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Listed below are articles related to personal injuries—car accidents, motorcycle accidents, construction site accidents, bus and train accidents, trip and fall accidents, spinal cord injuries, traumatic brain injuries (TBI), wrongful death, and a variety of other topics of interest.

When It Comes To Medical Treatment, More Is Not Better

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Mistake #5: Receiving excessive, unnecessary and useless medical treatments and diagnostic tests.

When you’ve been the victim of a personal injury, often you will be brought to a hospital for emergency care; to make certain that you are not in any danger.  After you have been discharged, you then begin regular treatment with a medical professional for your specific injuries.  If you do not need further medical care, it is likely that your injury does not warrant hiring a personal injury attorney.

Whether the doctor you see after your hospital discharge is your primary care physician, a chiropractor, a board certified specialist referred by the hospital or your PCP, or a local trauma clinic, all of these medical providers will perform the same initial assessment of your condition.  After culling all of your biological and insurance information, he or she will take a history of what happened to you in the accident and note whatever pain your are experiencing.  He or she also will take a prior medical history which is crucial in determining whether your pain is or is not a result of your accident.  The doctor then will perform an initial physical examination, touching you and asking you to move in specific ways.

Depending upon your complaints of pain and the results of the initial physical examination, the doctor may refer you for preliminary diagnostic testing such as x-rays.  All of this information assists the doctor in forming a working diagnosis of your condition.  That working diagnosis forms the basis for future diagnostic studies as well as a plan for your treatment and care.

Problems can arise when your medical provider is more interested in performing medical services and diagnostic studies with which to bill the insurance carrier than he or she is in considering what treatment you really need.  You might ask, ‘how can this hurt my personal injury claim?  After all, the higher the medical bills, the more serious your injury must be, right?  Well, no.

In fact, today we live in an age where the typical juror is naturally suspicious of personal injury claims to begin with.  They may even sit in the jury box worrying about how claims like yours will adversely affect their insurance premiums and their property taxes.  Often, they believe that we should all look out for ourselves, and not ‘blame the other guy’ for our injuries, regardless of how severe.

When this type of juror perceives that doctors and lawyers are claiming that every ache and pain experienced by their client is the result of this one particular accident, or that doctors are performing tests and treatment that may not be relevant or helpful to the patient’s care, the juror begins to doubt their professional credibility.  If your doctor loses credibility, so do you, and so does your personal injury case.

Furthermore, excessive testing and treatment is more difficult for you.  Not only will the process take up enormous blocks of your time, but it also be harder for you to remember all of the tests and treatments you have had when it comes time for you to testify.  You should ask yourself this question: if, during your accident you have injured your neck, right shoulder and right elbow, why would a reputable physician x-ray your left ankle or refer to for an MRI of your lower back?  If it doesn’t make sense to you, it certainly will not make sense to a jury or an insurance carrier.

If a doctor does not require the results of a particular test when developing your course of treatment, then why should you spend the time and (no doubt) stress getting it done?  And, why should you or your insurance carrier pay for it?

Now, I would suspect that everyone experiences anxiety during and after a serious accident of any kind.  However, if, after a time you have gotten over the anxiety, fear or depression, does it really make sense to treat with a psychiatrist or psychologist every week for six to 12 months?  Not really.  In fact, this excessive treatment could look to a juror and an insurance carrier as your attempt to “build a case” where there is none, even if you have been seriously injured.

Remember also that at your trial (should you have one), your doctors may be called to testify on your behalf.  They will be asked to describe as well as justify every procedure they have ordered for you; every specialist referral will be scrutinized.  If your doctors cannot adequately explain the reasons for their decisions and treatment plans, their credibility will be called into serious question.  Woe to the doctor who cannot explain how he or she was paid thousands, if not tens of thousands of dollars for tests and treatment that he or she did not have a sound basis for ordering.

As I have said many times before, your personal  injury case is as good or as bad as your medical records, your doctors’ narratives, and the treatment that your  doctors prescribe for you.

