Central New York Injury Lawyer Blog

New York’s Unfair Medical Malpractice Statute of Limitations Must Be Undone.

January 16, 2017 | by Michael Bersani

Medical professionals are getting away with murder! How? By a New York law that says victims of medical malpractice have only two and a half years to sue the doctor/hospital or other medical professional who negligently injured them, and only two years to sue for wrongful death (CPLR 214-a), REGARDLESS OF WHEN THE VICTIM FOUND OUT THAT THERE WAS A MEDICAL ERROR OR THAT THEY WERE INJURED BY IT.

Here’s an example of the cruel workings of this rule: Patient gets a lung or breast ex-ray or mammogram. Radiologist says it looks good. Three years later patient is diagnosed with stage-four lung or breast cancer. The new doctors look back at that ex-ray taken three years earlier, which clearly shows the cancer. The radiologist three years ago clearly overlooked it. If the cancer had been timely diagnosed, full recovery was likely. Now it is too late – the patient is dying.

Can this unfortunate patient or her family sue the careless radiologist? NO! Not in New York. That’s because the two-and-a-half year statute of limitations runs from the date of the malpractice, not from the date when the patient discovers the malpractice.

Michaels Bersani Kalabanka Helps Get Big Win in Highest Court in New York (Court of Appeals)

December 26, 2016 | by Michael Bersani

Winning is fun, especially when it’s a win not only for your client, but for many other people as well. I am proud to say I recently helped win a victory for people injured through the negligence of governmental entities such as counties, cities and school districts. In New York, these entities are known as “public corporations”. Let me explain.

The case, Newcomb v Middle Country Central School District, was about a teenager struck by a hit-and-run car while attempting to cross an intersection near his high school. He suffered a life-altering brain injury. His parents hired a lawyer who, among other things, tried to investigate whether other people, besides the driver, might have contributed to accident. In other words, was anyone besides the driver at fault? The lawyer did everything he could to get his hands on the police file. But unfortunately the police delayed eight months in getting the lawyer the photos of the accident scene, the police report and other investigative materials.

Once the lawyer got the photos, he noticed that the School District had placed a temporary sign (announcing a high school musical) at the corner of the intersection. The sign appeared to obstruct the line of sight between pedestrian and driver. This was likely a cause of the pedestrian not seeing the car approaching, and the driver not seeing the teenager as he stepped off the curb.

Biggest Spike in Traffic Deaths in 50 Years? Blame Apps.

December 7, 2016 | by Michael Bersani

I came across a New York Times article the other day with the above title. I didn’t have to read the article to know it was true; having worked as a New York car accident lawyer for more that two decades, I have personally witnessed the effects of smartphones on driving accidents.

Some of the apps for smart phones out there seem almost designed to kill drivers (and those they collide with). Take for instance the “snapchat” app’s speed filter. Want to impress your friends as you are driving along the highway? Ratchet your speed up to 120 miles per hour and then snap a video of your view from the car. Now you can post the video on snapchat instantly. Your friends will see the video with your speed — “120 mph” — superimposed on it. They will think you are so cool!

Another dangerous app is Waze. Full disclosure: I love Waze. I use it every time I am driving in big urban areas like New York City or Philadelphia. It works just like any other navigator but it actually finds you the quickest route to get where you are going based on the current traffic conditions, including construction slow-downs, roadway accidents blocking traffic, traffic jams, and even objects in the road blocking a lane of travel. But how does Waze know about all these conditions? Other Waze users observe these conditions as they drive by and then hit buttons on Waze’ app screen to notify Waze about them. Those drivers might feel like good Samaritans by helping other Waze users steer clear of traffic obstructions, but they are risking their own and other lives by paying attention to their phone screen instead of the road.

Can you be held liable in New York for texting to a driver who then crashes into another vehicle while reading your text?

November 12, 2016 | by Michael Bersani

I blogged sometime ago about a New Jersey case where a Court found that someone sending a text to someone else who he knows is driving can be held liable — along with the driver — for the resulting crash and injuries caused to others. What was new was the Court extending liability to include the outsider – who may be thousands of miles away — who is participating in the texting with the driver.

A Pennsylvania court soon followed New Jersey’s lead. In that case, a volunteer firefighter was stopped to make a turn on his motorcycle. A texting SUV driver rammed him from behind, causing him to die. The man’s family sued not only the driver, but also the person who had sent the driver the text. (The police obtained a search warrant and found the text still open on the texting driver’s phone). A Pennsylvania judge allowed the legal theory that the sender of the text was also liable to go forward to a jury.

In Pennsylvania, however, sending texts to a driver can now be a crime. Last week Gov. Tom Wolf (D) signed a bill that criminalizes the practice, and allows courts to mete out penalties of up to five years behind bars for a non-drivers texting with drivers involved in fatal crashes. So we are talking not only about civil liability, but criminal liability as well.

Top Central New York Personal Injury Law Firm Named “Best Law Firm” by U.S. News & World Report

November 5, 2016 | by Michael Bersani

We did it again! Once again, Michaels Bersani Kalabanka has been named in the annual U.S. News & World Report “Best Law Firms” in the practice area of both Personal Injury Law and Products Liability. Is this a small honor? No it is not. The Michaels Bersani Kalabanka Law Firm was the only personal injury law firm anywhere between Syracuse and Rochester (not including those two cities) to be named to this nationally recognized 2017 directory of top personal injury law firms in the United States. Moreover, we are one of only three Syracuse area firms to be ranked in the “first tier” of personal injury law firms in the directory.

