New Law Benefits You at the Expense of Your Health Care Insurer

Yesterday, Governor Patterson signed new legislation that changed the New York State General Obligation Law and eliminated the right of Health Care Insurers to recoup money for payments they made from an injured person who recovers money in a personal injury, medical malpractice action or wrongful death case, except where there are statutory rights of reimbursement (for example, Medicare, Medicaid, Worker’s Compensation, ERISA, No-Fault). 

 If you or someone you know is a Plaintiff in a personal injury, medical malpractice, or wrongful death lawsuit, they should make sure they are aware of this if they are trying to resolve their case without a lawyer, or if they are represented by a lawyer, they should make sure to discuss how this new law impacts their lawsuit.

‘Til next time,
      Turning legalese into legal ease,
      Lewis

All contents copyright Lewis A. Bartell except where indicated. A blog is not legal advice and is not intended to substitute for consultation with a lawyer licensed in your jurisdiction. Kaplan Belsky Ross Bartell, 666 Old Country Road, Garden City, NY 11530  (516)745-1100

Are Independent Medical Examinations Really Independent?

The party you are suing arranges this examination as part of their defense (see my prior entry Independent Medical Examination). Understandably, you would never consider the IME doctor to be your doctor, but a recent New York case would prove you wrong!

After being injured in a car accident, Mr. A. brought a lawsuit for his injuries. The person he sued sent Mr. A. for an IME. During the IME, Mr. A.’s neck was injured by the IME doctor. Two years and 11 months after being injured, Mr. A. sued the IME doctor. Lawyers for the IME doctor moved to dismiss the lawsuit because it was beyond the 2 ½ year medical malpractice statute of limitations. The Supreme Court (a lower court in New York) dismissed the lawsuit ruling that there was a Patient-Physician relationship established as a result of the IME and Mr. A. should have sued within the 2 ½ year timeframe. Mr. A. appealed and the Appellate Division ruled that there was no Patient-Physician relationship and therefore the 3 year negligence Statute of Limitation applied as opposed to the 2 ½ year period and reinstated Mr. A.’s lawsuit.  The IME doctor was permitted to appeal to the Court of Appeals (New York’s highest court) who ruled that there was in fact a “limited physician-patient relationship” and dismissed Mr. A’s lawsuit finding that it was commenced after the 2 ½ year medical malpractice statute of limitations had expired.

If you believe you suffered an injury during an IME you should tell you lawyer immediately. Otherwise you should contact an attorney where you live as soon as you realize you may have suffered an injury like this.

‘Til next time,
      Turning legalese into legal ease,
      Lewis

All contents copyright Lewis A. Bartell except where indicated. A blog is not legal advice and is not intended to substitute for consultation with a lawyer licensed in your jurisdiction. Kaplan Belsky Ross Bartell, 666 Old Country Road, Garden City, NY 11530  (516)745-1100

“Independent Medical Examination”

An Independent Medical Examination (sometimes referred to as an Independent Medical Evaluation) is conducted by a doctor chosen by the person being sued as part of preparing to defend the injury he or she is claimed to have caused in the accident. The doctor who performs the evaluation is not a party to the lawsuit.

 If you are involved in a lawsuit that claims an injury, you will almost always be sent for an Independent Medical Examination (IME, for short). The party you are suing arranges this examination as part of their defense. The purpose of this examination is to allow the person you are suing to make his/her own determination as to the severity of your injuries and if necessary, how these injuries have affected your daily activities. You will be advised by your attorney as to the time and place for this examination. Depending on where you live, and the type of injury you suffered in the accident, the IME doctor may be able to take x-rays and conduct more extensive testing beyond a simple physical check-up. If you are sent for an IME you should discuss what to expect with your attorney.  This will allow you to avoid any surprises during the examination.

‘Til next time,
      Turning legalese into legal ease,
      Lewis

All contents copyright Lewis A. Bartell except where indicated. A blog is not legal advice and is not intended to substitute for consultation with a lawyer licensed in your jurisdiction. Kaplan Belsky Ross Bartell, 666 Old Country Road, Garden City, NY 11530  (516)745-1100

“Personal Injury Protection”

The portion of your automobile (or other vehicle) insurance policy which provides payment for the treatment of injuries to the driver or passengers in your car.

