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How much is pain and suffering worth in New York?
 
The answer is that it depends upon several factors.  Learn more here.
 
What is “mandatory mediation”?

First let's discuss what mediation is, and what it is not. Mediation is a non-binding process during which two sides or parties to a lawsuit or dispute sit down with a neutral third party in an effort to resolve their dispute. A mediator is usually a lawyer or retired judge, and is often someone who is familiar with the type of dispute that the parties are attempting to resolve. Mediation is not a trial, and does not ordinarily take place in a courtroom.

Mediation occurs both formally and informally. In the context of a lawsuit for employment discrimination, personal injury or medical malpractice mediation tends to be somewhat more formal, and is typically held at a lawyer's office.

Mediation is becoming increasingly popular as a way to resolve or settle cases. In Federal Court, mediation is now mandatory in nearly every civil case. This means that whenever a lawsuit is filed for employment discrimination, violation of civil rights or the Family and Medical Leave Act, for example, mediation is mandatory relatively early on in the case. The Federal courts require this because lawsuits are both expensive and unpredictable and by forcing parties to consider the relative strengths and weaknesses of their cases early the courts believe more resolutions are facilitated.

Continue Reading ->

I've heard the terms State and Federal Court used? Is there a difference between the two?

Most people would have no reason to know the difference between the State Court process and the Federal court process, nor do they even recognize the difference when for example they hear about a case or see it on tv.

There are, however, some pretty significant differences between state and federal courts. Read More ->

What do I do if my child was bit by a dog?

You move to a new neighborhood and are invited to a barbecue at your new neighbor's house down the street. You know that they have a large dog, because you've seen it barking at the mailman on a daily basis. Nonetheless you decide to go and meet some neighbors, and you bring your two kids, both under the age of 8.

At the party your kids are running around with the other kids. The dog, you notice, has been allowed to mingle among the guests. Out of the corner of your eye you see, like a flash, the dog attempt to grab a hamburger from your 7 year old son's hand, only to miss and bite him in the eye.

18 months, countless doctor appointments and two surgeries later you're left with a child who has long term vision loss and a scar on his face. What can you do?

New York allows for recovery where an animal had previously shown “vicious propensities”

Under New York Law, a victim of a domestic animal attack (including dog bites) can recover against the owner of the animal only if the owner had notice that the animal had previously shown “vicious propensities.” The bad news is that the owner cannot be sued for simple negligence – for example for allowing the dog to run around a party with children present. The good news, however, is that the owner can be strictly liable (or, essentially, unable to present a defense to the case) if in fact the owner was aware that the dog had a tendency to do something vicious.

So what is a “vicious propensity”? Well, in some cases courts have found that constant aggressive barking at the mailman was vicious. More often, however, viciousness can be established by showing that the animal had previously bitten, or attempted to bite, another person. This can be shown through testimony of other neighbors, vet records, or other information that may be learned through a thorough investigation.

In an animal attack case a thorough investigation is key

If you or someone you know has been attacked by a family member it is very important to speak with an attorney quickly. In cases like these a thorough investigation is one of, if not the most important factors in determining whether the victim will receive compensation, or will be left with nothing.

If you find yourself the victim of an attack give us a call 518.308.8339. We're always happy to help.

I was terminated after twenty years with an employer. Am I entitled to anything?
We often receive questions from employees who have been terminated after a long and generally impressive tenure with an employer.

Employees often presume that longevity at a company ensures that if/when they ultimately depart they will be entitled to some lump sum payment or other benefit. This is not, unfortunately, the case. Absent a contract or other written agreement requiring the employer to pay to a departing employee some benefit at the time of departure, an employer is generally free to terminate a long standing employee with little or no compensation.

That being said, it is not uncommon for employers to offer departing (particularly laid off) long term employees a severance package at the time of their departure. While the employee would like to think that the employer is doing this for the right reasons (and sometimes they are), most often the reason for the offer by the employer is to entice the departing employee to sign a severance agreement which, among other things, releases the employer from any liability for claims relating to the departing employee's employment with the company.

Severance agreements (which have been the topic of several other articles) serve a primary function of paying an employee (often an amount reflecting the term of their service) in exchange for an assurance that the employee will not sue the company.  A secondary function – and one that is becoming increasingly prevalent – is obtaining from an employee an agreement not to solicit the clients of the employer after the employee departs.

An employee who has been provided with a severance agreement must consider several factors prior to signing and accepting the payment.  The employee must first consider whether the circumstances giving rise to the termination are legitimate, or whether there may be something illegal going on (discrimination, retaliation).  In thinking about this the employee should consider her history with the company, whether she has any history of having made complaints, whether she has recently returned from a protected medical leave, etc.

The employee must also consider to what extent she will be impacted by any sort of non-solicitation/non-compete language in the agreement.  If the employee intends to start her own company after leaving, this will be important.  

Finally, the employee must consider whether the amount being offered represents a fair payment for what she is being asked to give up.  Sometimes, but certainly not always, employers are willing to negotiate the terms of a severance agreement.  Again, the employee needs to remember that the employer wants her to sign the agreement, so depending upon the circumstances she may be in a position of bargaining power.

