October 20, 2014

New York State Found Not Liable For Actions of Off Duty Corrections Officer Who Shot Man In Altercation

In its recent decision in Wood v State of New York, the Appellate Division, Second Department upheld the Court of Claims decision to grant summary judgment dismissing a claim of wrongful death against the State of New York, as the employer of an off duty New York State Corrections Officer. New York State was sued in the Court of Claims by the Administratrix of the Estate of Chris Anthony Kenner, who died after being shot while in an altercation with Emilio Maldonado. The Court found that because Maldonado was not acting as an employee of the State of New York at the time of the incident, the State of New York could not be held responsible and the court granted summary judgment in favor of the State.

Employers may be held vicariously liable for the acts of their employees under a theory of law called the doctrine of respondeat superior. The doctrine of respondeat superior makes employers liable for acts committed by employees only when the act is made within the scope of employment. To be considered within the scope of employment, the act must be performed while the employee is engaged in doing business for the employer or activities necessary or incidental to the employers business.

For example if a delivery driver were to hit another car on his way to make a delivery the delivery company who employed the driver could be held responsible for the accident. An employer is not responsible if the employee is acting individually, unrelated to the furtherance of the employer's business. Therefore, if the delivery driver took a detour and got in a fight with a relative the employer would not be responsible for the fight, because it would not be a foreseeable consequence of employing the driver or necessary to the driver carrying out his responsibilities.

gun1.jpgIn this case Maldonado, an off duty New York State Corrections Officer, was driving his own vehicle accompanied by family members when he got into an argument with Chris Anthony Kenner and his brother. At the time of the incident Maldonado was carrying a personal firearm and his badge. At his deposition Maldonado testified that Kenner and his brother had kicked and punched him through the open window of his car, and that when he saw Kenner reaching towards his waistband he drew his weapon. He then testified that Kenner's brother kicked the weapon causing it to discharge killing Kenner.

Maldonado also testified in a related criminal proceeding that he had intended to "cuff" Kenner and his brother and place them under arrest. However, because he never took any affirmative steps to arrest or detain Kenner and his brother, nor did he attempt to stop them when they fled the scene, the Court found that Maldonado was not acting within the scope of his employment when he shot Kenner. The plaintiffs had the burden of proving that there was a triable issue of fact that Maldonado was acting within the scope of his employment. In the Court's opinion, the plaintiffs failed to do this.

Had Maldonado arrested Kenner's brother or ordered the pair to stop while identifying himself as a peace officer there may have been a question as to whether Maldonado's actions were within the scope of his employment. However, because Maldonado was not working at the time of the incident; was driving his own personal vehicle accompanied by family members; was carrying his own privately registered firearm; and did not make any attempt to arrest or detain either assailant, the Court found that he was not acting as a peace officer but in a private capacity. Therefore, the State of New York, as his employer, cannot be held responsible for his actions.

Wood v State of New York, 2014 NY Slip Op 05173

October 20, 2014

Court: Empty Dolly May Create Unsafe Condition When Left Unattended in Store Aisle

In Russo v Home Goods, Inc. the defendant Home Goods, Inc. was accused of creating a tripping hazard by leaving an empty dolly, otherwise known as a "pallet jack" in the aisle of its store. The Appellate Division, Second Department reversed the Supreme Court's finding of summary judgment for the defendant, ruling that a triable issue of fact existed as to whether the defendants had created the unsafe condition.

aisle.jpgDorothy Russo, the plaintiff, was shopping in one of the defendant's Home Goods, Inc. stores when she tripped over the pallet jack. The pallet jack had a shelf on top of it so it could be used to move furniture and other goods around the store. Russo was looking up at lamps on a high shelf when she entered the aisle containing the pallet jack. Several steps into the aisle she tripped over the pallet jack and landed face down on top of it. She testified at her deposition that while she did not know the exact height of the pallet jack it was bellow her knees and close to the ground.

Storeowners have a duty to their customers to maintain their stores in a reasonably safe condition for the benefit of their customers. In order to be entitled to summary judgment the moving party must prove that there are no issues of fact that need to be decided by the jury. When deciding to grant summary judgment, the court must look at the evidence in the light that is most favorable to the non-moving party. In this case the court was required to look at the evidence in the light most favorable to the plaintiff as Home Goods, Inc., the defendant, was moving for summary judgment. The Supreme Court found that because the pallet jack was an open and obvious condition, and not inherently dangerous. Due to this, no triable issue of fact existed to be decided by the jury.

However, the Appellate Court reversed the Supreme Court's ruling because they found that there was an issue as to whether leaving the pallet jack in an aisle where it could easily be tripped over was inherently dangerous. An issue existed as to whether the store had been maintained in a reasonably safe condition. In making this determination, the Court considered that the store had a policy of not leaving pallet jacks unattended in the aisles because of safety concerns. Employees of Home Goods, Inc. had been instructed not to leave pallet jacks unattended and to immediately return them to the storeroom after they had been used. The defendants' manager admitted that the pallet jacks were off limits to customers and that employees had been instructed to keep them in the storeroom specifically because they were a known tripping hazard. The court found when looking to the totality of the circumstances, including the fact that the pallet jack was empty and lay close to the ground, that a jury could find that leaving the pallet jack unattended at the entrance to an aisle could be considered an unsafe condition.

