Negligence / Malpractice FAQ

Who is responsible when a person is injured?

The defendant's breach of a legal duty must be related to the plaintiff's injury closely enough to be considered a proximate cause of the injury.

Do I need an attorney?

An attorney should be consulted if you have been seriously injured or are unsure as to the outcome of your injury.

An attorney will have the legal expertise, time and resources to effectively handle your claim. Experienced personal injury attorney's will be able to accurately analyze the value of your case and will be able to meet all of the rules, requirements and deadlines that have to be met.

Statistics show insurance companies pay more than twice as much compensation when an attorney is involved in your claim. The insurance company representing the party at fault is working against you and its goal is to pay you as little as possible to settle your claim.

How long do I have to hire an attorney?

You must file a lawsuit within a specified period of time depending on the nature of the claim and the entity that caused your injury. This is referred to as the statute of limitations. Failure to file suit within this time frame prevents you from filing suit at all.

In New York State, most actions for personal injury must be brought within three years from the date when the cause of action occurs.

What damages can I recover?

You are entitled to recover for any actual damages that were proximately caused by the wrongful conduct of the defendant. Actual damages refers to the amount of money it would take to fully compensate you and place you in the same position you would have been had the injury never taken place.

Other damages you can recover for include:

• Reasonable and necessary medical care
• Property Damage
• Loss of earnings and earnings capacity
• Physical pain and suffering

How do I value my claim?

A claim is valued upon an estimate of what a jury would likely believe the case to be worth, taking into account the severity of the injury, the effects of the injury on your life and the negligence of the other party. However, there are other factors that can increase or reduce the value of your claim.

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• What do I need to show to obtain Workers Compensation benefits?

  
  In order to obtain compensation benefits you need to document that you were an employee, that an accident occurred during the course of your employment (or you developed an "occupational disease" during the course of your employment), that you gave notice to your employer within 30 days of the accident and that you filed your claim for benefits within two years of the date of the accident. There are some exceptions to these requirements which should be discussed with your attorney in detail.

• If the administrative law judge directs the carrier to pay my medical bills and to pay me compensation benefits, and the carriers still objects, what happens?

  
  If a carrier believes that there are grounds for an appeal they may file such an appeal within 30 days to the Workers Compensation board. Pending the resolution of that appeal in most instances the carrier is not required to pay medical bills or make biweekly payments to the Claimant as directed by the administrative law judge.

• Am I required by law to have an attorney?

  
  No. But bear in mind that the insurance carrier is mandated by law to have an attorney or a licensed representative appear at every hearing. These attorneys and licensed representatives often have years of experience, have handled thousands of hearings and are well versed in representing the carrier's point of view. While there is no similar statute requiring the Claimant to be represented, we would highly recommend that they retain counsel. Silverman Law has decades of experience in representing Claimants.

• The carrier argues that my condition was pre-existing. I don't think that it was but even so I never had these symptoms. What should I do?

  
  This question of a pre-existing asymptomatic (unnoticed) condition which is made symptomatic by a work-related accident has been decided by both the Appellate Division of the Supreme Court of New York State and the New York State Court of Appeals.

• Can I collect both Workers Compensation and the Social Security Disability benefits at the same time?

  
  Yes. If you qualify you may indeed collect both Workers Compensation and Social Security Disability benefits. While Workers Compensation is not reduced because of Social Security Disability payments, your Social Security Disability payments may indeed be reduced because of your Workers Compensation benefits.

Silverman, Silverman & Seligman, P.C.
527 State St.
Schenectady NY 12305
Phone: 518-631-4521
Toll Free: 877-851-4319
Fax: 518-374-4338