Here is an example, a person is tragically hit by a vehicle while crossing the street and dies as a result.  Now let’s assume that person died without a will and had no living children, parents, siblings or grandparents.  When a person dies without a will, their estate will be divided pursuant to the New York EPTL, and must be administrated by an administrator who qualifies under New York Law.  In order to qualify under NY EPTL the administrator must be a distributee (must receive monetary benefit from the estate) and must be an immediate family member i.e. spouse, parent, grandparent, sibling, adult child (there are other technical ways for guardians to become administrator but that will not be covered in this article).  If no distributee qualifies to be an administrator, the Public Administrator of the County where the decedent resided must be petitioned to be the administrator of the estate.  The Public Administrator is a public authority who will administer the estate of decedents who do not have an administrator.  So, if the decedent died as a result of third party negligence then the Public Administrator would be the plaintiff in charge of the lawsuit.  The Public Administrator will also retain the lawyer who will handle the wrongful death case for the estate.  When the lawsuit is complete and if there is a monetary recovery the Public Administrator will then distribute the money to the proper distributees of the estate.

Under normal circumstances the administrator of an estate would be the living spouse or adult child of the decedent.  This makes sense because they would be the primary recipient of any monetary funds that would be derived from a wrongful death action.  New York Law mandates that only an immediate family member who is a direct distributee of the estate can be appointed administrator of the estate.  The law also mandates that only select close family members may be qualified to administrate the estate.  So, if you are the soul distributee but are only a cousin of the decedent, you may not administrate the estate.  Instead you must use the services of the Public Administrator.  The Public Administrator and their attorney are entitled to a percentage fee of the ultimate recovery for their services.  Sometimes this process can be confusing and it is important that you seek the guidance of an attorney who is well versed in this field.

Giampa Law has been handling wrongful death actions for New York residents for over thirty years.  The attorneys at Giampa Law are well versed in dealing with the Public Administrator and can also help a qualified family member become Administrator of their loved one’s estate.  If you believe that your loved one has wrongfully died as a result of a third party and believe their estate is entitled to compensation please contact Giampa Law.

One main side effect that is commonly caused by surgical malpractice is the dislodging and migration of the mesh patch.  This migration can lead to the mesh patch becoming infected or causing intestinal blockage due to the patch wrapping itself around loops of the small intestine.

First, a surgeon must make sure that he is using a mesh patch which is big enough to accommodate the hernia that he is attempting to repair.  The patch must be significantly bigger than the hernia itself so that it will totally cover the hernia and provide enough room around the actual hernia to prevent loops of small bowel from pushing their way through the hernia and lodging themselves between the hernia and the affixed mesh patch.  If the loops of bowel push their way into that area due to a patch which is too small to prevent the escape of bowel it can cause that piece of bowel to become constricted causing a blockage in the bowel.   For example, the accepted standard of care for a Bard Composix® Kugel® mesh patch that is at least 5cm larger than the defect on all sides.  If a surgeon measured the hernia defect as being as being 10cm.  This measurement requires a surgeon to use a mesh patch that extends at the very minimum 5cm beyond each end of the defect.  If the defect is 10cm the surgeon was required to use mesh patch that is at least 20cm at its widest point.  A surgeon would be negligent if they incorrectly used an 11x14cm mesh patch which didn’t provide for sufficient underlap between the mesh and the abdominal wall defect.

Another common mistake made by surgeons is improperly affixing the mesh patch to the abdominal wall.  The surgeon must do this correctly to prevent undue tension on the mesh and the fascia.  A surgeon may staple the patch to the abdominal wall over the defect (hernia).  Many times by adding additional sutures to the fascia may lead to undue tension which in turn may cause the mesh to buckle and become loose.  This loose space can cause the small bowel to migrate into the area between the polypropylene side of the mesh and the fascia defect.   The polypropylene side of the mesh is very sticky and a migration of the bowel to that side of the mesh can also lead to multiple adhesions of the small bowel to the mesh and a small bowel obstruction.  In other word the bowel will adhere to the sticky mesh and may cause bowel obstruction.

The above are just two common mistakes made by surgeons during a hernia repair surgery using mesh.  If you have been injured as a result of a hernia repair using a mesh patch please contact our office.  It is possible that you were the victim of medical malpractice or that the mesh used in the operation was defective.

