Syracuse Personal Injury Law Blog

Bill could make establishing negligence easier in distracted driving cases

Published on: May 3, 2016 | By Jeff DeFrancisco

Distracted driving is a serious problem wherever you go nowadays. The widespread use of mobile devices has made it all too easy for even otherwise responsible drivers to put both themselves and other motorists at risk. States take a variety of approaches to the problem of distracted driving, some stricter than others.

Here in New York, the legislature has banned both texting and the use of handheld devices for all drivers. These are both primary laws, meaning that law enforcement is able to make citations for the offenses without there have been other offenses. Such laws may be helpful in the battle against distracted driving, but they are inherently limited, and must be supplemented with other efforts, including public education on the dangerous of distracted driving.

One of the emerging possibilities in fighting distracted driving is the use of so-called “textalyzer” phone scanners, which are able to tell law enforcement whether a driver was texting at the time of an accident. Lawmakers in New York are currently considering legislation which would make New York the first state where police are using the technology. Privacy concerns remain about the proposal, but supporters say the scanners would not allow officers to have access to motorists’ personal information.

Relaxation of federal truck safety rules puts other motorists at risk

Published on: May 2, 2016 | By Jeff DeFrancisco

Last time, we began discussing the federal hours of service regulations, which are largely intended to address the problem of fatigued driving among commercial vehicle operators. The rules, no doubt, do help to ensure that truck drivers are adequately rested while on the roadway, but there has been a fair amount of wrangling over the rules.

The most recent change with the rules took place in 2014 when Congress passed a bill which suspended enforcement of requirements for the 34-hour restart rule. The previous rule required truckers to take their rest breaks at a certain period of two consecutive nights, but that rule was suspended at the urging of the industry so that its effectiveness could be investigated. It remains to be seen whether it will be reinstated.

The trucking industry has been successful in initiating changes not only in the hours of service rules, but also with size and weight limits and other safety standards. These changes, as has been pointed out, have not been good for the cause of highway safety.

Truck safety and the federal hours of service rules

Published on: April 29, 2016 | By Jeff DeFrancisco

Truck safety is an important concern when it comes to improving highway safety. Because of their size and the weight they carry, semi-tractor trailers and other commercial vehicles present a serious risk of causing harm or death other motorists when they are involved in accidents.

One particular area where truck needs continual monitoring and improvement is driver fatigue. Long hours on the road and inadequate rest can make truck drivers a roadway accident waiting to happen. Driver fatigue has long been known to be a problem among truck drivers, and federal regulations are in place to help ensure that truckers get enough rest. These federal regulations are known as the hours of service rules.

The hours of service rules apply to commercial vehicle drivers whose vehicles meet certain requirements. On its website, the Federal Motor Carrier Safety Administration provides a brief summary of these rules. Slightly different rules apply to property-carrying drivers and passenger-carrying drivers. For the former, the rules include the following:

Work with experienced legal counsel to seek compensation for medication errors

Published on: April 28, 2016 | By Jeff DeFrancisco

In our last post, we began looking at the issue of medication errors, particularly the fact that the electronic systems used by physicians in many hospitals allow a significant number of potentially harmful errors to go undetected. As we noted, not every medication error results in harm to a patient. In many cases, the error is inconsequential or has a minimal impact on the patient. In some cases, though, medication errors can have more serious consequences.

Medication errors can take various forms. An obvious mistake is for a provider to make an incorrect drug selection, but it can also occur that the drug is not administered at the correct time, is administered incorrectly, or that an expired drug is administered. Errors may also occur in reviewing a prescribed drug regimen for appropriateness.

Depending on the type of error in question, there can be a variety of causes for medication errors. According to the American Society of Health-System Pharmacists, common causes of medication errors include poor physician handwriting, improper transcription of prescription, confusion about drug nomenclature, and inaccurate calculation of drug dosage. Failure of electronic health records systems can, as we’ve noted, also be a cause of medication errors as well. Physicians are not the only possible liable party, either. Other medical staff, including pharmacists, can make errors with medications which end up negatively impacting a patient.

Study highlights medication errors which slip into electronic health records

Published on: April 27, 2016 | By Jeff DeFrancisco

Medical malpractice comes in many different forms, but medication errors are a particularly common occurrence in hospital settings. Electronic systems have been developed to help reduce medication errors, and they have been a huge help. The use of computerized physician order entry systems has been highly encouraged by the federal government, and nearly all hospitals use these systems. Unfortunately, there are still too many mistakes made with medication.

According to a recent report by data analytics company Castlight Health and the hospital rating company LeapFrog Group, computer systems designed to address medication errors still fail to catch around 13 percent of potentially fatal drug-related mistakes. The research also shows that roughly 40 percent of the most serious and common errors are able to slip by these systems.

The recent study adds to the growing body of evidence showing that improvements still need to be made to computerized physician order entry systems. Previous studies have likewise shown that computerized physician order entry systems sometimes fail to detect inaccurate patient information.

