Getting a Recovery for Your Child’s Injuries and Getting the Court’s Consent to a Settlement (Part III)

This post discusses the use of a structured settlement in settling an infant’s case.  Part I discussed the general nature of the infant’s settlement, and Part II discussed obtaining money from the settlement for minor purchases.

     A structured settlement is the purchase of an annuity with the net settlement funds.  The annuity earns tax-free interest and allows a pay-out tailored to the infant’s needs as dictated by the parent.  In comparison, in the all-cash settlement discussed in Part I, the net settlement is placed into a saving account, and all the money is available to the child on his 18th birthday.  Also, the interest accrued on the account is taxable each year.  

Here is an example of a structured settlement:

The infant’s case settles for $150,000.  Fortunately, the injury has resolved.

The parents review a structured settlement which would do the following:

1.  $50,000 would be paid to the attorney for his legal fee;

2.  The remaining $100,000 would be used to purchase an annuity which would pay the child a total of $135,000 as follows:  $25,000 on each birthday starting on 18, 19, 20, 21, and 22; and $15,000 on birthday 23.

The parents have decided to have the structured settlement so that the infant can earn the highest rate of tax-free return and so that the child’s higher education will be funded.  Also, the parents want to prevent their son from squandering his entire settlement when he turns 18.

Here are the chief advantages of a structured settlement:

• the injured client is guaranteed a high tax-free rate of return which is much higher than the taxable saving account;
• the parents can structure the pay-out to fund college expenses or some other future needs in the child’s life;
• the structured settlement prevents the child from improvidently spending all his money when he turns 18; and
• if the child is permanently injured and will need permanent care and training, then the settlement funds can be allocated to future use, such as the purchase of a handicapped van every 5 years.

The disadvantages are the following:

• even when the child reaches majority, he cannot override the decisions being made for him by his parents, the attorney, and the judge;
• in our shaky economy, nothing is as safe as cash in a bank;
• if the child has a need to get the money earlier than prescribed in the annuity, there may be harsh penalties if he were to sell his annuity at a discount to one of the many companies who purchase such structured settlements.

We have handled all types of settlements involving infants.  If your child has been injured in an accident, please feel free to call us at 800-581-1434 for a free consultation.

Mark E. Seitelman, 2/9/10, www.seitelman.com.

 

Getting a Recovery for Medical Malpractice; the Case of the Wrong Transfusion and Getting a Second Legal Opinion

We settled a medical malpractice claim for $50,000 for the transfusion of the wrong blood type. 

    The client has sickle cell anemia.  His on-going treatment consists of a blood transfusion every 3 months.  The client had been getting his transfusions at the same hospital for 3 years. 

The client has type O+ blood.  On one of the visits the hospital transfused the wrong blood, type A.  The client was sent home from the clinic, and he did not know of the mistake.  He learned later that he was given the wrong blood.  Shortly after the transfusion the client returned to the hospital’s emergency room with heart attack symptoms.  He felt deathly ill.  He had to be admitted for 4 days where he was transfused a number of times with the correct blood type.  After discharge he had to stay home to recuperate for a period.  The client could have died from the wrong blood transfusion.

We made a pre-suit settlement presentation to the hospital, and we were able to settle the case quickly.

The client’s friends and another attorney told him that the case was too small and would not be worth pursuing.   He also heard that he would get nothing from the case.  The client had no expectation of recovery when he hired us at the recommendation of a friend, one of our former clients.

This case has a couple of lessons for potential clients:

1. If you have been rejected by one attorney, go to another for a second opinion.  Sometimes, the second attorney will see things that the first lawyer missed.  Or the second attorney might find a different “angle”.
2. If the hospital or doctor are guilty of indisputable negligence, then defendant will settle if  the settlement is reasonable.
3. Be reasonable in your expectations.  We were able to settle because the client was reasonable because he did not sustain a permanent injury.  In fact, he had no expectations of success when he hired us.  

If you have been injured due to medical malpractice, please feel free to contact me at 800-581-1434 or write to us at letters@seitelman.com.

Mark E. Seitelman, www.seitelman.com.

Getting a Recovery for Your Child’s Injuries and Getting the Court’s Consent to a Settlement (Part II)

In Part I we discussed getting the court’s consent to a settlement.  This and future posts will discuss issues that arise during the settlement.

Often parents ask “can the court allow me to receive some money out of the settlement so that I can buy a computer for my son?”  Or “can some money be spent to furnish my child’s room?”

