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

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, www.seitelman.com.

Getting a Recovery for Legal Malpractice; Proving Two Cases

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 letters@seitelman.com.

Mark E. Seitelman, 4/23/11, www.seitelman.com.

The Winds of Medical Malpractice Reform, Part II

It appears that there will be no caps for pain and suffering in medical malpractice cases.  We had previously reported on caps here.

     The Governor’s budget proposed a cap of $250,000 in damages for pain and suffering.  It was part of a medical malpractice “reform” package promulgated by the Medicaid Redesign Team convened by Governor Cuomo.  The cap has been taken-out of the budget.

However, one “reform” that will pass is a Neurologically Impaired Infants’ Fund. 

The full ramifications of the NIIF are unclear.  It would appear that its purpose is to take out of the court system “brain-damaged baby” cases.  Children injured during childbirth would be granted compensation through the NIIF instead of through a lawsuit.  In other words, such injured children will lose the right to bring their cases in court, but they will be guaranteed some form of compensation.  In essence, there would be no need to prove medical negligence. 

It is unclear whether an infant will be awarded solely future medical, education, and living expenses to the exclusion of an award for pain and suffering.  It is also unclear whether the NIIF will save money versus the conventional method of lawsuits where fault has to be proved.  The NIIF will funded by a medical malpractice premiums.

We shall keep you informed.

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 letters@seitelman.com.

Mark E. Seitelman, 3/29/11, www.seitelman.com.

Mark E. Seitelman Is in Super Lawyers

    I am pleased to announce that I am in the 2010 edition of Super Lawyers and that I am featured in a profile in a special advertising supplement to The New York Times Magazine (Sunday, October 3rd). 

The same profile will appear in the free-standing Super Lawyers magazine which is being mailed to all the lawyers in Metro New York.  

     Only 5% of New Y0rk attorneys are elected into Super Lawyers.  They are nominated by fellow lawyers, and attorneys enter Super Lawyers based on their credentials, experience, and reputation for excellence and integrity.

I have been named a Super Lawyer in the following fields:

1. plaintiffs’ personal injury (general);
2. medical malpractice; and
3. insurance coverage.

I am honored to be selected again into the ranks of Super Lawyers.  This has been my 4th year.  I thank my clients and colleagues for allowing me to be of service to them.

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

Getting a Recovery for Medical Malpractice and the Defenses of Informed Consent and Foreseeable Complications

One of the strongest defenses in medical malpractice is that the bad surgical result is the reasonable and foreseeable complication of the surgery. 

This defense is strengthened if the patient signed a consent to surgery form which states that the condition is a foreseeable risk of the procedure.

The law states that a medical doctor is not a guarantor of success.  The law acknowledges that patients may either get worse or have new conditions through no fault of the doctor.  

If a complication is a known risk of the surgery, then the surgeon will not be liable for a known complication.

Here is an example based on a client’s inquiry:

Mary Kates had laser surgery to remove a small discoloration from her cheek.

Before the procedure, Mary signed a consent to surgery form.  The consent form listed the various risk of the surgery.  Two of the risks were loss of pigmentation and scarring.

Mary noticed after the procedure that at the surgical site she lost pigment and that there was also a slight indentation.

Mary  would not have a medical malpractice case by reason of her informed consent to the surgery where she was advised that loss of pigment and scarring were foreseeable complications.

If you have a potential medical malpractice claim, please feel free to contact me at 800-581-1434 for a free consultation or write to letters@seitelman.com.

Mark E. Seitelman, 8/25/10, www.seitelman.com.

Attorneys, Beware of Yet Another Internet Fraud!

There is yet another internet fraud making its way to lawyers.

This scam goes like this:

Lawyer James Jones receives an unsolicited e-mail from an Alex Wilford in England. 

Wilford claims that he is owned money under a settlement agreement for personal injuries with his former employer in New York.  The former employer agreed to pay $175,000 but has paid only $55,000 thus far.  Wilford wants Jones to collect the balance.    

In the e-mail Wilford asks Attorney Jones to sue for $120,000 which is the unpaid balance.  Jones falls for the bait and agrees to handle what appears to be a routine collection matter for an 1/3 contingency fee.

Within a week of being hired Jones is able to settle the matter on a mere letter of representation.  Jones is overjoyed on making a hefty fee on so little work.  He receives a bank check for $120,000 which he quickly deposits into his escrow account.  The funds clear in about 2 days, and Jones immediately wires $80,000 to Wilford’s bank in England.  Jones retains $40,000 for his fee.

About 5 days after the funds were wired to Wilford, Jones’s bank charges back the $80,000 because the bank check was counterfeit.  Jones’s bank claims that it is permitted to charge-back on a fraudulent check.  Jones is stuck , and he must fight his bank to try to get back the $80,000.  Of course, Wilford and his gang have fled into the internet ether with Jones’s $80,000. 