In the end it makes sense to speak with an attorney before executing any sort of severance agreement, regardless of the circumstances of the employee departure.

I was injured in the parking lot of my job – what can I do?

This question raises a few issues. First, if you were acting within the scope of your employment the injury may fall within the context of worker's compensation, in which case you would need to contact a worker's compensation attorney.

The other issue, however, is whether there is potential third party liability for the injuries that you sustained as a result of the fall. If, for example, the fall was caused by the failure of a property owner to maintain the parking lot (during winter, etc.), there may be a potential third-party claim against the owner as a result of that failure. It is often the case that companies lease office space, and as a result have no responsibility for maintaining the parking lot or other “common areas” on a property.

Things get a bit more complicated when you consider whether the property owner may have contracted out the maintenance work, but an experienced New York personal injury attorney will be able to ascertain who is ultimately responsible for the accident.

Be aware that if you do obtain worker's compensation coverage and pursue a claim against the property owner or third-party contractor, the worker's compensation insurance carrier will likely retain what is known as a lien – entitling them to receive a portion of any recovery to reimburse them for any money paid to you. This, again, can be negotiated by an experienced New York personal injury attorney.

Does my employer have to accommodate medical restrictions?
There are a few legal issues at play here.

First, if your condition qualifies as a “disability” – whether temporary or permanent – you would be entitled to some level of protection under the American's with Disabilities Act (“ADA”) and/or the New York State Human Rights Law.   In New York, the Human Rights law generally requires employers to engage in an “interactive process” with an employee to see if an accommodation can be made to allow the employee to return to work with a disability.  Be aware – employers in New York often fail to engage in the interactive process, and as a result end up discriminating against a disabled employee.

Keep in mind, however, that your employer is not required to made accommodations which are not reasonable, or which create an “undue hardship” on the business.  What constitutes an undue hardship varies case to case.

Also, if you were out of work and in the hospital for treatment of the condition, and the condition were considered “serious”, you would potentially be entitled to protection under the Family & Medical Leave Act (“FMLA”).  This would require your employer – assuming you met the qualification criteria – to hold your position for up to twelve weeks of leave, and then to allow you to return to work (without retaliation) in a similar position.  You would want to talk with a New York FMLA attorney to determine whether you qualified for protection.

If you believe you have been subjected to discrimination in the workplace it is always best to contact a knowledgable New York employment discrimination attorney to discuss the specifics of your case  – as employment discrimination cases vary significantly case to case.

We address these issues in greater detail here and here.

Are settlement proceeds taxable?
Clients often ask us whether or what part of his or her settlement proceeds is taxable. Although we do not give tax advice and always advise our clients to consult with a tax professional, there are some guidelines to be aware of. Personal injury proceeds are generally not taxable and can be excluded from income. This also applies to emotional damages that stem from personal injuries. An exception may apply when the client has already claimed deductions and received a tax benefit from medical expenses. In this case, it may be required that the client include payment for medical expenses in a personal injury award as income.

Proceeds from an employment case, on the other hand, are generally taxable. For example, payment for back pay will be treated the same as any other income earned from an employer. Often, an employer will deduct state and federal income taxes (and any other applicable taxes) for a settlement check the same as it would from any pay check. But, if it does not, it is up to the employee to consult with a tax professional about their obligations with respect to this income.

If you have questions about an employment or serious injury matter give us a call.

What qualifies as a “reasonable accommodation”?
We are often asked (by employers and employees alike) what is required for an employee with a disability. Most people have heard the term “reasonable accommodation” in one context or another, however the definition of “reasonable” can be quite open to interpretation.

Both the New York State Human Rights Law and the American's with Disabilities Act require an employer to provide an employee with a disability with a reasonable accommodation to perform his or her work. A reasonable accommodation is generally considered something that will allow the employee to perform the essential functions of the job, without causing the employer an undue or unreasonable hardship. The laws do not require the employer to accommodate the employee to such an extent that it would severely hinder the employer's business.

AN EXAMPLE OF A “REASONABLE ACCOMMODATION”

As an example, let's say John is a data entry specialist, who takes phone calls and inputs information into a computer. His job typically requires him to input 20 calls per hour. John has recently been diagnosed with an eye disorder that requires him to shut his eyes for 5 minutes every hour, which would result in his only being able to input 18-19 calls during that time. Assuming that John's condition does indeed qualify as a disability, it would seem to be reasonable for his employer to allow him to take a 5 minute break every hour to shut his eyes. Losing one or two calls per hour would not likely cause the employer such a hardship so as to render the request unreasonable, particularly if the work could be reassigned.

If, however, John were diagnosed with a medical condition that required him to shut his eyes for 50 minutes out of every hour, this would likely not be considered reasonable, as it would mean that John—with an accommodation—would not be able to perform the essential function of his job. In this situation John's employer would likely be justified in terminating his employment.

NOT EVERY MEDICAL CONDITION QUALIFIES AS A DISABILITY

Requests for accommodations often hinge upon whether the employee has an actual disability, as that term has been legally defined. Many medical conditions do not necessarily rise to the level of disability, so it is important for the employee requesting the accommodation (as well as the employer considering the request) to have as much information as possible regarding the actual limitations of the condition.

