Work place injuries are quite common. They may result in serious injuries and even death. In the event you receive injuries related the your employment, you maybe entitled to compensation for your injuries. If your employer is responsible, workers compensation could provide you with financial remuneration for your injuries. In the event there are other individuals, companies, or circumstances involved you may be able to bring a personal injury lawsuit.

In addition to physical injuries you may suffer psychological and/or emotional injuries for which you may be entitled recovery. In the event an injury leads to your death, your family could be entitled to recovery.

Some injuries can cause permanent disability. Other types of injuries only cause what are known as partial disabilities. A partial disability or impairment may result in your having difficulty performing some aspects of your job. If you receive an injury related to your employment it is very important that you contact experienced knowledgeable attorneys to protect your rights. The New York and Long Island accident attorneys at the Law Office at Elliot Schlissel are here to help you 24/7. Contact us for a free consultation at 1-800-344-6431 or email us.

Police officer Christine L. Miller was off duty. She drove some friends to O’Leary’s Bar and Restaurant. Christine was an officer in the Sunset Hills Police Department.

Christine was served numerous drinks at O’Leary’s Bar. After consuming “a high quantity” of alcohol Christine got in her car to drive home. Christine drove her Mitsubishi east in the west bound lane of Darity Ferry Road which caused an accident with another vehicle. Four young people were killed and one was injured in the traffic accident. Christine has been charged with four counts of first degree involuntary manslaughter plus one count of second degree assault. She is currently on an unpaid suspension from the Sunset Hills Police Department.

The civil lawsuit which was filed shortly after the criminal charges were brought against Christine was settled for $2.25 million. At the time of the crash Christine’s blood alcohol level was 0.169. The threshold for driving while intoxicated was .08%.

The parents of the victims sued both Christine and O’Leary’s Bar and Restaurant.

They claimed that the employees of the restaurant knew that Christine was intoxicated and did not prevent her from driving home or assist her in calling a taxi cab. The civil lawsuit also claimed the bar workers served Miller alcoholic beverages even though her speech was slurred and her gaze was unsteady.

Wrongful death lawsuits often result in large settlement or awards from juries. Should either you, a friend, or a loved one have the misfortune of being involved in a tragic accident call the law office of Elliot S. Schlissel at 1-800-344-6431 or email us.

Picture of Ms’ Miller’s car after the accident courtesy of pulledover.

During the past quarter of a century there have been over 400 long term care hospitals built in the United States. These hospitals do not provide acute care for specific illnesses. They are, generally speaking, holding facilities for individuals who are too sick for nursing homes but not sick enough for regular hospitals.

Patients often stay for many weeks or months in these facilities. Many of these patients are senior citizens. Long term care hospitals have a much higher rate of bed sores and infections among their patients than regular hospitals. They are also more profitable than regular hospitals. They generally do not do surgery in the long term care facilities or handle medical emergencies. Patients needing these services are transferred to general hospitals. 

A large portion of the bills paid for the treatment at long term care hospitals are paid by Medicare. For profit, long term care hospitals often spend less money on patients and have higher profit margins than regular hospitals.

Inspections in the past 3 years in long term care hospitals have found increasing levels of violations of healthcare standards. Many long term care hospitals do not maintain staff physicians on a 24 hour basis. If you have a friend or loved one in along term care facility, you should monitor their treatment to see to it that they are provided with an appropriate level of medical care.

Should you have any problems regarding a hospital stay or a stay at a long term care facility, feel free to contact the Law Office of Elliot S. Schlissel at 1-800-344-6431 or email us at schlissel.law@att.net.

-Elliot Schlissel, Esq.

Picture courtesy of life123.com.

More than 48,000 people die each year from illnesses and diseases picked up during hospital stays. Approximately 20% of the patients in hospitals who develop sepsis, a blood infection, following surgery die. Patients who develop sepsis stay approximately 1 ½ weeks longer in hospitals than their original planned hospital stay. It is estimated that 1.7 million infections related to health care procedures are diagnosed each year.

Most hospital stays are for fairly routine procedures. Should the patient develop pneumonia or sepsis as a bi-product of this hospital stay, these infections can be deadly.

Hospitals should make a greater effort to improve hygiene, cleanliness and take other effective measures to prevent unnecessary hospital caused infections.

Should you have a problem related to a hospital stay, feel free to contact the Law Office of Elliot S. Schlissel to discuss this matter at 1-800-344-6431 or email us at schlissel.law@att.net.

