April 26, 2015

Ouch! A $58,000.00 Speeding Ticket. Central NY Injury Lawyer Reports.

traffic ticket.jpgAs a recipient of more than a few speeding tickets within the last few decades, I took an interest in this NY Times article about a $58,000.00 speeding ticket in Finland.

The offender was clocked at 64 miles per hour in a 50 mile per hour zone. Doing the math, that works out to $4,143.00 for every mile per hour above the limit.

Why so high? What determined the high price was not so much the offense as the offender. The speedster was a multimillionaire in one of the few countries in the world where fines for traffic infractions are calculated based in large part on your income. The mindset in this Scandinavian country is that the sting of the fine should be felt equally by rich and poor. The sting of a $100 fine is felt by the street sweeper but not by the banking tycoon. Thus, in Finland Fine-land the government calculates your fine based on half your daily net income multiplied by the number of days of income you should lose according to the gravity of the offense. This particular $58,000 ticket represented a half-a-day's income of the wealthy offender.

I wonder how Fine-land would handle the fine for a U.S. visitor like me caught speeding on its roadways? Would they subpoena my US income tax returns in order to calculate the "sting effect" of the fine?

I'm not anxious to find out. I think my next Scandinavian vacation will be in neighboring Norway.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY auto accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

April 18, 2015

Violence in Schools: Teachers assault kids, parents assault teachers, and lawsuits everwhere, oh my!

shoulder injury.jpgteacher knocked out.jpg
In nearby Tioga County, NY, a 10-year-old boy was recently hospitalized after his math teacher caused this injury (see photo) to the boy's shoulder. The kid's mom posted the photo on her Facebook page. Mom and child have served a "notice of claim", which is the precursor to a lawsuit, on the School District. The notice of claim alleges that the boy was working on a math question, when teacher overheard him say, "c'mon." The teacher then confronted the boy, dragged and lifted the boy by his right arm from his seat, and pushed him out of the classroom. He has apparently suffered a separation of his clavicle bone. Ouch!

Meanwhile, in another part of New York State -- down in Long Island -- the mother of a middle school student received a call from her 12-year-old daughter complaining that her teacher had "put her hands on me." The outraged mother raced to school and somehow got past security (that should not have happened) and into the school. She then made a beeline to the teacher's classroom, attacked her, put her in a headlock, and then threw her to the floor where the teacher lost consciousness. That's her lying on the floor in the photo. (It's all captured on surveillance tape). But that's not all. While lying on the ground unconscious, the teacher was beaten by several students, including the mother's 14-year-old niece. Talk about being an unpopular teacher!

So why am I blogging about these two unrelated events? Well, first, they are somewhat related in that they suggest there must be something in New York State's drinking water making people crazy at school.

But I also am blogging to show you how different the two suits will be. The boy suing the teacher and school district for the shoulder injury has to show only that the teacher used unnecessary and careless force in removing him from the classroom. But if the beat-up teacher wants to sue someone for her injuries, she has got some big hurdles to overcome. Let's talk about that.

Suing the out-of-control mother and the student assailants will likely be a worthless exercise because none of them are likely to have any assets to go after and, even if they have liability insurance in their homeowners' policies, it won't cover assaults.

Next, the teacher may consider a suit against the school district for negligence in allowing the enraged mother to get past the security system. That sure was a big breach of security! But here the teacher may run up against a workers' compensation defense. You generally can't sue your employer if your employer provides workers' compensation. But in downstate NY many teachers have collective bargaining agreements in which workers' compensation does not bar suit against the employer.

Even if there is no workers' comp bar, however, the case will be nearly impossible to win. That's because her suit is likely to be barred by the "governmental function immunity" defense. Since a school district is considered a governmental entity, most suits against it brought by anyone except a student are subject to the governmental immunity defense. To get past the defense, the teacher must show - among other things - that the school district had a "special duty" to her beyond the duty it had generally to other teachers and visitors at the school to protect them from attacks. That means the teacher will have to show - among other things - that the school made some kind of (at least tacit) promise directly to her to protect her from this kind of assault, and that she relied on that promise to let her guard down, which resulted in her allowing herself to be put in a vulnerable position where she was assaulted. All that is nearly impossible to prove.

