For the sixth straight year the number of Medical Malpractice cases brought in Pennsylvania dropped. In 2010 163 Medical Malpractice cases were decided by a jury. 133 resulted in defense verdicts. This is a direct result of changes in the law, the goal of which, are to deprive victims of medical negligence from obtaining legal representation. In 2002 the State implemented changes in the law which required that attorneys representing patients be required to retain an expert in the same specialty as each defendant physician in order to bring a lawsuit. The sole purpose of this law was to drive up the costs involved in bringing a case on behalf of a patient. A further change in the law required medical malpractice cases to be brought only in the county in which the malpractice occurred even if the doctors and patient live in different counties.
Ben Rubinowitz has been asked to be one of the featured speakers at the New York State Bar Association’s Continuing Legal Education Program “How To Commence A Civil Lawsuit.” Mr. Rubinowitz will be speaking about Depositions. His lecture will focus on appreciating and understanding the New Rules of Depositions; How to effectively prepare a client for a deposition; and How to take an adversarial and Non-Party deposition.
For more than 25 years Ben Rubinowitz has been recognized as an expert in his field in representing severely injured people as a result of car and motor vehicle accidents, premises accidents, civil rights violations, construction accidents and medical malpractice cases. In addition to his work at his firm, Gair Gair Conason Steigman Steigman Mackauf Bloom & Rubinowitz, Ben is a featured writer on Trial Practice in the New York Law Journal. To date, Ben has obtained 19 Verdicts and 83 settlements in excess of one million dollars for his injured clients.
The case involved a car accident that took place at an intersection in Queens, New York City. The traffic proceeding in the same direction as the plaintiff’s vehicle was controlled by a stop sign, while the traffic proceeding in the same direction as the defendants’ vehicle was not controlled by any traffic device. The plaintiff’s decedent was sitting in the back seat of the automobile operated by the plaintiff. In reversing The Court held;
“Contrary to the Supreme Court’s determination, the defendants failed to submit evidence sufficient to establish their prima facie entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). “There can be more than one proximate cause of an accident” (Cox v Nunez, 23 AD3d 427, 427). Although a stop sign governed the intersection for traffic proceeding in the direction that the plaintiff’s vehicle traveled, triable issues of fact exist as to whether the defendant driver was free from negligence and, if not, whether that negligence was a proximate cause of the accident (see Myles v Blain, 81 AD3d 798; Kim v Acosta, 72 AD3d 648; Virzi v Fraser, 51 AD3d 784; Campbell-Lopez v Cruz, 31 AD3d 475; Cox v Nunez, 23 AD3d 427). Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint.”
In Blackstock v.Board of Education of the City of New York, decided on May 12, 2011 by The Appellate Division, First Department, a special education speech therapist employed by the defendant Board of Education, claimed that she suffered personal injury as the result of an assault by a student. She alleged defendant failed to properly supervise its students. The Court granted defendant summary judgment holding plaintiff failed to show that defendant owed her a special duty of protection. The Court held as follows;
“Under these circumstances, in order to impose liability, plaintiff had to show that defendant owed her a special duty of protection (see Bonner v City of New York, 73 NY2d 930, 932 ; see also Vitale v City of New York, 60 NY2d 861, 863 ). Plaintiff’s failure to allege or provide the factual predicate for the special relationship theory in her notice of claim or complaint is fatal to maintenance of this action (see Rollins v New York City Bd. of Educ., 68 AD3d 540, 541 ). Moreover, the record shows that plaintiff could not prove all of the necessary elements of that theory (see Cuffy v City of New York, 69 NY2d 255 ). Accordingly, there are no material issues of fact, and summary judgment was properly granted.”
In Churchill v Malek, 2011 NY Slip Op 03673, decided May 3, 2011, The New York Appellate Division, First Department held that a plaintiff in a personal injury action cannot be compelled to disclose confidential psychological or psychiatric records. The Court stated as follows;
“Given that, in this personal injury action, there is no claim to recover damages for emotional or psychological injury (see Valerio v Staten Is. Hosp., 220 AD2d 580 ), or aggravation of a preexisting emotional or mental condition (see Sternberger v Offen, 138 AD2d 480 ), plaintiff cannot be compelled to disclose confidential psychological or psychiatric records (cf. Carr v 583-587 Broadway Assoc., 238 AD2d 184, 185 ). Defendant’s unsubstantiated claim that plaintiff’s mental illness might have caused the accident is insufficient to warrant mental health disclosure (see Zimmer v Cathedral School of St. Mary & St. Paul, 204 AD2d 538, 539 ).”