-Elliot Schlissel, Esq.

In 1997, Eugenie Poleyeff, went swimming on 29th Street and Collins Avenue in Miami Beach. Eugenie ran into trouble and screamed for help. Zachery Breaux, a jazz guitarist, jumped into the water. Zachery’s wife and children ran up and down the beach looking for a life guard.

Zachery eventually reached Eugenie in the water. However, he was not able to rescue her. In fact, they both drowned. Both Frederica Breaux and Israel Poleyeff, a rabbi, brought lawsuits. These lawsuits claim that the City of Miami was negligent in failing to have life guards. They also claimed that there should have been riptides warnings at the beach on the date of the incident. The lawsuits indicated that Miami Beach had parking facilities, shower facilities and concession stands for beach goers but had no life guards or notifications to beach goers concerning riptides.

The courts in Florida found there was no liability. In a decision in 2009, the Florida Supreme Court eventually ruled that cities had a responsibility to warn beach goers of dangerous conditions that they were aware of.

After a decade long battle, the family of Zachery Breaux, received a court award of $5,000,000. Unusual situations and unusual injuries may involve liability. Should you, a friend or family member be injured, you should consult the Law Office of Elliot S. Schlissel for a consultation as to whether the injuries are actionable. So e-mail us or give us a call anytime at 800-344-6431.

-Elliot Schlissel, Esq.

Picture courtesy of sky.com.

Nursing the Wrong Baby

February 22, 2010

In January of 2008, Jennifer Spiegel, gave birth to her son. A baby was brought to Jennifer’s room to be fed and Jennifer nursed the baby. Unfortunately, the baby she nursed was not her son!

Eventually, a nurse in the maternity ward discovered that Jennifer was nursing the wrong baby. When Jennifer was made aware of this, she became very depressed. She said it was a horrible internal feeling.

Jennifer has now sued Evingston Hospital in Chicago asking for $30,000 in damages. That’s a lot of money for a small amount of breast milk!

Should you have a problem regarding medical care or a hospital, the Law Offices of Elliot S. Schlissel will be happy to give you a free consultation to discuss whether you have an actionable case. So e-mail us or give us a call anytime at 800-344-6431.

-Elliot Schlissel

Picture courtesy of WellSphere.com.

The Federal Transportation Department has recently penalized three  airlines for leaving forty-seven passengers stranded overnight at a Rochester, Minnesota airport. The amount of the penalty was $175,000. Continental Airlines and its local affiliate, express jet, operating as Continental Express, had promised to let passengers off their jets within 3 hours if there was going to be an extended delay on the runway. Although the airlines felt this promise was not enforceable, the transportation department felt otherwise. The airlines are paying $50,000 each in civil penalties.

An airline by the name of Mesaba also agreed to pay $75,000 because one of its employees advised Continental Airlines that the passengers were not allowed in the terminal due to the fact the Transportation Security Administration wasn’t present.

The transportation department felt that Mesaba displayed “indifference to the passengers” and that was an unfair and deceptive practice. Mesaba has agreed to pay the fine.

The Continental Express passengers were kept on an airplane from 12:30 a.m. until 6:00 a.m. Ray LaHood, the Secretary of Transportation, stated “I hope this sends a signal to the rest of the airline industry that we expect their lines to respect the rights of air travelers. We will also use what we have learned from this investigation to strengthen protections for airline passengers subjected to long tarmac delays”.

The transportation department is requiring airlines to have contingency plans for long airport delays. If you are delayed on the tarmac in an airplane for more than three (3) hours, you may be able to collect damages for your being stranded on an airplane!

For any personal injury or any of your civil litigation needs, you can always contact the litigation attorneys at our office either by e-mail or at 800-344-6431.

Picture courtesy of csmonitor.

A New York State Senate Committee is considering measures to reform civil medical malpractice law. The issue is being considered in light of skyrocketing medical malpractice premiums that doctors have to pay. For example, an OB/GYN in New York City may pay $170,000 in premiums annually.

Doctors want to protect their interests by inducing the New York State legislature to enact various types of “reform,” including capping non-economic jury awards and offering legal immunity for doctors who apologize to patients.

Several facts should be considered by the legislature before taking away substantive rights from those who suffer preventable injuries at the hands of a small number of negligent doctors.

68% of medical malpractice payments in New York are paid by just 7% of the physicians. This seems to indicate that there is no widespread problem of doctors practicing medicine negligently. Rather, there are a few bad apples that are causing the higher medical malpractice premiums for the rest of the doctors.

