August 2010 Archives

August 31, 2010

Yates County NY Motorcycle - Car Collision Injuring Child Reminds Bikers To Use Defensive Biking Techniques

Thumbnail image for Thumbnail image for motorcycle riders.jpgThe Geneva Finger Lakes Times reports that an 11 year-old Dundee girl, a passenger on her father's motorcycle, suffered a leg injury Friday when an oncoming car turned left in front of it in an attempt to enter a driveway off of Dundee-Starkey Road in the Town of Starkey, Yates County, New York. The motorist was ticketed for failure to yield the right-of-way to the oncoming motorcycle. The child was taken by Mercy-Flight to Strong Memorial Hospital in Rochester, New York.

How sad that such a young child has to have such an injury, and through no fault of her own. We hope that it is not too serious, but the fact that she was airlifted to Rochester is not a good sign.

I can tell you from my experience as a Central New York motorcycle accident lawyer that this failure-to-yield car/motorcycle collision is very, very common. I bet the driver of the car never "saw" the motorcycle. One of the big dangers of riding bikes is that other motorists just don't "see" you, even with your lights on! So they cut you off, violate your right of way, and sometimes injury or kill you.

Of course this is no legal justification. A vehicle driver is REQUIRED not only to "look", but to SEE motorcycles and other vehicles, and to yield the right-of-way to them when so required. The car driver here appears to be clearly liable for this collision, and for the resulting injuries.

But the facts of life are what they are. Motorcycles will, probably forever, remain "invisible" to many vehicle operators. So never assume that drivers of other vehicles see you. Try to make eye contact with them if they are going to turn across your lane. And just in case, plan an escape route for when they turn into your lane without seeing you. Better still, try to keep as far to the right as you can so that you will have more time to react to the left-turning vehicle and avoid the collision.

Bottom line: Bikers, ride with the understanding that you are invisible to many motorists!

August 30, 2010

NY Boating Accident Lawyer: Oswego Boating Accident Case Demonstrates That Drinking and Boat Operating Don't Mix

Thumbnail image for boating.jpgThis Central New York Boating season (one of the best in recent history!) is drawing to an end, but not without more Central New York boating accidents. The most recent Central New York boat crash involved three boaters who were injured when their boat crashed into the Oswego Harbor breakwater, near the Oswego Lighthouse Saturday at 7:00 p.m. Although the damage done to the boat and to the wall indicates a high rate of speed, miraculously the worst injury appears to be a broken arm. All three boaters were taken to Oswego Hospital.

Police investigators believe alcohol consumption played a role in the crash. From my experience as a New York boating accident lawyer, I can tell you this is not unusual. Statistics bear me out: U.S. Coast Guard records indicate that MOST recreational boating fatalities involve alcohol! The same statistics indicate that a boat operator with blood alcohol level above .10 is ten times more likely to be killed in a boating accident than a boater who has consumed no alcohol. Experts say that the mixture of sun, wind, boat motion, wind and noise amplifies the effects of alcohol. To make matters worse, for some reason people who would never drink while driving a car feel it is perfectly fine to drink, and even drink heavily, while boating.

Boating deaths are second only to car accident deaths in transportation-related fatalities in the United States. More people die in boating accidents than die in airplane, train wrecks, or bus accidents.

Don't drink and drive a boat. Don't go boating with anyone who drinks and drives a boat. Have a safe boating experience. Make sure you have a designated boat operator!

By the way, the injured passengers in this boating accident probably have a valid New York boating accident lawsuit against the boat operator. Even if the operator was not drinking (which apparently he was), a boat operator has a duty to see obvious dangers such as a breakwater, and to slow down and avoid collisions with them. Here, whether due to alcohol consumption or just plain inattentiveness (it was still daylight!), this boat operator just "missed the boat".

August 29, 2010

Syracuse Firefighter's Line-Of-Duty Accident Demonstrates Special Rights Firefighters and Police Officers Have In Personal Injury Claims

fire.jpgI read in the Syracuse Post Standard today a story about a Syracuse firefighter who fell into a 12-foot shaft while searching a smoke-filled, burning building on James Street yesterday. The firefighter had opened a door he assumed would lead to a stairwell, took a step in, and --- well he was wrong --- it did not lead to stairs, but rather to a shaft for a "wheelchair lift". He plunged to the floor 12 feet down and got injured.

