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FAQ

Most of our clients, or potential clients, have never been involved in a lawsuit of any kind, and have many valid questions about the process, including:

1. How long to I have to file a personal injury lawsuit in New York?

There is limited time in the State of New York to file a personal injury lawsuit.  The time period is known as a statute of limitations.  Generally, the time period for a negligence action is three years from the date of the act or omission giving rise to the claim.  However, depending upon the nature of the case, and the identity of the defendant, the statute of limitations can be shorter, e.g., two years, one year and ninety days, one year, ninety days, or even as short as thirty days.  If the plaintiff is a minor, is it possible under certain circumstances for the statute of limitations to be tolled (i.e., extended) until the injured child reaches the age of majority (i.e., age 18).  Claims filed beyond the statutory period are subject to dismissal.

While we cannot tell you here exactly how long you have to file a lawsuit, you should know that every day counts and delay can be fatal to your potential claim.  For specific limitations periods, contact us.

2. How long do I have to file a medical malpractice lawsuit in New York?

Like lawsuits sounding in negligence, there is limited time in the State of New York to file a medical malpractice lawsuit.  Generally, the time period for a medical malpractice action is two and one-half years from the date of the act or omission giving rise to the claim.  However, depending upon the nature of the case and the identity of the defendant, the statute of limitations can be shorter, e.g., two years, one year and ninety days, or even ninety days.  If the plaintiff is a minor, or of there is continuous medical treatment, is it possible for the statute of limitations period to be extended briefly.  Claims filed beyond the statutory period are subject to dismissal.

While we cannot tell you here exactly how long you have to file a lawsuit, you should know that every day counts and delay can be fatal to your potential claim.  For specific limitations periods, contact us.

3. How long to I have to file a birth injury or birth trauma lawsuit in New York?

Birth injury and birth trauma lawsuits, which are brought by a mother or father on behalf of an injured baby or infant, are governed by two separate limitations periods.  The claim of a mother or father must be filed within two and one-half years from the date of the birth.  The injured infant’s claim must be filed within the shorter of two and one-half years from when the child turns eighteen, or within ten years from the date of the act or omission giving rise to the claim.  Under no circumstances can an infant’s claim be filed more than ten (10) years from the day the medical malpractice occurred.  There is no continuous treatment exception.  Claims filed beyond the statutory period are subject to dismissal.

While we cannot tell you here exactly how long you have to file a lawsuit, you should know that every day counts and delay can be fatal to your potential claim.  For specific limitations periods, contact us.

4. What is negligence?

In the context of a personal injury action, negligence is defined as the failure to do something that a reasonable person would do (i.e., an omission), or doing something that a reasonable person would not have done (i.e., act of commission).  To determine whether you are the victim of negligence, contact us.

5. Did my doctor make a medical mistake?

Medical mistakes happen.  According to the Journal of American Medicine, as many as 225,000 people die each year due to medical malpractice.  Statistically, 45% are attributable to emergency room errors, 37.5% are due to adverse reactions to medicine or medication errors, 10% are due to infections, 5% are due to hospital errors, and 2.5% are due to unnecessary surgery.  We cannot determine whether your doctor made a mistake without reviewing your medical records in consultation with the appropriate medical expert.  To determine whether you are the victim of medical malpractice, contact us.

6. What is wrongful death?

Wrongful death is a legal term of art.  In the context of a personal injury or medical malpractice lawsuit, a wrongful death is a death caused by a wrongful or negligent act.  A wrongful death can form the basis of a civil action against the person or persons responsible for the death.  A wrongful death action is different than a negligence action because it is brought by the victim’s survivors for economic damages, such as lost income, as well as for loss of guidance and support stemming from the loss of the victim.  To determine whether you have an action for the wrongful death of a loved one, contact us.

7. What is the difference between a birth defect and a birth injury?

Generally, birth injuries happen when something goes wrong during labor and delivery, whether due to natural forces, medical malpractice, or hospital negligence.  Birth defects are abnormalities in a baby’s structure, function, or metabolism that are present at birth and usually are caused by genetic or other factors unrelated to the birth process.  According to the March of Dimes and the American College of Obstetricians and Gynecologists (ACOG), as many as 150,000 babies are born annually with one of more than 4,000 different types of birth defects.  Contact us to determine whether your baby has suffered a preventable birth injury, or was born with a birth defect.