But students injured at school don't have to worry about this defense because the school has assumed a duty to the students by virtue of the doctrine of in loco parentis, which in Latin means "in the place of a parent". It means the school district has legal responsibility for the well-being of the student while the student is in its custody, just as the parent does at home. There is no governmental immunity. The school district will be liable for its teacher dragging the student by the arm, thus dislocating or fracturing his clavicle, regardless of whether the student can establish any "special duty". The duty from the school district to the child stems from the in loco parentis doctrine, not from any "special duty".

I know, it's all very complicated. That's why you always need to consult with a lawyer experienced in suing school districts when someone you love - or you - are injured on school premises. And you need to get a lawyer quickly. Generally, you have to serve a "notice of claim" on the school district within 90 days of the incident to protect your rights. That's not a lot of time!

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central & Syracuse NY School Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

April 15, 2015

Crazy Lawsuit. Or Not . . .??? Just Ask Mickey Mouse . . .

images.jpgExtra, extra read all about it: West Virginia woman files lawsuit against Walt Disney Corporation claiming Disney planted a rubber chip in her body without her knowledge or consent!

She filed the complaint last month in Kanawha Circuit Court, West Virginia. The lady is seeking for monetary damages and for the chip to be removed from her body. Can you blame her?

She is representing herself.

You might be thinking "frivolous lawsuit"! You'd be wrong. This is not a frivolous lawsuit. It is a crazy lawsuit. The difference is that in a frivolous lawsuit something happened to the plaintiff, but it really should not be the grounds for suit, while in a crazy lawsuit, nothing happened to the plaintiff, except in her head.

I tell this story to point out a truth about our legal system: Anyone can sue for anything. If the suit has no merit, it will later get dismissed. But actually filing a lawsuit is easy. Any crazy can do it. No police officer or court attendant stands at the courthouse checking to see whether lawsuits being filed are frivolous or crazy.

But wait. There is a possibility - no matter how remote - that I am wrong about this Disney suit. One has to keep an open mind. Maybe I am the crazy one and the West Virginia woman is not. After all, some weird stuff does go down in Disney. For example, last time I was there a dwarf (there were seven of them) asked me for my ticket while I waited for the Space Mountain ride. Then I saw a human-sized talking mouse walk by! Weird? Well, who's to say that some space alien employed by Disney did not in fact plant a rubber chip in this poor West Virginian's body? Par for the course in Disney.

Hey, maybe I'll call that West Virginia woman and ask her if she wants me to represent her. In Disney terms, I'd be her Knight in Shinning Armor.

Naa. I think I'll pass . . ..

Keep safe .. and sane!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

April 15, 2015

A Wrongful Death Case That Will Make You Weap . . .

car upside down in river.jpgWarning: This is a sad story.

A man's 16-year old daughter was killed when her car veered off a bridge, overturned, and flipped into a creek. After the accident, the authorities agreed to install a guardrail on the bridge to prevent similar tragedies.

Thirty days went by and still no guardrail. The grieving father - who could not stand the sight of the unprotected bridge - decided to take matters into his own hands. He began to build a temporary guardrail. As he was in the act of doing so, the authorities asked him to stop. He refused. He just could not stand to see another car go by unprotected.

He was arrested for "interfering with government property" and had to post $5,000 bail to stay out of jail. After posting bail, the father gave a brief interview to a TV camera. His statements are so poignant as bring tears to your eyes. He holds no grudge against the arresting officer: "The officer had to do his job, and as a father, I had to do mine", the man said. "All I wanted to do was save lives. When you're a grieving parent, when you've lost your child, you do what you've got to do."

Who can blame him?

Hey you police officers, give the guy a break. Install that guardrail right away, give this grieving dad his bail money back, and drop all charges.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central & Syracuse NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

April 13, 2015

Alan Dershowitz's Defamation Lawsuit: CNY Personal Injury Lawyer Explains.

Thumbnail image for Thumbnail image for Alan-Dershowitz-1.jpg Thumbnail image for PAY-Virginia-Roberts.jpgEven though the bulk of my work is New York personal injury litigation, I often get asked to represent plaintiffs in defamation (slander and libel) claims. The callers soliciting my services are usually livid that so-and-so made disparaging remarks about them, all lies. They are outraged. Of course they are. A good reputation besmirched is a terrible thing.

