Central New York Injury Lawyer Blog

If you're like me, you wouldn't mind being Spiderman. Hey, he's got a cool way of getting around, shooting spider-gook from his wrists and swinging around town. Beats driving in city traffic.

But every job has its drawbacks, even Spiderman's. We learned this week that he plummeted 30 feet during Monday night's performance of the Broadway production, "Spider-Man: Turn Off the Dark". Doctors say he is in serious condition, with broken ribs and internal bleeding.

Little is known about how this accident happened. We do know, however, that somehow the wire he was swinging from failed. (In this Broadway show, he was swinging from wires rather than his spider-gook --- go figure!) We do not know whether the wire failed because it snapped or because it became unfastened. Either way, it appears certain that Spiderman was the victim of someone's negligence (unless it was Green Goblin's sabotage).

Who could Spiderman sue? If the wire snapped, he may have a New York defective product (product liability) claim against the manufacturer. If stagehands failed to properly fasten the wire, he could have a New York negligence claim against them and their employer. There are all kinds of variations on these possibilities; maybe someone negligently failed to instruct or train the stagehands in the art of wire fastening, or someone neglected to properly inspect the wire before use, or perhaps the manufacture failed to provide proper warnings, or warranted the wire for greater weight than it could hold. A New York accident lawyer should thoroughly investigate all these possibilities so he can catch all possible villains in his legal web.

Is it possible that our superhero was a victim of a mere "accident"? Is it possible that everyone did everything right and that this accident just "happened"? No. That's not possible. Almost all "accidents" are caused by someone's carelessness. This one is no different. Someone, somewhere, somehow screwed up. In fact, news sources say that the Department of Labor, Occupational Safety and Health Administration and Actors Equity representatives have already recommended new safety measures to prevent a repeat. I wish I Knew what those new measures were, because that would tell me who did what wrong.

But the show must go on. We wish the fallen Spiderman a speedy, full recovery, and we hope the producers and others on the set have learned some valuable safety lessons so as to avoid injuring other spidermen.

Keep safe!

Mike Bersani

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

Michael G. Bersani, Esq.

This Central and Syracuse New York car accident lawyer has been blogging about other peoples' car accidents for more than a year. Today I get to blog about my own.

I was stopped at a red light on Pultney Ave (at the intersection with Washington Street) in Geneva, New York last Friday at about 3:30 p.m. My 12-year old boy, Nico, was sitting right next to me. I had been stopped at the light for about 5 seconds when suddenly I heard an explosion behind me and felt my car racing forward and my torso sink into the back of my seat. My car flew through the intersection (luckily no cars were coming) and came to a halt about 70 feet ahead.

My Central and Syracuse New York car accident clients who have been rear-ended often report that it took them a while to realize they had been hit. They are right. I thought a bomb had gone off behind me.

After checking on Nico (he was fine, but stunned), and myself (ditto), I got out of the car, looked back, and saw a young man behind the wheel of a lovely green Jaguar whose front had been smashed in (see photo above, left).

Then I did just what I tell my clients to do. I took the name and contact information of a witness who came up to me to see if I was alright. I used my cellphone to take pictures of my car damage (photo on right above), and his (photo on left above) and of the position the cars ended up in. And I called the cops.

Meanwhile, the kid in the Jaguar (turned out he was 19 years old) pulled around in front of me and got out. He seemed angry at first. Guess he thought I had just come out of nowhere! But reality soon sunk in --- he had rear-ended me, so it was all his fault. He must not have been paying attention. I estimate, from the damage to the vehicles and the impact I felt, that he was going at least 20 miles per hour.

What was he doing in his car so that he did not notice me stopped there? Cell phone? Who knows. His insurance (Nationwide) has agreed to pay for all my repairs. I am thankful no one was hurt. My clients are not so lucky. Many are seriously injured from impacts of far lesser magnitude. Once again, I have to thank my lucky stars . . .