Reading this story reminded me of the special rights New York firefighters and police officers have to bring New York personal injury claims against building owners who fail to follow building codes and other statutes and regulations. New York's General Municipal Law (GML) section 205-a (for firefighters) and 205-e (for police officers) basically say that if the officer or firefighter is injured on the job because a statute or regulation (usually a building or fire code) was violated, he or she can bring a claim against the building owner.

What makes GML 205-a and 205-e so special is that the building or homeowner who violated the regulation or statute can't use the defense of "comparative negligence" against firefighters or police officers in court. This means that even if the firefighter or police officer was partly at fault for the accident, he or she still gets 100% compensation for his or her injuries, medical expenses, lost wages, etc., from the code-violating building owner, with no reduction at all for his or her own comparative fault. All the officer or firefighter has to show is that the building owner was negligent in violating the building or fire code, and that this violation was at least "indirectly" a cause of the injuries he or she suffered.

So, in this Syracuse firefighter's case, the building owner might be tempted to blame the firefighter for having "assumed" that the door led to a stairway without verifying this first. But if the owner violated a building code by failing to lock the door to the shaft (so that innocent visitors would not accidently walk into the shaft), then the firefighter has a solid GML 205-a case, even if he was partly to blame for the accident.

Why did our law makers pass these special laws to help firefighters and cops? Because they put their lives on the line every day to save our lives and our property from loss by fire or crime. The least we can do for them is pave the way for their full compensation from culpable building owners. These are good and just laws. And I am honored to have represented several of "New York's Best" and their families in firefighter and police injury and death cases.

August 28, 2010

Syracuse Medical Malpractice Claims May Be Reduced By New Welch Allyn Invention

surgeon.jpgSyracuse New York medical malpractice, like medical malpractice everywhere, is by definition avoidable. And any new medical procedure or device that helps avoid such errors is a godsend --- especially to the patient who, thanks to the new procedure or device, avoids becoming one of the many victims of medical malpractice.

A new Syracuse-area invention may pave the way for a significant reduction in Syracuse medical malpractice claims, and eventually medical malpractice claims elsewhere. The Syracuse Post Standard reports that Welch Allyn, a Skaneateles-based manufacturer of medical equipment, has brought to market its "electronic vitals documentation system", which does the work of three machines, by recording (1) oxygen levels, (2) temperature and (3) blood pressure. These vital signs are then automatically stored into the device's computer, where they can be instantly viewed by other medical personnel from their Blackberries or computers.

This machine avoids the possibility of human error because no one has to handwrite or type the vital signs --- the machine automatically records them. Currently, many medical errors occur when nurses or medical professionals handwrite the vitals data incorrectly (or illegibly) on a piece of paper, and then later type the wrong numbers into the computer. Such errors can lead to serious consequences for the patient, including death.

The new three-in-one vitals documentation machine is already being used at Syracuse's St. Joseph's hospital. It could one day become the norm in hospitals throughout the world.

Any medical invention that reduces the opportunity for medical mistakes is welcome news for patients and doctors. The Syracuse medical malpractice attorneys at Michaels & Smolak applaud Welch Allyn for this life-saving invention.

August 24, 2010

Syracuse Fall-Off-Scaffold With Back Injury Case Settles For $1,000,000.

Thumbnail image for Thumbnail image for courtroom.jpgI just settled a Syracuse New York workplace injury case today for $1,000,000. It was a fair settlement. Because of some Labor Law violations, my client fell off a scaffold at a construction project in Syracuse. He landed on his feet, and his lower back suffered what is known in the medical community as a "spondylolysis" (a small fracture in the pars of the vertebrae) which later developed into a "spondylolystheisis" (the small fractures caused one of the discs to slide relative to the disc below, narrowing the spinal canal, and causing impingement).

Like I said, the settlement was fair. We used a mediator in Rochester. It took just about all day to hammer out the settlement. But in the end my clients were happy with it.

