Recent Blog Posts

BEWARE of Social Networking Sites

Alan Stern — Fri, 16 Sep 2011 17:24:00 GMT

Why do social networks such as Facebook, My Space, Twitter and others matter so much?

People who consistently use Facebook, My Space, Twitter or other social networking sites to post events, pictures and daily activities online,risk having what they perceive as private information exposed during the discovery phase of litigation. Whether it's because a person was injured by negligence, a matrimonial matter or criminal case, when they post information about their personal relationships, activities, lifestyle and injuries, this information can be used as fair game to prove inconsistencies in their legal claims.

Courts have generally held that when a user makes information available publically via their privacy settings, there is a lower expectation of privacy and, therefore, the information is discoverable. In the 2010 New York case of Romano v. Steelcase Inc. [30 Misc.3d 426, 907 N.Y.S.2d 650, (N.Y. Sup. Ct., 2010)], the Court allowed discovery of entire social media sites with all current and deleted postings, which included ordering the plaintiff to provide the defendant with access to private postings from two social media sites. The reasoning behind the Court's decision was that information contradicting the plaintiff's claims was included on the public sections of the plaintiff's social media site and, therefore, it was reasonable to believe that the private sections might contain additional relevant information. The Court even cited Facebook and MySpace policies, which warn users they should have no expectation of privacy.

"With social networks, we're able to visualize the connections between individuals, says Fred Stutzman, Ph.D., student and teaching fellow, School of Information and Library Science at UNC Chapel Hill. "Even if the value or magnitude of the connection is the same for everyone (and that doesn't mirror real life), knowing the connections between individuals helps us better understand them, who they are connected to, and how they are connected to us."

We had a client that was dancing at her sister's wedding and looked in fabulous condition without any apparent physical limitations when the videographer recorded her tearing it up on the dance floor and the video was later uploaded to a relative's facebook page. The next day, she could hardly get out of bed and she couldn't walk but that was not on video. It is difficult to explain these candid moments to a jury.

September 11th Thoughts

Alan Stern — Thu, 15 Sep 2011 17:20:00 GMT

New York:Do you remember where you were on September 11, 2001?

It is a day that will live on in our minds and our history books, a day we will recount to our children and grandchildren, a day when our nation transformed its civic virtue from innocense to fear, anger and suspicion. The freedoms we took for granted as a nation would be called into question in order to protect the greater good of this nation. Ten years later, in a post- Bin Laden world, we still must maintain vigilance against terrorists at home and abroad, and strive to find creative ways to protect our individual freedoms from getting lost in the name of security. Many agree that privacy is important but we are now willing to give away some freedoms, as the price of protection from another possible attack. As proud Americans and New Yorkers, on the tenth year anniversary of the World Trade Center attacks, we must take time to reflect on what we have learned, appreciate family and friends and be thankful.

The September 11^th Memorial officially opened to the general public this month on the site of the World Trade Center Memorial to commemorate the nearly 3,000 people who perished at the hands of terrorists. As we grumble about the toll it has taken on our individual privacy and the sacrifices we continue to make, let us not forget we remain one nation, under god, indivisible with liberty and justice for all!

Innocent Until Proven Guilty: Jury Duty

Alan Stern — Tue, 05 Apr 2011 23:36:00 GMT

Oh no, I just received a notice to report for jury duty in Kings County (Bronx County, New York County, Nassau County, Suffolk County or Westchester County)! What do I do now? I really can’t afford to be away from my job. How can I get out of serving? If you have similar thoughts, you are not alone. Many people have experienced these and similar feelings when they are subpoenaed to report for jury duty.

Courts need everyday people as jurors: housekeepers, waiters, deliverymen, construction site workers, housewives, retired people, doctors, computer techs, lawyers, accountants, etc. No one is too dumb or uneducated to serve! Without jurors like yourself, people from various backgrounds and diverse employment experiences, justice would never be administered. Each of us uses our common sense everyday to analyze and reason to arrive at decisions that impact our lives. Justice needs jurors willing to bring their individual experiences and simple reasoning skills to Court to help determine the facts of the case and the guilt or innocence of the people involved in a court battle.

