The webinar, “Screening and Investigation Potential Medical Malpractice Claims,” is co-hosted by  Brian Zorn, Faraci Lange partner, and Elizabeth Zorn, legal nurse consultant, as part of the American Association of Legal Nurse Consultants’ (AALNC) monthly educational webinar series.

Brian Zorn is one of Faraci Lange’s senior trial attorneys focusing his practice on medical malpractice.  Elizabeth Zorn, BSN, RN, LNCC, has been an AALNC member for more than 15 years and recently began a three-year term on its board of directors.

The AALNC is a not-for-profit membership organization dedicated to the professional enhancement and growth of registered nurses practicing in the specialty of legal nurse consulting and to advancing this nursing specialty. AALNC is the preeminent resource for professionals with an interest in the legal nurse consulting arena including novice and veteran legal nurse consultants.

The Sept. 20 webinar costs $35 for AALNC members and $50 for non-members. To register, people can visit www.aalnc.org/edupro/WebinarSeries.cfm.

The attorneys named are:

• Matthew F. Belanger, in the practice areas of personal injury litigation and product liability litigation. Belanger, a resident of Brighton, has been named to Best Lawyers since 2008.
• John A. Falk, in medical malpractice law, personal injury litigation and product liability litigation. The Brighton resident also was named to Best Lawyers in 2009.
• Angelo G. Faraci, in legal malpractice law, medical malpractice law, personal injury litigation and product liability litigation. Faraci, who resides in Rochester, has been listed in Best Lawyers since its inception in 1983.
• Paul K. Lange, in medical malpractice law, personal injury litigation and product liability litigation. First named to Best Lawyers in 2001, Lange resides in Rochester.
• Joseph A. Regan, in medical malpractice law, personal injury litigation and product liability litigation. The Rochester resident has been named to Best Lawyers since 2005.
• Stephen G. Schwarz, in medical malpractice law, personal injury litigation and product liability litigation. The Fairport resident was first named to Best Lawyers in 1999.
• Brian M. Zorn, in medical malpractice law, personal injury litigation and product liability litigation. Zorn, who resides in Victor, has been named to Best Lawyers since 1995.

Best Lawyers, the oldest and most respected peer-review publication in the legal profession, is based on an exhaustive annual survey in which more than 39,000 leading attorneys cast almost 3.1 million votes on the legal abilities of other lawyers in their practice areas. Since its inception in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence.

Because Best Lawyers is based on a peer-review survey, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

Steven Naifeh, president of Best Lawyers, said, “We continue to believe – as we have believed for 28 years – that recognition by one’s peers is the most meaningful form of recognition in the legal profession.”

Cook focuses his practice on commercial and real estate litigation, environmental law, agriculture law, labor and employment, and personal injury law. Before joining Faraci Lange LLP he was an equity partner at Nixon Peabody LLP and previously served as the chair of the real estate litigation team.

He is a member of the Monroe County Bar Association, the New York State Bar Association and the American Bar Association. Cook earned his law degree and his master’s degree in Public Administration from Brigham Young University. He has been recognized as a “New York Super Lawyer” and has received an AV rating, the highest rating available, from Martindale-Hubbell.

The award is given to attorneys who are active in the community, demonstrate a commitment to the community through activities or pro bono work, and who demonstrate leadership and above-average achievements in day-to-day legal assignments. 

Jordan focuses her practice on medical malpractice, complex tort and toxic tort, premises liability, products liability and automotive negligence cases. She is a resident of Farmington, N.Y.

In an effort to combat rising automobile insurance rates, in 1974 the New York Legislature passed sweeping changes to the Insurance Law designed to provide a basic level of economic coverage for New York drivers hurt in motor vehicle accidents while at the same time significantly curtailing the number of motor vehicle cases litigated in the State courts.

Known as the No-Fault law, the statutes create a dual system for compensating persons involved in motor vehicle accidents. Regardless of fault, every automobile insurance policy in New York provides for the payment of first-party benefits of up to $50,000 for “basic economic loss” for covered persons injured in car accidents, but bars the filing of lawsuits against the at-fault party to recover non-economic loss (i.e. pain and suffering) except for those who have suffered “serious injury” as defined by the statute.

II. Who is covered under the No-Fault Law?

1. “Covered Persons”

A. includes any pedestrian injured through the use of operation of a motor vehicle, any owner, occupant or operator of a motor vehicle, any other person entitled to first party benefits, including the named insured under the insurance policy and members of the named insured’s household.

