Lower Manhattan in New York City at sunrise

The relationship between physician and patient is a partnership when it is functioning properly.  This is a partnership in which trust is a foundational and indispensable component.  When a patient seeks medical care and treatment from a doctor, the patient is entitled to trust that the doctor is providing full disclosure, informing the patient of all of the pertinent risks and benefits to a particular course of treatment, as well as alternative courses of treatment – which may include no treatment at all – for a particular medical condition.  This way, the patient can make an informed decision along with his or her doctor, and give informed consent to a course of medical treatment that may have both positive and negative effects upon the health of the patient. However, in all too many circumstances, a doctor or other medical provider does not provide the full disclosure to which the patient is entitled, and the patient agrees to undergo a course of medical care and treatment that the patient might not have opted for had full disclosure been provided.

When physicians breach the trust of their patient, fail to provide full disclosure to a patient, and harm the patient as a result, a species of medical malpractice claim known as “lack of informed consent” may accrue to the patient and entitle the patient to substantial compensation in a medical malpractice lawsuit.  These claims are often brought in tandem with medical malpractice claims involving a breach of the standard of care applicable to a particular course of medical treatment.  In this article, we explain the basic legal elements of a claim for “lack of informed consent” under New York medical malpractice law, and hope to educate readers about their legal rights if a doctor does not fully disclose all of the information regarding a particular course of medical treatment that he or she is obligated to discuss with a patient before undertaking to render care and treatment that may be harmful or undesirable.

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When a victim of negligence – whether due to a serious personal injury accident or medical malpractice – brings a lawsuit seeking compensation from those who caused him or her grievous harm, the victim (known as the “plaintiff” in the parlance of the courts) is obligated to prove that the negligence of each defendant was a proximate cause of all personal injuries claimed by the plaintiff.  It is not enough for an injured person simply to allege negligence in order for compensation to be paid.  Every single element of an injured victim’s claim – which vary, depending upon the circumstances through which the victim’s injuries came about – must be proven in accordance with certain standards in order for an injured victim to obtain compensation from those who have done him or her harm.  This requirement to prove all of the elements of a case in accordance with applicable legal standards is called the “burden of proof”, and applies to every personal injury and medical malpractice case brought under New York law.  If an injured victim does not meet his or her “burden of proof”, their case will be dismissed and no compensation will be awarded, no matter how serious the victim’s injuries may be.  It is also true that the “burden of proof”, in some instances during a personal injury or medical malpractice trial, is placed upon the defendant, such as when the defendant make a summary judgment motion asking the court to dismiss an injured victim’s personal injury or medical malpractice case.  In this article, we will explore the general concept of the “burden of proof” in medical malpractice and personal injury cases and how it is applied in practice.

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Rear-end car accidents are among the most common types of car accidents that occur in New York City.  This should come as no surprise, given that traffic conditions are often quite congested, and stop-and-go traffic as well as myriad distractions are ever-present throughout NYC.  Taking one’s eyes off the roadway even for a moment in such congested driving conditions can – and often does – result in a rear end collision which can result in serious injuries.  For this reason, rear-end car accidents are among the most commonly litigated types of car accidents in the courts within the five boroughs of New York City.

If you are involved in a rear-end car crash anywhere in New York City, you should be aware of the legal framework that the courts of the State of New York have built to determine liability in a rear-end car accident.  In this article, we will explore this framework so that readers will understand the claims that accident victims who are injured in rear-end crashes should make in their cases, as well as the defenses that those responsible for causing a rear-end car accident may try to use to escape liability.  We hope that this article is helpful to victims of rear-end car accidents in teaching them what their rights are if they are injured in a rear-end car accident anywhere in New York City, or elsewhere throughout the State of New York.

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If you slip and fall because of a dangerous condition on someone else’s property – say a puddle of water on a supermarket floor, or grease on a staircase within a restaurant – your natural instinct may be to assume that you are automatically entitled to collect compensation for any injuries that you sustain as a result of this type of accident.  After all, in almost all slip-and-fall accident cases, had the property owner or management of the establishment at which such an accident occurred bothered to remove the dangerous condition that caused you to fall, your accident would not have occurred.  However, collecting compensation in a slip-and-fall accident case is not as simple as pointing the finger at whoever is responsible for maintaining the property.  The law has established several elements that even the most seriously injured person must prove in order to collect compensation if they have slipped, fallen and become injured.  If an injured person cannot prove every one of these elements by a “preponderance” of evidence (i.e., by a showing that it is “more likely than not” that each element of the test is satisfied), their case will likely be dismissed, leaving them unable to obtain any compensation at all, no matter how serious their injuries may be.

