April 2011 Archives

April 26, 2011

Surveillance Cameras Are A Godsend To New York Personal Injury Lawyers

Thumbnail image for Thumbnail image for banana peel.jpgSurveillance cameras are a game-changer in personal injury litigation. I blogged about this before, but another recent example illustrates this point.

A client slips and falls in the vestibule entrance of a local movie house. It had been raining, and movie-goers had been dragging in the rain on their feet. The employees had forgotten to lay out the rectangular carpets to absorb the water as they were required to do by company policy. But the insurance adjuster handling the claim tells me it was all my client's fault because she "rushed" into the vestibule. I formally requested that any surveillance videos of the incident be preserved as evidence. After I sue the movie house (because the insurance carrier refused to pay), I demand the video. It shows my client walking at a normal pace and then sliding for about a foot before finally tumbling to the floor. That floor was like an ice-skating rink, and I have it on video to prove it.

Before the era of surveillance cameras (and they are everywhere now - you would be surprised just where), my client might have lost this case --- it was just her word against theirs. Now it is her word, and a surveillance video tape, against theirs.

One thing I have learned as a New York personal injury lawyer, and especially as a slip-and-fall accident lawyer, is that you have got to demand, in writing, that those surveillance tapes get preserved right away. Many stores and other institutions re-use surveillance video tapes, taping over earlier recordings, on a weekly basis. But if you ask them to preserve the surveillance video as evidence, and they have not already taped over it, then they must preserve it. If the don't, the Court can later dismiss their defenses and grant the injured plaintiff a judgment based on destruction of evidence.

If you are injured and you believe there may be a surveillance video tape of the accident, don't forget to tell your New York personal injury lawyer about your suspicions so he can demand that the evidence be preserved!

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


April 25, 2011

Central And Syracuse New York Accident Lawyer On Swimming Pool Toddler Accident

pool with beachball.jpgSwimming pool season is almost here, which means lots of fun and relaxation for many New Yorkers who will finally get to "take in some rays" on the pool deck after an especially long, cold and snowy winter.

But today I had a grisly reminder of the dangers that lurk in pool areas. Two toddlers were pulled from a swimming pool at a Buffalo home on Easter Sunday. One of the boys, only 2 years old, somehow got under the pool's solar cover. He was unresponsive when they pulled him from the water and is now in critical condition at Woman and Children's Hospital. The other boy fared better --- he was found on top of the pool cover and is in good condition. The boys were at a family Easter gathering at the home. Let's hope and pray that the boy in critical condition makes a miraculous, full recovery.

As a parent, reading news stories like this one reminds me of all the nightmares I have ever had about something terrible befalling one of my children because, perhaps for only a second, I was distracted. I once I lost a 3-year old in Kennedy Airport! Fortunately, I found him after what seemed like an eternity, but probably was more like 2 minutes.

For some unfortunate parents, my nightmares are their realities. Last year I blogged about a New York wrongful death case I handled involving a three-year old toddler struck and killed by a car after he had wandered off from his father, who was distracted with an even smaller child.

Let's face it; the world is a dangerous place, but especially for toddlers, and pool areas are right up at the top of the most-dangerous-place-for-toddler list.

Keep that in mind parents.

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


April 16, 2011

U.S. Tort Reformers Want Us To Follow Japan's Example On Compensating Innocent People Injured By Corporate Negligence

Thumbnail image for nuclear plant.jpg Warning: I am going to rail against tort reform again. Not the first time. Since it is my job as a Central and Syracuse New York personal injury lawyer to protect injured victims' rights to full compensation, you can bet I am vehemently opposed to "tort reform", which I call "tort deform". So here goes my latest rant:

Don't like American tort law? Think juries are too generous to injured plaintiffs? Then you should move to Japan where they know how to deal with people whose lives are ruined by the negligence of rich corporations.

Case in point: The operator of Japan's nuclear plant, which has been spewing radioactivity since the earthquake and tsunami struck, said Friday it would pay $12,000 to each family forced to evacuate the area. Nearly 140,000 people are living in shelters. They left with almost nothing but the clothes on their back. These people not only lost their homes, but their livelihoods --- they can't return to their jobs because of the radiation threat. And for that, hey, $12,000, per family.