The Court went on to say that just because the dangerous condition created by the pallet jack was open and notorious does not mean that an unsafe condition was not created. The fact that the pallet jack was in plain site in the aisle of the store may mean that the store's financial liability is reduced, but it does not eliminate the store's responsibility to create a reasonably safe environment for shoppers. The Court underlines the fact that the determination of what is a reasonably safe condition is fact specific and cannot be divorced from the circumstances of the event and the specific facts of the case.

Therefore, because the Court found that there was an issue of fact to be decided by the jury, it reversed the summary judgment ruling of the lower court.

Russo v Home Goods, Inc., 2014 NY Slip Op 05529

October 20, 2014

Second Department Overturns Negligent Supervision Case

The Appellate Division, Second Department, in Nelson v Friends of Associated Beth Rivka Sch. for Girls, has held that an emergency room record containing statements made by a preschool student, should have been admitted. This overrules a lower court ruling that the records were not admissible because of doubts regarding the validity of the student's testimony at trial.

monkey bars.jpgLeah Nelson, a preschool student at Beth Rivka Preschool in Brooklyn, N.Y., was injured when she fell from equipment on the school's playground. Her family sued the school in the Supreme Court of Kings County for damages, alleging that the school had not properly supervised Leah. The case hinged on whether Leah had fallen from the monkey bars, which the school admitted were not age appropriate for preschoolers, or from a ladder designed to be played on by younger children. The two teachers in charge of supervising preschool students on the playground testified at trial that the playground's monkey bars are off limits to preschool-aged children, but that Leah had fallen from an orange ladder designed for younger children.

During the trial, Leah's ability to accurately remember the accident and her credibility as a witness were questioned. The defendants questioned her as to whether she knew she was "going to have to . . . talk about the monkey bars" and whether she had been told "what to tell everybody." The defendants also called into question whether she could remember the accident by entering into evidence statements made by Leah at her deposition saying that she did not remember, specifically, what she had been doing when she had been injured. In order to counter these contentions and prove that Leah had fallen from the monkey bars and not the ladder, the plaintiffs attempted to enter into evidence records made shortly after the accident. The records contained statements made by Leah to personnel at the hospital that she had been hurt falling from the monkey bars. The defendants claimed that because Leah had been coached as to what to say and did not remember what she was doing at the time of the accident, the emergency room records should be barred from being admitted into evidence.

Normally, once a witness has been impeached or found to be unreliable or unable to remember the relevant events, similar statements made out of court may not be admitted into evidence. Because of this legal precedent, the trial court did not allow the emergency room records to be admitted and the jury subsequently found in favor of the defendants.

However, in reversing the trial court's decision, the Appellate Court, Second Department has held that because the defendants were claiming not only that Leah could no longer remember the accident, but also that she had been coached after the accident to tell the court that she fell from the monkey bars, evidence that she fell from the monkey bars created before she had any incentive to lie is admissible. Leah's statements to the emergency room personnel recorded in the emergency room records, made shortly after the accident, should have been admitted because at the time she made them there was no incentive to falsify her testimony or opportunity to coach her. The appellate court also noted that the statements made by Leah to the emergency room personnel fall within a well-defined exception to the hearsay rule allowing for statements made out of court for the purposes of medical treatment to be admitted because they are presumed to be truthful. When statements are made, not with subsequent legal proceedings in mind but in order to further medical treatment shortly after an accident, they are considered more likely to be reliable.

The appellate court found that because the case hinged on whether the jury believed Leah's testimony, not allowing the medical records to be admitted might have substantially altered the outcome of the case. Therefore, the appellate court reversed the trial courts decision and the case has been sent back for a new trial.

October 15, 2014

Exemptions from the Scaffold Act

Earlier on the New York Injury Lawyers Blog, we discussed New York's Scaffold Act- officially known as Labor Law § 240 - and how the strict liability imposed on contractors and owners by that law imposes liability upon employers when laborers fall during the course of their work. A related issue is to whom, exactly, the Scaffold Act applies.

To recap: New York's Scaffold Act mandates that contractors, owners, and managers of construction sites provide appropriate safety devices (often scaffolding, though the law allows for other devices) to their workers when those workers are performing construction or demolition work on a "building or structure." The purpose of the law is to protect laborers from falls, or from being hit by objects or people that fall from above. The Act has done much to improve construction safety across New York State.

The law, though, does contain some exemptions - it specifies a certain class of "owners" who need not abide by its provisions. The law, on its face, without considering its other sections, would seem to apply to home construction just as it would to any other. After all, homes are "structures," and oftentimes the laborers working on a home are going to dangle precariously from a great height to perform their work. But Labor Law § 240 also says this: it does not apply to "owners of one and two-family dwellings who contract for but do not direct or control the work." As anyone who has had some work done on their home before and not directly supervised that work knows, this is an exemption that applies often to homeowners.

roof work.jpgThe recent case Sanchez v. Palmiero puts this principle into practice. The Appellate Division, Second Department, did not dismiss the case, for reasons that will be discussed shortly, but it did make one salient point: simply using a portion of one's home for business purposes - say, by adding a home office - does not automatically mean that he or she no longer qualifies for the homeowner's exemption to the Scaffold Act. In Sanchez, the defendant owned a building being worked on by the plaintiff. The plaintiff fell from the roof of that building, was injured, and subsequently sued. The building was a single family home, but was vacant at the time of the incident and had been vacant since being purchased by the defendant. So the issue at bar was whether this vacant structure was a home or a business, and, as such, did the owner need to abide by the provisions of the Scaffold Act?