 

Generally the court will order that the net settlement proceeds be deposited into a savings account for the child and that only the child can withdraw or close the account after he turns 18 years of age.  The court wants to keep the settlement in a “lock box” to prevent the parents from either stealing or wasting the infant’s money.

Generally, the court will deny the immediate payment of the child’s living expenses, especially discretionary expenses, such as computers and furniture.  The reasoning is that the settlement is the child’s money and that the parents have the obligation to provide for the child until he turns 18 years of age.

However, the court does have the discretion to allow such expenditure, and we have had situations where the court will allow it.

In order to obtain such funds, we have to show the following:

1. the parent and infant state the need for the computer or other item in their affidavits supporting the settlement;
2. the parent must state and sometimes prove that he is poor and cannot affort the expense;
3. the parent provide an itemized bill from a reputable store to show the cost; 
4. the court will order that the insurance company cut a separate check to the store for the purchase; and
5. the proposed purchase represents a small part of the net settlement, such as no more than 20%.

In a settlement of $475,000, the court allowed the parent to take $1,500 for the computer and printer.  The court had a brief inquiry on the record with the parent as to the parent’s modest income.  Also, the child was learning disabled, and the computer would help the child keep-up with his school work.

Of course, the court can deny a request.  I recall once a judge flatly refusing to even consider the request.  She said ”the parent has the obligation to pay for these things.”

I would say that there is a 60% likelihood that the court will deny the request.   Nonetheless, it is worth making the request if it is reasonable under the circumstances.

Sometimes, years later the parents might want to ask the court to allow an expenditure.  At this stage the money has been ”locked away” in the savings account,  and the court’s order is necessary in order to invade the account.  Generally, such requests are less successful, and we discourage the request.

If your child has been injured in an accident, please feel free to call me for a free consultation at 800-581-1534 or write to me at letters@seitelman.com.

Mark E. Seitelman, 2/4/10, www.seitelman.com.

Getting a Recovery for Medical Malpractice and the Medical Judgment Defense (Part II)

In an earlier post I wrote about the medical judgment defense in a medical malpractice case.

In sum, the medical judgment defense states that a physician will not be held liable for a medical judgment as long as his judgment is based on sound medicine.

Recently, a potential client posed the following case:

I had a right hip replacement done by Dr. Jenkins.  I had a left hip replacement done about two years earlier, and my recovery on the left hip went well.

Unfortunately, my recovery from my right hip did not go as well.  It seems that my right leg has become almost 1 inch longer than my left, and I am imbalanced.  It is difficult to walk.  Also, I have low back pain as a result being lopsided.

My new orthopedist told me that Dr. Jenkins used an “old fashioned” hip replacement technique and that this might have caused the elongation of my right leg.  My new orthopedist told me that he would not have used the same technique in that a newer, better method has become available.  However, my new doctor said that my hip was anatomically correct.

The client has no recourse against Dr. Jenkins.

If the surgeon exercised his sound medical judgment, then he cannot be held liable for the bad result.  As long as the old technique was still recognized and used, Dr. Jenkins would not be liable.  A longer or shorter leg is a foreseeable complication of hip surgery. 

Bad medical judgment is not negligence.  A physician is expected to exercise sound medical judgment based upon generally accepted medicine.  It is easy to play “Monday morning quarterback” and have another surgeon say that he would have done it differently or would have made a different judgment. 

If the doctor were to use a technique which has been disproved, then such might rise to medical malpractice.  For example, if a doctor were to use leaches to treat pancreatic cancer, then the doctor’s treatment would be negligent medical practice.  The decision to use leaches, a method which was used in the 18th century and is no longer used, would not be deemed a medical judgment because it is not based in sound medical practice.

Simply stated, a doctor may use his sound medical judgment, and he will not be held responsible if something goes wrong.

If you have been injured due to medical malpractice, please feel free to contact me at 800-581-1534 or write to letters@seitelman.com.

Mark E. Seitelman, 2/3/10, www.seitelman.com.

Getting a Recovery for Your Child’s Injuries and Getting the Court’s Consent to a Settlement

Whenever a child’s personal injury is settled, the court must approve the settlement. 

The court must not only approve the total amount of the settlement, but the allocation of the funds, the manner that the funds will be held for the child’s benefit,  and the attorney’s fee.  In comparison, a competent adult need not obtain court approval to settle his case.

  The law calls a child under the age of 18 an “infant.”  The court’s approval of the settlement is an infant’s compromise order.

