The hazy target of lost earning capacity

A personal injury lawyer Little Rock, AR trusts will tell you that determining lost earning capacity as part of damages in a personal injury case is a difficult yet necessary task.  Steve Harrelson of the Harrelson law firm states that it’s necessary to determine the anticipated loss of future income through the assistance of a physician and vocational expert.

“One of the most important things to do when developing your case for economic damages,” says Harrelson,” is to make sure that you properly calculate for the loss of future income and show the jury hard numbers of how the injury has affected your life.”  Doing so will require some knowledge of salary actions, employer paid benefits for lost earnings, inflation, consideration of future raises, potential diminished earnings, and loss of household services.

Diminished Earnings

The most important number to obtain from your experts is the percentage of anticipated diminished earnings.  Whether that figure is 10%, 20%, or 50%, it gives you a baseline from which to begin determining lost income.  From that point, subtract your age from your expected retirement age of 65 to determine the number of years of work anticipated.  Normally, you would then simply multiply the number of years by the amount of lost revenue each year (an example might by 19 years x 20% of $50,000).

However, this value does not account for inflation and the requirement for the final, future value to be a present value.  It will require some forensic economics to adjust that calculation, along with an explanation for the jury.  At that point, it is essential in a claim for lost earning capacity to add all other factors to your claim: (1) anticipated raises over the course of your career, (2) the amount of any lost benefits, (3) shortened life and shortened work life, (4) diminished earning capacity due to the injury, and (5) non-work related activities such as loss of household services.

Conducting a full investigation like this is the only way to maximize your compensation.  As a personal injury lawyer might attest, compiling a full report regarding lost earning capacity to submit to the insurance adjuster (or potentially a jury) is important in order to be fully compensated for the injuries you sustained.  Simply taking your medical bills and lost wages and asking for the jury for “pain and suffering” will not be sufficient to compensate you for your losses.  Pain and suffering is a financial consideration, but it is subjective in nature and can be difficult to justify and defend.  That’s why it’s important to perform a complete review of your actual losses and anticipated losses in order to be fully compensated.

For these reasons, it is always best to contact a lawyer to help you through a situation like this to (1) help you through the process while you’re recovering and (2) to maximize your benefits to ensure all of your injuries are appropriately compensated.


Thanks to Steve Harrelson and our friends and co-contributors from Harrelson Law Firm, P.A. for their added insight into the calculation of lost earning capacity in personal injury cases.

Delayed medical treatment: does it hurt my case?

Steve Harrelson, a car accident lawyer Little Rock AR trusts, has lots of experience with victims of negligence coming in and relaying the following scenario: “I was involved in a car accident, and I did not immediately seek medical treatment.  Now, three days later, I cannot move and haven’t been able to get out of bed for two days.”  The next question inevitably asks whether failure to seek medical treatment will hurt their claim for bodily injury.

Here’s the unfortunate answer: Yes, it will.  We live in an age where most claims representatives and many jurors already perceive Plaintiffs with an eye of caution, wondering how hurt they really are, if they are even hurt at all.  The insurance companies have won the 10-second soundbite battle, and many times, Plaintiffs are associated with wanting something for nothing (or wanting to hit the lottery).  So naturally, yes, if a claims representative finds out that you were involved in a car accident and didn’t seek medical treatment until days or weeks later, they very well may naturally assume that someone – a friend, family member, lawyer, etc. – told you to go frivolously run up a bunch of medical bills to try and make some money.  Many times, clients have finally gone to the hospital after a week only to learn that they do indeed have a broken bone.

Seeking Medical Treatment

The lawyers at the Harrelson Law Firm understand that many times, people don’t go to the emergency room for a variety of rational reasons: (1) people get shots of adrenaline during car accidents and don’t realize the pain they are in until they get home, (2) people do not like to seek medical treatment because of coverage or financial problems, (3) people are inherently too busy and try to maintain burdensome schedules even if they are in a car accident, and (4) sometimes, the pain from a whiplash or similar injury simply does not set in immediately.  All of these are valid reasons to avoid medical treatment, and all are backed up with decades of medical support.

