April 2010 Archives

April 30, 2010

Why Lawyers Sometimes Decline Personal Injury and Medical Malpractice Cases

photo__1501307_michael_bersani[1].jpgWhen I tell them, they don't like what they hear. I try my best to explain, and usually they do understand, but they are never happy about it. Sometimes (thankfully not often) they even become angry.

What am I talking about? Turning a case down. You see I, like all other Central New York personal injury and medical malpractice lawyers, must sometimes tell potential clients that I am declining to take their personal injury or medical malpractice case. Many factors come into play in deciding whether to accept a personal injury or medical malpractice case. In the end, we lawyers need to make a business decision, based on a cost-benefit analysis.

What goes into that analysis? Since we are paid on a contingency fee basis (generally 1/3 of whatever we recover for the client) we need some reasonable assurance that: (1) we can win the case; (2) the injury is significant enough to warrant a jury verdict high enough so that 1/3 of it will "pay" for our time litigating it; and (3) the at-fault party has either enough insurance coverage or a "deep pocket" so we can collect on a judgment.

But the analysis is really more complicated than that. For example, if the injury is extremely horrific (examples: quadriplegia, amputations, severe brain damage), and there is plenty of insurance, or a deep pocket, then we might very well accept even a tough case where we only have a small chance of winning at trial. The potential payoff, even if unlikely, makes it worth the risk. Conversely, if the injury is minor, we usually want to see a very strong case, one we know we can win, before we accept the case. A small injury where we have only 10% chance of winning makes no business sense.

There is a saying in our business that goes like this: "You make money on the cases you turn down". What that means is that sometimes the decision NOT to take a case actually saves you money and makes your bottom line positive so you can stay in business. To survive, we have to make sure we don't get overburdened with a lot cases that have a poor potential for success and take a lot of our resources.

We wish we could help everyone. We can't. Some cases were just not meant to be. It is a good thing, really, too. Imagine if every injury were a case. Then our court system would be overwhelmed. There are many accidents and injuries, but only some of them have the necessary ingredients to make a good personal injury or medical malpractice lawsuit. Call or email us to find out if your case makes the grade.

April 26, 2010

Syracuse Upstate Hospital Lowers Its Open-Heart Surgery Death Rate And Medical Malpractice Exposure.

Thumbnail image for Thumbnail image for surgery.jpgThere is good news for open-heart surgery patients in Syracuse, New York: New York State's Health Department reported this week that Syracuse's Upstate (SUNY) Hospital's death rate for open-heart surgery has dramatically improved: In 2005 SUNY Hospital had one of the highest death rates for open-hear surgery in New York State, with a death rate of 5.34%, but by 2007 it had one of the lowest. The rate now is .5 %, or one in 200 deaths, the third lowest out of 40 New York State hospitals. The average was just under 2%. St Joseph's Hospital Health Center, the only other Central New York hospital where open-heart surgery is performed, had a rate of 2.27 %, just above average.

Upstate officials claim the improved death rate is due to, among other things, a renewed focus on quality and safety. Those improvements must be applauded. Medical malpractice is, unfortunately, rampant throughout the United States, including in New York State, and including at fine hospitals such as Syracuse's SUNY. We know. We took a more than $2.5 million Syracuse New York medical malpractice verdict against SUNY two years ago for its malpractice of a Parkinson's patient. SUNY Hospital's medical malpractice paralyzed and brain-damaged our elderly client. How? The Hospital's surgeon had performed the delicate brain surgery using poorly maintained brain surgery instrument that malfunctioned during the surgery.

Harvard researchers have conducted samples showing that as many as 1% of patients treated in New York State hospitals, such as SUNY, are injured, and of those, one fourth die, as a result of medical mistakes. One in a hundred needless injuries, including one in four hundred needless deaths, might not seem like a lot to some, but to us it seems unacceptable. Remember, we are talking about NEEDLESS deaths and injuries. And all that is needed to prevent them is a system that focuses on avoiding mistakes. For example the case where we got a $2.5 million verdict against Upstate Hospital for medical malpractice, all that was needed to avoid the medical malpractice was a system of checking and double checking for proper equipment maintenance.

So our hats go off to Upstate Hospital. For its patients' sake, we desire continued improvements in death rates, declines in medical malpractice injuries and deaths, and fewer Syracuse medical malpractice claims.