The reason for obtaining approval is that the child is the ward of the court.  The court will seek to protect to the child from the possibility that the parents might spend the money for themselves if the money were to be paid to the parents.  After all, it is the child’s money, and he may need that money during his adulthood for college, future medical care, training, household care, etc.  Therefore, the court will tailor its order so that neither parent nor child can touch the money, and only the child can withdraw the money from a bank when he reaches 18 years of age.

Here is an example of how the settlement procedure works:

The infant, a 10 year old, sustained a fractured wrist when he was struck by an automobile while playing in the roadway.

A lawsuit is brought, and the driver’s insurance company offers $45,000 to settle the case.  This is a fair settlement based upon the driver’s  defenses (the child darted-out in the middle of the street), the amount of insurance available ($50,000 policy), and the child’s lack of a permanent injury.  Essentially, the fracture healed, and the child has no residual injury or limitations.  The child participates in sports without difficulty.

The attorney recommends the settlement, and the parents agree.  The attorney must then prepare an infant’s compromise order so that the court can review and approve the settlement.  These papers include an affidavit from the parent stating the facts and recommending the settlement.  There will also be an affirmation by the attorney explaining why this is a favorable settlement.   Last, the attorney will arrange a physician to examine the child to determine that the injury has resolved, and the physician will sign an affirmation to the effect that the injury has healed and that no further treatment is necessary.  In this case, the child would be evaluated by an orthopedist.

The attorney puts together a proposed compromise order along with the parent’s affidavit, the attorney’s affirmation, and the physician’s affirmation.  Also, exhibits are annexed, such as the police report and hospital and medical records.  The entire package is presented to the court for review.  

The court will contact the attorney for a hearing which the child and parent must attend.  The term ‘hearing” is a bit of a misnomer in that it is rarely on the record or even in the courtroom.  Generally, the judge will meet informally with the parent, child, and attorney in the judge’s chambers, i.e., office.  The judge must be satisfied that the settlement is in the infant’s best interests.  Often, the judge will ask the child if he has any problems and is able to participate in gym class and sports.  In many instances, the meeting is very pleasant and comforting to the parent and child in that they see that the judge is interested in the child on a personal level.  The parent and child are also reassured that the settlement is the right thing to do.  The judge might have some questions to the attorney, such as whether all medical bills have been paid.  In some rare instances the judge might require more information before he signs the order, and the attorney may have to submit further information at a later date.

At the hearing, if the judge is satisfied, he will sign the infant’s compromise order prepared by the attorney.  The judge will determine the attorney’s fee.  In this case, the fee is $15,000.  Most important, the judge will order that the balance of $30,000 be deposited in a savings bank by the parent for the benefit of the infant and that the infant cannot withdraw the money until he reaches 18 years of age.  The parent picks a branch of the Apple Bank for Savings which is located near the courthouse.

Generally, the court will direct that the infant’s net settlement be deposited into a savings bank.  Although the bank interest rate is lower than can be obtained in the stock market, the court wants to make sure that the funds are safe and will be available to the child when he turns 18.  Also, the court will want the funds deposited in a bank that is either in the county or the immediate county to the courthouse. 

The attorney gets a copy of the order, and he sends it with the parent’s release to the insurance company.  The insurer sends two checks to the attorney, one for the fee and the other for the bank.  The attorneys gives to parent the check for the bank along with a copy of the order so that the parent can open the account.  Typically, after the account is opened nothing happens until the infant turns 18 and wishes to either withdraw it or roll it over into a new account.  Of course, the account is accruing interest until withdrawal.

The foregoing is a simple example of the infant’s compromise.  Future articles will discuss more complex and unusual situations.

If your child has been injured in an accident, please feel free to call me for a free consultation at 800-851-1434 or write to letters@seitelman.com.

Mark E. Seitelman, 2/3/10, www.seitelman.com.

Getting a Recovery for a Trip and Fall on a Defective Sidewalk; It’s Where You Trip that Counts (Part II)

In an earlier post I discussed that in a sidewalk accident, it all depends upon where you fall.

An appellate court has recently created another hurdle.   The Appellate Division, First Department, has held that the sidewalk ramp is deemed the responsibility of the City, not the adjoining property owner.   Ortiz v. City of New York, 2009 Slip Op 06299 (August 25, 2009).

In this case the injured client fell due to a defect on the sidewalk ramp.  He sued the adjoining building owner and the City.  The court held that neither the private property owner nor the City were liable.  The client’s case was dismissed.

Sidewalk ramps are required for curb corners under the federal Americans with Disabilities Act so as to allow easier wheelchair access and as well as to eliminate a tripping hazard for the blind.

