In Nuziale v. Paper Transport of Green Bay Incorporated, 835 N.Y.2d 136, 39 A.D.3d 833 (2nd Dept. 2007), the defendant was driving a tractor trailer down an exit ramp from the Grand Central Parkway. She proceeded through a green light at the bottom of the ramp and collided with the vehicle operated by the plaintiff. The defendant moved for summary judgment, arguing that she could not be held liable for the collision because she was proceeding with a greet light. The Supreme Court, Queens County granted the defendant’s motion. The Appellate Division, Second Department, however, overturned that decision and reinstated the plaintiff’s case. The defendant had testified at her deposition that she was “coasting” through the intersection, that she failed to look to her left or her right before proceeding in the intersection, and that she could not recall whether her view of traffic was obstructed. The Appellate Division held that although the defendant had been permitted to proceed in the face of the green light, she “was not authorized to blindly and wantonly enter the intersection.”

In New York, an vehicle accident attorney with experience handling cases arising from car accidents will know that a driver cannot proceed through a green light without exercising the level of care necessary to observe and avoid potential dangers.

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On one job, the task was to remove a large maple tree on a homeowner’s property in Westchester. The team began by cutting off the top of the tree.

The remaining part of the tree was going to fall in an area that was zoned off, which was about 60 feet in radius so there would be plenty of room for the tree to land without incident. A rope was thrown around the branch and the workers pulled it tight toward the sectioned off “zoned” so that the tree would fall in the right direction.

As the tree began to fall, two of Bruce’s co-workers panicked and began running away leaving Bruce with a slackened rope as the tree began to fall “off course”. Bruce tried to get the tree under control by pulling on the rope himself but as you can guess, the tree won.

Then there was a domino effect: Bruce got out of the way of the Maple tree, but the Maple tree fell onto an Ash tree which then snapped and struck Bruce causing enormous injuries requiring multiple surgeries.

Bruce sued the landscaping company and recovered a substantial amount, given that the accident was a result of lack of control and safety procedures on the site by the company that hired Bruce. If the workers who gave up on Bruce were his co-workers, the best he could have hoped for was whatever he received from workers compensation, which only provides for reimbursement of wages and payment of medical expenses. There is no recovery for pain and suffering under New York workers’ compensation State.

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After lung cancer, colon or colorectal cancer is the second most common cause of cancer-related deaths in the United States. Colorectal cancer is most prevalent in people over 50. Routine screening is considered the best means of reducing the mortality and morbidity produced by this disease.

Epidemiologic investigations have identified several risk factors for colorectal cancer, including: diets high in animal fats, hereditary polypoid diseases of the large intestine, inflammatory bowel disease and possible cigarette smoking.

Cancers of the colon are typically slow growing with patients going years without symptoms. As the tumor grows, it begins to bleed, eventually obstructing the intestinal lumen. Symptoms of an enlarging colon tumor include abdominal pain, fatigue and a change in stool size or caliber.

Because this form of cancer is generally incurable once it has spread to other organs of the body, and due to the lack of symptoms prior to the cancer becoming far advanced, routine screening, for small colonic tumors to permit their removal prior to the cancer becoming invasive and metastasizing, is considered the best means of reducing the mortality and morbidity produced by this disease. Several health care organizations, including the American Cancer Society and the World Health Organization recommend routine colon cancer screening beginning at age 50.

Screening is typically done in one of three ways: 1) annual digital rectal examinations, supplemented by chemical testing for occult rectal bleeding; 2) flexible sigmoidoscopy; and 3) colonoscopy. While no one form of screening is touted as the preeminent choice, it is recommended that you speak to your doctor about the best option for you if you are 50 or older. These screening tests can detect cancers and pre-cancerous lesions of the large intestine before they metastasize to other parts of the body. For this reason, screenings are often able to uncover cancer when the disease is at its earliest and most curable stages. The current standard of care calls for physicians to properly screen patients who qualify for screenings, and to perform a diagnostic search for a colonic neoplasm in any patient presenting with rectal bleeding.

If you or a loved one believe that a doctor failed to perform a necessary exam, resulting in a delay in diagnosis of cancer, be sure to obtain the proper medical care and if the instance arises in which contacting an attorney becomes necessary, be sure to contact a New York medical malpractice attorney with experience handling colon cancer cases.

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In this article, New York lawyer Christopher T. McGrath explains that not all victims of motor vehicle accidents necessarily have a legal claim. New York’s “threshold” requirements for these types of cases mean that only “serious injury” claims may be pursued. Mr. McGrath describes how the law defines “serious injuries” arising from car accidents injuries.

