Articles Posted in Successful Injury Case Strategies

In New York accident cases, the hospital chart description of how an accident occurred is tremendously important in a successful settlement or jury verdict. What I have seen over the last several years is a carelessness, or in some cases intentional effort by emergency hospital personnel to minimize, downplay, or simply disregard the patient’s description of how she or he was injured, with a serious negative impact on the client’s case. Three examples are instructive. In a Bronx County slip and fall case, our client suffered a severely fractured right arm when she slipped and fell walking down a flight of stairs. The cause of the accident was the lack of a proper handrail, coupled with stairs which did not comply with the New York State Building Code. When the client arrived at the hospital and informed the triage nurse what had happened, the nurse wrote the following: “While walking down the stairs, she missed a step and fell to the bottom of the stairs.” Not only was this inaccurate, but it of course implied that the fault was the patient’s rather than the restaurant’s for failing to have a stairway which met building code requirements. Luckily, in this case, we prevailed, but the case was defended through trial as the defendant’s insurance company relied on the inaccurate description of the accident in the vain hope that a jury would blame our client for the accident.

Similarly, in a Brooklyn slip and fall accident, our client tripped and fell on a missing piece of concrete on an outdoor patio while at a engagement party, and suffered torn ligaments in her knee which required two surgeries to repair. The emergency department’s description of the accident: “Recreational injury.” This is an example of the damage emergency room personnel can cause to a personal injury case if they do not accurately record how the accident actually happened. Insurance claim representatives and defense attorneys rely heavily on the initial description of accidents in hospital charts, and if that description, as in this case, is both inaccurate and negates any responsibility on the defendant’s fault, this has the effect of preventing an early settlement and extending litigation. Once again, we won at trial, but this was a case which never should have reached that stage.

Most recently, in a Westchester County car accident case, (which is presently being litigated), our client suffered a torn rotator cuff when another car went through a stop sign and struck the driver’s side of our client’s car. As our client was taken from the scene by ambulance before the police arrived, the police report does not contain our client’s version of the accident. The emergency room nurse, despite being told by our client that the other driver disregarded a stop sign, wrote: “Patient injured in an intersection accident.” This vague description, without any attribution of fault, again gives the defendant’s insurance company a misplaced belief that the case may be defensible–how difficult would it have been for the nurse to accurately records what our client reported, that she was the victim of a driver who disregarded a stop sign?

When you or a family member are involved in a New York motor vehicle accident, slip and fall accident in the Bronx, from a dog bite, or on a construction site, for example, it is vital to remember the following:

Immediately get treatment at a hospital, doctor’s office, or clinic, as insurance companies consider very closely the time between an injury and treatment. Thus, even if you think you’re o.k., it’s always better to make sure;

Report the accident immediately to the local police, and make sure that the investigating officer is aware of any pain that you are experiencing. This is very important, because insurance companies will always make reference to the fact that the claimant “did not make any complaints at the scene to the officer.” As a corollary to this, when you obtain a copy of the police report, if there are errors or inconsistencies with the diagram or the officer’s description of what you told the officer at the scene, make an effort to have the officer file what is known as an “amended report”, so that the insurance carrier can’t use an erroneous admission against you.

Our personal injury clients in New York slip and fall cases, automobile accidents, various premises liability cases and construction accidents are often contacted within a few days of the accident by “concerned” investigators hired by insurance companies (especially Allstate, State Farm, Progressive, New York Central Mutual and Countrywide) allegedly to “help” them or “assist you in any way we can.” This is insurance code speak for destroy your case before you get a chance to hire a lawyer.

The usual ruse will be that the investigator goes to the residence of the injured person, or that of the neighbor or relative, because he has “important information” for the person who’s been in the accident or needs to speak with them to make sure their case is “handled correctly.” In fact, these duplicitous and deceitful insurance representatives are looking for the following: a way to discredit the person; establish that they are working; find out what kind of work they do; what type of car they drive; or their previous medical history (such as a prior accident or lawsuit) that could be helpful to the insurance company in denying the claim. These “helpful” insurance representatives will go so far as to leave their card with their e-mail and cell phone information that can be accessed 24/7 to be of “extra assistance.”

We represent a client who suffered very serious leg injuries in a Westchester County car accident when an oil company van driver backed up his van in a gas station, knocking down our client, and then rolled over his leg, causing severe injuries. Despite the fact that we were immediately retained to represent our client, weeks after we notified the insurance company of our representation, they unethically sent one of these investigators to our client’s brother’s house, since it was “vital” that they speak with the client to make sure that he was “doing o.k.” Luckily, in our client’s case, the brother sent the lying investigator on his merry way with an admonition never to return, as we had warned our client ahead of time about this practice.

Our White Plains, New York office gets numerous calls and e-mails from clients confronted with a scenario in which they have been sued for more than their insurance coverage, and they receive a notice from the insurance company stating the following: “You may wish to retain a private attorney at your own cost and expense to protect your interests over and above your insurance coverage…” For example, we have represented an orthopedist who was sued for medical malpractice in Brooklyn, New York with a claim of serious injuries as a result of improper back surgery; a client in a Westchester County motor vehicle accident who had a minimal insurance policy ($25,000) and was being sued for more than $1,000,000; and the owner of a beer and beverage mart who was sued in a Dutchess County wrongful death case by the parents of some underage teens in which the teens bought beer at the mart and served the beer at a “keg party”, resulting in the intoxication of a underaged partygoer who lost control of his car and was then involved in a horrific accident causing his death and serious injuries to four other teens.