The court did not fully answer that question, as this was a ruling on a motion for summary judgment. For this case to get to trial, the plaintiff had to first make a "prima facie" case - he had to show enough evidence that there was some kind of violation of the Scaffold Act, and that he was injured as a result. If the plaintiff can do that, and Mr. Sanchez did, the burden then shifts to the defendant to show that he did not have to abide by the Scaffold Act because he was a "homeowner" and thus exempted.

The defendant successfully overcame this burden here, but did not win his case outright. Why? Because the law then grants the plaintiff another chance to show his case should move forward by once again shifting the burden onto him to overcome the evidence put forth by the defendant. If he can do so - and Mr. Sanchez again did so here - he has raised what's known as a "triable issue of fact," and hence the plaintiff has overcome the defendant's motion for summary judgment, and the case can proceed to trial. Here, the "triable issue" was whether the defendant intended for the structure to be primarily residential, or primarily for business.

No doubt, this area can be complicated - the law often is. If you think you were injured as a result of an employer not following the provisions of the Scaffold Act, talk to an attorney who can sit down and hear your story.

Sanchez v Palmiero, 2014 NY Slip Op 04473

October 15, 2014

New York's Scaffold Law, Strict Liability, and How to Read a Law

Often in the context of statutes, regulations, and judicial opinions, particular words have particular meanings, which may or may not conform with their everyday usage in common vernacular. The recent appellate case Kharie v. South Shore Record Management, Inc., provides an example of this principle in the context of New York's Scaffold Act.

scaffold2.jpg"The Scaffold Act" is the colloquial term for Labor Law §240, a New York State law that places a duty on "contractors and owners and their agents" to "furnish or erect" certain safety devices - scaffolds, hoists, ladders, ropes, and the like - for the protection of workers involved in the "erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure." In plain English: if employees are elevated above ground laboring on a structure, employers have an affirmative duty to protect them from falls and resulting injuries.

In Kharie, the plaintiff was disassembling large shelves for the defendant. Mr. Kharie was standing on lower shelves, some 12 feet in the air, and physically pulling out the shelves above him, which were held in place in a "tongue and groove" fashion. Clearly this is a difficult maneuver, with the height at which Kharie was working adding to the difficulty. Mr. Kharie fell from the structure and was inured.

Based upon the statutory interpretation of Labor Law 240, it is of no importance that this was an inherently dangerous activity. Nor does it matter that the plaintiff himself was taking it upon himself to perform this work negligently, or willingly took on the dangerous activity. Labor Law § 240 says that any "structure" being "altered" or "demolished" requires the laborers doing that altering or demolishing to be furnished with safety equipment, oftentimes in the form of scaffolding.

The defendants attempted to argue that these shelves were not "structures" within the context of section 240, and that the plaintiff was neither "altering" nor "demolishing" those shelves as the law would understand it. Both the lower court and the appellate court disagreed with this contention, asserting that the Scaffold Actapplied.

So, what is a legal "structure" for the purposes of the Scaffold Act? Simply put, a structure is a physical object "composed of component pieces" that are "attached in a definite manner." For its part, case law indicates that demolishing can very well include "dismantling," and altering can encompass making any significant physical change to a structure. Clearly, Mr. Kharei was precariously balancing himself on a structure, and just as clearly he was both altering and demolishing that structure.

Above, we referenced that the Scaffold Law is somewhat controversial in New York. One of the reasons for this is that the Scaffold Law imposes strict liability on contractors and owners. According to the doctrine of strict liability, a plaintiff need not show actual negligence - a deviation from the standard of reasonable care - in an action. In this context, he need show only that the Scaffold Law applied to his case (it did) and that the defendant did not abide by its precepts (it didn't). In fact, even if Mr. Kharie had been negligent, it would have had no bearing on the outcome of this case. Strict liability in the scaffold law means that contributory negligence by the plaintiff is not a defense.

Contact us if you were injured and you think your employer did not abide by the requirements of the Scaffold Law - you may be entitled to compensation for your injury.

More on the Second Department decision in Kharie can be found here.

October 14, 2014

The Perils of Volunteerism - A Nursing Home Case Example

hospital bed 2.jpgIn Chahalis v. Sunrise Senior Living Management, Inc., the plaintiff, Ms. Chahalis, was visiting a bedridden relative residing at the nursing home owned and operated by the defendant. During this visit, Ms. Chahalis observed that her relative appeared to be in pain so she tried to summon a nurse. When she found one, the employee accompanied Ms. Chahalis back to the relative's room. The employee then asked Ms. Chahalis to hold one side of the relative's bed. Suddenly and "without warning," as per the appellate court decision, the employee began to lift the mattress and directed Ms. Chahalis to do the same. Ms. Chahalis did so, in part because she thought her relative would fall of the bed if she did not assist the staff. In the process, Ms. Chahalis aggravated a previously existing back injury. She sued the nursing home for allegedly causing this aggravation of her injury.

Ms. Chahalis lost in the lower court. The lower court found Ms. Chahalis to be a "volunteer," and per the relevant legal standard, volunteers may not sue for injuries sustained during said volunteering. The complexity comes in deciding who is, and who is not, a volunteer in the area of tort law.