As a car accident lawyer Little Rock AR respects might attest, seeking medical treatment after avoiding doing so will require some explanation for the reasons.  Generally, regardless of the explanation, it may give an insurance adjuster the reason to deny a claim to an unrepresented client (the same applies to extended gaps in treatment).  This will require taking the case to the next step and filing a lawsuit against the negligent driver, but an experienced lawyer will still be necessary in order to explain the reasons for delayed treatment to a jury and to navigate the legal dispositive motions that are sure to be filed by the defense.  

For these reasons, it is imperative to hire a veteran litigator and experienced trial lawyer who has been involved in investigating car crashes for years.  


Thanks to Steve Harrelson and our friends and co-contributors from Harrelson Law Firm, P.A. for their added insight into claims negotiations in motor vehicle accidents.

8 Common Causes of Car Accidents

A car accident can leave everyone involved with both physical and emotional scars that may take a long time to heal. While it’s impossible to completely eliminate the risk of getting in an accident, understanding some of the more common causes of accidents may help you stay safe.
Speeding/Aggressive Driving
Those who drive faster than the posted speed limit are generally at a higher risk for getting into an accident. This is because stopping time is increased while reaction time is decreased. Driving too fast may also increase a driver’s risk for a rollover accident.
Driving While Distracted
Drivers who are distracted by their phones, other occupants, or who simply take their mind off the task at hand are at an increased risk of an accident. Drivers are urged to constantly scan the road ahead of them and look in their rear mirrors every few seconds to stay alert to others around them.
Reduced/Low Visibility
Rainy or snowy conditions can make it harder to see because you can’t use your high beams. Driving at night may be more dangerous because visibility is reduced even when using headlights. Lack of visibility can also hinder your depth perception, which may make it harder to judge when or if you need to slow down or stop.
Slick/Compromised Roadways
Wet roads increase your accident risk because a car’s tires cannot make good contact with the road. When moisture freezes, it is almost impossible for a tire to grip the road, which may cause the vehicle to spin out.
Tire Blowout/Flat Tire
A popped or blown out tire could cause a vehicle to skid suddenly into other lanes of traffic. It could also cause the car to come to a sudden stop, which may increase the odds of a rear end collision.
DUI/DWI
Drunk driving generally impairs a driver’s reflexes and ability to perceive hazards, which may make it harder to avoid other cars or pedestrians in his or her path. An impaired driver may also swerve into other lanes or drive faster than advised for current road conditions.
Unexpected Obstacles or Hazards
Common unexpected hazards include animals, pedestrians, or debris crossing or blocking the roadway. Even if a driver is able to avoid the hazard itself, the act of swerving or immediate breaking my cause an accident.
Hazardous Roadways
Back roads or even main thoroughfares can curve or bend unexpectedly. If a driver can’t anticipate this curve or bend, he or she may not be able to slow down in time, which may result in a rollover crash or a collision with another object or vehicle.
If you’ve been injured in an auto accident as a result of someone else’s negligence, contact a Coeur d’Alene car accident lawyer today to help you fight for the compensation you deserve.

Thanks to our friends and co-contributors at Bendell Law Firm for their insight into common car accident causes.

Dangers of Defective Tires

Defective tires are some of the most common causes of car accidents, which is why t is important to regularly check the condition and pressure of your car’s tires. This is an essential precautionary practice that may help you avoid accidents. Car tire manufacturers are required to ensure that they supply tire dealers with quality tires. This ensures that customers also get new tires that are free of defects. However, once a client purchases tires from a dealer, he or she is responsible for the maintenance of the tires in his car. Use tires that are in good condition to reduce the risk of accidents and damage to property.

Limitations of Defective Tires

Using quality tires on your car reduces the likelihood of accidents like rollovers and tire blowouts from occurring. Such accidents can cause serious injuries and even death, as a Las Vegas NV car accident lawyer. Check your tires regularly for signs of wear and tear. The more you use your tires, the more they wear out, which may cause the tire tread to separate, or its belt to peel off. Tires with such defects are likely to blow when in use, which may cause the car to roll over, or the driver to lose control of the vehicle.

