Long Island Personal Injury Lawyer - Miscellaneous - Most Commented

"Hot Coffee"and the Evils of Tort Reform

Edward Nitkewicz — Sat, 09 Jul 2011 11:03:10 GMT

Seinfeld mocked it. Letterman ranked it in his top ten list. And more than fifteen years later, its infamy continues. Everyone knows the McDonald’s coffee case. It has been routinely cited as an example of how citizens have taken advantage of America’s legal system, but is that a fair rendition of the facts? Hot Coffee reveals what really happened to Stella Liebeck, the Albuquerque woman who spilled coffee on herself and sued McDonald’s, while exploring how and why the case garnered so much media attention, who funded the effort and to what end. After seeing this film, you will decide who really profited from spilling hot coffee.

For those who have been injured or who represent individuals injured by negligence, medical malpractice, industrial or medical product defect, or dangerous, defective and under tested pharmaceutical drugs, I urge you to watch the new HBO Documentary Film, "Hot Coffee." http://hotcoffeethemovie.com More importantly, for those of you or your clients of yours who have not yet suffered as a result of the negligence of another, please make it a point to watch this film.

In a revealing treatment of "tort reform" or as it is sometimes called, "the attempt to destroy our civil justice system") the filmmakers detail the true facts behind the McDonald's Coffee case and three other individuals who suffered at the hands of politicians, their operatives, and of course, the big business interests they represent. It is disturbing to see the responses of ordinary people when asked about "the McDonald's Coffee case," caps on damages, mandatory arbitration clauses or other issues which impact their own right to seek redress in our civil justice system. However, seeing the reactions of those same individuals when presented with the facts from the Liebeck v. McDonald's Restaurants case, like the photographs of her burns, the video taped deposition of the risk management officer who candidly admits to a significant prior history of burn injuries, or confirmation of the fact that the coffee was required by McDonald's to reach a temperature of just below 200 degrees Fahrenheit, is unforgettable.

Perhaps most disturbing is the fact that many people mistake the United States Chamber of Commerce for the United States Department of Commerce. The Chamber of Commerce is the very powerful and very wealthy lobbying group of big business and Corporate America that funds the fight to limit citizens' right to compensation through the civil justice system. The Department of Commerce is a Cabinet Department of the United States Government concerned with promoting economic growth in our nation.

Those who criticize the McDonald's jury verdict or who support "tort reform" would be well served by taking the time to see this very important film.

Originally posted at InjuryBoard by Edward Nitkewicz

"Formal silverware" and the State of New York's duty to its psychiatric patients

Edward Nitkewicz — Tue, 13 Sep 2011 10:32:00 GMT

In what a Court of Claims Judge ruled a specious defense claim, the State of New York argued that its duty to account for knives in its psychiatric hospitals should extend to silverware and not plasticware.

The New York Law Journal reported that a Court of Claims judge found the State of New York fully liable for the attempted suicide of a psychiatric patient who cliamed he was able to pocket plastic knives from the dining area because the staff failed to account for utensils after meals.

In Acerbo v. the State of New York, Judge Terry Jane Ruderman undertook an extensive evaluation of the state's obligation to its patients and detailed the specific facts pertaining to the Acerbo claim.

It is undisputed that Rockland's own written policy and procedure explicitly requires that its staff "must ensure that the complete compl[e]ment of eating utensils (knife, spoon, fork, etc.) given to the patient is returned [emphasis added]" after each meal (Ex. 14). Additionally, the staff "must ensure that the patient does not enter into the bathroom with any eating utensils [emphasis added]" (id.). Rockland's policy and procedure further addresses the potential circumstances that "a patient may have hidden the utensil on their person or in their property" and provides for conducting a search of the immediate area and possibly the patient.The issuance of this policy and procedure evidences Rockland's awareness that there is a danger posed by unaccounted for utensils because a patient may hide a utensil and then proceed into the bathroom. The potential danger posed by a psychiatric patient alone in a bathroom with a utensil is that the patient may self inflict wounds.

The Court pointedly rejected the state's "specious" argument that its own procedures did not apply to plastic utensils.