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 Lawyer
Michaels & Smolak, P.C.

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

I would like to wish a happy holiday season to all my readers. And don't forget to be safe during the season! Check out my post from last year on this topic:

Central New York Injury Lawyer Says, "Don't Be Careless at Christmas - Be Safe with Holiday Lighting and Christmas Trees"

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 Lawyer
Michaels & Smolak, P.C.

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

Convenience and safety often clash. Quick example: In the old days, before the era of car seats and booster seats, getting the kids into the car was so easy, so convenient. You just threw them in and off you went. Early on, there weren't even seatbelts. Only problem was that kids were getting mangled, crushed and killed in car accidents. Enter car seats and booster seats. What a pain in the a--! All that strapping in, tying down. Inconvenient, isn't it? But safe.

Now let's take cribs. Several decades ago some smart engineers invented a great convenience: Drop-side cribs (see photograph featured here). No more leaning over the side of the crib to awkwardly place baby to bed. It was a hit!

Only problem was babies were dying. The drop-side sometimes created a V-shaped gap between the mattress and side rail where babies got caught, suffocated and died. At least 32 infants have died this way since 2000.

When you think of all those babies, thousands of them, who have successfully used drop-side cribs over the last decade, 32 deaths do not seem like a lot. Unless it's your baby. Then it seems like way too many. Then, after you have buried your baby, and have cried rivers of tears, you may say to yourself, between spasms of guilt and grief, "hey, the guys who made this crib knew that other babies had died in them, but they sold it to me anyway. They made money. And they killed my baby". You might long for justice. Then you might stop in to see someone like me, a New York defective product lawyer. And then together we might file a New York products liability lawsuit against the company who put the baby-killing product on the market.

Many of the companies who made these cribs had recalled them over the year. They knew they had a problem. And despite repeated attempts, they were unable to design or manufacture a fool-proof drop-side crib. So last Wednesday the Consumer Product Safety Commission finally voted unanimously to ban the manufacture, sale and resale of the cribs.

The ban makes sense. Convenience is not worth the lives of 30 babies a decade.

The Auburn Citizen recently reported on a Cayuga County Nursing Home Negligence case, and that's my topic for today.

At first blush, it seems like a compelling case. The nursing home's negligence is clear cut. So clear cut that when the State Department of Health cited the Home with violations, the Home almost immediately paid the $12,000 fine without protest. And the resulting injury was severe; death! And the nursing home has been sued. But even though the negligence is clear, and the injury severe, I may have declined to take this Auburn New York nursing home negligence wrongful death case. Why?

Glad you asked. First, a few facts. The nursing home nurses gave this 94-year-old resident (I'll call her "the victim") the wrong medication. The mix-up happened because two drugs' names - metolazone and methimazole - have many letters in common. But in fact they were nothing alike; one would help treat this woman's ailments and the other would kill her. (New York prescriptions errors like this one are, unfortunately, all too common). The mistake started when a pharmacy (which has also been sued) entered the order incorrectly, but the nurses failed to detect the mistake and gave the victim this wrong drug repeatedly.

During 18 days, the victim developed symptoms that should have tipped off the nurses that something was amiss; she developed an inflamed large intestine and became wane and dehydrated and then suffered an "unresponsive episode". The victim eventually died of heart problems from kidney failure aggravated by the medication.

Sounds like a great case, right? So why might this Central New York wrongful death lawyer have rejected the case?

The problem is not the facts of the case, which are compelling, but rather New York wrongful death law. Unlike the law in almost all other States, New York wrongful death law does not allow for compensation for the grief of family members. The law allows only for "economic" loss, which means funeral expenses and any loss of economic support to close family members (spouse and children). But when you are 94 and in a nursing home, you aren't supporting anyone, and therefore you have no compensable loss under New York wrongful death law, except perhaps for some funeral expenses.