Some of the injuries that you may suffer as a result of a car accident include concussions, broken bones, internal bleeding, spinal injuries, paralysis, scrapes, and cuts, or brain injuries. Other causes of tire-related accidents include poorly manufactured tires, defective assembly, and improper installation.

Tire manufacturers are required to test their tires thoroughly before distributing them to the market, to ensure that the tires distributed to dealers are free of defects and therefore, roadworthy. Tire manufacturers are also expected to produce quality and durable tires. Although some car owners buy reconditioned tires, using this type of tire does not guarantee safety, because reconditioning only seals the existing weak points in a tire. Often, reconditioned tires wear out quickly and develop other problems after short periods of use. Many car safety experts discourage car owners from using reconditioned tires, because they are likely to become defective after short periods of use.

Avoid Cheap and Counterfeit Tires

Many vehicles come with inbuilt safety features to protect you from suffering serious injuries in case of an accident. Good tires are important safety features in any vehicle. However, unlike new cars, used cars often come with used tires. Before you buy a used car, consider taking it for a tire inspection to determine if they are defective. Alternatively, replace the old tires with new ones to eliminate the possibility of driving on defective tires.

Buying new tires does not guarantee safety, because of the proliferation of fake products on the market, including tires. Buy tires from tire manufacturers with a reputation for quality and durability. Stick to the brands you know, and do not be overly concerned about price because cheap is not often effective. When it comes to your safety, do not skimp on expenditure.

Defective tires can cause serious accidents, which may cause injuries and damage to property. It is important to purchase quality tires and replace your tires before they wear out completely. Avoid buying cheap counterfeit tires or refurbished tires as they can easily become defective.


nadia von magdenko law associates

Thanks to our friends and contributors from Nadia von Magdenko & Associates for their insight into the dangers of defective tires.

Update on Sidewalk Safety & Injury Liability in New York

With the return of winter weather, the New York City Department of Buildings issued a reminder last week to all property owners, landlords and businesses to clear sidewalks adjacent to their property of snow and ice. NYC Administrative Code 16-123 requires that property owners and landlords who are in charge of any building or lot in the city next to a paved sidewalk remove snow, ice, dirt, fallen leaves, branches and any other debris from the sidewalk within four hours of its appearance. If removal is unsafe or will cause damage to the pavement, the owner is still expected to lay sand, sawdust or another appropriate material down and clean the sidewalk as soon as weather permits.

Unfortunately, each year throughout the five boroughs,
thousands of pedestrians are injured when they fall on slippery sidewalks, suffering from traumatic brain injuries, paralysis,
spinal injuries, broken bones, fractures and damage
to nerves and cartilage – especially in vulnerable joints
like knees, elbows, wrists and shoulders.

Unfortunately, each year throughout the five boroughs, thousands of pedestrians are injured when they fall on slippery sidewalks, suffering from traumatic brain injuries, paralysis, spinal injuries, broken bones, fractures and damage to nerves and cartilage – especially in vulnerable joints like knees, elbows, wrists and shoulders. While many of these instances can be attributed to a loss of balance or footing, they can also be caused by the failure of property owners or managers to take necessary safety measures. In addition to the temporary hazards caused by weather, pedestrians are also at risk of injury from an even more common cause of slip and fall accidents: sidewalk defects including cracks, uneven planes, patchwork repairs, missing sections, improper slopes and exposed tree roots as well as hardware defects like poorly installed grates. According to TRIP, a transportation research group based in Washington DC, New York City also has the 6th worst pothole problem of all cities in the United States.

“…In 2003 responsibility for sidewalk injury liability shifted
from the city to property owners. Property owners and landlords must now be able to demonstrate that sidewalks adjoining their premises as well as pedestrian ramps and parking lots are regularly inspected, well-maintained and free of defects.”

