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.
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Christopher L. Sallay, a partner at Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf, lectures on behalf of the New York State Bar Association at the December 2, 2011 CLE Seminar “Construction Site Accidents: The Law and the Trial”. Mr. Sallay discusses the Key Investigation and Case Preparation that must be undertaken by a plaintiff’s attorney in a Construction Accident case in New York. Mr. Sallay is a frequent lecturer for the New York State Bar Association and has been the Assistant Planning Chair for this statewide program for several years.

Mr. Sallay has extensive experience in high profile personal injury cases in the areas of medical malpractice, automobile accidents, construction accidents, municipal liability and products liability. Mr. Sallay is responsible for all aspects of litigation, from the initial meeting of clients through the ultimate resolution of the case and has tried cases in both New York and New Jersey.

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The family of Javier Salinas — the 36-year-old construction worker from Danbury, Connecticut who in October fell more than 50 feet to his death at the Chelsea Piers construction site in New York City — is suing his former employer, the worksite general contractors and the owners of the property where he died.

The dangers inherent to a construction site are well-known and can be prevented if simple, common-sense precautions are in place. Those dangers are particularly well-known where there are elevation-related risks involved. In fact, specific laws have been enacted to protect workers whose job requires them to perform construction activities in areas that are elevated. In this instance, a worker was killed because he was installing a roof over 40 feet in the air on a windy day. A strong gust of wind caused him to lose his balance and fall from the roof striking to a concrete slab on the ground below. The Wrongful Death of this 36-year old worker left his wife without a husband and their three children without their father. The entire accident could have been avoided if owner and contractors had taken steps to insure that there were proper safety harnesses or railings in place. In addition, a Site Safety Manager or Construction Foreman could have exercised some common sense and told the workers to not install the roof that day because it was too windy or that they should not install the roof until the safety devices were in place. Apparently, there were no safety devices at all and a tragic death occurred.

The available safety devices that would have prevented this accident include both safety harnesses and safety railings. A construction safety harness is necessary for any job that involves vertical travel or work at an elevation. Approximately 37 percent of serious injuries and deaths at construction sites are attributed to falls. Safety harnesses are attached to life lines via lanyards, which are designed to minimize injury from “jerk back” during a fall. The OSHA and ANSI requirements for safety harnesses, life lines and lanyards are matters of public record and are disseminated throughout the construction industry. In addition, OSHA compliant fall protection railing systems are also readily available and well-known throughout the construction industry to eliminate falls from roofs, open floors, and other hazardous areas on construction sites.

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Ben B. Rubinowitz

Ben B. Rubinowitz
Gair Gair Conason
Steigman Mackauf
Bloom & Rubinowitz

Our partner, Ben Rubinowitz, achieved one of the highest awards for an 83 year old man who suffered a fractured leg as a result of being struck by a car: $1,120,000.00. The injured man was an 83 year old pedestrian who was standing next to his car when struck. The man, who had suffered from heart problems and cancer prior to the accident, underwent surgery for a fractured femur. As a result of the accident he now has difficulty walking. “I am extremely pleased with this result” said Rubinowitz who explained that “often times insurance companies feel that because an injured individual happens to be in his 80’s or is elderly that the case has little or no value. That type of ugly age discrimination is simply not tolerated by our firm. If we agree to take a case it makes no difference to us if the injured person is 8 or 80. We give the same effort regardless of age.” Perhaps this is why the lawyers at Gair Gair Conason Steigman Mackauf Bloom and Rubinowitz have achieved the best results for victims of car accidents, construction accidents and medical malpractice cases over their 90 plus year history. “Simply put” said Rubinowitz “we have the talent and we have the resources — and we do one other thing — we give 100 percent effort at all times to ensure the best possible results for our clients.”

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Facebook-logo.jpgIn the recent New York personal injury case of Sterling v. May, the Honorable George Silver of the Supreme Court, New York County, denied defendant’s demand for an authorization for plaintiff’s Facebook account, noting that to allow defendants to gain such access based solely upon the fact that plaintiff acknowledged that she maintains such an account would amount to a “fishing expedition predicated upon the mere hope of finding relevant evidence.”

In so holding, the Court noted that nothing contained on the public portion of plaintiff’s Facebook page would lead to the inference that her private pages may contain information which is relevant to her claim. This decision is in line with McCann v. Harleysville Ins. Co., 910 N.Y.S. 614 (4th Dept. 2010), which held that defendants must establish a factual predicate to establish the relevancy of material contained in a plaintiff’s private Facebook pages.

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A Washtenaw County Circuit Court jury awarded a teacher $2.5 million in a medical malpractice verdict, after suffering permanent injury during a procedure at St. Joseph Mercy Hospital. Amy Garcia suffered a miscarriage in 2007 causing the death of her 14-week-old fetus and as a result required a dilation and curettage procedure.

