Nursing Home Abuse & Neglect

Of all the personal injury cases that occur, perhaps the most disturbing are the ones that happen to the most vulnerable including children and, of course, the elderly. According to the Centers for Disease Control, in 2014, there were 1.4 million residents living in 15,600 nursing homes throughout the U..S. Of those 15,600 nursing homes, nearly 70% are privately owned. Oftentimes, the assumption is that a privately owned facility provides the best and most “luxurious” care, but apparently, that is not always the case.

In fact, according to the National Center on Elder Abuse, in the year 2000, one study revealed that 44% of nursing home residents interviewed at 2,000 separate facilities said they had been abused. And 95% said they had been neglected or seen others neglected. In New York, alone, many thousands of elderly individuals live in nursing homes. Most of the time, they, together with their families, have researched many facilities and decided on the ones that best meet their life styles as well as their budgets. What should be a comforting environment and a chance to live out their lives stress free often becomes a terrible experience; for some even a nightmare.

The fact that the overwhelming number of nursing homes are privately owned and run can lead to those facilities putting profits before the well-being of the residents in their care. Like many other for-profit organizations, private nursing homes may sometimes seek to cut back on expenses which may lead to inadequate staffing, unqualified staff, inadequate maintenance and cleaning; a shortage of proper medical equipment, and even much-needed prescription drugs.

As a result, there have been countless cases of elderly individuals who have suffered serious medical conditions and injuries; injuries even leading to death. Bedsores, bruises, lice, broken bones, poor hygiene, sudden weight loss – all are signs of neglect or abuse. In instances where the individual is lucid and aware of his surroundings, he is able to communicate the poor living conditions to his family members who then may take action. However, not every nursing home resident is capable of alerting their families; and some residents have no families at all. In the most tragic cases, some die due to neglect.

If you or someone you may know has an elderly parent or family member living in a nursing home facility, be vigilant. Visit often. Take care to notice the physical and emotional state of your loved one. If you are not satisfied, remove him or her immediately. If he or she has suffered an injury, contact a knowledgeable personal injury attorney for advice. You CAN hold the facility accountable.

What To Do If You Are A Victim Of Hit & Run

First, you must make sure the accident is reported to the police. Then, like you would in any other accident, attend to your health. If you are able, make sure there is an emergency medical team there to make sure you are alright and that you are in stable condition. If you can, take note of any witnesses to the accident and try to get their names and contact information.

After you are stable, make sure to let your own insurance company know what happened. If you obtain the license plate number of the driver who hit you and took off, be sure to give it to the police.

If you have the presence of mind, try to remember what the vehicle that hit you looked like – color, make, model – any details you can take note of will be helpful later on.

When an individual has been injured in a serious hit and run accident, it can be a very emotional experience. Many times, your judgment as well as your perception of exactly what happened during the accident can be affected. That is why the best person to discuss the accident with always is your attorney. He or she can help you to sort through the details, and focus only on the facts of the case.

What Compensation Can I Expect?

If you have insurance, you will be covered under No-Fault insurance. If the individual or entity that injured you is unknown, thus uninsured, you then may be able to obtain compensation underNew York laws. Recoverable damages include pain and suffering; medical expenses; and wage loss in excess of the No-Fault payments.

But, It’s Mostly Their Fault . . .

In the state of New York, when you are the injured party, if you sue for compensation, your own culpability will always come into question. No matter how unfair that might seem to be, the law requires that we all bear responsibility for our actions. If you are walking on an uneven sidewalk, for example, and you trip and fall, opposing counsel on behalf of the insurance carrier can look through your medical history and find that you must wear glasses in order to see properly.

If you were not wearing your eyeglasses during the accident, they might point to your poor eyesight and your own “negligence” for leaving the house without your glasses as a contributing factor in the accident. Or, if you are cut off and hit by another car, and an investigation finds that you were driving above the speed limit, a carrier can attempt to say that you had a part in the accident.

How does that affect the amount of compensation you get? It allows an insurance adjuster to review the incident and assess fault percentages to you and the person or entity responsible and could lower the amount of money you receive. Let’s say that he/she assesses that your “negligence” in failing to wear your eyeglasses contributed at least 10% to your trip and fall accident. That could mean that instead of receiving a total of $20,000, you would receive $18,000 – $2,000 less than full compensation. Or, if you were cut off and hit as a result, that 10 miles an hour you were going over the speed limit could mean you get 20% less compensation.

This shared fault is called “pure comparative negligence rule,” and whenever possible, opposing counsel will try to use it. Your first line of defense, of course, is to make sure to drive the speed limit. But after the fact, make certain you disclose all of these details to your personal injury attorney. If you know you were speeding, tell that to your attorney. If you know you left the house without your eyeglass, tell your attorney.

