You’ve had a car accident, now what do you do?

When you’re in a car accident you’ll be scared and you’ll be hurt. The first thing you should do if you are able is immediately call the police and then exchange your information with the other driver including name, address and insurance. The next thing you should do as soon as you are able is call your insurance company to report the accident. Virtually every insurance policy in New York requires that all accidents be reported and, more importantly, when you contact your insurance company you should tell them that you are requesting that they send you a New York No-Fault Application for Benefits.

It’s important that you request this No-Fault Application as soon as possible because there are strict time limits which the law places upon you to file this application. In most cases the No-Fault Application must be filed within 30 days of the accident occurring. This application is important because any medical treatment, lost wages and other expenses such as prescriptions will be covered by your no-fault insurance through your own insurance company. However, if you do not file your application in a timely fashion, your insurance company can and in most cases will refuse to pay for your benefits simply because you did not file your application on time.

There are many technical rules which apply to no-fault and dealing with your insurance company. For example, even if you mail your application within the 30 days of your accident, if your company claims that it did not receive the application and you do not have proof that it was actually mailed, your company can still refuse to pay your benefits unless you can prove the application was mailed and received by the insurance carrier. This is done by sending it Certified Mail - Return Receipt Requested.

The attorneys at Spiegel, Brown, Fichera, & Coté, LLP are experienced in dealing with automobile accidents and particularly no-fault law and can be of vital assistance to you after you’ve been in a car accident.

You may also be entitled to recover damages for your pain and suffering from the driver who is at fault in causing the accident. The experienced lawyers at Spiegel, Brown, Fichera & Cote, LLP will provide a free evaluation of your potential case.

BABIES INJURED BY MEDICAL MALPRACTICE HAVE NO CHAMPION IN GOVERNOR ANDREW CUOMO

Without much doubt, the number one category of cases in which we receive telephone solicitations for legal consultations is that of medical malpractice. Probably 95 percent of these inquiries result in our taking the time to chat with the potential client and then to explain why, even in cases of rather clear medical negligence, there is no basis to bring a suit.

Why is this? The answer is that, contrary to the insurance industry’s expensive advertising campaign, the doctors have “won the war” in New York State on the medical malpractice front. How have they done this? These are some of the critical ways:

a) Unlike any other type of personal injury case in New York State such as a car accident or slip and fall, a lawyer may not even file a medical malpractice case unless and until he or she has obtained all the medical records, reviewed the medical facts and the legal issues, referred the case to an independent expert for a formal review (an expensive and time consuming process that must result in a positive expert finding of malpractice and significant harm to the patient).

b) An industry-wide commitment not to settle even the most clear cut cases of doctor-inflicted injury until the case is literally on the eve of trial (unlike most other personal injury cases where a lawyer who is able to prove a clear cut injury and strong fault can achieve a fair settlement in timely fashion for his client).

c) Special rules that limit the lawyer’s contingency fees to as little as one half of the normal contingency fee percentage that is permitted in all other types of injury cases in New York.

Because of the tremendous investment of time and money in bringing these cases, medical malpractice cases are only brought by the most experienced and best trial lawyers in this State. They are also defended by among the very best of the civil defense bar (with all due respect to the automobile insurance company’s lawyers, those that defend doctors and hospitals in medical malpractice cases, are paid three or four times as much and are regarded as extremely competent advocates). Despite the fact that these cases are brought by the very best trial lawyers and have been reviewed and certified to be the result of serious medical negligence by independent medical experts, almost three out of four jury verdicts in this State are in favor of the doctor or the hospital.

In the face of this, the insurance industry has created a web of lies and myths about a “litigation explosion” and alleged punitive damage awards which have shattered New York’s economy. This dishonest campaign of the insurance industry has been ignored by the media (see, however, “Selling Out Injured Baby Rights”, Ralph Nader, www.nader.org).

The fact of the matter is that there are no punitive damages permitted in New York State for medical negligence. The vast majority of the seven figure medical malpractice awards/settlements are in situations involving avoidable birth defects to brain-damaged and other permanently handicapped babies who are victimized — usually while still in the womb — by careless doctors or nurses. These are, obviously, significant exceptions. Nevertheless, these few large awards — almost invariably well justified — are thrown up by the insurance industry to mislead, not only the public, but the medical practitioners themselves to create an atmosphere of fear and of litigation run amok.

Now Governor Andrew Cuomo, in a most cynical fashion, has attempted to curry favor with the insurance industry in Albany (the strongest lobby in our State Capitol) by submitting a budget which would include, buried in the various expense items of the State, a $250,000.00 cap on pain and suffering awards in birth defect and other brain-damaged baby cases in New York.

