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New York City Wrongful Death Attorney

Personal injury claims are made when one person’s negligence leads another to injury and damages. When those injuries are severe enough to end the victim’s life, the case is then considered as one of wrongful death rather than personal injury. In most states, the family of the deceased has the right to file a claim of wrongful death against the negligent culprit in order to recover compensation for their loss. This process in the New York takes a much different shape because of the principles behind the civil action but will eventually lead to the same effect on the grieving family.

Family members do not necessarily have the right to file a claim of wrongful death in New York. The state considers wrongful death a direct injury to the victim, which it is, and this makes it a matter requiring personal action. Since the victim is not able to file the claim themselves, a personal representative of the deceased must file the claim on their behalf. In theory, this is considered a substitution for the victim themselves filing a wrongful death claim against the person that caused their injury or, in this case, death.

Who is a Personal Representative?

Simply stated, a personal representative is someone who is put in charge of another person’s financial affairs. This person can either be a legal representative or a trusted friend or family member of the estate owner. The question of personal representatives introduces the subject of estate management. Wrongful death claims in New York merge the legal fields of personal injury law and probate law by requiring the claimant in the case to be a personal representative of the decedent’s estate. The claims are governed by The New York Estates, Powers and Trust Laws (EPTL) as opposed to the civil code that governs other personal injury actions. Personal representatives are usually chosen by the individual themselves when drawing up trusts or wills for their estate. However, in the event that there is no will or trust at the time of death, the court may appoint a personal representative to settle the financial affairs of the deceased.

If there is no personal representative at the time of the wrongful death, a family member or individual with a personal interest in the estate may request to be named the personal representative. Once the court names them the trustee of the estate, they will then be able to file a wrongful death claim for their loved one.

Who Recovers the Compensation?

Given this unique requirement for New York wrongful death claims, one would wonder who receives the money recovered in the claim. Although a personal representative of the decedent is the only legitimate party to be named in a wrongful death case, they are not necessarily the recipients of the damages. When an award is granted for wrongful death, the damages recovered are automatically added to the estate of the decedent. This, again, is because the claim is thought to be an indirect civil action by the deceased through their personal representative. Therefore, the damages recovered technically belong to the deceased, which is why they are added to his or her original assets.

Since one of the duties of the personal representative is to manage the financial affairs of the deceased, they will be expected to execute the wishes of the deceased concerning their estate, which now includes the money recovered from the claim. According to the will or trust in place, the compensation will be disbursed among the family members and beneficiaries named in the estate. If there was no established will or trust at the time of death, the family members and persons with an interest in the estate will have to go to probate court to have a judge disburse the estate, along with the recovered damages.

Do I need a personal injury attorney for wrongful death?

Absolutely. Just because the claim is filed under the name of a personal representative, it does not necessarily mean that family members are not involved in the process at all. It is in the best interest of anyone involved for a New York City wrongful death attorney to be consulted in the claim. While the representative is named in the suit, the personal injury attorney on the case will be actively involved in representing the interests of the deceased and their family members in order to ensure a fair settlement. While wrongful death is governed by EPTL, it still involves the elements of a personal injury case including duty of car and negligence. These are subjects that require the knowledge of a personal injury attorney. Therefore, wrongful death claims should involve the legal representation of a New York City personal injury lawyer.

A majority of malpractice cases filed every year involve an error or omission of action concerning a doctor’s diagnostic practices. However, due to the number of factors that can contribute to an error in diagnosis, the question remains: is misdiagnosis always medical malpractice. Because medicine does not claim to be an exact science, doctors are not legally required to be infallible. The key to a malpractice claim involving misdiagnosis is to show that the doctor was negligent in the practices of diagnosing the injured patient.

There are several situations of misdiagnosis that do not warrant a claim of malpractice. While a mistake may have occurred, it either did not cause further injury to the patient or the doctor had no control over preventing the error. It is common knowledge that medicine is increasingly reliant on technological equipment and unfortunately, that equipment is not always perfect in its results.

