Laws and Rules that Every Personal Injury Plaintiff Should Know

Civil litigation between private parties is a unique area of legal practice.  Every citizen has rights that which the law protects.  Every citizen also has responsibilities that which must be followed according to the letter of the law.  If you or a loved one has been harmed, you may have a valid legal basis to receive court ordered compensation from the offending parties. 

The experienced personal injury attorney practicing law in the Hudson Valley regions of New York is astute in knowing substantive law and procedural law.  Substantive law refers to those laws that define ones rights and responsibilities.

Understanding substantive law is sometimes the easy part for most people to understand.  Procedural law on the other hand, can be much more complex and confusing.  Procedural law instructs people on how to properly commence litigation against a defendant.  It also instructs attorneys on how to properly move through the many steps of bringing a case from start to conclusion. 

Perhaps the most important rules for most plaintiffs to understand are those that which relate to time limits for suing a defendant.   In New York, these time limits are called statutes of limitations.  The New York State Legislature has enacted laws that say how long the plaintiff has to sue a wrongdoer after the bad deed was committed.  Those rules are located in the New York Civil Practice Laws and Rules (CPLR) code books.

There is no one set time period for all possible bad deeds; so the time period will vary depending on the type of harm that which was done.  Let’s hone in on personal injury victims.

According to CPLR Section 214, these plaintiffs have three years to sue the person that caused them harm.  The clock starts to tick right at the moment the bad deed was committed.   If a plaintiff misses this timeline, the defendant’s attorney will most assuredly ask the court to dismiss the case as being barred by the statute of limitations. 

Another important rule that New York plaintiffs should know relates to whether or not a plaintiff can receive compensation if the plaintiff shares some of the fault for his/her injury.   New York is different from many other states in that the plaintiff can still collect compensation even if partially at fault for the accident and injury.  It is called comparative negligence.  The court and or jury will hear the case and determine fault.  A determination will be made as to how much each party is responsible for the accident; it will be in terms of a percentage.  So long as the plaintiff is less than 100% at fault, the plaintiff can collect something. 

The jury will determine the award and if the plaintiff is 10% responsible for the accident, then he/she will only receive 90% of the compensation awarded. 

Other important New York Laws and rules that should be discussed with you attorney are:

·      New York No-Fault laws

·      Dog Bite Liability

·      Procedural Issues when Suing the Government

 he attorneys at Greenberg and Greenberg handle personal injury cases throughout New York State, including Columbia, Greene, Rensselaer, and Albany County.  Our legal team has earned a reputation for dedicated service to our clients injured in New York personal injury accidents.  Please contact us today to receive a free case evaluation by dialing locally to 518-828-3336 or call toll free at 877-469-9300.

Been in a Car Accident?: Early Warning Signs Indicating that you May have a Traumatic Brain Injury

A traumatic brain injury can occur during a car accident if the skull hits an object such as the windshield or the steering wheel.  Even if the injury is not apparent, there is no open wound on the head or a skull fracture, the victim may not have even lost consciousness, and there may still be a brain injury. 

Due to the head’s violent motion during the collision, the brain can hit the bone inside the skull because of the sudden deceleration of the head.  This happens when the movement of the head stops (usually when the head hits a hard surface) but the brain continues to move (colliding with the inside of the skull).  This can result in the brain being bruised (contusion) and bleeding (brain hemorrhage).  Our experienced Hudson personal injury attorneys have handled many traumatic brain injuries and are able to zealously advocate for victims suffering such injuries.

Crashworthiness

 Crashworthiness is a term used to describe whether an automobile is able to protect its occupants when there is foreseeable collision.  Under the “crashworthiness doctrine” the manufacturer needs to take into account that many accidents are reasonably foreseeable and that reasonable steps need to be taken to anticipate these accidents and provide a level of protection for the occupants.

