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Defendants in medical malpractice cases often seek extensive information regarding the plaintiff’s medical history.  Plaintiffs may find these requests intrusive.  New York medical malpractice attorneys know that, although courts often allow defendants wide latitude in accessing a plaintiff’s records, plaintiffs may sometimes obtain a protective order to prevent defendants from accessing certain records.  A New York court may issue a protective order to deny, limit, condition, or regulate any “disclosure device” “to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice…” CPLR § 3103.

optometryA New York court recently heard a plaintiff’s motion for a protective order.  The plaintiff filed a medical malpractice action following a cataract extraction with an intra-ocular lens implant for each of his eyes.  The plaintiff claimed damages for past and future lost earnings.

In his deposition, the plaintiff testified regarding a cardiac condition and certain coronary procedures he had received.  The defendants served a demand for the plaintiff’s authorization for the defendants to obtain records from the plaintiff’s treating cardiologist, ophthalmologist, optometrist, and a hospital.  The defendants subsequently moved to compel the authorizations. The plaintiff was subsequently ordered to produce the items of discovery in the defendant’s motion, except certain financial records.

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Summary judgment is an important part of New York car accident cases.  It allows the court to make determinations as a matter of law based on the evidence presented by the parties so that all or part of the case does not have to be addressed at trial.  Parties commonly seek summary judgment as to liability and the existence of a serious injury.  New York attorneys know that cases can become very complex when multiple motions for summary judgment are filed.

road directionsOne recent case illustrates how complex seemingly straightforward cases can become.  The plaintiff was involved in an automobile accident and filed suit against multiple defendants, alleging injuries to her spine, shoulder, and knee.  She subsequently had a diagnostic arthroscopic surgery on her knee and a spinal fusion surgery on her cervical spine.

The parties made various motions for summary judgment.  The trial court granted summary judgment to the defendants from the other vehicle on the issue of serious injury, denied the plaintiff’s motion for summary judgment on liability, and granted summary judgment to the defendant driver of the vehicle in which the plaintiff was riding.  The appeals court addressed several issues.

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Generally, when a stopped car is hit in the rear, liability lies with the other driver.  New York car accident attorneys know that showing the plaintiff’s vehicle was stopped when the defendant’s vehicle struck it makes a prima facie case of the defendant’s negligence.  If a plaintiff moves for summary judgment on liability and submits evidence that his or her vehicle was stopped and hit in the rear by the defendant, the defendant must submit evidence showing a non-negligent explanation for the accident.

car accidentA recent case illustrates one way a defendant can successfully oppose summary judgment after the plaintiff makes a prima facie case that her vehicle was stopped.  The plaintiff appealed the trial court’s denial of her motion for summary judgment of liability.  In support of her motion, she submitted an affidavit stating the defendant struck the rear of her stopped car.  The court found she met her prima facie burden of showing she was entitled to summary judgment as a matter of law.

To challenge the summary judgment, the defendant then had to provide an adequate non-negligent explanation for the collision.  The defendant submitted an affidavit disputing the plaintiff’s version of events.  The defendant averred that he saw the plaintiff’s vehicle stopped in the middle lane.  However, he further stated that she caused the accident by backing up.

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When a person is injured due to a hazardous condition at a commercial property, there are often multiple parties pointing fingers at each other.  Property owners, management companies, tenants, and a variety of contractors may be involved.  New York premises liability attorneys know that it can be difficult to sort out who is responsible for the plaintiff’s injuries, as in a recent case.

fishThe plaintiff filed suit to recover damages for injuries she sustained in a slip and fall in the building where she worked.  The defendants were the management company that managed the premises where she fell and the aquarium company that was contracted to service the fish tank at those premises.  The defendants each moved for summary judgment.

Aquarium Company

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New York car accident attorneys know that the issue of liability can be complicated when multiple vehicles are involved in an accident.  Liability is not always clear.  A plaintiff sometimes needs to file suit against multiple defendants.  A New York court faced a complex set of facts in a recent case.

truckThe plaintiff was involved in an accident with another vehicle and a stalled box truck.  The plaintiff filed suit against a number of defendants, including the driver and owner of the other vehicle, the driver of the box truck and his employer, and the tow truck driver and company.  The court granted summary judgment in favor of the tow truck driver and towing company.  The box truck driver and his employer also moved for summary judgment.

The plaintiff testified he first saw the stalled truck when the vehicle in front of him changed lanes.  No one was directing traffic around the truck, and the truck did not have any lights on.  The plaintiff slowed when he saw the truck.  There was a vehicle in the left lane, so he moved into the right lane.  The plaintiff said he had slowed to 30 miles per hour before the collision, and he had engaged his turn signal. The vehicle in the right lane struck the plaintiff’s rear passenger side.  After the vehicle hit the plaintiff’s car, the plaintiff’s vehicle hit the right side of the rear of the disabled truck.