There is little New York case law on this issue, so it can be difficult to decide when someone becomes a volunteer in the eyes of the law. For example, Bernhardt v. American Railway Express Co., 218 A.D. 195 states:

There seems to be little, if any, distinction between the nature of the duty owed to a person assisting by invitation and that owed to a pure volunteer. The plaintiff, under the circumstances here, cannot place himself in a better legal position than the servant with whom he works. The master is no more liable to him for the servant's negligence than he would be to the servant for the plaintiff's negligence. The defendant had no knowledge of the situation which arose, and could not well have anticipated what happened. The servant, by invitation would impose no new or greater obligation on the master than that which the master owed to him.

The key issue is not, in fact, that Ms. Chahalis willingly agreed to assist the employee. Rather, the issue is who Ms. Chahalis decided to sue: the nursing home itself, and not the employee she assisted. In tort law, there is a concept known as master-servant, which is closely related to the issue of what's called "respondeat superior." In essence, this doctrine makes employers liable for the torts of their employees. Respondeat superior affords an individual wronged in tort the additional remedy of seeking damages from the employer, and not merely the employee who individually committed the tort.

This concept functions somewhat differently if an employee asks you to do something and you do it. This "breaks the causal chain," in legal speak, between the actions leading to your injury and the potential liability of the employer. This doctrine is not used very much in case law, which is what makes Chahalis v. Sunrise fairly unique.

As mentioned earlier, Ms. Chahalis lost in the lower court. On appeal, the Second Department reversed. Unfortunately, the Second Department does not go into great detail as to why the defendant failed to establish that Ms. Chahalis was a volunteer as a matter of law, so we are left to guess. Here, Ms. Chahalis claimed that she only began lifting the bed because it seemed like her relative would fall off, and not because she was asked to. If her actions were caused only by the latter, she'd most likely be a legal volunteer - someone who was asked to do something, and complied. But because Ms. Chahalis managed to introduce some ambiguity as to whether this was the case (lifting the mattress simply to help her relative) her lawsuit will be allowed to proceed to the trial phase.

Chahalis v Sunrise Senior Living Mgt., Inc., 2014 NY Slip Op 03971

October 14, 2014

A Closer Look at a Slip and Fall Action

Slip and fall cases are fairly common in the personal injury litigation world. That does not make them simple or easy, however. A recent slip and fall decision by the Appellate Division, Second Department, can help to detail what it takes to litigate- and win - a slip and fall action.

laundry.jpgIn Francis v. Super Clean Laundromat Inc. the plaintiff, Cherry Francis, alleged that she tripped and fell "over a curled up mat on the floor of a Laundromat operated by the defendants Super Clean Laundromat, Inc., and Guy R. Corporation." Ms. Francis lost in the lower court. She appealed this decision to the Second Department.

Classically, a slip and fall case is exactly what it sounds like: the plaintiff injured him or herself by slipping on some sort of defect or dangerous condition, which was owned or maintained by the defendant. Often at issue in such cases is the cause of that defect. Generally, if the defendant was the actual cause of a dangerous condition, he or she will be held liable. For instance: the defendant spilled liquid on the floor of his store - if someone slips, the defendant will most likely be found liable. In many cases, as in Francis, the issue is not as clean cut. Cases such as Francis illustrate situations in which the defendant did not have actual knowledge of the defect, but rather only should have known about it.

Ms. Francis lost in the lower court because she was, per the court, unable to show that the defendants had either actual or constructive notice of the hazardous condition - in this case, the rolled up mat. So it is undisputed that the defendants, the Laundromat and its owner, did not actually roll the mat up themselves, or place it in a dangerous spot. However, a plaintiff can still win if she can show that the defendants knew about the condition and did nothing (actual notice), or would have known about it if they behaved in a "reasonable" way (constructive notice).

Ms. Francis won on appeal for several reasons. Super Clean attempted to show lack of notice by introducing an affidavit by the general manager stating that he did not know about the mat. However, as the court points out, this affidavit should not have been considered at all, since this manager's identity was not disclosed to the plaintiff during the discovery process. However, the court also found that even if that affidavit had been allowed, the defendants would still have lost. This is a key point in a case like this: the defendants never told the court when the last cleaning or inspection of the area containing the mat occurred.

Let's review that point in a bit more detail. "Constructive notice" means that the defendant should have known about the dangerous condition. If the area they owned or controlled was being cleaned and/or inspected regularly, as any area open to the public should be, the defect would have been discovered and thus could have been remedied. If the defendant had been able to show that they regularly looked over that area and still did not find the defect, they would have won. In that scenario, reasonable care would not have uncovered the defect, which was caused by someone else (perhaps another customer), and thus they should not have to pay.

Here, though, by not showing the court that they performed regular inspections, they were unable to show the level of reasonable care that we would expect a business owner to exhibit. This lack of reasonable care caused Ms. Francis' injury. As you can see, slip and falls are not as simple as they seem at first glance. If you believe that you have been the victim of a negligent owner or operator and were injured as a result, contact our firm - complex cases are our specialty.

Francis v Super Clean Laundromat, Inc., 2014 NY Slip Op 03650

October 10, 2014

What Constitutes a "Trivial" Defect in N.Y. Personal Injury Cases?