When traumatic brain injuries occur during an automobile accident, an automotive defect could be the cause of the injury.  While the defect may not have been the cause of the accident, it may have enhanced injuries.  This could justify bringing an action against the manufacturer of the vehicle.

 Signs of Traumatic Brain Injuries

After a car accident, the driver and/or passenger should look for the warning signs that indicate that a traumatic brain injury occurred.  These signs include:

• Changes in Memory (memory loss of the surrounding events of the accident, having trouble performing normal short-term memory tasks, or repeating yourself);
• Changes in Mood (increased impatience, irritability, nervousness, sadness, and anxiety);
• Changes in Perception (this includes increased sensitivity to light or sound; fuzzy, blurry, or double vision; perceiving smells that do not exist);
• Changes to Sleep (sleeping either more or less than usual or having trouble falling asleep or staying asleep);
• Changes in Thinking (difficulty concentrating, feeling mentally sluggish, or distracted easily); and
• Physical Changes (experiencing feelings of dizziness, fatigue, nausea, headaches, or vomiting; weakness in legs or arms; and/or being unsteady while walking).

If you have experienced one or more of these changes after an accident where your head struck a hard surface, you may have suffered a traumatic brain injury, spinal cord injury, or other serious injury and you should see a physician or go to the emergency room for an examination and diagnostic testing immediately.  These are serious injuries and playing “hero” or trying to “walk it off” could result in significant and permanent health complications.

The attorneys at Greenberg and Greenberg handle traumatic brain injury cases throughout New York State, including Columbia, Greene, Rensselaer, and Albany County.  Our legal team has earned a reputation for dedicated service to our clients injured in New York personal injury accidents.  Please contact us today to receive a free case evaluation by dialing locally to 518-828-3336 or call toll free at 877-469-9300.

Lack of Informed Consent in New York Medical Malpractice Cases

A person determines what happens to his or her body.  This concept is true in medicine under the notion of informed consent.  Patients need to provide informed consent to any procedure prior to it being performed on him or her.  There are few exceptions to this rule, such as emergencies.

The case that laid the foundation for informed consent laws across the country, including New York medical malpractice cases, was a Minnesota case in 1905 called Mohr v. Williams.  In this case, the plaintiff sought out an ear specialist, the defendant, because she was having problems with both of her ears, but particularly the right ear.  The defendant agreed with the patient about the right ear and said that in order to correct the impairment surgery would be necessary.  The plaintiff decided to undergo the surgery.  Once under general anesthesia, the defendant noticed that her left ear was worse and decided to perform the operation on the left ear rather than the right ear the patient consented to.

The patient was upset once she learned that the doctor performed the operation on her left ear without obtaining her permission.  The plaintiff brought an action for civil battery (“intentional and direct, physical contact against another without that person’s consent or authority of law to do so”) against the doctor.  A civil battery is a type of personal injury.

The trial court found for the plaintiff.  While the defendant had consent to perform an operation, he only had consent to perform the operation on a specific part of the patient’s body (the right ear).  This made the consent specific, not general.  Therefore the defendant could not perform any operation he wanted to, only the operation the patient wanted and consented to.  The reasoning of the court was that the doctor was acting on the patient’s behalf and needed to follow her instructions as to what was to be done to her body.  Additionally, since the surgery the doctor decided to perform on the left ear was not performed in order to prevent serious or life-threatening harm to the life of the patient, it did not fall under the emergency doctrine.  Therefore the doctor did not have the authority to perform the operation on the left ear of the patient.

In medical malpractice actions, New York courts have followed the same reasoning and applied this rule.  Under New York Public Health Law Section 2805-d, informed consent is defined as “the failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonable foreseeable risks and benefits involved as a reasonable, medical, dental or podiatric practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation.”  When trying to show that there was a lack of informed consent, it is necessary to show that “a reasonably prudent person in the patient’s position would not have undergone the treatment or diagnosis if he had been fully informed and that the lack of informed consent is a proximate cause of the injury or condition . . . .”