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The State of New York is among the states with the highest incidence of medical malpractice litigation throughout the United States.  With respect to legal fees, nearly every New York medical malpractice attorney (as do most medical malpractice lawyers around the country) charges a type of fee known as a “contingency” fee, the amount of which is determined based upon the size of the settlement or judgment obtained when the case concludes.  This fee structure is important for several reasons:  (i) It allows people who have been harmed by negligent doctors to obtain high-quality legal representation without having to pay large legal fees out of their own pocket, which most victims could never afford; and (ii) it aligns the financial interests of the medical malpractice attorney with his or her client, as, under a contingency fee arrangement, the more money the client gets from his or her case, the more the attorney gets paid.  It used to be, prior to the year 1985, that medical malpractice lawyers in New York customarily charged a contingency fee equal to one third of the recovery in a medical malpractice case.  However, since 1985, and as a result of extensive lobbying by the medical industry designed to reduce medical malpractice litigation, the contingency fees that medical malpractice lawyers in New York may charge their clients have been restricted.  This article intends to explain what the current limits on medical malpractice contingency fees are, and why those limits are detrimental to medical malpractice victims and attorneys alike.

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The answer to this question, like most everything in the context of a personal injury lawsuit, is that “it depends”.  On the bright side, the laws of New York State relating to construction accidents have been written in a manner that is very protective of workers on job sites, and especially so as to workers who suffer injuries from “gravity-related” accidents such as falling from a scaffold.  However, to obtain compensation for even the most devastating and life-altering construction injuries, injured workers must prove that their case qualifies pursuant to stringent and exacting legal tests that have been set up by the courts to evaluate whether compensation is due in any particular construction accident lawsuit.  By using the example of a worker who has fallen from a scaffold on a New York construction site and sustained injuries thereby, this article hopes to educate readers about some of the legal hurdles that must be cleared in order to obtain compensation in a New York construction accident lawsuit.

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Police officers, just like the rest of us, make mistakes, and sometimes these mistakes result in very serious car accidents. If you are the victim of a car crash involving a police officer who is speeding, runs a red light, drives on the wrong side of the road, or commits some other act of egregious negligence, you may think that obtaining compensation from the police officer, as well as the police department and municipality for whom the police officer works, will be easy. After all, the police officer was so audaciously negligent, how can you lose?

If the defendant were anybody apart from a cop, you would almost certainly be entitled to collect compensation from that person if they committed any of the aforementioned negligent acts in connection with operating a motor vehicle on the public roadways within the State of New York. However, the New York State Legislature, in recognition of the fact that police officers often must respond quickly to emergency situations, has bestowed certain privileges upon police officers (in addition to operators of ambulances and fire trucks) when they are conducting “emergency operations” that permit them to violate the rules of the road in certain specific manners. If a police officer was engaged in any of the four privileged categories of privileged conduct contained in New York Vehicle and Traffic Law Section 1104(b), you will have to prove that the officer’s conduct was “reckless”, instead of simply “negligent”, to collect any compensation from them in a car accident lawsuit.

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On Sunday, March 18, 2018, a first-of-its-kind tragedy occurred in Arizona: a self-driving car from Uber’s fleet of autonomous vehicles (which are currently undergoing real-world testing, some of it occurring on Arizona’s public streets and highways) killed a pedestrian.  The victim – a woman from Tempe, Arizona – was killed while crossing the street in her home town.  The tragic occurrence of a pedestrian fatality due to the negligent operation of a motor vehicle is, unfortunately, not exactly an uncommon occurrence, whether in New York City, Arizona, or anywhere else in the United States.  What makes this tragedy especially notable is that it constitutes the first reported case of a pedestrian fatality caused by an autonomous, AI-powered, self-driving vehicle anywhere in the United States. The New York Times covered this story this week, and you can read more about it by visiting the New York Times’ website and searching for the article.

