Getting a Recovery for Your Attorney’s Fee in Accident Cases and Insurance Lawsuits

April 19, 2012

Clients ask  whether they can separately recover their legal fees on top of the recovery for their injury or damage?  Unfortunately, the answer is “no.”

This question makes sense in that if the defendant did not injure the client, the client would not be put to the expense of hiring an attorney to get a recovery.  After all, the client is not profiting from the lawsuit.  He is merely being made “whole” after a loss.   

Under the so-called “American rule”, which is recognized in New York, each party of the lawsuit is responsible for his own legal costs.  In comparison, under the “English rule”, the winner can recover his legal costs against the losing side.

A disadvantage of the American rule is that the injured party is not made “whole”.  He must pay a portion of his recovery for his legal fees.  On the other hand, an advantage is that a losing plaintiff will not burdened with defendant’s legal costs if defendant wins.

 An exception to the rule is where either statute or a contract provides for the award of legal fees.  But, as a general rule legal fees cannot be recovered in personal injury, property damage, and breach of insurance cases.

Mark E. Seitelman, 4/19/12,


Getting a Recovery for Dangerous Hip Replacements; Metal on Metal Hip Implants

February 7, 2012

Hip replacement carries a degree of risk even in the best of situations.  However, thousands of patient have had the risk of injury compounded by the use of dangerous “metal on metal” artificial hips.

I.  The Problem of the Metal on Metal Design

In a metal on metal artifical hip, both the “ball and socket” of the hip joint are metal.    In other words, the hip replacement femoral head (the ball) and acetabulum (the socket) are both metal.  In comparison, other hip designs mate polyethylene-line acetabular cups to ceramic or metal femoral heads.

The following drawing shows a hip replacement.  In the metal on metal hip, both the acetabular and the femoral head are metal. 



Metal on metal implants present the following dangers:

  • Loosening.  The hardware becomes loose, and a revision surgery is necessary to remove the hardware and implant a new hip.  This can be due to the design of the cup, which is shallower, so that there is an “edge loading”.  In other words, the hip was not properly engineered to bear the weight and movement of a normal person.  The metal on metal hip does not last longer than the prior hip designs, and it may have a short life.  This is ironic since the manufacturers claimed increased longevity and the need for fewer, future revision surgeries.  
  • Illnesses from Metal Shards Released into the Body.    The wear and tear of the metal grinding against metal releases metal shards and metal ions (cobalt and chromium) into the body.  The may cause osteolysis (bone loss), metallosis (an accumulation of thick, gray fluid at the hip joint which can cause tissue death and bone degradation), and neurological problems (e.g., neadaches, persistent metallic taste in moth, memory loss, and cardiac issues). 

 II.  Signs of Trouble

Generally, the first sign of trouble is extreme pain at the hip.  A visit to the surgeon will be necessary. 

However, some patients may not experience pain as an early symptom.  Those patients should be monitored by both their orthopedist and internist.  Patients should have thier cobalt and chromium levels in their blood tested regularly. 

Of course, pain is a sign that the hip may be loosening or that the surrounding hip tissue is being attacked by metallosis.

III.  Metal on Metal Hips

Here are some of the metal on metal hips causing injury:

  • Zimmer Home       Zimmer Durom Acetabular Cup.  This hip was recalled in 2008 voluntarily by Zimmer when it found its instructions inadequate for use and surgical implantation.


  •   DePuy ASR.  The primary issues in the DePuy ASR hip device are loosening and metallosis.  DePuy Orthopedics has a program to reimburse patients for expenses related to replacing the DePuy ASR, such as medical and lost income.  Essentially, patients accepting the offer will release their claims for pain and suffering and future medical and lost income losses.  Furthermore, DePuy will take-back the defective hardware after its removal, and this will prevent the patient’s attorney from getting the hardware inspected and evaluated by an expert.  We strongly urge that patients do not accept this offer before reviewing it with an attorney. 


  • DePuy Pinnacle.   Although the Pinnacle system mostly has ceramic on metal mating, Pinnacle did make metal on metal hardware.  Cup loosening and metallosis are  a problem.

WRIGHT. Create Motion.®

  • Wright Conserve.  Wright Medical Technologies had a line of metal on metal implants.

If you or a family member has had a metal on metal hip implant, we recommend that you consult an attorney immediately.  We seriously urge that you talk to an attorney if you have had a DePuy hip and if DePuy has made the offer of paying for a new hip implant.  You should consult with an attorney before deciding on accepting DePuy’s offer.  Please feel free to contact me for a free consultation at 800-581-1434 or write to

Mark E. Seitelman, 2/7/12,

Getting a Recovery for Transvaginal Mesh Injuries

January 17, 2012

We are now handling transvaginal mesh cases.

Thousands of women have been injured due to the surgical insertion of a transvaginal mesh. 

A mesh is a plastic device inserted into the body to support a weak wall.  In transvaginal mesh cases, a surgical mesh is inserted in the vagina to support a weakened area.  

