Discovery Phase Of Litigation

For many of my clients, legal procedures and even legal terms can seem like a foreign language spoken in a foreign land. That unfamiliarity can be daunting for them, and every step along the way to litigation, generally, is a new and intimidating experience. It doesn’t have to be that way.

Take, for example, the Discovery phase of litigation. Discovery gets the whole litigation ball rolling, and simply provides both your attorney and the defendant’s attorney with the opportunity to “review” all the facts of the case. That is, it is the point in the process where facts are confirmed, and, sometimes, new facts are uncovered that are central to your personal injury case. The information learned in the Discovery phase has the potential to radically change the strategy and/or direction of each opposing side.

How It All Starts

The first thing to happen during Discovery is the defendant’s attorney responds to your lawsuit. At this point, he or she serves a demand for a Bill of Particulars to your attorney which may include accident reports (in the case of an accident), medical records, and necessary authorizations. Plaintiff’s attorney then typically requests (or serves) a Notice of Discovery and Inspection to the opposing (defendant’s) attorney. This is just a formal way of getting both sides to share all existing information they may have on the case.

Of course, there are basic kinds of information that both sides will require. However, it is my job, as Plaintiff’s attorney, to go way beyond the obvious. For example, suppose my client was injured on a construction site. Typically, I would demand all medical reports, accident reports, witness identification, physician’s narratives, hospital records as well as any police reports. But, what if somewhere there were records of faulty equipment on that construction site? Further, what if the individual or company responsible already was aware of that faulty equipment and thus a potential accident? That is the kind of information that will not always present itself during Discovery, and the very reason your personal injury attorney needs to be more curious and more tenacious than the other side. A knowledgeable Plaintiff’s attorney must always do a thorough investigation in order to properly represent his or her client. Going beyond Discovery can sometimes mean the difference between a successful and an unsuccessful outcome.

After Discovery has been served, Plaintiff’s and Defendant’s attorneys sometimes may object to any demands for information on the grounds that it is irrelevant to prevent a legal “fishing expedition.” Other times, attorneys will ask for more time to respond to requests for more information. The court then sets a preliminary conference or case scheduling order where deadlines are set for the completion of document discovery, depositions and medical examinations.

Injuries From Construction Accidents

In 2012, there were approximately 609 fatalities in construction sites and on maintenance work zones. Although that number has significantly declined in the last 20 years, the number still is daunting. According to the Bureau of Labor Statistics, in 2012, 76 percent of roadway work zone occupational accidents were related to transportation. That is, vehicles involved in roadwork or maintenance caused these fatalities. Although that percentage is troubling, statistics show that falls are the predominant cause of fatalities in the construction industry. From 1995 through 1999, roughly 362 fatal falls occurred, and these numbers continue to rise. It is reasonable to say that construction work carries with it serious risks.

Guarding Against Injuries

Construction sites are incomplete structures. That means there are almost always holes in the floors about to be put in, wall openings, stairs without guardrails, and other hazardous sides and edges that cause fatalities as well as some serious injuries which can be debilitating. Construction site operators should be protecting their workers as well as pedestrians from these inherent risks by taking certain precautions. For instance, for heights over six feet, there should be safety guardrails available. Holes in the floor or the walls should be covered immediately to support employees and equipment.

Workers using scaffolds are particularly at risk for falls, and construction sites should provide guardrails along all open areas, safety net systems and/or personal “fall arrest” systems, particularly for scaffolds above 10 feet.

If you work on a construction site scaffold, you should make sure these safety systems are in use, not only for your own protection, but also for the protection of everyone else on the site. Unfortunately, safety precautions are not always implemented. If they aren’t, that is the responsibility of owners/management.

When construction site safety measures are not in place, whether you are an employee or a passer-by, you could end up seriously hurt. In that case, you may be eligible for compensation.

In fact, in New York, the scaffold law (New York Labor Law 240) is in place to protect construction workers who have been injured due to scaffold accidents. This law assigns the majority of the responsibility for injury not only on property owners, but also on contractors and subcontractors involved in the project. Unfortunately, often construction workers injured on-site are unaware that they are protected by Labor Laws. While, in fact, these Labor Laws exist to provide protection to all areas of the trade including painters, electricians, carpenters, and most other construction specialties.

A major complication that may arise when trying to obtain compensation for your injuries is determining what persons or entities are liable. One construction site may have a property owner, a general contractor, and several subcontractors such as engineers, architects, and electricians, for example.

Sorting through this often long list of potentially liable individuals or entities requires the skill and knowledge of an attorney experienced specifically in construction site accidents and liability. He or she presumably has handled many such cases, and should be quite familiar with Court decisions.

