In a recent case, the Plaintiff managed to jump out of the way of a fire department vehicle which struck a person standing next to the Plaintiff. Thinking that she was not seriously injured, the Plaintiff did not pursue litigation.

The seemingly minor injury eventually turned into a serious injury which required knee surgery. The Plaintiff indicated that she had been stymied in an attempt to obtain information from the Police Department because she was not directly hit by the offending vehicle, and she failed to report any injury at the time of the accident. This set of circumstances led to the late filing of the Notice of Claim.

At a hearing regarding the motion to file the late Notice of Claim, the court noted the testimony of the individual that was hit by the vehicle supporting the Plaintiff’s contention that she was present at the scene and time of the accident. The Court also noted that the municipality was well aware of all the relevant facts surrounding the accident because of the police presence at the scene and because it was the agents of the municipality which performed the acts of alleged negligence complained of by the Plaintiff.

Finding the reasons for the Plaintiff’s delay in filing were reasonable, and that no prejudice inured to the municipality, the Court allowed the late Notice of Claim.

Prescription Error – Prescription error is one of the most common types of medical malpractice. How common?Approximately 100,000 Americans are affected by prescription error and 7,000 die from it eachyear!So what constitutes a prescription error? Prescription errors can be broken down into twogroups- errors committed by the prescriber (hospital, nursing home, doctor etc.) and errorscommitted by the pharmacist.Prescriber Errors-these include prescribing the wrong dosage, prescribing the medication forthe wrong amount of time, not considering the patients weight and age while prescribing themedication, and not considering any pre-existing condition that the patient may have which canbe affected by that specific medication and believe it or not, illegible handwriting.

Pharmacist Errors – One key error that the pharmacist can commit is distributing the wrongmedication. This mistake is pure carelessness and one whose results can be fatal. A secondkey error is filling the prescription incorrectly.

If you have experienced such carelessness from your healthcare provider or from your pharmacist, contact a Personal Injury Lawyer who is experienced in cases in this area of law.

To read about a case of being prescribed over medication, visit – http://www.allbusiness.com/retail-trade/health-personal-care-stores-pharmacies-drug/4062593-1.html

To read about a case of being prescribed the incorrect medicine, visit – http://www.startribune.com/local/east/97121449.html

What do we mean by “force”? The law will consider “force” to include:

1. Forcible Compulsion – The threat of, or actual physical force, on the victim or a third party.
2. Physically Helpless - The victim is physically unable to express a lack of consent due to a physical disability.
3. Age of Consent - According to New York law, anybody under the age of seventeen is incapable of consenting.
4. Mentally Disabled or Incapacitated – If the victim is temporarily or permanently unable to comprehend the nature of their conduct.

“Sexual Abuse” can include various acts such as:

1. Sexual Intercourse
2. Deviant Sex Acts
3. Sexual Contact
4. Forcible Touching
5. Aggravated Sexual Contact

Sexual Abuse is a very serious matter that is, unfortunately, not uncommon. If you, or anyone you know, has ever been victim to this horrific crime, contact a Personal Injury Lawyer who is experienced in cases in this area of law.

To get some more information about sexual abuse, visit, http://www.prevent-abuse-now.com/articles.htm.

Out of the 85 deaths, approximately 35 were the driver attempting to jump out of a tipping forklift.

The OSHA laid down the basic requirements that all forklifts and other Powered Industrial Trucks must meet.

These requirements can be found at:
http://www.nycosh.org/workplace_hazards/Forklift%20Fact%20Sheet.html.

In addition to the safety requirements for the actual vehicles, proper training is required and additional training by the vehicle operator is highly recommended. This training can be found at http://www.free‑training.com/osha/forklift/forkmenu.htm..

If anyone was injured in a forklift accident either as a pedestrian or as an operator without adequate training, it is very important that a Personal Injury Attorney experienced with this type of matters be contacted as early as possible.

This investigation was prompted by the collapse of two cranes in 2008.  In the first collapse, seven individuals died; in the second collapse, two individuals died.   The defense attorney noted that the cranes involved in these accidents were not of the type for which the defendant was accused of taking bribes.

The punishment, while severe, may well have been even harsher were it not for the fact that the defendant suffers from a pulmonary disease brought on by his work supervising crane operations at Ground Zero after the 9/11 tragedy.

