All Buffalo personal injury lawyers are frequently required to address the issue of collateral sources in their clients’ lawsuits. Collateral sources are entities that provide payment for damages – such as medical expenses or lost wages – that also would be covered by any damages awarded in the personal injury lawsuit.
How a collateral source payment affects your personal injury lawsuit depends on what the source is and whether it has any right to be reimbursed. If a source does not have any right to be reimbursed, the defense in the personal injury lawsuit may argue that you should receive less in damages because you have already been partially compensated through the collateral source.
If a source does have some right to recover payments through the proceeds of a personal injury lawsuit, then these payments should not be counted against you when attempting to resolve your lawsuit. Instead, your personal injury lawyer should argue that you are entitled to full compensation for the injuries from the defense.
Collateral sources that can recover their expenses do not necessarily have a right to full recovery. Different types of sources are regulated differently and their rights may be very specific. As a result, you should consult with an experienced personal injury attorney if you have any questions regarding this issue.
When a Buffalo personal injury lawsuit goes to trial, it is very important that the members of the jury properly evaluate the evidence presented. While a jury is generally assumed to have the capacity to properly evaluate the facts of the case without much guidance, they may need additional information to properly place those facts within the proper legal context.
For example, in auto accident cases the plaintiff must have suffered a “serious injury” if he or she is to collect damages. A jury can determine on its own whether a person suffered an injury, but will usually need guidance to evaluate whether that injury fits the legal definition of a “serious injury.”
To assist the jury, after the sides have presented their evidence, the judge will read them a set of instructions regarding various issues in the case. The purpose of these jury instructions is to provide the jury with legal definitions and guidance in evaluating the facts presented.
Both parties may request that the judge provide the jury with instructions regarding various topics, and there may be some debate among the parties regarding which instructions are presented and the precise language used. The judge ultimately decides which instructions are presented and how the instructions will be worded.
If you have suffered a personal injury and have any questions, we would be happy to help you. Please call us at 716-542-5444.
Unfortunately, Buffalo personal injury attorneys see many cases where clients will never fully recover from their injuries. In car accident cases, one manner in which the injured party may prove that he or she suffered a serious injury under New York State law is to establish what is termed a “permanent consequential limitation” following an accident. A serious injury must be proven in all car accident cases to successfully obtain compensation for injuries.
In cases where a doctor has determined that an injury is permanent, the injured party may be told that he or she does not need any further treatment because it will not help. Such decisions should always be left in the hands of the patient in consultation with the medical provider – they should never be dictated by how discontinuing treatment may be portrayed by the adverse party in a personal injury lawsuit.
Fortunately, the New York Court of Appeals has ruled that even when a doctor has found an injury to be permanent years before trial, that finding – unless overcome by contrary evidence presented by the other party – remains valid. As a result, it is not necessary to continue treatment for the sole purpose of “looking injured” until the case is concluded. Instead, what must be proven is that the plaintiff has suffered a permanent limitation caused by the accident.
If you have been injured in a car accident and have any questions regarding this topic, please feel free to call my office at 716-542-5444.
Medical treatment providers in the Buffalo area use a variety of diagnostic tests to determine the degree of impairment following injury to the spine. One of the most commonly seen tests involves measuring the range of motion in various directions of the injured part of the spine.
For your treatment provider, this test can be an important measurement in determining your health and the direction your medical treatment should take. Range of motion testing, however, can also provide important evidence in a personal injury lawsuit. This is because a range of motion test, when properly conducted, may be considered by the judge or jury as a measurement of the degree of the injury.
In cases involving an automobile accident, it is necessary to prove that the victim suffered a serious injury. New York courts have ruled that proof of a serious injury in most cases involving “soft tissue” injuries requires objective proof of an injury (for examples, x-rays, MRI examinations, etc.) coupled with a comparison of the victim’s limitations to the normal functioning of the affected body part. While range of motion testing is not the only way to compare the victim’s limitations to the normal functioning of the spine, a properly conducted test can go a long way in helping to establish that the victim suffered a serious injury.
Many Buffalo personal injury lawsuits are resolved through arbitration instead of going to trial. In basic terms, arbitration is a hearing, conducted in a manner similar to a trial but less formal, where the outcome of the personal injury case will be determined. Because it utilizes less formal rules than those required at trial (for example, medical reports may be admitted as evidence instead of doctors being required to testify), it is often a more cost effective manner of resolving a lawsuit.
In New York State, Arbitration hearings in personal injury cases are conducted before either one or three arbitrators who will decide the outcome of the case. Arbitrators are typically lawyers who have received special training in arbitrating cases. In cases decided by a single arbitrator, the arbitrator is usually a person who the parties mutually agree upon to hear the case.
When personal injury arbitrations take place before a panel of three arbitrators, the method by which the arbitrators are chosen may be different. Sometimes the arbitrators are three individuals who the parties mutually agree upon to hear the case. In other cases, each party may choose one arbitrator without the input of the other party. These two arbitrators then agree between themselves who will be the third arbitrator.
If you have suffered a personal injury and have any questions regarding this topic, please feel free to call my office at 716-542-5444.
