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Questions & Answers I. Accidents Q. I've been injured in an auto accident, who pays for my medical bills and lost wages? A. Under New York State law your lost wages and medical expenses will be paid by the insurance company of the automobile that you're in at the time of the accident. This is regardless of whose fault the accident is. You'll often hear this referred to as no-fault insurance. Q. How do I make a claim for these expenses? A. A no-fault application should be obtained from your insurance company for the car that you were in as soon as possible. This application must be filed within thirty (30) days of the date of the accident. If not, your benefits may be denied. Q. What about my inconvenience and pain and suffering? A. You may file a lawsuit against the responsible party for pain and suffering if you have suffered a serious injury. A serious injury is defined by statute as a broken bone, an injury which prevents you from working or performing most of your daily activities for at least ninety (90) days, or a permanent or significant limitation of a body function. Often times people have suffered what is called soft tissue injuries. These are injuries to your neck, back, muscles, ligaments, nerves, etc. It's difficult to tell early on whether or not this will be an injury which will qualify you to sue for pain and suffering. Therefore, at our law firm we often take a "wait and see" approach. That means that we assist the injured party with insurance forms, obtain medical records and deal with the insurance company until we can determine whether or not they have a qualifying injury. This could take from several months to a year. Q. What if I don't have a qualifying injury; what will I owe you for your services? A. If we decide after a reasonable period of time (after several months) that you don't have a qualifying injury or that you have a case we are not willing to take, there is no charge for the services that we provided up to that date. Q. What if I do have a qualifying injury? A. If you have a qualifying injury, we will take your case on a contingent fee basis. This means that you will pay us only if you win. In most cases, we will advance the cost of pursuing the case such as investigator fees, court filing fees, charges for medical records and other necessary expenses. After we have received a settlement for you, we will deduct those expenses first and then compute our fee based upon a percentage of the remaining settlement proceeds. This percentage varies, but in most cases is 1/3 of the settlement. Q. What if we lose? A. Fortunately, there are very few cases where we lose, but if that were to occur, you would not owe us any legal fees. Q. How do I know whose fault the accident was? A. An experienced personal injury attorney is in the best position to advise you as to whose fault the accident was. Such factors as who had a red light or a stop sign, who had the right of way, whether the other driver was speeding or was issued a ticket, although not controlling, are important. Q. What if I am at fault? A. In New York State, we have a "comparative fault" rule. That means that an injured party can still be compensated even if he is, in part, at fault. So, if the injured party is 30% at fault and the other driver is 70% at fault, the injured party can still sue and recover damages for pain and suffering, but it will be reduced by 30%. Q. Who decides these percentages of fault? A. The percentages of fault are decided by a jury, or in some cases, a judge. Q. What is negligence? A. The mere fact that someone's hurt because they were in a car accident or they slipped and fell on someone's property doesn't mean that they are entitled to receive damages for pain and suffering. In most cases, you must prove that another party was negligent. Negligence simply means carelessness. It means the failure to do something that a reasonable person would do under like circumstances or the doing of something that a like person would not do under like circumstances. Q. Who decides what the damages are that I am entitled to receive? A. This is also decided by either a judge or a jury. The judge or a jury at a trial would listen to testimony from you as to how the injury has affected your life and will listen to testimony from your doctor, as to how this injury has affected you physically and how it may affect you in the future. Q. Will I have to go to court? A. Very few cases actually go to trial. In our practice, more than 90% of the cases settle without going to court. However, it is important that the lawyer representing you is an attorney who is experienced in trying personal injury cases rather than just going for a quick settlement. It should be an attorney who has a reputation with the defense lawyers and insurance companies as someone who can and will take a case to trial should they offer you an unreasonable settlement or no settlement at all. We find that our very high success rate in trying cases in court has enabled us to obtain better settlements