A Great Man Passes On; Bela Kiraly, Leader of Hungarian Revolt, Dies

Although Being Prepared is devoted to personal injury,  insurance law, and issues affecting people injured in accidents, I must note the passing of a great man that I knew.

        General Bela K. Kiraly died at the age of 97 in his native Hungary.  He was the military leader of the failed Hungarian uprising of 1956.  Read his full obituary from The New York Times here.

I knew the general as Professor Kiraly of the Brooklyn College History Department.  He escaped Hungary with the Soviets in hot pursuit when the uprising failed.  He settled in New York where he took doctoral studies at Columbia University and became a professor of history.  I took his course in military history.  

Although General Kiraly was an Hungarian hero, he did not talk about it in his course.  He was a modest, nice, and humble man.  When I was privileged to have lunch with him he did discuss much about his great past, such as the following  from the Times obituary:

During the war, Mr. Kiraly commanded a battalion of 400 Jewish slave laborers at the Ukrainian front. Disobeying orders from his superiors, as The Jerusalem Post wrote in 1993, he “put the 400 men under his command into Hungarian uniforms and treated them humanely.” For his actions, he was honored in 1993 as a Righteous Gentile by Yad Vashem, the Holocaust memorial authority in Jerusalem.

Mark E. Seitelman, 7/9/09, www.seitelman.com, letters@seitelman.com, 800-581-1434.

Getting a Recovery from Amusement Park and Vacation Accidents; The Fatal Monorail Crash in Disney World

Unforeseen Accidents can happen while on vacation at a famous destination known for safety and efficiency.

Yesterday two monorail trains crashed into each other at Disney World in Orlando, Florida.  A conductor on one of the trains was killed, and the other conductor was injured.     

If you have been involved in an accident while on vacation either in another state or out of the country, it is essential to hire an attorney as soon as possible.   You should go to an attorney in your locality.  For example, a New Yorker should go to a New York attorney.  Your New York attorney will determine whether it is necessary to hire an out of state attorney.

We recommend that you go to a local attorney for the following reasons:

• Your local attorney will determine whether or not you can sue in a New York court.  For example, if the defendant does business in New York, you can sue in New York.  The Walt Disney Companies do business in New York and can be sued in New York.  Generally, it is more favorable to sue in your locality, i.e., New York, than sue in defendant’s home town.  Therefore, it may not be to the client’s advantage to go straight to an Orlando attorney.
• If suit cannot be brought in New York, then your New York attorney can locate an attorney in the other state or foreign country.  Your local attorney will be able to locate an attorney who is qualified and reputable.  For example, we are members of the American Association for Justice (www.justice.org), and we have located excellent attorneys through its network.  We have used the AAJ network to find attorneys in Washington, Minnesota, Virginia, and South Carolina. 
• Your New York attorney can act as your spokesman and ombudsman on your behalf with your out of state attorney.  

As we have discussed in prior posts, it is essential to hire an attorney as soon as possible so that investigation can completed early.  Early investigation is a key to a successful recovery.

If you have been involved in an accident while on vacation, please feel free to call me for a free consultation at 800-851-1434 or write to us at letters@seitelman.com.

Mark E. Seitelman, 7/6/09, www.seitelman.com.

Getting a Recovery for Injuries to a Child from a Day Care Center or Babysitter; The Case of the Drowned Infant

We have been hired by the family of the infant who drowned while in the care of a babysitter.  See news story here.

     James Daniel Farrior, III, died while in the care of Kristal Khan.  James, 11 months old, fell into a bucket of water and drowned while Ms. Khan dozed in the living room after taking Nyquill cold medicine.  Nyquill can induce sleep.

Our deepest sympathies are with the Farrior, Josiah, and Weeks families.

Ms. Khan ran an unlicensed day care center.  Essentially, she took-in children for the day from working mothers in the Richmond Hill neighborhood.  Ms. Khan charged $25 a day.

Under the law a day care provider or babysitter is deemed to be in loco parentis.  This Latin phrase means that she stands in the shoes of a parent and must provide the same duty of care that a parent should provide to her child.

In this case it appears that Ms. Khan was negligent in dozing while letting the children have free run of her house.  She was also negligent in keeping a water bucket in the kitchen which would have been a trap for a child.  Apparently, James must have leaned-over and fell-in head-first, so that he became caught and disoriented and was unable to free himself.

We have handled other cases against day care centers and babysitters.  For example

• An infant sustained a serious leg fracture.  The child probably fell from a table in the living room.  The fracture would not have occurred if the adult had properly supervised the child.
• An infant sustained fractured teeth in a playground in the back yard of the day care center.  Again, playtime should have been supervised.
• The child fell from stairs due to a shelf which was attached to the wall and became an obstruction.  The child bumped into the obstruction, lost his balance, fell, and sustained a serious leg fracture.   The shelf was a dangerous condition.

