Central New York Injury Lawyer Blog

Why Lawyers Sometimes Decline Personal Injury and Medical Malpractice Cases

April 30, 2010 | by Michael Bersani

When I tell them, they don’t like what they hear. I try my best to explain, and usually they do understand, but they are never happy about it. Sometimes (thankfully not often) they even become angry.

What am I talking about? Turning a case down. You see I, like all other Central New York personal injury and medical malpractice lawyers, must sometimes tell potential clients that I am declining to take their personal injury or medical malpractice case. Many factors come into play in deciding whether to accept a personal injury or medical malpractice case. In the end, we lawyers need to make a business decision, based on a cost-benefit analysis.

What goes into that analysis? Since we are paid on a contingency fee basis (generally 1/3 of whatever we recover for the client) we need some reasonable assurance that: (1) we can win the case; (2) the injury is significant enough to warrant a jury verdict high enough so that 1/3 of it will “pay” for our time litigating it; and (3) the at-fault party has either enough insurance coverage or a “deep pocket” so we can collect on a judgment.

Syracuse Upstate Hospital Lowers Its Open-Heart Surgery Death Rate And Medical Malpractice Exposure.

April 26, 2010 | by Michael Bersani

There is good news for open-heart surgery patients in Syracuse, New York: New York State’s Health Department reported this week that Syracuse’s Upstate (SUNY) Hospital’s death rate for open-heart surgery has dramatically improved: In 2005 SUNY Hospital had one of the highest death rates for open-hear surgery in New York State, with a death rate of 5.34%, but by 2007 it had one of the lowest. The rate now is .5 %, or one in 200 deaths, the third lowest out of 40 New York State hospitals. The average was just under 2%. St Joseph’s Hospital Health Center, the only other Central New York hospital where open-heart surgery is performed, had a rate of 2.27 %, just above average.

Upstate officials claim the improved death rate is due to, among other things, a renewed focus on quality and safety. Those improvements must be applauded. Medical malpractice is, unfortunately, rampant throughout the United States, including in New York State, and including at fine hospitals such as Syracuse’s SUNY. We know. We took a more than $2.5 million Syracuse New York medical malpractice verdict against SUNY two years ago for its malpractice of a Parkinson’s patient. SUNY Hospital’s medical malpractice paralyzed and brain-damaged our elderly client. How? The Hospital’s surgeon had performed the delicate brain surgery using poorly maintained brain surgery instrument that malfunctioned during the surgery.

Harvard researchers have conducted samples showing that as many as 1% of patients treated in New York State hospitals, such as SUNY, are injured, and of those, one fourth die, as a result of medical mistakes. One in a hundred needless injuries, including one in four hundred needless deaths, might not seem like a lot to some, but to us it seems unacceptable. Remember, we are talking about NEEDLESS deaths and injuries. And all that is needed to prevent them is a system that focuses on avoiding mistakes. For example the case where we got a $2.5 million verdict against Upstate Hospital for medical malpractice, all that was needed to avoid the medical malpractice was a system of checking and double checking for proper equipment maintenance.

Boy Scouts of America Punitive Damages Verdict Demonstrates Value of Punitive Damages: Syracuse Tort Lawyer Explains.

April 24, 2010 | by Michael Bersani

Tort law works! I blogged about the Boy Scout case a few weeks ago, but I need to revisit it here. The jury has sent the Boy Scouts of America a powerful messge! This Friday, the jury, who heard and carefully considered all the evidence, slammed the Boy Scouts of America with an $18.5 million punitive damages verdict for having allowed a former assistant Scoutmaster to sexually abuse him as a boy. The jury had already found, in the first stage of the trial, that the Boy Scouts conduct in allowing a known sex abuser to be an assistant Scoutmaster was outrageous and reckless.

How reckless? Consider this: After the molester admitted to a Boy Scouts official that he had already molested 17 boys, the Boy Scouts of America kept him on as Scoutmaster, and kept him in contact (to say the least!) with the boys, where he went on to molest, among others, the plaintiff in this case.

This $18.5 verdict was in addition to the $1.4 million in compensatory damages the jury already awarded to the sex abuse victim earlier this month. Compensatory damages are meant to compensate the pain and suffering, medical expenses, lost wages and other direct losses to the plaintiff. With punitive damages, however, the focus is not on compensating the victim, but on the behavior of the defendant. Punitive damages do what their name suggests; they PUNISH the wrongdoer, here the Boy Scouts of America, for very wrongful, reckless or deliberately harmful conduct. In New York the way we describe the kind of behavior that calls for punitive damages (also known as “exemplary damages”) is “conduct that evinces utter indifference or conscious disregard for the safety of others.” Punitive damages are meant to deter similar behavior in the future.