for our clients and has also made it less likely that we'll ever have to go to court. But, if we have to go to Court, we can assure you that we will put all our resources, time, experience and knowledge behind your case to give you the best chance of winning. If you have any more questions, please contact us at 1-800-LAW PRO-1 (1-800-529-7761), II. Medical Malpractice Q. I have been injured by a medical professional, how long do I have to sue? A. Generally, in New York State, you have 2 ½ years from the injury of the last date of treatment by that medical professional for the same problem you were being treated for at the time of the injury. (There are certain exceptions to this rule, the most common being that if the injury is to a child, it will be 2 ½ years after the child reaches the age of 18, but no more than 10 years.) Q. How do I know if I have a case? A. The first thing you should do is call a qualified attorney who has extensive experience in handling medical malpractice cases. That attorney can usually tell you whether or not you have a potential case merely by discussing it with you during a brief telephone conversation, free of charge. If you wish to discuss your potential case with us, please contact us at 1-800-529-7761. Q. How badly do I have to be injured before you will take my case? A. At the law firm of Capasso & Massaroni LLP, we generally limit our medical malpractice cases to those in which the individual has suffered permanent and serious injury as a result of the malpractice. If the problem has resolved itself or if the injury is minor, even though it was as a result of malpractice, we generally do not take the case. However, if you are not sure or have any questions, please feel free to call us. Q. Who decides what the damages are that I am entitled to receive? A. If your case goes to trial, this is decided by either a judge or a jury. The judge or a jury at a trial will listen to testimony from you as to how the injury has affected your life and will listen to testimony from your doctor, as to how this injury has affected you physically and how it may affect you in the future. Q. Will I have to go to court? A. Very few cases actually go to trial. In our practice, more than 90% of the cases settle without going to court. However, it is important that the lawyer representing you is an attorney who is experienced in trying personal injury cases rather than just going for a quick settlement. It should be an attorney who has a reputation with the defense lawyers and insurance companies as someone who can and will take a case to trial should they offer you an unreasonable settlement or no settlement at all. We find that our very high success rate in trying cases in court has enabled us to obtain better settlements for our clients and has also made it less likely that we'll ever have to go to court. But, if we have to go to Court, we can assure you that we will put all our resources, time, experience and knowledge behind your case to give you the best chance of winning. If you have any more questions, please contact us at 1-800-LAW PRO-1 (1-800-529-7761), I. Injuries on the Job Q. If I am hurt on the job, can I sue my employer? A. The general rule is that if you are hurt on the job, even if your employer or co-employee was responsible, you can collect Workers' Compensation, but you cannot sue your employer or co-employee for negligence. Q. Are there any exceptions? A. There are two major exceptions, (i) One, if you are injured as a result of a fall from a height; and (ii) if you are injured by a dangerous or defective piece of machinery or product. (i) Fall From a Height New York State Labor Law requires that an owner or contractor provide certain safety devices, such as scaffolding, harnesses and proper ladders for workers at a job site who are working at an elevated height. If the owner and/or contractor failed to do so and the worker is injured, the owner and/or contractor is automatically liable for any injuries and pain and suffering. In this case, a lawsuit can be brought against the owner and/or contractor of the construction site. This is not limited to new construction, but could include general repairs and improvements, such as roofing, replacing windows, etc. Q. How do I know if I have a case? A. This is a complicated statute to explain. However, we at Capasso & Massaroni have extensive experience in dealing with these cases and should be able to tell you after a brief telephone discussion whether or not we believe you have a case. Please feel free to call us at 1-800-529-7761 or e-mail us at mail@capasso-massaroni.com (ii) Defective Machinery or Product Often times an employee is injured when a piece of machinery breaks, collapses, explodes, etc. or does not have the proper guarding or safety devices on it. In these cases, the manufacturer of the machine or the company that is responsible for the maintenance of the machine or equipment may be liable. If you think you may have such a case, please feel free to call us at 1800-529-7761 or e-mail us at mail@capasso-massaroni.com. IV. Dog