While accidents cannot always be prevented, The Department of Transportation has a list of specifications that must be followed by property owners in order to provide reasonably safe sidewalk conditions. Duties include removal of snow and ice, upkeep, fixing broken, uneven and cracked pavement and tending to raised grating that could cause a pedestrian to fall. Previously, the City of New York was responsible for maintaining sidewalks but in 2003 responsibility for sidewalk injury liability shifted from the city to property owners. Property owners and landlords must now be able to demonstrate that sidewalks adjoining their premises as well as pedestrian ramps and parking lots are regularly inspected, well-maintained and free of defects. They must “install, construct, repave, reconstruct or repair” sidewalks to New York City Department of Transportation (DOT) specifications – at their own expense. This change has made it easier for injured individuals to seek compensation for medical costs and other expenses associated with a slip and fall injury when negligence is involved. While the DOT Sidewalk Repair Program replaces more than 2 million square feet of sidewalk each year, they now focus most of this work on city-owned property and only address about 1% of the city’s total sidewalk area each year. DOT relies on property owners to maintain the rest of the sidewalks.

Prior to 2003, in order to file a claim against the city, an individual was required to give actual notice of the defect: written proof that the property owner knew of the condition for a sufficient enough time to have fixed it.

Now only constructive notice is required: proof that the condition existed long enough for the property owner to be aware of it. Property owners are also now required to purchase insurance for personal injury and property damage resulting from improper sidewalk maintenance.

when injury could have been prevented by proper maintenance, the victim may receive compensation for medical expenses and other costs associated with the incident.

Of course, not all slip and fall accidents are a result of property owner negligence, but when injury could have been prevented by proper maintenance, the victim may receive compensation for medical expenses and other costs associated with the incident. Anyone who suffers a trip and fall due to poor maintenance by a property owner should get prompt medical assistance and report what caused the fall immediately. Waiting for too long often means there are no witnesses and no documentation of treatment sought at the time of the accident.

If you or someone you know has suffered from injuries due to unsafe conditions on sidewalks and parking lots, the experienced New York attorneys at Okun, Oddo & Babat can help you. Don’t hesitate to contact us or call us at 212.642.0950 to discuss your case.

Additional Resource: http://www.nyc.gov/html/law/html/home/home.shtml

Article by Shea Bergesen for Lavery Design Associates, Ltd. copyright 2013. This article may not be reproduced without permission from the author.

Dangerous Drugs: Fluoroquinolone Side Effects

Used to treat mild to moderate bacterial infections, fluoroquinolones
are among the most highly prescribed medications in the United States.

When 33 year old Manhattan resident and Website Manager for the City College of New York Lloyd Balch sought medical attention for a fever and cough in April 2013, his doctor deduced from a chest x-ray that he had a mild case of pneumonia. Bach was given a popular antibiotic, Levaquin and shortly thereafter developed severe pain in his joints and vision problems. Balch continued taking the medication and soon became unable to walk uphill and see clearly. He experienced ringing in his ears, tingling in his hands and feet, uncontrollable shaking and muscle spasms. Doctors who have studied the risks of Levaquin say reactions like Balch’s are not unusual for users of fluoroquinolone antibiotics.

Used to treat mild to moderate bacterial infections, fluoroquinolones are among the most highly prescribed medications in the United States. In 2011, the US Food and Drug Administration (FDA) reported approximately 23.1 million prescriptions, with an additional 3.8 million hospital patients treated with them via injection. Fluoroquinolones include Cipro, Avelox, Noroxin and Levaquin – the latter being the bestselling antibiotic in 2010. By 2012, however, Levaquin was also the subject of more than 2,000 lawsuits by patients who had experienced severe side effects.

Peripheral neuropathy is a condition that causes damage to the nerves that send information from the brain to the spinal cord and throughout the rest of the body.

In August 2013, the FDA issued a notice requiring drug labels and medication instructions for all fluoroquinolone antibacterial drugs to more accurately describe the serious side effect of peripheral neuropathy (PN) experienced by many users. According to the Mayo Clinic, Peripheral neuropathy is a condition that causes damage to the nerves that send information from the brain to the spinal cord and throughout the rest of the body. Usually occurring in the arms or legs, symptoms include pain, tingling, numbness or changes in sensation of pain, temperature or body position.

