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Binghamton Law Blog: Covering Topics from Personal Injury to Estate Planning Law

Attractive nuisance injuries can bring premises liability claim

Although the attractive nuisance laws typically apply to homeowners, small business owners in New York might be held responsible if children suffer injuries on their properties. Many business owners make their premises fun places because children often influence their parents when it comes to choosing where to do business. If there are hazards that could be deemed attractive nuisances, business owners might find themselves facing premises liability lawsuits.

Many businesses establish play areas that could entice children to wander onto the property, and if these areas are left unsupervised, children might suffer injuries. However, this also applies to other hazards. Anything that a property owner fabricated or placed on the premises could qualify as an attractive nuisance. It is the business owner's responsibility to do hazard assessments and address anything that could harm children of all ages.

Drafting wills is best not regarded as DIY projects

Estate planning can be complicated, and a process that is best done with the support and guidance of legal counsel. To underscore the fact that wills are not to be regarded as DIY projects, New York residents can look at a case in another state in which a woman had only a handwritten will when she died. The document stated that 65% of her estate must go to her life partner and the balance to an aunt.

However, the aunt was already deceased at the time of the woman's passing, and the will had no instructions for what must be done with the remaining 35%. The surviving life partner petitioned for the entire estate when the will was in probate, but the testator's half-brother filed a separate petition, claiming that intestacy laws made him the legal heir of the 35%. Although the probate court agreed with the latter request, the court of appeals did not, and the probate court's judgment was reversed.

Car accidents: Does outcome of criminal case affect civil suit?

Victims of auto crashes in New York can pursue financial relief if they can prove that another party's negligence caused their injuries and other damages. This is done through the civil justice system of the state. In many cases, criminal charges are filed against drivers whose reckless driving or intoxication caused car accidents. Can a civil personal injury lawsuit still be filed after a driver's guilt in causing the crash could not be proved in criminal court?

The viability of a civil lawsuit is not linked to the outcome of a criminal case. This is because the civil court requires proof of negligence by a preponderance of the evidence while a conviction in criminal court can only occur if, and when, the prosecution proves guilt beyond a reasonable doubt. Even if evidence of negligence, recklessness or bad intent is not sufficient for a criminal conviction, it might be enough to obtain a monetary judgment in a civil court.

Trusts are like specialized tools added to a toolbox

Investors in New York might know how they would prefer to have their assets distributed after death, but they might have questions about the most appropriate way to plan it. One way to do this is by adding trusts to their estate planning, similar to adding a specialized tool to a toolbox for a specific purpose. The specifications of an irrevocable trust cannot be modified, but a revocable trust can be modified as often as the grantor wants during his or her lifetime.

Trusts can be established for specific purposes, such as special needs trusts, generation-skipping trusts, asset protection trusts, and credit shelter trusts. Although life insurance, property, securities and nonretirement bank accounts can be used to fund a trust, retirement accounts cannot be owned by a trust. Irrevocable trusts render certain assets untouchable, providing asset protection. Revocable trusts can avoid probate, and the grantor can appoint an entity or person to manage the funds.

Medical malpractice suit might follow teenager's death

A New York family is struggling to deal with the tragic death of a teenager. The family indicated they intend to file a medical malpractice claim against the SUNY Downstate Medical Center. They claim the medical facility's negligence led to the 15-year-old's death.

Reportedly, the boy experienced chest pains, and he was hospitalized after it was noticed that there was blood present in the mucus when he coughed into a tissue. The family claims he was diagnosed with a muscle strain, and the blood was blamed on a dry throat -- a problem that the hospital said could be resolved by using a humidifier. They say he was discharged from the hospital on the same day, and he was cleared to go back to school the following day.

Many medical malpractice claims involve diagnostic errors

The last thing any New Yorker who needs medical treatment would want is being misdiagnosed by a doctor. However, as two recent studies and several in the past decade found, a significant percentage of medical malpractice claims against physicians involved misdiagnosis. Analysis of claims showed that the failure to assess the entire clinical picture by analyzing all of the available information appears to be the primary cause of diagnostic errors. This includes the patient's medical history, the symptoms he or she reported, the physical examination and all test results.

One recent study reports that medical malpractice claims filed from 2013 through 2017 showed that almost half of them were diagnosis-related. Nearly half of those cases resulted in the death of the patient. The second study by another malpractice carrier looked at malpractice claims involving the treatment of children from 2008 through 2017, and the outcome showed 38 percent of those claims resulted from misdiagnosis.

Traumatic brain injury consequences can be life changing

The Centers for Disease Control and Prevention says almost 2.8 million people nationwide, including New York, will be TBI victims during this year. Anyone can suffer a traumatic brain injury, whether it is while participating in sports or as the result of a slip-and-fall injury or car accident. The reality is that it could be a life-altering injury that might prevent the victim from returning to work, and long-term therapy might be par for the course.

Regardless of the victim's age, the manners in which brain injuries affect people are unique to each case. The brain is a complex organ, and the area in which the damage occurs will determine the consequences. It could affect senses such as smell and taste, mobility, or even a person's heart rate. Some victims of TBI have to relearn to speak, stand, walk, eat and more.

Wills, estate planning and new parents

With a newborn child in the house, changes to familiar dynamic are inevitable. While new parents adjust to those changes, they might neglect to consider the changes this new member of the family brings to their legacy planning. Life is unpredictable, and lives can be lost in split seconds. New York parents might be wise to modify existing documents such as wills and beneficiaries and appoint guardians as soon as possible after such an event.

Choosing a guardian is a crucial step that needs careful consideration. It is essential to select a person who is not only willing and able to do it but also someone who will provide loving care and always act in the best interests of the child in the event of the death of both parents. Does this person live by the same values and standards as the parents?

Medical malpractice for misdiagnosis is not uncommon

Anyone who feels ill enough to go to the doctor will naturally expect the physician to diagnose the condition accurately and provide the necessary treatment. Unfortunately, the number of medical malpractice claims that go through the New York civil courts indicate that many conditions are misdiagnosed. When this happens, complications can develop, often severe enough to lead to disabilities or death.

Some conditions are more frequently misdiagnosed than others, one of which is cancer. The Journal of Clinical Oncology shows that a significant percentage of different types of cancer are misdiagnosed, often due to missing information, incomplete medical history or insufficient patient evaluation. Heart attacks are often misdiagnosed due to the variety of possible symptoms, which are typically different in younger patients than older victims. Heart attacks are often mistaken for heartburn, bronchitis, stress or anxiety.

Revocable trusts: Valuable in planning for blended families

The circumstances and dynamics of each New York family are unique, and so are their estate planning requirements. Fortunately, tools such as revocable trusts are available to meet the needs of all. They are particularly useful for blended families in which both parties come into the marriage with their assets and children from previous relationships, and children might be born in the new union.

Advisers say it is wise to discuss the distribution of assets while both spouses are healthy instead of waiting until one spouse is debilitated or deceased. Each spouse can create a trust and fund it with his or her assets. Their respective trusts could provide them with support for as long as they live and then support the surviving spouse if one of them dies.

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