The Court rejects the argument that Rockland's written policy and procedure regarding utensils (Ex. 14) was not applicable at the time of claimant's suicide attempt in 2006 because the policy and procedure related to silverware and Rockland was using plasticware at that time. First, Rockland's own employees testified to their dining room practices which were consistent with the written policy and procedure (id.). Second, defendant failed to establish when Rockland stopped using silverware and began using plasticware. Third, the change in the type of utensils did not change the acknowledged danger posed by a missing utensil. Fourth, the policy and procedure was revised five times since it issuance in 1989 with the last revision in 2003; thus Rockland had the opportunity to address the change from silverware to plastic and did not. Finally, if any part of the policy and procedure appears to be superfluous with Rockland's use of plastic utensils, it would be only that which refers to the placement of utensils in a special container, which was used for cleaning the silverware, whereas the plastic utensils were discarded after theywere accounted for and taken to the kitchen. The Court also rejects the argument that claimant may have obtained the knives due to an extra knife placed in his packet or in the packet of another patient. These arguments are specious and, in any event, could also lead to a finding of negligence attributable to Rockland.

The clear message from the court is that the state's duty extends to untensils that cut. Period.

Originally posted at InjuryBoard by Edward Nitkewicz

The Peace Corps: "it's been a privilege flying with you, Sergio Maldonado."

Edward Nitkewicz — Fri, 22 Jul 2011 11:11:02 GMT

In the last 30 days, the evening news has been a repository of seemingly endless stories of all that is going wrong in the world. The Federal Government is dangerously close to defaulting on its debt obligations. The State Government announced that it cannot offer raises to it's judicial branch despite the fact that its has not received an increase in pay since 1999. Wars on several fronts continue to be waged with no real end in sight. The price of gas still hovers at the $4.00 per gallon price.

And then, just yesterday, I was fortunate enough to have a conversation with a terrific, quiet spoken, young man who has worked in our firm as a paralegal over the past two years. Sergio announced that he will be leaving the firm on Friday to join the Peace Corps where he will be trained to serve as an Environmental Health Volunteer.

He must, I thought, have an ulterior motive. I mean, what thirty-something single man would simply quit his job as a paralegal for the mass torts division of a nationally recognized law firm to become a volunteer? A resume building detour, perhaps? A guaranteed assignment to Hawaii, maybe?

No. This remarkable young man was motivated to help others for reasons that evoke the spirit of John F. Kennedy, the man responsible for establishing the Peace Corps.

On October 14, 1960, at 2 a.m., Senator John F. Kennedy spoke to a crowd of 10,000 cheering students at the University of Michigan in Ann Arbor during a presidential campaign speech. In his improvised speech, Kennedy asked, "How many of you, who are going to be doctors, are willing to spend your days in Ghana?Technicians or engineers, how many of you are willing to work in the Foreign Service and spend your lives traveling around the world?" His young audience responded to this speech with a petition signed by 1,000 students willing to serve abroad. Senator Kennedy's challenge to these students—to live and work in developing countries around the world; to dedicate themselves to the cause of peace and development—inspired the beginning of the Peace Corps.

Sergio was kind enough to share his motivation with me.

I made up my mind to join the Peace Corps during a trip to El Salvador last summer. I was staying in a poor neighborhood in San Salvador. The house was small, it was hot, there was rarely any running water, and the electricity went out almost every other day, but I was genuinely happy and I did not want to be anywhere else. I noticed that despite the harsh living conditions everyone I met was kind, generous, and optimistic. People would go out of their way to make me feel welcome. At that moment I decided that I was going to join the Peace Corps because as a volunteer you get the opportunity to help improve living conditions in a community even if it’s in a small way.

When I met with Sergio yesterday, I recalled the memorable line from the movie Apollo 13. As the astronauts were preparing to "splash down" near the end of their ill-fated but unforgettable journey, Commander Jim Lovell paused and informed his crew mates "Gentlemen, it's been a privilege flying with you."

Sergio Maldonado is a young man whose future aspirations include helping less fortunate people of third world nations secure access to clean drinking water and electricity. Finally, some good news. It has been a privilege knowing you, Sergio.

Originally posted at InjuryBoard by Edward Nitkewicz

More Drivers Are Uninsured As Recession Grows Deeper

Staff Writer — Tue, 17 Mar 2009 17:49:05 GMT

Chances are increasing that the next fender bender you are involved
in could be with someone without car insurance. As the recession
leaves millions of workers unemployed and pressures family budgets,
one place many are cutting is their insurance coverage.

The Insurance Research Council (IRC) estimates that by next year
nearly one in six motorists may be driving without insurance. That’s 3
million more uninsured drivers than just five years ago.

For every 1 percent increase in unemployment nationwide, the
percentage of uninsured motorists increases three-quarters of a
percentage point, IRC Vice President David Corum said. That could
result in a total of 16.1 percent by next year, an all-time high. The
rate was 13.8 percent in 2007. Based on current unemployment rate
projections, the percentage of uninsured motorists is expected to rise
to 16.1 percent in 2010.