In May, the Appellate Division, Second Department clarifyied an issue of law that should be of interest to property owners. Put simply: when someone injures himself or herself on another's property, how liable is the property owner?

gravel.jpgThe case of Grundstrom v. Papadopoulos stemmed from an incident that occurred 2008. Plaintiff, Josephine Grundstrom, tripped and fell while on the premises of defendant Gregory Papadopoulos. At the time the property was being partially rented from Mr. Papadopoulos by co-defendant Delicato Chiropractic. Ms. Grunderson showed up that day for a chiropractic appointment, apparently her first at the facility. A sign on the front door informed her that the doctor's office was in the rear of the building. She dutifully walked where the sign directed her. There was no walkway, but rather a gravel area leading to a brick patio, past which was the building's rear door. Upon attempting to enter the patio, Ms. Grunderson slipped - the patio was deceptively elevated - and injured herself. She sued both the property owner and the chiropractic office. The facts make this a fairly classic "slip and fall" case, otherwise referred to as premises liability.

In the lower court, much of the fight was between the co-defendants, each of whom asserted that the other who was responsible for maintaining that area of the property. Delicato Chiropractic won that argument, with the court finding that this area was not being "used," in the legal sense, by them, and as such responsibility for the area fell on Mr. Papadopoulos.

Papadopoulos claimed that the defect, the slightly raised patio, was "trivial." Under the law, property owners are not liable for injuries resulting from mere "trivial" defects. Many lawsuits, this one included, hinge on the very question of what it or is not a trivial defect.

As the Second Department points out, there is no strict test that determines triviality of a defect. That is, one cannot point to a specific number or dimension. However, the burden of proving such falls on the defendant, because if a defect is found to be "trivial," the defendant wins as a matter of law. Again as pointed out by the court, all aspects of the defect need to be examined in deciding triviality, including "width, depth, elevation, irregularity, and appearance of the defect[.]"

The Court ruled against Papadopoulos' argument. The Court pointed out that he failed to provide any dimensions to the defect at all. So while there is no "magic number" that would prove triviality, as the party with the burden, it was incumbent on Papadopoulos to show that this particular defect was small and nearly insignificant. In many cases, this involves, at a minimum, providing some dimensions to the court so that it may make an informed judgment. Papadopoulos provided only photographs, and the court did not feel confident enough to rule that he had overcome his legal burden.

It is more difficult to prove triviality than it might seem at first. In this case, according to the lower court, the difference in height between the gravel area and the patio was a mere inch, but that was not small enough to make the defect a trivial one. After all, Ms. Grundstrom did manage to severely injure herself regardless of the "tiny" height differential. Perhaps with more substantial evidence Papadopoulos would have overcome his burden, but those are facts for a different case.

For more on this case, see the Supreme Court opinion here, and the Second Department opinion here.

October 1, 2014

Failure to Diagnose or Delayed Diagnosis

Patients who are not diagnosed in a timely manner or not diagnosed at all face a host of potential dangers. They may have delayed treatment, incorrect treatment, or no treatment at all. The consequences of failing to diagnose or a delayed diagnosis can lead to the worsening of an illness, permanent injury, or even death. In any of these instances, patients and their families have legal recourse if in fact there is evidence of medical negligence. Compensation for losses and expenses can be received in medical negligence and/or medical malpractice cases.

How Can I Prove Delayed Diagnosis or Failure to Diagnose?

The most common way that a doctor is liable for medical malpractice or medical negligence is when they dismiss symptoms and fail to diagnose and treat a patient's condition. When a patient entrusts their medical care to their doctor, he or she trusts that the medical provider will take the necessary steps to investigate symptoms, determine what's causing the symptoms, and then diagnosis the true medical condition.

In some cases, a medical provider may make a misdiagnosis or a delayed diagnosis. In most cases, when there is a delayed or misdiagnosis, a doctor can be held liable. The legal question is: what diagnosis would a reasonably prudent doctor, under similar circumstances, have considered as potential cause for the patient's symptoms.

Most doctors are trained to come up with differential diagnoses, in the event that their original diagnosis was incorrect. If a doctor fails to establish a possible differential diagnosis or has one but fails to rule it out, then the doctor will most likely face a medical malpractice claim.

Additionally, doctors may prescribe a treatment or medication for an erroneous diagnosis that ultimately results in worsening of symptoms. A negligence claim can also be brought against the doctor.

Medical Conditions That Are Often Misdiagnosed

xray1.jpgA number of patients suffer a worsening of conditions due to delays in treatment or a wrong diagnosis. Here is a list of conditions that are often incorrectly diagnosed:

Heart attack
Aortic dissection
Pulmonary embolism
Breast cancer
Colorectal cancer
Lung cancer
Testicular cancer
Prostate cancer
Cervical cancer

Difficulties in Proving Failure to Diagnose Cases

Due to the challenges in presenting a medical malpractice claim, you'll need to consult an attorney if you think you were misdiagnosed or received a delayed diagnosis. Proving failure to diagnose can be very difficult for many reasons including:

If the harm you suffered would have occurred even if the doctor had not failed to diagnose your medical problem, you cannot claim that his negligence caused your harm.

You withheld information from the doctor or gave misleading information to the doctor, which might have aided or hindered the doctor's ability to diagnose the problem.

You may not have seen the right specialist.

If the doctor's mistake was one that a reasonable doctor would make, he has not acted negligently and has not committed medical malpractice. In many cases, when a doctor fails to diagnose a medical problem, he may mistake the problem for something else and attempt to treat that. Likewise, if the medical problem is extremely rare, then it may be difficult to diagnose.

