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Zone of Danger

Last year this website wrote a blog that touched on the issue of negligent infliction of emotional distress. The Court of Appeals recently wrote an opinion clarifying an issue surronding these claims: Green v Esplanade Venture Partnership, 2021 NY Slip Op 01092.

This sad story occurred May 17, 2015 when two year old Devere Green was a pedestrian killed by debris that fell from the front of a building owned by defendant. Devere Greene was in the company of her grandmother, Susan Frierson, at the time of this accident. Frierson wanted to make her own claim for damages against the defendant for emotional distress. The Court had previously held that Frierson could make such a claim if she was in the “zone of danger” and she was in the “immediate family” of the injured party.

There was no issue that Frierson was in the “zone of danger” since she was right next to her grandaughter when the debris struck. But prior cases limited recovery to a parent as part of the “immediate family.” This Court in Greene, found that a grandparent could be part of the injured party’s “immediate family.” However, the Court also mentioned there was an “emotional bond” between Frierson and Greene. Frierson was activerly involved in the child’s life with frequent visits and sleepovers at Frierson’s home.

So now this opens additional questions regarding negligent infliction of emotional distress (or “zone of danger”) cases. If an injured party is accompanied by an aunt, or a cousin, or close friend at the time of an accident, could that uninjured person that witnessed the accident make a claim for emotional distress if they have an “emotional bond” with the injured party?

Excess Insurance

“My son was seriously injured in a bicycle accident, but I was disappointed with the recovery he received because my lawyer told me there was a problem with insurance coverage. What can I do to help my son?”

All cars are required by law to carry minimun liability coverage for all accidents. Excess insurance is a term used to describe additional insurance coverage for motor vehicle accidents. If the owner/operator of a car purchased an “umbrella” policy, then the “umbrella” policy would afford additional coverage for a motor vehicle accident. If the owner of a vehicle is different than the operator, then the operator may have his or her own insurance coverage in addition to the policy covering the vehicle. If a tractor/trailor was involved in the accident, then sometimes trailors have their own policies different than the tractor which could provide additional coverage for your accident.

If your son’s case is settled, then there is nothing anybody can do.

But if your son’s case is not settled, your attorney must look for all of the available insurance covering an accident to maximize your son’s recovery. Many defendants simply do not have assets worth attaching to collect a judgment. If your son did obtain a large monetary judgment against the driver that struck him, bankruptcy laws will allow the defendant to discharge that debt through bankruptcy. Your son may be in better position if he had settled his case for the available insurance coverage. But your attorney must look for all available insurance coverage.

Res Ipsa Loquitor

“My wife had a minor surgery several weeks ago, but she developed an infection that nearly cost her life. Can I sue the hospital for malpractice?”

If your wife’s infection occurred during her surgery and there were no surgical mistakes that increased the risk of infection, then generally, the answer is no, your wife cannot sue. Infection following a surgery is considered a foreseeable risk of most procedures, and thus, your wife would have no case.

However, if the surgeon left something in your wife to cause her infection, like a surgical sponge, then the hospital and doctor would be liable under a legal theory named res ipsa loquitor. Basically res ipsa loquitor holds people accountable for actions that do not ordinarily occur in the absence of negligence; for actions that are in the total control of the surgeon and hospital; and for actions not due to any conduct of the injured party. Obviously, your wife was under anesthesia so she had nothing to do with anything involving the surgery. The surgeon and hospital were in complete control during the operation. Finally, leaving surgical tools, like a sponge, inside a patient would be considered negligent.

If the doctor leaves a surgical sponge inside the patient, a jury can infer negligence against the doctor and hospital without expert testimony and award damages to the plaintiff in a court case. But each case can be different and more details of the surgery would be necessary to give a better answer.

Adulerated Food

“I had ordered some food from a restaurant that normally did not serve take out.  After I ate, I found myself feeling sick within 30 minutes. Things got so bad, I ended up in the emergency room. Although I feel better now, can I sue for my medical bills?”

The short answer is yes. Agriculture Law sections 199-a and 200 proscribe labling and prohibit the sale of food with bacteria or some other additive that will make people sick. Violation of these statutes will give the victim the right bring to a lawsuit for personal injuries as well as medical bills.

You should try to document your purchase of food by saving the receipt from the restaurant. If you have any left over food from your purchase, you can save it in a zip lock bag. Your attorney will help you obtain other documentation for your claim. If you are a person that takes pictures of your food to post to social media, please let your attorney know.

Pre-Action Discovery

“I believe my mother was mistreated in her nursing home before she passed away. I have tried to obtain my mother’s medical records to find out what happened, but the nursing home is giving me the run-around. Can I sue for wrongful death for my mother?”

Your instincts were absolutely correct when you tried to obtain your mother’s medical records. Unless you were at the nursing home full time and have a medical background, there is no way to really know what happened to your mother in the nursing home. The medical record is a very good place to start because the record usually contains clues about your mother’s physical condition before she passed away.  From those clues about her physical condition, you might be able to make inferences about what happened to her in the nursing home before she passed away.

If you are the fiduciary for your mother’s estate, you have an absolute right to her medical records.  If the nursing home will not give you a copy of her records upon presentation of a HIPPA conformed authorization and the fee for copying said records ($.75 per page is allowed by law, under PHL  17), then you can bring an action in Supreme Court for pre-action discovery under CPLR 3102(c).  Essentially you are asking a judge to make an order compelling the nursing home to release your mother’s records.  If the nursing home still does not release the records after you get a court order, then the nursing home is in contempt and the judge can start coercing the nursing home to turn over records. The judge has a number of options for parties in contempt starting with monetary penalties.

Once you get the medical record, unless you are in the medical field, you will have to hire a forensic medical expert to review the medical records to determine if your mother was mistreated in the nursing home.