Blog: Personal Injury
Protecting Yourself & Your Personal Injury Claim
There are millions of personal injury cases & claims pending today in our courts and with the multitude of insurance carriers out there. Many Claimants (those injured with claims) or Plaintiffs (those injured that are now in a lawsuit in Court) happen to be their own worst enemies when it comes to the success of the end result. There are several things one can do to protect yourself and your claim. While the following is not exhaustive, it provides some guidance.
ALWAYS TELL YOUR LAWYER THE TRUTH: Trust is the key to the attorney-client relationship. You must be upfront with your lawyer about what happened to you and what impact it has had without exaggeration or dishonesty.
STAY OFF OF ALL SOCIAL MEDIA: This can and will hurt you. Silence on social media will be your friend. Any details posted on-line are open game to defendants and their insurance carriers who seek to limit or halt your financial recovery. Travel, activity level and social calendar are all fair game when insurance carriers seek to discredit you.
LIMIT CONVERSATIONS ABOUT YOUR SITUATION/FACTS & INJURIES: Silence is golden. Anything that you say or do can and will be held against you by the adverse insurance carrier who is trying to keep compensation for what was lost from you. It is important to limit who or what is discussed about how your injury occurred and what impact it has had on you. Save this for the litigation when it matters most. Any non-party witness can be called in to answer questions about what you and the witness discussed including but not limited to how the injury occurred and what injuries were sustained. In particular, in no circumstance should you provide a statement to the offender’s insurance carrier or investigator sent out to set you up in bad story.
MIND YOUR OWN EXPECTATION: Not every case is a worth a million dollars. In fact, most are not six or even seven figure cases. The majority of cases/claims are resolved for compensation adequately tailored to even the scales of justice. Sometimes expectations are unrealistic when it comes to value, meaning what the case is worth. Generally, there is a consensus amongst attorneys, negotiators, insurance carriers and their adjusters about value range. Expert costs, discovery, motions and investigators all take time and money. This time and money costs are factored into the value of your case since most expenses of the litigation or claim flow to the client. If the cost of an expert outweighs the value of the case then a cost-benefit analysis must be done. From the outside, the case value may seem skewed however to do those that do this day in and day out, the value is the value, absent other extraordinary circumstances.
OBTAIN IMMEDIATE & FOLLOW UP MEDICAL CARE: If you are injured you must be able to show it through medical documentation. If your injuries are from a car crash then No-Fault Benefits are yours upon timely application (30 days from crash) thus the benefits are part of your own car insurance premium & policy no matter who was at fault for the collision. If you were in a car wreck, Strict Serious Injury Laws are followed in NY. If you are hurt in a car crash, you must have a serious injury to qualify for compensation and that is usually accomplished through medical records. Your injuries must be documented and you must take care of the injury to enable a recovery.
TAKE PHOTOS OR VIDEO: Help yourself by taking video or photos of the injury causing condition and/or the injuries themselves which may on paper not look as impressive as the bruising, swelling, scaring or hardware.
The above are just a few suggestions to help you with your personal injury claim. The attorneys here at D/F are waiting to assist you with your personal injury claim. After years of experience, we know what it takes to be successful. Please call me today if you or a loved one has a personal injury case or question.
When Injured, Contact an Attorney Immediately to Avoid Your Claim Being Denied as Untimely
Whenever you are injured in any manner, by the actions of the State, County, Town, Village or any other governmental entity, department or agency, you must file a Notice of Claim within ninety (90) days of the date of incident which caused your injury. For example, if you are injured as a result of a pothole in the roadway or a broken sidewalk, or a collapsing sign, you must file a Notice of Claim with the governmental entity that is responsible for maintaining those particular areas. Please keep in mind that it is not only the State, County, Town and Villages that require Notice of Claims, but so do their individual departments as well. As such, if you are injured as a result of the actions of a school district, that school district requires a Notice of Claim. Similarly, if you are injured as a result of the actions of a fire department, police department, water department, building department, etc. they also all require a Notice of Claim. If you are unsure as to whether or not the party responsible for your accident and injuries requires a Notice of Claim, please contact an attorney.
