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The Difficulty of Getting Physicians to Testify Against Other Physicians in Malpractice Suits

Not unlike the “blue wall of silence” wherein police officers hesitate to testify against other officers’ misdeeds, the medical profession has its own “white wall of silence” that underscores how difficult it is to get doctors to testify against other doctors in malpractice suits.

Recently, a twenty-year-old case has come to the forefront of discussion when a physician who was a witness for the defendant in a medical malpractice suit lied under oath by testifying that he had no knowledge of his colleague’s substandard work in a case where a patient suffered harm and permanent disability as a direct result of his surgeon’s negligence. The jury found for the surgeon in this case.

Dr. Lars Aaning from South Dakota confessed that his actions have haunted him for two decades. Since Aaning has retired, he decided to come clean and possibly shed light on why it is so difficult for plaintiffs to obtain expert testimony in medical malpractice lawsuits. On his behalf—and to rectify his own moral compass—Aaning has become a patient advocate and helps the medical malpractice lawyer who represented the patient in the aforementioned case.

One has to wonder how prevalent similar behavior occurs—how many other physicians lie to protect their colleagues. There is a fear of retaliation among medical professionals for speaking up in cases where patients are harmed; however, an alarming number of physicians have admitted that they are not truly in favor of informing patients of mistakes.

Aaning claimed he did not view his actions as lying per se, but simply supporting his colleague, and the pressure placed on physicians by their peers is the norm in the medical profession. Despite the American Medical Association (AMA) and American College of Surgeons asserting that physicians should always advocate for their patients, the doctor who does not stick up for his peers, regardless of the behavior, will feel pressure and stigma—sometimes serious enough for the physician to risk his/her own morality. As Anning confessed, he has carried the guilt of his actions for nearly two decades, and whereas it is too late—and too painful—to consider the actual weight his testimony had on the case’s outcome, he wanted to share his experiences and bring greater awareness to this far too common problem.

At Abend & Silber we work with outstanding and courageous medical experts in many specialties.  For more information, or if you have suffered harm by a medical professional, please contact us.

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2016 Super Lawyers Announcement: Abend and Silber Selected

Richard Abend and Josh Silber were recently named to the 2016 Super Lawyers List for Metro New York in their primary practice areas of Personal Injury and Medical Malpractice. For Abend, this year marks his second back-to-back inclusion on the “Top 100” list.

abend-silber-top-100-superlawyersThe 2016 Super Lawyers List, a publication of Thomson Reuters, was created as a trustworthy, thorough and diverse resource for finding legal counsel in individual states and areas of practice. Inclusion on the list is limited to lawyers who can be retained by the public, as it was designed as a resource for consumers and other attorneys. Selections for the 2016 Super Lawyers List are made following a three-step process that includes peer nominations, extensive third-party research and individual reviews by highly credentialed lawyers within specialty primary practice areas.

2016 Super Lawyers of Metro New York candidates cannot nominate themselves, but join the candidate pool via managing partner surveys, peer nominations, third-party feedback or identification by Super Lawyer researchers. Candidates are evaluated through independent research using 12 categories of peer recognition and professional achievement: verdicts and settlements, transactions, representative clients, experience, honors and awards, special licenses and certifications, law firm positions, bar and professional activity, pro bono work and community service, scholarly lectures and writings, education and employment background, as well as other outstanding achievements. A Blue Ribbon Panel of specialists then conducts a thorough peer review of each candidate. Super Lawyers compiles the list of final selections to include no more than five percent of the total number of attorneys in New York.

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Recent Efforts to Reduce Crane Accidents in New York City

In February 2016, a crane being lowered flipped over when struck by 20 mph winds, sending its 565-foot-long arm plummeting to the ground on Worth Street and West Broadway, killing one Wall Street employee and injuring three other people. In response to the incident, the city secured 43 tower cranes and 376 crawler cranes pending investigation.

Over the past decade, the Department of Buildings (DOB) has issued several reforms regarding crane project regulation; however, a 2014 audit revealed that only 12 percent of the safety recommendations had been implemented.

Since 2009, construction in New York City has increased 300 percent. Most crane accidents occur at building with fewer than ten stories. In 2015 alone, 70 percent of crane accidents occurred at projects of fewer than ten stories.

To address the  problem of crane accidents in NYC, the mayor and DOB have created a comprehensive plan to improve safety at construction sites.

History of Crane Accidents in New York City

  • October 2007—Bank of America Tower at One Bryant Park
  • December 2007—Battery Park City building
  • March 2008—Midtown East, seven fatalities and 24 injuries; the rigging contractor was subsequently acquitted of manslaughter
  • May 2008—Upper East side, two fatalities; the crane company owner was acquitted but was later sued in civil court.
  • April 2012—one fatality due to a falling crane at a subway construction site
  • January 2013—seven workers were injured when a crane collapsed in Queens
  • April 2013—one worker died due to a malfunctioning hydraulics on a boom truck that caused the crane to collapse
  • May 2015—a mobile crane dropped a 13-ton air conditioner in Manhattan, injuring ten people

In addition to these incidents where people were hurt or killed, there have also been several close calls, most notably during Superstorm Sandy near Carnegie Hall.

