Car Accidents and No-Fault Insurance

In New York State, when you are involved in an automobile accident, you have two types of insurance to think about.

The more immediate and urgent insurance to think about is, "how do I get my medical bills, lost wages and expenses covered while I am in the hospital and out of work?"  The second issue is, how do I get compensation for my pain, suffering, and permanent injures, that is the "non-economic damages."

Let's talk about the insurance that gets the medical bills paid along with the lost wages and other expenses.  In New York that insurance is called "No-Fault" insurance.  No-Fault insurance is coverage that we all have on our vehicles.  So, if you are a New York licensed driver, with a New York registered car, it is mandatory to have your vehicle insured with No-Fault insurance.

The basic No-Fault Insurance provides for the payment of medical costs, a percentage of lost wages, compensation for substituted services and all other reasonable expenses incurred asthe result of personal injuries sustained in a motor vehicle accident in New York up $50,000 per person.  (You can purchase No-Fault insurance beyond the $50,000 and you should check with your agent about doing just that!  $50,000 can go quickly when you are seriously injured.)

As the word "No-Fault" implies, you do not have to sue anyone, (usually), to get the coverage.  If you are a driver of a vehicle at the time of the accident it is your own policy of insurance that covers your medical costs, lost wages and other expenses.  If you are a pedestrian, it is the coverage of the vehicle that struck you that has to pay your "No-Fault", because you are not in a vehicle.  If you are a passenger in a motor vehicle it is the "No-Fault" policy of the owner of the vehicle that you are in that will cover you.

What does "No-Fault" cover?

No-Fault covers economic loss that you suffer by reason of the accident up to $50,000, (or over $50,000 if you specifically ask for that type of coverage from your car insurance agent).

It covers all necessary expenses, including hospital, medical, surgical, nursing, dental, ambulance, x-ray, prescription drug and prosthetic services, psychiatric, physical and occupational therapy and rehabilitation and any other professional health service.

"No-Fault" insurance also covers loss of earnings from work, which the person would have performed had he not been injured, up to $2,000 per month for not more than three years.

Finally, "no-fault" insurance covers all other reasonable and necessary expenses incurred up to a paltry $25.00 per day for not more than one year from the date of the incident.

The lost wages are reduced by 20%.   Lost wages are further reduced by amounts recovered from social security disability, and worker's compensation to the extent that they defray medical expenses, and Medicare.

The VERY IMPORTANT THING YOU NEED TO KNOW is that you must make a claim for these "No-Fault" insurance benefits within THIRTY DAYS of the accident.

My next post will describe that other portion of insurance policies to be considered when it comes to "non-economic damages", the stuff that is not covered by "No-Fault" and what we all refer to as the liability part of the policy of the wrongdoer that covers the pain and suffering and loss of enjoyment of life aspects of an automobile accident.

Medical Malpractice -- Hospitals Are Killing Us

It sounds as if Dr. Marty Makary, a surgeon at John Hopkins Hospital is fed up.  His new book, "Unaccountable: What Hospitals Won't Tell You and How Transparency Can Revolutionize Health Care", published by Bloomsbury Press is essential reading for physicians, patients, hospital administrators and anyone who cares about health care in the United States -- yes, it should be read by everyone.

Dr. Makary writes:

"When there is a plane crash in the U.S., even a minor one, it makes headlines.  There is a thorough federal investigation, and the tragedy often yields important lessens for the aviation industry.  Pilots and airlines thus learn how to do their jobs more safely.

"The world of American medicine is far deadlier:  Medical mistakes kill enough people each week to fill four jumbo jets.  But these mistakes go largely unnoticed by the world at large, and the medical community rarely learns from them.  The same preventable mistakes are made over and over again, and patients are left in the dark a bout which hospitals have significantly better (or worse) safety records than their peers."  (emphasis added)

There are a lot of amazingly talented and caring people in the medical care field.  However, as our "medical care field" has turned into the "medical care industry", we have noticed that the industry is more involved in profit-taking and salary than in the patient.  Physician visits where you have to wait over an hour to be seen is all about the maximization of visits to make more money.  Going to a hospital emergency room and waiting many hours for treatment means that the hospital has decided to devote minimum resources to the Emergency Department -- usually visited by people on Medicare and uninsured people and the poor.  Sadly, for the medical care industry it is about the money and quite often, the patient is not viewed as a person in need of treatment, but instead the patient is viewed as a commodity.

98,000 people die each year from medical errors.

U.S. surgeons operate on the wrong body part as often as 40 times a week.

About 25% of all hospitalized patients will be harmed by a medical error of some kind.

If medical errors were a disease, they would be the sixth leading cause of death in America just behind accidents and just ahead of Alzheimer's.

