April 14, 2014

Planes, Trains and Automobiles --- Negligent In Being Asleep At The Wheel: Central NY Injury Lawyer Explains.

chicago.jpgstaten.jpgThumbnail image for truck.jpgair.jpg
The Metro-North engineer who derailed his train last year, killing four passengers and injuring dozens more, was suffering from a sleep disorder. He slept through the accident.

The driver of the Chicago subway train that recently crashed at O'Hare International Airport told authorities she fell asleep before the train entered the station. Her train derailed and raced up an escalator, causing injury and death.

In the 2003 Staten Island Ferry crash, it was determined that the pilot lost consciousness while at the ship's controls. He had taken the painkillers tramadol and Tylenol PM, both of which can cause drowsiness as a side effect.

The captain of the 2009 Air France plane that crashed into the sea killing 228 people on board had just one hour's sleep before setting off.

The driver of a tractor trailer that crashed into a Kansas Turnpike toll plaza on March 29 of this year appeared to be asleep in photos taken just before the crash.

Yes, sleep can be deadly, on the road, in the air, on the sea --- and in court, too. In New York, evidence that the driver fell asleep at the wheel creates what we lawyers call a "rebuttable presumption" of negligence. That means that once you show in court that the driver fell asleep, you have made out a "prima facie" case, which means you have proved your case subject to the driver getting a chance to explain why it wasn't his fault he fell asleep. (As the old Saturday Night Live skit put it, the driver has "got some splaining to do").

How does the asleep-at-the-wheel driver show that it was "not his fault" that he fell asleep? Assuming he or she can stay awake long enough to explain, his or her testimony will be subject to brutal cross-examination. People just don't suddenly fall asleep. Before sleep sets in, there's a warning sign --- called "sleepiness" or "drowsiness" --- which almost always comes on before actual sleep. Anyone who testifies that he just "suddenly" fell asleep, without warning, is likely lying, and a jury is likely to disbelieve that testimony. The negligence of the asleep-at-the-wheel driver or pilot or captain resides in his decision to keep driving after his body warned him it wanted to sleep. He should have pulled over and rested, or had his co-pilot take over, or called his boss to tell him he was in trouble.

Now the jury will have to tell him he's in trouble.

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 Toll Free 1-866-698-8169


April 13, 2014

Central NY Injury Lawyer's Advice To Young Lawyers

old and young lawyer.jpgAdvice to a young personal injury lawyer:

Hey there young fella. Look at me! Grey hair is creeping up the side of my scalp. I am within shouting distance of 60-years old. I am now a veteran New York personal injury litigator. My running stride is slower, and aches and pains sometimes plague me, but hey, I'm wiser, too. So listen up young whippersnapper! Here's a few lessons I've learned about life in this high-stress, time-consuming job you've chosen.

(1) Keep learning. No matter how good you are, someone else is always better. So be humble. You need to keep learning this trade until the day you die. Never think you know too much.

(2) Keep caring. Try to keep on caring about those you serve. After you have represented a few hundred seriously injured clients, you can get jaded and stop feeling for them. There are two reasons not to let this happen to you: (1) you can't effectively represent seriously injured people if you don't "feel their pain"; (2) your humanity barometer will go crashing to the floor if you let it. Do you want to be a good human? Then care. Really care.

(3) Keep giving back. Even though our job is stressful-as-all-hell, and even though we sometimes have to put in ungodly hours, we are so damn lucky to have a job that pays well and is interesting and exciting at times. 95% of humans are stuck in a rut of boring, oppressive jobs, or worse, have no job at all and live in dire poverty. If you don't think you need to give back, ask yourself where along the road you lost your humanity. Get on a few boards, give generously to not-for-profits, and go volunteer at something. Side benefit: You might get some clients that way, too.

(4) Keep a balanced life. Family and friends matter even more than your job, especially family. Being a good dad, or a good husband, wife or partner, will give you more satisfaction in the long run that just being a good lawyer.

(5) Keep outside interests. Read, travel, play the kazoo in a punk band - whatever floats your boat. But, geez, don't just be lawyer.

(6) Keep in shape: It's the best stress therapy besides sex and beer. Oops - did I just say that? Seriously, Ride a bike, jog, jazzercise - whatever. You and your heart really need this. Side benefit: I can't tell you the number of brilliant case strategies that have occurred to me during those lonely runs.

See ya in Court, kiddo.

