New York Accident Lawyer Blog

In New York, injured people can recover for the conscious pain and suffering and loss of enjoyment of life that they suffer as a result of injuries they sustained in an accident. Conscious pain and suffering, according to the Pattern Jury Instructions (PJI) 2:280, is "pain and suffering of which there was some level of awareness by the plaintiff". Loss of enjoyment of life, according to the PJI, includes the "loss of the ability to perform daily tasks, to participate in the activities which were a part of the person's life before the injury, and to experience the pleasures of life". The threshold of "some level of awareness" in order to recover under the law had to be set by the Court of Appeals for purposes of simplicity.

When a person brings a personal injury case, he or she waives the physician-patient privilege as to mental or physical injuries or conditions, but only as to those that are affirmatively put in issue by him or her in the lawsuit. The party seeking the disclosure of mental or physical health information (defense counsel) bears the burden of making an evidentiary showing that the condition is in controversy and discovery may proceed under the statute. Defense counsel will ordinarily not be able to show entitlement to discovery of a medical file pertaining to treatment for an injury to the cervical spine in 2008 when the plaintiff is making a claim for a 2011 foot fracture.

What if a plaintiff claims that she suffers from anxiety as a result of a fractured foot that occurred in a 2011 accident? Does it render her complete file of psychiatric records discoverable? Or what if she claims that she lost the enjoyment of her life as a result of the fractured foot she sustained in the 2011 accident? Does this claim render her entire physical and mental medical file discoverable?

Continue reading "Loss of Enjoyment of Life, Conscious Pain and Suffering: Personal Injuries in New York" »

The House Judiciary Committee voted 18-15 along party lines in the past week to send a Republican sponsored medical malpractice tort reform bill to the full house for approval. This bill is the latest in a long continuing assault by the minions of corporate america, i.e the Republican party, to limit or eliminate the individual's right to seek redress in the courts for injuries sustained as a result of medical negligence and eventually destroy the right of the average citizen to seek compensation for negligent medical treatment. The law, if passed, would limit without condition all monetary recoveries for acts of medical malpractice for pain and suffering to $250,000 or twice the amount of economic damages, whichever is greater, that juries could award patients who bring suit for injuries suffered during the course of medical treatment. The bill is sponsored by Rep. Phil Gingrey, M.D. (R-Ga) an obgyn who himself has been a defendant in medical malpractice cases (does he have an ulterior motive here?).

The truth about the motivations behind these constant attempts to eviscerate medical malpractice litigation is not to help reduce health care costs. Everyone admits that malpractice law suits add very little to the costs of healthcare, and help redress the terrible toll of pain and suffering by victims of malpractice. The real motivation behind these bills is to help protect the profits of insurance companies who have to pay out on any settlements or verdicts.

If you want to maintain your right to sue, immediately write or e-mail your congressman and senator to vote against this draconian bill that will do nothing to help bring down the costs of healthcare and will eliminate yet another tool in the arsenal of the individual in his fight against corporate america.

By Philip R. Papa

This is the second part of a series of entries. The first part can be accessed here

What if you are not NFL material but become injured while playing sports and want to recover money for your injuries? In most cases there will likely be no issue with fraudulent concealment, workers' compensation, and collective bargaining. Aside from that, the rules are the same. The assumption of the risk doctrine applies to a range of physical activities from children playing catch to little league teams, school athletic activities, and professional sports activities. In New York, the assumption of the risk doctrine has been applied to virtually every sport, including baseball, softball, football, basketball, tennis, soccer, hockey, golf, skiing, horse racing, track and field events, wrestling, and the martial arts.

The determinative queries on liability are whether the risk that resulted in the injury was the type inherently associated with the sport in question and whether the risk was obvious to the participant but he or she nevertheless opted to assume the risk by participating. The participant's experience with the sport in question will also come into play, but some risks have been found by New York Courts to be obvious to even the most novice of players. The defendant's duty is limited to not concealing or increasing the inherent and assumed risks and not engaging in reckless or intentional conduct to subject participants to risks. "Participation" and "sports" have been loosely interpreted by the courts and applied to people of all ages. Thus, one who is a mere spectator may be subject to the rules detailed above.

