Bicycle Accident Injury

Published on: December 19, 2012

The Department of Children and Family Services (DCF) appeals the trial court’s final

by Stephen Bilkis

The Department of Children and Family Services (DCF) appeals the trial court’s final judgment against DCF finding DCF negligent and awarding the complainants as guardians and adoptive parents of a child, the sum of $26,849,849.06. DCF raises several issues on appeal that the Appellate Court affirms without comment. The Court of Appeals addresses only DCF’s argument that the complainants failed to prove a legitimate case of negligence. It affirmed the final judgment because the complainants presented competent substantial evidence that DCF was negligent and that the negligence was the proximate cause of the spinal injuries sustained by two-year-old child.

The vast majority of the material facts in this case are undisputed. DCF first became involved in this case when representatives at the Miami Children’s Hospital (MCH) called the DCF hotline because the child’s biological mother failed to come to the hospital on December 8, 2000, the date of the child’s discharge. A Suffolk woman, who is the DCF protective investigator assigned to the case, began her formal investigation on December 9, 2000. She testified that she was concerned that the mother did not show up to the hospital on the date of the child’s discharge because she was more interested in getting her boyfriend out of jail, that the mother hardly ever visited or called the hospital while the child was hospitalized for a month, that the hospital had difficulty getting the mother to come to the hospital and sign consents, that when the mother did come to the hospital the child would cry and the mother spanked the child in her hospital bed while the child cried, and that the hospital informed the investigator that the child did not appear very bonded to the mother. In her testimony, the investigator expressed concern because the child’s x-ray results showed a fractured clavicle, for which the mother had no explanation. The investigator also testified that the mother’s boyfriend was living with the mother and the child, and in her training and experience as a DCF protective investigator, boyfriends who live in the home with the child and are not related by blood or marriage to the child are a safety risk to the child because they are not the child’s natural father and have been responsible for abuse situations.

Due to concerns that the mother was not going to be able to provide the necessary follow-up care for her child, the investigator, the mother, and the head of the child advocacy team (CAT) at the hospital met at the hospital on December 11, 2000. The head of CAT testified that clavicle fractures are usually low risk and not of great concern; however, he was concerned because it was an unexplained injury. Although the CAT head testified that he had no recollection or notes of CAT reporting a concern of physical abuse to DCF, he wrote in his CAT consult that the child is a high risk child who should not be released to home until we can more fully insure that the environment is safe and nurturing. The Westchester investigator admitted in her testimony that the CAT head advised her that a home study should be completed first before the child was returned to her home. The investigator also testified that after meeting with the CAT head, she suspected physical abuse.

Published on: December 17, 2012

A man was born with a chromosomal condition

by Stephen Bilkis

A man was born with a chromosomal condition and began receiving medical assistance from the State’s social services. He subsequently suffered an injury during his corrective spinal injury surgery, which resulted in his partial paralysis. A medical malpractice action was commenced by the man’s sister on his behalf against the hospital and several doctors where the surgery was performed. The man continued to receive medical assistance from the State’s social services and they filed a lien for recovery from any award made in the medical malpractice action, for such assistance for which the third-party offender was found to be liable.

Consequently, the parties to the medical malpractice action reached a settlement. Based upon the proposed settlement, the state’s social service agreed to accept the sum of $102,423.56 to settle the lien. The amount necessary to settle the medical claim was premised on a letter from the social services stating that it would accept that amount on the lien against the proceeds of the personal injury lawsuit, based on the proposed settlement of the lawsuit for the sum of $1,600,000. The letter further provided that the state’s social services reserved the right to collect any unpaid balance of the lien if the man reached a further settlement that provided additional proceeds or if he should receive funds from another source such as the lottery.

The settlement of the medical malpractice action was approved by the Supreme Court with the direction that payment made to the state’s social service in the amount of $102,423.56, in full satisfaction of the lien to the date of the order.

