Most Buffalo personal injury lawsuits involve a defendant whose damages are – at least to some extent – covered by insurance. Motor vehicle, homeowners and other types of insurance often provide the defense, including hiring attorneys, in personal injury litigation. When doing so, an insurance company is legally required to protect not just its own interests, but also the interests of its insured. When it fails to do so, it may be accused of acting in “bad faith.”
There are several acts that may lead to an accusation that an insurance company is acting in bad faith, but in personal injury lawsuits, this issue usually arises when a jury returns a verdict in excess of the policy held by the insured. While an insurance company is not required to settle every lawsuit if it has a legitimate reason to believe it has a meritorious defense or the value of the injury is well below the policy limits, it is required to take reasonable steps to protect the assets of the insured.
As an example, an insurance company has an opportunity to settle a personal injury lawsuit within the policy limits. The injury is likely to be worth more than the policy limits and the insurance company’s client is clearly at fault. The insurance company decides not to settle the lawsuit. The matter is then taken to trial and the jury renders a verdict far above the policy limits. Under this scenario, the insurance company may be found to have acted in bad faith and subject to civil litigation to recover the additional amount the defendant is required to pay.
Buffalo medical malpractice lawsuits can be very time consuming and expensive for all parties involved. Fortunately, that situation may soon change based a program designed to resolve such cases quickly that appears to be coming to Erie County.
Currently there are approximately 4,000 medical malpractice claims filed in New York State each year. Many of these claims are straightforward matters that could be resolved quickly, but instead become bogged down in the court system as the attorneys involved use traditional methods in an effort to reach resolution.
Under the proposed program, cases come before a judge earlier in the process, facilitating meaningful dialog between the parties and resulting in cases settling more quickly. A version of the program being brought to Erie County has been used in the Bronx, where it has shown both to cut down on court delays and save money. It also cuts costs to hospitals and directly impacts their insurance costs because time and money is not wasted litigating matters that will eventually settle anyway.
The program is funded by a $3 million federal grant used to train judges on medical issues and is being expanded to Brooklyn, Queens and Manhattan. Some Erie County judges are also being trained.
If you have been the victim of medical malpractice and have any questions, please feel free to call us at 716-542-5444. We would be happy to help you.
Few people involved in Buffalo personal injury lawsuits are one hundred percent healthy prior to being involved in a personal injury accident. As a result, it is not unusual for the defense to point to “pre-existing injuries,” such as age-related changes to the spine or joints, as the cause of the injured person’s suffering instead of the accident.
A pre-existing condition, however, does not bar recovery for damages. If such a condition was aggravated or activated by an accident, the injured person is still entitled to recover damages to the extent that the accident exacerbated his or her condition. While the pre-existing condition creates an additional hurdle for the plaintiff – one that the defense will attempt to exploit – it is entirely possible to recover for any additional injury.
When seeking dismissal prior to trial, the defense must establish that the injury was pre-existing. The plaintiff must offer proof that the accident activated or aggravated it. Obviously, in such cases it is very helpful to the injured person if the medical records establish that he or she had few or no complaints about the condition prior to the accident and there was a drastic change in the treatment required following the personal injury accident.
If you have suffered an injury and have any questions, please feel free to us at 716-542-5444. We would be happy to help you.
Most of the people using football helmets in the Buffalo area do not play for the Buffalo Bills. Instead, they are elementary, high school and college students playing at a scholastic level. While football is a violent sport, every effort should be made to keep these young people safe. Unfortunately, a recent study by the Cleveland Clinic indicates that modern style football helmets may not be the ideal way to protect youth from head injury.
The study tested modern football helmets and the old, leather helmets used decades ago to judge their ability to protect the head from low and medium impact hits – the degree that would commonly occur among youth – at a variety of angles. The extremely hard hits that may occur at the NFL level were not tested.
Surprisingly, the study found very little difference between the two styles of helmets. In some cases involving these lower level impacts, the leather helmet proved to actually be more effective at protecting the head.
The researchers at the Cleveland Clinic have indicated that they hope this finding will lead manufacturers to re-examine helmet design for youths. The helmets currently used are essentially scaled down versions of professional style helmets. These helmets are optimized to protect the head against the extremely hard hits seen at that level of play, but do not seem as effective at preventing head trauma from the lesser hits experienced by most youth when playing football.
If your child has suffered a head injury and you have any questions, we would be happy to help you. Please feel free to call us at 716-542-5444.
Under New York State law, all Buffalo motor vehicle accident lawsuits require the injured person to prove that he or she suffered a “serious injury” before damages can be recovered. The law defines several different categories of what may constitute a serious injury. While some categories – a fracture or dismemberment, for example – are straightforward and easy to prove, other categories – such as a significant limitation of use of the injured part or a permanent consequential limitation – are more ambiguous and require proof of the degree of injury.
To meet the serious injury threshold under one of these categories, the injured party must be able to establish (1) objective evidence that an injury occurred and (2) the degree of limitation. Objective evidence of injury generally consists of physical evidence, such as CT scans or a doctor’s direct observation of trauma. Without objective evidence, a serious injury under these categories cannot be proven.