The nuclear plant operator claims that there will be more compensation later, but you can bet it won't be much.

Who should pay the damages caused by the poor planning of an energy plant? Those who poorly planned it, or innocent people who happen to live next to it? If you think the innocent neighbors should pay, you should join the tort reform movement. If you think the negligent corporation should pay, you should be grateful you live in the good ol' USA where, at least in most states, a vigorous tort compensation system still protects your rights.

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


April 14, 2011

More On How Cyclists Should Defend Themselves From Canine Attacks

Thumbnail image for Thumbnail image for vicious dog.jpgAs my readers know, I am a Central New York personal injury lawyer who loves to cycle and run along the beautiful roadways around Geneva, New York, where I live, and Auburn, New York, where I work. I like to call myself the "Finger Lakes bicycle accident lawyer", but that's somewhat of an exaggeration, since I handle a lot of other kinds of accident cases as well. Fortunately, there are not enough bike accidents in the Finger Lakes for a lawyer to make a living just representing injured cyclists.

The Finger Lakes provide a stunningly gorgeous background to my workouts. But nothing is perfect. Those same run and bike routes are strewn with some very nasty, aggressive dogs. It seems that some folks who live far out in the country don't mind if their pets make mincemeat of bicyclists and runners.

My last post was about dog-on-bicyclist confrontations, and how bikers should deal with them. I said there was no consensus among cyclists about how to handle vicious dogs that run out at you on your bike, and asked other riders to give me their views.

And Jim Hogan responded. Who's he? Jim is the owner and manager of the Geneva Bicycle Center, the best dang bike shop in the Finger Lakes area, and I mean including Syracuse and Rochester. Jim not only sells bikes, he lives, breathes and rides the hell out of them, both road bikes and mountain bikes, and has been doing so for decades. I personally believe he was born on a bike seat, though I have no proof.

Here's what Jim says:

I would add 3 thoughts. When speaking to dogs, they understand 2 things, like small kids - mean, finger pointing voice and sweetie high pitched voice. If you are going to verbally deter, point a finger strongly with furrowed brow and bark a loud authoratative "No!" then immediately switch to the "sweetie, good doggy" voice. The confusion is visible. Also, when forced to jump off ALWAYS take the offensive immediately by charging with the bike swinging back and forth but still in front. Don't stop at the edge of the road. Chase a coupla feet onto their yard. It really, really works. As you get back on the bike, keep pointing and yelling. Almost every dog has had discipline similar to this from the owner. The "dog mace" (Called "Halt") is a life saver in a really bad situation and I have had no less then10 unsolicited testimonials about the stuff including a postal carrier who swears he is alive because of it (it is issued to all USPS carriers).

So there you have it. After I read Jim's email, I immediately bought a few cans of "Halt". Jim has them for sale at his Geneva Bicycle Shop. Thanks, Jim, for the advice. Next time Fido makes his move, I'll be ready for him. As a famous former president once said, "bring it on"!

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


April 13, 2011

Central New York Injury Lawyer And Cycler Discusses How To Deal With Dog-On-Bike Confrontations

Thumbnail image for vicious dog.jpgAnyone who has bicycled on Central New York's beautiful country roads, as I have, knows about the dangerous dogs lurking out there in the most pristine areas. And many of us have ended up in a ditch, or on the pavement, bloodied or with puncture wounds, because of it. Some of us have even been seriously injured and I (in my capacity as Central New York dog attack lawyer!) have been honored to represent them against the dog owner. Unfortunately, run-ins with dogs are part of cycling in the Central New York countryside.

As a Central New York personal injury lawyer and cyclist who has handled New York dog-on-bike cases, I have come to the conclusion that there are three main dangers in every dog-on-cyclist encounter: (1) the dog can bite you; (2) the dog can get caught up in your spokes and cause you to fall; and (3) the dog can divert your attention away from careful riding, and thus cause you to get hit by a car or fall from your bike. This last danger is the most serious one, but the one most cyclists overlook.