Development of PN is only a risk when fluoroquinolones are taken orally or by injection; topical formulations applied to the eyes or ears are not known to cause nerve damage. Symptoms of PN may occur soon after the drug is taken and can last for months or years after use is suspended or may even be permanent.Fluoride, a known neurotoxin, is a central component of fluoroquinolones and can penetrate into very sensitive tissues, entering the brain and damaging the central nervous system. Doctors at the Center for Disease Control and Prevention have expressed concern that fluoroquinolones are often prescribed unnecessarily to patients without considering less risky alternatives. Meant for serious, life-threatening bacterial infections, they are frequently prescribed for earaches, bronchitis, urinary infections and other ailments that may go away without treatment or with less potent drugs.

…patients taking fluoroquinolone antibiotics were five times more likely to suffer potentially blinding retinal detachment, kidney failure and tendonitis.

The risks don’t end with nerve damage: In an April 2013 study at the University of British Columbia, Pharmacological Epidemiologist Mahyar Etminian found that patients taking fluoroquinolone antibiotics were five times more likely to suffer potentially blinding retinal detachment, kidney failure and tendonitis. Dr. Etminian expressed concern as well, asserting that the drugs are overused by “lazy doctors who are trying to kill a fly with an automatic weapon.” The American Thoracic Society has issued drug use guidelines that specify fluoroquinolones should not be prescribed as a go-to treatment for non-life threatening conditions, including community-acquired pneumonia. Had Lloyd Balch and other patients harmed by fluoroquinolones known about the risk factors and alternatives, they may have requested a different treatment.

When fluoroquinolone antibiotics are offered for mild conditions
like sinus, urinary tract or ear infections
without any proposed alternatives,
physicians may be negligent in prescribing them
and may be found responsible for resulting pain and suffering.

…it is also a health care professional’s responsibility to provide this information.

Many patients don’t see the mandated FDA warnings on packaging and are not notified by doctors of the potential side effects. While it is always wise to ask about associated risks and possible alternatives when starting drug treatment, it is also a health care professional’s responsibility to provide this information. To avoid further injuries and additional lawsuits, drug manufacturers are now warning patients about fluoroquinolones but, given their potential to harm, it is important that physicians also take the time to discuss their use with patients.When fluoroquinolone antibiotics are offered for mild conditions like sinus, urinary tract or ear infections without any proposed alternatives, physicians may be negligent in prescribing them and may be found responsible for resulting pain and suffering.

Okun Oddo & Babat specializes in Medical Malpractice and Medical Negligence claims. Contact us today or call or call us at 212.642.0950 to arrange an appointment with one of our experienced New York attorneys.

Article by Shea Bergesen for Lavery Design Associates, Ltd. copyright 2013. This article may not be reproduced without permission from the author.

Antipsychotics Prescribed For Elderly Patients

The world’s eighth largest drug manufacturer, Johnson & Johnson, agreed to pay as much as $2.2 billion earlier this month to settle US probes into the marketing of antipsychotic drugs – including Risperdal – to older adults, children and the disabled. According to a New York Times article The Justice Department has determined that the company promoted psychiatric medications for uses not approved by the Food and Drug Administration and may have even offered incentives for physicians to frequently prescribe them.

This latest lawsuit kindles concerns
that antipsychotics are being widely and
improperly prescribed to millions of Americans each year.

The American Chemical Society, based in Washington DC published that Antipsychotic drugs like Risperdal work by blocking dopamine, the chemical in the brain that contributes to high risk behaviors. Use of antipsychotics nearly tripled in the past two decades in the United States, with more than 16 million annual prescriptions for drugs such as Abilify, Clozaril and Seroquel. According to a study by Stanford University in 2008, more than half of prescriptions were for “off-label” use not approved safe and effective by the FDA. This latest lawsuit kindles concerns that antipsychotics are being widely and improperly prescribed to millions of Americans each year.