If your child has been injured due to a accident while under the care of a babysitter or day care center, please call me at 800-581-1434 or write to letters@seitelman.com for a free consultation.

Mark E. Seitelman, 6/23/09, www.seitelman.com.

Getting a Recovery for Injuries from Defective Drugs; FDA Recalls Zicam

The Food and Drug Administration has recalled the over-the-counter cold and allergy drug, Zicam. 

Zicam can cause permanent damage to one’s sense of smell.  Zicam Cold Remedy Nasal Gel and Zicam Cold Remedy Gel Swabs contain zinc.  The FDA recall does not affect other Zicam products, such as tablets, “rapid melts”, and liquid forms.

The FDA says that it received more than 130 reports of consumers losing their sense of smell.  It also says that there is evidence that the delivery of zinc to the nose can cause this injury.  Some consumers lost their sense of smell after one use while others suffered injury after multiple uses.

The manufacturer, Matrixx Initiatives, Inc., denies that Zicam injures the sense of smell, and it is contesting hundreds of  injury lawsuits.

In a products liability case, the FDA’s recall of a drug can be offered in evidence, but the jury does not have to accept the FDA’s finding.  Indeed, there have been cases where juries have found for the drug company even where the FDA found the drug to be dangerous.  However, the FDA’s finding is very powerful evidence before a jury that the drug was defective.   

We have worked closely with one of the nation’s leading drug product liability law firms on other drug cases.  If you have been injured by Zicam or any other defective drug, please call me at 800-851-1434 or write to letters@seitelman.com for a free consultation.

Mark E. Seitelman, 6/18/09, www.seitelman.com.

Getting a Recovery for an Accident While Working for the Federal Government; Hillary Clinton Fractures Her Elbow Going to the White House

Yesterday Secretary of State Hillary Clinton fractured her elbow on the way to the White House. 

Last week the Supreme Court nominee, Judge Sonia Sotomayor, fractured her ankle while catching a flight to Washington, DC.  See our story on Judge Sotomayor here.

Secretary of State Clinton is expected to have surgery, an open reduction with internal fixation.  In comparison, the Judge’s fracture did not require surgery;  her treatment consisted of a closed reduction.  We wish them both full recoveries.

It is a coincidence that both were injured in the course of their employment.   Judge Sotomayor was going to the equivalent of  interviews for a job promotion with members of the Senate.  Secretary Clinton was going to meet the “boss” at the White House.  Both would be entitled to medical and lost income benefits under the federal government’s equivalent of workers’ compensation in that they were injured while working.

Federal government employees have an equivalent of New York workers’ compensation.  United States employees injured in the course of their employment are entitled to medical coverage and lost income during their recovery.

We have had US government employee-clients who have been injured while working.  

The federal equivalent of workers’ compensation precludes the federal employee from suing his employer, the USA.  Also, the injured employee cannot sue a fellow employee.  This is similar to New York’s workers’ compensation law.  However, a federal employee may have a lawsuit against a third-party who caused the accident.   

For example,

• the operator of a post office truck may sue the owner of the private truck that struck his USPO vehicle;
• the letter carrier may sue the homeowner when he is bitten by the dog; and
• the federal employee who is injured in a car accident may sue the other vehicle even where the government employee was using his private vehicle on federal business.  

Therefore, Judge Sotomayor and Secretary Clinton may have valid third-party actions.  However, I doubt that they will pursue lawsuits, and I doubt that they will call me for a free consultation. 

In any event, if you are employed by the US government and have been injured in an accident, please feel free to call me at 800-581-1434 or write to letters@seitelman.com for a free consultation.

Mark E. Seitelman, 6/18/09, www.seitelman.com.

Getting a Recovery for Medical Malpractice; Obama Considers Limiting Medical Malpractice Cases

As part of his plan for national health insurance, President Obama is considering limiting medical malpractice cases.  See The New York Times story of June 15, 2009.

The President addressing the American Medical Association.

The President is placing medical malpractice on the table as a “bargaining chip” with the medical community in order to gain support for a national health plan.  Although the President said that he was against caps on recoveries, as had been proposed by President Bush, he is open to a discussion that doctors be protected if they follow standard guidelines for medical practice.  The big question is whose standards and what standards?

The President indicated that he is open to some discussion and that he does not have a specific plan in mind at this time. 

We think that limits on the rights of injured people is a big mistake and very dangerous.