When you have been injured in an automobile accident, New York’s No-Fault Law mandates that your accident-related medical bills, including lost earnings and incidental costs, up to $50,000.00 are paid. These are called your economic damages, but who pays the bills when they exceed $50,000.00? Who is going to help you and your family if you are never able to work again because of your injuries? Additionally, who pays for your non-economic damages? For example, who is going to compensate you for your disability and pain and suffering experienced since the accident?

New York’s Insurance Law requires that you suffer a “serious injury” before filing a lawsuit in connection with a motor vehicle accident to recover these additional damages. If you do not suffer a “serious injury,” regardless of how much pain and suffering you experience, you cannot bring a personal injury lawsuit to recover for your non-economic damages.

So, how do you know whether or not you have suffered a “serious injury”? Simply put, New York has specifically defined the term, and your injury must fall within its definition. While this may seem unfair, it is nonetheless true. It is important to understand what constitutes a “serious injury.”

In New York, a “serious injury” means a personal injury which results in one of the following:

1. Death;

2. Dismemberment;

3. Significant disfigurement;

4. A fracture;

5. Loss of a fetus;

6. Permanent loss of use of a body organ, member, function or system;

7. Permanent consequential limitation of use of a body organ or member;

8. Significant limitation of use of a body function or system; or

9. A medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

As you can see from the list above, some of the “serious injur[ies]” noted are vague. For example, what is considered “significant disfigurement”? Is a scar good enough? What about a scar that is not readily apparent or hidden beneath clothing? Are all burns “significant disfigurement”? To visit another category, above, if you break the cartilage in your nose, is that a “fracture” under the definition of “serious injury”? Does a fracture include a chipped tooth or chipped teeth?

Because of this language, you can see why this entire area of law is a heavily litigated area. There are literally thousands of New York legal opinions addressing these issues. When injured in a car accident, after receiving the medical care you require, you would do well to consult with an vehicle accident injury attorney experienced in handling these types of claims. An experienced and skilled attorney can mean the difference between being limited to “No-fault” benefits and having a court recognize that you have sustained a “serious injury” warranting a trial.

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Many New York attorneys are unaware that a business that hires a vehicle and driver from a second business may become vicariously liable for the driver’s conduct even though it is not the driver’s general employer.

By way of background, in New York State it is well settled that, even where a worker is in the general employ of one entity, the worker may be transferred for a limited time to the service of another, in which event the worker becomes the “special employee” of the other

Where such a special employment relationship exists, the special employer is responsible in tort, under the doctrine of respondeat superior, for the negligence of the borrowed worker.

Although there are many factors that may collectively bear on whether an entity is or is not a borrowed worker’s special employer, New York’s highest court, known as the Court of Appeals, recently reaffirmed that a “significant” and “weighty” factor in deciding whether such a relationship exists is whether the purported special employer in fact controlled “the manner, details and ultimate result of the employee’s work.” Fung v. Japan Airlines Company, Ltd., 9 N.Y.3d 351, 359, 850 N.Y.S.2d 359, 364 (2007) (“Although no one factor is determinative, a ‘significant’ and ‘weighty feature’ in deciding whether a special employment relationship exists is ‘who controls and directs the manner, details and ultimate result of the employee’s work’ in other words, who determines ‘all essential, locational and commonly recognizable components of the [employee’s work relationship,’” quoting Thompson, 78 N.Y.2d at 558, 578 N.Y.S.2d at 109); Graziano v. 110 Sand Company, 50 A.D.3d 635, 636, 855 N.Y.S.2d 203, 205 (2nd Dep’t 2008) (“[a]lthough many factors are weighed in deciding whether a special employment relationship exists, courts have focused on the ‘significant and weighty’ fact or of ‘who controls and directs the manner, details and ultimate result of the employee’s work,’” quoting Thompson, 78 N.Y.2d at 558, 578 N.Y.S.2d at 109).

The “Borrowed Driver” case occurs when a business, lacking sufficient drivers or vehicles of its own, leases a vehicle and driver from another. In such instance, while the driver’s true or general employer (the one who pays the driver’s salary) will still remain vicariously liable for the driver’s conduct, the hirer may also stand vicariously liable in its capacity as “special employer.”

There are exceptions. Vicarious liability will not lie if the hirer is really a consumer and not a business (e.g., an individual who calls an agency/employer for a chauffeur). Also, where the hirer merely hires the driver (or the driver’s general employer) to go from Point A to Point B without interfering with the manner or means by which that task is accomplished, that too will not be deemed a special employer relationship.