Particularly worrisome is the use of antipsychotics to treat vulnerable patients, including elderly nursing home residents. The federal government alleges that Johnson & Johnson and its subsidiaries promoted the use of the Risperdal for elderly patients with dementia, despite evidence that this would increase their risk of stroke, weight gain and diabetes. According to an audit by the US Department of Health and Human Services, Medicare claims were filed for antipsychotic drugs for 1 in 7 nursing home residents over the age of 65, with 83% attributed to off-label use.  Antipsychotic drugs are increasingly used to treat problems related to dementia in older adults, though the medication has proven more effective for sufferers of schizophrenia and can cause serious side effects.

Antipsychotics are not the only drugs that are commonly misprescribed among the elderly. In 2011, a study published by the British Medical Journal suggested that the prescription of antidepressants may need to be reevaluated as well. The study showed that adults over 65 who took newer generation antidepressants – known as serotonin reuptake inhibitors (SSRIs) including Prozac and Zoloft –  had a greater risk of having a stroke, seizures and higher salt levels in the blood than those who took older medications, known as tricyclic antidepressants (TCAs). These findings are contrary to the prevailing view that SSRIs are safer than TCAs.

In 2012, antidepressants were tied to a higher risk of falls
for nursing home residents, especially those with dementia. 

While antipsychotics are used to manage psychosis symptoms related to schizophrenia and bipolar disorder, antidepressants are used to treat disorders like depression or anxiety and are intended to alter mood. As with antipsychotics, the use of antidepressants has increased since 1990 and has been a subject of much debate. Medical News Today reported that in 2012, antidepressants were tied to a higher risk of falls for nursing home residents, especially those with dementia.

Although all prescription medications can have adverse side effects, physicians and drug manufacturers have an ethical obligation to disclose the associated risks and potential
alternatives to patients or family members.

The American Journal of Geriatric Pharmacotherapy reported in 2011 that nearly 50% of nursing home residents are given antidepressants, though there is little knowledge available regarding how antidepressants are prescribed. Many may be dispensed solely on the basis of nurses’ observations or patient’s behavior rather than a proper diagnosis by a doctor.
Although all prescription medications can have adverse side effects, physicians and drug manufacturers have an ethical obligation to disclose the associated risks and potential alternatives to patients or family members.

The prevalence of lawsuits associated with antipsychotic and antidepressant drugs sends a strong message to drug manufacturers that they must practice full disclosure regarding the possible side effects, uses and abuses of psychiatric medications – and practitioners should exercise much greater caution in prescribing them.

Okun Oddo & Babat specializes in Medical Malpractice and Medical Negligenceclaims. Contact us today or call or call us at 212.642.0950 to arrange an appointment with one of our experienced New York attorneys.

Article by Shea Bergesen for Lavery Design Associates, Ltd. copyright 2013. This article may not be reproduced without permission from the author.

Construction Site Injuries, West Side, Manhattan

Four people, including three pedestrians and a firefighter, were injured recently when construction paneling collapsed from a West 40th Street building in Manhattan, sending debris on to the sidewalk below. Earlier that day, the New York City Department of Buildings issued a warning to all workers, contractors and property owners to secure project sites due to anticipated wind gusts of up to 45 miles per hour.

Department of Building inspectors on the scene have since found that while strong winds were a factor in the incident, a construction fence meant to secure the materials was not installed properly, according to a CBS News source. Einstein Construction Group, the Texas-based contractor working on the building, received several violations and a stop-work order, though the company head insists they were not responsible.

In New York, site employees injured in construction accidents
can file a claim for workers’ compensation benefits
through the Workers’ Compensation Board.
If the negligence of an individual or organization contributed to the accident, they may also file a third-party injury accident claim.

Filled with obvious and hidden safety hazards, construction sites are among the most dangerous work environments in the US, posing serious risks to both workers and non-workers in the area. Although site managers and employees are trained to maintain safe conditions, thousands of people are injured or killed on or near construction sites each year by falling debris, unstable platforms, large machinery and hazardous materials – including exposed wires and gas lines, according to the National Institute for Occupational Safety and Health. Those injured on construction sites are typically workers, with OSHA reporting that US construction workers suffered almost 93,00 injuries on the job in 2009 and continue to incur the most fatal injuries of any occupation.  In New York City, the Bureau of Labor Statistics sites construction as the second-most dangerous industry, surpassed in fatalities only by the trade, transportation and utilities sector.