It is urged that all citizens contact Governor Cuomo’s office as well as your local Assemblyman and Senator and tell them that you oppose Governor Cuomo’s medical malpractice Proposal Number 131.

TRAUMATIC BRAIN INJURIES: A DEVASTATING INVISIBLE INJURY

When a person has an accident and is injured, the most obvious types of injuries are those that can be seen. Injuries like broken bones, lacerations and resulting scars are easily visible to the naked eye but there are many injuries which cannot be seen. Injuries such as neck and back injuries and traumatic brain injuries, while invisible to the naked eye, can often be far more devastating than those that can be seen.

Society is finally starting to pay attention to traumatic brain injuries like concussions. Professional sports leagues, like the National Football League, are conducting studies and some very high profile athletes have had long-term injuries caused by concussions. Last year, a baseball player named Justin Morneau of the Minnesota Twins, a former Most Valuable Player, did not play in a single game following the All Star break after suffering a concussion. His status going into the Spring, 2011 season remains uncertain.

Traditional media is also starting to pay more attention to brain injuries. For example, USA Today published a detailed article concerning a health insurance gap encountered by many, if not most, brain injury victims (”For brain injuries, a treatment gap”, USA Today, 3/2/11).

Traumatic brain injuries are a serious disease that affects millions of people each year. The Center for Disease Control reported 1.5 million people diagnosed with traumatic brain injury in 2001. A traumatic brain injury, like a concussion, occurs when there is a trauma to the brain. For example, when a person slips and falls or has a car accident and strikes their head, their brain will shift within their skull and come into contact with the interior of their skull. The human skull is not smooth on the inside but rather has ridges. When the brain comes into contact with these ridges, injury can occur. It is in these situations when a person may suffer a concussion.

A concussion can occur in a person with or without a loss of consciousness. Acute signs and symptoms of a concussion are: fatigue, nausea, vomiting, headache, dizziness, confusion and seizures. Long-term symptoms include confusion, memory loss, change in personality, poor attention, changing of sleep patterns, becoming upset easily or a short temper, depression and feeling lethargic.

When you are in an accident and suffer a blow to the head you should be aware that you may have suffered a concussion. If you have any of the above referenced symptoms, you should immediately tell your treating doctor and request to see a neurologist, particularly if symptoms are persisting. Because a traumatic brain injury is not always readily apparent, symptoms are often minimized by a patient and they do not even realize they are suffering this injury.  Often symptoms like confusion and a memory loss are ignored by a patient until, months later, they are having difficulty when they return to their job and find that they are not able to perform all of the activities they were once able to do easily. As an attorney who has litigated these types of cases, it is often difficult to causally connect these symptoms back to the original accident if the symptoms of the brain injury are not documented in medical records at the time of the accident.

The long-term effects of a brain injury can often be far worse than those of the obvious injuries suffered in an accident. A broken bone will often heal and the injured person is able to return to their regular daily activities. However, when a person is suffering the long-term effect of a concussion that causes them difficulty in their concentration and memory, these effects can cause undue stress and difficulty with their relationships and their careers for years after their accident. For this reason it is very important when you suspect that you have suffered a concussion in an accident that you advise your doctor of all your symptoms, particularly if you are suffering headache or nausea.

Often, a patient who is diagnosed with a traumatic brain injury will be referred to a neuropsychologist. A neuropsychologist has training in evaluating the effects of a brain injury. They will conduct extensive testing which can be performed over several weeks to assess the impact a brain injury has had on an individual. A good neuropsychologist can assist a patient in understanding their limitations caused by their brain injury so they will know how to deal with them in their everyday life. For example, if a patient suffers short-term memory loss, they may sometimes “blank out” for a moment while driving and not know where they were going. If a person is aware that this could happen, they can make sure to have a GPS with them at all times while driving so if they do suffer this, they can look at the GPS and not suffer distress while driving.

A traumatic brain injury can be a very difficult injury to live with. Often, its effects go unnoticed until a patient’s life is later disrupted. What’s more, our society has tended to minimize injuries like concussions. Thankfully, this attitude is beginning to change and traumatic brain injuries are becoming recognized as the severe injury that it is and new treatments are being developed to assist patients in overcoming them. People should be aware that they can easily suffer a traumatic brain injury when they have an accident, like a motor vehicle accident or a slip and fall. They should report all symptoms they are feeling to the emergency room doctors and their medical professionals to make sure they get the treatment they will need to assist them in overcoming this sometimes difficult and long-term injury. They should also consult an attorney who has the knowledge and experience handling traumatic brain injury cases to make sure they receive proper compensation for this complex and often devastating injury.