However, in the far from uncommon case in which a business leases a vehicle-and-driver for purposes of the business and in which the lessee does direct the details of the driver’s day-to-day activities, the courts have time and again held that there is, at the least, a question of fact as to whether the driver thus became the hirer’s special employee. Indeed, the situation of the Borrowed Driver has recurred so frequently in the case law that the Appellate Division for the Third Department long ago characterized it as the “classic” example of special employment.

New York vehicle accident attorneys with experience in handling car accident cases take heed: the driver’s employer is sometimes not the only employer that stands responsible for the driver’s conduct. The existence of a second responsible party may have significant impact upon the availability of insurance and assets to compensate a person injured in an accident.

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Cosmetic dentistry involves elective treatments to improve the appearance of the teeth. Patients should know that, at present, there is no specialty in “cosmetic dentistry” recognized by the American Dental Association (ADA). There are no standards, criteria or testing required before a dentist can say that he or she is a specialist in cosmetic dentistry. A prospective patient can be fooled into believing that her dentist has, in fact, passed some stringent qualifications set up by the ADA. A patient may mistakenly rely on a dentist’s representation as a specialist as an indicator of competency.

You should know that many dentists calling themselves experts in cosmetic dentistry have only completed a short course. Often, these courses are completed in a single weekend. Some programs last just a few hours, and are frequently sponsored by the manufacturers of equipment and supplies used in cosmetic procedures. The instructors at such courses may have only performed the procedures a few times themselves.

If you are eager to change the appearance of your mouth and smile, you must be aware of the limitations of dental procedures performed by a general dentist, as well as the cost and the risks. Teeth can be whitened using new and powerful bleaches under close supervision. Chipped and cracked teeth may be repaired with inlays, overlays and veneers. Some dentists replace the teeth structure with caps or crowns. Note that straightening teeth requires an ADA specialist known as an orthodontist, a practitioner who uses braces for straightening teeth.

What cannot be done in a dentist’s office is a procedure to change the boney structure of the mouth. There is a specialty in the field of dentistry known as oral maxillary facial surgery (OMFS). This ADA-recognized specialty requires the dentist to complete many years of postgraduate training at an accredited institution, and then pass a written certification exam. Such specialists are trained to perform major procedures involving the cutting, shearing, shaping and repositioning of facial bones. Only major surgery can correct such conditions as overbite and underbite, conditions considered unattractive or imperfect. Such surgeries are not without risks of complications.

Such complications may include serious infection, blood loss, nerve damage, and adverse reaction to anesthestics or painkilling medications. I will detail the consequences of dental procedures gone wrong in an upcoming article.

Another growing field in dentistry involves the insertion of implants. Today, more and more patients consider dental implants, which cannot be removed, to replace lost teeth, rather than traditional, removable dentures. Implants are small screw-like devices made of a metallic alloy. The metal screws replace the natural root structure of a tooth. The screws are placed surgically through the gum and into the bone of the jaw at the location of missing teeth. Artificial teeth are then attached to the top portion of the screw, protruding above the gum. These replacement teeth are known as prostheses or prosthetic teeth.

When placed properly by an experienced expert dentist, prosthetics and dental implants can be a wonderful way to replace missing teeth from the viewpoint of appearance and function. However, many dentists are now performing implant dentistry without the necessary training or experience. The best-trained and educated dentists in this critical area of dentistry are those specializing in oral surgery and periodontal dentistry (the treatment of diseases of the gums and bones of the mouth). There is also an ADA recognized specialty in dentistry known as prosthodontics, involving the actual design, fitting and creation of the new artificial tooth structure. Replacing missing teeth with implants requires planning and precision. In cases involving replacement of many teeth, the dentist performing the implant surgery should work closely with the prosthodontist in planning the best procedure to achieve a cosmetic and functional result.

If you are considering any of these procedures, you should always investigate the dentist you intend to use. A background check involves more than just relying on a dentist’s advertisement in the local newspaper or on a website. There are no “deals” when it comes to having dental procedures. The old saying “you get what you pay for” is as true for dentistry as it is for any other service. Request a written plan outlining the anticipated course of treatment, including the cost of what is proposed. Make sure that if your dentist is proposing a major procedure, he or she is board certified in the area of dentistry involved. Understand what is being offered, and ask questions. Know the time the entire process will take from the beginning to end, the risks involved and the other treatment that is available to achieve the results you are looking for. If you are thinking about major reconstruction, consider getting a second opinion.

