October 24th, 2014
The digital age has created a world in which over-sharing is the norm and electronic devices are capable of storing significant amounts of one’s personal information. However, in an important step to protect the privacy of U.S. citizens, the Supreme Court has declared information on cell phones and smart phones off-limits for warrantless searches. The major exception is in cases of exigency, where immediate need to save lives justifies warrantless entry.
While law enforcement officials will no longer be able to search through the contents of a person’s cell phone upon taking that person into custody, they are permitted to do so if they obtain a warrant. With the development of new technology and devices with seemingly unlimited capabilities, the boundaries of this new ruling are sure to be tested and expanded in years to come. If you or your company has any questions or concerns regarding e-discovery related issues, please call us at (716) 636-7600.
October 21st, 2014
Not all dogs are created equal. Regardless of whether an animal is domesticated or not, it is still an animal, and even the friendliest of dogs are not exempt from the off-chance it may bite if provoked. If a dog feels threatened, scared, or senses danger, it will bite. Given this information, what is the liability of a dog owner if their dog bites a person? Is the owner automatically responsible for injuries if his/her dog bites a person? The answer is NO.
According to NYS law, it must be proven that the owner had prior knowledge of the dog’s vicious or dangerous propensities. Without such proof, the owner is not liable. Thus, it is often said that “every dog is entitled to one bite”. While it is not necessary that the dog actually had bitten someone before, he must have at least exhibited vicious or dangerous propensities before the attack. If your dog has a propensity to over-playfulness and jumping, you may be held liable if your dog injures someone when it jumps on them. Proper obedience training would be a good safeguard against a possible lawsuit, as well as keeping your dog separate from company if you know it has a tendency for jumping, excitability, or aggression.
October 17th, 2014
Many of us feel from time to time that we were not treated properly by a hospital or a doctor. The question is: When is this treatment considered medical malpractice for which one can bring a lawsuit? All doctors are required to exercise that degree of care of doctors of their specialty when treating a patient for a particular medical condition. There are certain minimum standards of care which the doctor must meet. If the doctor fails to meet this minimum standard of care, this is called a “departure from good medical practice”. If there is a departure from good medical practice, then this is what is legally called “medical malpractice.
It is important to know that all bad results aren’t necessarily medical malpractice. A doctor can exercise an appropriate degree of care, and the patient may still not recover from the injury or disease. The question, once again, is: Did the doctor exercise the degree of care which is expected of physicians in his or her specialty in treating that injury or disease? If the doctor did and there is a bad result, then this is not actionable in a court of law. A doctor is also not responsible for what is called “an error in judgment”. This means if there is more than one acceptable method of treatment and the doctor chooses treatment A over treatment B, and treatment A is not successful; the doctor is not liable as long as that treatment A is one of the acceptable treatment methods, thus; the doctor is given some leeway in exercising his or her judgment in choosing the method of treating injury or disease.
In order to pursue a medical malpractice case, the patient must produce in court an expert witness. This is a physician of the same specialty as the doctor that’s being sued who is willing to testify under oath that the doctor’s treatment was substandard. This is no easy task. Many doctors do not want to testify against fellow doctors so that oftentimes, we are required to go out of state to obtain an expert willing to testify, many times at great expense.
Because of the great expense of malpractice cases, it is common for attorneys not to accept a malpractice case unless the end result to the patient is very severe or even catastrophic.
If you think you may have a medical malpractice case, feel free to call the HoganWillig law Firm and we will provide you with a free case evaluation.
October 8th, 2014
According to a recent New York Times article, the US Energy Department projects a warmer forecast this coming winter season. After enduring frigid temperatures and higher energy costs last winter, many American consumers will spend less this winter. Because temperatures are forecast to be warmer than last winter, that will mean less demand for heat.
The Energy Department estimated in a report on winter fuels that roughly half of American households that heat with natural gas can expect a decline of 5% in their gas expenditures. Homes that rely on heating oil can expect to spend 15% less this winter because of the recent drop in world oil prices. Homes that heat primarily with electricity can expect to save 2%. But the biggest savers will be users of propane who are expected to spend 34% less this winter, because of 24% lower prices and lower consumption.
The lower energy prices should help consumers, particularly seniors living on a fixed income, who spend a high proportion of their income on energy costs. There is also assistance available to help low income New Yorkers with the cost of heating their homes with HEAP (Home Energy Assistance Program). HEAP is a federally funded program for assistance with home heating costs and energy conservation for eligible households. There may be assistance with assistance for heat and electricity costs, as well as furnace repair or replacement to keep the home’s primary heating source functional.
For 2014-2015: To qualify for assistance with heat and electricity costs, the total household monthly income for a single person must be at or below $2,194. For a two-person household, the monthly income must be at or below $2,869.
To apply for HEAP, you may contact your local County Department of Social Services. In Erie County, New York, the phone number is (716) 858-7644.
For more information regarding elder law issues, please contact HoganWillig, Attorneys at Law at (716)636-7600 or visit www.hoganwillig.com. HoganWillig’s main office is located at 2410 North Forest Road in Amherst, New York with additional offices in Lockport, Lancaster and Buffalo.