When proving that misdiagnosis is medical malpractice, the patient will be required to show three key elements in order to implicate the doctor as the culprit for their injuries. First and foremost, there must be an injury. While misdiagnosis may cause frustration or emotional distress by way of anxiety or fear, medical malpractice law requires an actual, medically defined injury to exist in order for there to be a claim. These injuries are known as damages. Therefore, in order for a misdiagnosis claim to be considered malpractice, the patient must have been actually injured by the error in diagnosis as opposed to simple inconvenienced by it.

Before the subject of injury arises, the patient must first show the court that they and the doctor named in the suit had an established relationship that made the doctor responsible for the health of the patient. This shows that the doctor’s decisions had the potential to directly affect the well-being of the patient and as a healthcare provider, he or she was required to exercise care to the required standard.

Once the relationship has been established, the patient must then prove that the doctor failed, at some point, in his or her duty to exercise care to the standard required of them. This is known as a breach of duty. Examples of a breach of duty concerning diagnosis include the neglect of the patient’s medical history or failing to order the appropriate test according to the patient’s symptoms.

Lastly, the patient will be required to prove causation. This means that the doctor’s breach of duty directly caused the injury of the patient, assuming there is an injury. At this point, the importance of causation and damages becomes the key component in the case because without damages, the doctor would not be guilty of causation. In order for the doctor to be guilty of medical malpractice and responsible for the patient’s injuries, his or her action must be the direct cause of the injury. In other words, if the doctor had not made that error under the same circumstances, the patient would not have been injured.

Frequently Misdiagnosed Conditions

While the room for error is present in any scenario, there are several medical conditions that are especially prone to misdiagnosis. A study by Harvard revealed the five most commonly misdiagnosed conditions, all of which can have fatal consequences. The study also found that these conditions make up for a majority of the malpractice cases awarded for misdiagnosis.

1. Aortic Dissection: A subtle but deadly condition, aortic dissection occurs as a result of a tear in the inner wall of one of the largest and most essential artery in the body. The tear allows for blood to seek through the layers of the wall and gradually tear the wall apart. If the dissection results in a complete tear, rapid blood loss will result in death. Dissections resulting in complete rupture have a 80% fatality rate, 50% of which occurs before the victim reaches the emergency room. The Harvard study found that this condition is frequently mistaken for simple heartburn. While symptoms may often be obvious as to the dissection occurring, such as a distinct tearing sensation in the chest, misdiagnosis can delay treatment and increase the risk of death.
2. Cancer: The Harvard study revealed that cancer was in the subject line for most of the misdiagnosis malpractice claims in the country, especially in the case of breast cancer. While the reason for these misdiagnoses are still unknown, some believe that doctors often fail to follow procedures in screening for cancer which can delay otherwise essential treatment.
3. Infection: Following cancer as the most misdiagnosed condition, infection is also an extremely dangerous condition susceptible to being overlooked if the doctor is not thorough in his or her examination of the patient.
4. Clogged Arteries: In recent years, the clogging of arteries has become an extremely frequent enemy of the health of Americans. Symptoms such as shortness of breath are often mistaken for being out of shape. Because of the high risk of coronary artery disease, doctors are expected to exercise care in evaluating their patients’ symptoms, especially those who fall in the category most susceptible to the condition.
5. Heart Attack: While this frequently theatrical condition seems out of place in this list, the Harvard study found that heart attacks are not always so clear. Often times, the only signs of an attack resemble simply being “under the weather” such as nausea, the sensation of fullness in the chest.

In order to minimize the risk of being a victim of misdiagnosis, patients are encouraged to request more thorough testing. While doctors are considered the highly-experienced, no amount of education can replace the actual experience of symptoms. Therefore, if a patient is not satisfied with the way his or her doctor came to a conclusion, they should exercise their right to request more tests. Furthermore, seeking a second opinion can also provide the patient with an evaluation by a fresh set of eyes and reveal things the first doctor overlooked. While misdiagnosis can be recompensed in a medical malpractice claim, the risk of injury or death should encourage patients to take control of their well-being and do everything they can to protect themselves and their family from pain and loss.

