Central New York Injury Lawyer Blog

Central New York Medical Malpractice Lawyer Explains Five Medical Malpractice Myths

January 6, 2010 | by Michael Bersani

New York medical malpractice attorneys,, like medical malpractice lawyers all over the U.S., are often blamed for high health care costs and other woes. But are they really to blame? No! This past November 2009, the American Association of Justice (AAJ) published a bulletin titled “Five Myths about Medical Malpractice“. It debunks, with hard statistics gathered by non-biased agencies, all the “medical malpractice myths” spouted out by the insurance industry and doctors’ PAC groups. Here is a summary of AAJ’s “Medical Malpractice Myths” bulletin:

MYTH #1: THERE ARE TOO MANY “FRIVOLOUS” MALPRACTICE LAWSUITS

Far from it. In fact there are hundreds of thousands of the medical malpractice victims each year, but very few medical malpractice lawsuits. 98,000 people die in hospitals each year from preventable medical mistakes, but only a small fraction of the families sue.. Many more suffer non-fatal injuries, yet still medical malpractice lawsuits are rare. Moreover, the number of medical malpractice suits is declining, not growing. Medical negligence filings dropped 8% between 1997 and 2006. According to the National Center for State Courts (NCSC), medical malpractice cases constitute only 3% of all tort (injury) lawsuits, and only a very tiny fraction of all civil lawsuits. Medical malpractice lawsuits are not only rare, but the few that are filed are general strong cases. The Harvard School of Public Health put researchers to the task of examining over 1,400 closed medical negligence cases and found that 97 percent were meritorious.

Syracuse New York Area Injury Attorney on the Under-Reporting of Accidents and Violations to OSHA.

January 5, 2010 | by Michael Bersani

From our perspective as lawyers representing Central New York’s injured construction workers in lawsuits against employers and construction site owners, it seems that there are a whole lot of OSHA scaffold, ladder and height-work violations in Syracuse and the surrounding areas. Every year without fail we file new lawsuits on behalf of injured construction workers who were caused to fall from scaffolds or ladders by safety violations. But apparently there may be more OSHA violations going on than even we could have imagined. A significant number of “hidden” accidents are never reported! Let me explain.

A little over a month ago, the U.S. Government Accountability Office (GAO), the auditing agency for Congress, reported that employers and workers routinely underreport work-related injuries and illnesses to OSHA. This means that the number of OSHA violations causing injuries is actually higher than OSHA reports.

Why are so many EMPLOYERS failing to report workplace accidents? The GAO believes it is because they fear workers’ compensation premium increases and scaring off prospective and lucrative clients from contracting with them.

Syracuse New York Area Accident Lawyer on OSHA’s 2009 Top-Ten Safety Violations

January 4, 2010 | by Michael Bersani

The U.S. Department of Occupational Safety and Health Administration, commonly known as “OSHA”, has released its “Top 10 Most Frequently Cited” violations for 2009. This list not only exposes the most frequently violated safety regulations in 2009, but also, in my experience, represents a pretty accurate list of the top 10 violations that, year after year, cause the most serious injuries in the workplace in New York. Here’s OSHA’s top ten list (with my editorial notes tagged on):

1. SCAFFOLDING, CONSTRUCTION (29 CFR 1926.451)

Note: The NUMBER ONE safety violation. Scaffold accidents are frequently caused when the planks or support boards collapse or slip off the scaffold frame, or when the scaffold worker slips and falls from the scaffold or is struck by a falling object that causes him to fall off the scaffold. In a previous blog post, I wrote about how injured New York scaffold workers benefit from a special Statute, Labor Law 240, which allows them to sue for compensation for such scaffold violations. We have represented many construction workers in scaffold accident cases.

Syracuse New York Area Attorney Explains Restaurant’s Liability to Injured Patron for Falling Moose Head

January 3, 2010 | by Michael Bersani

The Associated Press and the Daily News both reported last week that an injured restaurant patron, Raina Kumra, filed a New York personal injury lawsuit against the White Slab Palace restaurant in lower Manhattan after a stuffed moose head fell from its wall onto her head. The restaurant first opened its doors for business only last February. Her lawsuit claims damages consisting of a concussion, loss of cognitive skills, chronic neck pain, dizzy spells, fatigue and anxiety. The moose head weighed 150 pounds and sported 3-foot-wide antlers.