In essence the court said that the sidewalk ramp is the responsibility of the City despite the fact that the law requires the land owner to maintain the sidewalk to the curb.  There appears to have been a “loophole” in the recent New York City law which shifted liability to the private property owner from the City.  Under the court’s reading, City’s ordinance makes the property owner liable for the sidewalk “flags”, but it is silent as the sidewalk ramp.  Therefore, the City remains liable for the ramps.

Therefore, the court reasoned that the private property owner would not be responsible.  As for a case against the City, there was no prior written notice of a defect, therefore, there was no liability against New York.  (No prior written notice be proved against the private owner.)

We find this ruling strange because the law imposes an obligation on the property owner to pave the sidewalk.  The owner must pave from his building line to the curb.  This includes the corner.  Furthermore, the sidewalk ramps and curb cuts are required under the Americans with Disabilities Act.  As illustrated above, many property owners not only build the ramp but  enhance the it  with a non-skid surface.

This mess should be clarified by the City Council so as to make it clear that adjoining property owner is liable for the condition of the sidewalk including the sidewalk ramp.

A plan for a sidewalk ramp.

If you have been injured from a sidewalk trip and fall, please feel free to contact me for a free consultation at 800-581-1434 or write to letters@seitelman.com.

Mark E. Seitelman, 1/19/10, www.seitelman.com.

Getting a Recovery for Medical Malpractice and the “Medical Judgment” Rule

What is the medical judgment defense?

First, let us establish a simple definition of medical malpractice or medical negligence:

A physician or other health care provider is obligated to provide medical services which meet the reasonable standard of medical care in the community.  Medical malpractice is a deviation from that standard.

Let us turn to the medical judgment defense:

A physician, as a learned professional, is expected to use professional judgment in treating a patient.  He must make many medical judgments when treating a patient.  One doctor may have a different approach than the next doctor, however, the fact that two physicians differ does not mean that that there was malpractice.  

A physician will not be held responsible for an error of  professional judgment.  In other words, if the physician’s treatment was acceptable in the medical community, then an error of judgment will not be malpractice. 

In order to hold a physician liable for medical malpractice, the error must be clear negligence rather than an error of judgment.

How does the medical judgment defense work?

For example,

Sam has a lumbar fusion at L5-S1 to relieve his severe low back pain.  The surgeon, Dr. Ben Casey,  uses a # 3 cage to encase the fused vertebrae.

Sam’s pain is not relieved.  It becomes much worse, and he cannot work.

Sam visits other spine surgeons.   Sam visits Dr. Kildare.  The doctor says that the first surgeon might used a cage which was too small.  Dr. Kildare prefers to use a # 5 cage which is larger than the # 3 used.  Dr. Kildare says that a larger cage provides more stability.  However, he says that the use of the # 3 cage is acceptable in New York’s spinal surgery community.

In this instance, the first surgeon’s use of a smaller is not negligent.  It was his medical judgment to use a # 3 rather than a # 5.  Perhaps, a # 5 cage would have yielded a better result?  Perhaps not?  In any event, such is irrelevant because an error of judgment, based on sound and accepted medical practice,  is not malpractice.

Therefore, the professional judgment rule protects the doctor from having a court second-guess medical judgments so long as his judgment was sound and reasonable within the medical community.  An error in judgment is not medical malpractice.

If you have been injured due to medical malpractice, please feel free to call me for a free consultation at 800-581-1434 or write to me at letters@seitelman.com.

Mark E. Seitelman, 1/23/10, www.seitelman.com.

Choosing the Right Auto Insurer; New York State Issues Its Rankings

   The New York State Insurance Department has issued its  2009 rankings of complaints against auto insurers. 

Here are the top ten companies with the most complaints:

1. Long Island Insurance Co.
2. Countrywide
3. White Mountain Group
4. Tri-State Consumer
5. American International Group
6. Mercury General Group
7. Commerce Group
8. Utica National Insurance Group
9. GMAC Insurance
10. Kingsway Group (Lincoln General)

The State has also compiled a list of the insurers with fewest complaints:

1. Adirondack Insurance Exchange
2. Amica Mutual Group
3. Main Street America Group
4. QBE Insurance Group
5. American Express Group
6. Balboa Life & Casualty Group
7. Electric Insurance Group
8. Eveready Insurance Group
9. Chubb & Sons
10.  Erie Insurance Group
11. Preferred Mutual Insurance Co. (a tie for 10th position)

After publishing this post on January 12th I received the comment below of Michael C. Austin, Vice President and Director of Corporate Communications, for Utica National Insurance Group, # 8 on the list of the carriers with the most complaints.  His comment, which has been reproduced under “Comments”, provides a cogent discussion of these lists from the viewpoint of the insurance industry.