The case was scheduled for an Onondaga County personal injury jury trial in just a little over two weeks. For me that means that I was already prepared to try the case. I knew the case backward and forwards, and had my arguments all set to present to the jury.

When a case settles this close to trial, I always have mixed emotions. On the one hand, I am glad to have the case settled. On the other hand, I regret not being able to present the case to the jury.

Smart lawyers tell me that the best case is a settled case. It means there is no longer any risk of losing, or getting a bad result. Sure, there is always a chance you could have done better at trial. But trial is often a crap shoot.

Most of my clients don't like crap shoots. They like the sure thing. Most my clients prefer to settle. They want certainty. They are risk-adverse. And who can blame them? Usually they are already strapped for money because their injury has put at least a dent in their earning capacity. Once a decent amount of money is on the table, it is hard for them not to grab it and call it a day.

The pot of money my client got was not only adequate, it was fair. So today was a good day. I made my client happy. I got a fair result. Now on to the next case!

August 23, 2010

There's Hope for New York Cyclists and Pedestrians Injured By Unleashed Dogs: Some Insurance Adjusters Don't Understand New York Dog Law

Thumbnail image for vicious dog.jpgMy last Central New York injury law blog was about New York dog law and how it has no "teeth". It doesn't protect innocent bicyclists, pedestrians and runners from dog bites and dog attacks because it does not make dog owners pay for injuries their dogs inflict when they violated leash laws. I explained how in New York, unlike in other states, a dog owner is not liable for the injuries his dog causes to pedestrians, bikers, runners and others merely because he violated a leash law and allowed his dog to roam unrestrained. In New York this is not enough. You have to show that the dog owner knew or should have known of the dog's vicious tendencies, or of its tendency to run out after pedestrians, runners or bicyclists. This is sometimes hard to prove, because the dog owner will invariably deny that his dog ever did this before.

But, as usual after I publish a blog, I had a "I should-have-said" moment. In this case, I should have added an anecdote about a case I had a few years ago where the dog owner's insurance adjuster (with whom I was negotiating behalf of my client) did not know this rule. He, like many people, assumed that a dog owner would be liable for injuries caused by a dog when the dog owner disobeyed a leash law, thus allowing the dog the opportunity to attack a bicyclist, runner or pedestrian.

I settled the case with him and got my client a fair settlement, even though I knew I was able to do so only because the adjuster was ignorant about the law. Did I feel bad about that? Absolutely not; my client deserved the compensation, I did not deceive the insurance company about the law, rather, its adjuster was just too lazy to look it up, and the law in New York is so unjust that this "error" on the part of the insurance adjuster actually worked a justice.

Are there any lessons to be drawn from this story? There are three. First, sometimes justice can be done in unexpected ways. Second, don't assume insurance adjusters know the law. Third, play your cards close to the vest and you may get lucky.

August 21, 2010

Is a Dog Owner Who Violates a New York Leash Law Liable For Injuries Suffered in a New York Dog-on-Bicyclist or Dog-on-Pedestrian Attack?

Thumbnail image for vicious dog.jpgI hate dogs. At least when I am on a bike or out running. I have a dog ("Pisca"), but she is not like those dogs. She does not run out after bicyclists and runners. I keep her inside unless I am walking her, and then she is leashed.

Maybe my view of the world is skewed because I handle a lot Syracuse and Central New York bicycle accident cases, where I see close up how lives, damn good ones, are destroyed by unrestrained dogs.

But I am not the only one who thinks dogs should be restrained. After all, many New York State local lawmakers agree with me. They pass "leash laws". Many dog owners apparently don't agree with me and the lawmakers, though, because they let their dogs roam free, leash laws be damned!

So here is my blog query for the day: What happens in a New York dog-on-biker attack, or a New York dog-on-runner attack, where a scofflaw dog owner lets his dog loose in violation of a local New York leash law? Can you sue the law-breaking dog owner to compensate you for the broken bones you suffered in your crash to the pavement from your bike, or to replace your broken bike, or to compensate you for the bite scars on your butt?

Amazingly, no, not usually! Not in New York anyway. Unlike many States, in New York State a dog owner is not liable for injuries caused by unrestrained dogs, even when the owner violated a local leash law, UNLESS the dog owner knew or should have known that the dog had prior vicious propensities, or had a tendency to run out after bicycles, cars or pedestrians. And if you don't believe me, here's a recent case from the highest Court in New York State that says so.

