3 Defenses in Every NY Personal Injury & Medical Malpractice Case; Attorney Gerry Oginski Explains
There are some injured victims who believe they have the strongest case possible. They believe that the defense attorney and the insurance company will roll over once they recognize how strong their case is.
These same injured victims believe that if their case goes to trial, there’s no possible way they could lose.
These same injured victims believe there is no way the defense attorney can raise any viable defenses to their case.
The reality is that in every personal injury case, in every accident case, in every medical malpractice case and in every wrongful death case that takes place here in New York, the defense will always raise three issues in order to defend the case against your claims.
The defense lawyer will do everything possible to whittle away at your claim that his client was responsible. He will do everything to show that even if his client is partially responsible, there is no way his actions caused or contributed to your injuries.
The defense will do everything possible to show that even if he is responsible, and those actions caused you injury, that your injuries clearly are not as significant as you claim them to be.
You may truly believe that the people you have sued are totally responsible for your injuries. You may have witnesses to support your claim. You likely have experts to support your case.
Don’t be surprised when your attorney comes back to you and tells you that the defense is fighting your case tooth and nail on liability, causation and importantly, on damages.
Watch the video to learn more…
Here’s a cardiac malpractice case where I was able to achieve a million dollar settlement for my client: http://www.oginski-law.com/video/cardiac-malpractice-in-ny.cfm
Here’s a foot surgery case where a Westchester, NY jury awarded my client .55 million dollars for her pain and suffering: http://ow.ly/azKg6
To learn more about how medical malpractice cases work in the state of New York, I encourage you to explore my educational website, http://www.oginski-law.com/library/joan-rivers-possible-wrongful-death-lawsuit-defenses.cfm.
If you have legal questions, I invite you to pick up the phone and call me at 516-487-8207 or by email at Gerry@Oginski-Law.com. This is what I do every day and I’d be happy to chat with you.
Law Office of Gerald Oginski
25 Great Neck Road, Ste. 4
Great Neck, NY 11021
See full article at (https://injury-pedia.com/defense-strategies-use-personal-injury-case/)
If you are considering filing a personal injury case, it may help you to be aware of the kinds of defenses that the other party (The defendant) may use so you can prepare yourself. If you are the defendant and another party is claiming that you’re liable for causing their injuries you may wish to use some defense strategies that could help you avoid liability and win the lawsuit.
Defenses in a personal injury case are likely to relate to:
What the plaintiff (The injured party) did in relation to the accident. This includes how the accident was caused, and what role they played in causing the accident (If applicable).
What the plaintiff did not do after they were injured, such as filing their lawsuit on time and getting medical help.
The Accident and the Plaintiff’s Role
When a personal injury lawsuit is filed, one of the arguments that the defendant or the defendant’s lawyer will make is that the plaintiff was partially at fault, or completely at fault for their accident that caused their injuries. This is usually the first argument given.
If you are partially to blame it is likely that any compensation you receive will be affected.
If the judge or jury finds that the plaintiff was negligent they then have to work out how negligent the plaintiff was in comparison to how negligent the defendant was.
For example, the judge or jury may find that the defendant was 75% negligent, and the plaintiff 25% negligent for the plaintiff’s injuries. This means that the plaintiff was 25% at fault for their injuries. If it is found that the plaintiff was completely at fault for the accident that resulted in their injuries they may not recover any settlement at all, and their compensation claim may be denied.
Modified comparative negligence –Here a plaintiff is able to claim compensation if they were only 50% or less responsible for the accident. Some states require that the plaintiff is less than 50% responsible for their accident.
Pure comparative negligence –Here a plaintiff can receive damages regardless of how much they were at fault.
In some of the states that follow this type of negligence, plaintiffs who are found to be even slightly at fault for their injury may not receive any compensation as part of their personal injury case. Even if you found to be just 5% at fault, you would not receive any damage for your claim.
Contributory negligence laws are not quite as forgiving as that of comparative negligence laws. This is because in the states that do follow contributory negligence laws victims who are only partly to blame may not get any compensation. The good news is there are only 5 states or jurisdictions that have the contributory negligence law, these states are:
• District of Columbia
• North Carolina
The Plaintiff Failed to Mitigate Damages
The defendant can argue that any compensation they have to pay to the plaintiff should be reduced because their action (Filing the lawsuit) made the damages even worse. This means that if the plaintiff should have gone to the emergency room right after their accident so they could minimize the amount of damage or injury that has been done to them. However, if the plaintiff waited a few weeks before receiving medical help their injuries could have potentially become worse, and therefore their medical treatment would have cost more. The defendant may then argue that the court should reduce the amount of compensation they have to pay out because the plaintiff failed to mitigate damages when the extra expense could have been avoided should they have sought treatment right away.
If you are considering filing a personal injury case, it may help you to be aware of the kinds of defenses that the defendant may use so you can prepare yourself should they make these arguments.
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