Reasonable accommodations, and discrimination for failing to provide them, are very much considered on a case by case basis. If you have questions about whether a request was reasonable it is best to speak with someone with experience handling these situations.

Are medical malpractice lawsuits ever settled?

Lawsuits for medical malpractice are different from lawsuits for general negligence in a number of ways.

First, the bar to bringing a medical malpractice lawsuit is higher, as a plaintiff is required to have his or her case reviewed by an independent medical expert prior to filing the lawsuit.  The plaintiff's attorney is then required to file what is known as a “certificate of merit” with the court, certifying compliance with the rule.

Second, the claim in the lawsuit is subject to a different standard than a regular claim.  To succeed in a medical malpractice lawsuit a plaintiff must prove – typically through expert medical testimony – that the physician departed from “reasonably accepted medical standards.”  This is different from a case involving, for example, a car accident, where the plaintiff need only prove that the other driver acted negligently – or failed to act reasonably under the circumstances.

Third, physicians are permitted to assert defenses that defendants in regular negligence lawsuits are not permitted to assert.  The primary defense is what is known as the “medical judgment” defense – this allows the defendant to tell a jury that “an error in medical judgment is not malpractice.”  This means that if a physician considered two potential causes of a condition, and chose the wrong one, generally that physician cannot be liable for malpractice for that choice, because the physician exercised his or her best judgment.

In part because of these differences medical malpractice cases are often difficult to win, and can likewise be difficult to settle.  Doctors frequently defend their treatment of patients, and statistically medical malpractice cases go to trial more than other negligence cases.

One reason for the more frequent defense by doctors is that most settlements get reported, which can negatively impact a physician's reputation.  Because of this physicians are often afraid to settle a lawsuit out of concern that doing so will hurt their practice.

In addition, unlike traditional insurance policies, which allow an insurance carrier to settle a lawsuit without the permission of its insured (the wrongdoer), most physician malpractice policies have what are known as “consent” clauses – meaning that the physician must provide his or her consent for the insurance company to settle the lawsuit.  So, if the insurance carrier thinks the case should be settled and the plaintiff should receive some money, the doctor can in some cases overrule that decision and force a trial.  This happens more than you might think.

In the end many strong cases do get resolved, and those that don't simply proceed to trial.  It is important that potential plaintiffs keep this in mind when electing whether to pursue a medical malpractice lawsuit, and also in selecting the attorney to represent them.

If you have questions about medical malpractice give us a call.

How does my employment or negligence lawsuit get decided?
For many people who come to us with an employment discrimination or medical/hospital/nursing home negligence matter, this is their first foray into the legal system. Occasionally they have had to call a lawyer to draft a will, defend a speeding ticket, or help them with the closing on their house, however what we do is very, very different from the regular sorts of issues for which people generally call a lawyer.

One of the questions that people often ask, after we have discussed the possible claims that they may have, is “So, how does my case get decided?” In other words, “Who decides if I'm wrong or right?” As with most things in the law, the answer is, “it depends”.

In an employment discrimination/retaliation or medical/hospital/nursing home negligence lawsuit one of several outcomes can occur, depending upon a number of factors (the strength of the case, the weakness of the defense, the controlling law, the place where the case has been sued, the presentation of witnesses, to name a few). A few of those possible outcomes are set out below:
These are a few of the most common ways that a lawsuit is decided. If you have questions about a potential employment or negligence claim, give us a call today at 888-706-9765 or 518-308-8339.

  1. The case is settled before trial: This is the result in the overwhelming majority of lawsuits, and there are a number of reasons as to why this happens (which will be covered in greater detial in another article). A case may be settled because the defense thinks that it cannot legally win, beause the plaintiff thinks the case is too risky to go to trial, or most commonly, because the parties can agree on a fair value for resolution (the settlement amount in dollars). Keep in mind that all lawsuits are different, and this should by no means suggest that there is any guarantee whatsoever that any particular case will end in settlement.
  2. The case is dismissed by a judge: Occasionally employment discrimination or medical/hospital/nursing home negligence cases are dismissed by a Court for being legally insufficient. Employment discrimination/retaliation cases are, in particular, very difficult to prove legally, and defendants in these cases often ask courts to dismiss a case because under the applicable law the plaintiff cannot win. This is the major reason why we turn away most of the people who call us— it's not that we are not sympathetic to their problems (we are), it's that we know going in how difficult these cases can be and simply cannot pursue most cases for that reason.
  3. The case goes to trial and is decided by a jury: Sometimes, when the defendant cannot get the case dismissed, and the parties cannot agree on a fair settlement, a case will go to trial. Employment and discrimination cases, as well as malpractice and abuses cases are tried by a jury of 6 people who hear the testimony of witnesses, see the proof offered by both parties, and (after hearing from the attorneys and the judge), decides who is right and who is wrong. Most of the time the jury will also decide the amount of damages awarded to the plaintiff if they find in the plaintiff's favor. Statistically most cases will not go to trial, primarily because trials are expensive and unpredictable. That being said, if you are looking for an attorney for an employment or negligence matter, it is important to know whether the attorney or law firm actually takes cases to trial, because not all do. Insurance companies will only take a case seriously if they believe that the attorney or law firm is willing to go all the way to a jury, so ask questions when interviewing potential lawyers.
I was fired after a medical leave. What are my rights?