April 24, 2010

Boy Scouts of America Punitive Damages Verdict Demonstrates Value of Punitive Damages: Syracuse Tort Lawyer Explains.

boy scout stamp.jpgTort law works! I blogged about the Boy Scout case a few weeks ago, but I need to revisit it here. The jury has sent the Boy Scouts of America a powerful messge! This Friday, the jury, who heard and carefully considered all the evidence, slammed the Boy Scouts of America with an $18.5 million punitive damages verdict for having allowed a former assistant Scoutmaster to sexually abuse him as a boy. The jury had already found, in the first stage of the trial, that the Boy Scouts conduct in allowing a known sex abuser to be an assistant Scoutmaster was outrageous and reckless.

How reckless? Consider this: After the molester admitted to a Boy Scouts official that he had already molested 17 boys, the Boy Scouts of America kept him on as Scoutmaster, and kept him in contact (to say the least!) with the boys, where he went on to molest, among others, the plaintiff in this case.

This $18.5 verdict was in addition to the $1.4 million in compensatory damages the jury already awarded to the sex abuse victim earlier this month. Compensatory damages are meant to compensate the pain and suffering, medical expenses, lost wages and other direct losses to the plaintiff. With punitive damages, however, the focus is not on compensating the victim, but on the behavior of the defendant. Punitive damages do what their name suggests; they PUNISH the wrongdoer, here the Boy Scouts of America, for very wrongful, reckless or deliberately harmful conduct. In New York the way we describe the kind of behavior that calls for punitive damages (also known as "exemplary damages") is "conduct that evinces utter indifference or conscious disregard for the safety of others." Punitive damages are meant to deter similar behavior in the future.

Although many "tort reformers" criticize punitive damages as being bad for business, cases like this one show how useful they are to society. The punitive damages verdict here sends a powerful message to those who knowingly keep child sex abusers in contact with children. Whether the corporation is the Catholic Church, the Boy Scouts of America, or any other corporation, they will have to pay, and pay BIG, if they willfully or with gross indifference fail to protect our children from such harm. In other words,the message is this: "Either change your ways, or be prepared to get knocked down to your knees with these large verdicts". Bravo for punitive damages!

April 23, 2010

Motorcycle Accident Lawyer Delivers Good News / Bad News about 2009 Decline in Mortorcycle Deaths In Central New York and U.S.A.

motorcycle riders.jpgSo what do you want to hear first, the good news or the bad news?

The good news came out just the other day from the NHTSA (National Highway Traffic Safety Administration) about Motorcycle deaths in Central New York and, in fact, all over the nation. For more than a decade, motorcycle accident deaths had been climbing steadily, year after year. Then suddenly, in 2009, motorcycle deaths plummeted throughout the U.S by a total of 16%, which saved a total of 530 lives. The highest motorcycle accident death toll ever was the prior year, 2008, which took 5,290 lives.

Why? To what do the experts attribute such a dramatic decline? Are motorists finally SEEING motorcycles? Are motorcycle safety campaigns finally working? Are bikes just safer?

No. And here's the bad news: The experts believe that the decline is due simply to the bad economy, not safer driving. Motorcyclists just didn't have the doe for riding. Motorcycle riding is largely recreational, not for transportation, and so it is a luxury that gets cut first in hard times. Less motorcycle riding, means fewer motorcycle collisions, and fewer motorcycle deaths, and, of course, fewer Central New York motorcycle accident lawyers filing fewer motorcycle injury or death lawsuits. It's that simple.

As soon as folks get their jobs back, they'll be revving up those bikes, and for longer tours, and more often, and . .. . . will be having, unfortunately, more motorcycle accidents and more Central New York motorcycle lawyers will be filing more motorcycle injury and death claims.

A curious mind will also want to know this: Why had motorcycling deaths been climbing for a decade, peeking in 2008? Here's why: Motorcycling had been on the rise throughout the decade. More motorcycles means more motorcycle accidents. Biking had gained a new-found popularity among inexperienced aging baby boomers. The average age of a cyclist today is forty-something, while in past years it was twenty-something. More inexperienced drivers also translates into more accidents.

As the economy improves, and there are more bikers out there, be safe. If you are on a bike, remember that motorists just don't see you. Expect it. Be prepared for it. If you are a motorists, be on the lookout for cyclists.