Buffalo personal injury attorneys learn quickly that when a person has suffered severe or multiple injuries in a personal injury accident, they usually will need to see several treatment providers. Those injured in an accident deserve to receive the best care possible, which may require several specialists and diagnostic testing. Decisions regarding who to see regarding medical treatment are best left to the patient in consultation with his or her medical providers and should not be influenced by any potential litigation.
If you do need to see a variety of doctors and your case goes to trial, it is unlikely that they would all be required to testify. While the possibility exists that this could happen, an experienced personal injury attorney will usually be able to review the available medical information and narrow down which treatment providers will be needed to testify to establish the extent of your injuries and treatment. As a result, the number of providers needed to testify will usually be limited.
Which providers are needed to testify and how many is, of course, a subject that must be determined on a case by case basis.
If you have suffered a personal injury and have any questions, please feel free to call my office at 716-542-5444.
When a Buffalo resident suffers a personal injury, his or her medical bills arising from this injury are frequently paid through health insurance or some other insurer. In New York State, the insurer has a right to subrogation regarding any damages related to medical expenses that are recovered in a personal injury lawsuit. This means that, if the insurer asserts this right, it may recover its expenses related to treatment of the injury out of any damages awarded for medical expenses.
This right, however, is limited by the “Made Whole” doctrine. Under the Made Whole doctrine an insurer may not recover its expenses until after the injured party has been made whole. This means that the injured party must recover enough in damages that he or she is fully compensated for the consequences of the injuries.
In cases where, for example, the individual who caused the injury does not have sufficient resources to pay full damages, the injured party may never receive complete compensation. When this happens, under the Made Whole doctrine the insurer is not entitled to recover any of its expenses. The insurer’s expenses may not be recovered unless the injured party is made whole.
If you have suffered a personal injury and have any questions regarding this topic, please feel free to call my office at 716-542-5444.
Buffalo residents who suffer a personal injury frequently have alternative sources to pay for missed time from work, such as Workers’ Compensation payments or No-Fault automobile insurance benefits. This does not mean, however, that a person who misses substantial time from work as a result of a personal injury should not keep track of their missed time and lost wages.
First, some sources that pay lost wage benefits, such as Workers’ Compensation, may require repayment from the proceeds of a personal injury lawsuit for lost wages paid out by them. As a result, the injured party should claim these lost wages as part of the damages he or she is pursuing. Failure to do so may result in the plaintiff receiving less than full compensation if these other sources must be reimbursed.
Second, in the case of automobile accidents, the injured party is required to prove that he or she suffered a “serious injury” as defined under New York State law before damages may be recovered through a personal injury lawsuit. One category of “serious injury” defined in New York State law is a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than 90 of the 180 days following the occurrence of the injury or impairment.
While this definition clearly extends outside of merely being unable to work for at least 90 of the 180 days following an accident, being able to work more than 90 days during this time period would, in almost all cases, bar the plaintiff from recovering under this definition of serious injury. As a result, if you are missing substantial time from work because of a personal injury, you should make sure the time you are missing is documented.
When A Buffalo resident is involved in a car accident, his or her initial medical expenses are paid under the provisions of the New York State No Fault Insurance regulations. Under the No Fault law, the injured party’s own automobile insurance may be required to pay the first $50,000 in medical costs, lost wages and certain other expenses arising from a motor vehicle accident.
Section 5102 of the New York State Insurance Law defines Basic Economic Loss as up to $50,000 medical expenses, lost wages and other reasonable and necessary expenses (up to $25 per day) arising from a motor vehicle accident. Because these expenses are paid by the injured party’s own insurer, they are not recoverable in a personal injury lawsuit. As a result, a person injured in car accident who incurs less than $50,000 in expenses cannot proceed with a personal injury lawsuit unless he or she has otherwise suffered a serious injury.
The Insurance Law defines a serious injury as death; dismemberment; significant disfigurement; fracture; loss of fetus; permanent loss of use of body organ, member, function or system; permanent consequential limitation of use of body organ or member; significant limitation of use of a body function or system; or a non-permanent injury which prevents performance of substantially all of the material acts which constitute a person’s usual and customary daily activities for not less than ninety of the one hundred eighty days immediately following the accident. If an individual has suffered one or more of these type of injuries, he or she has the right to sue even if he or she did not suffer more than $50,000 in basic economic loss.
If you have been injured in an auto accident and have any questions, please feel free to call us at 716-542-5444.
When road work is undertaken in Buffalo, there are specific regulations regarding what steps that should be taken to protect motorists traveling through the work area. If an individual suffers a serious personal injury because these regulations were violated, he or she may be able to proceed against the municipality responsible for maintaining the road and — in some cases– the entity performing the roadwork based on their negligence.
Generally, courts will distinguish between roads that are under construction and those that are not. The roadway in a construction zone is not expected to be in as good a condition as other roadways. As a result, the viability of a case in a construction zone often revolves around whether drivers have been appropriately warned of the hazards within the construction zone. How signs were posted, whether flagmen were used, and similar issues are critical to such cases.
Many of the regulations surrounding how construction zones should be set up are found in the federal Manual on Uniform Traffic Control Devices and the New York State supplement to this document. There are also several court cases that examine specific issues regarding construction zones.
If you have been injured in a construction zone automobile accident, you should consult with an experienced attorney. Please feel free to call us at 716-542-5444.