Our partner Howard Hershenhorn recently settled this case in New York Supreme Court, New York County. The case involved the wrongful death of a 38 year old construction worker who fell from a ladder at 80 Centre street in Manhattan. The construction worker was in the process of demolishing a chimney when the 6 foot A-Frame ladder upon which he was standing shifted causing him to fall 25 feet. He sustained fatal injuries including a brain injury and other internal injuries from which he later died . On behalf of the Estate we argued that the defendants violated sections 240(1) and 241(6) of The New York Labor law and that these violations by the Owner and General contractor were the proximate cause of the accident and the worker’s death. The defense argued that the worker was the sole proximate cause of the accident in that he failed to use available safety devices.
The New York Construction Accident Lawyers at Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf have years of experience representing construction workers who have suffered injury and /or death in construction accidents in New York.
In their most recent article, Ben Rubinowitz and his good friend and colleague Evan Torgan, discuss various ways trial lawyers can maximize damage awards in personal injury, medical malpractice and wrongful death cases. The title of the article is “Dealing With Damages in Voir Dire and Summation.” Both Rubinowitz and Torgan are recognized as experts in their field. Each has obtained multiple million dollar awards. Not only have Rubinowitz and Torgan published more than 50 articles in the New York Law Journal over the last 10 years, but for the last 25 years both have lectured for free to trial lawyers throughout the Country at more than 100 Continuing Legal Education courses. “Our main focus is on helping our client’s recover for the severe injuries they sustained through the negligence of others. Evan and I have dedicated our Professional Lives to working to ensure that appropriate compensation is given. Too often, Insurance Companies refuse to make fair and reasonable offers and try to short change those who have been injured in all types of cases including auto accidents, construction accidents, medical malpractice cases and products liability claims. We fight for our clients — and teach other Trial Lawyers that they are obligated to work hard and even fight to secure justice for those they represent.”
Both Rubinowitz and Torgan are partners at their respective firms and each only represents the injured victims of negligent conduct.
In Fox v H&M Hennes & Mauritz, L.P;et.al., 2011 NY Slip Op 03205, decided April 19, 2011, The Appellate Division, Second Department rejected defendant’s claim that plaintiff was enagaed in routine maintenance and thus Section 240(1) was not applicable.
The facts as set forth by The Court were as follows;
“The plaintiff was employed by the fourth-party defendant Garrity Electric, Inc. (hereinafter Garrity), as a mechanic performing general electrical contracting work. Pursuant to an agreement between the defendant third-party plaintiff, H & M Hennes & Mauritz, L.P. (hereinafter H & M), and the third-party defendant/fourth party plaintiff Maintenance, Etc., LLC (hereinafter Maintenance), which provides retail companies with vendors for construction services, Garrity was hired to replace bulbs and ballasts/transformers in 78 overhead light fixtures, located approximately 12 feet above the floor, in a retail store leased by H & M. Garrity had done business with H & M since 2000, performing electrical work for which it was paid the sum of $30,000 to $50,000 per year. Garrity furnished a team of “seven or eight” workers, including the plaintiff, which was led by a team foreman, to perform the subject work in the H & M store. The plaintiff allegedly was injured when he fell from a ladder while engaged in this work. The Supreme Court, inter alia, granted the plaintiff’s motion for summary judgment on the issue of liability on the Labor Law § 240(1) cause of action.”
Our partner Ben Rubinowitz successfully resolved a claim against the New York City Transit Authority for $4 million. At the time of the accident, a young woman was crossing a New York City street when she was struck by a bus driven by a N.Y.C.T.A. employee. The defense claimed the accident was her fault asserting that she had not crossed in the crosswalk and that she failed to pay attention to the traffic conditions. The injured victim asserted that the bus driver failed to keep a reasonable and proper lookout failing to pay proper attention and in failing to avoid the pedestrian. As a result of the impact the woman suffered a degloving injury to her knee and pelvic fractures.
Rubinowitz, who recently won a $27.5 million verdict for another client struck by a bus said: “This successful result was part of a team effort. Howard Hershenhorn, Diana Carnemolla and Peter Saghir also worked timelessly for our client.” Rubinowitz continued: “We have the ability to secure the very best results for our clients because of two main reasons: We work harder and put in more effort than any other law firm.”
Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf has had remarkable results for its clients in car accident, construction, premises liability, civil rights and medical malpractice cases. Ten of its lawyers have been listed in Best Lawyers and Super Lawyers.
By Anthony H. Gair,
In Arnaud v. 140 Edgecomb LLC, et al., decided on April 14, 2011, The New York Appellate Division, First Department, reversed the denial of summary judgment in a construction accident case on a construction worker’s New York Labor Law 240(1) cause of action.
Plaintiff was working at a building undergoing renovation. Plaintiff and a co-worker were moving wood planks from the fourth floor to the second floor, by use of a pulley and ropes. While plaintiff was on the second floor, with his arms outstretched through a window to grab the wood as it was lowered, he was suddenly struck by a plank, which caused injury to his wrist and fingers. While we believe the decision was correct it seems the Courts are continuing to have trouble interpreting Runner v New York Stock Exch., Inc. The Court stated as follows;