Central New York Injury Lawyer Blog

Geneva, New York Personal Injury and Medical Malpractice Lawyer Reports on Swine Flue Vaccine Recipients Receiving Wrong Flu Vaccine.

November 27, 2009 | by Michael Bersani

On Tuesday, November 24, I took my two children (Sebastian, 12 and Nico, 10) to get their H1NI flu vaccination at the Bristol Field House at Hobart William Smith College in Geneva, Ontario County, New York, where we live. Although I firmly believe this was the right decision, I can never just “relax” when my kids are getting medical treatment, especially a new and relatively untested treatment such as this vaccine. A nagging voice in my brain always asks, “what if the authorities make a mistake, for example, give them the wrong doses?” This “what if” thinking haunts me more than most parents because of what I do all day long; I review and handle, among other types of personal injury cases, medical malpractice cases, in Geneva, Phelps, Penn Yan, Seneca Falls, Waterloo, Auburn, Weedsport and Syracuse, New York, and in a lot of other places in New York State as well. I see a lot of medical mistakes. I am therefore perhaps overly wary of them.

Maybe that little voice in my head wasn’t so off base. I just read today that the Center for Disease Control and Prevention alerted residents of Needham, Massachusetts that a vaccine wrongly labeled H1N1 was administered to 47 residents. The residents were instead vaccinated against another strand of the flu. This happened on November 24, the same day my kids were getting vaccinated! The Massachusetts Health Department contacted all 47 recipients to inform them that they had gotten the wrong flu shot. Fortunately, no one got sick. The recipients are simply immunized against a more common seasonal flu and not immunized against the swine flu.

What if one of them contracts the swine flu and dies before he has the opportunity to get the REAL swine flu vaccine? In my opinion, the estate of that person would have a slam dunk lawsuit against who ever made the error. If it was a doctor or hospital, the case would be framed as a medical malpractice case. If it was a pharmaceutical company, the suit would be brought as a products liability case. Either way, I cannot think of a single defense that would defeat such a claim.

Do I Have a Case if I Slip on Ice or Trip on a Defect in a Sidewalk in New York State? Central New York Injury Lawyer Explains.

November 24, 2009 | by Michael Bersani

First scenario: You are walking on a sidewalk in Auburn, Cayuga County, New York and trip and fall on a raised portion (a “differential”) of the sidewalk that had been poorly maintained. You are injured. Second scenario: Same thing happens in Penn Yan, Yates County, New York. Question: Can you sue anyone to recover compensation for your injuries? Your central New York slip-and-fall lawyer’s answer: You probably can if you are injured on a sidewalk in Penn Yan, but not in Auburn, New York. Make any sense? Of course not.

Welcome to the complicated world of New York sidewalk laws. To understand why the result is different in Penn Yan and Auburn, you first have to understand that there are two possible owners of city sidewalks: The city or the abutting landowner. In Penn Yan, the sidewalks are owned by the abutting property owners. You can sue the property owner if you trip and fall on his or her poorly maintained sidewalk.

But in Auburn, the abutting property owner does not own the sidewalk. The City of Auburn does. If you have the same accident on a city-owned sidewalk, for example in Auburn, your case is much tougher. New York State sidewalk laws protect the city from liability for trip and falls or slip and falls on its sidewalks if the city has enacted a “prior written notice” law. If the city has such a law on the books (which Auburn does), then generally you cannot sue the city unless, before you tripped or slipped on that defect in the sidewalk, someone else had written a letter to the city complaining about the same defect. But this almost never happens! Although people might call the city to complain, they rarely write letters complaining about a raised sidewalk or a pothole.

Auburn New York Injury Lawyer Tells Story of New York’s Labor Law 240, Which Provides Unique Protection for Injured Workers on Construction Sites.

November 23, 2009 | by Michael Bersani

Several injured construction workers have walked into my office this year in Auburn, Cayuga County, New York, as they do every year, with a typical central New York construction-site injury story that goes something like this: “Mr. Bersani, I fell from a ladder and suffered bad injuries while I was working on a construction project. I guess I didn’t set the ladder up right, because when I got halfway up, it just slid out from under me and down I came. Can you help me?” Sometimes it’s a fall from a ladder, sometimes a fall from a scaffold, sometimes they were just fixing a leak in a roof, and sometimes they were involved in a full construction project. But one thing almost all these clients have in common: They have a nearly perfect case.