Due to criticism waged against her office for failing to ensure construction site safety, former NYC Buildings Commissioner Patricia Lancaster resigned in April 2008.

Current Efforts to Improve Crane Safety

Mayor Bill de Blasio and DOB Commissioner Rick Chandler announced enhanced penalties for serious construction safety lapses and increased enforcement sweeps, as well as mandating greater supervision at construction sites. These efforts are part of a $120 million modernization plan that also includes:

  • Raising penalties for serious safety lapses from $2,400 to $10,000
  • Increasing penalties for projects without an on-site construction superintendent from $5,000 to as much as $25,000
  • Conducting sweeps of contractors with poor safety records at projects of fewer than ten stories
  • Increasing oversight at projects of fewer than ten stories

Additionally, the DOB adopted greater safety measures including hiring more inspectors, expanding inspection checklists, requiring construction companies to file plans for crane erection/dismantling, and mandating crane operators to complete 30 hours of initial training and eight-hour refresher training every three years.

Of particular concern is that at any one time, at least 300 cranes are operating within New York City.

At Abend & Silber we know how construction accidents can cause serious injury and hardship for workers and their families. New York has strong Labor Laws to protect workers from injuries on the job and it is critical that these laws remain in effect so that property owners and contractors will prioritize worker safety in all NYC construction sites.

For more information about crane safety and new regulations, or for any other questions, please contact us.

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Forced Arbitration In Nursing Homes Can Lead To Increased Abuse

As much as we’d like to think it doesn’t happen, there have been numerous reports of our elderly loved ones suffering abuse at the hands of nursing homes. Even those nursing homes with the best reputations are going to run into an employee who commits some form of abuse or neglect at one time or another.

Unfortunately, this problem is exacerbated because many nursing homes are attempting to shield themselves from liability for abuse or negligence by including forced arbitration clauses in their admissions agreements. Why is going to arbitration to resolve an issue such a negative these days?

In a nutshell, it restricts the rights of a nursing home patient when they have a problem with the facility. Should the patient, or their family believe a nursing home is negligent, they cannot take the nursing home to court.

This is especially a problem in a state like New York, where City & State pointed out a recent investigation that found private arbitrators in the area usually favored repeat customers. In this case, these repeat customers are the very nursing homes that have been alleged to have committed or allowed the abuse.

The kicker, when it comes to New York and some other states, is they have laws in place that are supposed to make it illegal to put forced arbitration clauses into residential agreements. Unfortunately, although New York’s law states these arbitration clauses are against public policy, a recent appellate decision held that New York courts are bound by the Federal Arbitration Act which allows these unjust forced arbitration clauses. Richard Abend was recently quoted in an article stating if the decision is upheld, “it will result in the denial of justice to nursing home residents that have been the victims of negligence” and will remove “a powerful incentive” for nursing homes to provide quality nursing care.

What does all this mean to you? The fight is still ongoing, and there is hope forced arbitration clauses in nursing home admissions agreements will eventually be found unlawful in New York like our legislators wisely intended when New York’s Public Health Law was enacted.

The lawyers at Abend & Silber are currently working on such a case and we are fighting to maintain the right to a jury trial for injured New Yorkers. If you feel a loved one is suffering from abuse or negligence at a nursing home, contact us to find out your options.

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Vision Zero and Efforts to Reduce Injuries and Deaths on New York Streets

New York City Mayor Bill de Blasio announced in January 2014 the City’s adoption of Vision Zero to reduce fatal accidents on the City’s streets. Vision Zero recognizes that traffic injuries and deaths are not mere accidents but, instead, preventable incidents.

While traffic fatalities in New York have decreased by 34 percent since 2005, City legislators say more can and should be done.

Vision Zero Background

Vision Zero began in October 1997 in Sweden with the goal of creating a highway system with no serious injuries or fatalities due to road traffic. Vision Zero operates on several principles:

  • Ethics: human life and health take priority over every aspect of the road system
  • Responsibility: must be shared by users, providers, and regulators of the road system
  • Safety: traffic systems should seek to minimize the potential of human error and resulting harm
  • Mechanisms for change: cooperation among road users, providers, and regulators is critical to guarantee human safety
  • Traffic-related injuries and deaths are unacceptable and preventable
  • Traffic safety solutions should be holistic
  • Safety is the primary consideration in any road system

In New York

The statistics are staggering. In New York alone, approximately 4,000 individuals are seriously injured with over 250 killed each year as a result of traffic accidents. In fact, being hit by a vehicle is the leading cause of death for children under the age of 14, and the second leading cause for the elderly.

According to a report by the New York Police Department, in May 2016 alone there were 19,911 motor vehicle accidents, with 3,815 of them resulting in injury or death. The majority of vehicles involved were passenger and sports utility vehicles, and the most common reason for accidents was driver inattention/distraction which occurred in 5,699 collisions.

Of the boroughs, Brooklyn and Queens had the most accidents (over 5,600 each), and Staten Island had the fewest with 1,122. For a complete breakdown by precinct and borough, including the number of fatalities, injuries, reasons for accidents, and other data, the report can be accessed here.