What To Do If You’re Injured

If you are injured as a result of a construction site accident, here are some things to consider:

      To the extent you can, make sure the accident is properly reported at the time and place it occurs;
      Seek immediate medical care; and,
      If you are physically able, try to get the names and contact information of witnesses to the accident and the dangerous or unsafe working condition.

If you or someone you know has been injured in a construction site accident, and you need assistance, contact The Noll Law Firm. We will review the facts to ascertain whether you have a viable claim.

When You Go To An IME

We’ve talked a lot about what an Independent Medical Exam (IME) is, and how most of the time there is little or nothing “independent” about them. After all, an IME physician is either directly or indirectly hired by the defendant’s insurance carrier. That means, he or she has every reason to submit a report that is more favorable to the carrier, and, of course, less favorable to you. That being said, there are things you can do to make the IME go more smoothly for you.

First, take a deep breath. Try to relax. If you go into the IME stressed out, you are liable to say or do something that could harm your case. Be calm and avoid being emotional.

Second, please be punctual. You don’t want to prejudice the examining doctor before he or she even examines you.

Third, do not embellish upon your physical or psychological limitations. There is no need to do this, and exaggerating your condition could very well work against you. Simply be honest.

Fourth, having said that, do not go to the opposite extreme and leave things out either. Tell the examining physician everything that is wrong with you in a calm manner.

Fifth, make sure you know about your medical condition and the treatment you have received inside and out. Be thorough with your timeline and your facts.

And finally, should you feel uncomfortable about going to the IME alone, ask your attorney whether he or she can send a registered nurse along with you. A registered nurse can be in the room, and take notes on (sometimes even audio record the entire examination. Often, just knowing there is another health professional in the room can level the playing field, and make you feel more at ease.

Medical Malpractice In New York

Medical malpractice (negligence) happens when a health care professional provides substandard care to an individual which results in the patient suffering an injury due to that substandard care. Examples of medical malpractice include a misdiagnosis of an illness or injury; inappropriate treatment of an illness or injury; or, neglect or delay in diagnosing and treating an illness or injury in a timely manner – all of which lead to a significant decrease in an individual’s quality of life.

That means that as a result of medical malpractice an individual suffers permanent and severe limitations in his or her ability to work and/or conduct activities of daily living such as bathing, basic grooming, walking, cleaning, shopping – all the things we do on a daily basis to care for our own personal needs.

What Are Examples Of Medical Malpractice?

Some of the most common medical malpractice cases occur during the riskiest medical procedures, such as surgeries, for example. Surgery carries with it inherent risks, i.e., will the surgery solve the medical problem or will it exacerbate it? Usually, though, an experienced surgeon, depending upon the patient’s prognosis and overall health, has a good rate of success. But an error in the operating room, particularly in relation to anesthesia, can be devastating for the patient. Post-surgical infection also can lead
to serious injury, and unfortunately is an all too common result of medical malpractice.

Another common cause of medical malpractice is misdiagnosis. Unlike an accountant who might miss an important deduction, when a doctor misses or fails to recognize a serious medical condition, that misstep can cost a patient his or her life.

Specifically In New York

There are things unique to medical practice cases in the state of New York. For example, New York does not impose a limit on damages. Also, in some states where there is than more than one defendant (party responsible for the malpractice) involved in the malpractice lawsuit, if one of the defendants responsible is unable to pay his or her share of the amount of judgment, the other defendants are legally required to pay the total amount. Not so in New York. In New York, unless a defendant is liable for more than 50% of the plaintiff’s illness or injury, he or she only pays damages proportionate to his or her liability.

New York also limits attorney fees; the fee amounts vary depending upon the amount of money recovered. For example, if the recovery amount is $250,000, the attorney fee is limited to 30%. For the next $250,000, the attorney fee is 25%. Then, 20% of the next $500,000; 15% of the next $250,000; and 10% of anything higher than $1.25 million.

Statute Of Limitations

There are different statutes of limitations depending upon the injury or the age of the injured individual. In general, adults have two and a half years (30 months) from the time the malpractice that caused the injury occurred to begin litigation.

Caps On Damages

Basically, there are two kinds of damages that can be recovered: Economic and Non-economic damages. Economic damages are those financial losses suffered by the plaintiff due to illness or injury as a result of medical malpractice such as loss of a job, medical bills, and lost future earnings. Non-economic damages include subjective losses such as pain and suffering, disfigurement, emotional stress and anguish, loss of companionship. Most states cap (or limit) the amount that can be recovered for noneconomic damages, but New York does not.

