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

Medical malpractice claims must meet 4 elements to be valid

What are the legal options for people who have suffered severe health damages as the result of the negligent conduct of medical professionals? Each year, thousands of people nationwide, including New York, pursue claims for financial relief to cover damages caused by medical malpractice. However, unfavorable outcomes do not necessarily constitute viable medical malpractice lawsuits, and the patient must prove four legal elements.

The first element is the obligated legal and professional duty of the medical care provider toward the patient. This duty includes providing the patient or his or her legal heir with information that identifies the disease or medical condition and obtaining acknowledgment by the patient. The doctor must also suggest the best way to treat the illness and only proceed upon receiving proof of consent by the patient. The patient will have to provide evidence of the breach of duty by the medical professional.

Wills: Testamentary capacity compromised after dementia diagnosis

For estate planning documents to be valid in New York and elsewhere, the testator must have had testamentary capacity when the papers were signed. In cases in which wills were signed or modified after dementia diagnosis, challenges might be filed. One man had several questions after his three siblings pressured their father into changing his will.

The man reported that his siblings, along with legal counsel and two witnesses, arrived at their father's home and presented a newly drafted will. The father, who had recently been diagnosed with early-stage dementia, was informed that his previous will was inadequately witnessed. The father struggled to read the document but signed it anyway, after which, the two witnesses added their signatures to the new will. They departed without leaving a copy of the will for the father or the remaining sibling to read.

Medical malpractice: Neil Armstrong's family settles claim -- $6M

Most New Yorkers trust doctors with their lives because of their extensive training and the Hippocratic Oath physicians must take. Unfortunately, that trust is sometimes misplaced and keeps many people from asking questions or expressing their concerns about medical procedures or treatment. The medical malpractice claim that followed the death of an American icon underscores the importance of patients being fully informed of their choices and the potential outcomes of proposed surgical procedures.

During the 50th anniversary of landing on the moon, it was reported that the hospital that cared for Neil Armstrong after the removal of a temporary pacemaker secretly agreed to pay a settlement to the famous astronaut's family. Private negotiations led to a $6 million wrongful death settlement. The family alleged that the need for the pacemaker followed premature heart bypass surgery, and negligence during its removal caused internal bleeding that led to Armstrong's death.

Multiple injuries possible in bus vs. car accidents

Commuting on the busy roads of New York state could be dangerous. This was recently underscored by a collision between a car and a bus. Car accidents that involve large trucks or buses typically result in multiple injuries suffered by occupants of the vehicles. In this case, 10 people were admitted to the hospital for treatment of crash injuries.

Reportedly, the accident occurred shortly before 4:45 p.m. on a recent Tuesday on Route 347. A police report indicates that rescue workers from the fire department responded to the crash scene to find a car that had crashed into the rear of a bus in an intersection. Reportedly, the bus carried 10 disabled adult passengers.

Contested wills often follow allegations of undue influence

New York laws allow people to create and maintain estate plans to choose to whom assets will be left upon their deaths. These plans typically include wills and trusts, and inter vivo transfers could also form part of estate planning. Unfortunately, many unscrupulous opportunists find ways to misuse others and take advantage of them. Typical targets are older people who own substantial assets and who are vulnerable because of illness, memory problems and isolation from family members.

The opportunists are often in positions of trust, and they manipulate and deceive older adults into including them as beneficiaries in trusts and wills. They might also try to convince the testators to bestow them valuable gifts. Wills, trusts and inter vivo transfers are often modified without the knowledge of the immediate family. It is usually only after the death of the testator that irregularities are suspected.

Premises liability claims can follow carbon monoxide poisoning

Improper installation or manufacturing defects in heating appliances have caused carbon monoxide poisoning in many New York residents. When this happens, the owner of the property or the business or person who installed, repaired or serviced the appliance might be held responsible in a premises liability lawsuit. Typical causes of this deadly condition involve leaks in gas-burning water heaters and other heating appliances.

The presence of carbon monoxide in a rented residence or a hotel room often goes unnoticed until it is too late because it is odorless and colorless. To successfully present such a lawsuit, the plaintiff must identify the source and pathway of the carbon monoxide from the source to the victim. The force that drove the poisonous gas along that path must be defined, and the exposure of the victim will also be considered.

Wills: Appointing an executor deserves careful consideration

Estate planning is a crucial yet challenging task. Advisors in New York discourage people from leaving the drafting of wills and establishing trusts until they have reached middle age. Although many see it as a daunting task, debilitating or even fatal injuries can occur at any age, and being prepared is crucial. One of the tasks that needs careful consideration involves appointing an executor for the estate.

An executor serves as the legal representative of the testator, and such an appointment is subject to the court's approval. The executor will locate and oversee all the assets upon the testator's death. The probate court will require a list of assets that include bank accounts, retirement accounts, real estate, stocks and bonds, jewelry, and other valuable items. The probate administration of real estate property falls under the state in which it is located. All other assets fall under the deceased person's state of residence at the time of his or her death.

Living with a brain injury might be easier if it is understood

Many people in New York have been victims of auto accidents, physical assaults, falls or sports-related accidents that caused head injuries. Although the skull serves to prevent a brain injury, some incidents can cause severe harm. Living with a brain injury is a challenge for the victim as well as his or her family, friends and colleagues, and understanding it might make it easier.

Head injuries can involve the scalp, skull or brain, and the severity could range from mild bumps and bruising to traumatic brain injuries. They are typically caused by scalp wounds, concussions and skull fractures. The brain can be damaged even if there is no open wound, such as a skull fracture. Closed brain injuries are sometimes ignored, often with serious consequences, because internal bleeding and swelling are not visible but could be life-threatening.

A lack of information can lead to medical malpractice claims

The civil courts of New York deal with all kinds of personal injury claims, many of them involving allegations of surgical negligence. Not everybody realizes that they are entitled to get answers to their questions before undergoing scheduled surgical procedures. Medical malpractice claims might be avoided if patients ask the right questions and understand the risks they face.

Asking about the surgeon's experience in similar procedures is certainly appropriate, and requiring detailed explanations about the planned operation and the reasons for proceeding at this time can prepare the patient for the surgery. It's also appropriate to ask about the availability of alternative treatment and about the health consequences of refusing to have the surgery done. The patient is also entitled to be informed about the expected outcome of the procedure.

Trusts or wills -- which are best to ensure proper care for pets?

For many New York families, their pets are like children. When they consider estate planning, they naturally include their beloved pets in those plans to ensure proper care. Are wills the most appropriate way to address these issues, or should they establish pet trusts instead?

When a pet owner chooses to use a will for this purpose, the animal will be regarded as an asset, which is left to a beneficiary in the same way as a piece of art or jewelry. A trusted caretaker will be the beneficiary, and an amount of money can form part of the bequest. However, the will cannot dictate how the funds should be used. The assigned caretaker can be asked to use the money for the care of the pet, but he or she is free to use it for a cruise, to pay for a wedding or any other purpose.

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