So what’s next?  How do you get the case restored to the trial calendar?  In our particular case, the matter was venued in Queens.  Pursuant to local TSP part rules, a stipulation is the first option for getting the case restored.  The TSP part can provide a template stipulation which can be signed by all parties to restore the case to the calendar.  The substance of the stipulation states that 1.  all discovery is complete; 2. specifies a date the Note of Issue is to be filed, and 3. specifies a date a conference is to be held, 90 days after the Note of Issue is filed.

In our consolidated action, getting all parties to stipulate to returning the case to the calendar was simply not possible – getting all parties to agree was a non-starter – which leads to the second option for restoring the matter to the trial calendar, a motion to restore.

First, the motion to restore requires an Affirmation of Attempts to comply with the aforementioned TSP part rules.  Simply stated, the Affirmation of Attempts states that you attempted to get all parties to sign the stipulation but were unsuccessful.  In Queens County, the Affirmation of Attempts must be affixed to the Notice of Motion.

Second, the substance of the motion should note that when the note of issue has been vacated, the case reverts to its status as a pre-note case.  Andre v. Bonetto Realty Corp., 32 A.D.3d 973, 974 (2d Dep’t 2006).   Further, in the absence of a 90-day notice pursuant to CPLR 3216, restoring a case marked inactive is automatic.  Matter of Transtechnology Corp. v. Assessor, 71 A.D.3d 1034, 1037-1038 (2d Dep’t 2010); Andre v. Bonetto Realty Corp., 32 A.D.3d 973, 974 (2d Dep’t 2006); Klevanskaya v. Khanimova, 21 A.D.3d 350 (2d Dep’t 2005).

Third, as a practical matter, when the case involves consolidated actions and other parties are hampering or hindering the prosecution of the case, it may be wise to include in the motion to restore a branch seeking severance pursuant to CPLR §603, if required, preferable, convenient, or necessary to restore the matter to the trial calendar.  When arguing in support of severance, demonstrating prejudice to your client is necessary to sever the matters.  Has your client suffered as a result of the delay? Has your client become of recipient of public assistance as a result of the delay?  These two examples can demonstrate prejudice in support of severance.

While restoring a matter to the calendar can be tedious, it is necessary to move the case forward.  Hopefully after reading our blog, restoring a case to the calendar will become a little easier for you – should you end up marked off the active calendar.

Thank you for taking the time to read our blog.

If a decision gives a direct order to serve with notice of entry within a specific time frame, failure to do so shall make the decision irregular and void.  Moreover, if a decision has language such as to serve all parties “without undue delay” it could be considered a violation of CPLR § 2220(a) if the winning party waits to long to serve the decision with notice of entry on their adversaries.  The civil procedure rules clearly state that a violation of CPLR § 2220(a) may result in deeming the order irregular and vacating the same.

We recently had a case where an adversary waited a year to serve a decision granting him summary judgment with notice of entry and failed to provide any good cause reason for their year long delay.  Moreover, they were directed by the Court to serve “without undue delay”.  Under no circumstances could the defendant-respondent’s year long delay in serving the order with notice of entry be considered “without undue delay”.  In most circumstances the service of an order should be accomplished within thirty (30) days of its filing.  Defendant waited twelve (12) months which clearly shows undue delay.  This issue is currently pending before the second department and we will soon see what the ultimate decision will be.

Now there are other oral decisions which a judge may render for the bench and then require the winning party to order the Court minutes so that they may be signed and filed.  Failure to submit the transcribed decision to the Court for signature within thirty days will make the decision null and void as per the New York Code Rules & Regulations.

Up until recently this procedure has been classified as a relatively safe procedure with very little risk of an adverse effect.  Recent studies have shown that many of the filters on the market today have become increasingly susceptible to migration, perforation and disassembly.  This means that the side effects of having an IVC implanted may be much more severe than was originally thought.  In order to understand what this means and how it effects a possible patient you must understand how the filter is put in place and how it works.

           A typical IVC filter is considered permanent and once it is in place is not intended to be moved unless it impedes the patient’s health.  A filter is put in the inferior vena cava percutaneously (through the vein) using an introducer kit and attaches itself to the venal walls using small sharp hooks at the end of a set of legs.  Once the legs catch hold of the venal wall they embed themselves in the tissue.  The longer the device remains in the patient’s inferior vena cava the more permanent it becomes.  This device then sits inside the vein and will catch any potential blood clots that become dislodged from the patient’s lower extremities.