These statistics, provided by Dr. Makary in a recent Wall Street Journal article are chilling enough from a personal safety side.  But Dr. Makary also goes on to note that "...medical errors cost the U.S. health-care system tens of billions a year.  Some 20% to 30% of all medications, tests and procedures are unnecessary, according to research done by medical specialists, surveying their own fields.  What other industry misses the mark this often?"

As long as our medical professionals practice a "closed-door culture", things are going to get worse.  There are two basic reasons that physicians practice this conspiracy of silence when it comes to failing to report or criticize, (let alone self-report or self-criticize) the medical errors of other medical care professionals, (or of themselves.)

The first reason:  Doctors do not like criticizing other doctors.  If they do, quite often they are professionally ostracized.

The second reason:  Medical Insurance Companies who insure doctors -- who are supposed to compensate injured patients when they are injured by the carelessness of a physician -- frown on doctors who report the malpractice of other physicians.

The medical care industry is letting money and insurance run the show.  It is time for change that places the care of the patient first.  There are a lot of great doctors and medical care professionals who do just that.  But there are a lot of professionals in the medical field who won't touch a Medicaid patient nor an uninsured patient.

Are Car Accidents Going to Become A Thing Of The Past?

According to the Wall Street Journal's Monday section, "Innovations in Transportation", the average licensed driver covers 12,700 miles each year, spends about 18 and one-half hours in the car each week and cannot stop being distracted when they drive.  18% of all injury accidents involve distracted drivers.  Moreover about $300 billion dollars is the approximate costs associated with automobile accidents.

And the average time a driver's eyes are off the road is 4.6 seconds.  Lets do the math.  A car travels one and one-half its miles per hour in feet per second.  So, if I am going 50 mph, I am going 75 feet per second.  If I am going 60 miles per hour I am going 90 feet per second.  So, when a person texts, they are travelling almost, on average, 375 feet along the highway, only they are not looking at the highway!  That is fifteen feet more than a football field plus the end zones of the football field.

Coming down the road, surprisingly soon, is the "driverless car".  According to Dan Neil, the automotive critic for the Wall Street Journal, "BMW's TrackTrainer -- an experimental 330i sedan bristling with machine-vision equipment -- uses GPS, track maps and telemetry recorded during a professional driver's model lap to negotiate a racecourse.  "

In his article, Neil opines, "By the time this technology is commercialized, robotically operated cars will be safer, probably a lot safer, than manually operated cars.  Autopilots will never get distracted, sleepy, lost, angry.  There reactions will be instantaneous and in an emergency always the right one.  They will always signal when changing lanes, never tailgate."  So that means that the people who will continue to drive manually operated cars will be less safe.  I wonder how long it will be, then, before the government REQUIRES the use of the driverless car.

Apparently, these cars are inevitable.  About 68% of those polled thought that the driverless cars were a good idea while only 31% felt that the "driverless car" was a bad idea all the way around. 

My wife, however, claims to have already experienced a "driverless car" -- every time I am behind the wheel!

Poverty

Poverty thresholds are determined by the US government, and vary according to the size of a family, and ages of the members. In 2010, the poverty threshold—known more commonly as the poverty line—for an individual was $11,139. For two people, the weighted average threshold was $14,218. Three people: $17,374; Four people: $22,314; Five people: $26,439; Six people: $29,897;Seven people: $34,009; Eight people: $37,934; Nine or more: $45,220.

In 2010, 46.2 million people lived in Poverty USA, up from 43.6 million in 2009. That’s means the poverty rate for 2010 was 15.1%, up from 14.3% in 2009.

2010 marked the fourth consecutive annual increase in the number of people living in poverty. The poverty rate, or percentage of the overall population living in poverty, has steadily increased as well, up to 15.1% in 2010 from 12.5% in 2007.  The number of people living in poverty in 2010 (46.2 million) is the largest number seen in the 52 years for which poverty estimates have been published.

Poverty does not strike all demographics equally. For example, in 2010, 21.7% of men lived in Poverty USA, but 24.1% of women. Along the same lines, the poverty rate for married couples in 2010 was only 6.2%–but the poverty rate for single-parent families with no wife present was up to 15.8%, and for single-parent families with no husband present over 31%.

Between 2009 and 2010, the poverty rate for people living with a disability rose from 25% (in 2009) to 27.9% (in 2010). That’s 4.2 million people living with a disability—in poverty.

In 2010, 22% of all children lived in Poverty USA—that’s over 1 in every 5 children.  In 2009, the National Center on Family Homelessness analyzed state-level data and found that nationwide, 1.5 million children experience homelessness in a year.

In the North Country, Franklin County's poverty rate is 14.4%.  In St. Lawrence County it is 16.9%.  In Clinton County it is 13.3%.

Thinking about the poor is something our government shies away from.  Doing something about the poor is something that we have put on auto-pilot:  Food Stamps, Social Service Assistance, (also known as Welfare), and other public assistance programs.