There is no universal agreement among cyclists about how to deal with a belligerent dog hovering close to foot or wheel. Here are the main categories of advice riders will give you: (1) ignore the pooch and keep riding as fast as you can; (2) spray the killer with your water bottle (the shock of the cold water will stop him dead in his tracks); (3) carry a can of "mace for dogs" with you and really teach the dog a lesson; (4) unclip the closest foot and kick him hard; (5) grab your bike pump and swing it at him, at least threateningly, if not to kill (5) if he is really close and might get caught up in your bike, slow down and, if necessary, get off your bike, put the bike between you and the dog to protect yourself, and then slowly talk your way out of the situation.

My modus operandi is a combination of (1) and (2). I ignore him, and try to talk him down, unless I really feel he is going after my foot or my wheel, and then I start spraying him with water. I have toyed with the idea of getting some dog mace, but then I realize it would only be for revenge, not self-defense.

Spraying the dog with anything at all may be a mistake. I have to admit, when I grab that water bottle, and am concentrating on spraying the dog while steering with one hand, I have come close to losing control of my bike and falling or veering into the other lane. In my worst dreams, I see myself crashing to the pavement, and then the dog locks his foaming jaw onto my bloody body parts and makes a cruel lunch of me. Or I see myself and the dog drifting over into the oncoming lane of traffic and --- splat --- the dog and I become a harmonious, twisted hood ornament.

As for number (4), I have never tried kicking the aggressor. Sticking my foot out toward a frothing canine mouth bejeweled with pointy teeth is not my idea of smart cycling. First, you can't pedal without that foot, so you can't make a fast getaway. Second, the bitch (or son of a bitch as the case may be) might get lucky, latch onto my toes, and gnarl his way up my leg.

As for number (5), the last thing I want to do is dismount and confront a barking, growling, angry dog on his territory. I could be stuck there for hours, pacing around with nothing but a bike between me and an animal that wants me for lunch.

If any of my readers think they have "the" solution to the biker-on-dog confrontation, let me know!

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

April 12, 2011

Facebook Case Has Lessons For New York Personal Injury Lawyers And Claimants

I just read about the Federal Appellate Court Decision deciding that the Winklevoss twins, who famously sued Facebook founder Mark Zuckerberg claiming he had "stolen" their idea for Facebook, could not undo their settlement with Zuckerberg and go after him for more money (they settled for only $64 million). The twins alleged in the suit that Zuckerberg defrauded them in the settlement by not disclosing the true value of Facebook. The Appellate Court was having none of it. The Court pointed out that the twins were represented by a lawyer, and they signed a release releasing Zuckerberg forever from any liability to them.

I know what you're thinking --- what does this have to do with New York personal injury law? After all, isn't that what this blog is about? How the heck is Bersani going to tie the Facebook decision into his Central New York personal injury lawyer blog?

Glad you asked. There's a lesson in this case for all New York personal injury lawyers, but especially their clients: Very, very carefully consider a settlement before you sign a release. If your signature is on it, it is going to be extremely difficult, if not impossible, to undo it. You can scream all day that you didn't read it, you didn't understand it, your lawyer tricked you into signing it, your lawyer gave you bad advice, the other side did not tell you all the facts, etc. But in all but the rarest of instances, you will be stuck with it.

Why such a harsh rule? Simple: courts love finality. As the Court said in the Winklevoss v Zuckerberg case: "At some point, litigation must come to an end. That point has now been reached." Lawyers and judges revere a release almost like a holy document. It's like the "bible" of the case. And it is not Genesis, but Revelations!

Before you sign a release in your New York personal injury or medical malpractice case, read it carefully, and discuss it thoroughly with your lawyer.

Keep safe!

Mike Bersani

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


Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

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

April 8, 2011

New York Dental Malpractice Lawyers Sue Syracuse Dental Clinic

dentist work.jpgNew York dental malpractice lawyers agree on one thing: You have to turn down most calls about dental malpractice. Most alleged dental malpractice cases are going nowhere. We get calls from people all the time. They got a bad result from their dentistry work, and they want to sue. But usually the bad result was a "known risk" of the procedure. When it's a known risk, usually there's no case. Sometimes there really was dental negligence, but then the injury is too small to really warrant a dental malpractice lawsuit. Getting a case with provable negligence, plus a significant injury, well, that doesn't happen every day.