Some potential problems with these filters are that the hooks themselves can penetrate the vein wall and protrude into other portions of the body.  These sharp hooks can cause internal bleeding (especially while a person is on blood thinners) and also can penetrate other organs within the body such as the intestine.  This is a potential risk of the implanting and IVC filter and should be discussed with your surgeon before implementation.

Also, if a person’s vein is too large to accommodate the IVC filter used it may not adhere to the vein wall properly and can migrate up into the heart and/or superior vena cava.  This is a potentially deadly risk of the surgery.  Make sure that you have a competent surgeon to perform the surgery, and make sure that he follow all the appropriate standards for the IVC filter being used.

There is also the potential that a portion of the filter breaks off from the main body and migrates into the blood stream causing severe damage.  This piece can enter the heart or lungs and cause severe internal bleeding and death.  Bard and Greenfield (Boston Scientific) filters are common filters used in this procedure.

Please make sure that you use a qualified surgeon when undergoing this surgical procedure.  Many of the problems with inputting an IVC filter are due to human error and could be alleviated if the surgery is performed in accordance with the standard of care and the manufacturer’s instructions.

If you or a loved one has sustained adverse physical damages due to the implantation of a Greenfield or Bard filter please contact us immediately.  We will review your case and inform you of your legal options free of charge.

That’s exactly what Xarelto, introduced to the U.S. market in 2011, was supposed to do – minimize the risk of a more severe medical problem, specifically a stroke and blood clots in people with atrial fibrillation.  Atrial fibrillation is an abnormal heart rhythm characterized by rapid and irregular beating.  A stroke is a very serious medical condition caused by poor blood flow to the brain; often times the poor blood flow is caused by a clot in the blood stream that prevents proper blood flow to the brain.

Prescription drug Xarelto, taken orally, is a Direct Thrombin Inhibitor Anticoagulant, which in simple terms means it’s a blood thinner – the medication thins the blood to allow better blood flow to the brain thus reducing the risk of stroke.  However, Xarelto has not always worked as intended – the drug has been linked to uncontrollable internal bleeding.

Unfortunately, many people in the United States have filed lawsuits against the drug manufacturer, Bayer, as well as the U.S. marketer subsidiary of Johnson & Johnson, Janssen Pharmaceuticals.   In many of these cases patients were prescribed Xarelto in place of other common anticoagulants (blood thinners) such as Coumadin (warfarin).  This example of an alternative drug to Xarelto is much less expensive and has been proven to have less risk of causing uncontrolled bleeding.  In addition, if uncontrolled bleeding does occur it is much easier to control when caused by alternatives such as Coumadin versus Xarelto.

If you or a loved one, like others in the United States, has been injured by taking Xarelto, a lawsuit may provide some solace and comfort in the form of monetary compensation.  Monetary compensation can be recovered for financial losses that occurred as a result of the injury; such as loss of income from missed work, costs of medical care, including future medical care, as well as mental anguish as a result of dealing with the unexpected side effects.

Prior to prescribing medications, doctors should warn patients as to the side effects.  For example, prior to prescribing Xarelto a doctor should warn about the possible side effect of uncontrollable internal bleeding.  In addition, doctors should warn patients that uncontrollable bleeding caused by Xarelto could not be reversed as easily as with other anticoagulants (blood thinners).  Further, prior to prescribing Xarelto doctors should make the patient aware of alternative medications and the risks and benefits associated with each.

If a doctor prescribed you Xarelto and failed to warn of the side effects and/or alternative options for different medications – you may be entitled to monetary compensation from a lawsuit.  If you believe you or a loved one was injured by Xarelto, contact our office today for a full case assessment to determine the availability of a loss suit to recover money for the injuries and damages resulting from this potentially dangerous drug.

The common relationship between a surgeon and a hospital is that a surgeon is granted privileges at a specific hospital which allows them to perform specific types of surgeries at that hospital but the surgeon does not work for the hospital.  A patient is charged a fee for the surgeon and a separate fee for the hospital.  If a patient undergoes a surgical procedure by a surgeon of their choosing at a specific hospital, under most circumstances the hospital will not be liable for malpractice committed by the surgeon during the surgery.  Like all laws there are multiple exceptions to the common rule.

If a patient is admitted through the emergency room and provided a surgeon by the hospital, not of the patient’s choosing, under most circumstances, that hospital will be liable for the negligent acts of the surgeon.  There are always exceptions, but a hospital that directs a patient to a specific surgeon opens itself to liability.

