OSHA was created by the Occupational Safety and Health Act of 1970; the goal of the Act is to ensure that employers provide employees with a work environment free from recognized hazards, such as exposure to toxic chemicals, falls from elevated places, mechanical dangers, or unsanitary conditions.

To ensure the safety of employees, OSHA created a vast list of safety requirements that employers are required to comply with.  For example, an employer is required to instruct each employee in the recognition and avoidance of unsafe condition(s) and the regulation(s) applicable to the employees work environment to control or eliminate hazard(s) or other exposure to illness or injury [29 CFR 1926.21(b)(2)].

In addition to general safety requirements, an example of which is above, there are also safety requirements specific to the type of tool or machinery utilized on the job site.  For example, if a scaffold is in use, the planks must extend over their end supports not less than 6 inches nor more than 18 inches [29 CFR 1910.28(a)(13)].  Or, if a portable circular saw is in use, the saw must have an upper guard that covers the entire blade of the saw and a retractable lower guard [29 CFR 1926.304(d)].

When a new client comes to our office with a construction accident injury, one of the first things our office does is review the facts for violations of the OSHA requirements.  If a violation is found, a report is made to OSHA.

Upon receiving a report of a violation, OSHA will investigate, which usually includes a site visit to the location of the accident and/or an inspection of the employers shop.  If a violation is found as a result of the inspections, OSHA will issue a Citation and Notification of Penalty.

OSHA violations are classified as: 1. “Other Than Serious Violation”; 2. “Serious Violation”; and 3. “Willful Violation”.  A willful violation carries the largest fine; Other Than Serious carries the smallest fine.  Violations can also be categorized as a “Repeat Violation” or a “Failure To Abate Prior Violation”.

Once an employer receives a Citation and Notification of Penalty, the employer can either pay the fine, or partake in an informal conference in attempts to reduce the fine.  If the employer is unable to reduce the fine as a result of the informal conference, the employer can also contest the violations and penalty before the OSHA Board in Washington D.C.

The benefit of utilizing the OSHA process for prosecuting personal injury claims is that the OSHA paperwork regarding violations and citations can be obtained via a Freedom Of Information Law request, thereby providing an attorney with proof of the employers’ negligence and responsibility for the employees’ injuries.  Further, since they are issued by a Federal Governmental Agency responsible for employee safety, the OSHA violations carry significant weight and are thus a valuable tool for use in settlement negotiations and/or trial.

Thank you for taking the time to read our blog.

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.