Interview With Alexander E. Weingarten, M.D., Comprehensive Pain  Management Associates

What is pain management? Pain management is a medical specialty for treatment of acute, new pain, as well as chronic pain  (which is pain lasting longer then two to three months).

Under what circumstances do patients come to your practice? We see patients who typically have had pain for over a month.  In most cases, their pain has not responded to simple oral analgesics and physical therapy, and they may require a more aggressive approach.

How do you distinguish your practice from others in your field? Unlike many other pain management centers or practices, all of the physicians at Comprehensive Pain Management Associates are board certified anesthesiologists.  We have subspecialty certification in pain management (both degrees through the American Board of Anesthesiology).  Aside from our exemplary  medical credentials, our doctors provide a welcoming and understanding environment, particularly crucial for patients suffering from severe pain.

Why is consistent medical care important for traumatically induced injuries? It is critical for provide consistent medical care (specifically pain management) early on in order to avoid permanent pain issues for the patient.  It has been our experience that a multimodality, aggressive approach to alleviating pain, along with physical therapy, clinical care, and patient acceptance achieves better results.

If all single modalities fail including oral analgesic, then interventional pain management procedures (i.e., epidural steroid injections and trigger point injections) may be warranted.

Comprehensive Pain Management Associates, 2001 Marcus Avenue, Suite S20, New Hyde Park, NY (516) 358-4673, 121 Eileen Way, Syosset,  NY (516) 496-4964

Motorcycle Trivia: More Harley Davidson History

During the Great Depression of the 1930’s, Harley-Davidson Motorcycles began painting the ‘eagle’ design on all of their gas tanks.  This marketing plan was put into place to stimulate additional sales during this historically difficult economic time.

Also, in the 1930’s, Harley-Davidson’s biggest (and only) American competitor was Indian Motorcycles.  And this would be the case until the 1950’s, when the cruising market began to expand.

One more thing . . . the 1930’s saw the introduction of the EL, an overhead valve, 61 cubic inch power motorcycle.  This innovative bike was nicknamed “Knucklehead.”

Settling  A Lawsuit Versus Going To Trial

As a New York trial attorney, I am often asked which option is preferable: settling or going to trial.  In an ideal world, settling a personal injury lawsuit is more advantageous for the client, provided the offer by the defendant is fair and reasonable.  By settling, you can avoid the stress, the personal intrusion, the time spent and the unpredictably that comes with a jury trial.  In addition, unlike a trial, once a settlement is agreed upon there is no turning back.  The decision is final.  On the other hand, when you go to trial, the defendant has the right to appeal which can add months or even years to the process.

However, unfortunately, we do not live in an ideal world.  Many times, regardless of how serious the accident or injury, defendants (and their insurance carriers) are uncompromising and the likelihood of reaching an impasse is quite high.  In situations like this defendants either make no settlement offer at all, or they make one that is ridiculously low.  Under either of these circumstances, and assuming that a client has a relatively strong case (meaning, solid medical substantiation), a trial is unavoidable.  That is why knowing the background of your attorney is so important.  Whether your case goes to trial or settles, your attorney should have the experience, the education, and the professional success that you need.  Remember, in a personal injury case, you most often are facing large insurance carriers with plenty of financial backing.  You need an attorney who has a history of fighting them and beating them at the negotiation table and in court.  The best way to secure a favorable settlement is to be prepared to try your case to verdict.  Once your adversary is convinced you will take a verdict, a settlement becomes more likely.

Legal Talk – November/December 2011

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Preparing For The Deposition

Don’t look upon a deposition as a stressor.  Rather, look upon it as your side’s opportunity to question your opposition – or the individual responsible for your injury – under oath, before a court reporter.  Everything said on record during the deposition is recorded, and that becomes the transcript, an invaluable tool for your attorney.  Depositions generally are taken for three reasons:

•It is a discovery tool used by attorneys to obtain information about you, how the accident occurred and your injuries;

•It is used to “lock your story in” so you cannot change i at the time of trial and surprise your adversary;

•It is used by counsel to evaluate your credibility and likability.