For purposes of illustration, let's use golf. In one case last December, the Appellate Division of the Second Department determined that a plaintiff who slipped and fell when he descended a staircase leading from the cart path to the eleventh tee box on a golf course assumed a risk that was inherently associated with golf. His case was dismissed. Similarly, the New York Court of Appeals dismissed the case of a doctor who was blinded in one eye by a fellow golfer's ball while playing on a nine-hole Long Island course in October 2002. The court found that the fellow golfer's failure to yell in advance of his errant shot was not intentional or reckless conduct and that "being hit without warning by a 'shanked' shot while one searches for one's own ball -- reflects a commonly appreciated risk of golf ".

On the other hand, another golfer sued when she fell on a pile of approximately thirty golf balls that were gathered together and concealed by grass clippings and leaves in Rockland County, New York. The court denied the defendant's summary judgment motion, finding that it failed to show that tripping on a gathered and accumulated cluster of golf balls was an inherent risk of the game of golf and not a unique and dangerous condition-an aberration-beyond the usual dangers that are inherent in the sport. As can be seen from these three golf examples, whether a lawsuit will be successful for sports related injuries is largely sui generis, or dependent on the facts of each case.

By Kathleen E. Beatty

This entry addresses general matters and should not be relied on by readers or considered legal advice.

Football season is winding down, but the National Football League should soon be winding up for two class action lawsuits that are purportedly being formulated against it. Continued and increasingly in depth research on football related brain injuries has spawned potential legal claims that have the ability to wreak havoc on the now over ninety year old organization.

Seventeen years ago, in 1994, the NFL medical committee on concussions was formed. In the last several years, report after report has surfaced detailing clinical research findings of severe and permanent cognitive harm associated with playing football. But these reports were not from the NFL. Rather, the NFL has put out conflicting statements on the subject and only recently reported similar findings to what reputable researchers have been warning about for years. In 2007 the NFL circulated a pamphlet to players stating, in essence, that a few concussions would not result in permanent brain injury, so long as proper medical treatment was received. Last summer, however, the NFL finally circulated a poster, meant to be hung in locker rooms, revealing that concussions may not be so benign after all (click the image to the right to make larger). Indeed, various studies have found that early dementia, Alzheimer's disease, Lou Gehrig's disease, depression, chronic traumatic encephalopathy, and memory problems, among other things, are all associated with head injury.

Some recent players of the league are expected to allege that the NFL was aware of the long term risks of playing football and chose to suppress them, or that the NFL reasonably should have known of the long term risks. The root of these claims is that the NFL's failure to disclose what they knew made an already dangerous sport even more dangerous and that the NFL made no attempt to lessen the danger. Such claims could result in awards to injured players for economic loss, pain and suffering, and in the case of a fraudulent concealment claim, punitive damages. Wives, and in some states, children of the injured players, could also recover monetary damages if the injured player's lawsuit is successful.

Continue reading "National Football League and Sports in New York, Part 1" »

Last week I attended the wake of one of New York's foremost mediators, Michael McAllister. Having been a private mediator with JAMS for the last six years, he had developed a reputation among all litigators in the negligence field as fair, honest, hardworking and a true gentleman. As I watched attorney after attorney and even insurance adjusters pass through the funeral home, I was reminded of the first time I had ever heard of the concept of mediation.

Almost fifteen years ago, I was asked, as a law student working at a prominent New York personal injury firm, to prepare a case for mediation. Having just completed three years of law school, I was kind of surprised that I had not heard of mediation. Furthermore, having worked for over ten years at this firm as a high school student, college student and law student, the concept of trying to settle the case using a private mediation service was something unheard of. We were weeks away from trial and it seemed like everything had been going as planned.

I walked into the managing partner's office and asked, what is this private mediation and why are we trying this since we are so close to trial? The answers I was given, though strange at first, are so on point and correct in today's litigation trial strategy.

Private mediation is essentially a mutual agreement by all sides to retain the services of a retired judge or former court attorney so that each side can present the strengths and weaknesses of their case in a forum that allows for open communication and dialogue. The goal is to begin settlement discussions and resolve the matter to the benefit of all parties, more often than not.

Continue reading "Mediation Increases the Success of Injured Clients in New York " »