Prior to the development of transvaginal mesh, surgical mesh had been used with success in hernia surgery.

I.  The Use of Transvaginal Mesh

In essence, mesh is used to hold-up and support organs in the pelvic region which have moved or sunk due to child-bearing and aging.

Transvaginal mesh is supposed to help the following problems:

  1. Pelvic Organ Prolapse (“POP”).  Where the vaginal wall becomes weak, either the bladder or  urethra may sink into the vagina.  As a result a woman may not be able to empty her bladder completely, she may leak urine, and she may suffer from increased bladder infections.  (The bladder condition is called cystecele, and the urethra condition is known as urethrocele.)  There is another condition, rectocele where the lower intestine bulges into the vagina.
  2. Stress Urinary incontinence (“SUI”).  The hallmark of stress urinary incontinence is leakage of urine while coughing, laughing, or sneezing.  This condition may exist because of pelvic organ prolapse.  SUI should not be confused with other urinary conditions, such as urge incontinence, overactive bladder, and overflow incontinence.

II.  The Danger of Transvaginal Mesh

The main problem is that the mesh may fail to integrate with the vagina.  This  “erosion” can result in serious inflammation which breaks-down the surrounding tissue.

The use of mesh is unsafe for a number of reasons.  First, a woman’s pelvic area has too much movement for the safe integration of the mesh.  In comparison, mesh has been used with success in other parts of the body where there is not as much movement and twisting.  Also, the vagina wall is very sensitive and does not adapt to receiving the mesh.  

“Erosion” of the mesh will cause:

  1. tremendous pain and discomfort;
  2. scarring, including the movement of the mesh outside the vagina;
  3. severe infections;
  4. damage to the other organs, such as the bladder and intestine; and 
  5. an inability to engage in sexual intercourse.

The only treatment is surgery to remove the mesh.  But surgery may be unsuccessful because part or all of the mesh has integrated with the surrounding tissue.  Therefore, surgical removal can cause further damage.

Furthermore, it appears that the mesh does not work.  The FDA has stated that recurrence of POP and SUI is a complication of the surgery. 

On July 13, 2011, the FDA issued an alert stating that complications are not rare from the use of transvaginal mesh.

III.  The Manufacturers

These are the biggest manufacturers:

EthiconBard Logo

Boston Scientific

  •  C.R. Bard;
  • Ethicon (a subsidiary of Johnson & Johnson);
  • American Medical Systems; and
  • Boston Scientific. 

III.  What You Need to Do

You should schedule an immediate consultation with an attorney so that work can begin.  There is a great deal of medical work-up that must be done before a suit is filed. 

The major manufacturers are having cases consolidated for joint discovery.  For example, a judge in the New Jersey Superior Court is controlling the discovery of cases involving Ethicon mesh.  Therefore, there will be a coordinated and orderly scheduling of discovery and trial.

Please feel free to contact me for a free consultation at either 800-581-1434 or  

Mark E. Seitelman, 1/17/12,

We Are Handling Medical Devices and Dangerous Drugs

January 10, 2012

Our practice is expanding to include defective medical devices and appliances and dangerous pharmaceutical drugs.    

Initially, we are expanding into the following areas:

  • DePuy Hip Replacement; and
  • Transvaginal Mesh Devices.

We are exploring expansion into further areas such as the Zimmer hip implants and Actos (a diabetes drug linked to bladder cancer).

Often, these defective product cases are handled as so-called mass torts.   In a mass tort litigation, a single judge may coordinate discovery in all cases in the USA although the client maintains his individual lawsuit where he resides.  

As with all injury cases, you should consult with an attorney immediately if you suspect that you have been injured.  Please call us for a free consultation at 800-581-1434 or write to

Mark E. Seitelman, 1/10/12,

We Are Handling DePuy Hip Implant Cases

January 10, 2012

We are handling DePuy hip implant cases.

Due to its defective design, patients have had to have their artificial  DePuy hip prosthesis removed and a new one implanted. 

The DePuy ASR hip system was designed to give the greatest mobility of the hip joint.  However, there is insufficient coverage of the acetabular cup to distribute fully the forces of the ball (femoral head) against the cup without concentrating those forces called edge loading.  

As a result of this defective design, patients have experienced metal on metal wear and tear of the metal ball rubbing against the metal cup.  As a result, metal shards from the hardware are released into the body.  

Patients have had the following injuries:

  1. loosening of the hardware;
  2. a need for removal of the prosthesis and implantation of another artificial hip; and 
  3. the release into the body of metal ions (cobalt and chromium) resulting in disease to both the immediate area and the entire body.

One central defect of the implant is the use of metal against metal which causes wear and tear and allows shards of metal to enter the body.  The better design is for a metal ball and a plastic cup.

Many patients have had to have dangerous hip revision surgery.  This involves removal of the DePuy hardware and insertion of new hardware.  A revision surgery may be more extensive than the initial hip replacement, and some patients have required further surgeries beyond the revision. 

As a result of these problems, DePuy made a voluntary recall on August 24, 2010.     

