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.

Monetary Value of Personal Injuries

“How does a judge determine the amount of money to award in a personal injury lawsuit?”

A Court awards “fair and reasonable” compensation for the injuries sustained. This does not really seem like an answer, but the question is too vague to give a better answer. The best I can really do is to briefly explain the process that a court uses to determine monetary damages.

Although a judge can make awards for personal injuries, most cases are decided by juries. In New York, six people decide the amount of the award and only five have to actually agree on a number. The jury listens to testimony, reviews photographs, looks at medical records, and listens to doctors testify about the injuries. After attorneys present all of the evidence, the trial judge reads a set of jury instructions. Jurors go to private room where they talk amongst themselves to discus the evidence and the jury instructions.

The judge instructs the jury to use their common sense to award “fair and just” compensation. There is no magic formula, no schedule of injuries to guide a jury explaining what to award based on the body part or severity of injuries.

Judges have the power to over rule juries to lower outrageous verdicts (called remittitur) or to raise unconscionably low verdicts (called additur).  Appeals courts can also raise or lower verdicts based on prior cases of similar injuries.

This is far from inexact science. That is why many times parties end up settling cases at a figure both sides can live with.

Worker’s Compensation Discrimination Claims

“Can I be fired for making a Worker’s Compensation Claim?”

The short answer is no.  But there are many practical problems making a claim against an employer who may fire an employee for filing a Worker’s Compensation Claim.

First, the burden of proof is on the employee (not the employer) to prove discrimination. (In Worker’s Compensation, the employer has the burden to show the employee is NOT covered by Worker’s Compensation.) This is a significant problem, because the employee would need to show some kind of evidence demonstrating discrimination.

Second, employers are not required to keep a position open for an employee who is out on a Worker’s Compensation Claim. If you work for a small businesses, then you may not covered by the federal Family and Medical Leave Act (FMLA). If you work for a larger business you are probably covered by FMLA which means that your employer cannot fire you for being absent due to a serious health condition which keeps you from working 12 weeks out of a 12 month period.

Third, if you work for a large business and you are out more than 12 weeks, then the employer does not have to keep your position open. The only exception would be if the employee is covered under a union contract which protects the employee’s job beyond 12 weeks.

All discrimination claims should be made within 2 years from the date of discrimination with the Worker’s Compensation Board.

Personal Injury and Worker’s Compensation

“What does my Worker’s Compensation claim have to do with my law suit for personal injuries?”

The question is not specific about the type of case you have. There are many different types of cases that have both a lawsuit and a Worker’s Compensation claim. This article will cover two of the more common types of claims.

One type of case occurs when a person is injured in a motor vehicle accident on the job. A person who is making a delivery on the job would be a typical case. When that person is injured making a delivery they have two potential claims. One claim is for medical expenses and lost wages through Worker’s Compensation paid for through the employer’s insurance carrier. A second claim for pain and suffering is made against the wrong doer who caused the accident. A person who makes a claim for pain and suffering cannot collect a settlement without the consent of the Worker’s Compensation carrier. In the case of a motor vehicle accident, that consent is easily obtained as long as the Compensation carrier pays the same benefits as motor vehicle no-fault insurance carrier.

A second type of case occurs when a person is injured on the job in a trip and fall accident. A construction worker who falls at a construction site would be a typical case. That construction worker also has two claims. One claim is for medical expenses and lost wages through Worker’s Compensation paid for through the employer’s insurance carrier. A second claim for pain and suffering is made against the wrong doer who caused the accident. In a construction site accident, that wrong doer is typically a general contractor. In the case of a construction site accident, the Compensation carrier has a lien on the recovery from the personal injury suit. Your attorney can work to reduce that lien, but section 29 of the New York Worker’s Compensation Law entitles Compensation Carriers to the lien and the injured worker risks obtaining Compensation benefits in the future if the lien is ignored.

There are many more details left out of this discussion, but you should know that there is a relationship between Compensation claims and personal injury claims because the legislature said so. To ignore this relationship could jeopardize future Compensation benefits.