B. Bicyclists are covered persons.

C. With an express provision in the policy, insurance companies are permitted to exclude coverage for:

1. Persons who intentionally injure themselves;
2. Persons operating under the influence of alcohol or drugs;
3. Persons who are committing a felony;
4. Persons who are knowingly passengers in a stolen car;
5. Persons who are injured while fleeing the police or while racing.

D. Motorcyclists and their passengers are excluded from no-fault coverage, as are non-pedestrians injured by motorcycles.

E. Pedestrian victims of motorcycles are covered by no-fault.

III. First Party Benefits:

1. Basic economic loss (also called PIP or Personal Injury Protection):

A. Minimum limit: $50,000;

B. It is available regardless of fault;

C. Covers:

1. Accident related medical expenses;
2. Lost wages up to $2,000;
3. Other reasonable and necessary expenses.

2. APIP:

A. Although $50,000 is mandatory on all motor vehicle policies in New York, car owners can buy additional protection above the mandatory $50,000.

B. A carrier who pays APIP benefits is subrogated under certain situations to the recovery the insured obtains from the at-fault party.

3. Procedure to obtain first party benefits:

A. An injured party must give the carrier notice of the accident within 30 days by filling out a no-fault application.

1. Obtain the standard form that can be obtained by calling, e-mailing or writing the carrier to report the accident.
2. Failure to timely file this form will permit the insurance carrier to disclaim coverage for first party benefits.

B. Medical Bills:

1. Insured must give his/her health care providers the insurance information for the no-fault carrier, which normally includes:

a. The name of the company;

b. The claim number; and,

c. The name of the adjuster responsible for the claim.

2. THE MEDICAL PROVIDER MUST BILL THE NO-FAULT CARRIER WITHIN 45 DAYS OF THE DATE OF SERVICE AND FAILURE TO DO SO WILL RESULT IN THE CARRIER BEING ALLOWED TO DISCLAIM COVERAGE.

3. Once the no-fault carrier has been timely billed, the carrier must pay the bill within 30 days or must provide a written disclaimer stating the reasons why the carrier refuses to cover the bill.

a. The automobile insurance carriers pay bills according to an agreed upon fee schedule that pays medical providers substantially less than their normal fee.

b. The injured party is not responsible for paying the difference between the medical provider’s normal fee and the no-fault fee schedule.

4. Upon receiving a written denial, the injured party has the right to dispute the decision.

a. Can file a lawsuit or arbitration.

5. There is no time limit for how long the carrier is obligated to pay accident related medical expenses.

a. However, within one year after the accident the need for future accident-related treatment must be “ascertainable.”

b. If not, such expenses can still be covered but the injured party bears the burden of showing that the expenses were ascertainable and necessitated by the accident.

6. APIP is triggered, if it exists, after the $50,000 in mandatory PIP is exhausted.

a. If there is no PIP, the bills go to the next level of coverage, which is whatever the person’s primary coverage is. It could be private health insurance, Medicare, Medicaid, or self pay if the person has no coverage.

C. Lost Wages.

1. Limit is up to $2,000 a month for not more than three years after a motor vehicle accident.

a. The actual amount is calculated as 80% of the injured party’s average weekly wage. If that number is more than $2,000 for one month, the injured party will be paid $2,000.

b. New York State Disability benefits and Social Security Disability benefits are an offset to what the No-Fault carrier is required to pay for accident-related lost wages.

c. The carrier will require an injured party to file for both New York State Disability and Social Security disability even where it appears obvious that the injury party will not qualify for the benefit.

1. The failure to apply can delay, reduce or eliminate the no-fault carrier’s obligation to pay lost wages.

D. Other reasonable and necessary expenses.

1. Include household help, baby-sitting services and the like.

2. Limited to $25.00 per day and for only one year.

E. Death benefit.

1. In the event of a motor vehicle related death, the no-fault carrier will pay a $2,000 benefit for funeral expenses.

F. Dealing with No-Fault Disputes.

1. The dispute begins with the carrier providing a written denial of claim form stating the reasons why the claim is being denied.

2. Aggrieved parties, who can include the injured person or their medical providers operating under an assignment of rights, have two options:

a. Binding arbitration or

b. Filing a breach of contract suit.

