Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf is a New York Plaintiff's personal injury law firm specializing in automobile accidents, construction accidents, medical malpractice, products liability, police misconduct and all types of New York personal injury litigation.

Articles Posted in Personal Injury

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FDA-logoAfter a recent study pointed fingers at the mismanagement of medical device recall by the FDA (see previous blog),  further investigations are confirming an outdated and broken system that leaves patients at risk of serious injury and death as unaware doctors continue to use defective devices on their patients.

A recent example of this outdated process is the recall of a sleep apnea ventilator device manufactured by Philips. It is not clear so far as to when exactly, Philips executives found out that the foam used to dampen the noise of the machine was breaking down and could potentially be inhaled or ingested by patients, exposing them to carcinogenic or toxic effects. However, the company announced publicly, on April 26th, while reporting Q1 earnings that it was creating a provision of 250 million Euros to cover costs related to possible risks to users in some sleep and respiratory care machines. While the company had probably already identified that the defective devices were the ones manufactured between April 2007 and April 2021, it waited almost two other months to initiate a recall and warn consumers of potential carcinogenic and toxic effects.  After the issuance of the recall, the FDA issued a safety communication on June 30. It took until July 22nd for the FDA to classify the recall as class I event and publish a public notification.

Does this mean that all patients have been contacted and had their ventilator changed? Not at all. In the actual process, the customers of the manufacturer, such as the hospitals, the providers, the retailers or the distributors are in charged of contacting the patients and they usually don’t do it.  Instead, doctors wait for the patients to come in with symptoms.

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Haunted Houses can cause injuryIf you ran  away from a scary character in a haunted house,  hit a wall and broke your nose, even the best personal injury lawyer will probably not be able to get you compensation because of  what is called “the assumption of risk”. The assumption of risk is a legal doctrine under which an individual is barred from recovering damages for an injury sustained when he or she voluntarily exposed him or herself to a known danger.

When you or your children, enter a haunted house you know that you might be scared and as a result have irrational behaviors that might result in injuries but you agree to take this risk. Therefore if you suffered injury as a result of being scared, it will be difficult to sue the haunted house for damages.

Over the years, some people have tried anyway but most of them lost their case:

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8 pedestrians, 3 cyclists, 4 motor vehicle passengers, and 13 motor vehicle drivers died in auto accidents in New York City during the month of July. Usually, monthly pedestrian deaths account for the largest share of the road fatalities in New York City but since the pandemic started, monthly motorist deaths often account for the biggest part of the motor vehicle accident fatalities in the city. As a result of this increase in motorist fatalities, since the end of the lockdown, the number of auto deaths was above 20 for 9 months out of 14. As a comparison, in 2019, it was above 20 only twice during the entire year and in 2018, only once during the entire year. Speed and recklessness have been a factor in many of these deaths as well as an increased amount of New Yorkers travelling by car instead of public transportation because of Covid19 fears.

Car accident deaths by road users in New York July 21
NYC traffic accident deaths in the month of July reached their highest since July 2014 with 28 fatalities. Since June last year, road fatalities have been out of control in New York City. For the 4th consecutive month, auto accident fatalities remained above 20 and significantly above the trendline. These high numbers of fatalities had not been seen since 2013 before Vision Zero started.

Auto accident deaths NYC July 2021

Traffic accident injuries lower than before the pandemic

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A total of 5 construction workers lost their life on the job in New York City between April 1st and June 31st . Since 2015, this is only the second time that construction fatalities recorded by the NYC Department of Buildings during the second quarter reached such a high number. The other time was in 2019. 2 fatalities occurred in Brooklyn, one in Manhattan, one in the Bronx and one in Queens. 3 of the fatalities were falls and two were related to mechanical construction equipment. The last two weeks of May were particularly deadly. On May 19th, at around 8:20 am, two workers were cleaning debris on the 5th floor of a construction site located at 20 Bruckner Boulevard in the Bronx. They loaded a new elevator car with the debris, got in the car with the debris and proceeded to head downstairs. The elevator had a mechanical failure and the car fell from the fifth floor. One of the workers was pronounced dead at the scene of the accident and the second was injured and transported to the hospital. Three days later in Queens, a deadly accident occurred when two workers were instructed to use an extension ladder from the sixth floor chimney shaft to the roof. One of the workers said he heard a “crush sound” as he was at the second or third step of the ladder and turned around, he didn’t see anything so he kept going and took the ladder by himself to the roof. His colleague was found dead almost two hours later on the second floor. He had fell in an elevator shaft. 5 days later on May 27th, a hard hat who was working on a roof during a demolition job, fell to his death at a construction site located at 1045 Flatbush Avenue in Brooklyn. Two other workers died earlier in April, one of them came in contact with a live wire and was fatally electrocuted on a Manhattan construction site located at 555 West 22nd Street and the other one fell to his death from a dangerous scaffolding installation at a construction site located at East 53rd Street in Brooklyn.  These recent fatalities were so alarming that the DOB organized a massive sweep of all major construction sites in the city and temporarily closed hundreds of them for not respecting safety standards. (see previous blog).

