Syracuse Personal Injury Law Blog

Defining wrongful death and its elements

Published on: February 17, 2017 | By Jeff DeFrancisco

If a baby dies due to the negligence or misconduct of another person, then they may be held responsible by the family through a wrongful death lawsuit. The family is unable to recover their lost child, but they can attempt to recover compensation from the accused in the form of damages.

A wrongful death lawsuit can only be made by the family of the deceased. A wrongful death lawsuit can come about due to a variety of scenarios. Common scenarios that can lead to this lawsuit include:

Death caused by the negligence and or malpractice of medical staff. If the nurses failed to pay attention during birth and their negligence resulted in the baby dying or if the doctor failed to perform a C-section properly.
Dangerous or hazardous working conditions. If a medical institution has unsanitary facilities and equipment and the baby dies due to infection then the hospital and staff may be held responsible.
If the death occurred due to the crimes of a person, even if he wasn’t trying to cause harm to the deceased, he may be held responsible. For example, a nurse stole medical supplies which resulted in a shortage at the hospital which contributed to complications in birth and the baby’s death.
An effective wrongful death lawsuit needs to have the following elements:
A person must lose their life due to the circumstances involved. A wrongful death lawsuit, of course, cannot take place if no life was lost.
The death must be a result of the misconduct, negligence or negative aims of the accused.
There must be surviving family of the deceased for a wrongful death lawsuit to take place, as only family members can file the lawsuit.
A personal representative must be appointed by the court to handle the distribution of the property and assets of the deceased.

If a family member or loved one died, and you believe the death was due to negligence or misconduct, then you may have a right to file a claim. In such a case, to help ensure you get the best representation and the best outcome, it would be wise to contact an experienced attorney near you.

Proving negligence in a brachial palsy injury case

Published on: February 15, 2017 | By Jeff DeFrancisco

Brachial palsy is a type of birth injury that occurs in the brachial plexus and occurs twice for every thousand births. The brachial plexus is a concentration of nerves that connect the arms and hands to the spinal cord. Brachial palsy or Erb’s palsy as it’s commonly referred to occurs when too much force is applied to the head and neck region while the baby is being delivered. This most often happens to large babies when medical personnel is overzealous with their use of suction equipment or gripping tools when delivering the baby.

When too much force is applied to the neck and shoulder region while pulling the baby out, the little body can’t handle it and nerves in the brachial plexus rupture thus causing nerve damage. This can cause serious long term damage ranging from loss of sensation in the hands to paralysis of the whole arm. An indicator of brachial palsy is that the baby will normally not move the affected arm and keep it tucked in beside the body.

Any injuries relating to brachial palsy or complications are generally a product of negligence on the part of the physician or medical personnel who delivered the baby. The negligence can come in various forms:

Dealing with hospital and medical malpractice

Published on: February 13, 2017 | By Jeff DeFrancisco

Anyone responsible for your health care can be slapped with a medical malpractice and negligence suit. But it is important to understand that proving fault in these cases is the most crucial aspect. Although doctors generally face malpractice cases, hospitals and pharmaceutical firms might also face this challenge. Going through medical treatment is difficult in itself, without the added worry of medical malpractice. If you feel that you did not receive the medical attention required, you have the right to sue the facility.

If you feel the hospital neglected your medical needs, it can be held liable for any injuries caused. Although the medical staff is part of the hospital and can be sued individually, suing the hospital means that there was some sort of corporate negligence involved. For example, if an incompetent health care professional causes further harm to the patient, the hospital can be held responsible for hiring the incompetent professional.

Large pharmaceutical companies may also be the target of your malpractice lawsuit if their drug caused injuries or death. But it is essential to know that you may only sue the company if they did not warn users about possible side effects. The pharmaceutical company is liable to the doctor, who is a learned intermediary between them and the patient. But if the drug is prescribed under correct circumstances and leads to injuries, you may sue the pharmaceutical company.

Bring a claim against your doctor for misdiagnosis

Published on: February 10, 2017 | By Jeff DeFrancisco

Doctors find themselves in a unique position in our society. Any person with any sort of medial issue consults a doctor to find the solution to the problem. The level of trust and responsibility placed on the shoulders of a doctor requires him to conform to a certain standard of care and diligence. However, doctors, like the rest of us, are at the end of the day merely humans and are bound to make erroneous judgments.

If a patient has been wrongly diagnosed or has not been diagnosed in a timely manner, the patient may suffer harm or injury due to the delay or misdiagnosis. This, in turn, may lead to the doctor being held negligent. Generally, doctors provide a list of probable causes of the illness, and this is known as a “differential diagnosis.” The standard of care is a key factor in assessing malpractice. If the doctor did not conform to the standards expected of a reasonable, prudent doctor while giving out the diagnosis, then a doctor may be held liable for malpractice. However, proving malpractice for misdiagnosis is not easy. If a doctor does not diagnose a patient with a particular illness, and that illness later develops in the patient, it will be hard to hold the doctor liable in such a circumstance.

A doctor may also be held liable where he treats a patient for an illness the patient is not actually suffering from, resulting in harm. Furthermore, doctors may also be held liable for malpractice where they completely dismiss the probability of a patient suffering from an illness, which he, in fact, suffers from.