Each one of us, as citizens, has a duty to judge and the constitutional right to be judged by the people in our community, our peers! A plaintiff who brings an action deserves to be fairly compensated for injuries resulting from the carelessness of one who is negligent. After all, we must all be held accountable for our actions, especially when those actions injury another, whether unintentionally or not. It is that concept of accountability that makes our society safer as we force everyone to act responsibly.

People who serve on juries actually report that the experience is often pleasant and educational. By serving as a juror, you play a critical role in our democratic civil justice system and, in return, you gain a better understanding of how well our system of justice works.

It is a great way to serve your community; it is a constitutional right and privilege that differentiates the United States from other countries. How fortunate we are to be an integral part of justice, determining guilt or innocence, misfeasance or malfeasancy. The next time you are asked to report for jury duty, please serve. You will find it to be an incredible experience, one of the most important contributions you can make in your lifetime and it will result in a great sense of gratification.

A jury summons does not mean that you will be chosen to serve. If you absolutely cannot serve on the date requested, you may ask for an adjournment. However, some people who choose to ignore their jury summons may face civil penalties.

An employer may not penalize an employee for reporting to jury duty and serving even if the trial turns out to be lengthy. Most trials last only a few days and the majority will settle shortly after jury selection. Often your employer will elect to continue to pay your salary while you serve; however, if he does not, you will be eligible for some compensation directly from the court system.

The dedication that you give to this process is crucial to ensure that the parties receive justice and that disputes are resolved peacefully. If you were a victim of an unfortunate accident and sustained significant injuries resulting in a disability, wouldn’t you want a jury of your peers to show up to Court? Or would you prefer to leave it in the hands of those who can easily give more easily of their time: the unemployed, welfare recipients and retirees? To be fairly judged, the system requires a fair cross-section of society and that is exactly why your participation is necessary.

Immediate Action Required

Alan Stern — Mon, 21 Feb 2011 21:55:00 GMT

In a continuing effort to undermine the basic rights of injured victims, the insurance lobby has renewed its efforts to generate large profits by lobbying legislators and your representatives in Congress to change laws to minimize pay-outs by capping medical malpractice awards to crippled victims.

On Wednesday, February 16, 2011, the House Judiciary Committee approved a medical malpractice reform bill by an 18-15 party-line vote.. The Bill caps non-economic damages at $250,000, limits punitive damages to $250,000 or twice the economic damages. The next vote will be among the entire United States House of Representatives.

Two points I think we should all consider:

1) Under the Bill of Rights, the 7th Amendment guarantees the right of a jury trial in all civil cases in which the amount of judgment might exceed 20 dollars. The High Court’s in three states, Georgia, Illinois and Missouri have declared the cap on non-economic damages unconstitutional in 2010.

2) Patients facing malpractice caps are forced to rely on taxpayer funded programs to care for their injuries and disabilities, meaning that the tort reform laws actually result in more money being taken out of taxpayer pockets.

Our New York State Congress is also taking similar steps to restrict your rights under the guise of “budget savings” means.

Please immediately e-mail or call your Senator or House Representative. Tell them you want them to protect your inalienable Constitutional right to a jury trial free from Governmental dictates and to avoid having taxpayer dollars used to fund care for victims of malpractice.