Commonly referred to as “PIP”, this insurance coverage does not consider whose fault the accident was before making payments. PIP provides coverage for injuries to the driver and passengers in an automobile accident and is looked to first before the person’s health insurance. This may become very important if the driver or passenger does not have private health insurance. Under certain circumstances the PIP coverage from your insurance may be available for an accident if you were driving someone else’s car, and PIP will also cover injuries to a pedestrian. PIP coverage is usually included in motorcycle and ATV policies but covers injuries to pedestrians only.

PIP usually provides money for medical fees, lost wages, funeral costs and other out-of-pocket expenses. PIP coverage will be available without having to start a lawsuit. It is very important to remember that there may be time limits for you to file a claim for these benefits so you should consult an attorney or your insurance agent immediately after any accident. The amounts and availability of PIP coverage vary from state to state and a reputable insurance agent will help you determine the PIP coverage available where you insure you vehicle. You should also consider “Additional PIP Benefits” which expand the coverage available for injuries you may sustain.

‘Til next time,
      Turning legalese into legal ease,
      Lewis

All contents copyright Lewis A. Bartell except where indicated. A blog is not legal advice and is not intended to substitute for consultation with a lawyer licensed in your jurisdiction. Kaplan Belsky Ross Bartell, 666 Old Country Road, Garden City, NY 11530  (516)745-1100

“Continuous Treatment”

The period of time during which you are receiving treatment from a doctor for one particular condition.

The idea behind the concept of Continuous Treatment is that while a doctor is treating you for a particular condition, and malpractice occurs, you are not required to start an action against that doctor for malpractice. The law does not want the possibility of a lawsuit to interfere with the medical treatment you might receive from the doctor. As an example, you are treated by an orthopedist for a broken wrist which first requires surgery (during which the orthopedist commits malpractice), followed by a second surgery two months later, a cast for six to eight weeks and finally physical therapy for three or four months during which time, the Orthopedist sees you to check on the healing progress. This covers a period of 7-8 months. The Statute of Limitations does not begin to run until the doctor sees you for the last time and discharges you from his care.

Knowing exactly when the Continuous Treatment doctrine will apply requires a careful analysis and is often look at on a case by case basis. If you are being treated by a doctor for more than one condition, the continued treatment for the second condition does not stop the Statute of Limitations. (The idea of not starting a lawsuit while you are in a continuous realtionship may also apply to other professional realtionships.) So if you are being treated by a doctor and believe that you are the victim of malpractice, you should immediately contact an attorney  in your neighborhood.

‘Til next time,
      Turning legalese into legal ease,
      Lewis

All contents copyright Lewis A. Bartell except where indicated. A blog is not legal advice and is not intended to substitute for consultation with a lawyer licensed in your jurisdiction. Kaplan Belsky Ross Bartell, 666 Old Country Road, Garden City, NY 11530  (516)745-1100

“Statute of Limitations”

 This refers to the time in which you must start a lawsuit to recover for damages or injuries.

The statute of limitations is the period of time , where following an accident, injury or other act which caused damage, within which you must start a lawsuit. Think of it as a ticking clock! If you don’t start a lawsuit before the clock strikes zero, your lawsuit will be dismissed by the Court without any further consideration.

Depending on where you live, there are certain things that might “toll” or “stay” the statute of limitations. Some situations which might stop the ticking clock include: infancy, certain mental conditions, and a continuing relationship with the person who injured you, which in the case of a doctor is referred to as “continuous treatment” or in the case of a lawyer “continuous representation” (more on these in another blog, so keep an eye out for that one). You should be aware that the statute of limitations for medical malpractice may be different than the statute of limitations for a car accident or a breach of contract.

Further, depending on what caused your injury or damage, there may be other filings that are required to preserve your rights which have to be done in a much shorter time period than the statute of limitations, such as filing a no-fault claim or a Notice of Claim. And depending on who you end up suing, the statute of limitations may be shortened. For example, if you sue your local government because they owned the property where you were injured, the time to start the lawsuit may be shorter than if you had the same injury on private property.

As always, if you have been injured or suffered damages, and you believe you have a reason to bring a lawsuit you should immediately contact an attorney where you live to get accurate information and advice on the statute of limitations specifically related to your circumstance as well as what other filings you might need to make and when you have to file.