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 Toll Free 1-866-698-8169

April 11, 2014

Central NY Injury Lawyer Talks About New York Wrongful Death Cases

Picture of Michael Bersani .jpgHey, check out my new video on New York wrongful death cases:


April 9, 2014

Central NY Injury Lawyer Selected As Bicycle Law Advisor for New York Bicycling Coalition.

bicyclists racing.jpgAs a cycling enthusiast, and a New York bicycle accident lawyer, I am proud to have been recently selected by the New York Bicycling Coalition to provide New York bicycle accident advice and information for residents of the New York State counties of Oswego, Madison, Onondaga, Cortland, Cayuga, Oneida, Herkimer, Otsego, Schoharie, Montgomery, & Fulton Counties.

Wait. What is the New York Bicycling Coalition? Glad you asked. Its mission is to ensure that bicyclists in New York State are safe, respected, and fully integrated into the transportation system, and that laws and funding are in place to make it so. They also provide education and advice to bike advocates and groups. In sum, the coalition provides a voice for the interests of people who, like me, ride bikes!

Three other New York bicycle accident lawyers have been selected to cover the other New York Counties. They are:

Jim Reed for Allegany, Broome, Chemung, Chenango, Delaware, Otsego, Steuben, & Tioga Counties

Daniel Flanzig for the boroughs of Bronx, Brooklyn, Manhattan, Queens, Staten Island; and Nassau, Suffolk, & Westchester Counties

And Terry O'Connor for Albany, Clinton, Columbia, Essex, Greene, Hamilton, Jefferson, Lewis, Rensselaer, Saratoga, Schenectady, St. Lawrence, Warren, & Washington Counties.

I am proud to be riding beside these three great personal injury lawyers.

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 Bicycle Accident Lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169


April 8, 2014

Suing For Compensation Beyond Workers' Compensation For New York workplace Injuries.

Picture of Michael Bersani .jpgCan you sue for compensation beyond your workers' compensation benefits if you are injured on the job in New York? Maybe. Find out how by watching my new video about New York personal injury lawsuits for on-the-job injuries.

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 Toll Free 1-866-698-8169

March 28, 2014

How to Win a Motorcycle Case in New York

motocycle.jpgCheck out the latest installment of my New York personal injury informational vidoes: How to win a Motorcycle Case in New York.

Tell me what you think by emailing me at the address below.

P.S. No rotten tomatoes!

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 Motorcycle Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

March 27, 2014

Central NY Injury Lawyer's New Videos

Picture of Michael Bersani .jpgThere's something new at Michaels & Smolak: Personal injury informational videos. I have filmed about 20 so far (but not all are posted yet). Each runs for less than 5 minutes, and usually more like 3 minutes. Check them out here! For example, want to learn how a New York personal injury deposition works? Just click on the video. Want to know what your New York personal injury case is worth? Well, there's a video for that, too.

Why am I posting these videos? Two reasons: (1) To answer some of my clients' most common questions about their personal injury and medical malpractice cases and (2) To showcase our intimate knowledge of New York personal injury law to web searchers looking for a Central New York personal injury lawyer.

Filming them was easy. No notes needed. I am talking from memory because I know this stuff so well after nearly 20 years of doing it.

I have to thank my partner Jan Smolak for the technical help on this. He picked out the high definition camera, taught me how to work it so I can film myself, and does all the editing.

So, dear reader, check out a few of my videos, and let me know what you think by emailing me at the address below. Please, no rotten tomatoes! 

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 Toll Free 1-866-698-8169

March 12, 2014

Central & Syracuse NY Injury Lawyer Discusses New Bicycle Safety Gadgets

bicyclists racing.jpgYesterday the sun peeked out from its cloudy winter hide-away, prompting me to go for a noon-time run in shorts and a t-shirt. Alas, today winter blasted back, closed our local schools, and kept me at home working from my computer. For my workout today I donned my cross-country skis and traipsed through some nearby woods.

But yesterday got my mind on spring. My daily workout will soon include bicycling. In the good weather, I try to put in at least 150 miles a week on my road bike.

I have a steady companion when I am out on the roads on my bike; fear. Why fear? Because I am a New York bike accident lawyer. Because many of my clients lives have been destroyed by a car or truck. Because one of my cousins was killed on bike last year. And because I personally have had some close calls.

I try to do everything as safe as I can out there, including using blinking lights on the front and back of my bike even during my daytime rides.

The biggest problem for us road-bikers is that cars don't see or hear us. But there may be good news for me and other bike enthusiasts, as can be seen in this New York Times article titled "Gadgets to Boost Bike Safety".

