Most Buffalo personal injury lawsuits are heard in the Supreme Court of Erie County. Each county in New York State has its own Supreme Court. Occasionally, a personal injury attorney may wish to appeal an adverse decision made by the judge at the Supreme Court level to a higher court.
For Western New York, the next “step up” from the Supreme Court level is the Appellate Division for the Fourth Department. It is one of four appellate courts in New York State. The appellate courts’ primary purpose is to hear appeals from the decisions of lower courts — they do not conduct trials like the lower courts do. As a result, they rarely hear new issues or are presented with new evidence. Instead, when hearing an appeal, they look at the evidence presented to the lower court and that court’s rationale for making its decision. They then determine if the lower court’s decision complied with New York State law.
In rare cases, an appeal may be taken to the New York State Court of Appeals, which is the highest court in the state. This usually occurs only after a case has been heard at the appellate division level. The Court of Appeals can, and frequently does, refuse to hear a case that is being appealed. The cases the Court of Appeals does choose to hear typically involve issues about which the lower courts have reached differing conclusions or that have proven particularly divisive. The decision of the Court of Appeals on how a particular issue will be handled is binding on all lower courts.
Buffalo parents should be aware that Fisher-Price recently recalled more than 10 million products sold in the United States because they pose a potential hazard to children. This recall involves a variety of different products.
Fourteen models of the Fisher-Price Trikes and Tough Trikes tricycles are being recalled because a plastic ignition key that sticks up in front of the seat can cause injury, including genital bleeding, if a child sits or falls on it. Fisher-Price is aware of ten cases of injury associated with the key, including six that required medical attention.
Seven models of infant activity centers with inflatable balls are being recalled because the valve on the inflatable balls can come off, posing a potential choking hazard for young children. There have been 46 reports of valves falling off and 14 reports of valves found in children’s mouths.
950,000 Fisher-Price high chairs are being recalled because of injuries caused to children who have fallen onto the pegs on the back legs. Seven children have required stitches and one suffered a damaged tooth.
Finally, the Fisher-Price Little People Wheelies Stand ‘n Play Rampway is being recalled because the wheels may come off two of the cars in the set and pose a choking hazard to young children.
If you believe you own one of these pontentially dangerous products, please stop using it and contact Fisher-Price for more information. Fisher-Price is providing either free repair kits or replacement products for the recalled items. More information can be found at www.cpsc.gov.
When a personal injury lawsuit is filed in Buffalo, there are several situations in which the action or inaction of one of the parties may result in a “default judgment” in favor of the other party. This most commonly occurs, however, when a defendant fails to appear in court to challenge the allegations of the plaintiff.
In this situation, the plaintiff has one year to apply for a default judgment from the date that the default occurred. In personal injury cases, a default judgment for failure to appear applies only to the liability of the defendant, not the amount of damages. As a result, an additional hearing or trial will still be necessary to determine the amount that the defendant owes the plaintiff.
There are, however, additional restrictions placed on the defendant at a “damages only” hearing or trial following a default judgment. If the defendant chooses not to appear to contest damages, the plaintiff is allowed to use affidavits to prove damages instead of producing witnesses in court. Even if the defendant does appear, the plaintiff may be allowed to use sworn written statements of witnesses as evidence. As a result, the ability of the defendant to cross-examine witnesses is greatly limited.
If you have suffered an injury and have any questions regarding this topic, please feel free to contact my office at 716-542-5444. We would be happy to help you.
Dealing with Medicare laws has become an increasingly complicated area for Buffalo personal injury attorneys. Under federal law, Medicare has a right to recover any payments it made for medical treatment. This right extends to taking a portion of the damages awarded in a personal injury lawsuit.
There are very strict regulations surrounding the requirements to report information regarding the settlement of a personal injury case to Medicare. If you are receiving Medicare, they will assert a lien against the proceeds of any settlement or judgment in your case. When you receive financial compensation, you are required to reimburse Medicare for its expenses within sixty days.
In some cases, Medicare may also have a right to take an additional portion of any financial compensation as payment for anticipated future medical expenses. This is known as a Medicare set-aside. When long term treatment is required, this set-aside may be extremely large.
There are serious financial penalties that may be imposed both on you and your personal injury attorney for failure to comply with Medicare laws.
Your attorney does not want to work hard to obtain compensation for you only to see Medicare take it away. If you are receiving Medicare – or may soon be eligible to receive it – it is important that you communicate this information to your personal injury attorney so that he or she can act to protect your interests.
Buffalo is home to both the Erie County Supreme Court and the United States Court for the Western District of New York. While most personal injury lawsuits in New York State are brought at the NYS supreme court level, under some circumstances an injury case may be heard in federal court.
When a defendant wishes to move a civil case originally filed in a state court to a federal court, there are certain criteria that must be met. In most personal injury lawsuits, these criteria include the requirement that the lawsuit involve citizens of different states or a citizen of the U.S. and a citizen of a foreign country. Also, the amount being pursued by the plaintiff must exceed $75,000. Class action lawsuits are evaluated under a different set of criteria to determine if they may be lawfully brought in federal court.
Not all cases that meet these criteria must be heard in federal court, and often the plaintiff will file in a New York State court without any objection from the defendant. Usually, a party will only seek transfer to federal court if they believe there is some advantage to them in doing so. If the defendant does wish to move the case to federal court, he or she must file to have it moved within thirty days of being served with a summons or receiving the initial pleadings.