April 22, 2010

Central New York Pedestrian Accidents and Lawsuits May Be Avoided by "Complete Streets Week" Survey.

sidewalk.jpgThe Syracuse Post-Standard reports that "Complete Streets Week: Making New York Walkable for All Generations", begins today. What is it? It is a volunteer-led survey of pedestrian safety throughout Central New York, focusing on walking conditions in downtown Syracuse. Volunteers will look at the adequacy of traffic signals in allowing people with disabilities to cross, whether crosswalks are properly marked, the condition of sidewalks and the legibility of signs. The survey will serve as raw material for a "walkability" report to be published this fall on walking conditions all over Central New York, and in other areas of New York State. The report will bolster legislation pending in Albany called the "Complete Streets" law, which would direct transportation planners to design roads, sidewalks and streets with pedestrians in mind. Sponsors of the project include city and county governments as well as AARP, with volunteers doing most of the leg-work.

This study will, we hope, get our State and local governments to focus on preventing pedestrian accidents, injuries and lawsuits by fixing and preventing sidewalk and crossing defects and dangers. With an aging population, and with more of us disabled, "walkable" cities are crucial for the future of Central New York. Shamefully, New York State ranked third nationwide for elderly pedestrian deaths last year. But walkable cities are equally important for parents with small children, with strollers, and for everyone.

The lawyers at Michaels & Smolak, as Central New York pedestrian injury lawyers, know first-hand how dangerous the sidewalks, crosswalks and intersections can be in Central New York, including in Syracuse, Auburn, Skaneateles and Geneva where we live and work. Every year we file Central New York pedestrian injury lawsuits on behalf of those who trip and fall on cracked or broken sidewalks, or are hit by cars in poorly controlled intersections and dangerous cross walks. Sometimes they trip and fall on a broken, cracked, or heaved up sidewalk slabs. Sometimes they get hit by cars as they attempt to cross at dangerous crosswalks or traffic intersections. Very often they are old, or disabled, or are children. Therefore, we applaud "Complete Streets Week: Making New York Walkable for All Generations", and all the volunteers who are making it a success!

April 19, 2010

Central New York Hunting Accident Lawyer Explains Unfairness of Insurance Rule

hunter.jpgIf you're a Central New York hunter and you accidently shoot a fellow hunter, you sure would feel bad, right? I mean Central New York shooting accidents, like hunting accidents everywhere, can kill, seriously injure and maim. But there's insurance for that, right? I mean, if you are a hunter, and you own a home, your homeowner's insurance will protect you if you accidently shoot another hunter, right?

Think again. Here's a true story. A Central New York deer hunter goes out hunting in the hours where night is turning to day. He is in his tree stand waiting. He sees a deer. He aims, shoots, fires and --- hears a man scream. He just shot another hunter! The deer wasn't a deer, it was a hunter whom he mistook for a deer.

When he calms down, and he is assured that his victim is not going to die, but is seriously hurt, he thanks his lucky stars that at least he has homeowner's insurance. He realizes that homeowner's insurance covers accidents like this, so the poor guy he shot will at least get his medical bills and lost wages paid, and maybe even some compensation for any pain and suffering.

But he's wrong. His insurance refuses to cover the accident. Why? Written into the insurance policy was a "criminal activities exclusion". Basically this exclusion says that if the insured injures or kills someone while engaged in a "criminal activity", the insurer won't cover it. What was the hunter's crime? Assault third, which includes "criminal negligence". Even though this was just an accident, it was a "criminal" accident. The insurance policy says it can exclude coverage for this even if the insured is never charged with a crime. As long as the insurance company believes that the activity amounts to a crime, and it can convince a jury of it, then it doesn't have to pay a dime.

Only problem is we have got a seriously injured hunter who needs money. And we have another hunter, the insured, who is flat broke and can't pay a judgment. And justice, for crying out loud, demands that something be done!

I represent the injured hunter. The other day I argued the case in the appellate court in Rochester. I told the Court the insurance policy was unfair, and ran against good public policy. The insurer should not be allowed to exclude coverage under these circumstances. I told them that this "criminal activities" exclusion can be used by the insurance company to disclaim coverage on all hunting accidents, at least where someone ends up shot, because in each and every instance shooting someone by accident can be construed as "criminal" negligence. This isn't fair. Why should hunting accidents not be covered by insurance while all kinds of other accidents are covered? I can run you over with my ATV, and that is covered, but if I mistake you for a deer and shoot you it is not. Go figure.

In fact, I may be asking the Court of Appeals, the highest court in New York State, to "go figure" soon. I'll keep you posted.

April 18, 2010

Central New New York Injury Lawyer asks, Will Catholic Church Bring to Justice "Those Responsible for Child Sexual Abuse"?