The reason the Notice of Claim is so important is that it is a prerequisite before you can actually file a Summons & Complaint against that particular governmental agency. This Notice of Claim document describes the date, time and location of the accident. It also describes in detail how the accident occurred, your injuries sustained from this accident and how the governmental entity is responsible for the accident and resultant injuries. The information contained in the Notice of Claim allows the governmental entity to conduct an early investigation into your accident. In fact, as part of this investigation you may be (not always) required to testify at a hearing about the facts surrounding your accident, your injuries, medical treatment received for your injuries and any limitations you may have from said injuries. If you fail to file this Notice of Claim or submit it more than ninety (90) days after the incident, your claim may be denied in its entirety for being untimely. However, the late filing of a Notice of Claim is not always fatal because an attorney can make a motion to the Court requesting the governmental agency accept your late Notice of Claim as long as the Statute of Limitations has not expired. Unfortunately, oftentimes the Courts reject your application to file a late Notice of Claim, thus, to avoid any risk of failing to comply with the ninety (90) day Statute of Limitations, it is strongly recommended that you see an attorney immediately following your accident, if possible. I hope you never have an accident. However, if you do, be smart, protect yourself and see an attorney to make sure that all proper procedures are followed.
Serious Injury Threshold: 90/180 Days
Under the New York Insurance Law, in order to sustain a personal injury lawsuit for pain and suffering, you must prove that you have a “serious injury.” Under the Insurance Law, there are nine (9) categories of serious injury. Eight (8) of the categories discuss specific injuries or limitations. If the first eight categories cannot be met, an injured party may still recover for suffering serious injuries under the 90-180-day category.
The 90/180-day category requires a demonstration that the party has a medically determined injury or impairment which prevents him or her from performing all of their usual and customary daily activities substantially for not less than 90 days during the 180 days immediately following the injury. The words “substantially all” mean that the person has been “curtailed from performing his usual activities to a great extent rather than some slight curtailment.”
Under this category, an injured party must be restricted in performing substantially all of his or her usual and customary daily activities for any 90-day period during the 180 days following the accident. The 90 days does not have to be consecutive. The most common way to meet the requirement is by showing disability from work for the 90/180 days.
A doctor must provide objective medical evidence of a medically determined injury or impairment of a non-permanent nature which prevents the injured party from performing all of the material acts which constituted their usual and customary daily activities for not less than 90 days out of the 180 days immediately following the accident. This will require disability notes from the treating physician.
To learn more about whether you meet this requirement of serious injury or any of the other eight categories, please contact Davis & Ferber.
NY Dog Bite Law – Bites: Fails to Protect Those Injured
BITE Law requires a showing that the attacking canine had some prior vicious propensity to harm. This law is terrible for those hurt due to a canine attack. The insurance carriers, courts and legislature have done much work here to protect the rights of the dog and owner but not much for those injured.
Don’t get me wrong, my family and I love dogs as much as the next dog lover but NY law does little to protect those injured in dog attacks. Winning a dog bite case in this State comes with hurdles. New York is
well behind the times in this area yet the victims are often young or infirm (unable to defend themselves) against the attack.
In New York, a victim of a canine attack must prove that the owner knew the dog was dangerous. Admission by the owner that their family pet was vicious is tough to come by at a deposition. However, this can be shown in several ways including:
- Prior attacks/conduct.
- The nature of the breed (certain breeds account for most attacks)
- Type of ownership (is the dog for security? Bred to fight?)
- Manner in which the dog is maintained and cared for (does it require a choke, type of choke collar?)
- Lastly, the severity of the injuries to the victim.
Dog Bite cases are common yet the law is against most victims. Just because a dog bit or attacked you does not entitle you to compensation. You must be able to prove that the canine was known to the owner to be a bad doggy.
At Davis & Ferber, we take the bite out of NY law by obtaining veterinarian records, adoption paperwork (if applicable), contacting the State and local officials regarding prior incidents and complaints about the offending canine in overcoming the anti-victim laws.
Please call 631-543-2900 today if you or someone close to you has been a victim of a dog attack.
Be careful what you put on the Internet – it can hurt your personal injury settlement.
