Syracuse Personal Injury Law Blog

Common medical malpractice defenses

Published on: December 5, 2014 | By Jeff DeFrancisco

It may difficult for a patient to bring a medical malpractice claim against a hospital or a physician. There are many elements that do not always favor an ailing patient, including the lack of money available to properly investigate the claim, the ambivalence in the justice system because of how long it may take, and the constant pain a malpractice victim may be in.

But even in the midst of bringing a malpractice claim, a plaintiff (or at least a plaintiff’s lawyer) must prepare for the various defenses a hospital, nurse or physician may bring. This post will identify a few of them.

Disputes over standards – In order to prevail on a medical malpractice claim, a plaintiff must show that a physician’s or nurse’s actions fell below the standards expected of medical professionals in similar situations. As such, a defendant may argue that his or her actions fell squarely within the professional standards expected.

Why is the airbag recall important?

Published on: December 4, 2014 | By Jeff DeFrancisco

It seems like 2014 will be remembered for the year of the auto recall. First it was General Motors, with the ignition key problem that threatened to stop running cars based on the weight of a keychain. The recall reportedly affected millions of cars and led to GM being subject to a $35 million fine.

The latest recall has to do with airbags. According to an ABC News report, airbags supplied by Takata Corporation are responsible for scores of injuries and three deaths. Essentially, the canisters that house the airbags could disintegrate when the airbags inflate; thus sending shards of shrapnel like metal into unsuspecting drivers. Takata airbags are in cars manufactured by many major automakers, including Honda, Nissan, BMW and General Motors.

In November, the National Highway Traffic Safety Administration gave an urgent warning to millions of car owners to immediately take their cars in to get their airbags replaced. The warning was especially critical for car owners in places with high humidity.

CA Supreme Court to examine constitutionality of damage caps

Published on: December 3, 2014 | By Jeff DeFrancisco

In a prior post we highlighted the failed legislative initiative in California to overturn the state’s cap on non-economic damages in medical malpractice cases. The current law, which was enacted by the legislature in 1975, limits the amount of money plaintiffs in med mal cases may be awarded by a jury to $250,000. In the nearly 40 years since the law was passed, this amount has not been adjusted…even for inflation.

California’s law has likely been the impetus for similar laws by legislatures around the country, especially as jury awards for pain and suffering continued to rise in the 1980’s and 1990’s. In fact, it is arguable that states that did not have non-economic damages caps were more likely to lose physicians who were not able to pay the skyrocketing insurance costs ostensibly driven by the fear of large medical malpractice awards.

However, as more information comes forth indicating that tort reform does not actually lower medical costs, some states are re-thinking their caps on liability. For example, the Florida Supreme Court recently found that damages caps are unconstitutional. The court explained that such caps served no other purpose than to “arbitrarily punish the most grievously injured or their surviving family members.”

Can a retailer be held liable for Black Friday injuries?

Published on: December 2, 2014 | By Jeff DeFrancisco

To the most fanatic shopper, Black Friday (and in some cases, Gray Thursday) is like the Super Bowl of shopping dates. There are likely weeks of planning and training, as well as time taken out to stake a spot for the most coveted of deals. For what is probably a thrill to get a fabulous deal may also come with substantial danger. After all, there is a story every year about someone getting injured in a Black Friday sale.

So when a patron is injured in these situations, can the retailer be held liable? Of course, it depends.

As a matter of law, retailers have a duty to keep patrons safe from hazards while shopping on the retailer’s premises. Essentially, they have to use reasonable care in keeping customers from being injured by hazards they knew about or should have known about. Common hazards include spills, broken glass and flooring that has become unstable.

Cell phone use increases despite safety warnings

Published on: December 2, 2014 | By Jeff DeFrancisco

If you drive in the state of New York, chances are that you know that using your cell phone while driving is against the law. The same would apply if you were driving in New Jersey or Connecticut as well. The laws are likely a result of public pressure to limit the number of accidents caused by distracted driving.

And for the most part, the public has responded. According to a recent State Farm Insurance study, fewer people are talking on their cell phones while driving. However, more people are accessing the Internet. Researchers indicated that in 2009, 13 percent of drivers polled indicated that they surfed while behind the wheel; but today, 26 percent said that they were on the Internet while driving.

A number of people polled indicated that they accessed email accounts while driving, and others said that checking social media sites such as Facebook and Twitter were important. State Farm’s director of technology research explained to USA Today that he did not understand why people would continue to engage in such risky behavior, but it may be the popularity of smartphones that may be a contributor to this trend.