Vision Zero and the Future

The City’s adoption of Vision Zero comes with it a host of new commitments and tools designed to improve street safety throughout the state. Among the issues to be addressed include:

  • Enhanced law enforcement against dangerous drivers
  • New street designs
  • Increased public outreach, communication, and collaboration
  • Sweeping legislation to increase penalties for dangerous drivers

Proponents of the Vision Zero system cite the success seat belt laws had in increasing seat belt use from 20 percent in 1985 to over 88 percent today.

Improving New York’s road system safety requires not only government and legislative action but also citizen participation in cultivating a mutually beneficial partnership toward the common goal of safer streets for everyone.

To view an interactive map of all New York traffic accidents, please visit the Vision Zero site.

At Abend & Silber we understand how serious injuries resulting from motor vehicle accidents can cause pain and suffering for the victim and their family. We fully support efforts to reduce the number of accidents and injuries in New York.

For more information, please contact us.

Medical Malpractice in New York: Why You Need an Attorney

According to the Journal of the American Medical Association (JAMA)medical negligence is the third leading cause of death in the U.S. after heart disease and cancer. Even though medical errors kill around 200,000 people annually in the U.S., only 15 percent of personal injury lawsuits result in medical malpractice claims. Many patients are unaware they have been the victims of medical malpractice.

Here’s what you need to know and what to do if you are a victim of medical malpractice in New York.

What is Medical Malpractice?

Understanding what constitutes medical malpractice is the crucial first step. A successful lawsuit contains several elements that the plaintiff has the burden to prove:

  • A legitimate provider-patient relationship establishing a “duty” of care.
  • Medical care—or lack thereof—that fell below the accepted medical standards.
  • A causal connection between the provider’s actions or inactions and the patient’s harm.
  • Damages to the patient.

Continue reading “Medical Malpractice in New York: Why You Need an Attorney”

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What You Should Do If You Get Hit By A Car In New York City

According to the U.S. National Traffic Safety Administration, more than 4,000 pedestrians are killed and over 70,000 pedestrians are injured by vehicles each year. In New York City alone, over 17,000 pedestrians were injured by vehicles last year.

If you are or know a pedestrian who has been involved in a motor vehicle accident in New York City, the first thing you should do is contact the police. As in any motor vehicle accident, even if you don’t seem hurt, you should obtain the driver’s name, contact information, and insurance information. If you are unable to do this, ask a friend or the police officer to obtain it for you.

Before taking any further action, contact an attorney.

Most pedestrian accidents involve a motorist who was speeding, under the influence, using an illegal device (talking or texting), eating or drinking, or demonstrating any number of moving vehicle violations.

It is necessary to determine who was negligent or at fault in your particular case. You may still be able to receive damages even if you were partially at fault.

Our experienced New York City accident/personal injury attorneys will investigate the scene and the circumstances, analyze police and eye-witness reports, evaluate your injuries and losses, and assist you with filing necessary paperwork.

Insurance companies will attempt to persuade you to sign a compensation arrangement that is actually best for them, often waiving your rights to future and further action.

Don’t be fooled by a concerned insurance company or lack of police involvement. Hire an injury attorney who knows the laws, how insurance companies operate, and really has your best interest in mind.

If you are in need of an accident or personal injury attorney, contact us.

Richard Abend Lectures at Brooklyn Law School

Abend & Silber partner, Richard Abend was invited by the Practicing Law Insitute (PLI) to give the 2016 Bridge the Gap lecture. on litigating in New York State and Federal Courts at Brooklyn Law School on January 9, 2016.  This lecture was given to recently admitted attorneys at Brooklyn Law School.

Richard was joined by Kenneth Anand of Ropers Majeski Kohn Bentley.  This course delved into all facets of prosecuting a lawsuit in New York State and Federal Courts from the initial filing of the Summons and Complaint, Document Discovery, Motion Practice and Trial.

Continue reading “Richard Abend Lectures at Brooklyn Law School”

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NYS Trial Lawyer’s Institute Presents “Trying Your First Case”

nystla-abend-silber-bannerJosh Silber to Chair NYSTLA’s “Trying Your First Case: Everything You Wanted to Know but Were Afraid to Ask” on February 18, 2015 and February 25, 2015.  Every trial lawyer has had a first trial.  Some had the benefit of “second seating” a more experienced lawyer and getting a front row seat to orient them to the process of trying a case.  Others have had to rely on law school mock trials and text books and their own instincts to get them through it – hopefully with more trial than error. Continue reading “NYS Trial Lawyer’s Institute Presents “Trying Your First Case””

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Richard Abend Selected to Top 40 Under 40 by The National Trial Lawyers

Richard Abend was selected to The National Trial Lawyers Top 40 Under 40.  Only the top 40 Trial lawyers under 40 from each state or highly-populated regions of certain states who are actively practicing in civil plaintiff and/or criminal defense law are eligible for invitation. Invitees must demonstrate superior qualifications, leadership skills, and trial results as a legal professional. The selection process for this elite honor is based on a multi-phase process which includes peer nominations combined with third party research.

Continue reading “Richard Abend Selected to Top 40 Under 40 by The National Trial Lawyers”