The answer as to whether you need a private attorney involves a few significant factors. To begin with, in the case involving the Westchester County driver, one of the big issues was whether the injuries were serious enough to result in a verdict which could exceed the car insurance policy limits. In that Westchester County car crash case, the answer to the question was yes, as the policy limits were the smallest available in New York, and the injuries included a broken leg, which without question could result in a verdict of more than $25,000.

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When clients come to our office after having suffered injuries in a New York car accident, often their car has been totaled by the insurance company, and no photographs were taken of the damage to their vehicle. This presents two major obstacles to a successful resolution of the case. First, when attempting to resolve the claim with the insurance company, New York insurance adjusters rely heavily on visual proof of the damage to the car to determine the severity of an automobile accident. Thus, taking photographs of your car with a cell phone (not optimal but if that’s all you have, use it!), digital camera or plain old Polaroid are absolutely essential to a quick and proper settlement of your case.

Further, if the case is going to trial due to an insufficient offer or no offer at all from the insurance company, those photos showing the smashed in hood or crushed fender go a long way in convincing a New York jury that your injuries were caused by this car accident, and not a degenerative spine or a fender bender twenty years ago.

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When clients come to our White Plains, New York office after suffering personal injury, the first question they ask is the same: “Do I have a injury case or don’t I?” The answer to this question revolves around three basic issues, as well as some other considerations which may be significant. The first question that we need to determine is liability, otherwise known as fault. To use a few examples, in a New York slip and fall case against a homeowner, we must be able to establish that: the sidewalk was in fact broken; or that there was no lighting on the stairway, or that there was ice on the driveway which had not been cleared for some time. In a New York motor vehicle accident case, examples would include establishing that: that the client had the green light; that the other driver failed to stop or yield at an intersection, or that the other driver was driving recklessly or speeding.

The second issue is insurance coverage. In motor vehicle accident cases, there are numerous questions to be asked. Does the other driver have sufficient insurance coverage? Is there the possibility of an insurance company disclaimer due to non payment of premiums, or is there the use of a vehicle which is not covered by the policy–i.e.–was the other driver using his or her vehicle for work purposes when it was only insured for personal use? If the other driver was uninsured or underinsured, does the potential client have underinsurance coverage which protects them against an uninsured/underinsured wrongdoer?

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You’ve just been involved in a slip and fall accident , or you were in a bad car accident. Obviously, you must seek medical attention. However, there are several important do’s and don’ts to be aware of, and if possible, some of these must be done right away, or the opportunity is lost.

Get the names of any witnesses. This can’t be stressed enough. Especially if you are involved in a fall down accident, where the condition you fell on, be it ice, spilled liquid, or even a banana peel at the supermarket, might not be there ten minutes from now, or in an intersection accident, where you and the other driver both claim to have the green light, identifying witnesses and getting their names and phone numbers is critical. Armed with the names of objective witnesses who observed the large patch of ice, who saw the condition of spilled detergent and heard the supermarket manager say to her employee: “I thought I told you to clean that up an hour ago”, or who saw that you had the green light, your case is much stronger.

If you are physically able, and have a camera phone, or access to a camera quickly, take photographs of the condition. That icy patch could be gone in a half hour, either by the owner rushing out to place salt on an icy sidewalk or the store owner finally deciding that he will clean up that produce aisle.

Invariably, when you report your accident, an adjuster from some insurance company will call on the premise that he or she is just concerned about “how you are doing”, and they’d like to record a statement from you “with your permission.” You must, and this cannot be stressed enough, hang up the phone and refuse to do so. This adjuster has been trained in the art of asking questions designed to place the blame of the accident solely on you–i.e., so you were running really late for school, work, or your dental appointment, and you weren’t paying as much attention to the ground as you might normally do, huh?” You must hang up the phone, and let your attorney handle this call–this is what we are trained to do.

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The deposition is the most important pre-trial procedure in accident cases. Thus, it is critical that the client is well prepared for the extensive and rigorous questioning they are likely to undergo by defense counsel.

We recommend strongly that you prepare the client for their deposition the day before, although the norm is for preparation 1-2 hours before the deposition. This method takes into account the fact that your client is likely to be nervous and will be able to retain more information knowing that they have as much time as necessary to prepare.

Remember that whatever documents the client reviewed in preparing to testify must be exchanged with opposing counsel–thus, make sure that the client has not reviewed documents without informing you. Further, don’t allow your client to write down information that you discussed–there are numerous accounts of lawyers preparing instructions for their clients which then become discoverable at the deposition.

In New York personal injury cases, the videotape is a frequently used tool of defense lawyers, and can be very damaging at trial if the video contradicts the client’s deposition testimony concerning their physical limitations as the result of an accident.

In order to properly prepare clients for the likelihood of the surveillance video, we recommend the following:

1. Advise the client to warn neighbors that they expect videographers to come by, seeking information as to their daily schedules and activities, and that the videographer will often claim that they are working for the client or need to speak with them about the accident;