Lipsitz Green Scime Cambria, LLP

Legal Ramifications of Hunting Accidents

Mon, 22 Jan 2018 17:45:00 -0600

Barry Covert wrote a guest column that appeared in the January 15 issue of the Buffalo Law Journal. In “Legal ramifications of hunting accidents,” Mr. Covert explains the various civil and criminal consequences that can result from injuring another person while hunting.

The full article is available on the Buffalo Law Journal website.

Importance of intent

In the article, Mr. Covert details the importance of intent when dealing with hunting accident cases. What the hunter’s intent was is central to how liability is assigned in these cases. In a civil case, if the person using the gun was aiming for an animal, the person cannot say that there was no intent to hit the victim. Mr. Covert explains that, because the hunter’s intention was to hit something, whether the intended target was hit is secondary. Intent is different in criminal law, however. If the incident is fatal, the prosecution often argues that intent is irrelevant because the defendant engaged in criminal negligence. Criminal negligence in New York State means that a person did not perceive a substantial and unjustifiable risk. This risk must be considered a gross deviation from the standard of care that a reasonable person should observe in that situation. The standard of care is often used to address the question of negligence in cases such as these. Mr. Covert explains that, in order for someone to be found liable for negligence, the injury to the other party must be a foreseeable result of the defendant’s actions.

Intention is particularly important in cases that are non-fatal. In criminal cases, Mr. Covert writes that punishment is more likely if the defendant does not provide the necessary aid to the injured party. This failure to give aid demonstrates a disregard for that person’s life. In civil cases, a hunting accident must be either negligent or intentional in order for the defendant to be liable. One defense is that the defendant did not intend to shoot anything, but this is difficult to prove in a hunting accident. The most important factor here is that the defendant intended to use a weapon to hit something; what the defendant actually hit is less important.

About Barry N. Covert

Mr. Covert is a senior partner in Lipsitz Green Scime Cambria’s Criminal Defense Trials and Appeals Practice Area. He is known for his aggressive representation of clients in the areas of New York State and federal criminal trials and appeals; driving while intoxicated; constitutional law, including First Amendment, civil rights actions, and federal False Claims Act; defending against allegations of scientific misconduct and fraud, research misconduct and fraud, plagiarism, and fabrication of evidence; and professional licensing defense. Mr. Covert frequently provides legal analysis for WGRZ and other media outlets.

Victims Injured in Tour Bus Accident Receive Substantial Settlement

Fri, 03 Nov 2017 17:07:00 -0600

On Friday, October 27^th, after a week of trial in Rome, New York, attorney William Moore secured an undisclosed monetary settlement for four victims of a tour bus accident. The four individuals, who are Canadian citizens, were among 30 passengers injured on a New York City bound tour bus in 2011. The bus was pulling from the shoulder onto the I-90 near Waterloo, New York, when it was struck by a tractor-trailer, causing a catastrophic accident. Read on to learn more about the accident and details surrounding the case and trial.

Accident details

In the early morning hours of July 22, 2011, a Canadian tour bus had stopped on the shoulder of the I-90, near Waterloo, New York, to address a mechanical issue. After some time passed, the bus driver began to pull back onto the interstate, unaware of the oncoming tractor trailer. What followed was a tremendous collision. Both the tractor-trailer and bus were consumed by fire as passengers attempted to escape the wreckage. As a result of the collision, many of the passengers suffered multiple significant and permanent injuries.

Legal questions

A unique and complicated component of this case dealt with multiple “choice of law” issues. The bus driver and bus owner were from Ontario, Canada; the passengers resided in Ontario, Canada; the tractor trailer owner and operator were from Michigan and the collision took place in New York. The Court, as well as counsel, had to address whether the laws of New York, Ontario or Michigan applied with respect to specific issues in the case, such as liability and damages.

The October, 2017 trial dealt with the issue of fault as it related to both the bus and the tractor-trailer. Based upon his analysis through the course of trial, Mr. Moore secured a settlement for each of his clients with the insurance companies for both the bus and tractor-trailer companies. This proved to be a crucial decision for his clients. Some of the remaining plaintiffs continued with trial and the jury ultimately dismissed their claims against the tractor-trailer, finding that the bus was 100% at fault for the collision.

