New York Personal Injury Lawyer Blog

According to a study by the consumer protection group Public Citizen, medical malpractice awards are at an all time low in the United States. Public Citizen used data collected from the National Practitioner Data Bank (NPDB), which started tracking payments made in medical malpractice cases in 1990. The 2010 report, released recently, found that malpractice payments made for physicians in 2010 was the lowest on record. This information should be imparted to all physicians who claim that personal injury lawyers are responsible for the increase in their malpractice premiums. Clearly, that is not the case, and the true culprits are the powerful insurance companies and their well paid/connected lobbyists, who consistently manage to thwart all reform efforts to remedy the insurance crisis in this country.

The study showed that the number of payments made for malpractice claims dropped from 16,566 in 2001, to 10,195 in 2010. Despite the dramatic decrease in medical malpractice awards, insurance companies are the real winners, continuing to increase premiums and reap significant profits. According to Public Citizen, malpractice payments amounted to a scant 0.13% of total health care costs. They found that total health care costs increased a massive 90% between 2000 and 2010, with medical malpractice claims dropping 11.9% during that same ten year time frame.

There has not been a corresponding decrease in medical mistakes while malpractice payments have decreased, the study finds. They cite three studies published in 2010 and 2011. Among these was from the Inspector General of the Department of Health & Human Services, who reviewed the cases of Medicare patients in U.S. hospitals. This study concluded that one in seven Medicare patients experienced a “serious adverse event”, which contributed to death in 1.5% of patients. Further, they determined that almost half of the adverse events—44%--were preventable.

The authors of the report concluded that the true medical malpractice crisis is not due to substantial medical malpractice awards, but rather the “epidemic of medical errors.” We hasten to add, and a huge insurance problem in which insurance companies make substantial profits but consistently deny legitimate claims while racking up the profits.

Continue reading "Medical Malpractice Awards At All Time Low Says Study" »

Dominique Strauss-Kahn, the French former managing director of the International Monetary Fund who was just released from criminal jeopardy when the Manhattan District Attorney's Office dropped sexual assault charges against him on August 23rd, still faces the possibility of a civil damages award. As is well known, Strauss-Khan was accused by 33 year old Hotel Sofitel employee Nafissatou Diallo of forcing her to engage in oral sex when Ms. Diallo entered Strauss-Kahn's suite to clean on May 14, 2011. Although the initial evidence against Strauss-Kahn seemed compelling, including the fact that Diallo had his semen on her clothing and he attempted to flee the United States soon after the encounter, further investigation by the Manhattan District Attorney's Office post indictment resulted in major credibility questions as to the accuser. These included the fact that she lied about being gang raped in her native Guinea, lied on an asylum application when she first arrived in the United States, and was recorded speaking with a friend and mentioning Mr. Strauss-Kahn's finances and stating that she "knew what [she] was doing."

Earlier this month, as the criminal case appeared to be crumbling, Ms. Diallo went public with her allegations, appearing on major news programs and in national magazines. She filed a civil lawsuit in the Bronx County Supreme Court, alleging that Strauss-Kahn had sexually assaulted her and seeking unspecified money damages. If this case had been brought prior to November of 2003, when the New York Civil Practice Law & Rules was amended to disallow identification of the amount being sued for in lawsuits, it is likely that Diallo would be suing for multi-millions. Under the law presently, the defendant's attorneys must submit a demand for the "ad damnum", or amount being sued for, to glean what the alleged damages are.

There is a significant difference between the burden of proof that the prosecution must establish in a criminal case, known as "beyond a reasonable doubt", and that the plaintiff's attorney must prove in a civil case for money damages, which is "a preponderance of the evidence." Beyond a reasonable doubt is defined as "proven to a moral certainty...the facts proven must, by virtue of their probative force, establish guilt...any doubt must not be fanciful or imagined but based on reason and arising from the evidence." In contrast, a preponderance of the evidence literally means evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it." Obviously, a much easier burden to prove in the civil case.

Nonetheless, Ms. Diallo will have major difficulty overcoming the evidence of her fabrications in matters of major importance, including the asylum application, and even more damning, the false accounting of a sexual assault in Guinea, which could lead a jury to believe that she lied in this instance as well. Further, there is a jury instruction which would be give to jurors in the civil case if it were deliberating known as "Falsus in Uno", which states: “If you find that a witness has willfully testified falsely as to any material fact…the law permits you to disregard completely the entire testimony of that witness upon the principle that one who testifies falsely about one material fact is likely to testify falsely about everything.” One factor which works in Ms. Diallo’s favor if the case did proceed to a verdict is that in a criminal case, the 12 person jury must be unanimous in its verdict, whereas in a civil case, the 6 person jury does not have to be united—only five of the six jurors must agree.