16.4 Million children living in the United States of America are poor.

It is not just the current state of the economy.  The real problem is how we feel about the poor and giving to them from the surplus.  And, there is a lot of surplus.

16.4 million kids in the United States of America are poor.  If only we had the will to change this.

It's Getting Rough Out There

Question:  How many lawyer jokes are there?
Answer:    Three.  The rest are true stories.

The New York Law Journal on August 23, 2012 gives a little bit of credibility to a lot of the jokes we hear about lawyers.  Clients going through the legal system for do, in fact, have a lot of things to justly criticize.  However, without sounding too much like a cheerleader for the profession of law, for the most part attorneys are pretty great people. They get the job done in workman-like manner; are professional and caring people and quite often are intensely involved in community organizations. But there is that handful of jerks out there that make the rest of all attorneys cringe and become frustrated at how just one idiot attorney can wreck the reputation of the entire profession.

So, here's a brief summary of why I SHOULD NOT have picked up the law journal on August 23rd:

First story:  "A Family Court judge who abruptly resigned in April should be prohibited from holding judicial office again in New York after he acknowledged having sexual contact 40 years ago with his 5 year old deaf niece, the State Commission on Judicial Conduct recommended in a determination released yesterday."  It actually is a bizarre story if you get to read it.  Apparently this sexual contact is alleged to have happened in 1972.  The girl is now 45.  Apparently, the mother of the girl is the sister of the Judge's wife.  The mother of the girl was wired by the DA in Onandoga County, (NY) but recorded in Boulder, Colorado where the mother of the 45 year old victim lives. 

Second Story:  "A State Judge who says he was assaulted by a police officer is accusing the Queens district attorney of orchestrating a cover-up after the prosecutor announced yesterday he will not file criminal charges against the officer who allegedly hit the judge and assaulted a homeless man.  'Everything they say is a lie," Queens Supreme Court Justice Thomas Raffaele said...".

Third Story:  "Employment attorney Matthew Bilt has filed a defamation suit against an adversary who claimed in open court that Bilt files frivolous suits against high-profile figures to extract money from them in a 'shakedown'. "

I am glad that I practice law in St. Lawrence County, Franklin County and Clinton County.  The population of jerks per attorneys is, for some reason, quite lower than downstate.  We do, however, have our share, and you know who you are, but for the most part the attorneys that we deal with, by and large, want to get a great job done for their clients and conclude the matter with the least trauma to the client.

Santa Claus, the tooth fairy, and honest lawyer, and an old drunk were walking along when they simultaneously spotted a hundred-dollar bill laying in the street. Who gets it?
        The old drunk, of course, the other three are mythological creatures!

See...  I love lawyer jokes.

AND

Pedestrians and Cell Phones

There is little question that texting or speaking on a cell phone while driving a car is a hazard.  But the August 2012 Consumer Reports issue speaks to an issue I had not thought about a lot. 

"In a new survey, Consumer Reports found that 85% of Americans had in the past six months seen someone use a mobile device to talk, text, e-mail, or use apps while walking in public.  Of those who had witnesses such behavior, 52% felt that the pedestrians endangered themselves or others."

The article goes on to say that over 1,500 "nonmotorized people", (I guess there are motorized people...), were hurt nationwide in 2010 while distracted by cell phone usage.

According to researches at Stony Brook University of the SUNY system, cell phone using walkers had "significant reductions in gait velocity and an increase in lateral deviation."  In other words, they walk goofily slow and zigzagged distractedly toward whatever destination.   The Consumer Reports article noted that the SUNY Stony Brook study, "...was announced in January -- a few months before a California man nearly walked and texted his way into the arms of a black bear."

As reported by the Daily Mail:

"TV helicopter crews managed to capture an oblivious phone user walking into the path of a 250kg black bear. The video shows the homeowner calmly walking towards the giant animal, engrossed in his mobile.
However, just feet before he reaches it, he notices the huge bear - and turns and runs in the nick of time.
Residents of La Crescenta, California, were warned to be on the lookout for the bear, which was only finally contained in a back garden hours later. Los Angeles County sheriff's deputies received a call of a bear sighting yesterday, KTLA-TV reported.
La Crescenta station sheriff's deputies and the Glendale Police Department responded, according to sheriff's Sgt Mark Slater.  "We did locate about a 500, 600-pound bear in this immediate area,"Sgt Slater said.
"He's been wandering through the residential area for the last several hours."  "Department of Fish and Game is en route," Mr Slater said.
"They have ultimate responsibility over it. Our role right now is if the bear is docile and just hunkering down, we'll let him continue that until Fish and Game gets here."
A police helicopter has been tracking the bear, which is believed to be the same animal that broke into a garage and pried open a refrigerator to snack on some frozen meatballs last month."

