Central New York Injury Lawyer Blog

motorcycle riders.jpgI published these motorcycle safety rules in our Spring Newsletter, but it can’t hurt to publish them again here on my blog site. These are general motorcycle safety suggestions. My next post will give safety tips for riding in heavy traffic.

1. PROTECT YOUR MOST IMPORTANT ORGAN!
Your brain, of course! Looking cool is important (just ask any 14-year old!) but those skull cap helmets won’t protect your brain when your head gets dashed against the pavement. Wear a properly certified helmet and your chances of surviving a crash
go up dramatically.

2. BE “BLING BLING” ON WHEELS.
Wear bright clothing, a brightly colored helmet and keep that headlight on. Remember, the number one danger of being on a bike is that other motorists just don’t see you. Make them see you! Your colors and your light should be SCREAMINGat them!

3. LIKE YOUR BIKE.
More than with a car, a mechanical problem with a bike can cause a serious accident. Check your oil, tires, chain and brakes. Immediately investigate any unusual noises.

4. BE AN “EASY” RIDER.
What’s the rush? Enjoy the scenery. There’s no race. Your chances of getting into an accident go up with every mile-per-hour you increase your speed.

5. DON’T PUT YOUR “SKIN IN THE GAME”.
Wear clothing that is not only colorful, but that protects your skin. Nothing beats leather.

6. BOOZE AND BIKES? — YIKES!
Get your high from the freedom of the road. Don’t enhance it with alcohol or drugs because those things also dramatically increase your risk. And by the way, riding while you are sleepy is not much safer.

7. BE A ZEN MONK.
One of the best ways to prevent having to get peeled off the pavement is to be completely “there” on your bike. Observe everything and everyone around you. Don’t let your mind wander. Be a Zen monk out there. Better yet, be a prophet. Try to anticipate trouble before it happens. Expect cars to zip out in front of you. Expect them not to see you. Don’t take anyone or anything for granted.

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 Motorcycle Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

surveillance cameras.jpgA recent case published in the New York Law Journal illustrates the importance of personal injury lawyers promptly demanding that surveillance videos be preserved. Surveillance cameras are virtually everywhere now: In our streets, stores, businesses, banks, schools and traffic lights. So almost every time a new case comes into your office, your first thoughts ought to be, “might there be surveillance videos? Who might have them?”

The importance of promptly demanding that surveillance tapes be preserved is illustrated in the recent case of Rodriguez v City of New York. In that case, a child was assaulted at school. The victim’s lawyer claimed the school provided negligent or insufficient supervision, thus facilitating the attack. After suit was commenced, during the deposition of one of the school employees, the employee testified that she had reviewed a surveillance video taken the day of the incident. She claimed it did not show the attack, but did show kids leaving the school.

Right after the deposition, the injured child’s attorney sent out a “Notice for Discovery and Inspection” demanding a copy of the surveillance video. The School’s lawyer sent a response indicating the video had been automatically taped over about 60 days after the incident and that, in any event, it had not shown the attack.

The plaintiff’s lawyer moved for sanctions against the defendant, arguing that the video would have, at the very least, shown the amount of supervision going on as the students left the school.

While the judge faulted the School for having failed to preserve the video when it knew litigation was afoot, the fact that the video was destroyed BEFORE plaintiff’s attorney asked that it be preserved certainly did not help plaintiff’s argument that the defendant should be severely punished for having allowed the video to be over-written. The judge refused to preclude defendant’s defense of the case, and instead meted out the less severe sanction of charging the jury that it could draw an “adverse inference” from the fact that the School let the video be taped over. The judge also noted that, if the video-tape had shown the attack itself, he might have issued a more severe sanction because the loss of that evidence would have more seriously prejudiced the plaintiff’s case.

Moral of the story: As soon as you represent an injured plaintiff, think about whether the incident happened in an area where there might have been surveillance cameras (almost everywhere these days!) and immediately send out a letter asking that all surveillance videos be preserved.

By the way, the “adverse inference” charge to the jury will read something like this:

Plaintiff claims that defendant has failed to produce in court a surveillance tape and that defendant has failed to offer a reasonable explanation for not producing it. Defendant claims that the video did not show the incident itself, but merely showed students exiting the school, and that the video was inadvertently taped over. If you believe that defendant has not offered a reasonable explanation for having failed to preserve the video, you must decide what weight it would have had in your deliberations, if any. If you find that the video would have been important or significant in your deliberations, you may, but you are not required to, conclude that if it had been produced it would have supported plaintiff’s position on the issue of lack of adequate supervision.