We often have employees contact us who were fired from their jobs after a medical related leave of absence and want to know if they have any recourse against their employer. As always, the answer depends upon the facts and circumstances of each particular case. Here are some relevant considerations in determining whether there is a claim.

FAMILY AND MEDICAL LEAVE ACT (FMLA)

Employees who have worked for an employer with 50 or more employees for 1250 hours in the preceding year are entitled to up to 12 weeks of unpaid leave to deal with a serious health condition or the birth of a child. This means that your employer is required to hold your job or an equivalent position for you. (As always there are some exceptions). If you are terminated despite the fact that you are able to return after 12 weeks of leave, you may have a claim against your employer for violating the Family and Medical Leave Act (FMLA). Employers are also required to notify you of your rights under the FMLA. Sometimes an employer fails to notify an employee that they must return after 12 weeks, and fires them when the employee does not. If you were in fact able to return or would have acted differently if your employer had advised you of your rights, you also may have a claim under the FMLA.

MEDICAL LEAVE AS A “REASONABLE ACCOMMODATION”

If your employer is too small to fall under the requirements of the FMLA you may be entitled to medical leave as a “reasonable accommodation” of a disability under the Americans with Disabilities Act or the New York State Human Rights Law. Courts interpreting the New York State Human Rights Law have been relatively generous when it comes to determining whether medical leave is a “reasonable” accommodation as well as with respect to the duration of that leave. Additionally, even if you are unable to return to work at the end of a 12-week FMLA leave, it is possible that the ADA or the Human Rights Law can come into play to allow you some additional time off. Therefore, it is important to communicate with your employer and request additional time off if you need it.

It is important to contact an experienced employment attorney to determine whether you have a case against your employer after being terminated in connection with a medical leave. D'Orazio Peterson recently settled a claim for disability discrimination for a significant sum on behalf of an employee who was terminated following a medical leave. This employee had consulted with numerous attorneys who all rejected his case. Given our expertise, our firm recognized that the employee had a persuasive argument applying the employee-favorable case law interpreting entitlement to medical leave under the New York State Human Rights Law. We commenced a lawsuit against the employer and negotiated a favorable settlement for our client.

I have cancer. Will I lose my job?

Recently a story from Pennsylvania “went viral”.  A woman who was undergoing cancer treatment was terminated from her employment at an oral surgery practice.  In the letter terminating the employee, her boss said, among other things, that, because of her treatment, she would be unable to give her a job her full attention and was being fired.  The public shaming of the employer was swift.  But was the termination illegal or just, as many thought, immoral?  The answer, as to most employment law questions, is it depends.

There are various statutes that protect individuals with cancer.  The Americans with Disabilities Act (“ADA”) was amended in 2008 to expand the definition of a disability so that, at this point, the definition is broad enough that cancer will generally be a “disability” such that the employee is protected by the statute.  This means that the individual is protected from harassment or discrimination because of his or her cancer as well as being entitled to “reasonable accommodations” which could include time off for cancer treatment.  The ADA, however, only applies to employers with 15 or more employees.

The Family and Medical Leave Act (“FMLA”) also allows certain employees who work for larger employers (50 or more employees) to take up to 12 weeks of unpaid leave to deal with a serious health condition.  Employees may also take leave to care for a spouse or child with certain health problems.  This should generally apply to cancer treatment.  The FMLA does not require that the 12 weeks be taken all at once and allows for “intermittent leave” which could apply to cancer treatment that only requires an employee to be out of the office for discrete hours at a time.

If you work for a smaller employer, you may find protection under the New York State Human Rights Law (“NYHRL”) which applies to employers with 4 or more employees, and also prohibits discrimination against individuals with disabilities including cancer.

While cancer is a traumatic diagnosis and one that an individual may want to keep private, it is important to tell your employer if and why you need to take time off.  Whether you have a claim will often depend on your employer's knowledge of your condition and your need for accommodations or leave time.  As always, if you feel you are being treated differently because of your condition, complain to Human Resources or another appropriate individual.

D'Orazio Peterson is committed to helping victims of employment discrimination. If you feel you are being treated unfairly for discriminatory reasons, please contact us.  We are happy to provide free initial consultations to potential employment clients.

What can I do about a post-surgery complication?

This question raises a couple of issues. The first is the principle of a “recognized complication” of a surgical procedure. Generally, in New York, if a patient suffers a recognized complication during a medical procedure, this is not evidence of malpractice – in and of itself.

Before a patient goes in for surgery they will review and sign a “consent” form, providing their consent for treatment and outlining (often very generally) the risks associated with the procedure. These risks almost always include “death, disfigurement, need for further surgical intervention,” etc. If the patient suffers one of these complications post-surgery, the surgeon will defend herself by asserting that the complication was not the result of medical negligence, but rather was a recognized complication of the procedure.