When this Central New York personal injury lawyer read this story, my first thought was in Latin: “Res ipsa loquitur”. No, I don’t speak Latin. This is a legal doctrine, taught to all first year law students, which allows an injured plaintiff to use circumstantial evidence to prove negligence. In Latin, the phrase means “the thing speaks for itself.” In order to invoke the doctrine, the injured plaintiff has to show that the injury-producing event normally would not happen in the absence of some negligence. (Here, does a moose head just fall from a wall unless someone failed to secure it properly?). The injured person also has to show that the object that caused the injury (here, a moose head) was in the exclusive control of the defendant. The plaintiff must sufficiently eliminate other possible causes, including the conduct of the plaintiff herself or of other parties who might have tampered with the object.

The theory is often used in falling object cases. We at Michaels Bersani Kalabanka have brought several claims based on the theory of “resi ipsa loquitur”, mostly when merchandise falls from a shelf onto a shopper at big-box stores such as Wal-Mart, but also in our New York medical malpractice lawsuits where a doctor leaves a foreign object, such as a surgical sponge, inside the patient.

Ontario County New York Motorcycle Accident Lawyer Reports on Motorcycle Accident in Farmington

December 31, 2009 | by Michael Bersani

A recent motorcycle accident in Farmington, Ontario County, New York provides food for legal thought. The Geneva Finger Lakes Times reports that on Monday a motorcyclist, James W. Evans of Victor, drove his motorcycle into the rear of a van that was attempting to make a left-hand turn into a driveway. The motorcycle driver was charged and arraigned on both DWI charges and for not having a valid license. The Finger Lakes Times reports that a passenger on the motorcycle sustained serious physical injuries from the accident.

Here’s our legal query: What are Evans’ passenger’s legal rights to compensation for her injuries? Since the van driver was not at-fault, and Evans clearly was, she must look to suing Evans for his negligent, and drunk, operation of the motorcycle. Surely he is liable to her and, if he had liability insurance on his bike (not likely since he was driving it without a license), she can look to his insurance for compensation for her pain and suffering, lost wages, medical expenses and other loses.

If she brings such a claim, though, she can expect Evans’ motorcycle accident lawyer to argue that she herself was at least somewhat to blame for her own injuries because she assumed the risk of climbing on a motorcycle with an intoxicated driver. Whether this argument prevails (and it usually doesn’t) will depend in large part on what the passenger knew about Evans’ alcohol consumption that day. Was she drinking with him? Did she see how much he drank? Or did he merely pick her up after he had already been drinking? Did he look or act drunk? In sum, did she or did she not know or suspect that he was intoxicated? If a jury decides to blame her somewhat, her case will not get “nixed”. Instead, the judge will instruct the jury to “apportion” the blame between her and Evans. For example, if the jury determines that her injuries should be compensated to the tune of $1 Million, but the jury says she was 30% responsible and Evans 70% responsible, then she will get a verdict of 70% of $1 Million, that is, $700,000.

Manchester New York Car Crash Demonstrates New York Law on “Spousal Immunity” and the “Seat Belt Defense”.

December 31, 2009 | by Michael Bersani

The Geneva Finger Lakes Times reports a collision between two cars at the intersection of County Roads 7 and 27 in Manchester, Ontario County, New York at 8 p.m. yesterday. A motorist in the first vehicle was headed west on County Road 27, stopped at stop sign, but then entered the intersection, apparently without seeing southbound second vehcile, which had no stop sign and thus had the right of way. The impact overturned first vehicle, leaving his passenger, who appears to be his wife, unconscious. She was taken by Mercy Flight to Strong Memorial where she gained consciousness and complained of neck, hip and leg pain.

This is the fourth local accident I have recently reported on caused by a driver failing to yield the right of way at an intersection controlled by a two-way stop sign. The other three blog posts can be read here, here and here.

This Ontario County New York car accident provides us with an opportunity to explain two concepts in New York car accident law: (1) “spousal immunity” and (2) the “seat belt defense”.

Geneva New York Car-Accident Lawyer Explains Why Innocent Car-Accident Victim of Stop-Sign Violator Will Probably Not Get Compensated.

December 30, 2009 | by Michael Bersani

Motor vehicle accidents in Geneva, New York, and the surrounding areas of Ontario County, can teach us a lot of about New York car-accident law. Here’s an example: The Geneva, New York Finger Lakes Times reports today that two people were injured in an accident at Payne and Shortsville roads Monday. Scott Briggs of Canandaigua stopped at a stop sign at Payne Road, but then proceeded through the intersection without yielding to a vehicle heading on Shortsville Road through the intersection. Shortsville Road traffic is not controlled by a stop sign. The driver of that other vehicle, Caroline Conrad of Shortsville, had the right of way since she had no stop sign. She and her passenger, Shirley Wagner of Shortsville were taken to FF Thompson Hospital where they were treated for only “minor injuries”.

