Wellborn Paluch, LLP Blog

Friday, February 26, 2016

A Primer on Nursing Home Negligence

As individuals become elderly, for those who are no longer capable of caring for themselves, entering a nursing home may be the only option. This is a difficult issue that affects the entire family. Sadly, there are numerous accidents and failures that occur in nursing homes that lead to injuries. In some cases, intentional acts may cause harm to a resident. Depending upon the circumstances, an elder care facility may be held liable for an injury that arises from an act of negligence, abuse or neglect on its premises.

What types of behavior are grounds for a lawsuit?

The conduct of a nursing home employee or the policies or ongoing practices at such a facility that can lead to a lawsuit include:

  • Failure to keep the premises reasonably safe, free of hazards to prevent slip and fall accidents
  • Failure to prevent abuse or attacks by other residents 
  • Negligence in hiring  when an employee neglects, abuses, or intentionally harms a patient
  • Failure to properly train and supervise employees
  • Negligent supervision of residents who fall or injure themselves
  • Failure to maintain adequate health and safety policies
  • Failure to provide adequate medical treatment

What does standard of care mean?

In order to bring a personal injury or medical malpractice lawsuit, a patient must have suffered an injury because of a mistake that failed to meet the medical standard of care. This generally means the type of care that a reasonable skilled medical professional would provide under similar circumstances. If the care provided falls short of this standard, a case may be brought against the nursing home facility as well as the individual who was responsible for treating the patient or resident.

If a nursing home accepts Medicare, federal regulations require the facility to ensure that:

  • The resident environment is as free of accident hazards as possible
  • Each resident receives adequate supervision and assistance devices to prevent accidents

If the elder care facility fails to comply with these regulations and a resident is injured, the nursing home may be held liable.

 When a resident is injured at a care facility, determining what went wrong and who is responsible can be complicated. If you or a loved one has been injured at a nursing home, you should consult with a personal injury attorney who has expertise in elder care law.

Monday, February 22, 2016

Wrongful Death Suit Filed Against Nanny by Cambridge Parents

What are the possible reasons for filing a wrongful death suit?

Five months ago, prosecutors dropped murder charges against a nanny who was watching a 1-year-old girl in 2013 when the child died suddenly as a result of catastrophic brain swelling and bleeding. Her parents have now filed a wrongful death suit in Middlesex County Superior Court against Aisling Brady McCarthy, the nanny, (who has since returned to her native Ireland). The suit maintains that McCarthy is responsible for the death of Rehman Sabir, age 1, due to the nanny's “negligent, malicious, willful, wanton, reckless and/or grossly negligent acts.”

The Facts of the Notorious Case

Originally, medical evidence, including MRI and CT scans, showed  that Rehma was the victim of shaken-baby syndrome, a diagnosis in which blunt force trauma is associated with excessive shaking, an occurrence that is, tragically, not all that rare. It happens when an adult, frustrated by a baby's incessant crying, shakes the child forcefully in a fit of rage.

Charges against McCarthy were dropped in late August on the grounds that medical evidence introduced by the defense brought into question the idea that the baby's death was a homicide. Nevertheless, doubt remains in many minds, certainly in the minds of the parents of little Rehma.

The recent lawsuit states that "McCarthy intentionally slammed Rehma on the changing table and shook her so violently as to cause the traumatic injuries, including brain swelling, skeletal fractures, hemorrhaging, and herniation, that resulted in Rehma’s death.”  According to the lawsuit, the child’s grandmother visited in the late afternoon and showed concern that Rehma had been napping for an abnormally long time. When McCarthy picked Rehma up in the grandmother's presence, the child was “unresponsive and unconscious.” Rehma was rushed to the hospital where, after two days, she was declared brain dead.

The Defense's Position

The dissension between the opposite sides of this case worsened sharply at the end of August when the medical examiner, Dr. Katherine Lindstrom, who had originally stated that Rehma died of abusive head trauma, found reason to question her original decision. She indicated at that time that it was possible that Rehma had "some type of disorder that was not able to be completely diagnosed prior to her death." She cited Williebrand disease as one possible medical condition that might have been responsible for the child's death, by exacerbating an accidental injury. There were also some questions about whether bone breaks the child suffered took place during the period when she was being cared for by the nanny or prior to that time.