If a surgeon perform an act which is considered to be extremely negligent it can impute a duty on the hospital to step in and take control of the situation.  In this scenario a hospital may be liable for failing to take action when it knows that a surgeon committed a negligent act and that surgeon is continuing to provide negligent treatment to a patient.  A hospital has a duty to step in and change a course of treatment if no reasonable medical professional would continue to follow the orders of the negligent surgeon.  Most hospitals will try to shield themselves from liability by claiming that they were just following the orders of the surgeon and are therefore not liable for his acts of malpractice.  This can be overcome by either proving that the surgeon’s acts of malpractice were so contrary to the normal standard of care that it would be unreasonable to follow the surgeon’s instructions; or if the record indicates that the hospital did not follow the orders of the surgeon and thereby created their own acts of negligence.

Also, if while the patient is in the hospital an act of malpractice is committed by an employee of the hospital i.e. a nurse, phlebotomist, staff radiologist; that hospital can be liable for the acts of its employees.  The nurses, staff and technicians of the hospital are employees and if the malpractice is committed by one of these people the hospital will maintain liability.

Certain surgeons do maintain an employee/employer relationship with the hospital.  A lot of times surgeons who hold specific titles at the hospital such as chiefs of a specific department are employees and the hospital will be responsible for their acts of negligence.  Also, surgeons working directly in an emergency room are often times employees of the hospital.  A prospective plaintiff must probe into the relationship between the surgeon and hospital prior to filing a lawsuit to determine what if any liability may rest on the hospital.

If you feel you have been the victim of medical malpractice please visit www.rlgfirm.com for a full legal evaluation.  We work very closely with prominent medical experts to determine if your case has merit.

First, a plaintiff is entitled to receive money damages for economic loss and for pain and suffering. Economic loss is awarded to compensate the plaintiff for money that was lost or will be lost as a result of the injury.  For instance, if you were involved in a car accident and were unable to work for a certain period of time you are entitled to be compensated from the liable party for your lost wages.  You are also entitled to be reimbursed for medical expenses along with additional out of pocket expenses that you were forced to pay as a result of the accident.  These numbers can be easily calculated by adding up your lost wages and your lost expenses, a plaintiff is entitled to receive full compensation for all of their past economic damages.

If the plaintiff is continuing to have ongoing medical care and/or is unable to go back to work at the time of the trial/settlement, the injured party may also be entitled to receive compensation for future economic damages.  These damages are more speculative and often necessitate expert witness testimony.  Future economic damages include future medical care, future surgeries and future monetary income from a job that you can no longer perform.  If properly established, a plaintiff is entitled to receive full compensation for these future economic damages.  These medical damages are calculated by adding up your foreseeable medical expenses along with any future medical expenses.  Future lost earnings are calculated by adding up what your future income would have been and may include future raises or promotions that you would have been entitled.

A plaintiff is also entitled to receive money damages for all of the pain and suffering they have endured since the date of the accident, along with the future pain and suffering they continue to endure as a result of the injury.  These non-economic damages are much harder to value and are subjective to the evaluator.  It is interesting to note that the demographics of the County in which you filed your lawsuit have a large impact on how much your pain and suffering is worth.  Statistics show that juries in some New York Counties value pain and suffering greater than other Counties.  Therefore, the same case in one County could be worth substantially more than if it is brought in another County within New York State.  It is a factor that must be considered when initially filing a lawsuit.

Damages can also be reduced depending on the extent of the liability of the defendant party.  If the plaintiff is partially responsible for the accident the value of the case will be reduced by that percentage which is the plaintiff’s own fault.  Also, the plaintiff’s recovery may also be reduced if they have a pre-existing injury which effects the portion of the body which was involved in the accident in question.

While this is by no means a comprehensive description of everything that goes into valuing a personal injury case, it is a basic outline to follow when determining what a case may be worth at settlement or trial.

Municipalities, like any other large bureaucracy, maintain massive amounts of records, files and information.  Specifically relating to the example of our firm’s medical malpractice action, a record containing the costs of home health aide aides are maintained by the New York City Department of Human Resources Administration (http://www.nyc.gov/html/hra/downloads/pdf/services/micsa/hcsp_vendor_rates.pdf).

CPLR §4518(c) provides that “All records, writings and other things referred to in sections 2306 (hospital records; medical records) and 2307 (books, papers, and other things) are admissible in evidence under this rule and are prima facie evidence of the facts contained, provided they bear a certification or authentication by the head of the hospital, laboratory, department or bureau of a municipal corporation or of the state, or by an employee delegated for that purpose or by a qualified physician.