Nueva Sen_al de Peligro (2).jpgToday I received an email with the photograph depicted here as a "joke". It is clever for sure, but no laughing matter for those who have been victimized by Catholic priest sexual abuse.

I also read in several media reports today that Pope Benedict XVI met with Catholic Church sex-abuse victims on the island of Malta and promised them, tearfully, that the Catholic Church would "seek justice for pedophile priests" and take "effective measures" to protect kids from future abuse. The Pope prayed with these abused children-turned-adults and assured them that the Church was doing, and will do, "all in its power to investigate allegations, to "BRING TO JUSTICE THOSE RESPONSIBLE FOR ABUSE". The Vatican offered no details of what measures it would take to carry this out.

But here's the key question in my mind: Will the Vatican bring ITSELF to "justice"? After all, who are those most "responsible for abuse", the priests with unfortunate pedophilic desires so strong that recidivism is almost a given, or the passionless Church hierarchy who knowingly, deliberately, and cold-heartedly covered all this abuse up, shuffling sexual predators from parish to parish, and even from country to country, where they could resume their violence upon innocent children?

And this question comes from a former altar boy.

April 18, 2010

Syracuse New York Personal Injury and Medical Malpractice Lawyer on How to Change the Law

courtroom.jpgThe other day a fellow Central New York injury lawyer congratulated me on a recent Court victory I had, which changed the law throughout New York State, and helped him, and other New York personal injury and medical malpractice lawyers, better represent their clients. The case he was referring to was Thompson v Mather, which I have already blogged about. He pointed out to me that this was the second time he had seen me change the law for the better in New York State by winning a key appellate argument for New York personal injury and medical malpractice victims. He remembered that I had, a few years ago, stopped no-fault insurance companies from denying coverage for medical bills when the insured had reached "maximum medical improvement" in a case called Hobby v CNA. The lawyer wanted to know how I was able to effect such big changes in the law with my cases.

My response was simple: I read the statutes. And I read them carefully. And I read them over and over again, word for word, looking for hidden or perhaps even obvious meanings that everyone else has been overlooking. In both cases this lawyer was referring to, all the case law generated by other lawyers had overlooked the fact that the controlling statutes just did not allow insurance companies to do what they had been doing. In Thompson v Mather, the statute, CPLR 3113, when read carefully, just did not allow a non-party witness to bring in a lawyer (usually an insurance company lawyer) to object to questioning at a deposition. It said that deposition questioning was to proceed just like at trial, and at trial non-party witnesses' lawyers can't object or talk at all. And in Hobby v CNA, the statute at issue, New York Insurance Law 5102, just did not allow a no-fault insurance carrier to cut off an insured's medical treatment based on a finding of "maximum medical improvement". It only allowed them to cut an insured off if the treatment was not "reasonable and necessary", which is not quite the same thing.

So while other lawyers had, for decades, overlooked these nuances, and just assumed that the common practice of insurance carriers and other lawyers comported with the law, I actually READ THE LAW, and found out that everyone else was wrong!

Moral of the story to other lawyers: If you have a legal issue that hinges on a statute, READ THE STATUTE, not once, not twice, but many times. Read the bill jackets and other legislative history of the statute as well, and really think hard about what it means. You just might change the way things are done, for the better of your New York personal injury and medical malpractice clients!

April 18, 2010

Syracuse and Central New York Bicycle Accident Injury Lawyer: Is Bicycling Too Dangerous?

bicyclists racing.jpgI don't know about you, but sometimes I just like to hunt around on the internet for neat sites to reference about my hobbies and passions. Since I am an avid bicyclist, as well as a bicycle accident injury lawyer, I was hunting around today for cites with information on bicycles and bicycling and even bicycle accidents and how to avoid them. I found a great bicycle site. This cite has just about everything you want to know (example: how to make sure your bike fits right), some things you didn't know you wanted to know (example: unusual bike models), and some things you DON"T want to know (statistics for bicycling accidents and fatalities). The stats are pretty dismal. Here's a sampling:

• One in every 20 cyclists is injured annually.
• A bicyclist on average has a minor injury every three years and a more serious every fifteen years.
• Cars are to blame in 75% of car-on-bicycle collisions
• Most at-fault car drivers who kill cyclists get off the hook --- 74% of them in New York don't even get ticketed! (there is a bias against cyclists even among law enforcement).
• The first car crash ever reported in the United States involved a car-on-bicycle collision in 1896.
• About 700 cyclists die a year in the United States.
• Per mile of driving/riding, cyclists are more than 5 times more likely than motorists to die.
• About 44,000 cyclists have been killed in bicycle crashes in the United States since 1932.

