Before most Buffalo personal injury lawsuits are brought to trial, the defense will request that the injured party be examined by a doctor of their choosing. While the defense will refer to this as an “independent” medical examination, these examinations are frequently looked upon with great suspicion by personal injury attorneys because the medical provider is being paid by the defense and, in most cases, is looking to limit the relationship between any injury and the accident.
There are instances, however, when a defense medical examiner will find that the plaintiff did suffer injury in the accident and that the injury is as bad as the victim claims. Obviously, the defense would not want this doctor to testify in front of the jury, while the personal injury attorney would like to present to the jury that the defense’s own doctor found that the defendant caused injury to the plaintiff.
Generally, an expert witness retained by one side may not be adopted by the other as a witness, since this would put the witness in a position of working for both parties. However, when a medical provider hired by the defense examines the injured party and reports his or her findings, the medical provider can be called as a witness. At trial, this medical provider may be asked to relate the substance of the report and to offer his or her opinion regarding causation.
The injured party in a Buffalo personal injury lawsuit may be requested to undergo an EMG test by their medical provider. This test, which is often performed in conjunction with another test called a nerve conduction study, is occasionally used in the diagnosis of injuries involving damage to the spine causing pain to radiate into the limbs.
EMG, or electromyography testing, measures the electrical activity of muscles. When properly conducted and interpreted in conjunction with a nerve conduction study, it can be useful in determining the source of symptoms such as pain, numbness or tingling in the limbs when there is no readily observable injury. These tests can be useful in, for example, distinguishing hand symptoms caused by carpal tunnel syndrome from hand symptoms caused by pressure being placed on the nerve at the cervical spine.
While this test may be very important in determining that you receive proper medical care, it may also prove very useful in a personal injury lawsuit. This is because to prove your injuries, you must have objective medical evidence that you have been injured, not just complaints of pain. These tests can objectively demonstrate that there is a problem in the functioning of the nerves being tested.
If you have suffered a personal injury and have any questions, please feel free to call us 716-542-5444. We would be happy to help you.
All Buffalo personal injury lawsuits must go through a formal discovery and disclosure process prior to being brought to trial. During this process, the parties request information and documentation from each other that may provide evidence necessary for trial. In most cases, the information sought is fairly routine and will be readily turned over by the other party. Occasionally, however, the defense may refuse to turn over a particular piece of evidence that the injured party would like to have access to.
When the parties cannot amicably work out whether a requested item must be turned over, judicial intervention may be required. When a party refuses to provide requested evidence, section 3124 of the Civil Practice Law and Rules of New York State authorizes the party seeking disclosure to make a motion to compel disclosure.
This motion is a formal request that the judge overseeing the personal injury lawsuit intervene and require the release of the evidence sought. Once this formal request is made, the parties usually will appear before the judge and present arguments about why the evidence should or should not be disclosed. The judge will then make a formal ruling either requiring disclosure or denying the motion.
Buffalo personal injury attorneys must abide by very specific rules if they wish to provide medical information to the court prior to trial. This medical information may be needed when, for example, one of the parties makes a motion to the court in which your medical condition is an issue.
For plaintiffs in personal injury cases, any medical information submitted to the court during motion practice must be in the form of either a sworn statement of the medical provider or medical records certified to be authentic by the person responsible for records at the medical office. The defense, however, is not so limited in what they may submit. While the report of any medical provider who examined the plaintiff on behalf of the defense must be in the form of a sworn statement, the defense may rely on uncertified medical records to support their position.
While this law may provide the defense with a slight advantage during motion practice because they do not have to go through the process of having records certified if they wish to use them, the Appellate Division Court for the Fourth Department – the court overseeing the lower courts in Western New York – has ruled that if a defense medical expert relies on or references a medical record in his or her report, the plaintiff may then rely upon the same medical record without the need to have it authenticated. By using it, the defense has essentially conceded that the record is authentic.
If you have suffered an injury and have any questions regarding this topic, please feel free to call us 716-542-5444.
Buffalo personal injury lawsuits frequently involve injuries that will have at least some residual effect on the injured person for the remainder of his or her life. In such cases, a person injured due to the negligence of another is entitled to compensation for future pain and suffering, medical expenses and any future lost wages arising from the injury. As a result, whether an injury is permanent or not may be highly contested.
For some injuries – such as a spinal injury requiring fusion of vertebrae – the permanent aspects of the injury will be obvious and difficult to contest. Often, however, it can be difficult to absolutely prove the injury will never get better. As a result, the injured party will need documentation or testimony from a medical provider setting forth their conclusions regarding whether the injury is permanent, to what extent it is permanent (e.g., it may improve slightly, but will never be fully functional again), and the medical basis for that finding.
In terms of establishing permanency in less obvious cases, it is usually helpful to the plaintiff if a significant period of time has passed without any improvement to the condition. This makes it easier to argue that there is no reason to believe a significant improvement will be seen in the future.
Both parties in Buffalo personal injury lawsuits frequently call upon expert witnesses to provide testimony on a variety of topics. In many cases, the opinions of medical experts, engineers, or collision reconstructionists may be helpful to a jury in determining what actually led to a personal injury and the extent of the injury. Over the past several years, New York State has generally relaxed the standards for admissibility of expert testimony.