Who to call

The effects of a motor vehicle accident or a tourist accident can be devastating emotionally, physically and financially. If you or a loved one have been injured in a motor vehicle or tourist accident, contacting an experienced personal injury attorney is an important step on the road to recovery. Mr. Moore and the personal injury attorneys at Lipsitz Green Scime Cambria will be able to guide you through the legal process with compassion and experience as they help you to obtain the best results possible in your situation. Contact Lipsitz Green Scime Cambria today for your free personal injury consultation.

Know Your Rights in the Digital Age

Tue, 10 Oct 2017 15:05:00 -0600

Barry Covert wrote a guest column that appeared in the October 9 issue of the Buffalo Law Journal. In “In this digital age, know your rights”, Mr. Covert details how advances in technology and changes in national security are affecting the rights of American citizens at the country’s borders and airports. The article also includes an explanation of current policy regarding the extent to which a person’s cell phone and laptop can be searched and efforts from various lawmakers and organizations to make changes to that policy.

The full article is available on the Buffalo Law Journal website.

Current policy

In his article, Mr. Covert explains that, currently, cell phones and laptops can be searched at airports and borders “with or without individualized suspicion.” American citizens are not required to tell border agents the passwords to their phones or social media accounts, but data can be retrieved from some phones even without having the password. Agents are also only allowed to look at data that is stored physically on the phone; data that is stored in the cloud is protected. Mr. Covert went on to say that Americans are only required to answer questions that relate to their admissibility back into the country, such as verifying the validity of travel documents and ensuring that no crimes are being committed.

Potential changes

In 2014, the Supreme Court decided that law enforcement need to obtain a warrant before searching someone’s digital devices. The Court’s line of reasoning was that cellphones are “not just another technological convenience” and that they hold important private information that should be protected. Homeland Security officials, however, claim that this decision does not apply to searches at the border because the case in question did not deal with that issue. Bipartisan legislation was introduced in April to attempt to expand the protections that this Supreme Court decision provides. The Protecting Data at the Border Act is co-sponsored by Sen. Ron Wyden (D-Ore.), Sen. Rand Paul (R-Ken.), Rep. Jared Polis (D-Col.), and Rep. Blake Farenthold (R-Tex.). This legislation, if passed, would require customs officers to have warrants before searching electronics devices at borders which would, Mr. Covert wrote, help to protect Americans’ rights at borders and airports.

About Barry N. Covert

This post does not purport to give legal advice and is for informational purposes only.

NYS Senate Passes Bill Enhancing Cancer Patient Right to Sue

Thu, 22 Jun 2017 10:36:00 -0600

Updated 7/5/17

On June 21, 2017, the New York State Legislature passed a bill that will help ensure misdiagnosed cancer patients have an opportunity for their day in court.

Under existing law, a medical malpractice patient must file a lawsuit against a physician who has committed malpractice within two and a half years of the “negligent act” or the patient’s claim will be forever barred from legal recourse. The current law significantly limits a patient’s ability to hold a physician accountable for malpractice because a misdiagnosis can occur without the patient being aware of the error for several years.

For example, a radiologist may read an imaging study as negative for cancer, but three years later, the patient has a fatal cancer that has been left untreated as a result of the radiologist’s negligence in reading the study three years earlier. Under this scenario, the patient’s medical malpractice claim would be barred because it was not commenced within two and half years of the malpractice occurring.

Lavern's Law

Under the new bill, called Lavern’s Law, the window to bring a medical malpractice case involving cancer or malignant tumors begins when the patient discovers the physician’s negligence, not when the negligence occurs. If the Governor signs this new bill into law, the patient in the above example would be able to bring his or her claim.

The bill’s namesake is Lavern Wilkinson. Ms. Wilkinson died in 2013 at the age of 41 from a form of lung cancer that could have been cured if her doctors did not initially misdiagnose her cancer. Lavern Wilkinson was not allowed to sue the doctors who misdiagnosed her curable lung cancer because the misdiagnosis was discovered after the time period current law permits victims of malpractice to bring suit. At the time of her death, Ms. Wilkinson had a 15-year old developmentally disabled child with autism who required round-the clock care.

