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Sullivan Papain Block McGrath & Cannavo P.C.
 

   
   
SPBMC Attorney Newsletter 
Winter 2015
Personal 
Injury
Medical
Malpractice

40 attorneys with offices in New York, Long Island and New Jersey

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Recent Results Achieved for SPBMC Clients*

 

$4 Million - Wrongful death of a 56 year-old woman who passed away after an overloaded dump truck, whose brakes failed, made a right turn and fell on to her stopped vehicle.

 

$2.3 Million - Seven month delay in diagnosing rectal cancer in a 25 year-old woman who required surgery, chemotherapy, radiation and a permanent colostomy.   

 

$2.2 Million - Wrongful death of a 48 year-old husband and father of two boys where defendants failed to correctly monitor his anti-coagulation medication before undergoing a colonoscopy.  He died from a massive intracranial hemorrhage.

 

$2 Million - Wrongful death of a pregnant woman where the defendants failed to diagnose a fatal pulmonary embolism despite having clinical evidence of a deep vein thrombosis, which they did not treat because patient refused a lung scan since it would have been harmful to her unborn child. 

 

$1.65 Million - Rape of a 28 year-old female in a New York City Housing project where its own records indicated that the locks and buzzers for the front entrance were broken.

 

$1 Million - 11 year-old boy sustained trauma to his eye with an increased risk for retinal detachment after being struck in his eye with a BB pellet shot from an air soft gun.

 

View more results here.

 

* Prior results do not guarantee a similar result.

 

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Hurt in a Fall Down in New Jersey? Know Your Rights!
By Hugh M. Turk Esq.

 

Turk

So you fell and got hurt in New Jersey. Can you sue? Who do you sue? How good is your case? Trip and fall cases in New Jersey can generally be classified as good, possibly good and weak. If you fell in front of a commercial establishment, such as a store or large apartment building, you probably have a good case, since under New Jersey law, the owners of such properties have a legal obligation, known as a duty, to make their property reasonably safe for visitors. This means promptly fixing sidewalk defects once they are aware of them, and shoveling and salting the sidewalk within a reasonable time after a snowfall.  The owner's duty is not to achieve perfection but to make the property reasonably safe for visitors.


If you fell on a defective sidewalk outside a private residential home or a public building, or inside a house where you were a guest, the law is different and your case is not as strong. Residential homeowners in New Jersey are generally not responsible for the condition of the sidewalk, which is the responsibility of the town or city. 
And, even if a local ordinance says the homeowner must shovel, his or her failure to do so does not make the homeowner liable for your fall, unless the job was done carelessly. This law extends to all residential properties such as two family homes, and even to condominiums. In Luchejko v. City of Hoboken, 207 N.J. 191, 23 A.3d 912, a 2011 decision, the New Jersey Supreme Court held that because a condominium is primarily residential, it was not responsible for a pedestrian's fall on the sidewalk in front of the building. In such cases, you need to prove that the owner did something to cause the dangerous condition, such as a bad repair, or spilled something slippery, which, in turn, created a danger for the pedestrian. 

 

If you fell while a guest in someone's home, you will not be able to recover from the homeowner unless the condition was one that you could not detect, but which the owner did know about and did not tell you. For example, a homeowner has no duty to warn you about dangers you can see for yourself, such as a missing step, but a homeowner does have to warn you about a weak spot in the floor that you should avoid. 

 

Finally, if the only defendant you can sue is a governmental body, such as a town, school or park, you will have a tough time. There are laws granting immunity to these defendants for weather related claims. If you were hurt by a dangerous condition on public property, you first must prove the condition was dangerous for anyone using it as intended. In one case, the Supreme Court rejected a claim of a young man playing touch football in a municipal parking lot because that was not the lot's intended use. If you get over that hurdle, you still must prove notice of the dangerous condition, a failure to fix it and that the failure to fix it was "palpably unreasonable" - something that no reasonable person would do. Then, you must still show you spent $3,600 in medical bills and had a significant permanent injury before you can collect damages for pain and suffering. Recently, an appellate court rejected a $1,000,000 award to parents for their emotional distress in seeing their 13 year-old son drown, because they did not meet the $3,600 medical expense threshold.

 

If you, or someone you know, has fallen and injured themselves in New Jersey, give me a call in our New Jersey office at 201-342-0037.

  
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Choosing Where to Have Your Surgery and/or Procedure

 

Walling

Over the past two decades, more and more surgical procedures and diagnostic testing that require sedation or anesthesia are being performed outside of a hospital, and in some cases, some distance from a hospital. Although these settings can be more convenient, and in some instances more economical to the patient, you need to seriously consider the choice of such a setting before agreeing to have your surgery or procedure performed outside of a hospital. The recent death of Joan Rivers has drawn attention to this issue. Complications can often occur that can be survived if they happen within a hospital. Due to the limited equipment and personnel that are often found in an office based setting, the chances of survival are far less when an emergency arises.

 

Many doctors are now performing surgery in their offices. This is known as office based surgery. An example of this is plastic surgeons who are performing major abdominal surgeries such as abdominoplasties, also known as "tummy tucks" in their in-office operating rooms and sending their patients home that same day.