If your case does go to trial, the sworn testimony given at deposition is accorded the same weight and credence as if it were given in the courtroom.  That’s why a deposition can make or break your case.  If you give a strong deposition, it will help your attorney posture your case for settlement.  If you give a poor performance at deposition, settlement can be more difficult.  More significantly, a bad deposition, may cause your case to be dismissed before trial or make it very difficult to give a convincing testimony at trial.

The key to a strong performance during deposition is preparation.  Your attorney should spend a lot of time with you before you submit to questioning by opposing counsel.  He or she should review the basic guidelines of how to conduct yourself and how to best answer the questions.  Your attorney should then review with you the types of questions that can be expected, and help to refresh your memory to the specific facts of your case.

The Guidelines For Deposition Testimony

First, the less you say during the deposition, the better.  Remember that the deposition is not the time for you to “tell your side of the story.”  Rather, it is a time to answer specific questions.  It is important to remember how a deposition will be used at trial.  When you testify again at trial (if it comes to that usually over one year later), you will convey the same story but will want to tell it with more details and flourish.  However, everything you say at trial must conform to what you said earlier at your deposition.

If there is a conflict in your testimony, you will be cross-examined on the inconsistencies and opposing counsel will attempt to make you look either like a liar or like someone who is confused, at the very least.

Human beings rarely tell the same story twice using the same words.  Lawyers work with words and will emphasize the differences in your testimony.

So logic dictates that the fewer words you have on paper (in the transcript), the easier it will be for you to testify at trial in full detail without contradicting your previous testimony.

Second, if you can answer the question asked of you with a simple “yes” or “no,” do so.  If the lawyer asking the question wants more information, let him or her ask you for it.  If you need to provide a brief explanation, give one.  But, make it brief – one short sentence will suffice.

Third, if the lawyer questioning you asks for one piece of information, give that one piece of information.  For instance, if he or she asks you what color shirt you are wearing, state the color, not where and when you bought the shirt and how much it cost.  If the lawyer asks for more than one piece of information in one question, your lawyer should object to the question.

Fourth, if your lawyer objects to a question, do not answer that question until your lawyer instructs you to do so.  If you do not understand defense counsel’s question, say so and he or she will rephrase the question.  Never, ever guess at what a question means.

Also, never guess at the answer to a question.  If you are not sure of the answer, communicate that to the attorney.  If you do not remember the answer to a question, say, “I do not remember.”  If you do not know the answer to a question, say, “I do not know.”

It is crucial that you understand the difference between not remembering and not knowing.  If you never had the information in your brain, then you do not know.  Nothing at all can be done to bring that memory back because you never had the knowledge in the first place.  However, if you used to have the knowledge but have since forgotten it, then you do not remember.

Fifth, be polite and (under no circumstances) argue with the opposing attorney.  It is your responsibility to answer questions.  It is your attorney’s responsibility to argue with his adversary, if necessary.

Sixth, speak up.  Remember, a court reporter is typing everything you say and only what you say, so you must speak your answers clearly.  Nodding your head or gesturing with your hands will not be recorded in the record.  Do not say “uh-huh” since the court reporter will not be able to tell whether you mean yes or no.  And, let the lawyer finish asking the question before you start to answer because the stenographer can only type one voice at a time.

Finally, do not think out loud.  Take your time before your say anything.  When you are ready, give your short, concise answer.

When It Comes To Testifying In Court, Honesty Is The Best Policy

Many of the same principles for testifying in a deposition also apply to testifying in court before a judge or jury.  The number one principle everyone should remember whether testifying as a plaintiff or a defendant is: tell the truth – always.  No doubt your attorney will not want you to offer more information than a question asks for, but he or she should advise you to answer every question honestly.  Not only is that the right thing to do, but it also prevents the opposing attorney from “catching” you in a lie.  Your honesty is a large part of how you are perceived on the witness stand and goes along way towards supporting your case.