Wow. Sounds counterintuitive, doesn't it? Shouldn't the scofflaw dog owner be liable for breaking the leash law? Yes! And they are held liable in many States. But New York's dog law has - unlike New York's dogs -- no teeth.

Now compare New York's dog friendly law to Massachusetts' bicycle and pedestrian friendly law. Those lucky Massachusetts runners and bikers are protected by a statute, Massachusetts General Laws c. 140 s. 155, which makes a dog owner strictly liable for all bites and other attacks, including against bicyclists, as long as the victim was not trespassing, teasing or tormenting the dog. Under Massachusetts law, dog owners are not only required to restrain and control their dogs, they may be held liable for injuries resulting from their failure to do so, even if the dog had never attacked runners or other pedestrians, or bothered or chased down bicyclists before. You let your dog loose at your own risk, not the risk of others.

Apparently, New York prefers dogs to people. Or perhaps the dog owner lobby is just stronger than the bicyclist lobby. Whatever the reason, New York needs a leash law with real teeth, because , hey, that's what dogs have (believe me -- I've got a few scars to prove it!).

August 18, 2010

"Concussions Are More Dangerous Than You Think", Syracuse Brain Injury Lawyer Explains

brain.jpgConcussions used to be a joke. You know, all those cartoons and slap stick movies with people getting knocked out, then waking up and shaking it off as if it were nothing. Ha, ha, ha! Well, it wasn't nothing. It's really something.

So what exactly is a concussion? It is a temporary loss of brain function caused by a blow to the head. That's what we used to think was the end of it. But we now know that it can lead to many long-lasting physical, cognitive and emotional symptoms.

And we are finding out more and more about the hidden damage concussions can cause. Concussions are a kind of TBI (traumatic brain injury) that can lead to life-long disabilities. Take "Lou Gehrig's disease" (amyotrophic lateral sclerosis, or "ALS") for example. Yesterday's New York Times reported that Lou Gehrig might not have actually had the disease named after him. Rather, he might have had what doctors now understand to be a TBI which manifests itself through symptoms mimicking ALS. The Times reports that those afflicted with the disease probably were predisposed to it by genetic factors, but concussions serve as the catalyst.

In my job as a Syracuse accident lawyer, I see lots of concussions. We have even handled our share of big TBI cases where the accident victim's cognitive and social levels and skills were vastly and permanently diminished by the traumatic brain injury. The worst TBI accident case we have seen was suffered in a Central New York snowmobile collision. But they can happen in many different types of accidents, including car accidents, falls from scaffolds or ladders, and slip and falls.

In Lou Gehrig's day, almost no one wore helmets for anything. Gehrig sustained several "knock-out" concussions from pitches that today would have been absorbed by a helmet. Today, a lot of TBI's can be avoided by using helmets for sporting activities such as skiing, bicycling, motorcycling and baseball.

If you or a loved one has suffered a concussion in a car accident, fall down accident, sporting accident, or other kind of accident, take it seriously. It's not like in the cartoons or the old slap stick movies. You should insist on getting a medical examination if you have any symptoms. You should be monitored for continued symptoms. Usually, the symptoms will go away in a few weeks, but if they persist, or new symptoms arise, you should have a doctor continue to monitor and test you.

August 17, 2010

Syracuse Accident Lawyer Prepares for Syracuse Construction Accident Trial

Thumbnail image for scaffold.jpgMy last blog was about ADR (Alternative Dispute Resolution), such as mediation and arbitration, which is, to a certain extent, replacing jury trials as a way to resolve personal injury lawsuits in Syracuse, Central New York, and, in fact, just about everywhere else. Here's a recent example of how ADR works from my own case load.

I am scheduled to try a Syracuse fall-from-scaffold lawsuit in about 3 weeks. Meanwhile, the defendant's insurance carrier has invited me to try to settle the case through "mediation" first. After I explained how this works, my client agreed to it, and we will be at the mediation table in about a week. If we don't settle at the mediation, I will have only a few weeks to prepare my trial, which is not enough time. I really need 6 weeks! So I am already preparing my exhibits, my direct examinations, my cross-examinations, etc., in case I need to try this Syracuse construction accident lawsuit.