"A step in the right direction"

“This is a step in the right direction,” according to Joseph Manna, a senior partner at the law firm of Lipsitz Green Scime Cambria LLP. “Every year, we are asked to review many cases involving clear cut cases of misdiagnosed cancer, but nothing can be done because the negligence happened more than two and a half years before the patient even knew they had cancer.”

In a recent Buffalo Law Journal article, Mr. Manna wrote about a man who contacted him recently. This man received medical care at his local hospital and, four years later, found that the physicians has missed the signs of his colon cancer. Because of the time limit the current law mandates, Mr. Manna was not able to pursue his case and the man died three months later.

“If this new bill is signed by the Governor, it’s some good news for people who could use it,” Mr. Manna said. “They are too often turned away by the legal system even though they need its help and they were clearly injured by physician negligence,” he continued.

Mr. Manna explained, “The only problem I see with the bill is that it does not cover all malpractice victims. It only covers cancer related malpractice because of compromises that had to be made with opponents of the bill, led by the insurance lobby.”

Who to call

If you or a loved one have been affected by medical malpractice, contact Lipsitz Green Scime Cambria. Joseph Manna and all the firm’s medical malpractice attorneys have the knowledge and resources necessary to assess your case and get you the results you deserve. To speak with Mr. Manna, please call 716 704 2100.

This article does not purport to give legal advice and is for informational purposes only.

$995,000 Settlement Obtained for Man with Misdiagnosed Septic Arthritis

Thu, 15 Jun 2017 11:28:00 -0600

Arthritis is a common ailment known to cause debilitating pain to those who suffer from it. There are over 100 different types of arthritis, which vary in symptoms and consequences. If you suffer from arthritis, it is essential that your physician correctly diagnosis the type of arthritis you have to ensure you receive proper treatment.

Joseph Manna, a senior partner at Lipsitz Green Scime Cambria, recently secured a $995,000 settlement for a patient whose arthritis was misdiagnosed, leading to a potentially lethal scenario. Read on to learn more about this case of misdiagnosed septic arthritis and how the medical malpractice attorneys at Lipsitz Green Scime Cambria can help you if you find yourself in a similar situation.

Patient history of rheumatoid arthritis

The patient in this case had a long history of rheumatoid arthritis. He had been treated for years with steroids, which can suppress the immune system and make people more susceptible to infection. After developing what he thought was a simple “flare up” of his rheumatoid arthritis, the man went to a hospital with red, hot, and swollen joints. Doctors immediately suspected that he might have an infection in his joints, but they did not timely test the joints to confirm their suspicions and start the patient on antibiotics. Instead, they assumed he was probably having a flare up of his rheumatoid arthritis.

Misdiagnosis led to arm damage

Since the man’s condition did not improve, his family demanded that he be transferred to another hospital. At that hospital, he was quickly diagnosed with a potentially lethal infection known as septic arthritis. Unfortunately, the septic arthritis had remained untreated for so long that the patient’s wrist and forearm were damaged to the point that he could no longer use them. He required several corrective surgeries, including skin grafts and a steel rod implant in his arm.

According to Mr. Manna, “it was angering to see medical documentation in which doctors were talking about possible septic arthritis, but they never tested for it or treated it. We hired a world renowned expert to explain to the jury that, if the man was treated properly, his arm would be fine today.”

Mr. Manna went on to say, “I was as proud of the work we did on that case as I am sad for my client, who will suffer from his injuries for many years to come.”

Who to call

Joseph Manna has over 20 years of experience successfully fighting for his clients. He was recently honored with the Lifetime Achievement Award from America’s Top 100 Lawyers and he has been named to The Best Lawyers in America as well as Super Lawyers.

If you or a loved one have been affected by medical malpractice, contact the attorneys at Lipsitz Green Scime Cambria. Mr. Manna and the firm’s medical malpractice attorneys have the knowledge and resources necessary to assess your case and get you the results you deserve. They will be able to compassionately guide you through every aspect of the complicated process. To speak with Mr. Manna, please call 716 704 2100.