The recent construction accident illustrates how dangerous – and unpredictable — construction sites can be for non-workers as well. Many projects, including those in the populated five boroughs, take place in high traffic areas where pedestrians are walking through, around or below construction activity. Another incident in early October 2013 put pedestrians at significant risk when a crane malfunctioned at a midtown Manhattan high-rise, leaving 13,500 pounds of concrete hanging 30 stories above the street for several hours. Fortunately, workers were able to lower the load to the ground manually and no one was injured.

Both recent incidents in Midtown have been attributed by site managers to faulty equipment and dangerous weather conditions. However, as is often the case, they may have been prevented or alleviated by following standard safety regulations including those mandated by the state and the Occupational Safety and Health Administration (OSHA). Inspection requirements, job safety programs and federal and state laws all seek to prevent accidents on construction sites and promote safety awareness. While not always the case, injuries at or around sites can be caused by the negligence of a third party who has failed to follow regulations.

In New York, site employees injured in construction accidents can file a claim for workers’ compensation benefits through the Workers’ Compensation Board. If the negligence of an individual or organization contributed to the accident, they may also file a third-party injury accident claim. However, when a non-worker is injured, their only option for compensation may be a personal injury lawsuit. Construction accidents involving bystanders are handled in much the same way as other personal injury cases. The injured party files a lawsuit against the responsible party – whether it is an individual worker or employer, contractor, site manager, property owner or the manufacturer of equipment — and must prove that their negligence caused the accident and resulting injuries.

If you or someone you know has suffered from injuries or loss of life involving a construction site accident in New York, the experienced New York attorneys at Okun, Oddo & Babat can help you. Don’t hesitate to contact us or call us at 212.642.0950 to discuss your case.

Article by Shea Bergesen for Lavery Design Associates, Ltd. copyright 2013. This article may not be reproduced without permission from the author.

The Current State of e-discovery and Social Media Websites

In September 2012, Twitter gave a sealed document to a New York criminal court containing three months worth of tweets and data from an Occupy Wall Street protester’s Twitter account. Both the defendant, charged with disorderly conduct, and Twitter filed motions to stop the subpoena but were denied by the judge.

The case has led Twitter to seek a finding in higher court to deny responsibility for users’ posts and avoid future subpoenas – and has led to much discussion among court and government officials regarding discovery of litigation evidence on social media websites. Discovery is the process by which each party in a lawsuit can learn what evidence the opposing side has relevant to the dispute in preparation for trial. In 2006, the Federal Rules of Civil procedure recognized “electronic discovery” or “e-discovery” as the legal term for the process of identifying and collecting electronically stored information (ESI) as evidence, including emails, documents, databases, audio and video files, website content – and social media data.

Those in the justice system familiar with the current state of e-discovery share a consensus that officials should act now to ensure that the process is handled expertly and inexpensively going forward. In a 2010 report, Electronic Discovery in the New York States Court, the NYS Unified Court expressed concern about the cost and lack of consistency in handling e-discovery. They noted that ESI is often more difficult to identify and preserve than hardcopy evidence and can be modified or deleted, so new spoliation of evidence laws are needed. In early 2013, the Advisory Committee on Civil Rules met to discuss and propose new e-discovery rules that would better standardize the processes involved in obtaining electronic information.

All forms of social media, including posts and messages on Twitter, Facebook and other popular sites, have complicated legal discovery. According to a recent study by the Pew Internet & American Life Project, 50% of Facebook users desire to keep data regarding their relationships, communications, photos and interests private. Many individuals assume that what they post is protected by privacy laws and is not discoverable, though the reality is courts continue to find that individuals generally do not have a reasonable expectation of privacy on social media sites — regardless of their privacy settings.

Recently, Governor Cuomo signed a bill amending New York’s protective order statute, allowing individuals who are not party to a lawsuit to object to discovery of evidence associated with them. While ESI and social media discovery concerns were not behind this decision, it will certainly have an impact on what is considered discoverable in online communities. For example, an individual involved in a child support case claims a low income. In a private Facebook message, a friend mentions an expensive trip they took together recently. With this new ruling, if this message is discovered as evidence in the case and the friend is subpoenaed, he would have the right to object.

