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New City Personal Injury Law Blog

Legal doctrine that helps plaintiffs in premises liability cases

We previously reviewed the elements that must be proven for a person seeking compensation for injuries to succeed in a premises liability case. One of those elements is negligence on the part of the owner or person in control of the premises.

Under the theory of res ipsa loquitor, an injured party may be able to rely on a presumption of negligence to shift the burden to the defendant to prove the absence of fault. The phrase is Latin translates to “the think speaks for itself.”

Do workers' compensation claims prevent third-party lawsuits?

Workers’ compensation laws were enacted to protect you in the event of a workplace injury accident. Instead of having to pay medical expenses out of your own pocket and sue your employer for reimbursement and for lost wages, states came up with a better system.

A worker in New City who suffers a repetitive stress injury or who is a work accident victim may now file a claim for workers’ compensation benefits instead of having to sue an employer. Benefits payable to or on behalf a worker include medical expenses, full or partial disability compensation, and lost wages. 

What kinds of benefits are available under workers' compensation?

If you are employed, then you are probably already aware that if you are injured on the job or fall ill to a work-related sickness then you are likely covered by New York's system for workers' compensation benefits. But what exactly do those benefits cover? 

Part of having workers compensation benefits available is knowing whether you qualify and how to apply for them; another key consideration is understanding which benefits you are entitled to. If you have questions about what benefits you can make a claim for, or need assistance in making the claim itself, then a law firm that practices in the area of workers compensation benefits law can assist you.

Hospital negligence often accompanies medical malpractice

You may already be familiar with with the legal concept of medical malpractice, which occurs when a health care professional acts in a negligent manner and thereby causes harm to the patient. There also exists another possible cause of action whenever a medical malpractice situation occurs, which is known as hospital negligence. Hospital negligence is a distinct claim that is often raised in connection with a medical malpractice lawsuit, although it does not depend on an underlying act of medical malpractice and may be brought independently.

The concept of hospital negligence is that you can be harmed in a health care setting under theories based more along the lines of premises liability or agency law. For example, a business -- and most hospitals, clinics, doctors offices and pharmacies operate as businesses -- owes a duty to its patrons to protect them from foreseeable injury. Likewise, a health care facility owes patients a similar duty of care to protect them from foreseeable harm.

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.

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