A Judge in Suffolk County Supreme Court recently held that social networking sites containing information about you, put on the internet by you, are accessible in certain cases, regardless of whether or not you employ privacy settings. This includes access to deleted or archived materials, meaning that a plaintiff has to provide access to their pages on such sites. In Romano v. Steelcase Inc., Defendant sought access to Plaintiff’s current and historical Facebook pages and accounts, including all deleted pages and related information. Plaintiff refused to provide the requested access. Plaintiff was ordered to provide Defendant with authorization to allow the review of the materials. The Court ruled that there shall be full disclosure of all matter which is material and necessary to the defense or prosecution of an action. This is consistent with the general policy of New York courts allowing disclosure.
The same result has been held consistent throughout the country in a number of similar cases as well as in Canada. Not only has social media content been the subject of disclosure, but so has the actual amount of time logged into a particular website. In Bishop v. Minichiello the Defendant’s motion for production of plaintiff’s computer’s hard drive, so it could analyze how much time Plaintiff spent on Facebook, was granted.
What happened to our right to privacy? The Courts are consistently ruling that production of entries on Facebook accounts would not violate rights to privacy, and any such concerns are outweighed by the need for the information. Whether one has a reasonable expectation of privacy in internet postings or e-mails that have reached their recipients has been addressed by the Federal Court – Second Circuit, which held that individuals may not enjoy such an expectation of privacy in this context. Recently, a proud dad, who happened to be a plaintiff in a personal injury lawsuit, was ordered to turn over video/stills of him dancing at his daughter’s wedding when he claimed to be disabled from work and certain other pleasures of life. The defense simply went to the father’s social media sites, saw what he was up to, and discovered that not only had he been dancing at the wedding, but then went on vacation despite his sworn testimony that he could not sit or stand for more than ten minutes at a time.
For as much as we embrace social networking and media, be careful. Better yet avoid it all together, if possible, especially photographic, video or any content that can be deemed adverse to a position on damages taken in the course of a lawsuit.
SAGARESE, FRANK vs. CITY OF NEW YORK
Our firm handles many personal injury claims/cases for law enforcement officials (outside of Workers’ Compensation as you can generally have both claims). A recent decision of interest is found in SAGARESE vs. CITY OF NEW YORK 0156846/2014, where a New York City Harbor Unit Police Officer was hurt when he tripped and fell on a gangway near a launch site. As the Officer was carrying a surge tube to a boat his foot caught the raised edge of the gangway causing him to fall. Plaintiff brought a negligence as well as a claim under General Municipal Law Section 205-e which allows for officers to recover for injuries sustained on premises wherein the owner or other person in control negligently failed to comply with the requirements of some statute, ordinance, or rule respecting the maintenance and safety of such premises” (Kenavan v City of New York, 70 NY2d 558, 567 ). A cause of action may be maintained under GML 205-e if plaintiff can (1) identify the statute or ordinance with which the defendant failed to comply, (2) describe the manner in which the [police officer] was injured, and (3) set forth those facts from which it may be inferred that the defendants’ negligence directly or indirectly caused the harm” (Williams v City of New York, 2 NY3d 352, 363  quoting Giuffrida v Citibank Corp., 100 NY2d 72, 78 ). The statute or ordinance plaintiff claims that defendant violated was the Jones Act. The Jones Act is a maritime law that provides relief to those who are exposed to the “perils of the sea” (Chandris Inc. v Latsis, 515 US 347, 354 ). Plaintiff did not timely allege other apparent violations which could have been plead earlier and possibly saved the case from dismissal. The Court held that plaintiff Officer was not a seaman working on a vessel in navigation nor was he exposed to the perils of the sea at the time of the injury.
Plaintiff’s alternative claim for negligence (you do not have to prove negligence under GML 205-e) was dismissed under the Firefighter’s rule which bars claims of injuries where the risks associated with the type of employment arise causing injury. For example, a firefighter may not be able to bring a claim after sustaining burns at a fire he/she was called to suppress absent some violation of some statute, ordinance, or rule respecting the maintenance and safety of the premises.
Judge Chan, Supreme Court, New York County, found no reason to keep plaintiffs’ claims alive which is contrary to the purpose of GML 205-e. GML 205-e was legislated to protect law and fire officials from acts which violate law, is designed to be “expansive” and to “favor recovery” to the official. In fact, GML 205e rights are stronger than those of civilians, is to be construed “broadly” and is “remedial” in nature.