New York Attorneys Can Help You With Late Diagnosis Claims

We tend to trust our doctors but even the best doctors make mistakes. If you think you have an injury or illness that doctors made worse, contact our office today. When filing a claim for medical malpractice, it can be a difficult case to prove.

At the New York office of Gallivan and Gallivan, our attorneys have over 40 years of experience helping clients in medical malpractice claims. Our resources allow us to conduct a thorough investigation into your medical negligence claim. We consult with medical experts and specialists, ensuring we have in depth knowledge of your claim. You need medical negligence experts who are effective in representing you. Call us today.

For more information, visit FindLaw.

October 1, 2014

8 Tips for Avoiding a Nighttime Auto Accident

Studies show there are increased incidents of auto accidents during than than during the day. Nighttime driving can be more than annoying. For some drivers it can also be dangerous. Low-light conditions lead to decreased depth perception, ability to distinguish color, and worsening of peripheral vision. Additionally, people tend to be more tired at night. From bad vision to visual distractions, driving after dark requires additional safety and protection measures to avoid accidents.

night drive.jpgBesides keeping your eyes healthy, there are some things you can do to make driving at night safer for you and other drivers on the road. Here are 8 tips if you're on the road when it's dark.

1. Position your headlights.

Is one of your lights pointed lower than the other or uneven? You can manually adjust your headlights to position them so that they don't blind oncoming traffic. Get your owner's manual out and find the instructions on how to aim or position your headlights. It may take some time, but it will save you a headaches and potential accident in the long run.

2. Wear the right glasses

Are you wearing your daytime glasses at night, while your nighttime glasses are sitting on the nightstand? Better yet, have you been prescribed glasses but refuse to wear them? Both can be very dangerous decisions with serious consequences. Your vision has decreased, which is the reason for the glasses.

3. Dim your interior lights

Most instrument panels and dashboard lights have adjusters. Don't position them to the maximum brightness. Instead, opt for a lower level of brightness so that it doesn't distract your visual acuity and negatively impact your forward vision.

4. Don't stare into oncoming lights

One of the worst things you can do is stare into oncoming headlights, especially if they are high beams. The brightness will distort your vision and it will take your eyes some time to adjust back to its original visibility level. Don't blind yourself with the lights by staring directly into them. Look above or on the side of them as oncoming cars pass you.

5. Wipe your windshields thoroughly

Window streaks can magnify and really cause a problem at nighttime. This can potentially blur your vision or cause you to strain to see past the streaks across the window. Try wiping your windshields off with newspaper. A piece of newspaper will polish the glass and help remove streaks and dirt from the windows.

6. Look out for animals

Animals are known for sitting in the road or darting out into traffic at inopportune times, especially at night. Learn how to spot the retinas of animals. Often you can see the glow of the animal's eyes, due to the reflection of your headlights, long before you can actually see the animal. Being able to identify the animal's eyes or retina glow will save you the unfortunate collision with an animal on the road at night.

7. Adjust and clean your side view mirrors

When you clean your windshield, don't forget to clean your side view mirrors. If your exterior mirrors aren't clean, then the glare of the car behind you can make it difficult to see and distort your vision. Try tilting the mirrors slightly down to reduce the amount of light you see from the car behind.

8. Beware of fog lights

Fog lights are purposely positioned low on cars to help you see the actual road when it's foggy because fog lays low. If you drive with your fog lights, remember they spread wider than standard headlights to increase your visibility on a foggy night. However, these lights will also make small rocks, potholes, bumps, etc. look larger.

If you are injured due to an unexpected auto accident at night, contact one of our attorneys experienced in auto accidents and personal injury in New York. We can help you!

For more safety tips, click on this link from Popular Mechanics.

September 23, 2014

Medical Malpractice: A Brief Overview

In 2013, the state of New York led the nation in medical malpractice payouts, issuing $38.83 per capita compared to Pennsylvania (#2 on the list) who paid out $24.76 per capita in medical malpractice. The top 3 reasons for medical malpractice suits are: missed or incorrect diagnosis, negligent surgery, and inappropriate treatment. Malpractice is a major problem and it is important to understand how this impacts you as a New York resident. Here is some basic information on medical malpractice that you should know.

What is Medical Malpractice?

Medical malpractice definitions vary from state to state but generally speaking, medical malpractice is defined as:

• A doctor or other medical, psychiatric, or healthcare professional or institution;
• Breaches his/her/its standard of care when treating a patient; and
• The breach results in an injury or death.

caduceus.jpgMedical malpractice is the failure of a doctor/health care professional or a health care facility to meet the standard of care required for a good medical practice. This can occur at a hospital, nursing home, medical testing facility, or clinic. If a patient feels that accepted medical standards are not met, and suffer harm or injury as a result, then he or she may have a claim for medical malpractice. In the event that a family member dies due to substandard medical care and treatment, a medical malpractice claim may exist for the deceased's survivors. In this event, the medical professional or facility may assume liability for any resulting damages and injuries, some of which can result in lifelong medical bills, loss of income, or even death.

When patients seek medical services, they trust that doctors will perform their duties with care. However, when accidents happen during the course of medical treatment, injured patients and their families often face resistance from insurance companies. Health insurance companies either deny compensation, or pay far less than they should. If you suspect medical malpractice, the best way to protect a patient's rights is to contact a qualified attorney.