This article does not purport to give legal advice and is intended for informational purposes only.

$1,450,000 Settlement Obtained for Family of Woman with Diverticulitis Misdiagnosis

Tue, 09 May 2017 12:05:00 -0600

Diverticulitis is an infection of outpouchings that develop in the large colon. It is a common condition, but can be deadly if misdiagnosed or not treated properly. The infection can progress to the point where the colon perforates, allowing stool to leak into the patient’s free abdomen causing sepsis. If that happens, life-saving emergency surgery is required.

In this case, a diverticulitis patient had clear signs of a perforated colon. Despite these clear signs, her physicians failed to recognize the problem in a timely manner. When they finally did diagnose and treat the perforation, the patient was found to have two liters of stool in her abdomen. This caused her to develop sepsis and multi-system organ failure, which ultimately caused her death.

According to Joseph J. Manna, a senior partner at Lipsitz Green Scime Cambria, the woman’s death was avoidable. “It was a tragic and unnecessary death that should have been prevented,” he explained. Mr. Manna represented the woman’s family in the case and was able to secure a $1,450,000 settlement for them. Mr. Manna was recently honored with the Lifetime Achievement Award from America’s Top 100 Lawyers and has been named to The Best Lawyers in America as well as Super Lawyers for the past several years.

Who to call

If you or a loved one have been a victim of medical malpractice, the effects on your life can be devastating. Injuries from medical malpractice can be life-threatening and the cost of additional procedures can put considerable financial strain on you and your family. Contacting an experienced medical malpractice attorney is an important step in the process of rebuilding your life. Mr. Manna and the medical malpractice attorneys at Lipsitz Green Scime Cambria have the compassion necessary to guide you through the process and the knowledge necessary to take on the huge insurance companies representing negligent doctors to get you the results you deserve. Contact the attorneys at Lipsitz Green Scime Cambria today.

New York State Nursing License Defense

Thu, 30 Mar 2017 14:49:00 -0600

Barry Covert, a senior partner at Lipsitz Green Scime Cambria, wrote a guest column that appeared in the March 27 issue of the Buffalo Law Journal. In “Legally defending a professional license is not just about protecting a career”, Mr. Covert explains several issues related to professional licensing defense, including how nursing licenses are obtained, what could put a professional license in jeopardy, how a professional license can be protected, and what an attorney’s role is in the process.

The full article is available on the Buffalo Law Journal website.

Professional misconduct

There are several professions in New York State that cannot be performed without a license. These professions include teaching, engineering, accounting, practicing law, and the various medical fields, including nursing. In order to become a nurse, a person must go through years of education and practical training. Once this has happened, they can be officially licensed and registered by the New York State Education Department.

Several circumstances could put a nursing license in jeopardy, including serious allegations of professional misconduct such as:

Filing false reports
Administering expired vaccinations
Diverting drugs and medications for personal use

Professional Assistance Program

In his article, Mr. Covert explained that drug diversion for personal use is part of the substance abuse epidemic that is prevalent both locally and nationally. If attorneys suspect that their clients are struggling with addiction, there are certain programs that attorneys can recommend to protect their clients’ careers and professional licenses. The Professional Assistance Program, or PAP, is one such program, which focuses on licensed professionals struggling with substance abuse. The PAP allows professionals who have not harmed patients or clients to voluntarily surrender their licenses and receive treatment without being subject to professional misconduct charges. Discharge from the PAP requires that the individual present sufficient evidence that they have made progress in recovery and have met the requirements of the program. The individual’s attorney can guide them through these proceedings.

Disciplinary proceedings

If a complaint of misconduct is filed against a licensed professional, an investigation will take place. If the investigation finds enough evidence, disciplinary action will be taken. The professional’s attorney can navigate their client though this process and ensure their rights are protected. Penalties for misconduct can range anywhere from advisory letters to license revocation, depending on the seriousness of the allegations. If a license is revoked or suspended, the person must wait at least three years before they can have it restored.

About Barry N. Covert

This post does not purport to give legal advice and is for informational purposes only.

