Syracuse Personal Injury Law Blog

Seeking recovery against federal health care providers: an overview of the FTCA, P.1

Published on: June 16, 2016 | By Jeff DeFrancisco

In our previous post, we looked at the VA’s recent admission that it failed to provide qualified professionals to conduct proper screening for traumatic brain injury on thousands of patients. As we noted, such a failure would ordinarily be considered grounds for liability were it not for the fact that medical professionals working for a government institution are immune from personal liability for negligence.

Under the Federal Tort Claims Act, federally supported health centers, their employees and eligible contractors are considered immune from lawsuits and the Federal government acts as their insurer. This means that those who are treated at health centers funded by the Health Center Program are unable to sue individual physicians and staff members, or the institutions, for medical malpractice or medical negligence.

Immunity only applies, though, when the employees are acting within the scope of their employment. The scope of employment rule would exclude actions taken by federal health care employees which are clearly not part of their job duties. Typically, though, this will not be a major issue in FTCA litigation.

VA admits failure to provide qualified professionals for TBI screening

Published on: June 15, 2016 | By Jeff DeFrancisco

Traumatic brain injury can have a variety of serious effects for those who suffer from it. It is estimated that around 30 percent of injury-related deaths are caused by traumatic brain injury. This is why it is so important for those who may have suffered a traumatic brain injury to be checked out by a competent physician and promptly treated.

Traumatic brain injury occurs because of a blow to the head which disrupts the ordinary functioning of the brain, and is very common among veterans who served in Afghanistan and Iraq. Unfortunately, the Department of Veterans Affairs doesn’t always offer the quality of care vets need to address head injuries.

For example, the VA recently came out and acknowledged that around 24,000 veterans were not properly treated for traumatic brain injuries between 2007 and 2015. According to a letter sent out to VA patients, VA hospital staff failed to conduct adequate initial examinations for traumatic brain injury on thousands of veterans. Specifically, qualified specialists were not provided to review vets’ condition and patients may not have been properly diagnosed as a result.

Seeking damages for brain injury after motor vehicle accident, P.4

Published on: June 14, 2016 | By Jeff DeFrancisco

Last time, we left off discussing the topic of punitive damages. As we noted, the goal of building a damages case is to maximize the plaintiff’s damages, and this requires carefully establishing entitlement to all damages the plaintiff is seeking, including punitive damages.

Entitlement to punitive damages is, in some ways, even more important to establish because it is ordinarily more difficult to do so compared to compensatory damages. For one thing, punitive damage are only potentially awarded in cases where there is gross misconduct, want or willful fraud, dishonesty, or malice. The idea is that the plaintiff’s behavior was marked by significant moral failing.

Because entitlement to punitive damages is typically based on proving either intention to harm or engage in negligence, it is not an easy avenue for recovery. Although entitlement to punitive damages is not easy to establish, punitive damages may still be awarded in cases where a plaintiff suffers only minimal damage. In other words, there is no requirement that a plaintiff must be awarded a certain amount of compensatory damages before entitlement to punitive damages kicks in.

Seeking damages for brain injury after motor vehicle accident, P.3

Published on: June 13, 2016 | By Jeff DeFrancisco

We’ve been discussing in recent posts the topic of brain and spinal cord injury, and the importance of working with an experienced attorney to accurately establish damages at trial. Maximizing damages, of course, is probably the most important aim of litigation in most cases, so it is really important to build a strong case in this area.

Damages vary according to type and the grounds for entitlement, and an experienced attorney knows the importance of establishing the correct theory for the type of damages sought. Compensatory damages, whether economic or non-economic, require a clear showing of the costs—both actual and projected—of a brain or spinal cord injury.

In establishing entitlement to compensatory damages in brain and spinal cord injury cases, particularly the projected costs, it may be necessary to secure the services of a damages expert. An expert will be able to provide technical and scientific insight and testimony for the jury in formulating a damages award. This includes information about the plaintiff’s prognosis for recovery, the long-term effects of the injury, and the long-term costs associated with the injury.

Seeking damages for brain injury after motor vehicle accident, P.2

Published on: June 10, 2016 | By Jeff DeFrancisco

In our last post, we began looking at the topic of brain and spinal cord injury, the effects of such injuries on a motor vehicle accident victim’s life and the costs involved with such injuries. As we noted, new and sometimes experimental treatments are emerging which hold out the hope of improving and accelerating recovery for brain and spinal cord injury victims, but these treatments are not available to many and can be costly.

All of this has relevance to the issue of damages in personal injury litigation, because one of the goals of damages is to compensate the accident victim for the costs of the injury the defendant caused. Compensatory damages come in two basic types: economic and non-economic. Economic damages are awarded for things like medical costs, lost wages, loss of future earning capacity, and losses that can be easily monetized.

Non-economic damages, on the other hand, are awarded for losses and injuries that are more difficult to measure, such as pain and suffering, loss of enjoyment of life, and such injuries. Non-economic damages can be an important avenue of recovery for accident victims, particularly when unique circumstances result in an economic damages award that doesn’t adequately compensate the victim for his or her injuries.

