New York Injury Talk Blog

The British press is full of reports today about a young girl there who plans to travel to China for stem-cell treatment of her cerebral palsy. Shonia Tahiliani is eight, but she can’t walk or sit upright and can’t speak, even though she understands two languages. Her parents are raising 18,000 British pounds -- more than $35,000 -- to send her to Tiantan Puhua Neurosurgical Hospital in Beijing for stem cell injections. These stem cell injections are the only known treatment for cerebral palsy (CP), which until recently was thought to be untreatable. The news comes on the heels of an announcement from the hospital that their treatment of another European CP sufferer, 19-year-old Gabor Bocskai from Hungary, has been wildly successful. The stem cell therapy has allowed Bocskai to abandon his wheelchair for a walker, after a lifetime of thinking he’d never walk at all. It has also improved his speech, vision, handwriting and mental clarity.

These events are very exciting because they may vastly improve the lives of Cerebral Palsy sufferers, some of whom we’ve had the privilege of representing here at Wingate, Russotti & Shapiro. Cerebral palsy is always caused by brain damage, due to an illness or injury in utero, oxygen deprivation during birth and occasionally a serious illness or traumatic brain injury after birth. It’s a lifelong impairment -- victims are unable to fully control how they move, which causes problems with major life skills like walking, fine motor skills like writing with a pencil, speaking and eating. It also causes seizures, mental impairment, and partial blindness or deafness.

The article doesn’t say how Shonia Tahiliani contracted CP, but here in the U.S., about twenty percent of children with CP acquire it because of a birth injury, according to United Cerebral Palsy. That’s one-fifth of the 764, 000 CP sufferers in the U.S. -- more than 150,000 people who’d be perfectly healthy if it weren’t for someone else’s mistake. They will need lifelong medical care, and many will need lifelong assistance with daily tasks. As you can imagine, this can be quite expensive, nearly unreachable for an ordinary family like the Tahilianis -- as is the Chinese stem cell therapy. We’re proud to have won millions for children who have CP due to a birth injury. Money won’t solve their problems, but it can get them the care they’ll need throughout their lives.

Here's a welcome break from the usual round of medical jargon about Erb's palsy: injurednewborn.com, a site set up by Francine Litz, the mother of a daughter with a birth injury to her brachial plexus. (In short, obstetric brachial plexus injuries leave children with one arm weakened or useless, often dangling limply with the hand turned backwards. It sometimes clears up on its own, but is often a lifelong disability that requires multiple surgeries and physical therapy. The injury is almost always caused by too much pulling by doctors during birth.) Injurednewborn.com is written by a mother, not a doctor, making it more accessible to the families who suffer this disability. Litz is angry and thorough, offering extensive advice for parents of babies with brachial plexus injuries as well as advice for expectant women on how they can avoid brachial plexus injuries and other birth injuries. (She also touches on injuries the mother can sustain due to medical malpractice during a birth.) She's obviously done her research; she mentions some of the common maneuvers that doctors should try when faced with shoulder dystocia, the obstetric emergency that commonly causes brachial plexus injuries, as well as more drastic strategies like performing a C-section or breaking the mother's pelvis.

Litz also points visitors to her site to this slideshow of children who have brachial plexus injuries and information about the condition.

New Jersey Gov. Jon Corzine has become a believer! Or at least, he's pretending to be one. From an article published this week, we learned that Corzine plans to use his experience as a survivor of a serious auto accident, in which he did not wear a seat belt, to help show others why that's a really bad idea. He taped a public service announcement on May 15 about the importance of wearing seat belts -- which he had to do from home, in a wheelchair, because he broke one leg, 11 ribs, his collarbone and his sternum in the accident, which was caused by another driver who swerved into his lane, forcing Corzine's vehicle into a guardrail. The New Jersey state trooper who was driving wore a seat belt and was able to walk away from the accident with only minor injuries.

"I thoughtlessly had not put on my seat belt, and it's a steep price to pay," Corzine said. While he said he will now always wear his seat belt, Corzine said riding without a seat belt wasn't uncommon for him.
"I'm one of those old guys that grew up where it wasn't a part of the habit, but there's no excuse," Corzine said. "I've been yelling at my kids for years about it. It was wrong, and I'm paying the price."

We're glad he sees it that way. We've handled thousands of auto accident cases, at Wingate, Russotti and Shapiroand we can assure you from that firsthand experience that seat belts make a big difference in the severity of injuries you could sustain in an accident. (Seat belt users show consistently lower rates of death and serious head injuries than nonusers. The federal Department of Transportation has collected a lot of information on the subject here.) Seat belts can also help your case if you should decide to file a personal-injury lawsuit after the accident. New York is a "pure comparative fault" state, meaning that anytime you sue someone for negligence (carelessness), the money you collect can be reduced if the jury decides that you were also negligent and it contributed to your injuries. Even in Corzine's case, where the other driver pretty clearly caused the accident, he wouldn't be able to claim 100% of the damages he could win, because he bears some fault for his own injuries for not wearing the seat belt. However, not wearing a seat belt is a lot less negligent than driving into oncoming traffic, so he'd probably be assigned much less than 50% of the fault -- assuring him of collecting the majority of the money. That's if it had happened in New York; New Jersey has a slightly different way of assigning liability that could have left Corzine with even less money in our hypothetical lawsuit. In any case, Corzine is fortunate enough to have his own resources and those of the state of New Jersey at his disposal, so unlike many car accident victims, he doesn't need to pursue auto accident litigation to cover his medical bills, repairs or time off work.

One of our partners, Kenneth Halperin, was quoted recently in an article about Jessica Hinkmon, the woman who fell into a Manhattan sidewalk grate while walking to work this month.

