Central New York Injury Lawyer Blog

car accident.jpgLet’s say you get into a car accident in New York State and it was the other guy’s fault. But when the police officer shows up and “investigates” he determines it was your fault. And he says so in his accident report. You sue the at-fault driver for your injuries. Can the cop’s police report come into evidence against you? Can the cop testify it was your fault?

The answer generally is, no and no. Why not? The conclusions in his report that it was your fault are “hearsay”. Further, it’s for the jury to determine whose fault it was based on the evidence. Letting the cop testify about whose fault it was would unduly influence the jury. The cop can testify only about the evidence he found at the scene, for example skid marks, the damage to the cars. He can also generally testify about what the PARTIES said to him, but not about what non-party witnesses said to him. That would be hearsay, too. Those witnesses must be brought into court to tell the jury what they saw and must be subject to cross-examination. The cop can’t tell the jury what they said because then the right of the parties to cross-examine those witnesses would be lost.

Some of these concepts were explored in the recent case of Watch v. Gertsen. In that case, the cop determined, after talking to the participants in the accident, that two motorcyclists who collided into the back of a car were at fault for following too closely. In the personal injury trial, the trial judge let the cop testify about his conclusions in the report. The jury’s verdict aligned with the cop’s conclusions. But the appellate court reversed, finding that it was error to allow the police officer to testify about fault from the accident report. And rightly so. What good is a jury trial if a cop is allowed to say whose fault it was? That’s the job of the jury, not the cop.

The cop of course can issue a ticket to the party he believes is at fault, but even that ticket won’t get into evidence in the personal injury trial unless whoever got the ticket pleads guilty to it. Even if the driver is convicted of the traffic violation, it still won’t get into evidence unless he has pleaded guilty to the charge. Why not? Well, all these rules protect our jury system. Juries are to determine fault, and cops and other law enforcement officers – stay out of it!

Keep safe!
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 & Syracuse NY Auto Accident Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

wrestlers.jpgA new case demonstrates how tough it is to sue for kids’ sports injuries.

Normally a participant in a sport – even a child – assumes the risks inherent in the sport and therefore can’t sue to recover for injuries. There are some exceptions to the rule. For example, You don’t “assume the risk” of a danger you would not normally expect to find in the sport (example: a puddle on an indoor basketball court).

So here’s a summary of that new case: In Cvijenovich v Beacon Kids Wrestling Club, a child wrestler’s opponent suddenly did “an illegal or unreasonably dangerous wrestling move” causing him injury. An illegal or dangerous move like this is not covered by the “assumption of risk” doctrine because no one joins a wrestling club with the expectation that illegal, dangerous moves will be used. Participants assume the risk only of legal moves.

So the kid’s parents sued the wrestling club on behalf of their injured child, alleging that the Club failed to provide an adequately trained or certified referee to supervise the wrestling match. After all, the ref was just a high school wrestler. But the Appellate Court held that the illegal move happened so fast that no amount of supervision or training of the ref would have prevented it. In other words, even if the ref had been the best trained and most highly certified ref in the world, there is no way he could have expected or stopped the illegal move from happening. In fact, right after the move, the ref disqualified the wrestler and gave the match to his injured opponent. What else could he have done? Thus, the alleged “negligence” of the Club in failing to hire a well-trained ref did not cause the injury.

I suppose the kid’s parents could sue the other wrestler, but the problem there is coverage. A 10-year old wrestler is unlikely to have assets, his parents can’t normally be held liable for his actions, and homeowner’s insurance is unlikely to cover sports-related negligence.

At Michaels & Smolak, we have successfully brought sports injury cases, but the facts have to be just right for us to even consider such a case. The only way to find out whether your child’s case is likely to succeed is to call us to find out!

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 Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

doctor bad.jpgCame across a great article in the Observer. Here’s my rambling summary:

The insurance industry has convinced more than half the states to pass medical malpractice “tort reform” legislation. Their tactics? Cash-in-fist lobbying plus promises that restricting medical malpractice suits would cause doctors’ insurance premiums to plummet. This would in turn lower health care costs and improve healthcare.

The only problem is it turns out the insurance lobby sold us a bill of goods. Every study ever done since tort reform (I have read most) was enacted has shown little or no gains in the area of insurance premium reduction or medical care cost reduction.