The second issue, however, is that we often see instances of physicians and hospitals failing to adequately address and treat post-surgical complications once they have developed. For example a young woman has foot surgery, develops a very recognizable post-surgical complication, follows up with her physician but the condition is ignored or not properly treated. In this case the young woman could potentially pursue a medical negligence claim against the physician for failing to properly recognize and treat a common post-surgical complication.

The bottom line in this or any medical negligence case in New York is to speak with a qualified attorney. These cases have strict statutes of limitations, and require medical review prior to commencement of a suit.

Do I need to hire an attorney for a medical negligence case?

While an individual may generally be permitted to bring a lawsuit pro se (without counsel), we never advise plaintiffs to represent themselves without a qualified attorney. While it may be possible, the procedural pitfalls facing an individual with little or no experience are significant.

Initially, experienced attorneys are typically able to identify potential issues in a case early on, issues which may not be recognized by the individual plaintiff – simply because of lack of experience. Additionally attorneys typically have access to physicians who are able to review the potential case – a prerequisite to commencing a medical negligence case in New York. The failure to obtain a medical review could potentially subject the case to dismissal.

Then you have the actual litigation itself, including the depositions and trial. While a pro se individual is permitted to handle these matters on their own, there are typically significant evidentiary and legal issues that arise – issues that attorneys see with some frequency but that could create serious problems for the pro se plaintiff.

Finally, as a practical matter, insurance companies are simply not going to take a pro se litigant as seriously as they would if that same person were represented by a skilled attorney. And because of this it may be very difficult for the individual to obtain a favorable outcome, including a settlement. Medical negligence cases are extremely difficult in and of themselves. To proceed with a case without a skilled and experienced attorney makes matters even more difficult.

If you have questions about a potential medical negligence claim pelase feel free to give us a call.  We are happy to answer any questions you may have.

What is a “Hostile Work Environment”?

We often get telephone calls from prospective clients who feel that they are being subjected to a “hostile work environment.” Although we feel for individuals who are having a difficult time at work, it is actually relatively rare that an employee is being subjected to a “hostile work environment” within the meaning of either New York state or Federal law. This is because general workplace bullying or being treated unfairly is not illegal unless it is happening for discriminatory reasons, ie., you are being harassed or treated differently because of your race or gender or some other protected reason. The fact that your boss does not like you or is giving you a hard time or coworkers are being rude to you, while unfortunate, is not illegal. Similarly, being treated unfairly or not in compliance with an employee manual or employer policies is generally not actionable unless an actual employment agreement has been violated.

THERE ARE STRICT REQUIREMENTS TO MEET FOR A “HOSTILE WORK ENVIRONMENT”

Even when individuals are being harassed for discriminatory reasons, the law makes it clear that such conduct must be severe in order to rise to the level of a “hostile work environment.” Technical terms that come up in case law are “pervasive” and so severe as to “alter the terms and conditions of employment.” Surprisingly, this means that even individuals who have had to endure the use of racial slurs in the workplace have been found not to have suffered from a hostile work environment.

This is important to keep in mind because we sometimes have prospective clients call us who have quit their jobs on the thought that they have been forced out by unfair conduct or bullying behavior and believe they can sue for losing their jobs. Unfortunately, this is often not the case. What employees should do—before quitting their jobs—is to make a written complaint to human resources or to another appropriate individual. If the employee believes they are being harassed for discriminatory reasons, that should be made clear and in writing.

D'Orazio Peterson is always happy to talk to current or former employees who believe they are victims of a hostile work environment even if they may not ultimately have a case that we can take on. From our Saratoga Springs office we represent employees in discrimination cases throughout New York state, including New York City. Call us today at 518-308-8339 to discuss your potential case.

Is it bad if a lawyer does not specialize?
This is a good question and, frankly, one that is not asked enough. In the days of mega-firms, and firms that want to provide representation for everything that comes up in a client's life, does specialization help or hurt?

Often a potential client will see a firm with complementary areas of practice. For example, a firm that handles worker's compensation may also handle personal injury. There are also attorneys who “do it all,” either because they believe it will help them acquire more clients, or because they are genuinely interested in the variety.

There are also firms—like ours—that handle only plaintiff's litigation, and focus on one or two particular areas: for example, employment law and medical/hospital negligence. While to a potential client these may seem different, they take somewhat similar paths and each, in the end, involve representing an individual at trial against what is typically a large company or institution.

Some areas are also more complex than others (federal litigation, medical malpractice, product liability, class action), however in any case one of the most important things an individual can do is properly vet the attorney that they intend to hire. In the end one or two different practice areas certainly does not suggest that an attorney is not qualified to handle a case, and in fact often indicates just the opposite.

What is a trial date and why is it important?
A lawsuit can be a long process, and most clients have questions throughout the process.  One question that we often receive is whether the case will go to trial.

Statistically, greater than 90% of lawsuits either settle or are dismissed.  Here, however, we evaluate each potential case on its merits in a potential trial.  Why do we do this?