Still, it is one thing to be angry, and another to embark on the long and expensive journey of civil litigation. I usually have to bill a client by the hour, rather than on a contingency fee basis, in defamation suits. That's because liability insurance won't cover the defamer -- we have to reach into his or her pocket to collect on a judgment. And most defamers have little or no money to go after. So collecting on the judgment is very uncertain. And there are usually other uncertainties: Can we prove the statement was a lie, and if so, one that fits the narrow category of lies you can sue for? For example, if a client says of me, "my lawyer is an idiot", that may be a lie, but it expresses an opinion, and therefore I can't sue for it. But if the client said, "my lawyer is stealing from me", I can sue because it states an alleged fact, not an opinon, and one that -- if true -- would constitute a crime.

My first question in helping the would-be client decide whether to pursue a defamation case usually is, "can you prove you were ECONOMICALLY harmed"? That's because most defamation cases are not worth the trouble or cost of bringing unless you can prove that the lies actually caused financial harm, for example loss of business or lawyer's fees defending criminal charges.

But when you are rich, and don't need to worry about the high cost of going to Court, things are different. Take Alan Dershowitz for example (see top photo). He is the internationally renowned lawyer and Harvard College of Law professor who helped represent O.J. Simpson and Mike Tyson, among others. And he's no patsy. Recently, a certain Virginia Roberts (lower photo) made allegations that he (and Prince Andrew of Great Britain and others) had used her as a "sex slave" at lavish (and lascivious) parties when she was still 17 years old.

Dershowitz' reaction was visceral and aggressive. He promised he would sue her for defamation. But his aim is not to get money. No, he has enough of that, and she probably doesn't have enough to pay any significant judgment. So why would he sue?

Mr Dershowitz is suing to clear his name. As with any civil suit, the parties to the defamation suit have the right to take each others' depositions under oath. Dershowitz plans to use this opportunity to test whether Ms. Roberts has the "hutzpah" (a word I am sure Dershowitz himself would use since he is proudly Jewish) to repeat her allegations under oath (so far her allegations are not under oath), which would constitute perjury, which is a crime. He says he hopes to get Ms Roberts jailed for perjury if she repeats the sexual abuse allegations under oath in the defamation suit.

Let's face it, money matters. Yes, you get better medical care if you are rich, and better housing, and better food. You get better justice, too.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

April 9, 2015

Caution, Graphic Video. Texting While Driving Kills. From Central New York Injury Lawyer.

car under truck.jpgThis is not easy to stomach. Not for you. Not for your teenager. But watch it. And then make sure your teenager watches it. The driver of the car in the photo was texting and did not see the tractor trailor stop to turn left. The video below is very graphic. Don't text and drive!

video of texting while driving accident

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central & Syracuse NY Auto Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

April 9, 2015

Bicycling Safety Tips From Your CNY Injury Lawyer

bicycle mike.jpg
Well, spring is finally here (I think . . .)! Yesterday I pulled the bike (bicycle) out, cleaned it up, lubed the chain, and I'm ready to roll. (That's me on my bike in the photo!) What about you? Ready to roll?

Before you get out there and become a moving target for distracted drivers, remember these safety tips:

LOCK EYES WITH THOSE GUYS: At intersections and driveways, try to "lock eyes" with motorists to be sure they see you. Don't assume they see you. Assume you are invisible. Unfortunately, to many motorists, you are!

BRIGHT IS RIGHT: Bright colors please, and blinking rear and front lights, even in the daytime. This MIGHT make them see you!

RIGHT IS RIGHT: Whenever possible ride to the right of traffic but an open-car-door width away from parked cars.

PRACTICE ZEN: No daydreaming allowed on two wheels. Be in the here and now. You need to see everything going on because they won't see you.

DON'T BE A TOOL, FOLLOW THE RULE: If you follow the rules of the road, drivers will be able to predict what you do. But if you don't, you may become a hood ornament.

LOSE THE TUNES: Earphones and music are a good idea for a run or a walk, but not for a ride. You need to hear that car approaching from behind. In New York you are required to have at least one ear free while riding a bike (but two ears are better than one).

GO WITH THE FLOW: Some cyclists think that they can and should ride against traffic just like pedestrians or runners. WRONG. Because they are faster than walkers or runners, cicyclists are safest when they ride in the same direction as traffic. Going against traffic is most dangerous at intersections where drivers are looking left for approaching vehicles.

DON'T SURPISE'EM: Hand signals tell motorists what you are going to do. Believe me, you want them to know!

