June 22, 2012 By

Failure to Diagnose and Treat Nursing Home Injuries

In today’s world, where more and more people are living longer, and the demand for nursing home care continues to rise, the risk of injury to nursing home residents has become a serious issue. Many nursing homes are understaffed, or have employees who lack adequate skills or training. A resident can suffer a serious injury that may not be noticed by caregivers, resulting in unnecessary pain and suffering, complications, and even an early death.

Failure to Diagnose a Nursing Home Injury

The failure to diagnose a nursing home injury can stem from a variety of reasons:

  • The nursing home may not have adequate staffing—The residents in a nursing home often need regular monitoring and care to either minimize the risk of injury, or to quickly respond to injury. Understaffing can lead to serious problems. An aide may neglect to put up rails or other safety devices. They may not be able to.
  • The nursing home may have inadequate procedures for identifying injury or illness—Many residents in nursing homes are either incapable of communicating the nature of an injury, or unwilling to make an issue of an injury. Without proper procedures in place, a resident may be able to mask an injury for a significant period of time.
  • The nursing home may have poorly trained employees, or employees who lack the skills to diagnose an injury or illness—An employee may lack the skills to recognize different types of conditions, such as bed sores, infections or the signs of dehydration or malnutrition.
  • A caregiver may try to play down a serious injury to protect themselves—If a caregiver believes that they may get in trouble if an injury is discovered, they may attempt to persuade the resident that the injury is not serious, or does not need further attention.

Negligence in Treating a Nursing Home Injury

Once an injury has been diagnosed, a nursing home employee may still be careless in treating it. The employee may neglect to seek the appropriate medical care for the resident, or to bring in a nurse or doctor, when called for. If medication is prescribed because of the injury or illness, the failure to monitor the resident’s dosage, and to make certain that proper medications are taken at the right times can also be the basis for a personal injury claim.

Contact Taylor & Boguski

To schedule a free initial consultation, contact Taylor & Boguski by e-mail. To learn more about our practice, visit our practice area overview page.

Filed Under: Personal Injury Tagged With: , , , , ,
May 22, 2012 By

What are the Differences between Divorce Mediation, Arbitration, and Traditional Divorce?

If your marriage is coming to an end, New Jersey provides you with options as far as the process of dissolution. Many divorcing couples today choose mediation, arbitration, or combine one of those processes with traditional divorce. You can approach each method with our without hiring an attorney. The process that is right for you depends on your relationship with your spouse, your financial situation, your interest in negotiating rather than litigating (going to trial), and the complexity of issues involved. The following paragraphs consider control (who makes the final decision), privacy, and cost.

Who makes the final decision, privacy, and other issues

In successful divorce mediation, you and your spouse choose a mediator to help as you make all decisions regarding division of property and alimony/support. You and your spouse decide what the rules will be as your proceed. The meetings with you, your spouse, and the mediator conclude when you have worked out a divorce agreement. You and your spouse may consult with divorce attorneys during or at the conclusion of the process. Either party can discontinue mediation at any time and refuse to sign any agreement. If both spouses sign a divorce agreement, the family court judge will typically approve it quickly, and it will become part of the divorce judgment. If the divorce involves children, the court will take your wishes into consideration when determining custody and child support. Mediation is usually substantially less expensive than a litigated divorce. Mediation is a private, closed process. The records are not public.

In divorce arbitration, you and your spouse will choose an arbitrator to decide on the terms of your divorce, including division of property and debt, alimony/spousal support, and child support. You may select a professional with special expertise in an area of concern, such as tax law or special needs child support, or simply choose an arbitrator you feel comfortable with. You decide whether the decision of the arbitrator will be binding. The arbitrator will examine the facts and listen to each of you present your case, and then make a decision. If you agreed on binding arbitration, you will not have the right to appeal the decision, although the court will review child support and child custody issues if requested. Divorce arbitration is considered a less difficult and expensive process than traditional divorce. Arbitration is a private, closed process. Records are not public.