Why? After all, didn’t that guy just say he set the ladder up wrong? Wasn’t it his fault? How is that a perfect case?

Well, to understand why, you have to understand New York’s Labor Law 240. (I am going to simplify it for the purpose of this blog – it’s really more complicated. Call me and I’ll be glad to explain in detail).

Syracuse New York Injury Lawyer Explains Five Steps to Avoid becoming a Victim of Medical Malpractice

November 22, 2009 | by Michael Bersani

The Institute of Medicine reported a decade ago that as many as 44,000 to 98,000 people die in hospitals in the U.S. every year from medical errors. At Michaels Bersani Kalabanka we handle many medical malpractice actions involving injured patients from the Syracuse, Auburn, and Geneva, New York areas, as well as other upstate New York communities. Although medical malpractice is never the patient’s fault, there are some steps you can take to minimize the risk that YOU will become one of the many victims of medical malpractice:

(1) ASK. You have a right, and a duty to yourself, to know all about your medical condition and treatment. Don’t be afraid to ask questions, especially if you have any doubts or concerns about a procedure your doctor is recommending, or a drug he is prescribing. Asking questions not only helps you understand how to get the most out of your medical treatment, it may also help the doctor focus on your particular needs. It doesn’t hurt to bring a friend or relative along with you to help you understand.

(2) Be careful about PRESCRIPTION DRUGS. Keep a list of the medicines you are taking, and share that list with your doctor. Don’t forget to tell him about any allergies or side effects you have had. If your doctor orders a prescription drug, make sure the medicine the pharmacist gives you is the same one, and the same doses, the doctor ordered.

Cato, Cayuga County, New York Road Rage Incident Kills Camillus Man.

November 21, 2009 | by Michael Bersani

The Syracuse Post Standard reported a strange vehicular assault case yesterday. A Camillus man, Christopher Spack, was killed when an elderly driver, William Levea, 79, of County Route 6, Fulton, deliberately rammed his car repeatedly into Christopher Spack’s pickup truck from behind while they were both driving on Route 370 in Cato. The repeated ramming caused Spack’s vehicle to cross over into the path of an on-coming vehicle. Spack collided with the on-coming car, was ejected from his pickup truck, and pronounced dead at the scene. He had dialed the Onondaga County 911 center minutes before the rear-end ramming started to report that he was being harassed by the car’s driver, whom he did not know. Cayuga County deputy sheriffs stated they did not know why Levea repeatedly drove his car into the rear of Spack’s pickup. Levea was charged yesterday with second degree murder, driving while intoxicated and reckless driving.

The criminal law system will punish Mr. Levea, we hope, with a long prison sentence (but since he is already 79 years old, any sentence he gets will probably not last long enough). But what about poor Mr. Spack’s family? How will they obtain compensation for their loss?

His family has the right to file lawsuit against Mr. Levea for the wrongful death and conscious pain and suffering of Mr. Spack. But unfortunately, they will probably get nothing for their trouble. Why? I’ll bet this Mr. Levea (the 79-year old vehicular assailant) has no assets to go after. People who drive drunk and intentionally ram their car into others almost by definition have “nothing to lose”, and therefore have no assets worth the trouble of going after.

Is a School in New York Liable When a Student Trips Another Student at School?

November 19, 2009 | by Michael Bersani

Recently, in Ontario County, in the Finger Lakes region of New York State, a 14-year old student of a public middle school didn’t go home at the end of the school day. Instead he ended up in a hospital getting plates and screws installed to fix a severely broken elbow. How did that happen? A fellow 14-year old student, who was just “goofing around”, tripped him in the school hallway when they were changing classes between periods. This was not the first time this student had injured other students. He apparently had a history of rough play.

The parents might ask a school accident lawyer the following questions (I will answer them further down): (1) can the injured child (and his parents) sue the boy’s parents? After all, they failed to properly raise this kid to be a civilized human being who can live safely with others. (2) Can they sue the tripping kid? (3) Can they sue the school?

Here are the answers, in order:

Auburn Injury Attorney Explains: New York Bill Makes Driving Drunk with Child in Car Felony

November 18, 2009 | by Michael Bersani

Today New York Governor Patterson signed into law a bill making driving while intoxicated with a child (person under 16) in the car a felony, even for a first-time offender. If convicted, the offender could spend up to four years in jail. The new law also requires first-time DWI convicts to install an “interlock device” that blocks the engine from starting if the device detects, on the driver’s breathe, alcohol.

