Here in Buffalo, most lawsuits involving brain injuries arise from blows to the head or sudden acceleration/deceleration leading to brain damage. Occasionally, however, an individual may suffer an anoxic brain injury.
An anoxic brain injury occurs when the brain is deprived of oxygen for a significant time. This occurs in incidences of, for example, drowning, choking, or strangulation. This lack of oxygen over an extended period of time results in brain cells dying.
Anoxic brain injury may occur even if an individual has not lost consciousness, and its effects may be permanent. While this type of injury may not initially seem as serious as a blow to the head leading to a fracture, concussion or even a coma, it still may have lifelong consequences for the individual who suffered the injury.
Although this type of injury may be more difficult to prove than other types of head injuries, an individual who has suffered an anoxic brain injury as a result of another’s negligence is entitled to seek compensation through a personal injury lawsuit. If you or someone you know has suffered such an injury, you should consider consulting with an experienced personal injury attorney.
Hockey is a big sport in Buffalo, and many of our children are involved in this activity. Parents should warn their children, however, to take all necessary steps to avoid injury when playing. This is especially important because if a child is seriously injured while playing a sport or in gym, it is often difficult to obtain compensation for the injury.
The recent case of Bramswig v. Pleasantville Middle School offers a good example of this fact. In that case, twelve year old Sean Bramswig was playing floor hockey in gym when he was accidently struck in the mouth by a high stick. He required oral surgery to stabilize his front teeth and required stitches on his lip.
In his personal injury claim, Sean’s lawyers asserted that he was injured due to inadequate instruction and supervision and failure by the school to provide proper safety equipment. Many of their claims, such as failure to provide mouth guards, were dismissed by the lower court before trial based on prior legal precedent.
The final claim by the plaintiff, that the defendant did not provide adequate instruction regarding high sticking by failing to distinguish between high sticking above the knee versus above the waist, was dismissed on appeal by the Appellate Division for the Second Department. Since Sean was struck by a stick raised above the waist in violation of the supervisor’s directions, the Appellate Division reasoned that it did not matter whether the children were provided with any direction distinguishing between the knees and the waist as the appropriate level to keep the stick under.
Most people in Buffalo are old enough to remember Love Canal, where hazardous waste buried in the ground leaked into the environment, causing cancer, birth defects and other injuries among the local population. Love Canal is an example of a toxic tort.
Toxic tort lawsuits involve injuries caused by chemicals or materials that are linked to physical ailments such as cancer and other diseases. They often involve the release of dangerous material into the environment or exposure to such materials at a worksite. Substances such as asbestos, pesticides and hazardous waste are examples of the types of materials frequently addressed in this type of litigation.
Because of the difficulties that may arise in linking a specific injury to exposure to a dangerous substance, these cases are often difficult to prove on an individual level. As a result, toxic tort cases usually, put not always, involve a large number of plaintiffs who have been exposed to the dangerous material and exhibit similar physical problems or incidents of birth defects beyond those seen among the general population.
Across the State from Buffalo, a heart wrenching case has ended with the Westchester County Health Care Corporation paying the estate of Michael Colombini $2.9 million as a result of this six year old’s death while being treated at Westchester Medical Center.
In July of 2001, Michael Colombini was undergoing a magnetic resonance imaging (MRI) test at Westchester Medical Center to check for a brain tumor. While he lay in the machine, a nurse brought an oxygen tank made of ferrous metal into the room. Because of their magnetic properties, objects made of ferrous metal are banned from areas where MRI are performed. The ferrous metal oxygen tank was magnetically propelled into the MRI machine, striking the child in the head. He died two days later.
Shortly after the incident, the hospital offered $1 million to settle the case, which was rejected by the estate. The estate then filed a claim against the hospital based on wrongful death, pre-death conscious pain and suffering and punitive damages.
Over the next nine years, the parties engaged in pre-trial discovery and the hospital attempted to have the case dismissed on multiple occasions. The case was finally preparing to go to trial when the hospital nearly tripled its original offer and the case was settled.
Many personal injury cases in Buffalo are settled without ever having to go to trial. While in some cases it may be necessary to hold a trial to obtain a just result, settling a case without resorting to a trial can hold certain advantages in the right situation.
Cases that are settled without a trial are usually resolved through some form of negotiation between the parties. Because the amount of compensation is negotiated, this provides you and your lawyer with some control over the final amount. At trial the final determination of what, if any, compensation you receive will largely be in the hands of the judge or jury. As a result, settling a case may give you more control over the result.
Also, cases that are settled are usually resolved quicker than ones that go to trial, providing you with compensation sooner and allowing you to move on with your life.
Finally, settled cases may cost less because expert witnesses will not have to be called to testify regarding the nature of the accident or your injuries. While attorneys will usually front the cost of such experts, the amount paid to these experts will be deducted from any damages awarded, reducing the total amount you receive.
An experienced personal injury attorney will analyze the specific facts of a case, the risks of trial, and the potential reward before determining whether to advise a client accept a negotiated settlement or go to trial. If you are unsure about accepting a settlement, you should consult with an experienced attorney for guidance.
In Buffalo, a successful personal injury lawsuit often hinges on proof of injury. If you go to trial, your medical treatment providers may be called to testify about your injuries. However, in many cases, either because the case is resolved without court intervention or because the parties agree to accept medical documents as sufficient proof of the injuries, written medical records will play a vital role in establishing how badly you are hurt.