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

atv.jpgAt Michaels & Smolak, we’ve seen a lot of bad ATV accidents in Central New York. From our perspective as New York ATV accident lawyers, the best cases are those in which the accident was not the injured guy’s (our client’s) fault. But unfortunately, many times severely injured victims of ATV crashes are themselves to blame.

The Good news about ATV accidents is that there are fewer of them than before. ATV Deaths and accidents have been going down steadily year after year since 2006. That’s because ATV’s are built safer, in part because of lawsuits brought by lawyers like me forcing manufacturers to make them safer. (Remember the old three-wheelers, and the tip-over accidents that plagued them? Personal injury lawyers sued them into oblivion!)

But there are still too many ATV accidents. This blog post is aimed at helping ATV users, and their parents, avoid accidents (and tickets!).

First, let’s look at New York ATV law, which is really an embodiment of good safety rules:

• No passengers allowed unless the ATV is designed for two (Most ATV’s are designed to carry only one person because you need to have “interactive driving”, that is, the driver must be able to shift his weight freely in all directions to properly maintain control around curves, etc.)
• Helmets are NOT optional.
• All ATVs must be registered, with renewals once a year, with the Department of Motor Vehicles.
• No ATV can be used on highways except to cross them.
• No one under 10 may ride or operate an ATV.
• Operators between 10 and 15 may ride an ATV only if they are on a parent’s land and supervised by a parent, or on a parent’s land and have a safety training certificate.
• A lighted headlight and taillight are required from ½ hour after sunset to ½ hour before sunrise.

Additionally, we strongly recommend you:
• get your kid some ATV training (statistics show that training reduces accident risk big time!)
• don’t ride on paved roads (ATV’s are tough to control on paved roads because of how they are made, and collisions with cars are deadly.)
• Make sure kids under 16 are on age-appropriate ATV’s.

Enjoy your ATV, but . . .

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 ATV Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

tractor trailer.jpgI pulled some all-nighters in college. Who didn’t? But that was behind a desk. I have never tried one behind a wheel, nor do I intend to, thank you.

Not everyone can say that. A Walmart tractor trailer driver, Kevin Roper, might not be able to say it. Last Saturday, while driving down the New Jersey Turnpike, he rear-ended a van carrying, among others, the comedian Tracy Morgan (Saturday Night Live, 30 Rock). The New Jersey police assure us (we don’t know how they know) that Roper had not slept in 24 hours. Federal law limits tractor trailer drivers to 14 hours shifts, with only 11 of those behind the wheel.

Roper’s sleep-deprived accident caused a pile up. Several were injured and one victim was killed. Morgan himself is in critical condition. There have been some reports he may lose a leg.

When bad things happen to celebrities, problems that once went unnoticed under the radar suddenly get the spotlight. For example, when Angela Jolie underwent a preventive double mastectomy after learning she had an 87% risk of developing breast cancer due to a defective BRCA1 gene, we all learned about genetic testing for this anomaly. This might help some of us avoid breast cancer.

I am hoping this high profile truck accident will shine a national spot light on tractor trailer accidents. It’s a growing problem. According to the National Transportation Safety Board, the number of fatal large truck crashes has been steadily rising. In 2012, there were about 333,000 large truck crashes, which resulted in 3,921 deaths and more than 104,000 injuries. Of those killed, about 73 percent were occupants of vehicles other than the large truck.

My hopes have some basis in fact. The National Transportation Safety Board, a Federal agency charged with roadway safety, has launched a team of investigators to New Jersey accident scene. They are conducting an investigation to determine how to prevent similar tragedies. Maybe they will. Let’s 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 Truck Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

boxing lawyer.jpgMany moons ago, before we humans invented a civil justice system, we resolved our disputes by brute force. Might made right. In the words of Thomas Hobbes, life was “nasty, brutish and short.”

Then trials and courtrooms evolved. We put down our fists and swords and let judges and juries hear our stories and resolve our disputes.

We’ve come a long way, baby.

Well, not all of us.

