New York Court of Appeals Extends Wrongful Birth Statute of Limitations for Two New York Couples

The process of undergoing invitro fertilization can be an emotional roller coaster with added financial and physical strain. Imagine going through years of this and finally being able to conceive a child, only to find out after it is born that it has a genetic condition that causes developmental delays, learning disabilities and cognitive impairments. Unfortunately, this happened recently to two couples in New York after receiving donor eggs at a fertility clinic. It wasn’t until after their children were born that the children were diagnosed with a genetic condition, Fragile X Syndrome.

After an investigation, it was found that the egg donors were both carriers of Fragile X Syndrome and over 2 years after the birth of the children, both couples brought law suits against the doctor and fertility clinic. Their allegations? “Wrongful birth.” Essentially, this means they are suing for the exceptional expenses in raising a special needs child. After the suits were filed, the doctor and the fertility clinic argued that the statute of limitations for medical malpractice is 2 ½ years from the date of the malpractice (in this case the date the embryos were implanted) begins to run from the date the malpractice occurred and that in these cases, this statute had expired.

On December 14, 2017, the New York Court of Appeals agreed with the lower court’s decision that the wrongful birth cause of action did not begin to run until the birth of the disabled children since until the children were born, the extraordinary costs of raising the children could not be determined. Despite extending the statute of limitations in these two cases, the Court of Appeals made clear that this was a narrow decision based on the “unique features” of these cases.

New York’s medical malpractice laws are intricate, and it is important that if you or a loved one have suffered as a result of a doctor or hospital’s negligence, you seek the knowledgeable advice of experienced attorneys. The attorneys at Spiegel, Brown and Fichera, LLP will always evaluate your case free of charge and give your case the full attention it deserves.

Breach of Contract Leaves People Hungry

Puerto Rico Hurricane Sandy relief breach of contract

On February 6, 2018, the New York Times published a news article titled “FEMA Contract Called for 30 Million Meals for Puerto Ricans, 50,000 Were Delivered.” In the wake of Hurricane Maria, 30 million self-heating meals needed to be delivered. FEMA awarded Tiffany Brown, an entrepreneur in Georgia, the job. When only 50,000 meals had been delivered, when 18.5 million were due, FEMA terminated the contract.

Breach of contract disputes like this one arise all the time in New York, and any breach of contract suit must be filed within 6 years of the breach. When businesses enter into contractual agreements, it is understood that both parties agree to the terms outlined in the document; however, the agreed upon terms aren’t always met, leaving one party at a loss.

The elements of a breach of contract dispute are as follows:

  1. Existence of a contract
  2. Performance by the party seeking recovery
  3. Non-performance by the other party
  4. Damages as a result of the breach

However, depending on what the contract is for, different laws will apply. For example, when the contract is for services, the common law applies. When the contract is between merchants and for the sale of goods, the rules of the Uniform Commercial Code (UCC) apply.

In New York, under either the common law or the UCC, the breach must be “material” and go to the core of the agreement in order to recover damages. For example, the delivery of a certain number of self-heating meals was material to the contract between FEMA and Tiffany Brown. The failure to perform would be a breach of contract.

Remedies for breach of contract disputes include money damages intended to make the non-breaching party whole and include both consequential and direct damages. Direct damages are the difference between the value received and the value that should have been received had the contract been performed. Consequential damages include lost profits and any resulting damages that can be traced back to the breach. Other remedies include specific performance, liquidated damages, restitution and rescission of the contract.

As there are two sets of laws that may apply (common law and UCC) as well as many exceptions to breach of contract laws, it is important to find an experienced attorney you can trust to handle your case. Contact the attorneys at Spiegel, Brown and Fichera, LLP.

Missed Cancer Diagnoses: New York’s New Law Extends Patients’ Time to Sue

New York Mother's cancer goes undiagnosed, sparks laws to change

On March 7, 2013, Lavern Wilkinson, a 41-year-old single mother of a mentally retarded and autistic child, succumbed to cancer at Long Island Hospital. Her death could have been either prevented or prolonged if she had been properly diagnosed with lung cancer when she sought emergency medical treatment for chest pain at Kings County Hospital in 2010. Despite the fact that an x-ray showed a mass in her lungs, Ms. Wilkerson was not told and was discharged with instructions to take Motrin for her pain. As a result, her curable form of cancer went undiagnosed until 2 years later when the cancer had already spread to both lungs, her liver and spine and she was given 6 months to live.

Current Law

Under New York’s current law, the statute of limitations for filing a medical malpractice case against a hospital is 2 ½ years, or 2 years and 3 months when it is a municipal or governmentally run hospital, as was the case with Kings County Hospital where Ms. Wilkerson went in 2010. Although there are exceptions to this time period in which to sue, none apply to failure to diagnosis an illness. Generally, in New York medical malpractice cases, the time to sue begins to run from the date the malpractice was committed. Unfortunately, New York is one of 6 states that does not have a medical malpractice statute that begins to run from the date the malpractice is discovered.

Recent Changes

As a result of Lavern Wilkerson’s tragic story, New York reform advocates have pushed for extending the statute of limitations for missed diagnoses. Although the original proposed bill extended the statute of limitations for all missed diagnoses, the bill was amended to limit extending the statute of limitations only for missed cancer and malignant tumor diagnoses.