Published on: December 15, 2012

This is an action to recover damages for serious personal injuries

by Stephen Bilkis

This is an action to recover damages for serious personal injuries allegedly sustained by plaintiff as a result of a motor vehicle accident that occurred on Route 109 at or near the overpass of the Southern State Parkway, County of Suffolk, New York on March 9, 2005. Plaintiff claims in his complaint that he sustained serious permanent injuries as defined in Section 5102 (d) of the Insurance Law and economic loss greater than basic economic loss, as defined in Section 5102 (a) of the Insurance Law. A Suffolk Personal Injury Lawyer said that, defendants now move for an order pursuant to CPLR 3212 granting them summary judgment dismissing the complaint on the grounds that plaintiff did not sustain a “serious injury” as defined in Insurance Law § 5102 (d). Plaintiff cross moves for partial summary judgment on liability grounds and for an inquest as to the assessment of damages. Plaintiff opposes defendants’ motion, and defendants have filed a reply.

A Lawyer said that, in support of this motion defendants submit, the pleadings; the plaintiff’s verified bill of particulars; plaintiff’s Hospital emergency department records, including x-ray reports of plaintiff’s cervical and thoracic spine; the affirmed report of defendant’s examining neurologist,; the affirmed report of defendant’s examining radiologist,; the affirmed report of defendant’s examining orthopedist,; plaintiff’s employment verification records dated March 1, 2006; and plaintiff’s deposition testimony.

A Long Island doctor said that, plaintiff claims in his verified bill of particulars that he sustained, among other things, disc bulges of the cervical spine injury and ventral cord abutment; a limited range of motion of the cervical spine injury; weakness in the upper extremities; and lumbar radicular dysfunction. Plaintiff also claims that he sustained scarring, anxiety and mental suffering. Additionally, plaintiff claims that he was totally disabled for about three weeks and that he remains partially disabled to date. Lastly, plaintiff claims that he sustained a serious injury in the categories of a permanent loss of use, a permanent consequential limitation, a significant limitation and a non-permanent injury.

Published on: December 11, 2012

As described in the Appellate Court’s prior opinion,

by Stephen Bilkis

As described in the Appellate Court’s prior opinion, the complainant woman had two industrial accidents while she was working for the Staten Island Paint Company before she was involved in an automobile accident that had nothing to do with work. Originally, the judge of compensation claims denied all benefits on the theory that the third (non-compensable) accident was the major contributing cause of her injuries and disability. The Appellate Court reversed and remanded, holding that the claimant is entitled to any medical or compensation benefits attributable to either or both of the work-related accidents.

On remand, a successor judge of compensation claims found that the woman’s head injury and jaw condition were causally related solely to the first industrial accident, that her cervical and thoracic spinal injuries were related to all three accidents, and that her lumbar spinal condition was wholly unrelated to the first accident, but attributable equally to the second and third accidents. On the basis of competent, substantial evidence, the judge of compensation claims attributed two-thirds of the woman’s need for treatment of her cervical spine, thoracic spine, and psychiatric problems to the industrial accidents.

The Queens employer of a claimant who suffers an industrial injury must furnish to the employee such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require. Medical care is properly awarded when the need for such care arises from the combined effect of industrial and nonindustrial conditions. As indicated, the employer is responsible for treatment required by the non-compensable injury if such treatment would not presently be required but for the existence of the compensable injury. The Appellate Court thus approves the approach the judge of compensation claims took on the medical benefits questions, and most of the results he reached.

Published on: December 9, 2012

On 1994, a man was admitted to a hospital for the treatment of his spinal injuries

by Stephen Bilkis

On 1994, a man was admitted to a NYC hospital for the treatment of his spinal injuries. Prior to the man’s cervical spine surgery his physician ordered a cervical myelogram and CT scan. The procedure was performed by another physician and a nurse. The man does not recall the whole procedure, but remembers waking up in great pain. The man was advised by his admitting physician, that he obtained dislocation on his shoulder during a grand mal seizure. The man was told that he was suffering from spinal stenosis and diseases of the spine. He was also told that the seizure could have resulted from natural causes and the spinal diseases were normal complications from the myelography procedure.