I’ve been is some pretty hot courtroom battles, and I’ve seen some angry lawyers and judges, but in my many years in the courtroom I’ve never seen a lawyer or judge come to fist-a-cuffs. But that’s what happened in a Brevard County Courtroom in Florida the other day.

You can see what happened by viewing the video imbedded below. Quick overview: The judge apparently gets angry with the public defender because he won’t waive his client’s “speedy trial” rights. The Judge angrily tells him, “if I had a rock I would throw it at you”. Then all hell breaks loose. The Judge tells the lawyer, who has refused his instruction to sit down, that “if you want to fight let’s go out back and I’ll just beat your ass.” The lawyer then eagerly heads to the back corridor. We then hear the judge yelling, “do you want to fuck with me”, and some noise that appears to be blows landing.

Now here’s the most disturbing part of the video: The judge comes back into the courtroom, takes his seat, the lawyer never reappears, and the courtroom erupts in applause. Apparently, the public wanted to congratulate the judge for beating the lawyer up.

Moral of the story: Our justice system is a superficial coat of civility which conceals the brutish animal lurking underneath, the one that prefers to take justice into its own hands, and the one that applauds those who do.

In the end, though, civility prevails. The pugilistic Judge has been forced to take a leave of absence for anger management. He will probably lose his job. In the end, justice prevails.

Keep safe (and Civil!)

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.jpgSexting during surgery? Ya godda be kidding . . .!

I blogged a few weeks ago about doctors who got into trouble for texting or surfing the web while attending to patients, even during surgery. That was incredible enough, but now a Seattle surgeon has been caught, and suspended, for SEXTING during surgery. The anesthesiologist sent 64 sex-texts during seven surgeries, mostly C-sextions – oops, I meant “sections”.

You might ask yourself, so, what’s the difference between SEXTING and TEXTING? Isn’t the distraction the same? Well, no, in my humble opinion, it’s not. Sexting is even more distracting (not that I would know from personal experience of course) because it involves both brains (guys, you know what I mean). Sexual arousal simply has to count as an additional distraction, above and beyond the mere mental distraction of texting, at least in my book.

Do I have any science to back me up? No. But I’ll bet it wouldn’t be difficult to find volunteers to participate in such an experiment. In fact, I know of a Seattle anesthesiologist who is currently unemployed and would thus have plenty of time on his hands to take part in this important research . . .

If any of my readers ever find out they were the victims of a sexting surgeon, be sure to call me. I’ll send him this text: “Dear Doctor: Sorry for interrupting your sexting. We are going to sue your pants off. That is, if they are not off already.”

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

doctor bad.jpgEvery day I get calls and emails describing awful medical care, which conclude with “will you take my medical malpractice case”? And 90% of the time I politely say “no”. Why?

Justice may be blind, but it’s expensive. That’s particularly true in “med mal” cases. In some cases we have to spend six figures to get the case to a jury. That’s because we have to hire smart experts – doctors – to explain to the jury that the defendant-doctor screwed up, and to prove that the harm he or she caused are no trifling matter. Those smart experts are very expensive.

In many cases the injury is worth less in compensation than the expense of those experts, and the other expenses in the case. If we took on medical malpractice cases with only modest injuries, we would quickly drive our law firm into bankruptcy.

We always feel bad when we have to turn down a meritorious medical malpractice because the damages are just not going to bring a large enough verdict to support the case. It’s just not fair!

Most of the unfairness is borne by the elderly or those who were already disabled before the malpractice. They almost always have no income so we can’t claim lost wages for them. A malpractice injury on a 30-year old working guy might be worth more than a million dollars in a lifetime of lost wages, while the same injury on a retired guy can be expected to pull in only a $100,000 verdict. And since our expenses will be close to $100,000, how does it make sense for us to spend years of our time getting that case ready for trial? If we “win”, the jury will give us just enough to pay our expenses. This is what the ancients used to call a “Pyrrhic victory“.

Not fair! Goddamn right it’s not. But we didn’t make up the rules. We just work under them.

As my 15 year-old would say, the civil justice system “sucks”. But as “sucky” as it is, it’s still the best justice system in the world. I challenge you to find a better one . . .

I also invite you to run your medical malpractice case by me, despite everything I have just said. If your injuries are bad enough, and there is malpractice, we’ll give your case everything we’ve got.