$1,425,000 Result Obtained for Man Injured in Motorcycle Accident

Mon, 06 Mar 2017 15:31:00 -0600

The law firm of Lipsitz Green Scime Cambria recently secured a $1,425,000 settlement for a man injured in a motorcycle accident. In this case, the client was riding his motorcycle when another vehicle pulled out from a stop sign, failing to yield the right of way and causing the accident. Thomas M. Mercure, the motorcyclist’s attorney, described his client as an avid motorcyclist who rides frequently and works fulltime as the third generation owner of a local business. Mr. Mercure was able to quickly and efficiently secure a substantial settlement, providing his client with financial security and permitting him and his family to move on with their lives. Read more to discover the details of this case and how Lipsitz Green can help if you find yourself in a similar situation.

Injuries and their effects

The plaintiff sustained several injuries from the accident, including a leg fracture. Mr. Mercure explained that each person’s injuries affect them differently and that his client’s injuries impacted his ability to enjoy many of his hobbies, as well as his ability to work. These issues were taken into consideration and factored significantly into the final settlement.

Each case is unique

Mr. Mercure has handled thousands of significant cases and explained that, when handling a personal injury case such as this one, it is important to remember that every case and every client is unique. “We represent individual people, so every case involves an individual person and his or her family. It is critically important to take into consideration the impact of our client’s injuries on his or her life,” he said. Mr. Mercure went on to say that, because each client has various responsibilities such as family, children, and a job, he recognizes that there is often a great deal at stake from an emotional, physical, and financial standpoint. Mr. Mercure realizes the importance that all of his cases and their potential results hold for his clients. “Each client that I represent has only one case and only one opportunity to achieve the best possible resolution,” he says. He further added that he handles every case as if the client is a member of his family, taking into consideration that the sooner a case can be resolved, the sooner people can move on with their lives.

Who can help

When you are involved in a motor vehicle accident, the effects on your life can be significant and difficult to predict. The injuries you sustain may be debilitating and the economic impact of not being able to work may cause substantial financial strain on your family. If you are injured in an accident, contacting an experienced personal injury attorney is an important step in being able to recover emotionally, physically, and financially. Mr. Mercure and the personal injury attorneys at Lipsitz Green Scime Cambria are experienced and compassionate and they have an established history of obtaining superior verdicts and settlement results for their injured clients. Contact Lipsitz Green Scime Cambria today to speak with an attorney who will fight to get you the results you deserve.

This post is for informational purposes only and does not purport to give legal advice.

Estate Planning in 2017

Mon, 23 Jan 2017 16:56:00 -0600

Lucy Berkman, an attorney at Lipsitz Green Scime Cambria, wrote a guest column that appeared in the December 26 issue of the Buffalo Law Journal. In “Put estate planning on the list for 2017”, Ms. Berkman outlines the different elements you may wish to have in place as part of your estate plan, such as Wills, Trusts, Powers of Attorney, and Health Care Proxies.

Read the full article on the Buffalo Law Journal website.

Last Will and Testament

When planning your estate, it is important to have a Last Will and Testament drawn up. Your Will allows you to specify how and to whom your assets should be distributed. A Will must be in writing and meet other criteria in order to be valid in New York State. Wills must also be admitted through Surrogate’s Court. If you are interested in updating your Will or having a Will drawn up, it is beneficial to assess what important life events have happened that may alter how you wish for your assets to be distributed. These events could include a wedding or a divorce in the family, or the birth of a new family member.

Photo credit: Ken Mayer

Trusts

Ms. Berkman also recommends considering setting up a trust, which can be created while you are alive or upon your death if specified in your Will. When this happens, your assets are transferred into the trust and they will be managed by the trustee on behalf of a beneficiary whom you select. You may consider a trust if you are concerned about privacy regarding your assets, if you have beneficiaries in your Will who are minors or disabled, or if you own real property in another state.

Power of Attorney

If you are setting up an estate plan, you may also want to consider establishing a Power of Attorney. A Power of Attorney allows someone else, known as your “agent”, to act for you if you are ill and unable to manage your affairs. Your agent will be able to pay your bills and medical expenses, manage your accounts, and collect retirement benefits for you. They will only be able to take these actions while you are alive; upon your death, their power will be extinguished.