Seeking damages for brain injury after motor vehicle accident, P.1

Published on: June 9, 2016 | By Jeff DeFrancisco

In motor vehicle accidents, physical injuries can be devastating if not deadly, particularly when there is damage to the brain and/or spinal cord. Damage to the central nervous system can have a profound effect on an accident victim’s life, impacting his or her ability to work, recreate, maintain relationships with family and friends, and generally enjoy life.

For patients who have suffered serious spinal cord injury, treatment and care may be ongoing for the remainder of their lives. Treatment and care is not only expensive, but taxing on family members who may serve as caregivers. Fortunately, scientific advances do offer some hope to spinal cord injury victims, hope that someday they may be able to recover some of their functioning.

One experimental new treatment involves surgery which involves the use of stem cells to recover functioning and accelerate recovery. The treatment is still in its early stages of development and, at this point, more work needs to be done to determine whether stem cells can actually repair spinal cord damage or whether they make some other contribution to the healing process.

Recovering from a teen driving accident

Published on: June 8, 2016 | By Jeff DeFrancisco

We’ve been looking at the issue of teens and distracted driving in recent posts, discussing first of all a recent study highlighting the extent of the problem and then some of the state laws seeking to address the problem. As we pointed out last time, laws addressing the issue of distracted driving are intended not only to keep highways safer, but also to serve as a basis for liability when accidents do occur.

Victims of teen driving accidents can and should seek compensation to cover their injuries and losses. The first place to look for this is with insurance. Teens who are covered by their parents’ insurance should be able to recover at least some costs that way. In cases where the teen driver is not covered or is inadequately covered by his or her parent’s insurance, for whatever reason, it may still be possible to pursue compensation from the teen’s parents, or the owner of the vehicle as the case may be, under a theory of owner’s liability or negligent entrustment.

Under New York law, vehicle owners can be held liable for deaths and injuries resulting from the negligent use or operation of their vehicle, whether or not they were operating the vehicle at the time of the accident. In order to be liable, the vehicle owner—whether a parent or another individual—must have given permission to the driver to use the vehicle.

New York law on distracted driving, passengers for junior drivers

Published on: June 7, 2016 | By Jeff DeFrancisco

Last time, we began looking at the issue of distracted driving and recent research underscoring the extent of the problem among teen drivers. As we noted, states have sought to address the problem not only by passing laws limiting cell phone use among drivers, particularly novice drivers, but also by limiting teen driver’s freedom to have peer passengers in the vehicle with them.

According to Distraction.gov, New York prohibits both texting while driving and all handheld use of a cell phone while driving. Both of these laws are primary laws, meaning they can be enforced without a police officer witnessing any other violations.

New York law is actually stricter than many states, where handheld use of a cell phone is not banned or perhaps is only banned for certain classes of drivers. This means it is still legal for drivers in New York to talk while driving, provided they are using voice-operated system. The fact that it is legal, of course, does not make it safe.

Children’s product recalls can lead to devastating outcomes P.6

Published on: June 7, 2016 | By Jeff DeFrancisco

Today we wrap up our six-part series on children’s product recalls. We have looked at the basics of these types of recalls and also took a close look at specific examples that readers should be aware of. In the end, the question you may be left with is: so how do I keep my child safe from these products? The answer is a bit difficult. While we can’t even be certain that a product is going to be safe when we buy it, we can do our best to stay informed.

A good resource is the United States Consumer Product Safety Commission website. There you can learn about various types of recalls, not just those related to children. If you are looking for a website that might be a little more fine-tuned to children’s products, a site like safekids.org may be the place to go. On that website, you can sign up to receive recall notifications by email.

While being proactive and keeping an eye on these websites is a great way to keep ahead of dangerous products, it will not keep every child safe. The unfortunate reality is that there will continue to be dangerous products out on the market. Even worse, the manufacturer will be aware of some of these defective products but may do little to warn consumers.

Premises liability and damages: work with experienced advocate to maximize recovery

Published on: June 7, 2016 | By Jeff DeFrancisco

Last time, we mentioned that the type of damages available in a premises liability case depends on the specific circumstances of the case. Damages, we noted, comes in several varieties, including those dealing with economic losses and non-economic losses, as well punitive damages.

Compensatory damages, sometimes called actual damages, relate to losses that are easily translated into monetary compensation. Such damages include things like lost wages, diminished earning capacity, medical expenses, and similar sorts of damages. Non-economic damages cover losses that are not easily monetized, such as pain, suffering and loss of enjoyment of life. Punitive damages are a category all their own.

While compensatory damages have the aim of repaying the accident victim for his or her injuries and losses, punitive damages are aimed at punishing the defendant in a civil context. Punitive damages are not available in ordinary cases, but only in cases involving particularly egregious conduct. Ordinary negligence does not make an accident victim entitled to punitive damages, but only conduct involving a high degree of moral culpability. Such damages are not ordinarily going to be awarded in premises liability cases, though it is possible.