Subsequently, the man obtained legal counsel and brought a medical negligence action against the doctor who performed the procedure for injuries he received during the cervical myelogram. Afterwards, the physician filed an answer to the complaint and included as an affirmative defense that the man’s damages were caused in whole or in part by third parties. The physician also discussed the risks associated with a myelogram, including the possibility of a seizure. He added that the risk of seizure is decreased when the patient’s head is elevated. He further opined that the nurses may not have followed his postoperative orders concerning the maintenance of the man’s head because when he saw the man during the seizure, the man was lying fairly flat. The man then filed the notice of intent to initiate litigation against the hospital and the nurse. He also modified his complaint to include them as opponents in the lawsuit.

In a request for the dismissal of the case, the hospital and the nurse claimed that the man’s claim for negligence was barred by the law of limitations. They claimed that the man was aware of them as potential opponents immediately following his injuries.

Published on: December 7, 2012

The complainant man went to the emergency room of a hospital

by Stephen Bilkis

The Long Island complainant man went to the emergency room of a hospital complaining of weakness in his lower extremities and severe lower back pain. He had gone to the emergency room five days earlier complaining of left hip and back pain, and was sent home with pain medication. The pain persisted, and he began experiencing weakness in his legs, twice falling or nearly falling when his legs buckled. He was able to walk, though with difficulty. During his emergency room visit, radiographic tests, including a myelogram, were ordered, and the man was admitted to the hospital.

On the morning of 25 June 1994, the accused Manhattan anesthesiologist explained to the complainant man that he would need to administer a caudal block rather than general anesthesia for the myelogram because the man needed to be awake during the test. The radiologist performed the myelogram around 3:00 p.m. that day. The next morning, the man discovered he felt no pain, was numb from his hips down, and could not move his legs. The anesthesiologist and the nursing staff blamed the numbness and inability to move on the anesthesia, telling the man it had not yet worn off. The man thought this was strange because, in his experience, it usually took only four to five hours for the effects of anesthesia to wear off. He thought either something had gone wrong or his condition was worse than the doctors originally thought.

The myelogram revealed massive disc herniation causing spinal injury, and the accused man’s attending physician and neurologist advised the man that he urgently needed surgery. The neurologist performed a laminectomy and discectomy. However, the man remained paralyzed following the surgery.

Published on: December 4, 2012

On 1994, a man was admitted to a hospital for the treatment of his spinal injuries

by Stephen Bilkis

On 1994, a Queens man was admitted to a hospital for the treatment of his spinal injuries. Prior to the man’s cervical spine surgery his physician ordered a cervical myelogram and CT scan. The procedure was performed by another physician and a nurse. The man does not recall the whole procedure, but remembers waking up in great pain. The man was advised by his admitting physician, that he obtained dislocation on his shoulder during a grand mal seizure. The man was told that he was suffering from spinal stenosis and diseases of the spine. He was also told that the seizure could have resulted from natural causes and the spinal diseases were normal complications from the myelography procedure.

Subsequently, the man obtained legal counsel and brought a medical negligence action against the doctor who performed the procedure for injuries he received during the cervical myelogram. Afterwards, the physician filed an answer to the complaint and included as an affirmative defense that the man’s damages were caused in whole or in part by third parties. The physician also discussed the risks associated with a myelogram, including the possibility of a seizure. He added that the risk of seizure is decreased when the patient’s head is elevated. He further opined that the nurses may not have followed his postoperative orders concerning the maintenance of the man’s head because when he saw the man during the seizure, the man was lying fairly flat. The man then filed the notice of intent to initiate litigation against the hospital and the nurse. He also modified his complaint to include them as opponents in the lawsuit.

In a request for the dismissal of the case, the hospital and the nurse claimed that the man’s claim for negligence was barred by the law of limitations. They claimed that the man was aware of them as potential opponents immediately following his injuries.