8. What are the signs of a birth injury?

Common signs of a birth injury include: abrasions, bruises, cuts, or lacerations to a baby’s, head, shoulders, or torso; lack of movement on one side of a baby’s face; lack of movement on one side of a baby’s body; an arm that appears twisted or limp; a lump, bruising, or swelling on a baby’s head or scalp; blue or dusky appearing skin; labored breathing, grunting, or retracting; low APGAR scores; and seizures within 24-48 hours after birth.  Contact us to determine whether your baby has suffered a preventable birth injury.

9. Can a lawsuit be filed for any construction site injury?

Some construction site injuries are unavoidable and are not the result of a mistake on the part of a property owner, contractor, or worker.  Under those circumstances, an injured construction worker is limited to recovery from Workers’ Compensation in order to receive wages and medical benefits while out of work recovering from an injury.  Likewise, a construction worked injured while working on the job due to a mistake made by his/her employer or a co-worker is also limited to recovery from Workers’ Compensation.  Contact us to determine whether you should file a lawsuit for an injury you suffered while on the job.

10. Can I recover more than Workers’ Compensation benefits if I was injured while working at a construction site?

If you were injured while working at a construction site, and your injury was due to the negligence of a third-party (i.e., someone other than your employer), then you may be able to recover compensation above and beyond Workers’ Compensation.  A potentially responsible third-party may be a property owner, a third-party contractor, a subcontractor, or an equipment manufacturer.  Contact us to determine whether a negligent third-party is responsible for your construction or workplace injury.

11. What types of construction activities are covered by New York State Labor Laws?

New York State Labor Laws protect workers engaged in several different activities, including construction, renovation, demolition, excavation and/or painting.  The Labor Laws require that a property owner and/or general contractor furnish workers with a safe workplace.  If you have been injured on the job, contact us to determine whether you were engaged in a protected activity and to find out whether you should seek compensation for violation of Labor Law 200, 240 and/or 241(6).

12. What is OSHA?

OSHA is an acronym for the Occupational Safety and Health Administration, a federal agency created in 1971 to prevent work-related injuries, illnesses and death.  OSHA’s top priority is the prevention of workplace accidents that are imminent — i.e., about to happen.  OSHA also investigates the cause of injuries that have already occurred, as well as employee complaints about dangerous jobsites and workplaces.  Despite OSHA’s $500,000,000.00 annual budget and nearly 2,000 employees, many employers refuse to follow the rules and, as such, an investigation and/or finding by OSHA may be an important part of a work injury lawsuit.  Likewise, access to OSHA experts may also be the key to a lawsuit arising out of an injury that has not been investigated by OSHA.  If you have been injured on the job, contact us to determine whether you were engaged in an activity that OSHA found hazardous.

13. What is a closed head injury?

A closed head injury is an injury to the brain caused by striking the head, or by violent motion without impact.  It does not involve an open or penetrated skull.  The most common causes of a closed head injury include sports, motor vehicle accidents, falls, and physical assaults, all of which can cause bleeding in the brain or, in equally severe but less obvious cases, changes to the brain on a cellular level.  If you suffered a closed head injury and no longer feel like yourself, contact us to discuss your injury.

14. Is a concussion or “mild” traumatic brain injury serious?

Yes.  Each year more than 1,000,000 people sustain a “mild” traumatic brain injury.  A “mild” traumatic brain injury is typically characterized by a brief loss of consciousness, loss of memory (before or after the event), an alternation in mental state, and/or focal neurological deficits.  While most people who sustain a “mild” traumatic brain injury appear normal, many suffer from long-term and/or permanent effects known as post-concussion syndrome.  People suffering from post-concussion syndrome, often described as “death without a body,” can experience lifelong changes in cognition and personality.  If you have sustained a concussion in an accident and do not feel like yourself, contact us to discuss the full scope and extent of your injuries.

15. What is No-Fault?

New York State enacted the No-Fault laws in 1973 to ensure that insurance companies would pay for all legitimate car accident related medical expenses and lost wages, without regard for fault (i.e., who caused the accident).  Generally, No-Fault will pay $50,000.00 towards the medical bills accrued by and wages lost by an injured driver, passenger or other covered person.  Note, however, that No-Fault is not intended to compensate for pain and suffering.  If you have been in an accident, contact us to discuss your No-Fault application and benefits.  Time is limited!