First, the reason that some cases do go to trial is because the parties strongly disagree on either liability or damages. Lawyers can argue with one another about the merits of the case until they are blue in the face, but without a trial date – and thus an end to the case – in sight, these arguments are often useless for the client who is standing on the sidelines. A trial date assures the client that he or she will have their day in court. 

Second, as a Plaintiff you need to be ready to take the case to and through trial. If you are not, and you are looking for a quick settlement, or are afraid of trial, you will never receive full settlement value for your case. 

We do not believe that all cases require a trial.  Often there are very specific and legitimate reasons for suggesting a settlement to a client.  What is important, however, is that the client is aware at the outset of the case that a trial is a possibility, and knows going in that, if the insurance company or employer is not being reasonable (as is frequently the case), we will proceed to trial if it is in the best interest of our client.

What are “statutory” attorneys' fees?
Many cases that we handle at D'Orazio Peterson involve laws that include “statutory attorneys' fees” as an element of damages for a successful plaintiff.

Statutory attorneys fees are fees that are recoverable by a successful plaintiff for the hours that his or her attorney spends on the case.  For example, Title VII of the Civil Rights Act, which prohibits discrimination on the basis of race, sex, nationality, etc., allows a successful party to recover damages for economic loss, emotional distress, and attorneys fees.  Similarly, the Family and Medical Leave Act (“FMLA”) also allows a successful plaintiff to recover damages for lost wages and attorneys fees.

So why does this matter?  Because often discrimination, retaliation and FMLA cases involve claims that do not, in and of themselves, have significant monetary damages.  An employee earning $10hr, for example, may be subjected to gross discrimination and terminated, but on paper may have what would be considered a relatively small amount of damages.

By allowing the successful plaintiff to recover attorneys' fees as part of a claim, the laws encourage attorneys representing plaintiffs (like us) to bring cases that might not otherwise have sufficient damages to be brought.  And by encouraging such claims the laws make it easier for the “little guy” to fight against large companies who have seemingly unlimited resources to litigate.

At D'Orazio Peterson we have successfully litigated claims against some of the largest employers in the country, in situations where egregious discrimination or violations of Title VII or the FMLA have occurred.  Because we primarily handle cases on contingency (meaning we do not get paid unless the client receives a recovery), many times the only reason that we have been able to bring the claim is because the law provides for a recovery of attorneys fees as an element of damages.

So, while employment laws generally are written and interpreted in a way that protects employers, “statutory attorneys fees” are one way that the laws allow the “little guy” (and, by extension, his or her attorneys) to stand up to the large company who has wronged them.

If your have questions about an employment discrimination or retaliation claim feel free to give us a call.  We're always happy to help.

In a medical malpractice case, what is a “Certificate of Merit”?

One of the first things that we explain to potential clients who call our firm for representation in a medical malpractice or medical negligence case is the concept of the “certificate of merit,” which is unique to these types of cases.

In New York, anyone can file a negligence lawsuit against another person. If John hits Susie with his car, Susie can call a lawyer who handles personal injury matters, and that lawyer can prepare the paperwork and file the lawsuit for Susie. This is the typical lawsuit in New York.

If, however, John is a doctor and he performs surgery on Susie, and that surgery goes wrong, Susie cannot just go ahead and file a lawsuit. That is because in the context of medical negligence or malpractice claims New York State has imposed a higher burden on the plaintiff. In this case, Susie's attorney, along with the filing documents, would need to also file what is known as a “certificate of merit.”

CERTIFICATES OF MERIT HELP PREVENT AGAINST FRIVOLOUS LAWSUITS

By filing the certificate of merit Susie's attorney is attesting that he has obtained the medical records, and has had those records reviewed by a qualified physician. Susie's attorney is further affirming that the reviewing physician has informed the attorney that the malpractice or negligence claim has “merit,” and is not frivolous. In theory this prevents claims from being pursued that should never have been brought.

In practice, the Certificate of Merit allows attorneys to get a better picture of the case, and often helps with the prosecution of the case for the Plaintiff. It allows an early, objective set of eyes on the case, and gives the attorney an often much needed neutral perspective on the medical issues that will come up in the case. Often an experienced medical malpractice attorney can identify the issues and make a pretty accurate determination of the merits of the case with a thorough review of the records, however that is not generally permitted, and the medical review is necessary.

Potential plaintiff's must keep in mind the requirement of the certificate of merit in medical malpractice and negligence cases in New York. The failure to file the certificate can result in severe sanctions for the plaintiff, including, in harsh circumstances, dismissal of an otherwise viable lawsuit.

If you or a family member have questions about a possible medical negligence or malpractice claim in New York give us a call. We're happy to help.

Does my employment handbook create a binding agreement?
We often speak with potential clients who, for one reason or another, were terminated and did not receive the protections that they believed they were “entitled” to under their employee handbook. The question from these employees is often, “didn't the handbook create a binding agreement?” The short answer, typically, is no.

Employee handbooks exist in most facets of the business world, and for good reason. They typically set forth expectations and procedures governing the employer-employee relationship, and provide both the employer and employee with some sense of consistency. Quite often these handbooks include provisions relating to a multi-step disciplinary process for employees. This will generally provide something along the lines of a verbal warning or counseling after a single infraction; followed by a written warning, then a final warning prior to termination. Employees often read these handbooks and come to expect that they will be automatically entitled to the procedures set forth within the handbook – probably a reasonable assumption.