To answer the question: what is no fault insurance, we take it on from many angles. No fault insurance is a type of insurance policy in which the insurance company covers damages incurred by the policy holder regardless of who was at fault for the accident. There are benefits and downsides to this type of insurance and while no state has adopted a pure no fault system, many states, including New York, have included elements of no fault insurance in their auto insurance requirements.

In order to register a vehicle in New York, the law requires that the driver obtain several types of coverage before the vehicle can be processed. One of those types is known as personal injury protection (PIP), which is also called no fault insurance. Generally speaking, no fault insurance requires drivers to retain insurance that covers them in the case while also placing limitations on a driver’s ability to due others for liability.

In a no fault state, a person’s auto insurance company with pay for their own damages in the event of an accident and the other drivers involved will be covered by their own respective insurance companies as well. In New York, the no fault system prevents individuals from suing each other for damages except in cases of serious injury or death relating to the specific accident.

Advantages of No Fault Insurance

The greatest benefits of no fault insurance are to the court and law enforcement system of the region under the policy. In the course of a year, a state with an at fault insurance system sees thousands upon thousands of personal injury claims. Many of these claims are valid; however, a great deal of them may be eventually dismissed for lack of cause. Personal injury claims can easily wear down the civil court system and therefore it is beneficial to filter the cases brought to court down to those that warrant action.

Additionally, no fault insurance guarantees that a driver will receive immediate medical attention in the event of an emergency without having to worry about the process and procedure of filing a claim. It also lowers costs of filing a claim because the payout is an automatic response to the need, which can even indirectly lower premium costs in the long run.

Lastly, no fault insurance provides compensation for non-driver individuals involved in an automobile accident, such as bicyclists or pedestrians. The no fault insurance law in New York states that a driver’s insurance will cover the damage and injury of any pedestrian or bicyclist who is injured in an accident involving their vehicle. This allows pedestrian and bicycle accident victims to obtain compensation for the medical expenses caused by their injuries without having to wait out the process of a claim.

Disadvantages of No Fault Insurance

Many New Yorkers do not prefer their state’s no fault policy because they believe it restricts them from obtaining the maximum amount of compensation that would have been available in a personal injury claim. This is a valid point. While no fault insurance payouts are prompt, they only cover a person’s basic medical expenses and property damage without regard for other damages caused by the accident, such as emotional trauma and punitive damages.

Furthermore, many opponents of no fault insurance argue that the policy, by its very title, disregards the principles of responsibility and individual accountability that are at the foundation of American society. By overlooking the element of fault in an accident, the policy ends up treating good and bad drivers the same in stark contrast to other policies which reward good drivers and sanction bad ones, holding them accountable to their actions. Car accidents make up a large portion of negligence claims against liable parties under tort law but under no fault insurance, a majority of those claims are removed from that category of law altogether.

In the year 2011, the New York State Department of Motor Vehicles summary of large truck accidents revealed that a total of 11,648 accidents took place on New York roads involving large semi-trucks. 96 people were killed in an accident involving a semi-truck and another 5,505 suffered non-fatal injuries. The sheer size and weight of semi-trucks makes them a dangerous rival in collisions, often times leaving the passengers of the smaller car with much worse injuries than the driver of the truck. Semi-truck accident claims are more complex than car accident claims because there could be a number of culpable parties involved. The differences are not necessarily because of the size of the vehicles involved or because of the severity of most injuries. Truck accident claims are governed by a different set of legal theories and often require extensive investigation. One claim investigation after a truck accident will typically investigate several parties that could possibly have contributed to the accident.

The first part of the claim focuses on the driver. This step investigates the negligence of the driver as in a normal car accident. Truck drivers can succumb to the same distractions and mistakes as conventional drivers but those mistakes can lead to much more serious consequences. Therefore, in some circumstances, truck drivers may be held to a higher standard of care because of the power and size of the vehicle they drive. Furthermore, truck drivers carry commercial driver’s licenses that legally hold them to a different, more stringent set of rules and regulations. Violations of these regulations or simple negligence in driving can be a cause for finding fault and claiming compensation from the driver themselves.