PROTECT YOUR MOST IMPORTANT ORGAN: Your brain, of course. Wear a bicycle helmet! Not legally required in New York if you are 14 or over, but highly, highly recommended.

Have fun, and . . . .

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
CNY & Syracuse Bicycle Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

March 29, 2015

Sugarbush Chairlift Malfunction Is Good Example Of Why Product Liability Lawsuits Are Needed

chairlift.jpgAs an avid skier, I was distraught to read about another terrible chairlift malfunction at Sugarloaf Mountain in Maine. The chairlift suddenly started moving swiftly backward. Seven skiers were pretty seriously injured, some of them because they removed their skis and jumped to "safety" from the chairlift, fearing that they would be more severely hurt if they wound up getting spun through the chair housing unit at the bottom. More than 200 people were later evacuated from the chairlift over a 90-minute period.

This isn't the first time a chairlift malfunctioned at Sugarloaf. In December of 2010, a chairlift cable derailed, dropping 5 chairs violently to the ground. Five adults and three kids were injured in that accident. That time Sugarloaf was at fault for negligent operation of the lift. Sugarloaf paid out-of-court settlements to the victims.

This time the manufacturer of the chairlift - Partek Ski Lifts -- is to blame. Engineers believe a design flaw prevented a safety system from locking the chairlift in place after a mechanical failure caused it to begin moving in reverse.

Do you smell a lawsuit brewing? You betcha. The manufacturer will get sued on a "product liability" theory of liability. In a "product liability" suit, the plaintiff does not even have to prove the manufacturer was "negligent" or "careless", but only that the product - in this case the chairlift - was unreasonable dangerous. In this case it seems pretty clear that it was.

Product liability lawsuits - like the one that will surely be brought here - are good for all of us. There is no better "engine" for safety than a tort lawsuit. Think government regulations alone can make us safe? Chairlifts are a good example of how they cannot. The state agency charged with inspecting Maine's chairlifts is the same overburdened agency charged with inspecting all of the State's elevators: Maine's Board of Elevator and Tramway Safety. The agency is not sufficiently funded to conduct regular and vigorous inspections, and the fines it opposes amount to a mere slap on the wrist. It is -- like many such agencies -- a paper, toothless tiger. The real tiger - the one with sharp teeth -- the thousand pound gorilla that puts fear into corporate boardrooms all over America -- is the products liability lawsuit.

So bring on the lawsuit. For the victims and for all of us.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Dangerous Products Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

March 27, 2015

Snow, Sleet And Rain Are Literally "Deadly" In Upstate New York

snowy blizzard.jpgDid you see the recent article in the Syracuse Post Standard about weather-related motor vehicle death statistics? Statistics can be pretty boring. But I found this pretty interesting.

The new study shows that SNOW, SLEET AND FREEZING RAIN cause more than 800 vehicle-related deaths each year in the U.S. And one of the highest snow-related death areas was - you guessed it - Upstate New York's "snow belt". Hey, if Syracuse basketball can't be number 1, at least Syracuse is number 1 at something . . . :)

Lake effect snow is literally deadly. Not surprisingly, the intensity of snowfall correlated strongly with the number of vehicle deaths. Also not surprisingly, New York City has a much lower rate of snow-related motor vehicle deaths than Upstate. Onondaga County and Oswego Counties had the highest rates in the state.

What about rain? It is deadly, too. In fact, it contributes to nearly four times as many vehicle crash deaths as snow and sleet do. But that's because it rains a whole lot more than it snows and sleets. During the 2002-2012 study period, 2,876 people per year died in rain-related U.S. car accidents.

Actually, almost none of these deaths are caused by weather conditions alone. They are caused by drivers driving too fast for those conditions. Drivers often underestimate the slipperiness of roads in rainy and snowy conditions. They lose control of their vehicles or can't brake fast enough when a hazard appears.

So slow down! Especially in snow, sleet and rain.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Car Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

March 10, 2015

Can A Cop Testify The Car Accident Was Your Fault In A New York Auto Accident Injury Trial?

car accident.jpgLet's say you get into a car accident in New York State and it was the other guy's fault. But when the police officer shows up and "investigates" he determines it was your fault. And he says so in his accident report. You sue the at-fault driver for your injuries. Can the cop's police report come into evidence against you? Can the cop testify it was your fault?