For example, Texas, Georgia, and South Carolina have made it virtually impossible to sue doctors or hospitals for emergency room treatment. The insurance lobby promised that this would prevent so-called “defensive medicine” (doctors ordering expensive tests and imaging to protect themselves from accusations of malpractice) in the ER room. But a recent study examined 3.8 million emergency department visits at 1166 hospitals between 1996 and 2012. The ER doctors in the tort-reform states–who were virtually immune to malpractice suits–prescribed just as many MRIs and CAT scans as doctors in the control states. Removing the risk of getting sued didn’t put a dent in so-called “defensive medicine”.

The insurance companies, though, have pocketed huge profits from their savings. They have benefited from their “reforms” while we have not. In fact, the average Joe – and all medical malpractice victims — have had to pay a big price. An avalanche of evidence shows that hospitals are very dangerous places because of careless medicine. Close to a million patients are killed (and many more injured) in hospitals each year due to medical errors. This number dwarfs even automobile and workplace deaths. And the number doesn’t even include deaths in doctors’ offices or clinics (like the one Joan Rivers recently died in). And guess what – if hospitals and doctors don’t have to fear medical malpractice lawsuits, they have no incentive to improve.

The truth is that the most powerful engine ever invented to improve safety in our hospitals is the unfettered medical malpractice lawsuit. For example, there is compelling proof that safety reforms in anesthesiology in the 1980’s were spurred by a spree of large malpractice verdicts. To avoid paying out such claims, anesthesiologists improved their safety. They established mandatory monitoring, implemented more training, limited the number of hours anesthesiologists could work without rest, revamped machines and installed safety devices on them. Within a decade, the mortality rate from anesthesia dropped from 1 in 6000 administrations to 1 in 200,000. And anesthesiologists’ malpractice insurance rates fell to among the lowest of any specialty.

We all pay the price for medical malpractice tort reform. Hospitals and doctors’ offices stay unsafe – or become even more unsafe. Doctors’ insurers reap the profits. Medical malpractice tort reform works for them, but certainly not for the rest of us.

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 Medical Malpractice Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

jail.jpgYes, even convicted criminals have rights. Including the right to bring a New York personal injury or medical malpractice claim. An inmate has a right to competent medical care while under the custody of the prison authorities. If the prison medical team screws up, and causes him harm, he can sue for compensation. At Michaels & Smolak we get letters from inmates at the Auburn State maximum security prison (just around the corner from our main office!) all the time. We reject 99% of those cases either because there was no real malpractice, or because the injuries are too minor to bother with a lawsuit against the State. But every once in a while an inmate has a legitimate claim for real serious injuries.

Case in point: In Black v. State of New York, a prison doctor, after examining an inmate complaining of cervical neck pain, and after reviewing an MRI, correctly concluded he was suffering from “spinal stenosis“, a condition in which the narrowing of the spinal canal exerts pressure on the spinal cord, and myelomalacia, a softening of the spinal cord. The physician correctly noted the condition was serious and even dangerous, and justified an expert consultation, but did not realize that it required immediate emergency surgery to prevent paralysis. While awaiting approval for a neurological consultation, the inmate re-injured his cervical spine when he fell in his prison cell. The inmate ended up paralyzed from the chest down. Timely surgery would have prevented this from happening.

The Appellate Division, Fourth Department (Rochester, NY appellate court) recently upheld the Court of Claims’ $15 Million medical malpractice verdict on behalf of the estate of the now deceased inmate.

Think the inmate made out like a bandit? Think again: He served his full sentence until he was paroled, and then died four days after he finally tasted “freedom”, at age 41. Four days to enjoy his $15 Million. Paralyzed from the chest down. Doesn’t sound like fun to me.

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 Medical Malpractice Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

just because you did it.pngI came across this lawyer advertising billboard on the web and couldn’t convince myself NOT to post it on my blog. So now I have to justify posting it. I am going to somehow tie this sign into New York personal injury stuff. Just wait and see!

When you think about it, the sign is not just funny, or a sad statement about sleazy lawyering, it is actually true. You may have done the act you are accused of doing, but nevertheless be “not guilty” of the crime for a variety of reasons. For example, Bob Marley may have shot the sheriff, but if it was in self-defense (or if he was insane, or if the gun went off by mistake) there may be no “crime”.

When deciding whether a defendant committed a “crime”, the law looks not only WHAT he did but WHY he did it. What was going on in his head as he did the act? That’s what lawyers call “the mens rea“, i.e., the mental state. If the defendant kills someone deliberately with premeditation, that’s a more serious crime than if it was just careless. And if it was in self-defense, then it was no crime at all.