Sometimes witnesses appear hesitant or apprehensive because they have not understood the questions posed by the examining attorney.  Apprehensiveness also may be perceived as dishonesty so remember to always wait a few seconds before answering every question.  If you aren’t clear about a question, ask the attorney to clarify it.  Testifying in court is serious business.  Therefore you have the right (and the obligation) to make sure you understand what’s being asked of you and to respond as best you can.

If you don’t know or can’t remember an answer, simply say “I don’t know” or “I don’t remember.”  None of us can be expected to remember every single detail of an incident, particularly if that incident occurred months or even years ago.  Admitting you don’t know or don’t remember is a perfectly honest answer, and is infinitely better than making it up.  Before you testify, your attorney should spend a great deal of time refreshing your memory about what you said in your deposition.  If you answer a question without being sure about it, that answer could be inconsistent with your previous testimony.  Remember, inconsistency can have an adverse effect on your case.

Finally, while testifying in court is your opportunity to tell your story, you must remain calm, polite, and cooperative.  Try not to get emotional, and under no circumstances should you become adversarial with the opposing lawyer. – that is your lawyer’s job.

Interview With Vincent P. White, Esq.

Under what circumstances should an individual file for bankruptcy?  An individual with debt but no significant assets is generally well suited to Chapter 7 Bankruptcy (Discharge of Debt) as long as they do not have a large discretionary income left over after meeting their obligations each month. We are able to help individuals with significant assets as well. If they have assets, but feel they are falling further behind on payments each month they are a prime candidate for a Chapter 13 Bankruptcy.

What are the benefits and detriments to filing bankruptcy?  Benefits: The full or partial discharge of your debt through bankruptcy can grant you a blank slate on life; commonly, a swift and decisive bankruptcy will cause less harm to your credit score than continued late and missed payments to your creditors; it is possible for an individual with a 700+ credit score to exit bankruptcy in the 600+ range; credit can be rapidly rebuilt with care and attention; you can stop collection calls once and for all  (if they keep calling, the Bankruptcy Trustee will sue the debt collectors for you):  and, you save your car or save your home by putting your foreclosure on “pause.”  Detriments: Vacation Homes, Expensive Boats and Luxury Properties cannot always be saved during a bankruptcy; a loss of approximately 100 points from your credit score; and you will be unable to go bankrupt again for 8 years.

What effect does filing bankruptcy have on someone with an active personal injury claim?  The bankruptcy estate may own some portion of your claim. A bankruptcy trustee will work with your personal injury attorney to establish a settlement that benefits the estate and the debtor both.

What distinguishes your firm from all others? The average Bankruptcy attorney will not even appear at his or her clients’ Creditors’ Meeting.  We feel that not appearing with the client leaves the client exposed and unprepared. Instead, we meet with the client prior to the Creditors’ meeting in order to prepare them for questioning and are present during the meeting to provide advice, clarify questions and support our clients. The White Rose Group routinely handles Federal litigation. When a bankruptcy becomes complicated, and litigation results, many bankruptcy attorneys are not qualified or prepared to continue representing their clients.  But our comfort level in the Court room extends to the Bankruptcy Court.  We appear with you and protect your interests every step of the way. We are even able to repair Bankruptcies that have been mishandled by other firms.  www.WhiteRoseLegal.com

Motorcycle Trivia: Harley Davidson 100 Years Ago

2012 marks the 100th anniversary of breaking ground on the construction of the Harley Davidson headquarters and main factory in Milwaukee, Wisconsin.  At the time, the company had been in existence since 1908, but the idea of Harley Davidson actually began in 1901.