In traditional divorce, one spouse files a complaint for divorce. The court then sets a schedule of appearances. Each spouse will independently decide whether to hire counsel. If you hire a lawyer for your divorce, you will have little direct communication with the judge—your attorney will handle most statements. Your attorney and you’re your spouse/spouse’s lawyer will charge fees for all time spent preparing for or discussing the case. If no agreement is negotiated, the case is litigated in court. Court records are public, the terms of the divorce are decided by whichever judge hears the case, and attorney fees may be considerably higher than in a mediated or arbitrated divorce.

Contact us or visit our Practice Areas page for more information about Taylor & Boguski.

Filed Under: Divorce, Divorce Mediation Tagged With: , , , , , , , , , , , , , , , , , , , ,
May 22, 2012 By

Permanent Partial Disability vs. Temporary Total Disability

New Jersey Workers’ Compensation law provides, in some areas, clear and concrete guidelines for work-related injury awards. Loss of a middle finger below the first joint, for example, is compensated with an award equal to 25 weeks pay. On the other hand, determination of disability, permanent or temporary, partial or total, depends on subjective evaluations of the employee’s ability to perform work.

How a judge determines permanent partial disability

Permanent partial disability is defined in the Workers’ Compensation statutes as permanent impairment. Criteria considered in determining disability include a reduced ability to work in light of age, training, and experience. The injured employee will be examined by two doctors, one presumably favoring the employer, and one the employee. The case will then be heard by a Judge of Compensation, who will listen to the employee’s description of the effect the injury has had on his or her life. It is recommended that the employee be represented by a workers’ compensation attorney at that hearing.

In a 9-11 World Trade Center case, Judge Ferriaro determined that David Handshuh’s permanent orthopedic pulmonary, neurological, and neurosychiatric injuries equaled 60% of total disability. She did so after listening to testimony of numerous doctors. Her decision referred to “the usual disparity in the estimates of permanent disability offered by the doctors,” commented that she was not bound by those estimates, and stated that she found Handshuh’s doctors to be more persuasive and credible. (Handschuh v. New York Daily News)

A determination of temporary total disability

There is common confusion, even among medical professionals, between the terms impairment and disability. Medically, impairment (altered health status) does not necessarily result in a disability (inability to perform actions previously possible). Social Security and Workers’ Compensation guidelines have more specific, work-related definitions.

Under New Jersey Workers’ Compensation law, disability is in part defined by the person’s reduced wage-earning capacity. Temporary total disability benefits are wage compensation paid until an injured employee is able to return to work. It is calculated at 70% of the weekly wage received at the time of the injury, not to total more than 75% of the average or less than 20% of the average. Temporary disability exists until the worker is as far restored as possible (in other words, has reached maximum medical improvement), whether or not the worker is able to return to work. It can be paid up to 400 weeks. The patient’s doctor determines when the patient has reached that endpoint in recovery, or is able to return to work.

An injured worker who feels the doctor has erred in determining the patient’s ability to return to work or endpoint in recovery can file a claim with the New Jersey Department of Labor and Workforce Development. The claims process is challenging and the outcome can critically affect the worker’s quality of life. For that reason, the worker is advised to retain a workers’ compensation lawyer. The attorney will charge no fees until the matter is concluded, when the judge will determine the amount of the legal fees.

Contact us for a free attorney consultation, or visit our Practice Areas page for more information about Taylor & Boguski.

Filed Under: Work - Related Injury, Workers Compensation Tagged With: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,
May 22, 2012 By

Factors to Consider When Choosing a Divorce Mediator

By pursuing divorce mediation, you are taking an important step toward resolving issues in the most financially and emotionally economical manner. When you approach the court with property, child support and custody agreements you have worked out yourself, you have maintained control of your future and that of your children. The judge is very likely to approve your agreement and include its terms in the final divorce settlement.

Now, what factors should you consider when choosing a divorce mediator? And where can you look?

When you contact a divorce mediator, be prepare to discuss the following points:

Credentials. You should feel very comfortable asking for a clear explanation of a divorce mediator’s credentials. New Jersey does not require family law and divorce mediators to be licensed or certified. It does have certain training and supervised experience requirements for mediators working in court-approved settings. Training requirements can be met through a relevant advanced degree or by completing a course approved by the court. Experience can fulfill part of training requirements. Professional mediation associations may base membership and referral requirements on the state standard. Has the mediator been appointed to the matrimonial roster maintained by the New Jersey Administrative Office of the Courts?

