Central New York Injury Lawyer Blog

Even New York State Inmates Have The Right To Sue For Medical Malpractice

February 24, 2015 | by Michael Bersani

Yes, even convicted criminals have rights. Including the right to bring a New York personal injury or medical malpractice claim. An inmate has a right to competent medical care while under the custody of the prison authorities. If the prison medical team screws up, and causes him harm, he can sue for compensation. At Michaels Bersani Kalabanka we get letters from inmates at the Auburn State maximum security prison (just around the corner from our main office!) all the time. We reject 99% of those cases either because there was no real malpractice, or because the injuries are too minor to bother with a lawsuit against the State. But every once in a while an inmate has a legitimate claim for real serious injuries.

Case in point: In Black v. State of New York, a prison doctor, after examining an inmate complaining of cervical neck pain, and after reviewing an MRI, correctly concluded he was suffering from “spinal stenosis“, a condition in which the narrowing of the spinal canal exerts pressure on the spinal cord, and myelomalacia, a softening of the spinal cord. The physician correctly noted the condition was serious and even dangerous, and justified an expert consultation, but did not realize that it required immediate emergency surgery to prevent paralysis. While awaiting approval for a neurological consultation, the inmate re-injured his cervical spine when he fell in his prison cell. The inmate ended up paralyzed from the chest down. Timely surgery would have prevented this from happening.

The Appellate Division, Fourth Department (Rochester, NY appellate court) recently upheld the Court of Claims’ $15 Million medical malpractice verdict on behalf of the estate of the now deceased inmate.

The Mental State Of “Negligence” In New York Personal Injury Cases

February 3, 2015 | by Michael Bersani

I came across this lawyer advertising billboard on the web and couldn’t convince myself NOT to post it on my blog. So now I have to justify posting it. I am going to somehow tie this sign into New York personal injury stuff. Just wait and see!

When you think about it, the sign is not just funny, or a sad statement about sleazy lawyering, it is actually true. You may have done the act you are accused of doing, but nevertheless be “not guilty” of the crime for a variety of reasons. For example, Bob Marley may have shot the sheriff, but if it was in self-defense (or if he was insane, or if the gun went off by mistake) there may be no “crime”.

When deciding whether a defendant committed a “crime”, the law looks not only WHAT he did but WHY he did it. What was going on in his head as he did the act? That’s what lawyers call “the mens rea“, i.e., the mental state. If the defendant kills someone deliberately with premeditation, that’s a more serious crime than if it was just careless. And if it was in self-defense, then it was no crime at all.

Cuomo Wants To Nix NY State Website That Helps Patients Doc Shop And Avoid NY Medical Malpractice

February 2, 2015 | by Michael Bersani

If you wanted to hire a driver to drive you on a long trip, would you want access to an easily searchable website where his and other licensed professional drivers’ traffic convictions and accidents were posted?

If your answer is yes, then safety is important to you. And I assume that, if you were going to have major surgery, you would also like an easily searchable website that gives you details about your surgeon’s medical malpractice records, hospital affiliations, and other background information.

Right now, New York State has such a website. It was mandated by a year 2000 Statute, which was passed in response to several high profile medical malpractice failures by doctors with bad – but not easily discoverable – track records.

Does Senate Minority Leader Harry Reid Have A Products Liability Claim?

January 31, 2015 | by Michael Bersani

It’s all over the news: Seventy-four year old Senate Minority Leader Harry Reid’s power workout “backfired” on him. Literally.

In a freak accident, the senator was using an “elastic exercise band” to do some kind of exercise in his bathroom, with the band attached somehow to his shower door. As he “flexed”, the band “snapped” and sent him flying across his bathroom floor where his face met some cabinets. He suffered such severe facial injuries that he risks losing the sight in one eye. He also broke a number of bones around his right eye and four ribs. See photo!

Ouch!

Are Winter Car Accidents The Drivers’ Or God’s Fault? Central NY Car Accident Lawyer Explains.

January 30, 2015 | by Michael Bersani

I just read about a spectacular rollover crash on Interstate 690 in Geddes, NY (near Syracuse) a few hours ago. Fortunately, there were only minor injuries.

I don’t usually blog about local accidents, but I did want to make folks aware that – even though the heavy snow we have been getting is partially to blame for this kind of car accident, New York car accident lawyers routinely bring these kinds of claims successfully against the drivers of the out-of-control vehicles. Yes, insurance defense lawyers often raise the “act of God” defense to weather related accidents. But that defense usually works only where the driver is totally blameless, which is hardly ever the case.

Always remember that you, as the driver, have an absolute duty to your passengers and to other motorists or pedestrians to KEEP CONTROL OF YOUR VEHICLE. Usually, “the road was real icy” or “I hit a snowy patch” are not valid excuses in Court. The only exception usually is where there was no ice or snow anywhere on the roadway before you hit a patch. If you already know there is snow and ice on some areas of the roadway, you have a duty to drive at a speed and in a manner that allows you to control your car even given those conditions.

Emoticons Can Be Important Evidence! CNY Personal Injury Lawyer Explains.