How Can a NY Medical Malpractice Attorney Help?

The first step is to retain an attorney who specializes in medical malpractice. Self-representation is not advised due to the extensive research and litigation that medical malpractice suits entail. In a civil medical malpractice suit, plaintiffs bear the burden of proof. Due to this, a qualified attorney necessary to prove that the doctor or facility did not meet a proper level of care, and that actual harm was suffered.

Once retained, your attorney will carefully review the factual circumstances pertaining to the incident. Hospital records, sworn depositions, medical experts, and additional evidence are important when presenting a medical malpractice case. There are two ways to resolve the case: (1) a settlement agreement if the two parties can agree to the amount in damages; or (2) a trial if the parties are unable to agree to a settlement.

In light of procedural and evidentiary requirements, it is best to seek the assistance of a qualified attorney who is knowledgeable about the medical malpractice litigation process. Proving fault in a medical malpractice lawsuit is a complex and difficult matter, however with the right legal counsel a plaintiff has a better chance of accurately and effectively representing the claim.

When Should I File My Claim?

Each state has its own statute of limitations as to how long an injured patient can wait before filing a medical malpractice claim. According to New York medical malpractice law, you have up to two-and-a-half years from the date of the malpractice within which to file a claim. The clock begins ticking for the statute of limitations once the act that caused the injury takes place. This makes it extremely important to contact an attorney as soon as the injury occurs.

Medical Malpractice in New York

If you believe you are a victim of medical malpractice or if you are a family member of someone who has lost their life due to possible medical malpractice, contact our office today. Our medical malpractice attorneys in New York will consult with you regarding your potential claim.

September 3, 2014

Teen Awaiting Manslaughter Trial Arrested Again for Vehicular Assault

Franklin Reyes, a Manhattan teenager awaiting trial for vehicular manslaughter stemming from the 2013 death of a four year old on the Upper West Side, is again in custody after allegedly dragging a police officer 100 feet during a traffic stop. The NY Daily News reports that during the stop, Reyes refused to put his car into park. When the officer attempted to reach inside the vehicle, Reyes sped off. The officer, whose arm was still inside the vehicle, was dragged along the road. The car finally came to a stop, after allegedly almost hitting another pedestrian, when Reyes crashed into a parked car.

When police were eventually able to detain Reyes, he was charged with assault in the second degree (a Class-D felony), unlawful fleeing of a police officer (a Class-E felony), reckless endangerment (a Class-A misdemeanor), reckless driving (a Class-U misdemeanor), and unlicensed driving. These charges, particularly the two felonies and reckless endangerment, could lead to significant jail time for Reyes if convicted. Perhaps more damaging, however, is the fact that the new charges could jeopardize a deal offered by the Supreme Court Justice in Reyes' original manslaughter case. The New York County Supreme Court Justice, the Hon. Gregory Carro, had reportedly agreed to offer Reyes a four year prison term in the manslaughter case.

The News article did not specify when Reyes is due back in court. It did note that Reyes had already been arrested this summer, subsequent to last year's manslaughter charges and prior to the current vehicular assault case. Reyes and his father were arrested on suspicion of looting the apartment of a dead woman earlier this year. These new arrests and charges certainly will not sit well with either the district attorney or Reyes' sentencing judge. The outcome of the trials, as well as the length of any potential prison term that Reyes may have to serve, is unknown at this time.

More on this story can be found here on the NY Daily News website.

August 31, 2014

Two Long Island Men File Lawsuits against GM Over Faulty Ignition Switch

ignition.jpgTwo Long Island men filed separate lawsuits in federal court in 2014 against General Motors over faulty ignition switches in their vehicles. The switches can suddenly turn to the "off" position, causing a vehicle to stall. As a result, a vehicle loses its power brakes, power steering, and the air bags will not deploy in an accident. Thirteen deaths have been linked to the faulty switches, and GM, which knew about the problem for over a decade, has recalled 17.3 million vehicles as the result of the defect.

New Hyde Park resident Dr. Steven Groman filed a lawsuit in Manhattan federal court against GM in April 2014. In the suit, Groman claims that his Chevy SUV shut off four times after he bought the vehicle brand new in 2008. On two occasions, Gorman was driving on the Long Island Expressway when his vehicle suddenly shut off, causing him to lose his power brakes and steering. Although Groman brought the vehicle back to the dealership to be fixed on numerous occasions, auto mechanics were never able to fix the problem. To avoid a serious accident, Groman decided to travel on back roads to go to work to avoid "another shutdown incident in fast-moving traffic." Fearing for his safety, Groman finally traded in his vehicle at a financial loss in 2011.

In June 2014, William Ross, a 65-year-old disabled Vietnam veteran, filed a similar lawsuit in federal court in Central Islip. The suit claims that Ross was in two accidents caused by a defective ignition switch in his 2005 Chevrolet Cobalt. While driving in Levittown in 2012, Ross lost control of his car when it suddenly shut down, causing him to hit a barrier. Ross suffered from "scarring and disfiguring" on his right arm, which is now in chronic pain. The accident caused $6,297 in damage to his vehicle. During a second accident in March 2014, Ross hit a divider on a local road when the key suddenly switch to the "off" position. Ross stated that the dealership told him that his car wasn't part of the ignition switch recall issued by GM. However, a week later, he received a notice in the mail from GM telling him that it was. Commenting on the lawsuit, Ross remarked, "It wasn't because of the money. It's because they [the dealership] lied to my face."