But a case I read about in the Syracuse Post Standard this week is more than just a dental malpractice case. I would describe it as a dental assault and battery case. It's a god-awful story about ten Syracuse-area families who sued a dental clinic, "Small Smiles", alleging their children had been subjected to unnecessary dental treatment, and without anesthesia.

That last part kills me. Imagine having your kids subjected to dental torture, and for no good medical reason? Can you say, "Marathon Man"? If these allegations are true, and apparently they are (Small Smiles' national parent corporation settled with the Federal Government for $24 Million for Medicaid fraud based on the same facts) the case might well warrant punitive damages, which is all but unheard of in medical or dental malpractice cases.

Here are some details about the case (if you are squeamish, stop reading here!): Small children, ages 1 to 7, got root canals (didn't even know a kid could get those!), cavity fillings, and extractions while "physically restrained in the dental chair and without sedation or general anesthesia". The scheme was to do these procedures, some of them totally unnecessary, on the cheap, bill Medicaid at full dollar, and then pocket the difference. And to make those extra bucks these guys were willing to torture children.

The "Small Smiles" clinic (big-time misnomer) serves low-income kids covered by Medicaid. So they are poor kids. The parents probably never got much dental care themselves over the years, so they don't know how it's supposed to work. That's how the "dentists" were able to convince these parents that it was "safer" to do the procedures, again many of them totally unnecessary, without anesthesia.

As far as I am concerned, sue those sadistic SOB's for every cent they're worth, and then lock them in jail and throw away the key. Nothing is more despicable that preying on poor, defenseless children.

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

April 6, 2011

Finger Lakes New York Personal Injury Lawyer Response to Article About Personal Injury Lawyers "Eyeing" Future Local Shale Gas Drilling

drill rig.jpgA web article I stumbled upon jumped off my computer screen at me today. It was titled "Plaintiffs lawyers eyeing Marcellus Shale Work." My first thought: "Gee, I am a New York personal injury lawyer located right in the Marcellus Shale zone, so how come I am not 'eyeing' the future Marcellus Shall Work". Next thought: "Hey, that hydrofracking work will be dangerous, workers will get hurt, they will need New York personal injury lawyers to represent them, so gosh, maybe I should be 'eyeing' the Marcellus shale work". Next thought: "Don't want people getting hurt, and besides, it's going to be messy for our environment up here, so thanks but no thanks".

All those thoughts streamed through my brain in about 3 seconds, before I even got to the first word of the article. Then I read it. A personal injury lawyer out of Pennsylvania somewhere was quoted as saying that the Marcellus Shale drilling would cause "horrendous injuries" because of all the gas and liquid under high pressure carried through pipelines, stored in big tanks, and ejected underground at high pressure. Drill rigs are notoriously dangerous. Toxic gas leaks burn workers and gas rigs explode. Big tanker trucks cause motor vehicle accidents on narrow local roadways.

OMG! Parade of horribles. Well, he convinced me: the Shale gas drilling, or "hydrofracking" as it's called, if it ever happens up here, will be good for the personal injury law business. Unfortunately, it probably will, if it goes forward, produce a fair number of serious injuries and deaths. And I am sure that many of the injured and the families of the dead will find their way to our law office since we are well regarded in the personal injury field and, I believe, the only law firm located in our area of the Finger Lakes that limits its practices almost exclusively to New York personal injury cases.

Still, I can't get myself to start "eyeing" future shale drilling, as if it were some kind of delicious dessert. We have enough injuries and wrongful deaths up here already to keep us busy and make a living. And we love the beauty of the area. Hydrofracking will foul our water, and mess up our pristine land and lake-scape. Some things just aren't worth the money . . .

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

April 3, 2011

Central New York Medical Malpractice Lawyer Is Still Outraged About New York Doctors Push To Implement Damages Caps.

Thumbnail image for Thumbnail image for doctor bad.jpgMy outrage at New York doctors and hospitals, who recently tried to sneak into our State budget a booby-trap to explode on their unsuspecting malpracticed patients, has still not subsided. Read my recent blogs about their underhanded efforts here and here. Readers' digest version: They tried to slip a "cap on non-economic damages" for medical malpractice lawsuits into our State budget. Fortunately, their efforts failed. But believe me, New York medical doctors' lobbyists will try it again. Their motto is, "if at first you don't succeed, try, try, try again".