While much of the public discussion regarding this tragedy centers around the phenomenon of artificial intelligence and its exponential growth and potential to upend society as we know it, this article attempts to analyze this horrific milestone from the perspective of a New York car accident attorney.  Thus, we ask the following pertinent question, the answer to which will likely become of extraordinary importance to the everyday lives of New Yorkers as the ubiquity of artificial intelligence grows, and which will surely feature in any debate regarding the opening of New York’s roadways to driverless vehicles:  Who would be responsible for this horrific tragedy, and thus liable to be sued for compensation in connection with the wrongful death of this poor woman, had this accident occurred in New York?   Continue reading

In many very serious personal injury lawsuits, the issue of economic loss – whether it be in the form of medical expenses, lost wages, lost fringe benefits, or lost government benefits such as Social Security – is the most important component in determining the value of a particular case.  While these cases also involve substantial amounts of “non-economic” loss (i.e., pain and suffering) to the accident victim, the amount of money that will be ripped from their pocket due to their injuries and resultant disability can be staggeringly high.  One of the most important differences between economic loss and non-economic loss in context of a personal injury lawsuit is the ease with which these losses can be quantified.  Non-economic loss is intangible, and it is often very hard to value a person’s pain and suffering with a finite dollar amount.  Economic loss, however, can be quantified down to the very last penny.  For this reason, both in context of settlement negotiations, and while a jury is deliberating over the evidence presented at trial, economic loss is often much more powerful and persuasive than non-economic loss; and, in fact, presenting substantial economic losses can boost the amount of non-economic loss that will be awarded to a plaintiff in a personal injury lawsuit.

When there are substantial economic losses involved in a personal injury case (generally, this is the case when an accident victim is totally disabled from working after a serious injury), a good personal injury attorney will hire an economist to quantify all of the economic losses caused by a tragic accident.  This expert analysis is very important, especially when long-term future losses are involved.  Economists have special training that allows them to explain the full effects of all economic losses that an accident victim may have suffered, and can apply important statistics and mathematical formulas (e.g., growth rates, inflation) to items of damages such as future medical bills and future lost wages that show that the economic loss suffered by an accident victim is actually much larger than a simple layperson’s analysis would demonstrate.  For this reason, an economist is often a solid investment in a very serious personal injury case, especially when the case involves a permanent disability, and top personal injury attorneys will use this important tool to maximize the compensation to which their clients are entitled.

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Among the most important parts of any personal injury or medical malpractice case is the “discovery” process.  “Discovery” refers to the exchange of information relevant to the claims in the case between the parties.  The discovery process is how the evidence that will be used at trial is created. Among the evidence that can be – and quite often is – turned over in the discovery process and used at trial are photographs of the plaintiff’s condition after an accident, including those posted to a privatized social media account.  These photographs can be used by the plaintiff to impress upon the jury the devastating impact of their injuries, thereby supporting the plaintiff’s claims of damages if they show that the plaintiff must walk with a cane or is in a wheelchair, for example.  These photographs can also be used by the defense to demonstrate that the plaintiff’s injuries are not as bad as the plaintiff claims they are if they show that, shortly after an accident, the plaintiff was out and about and did not appear physically injured, for example.  Obviously, what is depicted in photographs will determine whose side – the plaintiff’s side, or the defendant’s side – will benefit from this important evidence of damages.

In today’s world, many people post an incredible amount of information about their lives to various social media platforms.  To many plaintiffs’ lawyers’ dismay, personal injury victims also participate in social media, posting information (including photographs) relating to their injuries and the facts of their case, often to the serious detriment of their cases.  Despite lawyers’ warnings, clients inevitably forget, or even deliberately ignore their lawyers’ instructions, that any photographs that are posted to social media can be used against them in court.  Even though social media is a relatively new phenomenon in our society, examples of errant social media posts which have seriously reduced the value of personal injury cases are abundant.  Even when a plaintiff is truly injured, a photograph of them enjoying a moment of levity with family or friends – even if it is the only moment since their accident that they have actually enjoyed, or the only time that they have been able to fight through their pain to leave the house, put on a smile and have even a moment’s worth of fun – can devastate their claims.  Our attorneys always counsel clients to completely cease use of social media platforms during the pendency of their cases, and for good reason.

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