Even though the Jones Act could not form the basis for a violation under GML 205e, the gangway contained a dangerous condition for which the City knew or should have known of upon reasonable inspection and failed to fix in violation of the Labor Law. The Court failed to show how the fall here was “a risk associated with the particular dangers” inherent to police work. If plaintiff were to simply have fallen on a city sidewalk, would the Court’s decision been any different? Rather than allowing a jury to decide the case, the Court dismissed likely leaving plaintiffs with no recourse for pain, suffering and loss of the enjoyment of life claims.
As counsel to many members of law enforcement, we take care to ensure that the pleadings are sharp, focused, timely asserted and on point to avoid the pitfalls as seen here. If you are a member of law enforcement, do not wind up like PO Sagarese. We have successfully handled numerous GML 205-e cases. This year alone we have settled more than 2 million dollars’ worth of 205e claims. Please call us today. All consults are free.
Steven Ferber on How Compensation Caps Unfairly Limit Your Legal Rights
America is all about freedom: The freedom to live where you want, vote, raise a family, work at your chosen profession, spend your time in preferred activities and go peacefully about your business. But what happens when those freedoms are infringed on? What if YOU or someone you love is hurt due to someone else’s negligence or actions?
Certainly you should contact a top personal injury law firm such as Davis & Ferber LLP to evaluate your case and represent you in court. Just compensation can help cover present and future medical bills and provide vital financial security for your family in the case of lost income and other life changes.
You have the right to a legal remedy, a trial by jury and procedural fairness. In most personal injury lawsuits, injured plaintiffs request a specific amount of compensation to cover their pain and suffering. This is to warn you that there are those who would control and limit the amount of compensation you may be awarded.
Currently there are no federally-imposed limits for pain and suffering damages in most personal injury cases. But did you know that some STATES are considering or have already enacted a cap on damages awarded for pain and suffering? Maryland, for example, has a cap of $350,000. California and Ohio each have a cap of $250,000 maximum. Alaska limited damages to $500,000 unless in the case of physical impairment or disfigurement. Alabama made a cap of $400,000 (but this was later ruled unconstitutional in regard to medical malpractice cases.)
In all, 30 U.S. states have limited pain and suffering damages in some way. New York is not among them – yet.
The larger question is: Do state governments have the right to interfere with your case and limit the compensation you are entitled to?
I say NO. These blanket caps do not take into account the specifics of your case or financial needs.
In fact, I would argue that caps are limiting your legal rights and recourse for just compensation. Will $250,000 truly compensate you for the loss of a limb or other serious injury? Furthermore, imposed limits may discourage attorneys from accepting otherwise worthy cases.
It’s important for New Yorkers to keep their right to just and fair compensation. Consider these recent actual cases in other states:
*Ex-neurosurgeon Christopher Duntsch will spend the rest if his life in jail for killing and maiming patients. The Memphis native was convicted for his behavior in Texas operating rooms; bungling surgeries which resulted in two deaths and multiple cases of paralysis.
*On June 2, 2016 two nurses were indicted after being caught on video surveillance ignoring an injured patient at Peninsula Nursing & Rehabilitation Center, Far Rockaway, NY. A disabled patient fell in the hallway of the facility, injuring his head and jaw.
*The Government Accountability Office and Food & Drug Administration report hospitals are failing to disclose when medical devices injure or kill patients by spreading cancer cells throughout their bodies or infecting them. Federal regulation requires hospitals and doctors to notify the FDA of these adverse events immediately, but that regulation often goes ignored or delayed.
The Big Picture
According to the National Center for Health Statistics, over 31 million injuries occur to people throughout the U.S. each year that require a doctor’s care, and almost two million people sustain injuries that require some degree of hospitalization, and 162,000 people die from their injuries. The National Highway Safety Administration reports that over three million injuries and 40,000 deaths occur from the 5.5 million car accidents in the U.S. annually. Construction accidents cause another 300,000 personal injuries and 1,000 deaths. Medical mistakes take the lives of up to 987.000 people each year. Given the high number of injuries and accidental deaths in the U.S. each year, liability for these incidents is often disputed, which leads directly to injury claims and litigation.