 

While there are sections of the New York Public Health Law that govern ambulatory surgery centers and office based surgical centers, having a certification is no guarantee that you will be provided the level of care required.

 

When agreeing to have any kind of surgery or procedure done in an office or an ambulatory surgery center not located in the hospital itself, you need to speak frankly with your doctor to make sure that the facility can provide the level of care required and it is important to find out who the doctors are that will be administering anesthesia. The following should be part of the list of questions you ask: 1) Are the doctors experienced board certified physicians who provide care not just in a surgery center but also still working in a hospital setting?; 2) Will a nurse anesthetist be administering anesthesia and if so, who will supervise them?; and 3) If there is no anesthesia professional administering the sedation, then who will be administering the sedation and who will be monitoring you?

 

Ask the doctor about the chances of a complication, no matter how remote, and if the complication occurs, what is the capability of the center to treat you effectively and transfer you to the hospital in a short period of time.

 

In our firm, we have seen cases where major plastic surgery was performed in an office where the anesthesiologist was not board certified, having been unable to pass the boards for such certification, and without any privileges to practice their specialty in a hospital. This should be a red flag. We have also seen cases where a simple procedure resulted in the puncture of a major vessel in the abdomen and the center was not capable of responding promptly. 

 

We have also seen cases where the patient was not medically monitored for the required period of time following surgery and anesthesia and was sent home because the office was closing and the shifts of the nurses staffing the post-anesthesia unit were ending.   

 

You must be your own advocate. Do not be hesitant to ask questions, and if the doctor does not want to answer them, then perhaps you should consider another doctor. 

 

If we can be of assistance to you or your clients, please feel free to contact us. 

 

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SPBMC and the New York State Trial Lawyers Association Combine for High Court Victory that Aids Firefighters and Police Officers Injured on the Job.

By Brian J. Shoot, Esq.

 

Firefighters and police officers each have a special statutory right shared by no one else. Basically, if anyone violates a qualifying statute, regulation or rule, and if that violation directly or indirectly causes an on-the-job injury, the injured firefighter or police officer can bring suit against whoever was responsible for the violation. But what statutes, regulations, and rules "count" for purposes of this special right? More specifically, does Labor Law � 27-a(3)(a)(1) "count"? That provision requires that,

 

[e]very employer shall: (1) furnish to each of its employees, employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees and which will provide reasonable and adequate protection to the lives, safety or health of its employees.

 

That issue was just fought out in the Court of Appeals, in Gammons v. City of New York, 2014 WL 7177543 [Dec. 18, 2014]. Although SPBMC did not represent the plaintiff in Gammons, it worked pro bono and prepared a brief, filed by and on behalf of the New York State Trial Lawyers Association, which supported the plaintiff's victory. The result was not only a victory in Gammons itself, but also an emphatic recognition, that may prove significant in many cases to come, that the firefighters' and police officers' statutes most intended be construed broadly so as to provide maximum protection.

 

The Court said, amongst other things:

 

... this Court has recognized that these [1996] amendments [of the firefighter and police officer statutes], enacted on the heels of judicial decisions constricting the application of GML � 205-e, manifest the Legislature's determination to bring courts in line with the legislative goal of providing a cause of action for police officers for negligent noncompliance with the law. Indeed, the legislative history of the 1996 amendments sets the record straight that by amending the statute our state elected officials

 

"intended to ensure once and for all that section 205-e of the general municipal law is applied by the courts in accordance with its original legislative intent to offer an umbrella of protection for police officers, who, in the course of their many and varied duties, are injured by the negligence of anyone who violates any relevant statute, ordinance, code, rule and/or regulation."

 

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To the extent defendants argue that as a matter of law a general duty clause, such as that contained in section 27-a, cannot serve as a predicate for GML � 205-e liability, we find that argument without support in the General Municipal Law or our prior decisions.

 

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We reject defendants' invitation to read GML � 205-e so as to foreclose plaintiff's action, for doing so would ignore years of legislative enactments decrying just such a result. Based on the legislative intent to provide police officers with a right to sue in torts against their employers, and the Legislature's mandate that the courts expansively apply section 205-e, we hold that PESHA's general duty clause serves as a predicate to plaintiff's GML � 205-e cause of action for damages. Therefore, we reject defendants' contention that as a matter of law Labor Law � 27-a(3)(a)(1) cannot serve as a statutory predicate.

 

If you know any firefighter or police officer injured in the line of duty and who is in need of our assistance, our firm is here to help them.

 

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Our Offices

Manhattan Office

120 Broadway

New York, NY 10271

P: 212-732-9000

F: 212-266-4141

[email protected]

Garden City Office

1140 Franklin Avenue, Suite 200

Garden City, NY 11530

P: 516-742-0707

F: 516-742-7350 

 

 

Cutchogue Office

33105 Main Road

Cutchogue, NY 11935

P: 631-734-2500

F: 631-734-2502

[email protected]

 

New Jersey Office

126 State Street

Hackensack, NJ 07601

P: 201-342-0037

F: 201-342-6461

[email protected]

 

 

www.TrialLaw1.com 

 
Disclaimer:  This newsletter is for education and information purposes only and is not intended to provide legal advice. No attorney-client relationship exists or is created by the use of this newsletter. This newsletter should not be used as a substitute for legal advice.

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