Central New York Injury Lawyer Blog

CNY Injury Lawyer Gets Away From His Work — NOT!

April 8, 2013 | by Michael Bersani

A lawyer’s godda geddaway sometimes. But can you ever REALLY get away from your work?

Last week was spring break for my boys, so I took one of them, shown here with me, to Boston. (Actually, we were there to take my mother to see some specialists, but that’s another story . . .). While there, we jumped on the Boston Duck Tour. That’s an amphibious tour bus — the same bus that wheels you through the streets of Boston eventually plunges into, and then puts around in, the Boston harbor. See picture below.

As a Central New York personal injury lawyer, I see a lot of accidents, and it seems like a lot of them happen on holidays. Where others see fun I see disaster. And getting on a tour bus destined to drive into the Boston harbor was not exactly a tonic to my accident-phobia.

It’s a Small Case After All.

March 28, 2013 | by Michael Bersani

Sometimes when I read newspaper accounts of other personal injury lawyers’ cases I wonder why those lawyers bothered to take them. While I wouldn’t call them frivolous, they just don’t make economic sense. How can you make a living taking those kinds of cases?

Case on point. Disney World’s “It’s a Small World” ride gets stuck. While most riders are evacuated right away, a paraplegic (from a prior injury), who is difficult to remove, is left on the ride for 30 minutes while “It’s a Small World” blares over and over again.

He sues Disney in Federal Court, claiming they should have called firefighters to evacuate him along with the others. He claims his high blood pressure and tendency toward panic attacks were aggravated as he sat in the boat listening over and over again to “It’s a Small World”. How much money would you give him? What’s his case worth?

Nothing Is Certain Except Death And Taxes (Except If you Have A Personal Injury Settlement!)

March 24, 2013 | by Michael Bersani

Tax season, which is now upon us, is, for most people, about as fun as sticking a fork in your eye. But your Central New York personal injury lawyer brings good tax news for personal injury victims! You’ve all heard the refrain, “nothing is certain except death and taxes”. That’s definitely true for death, but not always so for taxes, at least not for personal injury victims. Let me explain.

Many of my injured clients are pleasantly surprised to learn they don’t have to pay income tax on their personal injury settlements. This is because compensation for pain and suffering is not considered “income” but rather money to replace a loss suffered. In other words, the loss + settlement = a net wash, i.e., no income earned.

Another thing our clients are sometimes surprised to learn is that they can avoid paying tax even on interest they earn on their settlement money. How? Well, If you take the money in a lump sum (cash), and place it in the bank, and earn interest on it, you must pay a capital gains tax on the interest earned. But if you instead take a “structured settlement“, you can earn the same or even more interest tax free! Assume, for example, you get a $100,000 net settlement and elect to have it “structured” so that you earn an extra $10,000 on it. The insurance company pays you $10,000 a year for 11 years for a total $110,000 in payments ($10,000 of which corresponds to interest earned). Normally, you have to pay a capital gains tax on interest earned, but not if you earned that interest on a structured settlement! That’s because technically the insurance company that structures your settlement money “owns” the money while it is cooking up the interest (you are not earning it – they are!) and pays you only after the interest is generated. A gimmick, yes, but a legal one that helps you keep all the interest you earned on your settlement money.

Heads You Lose Tails I Win! Central NY Personal Injury Lawyer Explains Unfair Rule.

March 13, 2013 | by Michael Bersani

Imagine a three-way chess game where two players actually play, while a third sits by watching. Let’s call the guy watching “the watcher” (I’m brilliant!). The watcher is going to play you next. But here’s the thing: If you win the game you are now playing, the watcher will actually play you. But if you lose, then the watcher automatically wins his game against you and you automatically lose. No need to actually play that game. In other words, if you lose against your opponent, you lose against both your opponent and the watcher. But if you win, you win only against your opponent, and have to play the watcher to take a second win. In other words still, a loss makes for two losses, but a win makes for only one win.

Sound fair? Of course not! But those are the rules of the game the Court of Appeals has recently signed off on in Auqui v. Seven Thirty One Limited Partnership. And the player with the one-loss-equals-two-losses dilemma is YOU if you are an injured worker with a comp claim against your employer as well as a “third-party action” (personal injury lawsuit) against someone else.

Here’s how it works: Let’s say in both cases (comp claim and personal injury lawsuit) you are claiming you are disabled. Your workers’ comp hearing comes up before your personal injury trial. If the comp judge finds you NOT disabled, the personal injury lawsuit judge will rule you are automatically NOT disabled for the purposes of the personal injury trial, too. But if the comp judge finds you ARE disabled, you can’t use that ruling in your favor at the personal injury trial. You have to prove that all over again to the jury, who will never learn of the prior comp disability finding.

Is It Medical Malpractice For A Doctor To Shoot Heroin While Cutting Off The Wrong Leg With A Chain Saw?

March 11, 2013 | by Michael Bersani

Last week a very fine Syracuse New York medical malpractice lawyer, and a friend of ours, took a medical malpractice trial to verdict. His proof had gone in well. The malpractice seemed obvious, the harm horrendous. The jury seemed receptive. After his brilliant summation, the defendant’s malpractice insurance offered $800,000 to settle.