Now here is a fact that might surprise you: Even though Briggs was totally at fault for this accident, and even though Conrad was totally innocent, Conrad probably has no legal claim at all against Briggs. Why not? The answer lies in the type of injuries Conrad is said to have sustained, that is, “MINOR INJURIES”. Under New York State car accident law, known as the “no-fault” law, also known as “New York Insurance Law 5102”, Conrad and her passenger can’t sue Briggs or claim damages from him or his insurance company unless they have suffered a “SERIOUS INJURY” as defined by the law.

So will Conrad and her passenger get no compensation at all? Well, it’s not quite that bad. Conrad’s no-fault insurance will automatically pay for hers and her passenger’s medical expenses and lost wages up to a limit of $50,000 each. But what about pain and suffering compensation for Conrad and her passenger, who were, after all, the innocent victims of Briggs’ negligence? None! You have no right to claim any pain and suffering compensation unless you have sustained a “SERIOUS INJURY”.

Syracuse Area New York Accident Lawyer Gives New Year’s Safety Tips.

December 30, 2009 | by Michael Bersani

How about this for a New Year’s resolution: “I’ll practice common sense safety rules to protect myself and my family from harm this year”. Pretty good one. And probably a lot easier to keep than the standard resolution of “I’ll go to the gym religiously and lose 20 pounds”.

You can take a first step toward fulfillment of this safety resolution by starting the New Year out right. Follow these safety tips from this Central New York Injury Lawyer:

If you are HOSTING A PARTY on New Year’s Eve, protect your guests (and yourself from liability) by doing the following:

Injury Lawyer to Snowmobilers: Fatal Sledding Accidents in New York Can Be Avoided!

December 29, 2009 | by Michael Bersani

What three things just don’t mix well with a picturesque winter landscape such as the one I see as I look out my window in Geneva, New York this evening? Answer: Snowmobiles, drinking and speed. Yes, I know I already recently blogged about snowmobile accidents in New York , but snowmobiling is on my mind because of this wintery weather we are having. Here’s some more important safety information for New York sledders:

There are over 130,000 registered snowmobiles in New York State, and almost 11,000 miles of official snowmobile trails. Speed and alcohol are by far the two biggest factors in causing snowmobile accidents and fatalities. The deadliest sledding season ever recorded in New York was the 2002-2003 season, which, according to the New York State Office of Parks, Recreation and Historic Preservation, took 31 lives. Fortunately, the 2008-2009 season (last year) took only 14 lives in New York. The fatalities last year seemed to cluster in the southern Adirondacks, near Long Lake (Hamilton County) and Otter lake (Oneida County).

All the experts say that excessive speed is almost always a factor in snowmobile crashes. Our experience bears this out: At Michaels Bersani Kalabanka, we handle claims every year on behalf of innocent snowmobilers injured by the negligence, carelessness and recklessness of other sledders, usually involving excessive speed.

Gorham, New York car collision with buggy injures four in Ontario County, New York.

December 29, 2009 | by Michael Bersani

Local media outlets,including the Geneva Finger Lakes Times, report that four people were injured when a car rear-ended their horse-drawn buggy in Gorham, Ontario County. Both vehicles were headed southeast on County Road 18 about 8:30 in the morning of December 28. The driver of the car, Stephen M. Bara, 58, of County Road 18, says the morning sun glare prevented him from seeing the buggy in time to avoid the collision. The car crash seems to have been severe; the buggy was destroyed and the horse had to be put down. The buggy driver and passengers appear to have suffered serious head and back injuries. Two of the four were airlifted by Mercy Flight to Strong Memorial Hospital in Rochester.

This unfortunate accident illustrates two roadway dangers: (1) horse-drawn buggies, which are quite prevalent among the Mennonite community in the Penn Yan and Gorham area of Yates and Ontario Counties; and (2) sun glare in the morning and evening hours.

Horse-drawn buggies present a danger because they move much more slowly than automobiles along the roadway, and drivers sometimes don’t notice them in time to react. But failing to see them is not a legally acceptable excuse. A driver is required to see what there is to be seen on the roadway. A driver paying attention should easily spot a horse-drawn buggy, especially from behind, since they are required to display the orange slow-moving-vehicle triangle on the back. Just like bicycles, horse drawn vehicles are legally entitled to share the road with motorists, and motorists are required to notice them and respect their rights.