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Personal Injury FAQs

Automobile accidents and personal injuries

Wrongful death

Medical malpractice

Products liability

Premises liability

Do you have other questions?

Ask a Barasch McGarry Salzman & Penson NY personal injury attorney by calling 888.746.8212 or contact us online.

Automobile accidents and personal injuries

Should I provide a statement to an insurance company without a lawyer’s help?

It is in your best interests to provide your contact information to an insurance company only until you consult with a lawyer. The more significant your injuries, the more imperative it becomes to seek legal counsel before providing any statement.

Will I have to go to trial to recover damages?

About 95 percent of personal injury cases filed settles prior to trial.

What is considered “pain and suffering?”

Pain and suffering includes harm caused by physical injury and mental anguish experienced through avoiding activities you engaged in prior to your accident and the potential of surgery.

What determines the amount I might recover?

Every case addresses three issues:

  • Liability—establishing someone’s negligence
  • Damages—the amount that will fairly and adequately compensate you for your injuries
  • Source of collection—insurance or other assets from which damages can be recovered

Is there a minimum or maximum amount that can be recovered in a personal injury settlement?


What is a typical settlement amount?

An experienced personal injury lawyer reviews and interprets your case information to determine the appropriate value for your claim:

  • Incurred medical bill amount
  • Future medical bills
  • Loss of past income
  • Your age
  • Any permanent limitations caused by the injury
  • Impact on future earning capacity
  • Activities you can no longer do
  • Activities you can do but do not enjoy as much
  • Prognosis for further problems
  • Strength of lay witness testimony

The goal is fair and adequate compensation for your injury and an experienced attorney knows what a reasonable jury would award. The strength of lay and expert witness testimony may influence the amount.

How much is my case worth?

Many factors determine how much compensation you may receive, including the severity of your injuries, your past medical history, and the amount of insurance coverage that the responsible person or company has. An attorney can assess the potential value of your claim.

Can the insurance company refuse to pay my medical bills if my car was not damaged?

No. While the insurance company might try to draw a direct correlation between damage done to your car and the severity of your personal injury, it is possible that the body sustains damage even if the car did not. The reverse may also be true—a car might experience major impact, but the people might only suffer minor cuts and bruises.

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Wrongful death

What is wrongful death?

The idea behind a wrongful death lawsuit is the wrongful death, in addition to injuring the person who died, also brought harm to the people who depended on that individual for financial and/or emotional support. The wrongful act might be—

  • A negligent or careless act (e.g., careless driving)
  • A reckless act
  • An intentional act such as deliberate murder

New York has a statute permitting a lawsuit to be brought by the decedent’s relatives in the event of a wrongful act.

Is there a time limit for filing a wrongful death claim?

New York law sets the timeframe for filing a wrongful death claim. The time begins with the time of the incident or when the party became aware of or discovered the injury. The state will not honor a wrongful death claim filed after the legislated timeframe and the opportunity to recover damages for the family will be forever lost.

What is the difference between wrongful death and medical malpractice?

Wrongful death is a type of damage and malpractice is a type of negligence. Not every wrongful death case involves medical malpractice and not every medical malpractice case involves wrongful death.

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Medical malpractice

What is medical malpractice?

Medical malpractice or professional negligence is the failure of a doctor, hospital, nurse, technician, pharmacist, or other healthcare provider to uphold good and accepted medical techniques or principles. In other words, they provide substandard care. Failure to provide at least average, standard care is substandard care, and if it results in injury or death to the patient, it is malpractice.

Can I sue for medical malpractice?

A patient injured due to medical negligence—or a family member if the victim is unable—can file suit. When someone dies as a result of medical negligence, the patient’s family may sue for wrongful death.

Who is liable for medical malpractice?

Any medical/healthcare provider—physician, nurse, therapist, etc.—who has caused injury to a patient because of professional negligence or substandard care may be named as a defendant.

Also the patient’s employer—hospital, HMO, Professional Corporation, etc.—can be sued.

How long do I have to bring suit?

An experienced malpractice lawyer must carefully analyze all the facts of the case to determine when the time will most likely run out in any given case. Several factors must be considered, including the age of the patient and if the patient lived. In addition, New York has a statute of limitations for a medical malpractice case that typically begins on the date of the malpractice or from the date when the patient, parent, or guardian knew or should have known of the malpractice. If the patient has died, the timing may be different and could be far less than if the patient is still alive. The rules and laws are complicated and amateurs should not guess what they mean. Experienced malpractice lawyers sometimes need to re-check the rules and the case law concerning the specific facts of the case to decide just when the time runs out. Because it often takes time to obtain all the pertinent medical records and it takes time to have expert physicians review the records and give their opinions, it is always wise to consult experienced malpractice counsel as soon as possible.

