Central New York Injury Lawyer Blog

Central New York Accident Lawyer: Health Care Overhall Will Help Syracuse and Central New York Accident Victims

March 24, 2010 | by Michael Bersani

I generally try to avoid talking about politics in this Blog. So, without telling you what I personally think of Obama’s health care overhaul, I will tell you what impact the new Law will have on Syracuse and Central New York personal injury and medical malpractice victims.

First, though, let’s talk about how the current health care system affects victims of injuries caused by someone else’s wrongdoing or negligence. If these injured folks are unlucky enough to be among the 15% of Americans who can’t afford, and thus do not have, health care insurance, they are in a real bind. The liability insurer for the at-fault guy will REIMBURSE their medical bills after they are done treating for the injury, upon a global settlement of the whole case, but the liability insurance will NOT pay the medical bills as they come due in the meantime. This too often means that the accident victim’s doctors won’t treat him, because no one is paying his bills. Doctors usually won’t wait for their patient’s settlement or victory at trial to get paid because they don’t know for sure that the patient will win his case, or get a settlement that will cover the medical expenses. And things get worse for the patient-accident victim. Without proper, well-documented medical treatment, it is later difficult to prove the accident victim’s injury.

So the accident victim really gets injured not once, but THREE TIMES!: First, when someone’s carelessness caused his physical injury. Second, when he can’t get the medical treatment he needs and thus has to suffer through needless pain and perhaps ends up with a much worse result. And third, when he doesn’t get a fair settlement or verdict because he is unable to fully prove his injury for lack of medical records documenting it.

Syracuse Motorcycle Accident Lawyer on Upstate New York’s First Reported Motorcycle Fatality of the Season

March 22, 2010 | by Michael Bersani

The first upstate New York motorcycle fatality of the season has been reported. Local news sources say that a West Seneca man died Sunday after his motorcycle rear-ended another car on the Thruway in West Seneca. The 29-year old rider was thrown from his bike upon impact, but the motorcycle continued on after the rider was ejected, and eventually struck a guardrail and burst into flames. The cyclist died at Mercy hospital hours later.

Unfortunately, this tragic end of young man’s life won’t be the last this motorcycle season. While a car-on-car rear-end collisions can cause only minor injury, a motorcycle rear-end accident is often, as it was here, deadly. Sudden stops can cause the bike to catapult end-over-end, with the rider being thrown off the bike, or under it.

Explosions and fires from gas leaks, like the one in this case, are also quite common after serious motorcycle collisions.

Toyota Pulls Out the “Blame The Victim” Defense: The Oldest Trick in the Personal Injury Lawsuit Defense Book.

March 19, 2010 | by Michael Bersani

James Sikes, in case you missed the story, is a poor fellow whose name recently hit the national news when his 2008 Toyota Prius’ accelerator pedal stuck to the floor, sending him rocketing down Interstate 8 at speeds up to 95 miles per hour.

Just the other day, Toyota held a nationally televised news conference to announce that its “investigation” of the Sikes incident has resulted in findings “inconsistent” with Mr. Sikes’ account. Although Toyota does not claim to know what happened, it does claim to know what did NOT happen, and apparently, that means the accelerator pedal did NOT stick.

If you think Mr. Sikes is making it up, google and listen to his 911 call, which documents his frantic attempt to stop the car with law enforcement help.

Tragic Elbridge, New York Car Crash Killing Dad, Severely Injuring Mom, And Leaving Child Unharmed, Will Likely Provide Inadequate Insurance Coverage.

March 18, 2010 | by Michael Bersani

How can you read a story like this and not want to weep? The Post-Standard reports that a couple and their 4-year old son were returning home via Route 31 in Elbridge, New York Saturday evening when their Chrystler PT Cruiser left the road and hit a tree, killing the father-passenger, leaving the mother-driver in critical condition with head injuries, and, miraculously, sparing from any harm their 4-year old child in the backseat.

As a Central New York auto accident lawyer, I can’t help but be concerned for the future of the seriously injured mother and her child. In large part, their fortunes turn on insurance coverage. There are several types of auto insurance that are triggered in a case like this: (1) no-fault insurance; (2) no-fault death benefits; and (3) liability insurance.