First, this would be a federal intrusion into state law.  Each state has its own tort law.  Some states have limited recoveries.  This has been done through state legislation.  Other states have not.  For example, in New York, limits on recoveries have been proposed and have not been passed.  A federal law would override the will of the people of New York.  Obama’s plan would be a federalization of states’  law.  The federal government has already taken-over the auto industry and banking.  Is medical malpractice next?  This would be another federal intrusion into our everyday lives. 

Second, it is unclear what medical standards would be applied.  There was some discussion that a doctor’s adherence to ”standard medical guidelines” would be a defense.  Whose “guidelines”?  Is not this usurping the jury’s power to determine whether a doctor deviated from the standard of care in the community? 

Third, the ultimate cost savings are unknown. 

The medical community has decried medical malpractice lawsuits as a great drain on the system.  However, from our perspective there are very few medical malpractice cases.  In our screening of  medical malpractice claims from our clients, only the strongest of strong cases with the most serious injuries make it to the courthouse.  We would say that only 1 out of 10 client inquiries results in a case.  Also, based on anecdotal discussions with judges, about 2 of 3 medical malpractice trials result in defense verdicts.

We urge that the public carefully consider the impact of changing medical malpractice law as well as the overall impact of  a national health insurance plan.

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

Mark E. Seitelman, June 16, 2009, www.seitelman.com.

Getting a Recovery for a Pedicab Accident; New York City Will Enact Saftey Rules

The Times reports that the New York City Council will enact rules for pedicabs. 

See our  prior post on pedicab accidents.  

The City is considering the following rules:

• mandatory insurance for the protection of passengers, pedicab operators, and pedestrians;
• mandatory licensing and registration;
• seatbelts for passengers; and
• licensing and a safety examination for pedicab operators.

The push for action was the result of a recent, serious accident where a taxi cab collided with a pedicab travelling on the Williamsburg Bridge.   Advocates of regulations cite this accident as an example.  Although there were laws prohibiting operation of a pedicab on a bridge, the City said that it was powerless to enforce the law against unregistered pedicabs.

If you have been involved in a pedicab accident it is imperative that you call the police to the scene so that a report can be taken.  Of course, if someone is hurt, tell the police to come with an ambulance.

Until these regulations are enacted and take effect, you should be aware that pedicabs generally have no insurance.  You ride in them at your own risk.

If you have been injured in a pedicab accident, please call me at 800-581-1434 or write to me at letters@seitelman.com.

Mark E. Seitelman, 6/15/09, www.seitelman.com.

Getting a Recovery for Injuries; Referring Attorney Is Entitled to Share Legal Fee

        Many of our clients have been “referred” by other attorneys.  Many clients ask “why should the ‘referring attorney’ share part of the legal fee”?

Here is an example:

Client James Jones is referred to our office by our esteemed colleagues, Apex & Brown, criminal lawyers.  We handle Mr. Jones’s case from the beginning to end.

At the end of the case the legal fee is 1/3 of the net recovery after disbursements.  We divide the legal legal fee as follows:  2/3 to Seitelman Law Offices and 1/3 to Apex & Brown.

The client asks “why does Apex & Brown get part of the fee”?  The client reasons that Apex &  Brown should receive nothing because they did none of the work except send the client to Seitelman.

The ethics rules allow fee spliting.  It is known as paying a referral fee. 

The attorney of record (Seitelman) can share part of his legal fee with the referring attorney (Apex & Brown) even if the referring attorney did no work on the case.  However, the client must agree to this arrangement, and the referring attorney remains jointly responsible for the case. 

The new ethics rules provide that client should agree to the foregoing in writing.  See Rule 1.5 (g).  The new rules also provide that the  client should agree to the amount of the fee split, such as 2/3 to attorney of record and 1/3 to referrer. 

If referring attorney has done work on the case, then there is no need for this writing. 

Fee sharing between attorneys will not increase the client’s legal fee.  The client is not paying twice.  The legal fee is merely being split between the attorneys pursuant to their fee-splitting agreement. 

In the practice of personal injury law fee sharing is part of the business, and it actually protects the client.  The arrangement encourages the initial attorney to refer-out cases outside of his expertise so that the client is best served.  For example, the fee-spliting arrangement encourages an attorney with little medical malpractice experience to refer these cases to a specialist rather than fumble with cases and risk either lower recoveries or no recoveries for his clients.  This is a win-win for both the client and the initial, referring attorney.

Therefore, clients should be aware that it is legal and proper if a referring attorney shares part of the legal fee and that the arrangement benefits the client.

If  you have been injured in an accident or by malpractice, please feel free to contact me at 800-581-1434 or letters@seitelman.com for a free consultation.

Mark E. Seitelman, 6/12/09, www.seitelman.com.