Personality and style. You and your spouse have to feel comfortable with the mediator’s style. Will you feel more comfortable with someone who simply facilitates your discussion, or are you looking for someone to give direct instructions? Will you feel safe and comfortable discussing sensitive issues with this person? You and your spouse may each want to meet with the mediator to get a first take on compatibility. The divorce mediator should not be offended if you decide to work with another person.

Experience and reputation. Ask how long the mediator has been in practice and how many divorce he or she has handled in the last two years. Ask about results— what percentage of mediations were successful, and how many couples ended up litigating their cases. (An average rate of successful mediated resolutions would be in the 65-80 percent range.) Is the mediator willing to provide references? Have any complaints been filed with the courts or professional mediation associations? Does the mediator train or mentor newer members of the profession?

Cost. Fees should be clearly stated. The mediator who charges the lowest rate will not necessarily be the most economical choice, but there should be no question about the billing structure.

Does the mediator work with attorneys? Some mediators suggest clients have respective divorce lawyers review their final agreement.

The number of meetings necessary to reach an agreement will depend on the complexity of your issues and the distance you and your spouse have to cover to meet at a common ground. A skillful divorce mediator will guide you as you set aside painful personal issues and focus on the business at hand: preserving the maximum marital estate, developing an agreement the court will approve as fair, and if there are children, providing the best possible outcome from their perspective.

Contact us for a free attorney consultation, or visit our Practice Areas page for more information about Taylor & Boguski.

Filed Under: Divorce, Divorce Mediation Tagged With: , , , , , , , , , , , , , , , ,
May 17, 2012 By

Gary W. Boguski – Selected to Speak at the Second Annual Workers’ Compensation Seminar

Gary W. Boguski was selected to serve as a speaker at the Second Annual Workers’ Compensation Seminar held in Mount Holly on May 1, 2012.

The Workers’ Compensation Seminar is held annually throughout the state of New Jersey. Each year a range of workers’ compensation topics are discussed. This year the seminar focused on discovery issues facing workers’ compensation attorneys, the going and coming rule, and how to properly handle the issue of when medical treatment is paid for by a client’s health insurance.

Mr. Boguski, with over thirty-four years of workers’ compensation experience, presented on the petitioner’s perspective on the issues.

Filed Under: Press Release, Second Annual Workers’ Compensation Seminar Tagged With:
April 22, 2012 By

FELA vs. Workers’ Compensation

Workers in most industries are insured for work-related injuries under state workers’ compensation laws. Railroad workers, however, are covered by the Federal Employers’ Liability Act (FELA). Both systems were established as progressive measures to compensate workers for on-the-job injuries and work-related illnesses, and to promote safety measures on the part of employers. FELA was passed by Congress in 1907. In 1911, New Jersey was one of twelve states to pass workers’ compensation legislation (at that time referred to as workman’s compensation). Beyond the industries affected, distinctions between the programs include the bases for claims, the role of fault in determining an award, the court where the case is handled, types of damages, and the contemporary philosophy underlying the legislation.

The basis for a claim: FELA requires a railroad worker to prove an on-the-job injury was, at least in part, the result of negligence on the part of the railroad (or a railroad employee, agent, or contractor). In contrast, New Jersey Workers’ Compensation law, like that in other states, does not require proof of negligence, and requires an employer to compensate a worker for any work-related injury or occupational illness.

The role of negligence in a claim: Workers’ comp does not require any evidence of negligence on the part of the employer, and negligence on the part of the employee will not reduce the amount of the claim. FELA observes the doctrine of contributory negligence, a fault-sharing system where an employee partially responsible for his or her on-the-job injury will receive an award reduced in proportion to that responsibility. Determining the percentage of fault in a FELA case is highly subjective; as a result the decision of a court used to the traditional personal injury system may be hard to predict.

Where the claim is tried: An injured railway work may file a FELA claim in a New Jersey State or Federal court, and is entitled to a jury trial. A worker injured in another industry will file a claim with the employer’s workers’ compensation insurance company. In the event of a dispute, the worker may file a claim petition or application for an informal hearing with the New Jersey Division of Workers’ Compensation. The case will then be assigned to a state judge and district based on the county where the worker lives or is employed.

