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

January 31, 2015

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

Reid.jpgIt's all over the news: Seventy-four year old Senate Minority Leader Harry Reid's power workout "backfired" on him. Literally.

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

Ouch!

Moreover, huh???!!!

I am an inveterate exerciser myself, but I am having trouble figuring out what kind of exercise Harry Reid was performing when he managed to turn himself into a human slingshot at that kind of velocity!

What "band" was he using? Was it nuclear powered? And did the band actually break, or did the Senator simply not attach it correctly to the shower door? Or did the shower door fail? Was he following the manufacturer's instructions, or was he "winging" it (literally)? Did a manufacturing or design defect cause the product to break? Harry, tell us more! Without knowing exactly how this bizarre accident happened, or what kind of band he was using, it is hard to know whether he has a products liability claim against the band manufacturer.

Apparently, how Reid turned his body into a speeding bullet will remain a mystery. Although small pieces of the story keep dribbling out (he recently told a radio show he was using the second-strongest band there is -- a gray color band) the whole story -- like a steamy bathroom -- is clouded in mystery.

I am tempted to repeat the jokes I read in the Daily Beast -- about Reid enduring the "slings and arrows of politics", or about him attempting to "bounce back" from his injury, but I will refrain.

Oops, I didn't.

Seriously, accidents aren't funny! Be careful out there!

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 Product Liabilty Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

January 30, 2015

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

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

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

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

Almost nothing is harder to live with than causing the death of a loved one - your passenger - because you did not drive at a prudent speed for the conditions. Please drive carefully!

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

1-315-253-3293

If you are the injured passenger of such a vehicle, do not hesitate to call me for more information.

January 29, 2015

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

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

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

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

How did the judge rule? The Judge allowed the posts to be read in open court, but also instructed the jury that the messages had not been communicated that way to the ex. The ex, like everyone else in the FACEBOOK world, would have SEEN the postings with the accompanying emoticons. "The jury should read them," the judge said. "They are meant to be read. The jury should note the emoticons."

Think of how an emoticon can change the meaning of a sentence. "I'm going to kill you!" followed by a wink, tongue out, or a smiley is not same message as a bare "I'm going to kill you".

Fellow lawyers, if you have a case where online postings or emails or texts are coming into evidence, and they were accompanied by emoticons, and the emoticons change the tenor, tone, or the meaning of the post, fight like hell to have the post SHOWN to the jury on a big screen, or at least passed onto the jury at the same time or shortly after they are read aloud in court.

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 Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293


January 26, 2015

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

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

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

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

Bottom line: If you want to bring a wrongful conviction claim against the State of New York based on Court of Claims Act § 8, you had better have clean hands.

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

January 25, 2015

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

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

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

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

Worse, the injured plaintiff usually looks and talks "normal". It is easy for a jury to conclude -- especially in this post-MacDonald's case environment - that the plaintiff is "faking" or at least exaggerating.

The press was all over the recent Syracuse traumatic brain injury trial because it involved a famous entertainer - Rick Springfield. A fan at his 2004 NYS Fair performance - 45-year old Vick Calcagno -- claimed that, while dancing on stage, he had fallen on her, knocked her down, and caused her to suffer a traumatic brain injury. She claimed that Springfield had been "careless and negligent" during the course of his concert by "performing, hopping and/or jumping" on chairs and benches.

After a week of testimony and only about an hour of deliberations on a recent Friday morning in the Courtroom of Judge Anthony Paris in Syracuse, a jury determined in only one hour that the singer and actor had not caused any brain injuries - or any injuries at all.

Calcagno's credibility quickly and repeatedly came under fire. Although this is typical in brain injury cases, this case presented even greater hurdles for the plaintiff. She had no witnesses to back up her story that Springfield had fallen on her. There were no videos showing what happened. She conceded that she did not leave the concert or seek medical attention at the time. The defense pointed out that, although she had emailed the NYS Fair about the incident, she did not mention specific injuries but rather asked only for Springfield's contact information.