Unexplained by this later medical explanation, however, is forensic evidence at the site, including a missing chunk of dry wall and plaster near Rehma's changing table, and DNA evidence of Rehma's blood found on some wipes, towels, a pillowcase, blanket and clothes in the vicinity, possibly indicating of violence.

Reasons for the Wrongful Death Suit

In the lawsuit filed in Middlesex County Superior Court, the couple maintains that Aisling Brady McCarthy, who has since returned to her native Ireland, is responsible for the death of their first-born child, Rehma Sabir. They insist that their primary reason for filing the lawsuit is to prevent McCarthy from profiting from their daughter's death by, for example, signing a contract to write a book or make a movie about the tragic event.

This lawsuit, they say, is their only recourse to prevent McCarthy from, damaging their child's memory and profiting from her death. They further state that they will drop the lawsuit if McCarthy signs an agreement not to profit from Rehma's death, even if she does not admit to any culpability. As evidence of their pure motives in filing the lawsuit, the couple points to the fact that only the minimum amount, $25,000, is being sought in damages.

Wrongful death lawsuits inevitably involve personal trauma and tragedy. If  someone you love has died as a result of the malice or negligence of another and you wish to file a lawsuit of wrongful death, you should consult with a personal injury attorney experienced in such matters to assist you in obtaining the compensation you deserve.

Friday, January 29, 2016

Buffalo Area Man Pronounced Dead in Error

Is it medical malpractice to pronounce a person dead who is, in fact, alive?

We turn to medical professionals at doctor’s offices and hospitals for help and we trust them with our lives. Many of these individuals are bound by the Hippocratic Oath, which requires them to do no harm. But, what happens when a doctor is so negligent that he lets someone die unnecessarily? This is considered medical malpractice and is what seems to have taken place at an upstate New York hospital last year.

Michael Cleveland suffered from what most thought was a heart attack while grocery shopping in 2015. He was taken to Degraff Memorial Hospital and was immediately pronounced dead by Dr. Gregory Perry. Unfortunately, Dr. Perry failed to take the patient’s vital signs and discover that he was alive and suffering from a collapsed lung. Dr. Perry told Cleveland’s wife of his passing and even informed her that he would be exhibiting some signs of life even though he was dead. When Cleveland began to respond to his wife she knew something was wrong. After informing the doctor and being reassured, the wife claims that Dr. Perry finally checked the patient’s vital signs and found that he was alive. Cleveland was then transferred to Buffalo General Medical Center where he died from complications relating to his collapsed lung.

Cleveland’s wife has brought a medical malpractice suit against both hospitals. She is seeking monetary damages for her husband’s alleged wrongful death but has said that her main goal is to prevent this from happening to someone else in the future.

Medical malpractice is not always as obvious as it is in this case. Sometimes it takes years to discover that you or someone you love has been the victim of medical malpractice. Nonetheless, if you believe that you have been affected by the negligence of a medical professional, you may be entitled to compensation. Call us today, and one of our skilled personal injury attorneys can help you recover what you deserve.

Thursday, January 28, 2016

State Investigating Mysterious Upsurge in Long-Term Care Injuries & Deaths

Who is liable when an elderly or disabled individual is injured due to caretaker neglect?

Approximately two years ago, Governor Cuomo implemented the Justice Center – an agency with a primary responsibility of investigating suspicious deaths of elderly or disabled individuals involving state workers. Most notably, the Justice Center is expected to conduct thorough investigations of any death that may have been caused by direct patient abuse or neglect. However, according to the details of an alarming new report, the Justice Center actually declined to investigate nearly all of the deaths occurring in state care since June, 2013 – which amounts to nearly 1,400.