The Value Of An Experienced Attorney

Medical Malpractice is a highly specialized area of the law, and these types of lawsuits require highly experienced attorneys. In fact, most attorneys who focus on medical malpractice are extremely well versed in the medical field (some are even doctors, themselves).

Given the difficult nature of these lawsuits, it is imperative to retain an attorney who not only is a highly qualified litigator, but also has significant expertise in medical procedures and terminology.

Head Trauma and Epileptic Seizures

One less talked about result of a severe head trauma are seizures. A seizure is a strong electrical surge to the brain. When seizures become chronic, the medical condition is called epilepsy. Generally, the risk for epilepsy is greater with a serious head wound. Additionally, the link between head injury and epilepsy is not always that clear, as you could suffer head trauma from a car accident and not have a seizure for months or even years. That is precisely what makes this condition so insidious.

Although seizures and epilepsy are somewhat mysterious, medical professionals routinely strive to find the specific cause. Successful identification of etiology improves the diagnosis, the treatment regimen, and the prognosis. Obviously, when you know what you are dealing with, you are better equipped to fight it. However, whenever it is not possible to identify the underlying cause, epilepsy is described by seizure type or referred to as “epilepsy syndrome.”

Classifications

The type of seizures one has as a result of a trauma are referred to as symptomatic seizures; they are a symptom of a serious injury. When genetics is suspected as the cause, the seizures are referred to as primary seizures. And, when there is no obvious cause for the condition, it is referred to as cryptogenic seizures.

What To Do When Someone Has A Seizure

Perhaps because seizures/epilepsy have historically been mysterious, many people simply do not know what to do when they witness someone having a seizure. For example, an old wives’ tale used to advise individuals to stick a spoon in the affected person’s mouth to keep him from swallowing his tongue. WRONG. When a person
is having a seizure sticking ANY object in his mouth can be downright dangerous to him. In fact, the smart thing to do is to remove any objects from the area that could be harmful.

Never attempt to restrain the individual. In an effort to help, by restraining him you could injure him. Rather, just cushion his head to help him avoid any trauma. Also, remember that a seizure must wind down on its own. So, do not try to “snap the person out of it.” The seizure must run its course, and that kind of interference also can be dangerous.

What you can do is stay with that person until the seizure has ended. Try to be as calm as possible, and make certain he has recovered. Remember also that for some people, epilepsy carries with it an irrational stigma. Try to be reassuring, and if a crowd should begin to gather, try to disperse them. No one going through a seizure wants an audience.

Often people suffering from seizures/epilepsy know what to do after an episode. However, if you suspect this is the person’s first seizure, seek medical assistance. In the event that the individual suffers one seizure after another, or he is injured during the seizure, call an ambulance.

Spinal Injuries Aren’t Always Obvious

Some of the most common car accident injuries are spinal injuries. And, often, they are not immediately identified. That is because after you’ve been injured in a car accident, your adrenaline may go into overdrive, masking the pain that you, no doubt, will feel later on. However, it is important to remember that that old adage about it hurting more in a few days often is true. So, it helps to know something about your spine and spinal injuries, and the many parts of the body that can be affected from this type of trauma.

The Spine

The spine is separated into the following areas: the Cervical Vertebrae, the Thoracic Vertebrae, the Lumbar Vertebrae, and the Sacral Vertebrae. The Cervical Vertebrae, numbered C1 to C7, refers to the upper neck. The Thoracic Vertebrae, T1 to T12, refers to the lower neck. The Lumbar Vertebrae, L1 to L5, refers to the lower back. Below that are the Sacrum (S1) and the Coccyx.

In between each bone throughout the spine are spongy or jelly-like discs which enable you to move and also protect the bones – something like a shock absorber. Then, of course, there is the Spinal Cord. The Spinal Cord begins at the base of the brain, and goes down the length of the back.

The Spinal Cord contains nerves that emit sensation from the Spine into the Thoracic region, and affect the chest and abdomen. In other words, an injury to the Spine can affect nearly the entire human body.

Spinal Injury Symptoms

If you’ve been injured during a car accident, some of the symptoms of Spinal injury may include: headache, stiff neck or neck pain, arm or leg numbness, loss of movement in the arms or legs, unconsciousness, loss of bowel or bladder control, or shock. How can so much of your body be affected? Because the Spinal Cord carries messages between the brain and the rest of the body. But, again, sometimes the symptoms do not manifest right away. That is why regardless of how you think you feel after an accident, you need to seek medical attention as soon as possible to rule out any serious damage or injuries.