The only way this case makes economic sense to bring is if the victim endured, before she died, "conscious pain and suffering" as a result of the prescription error. If she did, her estate can claim compensation for it. From the newspaper article I have read, it seems there might be a problem proving that the patient endured any conscious pain and suffering. But I could be wrong. I would need to review the medical records and talk to the family members and other witnesses to find out.

My point is that New York wrongful death law often results in a travesty of justice for elderly victims of medical malpractice and their families. Negligent and careless doctors and nurses can almost literally "get away with murder" as long as the patient experiences no conscious pain and suffering. Fair-minded people have been lobbying Albany for years to change the law, but the insurance and doctor lobby has pushed back all assaults on this horrendous law. Maybe one day justice will prevail . . . .. Let's hope so.

related posts:

Central New York Prescription Malpractice Lawyer Explains How Medication Errors Happen

>Syracuse Medical Malpractice Lawyer Explains: Medical Malpractice Is Killing Us.

Federal Law Regarding Compensating Wrongful Death at Sea Is, Like New York's Wrongful Death Law, Unfair and Harsh

Syracuse Malpractice Lawyer: Nursing Home Neglect and Maplractice Is Pandemic, As Demonstrated by Recent Fines Issued to Syracuse Nursing Homes.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 Lawyer
Michaels & Smolak, P.C.

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

In my last blog, I explained the maximum legal fee in a New York personal injury case. The fee is different, however, in medical malpractice cases, and that's the topic of today's blog post.

In medical malpractice cases, New York law provides for a "sliding fee" in which the lawyer's percentage drops as the amount recovered increases. The sliding scale goes like this: 30% of first $250,000 of recovery, 25% of the next $250,000, 20% of the next $500,000, 15% of the next $250,000 and 10% of the recovery over $1. 25 million.

Notice that the fee in a medical malpractice case (sliding scale starting at 1/3 and dropping down to as low as 10%) is lower than the fee in a regular personal Injury case (straight-out 1/3 regardless of the amount of the recovery).

Why does New York law provide for a lower fee in medical malpractice cases than in other injury cases? After all, medical malpractice cases are more demanding, and usually require more work and skill than most regular personal injury cases. (As Central and Syracuse New York medical malpractice lawyers, the lawyers at Michaels & Smolak know this first hand). In a medical malpractice case, a New York medical malpractice attorney worth his salt will spend countless hours absorbed in medical text books to become fluent enough in the particular field of medicine at issue to not only clearly explain to the jury what went wrong, but also to effectively cross-examine the defendant doctor, who will try to convince the jury he did nothing wrong at all. And medical malpractice cases are less likely to settle than regular personal injury cases, and therefore a New York medical malpractice lawyer is more likely to end up spending weeks in trial. It's more work. Lots more!

Then why is the attorney fee less in a New York medical malpractice case if it requires more work?" Answer: doctor Lobbying. Yes, your friendly doctor belongs to a group of doctors which pays lobbyists to bend the ears of lawmakers in Albany. Not only do they bend these lawmakers' ears, they also fill their re-election campaign chests. No surprise, then, that these lawmakers are willing to vote for such a silly, complicated "sliding scale" fee schedule as the one described above, whose overall aim is simply to reduce attorney fees in medical malpractice cases.

When the doctors lobbied for this law, and won, they hoped that the reduced legal fee would make medical malpractice lawyers more reluctant to represent the victims of medical malpractice. They hoped fewer New York medical malpractice victims would find lawyers to take their cases to the courthouse doors. They did not pass this bill because they wanted you, the malpractice victim, to end up with more money at the end of your case. They wanted you to go away! But did you go away? No! Why not? Because many fine New York medical malpractice lawyers are still willing to represent you, even at a reduced fee.

If the doctors and their lobbyists really want malpractice lawsuits to go away, I have a better idea: Prevent malpractice! It's easy. Just read a few of my prior blogs on this topic (here and here).

When you go to the supermarket, do you know what to expect a gallon of milk to cost? If you are a careful shopper, you should. What about when you go to see a New York personal injury lawyer? Do you know?