The case may or may not settle at mediation. Much of that depends on how reasonable the insurance carrier will be. If the case settles in mediation, I won't feel bad about having spent so much time preparing for trial. I always learn by preparing for trial. It makes me a better lawyer.

In preparing to try this case, I have become a kind of "expert" on lumbar (lower back) injuries, which is what my client suffered when he fell from a scaffold at work and landed on his feet. I have even ordered large "blowups" of my client's x-rays and MRI's so his doctors can vividly explain his injuries to the jury. I have also hired a medical illustrator to create illustrations of the surgery my client endured as a result of his accident.

Even if I don't try this case, the medical knowledge I gained in preparing for trial will help me in other cases, since lumbar spine injuries are very common injuries in falls from scaffolds cases, car accident cases, and other types of traumatic injury cases.

My father always said, "there is no such thing as useless knowledge". As usual, he was right.

August 15, 2010

The Increased Role of Alternative Dispute Resolution in New York Personal Injury Lawsuits

Thumbnail image for courtroom.jpgSyracuse New York personal injury jury trials are fewer and farther between than only a decade ago. The same can be said for all Central New York personal injury jury trials. In fact, the same trend is being noted throughout the entire State, as well as the other 49 States. Read about it for yourself, but clicking here and here. All civil jury trials are down in numbers, everywhere.

Let's be clear; although the number of lawsuits filed has remained steady over the last decade, fewer and fewer of those lawsuits are going to trial. Here's a vivid demonstration of the trend: In 1962, more than 11 percent filed civil lawsuits in federal court went to trial. By last year, however, that percentage had dropped to 1.8.

If almost 98% of personal injury lawsuits are not going to trial, what is happening to them? Many of them are being resolved by "alternative dispute resolution", (known as "ADR"). In some areas, ADR has overtaken trials as the predominant way to resolve personal injury lawsuits as well as other types of civil disputes. ADR consists mainly of "mediation" and "arbitration". "Mediation" is a non-binding settlement procedure where a neutral "mediator", usually a lawyer or a retired judge, tries to bring the parties to a reasonable settlement that is acceptable to both sides. "Arbitration" is an informal hearing where a lawyer or retired judge hears the case, and decides it, but the formal rules of evidence, such as the bar against hearsay, don't usually apply.

What has changed since the 1960's? Why are cases being resolved by ADR rather than jury trial? Here's my take on it; juries were more plaintiff-friendly back in the 1960's. In the 1960's, many New York injury lawyers would rather take their chance at trial than settle out of Court. But with all the negative publicity personal injury lawyers and cases have gotten since then (the "MacDonald's case", etc.), the jury pool is now biased against personal injury victims and their lawyers. More and more Syracuse New York personal injury cases, as well as such cases everywhere else, are tossed out by cynical juries. This makes Central New York accident lawyers, and such lawyers across the nation, more willing to consider ADR.

Also, ADR was hardly even heard of back in the 60's. It really wasn't an option. Now it is a fast-growing method of resolving New York accident cases, as well as other civil cases, principally because, compared to trial by jury, both the costs and the risks are greatly diminished.

The costs are reduced because the parties usually don't have to pay experts to give testimony; their reports can be submitted informally. At trial, the formal rules of evidence would not allow for this. Experts are expensive. For example, I am trying a case next month where the medical doctors I am putting on the stand are charging me a total of about $4,000 each, and since I have 4 of them, that will cost us $16,000. Mediating or arbitrating the case would probably save me, and my client, that money.

The risks are diminished in ADR, at least in mediation, because the injury victim is almost sure to walk away with some money, whereas a jury trial is a roll of the dice; we could win big, we could get a goose egg verdict, or we could get anything in between.

Most of my clients would prefer to take a little less than they feel they are entitled to rather than risk getting a thumbs-down verdict by a jury of strangers who might not understand their case or injury. In the end, resolving a case by trial is a gamble - and an expensive one - that most clients would prefer to avoid.