3. Arbitration process:

a. Initiated by the aggrieved party completing and filing of a no-fault arbitration request form along with a $40.00 filing fee to the American Arbitration Association.

b. An injured party who prevails in a no-fault arbitration is entitled to the repayment of the $40.00 arbitration filing fee and to a reasonable attorneys’ fee if represented by counsel.

G. Workers Compensation Coverage.

1. A person injured in a motor vehicle accident while acting in the scope of his or her employment has the option of filing a workers compensation claim instead of filing for no-fault benefits.

a. The carrier cannot assert a lien on the first $50,000 in benefits paid in such circumstances, because they are considered in lieu of ‘first party benefits’ under No-Fault.

b. Workers compensation provides better benefits for a longer period.

H. Property Damage:

1. When you notify your insurance carrier of an auto accident, report the damage to your car;

2. The insurance carrier will and adjuster to the property damage claim;

a. often, the PD claim will have a different claim number.

3. Let your carrier know where the car was towed or where it is so that they can send an adjuster to evaluate the damage.

4. Always obtain photographs of the damage to your vehicle and, if possible, of all of the other vehicles in the accident.

5. Whatever the damage to your vehicle, the amount you will receive in compensation from your insurance company will be reduced by your deductible and limited by the applicable limits.

a. If a person has a nice car, the limits should reflect that.

b. If the accident was not the insured’s fault, often the insured can get the deductible back from the at-fault driver.

IV. Bodily Injury Coverage:

A. Bodily Injury coverage provides indemnification and a defense to insured’s who face claims in an MVA where the other party asserts a “serious injury” and that the insured was the at-fault party.

1. Allow for recovery of economic loss “in excess of basic economic loss” and for “non-economic loss”, which is pain and suffering damages.

a. in excess of basic economic loss means wages in exceeding $2000 per month and any economic loss in excess of $50,000.

2. The minimum limits in NY are $25,000/50,000.

a. Absurdly low-nobody should have minimum limits:

-cannot protect personal assets and personal property.

-examples on inadequate coverage.

b. This means there is $50,000 available for each accident and no one person can get more than $25,000.

3. Single Limit Policies:

a. The stated limit applies to every claim except PIP with no individual per person limits.

B. Bodily injury limits apply when there is a claim that the insured was at fault in causing the MVA.

C. Two pre-conditions to a BI lawsuit:

1. Evidence that the insured was negligent;

2. Evidence that the injured party meets the “serious injury” tort threshold as defined in the statute.

D. What is a “serious injury”?

1. Insurance Law 5102(d) defines a ‘serious injury” as one that results in:

a. death;

b. dismemberment;

c. significant disfigurement;

d. a fracture;

e. loss of a fetus;

f. permanent loss of use of a body organ, member, function or system;

g. permanent consequential limitation of use of a body organ or member;

h. significant limitation of use of a body function or system; or

i. a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred and eighty days immediately following the occurrence of the injury or impairment.

2. “Serious Injury” is a threshold, not a measure of recoverable damages. A. The following hypothetical is useful to illustrate this point:

Two passengers in the same car involved in a motor vehicle accident with another vehicle that is clearly liable for the accident. Both sustain soft tissue injuries that result in substantial subjective pain, but that lack any objective findings of the injury. Both are prevented fromperforming substantially all of their activities of daily living for 80 days after the accident, but then return to all activities, albeit with pain. The physicians believe that each is living day to day with pain due to soft tissue injury. In addition to the soft tissue injury, one of the two sustains a simple accident-related fracture of the pinky on his non-dominant hand. The passenger with the pinky fracture can sue the at fault driver to recover for his non-economic loss for the fracture and for all of his accident-related injuries because his pinky fracture meets the serious injury threshold. The other passenger cannot bring a lawsuit against the at fault driver, but is limited to first party benefits for basic economic loss, because none of his injuries meet the threshold.

3. Thompson v. Abbasi, 15 AD3d 95 (1st Dept. 2005), the Appellate Division, First Department, stated the following about the “serious injury threshold”:

In the context of this appeal, we engage in the perennial debate over the issue of whether a plaintiff’s evidence of personal injury meets the statutory threshold set by Insurance Law Section 5102(d), ‘an elusive standard that all too frequently escapes facile and final resolution.’

Consequently, we respectfully and simply urge that the ‘serious injury’ threshold be the subject of High Court interpretation or statutory reform aimed at drawing a brighter line between those cases where plaintiff’s injuries are truly and verifiably ‘serious’ within the meaning and intent of section 5102(d) and those which are neither.

One need only examine the scores of repetitive judicial and legal debates on this issue to conclude reasonably and quickly that the status quo is a diversion of precious court resources which is correctable in the interests of justice, fairness and efficiency.

V. Med-Pay Coverage:

A. “Med-pay” coverage, which will pay for medical expenses for one or more people involved in a motor vehicle accident regardless of fault.

1. For personal policies, the limits are ordinarily $1,000, although a person or entity can buy more.

2. Commercial policies usually have $10,000.

B. This coverage is really a “lawsuit avoidance” coverage because it allows adjusters to cover medical expenses for injured people up to the limit of med-pay coverage without getting into issues of liability and serious injury.

C. Any claim must be made within one year of the accident and it can be used for any person injured in an MVA, including the insured.

1. Can be used to satisfy liens and rights of subrogation.

VI. Workers Compensation:

A. A person involved in a motor vehicle accident while in the scope of his or her employment can resort to the workers compensation system for first party benefits and, in the event of a serious injury, can also bring an action against the at-fault driver.

B. Workers Compensation Law Section 29 authorizes an employee injured of killed on the job to both collect Workers Compensation benefits and pursue an action against the wrongdoer, but with several important strings attached:

1. The Workers Compensation carrier has a lien against proceeds recovered from the injured tortfeasor;

2. The employee must notify within 30 days the Board, his employer and the carrier of his/her pursuit of a third-party action;

3. Any third-party action cannot be settled without the written permission of the workers compensation carrier;

4. If the at-fault party is a co-employee, the injured party is limited to the workers compensation remedy and cannot bring an action against the co-employee or the employer.

a. Example: Two employees of a dental office are transporting some office equipment from one dental office to another. The vehicle is owned by the dental practice. The driver runs a stop sign and is broad-sided by a truck, killing the passenger. The passenger’s family is limited to workers compensation and cannot file an action against the owner of the car (her employer) or the driver (co-employee in the scope of her employment).

VII. Supplemental Uninsured/Underinsured Motorist Coverage:

A. “SUM” coverage, provides coverage to an insured and his or her family members injured in an auto accident where:

1. the at-fault party flees the scene and cannot be located,

2. has no insurance (uninsured claim), or

3. has less liability coverage that the insured’s SUM limits.

B. Whether this coverage is available for a particular accident is determined by:

1) whose fault the accident was;

2) the amount of your SUM coverage; and

3) the amount of liability coverage the at-fault driver(s) has.

a. Example, if someone ran a red light and collided with your car causing you a significant injury, that driver had the minimum coverage allowed under the law (currently $25,000) and you had $100,000 of SUM coverage in your policy, you would be entitled to recover up to $75,000 from your insurance company.

C. In order to recover SUM benefits, the injured party must give his/her carrier written notice of the possibility of a SUM claim within fairly strict time limits, which can be as short as 30 days. The failure to do so can result in the loss of this coverage.

D. In uninsured motorists cases, the insured must provide the carrier with an affidavit within 30 days detailing what was done to locate coverage or, in the event of a hit and run, find the driver.

E. SUM limits cannot exceed your BI liability limits.

F. SUM is not liability coverage, so liens and rights of subrogation do not apply to it.

G. It is cheap and everybody should have it to their full liability limits, including umbrella coverage.

I. For businesses, if the named insured is an entity, there will be no named insured coverage. Firefighter example.

VIII. Liens and Rights of Subrogation:

1. The No-Fault law provides where an insurer is liable for first-party benefits to a “covered person” that arise from the negligence of a “non-covered person”, the carrier has a lien for its first party benefits.

2. No-Fault carriers that pay Additional Personal Injury Protection benefits (APIP) have a right of subrogation for payments in excess of first party benefits.

A. Does not apply to SUM coverage.

IX. How do I advise people buying insurance?

1. Consider purchasing APIP:

A. It is not expensive;

B. Especially important if the person has no or inadequate health insurance.

2. BI liability limits must:

A. Be above the legal minimum

1. $25,000/$50,000 provides no protection to anybody.

B. Take into account personal assets and property of the insured

C. For high net worth individuals, consider a personal and/or corporate umbrella.

1. Make sure underlying limits meet the requirements of the policy-no gaps.

D. Always have SUM coverage in the amount of the BI liability limits

1. This should include attaching to any umbrella.

2. Why should we be spending our money to indemnify the world with high BI limits while risking that the people with whom we might be involved in an MVA will have the minimum statutory limits?

The Court’s Decision in Kash

Writing for the majority, Justice Pine (joined by Justices Fahey and Gorski) reviewed the somewhat tortured history of the Fourth Department’s prior interpretations of §2801-d in its earlier decisions in Goldberg v. Plaza Nursing Home Comp., Inc., 222 AD2d 1082 (4th Dept. 1995) and Doe v. Westfall Health Center, 303 AD3d 102 (4th Dept. 2002), and held: 

Because we conclude that the language of Public Health Law §2801-d is clear and unambiguous, we are required to give effect to its plain meaning. The remedies set forth in section 2801-d “are in addition to and cumulative with any other remedies available to a patient, at law or in equity or by administrative proceedings” (§2801-d [4] [emphasis added]). Therefore, although “plaintiff possessed the right to bring a[n] . . . action predicated upon defendant[s'] negligence” (Goldberg, 222 AD2d at 1084), we conclude that she is not precluded from asserting a separate cause of action under section 2801-d.

The majority deserves credit for correcting an error in interpretation made by a prior panel of the Fourth Department in Goldberg regardless of how painful it may have been to admit the error. The Court’s reversal of Goldberg actually began with its decision in Doe in 2002, when the Court corrected its prior ruling that §2801-d imposed “absolute liability”. The Doe Court ultimately permitted the plaintiff to continue both common law and §2801-d claims simultaneously because, under the facts of that case, the common law claims would have been “difficult to prove”. The majority in Kash, however, went even further. It rejected the Doe holding as well, and recognized that preserving precedent that is clearly wrong must be subordinated to interpreting the statute correctly and as the legislature clearly intended. 

The dissent in Kash, written by Justice Centra, and concurred with by Presiding Justice Scudder, chided the majority for departing from prior precedent in Goldberg and Doe, stating: “We cannot agree with the majority’s conclusion that our prior decisions should be so easily cast aside.” The dissent continued to favor an approach where §2801-d claims would be limited “to those cases in which recovery under a common-law cause of action would prove difficult or inadequate.” However, as the majority emphasized in its criticism of this approach, how would trial courts determine which cases were “difficult” to prove? Since all medical malpractice cases are difficult to prove, how difficult would they have to be to meet this standard? And just as importantly, when would such a determination be made? At the pleading stage? After discovery? The dissent’s proposed solution would, in the words of the majority, be “unworkable.” 

Ruling Helps Victims of Nursing Home Abuse Protect and Enforce Their Rights

Section 2801-d was enacted to provide incentives to nursing home patients to protect and enforce their rights in civil court as a way to combat what was perceived by the legislature as rampant abuse of these elderly patients. These incentives were deemed necessary because awards of damages for elder abuse in nursing homes under the common law were likely to be so low as to provide a disincentive to prosecute those claims.

Twenty-five years later, the same disincentives are still very much present. Thus, §2801-d is as necessary now as it was then to provide benefits not available under the common law, including attorneys’ fees, punitive damages, and exempting any recovery from Medicaid eligibility consideration. The result will be to encourage more civil actions to remedy and recover for nursing home abuses. After Kash, it appears that Public Health Law §2801-d is now fully available to injured residents of nursing homes in all judicial departments in New York State. Before the Fourth Department’s decision in Kash, it was the only judicial department that had restricted the use of §2801-d. 

Unfortunately, the plaintiff Gertrude Kash died last week at the age of 90 of complications caused by the injuries she sustained in a nursing home three years ago. She was a wonderful and courageous woman. She lived long enough to learn of the outcome of her appeal and was proud that the efforts made in her case might help other victims of nursing home neglect or abuse in the future.

Under the old law, an injury victim had little recourse if the negligent party did not inform his or her insurance company about the claim in the time required by the insurance policy. The insurance company could deny the claim on the ground of late notice, even if the late notice had no effect on the company’s ability to defend the claim. Further, the injury victim could not challenge the denial of claim in court until after he or she obtained a judgment against the negligent party and the insurance company refused to pay. This forced the injured party to spend a considerable amount of time and money litigating the case with no way of knowing in advance whether there would be any insurance coverage to pay the verdict and expenses if he or she won the case at trial. 

The new law

 In July of this year, Governor Patterson signed into law a bill, effective January 17, 2009, that bars a liability insurance company from denying coverage based on late notice unless the company can show that it was prejudiced by the delay. In order to show prejudice, the insurance company would have to prove that the late notice “materially impairs the ability of the insurer to investigate or defend the claim.” Insurance Law §3420(c)(2)(C). This relaxation of the notice rules is not absolute. The law includes a rebuttable presumption that the company has been prejudiced if notice of the claim is given more than two years after the time required by the policy. In addition, prejudice is presumed if the insurance company is not notified until after the claim has already been settled or tried in court. Insurance Law §3420(c)(2)(B). 

The new law also gives an injury victim the right to challenge the insurance company’s denial of coverage at the beginning of his or her personal injury case rather than at the end. An injured party can now bring what is known as a declaratory judgment action to determine whether the insurance company can prove that it was prejudiced in any real way by the late notice of claim. Insurance Law §3420 (a)(6). 

All in all, the revisions to Insurance Law §3420 are beneficial and will help level the playing field between injury victims and the insurance industry in New York State.

Introduction and background

The rules followed in this system are based upon a combination of statutory law (laws passed by the legislature) and what is referred to as common law, the law we inherited from the judicial precedents of English law, which have evolved through the judicial decisions of judges in the State of New York over the past few hundred years.

As compared to the criminal justice system, which is designed to punish and deter criminal conduct, the civil justice system is designed to compensate victims of negligence and to resolve other private disputes between citizens or corporations. Although there are rare cases in which a court can order that a defendant do something or stop doing something, referred to as injunctive relief, the vast majority of civil cases request payment of money damages for injuries suffered to person or property or to settle some other type of dispute, e.g. a breach of contract.

Commencing the law suit

In New York when an injured person retains a lawyer to start a law suit, the act that the lawyer performs to accomplish this is to file a summons and complaint in the appropriate county clerk’s office (usually in the county where the incident occurred, but occasionally in some other county where either the injured person or the person that caused the injury resides). This act of filing the summons and complaint stops the legal clock established by the applicable statute of limitations, which is window of time after the incident that the legislature has adopted for the filing of the case. This is a very important deadline because it cannot be extended by a court. The filing of this summons and complaint tolls (stops the clock on) this statute of limitations as long as the summons and complaint is served (personally or otherwise delivered) to the defendant within 120 days of the filing. Once this is accomplished and the case has started, the statute of limitations is satisfied and is no longer relevant.

In a civil lawsuit, the person who makes the claim and files the complaint is referred to as the plaintiff. The person or entity sued for causing the injury is referred to as the defendant. The complaint filed to start the case generally describes the claim: what the defendant did, why it was wrong, and what general damages it caused. This document is intended to provide notice to the defendant of the claim. Notice in this context means only a general idea of what occurred and when, not all of the specific facts that will eventually be proven at trial. Other devices used later in the discovery phase of the case provide the additional specifics that are required and not contained in the original complaint. The summons is a short document that identifies the parties and summons the defendant to respond to (answer) the complaint within a certain period of time (20 or 30 days, depending on the method of service).

The answer is the document the defendant serves upon the plaintiff’s attorney to respond to the complaint. The answer admits, denies or states that the defendant does not have enough information to admit or deny, the allegations made in the complaint. The answer also contains what are referred to as affirmative defenses, which are defenses that if established by the defendant can limit the amount the defendant would have to pay or even require the complete dismissal of the case. Once the answer is served and filed by the defendant, the discovery phase of the case begins.

The pre-trial discovery phase

The discovery phase, also referred to in New York as the disclosure phase, as the names suggest, is the part of the case where the parties are required to exchange certain information relevant to the case to allow the other side to properly prepare for trial. There are a number of discovery devices that are used for this purpose. With the answer to the complaint defendants will typically serve demands for further written information. These demands can take the form of something called a bill of particulars, or in other cases, a list of questions called written interrogatories. These devices both require written answers sworn to by the plaintiff to certain questions posed about the allegations of how the injury occurred and what the extent of the injury is and is expected to be. Defendants also commonly serve demands for the production of documents, including tax returns, accident reports and other documents the plaintiff might have that are relevant to the claim. In cases alleging that a plaintiff has suffered an injury, such as an auto accident case, medical malpractice case or product liability case, the plaintiff must also provide the defendant with medical records authorizations to allow him to obtain from treating doctors and hospitals all relevant medical records to the case. In the discovery phase the courts interpret what is relevant very broadly. This means that when you bring a personal injury case you must understand that your medical history will likely be opened up for inspection by the defendant, except under limited circumstances where the medical history is clearly irrelevant to the claim.

Simultaneous with the discovery demands served by defense counsel on plaintiff’s counsel, plaintiff’s counsel will also serve discovery demands on the defense counsel asking for specific information about any defenses raised by the defendant in the answer, the names and addresses of witnesses, the amount of insurance available to cover the claim, the production of relevant documents and other information. In product liability cases such as defective drugs or products, extensive requests are made for the design documents relating to the product including all testing reports, blueprints and internal memoranda of the company about the product. In these types of cases this phase can be lengthy as there is typically a great deal of documentation involved in the design and marketing of a product alleged by the plaintiff to be defective and to cause injury.

After the written discovery requests by each side are exchanged and responded to, the next phase is the scheduling of depositions also referred to in New York as examinations before trial (EBTs). The deposition occurs typically in one of the lawyers’ offices. The party is asked questions to answer under oath while a stenographer records what is said. A transcript of this testimony is produced which can then be used later to contradict any contrary testimony given at trial. Your attorney is present for your deposition and can object to questions that are asked if they are improper, but otherwise cannot coach you or advise you how to answer specific questions, except in the limited circumstance where the answer involves disclosure of legally privileged information (e.g. discussions between you and your attorney). The deposition of the defendant or in the case of a corporation, representatives of a defendant, are also scheduled and completed during this stage. In some cases witnesses who are not available to attend the trial will also be deposed and their testimony preserved, frequently on videotape. Many times treating doctors are given the option of giving testimony this way instead of having to appear at the trial.

Once the depositions are completed, frequently an injured plaintiff will have to submit to an examination by a physician of the defendant’s choosing, referred to as an independent medical examination (IME). This is a bit of a misnomer, as the physician chosen is frequently an advocate for the defendant’s position and far from independent. However, the law requires that an injured plaintiff submit to the examination nonetheless and plaintiffs must be careful to understand the purpose of the exam and not consider the physician as someone who is out to help them.

Getting the case on the trial calendar

When all discovery is completed the plaintiff in New York files what is called the note of issue, which states that the case is ready for trial and requests that a trial be scheduled. If a specific judge has not been previously assigned to the case then one will be assigned with the filing of the note of issue and that judge will then be responsible for scheduling the case for trial. A judge may already be assigned at this point if some court intervention was necessary due, for instance, to a failure of one party to properly respond to demands for discovery made by the other or if a motion to dismiss the case was made. In medical malpractice case judges are always assigned early on as part of a special package of procedures that apply only to this class of cases.

The length of the discovery phase varies from case to case based upon many factors, some in the lawyer’s control, but most not. For the majority of cases the discovery phase measured from after the answer is filed or served takes about six months to two years. In complex product liability or medical malpractice cases, the period can be longer. Moreover, if the judge makes a ruling during the discovery phase that is appealed by one party to the appellate court, referred to in New York as the Appellate Division of the Supreme Court, then this process can take considerably longer.

Once the case is assigned to a specific judge the decision of when it will be tried is based upon a number of factors including: the type of case, judge’s backlog of other cases to be tried, other previously scheduled trials for the lawyers, availability of witnesses and others. Some cases are given a date certain for trial while others are put on a calendar and called for trial when they reach the top of that list. Typically more complex trials requiring medical and professional witness testimony such as medical malpractice and toxic tort cases will receive dates certain because of the difficulty arranging testimony from such witnesses on short notice.

The trial

The first phase of the trial is when the jury is selected. This is referred to as jury selection or sometimes as voir dire. In civil cases in New York this is typically a phase of trial that is conducted by the lawyers under the supervision of a clerk without the trial judge present. During this phase each side’s attorney is permitted to question prospective jurors on their knowledge of the case, parties and witnesses, and also on areas of potential bias for or against a party or a type of lawsuit. Civil juries consist of six jurors as opposed to twelve for a criminal jury. Depending on the length of the trial there will also be one or more alternate jurors chosen in case one of the six primary jurors becomes ill or is otherwise unable to complete the trial. During jury selection each side gets to excuse jurors whose answers to the questions posed provide cause to dismiss them as not likely to be impartial. Each side is also permitted to dismiss any three other potential jurors it chooses without stating any reason why. The dismissal of a juror in this fashion is referred to as a peremptory challenge, while dismissing a juror for cause is referred to as a challenge for cause.