Common Types Of Injuries

In the U.S., car accidents and motorcycle accidents account for approximately 40% of various spinal injuries. These include neck strain or sprain (whiplash), herniated disc injuries, or pinched nerves (also known as Cervical Radiculopathy).

Neck strains or sprains occur when your neck muscles are severely pulled during impact. Discomfort from these injuries may go away within a few weeks, but also could linger for many months. A herniated disc occurs when the outer fibrous ring of the disc tears and the jelly-like nucleus pulposus squeezes out into the spinal canal.

This may result in pain from compression on one of the nerves. In cases of Cervical Radiculopathy, the nerve may be aggravated by a fragment of the ruptured disc, which may result in numbness or weakness in the muscles.

These common injuries may not be fatal, but they certainly can be life-changing. Some people struggle with pain from these conditions for the rest of their lives, despite medication and physical therapy. In addition, as you age, these conditions may become exacerbated.

So, as discussed, when you’ve been involved in a car accident or motorcycle accident, your injuries are not always obvious or immediate. That is why it is vitally important that you see a doctor right away, and pay careful attention to how you are feeling days, weeks and even months afterwards. In addition, it is prudent to seek the advise of a knowledgeable personal injury attorney. Should you have long-lasting effects from an injury that was not your fault, you are entitled to compensation.

Children And Personal Injury Lawsuits

It is difficult enough when adults are injured due to someone else’s negligence. But, when a child is injured, the result can be even more heartbreaking, and there generally are different laws applied to minors when filing a personal injury lawsuit.

First, it is important to understand that children and adults are not held to the same standard in the eyes of the law. Although laws vary from state to state, mostly, states adhere to the “Reasonable Child Standard of Care.”

That simply means that a minor person is not expected to be held to the same standard of “reasonableness” as an adult. Rather, a child is compared with other children of the same age; his or her behavior, intelligence, and experience is measured against similar behavior of children of the same age to determine “reasonableness.”

There are situations in some states where if a child is engaged in a typically adult activity, he or she may be held to the adult standard of care. But, by and large, children are treated differently, under the law.

Second, unlike strict statute of limitations applied in personal injury claims brought by adults, in New York, the statute of limitations clock for filing a personal injury lawsuit does not begin until he or she turns 18 years old. Generally, that would give the injured minor until age 21.

The flip side of that, of course, is that if a child sues for damages, he or she may not
receive a monetary award until age 18. Courts may make exceptions for medical bills, however. In that instance, reimbursement for medical expenses may be paid to the parents or guardians of the injured child.

It is always prudent to seek the counsel of an experienced personal injury attorney who
can answer all of your questions, and advise you of the best path to take to recover well deserved compensation for your injured child.

If You’re Behind The Wheel, You’d Better Get Off The Phone

We all know the risks associated with driving while intoxicated. But with the advent of smart phones, the risks associated with cell phone use is rapidly becoming just as dangerous. Recently, the Governors Highway Safety Association (GHSA) published a report stating that teenagers are the drivers most likely to be distracted with cell phone use, causing serious accidents and sometimes fatalities. Further, 57 percent of those killed because of this recklessness are teenage drivers, themselves.

“Teens have the highest crash risk of any age group, and research confirms that distraction is often a factor,” said GHSA Executive Director Jonathan Adkins. “Eliminating distraction caused by electronic devices and passengers, two of the main culprits for novice drivers, is essential, and back to school season is the perfect time to share this message.” “When it comes to distracted driving, we are particularly concerned about young drivers,” said Chris Mullen, Director of Technology Research at State Farm. “Inexperience behind the wheel, combined with the many distractions teens encounter, can have serious consequences.”

However, to be fair and honest, teens are not the only drivers guilty of cell phone use while driving. During any given rush-hour, working adults can be seen connected to their devices while driving. Cell phone talking and, especially texting, has nearly become an epidemic on the road, causing needless fatalities. And often, more experienced drivers also are more overconfident – they think they can manage to talk or text without a problem. Statistics tell us they can’t.

Law enforcement has taken notice and is on the look-out for anyone, teen or adult, on the phone while on the road. For example, now in New York, if you are under 21 and get pulled over for cell phone abuse, you will face a 120-day license suspension for the first offense, and one year for the second. If you are an adult and get more than 11 points on your license in an 18-month period, your license can be suspended.

Of course, these penalties mean nothing when weighed against the potential tragedies this recklessness can cause to an injured party or to his or her family members. Hopefully, the preventive measures put in place by the GHSA will have a positive effect and cut down on the senseless accidents caused by cell phone use and abuse. But, if you’re ever injured in a car accident and suspect that cell phone abuse is the culprit, look for witnesses to the accident, take down their contact information, and most of all, let your personal injury attorney know your suspicions.