Hard hat fatalities NYC Q2 2021
Falls remain the number one cause of fatal construction accidents in New York City. Again during Q2, 3 of the 5 fatalities were fall. Most of the time fall fatalities are the result of negligence by the contractor and could have been prevented. Fatalities often occur on sites that have a history of violations and complaints, for example, the construction site located at 1200 East 53rd Street in Brooklyn has so far recorded a total of 30 complaints, 50 DOB Violations including 8 open and 40 OATH/ECB violations including an open one for failing to notify the DOB after the death of the worker. A stop work order is still active at this location. The site located at 45-18 Court Square in Queens previously logged in 53 complaints, 54 DOB violations including 3 open and 39 OATH/ECB violations including 11 open. Before the deadly accident occurred at this site, the contractor was fined for failing to safeguard all persons and property affected by construction operations. This violation is still open. The same goes for the site located at 1045 Flatbush Avenue in Brooklyn which as of Today has a stop work order with 20 OATH/ECB violations open, most of them of the highest severity. Hard hats working on construction sites that are unsafe have a much higher risk to die in a construction accident.

Construction worker fatalities by type of accidents Q2 NYC
The number of construction workers injured on the job was a little lower than usual during the second quarter. A total of 144 workers suffered injury in construction accidents in New York City during the 3-month period of April, May, June 2021 compared to respectively, 68, 150, 233, 170, 171 and 134 during the same period of 2020, 2019, 2018, 2017, 2016 and 2015.  Last year the numbers were lower because of the Covid19 lockdown and we can not compare them to any other year. Manhattan had the most injuries, followed by Brooklyn, Queens, the Bronx and Staten Island.

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floodFlooding and cleaning up damages after a flood can be dangerous and cause accidents that can result in severe injury and sometimes death. Here is a summary of  the most common dangers and how to avoid them.

Driving a vehicle during a storm and after a storm can be dangerous especially crossing flooded roads. It is estimated that half of the fatalities caused by flooding are people in a vehicle. Crossing an area flooded by water in a vehicle can be deadly. 12 inches of water can carry off a small vehicle and 18 to 24 inches are enough to move a larger vehicle.   It is much safer to turn around rather than risk your life driving your car through a flooded road. If the water raises around your car, you should be ready to abandon it.

Down and damaged power lines create electrical hazards and only qualified workers should perform repair work after proprely evaluating the dangers and de-energizing lines if possible. Even for qualified workers, repairing power lines damaged by a storm can be dangerous. Most common accidents related to damaged or down power lines are electrocution by contact or burn caused by electrified lines, workers falling from heights during repairs or people being struck by a falling pole or other objects falling with the pole such as tree limbs.

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Marion and Aristides victims of terrorist attackWe would like to warmly congratulate two of our clients, Marion Van Reeth and Aristides Melissas for their amazing performance last July, climbing Mont-Ventoux, one of the most difficult climbs of  Tour  de France!

The couple who suffered critical injuries during the terrorist truck attack that took place on the Greenway, downtown Manhattan on October 31st 2017,  were among 10 other victims of  terror attacks who climbed Mont-Ventoux on July 6 ahead of the Tour the France cyclists to support victims of terrorism and call for worldwide solidarity and generosity.

A symbol of the long fight that terror victims endure while recovering from their injuries and trauma, the climb marks the 20th anniversary of the 9/11 attack in the US and the 5th anniversary of the Brussels and Nice attacks and was organized by Tour the France with Association Française des Victimes du Terrorisme and V-Europe.