Ready? Here comes the tie-in to New York personal injury law: The concept of “negligence” – the heart of most personal injury law cases — also looks into the defendant’s state of mind. Was he trying to be careful? Was he looking out for the safety of others? If so he was not “negligent”, no matter the harm he may have caused.

For example, if a motorist crosses over into the oncoming lane of traffic and crashes into an oncoming vehicle, that is normally “negligence” because he was careless. If, however, he crossed over to avoid a deer that jumped in front of him and he had only a split second to make that decision, a jury might find he was not “negligent”, and therefore is not liable. That’s because his mental state was different in each instance.

On the other hand, if the motorist was racing and crossed over to pass another vehicle at break-neck speed, his state of mind could be found to cross over from mere “negligence” into the mental land of “recklessness”. That means he was mentally indifferent or wanton or deliberate in putting the public at great risk. This is also called “gross negligence“. In New York personal injury law, the jury can award a victim of gross negligence not only compensatory damages, but also punitive damages (make him pay additional money beyond what it takes to compensate the victim in order to punish the offender).

So there you go. Do you agree I have fully justified posting this crazy lawyer billboard? Hope so.

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 & Syracuse NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

doctor bad.jpgIf you wanted to hire a driver to drive you on a long trip, would you want access to an easily searchable website where his and other licensed professional drivers’ traffic convictions and accidents were posted?

If your answer is yes, then safety is important to you. And I assume that, if you were going to have major surgery, you would also like an easily searchable website that gives you details about your surgeon’s medical malpractice records, hospital affiliations, and other background information.

Right now, New York State has such a website. It was mandated by a year 2000 Statute, which was passed in response to several high profile medical malpractice failures by doctors with bad – but not easily discoverable – track records.

Now, however, that website is in jeopardy. A two-sentence item buried deep in Governor Cuomo’s proposed budget would eliminate the New York State Physician Profile. The budget savings? $1.2 million annually — chump change in the context of New York State’s annual budget of about $140 billion.

The site — operated by the New York State Health Department — is a big hit with patients. Last December alone 35,000 clicked onto the site.

Cuomo justifies nixing the site by claiming that the same information is available elsewhere on the web. That’s mostly true, but finding it requires sleuth-like skills and patience that many medical consumers don’t have. If you are lucky or persistent enough you might find all the same information on other sites. But why not have one-stop easy “doc shopping” at such a low cost?

The author of the 2000 law creating the State website, Assemblyman Richard Gottfried, summarized the problem: “As we move towards more transparency and public access to healthcare information, this proposal takes us in the opposite direction.

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 Medical Malpractice Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

Reid.jpgIt’s all over the news: Seventy-four year old Senate Minority Leader Harry Reid’s power workout “backfired” on him. Literally.

In a freak accident
, the senator was using an “elastic exercise band” to do some kind of exercise in his bathroom, with the band attached somehow to his shower door. As he “flexed”, the band “snapped” and sent him flying across his bathroom floor where his face met some cabinets. He suffered such severe facial injuries that he risks losing the sight in one eye. He also broke a number of bones around his right eye and four ribs. See photo!

Ouch!

Moreover, huh???!!!

I am an inveterate exerciser myself, but I am having trouble figuring out what kind of exercise Harry Reid was performing when he managed to turn himself into a human slingshot at that kind of velocity!

What “band” was he using? Was it nuclear powered? And did the band actually break, or did the Senator simply not attach it correctly to the shower door? Or did the shower door fail? Was he following the manufacturer’s instructions, or was he “winging” it (literally)? Did a manufacturing or design defect cause the product to break? Harry, tell us more! Without knowing exactly how this bizarre accident happened, or what kind of band he was using, it is hard to know whether he has a products liability claim against the band manufacturer.

Apparently, how Reid turned his body into a speeding bullet will remain a mystery. Although small pieces of the story keep dribbling out (he recently told a radio show he was using the second-strongest band there is — a gray color band) the whole story — like a steamy bathroom — is clouded in mystery.

I am tempted to repeat the jokes I read in the Daily Beast — about Reid enduring the “slings and arrows of politics”, or about him attempting to “bounce back” from his injury, but I will refrain.

Oops, I didn’t.

Seriously, accidents aren’t funny! Be careful out there!

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 and Syracuse NY Product Liabilty Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

icyroad.jpgI just read about a spectacular rollover crash on Interstate 690 in Geddes, NY (near Syracuse) a few hours ago. Fortunately, there were only minor injuries.