Staggering numbers

Relying on New York’s public information laws, an advocate for the developmentally disabled population – to which his son belonged before being smothered in state care in 2007 – requested the investigative data covering June 30, 2015 through the present. During that time, an alarming 1,381 patients died in state care, and only six of those deaths were actually investigated in any measure by the Justice Center. Of course, a percentage of these deaths were immediately linked to natural causes or the natural progression of the victim’s condition. Nonetheless, many are decrying the seemingly obvious conclusion to be drawn from such disparate numbers: the Justice Center is not doing its job.


Prior to the implementation of the Justice Center, the New York Times published a horrifying report detailing the patterns of abuse and neglect occurring at state-run facilities for the elderly and disabled. At the time, any situations involving possible abuse or neglect were left to the center to investigate internally. Now, with just six cases making it to the desks of the Justice Center, many wonder if the same problems are occurring in a similarly cyclical nature, with all non-Justice Center cases being left to the center to investigate internally.


In 2014, just one fatal case of abuse was prosecuted, and it involved a nurse who fell asleep on the job resulting in the death of an oxygen-dependent patient. In that same year, 169 cases of non-fatal abuse were prosecuted, notwithstanding a reported 25,000 complaints of abuse or neglect lodged to the Center statewide.


If you are aware of elder abuse or neglect of the disabled, you may be able to initiate a lawsuit on behalf of your vulnerable family member against the center or facility tasked with their care. 

Sunday, December 20, 2015

Proving Personal Injury from Defective Products

In order to make a successful defective product liability claim, several factors come into play.  While particulars that must be proven may vary from state to state, in general product liability law requires that you prove the following:

Read more . . .

Monday, December 14, 2015

Filing a Notice of Claim in New York State

What should you do if you are injured on government property, or as a result of the negligence of a government employee.


In New York State, persons making an injury claim arising from negligently maintained property owned by a City, Town, or Village, or arising from the negligence of a public employee, must serve a document called a Notice of Claim upon the government entity, within 90 days of the injury. (Note, this notice requirement can be as short as 60 days if the claim involves negligence of a transit authority, such as were a person is injured as a result of the negligence of a transit authority bus driver).  The service of the Notice of Claim is a required step, in preserving your injury claim, and must be done before a lawsuit can be filed in the Courts. Failure to satisfy this notice requirement, can result in you case being dismissed, as time barred. The requirements for the Notice of Claim are set forth in New York General Municipal Law Section 50(e). 

What form of the Notice of Claim is required and how should it be served?

The notice must be written, sworn to before a notary public, either by the claimant or on his or her behalf. It must include:

• Name and post-office address of the claimant, and his/her attorney, if any
• Nature of the claim
• Time, place, and manner in which the claim arose
• Dollar amount of damages or injuries claimed, insofar as practical at the time.
The Notice of Claim must be served to the government agency by personal delivery or registered or certified mail to a person legally responsible for receiving summons in Supreme Court actions.

When is the lawsuit instituted?

The lawsuit must commence within one year and 90 days after the incident or event that precipitates the claim.

How is the claimant examined by the government?

The claimant is required to give an oral deposition under oath explaining the incident and the extent of damages or injuries allegedly suffered. If physical injuries are involved, the government may have the claimant examined by a qualified physician. The claimant has the right to have his or her own physician present as well.

If you have been injured or suffered damages and believe the claim involves an injury on government property, or negligence of a government employee, please don't delay. Call us immediately so that we can take immediate steps to preserve your claim. Are lawyers are available 24/7, at 1-716-254-2554 or toll free at 1-844-855-HURT.   

Saturday, November 21, 2015

Emergency Vehicle Collides with Passenger Vehicle in Niagara County

What can I do if I am injured in a motor vehicle accident in New York?

Recently a sheriff’s deputy collided with a passenger vehicle here in Niagara County. The two occupants of the passenger vehicle were injured and brought to a nearby hospital. Fortunately, their injuries were not life-threatening, but certainly pain and suffering, medical bills, and down time will be involved.However, there is new technology that may help find the cause of this or other accidents. Your personal injury attorney should have knowledge of such technology and so be able to help gather evidence that may turn the tide in your favor in any upcoming lawsuit.