According to the National Highway Traffic Safety Administration (NHTSA) the streets have become a little safer for Buffalo drivers over the past four years. Earlier this year, NHTSA released a report documenting that the number of fatalities in car crashes decreased from 2008 to 2009. Since peaking in 2005, fatalities caused by car accidents in the United States have declined every year.
In 2008, there were 37,261 motor vehicle fatalities nationally. This declined to 33,963 in 2009, a decrease of 8.9%. The biggest single recorded drop occurred the year before, which saw a 10.5% drop from the 41,259 traffic fatalities reported in 2007. Overall, motor vehicle fatalities have dropped approximately 22% over the past four years.
While there may be several reasons for this decrease, vehicles with safety features such as side airbags and increased seatbelt usage are likely to be significant factors in this decrease. This would seem to be especially true given that the Federal Highway Administration reported an increase in total vehicle miles driven in the U.S. from 2008 to 2009. Increased travel with decreased fatalities has resulted in 2009 recording the lowest motor vehicle fatality rates ever documented, with 1.16 motor vehicle fatalities occurring per every million miles traveled on U.S. roads.
If you have lost a loved one in an motor vehicle accident and need advice, please feel free to call my office at 716-542-5444. We would be happy to help you.
Proof of prior accidents is usually admissible in Buffalo personal injury lawsuits. This evidence is admissible in most cases because it is relevant to whether a condition was dangerous and to whether the defendant was aware of the condition.
There are, however, certain facts that must be established before a court will allow evidence of prior accidents to be admitted at trial. Generally, the plaintiff must show that the condition that caused the plaintiff’s fall and the condition that caused the prior accident are substantially the same. A prior accident at the same location caused by a different problem would not be admissible.
Of course, the flip side of this is that in many cases, the defense will seek to present evidence of the absence of prior accidents. This evidence is also admissible at trial so long as it pertains to the specific location of the accident and to the condition which allegedly caused it.
Proof of a subsequent accident caused by the same condition may also be admissible. While it does not offer any proof regarding whether the defendant was aware of the condition prior to the plaintiff’s earlier accident, it is evidence that the condition that caused the plaintiff’s injury was dangerous.
It’s become a personal injury cliché: On some street in Buffalo, a driver lightly bumps the car ahead of him at a stoplight and the other driver jumps out holding his neck and shouting, “Whiplash!” He then sues the other driver.
It is unfortunate the whiplash has become a word so associated with false claims of injury. Whiplash is an actual medical term referring to a hyperextension or over-extension injury to the neck. It is thought to be brought about when a person’s body is pushed violently forward but the head remains behind momentarily. This causes the head to rock up and back, which may lead to stretching or tearing of some muscles and ligaments in the neck.
These muscles, in response to the injury, contract to bring the head forward again and prevent excessive injury. Unfortunately, in situations such as automobile accidents where the body is rapidly decelerating, this may result in the head being rocked violently forward. This can cause even more stretching and tearing of muscles and ligaments in the neck.
Obviously, this type of injury can easily occur in a rear-end collision and should be taken seriously. If you have suffered a neck injury in a car accident and need advice, please feel free to call my office at 716-542-5444. We would be happy to help you.
All Buffalo residents should be aware that even if you are not struck in the head during an accident, an accident that involves the head being rapidly jerked may still lead to a brain injury. As a result, if you or a loved one is involved in this type of accident, you should be on the lookout for the symptoms of a Traumatic Brain Injury.
Unfortunately, symptoms of this type of injury may take on many different forms. Typical problems nclude episodes of memory loss, headaches, dizziness, difficulty with concentration, changes in speech, such as slowing or slurring of words, changes in behavior, and unexplained changes of mood. Other possible side effects of such an injury may be more readily apparent, such as vertigo, seizures, muscle spasms, lack of coordination or strength is the extremities, and unexplained pain.
These symptoms can take time to develop following an accident. As a result, a trained physician should be consulted if you or someone you know begins to experience these types of otherwise unexplained symptoms following an injury accident. While the ability to recover from a Traumatic Brain Injury will vary with the degree of injury and the individual injured, the symptoms may be reduced in most cases through proper treatment.
New York State will be conducting a pilot program that may eventually impact the way medical malpractice lawsuits in Buffalo are handled. The purpose of the three year pilot program, which is supported by a $2.9 million federal grant, is to improve patient safety, reduce preventable medical injuries, and reduce the cost of medical malpractice cases by promoting swift resolution.
Five New York City hospitals are participating in the program. They are required to initiate programs that promote a culture of patient safety. Four hospitals will initiate safety interventions in obstetrics, and one hospital will initiate safety interventions in general surgery.
When a medical error does occur, each hospital must have a program whereby it will provide early disclosure of the error to either the patient or the patient’s family and make an early (pre-litigation) offer of compensation, if appropriate. When settlement is not achieved and a lawsuit ensues, a courtroom will be established for the purpose of achieving rapid settlement through Judge-Directed Negotiations.
The judges in these cases will be carefully selected and receive training in specific areas of medicine and in negotiation and mediation skills. Their purpose will be to attempt to negotiate a quick resolution to the case. If successful, this system should greatly reduce the costs associated with protracted litigation.
Data from the pilot program will be collected and analyzed, and the Judge-Directed Negotiation program will be evaluated by the Harvard School of Public Health to determine whether it achieves its goal of rapid settlement and reduced medical malpractice costs.