A good New York trial lawyer has to be prepared to jury-try his cases. But if he is truly representing his clients' interest, he will be open to ADR and consult his client about this option as well.

August 14, 2010

Syracuse Truck-on-Car Collision Discussed by Syracuse Car Accident Lawyer

Thumbnail image for tractor trailer.jpgWednesday, on Route 5 in Elbridge, a tractor trailer rear-ended a stopped car so hard that the car, a Kia, burst into flames, killing its driver and passenger. The Onondaga County deputy sheriff's office says the tractor trailer left no skid marks at all, which means its driver did not apply the brakes. And what does that mean? That the driver did not even see the stopped car. And what does that mean? One of two things: Either he was sleeping, or he was distracted.

Most likely distracted. I have blogged about this before: distracted driving is become a HUGE problem on our roadways. More and more Central New York car accident lawsuits against distracted drivers are being filed. As a Syracuse car accident lawyer, the volume of car accidents cases I handle where the at-fault driver was distracted because he was using a cell phone, texting, and using some other electronic device has increased dramatically over the years.

Typically, distracted driving causes crossover accidents (the texting or dialing driver slowly drifts across the centerline without noticing) and rear-end collisions (the distracted driver does not notice that the vehicle in front of him has stopped). But distracted drivers also tend to run red lights, blow past stop signs, and run into utility poles or other roadside structures.

Combine distracted driving with tractor trailer driving and what do you get? A bad situation made worse. Tractor trailers are so heavy compared to cars that a collision between the two is no contest; the car's driver and passengers are more often than not killed (as they were in this accident) or seriously injured. That's why commercial trucks and drivers are subject to so many State and Federal safety regulations. By the way, these regulations come in handy in preparing a New York commercial truck accident lawsuit.

Don't get distracted while you drive. If you are the victim of New York disctracted driving accident, call or email me for free information on what to do about it.

August 9, 2010

Strutured Settlements Are a Good Alternative to Lump Sum Payments for Some New York Personal Injury or Medical Malpractice victims.

money.jpgBeing a New York personal injury lawyer has its perks! A client took me out to dinner the other night. It was a fine meal at a great Geneva New York restaurant, Port's Café. The restaurant is only about a mile and a half from where my client's tragedy happened 3 summers ago --- his wife was hit and killed by a tractor trailer as she crossed routes 5 and 20 on foot, in a crosswalk, in the City of Geneva.

The dinner was a kind of celebration. We had settled his Geneva New York wrongful death case after almost three years of intense litigation, which included the filing of two lawsuits, and the taking of many depositions. And although no amount of money could ever replace the loving wife he lost, he had finally found peace. He felt that at least a measure of justice had been done. We had made them pay! To him, the money meant they had finally accepted responsibility for the accident after years of denial.

Because the wrongful death settlement was for a substantial sum of money, and my client does not need the money at this time (he has a good job and no children to support), I suggested he should consider a "structured settlement". A "structured settlement" is an insurance or financial agreement in which the plaintiff does not take the entire settlement from the insurance carrier in "a lump sum payment" right away, but instead forgoes immediate payment of at least some of the money, which he will receive later in "periodic payments" (usually monthly). A structured settlement is usually created through the purchase of an "annuity", which guaranties future periodic payments at a fixed amount over a fixed period of time, with interest added in so that you end up with more money.

Example: If you "structure" $500,000 to be paid out over a 10 year period, with monthly payments starting in the year 2020 and extending through 2030, you will end up getting paid far more than $500,000, because the money will have earned interest. You might end up with $800,000 or more, depending on the interest rate of the structure.

And you won't pay a dime of income tax on the money that is earned from the structure until you actual receive the payments. If the client took that same $500,000 as a lump sum, and invested it, he would in most cases have to pay income tax on the money earned from his investments as they are earned. Not so with structured settlements.

When we help a client find the right "structured settlement" for his or her financial needs, we always carefully research structures offered by various insurance carriers and financial institutions to get the client the very best return on his or her money, i.e., the best interest rate, with a secure triple "A" rated institution.

My client was very happy with how I handled his case, and his settlement. That's why he was taking me out to dinner. He even got a gift for my wife!