There is also an interesting discussion about "safety in numbers" for bicyclists. In places where there are A LOT of cyclists (e.g., Amsterdam, Holland), the fatality rate for cyclists is lower. Conversely, places with few cyclists have a greater bicyclist fatality rate. This is because motorists are on the lookout for bicycles when they are used to seeing a lot of them, but when they are not, they just don't notice them.

There is also a very interesting analysis of whether the health benefits of cycling outweigh the risks. In other words, do the total number of life years lost through cycling fatalities add up to more than the number of years gained through improved fitness of cyclists? Answer: the benefits in terms of life-years gained outweigh the life-years lost by a ratio of 20 to 1.

So fellow cyclists - keep cycling! The risk is worth the gaim in health, joy, and happiness. And if you play it safe, and follow the rules of the road, you can reduce the risk and still get all those benefits.

April 10, 2010

Albany New York Medical Malpractice Settlement Is Unusual and Refreshing

surgery.jpg"Help, this woman is bleeding to death! Is there a doctor in the house?"

But no doctor intervened, and poor Diane McCabe died a slow death. In fact, it took her 15 hours to bleed to death. Why couldn't they stop the bleeding? Was she in some remote location with no access to a hospital? Nope. In fact she bled to death in an Albany Medical Center Hospital in New York State where she had undergone a C-section. After the surgeon finished the Cesarean procedure, and stitched McCabe back up, he left to attend to other patients. A physician attending to McCabe then called him several times to report that McCabe appeared to be bleeding internally, and asked the surgeon to open her back up. Despite these calls to action, the surgeon refused to intervene until it was too late. McCabe had lost too much blood.

Diane McCabe's family settled her Albany New York medical malpractice claim last week for $5.2M against the (ir)responsible surgeon and Albany Medical Center Hospital. Since Diane left behind two small children and a grieving husband, this does not seem like too much money. In fact, it seems a little light. But her family got something much more important than money to them, something very unusual in an upstate New York medical malpractice case (or in any malpractice case anywhere): They got the Hospital to agree to implement safety improvements to make it unlikely the same thing would happen again. And they got the Hospital to agree to fund, for the next 20 years, a Diane McCabe Memorial Quality (patient safety) Lecture series. In other words, they got what amounts to an apology, some remorse, and some assurance that the Hospital would learn from its mistake.

Many victims of New York medical malpractice or their grieving family members have told us over the years, "all I want is for them to admit they made a mistake, and to apologize". Our answer always disappoints them: "You can't sue for that". It's true. No law allows a judge to force a malpracticing doctor or hospital to apologize or to agree to change their behavior. All the law allows for is monetary compensation, i.e., money, to the victim, or in the case of a New York medical malpractice wrongful death lawsuit, to the victim's family. In this case, the Hospital agreed to do in settlement what a Court could never have forced it to do in Court.

Michaels & Smolak sends its congratulations to Diane McCabe's brave family, to their lawyer, John Powers, and, yes, even to the Albany Medical Center Hospital for finally agreeing to do what so many malpracticing doctors and hospitals refuse to do: Accept blame.

April 8, 2010

Cell-Phone-While-Driving Crackdown in Syracuse May Reduce Car Accidents, Says Central New York Injuy Lawyer

texting and driving.jpegIt's no secret that cell-phoning and texting while driving cause many car accidents in Syracuse, New York (and elsewhere). Just read any newspaper; many Syracuse and Central New York auto crash injuries are caused by cell-phone use and texting. But would an aggressive cell-phone driver crackdown by police help cure Syracuse drivers' bad habits?

We'll soon find out. U.S. Department of Transportation Secretary Ray LaHood and Gov. David Paterson, speaking at Syracuse University campus, announced that Syracuse will receive a $300,000 grant for cracking down on distracted drivers using cell phones. With this grant money, police will aggressively seek out and ticket hand-held cell-phone users. If they are seen with a cell phone in one hand, they'll get a ticket in the other! The grant will pay for local law enforcement agents to work overtime, targeting distracted drivers. The money will also be used for a paid advertising campaign on radio, TV and in print ads.

This distracted-driver crackdown program is modeled on past programs to curb drunk driving and to convince people to wear seat belts, Those campaigns worked; they resulted in fewer drunk drivers and greater seatbelt use.

Will this campaign also produce results? When I find out, I'll tweet you the answer from by cell phone, while driving (just kidding --- wouldn't dare!).