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

boating.jpgThis past weekend, Memorial Day weekend, was a disappointment to many boaters in the Finger Lakes region. That’s because motor boats were banned on Keuka, Canandaigua and Honeoye Lakes. And on Seneca Lake there was a 5 mile per hour speed limit. Tough to get very far at that pace!

Rain and flash floods, which raised water levels and unleashed lots of floating debris, made the lakes dangerous to navigate with motorboats. In addition, some docks were underwater and could have been invisible hazards.

The authorities expect all lakes to be open for boating this next weekend, but local boaters ought to check the web or make some calls to make sure.

Keep in mind that just because the lakes are open to motor boats does not mean that floating debris does not remain a hazard. Have someone at the front of your boat on the lookout, and keep to reasonable speeds.

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 Boating Accident Lawyer
Michaels & Smolak, P.C.

1-315-253-3293

texting and driving.jpegI was glad to read yesterday in the Finger Lakes Times that more than 600 Canandaigua Academy students who attended the Distractive Driving Fair there signed a pledge to never text and drive. As a New York car accident lawyer representing victims of text-and-drive accidents, I can tell you that nothing has increased my case load more than the recent “text-and-drive” habits of the young. And as the father of a 17-year old driver, nothing is more frightening to me than this trend. Any parent whose kid has a smart phone can tell you how damn addicting those things are. Kids want to be constantly connected to their buddies through those devices. BUT BEHIND THE WHEEL IS AN UNACCEPTABLE PLACE TO STAY CONNECTED. Thanks Canandaigua youth for pledging not to tread down that dangerous path . . .

Please read some of my other distracted driving blog posts linked here:

New York State Troopers’ New Anti-Texting-While-Driving Weapon.

Central NY Auto Accident Lawyer Explains How To End The Texting-While-Driving Crisis In New York

New York Ratchets Up Penalty For Texting While Driving

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 Finger Lakes Car Accident Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293

doctor bad.jpgFor at least a decade, hospitals and doctors’ offices, hoping improve medical care, have been equipping their offices, operating rooms and staff with nifty computers, ipads, smartphones and other electronic devices. This is great for quickly digging up patient data and drug information. But it also has a dark side.

Doctors and nurses and technicians, just like the rest of us, can get addicted to the “fun” side of these new technologies – social media, texting, tweeting, etc. So addicted, in fact, that they text, tweet, talk and web-surf during important medical procedures.

Apparently, America’s gadget addiction has even penetrated the operating room. For example, more than half of technicians who monitor bypass machines admit they had texted during surgery. Other examples abound. A nurse in an Oregon hospital was caught checking airfares on a computer in the operating room.

In Texas, an anesthesiologist sued for malpractice admitted, at a deposition, that he had been texting, accessing websites, and reading e-books during the surgery. He was so wrapped up in his screen that he did not notice the patient’s dangerously low blood-oxygen levels until 15 or 20 minutes after she turned blue.

Not to be outdone, a neurosurgeon in Colorado made at least 10 personal phone calls, using a wireless headphone, while operating. His patient ended up partially paralyzed and sued. Needless to say, the doctor settled his malpractice case out of court.

Medical professionals are not just endangering our lives with their screen addictions. They are also compromising our privacy. Recently, an anesthesiologist posted this about a patient on Facebook:. “After enduring the shittiest Friday I’ve had in a while, I just found out my next patient has lice. Freakin lice”. That was bad enough, but he also published a photo of another patient’s vital signs during surgery, captioned, “Just sitting here watching the tube on Christmas morning. Ho ho ho.”

Ho ho ho indeed.

Welcome to the brave new world of medical treatment in the age of the internet. Tweeting while treating. Emailing while examining. Posting while prescribing. It’s all the same thing: distracting doctoring.

My response to all this? I’m now going to tweet, post, and publish on facebook the following message:

“BEWARE MEDICAL PROFESSIONALS: IF YOUR DISTRACTED DOCTORING CAUSES HARM TO YOUR PATIENTS, YOUR PATIENTS WILL SOON BECOME MY CLIENTS. THANKS FOR THE BUSINESS!”

SIGNED, YOUR FRIENDLY CENTRAL NEW YORK MEDICAL MALPRACTICE 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 Medical Malpractice Lawyers Michaels & Smolak, P.C.

1-315-253-3293