Because one of the cars involved in the accident was a patrol car, it had a camera aboard which may well have captured video from the dashboard of the car. In addition, the deputy had a body camera that may have been recording at the time. Viewing these video feeds should provide unimpeachable evidence that can be used to determine the particular causes involved. Such evidence can assist in yielding an appropriate verdict or civil settlement

The foregoing are just a few reasons why accident victims should retain an personal injury attorney promptly. It is best to retain a personal injury attorney well-versed in evidence- gathering and preservation, as well as in all laws relevant to the particular case.

Saturday, November 7, 2015

In Aftermath of Recent Homecoming Disasters, Who's to Blame?

Liability for damages can extend beyond the  party who is directly at fault for an accident at  a school-sanctioned event.

Mid-October, 2015 has seen one tragedy after another – with two separate, catastrophic homecoming parade disasters occurring on the same weekend. The first tragedy occurred at the Oklahoma State University Homecoming Parade when an intoxicated driver careened into the stands, killing three adults and one 2-year-old child. The same afternoon, another drunk driver smashed into a fraternity picnic, injuring seven attendees, including one woman who suffered a broken neck.

In the wake of such tragedies, it is not uncommon for victims and family members to seek answers – particularly, whether such tragedies could have been avoided. From a legal standpoint, all victims undoubtedly have a cause of action in personal injury – but against whom?

Without question, the two intoxicated drivers involved in these incidents are most assuredly liable in the accident. However, could there be additional responsible parties besides the direct causes of these accidents? As the facts suggest, both drivers were legally drunk at the time of the collisions, so it is possible that either was over-served at a local bar or restaurant. In this scenario, it may be possible to name the bar or bartender who provided alcohol to a clearly intoxicated person as, at least partially, liable.

Could the schools face liability as well? Possibly, depending upon the security arrangement at the time of the crash, whether security personnel were aware of any misdeeds prior to the event, and whether the events were properly supervised. Moreover, a school could face liability for failing to hire qualified and/or experienced security staff to work the events in question.

As with any personal injury case, the result will be highly fact-driven, and any number of resolutions could come about.

Thursday, October 22, 2015

Another Truck Accident Snarls Traffic on Thruway

Have you been injured in a truck accident?

Near the end of this summer, a multi-vehicle accident claimed two lives on the New York State Thruway. A box truck carrying mattresses careened across two lanes and the median, colliding with a pickup truck going in the opposite direction. Both occupants of the box truck were killed. Others were injured. The accident left so much damage spread over the thruway that traffic did not move for much of the day. This was an absolute tragedy, but after all is said and done, certain parties may owe other parties compensation under the law for any wrongful activity that contributed to the crash. When compensation is at issue, there is no more important decision than choosing the right personal injury truck-accident attorney. The skilled attorneys at Wellborn Paluch specialize in such litigation.

There are multiple reasons to choose Wellborn Paluch to represent your truck accident claim. One reason is that truck accident litigation features specialized rules. For example, federal and state law mandate that truck drivers keep detailed daily logs which list travel information, truck operation information, maintenance information, etc. Also, many trucks are equipped with a special mechanism to record data during an accident. Your attorney should be well-versed in the specific rules that govern truck accidents and knowledgeable about the presence of specialized mechanisms that record pertinent data. Your attorney should also be familiar with the common causes of truck accidents, such as improperly loaded cargo, mechanical issues, and driver drug use, fatigue, or inexperience. Knowing the common causes of such accidents can help in the process of gathering evidence to improve one’s case.

It is quite clear from the particular accident described that injuries from truck accidents can be very serious. An experienced attorney will be knowledgeable not only about the law, but also about what kind of settlement or verdict can be expected based on all of the available evidence. Further, in terms of preserving this evidence, it is imperative that you call our office as soon as possible. We will prepare a detailed list of items, and place the trucking company on notice of their need to preserve every item. Failure to preserve these items could then result in the victim having legal presumptions created in their favor. However, delaying your initial contact to our office, can cut-off our ability as your counsel to get out these important notices. Delay ultimately can result in lost opportunities to obtain and preserve evidence, and ultimately can weaken a case. The greater the evidence, the greater the leverage during settlement talks. Likewise, the greatest possibility of receiving fair compensation comes when you retain a skilled and experienced attorney.