To sum-up Mr. Austin’s comments,

• The Insurance Department’s lists rank the auto insurers on the ratio of upheld complaints against premium volume.  
• A small company either can be helped or hurt by the lists.  The small numbers involved in a relatively small company, such as Utica, make the ratio results volatile.  For example, in a previous year, there was only one  upheld complaint, and that resulted in Utica landing in the best ten list.  However, in 2009, there were four upheld complaints and a dip in premium volume.  As a result, Utica landed in the “ten worst companies.”
• The complaints are formal complaints adjudicated before the Insurance Department.   Very few complaints get tried.  The lists should be read only in the context of upheld complaints against the premium volume.  The rankings say nothing about fairness in settling claims, promptness in payment, and general customer satisfaction. 
• The so-called top ten and bottom ten lists should not be a factor for a consumer’s consideration in buying insurance.

Mr. Austin advised the following:

We would advise consumers to get recommendations from family and friends about an insurer, and also from their independent insurance agent, who represents a number of companies and is well-positioned to advise consumers on not only price but also their broad experience with the service and claims performance of the multiple number of carriers they represent–they’ve seen literally hundreds, even thousands, of claims and they know who does it well and who give the “cut-rate price and cut-rate service” * * *.

This is sound advice which we endorse.

 If you have been involved in an automobile accident, please feel free to call me for a free consultation  at 800-581-1434 or write to us at letters@seitelman.com.

Mark E. Seitelman, 1/12/10 (and revised 1/15/10), www.seitelman.com.

Getting a Recovery for Snow and Ice Injuries; Is The Landlord Liable While It Is Snowing?

We received another question about a snow and ice fall this week:

I left my office for lunch, and I slipped on the sidewalk outside my office building.  It was snowing, and the building owner had not done any shoveling.  Is the landlord liable for my accident?  

The answer is “no.”  The land owner does not have to clear the snow and ice until a reasonable amount of time after the storm stops.

What is a reasonable time?  It depends upon the facts.

For example:

• If the snow stops at 11 am on a Monday, the office building should begin snow removal immediately.
• If the snow stops at 1 am on Sunday, the owner should remove the snow within a reasonable amount of time, which can be as much as 24 hours if the building is not staffed and if the building is in a heavily commercial district.
• If the snow stops at 2 pm on a Saturday in front of an apartment house, then the building should begin snow removal as soon as the snow stops falling.

The landlord’s responsibility ultimately depends upon the facts of the case.

If you have been injured in a snow and ice fall, please feel free to call me for a free consultation at 800-581-1434 or write to us at letters@seitelman.com.

Mark E. Seitelman, 1/8/10, www.seitelman.com.

Getting a Recovery for Snow and Ice Accidents; A Question on Landlord’s and Tenant’s Liability for the Sidewalk

 

In light of the recent snow, we received the following question:

I am a physician, and I rent the ground floor apartment in a three family house in Bay Ridge Brooklyn.  This is my medical office; I do not live there.  The landlord lives in the second floor unit, and a tenant lives in the third floor apartment.

The landlord and I share responsibility for removing the snow and ice.  This is an informal, friendly arrangement.  My lease is silent as to obligating me to maintain the sidewalk in any way.  Sometimes, the landlord clears the sidewalk, and sometimes one of my employees does the job.  For example, if the snow occurs when on the weekend when my office is closed, the landlord would shovel.  During a weekday I would have my employee shovel since he is a big, strapping guy, and my landlord is elderly.

If someone were to fall on the sidewalk due to a failure to shovel and de-ice, would I be liable?

The answer would be a qualified “no”, the doctor would not be liable.

The obligation to shovel is the landlord’s.   The recent change in New York City law makes this adjoining property owner liable for the condition of the sidewalk.  This assumes that the lease does not impose any duty upon the doctor to clean the sidewalk and entry into the building. 

However, the fact that both the landlord and tenant share the responsibility of clean-up might make both parties liable.  Even though the doctor had no obligation to do anything, as a volunteer she must do her job in a reasonable manner.  In effect, she has agreed to undertake the responsibility of shoveling.  Although she had no duty to volunteer, this good Samaritan can be liable if she were negligent.  Therefore, both landlord and tenant might be liable in court.   

If you have been involved in a snow and ice accident, please feel free to call me for a free consultation at 800-581-1434 or write to letters@seitelman.com.

Mark E. Seitelman, 1/6/10, www.seitelman.com.