Gillibrand, Kirsten E. (D - NY) - Class I
478 RUSSELL SENATE OFFICE BUILDING
WASHINGTON DC 20510
(202) 224-4451
gillibrand.senate.gov/contact

Schumer, Charles E. (D - NY) - Class III
322 HART SENATE OFFICE BUILDING
WASHINGTON DC 20510
(202) 224-6542
schumer.senate.gov/new_website/contact.cfm

For NY STATE CONGRESSMEN, REFER TO THE FOLLOWING WEBSITE TO LOCATE YOUR REPRESENTATIVES and tell them how you feel: www.nysenate.gov/senators

Have You Been Outside Lately? LIABILITY FOR SLIPS AND FALLS ON ICE

Alan Stern — Wed, 09 Feb 2011 01:33:00 GMT

This year New York City has experienced one of its worst winters on record and its not over yet. In fact, January 2011 snowfall accumulations have surpassed the previous record in NYC. While the City may have appeared magical to some and a winter wonderland to others, the wet, blustery and snowy conditions resulted in many accidents for drivers, as well as for pedestrians. Therefore, it is important to understand not only who, if any, are the responsible parties but also under what circumstances a duty of care is owed by municipalities and property owners to the pedestrians who slip and fall on ice.

If you have walked thru a parking lot or driveway, on a sidewalk or walkway recently, you probably noticed the accumulation of slush or ice from melting snow. You may have also seen large frozen patches of ice at the entrance to stores or commercial businesses and even experienced a patch of hard to detect A black ice @ that causes you to skate unsteadily over it. What happens if you slip and fall on any of these conditions; is it a negligent or actionable condition?

Generally, a pedestrian who slips and falls on ice, sustaining an injury, must establish that the dangerous condition existed for some time prior to the last snow or ice storm and not be a storm in progress at the time of the fall. Sidewalks are a unique situation since they are owned by the municipality in which they are located and were the responsibility of the City or Town to maintain. However, since September 14, 2003, a NYC regulation known as the NYC Sidewalk Law [Section 7-210 of the New York City Administrative Code] was enacted to shift liability for sidewalk accidents from the City of New York to the abutting property owners. On snow and ices cases within the City of New York , appellate court held:

"The owner or lessee of property abutting a public sidewalk is under no duty to remove ice and snow that naturally accumulates upon the sidewalk unless a statute or ordinance specifically imposes tort liability for failing to do so" (Bruzzo v County of Nassau, 50 AD3d 720, 721; see Robles v City of New York, 56 AD3d 647; see Bisontt v Rockaway One Co., LLC, 47 AD3d 862, 963; Jablons v Peak Health Club, Inc., 19 AD3d 369, 370). Here, since section 7‑210 of the Administrative Code of the City of New York applies, the respondent property owner and tenant were required to remove snow and ice [*2]from the abutting sidewalk. Snow removal efforts were undertaken by the respondent contractor two days prior to the accident. @ Plotits v Houaphing D. Chaou, LLC 2011 NY Slip Op 00665 (2 ^nd Dept. February 1, 2011)

Accordingly, a retail business within the five boroughs can now be held negligent if it failed to clear the entrances/exits after a reasonable amount of time has passed once the storm has subsided. Two days after the storm is certainly a reasonable amount of time to clear an exit, whereby two hours may be deemed an unreasonably short amount of time to correct the condition which was not created by the owner, but rather was an act of nature. Of course, the location will often dictate the urgency of the timing of the snow removal. For instance, the entryway to a hospital emergency room will require greater attention.

If a customer slips and falls on snow in the entranceway, the store owner may be responsible, however, YOU, as the injured pedestrian, must be sure of the specific area where the accident occurred and that a report is made to the property owner. Notice and opportunity to correct the dangerous condition are often the keys to winning these cases. Shoveling and sanding or salting are important methods of keeping the area less dangerous and depending upon the foot traffic, maybe absolutely essential actions for the prudent property owner to undertake. In the absence of due care which results in a fall, photographs of the area as it appeared at the time of your accident (captured by cell phone or digital cameras) are often key pieces of evidence in helping to achieve a successful outcome and in establishing liability. Stay alert and be safe!