The plaintiff refused to take it. It wasn’t enough. The judge thought the jury was on plaintiff’s side. He told the insurance defense lawyer he should try to get more money to settle. The judge clearly felt the jury was going to come back with an even bigger verdict. The insurance carrier wouldn’t budge. So the jury did what a jury does, and came back with a verdict.

They found plaintiff had not met her burden of proving the doctor committed malpractice. That meant a zero-dollar verdict for plaintiff. The plaintiff had given up $800,000, confident that the jury would compensate her with twice that amount, and instead got the rug pulled out from under her.

Central NY Malpractice Lawyer Makes the Blind See!

February 26, 2013 | by Michael Bersani

I recently read a New York Times article titled “losing My Leg to a Medical Error“. The author, Frederick Southwick, a physician and professor in a Florida medical school, describes how, seventeen years ago, he had a routine surgery on his left Achilles’ tendon. To prevent bleeding during the procedure, a pressurized cuff was placed above his left knee. Apparently, the cuff was left on too long, and, unbeknownst to him, damaged his arteries. He didn’t find this out until just last summer when he experienced a sudden and total blockage of blood flow to his lower leg leading to amputation. Turns out the arteries, damaged by that cuff 17 years earlier, had slowly scarred, hardened and calcified, leading to the belated sudden blockage of blood flow.

Rare event? Probably. But medical malpractice is not.

Ironically, Dr. Southwick has, for the past two decades, been studying how to prevent errors in health care. In his case, he knows how the error could have been prevented; they could have used either (1) an alarm to remind the surgeon how long the cuff had been in place or (2) a cuff that automatically deflates after the prescribed time.

Hear Ye, Hear Ye, Testimony For Sale! (NY Personal Injury Lawyer Explains)

February 17, 2013 | by Michael Bersani

First, some background: The wheels of justice would come to a screeching halt without the Court’s power to subpoena non-party witnesses to testify in court. Subpoenaed witnesses, like it or not, must appear in court, take the oath, and testify about what they saw, heard, or know. In civil cases (such as personal injury trials) the judge doesn’t issue the subpoena, rather, the lawyers for the parties do under their authority as “officers of the court”. Each side subpoenas the witnesses it needs.

And it’s dirt cheap. In New York the party subpoenaing the witness must pay him only $15 a day (CPLR 8001[a]) no matter who he is or what he does for a living. The $500-an-hour business consultant is entitled only to the same $15 an hour as the street sweeper. Each has the same civic duty to appear. And if either refuses, he can be held in “contempt of court”, a punishable offense.

But can a party pay a subpoenaed witness more, even a lot more, if both agree to it? That’s the issue that came up in the recent Court of Appeals (highest Court in New York) case of Caldwell v. Cablevision Systems Corporation.

NY Health Clubs Must Have But Need Not Use AED’s, New York’s Highest Court Rules

February 10, 2013 | by Michael Bersani

Last year I blogged about a case (Miglino v. Bally Total Fitness) where one of New York’s intermediate appellate courts (the Second Department) held that health and fitness clubs in New York State must actually use automated external defibrillators (AEDs) when necessary, and not just have them available. If not, they can be held liable to the unattended victim.

In that case, the Court was interpreting a 2005 Statute, General Business Law 627-a, whose literal reading required only that AED’s be “on-site” at New York health clubs, and did not specifically mandate that Club employees use them. Nevertheless, the intermediate appellate Court read between the lines, holding that it was “illogical to conclude that no such duty exists”.

Now the highest Court in the State, the New York Court of Appeals, has reversed that Court’s Decision. The majority disagreed that the law creates an affirmative duty for clubs to use their defibrillators.

CNY Injury Lawyer Discloses The Solution To Frvolous Lawsuits

February 3, 2013 | by Michael Bersani

Are you against frivolous lawsuits? Good, me too. Not to worry. I’ve got the solution. Hold on. First a story.

Several years ago, a fellow Central New York personal injury lawyer secured a famously large settlement on a personal injury case. At a party a few days later, someone took issue with his fee. “Your 1/3 fee on that big settlement is not fair”. My quick-witted friend replied, “you’re right — it’s not fair. I did ALL the work, I took ALL the risks, but my client gets 2/3 of the money – NOT FAIR!”.

He was just kidding, of course. But in Spanish there is a saying: “From every joke, some truth does poke” (de broma en broma la verdad se asoma). The point of the joke is that, yes, the contingency fee IS fair! Actually, not only is it fair, it is the only system that makes “justice for all” possible. That’s because most people could never afford charge-by-the-hour legal fees. But even if you are poor, if you have a legitimate claim, you can find a lawyer to take the case on a contingency fee basis.

Why Assault Rifles Should Be Banned (And Automobiles Should Not).

January 25, 2013 | by Michael Bersani

…………….. Your Central New York Injury Lawyer is still blogging on the topic of gun control. New York recently passed an assault rifle ban. Other states will follow. An argument against such laws I have been hearing recently is, “more people are killed in car accidents than by shootings, so why don’t we ban cars?”. In other words, what fools you are for banning assault rifles!

But the analogy fails, and this blog post will explain why.

What’s the difference between banning automobiles and banning assault rifles? They both kill, they’re both dangerous, and cars may even be more dangerous! So why ban assault rifles and not cars? Think about it! I bet you can guess. Don’t give up!