For a free consultation about your truck accident claim in the Buffalo area, call Wellborn Paluch, LLP at 1-844-855-HURT or 716-254-2554.

Saturday, October 10, 2015

Repeated Nursing Home Violations in Western New York

How common are nursing home violations in New York State?

We have all read with dismay, and sometimes horror, the tales of nursing home abuse against the most vulnerable members of our community. The most violations cited with these residential facilities, are health and fire violations. More than two dozen nursing homes in Western New York have been cited in a new statistical study by a national nursing home advocacy group. What makes this study even more disturbing is that the nursing homes in question were cited for repeated violations.

The national organization that revealed this data, The Coalition for Quality Care, is a conglomerate of state and regional groups created to support and maintain the highest possible quality of health care in long-term facilities. The group feels strongly that the country as a whole needs stronger enforcement of regulations regarding long-term care and that nursing homes found to have repeat violations on the same issues for three years in a row should be unable to continue admitting patients.

Facts culled from national data indicate that 44 percent of U.S. nursing homes are permitted to continue receiving public funds and admitting new patients in spite of repeated health and fire violations. In Buffalo and  surrounding western New York, 26 public and privately owned nursing homes are listed with three or more years of repeat health violations. Two from the region were listed for repeat fire code violations.

In addition, the study, which was conducted in conjunction with Voices for Quality Care, using federal inspection records accumulated by the Center for Medicare and Medicaid Services (CMS), showed a variety of repeated healthcare violations, including poor standards of food storage, poor bed care resulting in bed sores, and poor record-keeping. It is alarming to think that as our aging population continues to grow larger, we continue to fail them by not ensuring safety at the facilities that house them.

If you or a loved has suffered personal injury as a result of nursing home neglect or abuse in western New York State, or if you would like to consult about other personal injury issues, please contact one of our skilled and experienced attorneys at Wellborn Paluch: 844-855-HURT or 716-254-2554.

Saturday, September 26, 2015

Court Considers Gym Class Injury Lawsuit

Whether a minor student can initiate a lawsuit against another student and/or the school in the event of severe gym class or recess injuries?

  • While the occasional bump or bruise is not uncommon within the school setting, injuries more serious injuries often occur when games get too rough and/or adequate adult supervision is not provided. In the latter instance, injured children may file a lawsuit for compensation against the individual responsible for the harm and the school responsible for monitoring the activity. Personal injury lawsuits initiated by minors are handled and analyzed the same way as those filed by adults. However, an adult must actually file the claim on behalf of the child – a role most often filled by the child’s parent or guardian.

In one recent case, the New York Appellate Division, Second Department considered a lawsuit filed by a middle school student injured during a heated game of indoor gym class soccer. According to the lawsuit, another child attempted to intentionally trip the plaintiff, causing him to sustain severe injuries. Shortly thereafter, the injured child filed a lawsuit for damages – which was unfortunately dismissed at the appellate level after several jurists concluded that the evidence did not support a finding that the defendant tripped the plaintiff intentionally.

For children experiencing a similar plight in gym class, a successful personal injury lawsuit may be possible in the event that the teacher in charge failed to adequately explain the rules of the game, or was simply not paying attention to the students while they engaged in physical activity. While a child is not exempt from liability for intentionally causing harm to another student, the court will take the child’s age and maturity level into consideration when determining if a finding of civil liability is appropriate.

 Please note as well, there are often strict time lines in legal claims, particularly those which involve negigence of a governmentally owned institution, such as a public school.  In those cases, a "notice of claim", placing the public institution on notice of the action must be filed within 90 days of the injury.  Although the "notice of claim" period, may not be considered a statute of limitations in the strictest sense, failure to timelty give notice and have the same effect in time barring the Plaintiffs claim.  So call us as soon as possible after the injury occurs to discuss you and your injured child's rights.

At Wellborn Paluch, we work closely with victims to help maximize compensation following a catastrophic injury. For more information about how we can help your case, contact us today: 1-844-855-HURT or 716-254-2554.

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