Not all DePuy implants are defective.  DePuy Orthopaedics, Inc., is a major supplier of hip implants and has made other satisfactory types of artificial hips.  DePuy is a division of Johnson & Johnson.

The following DePuy artificial hips are involved:

  1. ASR XL Acetabular System.  This has been distributed worldwide.
  2. ASR Hip Resurfacing System.  This system has been licensed outside the United States.

You should consult an attorney immediately if

  • You are experiencing pain and other illnesses connected to your DePuy hip implant; or
  • You have been told by your orthopedist that your problems are caused by a defective DePuy hip; or
  • You are either scheduled for hip revision or are contemplating the surgery; or
  • You have had your DePuy device removed and have undergone a full hip revision.  

As with all cases we urge clients to contact an attorney immediately so that there is no issue as to the timeliness of commencing suit.

Please feel free to call me for a free consultation at 800-581-1434 or write to

Mark E. Seitelman, 1/9/12,

Getting a Recovery for Legal Malpractice; Proving Two Cases

April 23, 2011

If a lawyer makes a mistake, that may not be enough for a legal malpractice case.

Simply stated, there are two essential elements:

  1. The lawyer must have made an error which has prevented the client from recovery. 
  2. The client must prove that “but for” his lawyer’s mistake he would have recovered. 

On element 1, it is easy to determine if the lawyer made a fatal mistake.  The example of the missed statute of limitations is a classic and clear example of negligence.  Generally, there will be no defense to this.

However, element 2 can be a little tricky.  The client must prove that he could have recovered “but for” the lawyer’s error.

Consider this example:

The client sustains a fractured ankle in a motor vehicle accident where he was a passenger in a New York City bus.  Liability is clear against New York City Transit Authority.

The client hires the lawyer approximately 1 month after the accident.  The lawyer files a notice of claim on time, and the client appears for a hearing before NYCTA.

However, the lawyer fails to file suit against NYCTA within 1 year and 90 days.  He was under the mistaken impression that the 3 years statute of limitations applies.  The lawyer files suit 1 year and 120 days after the incident which is too late.  The case gets dismissed.

In this example, the client would have a case against his lawyer.  First, the lawyer made a fatal mistake in not filing the lawsuit on time.  Second, “but for” the lawyer’s error, the client would have recovered.

However, consider this variation:

Instead of sustaining a fractured ankle, the client has minor back sprain.  He goes to the emergency room and has no further medical treatment.

Again, the lawyer fails to timely file suit against NYCTA. 

There would not be a good legal malpractice case against the lawyer.  This is because element 2 is lacking.  The client would not have recovered against NYCTA because he did not have a “serious injury.”  This is an essential element in a motor vehicle lawsuit.  On the other hand, the serious injury of a fractured ankle was present in the first example.  Although it is eregious that the lawyer made a mistake, the client will not have a legal malpractice recovery. 

Therefore, in order to recover for a lawyer’s negligence, the client must prove that he would have recovered “but for” the lawyer’s mistake.

If you have been damaged due to a lawyer’s malpractice, please feel free to contact us for a free consultation at 800-581-1434 or write to

Mark E. Seitelman, 4/23/11,

The Winds of Medical Malpractice Reform, Part IV; The Neurologically Impaired Infants’ Fund

March 31, 2011

New York is creating a Neurologically Impaired Infants’ Fund (“NIIF”) in medical malpractice cases involving children who sustained brain injuries at birth.

In prior posts I, II, and III we noted that the NIIF was part of a package of “medical malpractice reforms” urged by the Governor’s Medicaid Redesign Team.  One of the proposals that did not pass was caps on non-economic damages, i.e., pain and suffering.

The NIIF law provides

  • The creation of a fund, the New York State Medical Indemnity Fund for Birth Related Neurological Injuries.
  • The fund will cover future medical costs.  This requires a finding of medical negligence by either a jury, a judge, or by settlement. 
  • If an infant is qualified, then plaintiff will not receive an award of future medical costs from defendant.  Instead, plaintiff will be reimbursed for medical expenses by the fund.  Or plaintiff’s provider will be reimbursed by the fund.  In other words, the fund will pay for medical costs as they are incurred.
  • Private physicians will be reimbursed at “usual and customary” rates.
  • Other health care services will be reimbursed at Medicaid rates.
  • In the event that the fund’s liabilities equal or exceed 80% of its assets, new enrollment to the fund will be suspended.  During that period, plaintiffs not yet enrolled in the fund will revert to the existing tort system to collect future medical expenses.
  • The law is retroactive and covers all pending cases.

Various questions remain, such as

  • Does plaintiff still have to prove future medical damages at trial?
  • What happens if the fund “closes” prior to a plaintiff  “qualifying”?
  • Will the fund be able to pay future medical costs if it is underfunded?  Who will secure its future obligations?

If you have been injured due to medical malpractice, please feel free to contact me for a free consultation at 800-581-1434 or write to

Mark E. Seitelman, 3/31/11,

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