The video, which is a riot, is at http://www.youtube.com/watch?v=9Bjhjk2hHZU 

Car Accidents and Medical Bills

New York State, many, many years ago, adopted a plan to provide for mandatory medical insurance for people who are occupants of a motor vehicle or pedestrians struck by a motor vehicle.  It is called "No-Fault" Insurance.

The reason it is called "No-Fault" insurance is because, we are told, the fault of the person in causing the accident does not, in most cases, prevent the driver, occupant or pedestrian from having his medical bills paid by the insurance company that insured the vehicle that everyone is riding in.  You don't have to chase down the person who caused the accident and find him and sue him and win a judgement against him.  No-Fault insurance was designed to simplify the process.  If I am in an accident, the car that I was driving or in which I was a passenger, (or if a pedestrian, the car that hit me), must be insured.  Part of the insurance MINIMALLY must provide up to $50,000 coverage to pay, among other things, my medical bills, lost wages, and other necessary and reasonable out of pocket expenses.

However, insurance companies are in business to make money.  It is hard to convey this to a lot of people that insurance companies are in a business to make money because usually you are dealing with a kind person called an insurance agent or an insurance broker.  And the insurance agents and brokers are for the most part very fine and friendly people who are accesible and answer questions the best they can.  But, at the end of the day, they are agents FOR THE INSURANCE COMPANY and they are NOT AGENTS FOR YOU.

So, because Insurance Companies, including your own insurance company, is out to make money they have stacked the rules against you -- they really, really have -- so that you have to work and do things in order to get coverage after an accident in order to cover your medical bills and lost wages.  THERE ARE FOUR THINGS THAT YOU MUST, MUST DO WHEN YOU ARE INVOLVED IN AN ACCIDENT IN ORDER TO SECURE THIS "NO-FAULT" COVERAGE.  IF YOU DO NOT DO THESE FOUR THINGS - AND YOU NEED THE COOPERATION OF YOUR MEDICAL CARE PROVIDER -- YOU WILL NOT GET COVERAGE.

Here are the Four Things that you have to do to get insurance coverage.

1.  You must provide written notice of the accident to the insurer within 30 days after the accident.  This form must be asked for from the insurance company or agent for the company that insured the car that you were driving, or in which you were a passenger, or the car that hit you if you are a pedestrian.  If you donot provide this "No-Fault Claim Form" within the 30 days you may be out of luck.

2.  Your doctor, or the hospital, the radiologists -- anyone who bills you for services related to the car accident -- must submit the bill for medical services to the insurer within 45 days after the services are rendered to you.  This is important.  This rule means that you must tell your doctor or medical care provider or the hospital the name and address and claim number, when you get it, for the No Fault Insurance Company.  Even if you have personal insurance, it is better for you, particularly if you are contemplating suing the wrong-doer that caused the accident, to demand that they bill the No-Fault carrier and not your personal insurance company.

3.  From time to time, depending upon the nature of the injury, the No-Fault insurance company can demand that you see a doctor to be examined so that the insurance company can determine if you really are hurt and the extent of the injury.  This is where the insurance companies really screw the injured person.  The insurance companies that we have dealt with for our clients use "stable" doctors who, with the rare exception, know that they will continue to get business from the insurance company for these "insurance company examinations" if they minimize the injured persons injuries.

4.  The injured person AND the medical provider, if requested, must submit to a question and answer session, where your testimony is taken under oath, as the insurer may "reasonably require." 

If you fail to do 1 or 2, above, on a timely basis, the medical care claim will not be paid by the No-Fault Insurance Company.

If you refuse to do 3 or 4, if and when asked, the medical care claim will not be paid by the No-Fault Insurance Company.

If you have any questions, make sure you call us at 1800-924-3529

Inmates vs. Pigs

How did an image of a pig — the infamous ’60s-era epithet by protesters for police officers — wind up on a decal used on as many as 30 Vermont State Police cruisers?

Keith Flynn, Vermont's public safety commissioner had to explain how an alteration of decals which are affixed to the Vermont State Police Cars ended up on thirty Vermont State Police Cars.  There was, it appears, an artistically talented inmate who reshaped a spot on a cow -- an animal featured in the Vermont state seal -- in the shape of a pig.  Versions of the altered decal were placed on as many as 30 state police cruisers.

"It is fair to say the quality control will be improved at the Corrections Department and the Vermont State Police," said the executive officer of the State Police.

If you look at the cow's shoulder there is the pig!

“This is not as offensive as it would have been years ago. We can see the humor,” said Public Safety Commissioner Keith Flynn, a former state trooper and state prosecutor who was named commissioner a year ago. “If the person had used some of that creativeness [more positively], he or she would not have ended up inside.”

“We used to play in the Pig Bowl,” said Senator Campbell, the Vermont State Senate leader, and former State Police Officer. “It was the state versus the county and municipal police. While it was derogatory in the ’60s, we used it as a fundraisers for charities.”