Is medical negligence common?

Yes, more than you know. If official estimates of 98,000 deaths a year from malpractice in hospitals alone, plus the hundreds of thousands of malpractice deaths outside hospitals, are added to the many hundreds of thousands, or even millions, of injuries from malpractice per year indicate malpractice is common, the answer is yes — medical and hospital negligence is common.

But only a tiny percentage of malpractice victims or their survivors ever make a claim or file a lawsuit for the injuries or deaths.

Do your firm’s successes mean you will win my case?

Nothing is guaranteed in life or in malpractice litigation. To assure as best we can that the case will be successful for our client and the law firm, we investigate the case thoroughly before agreeing to proceed with it to claim and suit. We never ever knowingly take so-called “frivolous” cases or “junk” cases. The case has to be solid and substantial if the client is to receive a financial recovery and the law firm is to be compensated for our expenditure of work and expenses we need to advance to prepare and prosecute the case. The bottom line is we do everything we can to make the case successful.

How do I prove my case?

A plaintiff in a medical negligence case must establish through evidence that:

  • The defendant was negligent (rendered substandard care)
  • The negligence was a proximate cause of injuries
  • The plaintiff suffered damages as a result

All three elements must be proven.

Expert testimony is almost always required to prove negligence and causation of damages. Licensed physicians familiar with the standard of accepted medical care for the medical specialty involved are required as witnesses to prove the case.  The experts must establish what the standards were, how the defendant violated them, and what damage was caused by the substandard care.

How long will my case take?

It depends. Usually it takes several months to gather all the necessary medical records and obtain expert opinions from specialists willing to testify under oath. Then, if the extent of the injuries is fairly obvious, at that point, notice of claim must be given. In New York, an expert’s report and certificate must also be filed. Once the notice is filed, a lawsuit cannot be filed until it has expired.

If there is no prompt settlement, the court gives a scheduling order and “discovery” begins. This means the parties provide documents to one another, answer written interrogatories under oath and take “depositions”—oral questioning under oath of parties, fact witnesses and expert witnesses by the lawyers before a “court reporter” who produces a written (and usually electronic) transcript, plus video may be used. Then, under New York court rules, a compulsory mediation is held to try to settle the case. If not settled, a pre-trial hearing before the judge is held followed by the trial. Either side can file post-trial motions to seek a different result than the jury’s verdict, and either side can file an appeal to a higher court.

So how much time does this take? Our experience is that if the case is not settled before suit, it will take about 18 months to two years to go from the time suit is filed until trial. The time can be a little more or a little less. Our experience is that most of our cases usually settle somewhere along the way to trial. We believe the reasons we can settle—which eliminates the considerable gamble of a jury trial—are that we evaluate and select our cases carefully and we work them up and prepare them carefully so the defendants are willing to pay to eliminate their gamble.

Will I have to go to court?

Not necessarily.

You will have to attend your own deposition, usually in a lawyer’s office or a court reporter’s office. Your lawyer will always be with you. Sometimes your lawyer will want you to attend a defendant’s deposition also. You will have to attend any mediation(s). You will have to attend the pretrial. You will have to attend the trial. Of course, if the case is settled along the way that will end your requirement to appear.

How will I pay for your time and expenses?

Most malpractice cases are handled on a contingency fee agreement. Our firm receives a percentage of the financial recovery made by the client as a result of the prosecution of the case. We generally do not expect the client to pay any of the expenses of developing the case until a recovery is made. Expenses are reimbursed from the settlement or trial verdict award.

What expenses are involved?

The prosecution of a malpractice case is expensive. Our attorneys must obtain all the medical records and hire experts. They must conduct depositions, usually across the country, with substantial court reporter fees required. Time must be dedicated with our paid experts to creating strategies and preparing for court. The investment also includes costs for exhibits and technology to fully demonstrate our clients’ devastating injuries. These are the major expenses.

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Products liability

What if I know that a defective product harmed other people besides me?

When the same defective product injures a large number of people, they may join in a class action lawsuit to hold manufacturers and sellers liable for the injuries caused by their product.

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Premises liability

I fell and was injured. Can I sue someone?

If you fell while working, your injuries may be covered by your employer’s workers compensation insurance.

If your injury occurred in a store or a building, you can sue to recover damages to compensate you for your injuries. Be aware, however; that a building owner is not liable for every injury that occurs on the property. To recover for an injury, the owner or operator of the business must have breached his duty to keep the premises reasonably safe and to warn of known dangers. An NYC personal injury attorney can provide you with additional details about premises liability.

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Contact our lawyers for a free consultation

To speak with a Barasch McGarry Salzman & Penson attorney at no charge, call 888.746.8212 or contact us online. We can make a difference in your case and in your life.


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