March 21st, 2010

Health Care Bill: Benefits For Personal Injury Victims


The health care reform bill should be a big benefit to personal injury victims. Traditionally, those people most put at risk after accidents were the middle class uninsured. Poor people have Medicaid to fall back on and others have private insurance. Now there will be an additional 32 million with coverage.

While in theory auto accident victims have had No-Fault insurance in New York to protect them, and the bill shouldn’t matter, that is theoretical only. In New York, insurers have long enjoyed a reputation for cutting off benefits to victims after sham medical exams by “independent” examiners hired by the insurance companies. These doctors are anything but independent. Victims are often told that they aren’t injured, despite the pain they are in and their restrictions of motion. Or that the pains that they have are “preexisting” despite the fact that they felt fine before the accident.

Medical malpractice victims, of course, don’t even have the No-Fault.

So with more of the victims covered by their own insurance, we are likely to see these positive effects, the first of which is obvious and the second two more subtle, but most definitely important:

First: People that were previously left to the mercies of existing no-fault laws and the spotty medical care that they provide can continue to get care and, to the extent treatment benefits the quality of life, be healthier.

Second: If an individual believes others are at fault and starts a lawsuit, the injuries that they suffered will be documented by treating medical practitioners. Currently, if a patient stops treating, that is an issue that defense attorneys love to harp on in front of juries. Without having their doctors treating them, plaintiffs must tell juries that the reason they aren’t treating is that they can’t afford it. And with that, their credibility can be attacked, which is far easier than attacking the credibility of multiple physicians, because the plaintiff is an “interested party” in the outcome of the suit.

Third: The existence of continuing health care hamstrings liability insurers that oft times will rush in to accident victims with low ball offers before they have consulted with attorneys. When there is no other insurance or No-Fault gets cut off, and a victim that may not be able to work, a $5,000 offer may be desperately needed money. With the injured already knowing they are covered, they won’t be as vulnerable, and will be in a better position to sit back and objectively evaluate their situation.

So, all in all, this is a good situation for those who have been injured, beyond the most obvious point of simply being able to obtain health care.

 

March 19th, 2010

Name That Law Blog!


A number of posts have now appeared in the legal blogosphere about moving blogs to new platforms and potentially re-naming them. Marketing folks like to call that re-branding.

I’m one of those people wrestling with a move. Blogger is forcing me to change. Blogger is the platform I’ve used since I went live in 11/06 and they will no longer use FTP publishing. I’m not certain what that actually means, but I do know that I either have to let Google be the host of my blog or I have to move on to another blog platform.

I’m not happy about moving, but if I have to move I want to make the most of it. One thing to consider is features, and the one lousy part of Blogger is that I can’t edit comments. So if someone adds something interesting, but throws in gratuitous vulgarities or links, I can’t cut it out. It’s all or nothing.

[Others who are wrestling with the moving/naming issue and commenting on it are Venkat Balasubramani @ Spam Notes; Bob Ambrogi @ Law Sites, and again; Ron Coleman @ Liklihood of Confusion; Bruce Carton @ Legal Blog Watch]

But the bigger issue is the name of this blog. If I have to move, I might as well wrestle with the name of this joint and try to upgrade everything at once. When I started in 2006, I figured that the format of [region][practice area] would quickly communicate what this blog was about. The name certainly does that.

But the name does more than communicate a topic. The format seems, to many, to scream self-promotion. That is likely the sense many get before a word of content is even read. So every post represents an uphill battle against that notion, and forces me as the writer to be far more wary than others might be when mentioning their own practice. I have no doubt that there are some bloggers out there that would rather stick needles in their eyes than link to a site with a name like the one I use.

I didn’t give all that much thought to the name when I started, with one exception. If you look at the URL you will see it is different than the blog name. I was going to first use the word attorney in the title, then made a last minute edit to use “law” instead. Because the blog shouldn’t be about me, but about the subject.

Kevin O’Keefe doesn’t think names such as mine are a problem, writing in a post entitled: Focus on engagement, not the title of your law blog, for blogging success:

The importance of the name of a blog is overhyped. Listening to your target audience and engaging them in a strategic fashion is key. You’re then known by your name (the one your Mom and Dad gave you), not the name of a blog.

While O’Keefe has a lot more experience at the blog name game, I still disagree with him. I think that the name can turn people off very quickly and folks won’t ever see the content. As as often been said, you only get one chance at a first impression.

And by choosing a name such as mine, you also might have to worry about rip-off artists like FindLaw‘s wretched dreck-blogs, even if your name has acquired distinctiveness over the course of 3+ years of blogging. All of a sudden you risk confusion with a blog that happily uses the name of a dead child for SEO benefits. FindLaw is enough to make your skin crawl, and it continues to amaze me that anyone trusts the company to market for them. FindLaw, of course, isn’t the only scummy company out there. You may think I’m digressing, but if you see your name get ripped off, like FindLaw did with me, then you’ll understand what can happen down the road to your name.