Yes -- being a New York personal injury and medical malpractice lawyer has its perks --- but the best perk of all is a happy client!

August 7, 2010

Syracuse New York Car Accident Accident Lawyer --- "Texting While Driving Kills!"

I have blogged about New York texting while driving car crash cases more than once. You can read my prior posts here and here. But this video --- oh my god --- if you can watch it more than once, you did better than I did. As painful as it is to watch, we should REQUIRE all drivers - especially inexperienced ones -- to watch it repeatedly! I have saved the video so I can show it to my oldest son -- Sebastian -- when he starts driving (only three years from now!).

August 6, 2010

More on New York Spinal Injury cases from Central New York Accident Attorney

Thumbnail image for spine.jpgI blogged just the other day about spine injuries and "pre-existing" or "degenerative" spinal conditions and how they can negatively impact New York personal injury and accident settlements and trials. My partner, David Kalabanka, a great Central New York personal injury lawyer, read the post and sent me the following email, which I think makes a great post itself. (By the way, David used to work as an insurance company defense lawyer in Syracuse. His job was to beat us in court! We litigated several Syracuse New York accident cases against him, and he defended them with such skill that we decided to bring him into our firm to work with us instead of against us. He came aboard about 8 years ago and never looked back. But I digress!) Here's David's email to me:

You should tell your readers that sometimes the injured accident victim has radicular symptoms. What are radicular symptoms? An injury may cause nerve root or a spinal cord compression or irritation. The irritation/compression follows the nerve that innervates another part of the body and cause pain there. The back is complex--and injury to a certain area of the back will cause pain in one or both feet The most commonly known back injury that causes pain elsewhere is sciatica where an injury to the back causes pain in the buttocks or the back part of the leg or calf. That is why it is so important for thorough testing, not just one time examination or review because an injury may not be what it initially appears to be. A foot pain could actually be originating at a certain level of the back and it may take the medical providers time to determine the actual source of the pain. An injury to the neck may cause pain in the elbow, wrist or hands or certain fingers depending upon where the injury in the neck is located.

Thanks, David, for your very astute email. You made today's blog post a breeze!

August 4, 2010

"Worker in Geneva New York Who Fell from Scaffold Probably Has a Slam Dunk Case against Wal-Mart", Geneva New York Injured Worker Lawyer Says.

scaffold.jpgMy hometown newspaper, the Geneva Finger Lakes Times, reports today that a Florida man working for a subcontractor on the Wal-Mart "Super Center" expansion in the Town of Geneva, New York, fell from a scaffold, suffered shoulder and wrist injuries, and was then Merrcy Flight-flown to Strong Memorial Hospital in Rochester. The worker had been working at the ceiling level when he and the scaffold both fell over. OSHA is investigating.

No matter what OSHA decides, though, I can tell you with almost absolute certainty, from my years of handling New York falling scaffold injury cases, that the injured worker has a "slam dunk" New York worksite accident case against the owner of the building where he fell, Wal-Mart, as well as against whoever the general contractor on the job was. This is because of a special New York law, called the "scaffold law" (Labor Law 240[1]), specifically designed to help victims of unsecure scaffolds and ladders get full compensation for their injuries from both the owner of the building and the general contractor on the job. You can read my prior posts on this topic by clicking here and here.

August 4, 2010

Syracuse New York Accident Lawyer: "Think The World Would Be Better Without Lawyers? Think Again."

Not much to write about here, just watch the video below:

August 3, 2010

Spinal Injuries Can Be Problematic in New York Personal Injury Cases

spine.jpgThe Syracuse and Central New York accident law firm of Michaels & Smolak represent lots of people with spine injuries. That's not surprising; spine (neck and back) injuries are very common in car crashes, falls from scaffolds or ladders, slip and falls, and other accidents. But in the world of New York personal injury claims, spine injury cases pose special problems in court. Let me explain why.

Our injured clients often have never in their life had any back or neck pain, but ever since the accident they have had excruciating pain in the neck (cervical spine), or mid back (thoracic spine), or lower back (lumbar spine), sometimes with "radiculopathy" (radiating pain) down into the legs or arms. The pain is sometimes so severe it prevents them from working in anything but sedentary jobs, or from working at all.

