Central New York Injury Lawyer Blog

Insurance companies love to snoop. They want to dig up all the dirt they can on you. They think that if they know everything about you, they will eventually unearth something they can use to torpedo your case.

For example, both federal and New York State law give you a right to medical privacy. Just because you are injured in an accident caused by someone else's negligence, and you sue them, doesn't mean you give up that right. But many insurance companies act as if this gives them a right to find out everything about your medical history. Whether my client is the victim of New York medical malpractice, a slip-and-fall case, a car accident, or other type of New York personal injury case, the insurance company lawyer will almost invariably ask me for "unrestricted" medical authorization, which, when signed by my client, will give the insurance company lawyer the right to access any and all medical records regarding any and all treatment my client may have gotten from any medical provider from the beginning of the world to the end of the world!

But New York personal injury and medical malpractice law doesn't give them a right to such broad authorizations. They can't snoop! They have a right only to the medical records that are relevant to the parts of the body you are claiming were injured. For example, if you are suing for a broken arm, they have a right to see all medical records, both pre-and post-accident, for treatment for that arm. They can't find out about your C-section, or your hemorrhoids, or about that depression you were treated for years ago!

A couple of years ago, in a case known as Mayer v. Cusyck, a trial judge gave me a bad ruling. He ordered me to supply the insurance company lawyer with unrestricted medical authorizations. I refused, appealed the Order, won, and the defense attorney ended up getting only those records relevant to the part of the body we were claiming was injured.

Every time a defense attorney asks me for "unrestricted" medical authorizations, I write them back and ask them to read Mayer v. Cusyck. But even when they read it, they don't always give up. I just finished battling this issue out in a case. The defense attorney made a motion to force me to turn over unrestricted medical authorizations. At first the judge appeared to agree with the defense attorney, but then I asked the him to read Mayer v. Cusyck. He did, he "got it", and then did the right thing: He gave the defense attorney ONLY the records relevant to the part of the body my client injured (her mouth and teeth).

It always surprises me how many New York personal injury lawyers allow their clients to sign unrestricted medical authorizations. They don't seem to care, or know, about their clients' right to privacy. They should care, and they should know! And so should you. If your New York personal injury lawyer asks you to sign unrestricted medical authorizations, have him or her read this blog post. Then have them call me if they want some legal briefs on this issue.

What is a "Loss-of-Consortium" Claim? A loss-of-consortium claim is a claim for compensation brought by the uninjured spouse of an injured spouse against the negligent tortfeasor who caused the injury to the injured spouse.

Wew, that was a mouthful! Let me try to break that down.

Although the uninjured spouse of a New York accident victim has not suffered any "physical" injury, New York personal injury law recognizes that she or he often suffers a different kind of injury or loss, specifically, the loss of spousal "services" that the injured spouse would have continued to provide but for his or her injury. The "services" lost can include household services (cooking, cleaning, etc.), love, companionship, affection and sexual relations. Because this notion of "loss of consortium" is rooted in traditional principles of "man and wife", it has not (yet?) been extended to cover loss-of-consortium claims by unmarried or gay couples who live together but are not married.

The "loss-of-consortium" claim is also called a "derivative" claim because the uninjured spouse's claim depends on, and derives from, the injured spouses claim. The two claims are always brought together.

What Is a Loss-of-Consortium Claim Worth? Frankly, juries don't usually award much for New York "loss of consortium" claims, and therefore, their "settlement value" is low, too. Although jury awards for loss-of-consortium claims vary, if you look at a lot of cases, and average them out, you will see (as I have) that they amount to, on average, about 10% of the injured spouse's award. Big loss-of-consortium awards usually ride on the coat-tails of big awards for catastrophic or very significant long-term injuries such as brain damage, paralysis, incontinence, or loss of sexual function.

