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.
March 5th, 2013
After five years of litigation, a HoganWillig client was finally compensated by the State of New York for the nearly fourteen years they were imprisoned for a crime that they did not commit. The client’s 2.7 million dollar settlement with the State of New York stemmed from a claim under Section 8b of New York’s Court of Claims Act. The client became eligible to file a claim under Section 8b after their conviction was overturned in 2007.
In New York, relief may be obtained on the basis of either a pardon granted for innocence or because a conviction was overturned for either factual innocence (the facts alleged in the indictment were not committed by the claimant) or legal innocence (the facts alleged did not constitute a felony or misdemeanor).
New York’s Court of Claims Act §8-b
The basic requirements for recovery eligibility under Section 8-b:
- Conviction and subsequent imprisonment for one or more felonies or misdemeanors against the state which the claimant did not commit.
- The claimant must establish by documentary evidence that a.) he/ she has been pardoned on the grounds of innocence; or b.) his/her judgment of conviction has been vacated or reversed and the accusatory instrument (indictment) has been dismissed.*
- If a new trial was ordered, the claimant was found not guilty.
- The claimant must show that his/her own conduct did not cause or bring about the conviction
- A claim must be filed within two years following pardon or dismissal
*Not all bases for vacatur, reversal, or dismissal permit recovery under Section 8-b. The client’s vacatur was based on new evidence, specifically DNA evidence. Section 8-b permits recovery for a conviction vacated on the basis of new evidence. Section 8-b DOES NOT permit recovery for convictions reversed or vacated on the basis of ineffective assistance of counsel.
While the Court of Claims Act §8-b provides a means of recovery against the state in the New York Court of Claims, there are other methods of recovery. For example, an individual who has been wrongfully incarcerated and later exonerated can seek damages from other parties in federal court under the Civil Rights Act.