First, you need to understand some basic concepts. The "gross recovery" in a personal injury case means the full amount of money the insurance company pays to settle the claim or to satisfy the judgment after trial. The "net recovery" means the insurance company's payment minus expenses. The "expenses" on a personal injury are all the monies your attorney pays to others to perform services to move your claim forward. Such expenses include, for example, the money he pays to the process server to serve the claim, Court filing fees, expert fees, and copying expenses.

New York law allows a New York personal injury attorney to charge a maximum of 1/3 the "net" recovery. For example, if you settle your case for $100,000 and there were $10,000 in expenses, your attorney should charge you 1/3 of $90,000, which amounts to $30,000. This leaves you with $60,000. This is the law in New York State.

Any New York personal injury attorney who tries to charge you 1/3 of the gross recovery is breaking the law. And I have seen lawyers do this! I have reviewed retainer agreements for New York personal injury cases in which the lawyer charges "1/3 the recovery plus expenses". In a case that settles for $100,000, in which there were $10,000 in expenses, this lawyer will take $33,333 in fees, charge all the expenses to you, and leave you with only $56,666.

Generally these illegal retainer agreements are prepared by New York lawyers who only "dabble" in personal injury law. They don't know what they are doing. I don't think it is deliberate. The rules in other States are different. Many States allow attorneys to charge 1/3 of the gross recovery and have the client foot the full bill for all the expenses. So maybe these New York lawyers are copying and pasting from retainer agreements from another States.

A New York lawyer who claims to handle personal injury cases but doesn't even know what he can charge doesn't inspire much confidence, now does he? That's just another reason why you should hire only a New York personal injury lawyer who handles a high volume of personal injury cases. Your case is too valuable to have some attorney "learn the ropes" on your case. Let him cut his teeth on a less careful shopper's case!

Hope this was helpful.

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 Lawyer
Michaels & Smolak, P.C.

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

OK, I'll admit it. I have never gotten a $66 Million Dollar verdict. Although all the lawyers in our firm have either gotten million dollar settlements or verdicts, and even multimillion dollar ones, we have never come close to that number. $66 million? That's a lot of money. That's a Western New York personal injury verdict record. And that's what a Western, NY jury awarded a woman who suffered severe spinal in a workplace accident last week.

I am sure there was very good lawyering here (hats off to Michael Law, a good friend of this law firm, and his partner Kevin English) but that alone can't explain a verdict of that size. In my experience as a Central New York personal injury lawyer, a jury will only give that much money away when (1) it really dislikes the defendant, and/or (2) the injuries are devastating beyond belief.

Both of these things appear to have been present here. This was not just a run-of-the-mill back injury. This twenty-something woman was rendered quadriplegic after a large piece of exercise equipment toppled onto her, shattering her cervical vertebrae, and causing massive spinal cord damage.

How did that happen? She was a massage therapist at a business that provided physical therapy. She leaned against a 600-pound "leg extension machine", which then toppled over on top of her. (How could that happen without some negligence on the part of either the manufacturer of the product or the owner who installed and maintained it? Answer: It couldn't). Her Rochester, NY personal injury lawyers brought a New York products liability claim against the manufacturer of the machine and a negligence claim against the business that owned and maintained it. The jury said that the manufacturer was the most at fault (75%) but that the owner was to blame, too (20%). The jury found that the plaintiff had barely any fault at all (5%).

My guess is the jury got angry with the defendants for refusing to accept responsibility for the accident (this same thing had happened to 7 other people before, so clearly there was something dangerous about this machine). The trial strategy, often employed by defense lawyers, of trying to blame the injured plaintiff for the accident can backfire big time, as it appears to have done here. Really, how could this poor young lady have been much to blame for this 600-pound machine, which she did not design or install, toppling over on her?