Dr. Norman Gove, an obstetrician and gynecologist, told Garcia that the procedure was routine, according to her testimony. The lawsuit contended that Gove failed to properly supervise the resident physician’s work and in an effort to remove the fetal remains had inserted ring forceps through the perforated uterus and ended up grabbed a piece of bowel that snapped back. The patient’s rectum and bowel were then torn, the suit states.

Every field of surgery has its own common surgical errors. In obstetrics and gynecology, recurrent surgical errors involve injuries to the ureter during hysterectomies, injuries to the baby during a Cesarean section, and various injuries during operations for prolapse. This case involves a uterine perforation during a dilation and curettage (D&C). Whether there is a fetus in the uterus or not, most uterine perforations during D&C’s are preventable with the exercise of proper care and surgical technique. Each case is different, however, but if the uterus ends up having to be removed as a result of the perforation, one of the key pieces of evidence is the pathology report which will describe the area of the perforation in detail. It is important to remember that a D&C, however, is a “blind” procedure in the sense that the surgeon cannot see the inside of the uterus or the tips of the surgical instruments; the procedure is essentially done by feel.

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For those of us who represent plaintiff’s in medical malpractice cases it is, of course obvious that the law requires the Notice of Claim to be served on The New York City Health and Hospitals Corporation. It is basic law that service upon the Comptroller of the City of New York is insufficient and will lead to a dismissal of the claim and a potential legal malpractice case. Yet time and again we see cases where the plaintiff’s attorneys served the City of New York resulting in a dismissal of the claim. So was the case in Barnaman v New York City Health and Hospitals Corporation, et al., New York Appellate Division, Second Department, December 6 2011 in which plaintiff’s complaint was dismissed after the statute of limitations had run. The failure of The City of New York to plead an affirmative defense is of no consequence as is their participation in discovery. As The Court stated;

“Contrary to the plaintiff’s contention, the defendants were under no obligation to plead, as an affirmative defense, the plaintiff’s failure to comply with the statutory notice of claim requirement (see Laroc v City of New York, 46 AD3d 760, 761; Maxwell v City of New York, 29 AD3d 540, 541; Lynch v New York City Tr. Auth., 12 AD3d 644, 646). Furthermore, the defendants’ participation in pretrial discovery did not preclude them from raising the untimeliness of the notice of claim (see Laroc v City of New York, 46 AD3d at 761; Wade v New York City Health & Hosps. Corp., 16 AD3d 677; Hall v City of New York, 1 AD3d 254, 256).”

In fact the motion to dismiss can be made at the start of trial and will be granted by the Court.

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Fetal monitoring system display

Los Angeles County officials are expected to approve a $2.8 million settlement of a medical malpractice suit filed against medical staff at County Harbor-UCLA Medical Center over their failure to perform an emergency cesarean section after signs of distress. The 18-year-old woman, Guadalupe Fernandez, gave birth to a son who was later diagnosed with neurological injuries from fetal distress, according to court records.

Even after a completely normal prenatal course, a fetus may not tolerate the stresses of labor well. The main way that doctors and nurses have of following fetal well-being during labor is the electronic fetal heart monitor. If the fetal heart monitor shows evidence of fetal oxygen deprivation (fetal distress), the first step is try to make the problem go away by changing the mother’s position, giving the mother some oxygen to breathe, and increasing her IV fluids but decreasing or discontinuing any Pitocin that may be running. If these measures are not successful, then a fetus that is showing evidence of distress must be delivered via an emergency Cesarean section as soon as possible in order to prevent permanent brain damage.

Many medical malpractice cases revolve around the claim that the evidence of fetal distress on the monitor tracing was not properly assessed and that the baby sustained permanent brain damage (often cerebral palsy) because of the prolonged oxygen deprivation that resulted from the failure to perform an emergency Cesarean section.

Los Angeles County will also pay a $16,208 Medi-Cal lien issued against the family and waive Fernandez’s bill of $19,455 in addition to covering nearly $52,000 in legal costs, including attorney fees, in the case.

As a result of any settlement, the hospital is required to devise a plan of correction, much of which has already been implemented. Part of the plan involved a comprehensive survey to assess the hospital system’s protocols, along with training and credentialing procedures. According to the county, a further review of the hospital’s treatment history showed complication rates are at or below national benchmarks.

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In personal injury cases in New York the defense of an intervening act as a superseding cause of plaintiff’s injury will often be raised to absolve defendant’s negligence as a proximate cause of plaintiff’s injury. From the plaintiff’s perspective it should be argued that questions of causation are in most cases for a jury to decide. Further such acts must be argued to be not of such an extraordinary nature as to break the causal connection between defendant’s negligence and plaintiff’s injury.
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This presentation is part of the New York State Bar Association Construction Site Accidents seminar 2009 In this segment Howard completes the opening for plaintiff followed by the opening for defendant. This years program will be held State Wide in December. Ben Rubinowitz will chair the seminar in Melville, New York on Friday December 2, 2011. For complete details see our prior post, Labor Law/Construction Site Accidents in New York.

http://www.youtube.com/watch?v=RN-gk99h9P0

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