Awards are nice. It sure is great to be recognized for our hard work and success. But in the end “awards” are not the “rewards” we seek. Winning for our clients is its own reward.

The four Michaels Bersani Kalabanka lawyers are so proud of our team’s incredible successes over the years. Hard work and authentic concern for our clients have paid off. Our support staff is the best! And of course we could never have reached this high place without amazing referring attorneys and clients who put all their trust and confidence in us. To all of you, we give you our eternal thanks.

How To Avoid Falling: NY Central Injury Lawyer Explains.

October 17, 2016 | by Michael Bersani

My mom is turning 89 in about a month. Her short-term memory is tarnished, but otherwise she is doing just fine.

I worry about her, though. One thing I worry about, especially with the winter months now approaching, is her falling. As a personal injury lawyer, I see a lot of slip-and-falls, trip-and-falls, and all other kinds of falls! So I know first hand the kind of serious harm a fall can cause.

So far mom has avoided any falls at all in her senior years. Will her luck continue?

Can Apple Be Held Liable For A Driver Causing An Accident While Texting On An Iphone?

October 1, 2016 | by Michael Bersani

Car accident fatalities are on the rise. Why? You probably know (especially if you regularly read this blog): Smart phone texting and social media. Drivers, especially young ones, are crashing as they gaze down at their phones. Sure the texting driver is liable, but is anyone else? What about the friend that was texting to the driver and who knew he was driving? An appellate court last year in New Jersey said, yes, that guy can be liable, too.

But here’s a new twist: What about Apple or other companies that make the phones that are distracting us? What if I told you that Apple has a powerful technology that can detect when the person using the phone is driving a car, and that the same technology can block access to the phone when that is happening? Shouldn’t Apple be liable for having failed to implement that technology? After all, it is now well known that social media is an “addiction” and some of those who are glued to their screens can’t seem to help themselves from “sneaking a peek” even while driving in heavy traffic.

Can Apple, or any of the other smart phone producers, be held liable? That’s what a new lawsuit in Texas will help decide. The product liability lawsuit, filed against Apple by families of the victim of a car crash caused by a texting driver, contends that Apple (1) knew its phones would be used for texting while driving, (2) had gone so far as to design technology to block drivers’ phones from being operational, but (3) did not deploy the life-saving technology.

U.S. Governmental Agency To Bar Arbitration Clauses In Nursing Home Contracts

September 28, 2016 | by Michael Bersani

There is some good news for nursing home abuse victims and their families. The Health and Human Services Department has passed a rule barring nursing homes and assisted-living facilities that receives federal funding from requiring their residents to sign “arbitration” clauses.

I have already blogged about why arbitration clauses are not good for consumers, especially consumers of medical services.

Nursing homes prefer arbitration to court because the arbitration associations they use are heavily stacked with pro-nursing home arbitrators who are afflicted by something called “repeat player bias”. What’s that? You might go up against a nursing home in arbitration one time in your life, but the nursing home and all its allies are there repeatedly defending claims brought by others like you. The nursing home is thus a “repeat player”. Repeat players get cozy with the arbitrators. If the “repeat players” don’t like certain arbitrators “tendencies”, they refuse to select them or otherwise sideline them. The arbitrators know who butters their bread. If they want to stay in the arbitration business, they had better please the “repeat players”. And that ain’t you!

Secret Safety Tip for Left-Turning Vehicles: Central NY Car Accident Lawyer Reveals.

September 23, 2016 | by Michael Bersani

Ok, maybe “secret” is not the right word, but I am always surprised by the vast number of people who don’t know this simple safety tip. Here it is (drum roll please): When waiting to turn left at a red light or while waiting for oncoming traffic to clear, do NOT turn your wheels left until you are actually going to turn. Wait with your wheels straight.

The reason should be obvious, but just in case it isn’t, there are two very unpleasant things that can happen to you if you are rear-ended with your wheels turned left:

You can be pushed into oncoming traffic and get clobbered by an oncoming vehicle

The Dangers of “Pokemon Go”. Will the Makers of this Game Face Liability Suits?

September 15, 2016 | by Michael Bersani

This summer, a 28 year-old man was driving along Owasco Street in Auburn, New York when, for no apparent reason, he drove off the road and smashed into a tree. When the police arrived on the scene and interviewed him, they learned what had caused the crash. Was he talking on his cell phone? Nope. Texting? Guess again. Answer: He was playing “Pokemon Go”. Completely immersed in the game, he forgot he was driving a car and crashed into the tree.

For those of you who don’t know about Pokémon Go, it is a HUGELY popular game among Millennials played in “virtual reality” on a smart phone. The game allows its users to travel around looking for “Pokémons” (the name in Japanese means “pocket monsters”), capture them, and then use them to conquer Pokémon “Gyms” (arenas). Players hatch Pokémon “eggs” by walking while playing. Players need to go near “Pokéstops”, which are landmarks where they can pick up things to advance in the game.

The car accident made national news and was a wake up call to local police regarding the dangers of the new “hit” game (pun intended). In the wake of the crash, Auburn police offered the following advice to Pokemon Go players: