Long Island, Manhattan Accident Attorney Blog

More Drivers Are Uninsured As Recession Grows Deeper

Chances are increasing that the next fender bender you are involved
in could be with someone without car insurance. As the recession
leaves millions of workers unemployed and pressures family budgets,
one place many are cutting is their insurance coverage.

The Insurance Research Council (IRC) estimates that by next year
nearly one in six motorists may be driving without insurance. That’s 3
million more uninsured drivers than just five years ago.

For every 1 percent increase in unemployment nationwide, the
percentage of uninsured motorists increases three-quarters of a
percentage point, IRC Vice President David Corum said. That could
result in a total of 16.1 percent by next year, an all-time high. The
rate was 13.8 percent in 2007. Based on current unemployment rate
projections, the percentage of uninsured motorists is expected to rise
to 16.1 percent in 2010.

The group examined data collected from nine insurance companies,
representing approximately 50 percent of the U.S. private passenger
auto insurance market. According to the IRC, the estimates for
uninsured motorist activity were based on a ratio of insurance claims
made by individuals who were injured by uninsured drivers to claims
made by individuals who were injured by insured drivers. The study
contains recent statistics by state on uninsured motorists claim
frequency, bodily injury liability claim frequency, and the ratio of
uninsured motorists to bodily injury claim frequencies.

New York is not in as dire shape when it comes to car insurance as it
is with the economy. The Empire State is tied for the third lowest
uninsured motorist rate at 5 percent, 4 percent behind Massachusetts. New Mexico led all states with a 29 percent uninsured motorist rate.

Travelers Cos. Inc. reports that there has recently been a mild
increase in uninsured claims and warns against dropping insurance as a
way to save money. William Pearse, the St. Paul, Minnesota company’s
vice president of product strategy and design notes that it’s equally
important to carry liability insurance that covers people in the other
car and to have uninsured motorist coverage on your policy, which
protects you if the other car is not insured. The average cost for
liability insurance in the United States is about $40 to $50 a month.
Although costs can vary, uninsured motorist coverage typically adds
from 7 percent to 10 percent to an insurance premium. Drivers without
at least liability insurance are breaking the law in all but two
states.

Defective Car Cases

When attempting to show a car manufacturer or seller’s liability for
a car defect, you do not need to show that they were careless. Unlike
personal injury claims that are based on negligence, liability in car
defect cases is controlled by strict liability. Regardless of the
steps a manufacturer says it takes in creating or handling a car, you
can make a strict liability claim based on a car defect if certain
conditions are present:

1) The car had an unreasonably dangerous defect that harmed you. The
defect may arise from either the car’s design, during handling,
manufacture, shipment, or through a failure to warn consumers of a
dangerous aspect of the car.

2) An injury arose from the defect, while the car was being used properly.

3) There were no substantial alterations to the car from its
original condition when sold.

Manufacturer Defenses

The car manufacturer and the seller may have a defense to your strict
liability claims, particularly if you have owned the car for some
time, if it can be shown that you knew about the defect but continued
to use the car anyway. This can be established through either the
car’s condition or from your description of the use of your car. In
some states, a manufacturer or seller may also be able to defend
against your lawsuit under the theory that your contributory or
comparative negligence was the cause of your injuries.

Punitive Damages

There has been an increasing trend in car liability of
awarding more punitive damages for those who have successfully brought
a claim against a manufacturer or seller. These punitive damages
awards are above and beyond damages to compensate a plaintiff for his
or her injuries, and can range into tens of millions of dollars in
certain instances. Punitive damages are intended to punish
manufacturers and encourage them to fix defects that have resulted in
injury. Traditionally, car manufacturers have engaged in what is known
as a “cost-benefit” analysis when deciding whether to change a
potentially defective design. In this process, the manufacturer will
calculate the cost of implementing a design change, and weigh that
cost against the potential cost of litigation and settlement after the
defect causes injuries. Punitive damages are often awarded in order to
add to the potential costs a manufacturer will face if it decides not
to fix a design defect, thus shifting the cost-benefit analysis toward
the elimination of defects.

Defective Car Cases

When attempting to show a car manufacturer or seller’s liability for a car defect, you do not need to show that they were careless. Unlike personal injury claims that are based on negligence, liability in car defect cases is controlled by strict liability. Regardless of the steps a manufacturer says it takes in creating or handling a car, you can make a strict liability claim based on a car defect if certain conditions are present:

1) The car had an unreasonably dangerous defect that harmed you. The defect may arise from either the car’s design, during handling, manufacture, shipment, or through a failure to warn consumers of a dangerous aspect of the car.

2) An injury arose from the defect, while the car was being used properly.

3) There were no substantial alterations to the car from its original condition when sold.

Manufacturer Defenses

The car manufacturer and the seller may have a defense to your strict liability claims, particularly if you have owned the car for some time, if it can be shown that you knew about the defect but continued to use the car anyway. This can be established through either the car’s condition or from your description of the use of your car. In some states, a manufacturer or seller may also be able to defend against your lawsuit under the theory that your contributory or comparative negligence was the cause of your injuries.

Punitive Damages

There has been an increasing trend in car liability of awarding more punitive damages for those who have successfully brought a claim against a manufacturer or seller. These punitive damages awards are above and beyond damages to compensate a plaintiff for his or her injuries, and can range into tens of millions of dollars in certain instances. Punitive damages are intended to punish manufacturers and encourage them to fix defects that have resulted in injury. Traditionally, car manufacturers have engaged in what is known as a "cost-benefit" analysis when deciding whether to change a potentially defective design. In this process, the manufacturer will calculate the cost of implementing a design change, and weigh that cost against the potential cost of litigation and settlement after the defect causes injuries. Punitive damages are often awarded in order to add to the potential costs a manufacturer will face if it decides not to fix a design defect, thus shifting the cost-benefit analysis toward the elimination of defects.

New Limits on Medicaid

A recent article in the November issue of "The Suffolk Lawyer", discusses the important issue of Medicaid liens. In it, it states that "the Second Department has limited the right of a Social Services Department to recover from a personal injury settlement the monies expended by Medicaid in the care and treatment of a person with Down’s Syndrome to the period after the creation of a supplemental needs trust (SNT) and not from the date Medicaid first established the recipient’s eligibility for benefits. In doing so the court harmonized several provisions of state and federal law respecting the creation of SNTs in light of the requirements that an SNT contain repayment language and in consideration of the recent United States Supreme Court decision in Arkansas Department of Health and Human Services v. Ahlborn (547 US 268). "

The article further discusses the case, Matter of Ruben N. v. Elizabeth T., 2008 Slip Op 06997, decided September 16, 2008, which involved a person with Down’s Syndrome, wherein Medicaid paid his medical bills. Ultimately, the malpractice action settled on August 23, 2002 for $1,600,000.00, with DSS agreeing to accept $102,423.56, in compromise of the 104-b Medicaid lien, attaching against the proceeds of the personal injury action.

By effecting this resolution with DSS, the balance of the settlement proceeds were placed in a supplemental needs trust, which permitted those funds to be disregarded in any calculation of eligibility for Medicaid benefits. The supplemental needs trust in compliance with both federal, state and Social Services law normally contains language, that upon the death of the beneficiary, "the state would receive the remaining trust corpus to the total value of ‘all medical assistance’ provided by Medicaid to the beneficiary."

The party to the case died in 2003. At that time DSS demanded payment, "for all Medicaid disbursements for Ruben’s medical care during his entire lifetime, both before and after the spinal surgery resulting in the paralysis, in the amount of $632,714.22".

It was ultimately decided by the Appellate Division Second Department, to limit the monies received by DSS to the period of time after the creation of a supplemental needs trust, and not the date that Medicaid first established the recipient’s eligibility for benefits.

Kugel Mesh Hernia Patch Recall

The popular Bard Composix Kugel Mesh Hernia Patch has been linked to serious, life-threatening side effects and has been voluntarily recalled by its manufacturer and in association with the U.S. Food & Drug Administration (FDA).

On January 8, 2008, a Federal Court judge expanded the scope of current hernia patch lawsuits to include all Davol/Bard Marlex/Teflon patches, with or without "memory recoil rings."

As early as August 2001, Davol began receiving reports of complications and failures of its hernia mesh patch. These reports advise of bowel obstructions, adhesions, constipation, and fistula resulting from implantation of Composix Kugel® Mesh Patches. The reports also contain descriptions of problems other then memory recoil ring breakage including, "buckled mesh," "patch shriveling" and "edges curled up," as well as descriptions of the mesh as being "crumpled," "wrinkled," "rolled up," "delaminated" and "folded."

What is the Kugel Patch?

The Kugel patch is used to repair Inguinal, Ventral and Laparoscopic hernias. In the more common Ventral or Incisional hernia, the patch is placed behind the hernia defect through a small incision. The patch is then held open by a "memory recoil ring" that allows the patch to be folded for insertion and later spring open and lay flat once it is in place.

Timeline - Why was the Kugel Patch Recalled?

In three (3) separate product recalls, Davol Inc. and its subsidiary C.R. Bard Inc. in association with the FDA initiated a voluntary recall of the Kugel patch. The dates for the specific recalls are as follows:

December 22, 2005

March 31, 2006

January 24, 2007

The recall of the hernia patch was initiated because the "memory recoil ring" that opens the Kugel patch can break under the stress of placement of the large sized products in the intra-abdominal space.

What are the Side Effects?

The memory recoil ring defect in the hernia patch can lead to serious, life-threatening side effects. The side effects of a defective patch are as follows:

bowel perforation;

bowel obstruction;

chronic intestinal fistulae (abnormal connections or passageways between the intestines and other organs);

serious infection; and/or

death.

Signs of a Problem

Re-inventing the Malpractice "Crisis"

From a recent issue of The New York Sun:

"A cash-strapped Brooklyn hospital will stop delivering babies, aiming to regain its financial footing and reduce its escalating medical malpractice costs.

Long Island College Hospital, in the Cobble Hill neighborhood, plans to shutter its obstetrics department pending approval from the state's Department of Health, hospital officials said yesterday. Last year, the hospital delivered 2,800 babies, and it is on track to deliver about 2,200 this year."

The premise here is that mean old lawyers are keeping people from even being born because all they do is sue people.

In the first place, it has been our experience that the only thing that causes insurance rates to rise are the insurance companies themselves. And considering that so few medical malpractice cases even make it to trial, it seems absurd that lawsuits are the cause of rising insurance rates. We reccomend a good solid look at the profit margins of the insurance companies lately. They have taken a beating just like everyone else. The last time they lost money was in 2003 when the bond market tanked, and within two weeks they jacked their rates and blamed the lawyers.

Don't be fooled.

Toddlers and Toxic Substances

No parent would let their child play with a can of drain opener.

But the impact that more "ordinary" household cleaners, sanitizers and other substances can have on the metabolism of small children should NEVER be overlooked. The reasons are simple and various:

- Underdeveloped immune systems in children

- Smaller concentrations of toxins have greater effect on their smaller body mass

- They tend to put EVERYTHING in their mouths and noses---from their fingers to toys, clothing, baby wipes, etc.

- Direct contact with carpet and upholstery, leading to exposure to cleaning fluids

- More exposure to caustic/abrasive bathroom cleaners used in tubs/bathrooms

One recent observation I have made is that many types of cleaning products are now made in "disposable wipe" form----like furniture wipes, bleach-containing cloths, Armor All, hand sanitizer----you name it. I guarantee you a toddler will not discriminate between an "Anti-Dust Formula Pledge Wipe with Allergen Trappers and the Natural Beauty of Lemon" and one of their own baby wipes if the polishing wipe is carelessly left hanging around. Of course, while it is probably not a good idea for a toddler to put either one in their mouth, I'm not sure what an "Allergen Trapper" really is, and I am reasonably certain that the beautiful 'lemon scent" is anything but natural. So take care how these seemingly harmless household products are used where small children will be present.

Top Ten Dangerous Toys of the Past Year

To help parents with the purchase of toys that are not only fun to play with but are safe for use, the nonprofit organization World Against Toys Causing Harm Inc. (WATCH) has issued its list of 10 toys that it considers dangerous enough that parents should exercise caution when allowing their kids to play with them.

Inflatable Giga Ball: Watch notes that this inflatable ball that kids can crawl into, tumble around, and bounce in could cause potential impact and serious injuries.

Sportsman Shotgun: This toy is made by Parris Manufacturing Co. and comes with rubber bullets that could cause eye injuries.

Animal Alley Purse Pet: WATCH is concerned that the hair on these, dolls made by Geoffrey Inc./Toys ‘R’ Us, can easily be removed and swallowed by kids, potentially causing aspiration and ingestion injuries.

Go Go Minis Pullback Vehicle: Made by Kid Galaxy Inc., WATCH is concerned that the toy truck’s back tires might come off and pose a choking hazard.

Spider-Man Adjustable Toy Skates: While Street Flyers LLC recommends that kids use knee pads, elbow pads, helmets, and wrist guards to prevent impact injuries, only the pads come with the skates.

Walk’n Sounds Digger the Dog: The toy’s dog leash is 2 inches longer than the toy industry 12-inch limit and may cause strangulation or entanglement injuries. This product is made by Hasbro/Playskool.

Pucci Puppies - My Own Puppy House Golden Retriever: This Battat Inc. toy comes with small parts that can pose a choking hazards to kids.

Meadow Mystery Play-A-Sound Book With a Cuddly Pooh: The Disney Pooh’s mask could pose a choking hazard to children if removed.

Extreme Spiral Copters: This slingshot-like toy can potentially cause eye injuries. Made by Toysmith Group.

Peanut Butter Salmonella Recalls Include Little Debbie Snacks

Little Debbie snacks are the latest peanut butter-containing foods to be recalled amid a nationwide salmonella outbreak. The outbreak has been linked to a Peanut Corporation of America (PCA) facility in Georgia which supplies peanut paste and peanut butter to 85 other food companies. Little Debbie joined a growing list of companies that recalled snacks over the weekend. Meanwhile, the Food & Drug Administration (FDA) is warning consumers to avoid eating any foods that contain peanut butter.

According to the Centers for Disease Control (CDC), the outbreak strain of Salmonella Typhimurium has sickened 474 people in 43 states. At least six have died. Nearly a quarter of those sickened have required hospitalization, the CDC said.

Peanut butter became the prime suspect in the salmonella outbreak after the bacteria was found in an opened 5-pound container of King Nut peanut butter made by PCA. That prompted both King Nut Company and PCA to recall peanut butters made at the plant, including those sold under the King Nut and Parnell’s pride labels.

Last week, the salmonella found in the King Nut peanut butter was confirmed to be the outbreak strain, and late Friday, investigators announced they found salmonella in peanut butter at PCA’s Blakely, Georgia facility. That plant has since been closed pending further investigation. In addition to peanut butter, the PCA factory also makes peanut paste, an ingredient in everything from baked goods to sauces.

The announcement set off an avalanche of recalls which are sure to continue in the coming days. Kellogg Company was the first to issue a snack food recall on Friday evening. The company is recalling several varieties of Keebler and Austin snack crackers as cookies, as well as Famous Amos cookies made with peanut butter.

Yesterday, McKee Food Corporation recalled all sizes of Little Debbie Peanut Butter Toasty sandwich crackers and Little Debbie Peanut Butter Cheese sandwich crackers. According to a McKee Food press release, those crackers were also made by Kellogg.

As a precaution, the FDA is urging consumers to avoid all snacks containing peanut butt or peanut paste until the salmonella investigation is complete. However, the agency said most peanut butter sold in jars at retail stores appears to be safe. PCA peanut butters are sold in bulk to food service firms and institutions.

5 Simple Steps To Deal With Your Insurance Carrier

Here are some tips you can use in dealing with insurance companies:

READ YOUR POLICY CAREFULLY: You should know exactly what is covered and how to appeal a denial by your insurance company.

BE VERY CAREFUL FILLING OUT FORMS: Even if you make an honest mistake your insurance company may seize on that as a reason to retroactively deny your coverage.

DO NOT CASH A PREMIUM REFUND CHECK: If your insurance company rescinds your insurance they may send you a refund for the premiums you paid. Cashing it may be interpreted as accepting their decision.

PUT EVERYTHING IN WRITING: Calling your insurance company is likely to be a frustrating experience, and you will not be able to prove anything that a company representative tells you over the phone. Keep records of all bills and correspondence.

CONTACT YOUR STATE INSURANCE DEPARTMENT: They may be able to help you. But they will not represent you in a private matter, so if all else fails you may need to consult with an attorney.

AND MOST OF ALL, DO NOT GIVE UP: Insurance companies count on you giving up. Fight for your rights.

Construction Prices Going Up?

According to a report by the New York Building Congress, the cost of construction in New York is going up about 1% a month.

The report blames the rising price of materials, high demand for labor, poor project planning and extensive regulations.

We can certainly believe that. At least the part about the poor project planning. The recent crane collapses have been a tragic illustration of the lack of oversight and proper inspections.

Do You Live Near one of The Most Dangerous Intersections in New York?

Bedsores Do Not Just Happen to "The Elderly"

It is a common misconception that decubitus ulcers ("bedsores," "pressure wounds") only happen to people of advanced age that are bedridden for extremely long periods of time. While factors like age, incontinence and certain types of medication are factors-----pressure, friction, humidity and temperature can cause this potentially deadly condition to develop in a shockingly short period of time, regardless of age.

RGGL was recently contacted by the family of a working woman in her 50's who walked into a Bronx hospital under her own power complaining of back pain. Although she had diabetes and hypertension (controlled by medication) she had no other significant medical history. She did require back surgery, and was hospitalized for approximately 8 weeks.

Her family came to meet with hospital staff members in anticipation of her release from the hospital for the holidays. One of her daughters was told that family members would have to be instructed in "wound care," which she presumed related to the surgical incision from the back surgery. She was shocked to learn (and see) that her mother had developed serious decubitus ulcers on her lower back and buttocks while at the hospital. This unfortunate woman now faces a long road to recovery, and remains hospitalized in a different institution, facing many complications such as the continuing spread of infection.

The development of bedsores can be easily prevented with proper care. They routinely appear on "bony" areas of the body that will remain in contact with the bed's surface for extended periods of time (heels, low back, elbows, ankles, e.g.) However, even the simple procedure of turning the patient every 2 hours can prevent this condition from occurring in the first place. These ulcers can begin as seemingly innocent areas of redness on the parts of the body mentioned. If you or someone you know have a loved one in the hospital or bedridden at home, make sure you discuss preventative measures with their health care professionals.

Bedsores are no "accident." They result purely from neglect. Contact an attorney familiar with nursing home/hospital negligence for more information about your rights.

More Drivers Driving Without Car Insurance

Americans have been seeking ways to cut their spending in these tumultuous economic times. One of the biggest cost casualties has been car insurance. The number of uninsured motorists nationwide has doubled in the past year from 10% to 20%, according to the online agency Insurance.com.

"Money is a little tight with people, and they decide if they need to skip on something, they'll let their insurance lapse," said Sam Belden, Vice President of Insurance.com. "It's directly attributable to the economy," he added. "And it's exacerbated by premiums also rising over the past year. When people are squeezed the most, the insurance rates are also going up."

Belden said insurance premiums have increased by 6 or 7 percent this year.

The Insurance Research Council, a group funded by the insurance industry, is expected to release a study next month showing that several hundred thousand drivers dropped their insurance in 2008, partly because of the economy and jobless rate. About 40 percent of callers who followed up on online applications this year let their policies lapse, up from 10 percent a couple of years ago.

David Corum, vice president of the council, said the study shows that a single percentage point increase in unemployment is associated with a half-point increase in uninsured drivers. Despite the hike in rates and the stumbling economy, Belden said policyholders should never let their coverage lapse. Drivers who let their policies lapse usually must pay up to a 50 percent surcharge for a new policy.

Belden said drivers should talk to their agents about various payment options suited for their income. "If you pay once every three months, the amount may look absurd," Belden said. "You can move to monthly payments to even it out. If it gets too desperate, some insurance companies take partial payments at a time. If all else fails, maybe you're with the wrong company. There's a lot of rate variation between the insurance companies out

New York's Liquor Liability Law - Too Much Holiday Cheer Comes With a Price...

Under New York Law, bartenders, shopkeepers, wait staff and other persons who serve alcoholic beverages to "visibly intoxicated" persons can cause their employers to be held legally responsible for injuries or death to innocent third parties. This liability extends not only to motor vehicle accidents caused by drunk drivers, but also to victims of assaults or brawls precipitated by continuing to serve intoxicated patrons.

Employees who serve alcohol are trained to see if patrons have slurred speech, bloodshot eyes, exhibit loud or abusive behavior, or have problems with balance. They are expected to use good judgment in whether or not to continue to serve a patron who appears to be drunk.

Parents or other adults who serve alcohol or provide drugs to minors at parties in their home can similarly be held responsible if injuries result.

Enjoy the holidays----but let common sense prevail.

If you or a loved one has been injured because of such poor judgment, consult an attorney to explain and protect your rights.

It's Winter!!!! Be Safe-----and Make It Safe for Others......

Here in the New York City area we are getting our first dusting of snow. Last night, I begrudgingly and with Scrooge-like scowls trudged into my basement to bring up a bucket of salt for my walks and paths. It got me thinking......

Please be careful driving, and remember that when bad weather and icy conditions hit, it is not a good idea to speed up so you get to your destination sooner. Unless, of course, you like the idea of having your last name changed to "Defendant."

Pack up some kitty litter in your car (for traction) if you get stuck in snow, along with a collapsible shovel. If you find yourself stuck in the snow, spinning your wheels is like...uhh.....well......spinning your wheels. You will just get stuck deeper. Turn your front tires to the left and right to help clear as much snow away from the wheels as you can, and use your handy shovel to clear the rest. The kitty litter (or sand) will help the tires grab and get you out.

Next time you stop for gas, pick up an extra gallon of winter windshield fluid and keep it in the car. You never realize the reservoir is empty until you have freezing sleet in front of your face. Opening the widow and trying to wipe your windshield clear with your left hand while driving on I95 is not recommended by AAA. (You know who you are.)

Ice scraper is a must. Lock de-icer is a good idea, but most people I know keep it inside their car. (???) The few times I had trouble opening a frozen car lock, I used a cigarette lighter to heat up the key and then placed it in the lock. Of course, those were the "good old days" when everybody smoked, and we actually had metal keys instead of things that look like mini-phasers from Star Trek. Progress.

In addition to the obvious "slow down" advice, leave extra room between your car and others for extra stopping distance.

And the best advice: when it gets to the point where you need a push broom to get the snow off your car, and boiling water to melt the glacial ice off the windshield, go back inside and make yourself a hot toddy. Or, to quote that immortal sage Ed Norton: "Pack up and move to Florida!"

New Child Accident Chart Out

The New York Times has put together a chart about child accidents using data from the World Health Organization.

The chart breaks everything down in categories that are more than a little heartbreaking.

One particular statistic that we noticed was that road and traffic accidents are ranked at number one or two among three different age groups. While a great deal of these accidents occur in the third world, it goes without saying that a fair percentage of auto accident deaths occur here in New York City.

This underscores the importance of driving carefully and teaching your teenagers to do the same once they get their licenses.

As always, if you or a loved one have been involved in an auto accident in New York, contact Rappaport, Glass, Greene and Levine for a free legal consultation today.

http://www.nytimes.com/imagepages/2008/12/10/health/10injury.graphix.ready.html