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For a New York auto accident victim to recover damages for pain and suffering, he or she must have sustained a serious injury as defined by New York Insurance Law.  New York personal injury attorneys often seek to have the issue of serious injury resolved through summary judgment.  A plaintiff seeking summary judgment must make a prima facie showing that there was a serious injury.  To successfully oppose the plaintiff’s motion, the defendant must raise a triable issue of fact as to the serious injury.

car accidentA New York court recently granted a plaintiff’s motion for summary judgment despite the defendants’ experts finding no objective disability resulting from the accident.  The plaintiff filed suit against the owner and operator of the vehicle that rear-ended the vehicle in which she was riding.  The plaintiff asserted that she had a herniated disc, aggravation or exacerbation of pre-existing conditions of her cervical spine and lumbar spine, sprains and strains of the cervical and lumbar spine, decreased range of motion of the cervical spine and lumbar spine, and disc space narrowing with disc herniation.  She received epidural and trigger point injections.

The plaintiff moved for summary judgment on the ground she had sustained a serious injury in the 90/180 category.  She submitted an affidavit stating she was a traffic enforcement agent at the time of the accident and was out of work for a year due to her injuries.  She also asserted that she wore a back brace for six months.  She stated she was unable to drive for six months, due to the pain and limitations of movement in her neck and back.  She further asserted she was unable to clean her house, lift heavy things, or carry the laundry.  She also stated that her injuries from prior accidents had been resolved at the time of the accident.

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broken carA New York automobile accident victim must have suffered a serious injury as defined by the New York Insurance Law in order to recover for noneconomic loss. New York car accident attorneys know that defendants often seek summary judgment on the ground that the plaintiff did not sustain a serious injury. If the defendant files for summary judgment, the defendant has the burden of making a prima facie showing that the plaintiff did not suffer a serious injury. If the defendant meets this burden, the plaintiff must then present evidence that raises a triable issue of fact that he or she did suffer a serious injury.

A New York court recently considered a case in which the plaintiff was able to raise a triable issue of fact through the submission of medical records and doctors’ affirmations. The plaintiff testified he had driven himself to the emergency room after the accident and sought additional treatment from a doctor within a week. He testified he had not seen any doctors regarding the accident in the past year and was not currently taking any medications. The plaintiff could not remember if he had been employed at the time of the accident, or if he missed any work as a result of the accident.

In support of a motion for summary judgment, the defendant submitted an affirmed medical report from the doctor who performed an independent evaluation of the plaintiff. The objective tests and range of motion tests had results within the normal range. The doctor opined that the plaintiff’s injuries were partly related to the accident but were also related to previous injuries. He concluded the plaintiff could perform all activities of daily living. The doctor found no medical necessity for further treatment or diagnostic testing.

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The laws of car insurance vary by state, but most require that you have at least minimal coverage in the event that you are in an accident. You need to be able to show proof that you have car insurance if you are ever pulled over or involved in an accident. If you don’t have insurance, then it’s best to consult with an attorney as you could face fines, points on your license or insurance or even a ticket that you would need to fight in court.

Liability insurance is the basic coverage that will provide financial assistance to another person if you are responsible for an accident. The policy will cover repairs to the vehicle along with any medical treatments that are needed. Your policy could also cover a car rental for the person who is the victim if the car is damaged too much to drive until it’s repaired.

Many state laws require that an insurance policy includes medical coverage. This is so that the person who is inured in the accident can seek medical treatment as soon as the accident occurs. It could range from being transported to the hospital via ambulance or going to the doctor to get treatments related to the accident, such as therapy or x-rays. The policy holder’s coverage will generally cover payments for pain and suffering as well along with payments for lost wages if the person has to stay out of work as a result of injuries that are sustained in the accident.

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There is no doubt that you have sustained a personal injury due to the negligence or actions of another party. What remains to be decided is whether you are willing to settle with that responsible party or pursue the matter in court. While you do have the option of making a decision on your own, seeking advise from a personal injury lawyer is your best bet. Here are some of the points that need to be considered carefully before making a decision.

Is Settling Even an Option?

It’s true that settling a personal injury suit is not unusual. Responsible parties are often open to this solution because they want to avoid the expense of going to court. Their desire to settle is not based just on wanting to avoid court costs and more legal fees. There is also the possibility that the court will find in favor of the plaintiff and the verdict will be a significantly larger award.

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After a car accident, there are time limits for when you should complete parts of the process. For example, immediately after an accident with injuries, you’ll want to visit a doctor or have an ambulance take you to the hospital. You don’t want to delay because that will hurt your chances at recovery. If you delay other parts of the process, it’ll impact whether you receive damages for your injuries.

Document the Incident

These steps are valid in the case of any accident where there have been injuries. You’ll want to write down as much as you can remember about what led to the accident. If there are witnesses, try to ensure that you have their names and a statement about the accident especially when someone else was at fault.

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