$12 Million - Pedestrian Accident

A 39-year-old female pedestrian in a cross-walk was struck by a bus making a right turn. She sustained crushing injuries to her right leg which may ultimately result in the loss of her leg. 

$2.1 Million - Medical Malpractice

The failure to diagnose melanoma in a 36-year-old female patient with complaints to her dermatologist of a lump on her left cheek, which was incorrectly diagnosed as a cyst, resulted in the cancer's advancement to Stage III.  

$1.85 Million - Construction Accident

A 46-year-old truck driver fell from the top of a cement truck at a construction site. He sustained a fractured ankle, which required surgery, and injured both knees resulting in multiple arthroscopic procedures and the possible need for future bilateral knee replacement surgery.

$1.4 Million - Medical Malpractice

An eight month delay in diagnosing ovarian cancer in a 48-year-old patient, where there were abnormal laboratory findings, led to its advancement to Stage IV.   

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* Prior results do not guarantee a similar result.

New York Labor Law 240(1), also known as the "Scaffold Law", provides construction workers with a legal remedy if they are injured in a gravity-related accident caused by the failure to provide them with proper safety equipment. The nickname "Scaffold Law" is derived from the law itself, as it requires general contractors and owners to ensure that workers are provided with proper safety equipment, specifically, "scaffold, hoists, stays, ladders... ." Created to prevent accidents and protect workers, the Scaffold Law has been interpreted by courts to mean that a worker must be provided with the proper safety equipment where an "elevation-related risk" is present.  Where the proper safety equipment is not provided, and a worker is injured as the result of a risk arising from a physically significant elevation differential, the worker has a statutory cause of action against the general contractor and owner.  

On February 11, 2014, proponents for reform of the Scaffold Law met in Albany for their annual "Scaffold Law Reform Day" - a day on which contractors and businessmen lobby legislators to repeal the law. These proponents have long argued that the law's placement of "absolute liability" on general contractors and owners is unfair and bad for business. However, what reformists continue to overlook is that the law contains a defense for when workers do not use available safety equipment and only allows a recovery when the proper safety equipment was not provided.   

As a result of the provisions of the Scaffold Law, general contractors and owners have an incentive to protect workers and make sure that they are provided with the proper safety equipment. This incentive has had a positive effect on the way businesses approach construction site safety in New York. Without the Scaffold Law, in many instances, worker safety would be left up to the worker. Not only would this create the fundamental unfairness of transferring the cost of construction site safety to the worker but it would also result in workers being forced to risk losing their jobs by demanding safety equipment from their superiors.     

SPBMC handles many cases that involve the Scaffold Law and a failure to provide adequate safety equipment in the workplace. Cases often involve a host of different parties and issues, thus, can make for complex litigation. Given our experience and resources, we have been able to successfully litigate these challenging cases for our clients. 

Recently, in Perez v. Fitzgerald, 2014 NY Slip Op 744, the Appellate Division, First Department, unanimously held that the statute of limitations for chiropractic malpractice is three years, not the two-and-a-half year statute of limitations applicable to acts of medical, dental or podiatric malpractice. 

CPLR 214-a provides that "[a]n action for medical, dental or podiatric malpractice" must be commenced within two-and-a-half years of the alleged negligent act or omission. All other professional malpractice actions are governed by the three year statute of limitations found in CPLR 214(6).

SPBMC represented Ms. Perez in a malpractice action against her chiropractor concerning an approximate two year delay in diagnosing and treating her spinal cord tumor. The delay in diagnosis and treatment was caused by the defendant's failure to refer Ms. Perez for an MRI of the spinal cord prior to commencing chiropractic care. As a result of the delayed diagnosis and treatment, Ms. Perez suffered severe and permanent neurological deficits which included, among other things, numbness on the left side of her body, difficulty ambulating, chronic and constant neck and back pain and severe depression.

A jury found that the defendant chiropractor was negligent in failing to refer Ms. Perez for an MRI at the outset of chiropractic treatment. Although the action was timely commenced within the three year statute of limitations applicable to negligence, the trial court set aside the verdict and dismissed the complaint on the grounds that the action was time-barred under the two-and-a-half year statute of limitations applicable to medical malpractice claims.