But even though our clients never had any problems with their back or neck before the accident, after they undergo an MRI or CT Scan, the radiologist will sometimes say that their spine was already compromised before the accident. The radiologist will see evidence, in the MRI or CAT scan, of something known as "degenerative" spinal changes or disease. It might be a herniated disc (a protrusion or budge in the intervertebral disc that can compress nerves around the spine) or.a spinal stenosis (a narrowing of the spinal canal causing swelling of the tissue around the spine, which can compress the nerves around the spine).

Even though these "degenerative" conditions, which are caused by the natural aging process, were present before the accident, they were causing no pain or symptoms of any kind. That is why medical professionals refer to them as "preexisting asymptomatic degenerative disease".

Now here's the problem: Even though the accident caused the symptoms, and even though the client would probably never have developed the symptoms but for the accident, and even though the symptoms may now require extensive surgery (to relieve the pain), such as a fusion of the discs, or a "discectomy" (removal of a portion of the problem disc), the insurance company lawyers will argue that the accident did not cause the injury. Rather, they will argue, the injury was already there, and therefore, they are not responsible for compensating the accident victim.

And some juries buy that! That's why, when, as a New York personal injury lawyer, I read my clients' medical records, and I see the words "pre-existing" or "degenerative", I cringe. This is not good for my client's case. I know the insurance company will take those words and run with them. They will often try to low ball the settlement offer based on their argument that the injury was already there before the accident.

But it wasn't. What was there BEFORE the accident was merely a "condition", and a completely benign one (no pain!). What was there AFTER the accident was a painful disability, caused by the physical trauma of the accident.

We believe our clients are entitled to full compensation for the symptoms that the accident caused, regardless of whether underlying asymptomatic "degenerative changes" were already there. And many, but not all, juries agree with us. But in the end, it is the client's decision whether to risk a trial, where a jury may decide to discount his or her injury because the underlying condition was "pre-existing", or to settle, sometimes for less than they deserve, with the insurance carrier.

And we always support our clients, no matter what they decide.

August 1, 2010

Under New York Bicycle Accident Law, Dog Owners Are Not Always Liable for Dog-on-Cyclist Attacks

Thumbnail image for bicyclists racing.jpgAt my favorite Bike Shop (the Geneva Bicycle Center), I recently learned of a dog-on-bicyclist attack near Geneva, New York. Apparently, the dog charged out at the cyclist and caused her to fall from her bike and fracture her pelvis. That's a painful injury that will require lots of time to heal.

So here's my bog topic of the day: Can the injured cyclist hold the dog owner liable for her injuries? The answer, unfortunately, is only "maybe"! The basic rule in New York where a dog charges out into the roadway and causes a cyclist to fall is that the dog owner is legally liable only if he or she knew or should have known that the dog had a tendency to chase after or obstruct traffic. Take a look at the case of Alia v. Fiorina and you will see how a dog owner can beat a cyclist's case by testifying that the dog never chased down cars or bikes before.

So if you are the seriously injured victim of a dog-on-cyclist attack, how do you find out whether this was the first time the dog ever chased down a car or cyclist, or whether the dog had a history of doing so? Just ask the dog owner, right? Wrong!

If there's one thing I have learned from suing dog owners is that they are like parents; they feel their cute little Fido can do no wrong. Typical dog owner responses to his or her dog biting someone, or charging out at a cyclist, go like this: "Butch would never bite anyone - he must have been provoked". "Fido would never attack a cyclist --- he was just being playful and the cyclist must have over-reacted".

The way to find out the truth about the dog is to hire a skilled investigator to get statements from the neighbors, UPS driver, postal worker, and anyone else who frequents the house and the street or roadway where the dog lives. That's what the New York bicycle accident lawyers at Michaels & Smolak do when they are investigating a dog that caused a Central New York bicycle accident.

If you can hold the dog owner liable, the owner's homeowner's insurance will most likely provide coverage for the injuries, including payment of medical expenses, lost wages and pain and suffering. And if you are seriously injured, the extra money will come in handy.

If you are attacked by a dog while riding your bike, see a knowledgeable New York bicycle accident lawyer who knows how to properly investigate your claim.