Gotcha!

This is a variation of the two other internet frauds that I discussed previously here, here, and here. 

First, the internet criminals cooked-up the “unpaid invoices collection” scheme.  Next, they circulated the “unpaid divorce judgment” routine.  Now, they are circulating a new variation, “the unpaid personal injury settlement agreement.”

Lawyers, beware!

Mark E. Seitelman, 8/18/10, www.seitelman.com.

See an Attorney Early; Do Not Let Time Deadlines Pass

Every once in a while a client comes to us when it is too late.  

I discussed the prudence of seeing an attorney early in a prior post.

Last week a client asked our help on the following case:

Mrs. Mary Moore sustained a substantial loss of  her personal property due to a flooded basement.  The flood was caused by construction next door.  The contractor struck a water main.

There appears to be no question that the contractor was negligent.  His insurance company paid other people damaged by the flood.

Mrs. Moore sustained about $1,000,000 in personal property damage, such as damaged artwork, antique furniture, collectibles, and a vast designer clothing collection which included many unworn garments with their tags.

First, Mrs. Moore sought recovery from her own homeowner’s insurer, Allstate.  About 2 years after the flood, Allstate paid its full limits of $350,000.  She then sought to collect $650,000 from the contractor’s insurance company, Old State Dominion Insurance Company.

Mrs. Moore engaged in much negotiation with Old State’s representative.  Documentation was exchanged, and there were inspections of the property.

According to Mrs. Moore Old State’s adjustor told Mrs. Moore a number of times that a “claim must be filed no later than July 8th”, which was 3 years from the flood.  Mrs. Moore took it to mean that she must send-in all of her claims documentation.  There was also a conversation where Old State’s adjustor’s asked whether Mrs. Moore hired an attorney.  Mrs. Moore answered “no”.  “Good” was the adjustor’s response because “we can settle faster without an attorney.”

Mrs. Moore sent extensive and very organized paperwork supporting her claim to Old State before the 3 year deadline.  On July 16th, a week after  the 3 year anniversary, Mrs. Moore and the adjustor had an all day meeting to review the claim submission.  After this session another meeting was planned for August 2nd in which numbers would be discussed.

However, that August 2nd meeting was cancelled.  Old State sent a denial letter to Mrs. Moore on July 28th.  The claim was denied since suit was not filed within the 3 year statute of limitations.

We could not help Mrs. Moore.  She failed to file suit before the statute of limitations expired.  If suit had been filed, negotiations could have continued and may have led to an eventual settlement.

The law has a strong policy in upholding statutes of limitations.  The law favors  an end to claims and lawsuits.  In order to claim that the statute of limitations would not apply, we would have to show fraud by the insurance company.  Negotiation before or after the deadline will not be deemed a waiver of the statute of limitations.  Furthermore, there was no fraud in the adjustor’s statement that it was good that an attorney was not hired.  This was not tantamount to lulling the client into not hiring an attorney.   Furthermore, there was no offer made which could cause the client to think that the case was settled.  In sum, we could not show any of the extraordinary circumstances which would allow the case to proceed.

The lesson for clients is to consult with an attorney as soon as possible after a loss or an injury.  An injured client should be aware that there are strict time limits in which to pursue a claim or lawsuit.  Defendant will take every advantage of the statute of limitations which is a “slam dunk” defense.  

Mark E. Seitelman, 8/16/10, www.seitelman.com.

Getting a Recovery Against a Hospital or Nursing Home for Bedsores

     Bedsores can be prevented.  Therefore, bedsores can be the result of  nursing malpractice by either the hospital or nursing home.

Bedsores are more properly known as pressure ulcers or decubitus ulcers.  They are lesions that occur usually in the areas of the sacrum, elbows, knees, and ankles.  Bedsores typically occur when a  patient is immobile.  The easiest way to prevent bedsores is to turn the patient every two hours so that the pressure is relieved.

There are various degrees of severity from Stage I, which is superficial, to Stage IV where the ulcer has eaten into the muscle, tendon, or even the bone.

Generally, a hospital or nursing home will be liable for bedsores since the prevention is fairly simple.

However, hospital or nursing home may attempt to present various defenses, such as

• the patient’s propensity to develop bedsores due to other health conditions, such as diabetes or obesity;
• the patient’s dementia; and
• the bedsore was caused by substandard care by a prior medical institution.

The defense that the patient could not complain due to dementia or other illness is a poor defense.  The eldery patient is in a weakened condition, and the hospital must take special care of such a patient.

As with all cases, it is important to do early investigation.  Generally, photographs of the bedsore are necessary.