Health Care Proxy and Living Will

A Health Care Proxy is also an important option to consider, according to Ms. Berkman. A Health Care Proxy allows someone, known as your “proxy”, to make medical decisions for you should you become incapacitated. These decisions could include what types of medical treatments you receive and which doctors you should see. If necessary, your proxy can also go to court over the treatment you receive. If you have strong feelings about any of these issues, you may want to express those desires in a Living Will. This will allow you to communicate your medical preferences even if you are unable to express yourself verbally and are in a condition from which there is no hope of recovering.

About Lucy M. Berkman

Lucy M. Berkman is a member of Lipsitz Green Scime Cambria’s Estates, Wills, and Trusts department. She offers legal assistance to individuals, families, and corporations to help make the most of clients’ end-of-life wishes.

This article does not purport to give legal advice and is for informational purposes only.

Car Accident: Appeal Won for Woman Injured

Mon, 19 Dec 2016 14:47:00 -0600

When you have been injured in a car accident, it can be difficult to determine what your next step should be. It is often necessary to pursue legal action against the other driver in order to receive adequate monetary compensation for your injuries. Lipsitz Green Scime Cambria – which has represented thousands of accident victims over the past six decades – has a team of experienced attorneys who will vigorously represent you in pursuing a claim against the negligent parties and their insurance companies. Even with the most skilled attorneys representing you, however, there are times when a judge or jury may not rule in your favor. When you receive an unfavorable verdict in those cases, you may be able to appeal the decision. Lipsitz Green Scime Cambria’s appellate attorneys can review your case and help get you the results you deserve. Read on to learn about a car accident appeal that Lipsitz Green Scime Cambria’s attorneys won for an injured client after her injury claims were dismissed.

In a personal injury suit commenced in the Niagara County Supreme Court, Lipsitz Green Scime Cambria represented a woman who was injured when her car was struck by a vehicle that ran a stop sign. The plaintiff alleged that she sustained serious injuries in the accident, and sought monetary compensation from the person who hit her. The defendant moved to dismiss the suit, claiming that the plaintiff had not been seriously hurt. The Supreme Court agreed and dismissed plaintiff’s claims. Lipsitz Green Scime Cambria appealed this decision to the New York State Appellate Division, Fourth Department. John A. Collins, a senior partner in the firm, represented the plaintiff on the appeal. On November 10, 2016, the Fourth Department ruled in the plaintiff’s favor, reversed the Niagara County Supreme Court’s order, and reinstated plaintiff’s claims.

On appeal, the plaintiff argued that the trial court improperly dismissed her claims alleging that, as a result of the accident, she had permanent and significant physical limitations. Regarding the permanent consequential limitation of use, the appeals court agreed, stating that plaintiff raised a valid issue of fact by submitting the affirmation of her orthopedic surgeon. The surgeon measured “significant rotation in the flexion, extension, and rotation of plaintiff’s cervical spine three years after the accident and opined that those restrictions are permanent.”

Regarding the category of significant limitation of use, the court concluded that the defendant’s own proof raised an issue of fact. The defendant submitted evidence showing that the plaintiff’s orthopedist and another physician found a herniated disc in the plaintiff’s cervical spine after reviewing an imaging study. The defendant also submitted other evidence that demonstrated the extent of the plaintiff’s limitations due to the disc injury, including medical records showing the plaintiff’s range of motion loss. The court also concluded that the plaintiff’s cessation of medical treatment did not destroy her claim, as she offered a reasonable explanation for why she chose not to continue treatment. The Fourth Department therefore reversed the Niagara County Supreme Court’s order and reinstated the plaintiff’s action regarding the permanent consequential limitation of use and significant limitation of use categories of serious injury.

About John A. Collins

John A. Collins is a senior partner in the Accidents and Personal Injury department at Lipsitz Green Scime Cambria. He practices in the areas of Civil Appellate and Motion Practice. Mr. Collins has argued appeals before several courts, including the New York Court of Appeals, all four departments of the Appellate Division of the New York State Supreme Court, and the United States Court of Appeals for the Second and Third Circuits.

This article does not purport to give legal advice and is for informational purposes only.