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New York Personal Injury Law Blog
Published by The Law Office of Mark A. Siesel, Esq.

• New York Car Accidents--Distracted Driving A Serious Problem
  

  According to a study by the Network of Employers For Traffic Safety, distracted driving is a factor in 25% to 30% of all car accidents, or 4,000 car crashes every day. As hard as it is to believe, drivers make an average of 200 decisions for every mile traveled, making it all the more critical that your attention is on the road, not on that important meeting you are heading to or a cell phone call you need to make in the car. The same study found that distracted drivers fail to recognize potential safety hazards on the road and react more slowly to traffic conditions, decreasing their margin of safety.

  To know if you are driving distracted, take the following test: Have you ever slammed on your brakes because you didn't see the car in front of you stop? Run a stop sign unintentionally? Forgot entirely that you drove from one place to another? If so, you have been "driving while distracted."

  The study identified the percentages of distracting activities that drivers engage in: 96% talk to their passengers; 89% adjust vehicle climate and radio controls; 74% eat a meal or snack; 51% use a cell phone; 41% tend to children; 34% read a map; and 19% groom themselves for work.

  It is certainly a given that you will be speaking with your children in the car, but I have seen people shaving, putting on makeup, reading a map, making a cell phone call with no hands on the wheel, adjusting their radio, and turning around to speak with their passengers on many occasions, and have had to avert numerous wayward drivers due to these activities.

  The best advice is to eat that snack, make that call, comb your hair and get your directions before getting on the car, so we can all be safer on the roads!

• Westchester County Malpractice Verdict Against Medical Center
  

  On December 12, 2008, a jury in a Westchester County medical malpractice case awarded a 7 million dollar verdict to the family of Theresa Capwell, an Orange County mother of three who died on September 10, 2001. Ms. Capwell had been admitted to Westchester Medical Center on September 18, 2000 complaining of abdominal pain. Apparently, although her symptoms indicated that she was suffering from pancreatitis, an inflammation of the pancreas, doctors at the hospital instead ran tests for various types of cancer, and disregarded test results which showed that Ms. Capwell did not have the disease.

  When the inflamed pancreas was not treated, Ms. Capwell suffered complications, and was placed on a breathing machine one week after admission to the hospital. The breathing machine caused an accumulation of air around the lungs, which prevented the lungs from expanding and contracting. Had doctors at the hospital used a chest tube to drain the air around the lungs, tragedy could have been averted, but instead, Ms. Capwell was kept attached to the ventilator, and went into cardiac arrest. She had no oxygen for approximately 12 minutes, causing irreversible brain damage, and Ms. Capwell died 11 months later, unable to speak or leave her bed.

  Westchester Medical Center vowed to appeal the verdict, which came after a three week trial and one day of deliberations. Ms. Capwell's three daughters were 7, 9 and 11 when she died back in 2001.

  According to the National Institutes of Health, about 210,000 people are admitted to U..S. hospitals annually for treatment of acute pancreatitis. With correct treatment, the condition usually resolves within a few days.

• U.S Supreme Court Deals Large Blow To Big Tobacco
  

  The United States Supreme Court ruled this past Monday that smokers may sue tobacco companies for fraud in the marketing of "light" cigarettes. In a surprising 5-4 decision considering the conservative, pro-business nature of the Court, the Supreme Court determined that several Maine residents had been deceived by Altria and Philip Morris USA into believing that light cigarettes deliver less tar and nicotine to smokers than regular cigarettes. Although it is true that the light cigarettes do have less tar and nicotine than regular cigarettes, smokers apparently compensate for the difference by taking larger puffs, smoking more cigarettes or inhaling more deeply.

  The plaintiffs sued Philip Morris under the Maine Unfair Trade Practices Act, claiming that they had been injured by the deceptive advertising and marketing of cigarettes such as Marlboro Lights. The Supreme Court had to decide whether the plaintiffs had the right to sue at all considering the Federal Cigarette Labeling and Advertising Act, which was enacted in 1965 and required tobacco companies to place warnings on their packaging and advertising. The federal law had prohibited the states from making their own similar laws as to smoking and health based on the United States Constitution's Supremacy Clause, which states that when there are conflicts between federal and state laws, federal laws must prevail. The majority opinion, written by Justice Anthony Kennedy, determined that the Cigarette Labeling and Advertising Act was intended to prevent states from making their own laws about health problems from smoking, not to pre-empt laws such as Maine's which establish a general responsibility not to deceive consumers.

  Naturally, the four judges in the minority, Scalia, Roberts, Alito and Thomas, sided with big business in claiming that that the Maine statute was essentially an attempt to get around the federal statute, and was instituted only to regulate smoking and health, not the deceptive business practices of Philip Morris. In a major victory for plaintiffs around the country, the decision will allow dozens of similar lawsuits to proceed in other states. Hopefully, the case will also start a trend by which ordinary Americans will be successful in holding corporations accountable for their dangerous practices.

• Accurate Hospital Charts--Vital To A Successful Personal Injury Case
  

  In New York accident cases, the hospital chart description of how an accident occurred is tremendously important in a successful settlement or jury verdict. What I have seen over the last several years is a carelessness, or in some cases intentional effort by emergency hospital personnel to minimize, downplay, or simply disregard the patient's description of how she or he was injured, with a serious negative impact on the client's case. Three examples are instructive. In a Bronx County slip and fall case, our client suffered a severely fractured right arm when she slipped and fell walking down a flight of stairs. The cause of the accident was the lack of a proper handrail, coupled with stairs which did not comply with the New York State Building Code. When the client arrived at the hospital and informed the triage nurse what had happened, the nurse wrote the following: "While walking down the stairs, she missed a step and fell to the bottom of the stairs." Not only was this inaccurate, but it of course implied that the fault was the patient's rather than the restaurant's for failing to have a stairway which met building code requirements. Luckily, in this case, we prevailed, but the case was defended through trial as the defendant's insurance company relied on the inaccurate description of the accident in the vain hope that a jury would blame our client for the accident.

  Similarly, in a Brooklyn slip and fall accident, our client tripped and fell on a missing piece of concrete on an outdoor patio while at a engagement party, and suffered torn ligaments in her knee which required two surgeries to repair. The emergency department's description of the accident: "Recreational injury." This is an example of the damage emergency room personnel can cause to a personal injury case if they do not accurately record how the accident actually happened. Insurance claim representatives and defense attorneys rely heavily on the initial description of accidents in hospital charts, and if that description, as in this case, is both inaccurate and negates any responsibility on the defendant's fault, this has the effect of preventing an early settlement and extending litigation. Once again, we won at trial, but this was a case which never should have reached that stage.

  Most recently, in a Westchester County car accident case, (which is presently being litigated), our client suffered a torn rotator cuff when another car went through a stop sign and struck the driver's side of our client's car. As our client was taken from the scene by ambulance before the police arrived, the police report does not contain our client's version of the accident. The emergency room nurse, despite being told by our client that the other driver disregarded a stop sign, wrote: "Patient injured in an intersection accident." This vague description, without an