Bites Q. If I am bitten by a dog, is the owner automatically responsible? A. The owner is not automatically responsible unless either: (1) the dog bites you while off leash and not on the owner's property; or (2) the owner had prior notice that the dog had some vicious tendencies. Q. Is it true that I must prove that the dog bit somebody else before me? A. No. It is only necessary that you show that the owner had some notice of "vicious tendencies". Although the fact that a dog bit somebody before may be the best way of showing vicious tendencies, it can also be shown in other ways, such as the fact that the dog would often growl at strangers, strain at his lease, that there were "Beware of Dog" signs on the property, etc. Q. Who decides what the damages are that I am entitled to receive? A. If your case goes to trial this is decided by either a judge or a jury. The judge or a jury at a trial would listen to testimony from you as to how the injury has affected your life and will listen to testimony from your doctor, as to how this injury has affected you physically and how it may affect you in the future. Q. Will I have to go to court? A. Very few cases actually go to trial. In our practice, more than 90% of the cases settle without going to court. However, it is important that the lawyer representing you is an attorney who is experienced in trying personal injury cases rather than just going for a quick settlement. It should be an attorney who has a reputation with the defense lawyers and insurance companies as someone who can and will take a case to trial should they offer you an unreasonable settlement or no settlement at all. We find that our very high success rate in trying cases in court has enabled us to obtain better settlements for our clients and has also made it less likely that we'll ever have to go to court. But, if we have to go to Court, we can assure you that we will put all our resources, time, experience and knowledge behind your case to give you the best chance of winning. If you have any more questions, please contact us at 1-800-LAW PRO-1 (1-800-529-7761), V. Choosing A Lawyer Q. Given all the television, radio, and yellow page ads, how does one choose a lawyer? A. Usually asking your friends or relatives or calling the lawyer who wrote your Will or did your real estate closing isn't enough anymore with today's complex legal system. Today we are in an era of specialization. We're all used to this with our medical services. We go to our primary care doctor for general sicknesses, but if we have a serious problem, we almost always end up seeing a specialist. In choosing a personal injury attorney, you want to know several things. How many cases does this attorney handle per year? How long has this attorney been handling personal injury cases? What is his or her win/loss record? Is the attorney a trial attorney, or is he merely a "go between" who refers the case to another attorney if he can't settle it? Is the lawyer recognized by his or her peers as an expert in the field? For example, does he or she teach trial tactics for Bar Associations or Trial Lawyer Associations? Is the lawyer referred cases by general practitioners in the community who don't handle personal injury cases? These are good indicators of the lawyer's experience and reputation. The lawyers of Capasso & Massaroni LLP have taught courses for the New York State Trial Lawyers Association, the New York State Bar Association, the Capital District Trial Lawyers Association and the Albany Law School. Vincent Capasso, Jr. is a former President of the Schenectady County Bar Association. John Massaroni has been elected to the Board of Directors of both the New York State and Capital District Trial Lawyers Associations for the past five (5) years and has been Chairman of the Trial Law Committee of the Schenectady County Bar Association. John R. Seebold has been an officer of the Schenectady County Bar Association. John R. Seebold has been an officer of the Schenectady County Bar Association for several years. At Capasso & Massaroni LLP we receive regular referrals of personal injury and medical malpractice cases from various attorneys and law firms both within and outside of the Capital District. We have received referrals of cases from attorneys as far away as California. Finally, you should always meet the lawyer who will actually handle your case (not just the "P.R." guy), to make sure you feel comfortable in placing this important matter in his hands. If you have any more questions, please contact us at 1-800-LAW PRO-1 (1-800-529-7761), VI. Case Evaluations Q. Do I have a case? A. If you are unsure as to whether or not you have a case, please e-mail us with a brief summary of the facts at mail@capasso-massaroni.com or call us at 1-800-LAW PRO-1 (1-800-529- 7761) and speak to one of the attorneys or paralegals at our firm. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. If you have any more questions, please contact us at 1-800-LAW PRO-1 (1-800-529-7761).
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