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New City Personal Injury Law Blog

What is the effect of contributory negligence in New York?

In the 19th century courts had to deal with cases in which the defendant in a negligence action alleged that the plaintiff was also negligent in causing his or her own injury. In response, courts devised a rule known as "contributory negligence."

The original contributory negligence doctrine was harsh. It held that if the plaintiff was negligent in the slightest degree, that served as a complete bar to any recovery. Measured in terms of percentages, the defendant could be 99 percent at fault and the plaintiff one percent at fault, and the defendant would win the case and owe the plaintiff nothing.

Change to medical malpractice statute of limitations coming?

The statute of limitations in New York is something that potential medical malpractice plaintiffs need to take seriously. Not initiating your legal claim in a timely manner can lead to the unfortunate result of your claim being barred from consideration. This is what happened in a 2013 case, involving a patient who died after doctors misdiagnosed her otherwise-treatable form of lung cancer but whose surviving relatives waited too long before filing a lawsuit. Their legal claims were accordingly rejected by the court.

The tragedy of that case has led to a movement in the state legislature that has produced a bill known as "Lavern’s Law." If enacted into law, the bill would extend the statute of limitations in cases where the person injured by an act of medical malpractice does not discover the injury right away; the 15-month period in which to file suit would begin not at the time that the injury occurred, but instead at the time that the plaintiff discovered it.

What is a certificate of merit in a medical malpractice action?

So you believe that you have been injured by an act of medical malpractice. You and your attorney both further believe that you have a strong case, and your lawsuit is not barred by the applicable New York statute of limitations governing medical malpractice actions. Everything looks good to file your lawsuit, or so you think. But there is one more requirement that you will need to satisfy before you can take your complaint to court: you will need to obtain, or at least make a good faith effort to obtain, a certificate of merit.

A certificate of merit serves the purpose of pre-qualifying your lawsuit as being valid in the opinion of at least one medical practitioner. Your belief in your case, and that of your attorney, are generally insufficient to meet the state law requirement that you in fact have a good claim for medical malpractice. What is more, the medical practitioner that you work with when making your certificate needs to be one who is knowledgeable in the issues relevant to your claim (that is, you cannot have a dentist certify your medical malpractice claim against a doctor, or vice-versa).

Diagnosis failure: a common source of medical malpractice

Hospital physicians by necessity often work in a high-stress environment in which the ability to quickly assess injury or illness and to determine the most appropriate treatment path is not only highly valued but can also make the difference between between recovery and a worsened medical condition. But on occasion the need for alacrity can lead to a misdiagnosis, a common source of medical malpractice.

In times past the failure to correctly diagnose the source of a patient’s symptoms might have been due to ignorance or even a lack of adequate training, but as the science and technology of medicine have advanced the reasons for making this kind of medical mistake may be because of the increasing range of possibilities based on the same manifestations. Chest pains and shortness of breath may be because of a heart attack, or a gallstone, costochondritis or even mental stress; making the wrong diagnosis can lead to delayed treatment or worse.

Medication errors: another form of medical malpractice

Ordinarily when people hear or read about an incident of medical malpractice it is in the setting of a doctor’s office or a hospital. Which is understandable, given that many kinds of medical mistakes that can happen at these locations, like a misdiagnosis or a surgical error. Based on this perception, if you have visited a hospital for a medical procedure and have returned home without experiencing any problems you may think that you are out of the medical malpractice danger zone. But that belief may be premature.

The system of healthcare in New York actually extends to other locations beyond where you would encounter doctors and surgeons. It also encompasses some locations that are not dedicated solely to medical treatment, such as pharmacy departments at retail stores. Medical malpractice can occur when anyone connected to providing health care services -- even indirectly -- commits an act of negligence.

What are the elements of a premises liability claim?

This post offers only an overview of premises liability law. You should not construe it as legal advice. If you have been injured on the property of another, you should communicate with a New York personal injury attorney to learn more about what remedies may be available to you.

In many situations if you are on the property of another lawfully (that is, with at least the knowledge if not the permission of the property owner), if you suffer an injury while you are there you may be entitled to compensation on the basis of premises liability, which many know colloquially as "slip and fall" liability.

If I am injured in a car accident, how long do I have to sue?

Negligence laws are designed to protect people from distracted drivers who are texting and driving, drunk drivers who are unable to stay in their lane of travel and the driver who is in a too much of a hurry to obey a stop sign. A person injured in any of these and other negligent driver situations might have a right to sue for compensation for the serious injury suffered in an auto accident.

The right to sue for compensation does not, however, last forever. New York places restrictions on the amount of time that an injured car accident victim has within which to file a lawsuit against a negligent driver. This restriction is known as the statute of limitations.

Driver indicted for allegedly causing bus crash that hurt 26

A 37-year-old New York man has been indicted on charges stemming from a drunk driving crash on Interstate 81 that injured 26 bus passengers in November 2014. He faces up to 25 years in prison.

Authorities allege the defendant was impaired on Nov. 6 when he lost control of his car while traveling south on I-81 between I-481 and Onondaga Nation, spinning it sideways. He is then accused of leaving his disabled vehicle in the roadway and walking away from the scene. Soon after, a Pine Hill Trailways bus crashed while trying to avoid a collision with the abandoned car. All 26 people aboard the bus suffered injuries in the accident.

New York accident kills 1 and injures 2

The lengthy investigation of a 2014 three-vehicle accident has resulted in the arrest of a 25-year-old male on April 16. The investigation was conducted by the New York state police and assisted by the Westchester County Medical Examiner's Office, the Westchester County District Attorney's office and other area police departments. The accident resulted in one fatality and left two motorcycles in flames. The man arrested for causing the accident faces a number of charges following a grand jury indictment.

According to the state police, the accused had been traveling south on Sprain Brook Parkway on a 2002 Yamaha motorcycle. Ahead of him, a 2001 Mazda was also heading south. The motorcycle, apparently moving at a high rate of speed, hit the rear of the leading vehicle. The driver of the Mazda lost control of the vehicle and struck another motorcycle, a southbound 2013 BMW, hit a guide rail and rebounded. The 45-year-old rider of the BMW was ejected from his bike and pronounced dead at the scene of the accident, according to emergency responder reports. The accused was also ejected from his motorcycle. He suffered serious injuries and was transported to Westchester Medical Center for treatment. The driver of the Mazda, another male, was also taken to Westchester Medical Center and was treated for minor injuries suffered during the incident.

New York company cited for over 48 safety violations

Employees go to work each day with the expectation that their workplace is safe. Unfortunately, that may not always be true.

Earlier this month, a New York company was cited for over 48 workplace violations. The company, which makes plastic balls used for hydraulic fracturing, allowed its employees to work in an environment that may have compromised their health or led to workplace injuries. Not only did employees work in areas without proper ventilation systems, but they also may have been exposed to chemical hazards.

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