Rather than limiting the rights of those patients who are injured at the hands of those few bad apples, perhaps the American Medical Association, or the State Medical Associations should consider taking a role similar to the one played by the state bar associations for lawyers.

The state bar associations play a very active disciplinary role when they learn of attorney negligence or misconduct. They routinely discipline attorneys in very damaging ways, including reprimand, temporary suspension of the law license, and complete revocation of the law license.  Because of this reality, attorneys are very conscious of their obligations and “bad apple” attorneys are routinely booted from the active practice of law.

The state medical associations have steadfastly refused to take a similarly active role. This decision causes repeat medical malpractice offenders to continue offending and continue causing the malpractice insurance premiums for the rest of the doctors to increase.

Rather than focusing on limiting victims’ rights in medical malpractice cases, doctors’ lobbying groups should focus on preventing medically negligent injuries and deaths by policing their own ranks for the few bad apples.

-Elliot S. Schlissel, Esq.

800-344-6431

Picture courtesy of ER Drama.

(See minute marker 1:20-2:40 for the incident.)

At the U.S. Open, on September 14th, at the Arthur Ashe Stadium in Queens, NY, Serena Williams may have committed the tort of “assault” against one of the line judges at the tournament. In her semi-final match against Kim Clijsters, a line judge called a “foot foul” against Ms. Williams. Incensed, Ms. Williams approached the line judge with her racquet out and screamed, “If I could, I would take this … ball and shove it down your … throat.” The line judge also stated that Ms. Williams threatened to kill her, which she denied.

Notwithstanding the alleged “death threat,” Serena’s threat of physical violence did take place in New York. So whether the line judge would have a civil tort case against Ms. Williams would be governed by New York law. “Assault,” in New York, consists of:

  1. an intentional attempt,
  2. displayed by violence or threatening gesture
  3. to do injury to, or commit a battery upon,
  4. the person of another.

Clayton v. Keeler, 42 N.Y.S. 1051, 1053 (N.Y. Sup. Ct. 1896) (stating that “assault” is “to offer with force and violence to do hurt to another… holding up a fist in a threatening attitude, sufficiently near to be able to strike; advancing with a hand uplifted in a threatening manner, with intent to strike, although the person is stopped before he gets near enough to carry the intention into effect.”).  Pope v. State, 79 N.Y.S.2d 466, 471 (N.Y. Ct. Cl. 1948), aff’d, 99 N.Y.S.2d 1019 (4th Dep’t 1950).

Contrary to the common use of the word “assault,” as a civil tort, assault is merely the visual or auditory threat by one person to do something violent to another person. But assault is not merely an idle threat. It must be some threatening physical act or words done by one person, who is actually capable of doing the threatened physical harm, to another person. For instance, before one commits the tort of assault by actually punching someone in the face, the act of drawing back one’s fist before the punch is thrown, constitutes “assault.” Whereas the actual contact of the fist with the victim’s nose is the tort of “battery.”  6A N.Y. Jur. 2d Assault § 4 .

Furthermore, the fact that assault must be an “intentional attempt” means that the person doing the threatening must actually intend to make physical contactwith the one who is threatened. 6A N.Y. Jur. 2d Assault § 5.

While Ms. Williams “displayed by violence or threatening gesture” a threat “to do injury to, or commit a battery upon, the person of another,” that is not enough. For the line judge to have a civil case against Ms. Williams for the civil tort of “assault,” the threat must indicate “an intentional attempt.” In other words, it must have been reasonable in the circumstances for the line judge to have felt that Ms. Williams actually would have carried out her threat had it not been for the involvement of the other officials who intervened (see minute marker 1:20-2:40 in the video above).

There are probably arguments that could legitimately be made on both sides of this issue. The fact that she approached the line judge aggressively, verbally threatened her with violent acts, and that her approach caused the line judge to run away from her in fear all indicate that her threats were serious enough that she would have actually carried them out had the line judge not fled and the two other officials not approached. This would not be the first case of a frustrated athlete carrying out some violent act.

On the other hand, it could have appeared that Ms. Williams’ threats were merely her way of expressing her frustration at the call, but that she had no intention of actually carrying them out, even momentarily. The issue could be rationally argued either way and would likely be the primary focus of an “assault” litigation were the line judge to decide to sue Ms. Williams.