During the last week of May of this year (2010) alone, there were two serious construction site accidents involving falls from significant heights. One involved a worker at a residential building falling fifty feet while he was working on the building’s steel framework. The other involved a worker at the Throgs Neck Bridge.

The first worker died after falling fifty feet. The bridge worker fell 15 to 20 feet off a ladder and was seriously injured.

With respect to the worker that died, officials indicated that it seemed as if he was not wearing a safety harness ! It is precisely this point to which we direct our attention.

There are several facts that make accidents at construction sites unique in the area of Personal Injury Law in New York:

• Construction site accidents are among the most frequent accidents that occur;
• The resulting injuries are among the most serious that occur;
• Public policy is very inclined to seek protection for injured workers and their families;
• the law, especially with respect to liability (who is responsible for the accident that occurred) is not at all necessarily what the layman might think it is–the law can be extremely complex.

The fact that the worker that fell and was not wearing a safety harness should not, and does not, eliminate the possibility that the worker or his family will have a THIRD PARTY LAWSUIT available to him. This would be in addition to any workers compensation claim the worker or his family might have.

It is truly esential when dealing with a construction site accident that a personal injury attorney, in addition to a workers compensation attorney, be consulted. As we have noted on previous blog postings, this could mean very substantial differences to the injured worker and his family. Because of the law’s complexity in this area, be very certain the Personal Injury Attorney chosen is well experienced in this important area of law.

STATUTE OF LIMITATIONS — REFORM

We have previously reported regarding efforts in the New York State Legislature to open up a one year “window of opportunity” to victims of childhood sexual abuse. It would have extended the Statute of Limitations on bringing “civil” lawsuits so that virtually anyone, at any age, that suffered sexual abuse, could sue, regardless of the number of years that have passed since the abuse occurred.

Unfortunately, we can now report that for the FIFTH year, the legislation intended to expand the rights of child sex abuse victims has died in the New York Legislature.

The hope on the part of proponents of the legislation was that with the increased outrage over new developments regarding clergy sexual abuse coming to light in the Catholic Church in Europe, that public opinion here would lead to passage. That assessment was wrong.

Since 2002, fifteen states have proposed such legislation. Only Delaware and California have actually passed it. In New York, the legislation “died” in the State Senate committee that deals with that area of law. The legislation is known as the “CHILD VICTIMS ACT.” Sponsors will continue to attempt to get it passed in the future.

Some opponents did indicate that while they opposed eliminating the Statute of Limitations on civil child abuse cases, which could bankrupt some organizations, they would favor lifting the Statute of Limitations on criminal cases so that abusers could be prosecuted.

SO YOU WANT TO CHANGE YOUR LAWYER

It is a fact of life that Personal Injury lawsuits, as a general rule, require years, rather than months, to reach a conclusion. This is a product of both the nature of a personal injury lawsuit–which requires investigation and “discovery”– and crowded court calendars. This situation also leads to the increased chance that a client will become dissatisfied, in some manner or for some reason, with some aspect of his or her attorney’s performance.

It is the absolute right of any client to dismiss their attorney at any time. It is also the right of that client to choose another attorney and to replace the dismissed attorney with another attorney. In legal parlance this is known as “SUBSTITUTION OF ATTORNEYS.” No grounds need be stated–though any responsible attorney to be “substituted” will want to know the reason he is being asked to replace the original attorney. The ethical attorney would be reluctant to accept the client if the reason being presented was one which the newly approached attorney would not be able to improve upon.

One of the most common reasons that clients give for dissatisfaction with their attorneys , as inexplicable as it is, is that the attorney does not respond to phone calls; that inquiries go unanswered; that the client feels as if they are ignored. Attorneys are often overworked and very busy. However, an attorney owes their client the respect and consideration of answering their inquires as expeditiously as possible, and that should be considered part of the responsibility in every case that is accepted by the attorney.

That is not to say that, rarely, clients can be unreasonable in the frequency of their requests for information. But experience shows that this is the infrequent exception. Unfortunately, the failure of attorneys to respond to their clients is a far more frequent occurrence.