Types of damages available: Both FELA and workers’ comp claims provide damages for past and future wage loss and medical treatment. FELA provides damages for pain, suffering, and emotional distress; workers’ compensation does not. Each plan provides some compensation for permanent partial or total disability, and workers’ compensation has a payment schedule to compensate for the loss of use of a limb, hearing, vision, or other function. The way damages are calculated differs significantly between the plans.

Why two systems? The railroad industry has repeatedly lobbied Congress to repeal FELA or replace it with a system similar to workers’ compensation; Congress has resisted. Supporters of FELA cite it as more than a railroad workers’ compensation plan, providing critical encouragement to the railroads to curb unsafe practices and improve dangerous work environments.

In the event of a work-related accidents

The railroads and other employers will attempt to minimize costs resulting from an on-the-job accident or work-related illness. Supervisors are trained to immediately collect information and evidence to support the employer’s defense against any claim for damages. To preserve the right to FELA or workers’ compensation benefits, an injured worker should report the accident or illness, but not make any statement until after consulting with a workers’ compensation or FELA lawyer or with a union representative. The worker should immediately record the names and contact information of any witnesses, and write out a private record of any events surrounding the accident.

Contact us for a free attorney consultation, or visit our Practice Areas page for more information about Taylor & Boguski.

Filed Under: Work - Related Injury, Workers Compensation Tagged With: , , , , , , , , , , , , , , , , , , , , , , , , ,
April 22, 2012 By

Causes of Truck Accidents

When a trucking accident results in serious injury or death, assigning liability for victims’ losses is critical, and depends on accurately determining the cause or causes underlying the crash. Evidence degrades quickly, and witness’s memories become unreliable after a short time. For that reason, investigators from the National Transportation Safety Board (NTSB) arrive at the scene of a serious truck accident shortly after the crash is reported. Investigators from the trucking company’s insurance company may arrive even before the NTSB. As a result, there is good data available on causes of truck accidents.

What are the primary reasons for trucking accidents?

Crash reconstruction experts agree that most truck accidents are complex events, involving more than one causative factor and two or more vehicles. It is common for more than one factor to contribute to the crash. A truck-crash causation study conducted by the Federal Motor Carrier Safety Administration (FMCSA) and National Highway Traffic Safety Administration (NHTSA) concluded that a majority of truck accidents involved fatigue, alcohol, and speeding. When breaking out details overall, however, the study pointed to a much wider range of factors that increase the risk a large truck will be in an accident, including some that may have occurred long before the accident.

  • Driver error was considered a critical reason for 87% of the accidents, and includes two major categories—the driver’s condition before the crash, and decisions made by the driver. The most common critical events resulting from driver error were driving out of the lane, crossing into another lane or off the road and loss of control due to speeding. The category of driver condition includes poor training, driver fatigue, alcohol, illness, and use of legal or illegal drugs. Poor decisions on the part of the driver include traveling too fast for conditions, responding to work pressure from carrier, inattention (distracted driving due to texting, eating, or other activity), following too close, making an illegal maneuver, and responding to an internal distraction in the vehicle.
  • Equipment failure, with brake failure the lead in the category, followed by tire failure.
  • Carrier negligence, a category that includes inadequate driver training and hiring, improper load distribution, pressure to drive longer than legal hours, and failure to maintain equipment.
  • Environmental issues, such as poor road conditions, improperly marked construction zones, and defective roadways can be contributing factors.

Assigning liability for injuries and death

Truck accident injury victims and families of deceased are entitled to compensation from negligent parties. Sorting out the degree to which each party is liable for the damages can be challenging. A person who has a serious injury or death claim should consult with a personal injury attorney as soon as possible after the accident in order to ensure a fair settlement or result at trial.

Contact us for a free attorney consultation, or visit our Practice Areas page for more information about Taylor & Boguski.