Beyond the part of the individual truck driver, the employer of the driver is also liable for any damage caused by their trucks or their employees. If their driver is negligent or violates the rules and regulations of truck driving, the employer is responsible for his or her actions as a representative of their company. However, some drivers work privately or as contractors. In these cases, there would be no employer liability since there is no employer to begin with.

Truck accidents are sometimes caused outside of the driver’s control but this does not necessarily mean that no one is at fault. Many truck accidents occur because of improperly loaded materials or overloading the truck altogether. Because the weight of the load has a large role in the maneuverability of the truck, it is essential that the loading be properly done. Furthermore, regulations for loaded material are in place in order to avoid falling objects and debris. When a violation of those regulations leads to an injury accident, the drivers and material manufacturers will be held responsible for their failures in doing their job properly.

Lastly, trucks find their beginning in manufacturing like any other vehicle. If there was a defect in the build or operation of the truck that lead to the accident, the maker of the truck can be held responsible for their part in the accident. The investigation into this step would resemble a claim of product liability where the manufacturer of the product is expected to exercise care to eliminate unreasonable risk of danger in their products. Trucks are automobiles in the sense that they are designed and manufactured with the same process as other vehicles. Therefore, the manufacturer can be subject to an auto product liability claim if their product, the truck, falls below the standard of a reasonably safe product and causes injury from an accident. Defective truck products include runaway tires, fallen parts and dropped trailers.

Early Investigations

Because accident claims involving large trucks are so multifaceted, an early investigation in key. Insurance companies will begin investigations into how they can lower the payout amount immediately, which means that the victim must act quickly as well. There are several factors and parties that could have contributed to your accident. The earlier you act, the more time your legal team has to investigate your situation and determine the culprits. If there is indeed more than one person at fault for the accident, you may end up with a larger settlement than before. This alone should be incentive enough to act quickly in seeking legal counsel.

When police officers use excessive force in making an arrest, engage in brutality against suspects, or otherwise violate a citizen’s civil rights, the victim is often able to file a lawsuit which may result in an award of monetary damages.

Whenever possible, you should avoid speaking to an insurance agent (yours, or the agent of the person who caused your accident) without an NYC personal injury lawyer present. Once you have retained the services of a professional attorney, you should be able to direct all interactions with an insurance agent to Greenberg & Stein, P.C. In most cases, insurance companies are not looking out for your best interests; rather, they are looking for any way to minimize the amount of compensation that they will be responsible for paying you. Therefore, it’s unwise to agree to the settlement amount that was offered by your insurance company if an injury attorney has not first reviewed your case and determined the correct amount of compensation that you are due.

The answer to this question depends on the nature of your accident and injury. By law, there are many circumstances, i.e. medical malpractice claims, car accident claims, etc. that require victims to make a claim or file a lawsuit within in pre-determined amount of time. The most effective way to ensure that you do not miss the window of time that you have to file a lawsuit or personal injury claim is by contacting an NYC personal injury lawyer at Greenberg & Stein, P.C. Very quickly, we can review your case and notify you of the allotted time that you have to take action.

Depending on the circumstances involved in your accident, you may still be eligible to file a personal injury claim, even if you did not experience physical harm. There are other ways to be injured, including emotional trauma, distress, and property damage. If it can be proven that another person’s reckless or negligent behavior caused you harm or damage, you may have a case. The only way to know with surety whether or not you have a case is by contacting an attorney at Greenberg & Stein, P.C.

Many cases of personal injury can be settled outside of court. Hiring an injury attorney does not automatically mean that you will be expected to appear before a judge and jury. In fact, our NYC personal injury lawyers do everything possible to settle your case before resorting to courtroom action. When more aggressive action is necessary in order to obtain favorable results, Greenberg & Stein, P.C. is ready to represent you in court, but we won’t make this move without first discussing the possibility with you in full detail.