An oft repeated complaint by clients is that they have not heard anything from their attorneys for a long period of time. The conclusion reached is that, therefore, nothing is being done on the case. This is harmful to the attorney client relationship and unfortunately is based on lack of knowledge about the activity involved in a personal injury case. While some participation by a client is necessary, such as depositions, attendance at medical examinations and perhaps supplying needed documentation, it is very limited in nature. The attorney is also involved in investigations, discovery of documentation from the other parties, possible motions, depositions of parties and witnesses and a variety of conferences. For most, if not all of these events, it is not necessary to involve the client. So while the attorney is very busy on the case, the client is unaware of the activity and deems the attorney to be idle. To inform the client of every event taking place, for every case in an attorney’s office, would indeed be excruciatingly time consuming and would probably generate client phone calls that would also consume an attorney’s time that could be far more productively be used elsewhere. It is somewhat of a dilemma.

Additionally, once ALL of the work on a case is completed, and usually not until all the work is completed, the case may be put on the court calendar (“filing the Note of Issue”). Filing the “Note of Issue” places your case in line to have a trial. Courts throughout the State of New York vary in the time it takes for a case to reach trial once the “Note of Issue” is filed. In New York City, it can vary from about eight months to two years, depending on the backlog of the particular court. This creates another problem in client relations: “dead time,” while the client is wondering what is happening to the case. Once a case is placed on the calendar, it would be a good idea for an attorney to so notify the client and make the client aware of the situation.

If, for whatever reason, the client feels compelled to change attorneys, and locates another qualified attorney with whom they believe they will find greater satisfaction (recognizing that the familiarity with the case gained by the first attorney may be sacrificed in the switchover), the client should realize that the fee charged to the client WILL NOT CHANGE. It will be the obligation of the old and new attorneys to arrange, between themselves, exactly how they will share the original fee charged the client by the first attorney. The client will in no way be penalized in terms of the fee for the desire to change attorneys.

Changing attorneys, while the absolute right of the client, should not be undertaken lightly. Suggestion: Speak with your attorney and tell them frankly of your dissatisfaction and see if it would be possible to remove the cause of your dissatisfaction before making this important decision.

As we have seen, with respect to situations where state law may differ from federal law, and both state and federal jurisdiction exists, the fact situation of the case may determine the most advantageous court in which to bring your lawsuit.   There are, however, several other factors that will be considered by the experienced litigator, particularly in personal injury cases, in deciding which court to file your lawsuit, presuming a choice exists.

Time limits that restrict, or even eliminate, your pursuit of an action in state court may well be viable in Federal court.

This could also hold true should you have a choice of bringing an action in the courts of different states–the Statute of Limitations in one state could well differ from that of another state.

PICKING THE COURT THAT’S “RIGHT” FOR YOU

CHOICE  OF  “VENUE”

As any experienced litigation attorney will explain, more often than not there will be a choice of courts in which to bring a lawsuit you may be contemplating.  Among attorneys, this is known as choosing a “venue.”

Often the venue choice will be between state courts in different counties.  Other times, it may be a matter of choosing to bring the case in either a state or a federal court.

Experienced attorneys fully realize that the choice of “venue” at the very beginning of a case can, in and of itself, spell the difference between  great, or merely modest, success,  and at times it can even mean the difference between success and complete failure!

In 2004 a disabled passenger fell down a flight of stairs while disembarking from a commuter airline (Elasaad v. Independence Air) in Philadelphia.   The lawsuit was brought in the state court.  The state court ruled that federal law applied.   Since federal law requires that a disabled passenger must request assistance before the airline is obligated to lend assistance, and the passenger in this case failed to request assistance, the case was dismissed by the state judge.

Since appeals are both time consuming and costly, pursuing an appeal from a court decision is not a frequent event.In this case however, an appeal found its way to the Federal Court of Appeals which reversed the state court decision.  The Federal Appeals Court found that while federal rules do apply while the plane is in flight, state laws may apply while passengers are disembarking. Federal law did not pre-empt state law in such a situation. The case, originally brought by the Plaintiff in state court, may stay in state court and state law may apply. Since state law does not require a prior request for assistance to an airline by a disabled passenger, before the airline becomes responsible, the passenger was victorious.

While the attorneys in this matter certainly chose the correct court originally in which to bring this lawsuit, it was the original court that got the law wrong!  The diligence of the Plaintiff’s attorneys corrected that mistake.  Future attorneys will take note of this case.  Those attorneys that keep track of cases as they develop (which is essential for any competent, experienced attorney), will be aware that the choice of venue in cases of this nature will be the state, and not federal, court.

“Forum shopping” extends beyond issues of conflicting laws.  Often it concerns itself with more subtle issues.  We will touch on this subject in another posting.