Number (1), no-fault insurance, pays for basic medical coverage and lost wages regardless of whose fault the accident was, up to $50,000 for each injured person. Here, the only surviving injured person is the mother-driver. But she will surely run through her $50,000 no-fault insurance quickly (hospitalized for critical brain injuries). There will be nothing left to cover her lost wages, or her additional medical expenses. Bad news.

Personal Injury Attorney Advertising — Yuk!, But Constitution Protects It.

March 14, 2010 | by Michael Bersani

I hate attorney advertising, especially personal injury lawyer advertising. Yet I advertise. Well, I mean, my firm does. I remember when we finally decided to advertise on TV. It was a tough decision. For years Michaels Bersani Kalabanka prided itself on its success in attracting top personal injury and medical malpractice cases through word of mouth and through referrals from other attorneys who knew that we were among the best in the New York personal injury and medical malpractice field.

But our case load had started to dwindle even though we were still at the top of our game. Why? Because other Central New York accident lawyers were advertising and we were not. They were getting the cases simply by being on TV! For the most part, their ads were in terrible taste (examples: an attorney who called himself “The Hammer” and a firm that called itself “The Heavy Hitters” and one who claimed he was “a son of a bitch”, but if you hired him he would be “YOUR son of a bitch!”).

All this advertising, though totally tasteless, and even deceptive, was legal because decades ago the U.S. Supreme Court had ruled that attorney advertising fell under the protection of the “free speech” clause of the First Amendment to the United States Constitution. In other words, those guys had a right to say all this crap in their ads, even though it created a terrible image for personal injury lawyers.

Syracuse New York Accident Lawyer: Landowners May Be Liable For Falling Trees or Tree Branches.

March 12, 2010 | by Michael Bersani

You are out for a stroll on a nice, but windy, spring day and suddenly, as you walk under a tree, a branch dislodges and falls on you, seriously injuring you. Is anyone liable for your injuries? Can you bring a New York personal injury lawsuit for injuries caused by a falling tree branch? After all, wasn’t this a “natural” occurrence? No one is liable for that, right?!

The answer is (as is so often the case in New York personal injury law) “it depends”. The owner of the property, or whoever is in control of the property, where the tree is growing MAY be liable for the tree branch accident if they “knew or should have known” that the tree was dead, rotten, or in poor condition. If an owner, or someone who controls the property, fails to remove a decaying, rotting or dead tree, or branches, and the tree or a branch falls and injures someone, or falls on a roadway and causes a car accident, he can be held liable.

Here’s a recent example of a falling-tree branch injury that could, or could not, become a valid case, depending on the circumstances: A Brooklyn man was recently killed in Central Park when he was struck by a falling tree branch that snapped off under the weight of wet snow. As reported in the New York Times, the tree branch weighed over 100 pounds and struck him directly on the head. Could the City be held liable for this tragedy? It looks like a tough case. The New York Times reports that branches were falling down all across the City because of a heavy build-up of wet snow. Maybe even healthy branches were giving way under the weight of the snow. If the tree showed no obvious signs of decay, rot or death, then the City is most likely not liable.

Central New York Motorcycle Accident Lawyer Describes Frivolous Insurance Defense

March 12, 2010 | by Michael Bersani

I was in Court the other day on a Central New York motorcycle accident lawsuit we filed some time ago. The motorcycle accident happened when a car, which was parked on the side of a highway in Lansing, New York, suddenly pulled out across the highway to make a u-turn, and in so doing, forced our motorcyclist client to drop his bike to avoid a collision. Our client was blameless — he had only a second to avoid a collision and did he best he could.

What position does the car driver’s insurance company take? A typical insurance defense position: “It was your client’s fault. He shouldn’t have dropped his bike. He should have steered around the car. He should have done this, he should have done that, Yadayadayada.” We tried to settle with them early on, but they stuck to their position that our guy was “at least 70% at-fault”. Our position never wavered: Our client was 0% at fault and the car driver was 100% at fault.

