FALLS AND COLLAPSES: A MAJOR CAUSE OF CONSTRUCTION ACCIDENTS

Construction work has one of the highest fatality rates in the job industry. According to the Occupational Health and Safety Administration (OSHA), in 2015 1 in 5 worker deaths were in construction. The leading cause of worker death in the construction industry was falls. The second leading cause of death was being struck by an object. These statistics do not take into account workers who survived but sustained injuries on construction sites.

In response to the inherent danger associated with construction work and the requirement to work at “elevated heights,” the New York legislature enacted special provisions in the New York Labor Law (sections 200, 240 &241(6)) to provide protection to laborers by ultimately placing the responsibility of workplace safety on owners, general contractors, and their agents as opposed to the workers. The definition of elevated heights varies from case to case but has covered anything from as high as skyscrapers to pipes at ground level.

The business community, especially the insurance industry and U.S. Chamber of Commerce, have fought with the Legislature in Albany to change these laws. The law firm of Spiegel, Brown and Fichera, LLP has recognized the importance of this law to protect construction workers and has fought diligently in the Legislature to preserve these protections.

On the individual level, the attorneys at Spiegel, Brown and Fichera, LLP have fought successfully for injured workers who have fallen from ladders or scaffolds or have been struck by falling objects as a result of collapsing scaffolds and ladders. In the process, we have managed to obtain substantial recoveries that have made our clients financially whole.

Although employees in New York are protected by the Workers Compensation law to help recover for medical expenses and lost wages the system simply does not provide full compensation for seriously injured workers. The New York Labor law allows injured workers to seek additional compensation from third parties, those other than their employer.

If you are a construction worker injured by falling off a ladder or a scaffold or struck by a falling object, you may be entitled to compensation for your injuries. Spiegel, Brown and Fichera, LLP has had long and successful handling of these cases for over 30 years and is here to help you recover for your medical bills, lost wages and pain and suffering.

Municipalities and Their Liability for Dangerous Roadways

While many motor vehicle accidents occur as a result of driver negligence, there are some roadways which in themselves are inherently dangerous and cause a great number of accidents. Road hazards that lead to motor vehicle accidents may include the following:

  • Poor maintenance of roadways such as potholes and cracks in the pavement or signs that have fallen or cannot be seen due to overgrowth of foliage;
  • Design defects such as the failure to place guardrails strategically at curved portions of roadways, improper placement of signs, not constructing proper drainage for rainwater and insufficient line markings on the road; and
  • Roads that have speed limits that are too high for the road’s design.

Municipalities have a duty to alleviate known hazardous road conditions. This duty, however, is not absolute. Governmental entities enjoy what is known as governmental immunity. What this means is that it is not enough to show that the road was in itself unsafe. It must be shown that either that the study conducted prior to the road construction/design was inadequate or that the decision it made in regard to construction/design following the study was unreasonable.

For a municipality to be liable, it must first be made aware of the dangerous condition of the roadway. One of the most common ways in which it can be shown a municipality knew or should have known of the dangerous road condition, is if there is a history of prior accidents at that specific location. However, prior accidents are only admissible at trial if facts of the prior accidents are substantially similar to the accident being litigated. It is in the judge’s discretion, which prior accidents meet this criterion and are therefore admissible as evidence of prior notice. It is for this reason it is important that you retain the services of an attorney who has experience in litigating dangerous roadway cases. Cases against municipalities for dangerous conditions on roadways can be difficult and an attorney must have a good understanding of the law.

The attorneys at Spiegel, Brown and Fichera, LLP, represented a motorcyclist in a claim against a local municipality for injuries sustained as a result of an accident with another vehicle at a very dangerous section of a roadway. The motorcyclist sustained devastating injuries including a brain injury, multiple fractures to his spine, as well as nerve injuries to his arm which ultimately resulted in the amputation of his right arm. In investigating prior accidents, it was learned that just 8 months prior to our client’s accident, a near identical motorcycle accident occurred at the same location resulting in the motorcyclist’s death. Unfortunately, the motorcyclist’s estate did not realize they had a viable claim against the municipality and was never compensated for the motorcyclist’s injuries. Many drivers who are involved in accidents because of a dangerous roadway never seek compensation for their injuries because they are unaware they may have a claim. If you are involved in an accident on a dangerous roadway, you should contact the attorneys at Spiegel, Brown and Fichera, LLP for a thorough evaluation of your accident so that you do not lose out on being compensated for your injuries.

The Right To Recover For Diving Injury

As summer approaches, many families will be heading to the pool, oceans and lakes to enjoy the cool water to escape the summer heat. Although pools, oceans and lakes are havens to enjoy favorite summer pastimes including swimming, boating and jet skiing; they can also be dangerous bodies of water in which people drown or sustain serious injuries. Tragically, from 2005-2014 there were 3,456 fatal unintentional drownings in the United States each year.