Quadriplegic cases often result in very high verdicts because of the great expense of long-term medical care. And when the victim is in her 20's, as here, multiplying the yearly medical care cost out into the future makes for a big number. Also, lost wages over a life time adds up.

Here, the jury determined that the injured woman's medical care would cost almost $30 million. In fact, almost exactly half the $66 million award was for "economic loss" (a life time of medical expenses and lost wages) and only half was to compensate her for pain and suffering and loss of enjoyment of life.

Is $33 million too much for her pain and suffering? What is having to live your life as a quadriplegic really worth? Would you allow me to crush your cervical spinal chord and render you quadriplegic if I paid you $33 million dollars? Think about it and let me know if this verdict was excessive.

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 Lawyer
Michaels & Smolak, P.C.

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

Have you dusted off and revved up your sled yet? Many Central New York snowmobilers have. Snowmobiling is a fun family sport, and is wildly popular all over Central New York, including Onondaga, Cayuga, Wayne, but especially up in the "North Country" of Oswego County, St. Lawurence County, Jefferson County and Lewis County.

In case you haven't noticed, though, this great outdoor activity comes with certain risks. Snowmobiles are fast, heavy machines whizzing across diverse terrain, including through wooded areas.

As a Central New York snowmobile accident lawyer, I have seen snowmobile injuries close up. Believe me, they ain't pretty. I have seen it all; broken arms and legs, head trauma, neck fractures and face injuries. Head and neck injuries are the worst, and can lead to death.

If you were hurt on your sled, I can almost guaranty you were not really on your sled when you were injured. You were ejected. If you were ejected and didn't hit a fixed object, you're probably only slightly injured. But if your body hit a stationary object such as a tree or another sled . . . well, you're probably not reading this.

I have blogged about snowmobile safety before (here), but you can never get enough of a good thing, right? So just keep in mind that speed is the number one cause of most fatal snowmobile accidents. "Dashing through the snow " makes sense in a one-horse open sleigh, but when the only thing separating you from a tree is two feet of sled, well you'd better slow down.

Here are the most important snowmobile safety rules:

* Wear a helmet. It won't kill you. In fact, it will save your life.
* Stay in control. This means drive at an appropriate speed for the conditions and your ability and experience.
* Don't go out at night, but if you do, be really careful, slow, and don't drink.
* Ride with a buddy;
* Stay on marked trails.
* Be very, very careful crossing streets and roads --- lots of accidents here!
* Don't go across a body of water unless you are 100% sure it is solid frozen.
* Carry a safety kit.

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 Lawyer
Michaels & Smolak, P.C.

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

The last three days have dumped 30 inches of snow on Syracuse. And lots of snow usually translates into lots of car accidents. This storm is no exception. The Syracuse Post Standard today reports that between midnight and 2 p.m. last night, 150 car were involved in crashes inside the city of Syracuse!

So does what do New York car accident lawyers, judges and juries say about that? Does a snow storm excuse a driver who loses control of his car and crashes into someone? Absolutely not! (Well, usually not).

Make no mistake; even if snow is a contributing factor in these car accidents, the drivers are usually at fault. A driver is required to drive at a speed that is safe for the weather conditions. If the roads are snowy and slippery, guess what? You have to drive slower. Not only that, you have to leave more space between you and the car in front so you have more time to stop. Duh! And another thing; you can't drive with your windows fogged up and snow clinging to your windshield, crash into some other guy, and then claim it was the storm's fault.

So listen to the advice of this Syracuse car accident lawyer. Really, I am trying to do you a favor. Start out to work early so you won't have to rush. Take the extra time to brush the snow off your car and defog your windshield. Then head to work at a crawl-pace. Patience! That's what you need. Give yourself lots of time to get there. You won't regret it, because you won't have to worry about me suing you.