She also attended a Cyndi Lauper concert a week after the Springfield concert, which probably convinced the jury she could not have suffered a brain injury at all (apparently the jury did not think -- as I do -- that wanting to see a Cyndi Lauper concert at all is indicative of a brain injury).

Although plaintiff's lawyer tried to explain all these seeming contradictions away, he failed. This case was a perfect storm for a brain injury lawyer. No good proof of what happened, post-accident behavior that could lead a jury to conclude the plaintiff was not very hurt - if at all, and only "invisible" symptoms that could not be clearly demonstrated on the stand.

There are of course ways to win traumatic brain injury cases, and each case turns on its own facts. I have attended seminars on how to try and win these cases, but they can -- and often are -- lost. If you have a traumatic brain injury, be sure to hire an experienced brain injury attorney so that you have the best chance at trial.

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 and Syracuse Brain Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

January 18, 2015

Do Xarelto Benefits Outweigh The Risks?

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

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

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

Or are you? The problem with Xarelto is that there is no ''antidote'' if you start to bleed excessively. Vitamin K acts as an antidote to Coumadin if you start bleeding excessively, but it has no effect on Xarelto.

So, because I am on Xarelto, if I develop serious bleeding, there may be little the doctors will be able to do to stymie it. Death may follow.

I have nevertheless made the decision to continue to use Xarelto rather than deal with the hassle of Coumadin and its monthly blood tests. You might say I have "assumed the risks" of Xarelto in order to avoid the hassles of Coumadin.

When I watch TV during my YMCA workouts, I see many ads on TV for Xarelto followed shortly by ads like this one:

It's kind of funny seeing ads for Xarelto back-to-back with ads inviting those harmed by it to sue.

Xarelto lawsuits exist because of products liability law, which essentially says that a product is "defective" if it is "unreasonably dangerous". Is Xarelto unreasonably dangerous? Our courts will have to test that. But for me - unless there are hidden risks I am unaware of - the small (I hope) risk of unstoppable bleeding is outweighed by the convenience of not having to get my blood tested once a month. Too busy!

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

January 10, 2015

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

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

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

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

Honda ran afoul of the law by failing to report hundreds of death and injury claims as well as certain warranty and other claims. This mandatory self-reporting helps regulators identify safety defects, which in turn helps them decide on recalls to save our lives. Honda's lack of reporting put its customers' lives on the line.

But who cares? Big business is all about making money, not saving lives, right? When the fox is hungry, what difference do a few hens make?

Will Honda continue to under-report fatalities, injuries and warranty claims? Or will the fine slapped on them - the largest ever - act as a deterrent? In my opinion, not likely. What's a measly $70,000,000 to a multi-billion dollar global company like Honda? A drop in the bucket. A slap on the wrist. Choose your metaphor.

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 Car Accident Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293


January 9, 2015

How To Avoid A DWI Arrest At A Sobriety Checkpoint: CNY Injury Lawyer Explains (Kind of)

DUI flyer.jpgI don't do criminal law. I'm New York personal injury lawyer. But I came across an interesting article about a controversial way to avoid getting "busted" at a sobriety checkpoint. This is criminal defense lawyer stuff. I am not recommending this, or even saying I agree with it. But I just find the technique interesting and wanted to pass it on to my readers.

Here's how it works: As you approach a sobriety checkpoint (a/k/a drunk trap), put your license, registration, proof of insurance and a "note" like the one depicted above in a plastic baggie attached to the exterior of your driver's side window and then roll up the window as you approach the checkpoint.

Then just remember to shut up. Don't answer any questions. Don't talk. The officer outside won't be able to say he smelled any odor of alcohol from behind your closed window, nor will he be able to say he heard you slur words (if you keep quiet). The cop will thus have no "probably cause" to arrest you.

Worried he might get pissed off at your sealed-in silence? You have the right to remain silent! What if he asks you to open your door or window? You have a right to keep them locked and closed! You have a Fourth Amendment right against unreasonable searches!

Unless the officer can say he saw you driving erratically, or you happen to have a bottle Jack Daniels in your hand, he won't be able to find probable cause to arrest you. Or to make you open the door to search your car.