"It sounds like someone was probably negligent," said Kenneth Halperin, a lawyer at Wingate, Russotti & Shapiro.... "I'm sorry, but you just can't have people falling through the sidewalks in the city of New York."

Con Edison has already begun investigating how the sidewalk grate became so defective that one person’s weight could cause it to collapse.

New York City is full of pedestrians, which means we have more than our fair share of pedestrian accidents. While we think the above article overstates the reasons to be afraid while walking through midtown Manhattan, accidents do happen. We’ve successfully litigated many New York pedestrian accidents, including one in which a man walking his dog was seriously injured by a driver who later pled guilty to a DWI; it settled for $2.5 million. Just because there was no car involved in Ms. Hinkmon’s accident doesn’t mean that she couldn’t recover significant damages, if she chooses to pursue them. In fact, we’re willing to bet that the defective grate was the fault of a government agency or a business, in which case she would be suing an organization with more insurance than many drivers -- as well as a legal duty to anticipate and avoid situations like this.

We wrote recently in this space that pet owners affected by this spring’s huge pet food contamination scandal should avoid rushing to settle with Menu Foods, because they may get a better deal if they file a product liability lawsuit. Well, it looks like the company is not just offering consumers a bad deal -- it’s also trying to illegally harass them into accepting it, through their insurance adjustor, Crawford & Co. A USA Today article last week said Menu Foods is actually bullying pet owners to try to get them to settle:

At a previous hearing on Friday, May 18, the judge had cautioned Menu and Crawford that they should not contact people who had joined one of the lawsuits against the company. Legally, Menu cannot contact those plaintiffs directly but must go through their lawyers.

But in affidavits presented in court Wednesday, pet owners said they received calls that weekend from Crawford representatives who pressed them to answer questions even after being told the owners had hired lawyers. In some cases, the pet owners also received multiple calls from Crawford's computerized phone banks after telling representatives they were represented by attorneys, according to the affidavits.

"Menu's representatives asked owners to sign releases which waived their right to get advice from a lawyer," said attorney Jay Edelson in an interview.

It gets better. The judge in this case, U.S. District Judge Noel Hillman in New Jersey, has ordered Menu to have no contact at all anymore with affected consumers. He had some pretty harsh words for the company in a transcript of court proceedings last week: "It seems to me that Menu Food is out to do whatever Menu Foods wants to do in a way that could adversely impact the rights of possible members of the class action suit.”

Continue reading "Contaminated Pet Food Manufacturer Shoots Self In Foot" »

WABC is reporting that a "horrible truck accident" took place this morning (May 17) in the Bronx between a tractor-trailer and a truck cab. (It looks like the truck cab may have been attached to a cement mixer, although it's hard to tell from the report.) Here are two of their photos:

The article says nobody was injured (though of course, it'll mess up traffic in the area, at least for today). If so, kudos to the driver of the smaller truck for thinking quickly enough to escape in time, because it looks like the cab of the truck was flattened. In fact, this accident illustrates the fundamental safety problem with large trucks: the laws of physics say that in a collision between two vehicles of unequal size, the smaller vehicle always loses. Passenger vehicles are designed to withstand an impact with another vehicle of equal size -- not a larger vehicle, whose weight brings significantly more pressure to the accident. That's why a collision between a large truck and any private passenger vehicle will probably result in death or serious injury to the people in the private car. And as you can see, even large trucks of unequal sizes aren't immune.

Of course, professional truckers have training and experience that's supposed to keep them from getting into accidents. But it doesn't always work that way, as some of our clients have, unfortunately, found. We were able to win $550,000 for one client who was hit by a turning tractor-trailer while she was stopped at a red light, causing spinal injuries as well as damage to her car. Between two economy cars, that probably would have been just a minor accident, if it had occurred at all. And that's why truck drivers -- and the companies that employ them and provide the trucks -- have a legal duty to be careful when they share the road with oprivate vehicles.

May is National Motorcycle Safety Month, a fact that has probably escaped most of America. We haven't seen many public service announcements about it. However, the National Highway Traffic Safety Administration -- the federal organization that researches and educates the public on transportation safety -- has launched a "Share the Road" campaign with some timely reminders about the vulnerability of motorcyclists.

While we doubt the biker in that picture would appreciate being described as soft and squishy, they have a point: Motorcyclists are some of the most vulnerable people on the road. The fact sheet (MS Word format) that accompanies the NHTSA's ad campaign repeats the often-quoted statistic that 80 percent of motorcycle accidents result in the death of the rider or a passenger, whereas only 20 percent of car accidents result in the death of the driver or a passenger. It makes sense: when you get into a car, you're getting into a safety-engineered cage of steel that has seat belts and air bags to cushion you in an accident. When you get on a motorcycle, there's very little to protect you and nothing at all to keep you from being thrown from the vehicle. And the fact sheet says that 40 percent of multi-vehicle motorcycle accidents are caused by drivers turning left in front of riders they "never saw." That's why "sharing the road," the theme of their campaign, is not just a pretty phrase to motorcyclists.

As you might imagine, motorcycle accidents are ugly. The number of deaths and head injuries from motorcycle accidents has gone down since the 1970s due to helmet use, but riders almost always end up with broken bones and severe cuts and scrapes. The unlucky ones also get spine, head or internal organ injuries that take months and hundreds of thousands of dollars to treat. We represented one motorcyclist who had a single-vehicle accident due to gravel in the road, causing him to spin out and lose control of his bike. He broke his collarbone and his foot and tore his rotator cuffs, which are muscles of the shoulder that you need in order to lift almost anything. We won $200,000 for that client, but we're quite sure he would have preferred to have his body and his bike in working order.