So back to the name game. The goal, if I do this, would be to retain as much of my blog name as possible, yet add some other distinguishing element to personalize it a bit more. Some names I’ve toyed with:

Turkewitz on Personal Injury Law:
A New York Attorney’s Perspective

Turkewitz on Personal Injury Law and Practice:
A New York Attorney’s Perspective

Turkewitz
New York Personal Injury Attorney

Turkewitz on Torts:
The New York Personal Injury Law Blog

The Turkewitz Times
Perspectives of a New York Personal Injury Attorney

Turk’s Torts

Turkfeasor

Tortewitz

They each have three things in common:

First: They use my last name — I think there are only four other Turkewitz lawyers in the country and I’m related to three of them.

Second: They retain some of the “brand” that I’ve already built around the subject area; and

Third: They all suck, big time.

If anyone has any ideas on how to deal with those issues, I’m wide open to them.

 

March 19th, 2010

Plaintiff is entitled to summary judgment on the issue of liability despite the fact that his own negligence might remain an open question

This case came down in February while I was on vacation and deals with several interesting issues relating to auto accidents, only one of which I’ll discuss here.

In a motor vehicle there are often multiple causes. In this case, it was a red light at issue. A truck and motorcyle collided. The plaintiff-motorcyclist moved for summary judgment, and the court denied it because he might have also been negligent.

This was error and the Appellate Division (First Department) reversed in Tselebis v. Ryder Truck Rental, holding that when a plaintiff moves for summary judgment, s/he is “entitled to summary judgment on the issue of liability despite the fact that his own negligence might remain an open question.”

In other words, it is not necessary to establish defendants’ negligence as the sole proximate cause of injuries in order to make out a prima facie case of negligence. To establish a prima facie case, a plaintiff “must generally show that the defendant’s negligence was a substantial cause of the events which produced the injury.”

Big difference. If a jury finds that the plaintiff was also at fault, then an apportionment can be made, but that does not preclude summary judgment.

Also in this decision is discussion of the requisite elements of the Noseworthy Doctrine (lower standard of proof due to death, or incapacity that prevents recollection of events) and culpability for entering an intersection against the red light.

For more discussion of those, head to Lou and the Law.

 

March 17th, 2010

City of NY Gets Whacked Again With Sanctions By Appellate Court

The City of New York is on a roll. But not the kind they like. After years of favorable treatment by the courts in the face of repeated discovery delays, it seems as though the appellate courts have had enough of they city’s dilatory tactics and refusal to obey court orders.

In Elias v. City of New York, the Appellate Division (First Department) hit the city yesterday for $7,500 in sanctions. According to plaintiff’s counsel, Charles Gershbaum, the city blew through five different discovery orders in this personal injury matter. Rather than simply accept the lower court’s new order (a sixth order, to comply with five old ones), an exasperated Gershbaum took the matter up to the appellate court, on the legal theory that enough is enough.

And the First Department responded by modifying the lower court order to smack down the city again.

It was just three months ago that 18 of the 20 appellate judges of this same appellate court took the City’s Corporation Counsel, Michael Cardozo, to the woodshed. They called Cardozo “imperious” and “insulting” for having published a top 10 list of recommendations on how the courts could be made more efficient and asked that “Judges must be made more accountable.” He had a variety of “performance measures” in mind.

Well, it seems that the appellate courts have performance measures in mind too, notably the lax performance of the City’s lawyers. The irony of Cardozo’s complaint was not lost on anyone.

It was only one day after Cardozo tried to spank the judiciary last December that the Second Department hit back, with its decision in Byam v. City of New York where the city’s answer was struck due to “willful and contumacious conduct” that the court inferred “from their repeated failures, over an extended period of time, to comply with the discovery orders, together with the inadequate, inconsistent, and unsupported excuses for those failures to disclose,” for a case going back to 1997.

While the decision yesterday in Elias was brief, it brought back echoes of the First Department’s letter of response to Cardozo, where the justices wrote that:

A vast amount of inefficiency impeding the resolution of litigation is also created by the city’s oft-demonstrated cavalier attitude toward its discovery obligations. The city’s almost routine failure to timely and fully cooperate with its discovery obligations, even in the face of repeated court orders, is regularly confronted by city part judges attempting to solve the city’s intransigence.

That letter had noted that, “[A]s a rule, our courts give far more leeway to the city than we typically do to other defendants in civil actions.”

The lower court judges that handle the city parts, who hate to get reversed, are no doubt taking notice of the substantial change in tone from our appellate courts.

 

March 14th, 2010

Mother Nature Takes A Shot


I grabbed the point-and-shoot when I went for a run this morning in one of the nicer areas of New Rochelle, north of New York City. Old houses and older trees.

Soak ground with a foot of snow melt, add a few inches of rain, drop in some high winds, and Mother Nature whips up this casserole, reminding us of how small we are.

There but for the grace of Gd go I. The sirens are wailing and the buzz saws are screaming…