Motorcycle Accident Lawyer Delivers Good News / Bad News about 2009 Decline in Mortorcycle Deaths In Central New York and U.S.A.

April 23, 2010 | by Michael Bersani

So what do you want to hear first, the good news or the bad news?

The good news came out just the other day from the NHTSA (National Highway Traffic Safety Administration) about Motorcycle deaths in Central New York and, in fact, all over the nation. For more than a decade, motorcycle accident deaths had been climbing steadily, year after year. Then suddenly, in 2009, motorcycle deaths plummeted throughout the U.S by a total of 16%, which saved a total of 530 lives. The highest motorcycle accident death toll ever was the prior year, 2008, which took 5,290 lives.

Why? To what do the experts attribute such a dramatic decline? Are motorists finally SEEING motorcycles? Are motorcycle safety campaigns finally working? Are bikes just safer?

Central New York Pedestrian Accidents and Lawsuits May Be Avoided by “Complete Streets Week” Survey.

April 22, 2010 | by Michael Bersani

The Syracuse Post-Standard reports that “Complete Streets Week: Making New York Walkable for All Generations”, begins today. What is it? It is a volunteer-led survey of pedestrian safety throughout Central New York, focusing on walking conditions in downtown Syracuse. Volunteers will look at the adequacy of traffic signals in allowing people with disabilities to cross, whether crosswalks are properly marked, the condition of sidewalks and the legibility of signs. The survey will serve as raw material for a “walkability” report to be published this fall on walking conditions all over Central New York, and in other areas of New York State. The report will bolster legislation pending in Albany called the “Complete Streets” law, which would direct transportation planners to design roads, sidewalks and streets with pedestrians in mind. Sponsors of the project include city and county governments as well as AARP, with volunteers doing most of the leg-work.

This study will, we hope, get our State and local governments to focus on preventing pedestrian accidents, injuries and lawsuits by fixing and preventing sidewalk and crossing defects and dangers. With an aging population, and with more of us disabled, “walkable” cities are crucial for the future of Central New York. Shamefully, New York State ranked third nationwide for elderly pedestrian deaths last year. But walkable cities are equally important for parents with small children, with strollers, and for everyone.

The lawyers at Michaels Bersani Kalabanka, as Central New York pedestrian injury lawyers, know first-hand how dangerous the sidewalks, crosswalks and intersections can be in Central New York, including in Syracuse, Auburn, Skaneateles and Geneva where we live and work. Every year we file Central New York pedestrian injury lawsuits on behalf of those who trip and fall on cracked or broken sidewalks, or are hit by cars in poorly controlled intersections and dangerous cross walks. Sometimes they trip and fall on a broken, cracked, or heaved up sidewalk slabs. Sometimes they get hit by cars as they attempt to cross at dangerous crosswalks or traffic intersections. Very often they are old, or disabled, or are children. Therefore, we applaud “Complete Streets Week: Making New York Walkable for All Generations”, and all the volunteers who are making it a success!

Central New York Hunting Accident Lawyer Explains Unfairness of Insurance Rule

April 19, 2010 | by Michael Bersani

If you’re a Central New York hunter and you accidently shoot a fellow hunter, you sure would feel bad, right? I mean Central New York shooting accidents, like hunting accidents everywhere, can kill, seriously injure and maim. But there’s insurance for that, right? I mean, if you are a hunter, and you own a home, your homeowner’s insurance will protect you if you accidently shoot another hunter, right?

Think again. Here’s a true story. A Central New York deer hunter goes out hunting in the hours where night is turning to day. He is in his tree stand waiting. He sees a deer. He aims, shoots, fires and — hears a man scream. He just shot another hunter! The deer wasn’t a deer, it was a hunter whom he mistook for a deer.

When he calms down, and he is assured that his victim is not going to die, but is seriously hurt, he thanks his lucky stars that at least he has homeowner’s insurance. He realizes that homeowner’s insurance covers accidents like this, so the poor guy he shot will at least get his medical bills and lost wages paid, and maybe even some compensation for any pain and suffering.

Central New New York Injury Lawyer asks, Will Catholic Church Bring to Justice “Those Responsible for Child Sexual Abuse”?

April 18, 2010 | by Michael Bersani

Today I received an email with the photograph depicted here as a “joke”. It is clever for sure, but no laughing matter for those who have been victimized by Catholic priest sexual abuse.

I also read in several media reports today that Pope Benedict XVI met with Catholic Church sex-abuse victims on the island of Malta and promised them, tearfully, that the Catholic Church would “seek justice for pedophile priests” and take “effective measures” to protect kids from future abuse. The Pope prayed with these abused children-turned-adults and assured them that the Church was doing, and will do, “all in its power to investigate allegations, to “BRING TO JUSTICE THOSE RESPONSIBLE FOR ABUSE”. The Vatican offered no details of what measures it would take to carry this out.