April 8, 2010

Central New York Injury Lawyer: More on The New York State Thruway Dump Truck Crash

11080310.jpgI blogged yesterday about a horrendous New York State Thruway accident near Manchester, New York injuring 17 people, most of them children. Here's a brief recap: A dump truck driver tried to drive under the County Route 7 overpass with his truck box raised, causing the top of the truck box to strike the overpass, which in turn caused the box to dislodge from the truck, and land on the Thruway, where two vehicles full of people, mostly children, crashed into it. I said then that the dump truck driver was obviously at fault because he either "drove the truck without noticing that his truck box was raised, or else he thought he could pass through the underpass with it raised" and that either way he was liable.

I was right. Today the State Police issued the driver a ticket for driving the dump truck without a tilt-bed warning light that would have alerted the driver that his box was raised. Apparently, he did not realize it was raised. The warning light would have warned him. He broke the law by driving a dump truck without the warning light. He appears, therefore, to be at fault for this multi-car accident..

As I said in yesterday's blog post, this is good news for all the very injured, some very young, car accident victims because the construction company the dump truck driver was working for will also be held liable for the car crash injuries he caused. The construction company will likely have a big insurance policy to compensate these serious car crash injuries.

April 7, 2010

Manchester, Ontario County New York State Thruway Auto Accident Victims Will Likely Have Plenty of Insurance Coverage

11080310.jpgWhen I read about the terrible New York State Thruway multi-vehicle accident at 5:00 a.m. this morning in Manchester, Ontario County, New York, near my home in Geneva, New York, the human injury toll shocked and saddened me.

Here's how it happened: A dump truck driver, who was performing some construction work on the Thruway, tried to drive under the County Route 7 overpass eastbound with his truck box raised. Unfortunately, the top of the truck box was higher than the overpass, so it struck the overpass, dislodged from the truck, and landed on the roadway.

A few minutes later, a passenger van, carrying two adults and eight children, tried to avoid the box, but sideswiped it instead, causing an accident. Moments later, an SUV, carrying three adults and four children, ran over the box, causing a second accident. It was still dark out, so apparently the box lying in the roadway was not very visible. Two of the children were airlifted to Strong Memorial Hospital in Rochester, and the others were brought by ambulance to other nearby hospitals.

I am used to hearing about horrific New York State car accident injuries because it is my job to represent car crash victims in Ontario County and beyond. But the human injury toll in this accident shocked even me. After my initial shock and sadness, I thought of some "good" sides to this story. First, luckily there were no deaths Second, there will almost certainly be plenty of insurance coverage for all the victims. How do I know? From my years of experience as a New York car accident attorney. Let me explain.

You see, it appears obvious that the dump truck driver either drove the truck without noticing that his truck box was raised, or else he thought he could pass through the underpass with it raised. Either way, he was negligent and thus is legally liable for this accident. Further, the owner of the dump truck and the driver's employer, the construction company, are also "vicariously" liable, under New York State auto accident law, for the driver's negligence. And, from my years of experience, I can tell you that construction companies almost always have lots of liability insurance coverage.

Good thing the construction company is going to be liable for these injuries, because with so many people injured, lots of insurance coverage will be needed.

April 4, 2010

Syracuse Porch Collapse Injuring Tenants Not An Uncommon Event, Syracuse Injury Attorney Says

balcony.jpgImagine you are just kicking back on your porch enjoying this great spring weather in Syracuse, New York, hanging with some buddies, maybe having a beer when ---- BANG --- you wake up in pain, lying on the ground below.

This is what happened Saturday at an apartment on the corner of Lynwood Avenue and James Street in Syracuse. The porch just collapsed with no warning, dropping the three people sitting on it to the ground below.

Central New York porch, balcony or deck collapse lawsuits are not as uncommon as you may think. The Auburn New York personal injury law office of Michaels & Smolak has handled several such cases.

While porches, balconies and decks are great places to hang out and enjoy the good weather, if they are not properly maintained and regularly inspected, they can, and do, collapse, causing serious injury, fractured bones, paralysis or even death. Occasionally, even new decks, balconies or porches collapse if they are designed or built incorrectly.

The most common causes of porch, deck and balcony collapses are: rotten wood that has not been replaced, rusty nails or other hardware failures, failure to regularly inspect for rot, deterioration or signs of sinking, design errors, building errors, building code violations and excessive weight.

Homeowners and landlords who have decks, porches or balconies on their homes can be held liable for failing to fix or inspect rotting wood, for failing to notice signs of rot or deterioration, and for failing to properly maintain the structures. A contractor or builder who negligently designs or builds a deck, balcony or porch can also be held liable if these structures collapse due to poor design or bad building practices.

A competent Syracuse collapsing balcony lawyer will hire expert carpenters and builders to examine the collapsed structures to determine the cause of the collapse. Since the injuries in falling balcony, deck and porch cases tend to be quite serious, the investigation needs to be equally serious.

Those responsible for collapsing balconies, decks and porches should be sued so that the innocent victims of the collapse can recover fair compensation for the injuries caused by the owner's or builder's negligence. Homeowner's, landlord's or contractor's liability insurance generally cover these injuries.

April 4, 2010

Syracuse Motorcycle Accident Lawyer: Another Motorcycle Fatality in Central New York This Weekend

In my last post, I neglected to note another Central New York motorcycle accident his weekend. A Madison County motorcyclist was killed in the evening of April 3 at about 6:30 when he crashed on Gorge Road, part of Route 13, in Cazenovia,. He failed to handle a curve, crossed the road, struck some guiderails and was ejected. He died later at Upstate University Hospital in Syracuse. He was riding with other bikers. Again, this Central New York motorcycle fatality happened in broad daylight in beautiful spring weather. Don't assume the good weather makes driving safer. It can make it more dangerous if you let down your guard.

April 4, 2010

Central New York Motorcycle and Car Accidents in This Perfect Central New York Spring Weather.

Thumbnail image for Thumbnail image for motocycle.jpgWow. What a bad weekend for motor vehicle collisions this beautiful Easter weekend in Central New York State.

First, in the morning of April 3, a Yates County New York car driver died, and his passenger, an Oswego county New York man, was seriously injured, when their vehicle drifted off the Thruway and flipped onto its side near Elbridge, New York. It appears the driver may have fallen asleep at the wheel.

Then, later that same day, in the evening, at about 6 p.m., a Central New York motorcyclist accident took place when a motorcycle hit a traffic island on State Route 3 near Oneida Street in Fulton. The biker was thrown from his bike and suffered back, chest and head injuries.

Both these accidents happened in broad daylight in beautiful spring weather.

Moral of the story? Don't take the good weather for granted. Just because you survived, unscathed and accident-free, another Central New York winter, doesn't mean you can let down your guard in such good driving weather. Stay awake, stay alert, and driver responsibly.

April 4, 2010

Central New York Medication Error Lawyer: "Blame The Victim" Defense Backfires on Walgreens in Prescription Mistake Case.

prescription.jpgWhen Floridian Beth Hippely was diagnosed with breast cancer, and needed a blood thinner to fight it, she walked into Walgreens with her prescription. A teenage, unlicensed pharmacy technician, who Walgreens had recently hired, happened to be filling prescriptions that day. She accidently gave Hippely a dosage 10 times stronger than what she had been prescribed.

The mistaken drug overdose killed Hippley, but she did not "go gently into that good night". The medication error caused her first to suffer a cerebral hemorrhage (a "brain bleed"), which in turn caused her to become imprisoned in her own body in a condition known as "locked-in" state. She lived as a head-on-a-pillow, conscious but unable to communicate with the outside world except by using eye movements (one blink for "yes", two for "no"). Because of her weakened condition, she was unable to undergo chemotherapy to fight her cancer, and died of it, after a long, painful struggle.

Hippley's family (husband and three children) won a $33.3 million verdict in their prescription error wrongful death lawsuit. Walgreens appealed the jury verdict, but last month a Florida court of appeals upheld it.

Why was the Beth Hippely verdict so high? In part, I believe, it is because Walgreen's "blame the victim" defense backfired. Instead of sucking it up and taking responsibility for its error, Walgreens' trial strategy was to blame Beth Hippley's physicians, and even the victim herself, for the overdose! They claimed SHE should have caught the mistake. She should have checked the prescription against the dosage she was given. In other words, she should not have trusted Walgreens, the self-proclaimed "Pharmacy America Trusts", to do its job right!

I have blogged about this "blame the victim" defense before, and while it can sometimes work, it just as often backfires. Let's face it; anyone can make a mistake. But the jury obviously got angry at Walgreen for failing to shoulder its responsibility, and especially for blaming boor Beth Hippely, who, by the time of trial, had succumbed to her long, unbelievably painful struggle, and had left a grieving husband and two small children behind.