Filed Under: Personal Injury Tagged With: , , , , , , , , , , , , , , , , , ,
April 22, 2012 By

Choosing a Doctor & Getting Medical Treatment

You have been hurt on the job, or are showing symptoms of an occupational illness. Your first responsibility was to notify your employer of the accident or injury. Next, you need to submit a request to your employer to get medical treatment. Under New Jersey Workers’ Compensation law, your employer or your employer’s insurance company can select the health-care provider to treat your work-related injury or condition. Some employers will agree to let you see your own doctor or chiropractor. Be sure to have that written permission with you before visiting your own clinic.

You will not have to pay any co-pay or deductible—the entire cost of treatment, including physical therapy, chiropractic treatments, doctor’s visits and other expenses, is covered. The doctor chosen by your employer will typically be under contract with your employer’s insurance company. Unfortunately, some of those providers take advantage of the relationship and do not provide the customer service, quality of diagnostics, and referrals to specialists you would find at your regular clinic.

If you are not happy with the workers’ comp doctor

Your employer does have the right to choose your doctor. However, if that means you are not receiving reasonable and necessary treatment that will cure you, relieve pain, or restore function, you have options. DO NOT go to your regular clinic and try to use your regular health insurance—treatment for a work-related injury is probably excluded from the policy.

You can file a claim in Workers’ Compensation Court, a Motion for Medical and/or Temporary Disability Benefits. Your motion will be scheduled to be heard by a judge within 30 days of filing. The judge can order the insurance company to pay for the treatment, diagnostic studies, or an evaluation by a specialist. If a doctor provides a statement that you need medical care before the hearing, and that a delay will result in irreparable harm, you can file a Motion for Emergent Medical Care.

Should you represent yourself in workers’ compensation court?

The claim process is complex and it is recommended that you retain a workers’ compensation attorney to represent you. Your lawyer will not charge a fee in a workers’ compensation case until the matter is ended, at which time the fee is determined by the judge. That fee will never be more than 20% of the award.

What is maximum medical benefit?

The workers’ compensation authorized doctor will eventually declare you have reached “maximum medical benefit” and should return to work. You may not have completely recovered from your injury and still experience pain and other symptoms, but if you have reached maximum medical improvement, you will not benefit from further medical treatment.

For more than a century, Workers’ Compensation Law has provided New Jersey workers with a no-fault insurance plan for on-the-job injuries and occupational diseases. The system may be challenging at times, but protects workers and forces employers to provide employees with care and compensation in the event of injuries.

Contact us for a free attorney consultation, or visit our Practice Areas page for more information about Taylor & Boguski.

Filed Under: Work - Related Injury, Workers Compensation Tagged With: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,
March 15, 2012 By

Anesthesia Errors in the 21st Century

Since its introduction in the mid-19th century to the present day, anesthesia has become notably safer. The first anesthetic compounds were explosive, dosages were not established, and unexpected negative effects included fatal aspiration of stomach contents.

Today, anesthesia is administered by anesthesiologists (MDs) and certified nurse anesthetists (CRNAs) with extensive specialized training in the field. The operating room (OR) is equipped with devices that monitor blood pressure, blood oxygen levels, and actions of the heart and lungs during surgery. The anesthesiologist can choose from a range of drugs proven to be safe and reliable.

Why do patients still die from anesthesia?

Despite the abundance of knowledge about anesthesia drugs and their effects on humans, about allergic reactions and antidotes and about techniques and devices to keep airways clear during surgery, deaths and serious injuries still result from anesthesia. Some are unpredictable and inexplicable. Others, resulting from human error, are medical malpractice. And still others are the result of defective drugs or medical devices.

It is critical that the patient’s airway remain open to receive oxygen. During general anesthesia (when the patient is unconscious, paralyzed and can’t breath normally), the anesthesiologist protects the airway by inserting an endotracheal tube into the trachea (windpipe). If the doctor carelessly inserts the tube into the esophagus instead of the trachea, the patient’s oxygen level will drop and the patient will suffer cardiac arrest and, if the airway is not cleared within four to six minutes, brain damage. A well-equipped OR will have a device to verify correct placement of the endotracheal tube. When a procedure is done in an office, the risk of error rises.

Anesthesia is an entire branch of medical science, not just a class of (potentially toxic) drugs. The anesthesiologist, nurse anesthetist, and anesthesia assistants are responsible for observing the patient, noting any unanticipated changes after administration of a drug and responding accordingly. Fatigue, stress, inattention, or poor training may result in operating room staff’s failure to identify an emergency and take appropriate measures.