Here is a summary of the new bicycle safety gadgets the article discusses:

• A small lightweight bicycle horn that emits the full volume and sound of a car horn. Watch and hear it work here!

• A new sophisticated bicycle lighting system that reacts to surrounding light levels and movement. For example, if the cyclist swerves or brakes, the lights flash in a pattern similar to those on an ambulance or a police car. Watch it here!

• An inflatable neck scarf -- called a Hovding -- that inflates and transforms into a helmet - like an airbag for the head -- when it detects an impact or that you are falling. Watch it here!

This is all cool stuff. It makes road-biking a lot safer. But still, the safest thing you can do is follow the rules of the road and be on the lookout for those pesky vehicles. Never, ever assume any of them see you.

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 Bicycle Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169


February 20, 2014

Bill In Albany Would Allow Lawsuits By Wrongfully Convicted Even If They Gave False Confessions.

jail.jpgThese days, thanks to the "Innocent Project" and advances in DNA testing, more and more victims of wrongful conviction are able to prove their innocence, even after many years behind bars.

This gets them out of jail, and under certain conditions, arms them with a claim against the State of New York to get money compensation for their nightmare behind bars. In New York, Court of Claims Act section 8-b says the wrongfully convicted can seek compensation from the State if they prove they are innocent and "did not by their own conduct bring about the conviction." Courts have interpreted this language to mean that someone who falsely confesses to the crime cannot sue for compensation. After all, if you tell the D.A. "yeah, I did it", you arguably "brought about your own conviction", right?

Maybe. But that begs the question of why someone would confess to a crime they did not commit. Sounds silly to people who have never been under the grueling pressure of a tough interrogation for hour upon hour. But it makes sense to some of the accused at the time. Lengthy, tough interrogations do something to the human psyche. Sometimes people crack. Some folks have weaker constitutions than others. Especially those with serious mental or psychological problems, or who are too young to know what they were doing.

The proof is in the pudding. Of the twenty-seven people in New York who have had their convictions overturned by DNA evidence since 1991, ten -- more than a third -- had falsely confessed or pleaded guilty.

Now a new bill, the Unjust Imprisonment Act, would amend §8-b of the Court of Claims Act to allow people who have confessed or pleaded guilty to a crime they did not commit to sue the state for damages. The bill would also extend the statute of limitations for such suits from two years to three.

Interestingly, the bill comes from the desk of New York State Attorney General Eric Schneiderman, whose office is also responsible for defending claims, including wrongful conviction claims, brought against New York State. But he decided to do "the right thing" regardless of the consequences to his office. And for that he deserves our praise.

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 Wrongful Conviction Lawyers
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

February 16, 2014

Why this Central NY Medical Malpractice Lawyer Would Not Get "Caught Dead" In The Auburn Memorial Hospital Emergency Room.

emergency.jpgIf you were my client, and you read the following headline in our local Central New York Newspaper, the Syracuse Post Standard, what would you do?:

"Central New York Injury Lawyer Worst in Nation".

Or what about this one:

"Auburn Injury Lawyer Charged with Misconduct Agrees to Never Practice Again".

I'll tell you what you would do. You would run down to my office, grab your file, bring it to a good New York personal injury lawyer, and never look back.

Well, the Auburn Memorial Hospital, right here in Auburn New York, has had precisely these kinds of headlines in recent times. In January 2013, a Syracuse Post Standard headline read, "Auburn Hospital Worst in Nation". The article went on to explain how Auburn Memorial was facing the biggest Medicare pay cut of any hospital in the nation under a new Federal payment system that rewarded or penalized hospitals based on how well they cared for their patients.

Then in January of this year another headline ran, "Auburn ER Doc Charged with Misconduct Agrees to Never Practice Again". The article explained that the ER doc had been censured for failing to maintain records, failing to adequately diagnose and treat patients, and failing to admit patients that should have been admitted, and inappropriately discharging others. Note: On the bright side, he did not cut off the wrong leg of any of his patients :)

So now you know why, if I were ever to have a heart attack or stroke here at my personal injury law firm office in Auburn, New York, I would, with my last conscious breath, emit two words: "NOT AUBURN!"

And that's sad because I love Auburn, love working here, love the people here, and think is a great small city. But Auburn Hospital, unfortunately, is suffering the same fate as many small regional hospitals --- tight budgets and red ink tempt them to cut safety corners and to hire docs and other staff from the bottom of the barrel. (Don't get me wrong -- there are lots of great docs and nurses at Auburn Memorial Hospital --- but there are also some very bad ones, as the story about this substandard ER doc demonstrates).