In a bedsore case that we handled, the patient contracted a serious bedsore during her admission for various other illnesses.  She was discharged from the hospital with a raging bedsore.  The family tried to care for their mother at home, but it was hopeless.  The client was re-admitted to the hospital where she eventually died from other causes.  Although the hospital claimed that it was blameless for her getting the bedsore, due to her overweight and diabetes, the hospital admitted that it was wrong in discharging her with this life threatening condition.

If a family member has contracted bedsores, please feel free to contact me for a free consultation at 800-581-1434 or write to letters@seitelman.com.

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

Getting a Recovery for Your Injuries When Defendant Becomes Bankrupt

A defendant’s bankruptcy could end your personal injury case.  It all depends upon the facts.

As a general rule, a corporation’s bankruptcy is a bad thing if you have a bodily injury claim or lawsuit..  It can either delay or end the case.

Here is a recent bankruptcy problem:

Our client was injured in a Bally’s gym.  We settled the claim before filing suit.  The client initially refused the settlement, but he re-considered and accepted it two months later.

At the time that we mailed the release to Bally’s, it filed for bankruptcy.  The payment of the settlement was stayed along with all other matters affecting Bally’s.  The settlement would not be paid until the bankruptcy court determined the amount that would be paid.

Finally, after about 1.5 years later, the bankruptcy court ruled that our client will be paid only 1% of the settlement offer that he accepted! 

In this case, as in all bankruptcies, the court has the power to determine how much of a settlement will be actually paid.  This is because the court must dole-out a bankrupt corporation’s limited, remaining assets on a fair and equal basis to all creditors, including landlords and suppliers.  Generally, an injured client could expect to collect only pennies on the dollar.

Also, in this case the defendant was self-insured.  There was no insurance to pay the claim.  All settlement funds had to come out of Bally’s very shallow pocket.

Also, a bankruptcy will greatly delay the payment of a settlement.  In another case involving another national company, Continental Bakeries, we had two clients in two different cases.  We  settled almost 4 years ago.  We have yet to be paid.

Therefore, a defendant’s bankruptcy can have a terrible impact on your case.  The individual facts of your case will have to be reviewed with your attorney.

Mark E. Seitelman, 7/14/10, www.seitelman.com.

Hiring a Lawyer from the Internet; Questions to Ask

Before looking for an accident attorney on the internet, you should consider the following:

Can I get a referral of lawyer from a trusted relative or friend? 

We always recommend this route especially if the relative or friend has had a similar case and has been happy with the results.  In a sense, this attorney has been “pre-screened” or “pre-qualified” by your referrer.

If you cannot obtain a recommendation, then we suggest that you do some research and ask some questions before hiring an attorney found through the internet.  Although most of the best attorneys have a web presence, the best attorneys do not always turn-up on page 1 of Google.  Often, a law firm’s appearance on page 1 is solely the result of a concerted advertising and marketing effort, such as Google ad words (advertising) and Search Engine Optimization.  In other words, an attorney’s appearance on the first page of Google or Yahoo does not assure excellence.

Here are some questions to ask: 

• Does the attorney have credentials which set him apart from other attorneys?  For example:

Does the lawyer belong to a group which rates lawyers?   I am listed in New York Super Lawyers which lists the best lawyers in our region.  The Super Lawyers organization lists lawyers across the country.  I am also rated as Preeminent which is the highest rating given by Martindale-Hubbell, the leading directory of law firms in the nation.  I am also a member of the Million Dollar Advocates Forum which is limited to attorneys who have obtained verdicts and settlements in excess of $1,000,000.

Is the attorney a leader in his speciality?  For example, I am a  member of the Board of Directors of the New York State Trial Lawyers Association, and I am an active lecturer and writer in its Continuing Legal Education Programs.

• Has the attorney handled similar cases with some degree of success?  
• Has the attorney and his associate tried cases?  Many cases must be pushed to the courthouse door before there is a reasonable settlement. 
• Does the attorney have the resources to try my case?  It can take anywhere from $10,000 to $50,000 to try a case.  Does the attorney have the resources to finance my case?  Or will he settle short?
• How will the attorney respond to my questions and concerns during the life of my case?  Does the attorney have adequate staff, such as associate attorneys and paralegals, who can answer questions as well as move along the case.
• What is the lawyer’s operation like?  Check the attorney’s office.  Although it may not be luxurious, there should be a certain level of attractiveness, comfort, and order.  If the attorney is unwilling to replace a ripped chair, will he spend the necessary resources on your case?  If the office is a mess or seems disorganized, then your case will be handled in this manner.
• Are the attorney and his staff courteous and respectful?  You may be “living” with the attorney and his staff for a long time.  If they are not courteous and respectful at the beginning, then they will only get worse as time goes on. 

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

Mark E. Seitelman, 6/14/10, www.seitelman.com.