While you may receive a small percentage less than you feel you are entitled to, in the end, nothing more adversely affects the outcome of your case than failing to be completely honest with the person representing you.

Help, I Need A Good Personal Injury Lawyer!

If you’ve been injured due to someone else’s negligence, and you feel you deserve compensation, the next step is choosing a good lawyer. That is not as simple as it may seem. Yes, you have many choices. But, there are some specific things to consider when retaining legal representation.

The first place to look is to friends or acquaintances. Ask them about their experiences with their attorneys. And, of course, find out if they won their cases. An important consideration when selecting an attorney is to find out whether he or she has the experience necessary to navigate New York personal injury law. The law is constantly changing, and an experienced attorney will stay abreast of those changes, making him or her better equipped to represent you.

Make sure that you specifically go to a personal injury attorney and not to an attorney in general practice. An attorney who focuses solely on New York personal injury law is in the best position to present your case; he or she undoubtedly will have an in-depth knowledge of that area of the law. When interviewing attorneys, try to ascertain whether he or she has sufficient court experience. Does he or she have experience negotiating with insurance carriers, handling settlements, investigating the facts of the case?

Honesty. A knowledgeable, honest personal injury attorney will do a realistic assessment of your case. If she does not believe you have a viable claim, she will say so. Beware of any attorney who seems to promise the moon. Remember, it is hard to deliver the attorney advertising moon. I, myself, have been in the position of advising potential clients when they don’t have a strong case. The last thing an honest, ethical personal injury attorney wants to do is give you unreasonable expectations.

Also keep in mind that a successful personal injury attorney needs to have access to experts – medical experts, vocational experts, accountants, sometimes engineers, among many others. These experts and their opinions can make or break your case, so your attorney should have them at the ready to conduct medical evaluations, accident forensics, and other valuable evidence.

Finally there needs to be a connection between you and any attorney you are about to trust with such an important part of your life. You will need to feel comfortable enough with him or her to share personal details of the incident that caused your impairment, as well as the effects of your impairment. Your attorney should be responsive, and keep you abreast of what is going on with your case. You should not have to make several phone calls to his or her office before receiving a call back.

I Feel Like They Are Watching Me

When you are involved in a personal injury lawsuit, there always is a chance that the insurance carrier is monitoring your comings and goings. The carrier seeks to “catch” you doing something that, according to your claims of disability, you should be unable to do. I cannot tell you how many times my clients have contacted me in near hysteria, suspecting that they have been spied on.

Sometimes, they are correct, and I then obtain a copy of the video surveillance that the carrier says “proves” my client has no substantive or lasting injuries. However, I always tell my clients that one video merely is a snapshot in time. That is, when it comes to disproving a serious injury, generally, a carrier needs far more than a mere video showing my client carrying a bag of groceries, for example.

Something that can complicate a personal injury case is when a client who really is seriously injured, overstates his impairments. For example, someone falls as a result of a faulty pavement. He hits his head on concrete and as a result is left with chronic headaches and hearing loss. Then, during a deposition due to stress or fear of not being believed, he embellishes on his condition. Now the client’s embellishments are part of the record, and he is perceived as being more disabled than he actually is. When an insurance carrier surveils him, they might catch him in an activity that defies his stated disability. Therefore, even though the client was seriously injured and is deserving of compensation, the video negates some of his claims. By overstating his physical limitations during his deposition, he now appears to have lied. That is never good for a personal injury lawsuit.

I always tell my clients, if I decide to take your case, I do so because I believe you have serious, long-lasting injuries. There is absolutely no need to exaggerate how hurt you are; how impaired you are; or, how your condition has limited your activities. The truth rules, as it usually does. If you have suffered a serious injury, that does not necessarily mean that you are bedridden. People with physical impairments often continue to function, even though they struggle with limitations.

But, Insurance Carriers Are Not In It For You . . .

Let’s face facts – insurance carriers are not looking forward to giving you compensation, no matter how many impairments you have suffered as a result of negligence. They most often will look for any and every way to fight the lawsuit and to prove there is “nothing wrong with you.” Proving them wrong is my job. Even clients who do not embellish and who are completely forthcoming during their depositions are at risk of being spied upon. That is why you should always be aware of your surroundings. It is better to always assume someone is watching than to be caught by surprise.

But, even if you are being watched, it is not the end of the world. If you tell the truth, the whole truth and nothing but, it makes my job a whole lot easier. Remember, one video, providing you are simply going about activities of daily living and not jumping on a trampoline, doesn’t harm your case all that much.

If you suspect you are being watched, make sure to let your attorney know as soon as possible. He or she will know how to respond and how to defend you during your personal injury lawsuit.

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.”


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.