We have a right to better care. Auburn may be the back waters of Syracuse, but it is not the Third World. We're in the United States of American, damn it! If small regional hospitals like Auburn can't deliver medical care at an acceptable level of competence, they have no business being in business. Geez, just Mercy-flight us all to SUNY Upstate. It would be cheaper, and more efficient, than maintaining a substandard hospital in Auburn.

And please, don't go blaming us Central New York medical malpractice lawyers for the problem. No sir, we make no apologies. The medical malpractice lawsuits we file are the the effect, not the cause, of the negligent delivery of medical services at Auburn and other hospitals. Yes, we have sued Auburn Memorial Hospital for its doctors' malpractice. And no, we won't hesitate to do so again should our clients suffer the terrible consequences of the substandard medical care delivered there. The "sting" of our lawsuits spurs hospitals like Auburn to deliver better care, and without the threat of that sting, dangerous cost-cutting would likely cause medical care in Auburn, and elsewhere, to spiral down to Third-World levels of care.

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 & Syracuse Medical Malpractice Lawyers
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

February 4, 2014

Can You Sue For An Unwanted Marijuana High? Central NY Injury Lawyer Explains.

cannibis.jpgMarijuana is now legal for medical purposes in about twenty States and for recreational purposes in two (Colorado and Washington). New York appears poised to follow suit, at least for medical purposes. That makes for a lot of legal pot smoking. But not everyone who wants, or medically needs, marijuana's effects likes to smoke. So marijuana stores are stocking up on tasty ways for customers to eat their way to that same high, including gummy bears, dew drops, chocolate truffles, and other sweets all laced with mind-altering THC. Some of them contain ten times as much psychoactive THC as a casual pot smoker might take.

So what's the problem? Once a customer removes these goodies from their carefully labeled "marijuana" bags or boxes, they look just like the sweets commonly available in any grocery store candy aisles. They don't look like a drug. In fact, they look like pretty tasty treats. They then become an "attractive nuisance" to the unwary and hungry. Small children are especially attracted to the colorful delicious looking candies or chocolates. Unsolicited, unexpected highs are bound to happen.

This is not just a hypothetical problem. The New York Times reports that a growing number of children are seeking treatment after accidentally consuming marijuana. The children, many of them toddlers, are taken to the ER because they seemed strangely sleepy and disoriented.

It is true that marijuana, even if consumed by children in high doses, poses no life-threatening dangers. But that doesn't mean it's "harmless". Children or even adults who don't know why they are feeling so strange might suffer fear, panic, emotional turmoil ("am I going crazy?!). They are also at risk of falling and hurting themselves or of getting into a car accident because they got behind the wheel not realizing they were going to end up stoned.

When they go to the hospital and are eventually diagnosed with - well - being stoned, there's no antidote --- they just have to lie back and try to enjoy it.

But what if they DON'T enjoy it? Assuming there's no car accident or trip-and-fall, can they sue someone simply for having been subject to an unwanted high? Or can they sue on behalf of their young child if he or she unwittingly consumes some of these THC laced sweets? And who would they sue? The manufacturer, the store, or the friend who accidentally left them lying around, unlabeled?

If I were representing such a plaintiff, I would sue all of the above. I would sue the manufacturer and store for failure to warn. I would argue that they had a duty to somehow distinguish their product from regular food products with some kind of engraving or stamp on the chocolate or gummy so that even without packaging they would be distinguishable. Or they could shape all the sweets into the highly recognizable cannabis leaf form. I would also sue the "friend" who left these "sweets" out and about with no warning. How careless! His or her homeowner's insurance should provide coverage.

The real question, though, is, what is such a case worth? Can you, or your child, get any significant monetary compensation for an unwanted, even frightening, high? Would the likely verdict merit the long and hard-fought litigation? We'll have to wait and see how these cases shake out. Some brave personal injury lawyers will bring the first few cases while the rest watch and wait. Those first few verdicts will give us a kind of "pulse" on the jury value of such cases. Then we'll know whether they are worth the trouble and risk.

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 Toll Free 1-866-698-8169

February 2, 2014

How New York Personal Injury Lawyer Can Be Spiderman's Superhero.

images[5]-thumb-300x224-13274.jpgWho wouldn't want to be Spider-man? His outfit is so much cooler than Superman's. And what about swinging between skyscrapers by spitting that web-gook from your wrists? Isn't that a more thrilling way of getting around than that all-so-boring Superman extended-arm flight?