If you need help with any sort of personal injury matter, whether it be for assault and battery or any other tort, please do not hesitate to contact our office by either e-mailing us or calling 800-344-6431.

Commenting on the recent blog traffic attracting recent incident when Kanye West famously interrupted Taylor Swift while she was receiving an award at the MTV Music Awards, President Barack Obama called Mr. West a “jackass.” (audio)

As part of a series of posts using celebrity exploits as case studies to inform readers about various legal issues in New York,  we will discuss whether Kanye West has a cause of action in New York against the President for defamation.

Defamation in New York is generally characterized as “the making of a false statement which tends to ‘expose the plaintiff to “public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society.’” Dillon v. City of New York, 704 N.Y.S.2d 1, 5 (1st Dept. 1999). The elements of a claim for defamation in New York, generally, are:

kanye west kayne obama barack president jackass

  1. the statement is of a defamatory nature,
  2. it must refer to the plaintiff
  3. it must be published (communicated in any way) to someone other than the plaintiff.
  4. the statement must be a fact (as opposed to an opinion) that is false
  5. it must be published without privilege or authorization to a third party
  6. It must have been published negligently or worse (i.e. recklessly or intentionally); and
  7. the statement must either cause special damages or constitutes defamation per se.

Id.In terms of the specific elements of defamation, how would they apply with regard to Mr. Obama’s statement about Kanye West?

  1. The President’s statement was probably not of a “defamatory nature” because it did not subject Mr. West to any more “public contempt, ridicule, aversion or disgrace” than he would have otherwise experienced due to his very public and embarrasing conduct.
  2. The statement did indeed refer to Mr. West.
  3. Mr. Obama’s statement was “published” (communicated) to the country through the CNBC tweet that published the insulting soundbite.
  4. Whether the statement that Mr. West is indeed a “jackass” is probably a matter of opinion, rather than fact. Defamatory statements are only labeled as such when they make a factual allegation, and the plaintiff has the burden of proving that the statement is factually false. 600 West 115th Street Corp. v. Von Gutfeld, 603 N.E.2d 930, 934 (1992). Although some may consider  Mr. Obama’s characterization of Mr. West as  a “jackass” factual, most consider that evaluation an opinion, rather than a fact. Thus, this element of defamation is probably not met.
  5.  The allegedly defamatory statement was communicated to a third party (several million of them, actually), so that element of defamation is there.
  6. The “publication” of Obama’s statement was probably at least negligent. This president was not the first to be embarrassed when things they said in front of microphones they thought were off turned out not to be. This happened to Ronald Regan in 1984, George W. Bush in 2006 and 2008, and Bill Clinton last year. The long history of microphone gaffes probably indicates that Mr. Obama was on notice that one cannot rely on the assumption that microphones that one thinks are off, really are. So I think Mr. West would probably be able to show that Obama consciously relayed his comments to a third party, by at least a negligence standard. Not only that, but the audience was present and he knew he was talking to them, so the “publication to a third party” element is probably met.
  7. “Words that expressly or implicitly tend to injure one’s personal or professional reputation are considered defamatory per se.” 43A N.Y. Jur. 2d Defamation and Privacy § 7. I doubt that Mr. Obama’s characterization of Mr. West would tend to harm his personal or professional reputation any more than his initial behavior already has.

But even if Mr. West did have a legitimate claim of defamation, he would not have a cause of action if Mr. Obama could assert a “privilege,” as mentioned in #5 above. One of the privileges that an alleged defamer can assert is “absolute immunity” if he or she is a government official. Could Mr. Obama assert the privilege of “absolute immunity” as a government official to deflect the claim?

Probably not. A governmental official may only use the defense of absolute immunity when he is speaking in his official capacity at the time of the allegedly defamatory statement. Id. at 932.  Statements that a governmental official makes to the media are not considered part of his official capacity. Goodyear Aluminum Products, Inc. v. State, 203 N.Y.S.2d 256, 260 (N.Y.Ct.Cl. 1960), rev’d on other grounds, 207 N.Y.S.2d 904 (3d Dept. 1960).

It would seem that even had Mr. West wanted to sue the President for defamation in New York, his efforts would probably not be successful. One who wants to sue for defamation his a high burden to overcome and should seek experienced legal counsel to see if he or she has a case.

And as always, if you are considering an attorney to sue for defamation or any other type of “personal injury,” your office has over thirty years experience in these matters. So please do not hesitate to contact our office by either e-mail or by calling 800-344-6431.

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