Cruise ship doctors could be held liable after landmark ruling

Published on: December 2, 2014 | By Jeff DeFrancisco

Today’s modern mega cruise ships are engineering marvels. They include elaborate boulevards that resemble actual city blocks and shopping malls. They have multiple signature restaurants, waterslides, ice skating rinks and even rock climbing walls. They also have state-of-the-art medical facilities to handle people who become sick or injured in the course of having fun on their cruise.

However, if a patient is sickened or injured because of a doctor’s negligence, the patient was usually out of luck. Medical malpractice cases against cruise lines were commonly dead on arrival because of maritime laws that generally insulated cruise ship medical staffs from liability in U.S. courts.

Nevertheless, a recent ruling by the U.S. Court of Appeals for the Eleventh Circuit may change this going forward. Essentially, the court rejected the application of the so-called “Barbetta rule” which immunizes a shipowner from liability under the legal theory of respondeat superior when a ship’s employees are negligent in rendering medical care to passengers. Because of this, a wrongful death action based on medical malpractice alleged against a ship’s doctor on a Royal Caribbean cruise ship was deemed worthy of going forward. It was initially dismissed by the trial for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

H.S. football players affected without suffering concussions

Published on: December 2, 2014 | By Jeff DeFrancisco

The link between concussions suffered while playing professional football and permanent brain injury has grown over the past few years as more football players are diagnosed with depression, anxiety and other terminal illnesses. The growing number of players exhibiting erratic (and sometimes violent) behavior off the field and even committing suicide has led to rules changes and increased monitoring of concussions on the professional and collegiate levels.

But what about high school football? Concussion protocols have become increasingly important because of new information suggesting that young people can exhibit emotional changes even though they have not technically suffered a concussion. A study presented at the Radiological Society of North America found that small, continuous blows to the head could cause changes to the brains of young football player, even though they have not been clinically diagnosed with a concussion.

Even though the study did not examine how the changes affected brain functions, it brings about concerns as to whether a player should be examined by a brain specialist prior to resuming contact activities. It may also raise questions as to whether doctors are following proper protocols when diagnosing football players.

How to travel safely during the Thanksgiving holiday

Published on: November 26, 2014 | By Jeff DeFrancisco

Last week’s lake effect snowstorm in the Buffalo area was an epic weather event. Also, as temperatures were forecasted to warm up, fears arose that flooding would grip the area as well. As of today, it is predicted that flooding will largely be avoided, which is good news for people who had to dig out from the previous storm.

However, another storm predicted for our region cannot come at a more inopportune time; the Thanksgiving holiday. According to the American Automobile Association, more than 46 million people will be travelling, with a large majority of these travelers taking to the road. With the combination of additional traffic and the possibility of poor weather, drivers must be vigilant in order to avoid accidents.

After all, drivers in Syracuse and throughout central New York have a duty to use reasonable care while operating a motor vehicle. This commonly means that drivers must reduce their speeds in inclement conditions, they must leave some additional space between vehicles ahead of them when conditions are challenging, and they must avoid driving under the influence of alcohol, among a few things.

When can airbags be a threat to passengers?

Published on: November 25, 2014 | By Jeff DeFrancisco

When you think about how airbags in vehicles are supposed to work, the overriding notion is that they are supposed to save lives. They are supposed to cushion the impact between a driver (primarily their head) and the steering column and the dashboard. The same could be said about airbags that protect passengers as well.

However, while many airbags save lives, there is a growing problem that is being discovered about the canisters that house them. Essentially they could disintegrate under the pressure of inflating during the impact of an accident, and could send metal shards into the occupants of a car, therefore creating serious lacerations and other injuries.

According to a warning issued by the National Highway Traffic Safety Administration, nearly five million vehicles across the United States could be affected. The airbags, which were manufactured by Takata Corporation, have been included in Hondas, Toyotas, Nissans and BMWs sold over the past few years. However, new information has surfaced suggesting that more than seven million cars could have faulty airbags.

How patients can avoid complications with hospital discharges

Published on: November 25, 2014 | By Jeff DeFrancisco

Some hospital error cases are based on patient readmissions that occur because of mistakes on diagnosing patients for discharge, and the lack of education that patients receive. Indeed, there are a number of things that hospitals can do in these areas to increase patient safety. This post will highlight some important considerations that patients should be aware of.

Your doctor or nurse should educate you about blood thinners – If you recently have had surgery, chances are that you may be discharged from the hospital with a prescription for a blood thinner. It is critical that your physician give you detailed instructions about your prescription, and you should ask all the questions you feel are necessary in order to feel comfortable with what you will be taking.

Read your discharge plan – Most hospitals have protocols where the patient is read their discharge plan, or it is explained to them by the physician or a designated agent. Essentially, the discharge plan should include what prescriptions will be given and how often the medications should be taken, when follow up appointments will take place, as well as who primary contact shall be should the patient have questions.