Further, social services agency constitutes a business for the purposes of CPLR §4518.  People v. Montroy, 225 App Div 2d 913 (3d Dept 1996).  Thus, the record of the New York City Human Resources Administration (“HRA”) that contains the costs of home health aid is admissible AND, more importantly, are prima facie evidence of the facts contained, provided the records bear a certification or authentication of the department or bureau head.

Furthermore, the dictates of CPLR §4518(c), provides that “Certain business records may be received in evidence without having been authenticated by their maker, but only if they are certified in accordance with CPLR§4518(c)”.  Peerless Ins. Co. v. Milloul, 140 App Div 2d 346 (2d Dept 1988).

In simpler terms and relating it to our firm’s medical malpractice case, if the record from the HRA is certified or authenticated, it comes into evidence and is sufficient proof of the cost of a home health aid, no costly expert required.

The court in 20-22 Prince LLC v. Tsue Kwai Yen, 32 Misc. 3d 1224(A) (2011) was presented with a situation identical to the situation our firm faced regarding the admissibility of HRA records.  The 20-22 Prince LLC court noted that it was undisputed that the records are certified, and with respect to the admissibility of the records stated that the HRA records can come into evidence under CPLR §4518(c) because they are clearly municipal records that fall within the parameters of the statute.

Equally so, in our firm’s case, the court found that it was undisputed that the records were certified and admitted them into evidence pursuant to CPLR §4518(c) since they were clearly municipal records that fall within the parameters of the statute.  The result, over a half million dollar in additional damages for the cost of a home health aid, and no costly expert needed to prove the damages – now that’s a better way!

The infant brain is undoubtedly sensitive to lead. The rapid of post-natal central nervous system development coincides with a time when infants are engaging in a high degree of hand-to-mouth activity.  Thus, young children living in environments where there are lead hazards can ingest significant amounts of lead dust at a time when their brains are most sensitive to the toxicant’s effects.

Exposure to a lead-contaminated environment can cause injury to an infant even when blood lead levels do not rise above the level defined as lead poisoning by the governmental agencies charged with setting the level that constitutes “poisoning”.

Lead ingestion and resulting injury frequently exists without external manifestations or subjective complaints, that is, without any overt signs or symptoms. For this reason, lead poisoning has sometimes been referred to as a silent epidemic.  Injury in the form of impairment of heme synthesis is an important concept in understating the mechanisms with by ingested lead particles first injure the body.

Injury resulting from lead exposure and ingestion of lead-based paint initially takes the form of an impairment of heme synthesis, that is, the body’s ability to synthesize new red blood cells and heme proteins throughout all the organs in the human body.

When a child begins to crawl and move around in a lead contaminated environment containing lead based paint chips, dust and peeling paint hazards, exposure and ingestion are inexorably contemporaneous.

In such an environment, very small particles of lead-based paint that cannot be seen by the naked eye unavoidably get into the household dust. This dust can come not only from areas of chipping, peeling, cracking paint in an apartment, but also from friction surfaces, such as window sills and doors being opened and shut.  Particles of this size and nature are the general cause of childhood lead poisoning because they totally pervade a child’s living environment and can remain in the environment for months despite normal cleaning routines.

Due to normal hand-to-mouth activities as the infant moves about in a lead-contaminated environment, the ingestion of microscopic lead particles is inevitable and unavoidable. In the case at hand, the infant was observed actually ingesting paint particles.

The primary route of lead absorption is ingestion. Absorbed lead is cleared by the kidneys in the urine and unabsorbed lead is eliminated in the feces.  Absorbed lead is carried throughout the body by the blood within the major burden (+95%) is carried by erythrocytes and the remainder, that most accessible to other tissues, in the plasma.

Lead’s impairment in heme production in a child’s body who is excessively exposed to lead is described in the following excerpt from the 1993 National Academy of Sciences publication:

The aspect of heme-synthesis disturbances by lead that has been most widely exploited as a biologic marker of early effect has been the accumulation of the heme precursor erythrocyte protoporphyrin IX or zinc protoporphyrin (EP or ZPP) in blood of children and in some adult populations.  EP accumulates in response to lead-related inhibition of the activity of the intramitochondrial enzyme ferrochelatase or lead-related impairment of intramitochondrial iron transport [Citations omitted] EP increase therefore indicates a generalized mitochondrial toxic response.

Heme synthesis impairment is a bodily injury by any definition and impairment of heme synthesis can be present without elevation in blood levels.