A video of this technique being tested by a brave Florida driver this past New Year's Eve has gone viral on the internet. How did the cop react? He waved the car on! Will you be so lucky? What if the cop challenges you? What if he threatens to arrest you for failing to obey his order to open your window? In Florida, where this technique has emerged, certain sheriffs have threatened to arrest motorists for "obstruction"- if they try the technique. Yet Constitutional experts say the technique is probably perfectly legal.

I am asking my brave New York readers to drive into a sobriety check point (sober please!), and try this technique. Let me know if it works. Film it for me. Remember, this is not legal advice. In fact, it might be illegal advice. But I'm dying to know how it turns out for you. And if you call me from jail, remember, I am not a criminal defense lawyer!

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
Syracuse & Central NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

January 3, 2015

Tort Reform Gives G.M. (And Other Corporations) A Free Pass To Kill

car sale lot.jpgA New York Times article recently highlighted the consequence of many state's "tort deform reform" laws: Victims of devastating corporate safety lapses can't find a lawyer willing to represent them.

The article gives several examples of how tort deform reform is killing cases where corporate negligence has killed people. For example, a defective ignition switch caused a Wisconsin victim's car ignition to suddenly power off, causing him to lose control of the car, hit a tree, and die. The car ignition failure also caused the air bag system to fail. G.M. had received many reports of similar incidents involving the defective ignition switch before this victim died. In fact, at least 42 people had died under similar circumstances.

Yet when the family went looking for a lawyer for what they thought would be a "slam dunk" case, they got the same response from every lawyer they turned to: None were willing to take the case because of a Wisconsin "tort reform" law limiting recovery "for loss of society" to $350,000. Because of the extreme expense - estimated at $300,000 -- of suing a big corporation like G.M. for a complicated mechanical defect, it just did not make economic sense for a law firm to take the case on.

Do the math yourself: Would you spend $300,000 to maybe, if you win, take in a maximum of $350,000, which would net $50,000, of which you would have to give 2/3 to the client? That leaves you with about $17,000 for three of four years of litigation and at least 1,700 hours of attorney work, or at most $100 an hour, and that's if you win. And the $100 does not go in your pocket. You've got paralegals, secretaries, rent, etc. to pay. And don't forget you could lose the case and get nothing at all for your trouble.

Tort deform reform is killing many important lawsuits, like the one described above, before they can get off the ground. In the past, such lawsuits have exposed corporate cover-ups, greed, and the dangers inherent in corporate products. Think of all we know about the dangers of tobacco -- and the coverup within the industry -- that came to light only because of the discovery demands made on those corporations by cancer victims' lawyers.

Because of tort reform, this kind of important information may never see the light of day. Tort lawsuits against big corporate wrongdoers shed light on their dangerous products and practices. Tort reform turns off the light. Who will be left in the dark? You will. Your family will. We all will. In the dark, without a lawyer, with no road to justice. Welcome to "tort deform reform".

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
Syracuse & Central NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

December 29, 2014

Did Shakespeare Hate Lawyers? Central NY Injury Lawyer Explains.

wshakesp.jpgAs long as there are lawyers, there will be lawyer jokes and lawyer insults. You can probably think of three lawyer jokes off the top of your head. I know I can. (Don't worry - I won't tell any in this blog post!)

But was William Shakespeare among the insult-hurling lawyer joke makers? Was the best writer of the English language among the mud-slinging anti-lawyer crowd? I ask this because of the famous line from one of his plays where one of his characters says, "'the first thing we do, let's kill all the lawyers''? This phrase is often bandied about as proof that the great bard hated us lawyers. And if Shakespeare - the greatest writer in the English language - hated us, shouldn't all reasonable but less skilled writers and thinkers hate us as well?