Not so fast! Be careful what you wish for. At least that's what three Spider-man actors are saying.

Let me take you back to December of 2010, when I blogged about Spider-man's incredible 30-foot plunge to the stage floor in a Broadway performance of the musical, "Spider-Man: Turn Off the Light". His spider-swing-line failed, catapulting him to the stage below in front of a horrified crowd of Spider-man fans. But Spidey -- as I like to call him -- in true superhero fashion, recovered and returned to the show within months. The show must go on!

I don't know if Spidey sued for negligence, but he should have. Whoever designed or installed that swing-line did a terrible job and should have had to pay the consequences. How could that line fail to support him without there being some negligence?

Then the actor who eventually replaced Spidey 1 -- whom I'll call Spidey 2 -- was injured on the same stage (not clear how). He sued the stage equipment provider for $6 million.

That was not, however, the end of Spider-man's stage saga. Last August another Spider-man -- Spidey 3 -- was injured in the same theater when his foot got caught between a mechanical lift and the stage. He suffered serious foot injuries requiring "surgeries and amputations" according to the New York personal injury lawsuit he filed last week in Manhattan.

Yes, being Spider-man is clearly a dangerous job. And a certain amount of assumption of the risk clearly comes with the job. But when injuries are caused at least in part by someone's negligence, even Spider-man has right to recover.

Think about poor Spidey 3. He's a young dancer-actor with a serious permanent foot injury that may deprive him of millions and millions in income over his lifetime. It makes no sense that his foot would get caught between the mechanical lift and the stage without some kind of defective design there. A proper design would not have left a wedge wide enough for his foot to get caught.

Folks, keep in mind that us New York personal injury lawyers can be superheroes, too. You might say, "I'm not the suing type", but when you're hurt, can't work, can't pay the bills, and your kids are paying the price, too, and it's all because someone else wasn't careful, believe me, you'll be "the suing type" soon enough.

Hey, my suit-and-tie lawyer outfit might not be as exciting as Spider=man's skin-tight blue-and-red costume, but when I'm on my game, in Court, I can be someone's superhero . . . even Spider-man's!

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 Superhero Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169


January 28, 2014

Can Uber (The Mobile Phone Driver-Rider Connection Service) Be Held Liable For a New York Car Crash?

index.jpgMove over taxi services. You're sooo "old school"! I mean, come on, making us stand on a corner and hale you down? Geez.

Uber is the new black. Just download the Uber app on your smart phone and it will "connect you with a driver at the tap of a button", according to the Uber webpage. An Uber driver will appear out of nowhere, having almost instantly obtained your location from his or her Uber drivers' app. No cash exchanges hands -- the rider's "fare" is paid automatically through his Uber online account.

Uber essentially connects freelance, self-employed drivers with anyone needing a ride in major cities, including New York City. It now operates in 26 countries and 50 cities. But at least here in the U.S. sticky questions are coming up about Uber's liability for crashes its drivers might cause.

For example, just recently in San Francisco an Uber driver hit a 6-year-old in a cross-walk, killing her. The victim's family has just filed a wrongful death suit against not only the driver, but Uber as well.

The legal problem with this in New York, and elsewhere, is that normally there are only three proper targets for a lawsuit where negligent driving is to blame: The negligent driver, the owner of the vehicle he was driving, and, if the driver was employed and on-the-job at the time of the crash, the employer.

But there's the rub. Uber claims it is not an "employer" of the Uber driver, but rather that the drivers are independent contractors who, owning and caring for their own vehicles, choose to participate in Uber's driver-rider matching service. Uber compares itself to the auction site eBay, connecting a buyer and seller (driver and rider) and not liable for what happens between them. It thus washes its proverbial hands of liability for any accidents.

There's a problem with this logic, though. Uber may be the next Ebay, but Ebay doesn't have the same capacity to kill and maim its users. Uber does because it could screen drivers based on their driving records. Also, what happens when an accident is caused by an Uber driver looking down at his Uber app to confirm where and when to pick up a rider? Or what if the driver runs someone over while pushing a button on the Uber app to confirm an assignment? In such cases, shouldn't Uber be held liable for distracting the driver?

The issue is coming to a fore because the company is becoming wildly popular in big cities all over the world.

Here's the rule I would espouse: Uber should be held liable for failing to screen for safe drivers and for any accidents caused by its drivers' use of its Uber app. Uber is in the best position both to screen its drivers and to enforce safe uses of its app. Such a rule will make Uber drivers safer and protect all of us. Beyond that, Uber should not be held liable for mere Uber driver error. It should, however, require its drivers to have the same amount of commercial liability insurance as cab drivers in the cities where they operate.