Good Lawyer/Bad Lawyer

There is a very entertaining blog "The Velvet Hammer".  It is written by a personal injury attorney who practices in Portland, Oregon.  Recently she posted ten reasons why she would prefers to have good lawyers on the other side of the dispute.  Her reasons:

"Here are the top 10 reasons I'd rather try a case against a good defense lawyer:
10.  Don't have to mute normal style and appear almost blase.
9.  Don't have to dumb down technique to avoid seeming too smooth.
8.  Jurors appreciate an evenly matched fight.
7.  Judge gets less exasperated.
6.  Easier to predict timing which helps with scheduling witnesses
5.  Don't get bogged down (bored) as much with foundation and procedural issues
4.  Hate waste of time and it can become difficult to hide impatience (eye rolling syndrome)
3.  The jury may decide it needs to do that lawyer's job.
2.  Makes the defense look like it doesn't have the resources to hire decent counsel (even though an insurance company is footing the bill); and most importantly
1.  It is way more fun to try a case against a really good lawyer."

Another related situation is the relatively common situation when I have had to represent a client against a party that has no lawyer.  About fifteen years ago I represented a very nice woman who married a nut.  They had a couple of children.  The wife, we will call her Mrs. Sane, was intelligent but did not like confrontation.  The husband, we will call Mr. Nut, was, well..., a nut.  He sent many letters to the Judge, Judge Demarest, accusing him and Mrs. Sane and me and the law guardian of being part of the "Lawyer-Lesbian Conspiracy".  This was troubling for two reasons.  First, Mrs. Sane was not a lesbian.  (Neither is Judge Demarest.  Neither am I.  Neither was the Law Guardian.)  Second, I was not aware that there was a Lawyer-Lesbian Conspiracy.

On the serious side, though, a three day trial could have been solved without trial had Mr. Nut not been acting like Mr. Nut.  The fun part of the trial was the look on Judge Demarest's face when I had Mr. Nut read the letter that he sent to Mrs. Sane about Judge Demarest being part of the Lawyer Lesbian Conspiracy.

By the way, if you are interested the Velvet Hammer blog, which is always funny and useful can be found at http://www.karenkoehlerblog.com/  I found the blog from an article in the ABA Magazine as one of the top ten blogs for lawyers.

Some Horses are Vicious and Some Horses are Sad

Lawyers in New York State, and the surrounding states, keep up to date on legal developments. I often find myself reading less than compelling, but important articles in the Law Journal entitled, "A Look Back At Runner v. New York Stock Exchange: What Did It Mean For Labor Law Section 240?" and similar fare. Recently, John Caher, a reporter for the New York Law Journal, told of the sad tale of "...a heartbroken horse named Whiskey." I am simply not used to reading about feelings of human beings in the law journal. It is usually an analysis of the results of cases determined by courts: the who, the what and the why from a cold, hard legal standpoint. Buth this? In the Law Journal??? "Whiskey and her longtime companion, Topper, had been inseparable for more than 20 years and became agitated whenever they were apart... But Topper took ill in early 2008 and within two months could no longer stand, so his owner...had him put down -- 'a task performed...in full view of Whiskey', the Court observed." After Topper was "put down", Whiskey becan "frantically pacing" and rearing her head. As she was rearing her head, a neighbor who was trying to calm her caught his finger in the halter of Whiskey and when Whiskey reared her head back, the neighbor received a terrible injury to his hand. The Court went on: "Regardless of whether Whiskey's demeanor on the day in question was the result of being separated from Topper, or, rather, having witnessed firsthand his demise and the ensuing preparations for his burial, there is no dispute that she was nervous and agitated, as evidenced by her whinnying and pacing inside the paddock." It is comforting to me, at least, that even though the Court sent the injured person home, dismissing any case he may have had, they did recognize the pain and suffering of Whiskey.

The Dog Ate My Homework

There is a case in Western New York's Federal District Court entitled "Ca-POW v. Town of Greece".  Attorney David J. Seeger was told by Federal District Court Judge Charles J. Siragusa to file papers by May 11, 2010.  He didn't do it.  On four previous times, Judge Siragusa had pointed out to Mr. Seeger that he violated local procedural rules.  The fifth time was too much and Mr. Seeger got socked by the Judge with a $14,000 sanction.  Why?  Mr. Seeger had 29 years of experience as an attorney.  Judge Siragusa said:  "The Court found that [Seeger]'s contention that he was unsure what to do, or that he was 'toying with the decision' to seek leave to amend, or that his father's death 11 years ago, affected his ability to file a memorandum of law in this case, did not contain the ring of truth."

