Personal injury attorneys are advocates for people who have been injured in an accident, whether it is a slip and fall, trip and fall, work related, car, motorcycle or recreational accident.  Our job is to represent the rights of the injured party, not the insurance company.  So, why do personal injury attorneys have such a bad reputation in our society and why are we so often seen as greedy ambulance chasers?  Whether the reason for the negative image is television, commercials or the few bad apples out there, the stereotypes are damaging to our legal system and society. The legal system is what people should turn to in their time of need. It is their last avenue for appeal and redress when private parties and the government will not act responsible for their negligent acts. And truth be told‚ the goal of the vast majority of personal injury lawyers out there is to help people in their time of need.

Injury attorneys not only help people‚ but the most important consequence of their work is a safer environment for all of us, our children, mothers, fathers and friends. Corporations and people have to be concerned about what can happen to them if they do not behave in a reasonable manner.  Safety laws and regulations that are currently in place are largely the result of injury attorneys; enacted in response to negligent behavior‚ and these laws provide a standard which intends to keep the public healthy and safe.

There may be a time in your life when you are faced with a situation that will require you to hire a personal injury attorney. You should be represented and protected and not made to feel like just another file in the filing cabinet. You are an individual with your own worries and hopes about your injury claim and we are here to help you.

This is especially true with us at Stark & Stark. We treat all of our clients with the utmost care and we do everything we can to ensure that your rights are represented. If you or your family are ever injured in an accident‚ please contact us  for a free consultation.

 

In recent years, politicians in the country have repeatedly proven willing to place political expediency and corporate interests ahead of the rights of the general public. In yet another example of this, New York Governor Andrew Cuomo has reportedly introduced a measure as part of his budget proposal which seeks to limit the rights of victims of malpractice, including brain damaged babies, without regard for fairness or the actual facts of the individual cases. Ralph Nader has spoken out against this measure on his website.

In the vast majority of medical malpractice cases involving a baby who suffers a brachial plexus injury at birth, the central issue which is being contested is whether the obstetrician used excessive force when freeing the entrapped shoulder. The defense typically advances three arguments:

  1. the brachial plexus injury did not occur during the delivery but on chronic stretching of the brachial plexus in utero prior to delivery;
  2. the obstetrician used only gentle traction;
  3. whatever the degree of traction used, it was necessary because without prompt delivery, the baby would have died or would have been severely brain damaged.

The proof of the first defense is based on reports of babies having a brachial plexus injury even though they were delivered via Caesarian Section. This defense overlooks the fact that improper techniques used during the Caesarian, including an incision which is too small or the use of inappropriate traction, can cause a brachial plexus injury. In addition, if there is no muscle atrophy of the affected arm and shoulder at birth, the injury cannot be chronic.

The second defense is basically nothing more than a self-serving assertion by the obstetrician that he was “gentle.” It ignores the fact that gentle traction cannot cause severe injuries to the brachial plexus.

The third defense is an excuse for the failure to use proper technique, that is, to follow the shoulder dystocia drill in which all obstetricians are trained. The fact that a shoulder dystocia is an obstetrical emergency does not mean that the obstetrician is permitted to panic and use excessive force to deliver the baby.  

While most children who develop cerebral palsy have uneventful births, in a small percentage of children, however, their births are associated with a period of oxygen deprivation. The medical records in such cases will typically refer to perinatal asphyxia or hypoxic-ischemic encephalopathy. Where the period of oxygen deprivation at birth is due to medical malpractice, the injured child may have a right to monetary compensation for his injuries.

In the 1990s, the American College of Obstetricians and Gynecologists and the American Academy of Pediatrics issued a report which had a clear purpose: to make it almost impossible to prove that any case of cerebral palsy was caused by oxygen deprivation at birth and, hence, by obstetrical negligence.

Fortunately for children with cerebral palsy who have been the victims of obstetrical malpractice, the advent of a new technology in the past five years has changed the legal landscape. So-called cool cap technology has become available in essentially all large hospitals offering care to newborns. This technology offers hope of salvaging more brain function in newborns who have been subjected to oxygen deprivation during the time of labor and delivery. In order to justify using this technology, however, the hospitals require that severe oxygen deprivation at or near birth be diagnosed. If the ACOG standards were used, no infants would get cool cap treatment. Thus, in practice in the real world the ACOG standards have been shown to be what they are: a legal stratagem rather than a scientific statement. A by-product of the use of the cool cap technology is that the medical records are now more honest. In the cases of children who receive cool cap treatment and who still go on to develop cerebral palsy, the medical records now permit a fairer assessment of whether obstetrical negligence was a cause of their brain injuries.