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 New York Auto Accident Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

January 26, 2014

Do Meniscectomies Relieve Meniscus Tear Pain? Central NY Injury Lawyer Discusses Recent Study.

meniscus.jpgI recently read about a Finish study published in the New England Journal of Medicine suggesting that one of the most common types of knee surgery (a meniscectomy) is worthless. The meniscus (see photo), by the way, is the cartilage of the knee located on either side of what is popularly known as the "knee cap" (patella). It acts as a shock absorber.

The removal of (either part of or the entire) meniscus, known as a "meniscectomy", is a simple operation: Small incisions are made for inserting the arthroscope (a small surgical camera) inside the knee. A tool called a "shaver", guided by the surgeon, then trims torn meniscus and smooths the edges.

In the study, 146 patients with torn menisci were divided into two groups, one to receive real meniscectomies, and the other to receive a "fake surgery", in which blade-less shavers were rubbed against the outside of the knee cap to simulate the sensation of having an actual meniscectomy.

The study showed that the same percentage of patients in each group claimed to have benefited from the "surgery".

Wow.

I personally have undergone two meniscectomies (right knee lateral and medial) about 5 years apart. For me, both meniscectomies worked like magic: before the operation, my torn meniscus would start causing a sharp, stabbing pain after about a mile of running. After the surgery, in only about a month, I was out running my usual 5 to 7 miles painfree.

Many of my clients, Central New York personal injury accident victims, also end up with meniscectomies when a knee is twisted or knocked about in an accident. They have also usually gotten significant relief from the surgery. But after this Finnish study, I have to worry whether eventually health insurers and others will stop paying for meniscectomies. After all, the Finish study is basically saying the surgery is worthless.

So who's right, the Finish study or my clients and me?

As I read the article again, I noticed that all the participants in the study had "wear-induced meniscus tears", not traumatically induced tears from sports-related injuries or personal injury accidents.

My meniscus was torn by running, a kind of trauma to the knee. My clients' were torn by accident trauma, usually falling on pavement or hitting the dashboard in a car accident. Perhaps therein lies the difference; trauma induced meniscus tears somehow are relieved through surgery, whereas old-age wear-and-tear ones are not.

So here's my note to the Finnish study folks: Redo the experiment with trauma-induced meniscus tears, will ya?

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 Toll Free 1-866-698-8169


January 25, 2014

Hospitals Rip Off Patients And Tax Payers By Prodding ER Docs To Keep Patients Overnight Unnecessarily.

money doctor.jpgHospital care in this country is sick. Sadly, old-fashioned medical "care" is giving way to the "big business" model. Nothing new about that. Profits are being exalted over patient care. Again, nothing new. But the news about Health Management Associates, a for-profit hospital chain based in Naples, Fla., is simply over the top.

The New York Times reports that, in order to entice their ER docs to drum up more profits, the hospital chain carefully tracked each physician's ratio of admitting, versus not admitting, ER visitors for overnight stays. Worse, each physician had a visible-to-others color-coded "score card": green (good grade), yellow (watch out!) or red (failing grade). "Green" docs were given bonuses while the reds' jobs were on the line.

The goal? To inflate the company's payments from Medicare and Medicaid by admitting patients who really don't need to be admitted to a hospital, like -- and this really happened -- an infant whose temperature was a normal 98.7 degrees for a "fever".

This is what happens when community based not-for-profit hospitals are transformed into large, corporate, profit-driven ones. Good health care is no longer the real goal - big profits are. Sure, there are advantages - economies of scale, efficiencies, some cost cutting - but at what price? Under this new model of health care, physicians become mere employees of large corporations who focus on making sick profits rather than making the sick profit from their services.

The head of the outfit -- the genius who initiated the twisted color-coded reward system for ER docs -- stepped down last year, but not before making $22 million in the last three years before he left.

Hello? Is there any justice out there? Well, some. Medicare and Medicaid, with the help of the Department of Justice, have sued the hospital chain to recoup payments. There may be criminal charges, too. But what about the patients who were persuaded to stay overnight for unneeded vigilance and testing? Can they sue for their lost time and the extra worry? Individually, probably not -- the cost of litigation would overwhelm any potential recovery. But there may be a class action lurking out there somewhere.

Let's hope so. A class action would be a nice shot-in-the-arm to this sick corporate hospital model.

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 and Syracuse NY Medical Malpractice Lawyers
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169