How Do Loss-of-Consortium Claims Lead to Trouble? One thing that can throw a monkey wrench into a New York personal injury lawsuit is when married couples divorce or separate while their injury and loss-of-consortium claims are pending. Sometimes the separating or divorcing spouses fight about how to spit up any settlement money, or whether to even settle at all. A New York personal injury lawyer can't ethically represent one spouse against the other, so the lawyer's hands are tied! The spouses have to work it out between themselves, or hire separate lawyers to represent their interests.

If the case goes to trial during or after a separation, it wreaks even more havoc. The separation or divorce saps the jury of any desire to compensate the loss of marital services, so the claim tanks! Even if the non-injured spouse refuses to drop the loss-of-consortium claim, and we usually recommend they do, the jury can award loss-of-consortium compensation only for the period before the separation.

Bottom Line: Is there a lesson to be learned from all this? Yes: Let your New York personal injury lawyer bring your loss-of-consortium claim with your injured spouse's claim, but don't expect too much from it, and, please, stay married, at least till the end of the case!

As a Syracuse and Central New York accident lawyer, I have had loads of experience dealing with car insurance companies and their lawyers. Here's another example of how insurance companies and their lawyers take frivolous positions in Court that cost you, the taxpayer, money.

My client hired me to bring a Central New York car accident claim on his behalf. Here's how his Cayuga County car accident happened: He was a passenger in his friend's car. The friend had stopped at an intersection and was waiting for on-coming traffic to clear so he could turn left. His left blinker was on. Then, -- BAM - the car was struck from behind. The driver who rear-ended them admitted to the police right on the scene that he was reading a map while driving so he did not see the stopped car.

After the insurance company refused to settle for a fair amount, I sued the rear-ending driver and his employer (he was on the job when this happened, so the employer is vicariously liable for his negligence). Since the only real disputed issue was what my clients' extensive injuries were worth (no question about whose fault it was, right?), I made a "summary judgment motion", that is, I asked the judge to decide, without the need for a jury trial, that the rear-ending driver was solely responsible for the collision. I made this request to the judge right after I sued the case out, and before any "depositions". Depositions are where the lawyers get to ask the parties questions under oath about how the accident happened so they can try to prove their case, or their defense to the case. But I figured, why should we bother with all that when there was so clearly no issue of whose fault it was?

But the insurance company lawyers did what they do far too often. They responded to my motion by taking a frivolous position. They argued that my request should be denied because they needed "discovery" first. Specifically, they claimed they needed to depose my client (ask him questions under oath) to see if he might have done something to cause the rear-end collision.

Now let's get this straight: My client, a passenger in a stopped car waiting to turn left, might have done something to cause the map-reading driver to ram his car into the car my client was seated in? Yup, that was their position, I kid you not!

Fortunately, I found several cases to support my request for the judge to rule in my client's favor, even at such an early stage of the case. The judges in those other cases realized that conducting depositions was a waste of time when the defendant was so clearly at fault. The judge in my case followed those other cases, and ruled in my client's favor. But I could not help but think of the waste of the judge's time, his clerk's time, his secretary's time, in considering and deciding an issue that the insurance company and its lawyers should have just stipulated to.

So when people talk about "frivolous lawsuits" clogging our courts and costing taxpayers money, yes, it makes me mad, because I know from my years of experience as a Central New York personal injury lawyer that it is more often the insurance companies and their lawyers that clog our court system with frivolous defenses.

I generally try to avoid talking about politics in this Blog. So, without telling you what I personally think of Obama's health care overhaul, I will tell you what impact the new Law will have on Syracuse and Central New York personal injury and medical malpractice victims.

First, though, let's talk about how the current health care system affects victims of injuries caused by someone else's wrongdoing or negligence. If these injured folks are unlucky enough to be among the 15% of Americans who can't afford, and thus do not have, health care insurance, they are in a real bind. The liability insurer for the at-fault guy will REIMBURSE their medical bills after they are done treating for the injury, upon a global settlement of the whole case, but the liability insurance will NOT pay the medical bills as they come due in the meantime. This too often means that the accident victim's doctors won't treat him, because no one is paying his bills. Doctors usually won't wait for their patient's settlement or victory at trial to get paid because they don't know for sure that the patient will win his case, or get a settlement that will cover the medical expenses. And things get worse for the patient-accident victim. Without proper, well-documented medical treatment, it is later difficult to prove the accident victim's injury.