Identity Is Our Most Important Possession

Alan J. Stern — Wed, 13 Oct 2010 19:45:00 GMT

We recently helped a woman, Ms. A, who had a streak of bad luck. Her husband had left while she was pregnant; her baby was born prematurely with many medical problems (requiring her to move to a different state so the baby could get treatment); and her terminally ill mother, who lived with her had died, all within five years. Her driver’s license had expired years before but she was too busy to deal with it, and besides she no longer had a car.

When Ms. A finally went back to work and tried to open a bank account, she needed photo identification from a government agency, like a passport or driver’s license, before the bank would open an account. She had no idea what to do. Ms. A could not get a certified copy of her birth certificate or a replacement social security card without a government issued photo I.D. or a major credit card, or copies of the very documents she was trying to replace. Ms. A was born in this country, had a social security number and had paid taxes. She still had no way to open up a bank account and lived a “cash life” from paycheck to paycheck by going to a check cashing facility.

You may know your social security number, but how many people can locate their original social security card? If you were asked to produce a certified copy of your birth certificate, could you? Those of us who have a valid driver’s license, passport, or a non-driver photo identification card issued by the Department of Motor Vehicles rarely run into a problem because these items are considered government issued picture forms of identification. However, let a driver’s license lapse over two years, and you will be asked to supply a certified copy of a birth certificate along with an original social security card in order to reclaim your government issued photo I.D. If you do not have a current passport or driver’s license or it has been expired for some time, you may have a great deal of difficulty trying to prove your identity. A check cashing card, student identity card., library card are not acceptable forms of identification when it comes to attaining government issued photo I.D. which you need to open a bank account.

To get a certified birth certificate or replacement social security card you need a major credit card and government issued photo I.D. It is nearly impossible to get a replacement social security card without a certified copy of your birth certificate plus another form of identification or photo I.D. issued by a government agency like the New York State Department of Motor Vehicles or United States Passport Office. It is often a Catch-22 with one agency refusing to give you the documentation you need to get from another agency.

Please keep your important paper documents for you and your family in a safe place and do not let life get in the way to prevent you from renewing your driver’s license or passport in a timely fashion. Following September 11, 2001, the United States Congress passed the Patriot Act in an effort to crack down on illegal immigration and to prevent terrorists from entering our country. The Patriot Act requires stringent documentation to prove a person’s identity before the United States government will replace or issue identification. Please keep your government issued documents up to date to prevent problems in replacing these items.

Don’t Schedule Elective Surgery For July!

Alan J. Stern — Fri, 25 Jun 2010 03:32:00 GMT

2010 study from the University of California San Diego shows that the number of deaths from medication errors in hospitals stayed the same for 11 months of the year but spiked significantly in the month of July. The study confirms a long held suspicion within the medical profession that July, the month when hospitals take in a new influx of medical residents, is the worst time to schedule any type of surgery. The reason for the medical errors stems from the fact that these new residents have little experience of which even the smallest of mistakes can result in fatalities, especially when there are medication errors.

ABC news recently ran a story (June 3, 2010) citing this study and found that patients were more likely to die of medication errors during the month of July at university teaching hospitals where new medical interns and residents were routinely assigned. This is consistent with the tremendously high turn over in hospital support staff during July, complicated by the inexperience of its new medical residents. Few interns or interns are added into the hospital setting during the other 11 months of the year, but rather they arrive all at once, after graduating from medical school each June.

The study was published in The Journal Of General Internal Medicine and consisted of 20 years worth of data (1976-2009), which included 62 million patients at hospitals throughout the United States. It recorded 244, 388 deaths in teaching hospitals attributed to medication errors. One’s chance of being the victim of a medication error was equally distributed over the other eleven months; however, in July it soared, when one’s chances increased by ten percent. Hospitals that were not associated with university teaching hospitals did not see the same “July Effect.” Allergic reactions from medications were not included in the study, nor medication errors found after the patient left the hospital.

The moral of this story: Do NOT schedule elective surgery at a university hospital during the month of July.