In my opinion, and the opinion of many Shakespeare scholars, Shakespeare did not despise lawyers! Au contraire, he loved us. Shakespeare's famous "kill all the lawyers" line was uttered by Dick the Butcher in ''Henry VI,'' Part II, act IV, Scene II, Line 73. Dick the Butcher followed rebel Jack Cade who thought that if he got rid of law and order, he could become king. Thus, when Shakespeare has Dick say, "the first thing we do (to take over government), let's kill all the lawyers", he is really giving a kind of backhanded compliment to lawyers. He is saying, "if you want to illegally take power and set up a totalitarian regime, you need to first get rid of lawyers who will stand in your way".

Yet this quote from Shakespeare has instead been used by many to slam lawyers. It is used to insinuate that lawyers are an annoying and drab lot who get in the way of the legitimate pursuits of mankind. Nonsense! In fact, Shakespeare is saying "thank God for lawyers, who are the guarantors of the rule of law and order and who protect us against mob or totalitarian rule".

I love Shakespeare and I am proud that he loved my kind. I like to think that if he needed a New York personal injury lawyer, he would come a-knocking on my door. And if he did, I know exactly what I would say to him: "Hey Will, the first thing we do, let's kill all those insurance defense lawyers - in court!''

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

December 27, 2014

Pre-Death Terror Claims Can Be Worth A Lot In New York Wrongful Death Cases

flowerongrave.jpgNew York, unlike many other States, does not allow the family of a wrongful death victim to recover for emotional grief. All they can really recover is "economic loss" (medical and funeral bills, loss of financial support, etc.) and compensation for the decedent's "conscious pain and suffering". In many cases, however, the death is so quick there is no real "pain and suffering", only a short period of fear or anxiety about the impending death.

No matter how short, however, any New York personal injury lawyer worth his or her salt won't underestimate the value of pre-death terror compensation. In terms of dollar-per-second of suffering, no claim is worth more. Why? Because the jury wants to do something for the family and, if the death came on quickly, there is often no other way to compensate the family.

For example, let's say your loved one was hit head on my a negligent truck driver who crossed over into her lane. The force of the collision instantly killed her. The jury thus won't be able to give you - the family - anything for her "pain and suffering" after the collision. But it is pretty obvious that, at least for a few seconds before impact, your loved one "saw death coming" and was probably very fearful of what was about to transpire. In New York, those few seconds of anguish are compensable as "pre-impact terror". Most juries will make those few seconds of anguish very expensive for the negligent truck driver's insurance.

This is true not only for collision cases, but for any wrongful death case in which the victim had some moments to fear death. When there is no other pain and suffering provable, juries tend to be very generous with this kind of claim. They want to give the family something. Since the law does not allow for much else in New York, this is a good way for them to do it.

For example, in Lee v New York Hosp Queens, 35 Misc.3d 1225 (Queens Co. 2012) a medical malpractice victim suffocated and choked to death during intubation while fully conscious over the course of 12 minutes. The jury awarded the family $5,000,000 for that 12 minutes! (Note: the Court later lowered it to $3,750,000).

In Rivera v. City of New York (80 AD3d 595 [2nd Dept 2011] ) an asthmatic 10-year-old decedent died from a tension pneumothorax as a result of four hours of several intubations performed without administering pain medication or paralytics. The jury's verdict awarding his family $3,500,000 was upheld on appeal.

In Hackert v First Alert, Inc.,006 WL 2335230 (NDNY 2006) two family members died in a house fire, one suffering for 3 minutes, the other for 6 minutes, before dying of smoke inhalation and severe burns. Their body positions indicated they had tried to escape. The jury awarded the families $3 million each (although the appellate court reduced the amounts to $1 million for one, and $2 million for the other).

In Maracallo v. Bd of Education, 2 Misc.3d 703 (Bronx Co. Sup Ct 2003) a 14-year old drown in a wave pool. The jury awarded her family $6,000,000 for six minutes of conscious pain and suffering (drowning), which was reduced by the trial court to $2,000,000.

Fellow New York wrongful death case lawyers: Never underestimate the compensation value of pre-death terror!

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
Syracuse & Central NY Wrongful Death Lawyers
Michaels & Smolak, P.C.

1-315-253-3293