The answer generally is, no and no. Why not? The conclusions in his report that it was your fault are "hearsay". Further, it's for the jury to determine whose fault it was based on the evidence. Letting the cop testify about whose fault it was would unduly influence the jury. The cop can testify only about the evidence he found at the scene, for example skid marks, the damage to the cars. He can also generally testify about what the PARTIES said to him, but not about what non-party witnesses said to him. That would be hearsay, too. Those witnesses must be brought into court to tell the jury what they saw and must be subject to cross-examination. The cop can't tell the jury what they said because then the right of the parties to cross-examine those witnesses would be lost.

Some of these concepts were explored in the recent case of Watch v. Gertsen. In that case, the cop determined, after talking to the participants in the accident, that two motorcyclists who collided into the back of a car were at fault for following too closely. In the personal injury trial, the trial judge let the cop testify about his conclusions in the report. The jury's verdict aligned with the cop's conclusions. But the appellate court reversed, finding that it was error to allow the police officer to testify about fault from the accident report. And rightly so. What good is a jury trial if a cop is allowed to say whose fault it was? That's the job of the jury, not the cop.

The cop of course can issue a ticket to the party he believes is at fault, but even that ticket won't get into evidence in the personal injury trial unless whoever got the ticket pleads guilty to it. Even if the driver is convicted of the traffic violation, it still won't get into evidence unless he has pleaded guilty to the charge. Why not? Well, all these rules protect our jury system. Juries are to determine fault, and cops and other law enforcement officers - stay out of it!

Keep safe!
Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central & Syracuse NY Auto Accident Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

March 9, 2015

Suing For Your Kid's Sports Injuries In New York Can Be A Long Shot

wrestlers.jpgA new case demonstrates how tough it is to sue for kids' sports injuries.

Normally a participant in a sport - even a child - assumes the risks inherent in the sport and therefore can't sue to recover for injuries. There are some exceptions to the rule. For example, You don't "assume the risk" of a danger you would not normally expect to find in the sport (example: a puddle on an indoor basketball court).

So here's a summary of that new case: In Cvijenovich v Beacon Kids Wrestling Club, a child wrestler's opponent suddenly did "an illegal or unreasonably dangerous wrestling move" causing him injury. An illegal or dangerous move like this is not covered by the "assumption of risk" doctrine because no one joins a wrestling club with the expectation that illegal, dangerous moves will be used. Participants assume the risk only of legal moves.

So the kid's parents sued the wrestling club on behalf of their injured child, alleging that the Club failed to provide an adequately trained or certified referee to supervise the wrestling match. After all, the ref was just a high school wrestler. But the Appellate Court held that the illegal move happened so fast that no amount of supervision or training of the ref would have prevented it. In other words, even if the ref had been the best trained and most highly certified ref in the world, there is no way he could have expected or stopped the illegal move from happening. In fact, right after the move, the ref disqualified the wrestler and gave the match to his injured opponent. What else could he have done? Thus, the alleged "negligence" of the Club in failing to hire a well-trained ref did not cause the injury.

I suppose the kid's parents could sue the other wrestler, but the problem there is coverage. A 10-year old wrestler is unlikely to have assets, his parents can't normally be held liable for his actions, and homeowner's insurance is unlikely to cover sports-related negligence.

At Michaels & Smolak, we have successfully brought sports injury cases, but the facts have to be just right for us to even consider such a case. The only way to find out whether your child's case is likely to succeed is to call us to find out!

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

March 1, 2015

Medical Malpractice Tort Reform Doesn't Work. Duh!

doctor bad.jpgCame across a great article in the Observer. Here's my rambling summary:

The insurance industry has convinced more than half the states to pass medical malpractice "tort reform" legislation. Their tactics? Cash-in-fist lobbying plus promises that restricting medical malpractice suits would cause doctors' insurance premiums to plummet. This would in turn lower health care costs and improve healthcare.

The only problem is it turns out the insurance lobby sold us a bill of goods. Every study ever done since tort reform (I have read most) was enacted has shown little or no gains in the area of insurance premium reduction or medical care cost reduction.

For example, Texas, Georgia, and South Carolina have made it virtually impossible to sue doctors or hospitals for emergency room treatment. The insurance lobby promised that this would prevent so-called "defensive medicine" (doctors ordering expensive tests and imaging to protect themselves from accusations of malpractice) in the ER room. But a recent study examined 3.8 million emergency department visits at 1166 hospitals between 1996 and 2012. The ER doctors in the tort-reform states--who were virtually immune to malpractice suits--prescribed just as many MRIs and CAT scans as doctors in the control states. Removing the risk of getting sued didn't put a dent in so-called "defensive medicine".