The group examined data collected from nine insurance companies,
representing approximately 50 percent of the U.S. private passenger
auto insurance market. According to the IRC, the estimates for
uninsured motorist activity were based on a ratio of insurance claims
made by individuals who were injured by uninsured drivers to claims
made by individuals who were injured by insured drivers. The study
contains recent statistics by state on uninsured motorists claim
frequency, bodily injury liability claim frequency, and the ratio of
uninsured motorists to bodily injury claim frequencies.

New York is not in as dire shape when it comes to car insurance as it
is with the economy. The Empire State is tied for the third lowest
uninsured motorist rate at 5 percent, 4 percent behind Massachusetts. New Mexico led all states with a 29 percent uninsured motorist rate.

Travelers Cos. Inc. reports that there has recently been a mild
increase in uninsured claims and warns against dropping insurance as a
way to save money. William Pearse, the St. Paul, Minnesota company’s
vice president of product strategy and design notes that it’s equally
important to carry liability insurance that covers people in the other
car and to have uninsured motorist coverage on your policy, which
protects you if the other car is not insured. The average cost for
liability insurance in the United States is about $40 to $50 a month.
Although costs can vary, uninsured motorist coverage typically adds
from 7 percent to 10 percent to an insurance premium. Drivers without
at least liability insurance are breaking the law in all but two
states.

Originally posted at InjuryBoard by Staff Writer

Holiday Recalls: Hallmark Snow Globes, Toy Drums with Lead Paint......

Jim Forde — Tue, 23 Dec 2008 18:51:23 GMT

The Consumer Product Safety Commission has announced the recall of Hallmark Jumbo Snow Globes because of a risk of fire hazard:

www.cpsc.gov/cpscpub/prerel/prhtml09/09073.html

Also, Woodstock Percussion Toy Drums are recalled because of violation of lead paint standards:

www.cpsc.gov/cpscpub/prerel/prhtml09/09076.html

Originally posted at InjuryBoard by Jim Forde

New Limits on Medicaid(2)

Michael Greene — Thu, 18 Dec 2008 13:46:12 GMT

A recent article in the November issue of "The Suffolk Lawyer", discusses the important issue of Medicaid liens. In it, it states that "the Second Department has limited the right of a Social Services Department to recover from a personal injury settlement the monies expended by Medicaid in the care and treatment of a person with Down’s Syndrome to the period after the creation of a supplemental needs trust (SNT) and not from the date Medicaid first established the recipient’s eligibility for benefits. In doing so the court harmonized several provisions of state and federal law respecting the creation of SNTs in light of the requirements that an SNT contain repayment language and in consideration of the recent United States Supreme Court decision in Arkansas Department of Health and Human Services v. Ahlborn (547 US 268). "

The article further discusses the case, Matter of Ruben N. v. Elizabeth T., 2008 Slip Op 06997, decided September 16, 2008, which involved a person with Down’s Syndrome, wherein Medicaid paid his medical bills. Ultimately, the malpractice action settled on August 23, 2002 for $1,600,000.00, with DSS agreeing to accept $102,423.56, in compromise of the 104-b Medicaid lien, attaching against the proceeds of the personal injury action.

By effecting this resolution with DSS, the balance of the settlement proceeds were placed in a supplemental needs trust, which permitted those funds to be disregarded in any calculation of eligibility for Medicaid benefits. The supplemental needs trust in compliance with both federal, state and Social Services law normally contains language, that upon the death of the beneficiary, "the state would receive the remaining trust corpus to the total value of ‘all medical assistance’ provided by Medicaid to the beneficiary."

The party to the case died in 2003. At that time DSS demanded payment, "for all Medicaid disbursements for Ruben’s medical care during his entire lifetime, both before and after the spinal surgery resulting in the paralysis, in the amount of $632,714.22".

It was ultimately decided by the Appellate Division Second Department, to limit the monies received by DSS to the period of time after the creation of a supplemental needs trust, and not the date that Medicaid first established the recipient’s eligibility for benefits.

Originally posted at InjuryBoard by Michael Greene

New Limits on Medicaid

Michael Greene — Thu, 18 Dec 2008 13:42:27 GMT

Originally posted at InjuryBoard by Michael Greene

5 Simple Steps To Deal With Your Insurance Carrier

Michael Levine — Fri, 12 Dec 2008 14:26:00 GMT

Here are some tips you can use in dealing with insurance companies:

READ YOUR POLICY CAREFULLY: You should know exactly what is covered and how to appeal a denial by your insurance company.