Wrongful Death Statute: Crying for Change

Alan Stern — Sat, 01 May 2010 01:23:00 GMT

Has your family has suffered the loss of a child or retired elderly parent who may have died as a result of medical malpractice, a car, bus or other motor vehicle accident; a slip or fall, a school, or nursing home accident caused by the negligence of another? It may be shocking to learn that you cannot sue the responsible party in New York State for your emotional distress at the loss of a loved one. Simply stated, a person who is not employed (child) and is not a wage earner (retiree, house wife or child) often does not have much value under the law in New York. Parents suffer additionally when they learn that parents that the loss of their child is considered to have limited or no economic value.

The law must be changed. On April 20, we traveled to the State Capital in Albany with many other plaintiff’s attorneys from across the state to lobby in an effort to change NY’s draconian Wrongful Death Statute. Several New York State senators were in favor of changes to this 150 year old law but the majority of senators were reluctant to do so because it would cost insurance companies more money if they were forced to pay for survivor’s grief resulting from their insured’s negligence.

Please write to your local senator or assemblyman and express your outrage! Insist that justice cries out for this law be changed.

Right-of-Way: Never Proceed Blindly!

Alan Stern — Sun, 28 Feb 2010 08:15:00 GMT

Nearly one-third of all motor vehicle accidents are caused by discourteous drivers [C&T March Digital 2010]. But rude drivers who tailgate and cut-off other motorists are not the only ones causing accidents. Believe it our not, well-meaning, courteous drivers can also unintentionally contribute to accidents, so the key mantra is "Always be aware of your surroundings and certainly be cautious." You cannot simply rely upon another motorist's courtesy before proceeding; you must always check to see if the coast is clear...

In a quiet rural American cemetery, a faded old tombstone wisely reads:
"This is the grave of Mike O'Day;
Who died maintaining his right of way.
His right was clear, his will was strong;
But he's just as dead as if he'd been wrong."

Nowhere does courtesy affect safety more than in right-of-way situations. Who goes first? While rules of the road should govern, motorists don't always yield or stop to allow those with the right-of-way to pass.

The prudent driver will always look before proceeding. Simply because another driver stops and waves you on to cross traffic, does not give you the right to proceed blindly across multiple lanes of traffic. The stopped motorist is often unaware of traffic conditions behind him and blindly accepting another's courtesy is a recipe for disaster.

The rule is simple: Don't cross unless you actually see traffic in both oncoming lanes. While the other driver may think he's being helpful in waving you to cross, he may be inviting you into a potential collision. Trust your instincts. If you don't feel safe, don't proceed.

"Right of way is always given by someone, and you can't assume that everyone will follow the rules. Not everyone sees each situation exactly the same. Being right doesn't guarantee that you'll be safe." That is a valuable rule we all should understand.

Special Treatment for Insurers and Protection from Malpractice

Alan Stern — Mon, 18 Jan 2010 17:23:00 GMT

If your health insurance company denies your doctor's request for a necessary test and, months later, when they finally approve your condition has deteriorated and is no longer easily treated, your health insurance company is immune from suit in New York. If a doctor commits malpractice, he is held accountable. However, if your insurer arbitrarily denies testing or treatment deemed necessary by your doctor, it escapes responsibility for the consequences.

Your insurance company cannot be held responsible even though it is the one practicing medicine, steering the course of treatment, cutting costs whenever possible. If a delay in diagnoses results from the insurer’s refusal to pay for the necessary testing, it has caused injury by preventing early diagnosis and treatment. If the treatment plan is dictated by the insurer, how can the doctor be held responsible when the decision making process was taken away from him? After all, it was the insurer who denied access to a test that the doctor deemed medically necessary. If the insurer is going to practice medicine, it needs to be held responsible.

A young man recently came to us after consulting with several doctor for a mild hearing loss. None of the board-certified ENT doctors could find a cause for the hearing loss. Each doctor recommended an MRI study of the brain, which the insurer consistently denied as unnecessary.