He that is good for making excuses is seldom good for anything else. Benjamin Franklin

Lawyers hear excuses all the time, particularly if the lawyer is representing someone charged with criminal behavior.  I can count on the fingers of one hand the times throughout my 29 years of practice that a criminal defendant came up to me and said, "Yup, I hit him because he ticked me off."  Note, that is an explanation -- not an excuse.  The excuse in that situation would be, "I don't remember hitting him.  I blacked out.  But if I did hit him, it is only because my mom and dad used to hit me and it caused emotional turmoil to the terrific extent that I blacked out."  That is an excuse.

Legal Advertising

Recently, we received a letter from "PMP Marketing Group".  They wanted us to fly down to Orlando, Florida to participate in a seminar "...to learn strategies of how John Morgan of Morgan and Morgan built his multimillion dollar law firm."  We are not going...

Along with the letter was a "Competitive Spending Report" for the Burlington area.  The report detailed just how much lawyers were spending in the Burlington, Vermont area, (I presume that includes Plattsburgh and Northern New York.)

On the top of the list was the Goldwater Law Firm which spent its gold like water to the tune of $432,000 in 2011 followed by Martin Harding and Mazzotti to the tune of $178,000. 

Our firm occassionally advertises on television, but not lately.  We have always been conflicted about advertising.  We do not want to come off as ambulance chasers or carnival barkers, because well..., because we are not that way.  We also worry that lawyer advertising can turn people off.  To each their own.

However, I have, I think, come upon the worst ever television commercial for an attorney.  I simply could not take on a client who would respond to this attorney's advertisement.  Moreover, it would be insane to hire such an attorney.

Eric Turkewitz, an excellent attorney who practices personal injury law put it best when he commented on the commercial shown below:  He said that this lawyer, ..."is an embarrassment to the profession, and lawyers should howl in protest when we see it. It feeds into all of the worst beliefs that many have of lawyers and our justice system (much of it fostered by big business looking to cut back on consumer rights) and helps to perpetuate it.
And that helps to create an overly cynical population, and an overly cynical jury pool, such that even those with the most meritorious of cases are left fighting uphill battles before an opening statement ever takes place. The legal playing field should be a level one, and lawyers should not be helping to create negative perceptions that will hurt those who turn to the courts seeking their ounce of justice. A pox on each of their houses for helping to create such negative perceptions which run directly contrary to the way most attorneys conduct themselves."

When watching the commercial below, ask yourself what type of individual would be moved enough by this commercial to call the lawyer... 

Marriage Preparation

For more years than I care to admit, my wife, Kathleen, and I have helped out two to three times per year in presenting a "Pre-Cana" program for our locality.  We work with a wonderful group of people, including Father Joe, our parish pastor, (Malone Catholic Parishes), Suzanne and Angelo, Nick and Mary, Bryan and Monique, and Scott.  The Cana in Pre-Cana refers to the wedding to which Jesus was invited with his mother where he performed, what one student referred to as a "great parlour trick" of turning the water into wine and the request of his mother, Mary.  The Catholic Church, like most faith communities requires, (strongly suggests?), some sort of marriage preparation before tying the knot. 

Our pre-Cana is always busy.  This past Saturday we had 36 people going through the process.  My talk is challenging -- Finances.  But, every segment is challenging:  Sacramental Marriage, i.e., essentially, what is marriage; Communication; Sexuality; and Finances.  We get busy because the alternative is very daunting -- if you do not go to our Pre-Cana (one day--7hours long--with lunch!) you may be "married up" with a local couple who will mentor you (individual attention for the couple) over a series of weeks at their house or your house, or somewhere.  Well, if you're a young couple, that doesn't sound too appealing, because, after all, you already have an older couple telling you what you should do, (they are called parents), so why not get it done in a day!

There is, of course, the well-known admonishment to young couples:  Fifty-per cent of all marriages end in divorce.  But, Many Americans stay married and have long marriages. The median duration of American women’s first marriages in 2009 was 20.8 years? Even when American women remarry, the median duration of their second marriages in 2009 was 14.5 years.  So, there is a lot of hope.

If you met the young people, (and some middle-aged people), who were participating in the class you would have a lot of hope.   Over the twenty years or so that I have participated in this program, I have increasingly become more hopeful.   The biggest reason that I am more hopeful of weddings now than in the past is that women are, for the most part, more confident when they come into a marriage.  They are not as willing to put up with substance abuse or violence.  And, they are waiting longer before they get married, some delaying until their education is completed.  The other side of the coin is that men are becoming more aware of substance abuse and violence.  Moreover, men and women alike are looking at the stress and heartbreak that their own parents' divorce caused them as children and wish to avoid the same anguish in their own marriage.

Medical Errors

The American Association of Retired Persons in the March edition of its AARP Bulletin has an important article entitled, "The Worst Place to Be If You're Sick", by Katherine Greider.  Ms. Greider points out:

"The number of patients who die each year from preventable hospital errors is equal to four full jumbo jets crashing each week.  If airline tragedies of that magnitude were occurring with such frequency, no one would tolerate the loss."