BE VERY CAREFUL FILLING OUT FORMS: Even if you make an honest mistake your insurance company may seize on that as a reason to retroactively deny your coverage.

DO NOT CASH A PREMIUM REFUND CHECK: If your insurance company rescinds your insurance they may send you a refund for the premiums you paid. Cashing it may be interpreted as accepting their decision.

PUT EVERYTHING IN WRITING: Calling your insurance company is likely to be a frustrating experience, and you will not be able to prove anything that a company representative tells you over the phone. Keep records of all bills and correspondence.

CONTACT YOUR STATE INSURANCE DEPARTMENT: They may be able to help you. But they will not represent you in a private matter, so if all else fails you may need to consult with an attorney.

AND MOST OF ALL, DO NOT GIVE UP: Insurance companies count on you giving up. Fight for your rights.

Originally posted at InjuryBoard by Michael Levine

Insurance Companies Abandoning The Sick

Michael Levine — Tue, 09 Dec 2008 16:50:22 GMT

You receive the devastating news that you have cancer. It is operable, and with prompt care, you have a chance to survive. You make it through the surgery and begin chemotherapy treatments. Then the insurance company suddenly cancels your insurance retroactively. The reason? They allege you lied about something on your insurance application. Now you are left with hundreds of thousands of dollars in medical bills, unable to afford the rest of your chemotherapy schedule, and facing an uncertain prognosis.

This is the situation Patsy Bates, a 51-year-old hair stylist from Gardena, California, found herself in after her health insurance was "rescinded." Bates’ health insurance company, Health Net, Inc., rescinded her policy in the middle of her treatment for breast cancer, saying she provided inaccurate information on her insurance application.

Insurers such as Health Net and Anthem Blue Cross of California have been accused of illegally retroactively canceling, or rescinding, the policies of people whose conditions are expensive to treat. The cancellation usually happens when people are in the midst of treatment and at their most vulnerable. In April 2008, attorneys sued Anthem Blue Cross to try to stop the company from rescinding insurance policies. The attorneys claimed that "the company has engaged in an egregious scheme to not only delay or deny the payment of thousands of legitimate medical claims, but also to jeopardize the health of more than 6,000 customers by retroactively canceling their health insurance when they needed it most.

Documents disclosed at Bates’ arbitration hearing revealed that Health Net rewarded employees who rescinded coverage of sick policyholders. The company paid bonuses to employees who met cancellation goals and even commended one employee for having a "banner year" when she allowed the company to avoid "$6 million in unnecessary health care expenses." Retired Los Angeles Superior Court Judge Sam Cianchetti, who arbitrated Bates’ case, called Health Net’s behavior "egregious," saying the company "was primarily concerned with and considered its own financial interests and gave little, if any, considerations, and concern for the interests of the insured.

Anthem Blue Cross continued to rescind the policies of chronically ill patients. The company also sent letters to physicians demanding they inform the company of any pre-existing conditions they came across when evaluating patients. Physicians were outraged. The California Medical Association forwarded the letter to state regulators complaining that the insurance company was "asking doctors to violate the sacred trust of patients to rat them out for medical information that patients would expect their doctors to handle with the utmost secrecy and confidentiality."

Anthem Blue Cross eventually settled rescission accusations for $10 million in July 2008. The company denied any wrongdoing and offered to reinstate the policies of 1,770 customers. In the reinstatement mailings, Anthem offered customers $1,000 if they agreed to drop all legal claims against the company.

Originally posted at InjuryBoard by Michael Levine

Community Spirit Alive and Well in Miller Place

Michael Greene — Mon, 08 Dec 2008 15:26:52 GMT

Each spring, over the last dozen years, on the first weekend in June, the footsteps of hundereds of runners can be heard running through the streets of Miller Place, New York, a little village on Long Island's north shore.

The Joe Keany race is a testament to the hard work and community spirit of many volunteers, who have as their goal, helping to raise funds for their children's education.

Joe Keany was a standout cross-country athlete, and a 1986 Miller Place graduate who passed away in 1995 at a young age. He was also a member of the School Championship cross-country team of 1984, and still holds some school records.

Joe was also a close friend and running partner of the race rounder, a local attorney. As a result, his law firm, Rappaport, Glass, Greene & Levine, LLP, became the lead supporter.

Few races last this long. The NYC Marathon, Cow Harbor and the Shelter Island race come to mind. But with the strong continued support of the community, the race should endure for many years to come.

Originally posted at InjuryBoard by Michael Greene