This amended bill was signed into law on January 31, 2018 by Governor Cuomo. The new law permits cancer and malignant tumor patients who failed to be diagnosed with cancer sooner, to sue within 2 ½ years (2 years and 3 months if it’s a municipal hospital or facility) from the date they are actually diagnosed with cancer. Hopefully, when this new law goes into effect, it will enable families like Ms. Wilkerson’s to receive some compensation for the grave and sometimes fatal consequences and tribulations of missed diagnoses.

The New York personal injury lawyers at Spiegel, Brown, & Fichera have been fighting for victims of medical malpractice since the 1960′s. Contact us today for a free consultation if you need help as a result of a doctor’s negligence.

DWI and DWAI in New York

New York’s DWI Laws Include Penalties for BACs BELOW the Legal Limit!

You have heard the slogan “buzzed driving is drunk driving.” This phrase implies that drinking any amount of alcohol and getting behind the wheel can be dangerous. New York’s DWI laws reflect this implication. The legal limit for blood alcohol content (BAC) in New York is .08. However, even a BAC below the legal limit can result in significant penalties. If your BAC is between a .05 and .07 or there is any other evidence of impairment, you can be charged with Driving While Ability Impaired, more commonly known as a DWAI. Unlike a DWI, this offense results in a violation not a criminal charge (misdemeanor or felony).

There are several types of DWI and DWAI offenses in the State of New York:

DWI:

Aggravated DWI:

DWAI (Alcohol):

DWAI (Drugs):

DWAI (Combination):

Zero Tolerance Law:

Leandra’s Law:

BAC of .08 or higher or other evidence of intoxication

BAC of .18 or higher

BAC is between .05 and .07 or other evidence of impairment

Evidence of impairment due to drugs

Evidence of impairment due to a combination of drugs and alcohol

Under the age of 21 and BAC is between .02 and .07

Drinking and driving with a child under the age of 15

Keep in mind that the level of impairment from alcohol depends on how much you drink, how much you have eaten, how long you were drinking, body weight and gender. The body can process alcohol at a rate of about one drink per hour, however these various factors can change the speed of processing. Make sure you have a rideshare app downloaded on your phone, a designated driver or a backup ride if you plan to drink.

Penalties for the above offenses vary depending on your license type, your age, whether you have prior related convictions, whether you violated Leandra’s Law and whether you submitted to a breath test, blood or urine test. Fines, jail time, community service, license suspension and/or the enrollment in the Drinking Driving Program and Victim Impact Panel are common penalties imposed by the New York criminal justice system for drug and alcohol convictions.

Finding an experienced attorney in New York State to handle your case can make a huge difference in the severity of your sentence. Should you have questions about DWIs or DWAIs do not hesitate to call the DWI lawyers at Spiegel, Brown and Fichera, LLP who have defended DWI and DWAI cases throughout the Hudson Valley and will evaluate your case free of charge.

Fidget Spinners Listed as Top Ten Dangerous Toys: Think Twice This Holiday Season

FidgetSpinner

One of the season’s hottest toys, the Fidget Spinner, has recently been listed as 1 of the top 10 most dangerous toys by the nonprofit called World Against Toys Causing Harm, or WATCH. The popular spinning toy has bearings that may come loose and fly into a child’s eye or create a choking hazard for younger children. In May of this year, a child in Texas choked on one of these bearings and required surgery to remove the bearing from her esophagus. What does this mean for you this holiday season? Be wary of toys that may seem harmless and be sure to check for recalls before making any purchases.

That look on your child’s face when he or she receives that long-awaited toy on Christmas morning – priceless. Nevertheless, this Kodak moment can turn into a tragedy in the blink of an eye. The Consumer Products Safety Commission reported that in 2015 alone there were 185,500 toy-related injuries and 11 toy-related deaths in children under the age of 15. Non-motorized riding toys were the source of most injuries and 45% of deaths.

Fortunately for parents and children, consumers are protected against oversights by manufacturers who produce and sellers who distribute defective products in the state of New York. A product liability action may be brought under any or all of three legal theories: Negligence, Strict Products Liability and Breach of Warranty. Under these causes of action, you may have one or more of the following claims against the manufacturer and possibly the seller and other distributors:

Design Defect
In a design defective case, the plaintiff must prove that:

  • The product was not reasonably safe due to the substantial likelihood of harm;
  • It was feasible to design the product in a safer manner; and
  • That the defect was a proximate cause of the injury sustained.

In determining whether plaintiff has met this burden, the court applies the “risk versus utility test” which evaluates whether the economic costs are higher than the cost of changing the product’s design.

Manufacturing Defect
When there is a flaw in the manufacturing of the defective product, the plaintiff aims to prove that the product caused injury because it did not perform as intended and that another product with the identical design did perform as intended.

Failure to Warn
When a product has an inherent danger that is foreseeable if used in a certain way, even if the use is unintended, it is the responsibility of the manufacturer to issue a warning. The manufacturer is obligated to give adequate warning of how a person should correctly use the product in order to avoid injury.

In the event that your child tragically sustains injuries this holiday season as a result of a defective toy, you should seek medical attention right away and make sure you keep records of all injuries inflicted by the toy. It is also important that you contact an attorney right away because the statute of limitations clock in New York runs out three years after the injury occurs. It isn’t unheard of for manufacturers to take advantage of victims by forcing them to forfeit their right to take legal action. Contact the dedicated legal team at Spiegel, Brown and Fichera, LLP who leverage their decades of experience to guide you on how to proceed with your claim and to ensure that a claim is made against all those who may be responsible for your child’s injuries.

For age-appropriate toy buying guides and additional safety tips, follow the link to the Consumer Product Safety Commission: https://www.cpsc.gov/safety-education/safety-guides/toys.