What many people may not be aware of is the prevalence of injuries sustained from diving. According to the American Association of Neurological Surgeons, an estimated 11,000 spinal cord injuries occur every year. These injuries result in paralysis, and/or traumatic brain injury. 90% of diving victims who hit their head on the bottom became quadriplegic. Among the leading causes of spinal cord injuries, diving ranked 4th for males and 5th for females.  In one study of persons enrolled in the National Spinal Cord Injury Statistical Center database, 57% of the injuries occurred when diving in less than 4 feet of water and 38% occurred at depths between 4 and 8 feet.

Under New York law, diving head first into a pool is not an intended use of pools and not a foreseeable use to manufacturers, retailers and landowners. However, if it can be shown that the defendant was negligent you may be able to recover for your injuries.

In what has become a frequently cited case in New York, Cynthia Fichera, a partner of Spiegel, Brown and Fichera, LLP, litigated on behalf of one of the plaintiffs in the matter of Kriz v. Schum before the Court of Appeals of the State of New York, 75 NY2d 25 (1989). In that case, in which the court decided two cases at once, Mrs. Fichera argued on behalf of a young woman who dove off of a slide into a pool and struck her head on the bottom rendering her a quadriplegic. The young woman did not see her friends dive into the pool and was not aware of the pool depth when she dove into the shallow end. The court found in favor of Mrs. Fichera’s client on the basis that it was foreseeable that she would dive off of the slide and that the defendants’ failure to advise of her of the pool depth contributed to her accident.

Denkensohn v. Aquaslide and Dive, 914 F2d 262 (9th Cir. 1990), (a separate action filed in federal court) also held the slide manufacturer liable for failing to include adequate instructions and warnings with the slide.

The courts have consistently held that property owners have a duty to warn possible users of a lake or a pool of its depth. In a 2011 case, the New York Court of Appeals held that the State, as a property owner, was under the duty to warn possible users of a lake where there was spillway caused the water depth to fluctuate between 3 and 10 feet. However, in that case the court dismissed the plaintiff’s claim because there was overwhelming evidence that the plaintiff was familiar with the area and had specific knowledge that the water depth varied and could be extremely shallow. The court followed the general rule that when plaintiff’s actions are the sole proximate cause of an accident, the case should be dismissed.

This summer, as you and your family head to the pools, oceans and lakes, be conscious of the dangers of diving and potential for shallow water. Taking these precautions into consideration may prevent a lifetime of disability. In the event of an accident keep in mind that over the years the law firm of Spiegel, Brown and Fichera, LLP has obtained successful recoveries of millions of dollars on behalf of plaintiffs injured in diving accidents and have the knowledge to help you get compensation for your injuries.

MAC:mo

4/19/17

BABIES INJURED BY MEDICAL MALPRACTICE HAVE NO CHAMPION IN GOVERNOR ANDREW CUOMO

Without much doubt, the number one category of cases in which we receive telephone solicitations for legal consultations is that of medical malpractice. Probably 95 percent of these inquiries result in our taking the time to chat with the potential client and then to explain why, even in cases of rather clear medical negligence, there is no basis to bring a suit.

Why is this? The answer is that, contrary to the insurance industry’s expensive advertising campaign, the doctors have “won the war” in New York State on the medical malpractice front. How have they done this? These are some of the critical ways:

a) Unlike any other type of personal injury case in New York State such as a car accident or slip and fall, a lawyer may not even file a medical malpractice case unless and until he or she has obtained all the medical records, reviewed the medical facts and the legal issues, referred the case to an independent expert for a formal review (an expensive and time consuming process that must result in a positive expert finding of malpractice and significant harm to the patient).

b) An industry-wide commitment not to settle even the most clear cut cases of doctor-inflicted injury until the case is literally on the eve of trial (unlike most other personal injury cases where a lawyer who is able to prove a clear cut injury and strong fault can achieve a fair settlement in timely fashion for his client).

c) Special rules that limit the lawyer’s contingency fees to as little as one half of the normal contingency fee percentage that is permitted in all other types of injury cases in New York.

Because of the tremendous investment of time and money in bringing these cases, medical malpractice cases are only brought by the most experienced and best trial lawyers in this State. They are also defended by among the very best of the civil defense bar (with all due respect to the automobile insurance company’s lawyers, those that defend doctors and hospitals in medical malpractice cases, are paid three or four times as much and are regarded as extremely competent advocates). Despite the fact that these cases are brought by the very best trial lawyers and have been reviewed and certified to be the result of serious medical negligence by independent medical experts, almost three out of four jury verdicts in this State are in favor of the doctor or the hospital.

In the face of this, the insurance industry has created a web of lies and myths about a “litigation explosion” and alleged punitive damage awards which have shattered New York’s economy. This dishonest campaign of the insurance industry has been ignored by the media (see, however, “Selling Out Injured Baby Rights”, Ralph Nader, www.nader.org).

The fact of the matter is that there are no punitive damages permitted in New York State for medical negligence. The vast majority of the seven figure medical malpractice awards/settlements are in situations involving avoidable birth defects to brain-damaged and other permanently handicapped babies who are victimized — usually while still in the womb — by careless doctors or nurses. These are, obviously, significant exceptions. Nevertheless, these few large awards — almost invariably well justified — are thrown up by the insurance industry to mislead, not only the public, but the medical practitioners themselves to create an atmosphere of fear and of litigation run amok.