So the accident victim really gets injured not once, but THREE TIMES!: First, when someone's carelessness caused his physical injury. Second, when he can't get the medical treatment he needs and thus has to suffer through needless pain and perhaps ends up with a much worse result. And third, when he doesn't get a fair settlement or verdict because he is unable to fully prove his injury for lack of medical records documenting it.

Believe me, this happens all the time. Example: I have a client, a poor farm worker, whose neck was broken due to a machine operator's negligence. The at-fault guy has liability insurance, but of course won't pay the medical bills as they come due. My client got some initial medical treatment, but then the doctors refused to see him because he wasn't paying his bills. To make matters worse, lawyer ethical rules prohibit me, his attorney, from lending him money so he can get the medical treatment he needs. He hasn't been able to work since of the accident, and he hasn't been able to get medical treatment, either. So now he has no "medical bills" to be reimbursed by the liability insurer when he eventually wins or settles his case, because he has not been getting any treatment, and he has almost no medical proof of his injury. In sum, he is stuck between a rock and a hard place.

Under Obama's new health care system, 95% of Americans will be covered. Thus, far fewer injury victims will fall between the cracks as has the client I described above. So as much as I hate the idea of turning this blog into a political commentary, on behalf of my many future injured clients, who will be the victims of someone else's carelessness, I have to say, hurray Obama!

I hate attorney advertising, especially personal injury lawyer advertising. Yet I advertise. Well, I mean, my firm does. I remember when we finally decided to advertise on TV. It was a tough decision. For years Michaels & Smolak prided itself on its success in attracting top personal injury and medical malpractice cases through word of mouth and through referrals from other attorneys who knew that we were among the best in the New York personal injury and medical malpractice field.

But our case load had started to dwindle even though we were still at the top of our game. Why? Because other Central New York accident lawyers were advertising and we were not. They were getting the cases simply by being on TV! For the most part, their ads were in terrible taste (examples: an attorney who called himself "The Hammer" and a firm that called itself "The Heavy Hitters" and one who claimed he was "a son of a bitch", but if you hired him he would be "YOUR son of a bitch!").

All this advertising, though totally tasteless, and even deceptive, was legal because decades ago the U.S. Supreme Court had ruled that attorney advertising fell under the protection of the "free speech" clause of the First Amendment to the United States Constitution. In other words, those guys had a right to say all this crap in their ads, even though it created a terrible image for personal injury lawyers.

Well, we at Michaels & Smolak are not used to rolling over and letting our opponents beat us. So we fought back. We went on TV with some ads of our own. Only ours were simple, dignified and straight-shooting. No "tough guy" monikers. No screaming at the camera. No silly jokes. You can watch a clip of one our ads by clicking the image at the bottom of this blog.

Then in January 2007 the New York State Office of Court Administration, which is responsible for attorney regulation and discipline in New York State, amended the Code of Professional Responsibility by adding some new rules prohibiting some of the most tasteless and deceptive practices. For example, they barred the use of monikers such as "Heavy Hitters" or "the Hammer" that suggested the lawyer would get great results. They barred other attention-grabbing techniques, too, as well as testimonials from clients about pending matters, and fake portrayals of judges or law firms.

One of the big advertising law firms, though, challenged those rules in Federal Court, alleging that the new rules violated the firm's First Amendment rights. The Federal Court in Syracuse agreed and struck down most of the new rules as unconstitutional. Just the other day, the Second Circuit Court of Appeals affirmed that Decision, in large part, in the case of Alexander v Cahill

So what this means is that if I want to advertize on TV as "Mike the Machete Bersani" and appear, bare-chested, wielding a machete in a Court Room, well .... I can. But don't hold your breath . . . .