Be cautious when mixing medications

Published on: February 7, 2017 | By Jeff DeFrancisco

Most drug interactions are easy to anticipate, especially when your doctor has an up-to-date list of your current medications. Patients are required to fill out certain medical forms, answer health questions and list current medications they’re taking whenever they see a doctor. Depending on how often you visit the doctor or how many doctors you see, it’s possible you have a lot of experience with these practices.

These forms are an important part of your visit so be very thorough when filling them out. Before your appointment, make a list of any and all pills you take (prescribed and over-the-counter).

Should dietary supplements be included in that list?

Could cancer startup reduce delayed-diagnosis claims?

Published on: January 12, 2017 | By Jeff DeFrancisco

A former Google executive has launching a startup with a personal agenda. After losing his wife to colon cancer, Jeff Huber hopes his new startup, Grail, can develop a test that will detect cancer early. He hopes to prevent more late diagnoses, like his wife’s, that can make cancer more difficult to treat.

The startup is looking to raise $1 billion in venture capital to develop a test that can detect any of the main types of cancer, Forbes reported recently.

If the venture is successful, it could potentially save or extend lives. And the promise of making it easier to detect cancer early on could possibly help prevent a certain type of malpractice claim: delayed diagnosis.

Would you trust a doctor on a 28-hour shift?

Published on: December 27, 2016 | By Jeff DeFrancisco

The experts say you shouldn’t drive a car without a full eight hours of sleep. Would you perform a medical procedure?

The Accreditation Council for Graduate Medical Education (ACGME), an organization that oversees residency requirements for doctors in training has suggested changing the maximum shift from 16 hours to 28 — working over two days straight. The proposal recently closed to public comments and is set for review in February 2017.

Sleep impairment and reduced reaction

Many studies of driver behavior show that sleep deprivation causes serious impairment to the senses. According to an Australian research group, being awake for 18 hours (10 hours fewer than the new proposal for doctors) is comparable to a .05 blood alcohol concentration. After 24 hours, that jumps to .10, which is above the legal driving limit. Even a slightly reduced sleep scheduled hurts reaction and awareness. Car accidents for those sleeping 6-7 hours per night are almost double those who sleep 8 hours or more.

Can a party partially responsible for an accident claim damages?

Published on: December 20, 2016 | By Jeff DeFrancisco

Motorcyclists while having the most freedom on the road are also the most vulnerable as there is very little protection offered by the bike in the case of a collision. Furthermore, motorcyclists are quite small in comparison to cars and thus are easy to overlook and miss when in heavy traffic. Compared to cars, motorcycles require far more skill and concentration to drive as they lack stability compared to cars.

Similar to many vehicle accident cases, motorcycle accident claims revolve around the tort of negligence. In the case where the motorcycle rider was partly at fault for the accident, he or she won’t be able to recover any damages under the principles of contributory negligence. If the principle of comparative negligence applies, then the recovery of damages may be possible based on the calculation of damage caused by each party.

Helmets are protective gear that offers vital protection to the head of the rider in the case of an accident. In many states, it has been made mandatory for motorcycle riders and their passengers to wear helmets.

Driver in Tracy Morgan truck accident case won’t go to jail

Published on: December 12, 2016 | By Jeff DeFrancisco

If you’ve been following this blog, you’re probably aware of the ongoing case of the truck driver whose drowsiness caused him to collide with comedian Tracy Morgan’s limo back in 2014. The accident took the life of Morgan’s dear friend James “Jimmy Mack” McNair and left Morgan in critical condition with a traumatic brain injury and several broken bones.

The driver admitted that he hadn’t slept in over 28 hours when the accident happened. After pleading not guilty for a period of time, in late November the driver finally pleaded guilty to four counts of aggravated assault and one count of vehicular homicide in order to avoid going to prison. As a part of the deal, he will have to serve 300 hours of community service.

Here’s where it’s important to remember that, from a legal standpoint, criminal cases are separate from civil cases. Whether a defendant in a truck accident criminal case is found guilty or not guilty, the victims can still file a lawsuit seeking compensation for injuries. In this case, Tracy Morgan agreed to an undisclosed settlement with Wal-Mart, the company the driver worked for, and McNair’s family settled for $10 million.

New study finds Caesarean sections altering human evolution

Published on: December 7, 2016 | By Jeff DeFrancisco

Medical advances have improved the quality and length of life for countless people around the world. While this is obviously a positive thing, human evolution changes if Darwin’s nature has less impact and Hippocrates’s modern medicine grows. For example, scientists in Austria say that the rise in Caesarean section births has helped the shape of women to evolve.

The researchers estimate that the number of babies that cannot fit down a woman’s birth canal has gone from 3 percent in 1960 to 3.6 percent today. Their explanation is that there have been a few generations of women who have a narrow pelvis size (and smaller birth canal) that have had babies via c-section. The idea being that women with a narrow pelvis would have died in childbirth more often, thus not passing the thin pelvis gene on to descendants.

“Without modern medical intervention such problems often were lethal and this is, from an evolutionary perspective, selection,” said Dr Philipp Mitteroecker, of the department of theoretical biology at the University of Vienna, in a story by bbc.com. The original research was published in the in the journal, Proceedings of the National Academy of Sciences.