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New York City Medical Malpractice Lawyer of the Year 2022 Richard SteigmanCongratulations to our partner Richard Steigman for being named 2022  Best Lawyers®  Medical Malpractice – Plaintiffs “Lawyer of the Year” in New York City.  This is a very prestigious designation and we are very proud of Rich for his achievement. Additionally to being named “Lawyer of the Year” for Medical Malpractice in New York City, Richard was also included in the 2022 edition of The Best Lawyers in America© for Personal Injury Litigation – Plaintiffs in New York City.  Since 2010, Richard has been included 10 times in the New York City “Best Lawyers® ” list. Richard started working with us as a paralegal. He then obtained his Law degree and officially joined Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf as an attorney in 1997.

We also would like to congratulate the following attorneys at our firm for being  selected by their peers for  inclusion in the 27th Edition of  Best Lawyers©  in New York City:

  • Marijo C. Adimey (2016) [5]
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A 23 year old New York pedestrian died and 5 others were injured in two separate hit-and-run accidents.

20 year old Aniya Blandon  died in a in hit-and-run accident in Brooklyn on Monday. The young woman was standing at a bus stop with her husband when a driver who was apparently drag racing, lost control of the vehicle, jumped the curb and hit them. Her husband, 23 year old Kevon Westley tried to push her out of the way but it was too late. The wife and husband were both on their way to work. Kevon was planning on dropping his wife at the dollar store where she works with her cousin before going to work as maintenance person at the Philip Howard Apartments in Brooklyn. As they were waiting for the bus at Utica Ave. and Eastern Parkway in Crown Heights, Kevon saw a first car passing by at high speed, then the second one followed, hit a bump and drifted toward them. Kevon tried to push Aniya out of the way and then passed out. He woke up in the ambulance and was later on diagnosed with a concussion and multiple injuries to his arm, leg and foot. When he woke up in the ambulance, his wife was still alive but passed away shortly after.  A witness to the accident saw the two cars racing and saw one of them jumping the curb and hitting a utility pole that fell on Aniya and hit her in the head. The driver of the car took off on foot.

A day before, on Sunday evening, in Washington Heights, Manhattan, a hit and run driver slammed into two women and two children who were crossing the street.  One of the pedestrians, a 36 year old woman suffered traumatic brain injury and was listed in critical condition. The two children a 9 year old and an eight year old boy suffered minor injuries. The police are still looking for the driver of the Mercedes Benz who sped away after slamming into them.

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Ventricular_assist_device (1)Medtronic stopped the sale of the defective HeartWare Ventricular Assist Device, or HVAD last June after more than 3,000 patients died and 20,000 were injured.

Since 2011, multiple problems with the device have been reported to the Food and Drug Administration but the agency never took any decisive action to make sure the manufacturer  fixed the problems. The FDA and its Center for Devices and Radiological Health are in charge of making sure that medical devices are safe and effective for patients however as we highlighted in a previous blog, the agency policy is too accommodating with manufacturers. It has the power to seize products or to issue fines but rarely uses it.

In the case of the HeartWare Ventricular Assist Device, the FDA knew about issues with the product as early as 2011 when the product was developed by the parent company HeartWare and was seeking FDA approval. An inspector mentioned in its report that engineers were not reviewing documents fully before approving them and that the employee assigned to quality control did not have sufficient training. The company told the FDA they would take corrective actions.

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FDA-logoMany defective medical devices might still be used by medical professionals because deaths that occurred when using these devices are being mislabeled as injuries in the FDA Medical Database according to a study published last week in JAMA Network. The study looked at 290,141 reports of defective medical devices that resulted in serious injuries or deaths that were processed by an algorithm. They found that 52% were classified as deaths and 47.9% were classified by the algorithm as malfunction, injury, other or missing. Among these 47.9% that were not classified as death, 23% of these reports were indeed death reports that were not classified proprely by the algorithm. As a result many deadly devices might still be used on patients.  The FDA must review all reports classified as death but does not routinely review all reports that are classified as other or misfunction.

The most dangerous of all medical devices were the ventricular assist bypass devices. These devices represented 13% of all adverse event reports. Coming in second position was the dialysate concentrate for hemodialysis in liquid or in powder with 8.7% of all adverse event reports. The third most reported defective devices were the transcervical contraceptive tubal occlusion devices with 5% of all adverse reports.

The authors of the study also mention that 95% of the adverse event reports were made by manufacturers and not by healthcare facilities or physicians which might constitute a conflict of interest. The authors note that delays in reporting serious injuries or deaths were common. An example of this issue was the Essure permanent birth control device. 32,000 women reported issues with this device between 2002 and 2013 while the FDA only received 1,023 reports.

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