January 29, 2015 | by Michael Bersani

A spurned man was recently on trial for posting threats against his ex on FACEBOOK. His defense? The “threats” were just a joke, and she should have known it. To support this claim, he pointed to certain emoticons (a facial glyph, used especially in e-mail and online posts, indicating an emotion or attitude) that accompanied the “threats”. For example, there was one of a face with a tongue sticking out. This emoticon meant the “threats” were in jest, he claimed.

The prosecutor wanted the threatening posts “read” to the jury, but the man’s lawyer – wisely – wanted to bar any open court “reading” of the posts. He wanted the jury to only SEE the posts so they could take into account emoticons. The man’s lawyer argued that it would be unfair to merely read in court the posts because the accompanying emoticons could not be “read” aloud. The jury would hear the “threat” without “hearing” the accompanying (and mitigating) emoticon. The posts had to be SHOWN and only SHOWN to the jury!

The lawyer had a point. Certain forms of writing — like repeated question marks (“???”), distorted words (like “soooo”) and emoticons — can’t be reliably or adequately conveyed orally. To do so distorts the meaning.

If You Want To Bring A New York Wrongful Conviction Claim You Need Clean Hands

January 26, 2015 | by Michael Bersani

If you’ve been wrongfully convicted of a crime, and you want to be compensated for it, you need to explore several legal avenues of redress. If there was some government wrongdoing – on behalf of the police, prosecutor, or judge — you may be able to bring a case based on “malicious prosecution” or based on deprivation of civil rights (42 U.S.C. 1983). But what if there really was no “wrongdoing” on the part of the prosecutor, judge or police? What if you were simply convicted – for example – based on mistaken identity?

That’s where Court of Claims Act §8-b can be a lifesaver. Under this very special Statute, you don’t have to prove anyone did anything wrong. All you have to prove is that you were convicted for a crime you did not commit, that the conviction was duly vacated, and that (by clear and convincing evidence) you were not guilty of that crime nor of any of the offenses for which you was charged.

One last thing: You must show that you “did not by [your] own conduct cause or bring about [your] conviction” (Court of Claims Act §8-b[5]). Why would you have done anything to bring about your own conviction? The most common way is if you were trying to protect someone else. Did you help cover up evidence that your spouse or friend did the crime? That might have done you in! Did you help bring about your own conviction by giving a non-coerced confession? Did you attempt to induce a witness to give false testimony, or attempt to suppress testimony, or testify untruthfully in court? If you did, a Court might find your own conduct caused your own wrongful conviction.

Recent Syracuse NY Brain Injury Trial Result Demonstrates Diffuculty Of Brain Injury Cases for NY Brain Injury Lawyers

January 25, 2015 | by Michael Bersani

I tried a traumatic brain injury case about a year and a half ago in Syracuse, New York. Although I got a “verdict”, it was not the one I wanted. The jury did not think my client was very hurt, and thus awarded him a lot less than we believe he deserved and needed.

Misery loves company. Traumatic brain injury cases are statistically among the toughest to win for a plaintiff’s lawyer, as a very recent – and well reported — Syracuse New York brain injury verdict bears out.

Before I go into the case, why is this kind of case so tough? The symptoms of mild traumatic brain injury are often “invisible” to a jury: headaches, cognitive slowdown, depression, blurred vision, memory or concentration problems, mood swings, confusion, and balance issues. Nothing you can show the jury on an MRI slide.

Do Xarelto Benefits Outweigh The Risks?

January 18, 2015 | by Michael Bersani

A couple of years ago, I developed arterial fibrillation, more commonly known as “afib”, which is not uncommon with people 50 and older. My dad had it from the time he was 50 until he died at age 86. It’s not life threatening, but does raise the risk of blood clots, which can lead to strokes.

The treatment? Blood thinners. “Thin” blood can’t clot so easily, and thus prevents stokes. My dad used the blood thinner of his era – Coumadin (warfarin) – for 35 years. The problem with Coumadin was it was not user friendly. Dosage depended on diet, age, and other medications being taken. With Coumadin, patients had to get blood tests monthly or more often and watch their intake of vitamin K, which could lessen the effectiveness of warfarin.

Coumadin – with all those hassles – is now considered “old school”. I am using a new generation blood thinner called “Xarelto” (rivaroxaban). The advantage of Xarelto over Coumadin is that one size fits all. Almost anyone can take 20 miligrams and be protected from blood clotting, and thus protected from strokes. No need for monthly blood tests. Just pop the pill once a day and your good.

What Do Honda Motors And Foxes Have In Common? CNY Car Accident Lawyer explains.

January 10, 2015 | by Michael Bersani

Making big auto companies self-report to the government fatal accidents and injuries caused by their vehicles is kind of like having the fox report to the farmer how many hens he ate. The fox is likely to under-report.

Same with Honda. And as a result, the “farmer” (the National Highway Traffic Safety Administration — our top federal auto safety agency) has fined Honda a record $70 million for its gross under-reporting.

The penalty is double the one slapped on General Motors just last year for being slow to identify safety problems.