For over 100 years Harley Davidson has been an American icon – the ultimate “cruiser” motorcycle.  In fact, by 1917, nearly one-third of all Harley Davidson bikes produced were manufactured specifically for the U.S. Military.  By 1918, that number jumped to over one-half.  In fact, did you know that after the Armistice was signed, Corporal Roy Holtz of Chippewa Falls, Wisconsin, the first American to enter Germany, was riding a Harley Davidson motorcycle?

 

The Noll Law Firm Legal Talk—September/October 2011

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WHAT IS THE DISCOVERY PHASE OF LITIGATION?

Discovery is just that—it is an opportunity for both plaintiff’s attorney and defendant’s attorney to learn new facts or verify known facts pertinent to the personal injury case.  It is the beginning of the entire litigation process where both parties get to exchange information that sometimes can change the dynamics or the strategies of each opposing side.

The Process

Discovery begins when the defendant answers the lawsuit and serves a demand for a Bill of Particulars, medical records, reports and authorizations. As plaintiff’s attorney, I would serve a Notice of Discovery and Inspection to the defendant.  Basically, this is a list of the information that I need in order to proceed with the case.  While this is standard practice, you can tell quite a bit about your attorney by how thoroughly he or she handles this phase of the process.

For instance, in an automobile accident case, there is standard information a plaintiff’s attorney would require such as your doctor’s treatment notes, test results, all medical records, accident reports, witness identification, hospital records, and police reports.  Your attorney should have most of this documentation before the lawsuit is filed. However, a good attorney’s job is to dig deeper, and seek out facts that further support a client’s claims.  Sticking only to the basics of Discovery could lead to overlooking significant evidence.  Suppose the person who hit your car and caused your injuries knew his car needed new brakes?  That is something that could have an impact on your case.

The point is, your attorney should use the Discovery Phase to your very best advantage.  Each case is different and Discovery should reflect that. Once Discovery has been served, attorneys on both sides do have the option of objecting to any demands for information they feel is irrelevant or unnecessary.  Although I always hope for a speedy response from the opposing attorney, sometimes he or she will ask for additional time to fulfill my requests.  In that case, I make sure to move things along and push the defense for a timely submission of information.  The court always gets involved by issuing a preliminary conference or case scheduling order where deadlines are set for the completion of document discovery, depositions and medical examinations.  In our next issue, we will discuss the single most important aspect of discovery—the deposition.

What Is A Wrongful Death Suit?

When you lose someone you love prematurely due to someone else’s actions, no one can ease your pain.  But, wrongful death suits at least allow you the opportunity to hold the person responsible accountable for his or her actions, and obtain fair compensation for your family’s financial loss and the conscious pain and suffering endured by your loved one.

A wrongful death suit can have different applications.  For instance, an individual can bring a wrongful death suit for negligence that resulted in the death of a loved one (such as medical malpractice); for a deliberate act that resulted in the death of a loved one; or for recklessness (such as reckless driving) that resulted in the death of a loved one.

Although no amount of money ever could make up for losing someone you love, a wrongful death suit can sometimes help you obtain monetary compensation when you need it the most. In New York state, for example, you may be compensated for any costs you incurred while caring for your loved one including doctor bills, nursing care, hospital care and funeral expenses.

But, in cases involving the city, state or local government, or an entity owned and run by the city, state or local government, you usually have only 90 days from the date of the incident to file a notice of claim.  Therefore, you should not waste any valuable time.

Be sure to bring all important documents with you to your attorney’s office including the original death certificate; the will (if one exists); copies of medical and/police reports; proof of your expenses; the names and addresses of family members; and your loved one’s tax returns.  Additionally, if you have had an autopsy performed, bring a copy of the results with you.

When you select your attorney, be certain that in addition to being a skilled trial attorney, he or she also is someone you feel comfortable with. That is crucial during a time of loss.  At The Noll Law Firm, we insure our clients that we always are there for them – to answer all questions they may have or just talk, if they need to.  We also have access to a trusted group of professionals: estate attorneys, accountants and financial planners that can help you through what is probably the worst time in your life.