Your lawyer will usually obtain your medical records for you, but under New York State law and the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA), he or she cannot get these records without your consent. As a result, your attorney will usually ask you to sign a release that can be provided to the doctors authorizing them to provide medical records to him or her.
While your lawyer will usually get the medical records for you, it is important that you keep your attorney informed of which doctors you are seeing so that he or she can obtain all the records relevant to your case.
In some cases, your lawyer may ask a medical provider to prepare a special narrative report outlining your treatment instead of, or in addition to, obtaining the medical records. Exactly what medical information is needed, and in what form, will be determined by your attorney based on the circumstances of your case. If you have any questions, you should consult with your attorney on this topic.
Here in Buffalo, the limits of “assumption of risk” as a defense in a personal injury lawsuit are currently different than they are in Albany. That fact, however, is about to change.
Generally, assumption of risk is a defense in personal injury cases that may bar the injured person from collecting any damages if he or she was aware of the danger involved in a certain activity but chose to proceed anyway. It is frequently applied in cases related to sporting or entertainment activities, where the injured party was aware that the activity, such as playing football, involved a certain risk of injury.
Lower courts in parts of New York State, including the appellate court with jurisdiction over Western New York, have previously extended the assumption of risk doctrine to cases not involving sporting or entertainment activities. In Trupia v. Lake George Central School District, however, an appellate court with jurisdiction over the Albany area declined to extend the assumption of risk doctrine to a case where a child was injured sliding down a stairway banister at the school. As a result, there is currently a conflict between different parts of the state on how this doctrine is applied.
The decision in Trupia v. Lake George Central School District has been appealed, and in February of 2010, the New York State Court of Appeals will be hearing oral argument on the extent of the assumption of risk doctrine. The decision of the Court of Appeals will be binding on all lower courts in the state. As a result, the current differences in how assumption of risk is applied in various parts of New York State will soon be resolved.
There is no set amount, and the percentage may vary by region. So a personal injury attorney in Buffalo, for example, may request a different percentage than a lawyer in another part of the country, or even in another part of New York State.
In New York State, lawyers’ fees are governed by the New York Rules of Professional Conduct. In cases where the lawyer earns a percentage of the damages recovered, such as personal injury cases, these rules require that the fee not be “excessive.” Factors weighed in determining what is excessive include the difficulty of the case, the amount of time the lawyer anticipates spending, any time limitations imposed, the reputation and experience of the lawyers involved, and the fee customarily charged in that geographic region for similar cases.
In the Buffalo area, most local lawyers typically charge of one-third of the amount recovered as their fee, although this may vary depending on the factors described above. The fee earned by the lawyer is typically determined after any expenses are deducted. If no money is recovered, the lawyer will not earn any fee.
Prior to taking your case, your lawyer should enter into a written agreement with you which includes an explanation of how much the lawyer will be paid. Before hiring an attorney, you should be sure you have a full understanding of how he or she will be compensated.
Motorcyclists in Buffalo should be aware that New York State insurance law does not afford them the same degree of protection that it provides to drivers of cars and trucks. Drivers and passengers on motorcycles are exempt from the No Fault insurance coverage provided to those in other types of vehicles.
For drivers of other types of vehicles, when they purchase auto insurance they must purchase at least $50,000 in No Fault coverage, which pays for items such as medical expenses and lost wages incurred by the occupants following an accident. These funds are available regardless of who is at fault for the accident.
Unfortunately for motorcycle enthusiasts, drivers and passengers of motorcycles are exempt from No Fault coverage. In the case of motorcycle insurance, No Fault coverage only protects a pedestrian struck by a motorcycle. As a result, motorcyclists must seek other means to pay their medical bills.
While this may be good for insurance companies, it can impose an extreme hardship on motorcyclists who are seriously injured as a result of another driver. While the other driver may be sued if he or she caused the accident, the money from a lawsuit may not be available for months or even years after the accident. Meanwhile, the impact of lost wages of medical expenses can be immediate. If you enjoy motorcycles, please use extra caution when riding.
Unfortunately for those who suffer a traumatic brain injury in Buffalo or elsewhere, this type of injury can be difficult to prove. Absent a fractured skull or the need for surgery, individuals who suffer this type of injury and sue often find themselves portrayed as having faked their symptoms.
Recently, a New York State appellate court found that an individual who had suffered a traumatic brain injury should be awarded $2,100,000 for past and future pain and suffering. This amount was lower the $4,600,000 amount awarded by the jury but higher than the $1,600,000 that the verdict had been reduced to by the trial judge.
This substantial award is significant because the injured party, Vincenzo Popolizio, age 56, did not exhibit extreme symptoms of traumatic brain injury such as requiring surgery, suffering a fractured skull or suffering such serious brain damage that he required constant care. Instead, his symptoms included cognitive function bordering on mental retardation as demonstrated by an IQ test and symptoms of depression. In other words, he demonstrated the type of brain functioning that individuals who sue are often accused of faking.
At trial, experts had testified that his cognitive losses and depression would never improve, and coworkers provided testimony that while Mr. Popoloizio had previously been an energetic and personable individual, he now moped around and could not even handle cash transactions. The jury apparently found this testimony very compelling, and returned a favorable verdict for Mr. Popolizio.