Kenneth Feinberg, an attorney hired by GM to oversee settlement payments related to the defective switched, stated that there is no limit as to how much the company will pay as a result of accidents and injuries caused by the switch. He stated, "GM has basically said whatever it costs to pay any eligible claims under the protocol they will pay it. There is no ceiling."

Website Resource: LI man sues GM over ignition-switch defect, NY Post, Rich Calder, April 8, 2014

Two LI suits targeting GM seek damages for faulty ignition switches, NY Newsday, Tom Incantulpo, July 3, 2014

August 31, 2014

87-Year-Old Long Island Woman Killed after Car Hits Tree

Francine Schenkel, an 87-year-old resident of Ridge, New York, died in July 2014 after the car she was driving veered off the road and crashed into a tree. Quoted in NY Newsday, police officials investigating the accident surmise that Schenkel was traveling northbound on Rocky Point-Yaphank road when she crossed into the southbound lane and veered off into the woods where she hit a tree. Schenkel was the only person involved in the accident, which occurred at 2:45 p.m. near Rocky Point High School, and was pronounced dead at the scene. Her vehicle was impounded for safety checks as investigators try to determine the cause of the accident, which shut down the roadway for several hours.

road.jpgDetective Sergeant William Bundrick stated that it didn't appear that the elderly woman was trying to swerve to avoid hitting something on the road. He stated, "She apparently left the roadway on her own. No one drove her off the road or cut her off or anything. We don't know if it was a medical emergency."

According to the National Institute of Health, elderly drivers often face several health-related challenges that can affect their ability to drive safely. For instance, as people age, their vision usually worsens. They may not be able to see cars or pedestrians from their peripheral vision; their eyes may not adjust to darkness or glaring headlights, making it difficult to drive at night. In addition, elderly people may suffer from hearing loss, making it difficult to hear sirens or horns that may be warnings of an impending collision.

Moreover, as drivers get older, they may experience slower reaction times and shorter attention spans; elderly drivers may suffer from a decline in cognitive function, making them slow to process multiple sources of information which can be overwhelming. In addition, taking multiple medications, including prescriptions and over-the-counter drugs, may also impair an elderly person's ability to drive. For example, certain cold medications may make a driver drowsy, resulting in slow reaction times.

Certain medical conditions that usually affect the elderly may also impact a person's ability to drive safely. For example, Parkinson's disease, a neurological disorder that causes involuntary shaking, may make it difficult for an elderly driver to apply to brakes or hold the steering wheel. A person who has suffered from a stroke may have difficulty controlling their arms and legs and may become easily confused. In addition, arthritis, which affects a person's joints, may make it difficult for an elderly person to hold the steering wheel or turn their head to view traffic and pedestrians. Finally, people with dementia, especially in the early stages, may get lost or become easily confused. As people age, they should talk to their doctors about their medical conditions to learn how they may impact their ability to drive safely.

August 31, 2014

NY Woman Injured after Hair Becomes Trapped in Escalator Stairs

escalator3.jpgA 32-year-old woman suffered serious injuries after her hair become trapped between escalator stairs on July 3, 2013. The woman, who suffers from epilepsy, suddenly lost consciousness while riding an escalator at a subway station at 125th Street and Broadway in Harlem, New York. After her head hit the steps, the escalator kept moving, trapping the woman's hair between the stairs. A nearby police officer who witnessed the accident hit an emergency button to shut down the escalator. The woman lost a significant amount of hair, as well as some of her scalp as a result of the accident. After being freed by emergency responders, the woman was transported to St. Luke's Hospital, where she was treated for cuts to her face, legs and arms. The escalator was shut down for two days after the incident.

Sha Johnson, who witnessed the entire accident, remarked, "She looked like she was passed out. She was wearing shorts and one of her legs was all cut up...I'll probably take the stairs from now on."

According to the U.S. Consumer Product Safety Commission, a governmental agency that oversees the safety of thousands of consumer products and items, approximately 11,000 people were injured in escalator accidents in 2007. A majority of these injuries were caused by falls; escalator steps are higher than regular steps and are not designed to be used like traditional stairs. When people try to climb escalator steps, they are susceptible to trips and falls. Ten percent, or roughly 1,100, of the injuries occur when a person's hand, foot, toes or shoes become trapped between moving steps. In many cases, people who sustained such injuries were wearing soft-soled shoes, such as flip-flops, while riding the escalator.

There are several actions a person can take to avoid escalator accidents. First, a person should never climb escalator steps to avoid trips and falls. Second, a person should only wear hard-soled shoes and ensure that their shoelaces are tied before riding an escalator. In addition, escalator riders should always stand in the center of the step to avoid becoming entrapped on the side of the steps. Moreover, people riding with children should hold a child's hand and make sure the children are not playing on the moving escalator. Riders should always face forward and hold onto the handrail to avoid falling in the event the escalator suddenly jolts to a sudden stop. People should never ride an escalator with a walker, baby stroller, wheelchair or shopping cart. Finally, riders should always be aware of the location of the escalator's emergency button which can be pushed to stop the escalator if an accident does occur. Stopping an escalator can prevent further harm or injuries to passengers.

More on this story can be found at NBC.com and gothamist.