I don’t usually blog about local accidents, but I did want to make folks aware that – even though the heavy snow we have been getting is partially to blame for this kind of car accident, New York car accident lawyers routinely bring these kinds of claims successfully against the drivers of the out-of-control vehicles. Yes, insurance defense lawyers often raise the “act of God” defense to weather related accidents. But that defense usually works only where the driver is totally blameless, which is hardly ever the case.

Always remember that you, as the driver, have an absolute duty to your passengers and to other motorists or pedestrians to KEEP CONTROL OF YOUR VEHICLE. Usually, “the road was real icy” or “I hit a snowy patch” are not valid excuses in Court. The only exception usually is where there was no ice or snow anywhere on the roadway before you hit a patch. If you already know there is snow and ice on some areas of the roadway, you have a duty to drive at a speed and in a manner that allows you to control your car even given those conditions.

Almost nothing is harder to live with than causing the death of a loved one – your passenger – because you did not drive at a prudent speed for the conditions. Please drive carefully!

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 and Syracuse NY Auto Accident Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

If you are the injured passenger of such a vehicle, do not hesitate to call me for more information.

th.jpgA spurned man was recently on trial for posting threats against his ex on FACEBOOK. His defense? The “threats” were just a joke, and she should have known it. To support this claim, he pointed to certain emoticons (a facial glyph, used especially in e-mail and online posts, indicating an emotion or attitude) that accompanied the “threats”. For example, there was one of a face with a tongue sticking out. This emoticon meant the “threats” were in jest, he claimed.

The prosecutor wanted the threatening posts “read” to the jury, but the man’s lawyer – wisely – wanted to bar any open court “reading” of the posts. He wanted the jury to only SEE the posts so they could take into account emoticons. The man’s lawyer argued that it would be unfair to merely read in court the posts because the accompanying emoticons could not be “read” aloud. The jury would hear the “threat” without “hearing” the accompanying (and mitigating) emoticon. The posts had to be SHOWN and only SHOWN to the jury!

The lawyer had a point. Certain forms of writing — like repeated question marks (“???”), distorted words (like “soooo”) and emoticons — can’t be reliably or adequately conveyed orally. To do so distorts the meaning.

How did the judge rule? The Judge allowed the posts to be read in open court, but also instructed the jury that the messages had not been communicated that way to the ex. The ex, like everyone else in the FACEBOOK world, would have SEEN the postings with the accompanying emoticons. “The jury should read them,” the judge said. “They are meant to be read. The jury should note the emoticons.”

Think of how an emoticon can change the meaning of a sentence. “I’m going to kill you!” followed by a wink, tongue out, or a smiley is not same message as a bare “I’m going to kill you”.

Fellow lawyers, if you have a case where online postings or emails or texts are coming into evidence, and they were accompanied by emoticons, and the emoticons change the tenor, tone, or the meaning of the post, fight like hell to have the post SHOWN to the jury on a big screen, or at least passed onto the jury at the same time or shortly after they are read aloud in court.

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 and Syracuse NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

jail despair.jpgIf you’ve been wrongfully convicted of a crime, and you want to be compensated for it, you need to explore several legal avenues of redress. If there was some government wrongdoing – on behalf of the police, prosecutor, or judge — you may be able to bring a case based on “malicious prosecution” or based on deprivation of civil rights (42 U.S.C. 1983). But what if there really was no “wrongdoing” on the part of the prosecutor, judge or police? What if you were simply convicted – for example – based on mistaken identity?

That’s where Court of Claims Act §8-b can be a lifesaver. Under this very special Statute, you don’t have to prove anyone did anything wrong. All you have to prove is that you were convicted for a crime you did not commit, that the conviction was duly vacated, and that (by clear and convincing evidence) you were not guilty of that crime nor of any of the offenses for which you was charged.

One last thing: You must show that you “did not by [your] own conduct cause or bring about [your] conviction” (Court of Claims Act §8-b[5]). Why would you have done anything to bring about your own conviction? The most common way is if you were trying to protect someone else. Did you help cover up evidence that your spouse or friend did the crime? That might have done you in! Did you help bring about your own conviction by giving a non-coerced confession? Did you attempt to induce a witness to give false testimony, or attempt to suppress testimony, or testify untruthfully in court? If you did, a Court might find your own conduct caused your own wrongful conviction.

Bottom line: If you want to bring a wrongful conviction claim against the State of New York based on Court of Claims Act § 8, you had better have clean hands.

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 Wrongful Conviction Lawyers
Michaels & Smolak, P.C.

1-315-253-3293