New Yorkcourts have ruled that the second prong of this test – degree of limitation – may be established in two ways. One way is for proof to be submitted of testing performed by a medical professional that establishes a limitation. For example, a test may show a decreased ability to move a body part. Limitation may also be proven through a description of the degree to which the injured person’s day to day living is impacted by the injury. For example, a medical provider may find that someone should not lift as much, should not work with their arms overhead, or cannot sit for extended periods of time. If the impact on daily living is found to be great enough, these factors may also be sufficient to establish a serious injury.
One of the difficulties Buffalo personal injury attorneys face is that they are not only required to understand the law, but they must develop at least some grasp of various medical conditions from which clients may suffer. When it comes to some injuries, such as spinal disc injuries, this problem can become even more complicated because different medical providers are not always consistent in how they classify injury to the disc.
Generally, a bulging disc is a disc that extends outside of its normal boundaries. A bulge may affect a large portion of the disc. It is not unusual for disc bulging to occur as a person ages. A herniation usually refers to a crack in the outer layer of cartilage surrounding the disc. This allows some of the softer inner cartilage to leak out. Unlike a bulge, this protrusion usually occurs in one distinct area of the disk and not across a large section of it. A herniated disc may also be referred to as a ruptured disc or slipped disc.
While this may seem a fairly straightforward distinction, not all medical providers agree on where to draw the line distinguishing a herniation from a bulge. Even more inconsistency arises when other terms, such as “protrusion” are introduced. Some medical providers consider a protrusion a form of herniation, others seem to consider a closer to a form of bulge.
Because of this inconsistency, it is important to not just look to the terms, but to find out what a medical provider actually means by those terms when pursuing a personal injury lawsuit.
Buffalo motorcyclists should be aware that Honda is recalling 126,000 motorcycles as a result of a braking problem that may lead to a fire or cause a crash. The motorcycles affected are the 2001-2010 and 2012 GL 1800 models, also known as the Gold Wing models.
A defect in the master cylinder of the rear brake of these models may result in the brake remaining partially engaged after the rider has released it. According to Honda, the drag on the rear brake from driving while it is engaged has the potential to generate sufficient heat to lead to it catching fire.
Honda is aware of two incidents where a fire had occurred, along with several reports of rear brake dragging. While Honda’s report to the National Highway Traffic Safety Administration did not provide any details regarding whether the brake issue had led to any accidents, for drivers motorcycles, the potential for difficulty maintaining control with the rear tire grabbing is obvious.
If you have suffered an injury in a motorcycle accident, we would be glad to help. Please call us at 716-542-5444.
Nearly all Buffalo personal injury lawsuits revolve on the issue of negligence. While the injured party must prove the negligence of the defendant in causing the injury, it is not unusual for a defendant to claim that all or part of the injuries were caused by the injured person’s own negligent conduct. Comparative negligence and contributory negligence refer to two differing ways that a finding of negligence may be handled when determining damages.
Prior to 1975, personal injury lawsuits inNew York State were decided under a contributory negligence standard. Under this policy, if an injured person was found to be to any degree at fault for his or her own injury, he or she could not recover any damages. Even if the defendant was found 99% responsible and the plaintiff only 1% responsible, the defendant was not required to compensate the injured party.
After 1975,New York State changed this law and adopted a comparative negligence approach. While difference states have differing degrees of comparative negligence, New York is considered a “pure” comparative negligence state. This means that even if the plaintiff is 90% responsible and the defendant only 10%, the injured party is entitled to recovery of that 10%. There is no minimum threshold that must be reached; the amount of financial damages is simply reduced by the percentage that the injured person is found at fault.
Buffalo personal injury lawsuits can become complicated when medical payments are being made by government run programs or even, in some cases, private health insurers. This is because in many cases, these parties may have a right to full – or at least partial – reimbursement for any payments made to treat injuries compensated for in a personal injury lawsuit.
As a result, the agency or agencies covering medical expenses will usually want to be apprised of any resolution to the personal injury lawsuit so that they can ensure that their rights are not compromised. Further complicating such matters is that what rights the agency possesses, its influence over resolving the lawsuit, and the circumstances under which it is entitled to full or partial compensation may vary greatly from agency to agency.
Your personal injury attorney does not want to resolve your case only to have much of your compensation taken from you as reimbursement for past medical payments. While this may sometimes be unavoidable, an awareness of what agencies may hold such claims can assist your attorney in determining how best to proceed with your case.
If you have suffered a personal injury, please feel free to call us at 716-542-5444. We would be happy to help.
The circumstances under which a Buffalo family may bring a wrongful death lawsuit are very diverse. There are, however, some basic legal requirements that must be met before such a lawsuit may be pursued.
New York State law provides that the personal representative of a deceased person (such as the executor of a will or other individual legally responsible for the administration of the estate) may bring a wrongful death lawsuit so long as there are living distributees to the estate. In other words, there must be family members entitled to the estate who have survived the victim of the wrongful death. The wrongful death claim generally may be brought against any person who would have been liable to the decedent for their wrongful conduct if the victim had not died.
In most cases, a wrongful death lawsuit must be commenced within two years of the victim’s death. When the actions of the defendant have also led to criminal charges being filed, however, the representative of the deceased person has at least one year from the conclusion of the criminal case to bring a wrongful death lawsuit, even if this extends beyond the normal two year time limit.
If you have lost a loved one due to another’s wrongful actions, please feel free to reach out to us at 716-542-5444. We would be happy to answer your questions.