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This is classic “municipal liability” case involving a government or public agency. Municipal liability cases are brought against such bodies as the City of New York, the New York City Housing Authority, and the New York City Transit Authority, among others. Remember, before suing a public agency, an injured person has to file a “notice of claim” with the proper authorities within 90 days of the accident. In this case, the injured party sued the City of New York and the New York City Transit Authority. His lawyers took care to file timely Notices of Claim against both entities before starting a lawsuit.

Often, the key to winning a municipal liability case is proving that the City or public agency was aware of the problem or defect, in advance of the incident, but failed to repair it.

In this instance, the subway gate was not only sunken into the pavement as a result of improper installation, but the City of New York had received prior written notice of the defect and failed to do anything to correct it! Both of those failures created the opportunity to sue the City and the Transit Authority. At trial, a Transit Authority employee testified that the agency inspected the grates every six months; however, the agency was unable to produce any record of these inspections in Court.

The defendants then tried the old tactic of blaming the victim, claiming that the minister was partially negligent for failing to watch where he was walking. This argument did not distract the jury. Evidence introduced by the plaintiff’s  municipal liability lawyer established that it was the Transit Authority’s responsibility to repair the defect. The jury found in favor of the minister.

It is important to understand that one of the reasons we have government agencies is make the city a safe place to live. We should be able to walk on our streets and sidewalks without risk of injury. The minister now has loss of motion, atrophy and numbness in the extremities of his hands. The injury interfered with his retirement years and his ability to enjoy his life, including some of his favorite hobbies such as bowling and playing the tambourine. Fortunately, he was compensated for his loss.

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Jill underwent a radical hysterectomy surgery because she had been diagnosed with an early stage of cervical cancer. During the surgery, Jill suffered injuries to her ureters (muscular tubes that connect kidneys to the bladder and sustained a puncture to her colon, resulting in a fistula. As a result of these injuries, Jill required a colostomy bag for 8 months and over the course of a year she underwent numerous surgical procedures to repair the injuries.

Jill started a lawsuit against the surgeon and her medcal malpractice attorneys argued that the surgeon inadvertently perforated the plaintiff’s ureter. While acknowledging that such an action was a risk of the procedure, evidence was submitted that the surgeon was negligent in failing to properly inspect the ureters after the surgery and before he completed the operation. A jury agreed that malpractice had occurred and concluded had such an inspection been performed, Jill’s injuries would have been treated without the complications that the she endured.

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Susan (not her real name) was an obese 30 year-old smoker who went into the emergency room complaining of chest pain, dizziness and shortness of breath. Although her EKG was normal, no blood enzyme was performed on her, which can tell the doctors if there is a heart problem.

During the course of the case (brought on Susan’s behalf), the doctor testified that he did not think it was a heart attack because he thought that she must have pulled a chest muscle at work (however, he never actually recorded that in Susan’s chart), so he basically gave her a pain killer and told her to return if she had anymore chest pain – only a slight variation on “take two aspirins and call me in the morning”. Unfortunately, two days later she died of a heart attack.

An independent cardiologist was brought in as an expert to examine what was done and not done. The expert found that given her obesity and history of smoking coupled with complaints of chest pain, shortness of breath and dizziness that the doctor should not have been satisfied with a normal EKG and should have ordered a blood enzyme to follow up on whether there was a possibility that she could have had a heart attack which could have been treated pre-emptively. This was one of these  New York medical malpractice cases where eventually the hospital settled before a jury settled it for them.

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Rear end collisions are common during inclimate weather. In New York, a rear end collision with a stationary vehicle creates the presumption that the driver of the offending vehicle was negligent, unless that driver can offer a non-negligent reason for the rear end collision. This point has been upheld in New York motor vehicle lawsuits, including cases where the rear end collision involved pick-up and other light trucks.

Recently, a decision in a lawsuit involving a rear-end collision between a pick–up truck and a stationary vehicle reaffirmed this point. The driver of the pick-up truck argued that he actually saw the second vehicle, stopped ahead of him, before the impact; however, the truck driver was unable to prevent the collision because braking caused his truck to skid on the wet roadway.

The Court hearing the case held that the existence of the wet roadway condition did not provide a non-negligent explanation for the rear end collision. The driver should have been in control of his truck, at all times regardless of weather conditions, and operating at a safe speed with enough space between himself and other vehicles. Like all motor vehicle operators, the truck driver should have been able to avoid collision with a car stopped ahead of him. For these reasons, the Court upheld a verdict in favor of the person injured in the stationary vehicle.

People who are injured in accidents involving rear end collisions with trucks should contact a New York motor vehicle accident lawyer to fully assess the facts of their case.

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