The defense was completely frivolous. All the case law in New York says that when a motorist is confronted with an emergency situation caused by another driver’s negligence, and has only a few seconds to react, he can’t be found at fault for having failed to react better. This is called the “emergency doctrine”. And it makes sense, right? How can you hold an innocent driver liable for reacting as best he can in a split second to avoid crashing into a car driven by some crazy fool who cuts him off?

Central New York Bicycle Accident Lawyer: Be Safe on Your Bike

March 10, 2010 | by Michael Bersani

Today’s spring-like weather made me want to jump on my bike for the first time since last fall. Unfortunately, work got in the way! Still, I am looking forward to another cycling season.

Unfortunately, bicycle season for me also means calls from desperate injured bicyclists and their families. About 52,000 bicyclists per year are injured in the U.S., and about 800 are killed. Every year, several bicycle injury lawsuits in Syracuse and Central New York are filed. Usually these cyclists have suffered severe injuries from car-on-bicycle crashes. When a bike meets a car, guess who wins?

My experience handling bicycle crash cases has taught me that most bicycle crashes are the car driver’s fault. Usually, the driver simply fails to see the bicycle. Still, there are many things bicyclists can do to minimize the chances that they will get hit by a car. I urge you, fellow cyclists, to do everything you can to avoid becoming one of Central New York’s bicycle accident victims!

Central New York Personal Injury Lawyer Explains Difference between “Pain” and “Suffering”

March 9, 2010 | by Michael Bersani

In my last blog post, I explained that “pain and suffering” is an important part of compensation sought in a personal injury lawsuit. Personal injury lawyers here in Central New York, and everywhere else for that matter, tend to lump the two words, “pain” and “suffering”, together as if they meant the same thing. But they don’t. There is a difference between “pain” and “suffering”. That’s what today’s blog is about.

Generally, “pain” is the physical part of the equation. For example, fractures, broken bones and nerve impingements all cause physical pain. Suffering, on the other hand, is the mental and emotional harm that physical pain can cause. The physical pain inhibits the victim’s ability to work, exercise, or do his or her normal routines. For example, a victim of an accident may not be able to go bowling anymore, or not be able to hold his or her child. This can cause serious psychological suffering, including anxiety, sadness and depression. That is what we call “suffering”.

If the pain is long term, then the suffering is usually correspondingly greater. Long term disabilities can cause a lot of “suffering”. They can create a permanent and dramatic change in lifestyle and life outlook, leading to depression, fear, panic attacks, post traumatic stress disorder (PTSD), or even suicidal thoughts.

Syracuse New York Personal Injury Lawyer Explains “Pain and Suffering” Compensation

March 7, 2010 | by Michael Bersani

“Pain and suffering” is the ugly duckling of personal injury damage claims. Many people roll their eyes when those three words are spoken, especially when spoken by personal injury lawyers. The concept is so unpopular, so despised, that when Syracuse and Central New York personal injury and medical malpractice lawyers pick juries for trial, one of the most important questions we ask, to see whether a juror can be fair, is, “what do you think of awarding compensation for pain and suffering”? Many, many prospective jurors say, “I’m against it” or like words.

Yet New York personal injury law entitles victims of the careless, negligent or intentional acts of others to FULL compensation for all their losses, including lost wages, medical expenses and, yes, “pain and suffering”. Why? Think of the “scale of justice” (pictured on this page). When someone is injured through someone else’s fault, the scale tips down on one side. The “down” side is where the victim is. The whole idea of our civil justice system is to tip the scale back up to a balanced state again. If someone has suffered lost wages, medical expenses, and pain and suffering, would the scale be tipped upright again if he or she were compensated only for lost wages and medical expenses, but not pain and suffering?

Unfortunately, people seriously injured in an accident don’t just jump up off the pavement, brush themselves off, and go on with their lives as if nothing happened. Pain and Suffering sometimes lasts a lifetime. The victim’s way of life can be completely altered. It converts athletes into couch potatoes. It turns happy people into sad, anxious people. It turns families upside down when one parent, or child, is constantly in pain.