The problem, however, from an employee perspective, is first that handbooks almost always contain some sort of disclaimer on the first or second page, which states in effect that the handbook should not be considered to create an employment contract, or otherwise change the “at-will” status of the employment relationship. “At-will” employment is something that is discussed at length on this site, but in short it essentially means that an employee may be terminated at any time for any reason, as long as that reason is not illegal (i.e.. because of the employee's race, gender, age, disability, religion, etc.). Along the same lines, an employee may quit his or her job at any time without notice, for any reason or simply no reason. We often tell people that your boss can fire you because he did not like the color of your shirt, but not because he did not like the color of your skin.

So employment handbooks often contain an explicit disclaimer that the handbook is not intended to and does not make the relationship a non at-will situation. But what about those instances in which such language is absent? Well, in those situations the rule still generally (almost, but not quite always) applies – that the agreement does not create any sort of binding contractual relationship. As a result the employee is still generally entitled to follow, or not follow, their handbook at their own discretion.

The exception to the rule? Rarely courts have inferred that contracts had been created where the employee explicitly relied upon information contained in the handbook at the time of their hiring. Again, this is rare, and in the overwhelming majority of cases courts have found that no contractual relationship exists.

Despite all of the above, however, where an employer fails to follow its own internal policies or handbooks, in the context of otherwise questionable circumstances (i.e.. evidence of discrimination), such action can and often is very helpful. We often see examples of an employer failing to follow its policies with respect to one individual, but not another, and often the other person is someone who was recently pregnant, out on disability, or the like.

The bottom line, as always, is that if you have questions about a termination that occurred under questionable circumstances give us a call. We're happy to help.

Will I have to go to court if I file a lawsuit?

We often receive questions from those who have been injured or subjected to discrimination regarding whether they will actually have to “go to court.”  The short answer is…maybe.

Most victims have never been involved with the legal system before they call us, so their best guess of how things work is what they have seen on shows like “Law & Order”, “The Practice” or, more recently, “The Good Wife.”  While these shows in some ways accurately depict the legal process, they often gloss over, or completely ignore, the realities of a lawsuit.

The first thing to recognize is that a medical malpractice, negligence or employment discrimination lawsuit proceeds fairly slowly.  It is very unlikely that a case will, as seen on TV, end up in trial three weeks after the lawyer first meets the client.  Instead, after a lawsuit is filed there is fairly lengthy process called “discovery”, where the parties exchange relevant information and paperwork about the case.  It is during this period that the plaintiff may have to give a deposition.

The deposition is similar to a formal interview by the defense or insurance attorney, with the plaintiff's attorney present.  During this deposition the defense attorney will ask the plaintiff about his or her claim, and get some additional information about the damages.  The deposition is and will be the subject of an entire future article, but for the purpose of this question, it occurs out of court and generally in the lawyer's office.

After the discovery process is concluded one of three things will generally happen.  First, the parties will negotiate a settlement out of court, either through attorney discussions or, more increasingly, the process of mediation (another topic for a separate article).  If there is no settlement the case will either be scheduled for trial or the defense will ask the court to dismiss it.  This happens somewhat frequently, but the hope is that the plaintiff's attorney has positioned the case to survive this request and live to fight at trial.

Just because a case gets scheduled for trial, does not mean a trial actually takes place.  Often cases are resolved just prior to trial, in order to avoid the significant expenses (and risk) that a trial presents.  If, however, a case is not resolved then a trial will take place.

Trials generally occur from anywhere between one to two years after a lawsuit is initially filed.  At D'Orazio Peterson we always prepare our employment, personal injury or medical malpractice clients for the prospect that their case will go to trial.  We do this for two reasons.  First, we do not approach cases from a “churn and burn” mindset.  We do not handle a high volume of cases, and those cases that we do accept we do so knowing that they may need to have a trial.  We are comfortable with that.  Second, we do not believe it is helpful to our clients to tell them that they will never see a courtroom.  They need to be aware going in to a case that, if necessary, it will end up at trial.  We have found this philosophy to work well over the years.

If you or a family member have other questions about a serious injury, medical malpractice, nursing negligence or employment discrimination lawsuit in New York please feel free to contact us.  We are always happy to help.

My family member suffered an injury while a patient at a hospital, but was told it was an accident. Is there anything I can do?

The first thing to keep in mind if you or a family member suffers an “accident” while a patient at a hospital or nursing home is that these “accidents” are often preventable. Now, you won't be told that the accident was preventable; instead you will probably be told that it was completely “unforeseeable,” or simply an “accident.”

The reality is that injuries at hospital or nursing home are often the result of a failure by staff members to pay adequate attention to a patient. We see examples of this all over.