After six months and a continued loss of hearing, the insurer finally agreed to permit a CAT scan which not surprisingly showed nothing. Finally, after nearly one year after the symptoms began, an ENT doctor finally got approval for the MRI, which revealed a brain tumor. Unfortunately, the client had already suffered a complete hearing loss in his left ear. It was uniformly agreed that if the MRI been authorized when first requested (more sensitive test than a CAT scan), his hearing would have been preserved. The failure to treat the tumor early resulted in permanent deafness.

What are you to do when the medical decisions are taken away from your doctor by your insurer? If you have the money, you could pay for the MRI yourself, but most people don’t have a spare $1,800 to spend on a test which should be covered by their health insurer. After all, isn’t that why we pay high insurance premiums each month? By collecting large amounts of premium dollars and then refusing to spend them on necessary tests, the insurers make big profits. Does any one see the conflict which occurs when we allow insurers to police themselves and decide what tests they will pay for and what they will not? And then shelter them from the consequences? Where victims are left without remedies, there is clear injustice.

Under current NYS law, your health insurer is immune from liability under Federal Laws which pre-empt lawsuits against health insurers. Does this concern you? Just think about the control that healthcare insurers have in dictating the maximum fees that doctors are allowed to charge. Do you think price-fixing is a violation of the anti-trust laws, which stifles competition? Insurers are exempt from anti-trust laws. This is yet another example of how powerful insurers get away with making their own rules, while operating outside the laws that govern everyone else.

Bulging Discs Can Bring Down A Giant

Elyse Stern — Thu, 03 Dec 2009 23:51:00 GMT

New York Giant's middle linebacker, thirty-one year old Antonio Pierce, has been sidelined "indefinitely" from completing his 2009 football season with a bulging disc in his neck.  It may pose not just an end to his season, but quite possibly an end to his football career.

Damage to spinal discs is the most common of all "soft tissue" injuries experienced by people involved in accidents. This is most significant in motor vehicle accidents where sudden deceleration or acceleration cause enormous forces to collide behind the weight of heavy metal, all in an instant. Herniated discs which pinch nerves and cause chronic pain are often seen on the MRIs of accident victims as a result of these sudden and intense forces.  Unlike fractures which often result in complete healing without residual limitations, often neck and back injuries pose chronic conditions which leave victims with permanent limitations and life long injuries.

Age can often influence disc problems as well.  Attempting to downplay the significance of neck and back pain which impacts on the work place, household responibility, and social events is a fallacy as Antonio Pierce now understands. These types of injuries are debilitating and must be taken very seriously.  It is very important to find a medical doctor who specializes in trauma and rehabilitation therapy to manage your care and provide the best chance of recovery.

New Mammography Dilemma

Alan Stern — Wed, 02 Dec 2009 00:36:00 GMT

No one doubts that mammograms save lives! The new guidelines issued recently by the government task force on mammograms states: annual mmamography for women over age 50, rather than age 40, should be the norm because of the high rate of false positives and the costly biopsies that follow. The United States has had a 30% decrease in the death rate from breast cancer since the advent of wide spread screening and annual mammograms starting at age forty.

When women under 50 are diagnosed with breast cancer, the cancer tends to be more aggressive. If women in the general population get fewer mammograms in this age group, there will be a failure to diagnose cancer early and fewer lives will be saved.

What the government task force has essentially stated is the risk of false positives does not justify the expense of early breast cancer detection. If health insurance companies follow these new guidelines, mortality rates from breast cancer will rise, as will insurance company profits. The American Cancer Society is not changing its recommendations that women get routine annual mammograms starting at age 40.

Attention Women of New York, Women Everywhere, whether you live in Manhattan, the Bronx, Brooklyn, Queens, Westchester, Long Island, Staten Island or Upstate, PLEASE DISREGARD THE NEW GOVERNMENT TASK FORCE GUIDELINES ON MAMMOGRAMS!