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Medical Malpractice and Personal Injury Articles and Updates

Careful early case analysis and aggressive case selection are the hallmark of the Kuehner Law Firm. This article has an overview of how we undertake a client’s case, Topics  include pre-trial discovery, getting your case on the court calendar, the trial process and appeals.

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The "value" of your case depends on many factors, such as the extent of your injury, the amount of your medical bills, and your condition after you have finished treatment.

The calculation also involves the ability of the other party to pay a judgment, whether you played any role in causing the accident or that the other party is responsible.

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Section 5102(d) of the New York State Insurance Law defines seven standards for a serious injury which must be met for a person to succeed in a lawsuit related to car crashes.  Therefore, a person must satisfy at least one of these seven definitions before he or she can pursue a lawsuit. The court will look at several key issues in assessing an injury.

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Even though many cases settle before trial, this does not usually happen until both sides have prepared the case. Generally, lawsuits take about two years from filing to trial.

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Case costs are money that we pay out to others in order to get your case ready for trial. Examples would be the filing fee required by the court and expenses for depositions and experts. Case costs vary depending on the complexity of the case, but we always have an up-to-date balance available if you want it. We will be happy to answer any of your questions about fees or costs before you decide to hire us.

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A Medical Malpractice case is a type of negligence case. A successful medical malpractice case requires a showing that that a doctor/hospital/medical employee caused the plaintiff's injuries by failing to act as the reasonable doctor would. 

The medical malpractice case has four basic elements...

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The term “contributory negligence” is used to describe the actions of an injured person that may have also caused or contributed to his injury. For example, if you were hit by a bike while crossing the street, but you jumped into the street without looking first then your carelessness will be taken into consideration and any money that you receive may be discounted because of your own carelessness. If you are found to have contributed to your own injury, the rules in some states will prevent you from collecting any money. Many states have done away with the concept of contributory negligence altogether and instead use the concept of “comparative negligence.” Comparative negligence looks to the degree of fault of each party in determining whether an award is justified in the case and what amount the award will be.

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We charge on a contingent fee basis. That means you will not pay us anything unless there is a settlement or a winning verdict at trial. Typically, when we win your case, our fee is one-third or 33.3% of the total recovery, in addition to "case costs." Medical malpractice cases are less due to regulations from the courts that limit legal fees from 30% down to 10% depending on the size of recovery for the client.

Some persons or companies may be held “strictly liable” for certain activities or products that harm others, even if it can’t be shown they acted negligently or with intent. This theory is important because it protects the community from dangerous products or activities and provides relief for injuries. Strict liability is applied to two different situations which the public should be made aware. These are strict products liability and liability for people engaged in “ultra hazardous activities.”

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The term "premises liability" generally refers to accidents that occur due to the negligent maintenance or unsafe or dangerous conditions upon property owned by someone other than the accident victim. Many states have laws that generally require landowners to maintain their property in a manner that does not cause injury to those that, for various reasons, visit the property. Often, these laws pertain to both business owners and homeowners. In many states, property owners and business establishments have been found to have a duty to provide a safe environment for individuals on their premises.

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If you file a personal injury lawsuit, the attorney for the defendant will likely “depose” you or take your deposition.  A deposition is the process in which the defendant’s attorney asks you questions about the accident and your answers are recorded.  You swear to tell the truth before you answer.  A deposition is usually done in a conference room.  Later, if you testify in court, your answers will be compared to your deposition testimony and the defendant will question you as to any inconsistencies.

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If you have knowingly and voluntarily assumed the risk inherent in a particular action that caused an accident, you cannot sue the other person for negligence if you get hurt. For example, if you see a sign that says “do not touch – hot” but you touch the object anyway and burn your hand, you may be found to have “assumed the risk.”  This would prevent you from recovering any money.  Another common example of assumption of risk is participation in a sport in which certain risks are inherent to the game. For instance, if you are playing football and you get tackled and break an arm, you may not sue the person who tackled you. On the other hand, if you are playing tennis and a fight breaks out and you are hit in the head with a racket, you may be able to sue the person who hit you, since the assumption of risk does not cover any injury that was intentionally inflicted and not an inherent part of the game.

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In its most simple definition, it means that someone was careless and as a result of being careless, someone else was injured. Negligence serves as the basis for a personal injury lawsuit.  Negligence is any conduct that falls below the recognized standards of behavior established by law for the protection of others against unreasonable risks of harm. A person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under the same or similar circumstances. To establish negligence, a plaintiff (the person injured) must be able to prove or demonstrate in court that the defendant (the person being sued) had a duty to the plaintiff, the defendant breached that duty by failing to conform to the required standard of conduct, the defendant’s negligent conduct was the cause of the harm to the plaintiff, and the plaintiff was, in fact, harmed or damaged.  For example, the driver of a tractor trailer truck hauling a large piece of machinery owes a duty to other drivers on the freeway to be careful.  If the truck driver failed to strap down the machinery and it fell off the truck, landing on a passing car and injuring the driver of the car, a personal injury claim could be made based upon the negligence of the truck driver.

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Comparative negligence works on a percentage basis to assign a degree of fault for the injuries suffered. For example...

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If you hire us to be your lawyers, you will play a very important role in preparing and analyzing your case. We will ask you to help us gather the information that we will use to support your case. You will be informed of our plans and the important decisions will be made only after consulting with you. We may ask you to take part in a focus group to help us understand the strengths and weaknesses of your case from the perspective of potential jurors.

Just as we will keep you informed about your case, you will need to keep us informed about your medical treatment and your physical limitations. After we file the lawsuit, you will have to answer questions in writing by helping us prepare a document called a verified bill of particulars. You will also have to sit for a question-and-answer period with the opposing lawyer called a "deposition." (Of course, we'll prepare you first, find a time that is convenient for you, and sit next to you during the deposition). You may have to be evaluated by other doctors. If your case does not settle, you will have to be present for the trial.

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The information on this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.
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217 Montgomery Street, Suite 100
Syracuse, NY 13202

Phone: (315) 474-8888
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