The Road To Politics

Recently, we sued the Town of Malone. There was a rotted and terribly dangerous tree hanging over the roadway in the Town of Malone's right-of way.  A gust of wind blew causing a limb of a tree to smash onto the car driven by our client.  It hurt her badly. 

Looking at the tree, it was clearly rotted and ready to fall.  In New York, each municipality has a non-delegable duty to have an inspection plan, (a plan that should be followed up on, too...), consisting of, well...inspecting the roadways to see if there are any dangerous trees nearby that could crash on cars or pedestrians.

Part of preparing any case for trial in such a case involves questioning the employees of the municipality, (here, the Town of Malone), of what they saw about the trees, or what they knew about the inspection program, if any.  Invariably -- AND I MEAN INVARIABLY -- a current employee never has seen a dangerous condition exist and any inspection procedure was the responsibility of someone else.  Naturally, the reason for such "know-nothing" testimony is that the employee does not want to lose their job, or "get in trouble".  Thus, integrity is abandoned and the paycheck is secure.  Of course, this culture of "I didn't see anything", or "that is not my job" is based upon dysfunctional political systems, and dysfunctional departments.  In Malone, the Highway Superindendant is elected.  The employees serve at the pleasure of the Town Board.

I was fortunate enough, however, in my particular case to have the unique situation of being able to take the testimony of the Highway Superindendant who was at the helm when my client was injured but who had since retired.  He was safely collecting retirement, he was not in danger of losing his election or being criticized by the Town Board, and, I guess, he could now be truthful.  Here's a sample:

"Question [Joe Nichols]:  Sir, did you periodically drive ---when you were a highway superintendent, did you periodically drive the town roads to check on their condition?

Answer [Highway Superindendent]:  Why--they used to have a road inspection every spring with the supervisor and councilmen and that sort of stuff.  And they used to go down and ride around the roads, and all they done was talk about politics while they were there, so that didn't do no good.  So, after that was done, they all went back to the garge and went home.  So, as far as that inspection, that was the only final inspection.  And we haven't had that in -- I don't know how many years now -- four or five years maybe.  We--they just done away with it."

Because of the "I see nothing" mentality in this case, our client suffered fractures to her spine.  And this particular tree at issue should have been trimmed, because it was a dead tree.  Moreover, the town had the right and the duty to trim it.  But this is what happened:

Testimony of Highway Superintendent:  "I told him, [the owner of the field adjacent to the right of way with the dead trees] that the trees look like they should all be taken out, and what I offered to do was take them all out and take the stumps and all out.
Question [Joe Nichols]: What did he say to you after you offered that?
Answer:  He said, "No, them are shade for my cows."
Question:  Now after that conversation with [the owner of the field] did you ever talk to the town attorney about what your rights or your obligations were as town highway superintendent in the removal of those trees?
Answer: No.
Question:  Why?
Answer:  Just never did, just let it go, I guess...What's the sense of getting into an argument with somebody, might as well forget about it.
Question:  All right.  So, one of the reasons you didn't want to do it was you didn't want to get into an argument?
Answer:  That is correct.  What's the sense in getting into it?
Question:  Did there come a time that you learned that [the injured person] had been involved in an incident where one of those trees along the Junction Road fell onto her car?
Answer:  I didn't know who it was that the tree fell on the car...Yeah, I heard it afterwards."

Malpractice Verdict

Medical Malpractice verdicts in favor of plaintiffs are far and few between in the Upstate Counties of New York.  There is a lot of discussion about why malpractice verdicts are the way they are, some valid and some not valid.  The biggest roadblock to the peaceful settlement of claims is, in my less-than-humble opinion, professional egotism.  Doctors, Lawyers, Accountants, Teachers, have a very difficult time in being told that they have done something in a "careless" way.  Professionals, so called, are the worst in our society, at admitting that they screwed up.  In many ways we professionals are like badly brought up children.  We try to point the finger or tell people why we have not done wrong or that the wrong was really a right.  Doctors are especially challenging in this mode.  Lawyers, at least, have judges and other lawyers correcting them, arguing with them, putting them down, etc.  Teachers have students ready to cut them down to size every minute of every day.  Accountants, no matter what, have the cold hard facts of numbers. 

But doctors, (here I sigh...).  They have no one who holds them into account.  Ask most nurses and they will tell you that many (NOT ALL), doctors have a self-important arrogance bred of thier self-perception of constantly saving lives and of having little, if any, checks on their ego -- no wise-ass student, no judge telling you why your argument sucks, no numbers thrown in your face where you transposed a number by mistake. 

Most malpractice clients who come to our offices come because the doctor was arrogant, rude and/or dismissive of their problems. 