The bill picked up steam in the New York Senate after two New York car accidents in which children were killed by intoxicated adult drivers who crashed their car. In the first case, a woman drove the wrong way on the Taconic Parkway in Westchester County and killed eight, including her own 2-year-old daughter and three other children. In the second case, a young passenger was killed by a friend’s mother driving drunk. She flipped the car on the Henry Hudson Parkway in Manhattan. The new law is called the Child Passenger Protection Act, also known as “Leandra’s Law”, named after one of the child victims mentioned above.

New York courts convicted 37,695 intoxicated drivers last year. Nationwide, 13,000 people a year die because of drunk driving.

New Law in New York Gets Rid of Big “Lien” Problem in Personal Injury Cases

November 17, 2009 | by Michael Bersani

Hurray! This week New York Governor Patterson signed a new law, which had wound its way through the New York legislature for months, which helps victims of personal injury in New York and New York personal injury lawyers, including Auburn and Syracuse personal injury lawyers like me! The law amends New York’s CPLR 4545 (called “the Collateral Source Rule”) to get rid of a huge problem for injured plaintiffs whose health insurance (e.g., Blue Cross, Excellus, Guardian) pays for their medical treatment. The statute is complex and has many parts, but the part New York injury attorneys are applauding provides, in laymen’s terms, that your health insurer can’t dip into your personal injury settlement for reimbursement of their payment of your medical bills. This not only leaves you, the injured plaintiff, with more money at the end of the day, it also makes it a hell of a lot easier for your personal injury lawyer to settle your case.

Why? Well, let’s say you slip and fall on ice at a store parking lot and are injured, but it is really, really tough to prove that the store is legally liable. There was an ice storm going on, and most juries would say the store is not liable for that because the store really couldn’t do anything to prevent it. Nevertheless, your lawyer might be able to get a $20,000 settlement offer from the store’s insurance company because they are afraid that, just maybe, you might win at trial (especially if you have a convincing lawyer!), in which case a jury would probably give you $100,000. So the store’s insurance company essentially wants to hedge its bet.

BUT (and here’s where the health insurers used to screw the whole deal up), your health insurer has paid out $20,000 in medical treatment for your slip-and-fall injury, AND THEY WANT IT BACK! In fact, if you read the fine print in your health insurance policy, it specifically says you agree to pay them back first from any money you get in a settlement or from a verdict! That leaves you with nothing if you settle, so why would you? Your lawyer is then forced to negotiate with the health insurance carrier to try to get them to reduce their “lien” (that’s what we call it in the law business), but even then this leaves you with almost nothing.This “lien” or “subrogation right” of the health insurer just gets in the way of fairly resolving your case.

Syracuse Car Accident Lawyer Explains: New Law in New York Raises the Age at Which Kids Must Continue to Use Car Booster Seats.

November 16, 2009 | by Michael Bersani

Effective November 24, 2009, “child-restraint systems” (car seats and booster seats for kids) are required for ALL CHILDREN UNDER THE AGE OF 8 (that is, through age 7). The law previously required this only for kids less than 6 years of age (through age 5).

What does this mean for parents? Don’t throw away your 5-year old’s booster seat – he will need it for two more years now.

While we’re on the subject, here are the other “child-restraint” requirements in New York:

Central New York Injury Lawyer Explains Effect of Failure to Wear Seatbelt on Lawsuit.

November 15, 2009 | by Michael Bersani

We got a very large settlement ($7.5 Million) last year for a young man involved in an automobile accident in Cayuga County, near Auburn. The young man had gone out to a bar in Skaneateles with some friends. On their way home, the driver, who was somewhat intoxicated, lost control of the car on snow and ice and crashed into a tree. Our client, who was in the backseat and not wearing his seatbelt, suffered permanent paralysis.

Some of our friends were surprised we got so much since our client was not wearing his seatbelt. They said, “Isn’t a passenger required in New York to wear a seatbelt? If he wasn’t doing what the law required, why was he entitled to so much for his injuries?”

Whether a passenger is in the front seat or the back seat of a car, the defendant of the lawsuit has a right to argue, as a defense to the case, that the passenger could have “mitigated his or her damages” (legalese for “could have avoided getting injured so badly”) if he or she had been wearing a seatbelt.