Published on: December 2, 2012

On 2003, a complainant man obtained a back injury while he was employed

by Stephen Bilkis

On 2003, a complainant man obtained a back injurywhile he was employed. Shortly thereafter, his employer accepted his injury’s compensability and commenced the payments of both medical and indemnity benefits. An Nassau authorized orthopedist initially diagnosed the complainant man with disc herniation with chronic low back pain. After that, a surgical procedure was performed and the orthopedist’s explained that the surgery revealed spinal stenosis with no evidence of disc herniation. The orthopedist also informed the attorney of the man’s employer that one hundred percent of the complainant’s need for medical treatment was caused by pre-existing degenerative changes due to his personal condition. The complainant then filed an appeal for benefits requesting authorization of a neurologist and compensability of the claim, which the carrier timely controverted because of the opinion of the complainant’s treating orthopedist.

After the trial, the judges of compensation claim accepted the opinion of the treating orthopedist that the complainant’s injury was wholly attributable to his preexisting condition and therefore found that his current condition is not compensable as it did not arise out of the course and scope of his employment and no further treatment is awarded.

The Suffolk judges of compensation claim further concluded that there was nothing in the record that would have reasonably placed the employer on notice of the complainant’s personal condition being the major contributing cause of the injury until the conference between its attorney and the orthopedist was done. As a result, the employer denied the medical treatment within 120 days from the notification it had then received and the compensability of the injury was considered timely denied. With that, the judges of compensation claim refused both the claims for compensability of the complainant’s back condition and authorization of a neurologist.

Published on: November 30, 2012

Claimant is a young woman who studied dancing most of her life

by Stephen Bilkis

Claimant is a young woman who studied dancing most of her life. She was employed as a dancer at a famous theme park owned by the appellant Company, for several years. She first injured her back during a dance routine on January 11, 1981. After a spinal injury operation, she went home to recuperate and eventually returned to work. She neither requested nor received any attendant care benefits while recuperating at home on this occasion.

An source said that, claimant sustained a second back spine injury when she was dropped by a fellow dancer. As a result of this spine injury, claimant underwent a low back spinal fusion operation, by an

Queens orthopedic surgeon approved by the appellant Company to provide medical treatment to claimant. Thereafter, claimant was discharged from the hospital to return home and recuperate. She was instructed to wear a full body cast, which greatly restricted her body movement, for one and one-half months following her discharge from the hospital. The cast, although described as “removable,” was to be worn at all times except while bathing and taking care of personal hygiene. Claimant was not advised that her worker’s compensation benefits would cover necessary attendant care during this period. Claimant normally lived alone in her own home, but she had made arrangements to temporarily reside with a friend who agreed to provide her care and assistance with such things as going to the bathroom, bathing, dressing, eating, cooking, changing her bed, and other necessary daily functions that claimant was unable to perform for herself while in the cast.

Published on: November 27, 2012

This involves a case where the court denied the petition

by Stephen Bilkis

This involves a case where the court denied the petition stating that petitioner was not eligible for an RSSL Sec. 607-b pension when she applied for pension for benefits.

Petitioner began working as an EmergencyMedical Technician (EMT) with the FDNY in 1992. She is a Tier 4 Member of NYCERS pension fund. In 1995, petitioner was involved in a line of duty ambulance accident, sustaining spinal injuries. As a result, petitioner was out of work on paid sick leave for approximately 18 months. When she returned to work, it was determined that she could no longer work on an ambulance because of her injuries. She was assigned to work as a dispatcher. Over time, her condition worsened and she developed severe pain and locking of her hands. Petitioner, on May 10, 2006, was diagnosed with bilateral carpal tunnel syndrome, disc herniations at C5-6 and L5-S1, left radiculopathy, tendinitis, fluid in the distal ulnar joint and bi-lateral ulnar neuropathy. Accordingly, on that day, petitioner stopped working for medical reasons and remained on an unpaid medical leave of absence. Then, on August 10, 2006 and September 28, 2006, petitioner underwent carpal tunnel release surgeries.

FDNY, by letter dated July 30, 2008, advised petitioner CARTER that because she had been absent and unable to perform her job since April 2, 2007, her employment was subject to be terminated on August 11, 2008.