So forgive me if I rant a while longer. They will keep at it, so why shouldn't I?

New York doctors and hospitals keep whining about skyrocketing insurance premiums, which they choose to blame not on greedy insurance companies, but on New York malpractice claimants and their New York medical malpractice lawyers. But when juries hammer doctors with big verdicts, it's because the doctors hammered their patients with big harm -- carelessly. Juries reluctantly bang out big verdicts to compensate big screw ups. Those juries have found the doctors' treatment of their patient so pathetic - wait, let's be generous -- "crappy" - as to fall below any acceptable standard of medical care.

So what is the New York medical profession's response to those big jury verdicts for their big screw-ups? In a word (or two): "Shut up!" Doctors don't like what juries are telling them, so they go to Albany and try to muzzle them. The docs are essentially saying, "we don't want the jury to tell us how badly we devastated a human life by our crappy medical practices --- put a lid on it, pal".

But this is what I want the medical profession to understand, so listen up docs!: Capping a jury's damages verdict is like shooting the messenger. It won't fix the harm you are inflicting on your patients. "Shut up" fixes nothing. Stop paying all that money to your Albany lobbyists to undo your patients' rights and instead spend it on fixing what's wrong with your medical practices. Curb your screw-up rates and you will lower your premium rates, without robbing your malpractice victims of their right to full compensation. Retool, retrain, implement safer practices. You can do it! You were the smartest kids in class! We know you can!

Hey, don't get me wrong. I can commiserate with you about those high insurance premiums. I am a New York personal injury and malpractice lawyer whose legal malpractice premiums continue to skyrocket even though neither I nor any of my law partners have ever been sued for malpractice. But if I ever screw up --- god forbid - and cause a client to suffer big harm --- I sure hope I have enough insurance to make it right for my client. That's because I care about my clients. New York doctors, do you care about your patients? I can't help but wonder . . .

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

April 2, 2011

Syracuse New York Medical Malpractice Lawyer's Response To New York Medical Society Regarding Failed Cap On Damages.

Thumbnail image for doctor bad.jpgNew York Medical malpractice victims, you might not know it, but you just dodged a bullet! The New York hospital and physician lobby just tried to cut the legs off your rights to compensation. They tried to get the governor to incorporate into his budget a provision that would have capped all medical malpractice pain and suffering verdicts at $250,000. I already blogged about the unfairness of such a rule.

Good news: The doctor lobby failed! The final budget, which has now become law, tossed out the ill-conceived medical malpractice cap. And that is cause for celebration, not only by New York medical malpractice lawyers, but also by New York medical malpractice victims and their families.

Turns out the doctors and hospitals are poor losers. In a letter from Medical Society of the State of New York President Dr. Leah McCormack to his fellow doctors, he says he is "more than disappointed" that the budget did not include the cap. He feels "angry, disgusted and betrayed".

So here's my response to Dr. McCormack.

Dear Doctor McCormack, I understand you feel "angry, disgusted and betrayed" by our governor and State legislature. But just imagine how "angry, disgusted and betrayed" your malpracticed patients would have felt had you gotten your way with Albany. Your position is clear: medical doctors in the State of New York should have the right to exercise their profession NEGLIGENTLY AND CARELESSLY, and BELOW AN ACCEPTABLE STANDARD OF CARE, and not pay the full consequences. That position is the product of ARROGANCE.

You doctors have it all; big incomes, nice homes, fancy trips, status. But you want more still. You want to escape responsibility for your mistakes. I am a lawyer. If I screw up, my clients can sue me for FULL compensation. The same is true for plumbers, homebuilders, accountants, and all other workers. What makes you so special? Why do you think you are entitled to a special law to isolate you from the consequences of your carelessness? Where does your arrogance come from? Do they teach it in medical school? And by the way, when did they teach you to stop caring about your patients?

Dr. McCormick, why don't you turn your "angry, disgusted and betrayed" feelings toward your brethren who commit malpractice.

Thanks for listening


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