Expert testimony, however, still must be supported by the facts of the case and not speculation. Occasionally, an expert’s testimony will be based on his or her belief about what happened without any empirical evidence to back it up. This can happen, for example, where the facts support multiple theories of how an accident occurred but the expert makes an assumption that the accident occurred in a manner that supports his opinion.
If the defense is submitting such evidence in a personal injury case, the injured party may object to its admission. If the court finds that the expert’s findings are based on speculation and may unduly influence the jury, the judge may not allow the testimony to be admitted. In other cases, the court may allow the personal injury attorney to develop the lack of foundation for the expert’s opinion through cross examination of the expert.
New York State Law requires all Buffalo car owners to carry what is known as Supplementary Uninsured/Underinsured Motorist (SUM) coverage. The purpose of this insurance is to provide additional insurance coverage when the owner of the car responsible for a personal injury accident did not carry any insurance or did not carry enough.
When the owner of the vehicle driven by the injured plaintiff carries more SUM insurance than the defendant who caused the accident, the plaintiff may be able to make a claim against that SUM insurance in some cases. Such a claim, however, usually cannot be pursued until the initial personal injury lawsuit is completed. This is because the SUM insurance cannot kick in until the amount available from the defendant’s insurance is exhausted.
If the injured party obtains the full amount of the defendant’s insurance, he or she may seek additional compensation from the SUM carrier up to the difference between the two insurances. For example, a defendant carried $25,000 in insurance and the available SUM insurance was $100,000. If the plaintiff obtained the full $25,000 from the defendant’s insurance, he or she may then make a claim against the SUM insurance and obtain up to an additional $75,000 from that insurer.
The SUM insurer, however, is not required to automatically turn over this money just because the defendant paid. As a result, a separate lawsuit may need to be initiated against the SUM insurance carrier after the first case is completed.
Buffalo is crisscrossed by railroad tracks, some of which are now unused and may be poorly maintained. The laws surrounding the maintenance of railroad tracks where they intersect roadways can become very complicated, and the responsibility of multiple parties may need to be explored when pursuing a personal injury lawsuit.
Generally, where a railroad track crosses a road, it is the duty of the railroad to construct an area surrounding the tracks that is serviceable for both the trains and vehicles using the road. Because this duty is imposed on the railroad by statute, courts have ruled that they are also required to maintain this portion of the roadway and, as a result, are liable for any injury arising from failure to maintain the tracks. While some courts have ruled that this duty may not be delegated to another party, in other cases, an injured person has been allowed to proceed against both the railroad and another party, such as a municipality, that agreed to take over maintenance.
The municipality may also be exposed to liability if, for example, it performed work on the area surrounding the tracks even though it was not obligated to do so. It’s assumption of maintenance duties is sufficient to make it responsible for at least part of any damages that arise from a dangerous condition.
In the case of crossings for abandoned railroad lines, there is a specific procedure that the railroad must go through to transfer responsibility from the railroad to the municipality that maintains the road. Failure to follow this procedure results in the tracks still being the responsibility of the railroad, even if they no longer use them.
Most Buffalo personal injury lawsuits regarding injuries that occur on someone’s property require proof of “notice.” This means that the plaintiff must be able to establish that the party responsible for maintaining the property knew, or should have known, about the dangerous condition prior to it having caused injury.
In many cases, a defendant will claim that they did not know about it. Absent a letter of complaint or similar documentation, actual notice is difficult to prove. Whether the defendant should have known about a defect (constructive notice) is a different issue that relates to the duty of the defendant to inspect and maintain the property. In such cases, the visibility of the problem and how long it had existed prior to the accident can be very important.
Occasionally, however, a defendant will claim that because they did not examine the property where the injury occurred, they could not be expected to know about it. In many cases, the law imposes a duty on a party to maintain the property. This may occur, for example, in cases involving apartment buildings. If a party is required to maintain the property, the courts have ruled that they also must conduct timely and adequate inspections. As a result, failure to inspect does not refute the argument that the defendant “should have known” about the dangerous condition.
If you have been injured on another’s property, we can answer any additional questions at 716-542-5444. Please feel free to call.
In most Buffalo personal injury lawsuits where an injury was caused by a dangerous condition on property, the injured party will proceed against the current property owner. In rare cases, the personal injury case may actually proceed against the prior owner of the property.
Usually, the responsibility of a seller for injury resulting from a dangerous condition on the premises ceases upon sale of the property. This may change, however, if certain criteria are met. First, the dangerous condition must have existed at the time the property was sold. Second, the seller must have known about the dangerous condition – or had information from which a reasonable person would conclude that a dangerous condition existed – and failed to tell the buyer about it. Third, the buyer must not have known about the condition or been able to discover it using reasonable care.
If all three of these conditions are met, the seller may be liable for the personal injury. If, however, the buyer had reasonable opportunity to discover the dangerous condition and repair it, but failed to do so, the seller’s liability is terminated.
If you have been injured by the dangerous condition of another’s property, we would be happy to help you. We can be reached at 716-542-5444.
