Articles Posted in Personal Injury

The Dietrich Law Firm P.C.’s compassionate team would like to take a moment to remember all of those who have lost their lives during the pandemic. Our hearts go out to those families who lost loved ones after being exposed to COVID-19 in nursing homes. In the pandemic’s early days, Governor Cuomo’s directive placed residents in substantial danger by admitting COVID-19 patients discharged from hospitals into long-term care facilities. The mandate prohibited nursing homes from testing any patients admitted to determine their level of contagiousness. In exchange, health care centers were provided with blanket immunity from COVID-19 liability.

The Repeal’s Implications for Nursing Home Victims

Liability protections allowed health care centers to cut corners and jeopardize vulnerable patients while increasing profit margins. The immunity law eliminated a significant deterrent that loved ones of nursing home residents had to protect their family members from neglect and mistreatment. Critics have pointed out Cuomo’s questionable motivations as the Greater New York Hospital Association, an influential lobbying group, donated lots of money to his campaign.

Whether texting, listening to music or scrolling through social media posts, the number of distracted pedestrians has significantly increased in recent years. Almost anyone who travels around in busy sections of town can attest to the alarming number of people not paying attention while walking. Unfortunately, distracted pedestrians can easily place both themselves and others in considerable danger.

What are the Consequences of Distracted Pedestrians?

Since 2004, the number of severe injuries to pedestrians using their smartphones has more than doubled. Recent research reveals that over 60 percent of pedestrians are distracted by other activities while on foot. As a result, more and more people are randomly tripping over curbs, waking into oncoming traffic, and falling down steps. This can be particularly troublesome for motorists when distracted pedestrians attempt to cross streets while looking at their phones instead of oncoming vehicles. Drivers may be forced to swerve out of the way and into other cars. Crossing the street distracted is even more dangerous when motorists fail to pay attention.

In Haviland v. Lourdes Med. Ctr. of Burlington County, Inc., the plaintiff suffered a shoulder injury while undergoing a radiology exam because the technician deviated from accepted standards of medical care. However, the trial court dismissed the case because the plaintiff failed to file an affidavit of merit (AOM). The legal issue revolved around whether New Jersey law mandates AOMs for vicarious liability claims filed against healthcare establishments involving negligent unlicensed employees. After reviewing the medical malpractice case, the Superior Court of New Jersey ruled that the plaintiff was not required to file an AOM with his complaint. The decision to reverse the lower court’s dismissal of the lawsuit could have profound implications on future vicarious liability claims concerning the requirement of AOMs for med mal cases.

The Ruling’s Possible Implications For New York Med Mal Cases

New Jersey and 27 other states require an affidavit of merit for medical malpractice cases. Under New York Law, all med mal actions must be accompanied by a certificate from the plaintiff’s attorney, declaring that he or she consulted with at least one licensed physician and, after thoroughly assessing the facts of the case, has determined that there are adequate grounds for pursuing such action. The affidavit of merit mandate was primarily designed to filter out frivolous claims before they are brought to court.

Chief Judge Janet DiFiore announced that the New York State Unified Court System intends to resume some in-person operations, including a limited number of jury trials in courts throughout the state. Although the chief judge has determined it is finally safe to bring people back to courtrooms, trials will take on a much different look than before COVID-19.

What to Expect for Jury Trials Under the “New Normal”

The District Attorney of Erie County, John J. Flynn Jr., promised that every possible effort would be made to ensure everyone’s safety. Anybody entering the court will be temperature checked, health screened and required to wear a mask. Social distancing has altered the traditional approach of summoning hundreds of potential jurors for jury selection. Depending on the capacity of the courtroom, under the “new normal,” less than 40 people, including the judge, court staff, 12 jurors, 2 alternates, lawyers, and defendants, will be admitted. All members of the jury and observers will be required to sit 6 feet apart from one another. Unfortunately, only a small percentage of courtrooms are equipped with enough space to handle social distancing. State Supreme Court Justice Paula L. Feroleto said, “We have one operating courtroom in each of the eight counties of Western New York that can accommodate that social distancing.” By the end of the month, Erie County plans on having two grand juries, which will meet on alternating days.

Fatal car accidents sadly are a common occurrence in New York, and in many cases, they are caused by dangerous conditions encountered in the roadway. While people who lose loved ones in collisions are frequently able to recover damages from the parties responsible, fatalities do not always arise out of negligence, and a plaintiff must prove that the defendant’s acts proximately caused the harm alleged to recover damages. Recently, a New York court issued an opinion explaining the proof needed to establish proximate cause in a case in which the plaintiff’s decedent died after crashing into a barricade on a bridge. If you lost a loved one in an accident caused by someone else’s negligence, you could be owed damages, and it is advisable to contact a knowledgeable Buffalo car accident attorney about your rights.

The Decedent’s Harm

Allegedly, the decedent was a passenger in a vehicle that crashed into a bridge that was no longer in commission. He suffered fatal injuries in the accident, after which the plaintiff filed a wrongful death lawsuit alleging, in part, that the defendant negligently maintained and operated the bridge. Specifically, the plaintiff asserted that the steel box barrier the defendant used at the entrance of the bridge created a dangerous condition. A non-jury trial was held, and the court determined that the steel box barrier was not a substantial factor in bringing about the decedent’s death and found in favor of the defendant. The plaintiff appealed, but on appeal, the trial court ruling was affirmed.

Establishing Proximate Cause in Negligence Claims

The appellate court found that, contrary to the plaintiff’s assertions, a fair assessment of the evidence supported the trial court’s ruling. Further, the court rejected the plaintiff’s argument that the ruling violated prior case law establishing that victims of accidents are not required to name specific remedies and prove that if they were implemented, it would have prevented the harm suffered. Instead, the court explained that a trial court is not precluded from weighing whether a person was likely to suffer the same harm regardless of whether the defendant acted negligently. Continue reading

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