Product recalls and product liability litigation: looking at the connection, P.4

Published on: April 22, 2016 | By Jeff DeFrancisco

We’ve been looking in recent posts at the issue of product recalls and product liability litigation. Last time, we began looking at how product recall can sometimes, in some states, be used as evidence of liability for negligence in connection with a defective or dangerous product. That is not the case here in New York, which subscribes to the though there are certain exceptions.

Another possible way a recall can go badly for a company is when the company, knowing litigation is possible, destroys evidence that could demonstrate its own negligence. This is known as spoliation, and can sometimes serve as a basis for product liability. The point we’ve been trying to make with respect to how recalls are conducted is that companies who don’t conduct careful recalls can open themselves up to liability, though there may be limitations on plaintiffs’ ability to use recalls as evidence of liability due to the subsequent remedial measures rule.

Another potential limitation on plaintiffs in product liability cases where a recall has been issued is that a company may have the ability to assert the defense that the plaintiff assumed the risk of using a product after receiving a warning through a recall notice or some other means but continued to use the product.

Product recalls and product liability litigation: looking at the connection, P.3

Published on: April 21, 2016 | By Jeff DeFrancisco

Picking up where we left off in our last post, we wanted to look briefly at the issue of product recalls in the context of product liability litigation.

As we noted last time, the place a product recall will have in product liability litigation depends on the type of claim or claims being made, the state in which the claim is made, and other factors. One such factor is the way in which a recall is conducted. The way a company goes about a recall can affect whether it helps or hurts the company in subsequent product liability litigation.

In product liability cases based on negligence, for example, a product recall notice may contain admissions of negligence that can, in some states at least, be used as evidence in a product liability case. Companies are aware of this and are usually advised by counsel to avoid including any admissions in their recall notices, which can lead to another problem—not including enough information. In other states, including New York, recall notices and documents may not be used as evidence of negligence. Some states do not allow such evidence for negligence claims, but do allow it for strict liability or breach of warranty claims, so it depends where the case is being brought and what law applies.

Product recalls and product liability litigation: looking at the connection, P.2

Published on: April 20, 2016 | By Jeff DeFrancisco

Last time, we mentioned a recent batch of product recalls issued last week and began discussing the importance of working with an experienced attorney to seek just compensation for injuries connected to defective products. Although litigation is not always the answer for an injured consumer, it may be necessary in some cases to ensure the consumer has a chance to be fairly compensated.

Product recalls, or lack thereof, can sometimes be a factor, or an issue to be dealt with, in some product liability cases. Any plaintiff pursuing product liability litigation is required to prove certain basic elements for each claim. For product liability, there are several theories on which a plaintiff may be held liable. The place a product recall has in a product liability case depends on which theory a plaintiff is basing a claim, the state in which the suit is brought, the specific facts of the case.

One theory on which a plaintiff may pursue product liability is negligence, or failure to abide by some established duty with respect to the design, manufacture, marketing and distribution of a product. The duty of care owed under a negligence theory depends on the company’s role with respect to the product, but generally a duty of reasonable care is owed.

Product recalls and product liability litigation: looking at the connection, P.1

Published on: April 18, 2016 | By Jeff DeFrancisco

Companies recall products all the time for various reasons. In the last week, for example, a number of product recalls were issued, including three models of Coleman flashlights, a Rollerblade inline skating safety helmet, two models of Yamaha off-highway vehicles, three models of Fisher-Price cradle swings, Outdoor Gourmet marinade injectors, a model of a Staples and Quill office chair, and a Miniland Educational plush fastening toy.

Some of the recalls were issued after safety incidents had been reported, though none of the recent batch of recalls were issued in response to any injuries. This isn’t always the case. When companies are responsible, they do enough pre-market safety development and respond quickly enough to post-market safety concerns that the harm to consumers is kept to a minimum. In some cases, though, companies fail to reveal the risks their products post and choose instead to benefit from market demand, or fail to respond responsibly to product failures.

For consumers who are harmed by a defective product, the primary concern is addressing the injuries themselves, and then seeking just compensation from parties responsible for the injury. In some cases, it may be possible to settle privately over defective product injuries, but obtaining just compensation is only possible in some cases by pursuing litigation.

Decline in med mal litigation among factors contributing to NY insurance market volatility, P.2

Published on: April 15, 2016 | By Jeff DeFrancisco

Last time, we began discussing the currently volatility in the New York medical malpractice market. As we noted, the situation not only puts physicians at risk, but also patients who attempt to sue physicians covered by insurance providers who become insolvent.

We mentioned that the number of medical malpractice claims has decreased in the last decade—dropping 32 percent between 2004 and 2014—but there is also the fact that payouts on claims are decreasing as well. In such a situation, insurance companies can maximize their profits since they aren’t paying as much on claims. Again, it remains to be seen how the situation will be addressed by regulators and lawmakers, but patients are bound to be affected in some way if nothing is done.

Quickly filing a medical malpractice claim when one is harmed by a physician is not necessarily the best solution. When a patient suspects he or she may have suffered injury at the hands of a negligent physician, what really needs to be done is to consult with an experienced attorney who can look at the case and determine what evidence there may be to support a claim for medical malpractice. If there is merit to the case, it needs to also be determined what types and amounts of damages likely to result from the bringing the case.