But here’s the key question in my mind: Will the Vatican bring ITSELF to “justice”? After all, who are those most “responsible for abuse”, the priests with unfortunate pedophilic desires so strong that recidivism is almost a given, or the passionless Church hierarchy who knowingly, deliberately, and cold-heartedly covered all this abuse up, shuffling sexual predators from parish to parish, and even from country to country, where they could resume their violence upon innocent children?

Syracuse New York Personal Injury and Medical Malpractice Lawyer on How to Change the Law

April 18, 2010 | by Michael Bersani

The other day a fellow Central New York injury lawyer congratulated me on a recent Court victory I had, which changed the law throughout New York State, and helped him, and other New York personal injury and medical malpractice lawyers, better represent their clients. The case he was referring to was Thompson v Mather, which I have already blogged about. He pointed out to me that this was the second time he had seen me change the law for the better in New York State by winning a key appellate argument for New York personal injury and medical malpractice victims. He remembered that I had, a few years ago, stopped no-fault insurance companies from denying coverage for medical bills when the insured had reached “maximum medical improvement” in a case called Hobby v CNA. The lawyer wanted to know how I was able to effect such big changes in the law with my cases.

My response was simple: I read the statutes. And I read them carefully. And I read them over and over again, word for word, looking for hidden or perhaps even obvious meanings that everyone else has been overlooking. In both cases this lawyer was referring to, all the case law generated by other lawyers had overlooked the fact that the controlling statutes just did not allow insurance companies to do what they had been doing. In Thompson v Mather, the statute, CPLR 3113, when read carefully, just did not allow a non-party witness to bring in a lawyer (usually an insurance company lawyer) to object to questioning at a deposition. It said that deposition questioning was to proceed just like at trial, and at trial non-party witnesses’ lawyers can’t object or talk at all. And in Hobby v CNA, the statute at issue, New York Insurance Law 5102, just did not allow a no-fault insurance carrier to cut off an insured’s medical treatment based on a finding of “maximum medical improvement”. It only allowed them to cut an insured off if the treatment was not “reasonable and necessary”, which is not quite the same thing.

So while other lawyers had, for decades, overlooked these nuances, and just assumed that the common practice of insurance carriers and other lawyers comported with the law, I actually READ THE LAW, and found out that everyone else was wrong!

Syracuse and Central New York Bicycle Accident Injury Lawyer: Is Bicycling Too Dangerous?

April 18, 2010 | by Michael Bersani

I don’t know about you, but sometimes I just like to hunt around on the internet for neat sites to reference about my hobbies and passions. Since I am an avid bicyclist, as well as a bicycle accident injury lawyer, I was hunting around today for cites with information on bicycles and bicycling and even bicycle accidents and how to avoid them. I found a great bicycle site. This cite has just about everything you want to know (example: how to make sure your bike fits right), some things you didn’t know you wanted to know (example: unusual bike models), and some things you DON”T want to know (statistics for bicycling accidents and fatalities). The stats are pretty dismal. Here’s a sampling:

• One in every 20 cyclists is injured annually.

• A bicyclist on average has a minor injury every three years and a more serious every fifteen years.

Albany New York Medical Malpractice Settlement Is Unusual and Refreshing

April 10, 2010 | by Michael Bersani

“Help, this woman is bleeding to death! Is there a doctor in the house?”

But no doctor intervened, and poor Diane McCabe died a slow death. In fact, it took her 15 hours to bleed to death. Why couldn’t they stop the bleeding? Was she in some remote location with no access to a hospital? Nope. In fact she bled to death in an Albany Medical Center Hospital in New York State where she had undergone a C-section. After the surgeon finished the Cesarean procedure, and stitched McCabe back up, he left to attend to other patients. A physician attending to McCabe then called him several times to report that McCabe appeared to be bleeding internally, and asked the surgeon to open her back up. Despite these calls to action, the surgeon refused to intervene until it was too late. McCabe had lost too much blood.

Diane McCabe’s family settled her Albany New York medical malpractice claim last week for $5.2M against the (ir)responsible surgeon and Albany Medical Center Hospital. Since Diane left behind two small children and a grieving husband, this does not seem like too much money. In fact, it seems a little light. But her family got something much more important than money to them, something very unusual in an upstate New York medical malpractice case (or in any malpractice case anywhere): They got the Hospital to agree to implement safety improvements to make it unlikely the same thing would happen again. And they got the Hospital to agree to fund, for the next 20 years, a Diane McCabe Memorial Quality (patient safety) Lecture series. In other words, they got what amounts to an apology, some remorse, and some assurance that the Hospital would learn from its mistake.