Frequently Asked Questions

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What should I do if I’ve been in an auto accident?

Your first priority should be to get medical care for anyone who has been injured. Your well-being comes first. Go to a hospital for an examination, even if you don’t have health insurance. Then there are seven important steps:

If you’re in an auto accident, you’re required by NYS law to stop and exchange information. If a parked vehicle or other property is damaged, or if a domestic animal is injured, you must locate the owner or contact the police. If the damage to person or property is more than $1,000, you must file a Report of Motor Vehicle Accident (Form MV-104) with the DMV within 10 days. The form is available at any DMV office or this law office. The DMV can suspend your driver’s license if you fail to report an accident. If a person is injured or killed, you are required by NYS law to immediately notify the police. It is a crime to leave the scene of an accident that causes personal injury or death.

Obtain the names and contact information of all eyewitnesses to the accident, and anyone who observed the scene right after the accident.

As soon as possible, take photos of the scene and all vehicles involved, or have someone else do it. Don’t rely on photos taken by the police or other involved persons. You cannot have too many photos.

Have someone take photos of your injuries as soon as possible, and then at regular intervals after the accident. Injuries look different over time and some, like bruises or scars, can fade.

Whether or not you’re hurt, and even if it doesn’t appear that other parties are hurt, promptly notify your insurance company of the accident. If you don’t, your insurance carrier could disclaim coverage – and refuse to pay for your defense lawyer or any judgment that might be taken against you.

No-fault benefits are paid by your own insurance company no matter who is at fault. You are eligible if you are injured in a motor vehicle accident or you’re a pedestrian hit by a car. You must file a no-fault claim within 30 days of the accident. Call your insurance agent to report the accident and request forms. The no-fault law does not apply to motorcyclists, but it does apply to a pedestrian who is struck by a motorcycle. If you don’t file a timely claim, it could result in a reduction or loss of benefits. It’s important to be 100% truthful when filing a no-fault claim, but the way you report the details may be important.

Call Porter Nordby Howe LLP at 888-477-7731, or e-mail us at [email protected].

General FAQs

If you’re injured at a place of business, report it to the manager or supervisory employee on duty, get his/her full name and title, and ask them to fill out a report. If possible, identify witnesses and have a friend or family member take photos of any dangerous condition.

No. No matter how seriously you’ve been injured, you have very little to gain and very much to lose by giving a statement to any other party’s insurance company. Any statement you give can be used against you in a lawsuit. If your lawyer negotiates for you, any statements that he or she makes on your behalf will effectively be shielded from later use by the insurance company.

Anyone can file a lawsuit following a motor vehicle accident, but in order to recover you must prove that you suffered a “serious injury” as defined the NYS Insurance Law. To qualify as a “serious injury,” it must fall within one of eight categories:

  1. Death;
  2. Dismemberment;
  3. Significant disfigurement;
  4. A fracture;
  5. Loss of a fetus;
  6. Permanent loss of use of a body organ, member, function or system;
  7. Permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or
  8. A medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

Category Nos. 3, 7 and 8 can sometimes be tricky to define and prove, so you should promptly consult with a lawyer following an accident.

A statute of limitations (SOL) requires that a lawsuit be brought within a specified time period after an accident. The applicable SOL varies depending on the type of claim (also called a cause of action) you have. For example, you must file suit within one year following slander or libel, two-and-a-half years following medical malpractice or the date of last treatment for the same condition), within three years following a motor vehicle accident, and generally within six years following fraud or breach of contract. These are general guidelines and some exceptions and special circumstances apply, so you should consult a lawyer without delay.

There are special laws that govern claims against municipalities (i.e., any city, county, town, village, fire district and school district). Generally speaking, if you have a tort/negligence claim, you must serve a “Notice of Claim” within 90 days of the injury in order to be able to file a lawsuit later. In wrongful death cases, the 90 days runs from the appointment of a representative of the decedent’s estate. You must also file a lawsuit within one year and ninety days after the event that caused the injury (except that wrongful death actions must be filed within two years).

There are special laws that govern claims against the State of New York. Generally speaking, if you seek to recover damages for injuries to your person or property caused by the negligence of an officer or employee of the state, you must serve a “Notice of Intention to File a Claim” on the Attorney General within 90 days of the injury. If you do so in a timely manner, you may file a lawsuit against the state within two years after the date of injury.

Generally, the U.S. government can be sued under the Federal Tort Claims Act (FTCA) when its employees are negligent within the scope of their employment. A claimant must file a claim with the proper agency within two years, and then file a lawsuit in federal court within six months after the agency denies the claim. If the agency fails to make a final disposition of a claim within six months after it is filed, the claim is deemed denied.

Commercial owners and general contractors face special liability in New York when a construction worker is injured by a falling object or in a fall from an elevated workplace. Section 240(1) of the New York Labor Law, often referred to as the “scaffold law,” poses significant pitfalls for owner and contractors. It is not a negligence statute; instead, it imposes absolute liability on an owner or its agent if the statute is violated. A construction worker’s own negligent conduct is irrelevant and will not proportionally reduce a jury award unless it can be proven that the worker’s actions were the sole cause of the accident.

Generally, in a personal injury case, a plaintiff can recover damages for lost wages, medical bills, pain and suffering, mental anguish, loss of enjoyment of life, loss of consortium (the inability to provide normal marital relations and services), and sometimes punitive damages.

Many factors determine the value of a personal injury case including the severity of the injuries, and the amount of any lost wages and medical expenses. With advice from a lawyer, a plaintiff can decide whether to accept a specific settlement offer. Ultimately, if a case proceeds to trial, it is for a jury to decide how much a plaintiff will receive in compensation (except in cases against the State of New York where a special judge determines the amount of any award).

Under New York law, before filing a medical malpractice lawsuit, a plaintiff’s attorney must certify that he or she has consulted with at least one physician, and that there is a reasonable basis to bring the lawsuit. Typically, a case review begins with our review of your pertinent medical records and, if appropriate, conversations with any doctors who provided treatment after the malpractice occurred. After those steps, Porter Law Group will retain a qualified medical expert to review your care and treatment and advise us whether your doctor deviated from acceptable standards of care.

In most cases, our fee will be a percentage of your recovery. New York law provides that an attorney’s contingent fee in a medical malpractice action shall not exceed the following:

  • 30% of the first $250,000 recovered;
  • 25% of the next $250,000 recovered;
  • 20% of the next $500,000 recovered;
  • 15% of the next $250,000 recovered; and
  • 10% of any amount recovered over $1,250,000.

The percentages above are computed on the net sum recovered after deducting our out-of-pocket expenses and disbursements for such things as court filing fees, medical records, and expert testimony.

Medical bills are typically paid from many sources including private health insurance, Medicaid or Medicare. Occasionally, patients sign a medical lien with a physician or other health care provider. Many contracts and insurance policies have boilerplate language that gives doctors and insurers the right to reimbursement if you receive monetary compensation in a lawsuit. Medicare and Medicaid may demand reimbursement based on federal statutes.

Attorneys are ethically obligated to convey all settlement offers to their client. Ultimately, it is up to the injured party, with his or her lawyer’s advice, whether to settle or proceed to trial. We work for you.

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