One of the earliest noted causes of anesthesia-relate death was aspiration of stomach contents; it continues to threaten patients today, especially those who are pregnant, obese, or have bowel obstructions. Special techniques will protect those patients. Another human error is overuse of a sedative during a minor procedure, causing a patient to stop breathing and die. Strong sedatives are often administered by poorly trained staff in a doctor’s or dentist’s office. After the anesthetic is stopped, the anesthesiologist’s or anesthetist’s failure to administer drugs to reverse the paralyzing effect may result in the patient’s failure to resume breathing.

Mechanical devices used during administration of anesthesia are very reliable, but the doctor/nurse anesthetist is responsible for going through a checklist to ensure the device is working properly and avoid death or injury from failure of the anesthesia machine, ventilator, or monitor.

A family that has lost a loved one, or a patient who suffered brain injury or another serious injury as a result of an anesthesia error, may be entitled to compensation from the hospital, anesthesiologist, anesthetist, or manufacturer of defective medical equipment. If a survivor is considering a personal injury claim, it is important to work with a law firm with the resources to pursue a complex, expensive case, and a successful record in personal injury law.

Contact us for a free attorney consultation, or visit our Practice Areas page for more information about Taylor & Boguski.

Filed Under: Personal Injury Tagged With: , , , , , , , , , , , , , , , , , , , , , ,
March 14, 2012 By

Amputation Claims, Settlements and Awards

A woman crossing the street in Paterson New Jersey was struck by a bus. Her injuries required amputation of her left leg above the knee, and amputation of part of her right foot. New Jersey.com news reported that more than two years after she filed a claim, she reached a $7.7 million settlement with the transit agency.

A 24-year-old man entered the emergency room after the tip of his finger was severed in an accident. In a paper presented as part of the New Jersey Medical School Interesting Case Series, authors Hahn and Travato suggest that treatment options might vary depend on, among other things, the patient’s age.

The U.S. Consumer Product Safety Commission toddler chair was recalled after two cases of finger amputation or severe finger injury.

What is the value of an amputated leg, finger, or arm?

A person who loses a limb as the result of the negligence or intentional act of another is legally entitled to compensation. What wisdom do the courts and insurers employ to determine the value of a toddler’s finger or an athlete’s leg?

The first and foremost concern of an insurance company is keeping the award low. Typically, the insurer will offer a quick, simple settlement for an amputation injury. A victim is advised to consult with a personal injury attorney before speaking with insurance company representatives about the accident or any settlement. There will be no legal fees for a consultation. The lawyer, experienced in dealing with insurers, will handle the claim while the amputee deals with pain, recovery, and grief over the loss. An appropriate personal injury law firm will have a proven record of successful representation, and have the resources to arrange for investigations, medical and rehabilitation evaluations.

A broad range of factors may affect the outcome of an amputation claim. The judge, jury, or insurance adjuster awarding damages or negotiating the settlement will consider circumstances surrounding the accident, age of the victim, any permanent loss of function, cosmetic effects of the amputation, cost of future treatment, disability accommodations, and any other issues brought to light at trial or in negotiations. The quality of legal representation is critical—insurance companies have entire legal departments employed to contest claims.

A personal injury attorney will file claims for damages against all negligent parties. Causes of accidental amputation and related liability claims may include dangerous conditions on property (premises liability), defective toys, tools, auto parts and other manufactured products (product liability), doctors’ errors and hospital negligence (medical malpractice), construction accidents, and all types of motor vehicle accidents.

If the amputation was due to a work-related injury, the state of New Jersey Workers’ Compensation Law provides a schedule that outlines in specific detail compensation for loss of an eye, loss of the thumb to the first joint, loss of a tooth, amputation of a leg at the knee, and other amputations. Compensation is defined in terms of weeks of work.

Contact us for a free attorney consultation, or visit our Practice Areas page for more information about Taylor & Boguski.

Filed Under: Work - Related Injury, Workers Compensation Tagged With: , , , , , , , , , , , , , , , , , , , , , ,
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