Whether informed consent was given is not always obvious and it needs to be investigated.  If you or a loved one believes that your rights have been violated because a health care provider did not inform you of the procedure properly, contact a Hudson medical malpractice attorney as soon as possible.

Contact one of our experienced Hudson medical malpractice attorneys who are knowledgeable in this area of law to determine whether you may have an informed consent issue with the care and treatment you received.  The attorneys at Greenberg and Greenberg handle cases throughout New York State, including Columbia, Greene, Rensselaer, and Albany County.  Our legal team has earned a reputation for dedicated service to our clients injured in New York personal injury accidents.  Please contact us today to receive a free case evaluation by dialing locally to 518-828-3336 or call toll free at 877-469-9300.

Medical Malpractice Statute of Limitations: What You Need to Know

In almost every single type of case, whether criminal or civil, there is a fixed period of time that a party must initiate an action within.  This time period is known as the statute of limitations.  Essentially, this is a time limit on your potential action.  The statute of limitations period if very important because if a party attempts to bring a claim when the statute of limitations has expired, that claim will be barred. 

Both federal and state governments create the various statute of limitation periods.  The New York State Legislature has codified many of the statute of limitation periods for civil litigation in the Civil Practice Law and Rules.  A lot of the time frames created by the legislature and contained in the Civil Practice Law and Rules come and go rather quickly.  This is why it is essential for an injured party to retain an experienced Hudson personal injury attorney to protect your rights.

Medical malpractice has a statute of limitations period.  It is provided for in Civil Practice Law and Rules Section 214-a.  This section provides for a two and a half (2 ½) year time limit on a medical malpractice claim.  Specifically, this section states “[a]n action for medical, dental or podiatric malpractice must be commenced within two years and six months of the act, omission or failure complaint of . . . .” 

This is the general rule and requires the patient to bring the medical malpractice action right after the treatment rendered to him or her.  The statute of limitations begins to run whether or not the patient is aware of the wrongdoing.  Further, this statute of limitation applies to all medical providers, not just physicians, dentists, podiatrists, and surgeons, but also to nurses, hospital staff, physician assistants, hygienists, and other health care providers.

There are two exceptions to this rule.  The first exception is called the “continuous treatment doctrine.”  Under CPLR Section 214-a, an action for medical malpractice may also be brought within two and a half years of “last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure[.]” 

Thus, where a physician makes a mistake in treatment, the law provides him or her an opportunity to correct it without abridging the rights of an injured patient.  For instance, if a surgeon makes a mistake during a procedure in January and performs a second procedure to try and fix the mistake in March, the statute of limitations for the surgical error begins to run in March—not January.  It is important to note that the “continuous treatment” cannot be examinations undertaken at the request of the patient for the “sole purpose” of ascertaining the state of the patient’s condition.

The second exception is called the “foreign object” exception.  Under CPLR Section 214-a, an action for medical malpractice “based upon the discovery of a foreign object in the body of a patient, the action may be commenced within one year of the date of such discovery or of the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier.”

Therefore, the legislature has provided that a physician or surgeon who leaves a piece of medical equipment inside of a patient can be liable for this error after the two and a half year statute of limitations period has run.  This is as long as the patient did not know or should have known that the medical equipment was left inside of him or her.  An example of this is where a surgeon leaves a pad used to clot bleeding inside of the patient after the surgery.  However, it is important to note that a fixation device, such as a stitch, or a prosthetic aid or device, is not considered a foreign object and does not invoke this rule.

The medical malpractice statute of limitations is very important and requires an experienced Hudson medical malpractice attorney to determine what, if any, exceptions may apply.  The attorneys at Greenberg and Greenberg handle cases throughout New York State, including Columbia, Greene, Rensselaer, and Albany County.  Our legal team has earned a reputation for dedicated service to our clients injured in New York personal injury accidents.  Please contact us today to receive a free case evaluation by dialing locally to 518-828-3336 or call toll free at 877-469-9300.