Yes, that's right. I have brought many claims against drivers like you, who are otherwise really nice people, but who just didn't take the time to drive correctly in the snow. When we get to Court, your insurance company's lawyers might try to blame it on the snow, "an act of god", he will say. But I don't buy that, and in my experience, neither do most juries. Sure, the snow made the accident more likely to happen, but it is hard to get around the legal charge that a driver is required to maintain control of his vehicle and reduce his speed commensurate with the prevailing weather conditions.

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 Lawyer
Michaels & Smolak, P.C.

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

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Now that the snow's finally here in Central New York, it's time for this Central and Syracuse New York slip and fall lawyer to blog about New York snow removal liability. When can a property owner be held liable for failure to remove snow and ice that causes a slip and fall injury?

Here are a few ground rules. First, in New York, if it's snowing fairly hard, a landowner cannot be held liable for failing to remove snow until "a reasonable time after" it stops snowing. This is known as the "storm in progress doctrine". It is meant to give property owners a kind of grace period while the snow is still falling. New York law deems it unreasonable to require landowners to remove every flake as it hits ground! The doctrine is not limited to blizzard conditions, but also applies in less severe, but still inclement, winter weather.

What is a reasonable period of time after the snow stops falling so that landowners must begin to remove the snow that fell? It depends, and it is generally up to the jury. But let me put it this way --- most New York slip and fall lawyers (me included) wouldn't take a Central New York winter weather slip and fall case, on commercial premises, unless the accident happened at least a half an hour after the snow stopped. And if it happened on a private home walkway, I would want to know whether the homeowner was at work when it stopped snowing. Most juries would find it pretty unreasonable to require a homeowner to come home and clean his walkway when the storm stops while he's at work.

The storm in progress doctrine is not an iron-clad rule. It is riddled with exceptions (aren't there always exceptions? That's what makes law so fun!). Here's an important one: If you can prove that the slip and fall was caused by OLD ice that was hidden under the new snow, and that the property owner had failed to salt the old ice for some time before the snow storm started, then you can hold him liable. You see, in that case the slip and fall injury was not caused by the newly falling snow that the owner had no time to remove, but rather by old ice that he should have removed long ago.

The law is almost always reasonable. But landowners often aren't. A property owner who fails to remove snow and ice within a reasonable period of time after the end of a snowfall unreasonably endangers visitors to his property. He or she should, in my view, be held liable for injuries his irresponsibility causes. Fortunately, the law agrees with me.

Reader's Digest version: Property owner, you can sing "let it snow, let it snow, let it snow" while the snow still falls, but when it stops, so must you. Get out the shovel, and get to work.

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 Lawyer
Michaels & Smolak, P.C.

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

I don't know about you, but every time I back my car out of my driveway or in the supermarket parking lot, I worry about hidden toddlers. This could be a side affect of my job as a Central New York personal injury lawyer. But it could also be because I have read way too many reports of toddlers getting backed up over by cars, pickup trucks and SUV's. The problem is that small children are below the view of your rearview mirror.

So I was glad to come across a Bloomberg article yesterday reporting that rearview cameras with in-vehicle displays will probably be required in new cars and trucks by the year 2014. The auto industry will, of course, oppose this requirement, but hey, they also opposed requiring seatbelts and airbags in their day, and look how many lives those have saved.

I remember a story I read in the Geneva Finger Lakes Times last year where, in Geneva, New York, an uncle backed his car out of his driveway and ran over his 3 year-old nephew. After the accident, he disappeared for a few days while he contemplated suicide.

National Highway Traffic Safety Administration statistics show that vehicle back-ups kill 300 and injure 18,000 people a year in the U.S. Nearly half the deaths are of children under 5 years old. Tragically, in 70 percent of the cases, family members are responsible for the backup death or injury.

Imagine the lifetime of remorse, shame and indescribable sadness that backing up over your own child brings on.

Right now, backup cameras are available on many vehicles, but they are optional. If forcing the auto industry to equip all vehicle with this technology will save 300 lives a year, and avoid 18,000 injuries, I'm all for it.

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 Lawyer
Michaels & Smolak, P.C.

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