Now Governor Andrew Cuomo, in a most cynical fashion, has attempted to curry favor with the insurance industry in Albany (the strongest lobby in our State Capitol) by submitting a budget which would include, buried in the various expense items of the State, a $250,000.00 cap on pain and suffering awards in birth defect and other brain-damaged baby cases in New York.

It is urged that all citizens contact Governor Cuomo’s office as well as your local Assemblyman and Senator and tell them that you oppose Governor Cuomo’s medical malpractice Proposal Number 131.

TRAUMATIC BRAIN INJURIES: A DEVASTATING INVISIBLE INJURY

When a person has an accident and is injured, the most obvious types of injuries are those that can be seen. Injuries like broken bones, lacerations and resulting scars are easily visible to the naked eye but there are many injuries which cannot be seen. Injuries such as neck and back injuries and traumatic brain injuries, while invisible to the naked eye, can often be far more devastating than those that can be seen.

Society is finally starting to pay attention to traumatic brain injuries like concussions. Professional sports leagues, like the National Football League, are conducting studies and some very high profile athletes have had long-term injuries caused by concussions. Last year, a baseball player named Justin Morneau of the Minnesota Twins, a former Most Valuable Player, did not play in a single game following the All Star break after suffering a concussion. His status going into the Spring, 2011 season remains uncertain.

Traditional media is also starting to pay more attention to brain injuries. For example, USA Today published a detailed article concerning a health insurance gap encountered by many, if not most, brain injury victims (“For brain injuries, a treatment gap”, USA Today, 3/2/11).

Traumatic brain injuries are a serious disease that affects millions of people each year. The Center for Disease Control reported 1.5 million people diagnosed with traumatic brain injury in 2001. A traumatic brain injury, like a concussion, occurs when there is a trauma to the brain. For example, when a person slips and falls or has a car accident and strikes their head, their brain will shift within their skull and come into contact with the interior of their skull. The human skull is not smooth on the inside but rather has ridges. When the brain comes into contact with these ridges, injury can occur. It is in these situations when a person may suffer a concussion.

A concussion can occur in a person with or without a loss of consciousness. Acute signs and symptoms of a concussion are: fatigue, nausea, vomiting, headache, dizziness, confusion and seizures. Long-term symptoms include confusion, memory loss, change in personality, poor attention, changing of sleep patterns, becoming upset easily or a short temper, depression and feeling lethargic.

When you are in an accident and suffer a blow to the head you should be aware that you may have suffered a concussion. If you have any of the above referenced symptoms, you should immediately tell your treating doctor and request to see a neurologist, particularly if symptoms are persisting. Because a traumatic brain injury is not always readily apparent, symptoms are often minimized by a patient and they do not even realize they are suffering this injury.  Often symptoms like confusion and a memory loss are ignored by a patient until, months later, they are having difficulty when they return to their job and find that they are not able to perform all of the activities they were once able to do easily. As an attorney who has litigated these types of cases, it is often difficult to causally connect these symptoms back to the original accident if the symptoms of the brain injury are not documented in medical records at the time of the accident.

The long-term effects of a brain injury can often be far worse than those of the obvious injuries suffered in an accident. A broken bone will often heal and the injured person is able to return to their regular daily activities. However, when a person is suffering the long-term effect of a concussion that causes them difficulty in their concentration and memory, these effects can cause undue stress and difficulty with their relationships and their careers for years after their accident. For this reason it is very important when you suspect that you have suffered a concussion in an accident that you advise your doctor of all your symptoms, particularly if you are suffering headache or nausea.

Often, a patient who is diagnosed with a traumatic brain injury will be referred to a neuropsychologist. A neuropsychologist has training in evaluating the effects of a brain injury. They will conduct extensive testing which can be performed over several weeks to assess the impact a brain injury has had on an individual. A good neuropsychologist can assist a patient in understanding their limitations caused by their brain injury so they will know how to deal with them in their everyday life. For example, if a patient suffers short-term memory loss, they may sometimes “blank out” for a moment while driving and not know where they were going. If a person is aware that this could happen, they can make sure to have a GPS with them at all times while driving so if they do suffer this, they can look at the GPS and not suffer distress while driving.

A traumatic brain injury can be a very difficult injury to live with. Often, its effects go unnoticed until a patient’s life is later disrupted. What’s more, our society has tended to minimize injuries like concussions. Thankfully, this attitude is beginning to change and traumatic brain injuries are becoming recognized as the severe injury that it is and new treatments are being developed to assist patients in overcoming them. People should be aware that they can easily suffer a traumatic brain injury when they have an accident, like a motor vehicle accident or a slip and fall. They should report all symptoms they are feeling to the emergency room doctors and their medical professionals to make sure they get the treatment they will need to assist them in overcoming this sometimes difficult and long-term injury. They should also consult an attorney who has the knowledge and experience handling traumatic brain injury cases to make sure they receive proper compensation for this complex and often devastating injury.