I abhor frivolous lawsuits. I try to bring my New York personal injury lawsuits only against companies and people whom I feel are truly liable for my clients' injuries. But once in a while I am forced to sue "iffy" claims against those who probably are not responsible for my clients' injuries. Why? Because of insurance companies and their lawyers, that's why. Let me explain by way of example.

My client is a passenger in her boyfriend's motor vehicle. On a snowy night, they come upon a car stopped in the middle of the road, which apparently stopped because of the snowy conditions. It appears, though, that the driver of that car could have done a better job pulling over onto the shoulder of the road. Nevertheless, my client's boyfriend is able to stop in time. Moments later, a tractor trailer comes from behind and hits the rear of my client's car, propelling it into the car stopped in front. That tractor trailer driver was clearly going too fast for the snowy conditions. My client suffers serious injuries, can never work again, and no-fault insurance is quickly exhausted.

So who do I sue to get her the compensation she needs and deserves? After all, she was an innocent passenger.

I think it was mostly the tractor trailer driver's fault, but perhaps also the driver of the first car, for stopping completely or for not pulling far enough over onto the shoulder. I think my client's boyfriend is without fault. All he did was stop to avoid hitting the car stopped in front of him.

But as the 3-year statute of limitations approaches, I know I have to sue not only the two drivers whom I think may be responsible, but also my client's boyfriend, whom I think is not responsible. Why? Because I know from experience that, if I don't sue him, the insurance company lawyers for the other two drivers will point the finger at "the empty chair" in the courtroom, that is, my client's boyfriend whom I did not sue. They will try to pass all the blame onto the one person I did not sue on any number of theories, for example, for not putting his flashers on, for not pulling over enough, for not passing around the stopped car --- who knows! I will only find out AFTER the statute of limitations expires, and then I will be in a jam. If somehow these insurance company lawyers convince a jury it was entirely my client's boyfriend's fault, then the jury will return a big goose-egg verdict for my client.

My client will not be left without recourse, though --- she can still file a New York legal malpractice lawsuit against me for failing to sue her boyfriend! So there you have it --- sometimes I have to sue people who probably aren't to blame.

Legend has it that, during the crusades, when a Christian army was invading a middle-eastern city whose residents were mostly Muslim, but which contained a significant minority of Christians, a soldier asked his military commander, "sir, how do I know which ones are Muslims, and which Christian", to which the commander replied, "kill them all, and let god sort them out".

So there you have it. Sometimes you have to "sue them all, and let the jury sort them out".

Today Justice was served to someone who did a disservice to justice. U.S. District Judge Gary Sharpe sentenced ex-New York State Supreme Court Justice Thomas J. Spargo to 27 months in prison for attempted extortion and bribery. A federal jury convicted Spargo on Aug. 27, 2009 for soliciting a $10,000 payment from a personal injury attorney with cases pending before him. Spargo figured the lawyer would be easy-pickings because he had recently settled a personal injury case for $3 million, thus earning a substantial fee. The trial evidence showed that when the personal injury attorney declined to pay the bribe, Spargo increased the pressure to pay.

It goes without saying that "Judge" Spargo's behavior was despicable. Think about the implications of his actions. Imagine you have been injured in a car accident, a construction accident, or by medical malpractice, or you have suffered damages from legal malpractice. Your life is permanently and irreversibly altered. You have one chance, and only once chance, to right the wrong, to seek compensation, to hope for fair and impartial redress. Your day in Court finally arrives. But, unbeknownst to you, the judge who is to decide your case, or to instruct the jury about your case, has extorted, and accepted, $10,000 from the opposing side's lawyer! Does that make you feel confident he will do you JUSTICE? Of course not. He is more likely to do "JUST US" with the opposing counsel as a payback for having his palms greased.

From our years of experience bringing personal injury and medical malpractice cases to courts in New York State, we at Michaels & Smolak can assure you that this kind of judicial behavior is exceedingly rare. We have never seen it in our many years of personal injury and medical malpractice litigation. We may disagree with our judiciary's decisions from time to time, but we have confidence in the integrity of the system.