Traumatic Brain Injury – Don’t Ignore The Symptoms

Each year, approximately 1.7 million Americans sustain traumatic brain injury (TBI). According to the Centers for Disease Control, 275,000 are hospitalized and 1.365 million (almost 80%) are treated and released. However, 52,000 Americans die from Traumatic Brain Injury annually – that’s over 30% of all injury-related deaths.

Types Of TBI

Severe head injuries are those caused by penetrating, open wounds to the head. In many cases, the skull has been crushed or fractured. These are injuries that might occur during a serious car or motorcycle accident, during an extremely violent assault, or during a construction accident. When severe head injuries happen, there usually is no debate as to whether the victim needs a doctor. Usually, an ambulance is called without hesitation.

However, the more common type of traumatic brain injury, a concussion, can be deceiving. A person can suffer a concussion as a result of a serious blow to the head (in which case, most often he or she would be rushed to the hospital). Or, someone can suffer a concussion from a seemingly harmless trip and fall accident. Herein lies the danger. Too often, people think: ‘I’m ok’ or ‘I’ll see how I feel later on.’ The problem is, later on might be too late.

Know The Symptoms

The best way to protect yourself from underestimating the seriousness
of a concussion is to know the symptoms including:

  • headache;
  • slurred speech;
  • vomiting or nausea;
  • problems with coordination;
  • dilated pupils;
  • blood from the nose or the ears;
  • fatigue or drowsiness;
  • numbness.

In more serious concussions, an individual might experience a seizure, appear confused or disoriented, or actually lose consciousness.

What To Do When You’re Injured

The insidious thing about TBI is how it often can go unnoticed. An individual could trip and fall, get up, and feel relatively normal. Then, hours or even days later the symptoms may manifest. Last year, actress
Natasha Richardson had a skiing accident and later died because she didn’t recognize the seriousness of her accident. Unfortunately, she waited hours before getting medical attention. The bottom line is: whether you suffer a mild or severe head injury, always seek medical attention. Most people fully recover from mild head injuries. But there are instances where people are more seriously hurt than they realize. Playing it safe can save your life.

Injured? You Just May Need A Lawyer

Imagine that you’re stopped at a red light. From your rearview mirror you see a large SUV approaching that doesn’t appear to be slowing down. Suddenly, you’re hit from behind. The first thing you do is make sure you still are in one piece. You seem to be, but when you attempt to move, everything hurts.

The driver who hit you also is traumatized. He is apologetic, so you assume he will be cooperative if your injuries require compensation. You are taken by ambulance to the nearest hospital where doctors discover you’ve suffered several fractures, and begin scheduling tests to rule out traumatic brain injury. There could be permanent damage. This happens every day.

The unfortunate fact is that when you are injured as a result of someone else’s negligence, it can be difficult to obtain the compensation you deserve. Too often, the individual responsible for your injuries ultimately will not admit culpability. You simply cannot count on insurance companies to fulfill their obligations – insurance companies are not in business to compensate you for your suffering; they are in business to make money and save it whenever and wherever they can.

That leaves you with the burden of proving that you
were injured due to someone else’s negligence. Facing this situation without legal counsel puts you at a tremendous disadvantage. You can be certain that the insurance company you seek compensation from has their own attorneys, and their goal is to get away with paying you as little as possible, if at all.

Level The Playing Field
The only way to level the playing field is to find yourself a knowledgeable personal injury attorney. First, a knowledgeable personal injury attorney knows whether you actually have a case. He or she will help you to sort through the details of your accident or injury to determine whether:

  • you have a serious injury;
  • your injury or condition was a result of some- one else’s negligence or your own negli- gence;
  • you have medical substantiation;
  • the responsible party has adequate liability insurance.

Your attorney prosecutes injury cases and negotiates with insurance carriers on a daily basis – that is the nature of this area of law. He or she is in a much better position to obtain a favorable settlement, and guide you through the difficult process of litigation and try your case to verdict, if necessary.

There Are Different Kinds Of PI Attorneys
All personal injury attorneys do not focus on the same areas of the law. For instance, some focus
exclusively on auto and motorcycle accidents; some focus on product liability or construction accidents. Other personal injury attorneys focus solely on medical malpractice, and within that category, there are sub-categories.

Make sure to interview your prospective attorney, obtain references, if possible, and make sure that he or she has experience with your type of injury or condition. After you’ve made your decision, make sure to be absolutely forthright with your attorney, as the details of your case can mean the difference between a successful or unsuccessful resolution.