Most medication errors can be avoided by simple, solid, procedures and rules for double-checking the prescriptions against the medication and dosage being given to the patient. When such procedures are put into place, and enforced, medication errors are drastically reduced. When a pharmacist or technician makes a prescription mistake, whether by giving the wrong dosage or the wrong medication, the drug store is liable not only because its employee made a mistake, but also because the pharmacy itself failed to implement proper procedures and rules for double-checking the dosage and medication.

Suing pharmacies for medication errors is the right thing to do; these lawsuits provide economic incentive for drug stores to put in place, and enforce, safe drug dispensing practices.

April 1, 2010

Syracuse New York Injury Lawyer Says U.S. Civil Justice System Best in World

Thumbnail image for sad teen silouette.jpgOk, I have written on this topic very recently, but I can't help it if the topic just stays in the news. I am talking about the Catholic Church's sexual abuse lawsuit crisis, which I just blogged about a few days ago.

But an article in the New York Times today sheds some new light on the crisis. It explains why the Church's sexual abuse claim crisis is happening so much later in Europe than in the United States. As you will recall, the crisis peaked in the U.S. about a decade ago. Why are the European abused boys, now men, who were molested or raped back in the 60's and 70's, only now coming forward? The New York Times attributes the delay in part to the fact that victims in Europe cannot expect significant compensation in Court, as can victims in the U.S. The Times quotes a German lawyer representing 15 sexually abused boys who says the highest civil judgment any child victim of severe sexual abuse has ever received in Germany was less than $70,000.

$70,000 to compensate a man who as a boy suffered "sever sexual abuse" at the hands of a priest! And that's top dollar over there! And for a crime that totally changes a boy's life, for the worse, forever. No wonder those abused kids/men have kept their mouths shut for so long over there. Why put yourself through the emotional trauma of disclosing publicly what you shamefully endured privately for so long ---- for a maximum of $70,000? Hardly seems worth it to me.

So let me get up on my soapbox again and say I am proud to live in a country where victims of wrongdoing get FAIR compensation for their pain, suffering and emotional trauma for something like childhood sexual abuse. The system in the good ol' U.S. of A is not only fairer, but it also discourages wrongdoing by encouraging victims, through FAIR compensatory awards, to put the spotlight on the wrongdoers in open court. Compare this to the way they do it on the other side of the pond, where paltry, totally inadequate civil justice "verdicts" encourage nothing but silence. And as we all know, silence is the breeding ground of continued, unremitted wrongdoing.

April 1, 2010

School Liability for Bullying: Central New York Injury Lawyer Explains.

bullied.jpgIn New York State, schools are legally responsible for preventing their students, at least while they are at school, from harming each other. This includes preventing school injuries caused by horseplay and avoidable accidents, but also intentional harm students might inflict on each other through assaults, harassment or bullying. School teachers and administrators cannot stand idly by while some students assault, harass, threaten, taunt or bully others. The school has a legal duty to take reasonable measures to make its school safe for its students. When it comes to bullying, if a school does not have rules in place to deal with such behavior, or if it fails to follow these rules, the student-victim can bring a lawsuit against the school for money damages under a legal theory of "negligent supervision".

School bullying was in the news a lot this week. The saddest story, and the one to catch all the national news, was about an Irish immigrant girl at a school in Massachusetts who was so relentlessly bullied that it drove her to commit suicide. The girl had been the recipient of a barrage of assaults, threats, and taunting for months. The local district attorney has charged 9 fellow students with crimes that led to the suicide, including stalking, criminal harassment and violation of civil rights.

There is plenty of blame blame to go around, though, and certainly the school deserves a lot of it. The school knew about the bullying. A psychologist says she consulted with school administrators months before the 15-year-old hanged herself. But they did nothing to stop the bullying. Watch for a lawsuit from the dead girl's parents --- I'll bet it's in the works, as well it should be.

Another news story about bullying this week hit closer to home. The Utica Observer reports that an upstate New York gay teenager, who was relentlessly bullied by classmates for being gay, settled his lawsuit against his school, the Mohawk Central School District, this week. The 15-year old claims that school officials did nothing to stop or prevent the bullies from taunting and harassing him daily simply because he was "different".

As part of the settlement, the district agreed to better protect students from harassment, including by paying for additional anti-bullying training for its staff. The school also agreed to a $50,000 payment to the boy's family to reimburse them for counseling services.

As I always say, despite popular myths to the contrary, lawsuits are good. They change behavior for the better. Would this Mohawk Central School District have learned its lesson without this New York school liability lawsuit being filed against it? I think not.