Irene H Gabo Answers Audience Questions on “Good Morning” Show on Davidzon Radio 620AM

Irene H Gabo answers Audience Q&A on Natasha Bystritskaya popular “Good Morning” show on Davidzon Radio 620AM. The areas covered included medical malpractice, experimental drugs, late lawsuits, subway injuries, and more.

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Q&A Transcript

I signed a consent form prior to a surgical procedure. Can I still sue for medical malpractice?

Lets start with defining consent, which essentially refers to the physician being required to tell a patient of all potential benefits, risks, and alternatives involved in the surgical procedure. The physician is required to go over the risks with the patient so they go into the decision well informed and prepared for anything. An explanation of every single element involved in a procedure from as simple as a blood draw to extreme as a life-saving surgery remain necessary and relevant. The physician must also be able to identify if the patient has the capacity to make their own decisions and act accordingly. A physician must obtain the patient’s written consent to proceed only after disclosing all risks. So yes, there is still a chance that you may be able to recover damages. A consent form, in no way, releases a physician from liability in the case that they have performed a procedure in a negligent fashion. If you can establish that your doctor deviated from the applicable standard of care in performing a procedure, and you happened to be injured as a result of such, you may still recover against him or her. Once again, it is best to do so in a timely fashion as all of the information is still fresh and can be easily obtained as evidence.

Doctor prescribed a drug to me for treatment, but didn’t tell me the drug was experimental. Do I have a case?

Your physician has many duties, one of which is full disclosure on your treatment plans. Likewise, they had a duty to tell you that the drug prescribed to you was part of an experimental program in which you had the right to refuse to participate. You may have grounds for an action against your doctor based on his or her failure to obtain your “informed consent” as we just discussed. It is the physician’s duty to inform his or her patients of any studies undertaken with usage of this drug and disclosing all the risks involved in its usage. Question is of course, what injuries you sustained as a result of taking this medication, and how serious they are.

My husband was hurt in a car accident about two years ago and recently passed away. I don’t think the lawyer put the case in suit yet. What happens now?

The death of the victim before a lawsuit is brought should have no effect on whether or not a suit can be brought, or how successful it will be. Most people have families, and those families may have depended on the victim for their living expenses. If that is true, they have the right to sue in order that they may maintain their reasonable standard of living. Or, the victim may have left a will appointing another party as her heir. In that circumstance, the heir has every right to sue on behalf of the deceased. These rules continue whether or not the deceased’s death was related to the accident involved in the lawsuit.

What needs to be done is a representative of the deceased’s estate must be appointed. An administrator, if the person died without a will, or an Executor, if the person died with the will. Once a representative is appointed, he or she will be able to bring an action on behalf of the deceased victim. In the end, when the case settles, that person who handled the affairs of the deceased in the court may be entitled to commissions for the work perform that the court may grant him or her.

I was injured on the subway, but I don’t know when MTA is liable or not. Can you give me more information on when I can sue them?

The MTA is the parent company of the New York Transit Authority, who controls the New York City Subway. It is the responsibility of these companies to make sure their operators and staff are adequately trained and capable of getting passengers to and from their destinations safely. They are also responsible for making sure facilities and subway cars are maintained and functioning correctly. When an accident involves faulty car doors, car collisions, slips or falls in a subway car, falling onto the tracks, sudden car stops, or a number of other circumstances associated with car maintenance or staff training, you can most likely believe that the MTA is liable. Make sure to remember that there is limited time to file a Notice of Claim against MTA and the time to start a lawsuit is much shorter. A Notice of Claim against the MTA must be filed within 90 days from the date of the accident. The statute of limitations is 1 year from the accrual of injury.

Will I have to go to Court when I file a lawsuit for a car accident?

This is a major concern of many busy people who do not have the extra time to go to court to present their case. Fortunately, it does not have to be a concern, as many personal injury cases are settled out of court between you, your lawyer, and the party from whom you are seeking financial compensation. However, every case is unique to the parties involved and circumstances of the case. There are insurance companies that are difficult to negotiate with without a lawsuit, sometimes even a trial, such as CountryWide and American Transit, which insure many taxis and limos. In these cases you have to start an action, appear for your deposition, and medical exams and possibly testify at trial unless it is resolved before.

I was riding a bicycle and fell. I was hurt but I didn’t wear a helmet. Can I bring a case?

Yes you can is the short answer. In New York State only all bicyclists under the age of 14 are required to wear safety certified bicycle helmets. Children one to four years old must also ride in specifically designed child safety seats. Children under one year of age are prohibited from being transported on a bicycle. A violation of the law is subject to a fine of up to $50. But this does not applies to upstate counties. For example, certain communities in New York have passed local ordinances regarding helmet use for bicyclists. For example, as of September 2013, Rockland and Erie counties require everyone riding bicycles, regardless of age, to wear approved bicycle helmets.

I had a car accident few weeks ago and the insurance adjuster now calls me non-stop for a statement. What do I do, give it to him?

When accidents occur, it is common for an insurance company to ask you to make a recorded statement with an insurance adjuster. It is never wise to do so without having consulted your attorney first. If you decide to do so without an attorney’s advice, you should keep certain facts in mind. Insurance adjusters are trained to discreetly influence you into saying something that would insulate their company from liability, or limit your claims. Also, any recorded statements made to an insurance adjuster might be used against you in any related litigation. The ultimate cost of this to you could be hundreds, or even thousands, of dollars.

In most instances, making a recorded statement with an insurance adjuster proves harmful to your interests. These statements are usually requested immediately after the accident, when you may not fully know or understand the full extent of your injuries. Once a recorded statement is made, it might be difficult for you to correct or explain your words afterward. For these reasons, it is always best to consult with an attorney on how to handle an insurance adjuster before making a recorded statement.