There is also the issue of the venue of the case, as Bronx County jurors are the most favorable to plaintiffs of any the 62 counties in New York, with the possible close exception of Kings County jurors. Simply put, Bronx and Brooklyn jurors will likely be more receptive to a case in which an African American immigrant is suing a very wealthy and well represented French financier. The defense might consider a possible transfer of the case to the Federal Court, where the jury pool would not be drawn from the Bronx, but rather New York County, where jurors are substantially more conservative and would likely be favorable in their treatment of someone with Strauss-Kahn’s wealth. However, the down side for Strauss-Kahn in moving the case to federal Court might be his somewhat checkered past, in which he has been accused on numerous occasions in France of sexual assault, (and has a pending case against him now by a French journalist) and some of these allegations might be more likely to be received in evidence in federal Court than in state Court.

Another possibility is that as in the Kobe Bryant and the late Michael Jackson (twice) cases, the victim will receive a rather large monetary settlement and agree to discontinue all further proceedings. However, in the Bryant and Jackson cases, the settlement was made while the criminal proceedings were ongoing, so the scenario here is somewhat different now that the Manhattan D.A. has dropped all charges. We will keep monitoring developments in this fascinating case.

Continue reading "Strauss-Kahn Not Out Of Legal Trouble Yet" »

Red light cameras have become a way of life in New York City and Nassau County, and if City of Yonkers officials are successful, these cameras will be installed at major intersections in Westchester's largest city as well. The main stated purpose of the red light cameras is to catch red light violators "red handed" so to speak, and according to the Insurance Institute for Highway Safety, they have saved 159 lives in the 14 largest U.S. cities between 2004 and 2008. Further, the Institute estimates that had red light cameras been in place in all large cities during that 4 year period, 815 fatalities would have been prevented.

There are certainly skeptics about the red light camera program, especially in light of the budgetary woes of many municipalities in recent years. What is the prime motivation for the program, to maximize safety, or income for the jurisdiction? Millions of violations which are for the most part not contested (another major savings to the municipality in less overtime for police officers) can be a major cash stream to a struggling city or town.

Nassau County has installed 152 cameras in 50 intersections since 2009, and although county officials projected that they would gross 38.2 million from fines in 2011, according to the American Automotive Association, the $50.00 fines will end up garnering approximately half of that amount. There is little incentive for drivers to fight the violations, as they are not reported to insurance companies, there are no points assessed on the violator’s license, and the driver can go online to watch him or herself in action committing the violation. The "pay rate" in Nassau County fro these tickets is reportedly 85%.

According to the Nassau Department of Public Works, the red light program has reduced roadway fatalities 21% since its inception. There has been a reduction in both serious crashes and injuries, according to Christopher Mistron, the traffic safety educator for the county. Many of the violators, rather than going through the red light, fail to slow down before making a right turn. This accounts for 38% of all of Nassau County’s red light revenue.

We will follow up on this article if and when the red light camera programs are expanded to other jurisdictions.

Continue reading "New York Car Accidents--Red Light Cameras More Prevalent" »

Event data recorders (EDR), more popularly known as black boxes, have been around since the 1970's, and are well known as an invaluable tool in the investigation of plane crashes. According to the National Highway Traffic Safety Administration, (NHTSA), as of 2008, between 65% and 90% of cars now manufactured are equipped with EDR's. However, the data from EDR's is not readily available to third parties such as insurance companies and litigants in car crash cases.

This will all change in 2013, when the NHTSA will require that all vehicles which contain black boxes must capture the same data in the same format. Further, the federal agency will mandate that there be a tool available to access the data. And what is that data? A treasure trove of information, including: Change in forward speed of the vehicle; maximum change in forward speed; vehicle speed prior to impact; whether or not the driver applied the brake; whether the driver was using his or her seat belt; the number of crash events; and the time between the two crash events, if applicable. This is a sampling, but not all that the EDR can record.

Due to the number of cars that will have black boxes and access to this data, the world of auto accident litigation will change in dramatic ways over the next several years. In a concession to privacy concerns, 13 states, including Arkansas, California, Colorado, Maine, North Dakota, New Hampshire, New York, Oregon, Texas, Virginia and Washington, have enacted laws requiring an owner's permission to download the data. But who is an owner? In some states, such as California, the owner is the registered owner of the car. In New York, it is the titled owner. In Arkansas, it's simply the owner of the vehicle at the time the accident occurred.

In addition to the aforementioned privacy issues, are concerns about what is known as spoliation, or intentional/negligent/unintentional loss of the data. The data in a black box is only temporarily stored, apparently for what is known as 200 "ignition cycles" or about 6 to 8 weeks of normal use of the vehicle. Thus, if the vehicle is destroyed, sold or more than 6 to 8 weeks of use occur in vehicles that are not as badly damaged, the information could be lost forever. Clearly, the data in a EDR will go a long way to either establishing, or in other cases, minimizing or refuting liability (fault in an accident). It will also assist in determining whether injuries claimed in an accident are consistent with the physics of an accident. Presently, this is often accomplished through the testimony of treating physicians, or in addition, in more serious cases, biomechancial engineers. Undoubtedly, there will be motions made by both insurance companies, and attorneys for those injured in car crashes, to preserve the EDR before this occurs. In sum, 2013 and beyond will be quite a different world in the field of automobile crash litigation, that is for certain.

Continue reading "New York Car Crashes--Black Box Data Will Change Everything" »