Be sure to read the full story about this accident below.

– 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:[email protected] http://www.zifflaw.com

E-mail me at [email protected] for two free books:
NY Car Accidents and NY Car Insurance Secrets YOU Need to Know.

“Monroeton Woman Killed When Car Crashes Into Church”

(The Daily Review, Towanda – James Loewenstein)

FRANKLIN TOWNSHIP – A Monroeton woman was killed when the car she driving struck a church in Franklin Township Thursday and partially traveled into the building, state police said.

Gloria E. Morse, 66, of Monroeton RR1 was driving east on state Route 414 at 1:43 p.m. when her vehicle drifted into the westbound lane of traffic, police said.

Morse over-corrected by steering to the right and lost control of her 2000 Buick LeSabre, police said.

The vehicle went off the south side of the road, traveled through a yard and struck the west foundation wall of the Franklindale Christian Church, police said.

When the vehicle came to rest, most of it was inside the church, and only the trunk and part of the rear passenger area remained outside the building, said Cpl. Roger Stipcak of the state police at Towanda.

A man who was a passenger in the vehicle, William Buckley of Canton, suffered moderate injuries in the crash and was transported by emergency medical helicopter to Robert Packer Hospital in Sayre, police said. A Robert Packer official reported that Buckley was later transported to Thomas Jefferson Hospital in Philadelphia.

Bradford County Coroner Thomas Carman said he pronounced Morse dead at the scene at 2:15 p.m.

Morse was not wearing a seat belt at the time of the crash, police said.

There was no one inside the church at the time of the crash, Stipcak said.

The car sustained heavy damage, police said.

Stipcak said it doesn’t appear that Morse was speeding. He said that alcohol was not a factor in the crash.

The church is located at the intersection of Route 414 and Preacher Brook Road.

James Loewenstein can be reached at (570) 265-1633; or e-mail: [email protected]


Seneca Lake Crash Offers a Frightening Reminder of Boating Risks

SenecaLakeHarbor-breakwall1June’s barely begun, and already there’s been a serious boating accident on an area lake.

WETM-TV recently reported that there had been a boating accident on Seneca Lake. “Two injured in boating accident on lake” (also pasted below), covered the basic details.

The accident happened Saturday night, and police are still investigating the cause at the time I write this. A family was out in a 25-foot Bayliner – two young teenagers alseep in a forward cabin, with mom and dad operating the boat. Perhaps she was unfamiliar with the layout of the lake, or there was some other cause – but Wendy Taylor ran into the breakwall near Cargill Salt in Watkins Glen.

Both Wendy and her husband William were hurt. Luckily their 12- and 14-year-old sons were unharmed.

I recently blogged about New York’s boating laws in a post titled “Know NY’s Boating Laws Before You Take to the Water.” There are many causes of boating accidents. Boat crashes are particularly dangerous because of the size and momentum of boats. They don’t stop and turn as well as cars do, and when there’s an accident, there’s more likely to be serious injuries. A plethora of emergency services had to come to the scene to help.

“Two Injured in Boating Accident on Lake”

WATKINS GLEN – The Schuyler County Sheriff’s Office is investigating a boating accident late Saturday night that injured two people.

Deputies say 32-year-old Wendy Taylor of Church Road in Reading Center was operating a 25-foot Bayliner on Seneca Lake when she ran into the breakwall in front of Cargill Salt near the mouth of the canal at Watkins Glen.

Taylor suffered a laceration to her left eye and a shoulder injury.

Her husband William Taylor, 35, sustained facial fractures. Both were transported by ambulance to Schuyler Hospital for treatment.

The couple’s 14-year-old son and 12-year-old nephew were asleep in a forward cabin on the boat and were not injured.

The boat was extensively damaged. The Watkins Glen Fire Department, Watkins Glen Police and state police assisted at the scene.

Thanks 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: [email protected]
www.zifflaw.com

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

MME035In 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:[email protected] http://www.zifflaw.com

E-mail me at [email protected] 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”.

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 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

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New York Accident Lawyer Explains Why Pursuing a Big Judgment May NOT Be a Good Idea

You would think if you are badly hurt in a car accident, it would make sense for you to pursue a BIG judgment against the driver who hit you, right? Not necessarily…

A recent dialogue with a client  got me thinking about how backwards it may seem to folks when I tell them that I cannot recommend taking their case to trial because they may be better off taking the insurance money – even if that insurance money clearly is not sufficient to fully compensate them for their injuries.

Heck, if the insurance money isn’t enough, why wouldn’t you want to get a judgment against the bad guy and then collect the money directly from the bad guy?car-insurance

The short answer is that sometimes judgments aren’t worth the paper they are written on. You have heard the expression “You can’t get blood from a stone?” Likewise, you can’t collect on a judgment unless the person against whom you have the judgment has some money or other assets subject to collection. The plain hard truth is that most often when a person does not have good insurance coverage, they also don’t have any real $ to collect against.

  • First, collection may be difficult/impossible because of the lack of assets. You may think, why not get a judgment anyways? What if the person who didn’t have the assets to settle a judgment suddenly hit the lottery or came in to a lot of money? Well, first we would have to know about his windfall – and he’s not going to make that easy. Then he’d have to be dumb enough to put it in a bank where we could reach the money – THEN we might be able to collect on the judgment.

However, collecting on a judgment is very tough and there are plenty of ways for a debtor to hide or shelter money from collection. In fact, I have a judgment for $400,000 I obtained 8 years ago and I have spent close to $30,000 on collection lawyers and we have yet to receive a single penny. For all of these reasons, pursuing a judgment doesn’t turn out to be the solution one would think…

  • Second – and this is related to the first point – we don’t get a penny of the money from the car insurance carrier unless we sign a Release releasing the driver from any personal liability. In other words, we are over a barrel – if we want the insurance $, we have to let the driver go. I know the insurance payment is only $25,000, but $25,000 is better than a possible zero.

Now, don’t get me wrong – the insurance will pay $25,000 toward the judgment, but that is all they would be required to pay. So that leads us to the third point…

  • Third, it costs money to pursue a judgment because to do so we have to go to trial and the average cost of a trial like this would be approximately $8,000-$10,000. This is just for costs (i.e. doctor’s testimony, court costs, transcription fees, etc.) and doesn’t include a penny of my fee. I hate the idea of eating up that much in costs when the maximum insurance coverage is only $25,000.

For all these reasons, I think pursuing a judgment is not always a good idea. Ultimately, however, it is the client’s decision and I will pursue whatever course he prefers. I just help him make an informed decision.

I hope this clarifies this issue for my blog readers. Please, if you have questions about this topic, don’t hesitate to call or e-mail me for more information.

Thanks,

Jim
_________________________________

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

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