16. Do I have a “serious injury” under Section 5102 of the New York State Insurance Law?

In order to recover for pain and suffering stemming from a car accident, you must have a “serious injury” as defined by Section 5102.  Certain injuries qualify automatically, such as broken bones, loss of a limb and death.  Other categories require extensive medical evidence to establish that a body function or system is significantly limited, or that the an injury has prevented the person from performing substantially all of their usual daily activities for at least 90 out of the 180 days immediately after the accident. If you have been in an accident, contact us to discuss whether you have a sustained “serious injury” that qualifies for compensation.

17. Who pays for my medical bills?

In the case of a motor vehicle accident, No-Fault should pay your medical bills up to $50,000.00.  In the case of a work injury, Workers’ Compensation should pay your medical bills.  For most other accidents and injuries, private health insurance and/or Medicare/Medicaid should pay your medical bills.  Contact us to discuss your medical bills, who will pay, and whether they have a right to reimbursement (i.e., a lien).

18. What is pain and suffering?

Compensation for pain and suffering is intended to provide money for non-economic damages, e.g., a scar, loss of range of motion, loss of strength, shortness of breath, loss of a limb or digit, pain stemming from a broken bone or damaged muscle/nerve, personality shift stemming from a head injury, anxiety, depression, difficulty sleeping, etc.  Contact us to discuss your pain and suffering, as you may be entitled to recovery for past, present and future pain and suffering.

19. What are economic damages?

Economic damages are those losses arising out of an inability to earn, loss of a job, inability to perform the same job, inability to advance within a trade and associated benefits such as a lost pension and lost health insurance.  Contact us to discuss your job and your family’s financial situation to determine whether you should be seeking compensation for past, present and future economic losses.

20. What are punitive damages?

Punitive damages are a monetary award intended to deter future conduct and punish a defendant for wrongs, rather than compensate a plaintiff for economic loss or pain and suffering.  Punitive damages cannot be paid by insurance (i.e., they must be paid from a defendant’s assets).  Contact us to learn more about punitive damage awards.

21. Are lawsuits expensive?

Usually, yes.  Exactly how expensive depends on the nature of the case.  Most severe personal injury cases accepted by our attorneys cost $10-15,000.00 to prosecute.  Most construction site accident and medical malpractice cases cost $20-25,000.00 to prosecute — however it is not unusual for costs in a multi-disciplinary medical malpractice action or birth injury case to approach or exceed $50,000.00.  Product liability lawsuits can cost upwards of $100,000.00.  This is why it is important that you select a law firm with adequate finances to do the necessary to prepare your case.  To discuss the costs associated with your case, contact us.

22. How long do lawsuits take?

Good things come to those who wait.  Most personal injury lawsuits take 12 months to prosecute.  Because of their complexity, most medical malpractice lawsuits take 24-36 months to prosecute.  Product liability lawsuits can take 36 months or longer to prosecute.  Every case is different, and the schedules of the lawyers, parties and court bear directly on the pace of the case.  Often, the passage of time benefits the plaintiff.  To discuss how long your lawsuit will take, contact us.

23. Should I settle my case?

It depends.  You should give a great deal of thought about whether to settle your case, especially if you were just injured.  This is because a settlement is final and forever.  While many television lawyers promise quick money, be sure to ask yourself whether you are sacrificing something for a quick settlement.  Often times, insurance companies want to settle quick to close a case before a plaintiff’s injuries worsen and before too many bills or economic losses (e.g., missed work) pile up.  To discuss whether you should settle your case, contact us.

24. Will my case go to trial?

It depends.  Cases that go to trial generally involve circumstances where one party refuses to make, or accept, a settlement offer.  Whether a case settles or goes trial depends on a number of factors, including the type of case, available evidence and, most importantly, the caliber of the attorney you hire to represent you.  For example, experienced lawyers know how to investigate and stage a case to settle while, at the same time, are preparing for trial should settlement negotiations fail.  Also, insurance companies often force a law firm with an unproven track record to try a case with the hope that it will discontinue the action on the eve of trial, or make a mistake in the courtroom that results in a loss or a limited damage award.  At Bottar Leone, PLLC, we prepare every case for trial because we believe that the threat of trial is what forces insurance companies to pay full value.  To discuss whether your case case will go to trial, contact us.

25. What is my case worth?

We cannot tell you here.  To discuss the value of your case, contact us.  You may wish to view our prior results, for an idea of how similar cases have resolved (prior results do not guarantee a future outcome as no two cases are the same).