October 1st, 2014
With the start of the month of October, Breast Cancer Awareness Month, HoganWillig wants to make sure Western New Yorkers are well informed about this devastating disease. Knowledge is power and prevention is key. Here are some quick facts about the disease:
- One in eight U.S. women will be diagnosed with breast cancer in their lifetime.
- Breast cancer is the most commonly diagnosed cancer in women.
- Each year it is estimated that over 220,000 women in the United States will be diagnosed with breast cancer and more than 40,000 will die.
- Although breast cancer in men is rare, an estimated 2,150 men will be diagnosed and approximately 410 will die each year.
Every person should know the symptoms and signs of breast cancer, and any time an abnormality is discovered, it should be investigated by a healthcare professional. Most people who have breast cancer symptoms and signs will initially notice only one or two, and the presence of these symptoms and signs do not automatically mean that you have breast cancer. Be sure to see your health care provider if you:
- Find a new lump (or any change) that feels different from the rest of your breast
- Find a new lump (or any change) that feels different from your other breast
- Feel something that is different from what you felt before
If you are unsure whether you should have a lump (or any change) checked, it is best to see a provider. Although a lump (or any change) may be nothing to worry about, you will have the peace of mind that it has been checked. By performing monthly breast self-exams, you will be able to more easily identify any changes in your breast. Be sure to talk to your healthcare professional if you notice anything unusual.
What’s the good news? In the U.S., we have seen a gradual reduction in female breast cancer incidence rates among women aged 50 and older. Death rates from breast cancer have been declining since 1990, in part due to better screening and early detection, increased awareness, and continually improving treatment options. It is recommended that women 40 and older have mammograms every 1 to 2 years.
We live in time where technology is not only helping doctors detect earlier, treat, and cure breast cancer, but it can also help people become more proactive about their breast health. An app created by the National Breast Cancer Foundation called Early Detection Plan: Breast Cancer allows users to be reminded to perform a routine breast self-exam and schedule clinical breast exams and mammograms, depending on age and health history. The app also functions as a resource in which users can learn more about clinical breast exams, mammograms, risk factors, signs and symptoms, and how to perform a breast self-exam. This app can be found in the iTunes app store and is free.
September 26th, 2014
Everyone is back to school. Children are in school for a significant part of every day, and we trust schools to safeguard our children. As a parent, you should be aware that schools have a legal obligation to take reasonable steps to safeguard our children’s safety.
Many schools today have written safety protocols, but accidents can and do happen during school hours. Accidents can be caused by inadequate supervision, or defective equipment in a gymnasium. Dangerous conditions can be present in a school building due to negligent maintenance.
The issue of bullying has received much attention in the last few years. Once a school is put on notice of a bullying incident, it has a legal obligation to take steps to protect your child. Parents know their children better than anyone else, so if your child does not tell you about a bullying incident, hopefully you’ll see the signs, or notice your child is acting differently. If you become aware that your child is a bullying victim, put the school on notice immediately. You can send an e-mail to the principal, or another appropriate school official. Make sure you follow-up, and be persistent in your efforts. From a legal standpoint proof that the school had prior notice that your child has been bullied is critical. A school may not be responsible for an injury if it had no reason to be aware of prior bullying incidents.
We can answer any questions you may have. Call us for a no obligation consult; there is never a fee unless we are successful.
September 22nd, 2014
In order to position oneself to reach the highest level of success and benefits available from starting your own business, it is important to begin with a solid foundation. Starting up a business is not something that can be done overnight: months, sometimes years of planning must take place before an adequate model is in place. The majority of business owners will pronounce their support for involving a lawyer during these crucial planning stages. The result could save you hassles and money later on. There are various different legal issues you can plan for before you get your business off and running.
One of the most important business decisions an owner will make initially is whether or not to incorporate or form a limited liability company (LLC). It is important to realize that if your business is not in one of these two structures, you will be subject to personal liability for the debts of your business. With a corporation or LLC, your losses are protected to be limited to the amount of your investment in the business, rather than your personal losses exceeding the investment. If you decide that a partnership is a more suitable business plan, you will be in need of a partnership agreement. This document will cover the rights and responsibilities of the parties involved, as well as address in advance, the countless scenarios that may arise.
Many businesses arise due to the creation of a product or idea. If this is the case for your business, it may be imperative that you get a patent to protect any inventions or new processes that your business will use. Without these useful licensing documents, your competitors are likely to replicate and benefit from your idea. It may also be the case that a business owner will want to trademark the name of their business or product. Corporate and Business Law lawyers are well versed in these processes and can make sure your business is legally protected from harm.
Lastly, most businesses are not a one-man-show; they require the time and dedication of numerous employees. The terms of employment for workers are an important aspect of a business plan that should not be overlooked. Internal and external relationships the business will formulate will undoubtedly create the need for many contracts to protect the owner and business from confidentiality breaches and other definite risks. The bigger the impact of the contract is, the more vital it becomes that a lawyer participate in its formation and negotiation.
At HoganWillig, our corporate and business law team knows that business owners and entrepreneurs operating in New York State face a multitude of legal issues. Our goal is to provide practical, useful advice that proves to you the value of engaging corporate legal counsel. We provide a wide variety of legal services to our business clients, from formation to dissolution and everything in between.