The Appellate Court reversed the trial court and reinstated the jury verdict, finding that chiropractic treatment was not medical because it "was not an integral part of the process of rendering medical treatment to a patient or substantially related to any medical treatment provided by a physician."

If you have a client that has suffered personal injuries as a result of chiropractic, or other type of malpractice, please feel free to contact us immediately to discuss the case.

In any tort case against a public authority or public corporation, Section 50-e of the New York General Municipal Law requires service of a notice of claim as a condition precedent to maintaining an action against that entity. Claimants have 90 days from the date of the claim's accrual to serve this notice. Properly and timely serving a notice of claim is often easier said than done, as it can be difficult to ascertain whether an entity is a public entity, and, thus, entitled to a notice of claim. Further, determining the correct address for service on a public entity can be time consuming.   

Last year, the law in New York was amended to simplify the convoluted process of serving a notice of claim. The New York Legislature passed the Uniform Notice of Claim Act, which, among other things, created an alternative to serving the public entity itself. Under this amendment to General Municipal Law Section 53, claimants may serve a notice of claim directly on the New York Secretary of State, as an option to serving the public entity itself. A specific procedure must be followed and a fee must be paid. After service on the Secretary of State, the New York Department of State will forward it to the appropriate agent of the public entity. Of course, claimants may still serve these entities the "old fashioned" way - on the entity itself, and avoid paying a fee.

Further, the Uniform Notice of Claim Act requires public entities, entitled to a notice of claim, to file a certificate with the Secretary of State, designating the Secretary as its agent for service, and providing a service address. A notice of claim can still be served via the Secretary of State, whether or not an entity has filed this certificate. 

Additionally, pursuant to General Municipal Law Section 53(5), the Secretary of State must publish a complete list of public entities that have filed certificates, along with proper service addresses, on its public website. Even if a claimant chooses not to utilize this method of serving the notice of claim, the website allows a claimant to quickly and easily determine whether an entity must be served with a notice of claim, and the proper mailing address.

As you can see, the Uniform Notice of Claim Act is good news for claimants in New York, as it helps streamline and clarify an often confusing, yet crucial requirement of pursuing tort claims against public entities. 

If you have a client who has a potential tort claim against a public entity, please do not hesitate to contact us for a free consultation to evaluate your client's obligations and to preserve his or her rights under the law.

Sick and injured clients who have put their trust, their health and their very lives in the hands of medical professionals are all too often the victims of carelessness and neglect. Unfortunately, these victims and their families may lose the opportunity to seek justice and compensation for injuries and death caused by medical malpractice because of the relatively short and inflexible statute of limitations governing these complex claims.

In New York, victims of medical malpractice are generally afforded only two-and-a-half years to commence an action. In cases against municipal facilities, a notice of claim must be filed within 90 days. Making matters worse is the fact that in New York, unlike other states, this time limit typically begins to run on the date of malpractice rather than when the injury is discovered. This rule is very dangerous to potential plaintiffs because in some cases injuries caused by medical malpractice will not manifest until months or even years have passed. Regrettably, failure to comply with the statute of limitations is usually not excused simply because the injury was not discovered in time. The few exceptions to this rule which may enable victims to bring claims more than two years and six months after the malpractice occurred are very limited.

One exception exists when there is a continuous course of treatment for the injury or condition that resulted in the malpractice at issue. When this exception applies, the statute of limitations will not begin to run until the course of treatment ends. However, the treatment must be for the exact same injury or condition which gave rise to the malpractice; simply seeing the same doctor on an ongoing basis for unrelated or routine care is not enough.

Another exception applies when malpractice arises from the introduction of a foreign object into a patient's body. In such cases, an action may be commenced within one year of the date the object is discovered or the date that it could have been discovered with reasonable diligence, whichever is earlier. This exception, too, is strictly interpreted, and applies only when objects are unintentionally left in the body. An object that is deliberately implanted for medical purposes, but which ultimately causes harm, will not trigger this exception.

Extensions of time may also be granted in cases of infant or otherwise incapacitated plaintiffs. However, the lesson here is that it is crucial for every victim to diligently pursue potential claims, and equally important for attorneys to understand the relevant law and medicine. Delay by clients, or inexperience on the part of attorneys, can be fatal to a medical malpractice claim. 

At SPBMC, our dedicated medical malpractice units have the knowledge, expertise and resources to evaluate and pursue even the most complicated medical malpractice claims.