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Daniel J. Persing.Tully Rinckey PLLC
441 New Karner RoadAlbany, New York 12205
Basics of a Personal Injury Case
©2015
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About Your Presenter
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Tully Rinckey PLLC Partner Mr. Persing concentrates his practice on personal injury,
medical malpractice and general litigation. Mr. Persing has spent his entire legal career – which spans
more than three decades – practicing law in the Capital Region. Mr. Persing advocates for the rights of people who have
suffered injuries or lost loved ones because the intentional or negligent acts of medical professions, drivers, property owners, businesses, and other parties
Dan received a juris doctorate from Albany Law School of Union College and a bachelor’s degree Houghton College.
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Introduction General Types of Cases General Principles in Application
– General tory principles of duty, breach, proximate cause and damages
– Additional Considerations Workers compensation injury Federal Torts Claim Act Serious injury limitations (New York)
– Statutes of limitation across the U.S. Conditions precedent
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The Interview – Motor Vehicle Collision
Client needs to bring police accident or incident reports and medical records
Review adverse indications on police accident report
Review any ticket information HIPPA authorizations Letter of representation to carrier and application
for no-fault benefits (30 days in NY) Notice of claim for Supplemental/Underinsured
Motorist Coverage
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Amass medical records –– NYS Qualifying Serious Injury Thresholds - NY Ins. Law § 5104a:
“. . . in any action by or on behalf of a covered person against another covered person for personal injuries arising out o negligence in the use or operation of a motor vehicle in this state, there shall be no right of recovery for non-economic loss, except in the case of a serious injury, or for basic economic loss.”
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Informal Fact Gathering
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Serious Injury is defined at NY Ins. Law § 5102(d): – Death; dismemberment; significant disfigurement; a fracture;
loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or 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
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90/180 Rule Balshan V. Bouck 206 A.D.2d 747 (N.Y. App. Div. 3’d, 1994) Judd v. Walton, 259 A.D.2d 1016 (N.Y. App. Div. 4th, 1999) Fitzmaurice v. Chase, 288 A.D.2d 651 (N.Y. App. Div. 3’d,
2001) Granger v. Keeter, 23 A.D.3d 886 (N.Y. App. Div. 3’d, 2005) Talcott v. Zurenda, 48 A.D.3d 989 (N.Y. App. Div. 3’d, 2008) Feeney v. Klotz, 309 A.D.2d 782 (N.Y. App. Div. 2’d, 2003)
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Certificate of disposition prior to proceeding
Assessment of damages – loss of income and valuation of the injury – the economic expert
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Informal Demand - Demand Letter
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Commencing the Action Statutes of Limitation vary among the defendants
– Court of Claims – 2 years, after filing Notice of Intention to File a Claim
– Wrongful Death – 2 years from the date of death– Municipalities – 90 day notice of claim, waiting 30
days after filing or following 50-h hearing, then prior to 1 year and 90 days following the accrual of the claim
Authorities - NY Pub. Auth. § 2980 Wrongful death; Notice of Claim: Notice of claim requirement is the same as under NY Gen. Mun. § 50-e NY Pub. Auth §2981 Wrongful death; limitation period: two year limitation to commence claim.
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FTCA – – 28 U.S.C. §2401(b): A tort claim against the United States shall
be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.
– 28 U.S.C. §2675. Disposition by federal agency as prerequisite; evidence: (a) An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail.
Private Individuals – as per state, mostly 3 years
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The Complaint Needs Allegations Concerning:
Need to allege serious injury threshold has been met The provisions of Article 16 of the CPLR do not apply Have waited 30 days since the filing of a notice of
claim without 50-h or that 50-h was held Impermissible to state the amount of damages
which were being sought
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Bill of particulars Provision of HIPAA’s for the opposing counsel, which
may include Arons language Demand under the SCHIP Act for Medicare/Medicaid
information Demand for collateral source payment in New York
(CPLR 4545) Expert disclosure –
– In New York, in a medical malpractice action do not disclose the identity of the expert, but must do so in all other personal injury matters
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Discovery
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Depositions vs. Interrogatories Cannot have both in the State of New York –
choose one or the other
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Expert disclosure throughout the State For instance in the Third Judicial
District, the disclosure must be made at the time the Note of Issue is filed, or one is precluded. A copy of the rule is attached.
In the other Departments, the general rule is that it must be served no less than thirty (30) days before trial.
After verdict or settlement, the paying defendant (s) will require a CMS Medicare release letter or a lien payoff prior to payment
In New York, CPLR 5003-a applies
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Trial or Settlement
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Daniel J. Persing, Esq.Tully Rinckey PLLC
441 New Karner RoadAlbany, New York
©2015
Questions?