Here is one where the good guy won, and its from the Plattsburgh Press Republican.  Yes, my partner Tom Grue and I are absolutely estatic for our client, George.  He's a great guy.  This is from the Plattsburgh Press Republican.

"February 14, 2012

Brushton man gets almost $1 million after surgery lawsuit

JEFF MEYERS Press-Republican The Press Republican Tue Feb 14, 2012, 05:58 PM EST

MALONE — A Brushton resident has received nearly $1 million for injuries he suffered during a prostatectomy performed in January 2007.

George Guyette, 74, was awarded $919,276.67 following a week-long trial against Plattsburgh urologist Dr. Leo Grafstein and his practice, Urology Associates of Northeastern New York.

Grafstein plans to appeal the decision.

“I am very glad for George,” said Guyette’s attorney, Joseph Nichols of Poissant, Nichols, Grue and Vanier law firm in Malone. “This is a nice outcome for a fine man, who has had to go through so much (since the procedure).”



INJURY CHECK

The case focused on Grafstein’s failure to check for a possible rectal injury following the prostatectomy to remove a portion of the prostate gland.

“The doctor should always check (for any damage to the rectum) before closing the patient up,” Nichols said. “We believed it was very apparent in this situation that the doctor did not check to see what had happened.”

Testimony during the trial confirmed that Grafstein had “performed the procedure carefully and properly but had failed to check at the end of the surgery for the possibility of a rectal injury,” Nichols’s firm stated in a press release.

According to court records, Grafstein and a defense expert from Albany testified that such a procedure was not required.

But all of the medical witnesses called to testify agreed that the consequences of not identifying a rectal injury following the procedure would result in a prolonged course of treatment, including a colostomy as an alternative channel for feces to leave the body.



INFECTION

“Mr. Guyette’s bowel contents leaked into his abdomen (following the procedure) and created a terrible infection,” Nichols said. “Since then, he has had to undergo lots of surgeries, including a colostomy. These are things that he continues to go through.”

Contacted by the Press-Republican, Grafstein refused to comment on the case.

His attorney, Peter Scolamiero, who is based in Albany, said his firm could not comment but did note that an appeal is planned.



‘IMPORTANT’

Nichols praised the jury of five men and one woman for its patience in following the information it received over the course of the trial.

“The decision is important for many members of our community,” he said. “Prostate cancer is the fourth most common cancer that a man is likely to face in his lifetime.

“The jury’s findings validate the community’s expression that it desires to have doctors take a few minutes to do a surgery carefully and to avoid complications that sometimes can occur.”

Guyette will be required to repay $137,100.28 from the judgment for Medicare payments incurred over the past several years.

The judgment will be paid by the urology’s medical malpractice insurance carrier, Medical Liability Mutual Insurance Co."

Creative Criminals

Mr. Motzer was just trying to make the Great Escape. Thank goodness the vast, vast majority of criminals are not that intelligent. Chanel 4 in Buffalo, NY ran this article today on its website:

"WARSAW, N.Y. (WIVB) - A man is in custody, after the Wyoming County Sheriff’s Office says he changed his last name the day before his scheduled sentencing and then did not appear in court. In September, 25-year-old Eric Motzer was convicted of second-degree criminal sale of marijuana, endangering the welfare of a child, second-degree rape and second-degree criminal sexual act. He was scheduled to be sentenced on September 22nd. However, on September 21st, he was married in front of a Genesee County Justice of the Peace, and took the name Eric Disalvo. The following day, Motzer/Disalvo did not appear in court and a warrant was issued for his arrest.
The man was apprehended in West Virginia, where the Wyoming County Sheriff’s Office say he fought extradition stating his name was not Eric Motzer.
After several hearings and a governor’s warrant issued, the man was transported back to New York. An was arraigned in Wyoming County Court, and remanded without bail.
He will face sentencing for the original charges on April 5th."

Crime is nothing but misdirected energy! But, speaking of misdirection, how was Eric Mozer OUT ON BAIL, KNOWING THAT HE WILL BE SENTENCED FOR CRIMINAL SALE OF MARIJUANA, ENDANGERING THE WELFARE OF A CHILD, SECOND DEGREE RAPE AND SECOND DEGREE CRIMINAL SEXUAL ACT???!!!! We have all seen the explosion of police presence on all levels of government since 2001 -- everywhere except, apparently, Wyoming County -- where a convicted rapist gets to have a vacation prior to his sentence, get married, change his name and take off to West Virginia. I don't know who the Judge and Prosecutor are in Wyoming County, but you have to wonder why this guy was out of jail in the first place. Must be that they thought he was a sweetheart as did his new wife, who apparently was not put off by the pot, endangering the welfare of a child, rape and criminal sexual act charges. And in the mix is the accomodating Justice of the Peace. How does Eric get his name changed by a justice of the peace???. This story needs a bit more light.