EXAMPLES OF HOSPITAL NEGLIGENCE

    1. A patient at risk for a fall is not assigned a monitor, restrained, or otherwise given additional attention. During the night the patient presses the “call” button for several minutes to get help, but the staff ignores it because the patient is considered a “pain”. The patient then attempts to get up, and while trying to ambulate to the bathroom, suffers a fall, hitting her head and sustaining severe damage. The hospital may tell the patient's family that it was simply an “unavoidable accident,” however this is not true. In fact, had the hospital staff simply responded to the patient when she rang the buzzer, the patient would have received the necessary assistance and would not have fallen. In this instance the negligence of the hospital or nursing home staff caused the injury, not simple an “accident”.
  1. A patient is in the hospital for a minor procedure and a nurse assigned to simply provide a heating pack does so, but fails to provide the necessary padding. Instead, the nurse places the pad directly on the skin and leaves the room. The patient, who is being given a heavy dose of medication, does not notice that her skin is literally burning until her mother comes into the room and notices. The pad is finally removed and it is determined that the patiend has sustained third degree burns on her back. Again, the hospital tells the family that it was simply an “accident”, but clearly in this instance the negligence of the nurse was the direct cause of the injury.

In both of these instances—which are examples of real cases—the hospital or nursing home staff were not forthcoming with the family of the victims. And in both instances it took the families hiring our firm to get real answers.

The moral of the story is that it is okay to question what you have been told when a family member suffers a severe injury at a hospital or nursing home. You are entitled to ask questions, and there are many ways to get to the answers that you deserve.

If you or a family member has been injured at a hospital or nursing home call us at 518-308-8339, we'll be glad to help you get some answers.

What does it mean to take a case “on contingency”?

Contingency means that we only recover a fee in those cases if we obtain a recovery for the client. The typical fee in a contingency case is 1/3 (33%) of any recovery, less expenses. The majority of our cases are taken on contingency.

A lot of firms seem to be charging for initial consultations, do you?

We charge a flat fee of $150 for an employment law consultation.  In the event that we accept your case on a contingency fee basis we will credit that $150 back to you against any expenses.

We charge a flat fee because in the vast majority of employment situations we are able to provide assistance to the individual during the course of an initial meeting/consultation after hearing about their situation.  We are happy to dispense this advise, however as Abraham Lincoln famously said, “A Lawyer's time is his (or her) stock in trade.”

Our consultations in personal injury matters are free.

I see lots of attorneys on TV and other places. Shouldn't I be going to them?

The most important things to keep in mind in selecting a lawyer or law firm are not how often you have seen an ad or commercial, but your feel for the lawyer. You should ask many questions, determine the lawyer's level of experience and competence and, importantly, determine your level of trust that the lawyer or firm will take the time to nurture your case. Find out who will handle the majority of your work, whether it will be the lawyer you meet initially or someone else. Ask about the lawyer/law firm caseload. Are they a high volume practice? Does it make a difference?

If I pay a retainer, does that mean that I will not receive any of the money back?

Not necessarily. When you pay us a retainer on a billable hour case, we place the funds into an attorney trust, or escrow, account. As we perform work on the case we deduct from the retainer. If there are unused funds at the end of the case we will issue you a check for the remaining balance.

Do you require an initial retainer on your cases?

That depends. Many of our cases, particularly employment discrimination and serious personal injury cases, are taken on contingency. Others are taken on a “flat fee” basis, and finally some are taken on a traditional “billable hour” basis. In some flat fee cases payment is required up front, and in others payment is made at the conclusion of the matter. In traditional billable hour cases we usually have the client pay us some type of initial retainer. As a small firm, however, we are able to work with our clients towards a mutually acceptable payment method.

Some firms promise quick results. How long can I expect my case to take?

No one can predict how long a case will take, and we will never promise a quick result. The reason for this is that our job is to get the best possible outcome for our New York personal injury clients. If that takes one month or three years, we will do what is necessary to ensure maximum recovery for the client. We consult our clients each step of the way, and we will not settle a case early if we believe we will be able to obtain a better recovery for a client down the road.

Will I have to go to court, or answer questions?

Odds are that you will, at some point, have to give an examination before trial, or deposition, where you explain what happened in your case. We will sit with you and prepare so that you are comfortable in this situation long before the day comes. We cannot predict whether your case will ultimately go to a trial, however we prepare all cases as though they would end up in court.

How long do I have to file a claim following an injury?

It depends upon the specific facts of a case, however the general statute of limitations in New York for Personal Injury matters is three years, while the statute is 2 1/2 years for medial malpractice and two years for wrongful death. These timelines, however, can be subject to certain extensions in some cases, which is why it is critical to contact an New York Personal Injury lawyer to review the facts of your case.

Personal Injury

Have you been injured at a job site, or in a vehicle? D’Orazio Peterson is an experienced Personal Injury law firm. If you have experienced serious injury due to negligence or malice, be sure to contact us to see what we can do to help you receive the justice you deserve.

Employment Law

If you were recently laid off during maternity leave or you’re having trouble at work and think discrimination is to blame, you have the right to fight back against your employer’s poor behavior. D’Orazio Peterson handles employment law cases involving FMLA violations and incidents of discrimination based on age, gender, race or disability.

Medical Errors

Medical errors are a leading cause of death, and many are preventable. We work towards eliminating those errors.

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