Once the jury is selected, the trial begins in earnest and from that point forward the trial judge is in charge. After the judge provides some initial instructions to the jury, the opening statements are given by each side, with the plaintiff’s attorney always going first. The opening statement is a preview of what the proof is going to be in the case, to set a context for the jury for what they are about to hear. The judge instructs the jury that the opening statements are not evidence, meaning that the jury cannot decide the case based on facts stated by the attorneys, but rather, can only decide the case based upon facts stated by witnesses or found in documents and other physical evidence admitted into evidence.

After the opening statements, the plaintiff presents all of his or her proof. Once this is done, the plaintiff rests his or her case, and it is the defendant’s turn to present proof. Plaintiffs have the burden of proof on all matters alleged in their complaint. This means that they have to prove that each allegation they have made is more likely to be true, than not. This is a different burden of proof than the beyond a reasonable doubt standard in a criminal case. The civil standard, called proof by a preponderance of the evidence, is meant to require the plaintiff’s proof of a given point to outweigh, even slightly, the proof presented opposing that point. Where a defendant has alleged an affirmative defense in his answer, then he must bear the same burden of proof on that defense.

When proof is completed the both sides are permitted to make a closing statement or summation, summarizing the evidence presented and what they think the outcome should be on each issue. In this instance, the defendant goes first and the plaintiff goes last. After the closing statements are made to the jury, the judge then instructs the jury as to the rules of law they must apply to the facts they find. The jury is the ultimate finder of the facts, but the jury must accept the rules of law that that the judge provides to them and apply those rules to the facts that they find to come to an outcome.

Appeals

The losing side has the right to appeal an adverse verdict to the Appellate Division. Appeals can be based upon a particular ruling that went against the losing party during the case, or upon the evidence as a whole if the verdict was against the weight of that evidence. An appeal can also be based upon the amount awarded being too high or too low. Appellate courts try not to reverse jury verdicts, so to have a jury verdict reversed requires a strong showing that something went wrong at the trial. If the plaintiff succeeds in convincing the jury and receives a verdict in a personal injury case and the defendant does take an appeal, one saving grace is that the defendant must pay statutory interest dating back to the date of the judgment if the appeal is unsuccessful. Because the statutory interest rate is 9% straight interest (not compounded) this can provide a deterrent to frivolous appeals by the losing defendant. The law, however, does not permit the plaintiff to receive interest on the amount awarded back to the date of the injury. Thus, the defendant does not have the same incentive to avoid delay during discovery as it has to avoid unnecessary delay during the appeal.

Settlements

Settlement can happen any time from before the case is started to after the verdict and before an appeal is heard. Frequently settlements occur just before trial and sometimes just before the jury is about to announce its verdict. Whether or not a personal injury case will settle at an early time is dependent upon numerous factors including the type of case, the number of defendants and the strength of the defenses raised. Auto accident cases have a higher rate of pre-litigation settlement than do other types of personal injury cases, although that rate has dropped in recent years since many insurance companies have hired salaried lawyers to represent insured auto accident defendants rather than paying outside firms by the hour to do so. Medical malpractice claims have the lowest settlement rate due to their complexity and the high rate of success the insurers have in defending them at trial. Some statistics suggest that well over 90% of all medical malpractice cases tried result in defense verdicts. However, many of the strongest cases are not tried but settled, so this does not mean that only 10% of medical malpractice victims are successful.

Settlements are usually advantageous because they provide a definite outcome and avoid the risk of an unfavorable jury verdict. However, experience has shown that firms that are prepared to try a case to conclusion have a better record of settlement for higher amounts than firms that have a history of settling all cases. This only makes sense when considered from the perspective of insurance companies. If the insurance company knows that the attorney has rarely tried a case then it also knows that as the deadline of trial approaches he is likely to try and convince his client to accept less to settle. Firms like Faraci Lange which have seasoned trial lawyers with years of experience and the respect of their peers and insurance companies alike will frequently be offered much higher amounts to settle than will firms without this experience and reputation. That is why choosing the right personal injury attorney is very important to the outcome of your case.