Getting a Recovery for Injuries at the Airport; Supreme Court Nominee Sonia Sotomayor Fractures Ankle at New York Airport

Supreme Court nominee, Judge Sonia Sotomayor, fractured her ankle in a fall at New York’s LaGuardia Airport.  She was going to Washington, DC, in connection with her confirmation.

We wish her a speedy recovery.  Her accident has not deterred her from making her rounds at the Senate.

One thing that the judge’s accident shows is that anyone, including the celebrated and powerful, can be a victim of an accident which can happen suddenly and at the most inconvenient time..  If you have been involved in an airport accident, please feel free to call me at 800-851-1434 or write to letters@seitelman.com for a free consultation.

If the judge fell as a result of the negligence of the airport, she should keep the following in mind:

• The New York City airports (LaGuardia, John F. Kennedy [JFK] , and Newark) are owned and operated by the Port Authority of New York and New Jersey.  The Port Authority owns the buildings and grounds.  It leases terminals and runways to carriers, such as US Air where the judge fell.
• The Port Authority is a bi-state governmental authority of both New York and New Jersey.  It was created by compact.
• There are strict time limits for filing a suit against the Port Authority.  For example, a notice of claim must be filed at least 60 days before the filing of suit.  The statute of limitations for filing suit is 1 year.  Therefore, the deadline for filing the notice of claim is 10 months.
• A lawsuit against the Port Authority can be filed in either state or federal courts.
• The injured person is entitled to a trial by jury.

Here are some examples of our cases where the Port Authority was at fault:

• The client tripped on a mis-levelled concrete sidewalk connecting two terminals;
• The client, a stewardess, tripped on a broken concrete entrance to the terminal;
• The client, a pedestrian, was struck by a Port Authority police vehicle; and
• The client, a maintenance employee of an airline, fell due to a hole in the tarmac.

In many cases another party may be at fault.  The private airlines and freight carriers lease and operate their various terminals and facilities.  Often, there may be a maintenance company involved.

For example,

• The client was in a wheelchair being wheeled to the gate.  The employee of the airline was negligent and caused the wheelchair to overturn on a sharp turn so that the client was thrown to the ground.  In this case, the airline would be at fault.  The Port Authority had no involvment in the accident.
• The client slipped and fell due to a freshly mopped floor which was not set-off with warning cones.  The cleaning company would be at fault.
•  The client fell due to a ripped carpet in the waiting area outside the gate.  The airline would be at fault in that the Port Authority neither installed nor maintained the carpet.

If you are injured at an airport outside of New York, we would have to work with an attorney in the locality.   

As with any case, early retention of an attorney and investigation at the scene is necessary.

If you have been injured in an accident in an airport, please feel free to call us at 800-581-1434 or write to letters@seitelman.com.

Mark E. Seitelman, 6/9/09, www.seitelman.com.

Getting a Recovery for Your Injured Spouse–The Non-Injured Spouse’s Role in Hiring an Accident Attorney

In prior posts we have explored the right of recovery of a non-injured spouse.  See Part I and Part II of “Getting a Recovery for a Non-Injured Spouse.”

Aside from having a right of recovery, the non-injured spouse has a role in selecting counsel and monitoring the progress of the lawsuit.

The most important step is the hiring of an attorney.  The non-injured spouse may have to undertake this on behalf of her spouse if the injured spouse is seriously injured, such as on an extended hospitalization.

Here are some factors that the non-injured spouse should consider in hiring an attorney;

• The family’s prior experience with an accident/malpractice attorney.  Often the extended family might have experience with an accident attorney on another matter.  If the family member was satisfied, and if the attorney has the requisite experience, then the “family” attorney will be the first choice.
• Getting a recommendation from the family attorney.  Often the “family attorney” will not handle accident matters, and his practice will concentrate on the usual and everyday events of life, such as estates, real estate, and family law.  Nonetheless, your family attorney will know other attorneys who specialize in accident case.
•  Recommendations from family, friends, and fellow workers.  Often family, friends, and fellow workers (union members and leaders)  will recommend an attorney.   This is not uncommon in construction trades where the attorney has handled many cases involving the same type of worker, such as ironworkers.
• Internet Research.  The injured family might research lawyers on the internet, and they would look to similar types of cases, verdict results, and the lawyer’s or firm’s experience and standing with rating organizations, such as Super Lawyers (www.superlawyers.com) and Martindale-Hubbell..
• Advertising.  This includes television, the yellow pages, and also the internet.  Although many excellent attorneys advertise, you should check on the background of the attorney.

It is important that the non-injured spouse meet with the attorney and be involved in the hiring process.  Both the spouses should feel a comfort level in not only the attorney but his office operation.   If you do not feel confident, then do not hire the attorney, and go to another one.

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

Mark E. Seitelman, 6/1/09, www.seitelman.com.