Every minute, social media users create massive amounts of data. According to Founder & CEO of Domo.com Josh James, Facebook users share 684,478 pieces of content; Tumblr blog owners publish 27,778 new posts; YouTube users upload 48 hours of new video; Foursquare users perform 2,083 check-ins; Flickr users add 3,125 new photos, and Instagram users share 3,600 new photos.

Clearly, as social media sites increase in popularity, so does the need to address issues of e-discovery and preservation of social media data. As court and government officials become more aware of the need for standardized rules in the process, so too should the over one billion social media users gain a better understanding of what they should – and should not—share in online communities.

Additional Sources:
www.americanbar.org 
www.pewinternet.org 

Article by Shea Bergesen for Lavery Design Associates, Ltd. copyright 2013. This article may not be reproduced without permission from the author.

Type 2 Diabetes Risk: Antipsychotic Drugs and Children

The use of second generation antipsychotic drugs (SGAs) appears to increase the risk of Type 2 diabetes in children, according to a 2001-2008 study by the Agency for Healthcare Research and Quality. While it was previously known that SGAs could double adult users’ chances of developing diabetes, the study suggests that children who are prescribed them are three times as likely to be diagnosed with the condition.

Published in JAMA Psychiatry earlier this year, the study examined the state-provided, anonymous medical records of approximately 43,000 youth under 24 years of age in Tennessee. About 29,000 were recent initiators of SGAs while 14,000 matched controls were receiving other treatments. Researchers found an estimated 16 additional cases of Type 2 diabetes per 10,000 children taking antipsychotic drugs for one year, with increased risk from cumulative dose.
SGAs, also referred to as atypical antipsychotics, are used in the treatment of severe mental health conditions including schizophrenia, schizoaffective disorder and mania. By altering the effects of natural chemicals in the brain including serotonin and dopamine, they regulate mood, emotions, sleep, appetite and other aspects of behavior. While side effects vary by individual drug, SGAs generally cause weight gain, changes in blood sugar level and increase in insulin resistance which all heighten the risk of diabetes.

The use of antipsychotic drugs in children is becoming more and more common. Since 2002, prescriptions for patients under 17 years of age have increased 65% — from 2.9 million to 4.8 million—according to the US Food & Drug Administration. While the FDA has approved SGAs such as Abilify and Seroquel for treatment of schizophrenia, many young people are now prescribed them for bipolar disorder, ADHD, depression and other mood disorders when other psychiatric medications including antidepressants, lithium and psychostimulants are available.

The researchers in the AHRQ study excluded any children who suffered from conditions that could only be treated by SGAs, noting that all those involved were taking antipsychotics for non-psychosis related mood, attention or behavioral disorders. Dr. Wayne Ray, professor of Preventive Medicine and a senior author of the study, said the findings should make doctors more cautious about prescribing antipsychotics to children. “If it turns out that the child does ultimately need an antipsychotic, they should be carefully monitored for metabolic effects and the dose should be as low as possible for the shortest amount of time,” he said. Given the additional risk, why would a doctor choose to prescribe SGAs when alternative treatments are available? One Rutgers University study in 2010 found that children from low income families receiving Medicaid are four times as likely as the privately insured to be prescribed anti-psychotic medication because they do not have access to the best known alternatives: cognitive-behavioral therapy and counseling.

In July,16 State Medicaid directors released a study recommending states require second opinions, outside consultations and other methods to ensure SGAs are not improperly prescribed. Some states including Florida and California have already put laws in place restricting doctors from dispensing SGAs to children. Without authorization from the state, children younger than 3 in Texas cannot receive antipsychotics and Arkansas now requires parents to give informed consent before a child is prescribed an anti-psychotic drug.

Additional Sources:
www.ahrq.gov
www.fda.gov

Article by Shea Bergesen for Lavery Design Associates, Ltd. copyright 2013. This article may not be reproduced without permission from the author.