‘Til next time,
      Turning legalese into legal ease,
      Lewis

All contents copyright Lewis A. Bartell except where indicated. A blog is not legal advice and is not intended to substitute for consultation with a lawyer licensed in your jurisdiction. Kaplan Belsky Ross Bartell, 666 Old Country Road, Garden City, NY 11530  (516)745-1100

When Your Child’s Injury Justifies Legal Action

As the end of school year approaches, your child is ready to trade his book bag for shorts and flip-flops. On the daily schedule is playing in the park, riding bicycles, and swimming at the local pool or the beach. As cautious and caring parents, we require our children to wear helmets for bike riding, roller-skating, and skateboarding, and also observe safety rules in and around the water. However, in spite of our vigilance, we can’t always keep our children out of harm’s way. They may be hurt due to circumstances beyond our control.

If your child is injured, hopefully it’s nothing more than minor scrapes or bruises, but this is not always the case. When your child does suffer a serious injury, your first responsibility is to get medical attention. After that, following the steps below will preserve your legal rights:

 File an accident report (read more)

‘Til next time,
      Turning legalese into legal ease,
      Lewis

All contents copyright Lewis A. Bartell except where indicated. A blog is not legal advice and is not intended to substitute for consultation with a lawyer licensed in your jurisdiction. Kaplan Belsky Ross Bartell, 666 Old Country Road, Garden City, NY 11530  (516)745-1100

“Malpractice”

We hear people use this term all the time, but what does it really mean?

The term refers to the failure by a person rendering professional services to meet the “Standard of Care”.  Generally, the  professional must exercise a level of skill and ability possessed by the average member of that profession under a similar  circumstance in the specific community.

 Where a professional, doctor, lawyer, etc.,  fails to exhibit the level of ability or competence normally possessed by a member of that profession, in that community, and an injury occurs because of that failure,  they are said to have committed “malpractice”  and the injured party may be able to bring a lawsuit to recover for his injuries.

 It is important to understand that in order to succeed in a lawsuit and recover for injuries the professional must have breached the standard of care, and that breach must have resulted in an injury. The level of proof may be different depending on where you live. If you believe that you are the victim of malpractice you should contact an attorney where you live immediately, as the time for you to commence a lawsuit varies from state to state and equally important, the time to commence a lawsuit may vary within your state depending on the type of professional services which led to the malpractice.

‘Til next time,
      Turning legalese into legal ease,
      Lewis

All contents copyright Lewis A. Bartell except where indicated. A blog is not legal advice and is not intended to substitute for consultation with a lawyer licensed in your jurisdiction. Kaplan Belsky Ross Bartell, 666 Old Country Road, Garden City, NY 11530  (516)745-1100

“Assumption of the Risk”

 

Where a person chooses to participate in an activity, 
he/she generally accepts the risks of injury normally
associated with that activity. If the person suffers such
an injury, he/she is generally prevented from bringing
a lawsuit to recover for that injury.

Recently the New York Appellate Division stated that a bicyclist did not assume the risk of being injured while riding on a paved roadway. The bicycle rider was injured when she swerved to avoid a rider in front of her that had fallen while avoiding a “lip” in the road. The “lip” in the roadway formed because of repairs being made in the roadway.

You shouldn’t take this to mean that bicycle riders never assume the risk of injury. The Court found that a mountain bike rider thrown from his bike when he hit an exposed tree root on a dirt path had assumed the risk. Hitting an exposed tree root on a dirt path was reasonably foreseeable.

In assuming the risk, an important factor will be whether you participated in a “leisure” activity as opposed to a “sporting” activity. Basically, there is no clear cut legal application of this concept. So if you have a question whether you assumed a risk, you should immediately contact an attorney where you live.

      ‘Til next time,
      Turning legalese into legal ease,
      Lewis

All contents copyright Lewis A. Bartell except where indicated. A blog is not legal advice and is not intended to substitute for consultation with a lawyer licensed in your jurisdiction. Kaplan Belsky Ross Bartell, 666 Old Country Road, Garden City, NY 11530  (516)745-1100

Welcome!

               Welcome to my Blog! It is my hope that I can present unnecessarily complicated legal terms in a simple straight forward and understandable way. I’ll always try and give examples that help to understand the concept. If you think I’ve succeeded and you find this helpful, pleased tell a friend, if you still have a question you can always feel free to email. My goal is simply to help you understand. I want to turn “legalese in to legal ease”

‘Til next time,
Turning legalese into legal ease
Lewis

 

All contents copyright Lewis A. Bartell except where indicated. A blog is not legal advice and is not intended to substitute for consultation with a lawyer licensed in your jurisdiction. Kaplan Belsky Ross Bartell, 666 Old Country Road, Garden City, NY 11530  (516)745-1100