New York also allows family members (generally spouses and children) to seek compensation for what you and your loved one might have had in the future such as income your loved one would have earned, benefits, and even loss of companionship.

Where To Begin

If you suspect that someone you love died due to negligence, the first thing to do is speak with an attorney knowledgeable in wrongful death suits.  Keep in mind that in New York, you generally have two years from the time of the incident to file suit.

Interview With David Taylor, Diefendorf Capital

What distinguishes you from the multitude of financial planners in the metropolitan area?

We manage all three dimensions of a family’s wealth: personal, financial and social.  It’s true that for most people financial assets are a critical part of their wealth management, but we have found that integrating one’s personal and social wealth into a multi-generational family wealth plan, is the best way to protect and perpetuate family wealth through multiple generations.

What financial planning advice do you have for the family that lives paycheck to paycheck?

Remember: the success or failure of your savings plan is not predicated on your rate of return, but the methodology behind it!  Most financial decisions come down to exercising good stewardship, whether you have $10m or $1k, the principals stay the same.  Being systematic in making payments, whether it is savings or debt reduction, is a good way to take control: “random behavior equals random results”.  Few people are able to make a one-time savings contribution at the end of the year, but most thrive under a monthly, automated structure.

 Do you have any suggestions for personal injury clients who receive a lump sum award at the end of their case?

Don’t be a statistic!!  Unfortunately when most people receive a lump some of money they squander it within three years.  In a case like this a great deal of thought needs to be applied to present and future income needs and often, the lump sum is just enough to support that.  My advice would be not to make any big purchases or decisions until a comprehensive financial plan has been put together to understand the full financial picture. Contact David at: Diefendorf Capital, 516-759-3900 Ext. 1008, Email: David@DiefendorfCapital.com, Website: https://www.DiefendorfCapital.com

How To Buy The Safest Riding Helmet

When it comes to purchasing a motorcycle helmet, the highest price tag doesn’t always equate with the safest product.  If you’re like me (that is, someone who enjoys the ride, but does not use his bike for everyday transportation), you probably don’t know everything you need to know about helmets. (And, there’s a lot to know.)

For example, some helmets are made of fiberglass, and some of carbon fiber.  There are half helmets, open face helmets, and even skull cap helmets.  There are helmets with and without visors.  And, of course, there are helmets made specifically for men and specifically for women.

When you shop for a motorcycle helmet, the first thing to consider is the right fit.  If your helmet doesn’t fit properly, it certainly won’t protect you.  Make sure it fits securely on your head, and that it is comfortable.

Comfort is key as you don’t need to be adjusting your helmet while you’re riding!  So, try it on and keep it on for a while, just like you do when you invest in a good pair of shoes.  Consider the type of helmet that best suits you—full face, half or skull cap, for example.  For the ultimate in protection, most “experts” recommend the full face helmet with a shield.

Perhaps the most important thing to consider when purchasing a motorcycle helmet is whether or not is is certified by the Department of Transportation. If it isn’t certified by DOT, walk on by.  Of course the aesthetics of your helmet is a question of personal taste, and you’ll find a tremendous variety of designs out there.  Safe Riding!

What You Should Know About IME’s

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An interview with John W. DeHaan, partner, DeHaan Busse LLP

Q. For those who may not know, please explain what an IME is all about.

A. If you become disabled or injured, one of the things the insurance carrier may demand is that you submit to an Independent Medical Examination, or IME. Most people assume that this medical examination is impartial because the word independent is used in the title. However, that could not be further from the truth. In fact, it would be a lot more Continue reading →

Announcing…The Dirty Dozen

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The Dirty Dozen by Richard NollLast month I did something I’ve wanted to do for several years now – I published my first book – The Dirty Dozen: 12 Mistakes To Avoid In Your New York Accident Case. In it, I outline 12 major errors people tend to make when they’ve been injured in an accident, and then need to sue insurance companies for compensation. This is the same information I share with my clients.

It occurred to me that if people knew how to protect themselves before Continue reading →