It is true that one bad apple does not spoil the whole bunch, at least not when you toss it out in time, as was done here. In the end, justice here was done.

So you're hurt and out-of-work through no fault of your own. You hired a good injury lawyer to bring a claim against the responsible parties. You lawyer says you've got a strong case, but meanwhile you've got no money coming in and those bills keep piling up. So what do you do? Hey, you've got an idea --- your lawyer can front you some money against that future settlement you'll eventually get!

Only one problem: He can't. The New York State Bar ethical rules just won't allow it. If he does, and he gets caught, he can lose his license to practice law. Not long ago, a big injury law firm, with a huge advertizing presence, out of Western New York State had one if its two senior partners suspended from the practice of law because he was involved in lending money to his injured clients.

Why is it considered wrong for your injury lawyer to lend you money? The problem is that when your lawyer becomes your lender, a conflict of interest arises. Your lawyer is supposed zealously represent you in your claim for compensation without being derailed by self-interest concerns. But if you owe him money, his self interest might interfere with his doing what is right for you. For example, if he wants to make sure he gets repaid, he might be tempted to talk you into settling your case for less than it is really worth to avoid the risk of losing at trial and not getting repaid.

So how do you get a loan to pay those bills while you wait for your case to be resolved? Your lawyer should be able to refer you to lending companies who specialize in lending money to injured claimants. These lenders will use your case as "collateral" - when your case is resolved, they will take their money back --- with hefty interest - before you touch a dime. The interest is usually substantial, so we always tell our clients to try to borrow from friends or relatives first, or try to get a traditional loan, before resorting to lawsuit lenders. They are a last resort, but sometimes they are the only thing standing between our injured clients and financial disaster.

When people ask me what I do for a living, and I tell them I am a personal injury lawyer, they sometimes roll their eyes, tell me a lawyer joke, or wag their finger at me about all the "frivolous" lawsuits us injury lawyers bring. My response to the "frivolous" lawsuits remark is simple and straightforward: Neither my law firm nor I ever accept frivolous cases. We reject every single one from the outset. Why?

First, we are fortunate enough to have a full plate of legitimate claims representing honest people injured through the negligence or wrongdoing of others. Our reputation attracts good cases, so why would we want to take bad ones? Because we successfully attract good cases, we don't have to accept bad ones.

Second, taking frivolous cases is bad business. You have to be a dishonest lawyer, who is prepared to misrepresent or exaggerate facts and law, to even have a chance at prevailing with a frivolous lawsuit. But if you are dishonest even once, if you misrepresent the facts or law even once, your reputation with insurance adjusters, judges and defense lawyers is affected not just once, but forever. After that, when you bring legitimate cases, the insurance adjusters, defense lawyers and judges will all mutter under their breath, "there he goes again with another one of those cases". If you get a reputation for bringing frivolous claims, you are less likely to be able to settle your legitimate cases because even those cases may be perceived as frivolous. As the saying goes, "your reputation precedes you."

So who brings all those "frivolous" lawsuits we hear so much about? First, in my experience, frivolous lawsuits are few and far between. When they do happen, the media and press make a lot of noise about them. They make for a good read. The headline, "Jury Gives Man with Broken Finger $10,000,000" attracts more readers than "Jury Renders a Fair Verdict in Car Accident Case". The first headline allows the public to shake their heads in bewilderment and disbelief at a legal system run amuck. The second one isn't even worth a read. My point is that the thousands upon thousands of truly legitimate claims are not broadcasted while the very few frivolous ones grab the headlines.

Most personal injury lawyers are honest and file only legitimate claims. There is, however, one kind of lawyer who brings frivolous lawsuits: The bad kind. One of two defects make these lawyers bad: (1) either they are not bright or are sloppy in their investigation and research and therefore believe the claims are legitimate, when in fact they are not, or (2) they know the cases they bring are frivolous, but since they can't attract legitimate cases, in desperation they cling to bad ones in the hope of extracting a settlement. Those kind of injury lawyers don't last; eventually they will end up doing real estate closings or estate work.