The insurance companies, though, have pocketed huge profits from their savings. They have benefited from their "reforms" while we have not. In fact, the average Joe - and all medical malpractice victims -- have had to pay a big price. An avalanche of evidence shows that hospitals are very dangerous places because of careless medicine. Close to a million patients are killed (and many more injured) in hospitals each year due to medical errors. This number dwarfs even automobile and workplace deaths. And the number doesn't even include deaths in doctors' offices or clinics (like the one Joan Rivers recently died in). And guess what - if hospitals and doctors don't have to fear medical malpractice lawsuits, they have no incentive to improve.

The truth is that the most powerful engine ever invented to improve safety in our hospitals is the unfettered medical malpractice lawsuit. For example, there is compelling proof that safety reforms in anesthesiology in the 1980's were spurred by a spree of large malpractice verdicts. To avoid paying out such claims, anesthesiologists improved their safety. They established mandatory monitoring, implemented more training, limited the number of hours anesthesiologists could work without rest, revamped machines and installed safety devices on them. Within a decade, the mortality rate from anesthesia dropped from 1 in 6000 administrations to 1 in 200,000. And anesthesiologists' malpractice insurance rates fell to among the lowest of any specialty.

We all pay the price for medical malpractice tort reform. Hospitals and doctors' offices stay unsafe - or become even more unsafe. Doctors' insurers reap the profits. Medical malpractice tort reform works for them, but certainly not for the rest of us.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Medical Malpractice Lawyers
Michaels & Smolak, P.C.

1-315-253-3293


February 24, 2015

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

jail.jpgYes, 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 & Smolak 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.

Think the inmate made out like a bandit? Think again: He served his full sentence until he was paroled, and then died four days after he finally tasted "freedom", at age 41. Four days to enjoy his $15 Million. Paralyzed from the chest down. Doesn't sound like fun to me.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Medical Malpractice Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

February 3, 2015

The Mental State Of "Negligence" In New York Personal Injury Cases

just because you did it.pngI 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.

Ready? Here comes the tie-in to New York personal injury law: The concept of "negligence" - the heart of most personal injury law cases -- also looks into the defendant's state of mind. Was he trying to be careful? Was he looking out for the safety of others? If so he was not "negligent", no matter the harm he may have caused.

For example, if a motorist crosses over into the oncoming lane of traffic and crashes into an oncoming vehicle, that is normally "negligence" because he was careless. If, however, he crossed over to avoid a deer that jumped in front of him and he had only a split second to make that decision, a jury might find he was not "negligent", and therefore is not liable. That's because his mental state was different in each instance.

On the other hand, if the motorist was racing and crossed over to pass another vehicle at break-neck speed, his state of mind could be found to cross over from mere "negligence" into the mental land of "recklessness". That means he was mentally indifferent or wanton or deliberate in putting the public at great risk. This is also called "gross negligence". In New York personal injury law, the jury can award a victim of gross negligence not only compensatory damages, but also punitive damages (make him pay additional money beyond what it takes to compensate the victim in order to punish the offender).

So there you go. Do you agree I have fully justified posting this crazy lawyer billboard? Hope so.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central & Syracuse NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

February 2, 2015

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

doctor bad.jpgIf 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.

Now, however, that website is in jeopardy. A two-sentence item buried deep in Governor Cuomo's proposed budget would eliminate the New York State Physician Profile. The budget savings? $1.2 million annually -- chump change in the context of New York State's annual budget of about $140 billion.

The site -- operated by the New York State Health Department -- is a big hit with patients. Last December alone 35,000 clicked onto the site.

Cuomo justifies nixing the site by claiming that the same information is available elsewhere on the web. That's mostly true, but finding it requires sleuth-like skills and patience that many medical consumers don't have. If you are lucky or persistent enough you might find all the same information on other sites. But why not have one-stop easy "doc shopping" at such a low cost?

The author of the 2000 law creating the State website, Assemblyman Richard Gottfried, summarized the problem: "As we move towards more transparency and public access to healthcare information, this proposal takes us in the opposite direction."

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Medical Malpractice Lawyers
Michaels & Smolak, P.C.

1-315-253-3293