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Campus Sexual Harassment and the New Title IX Regulations

Student_depress_on_campus_600x400In 2011 the Obama administration released its now-famous “Dear Colleague” letter that issued new guidelines to institutes of higher education, primarily colleges and universities, concerning their handling of sexual harassment ad sexual assault complaints filed by students. Failure to comply with the new guidelines could result in a loss of federal funding, a consequence few schools could afford.

These guidelines became a lightning rod for criticism from both sides of the aisle and resulted in hundreds of lawsuits being filed in federal courts by defendants, mostly male, who had been expelled or otherwise disciplined by their schools. The Trump administration committed itself to issuing new regulations that essentially repeal many of the “Dear Colleague” guidelines. These new regulations were promulgated and took effect on August 14, 2020.

Background: Title IX

Title IX is a section of the Higher Education Act that guarantees equal access to education for all students, regardless of gender, and prohibits discrimination on the basis of sex. In pertinent part, it states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

The “Dear Colleague” letter used Title IX as an authority to obligate schools to institute certain measures to protect students, primarily female, who are victimized by sexual harassment/assault. These guidelines contained reforms that were widely considered to be hostile to respondents.

Title IX can be used to protect any student, regardless of their sex, who suffers from sex-based discrimination by a university. The new Title IX regulations, to the extent that they affect sexual harassment/assault complaints, were motivated by a belief that the “Dear Colleague” letter had swung the pendulum of justice so far in favor of complainants that it amounted to unlawful gender discrimination against male respondents.

The Legal Status of Federal “Guidance”

Strictly speaking, “guidance” from the federal government is not normally considered to be legally binding the way regulations and statutes are. It is normally used to inform, explain, interpret, or advise. The 2011 “Dear Colleague” letter, however, has been criticized as an illegal attempt to legislate without providing certain rights, such as the right to challenge or to appeal, by calling it “guidance” and threatening to withdraw federal funding for failure to comply.

Criticisms of the 2011 “Dear Colleague” Letter

The 2011 “Dear Colleague” letter was hailed as a major advance by progressives and feminists, among other constituencies. Other constituencies, however, have criticized this guidance for:

  • Mandating that colleges and universities use the “preponderance of the evidence” standard to determine the guilt of someone accused of sexual harassment, sexual assault or rape. This standard is a “more likely than not” or “50 percent plus a feather” standard that is much easier to meet than the “guilt beyond a reasonable doubt” that is applied in criminal trials.
  • Requiring schools to allow the complainant to appeal a finding of “not responsible” if it allows the defendant to appeal a finding of “responsible.” Critics allege that this amounts to a form of double jeopardy.
  • Strongly discouraging direct questioning during a hearing on the grounds that it would be traumatic for a victim of sexual harassment or sexual assault. Most Universities prohibited direct questions by respondents or their advisor of the complainant or other witnesses.
  • Strongly suggesting that Title IX investigations be concluded within 60 days.

Opposition surfaced not only to the 2011 “Dear Colleague” letter but also to common university disciplinary practices that have sprung up in the wake of this guidance. Some schools, for example, prohibited any cross-examination at all, even indirect cross-examination conducted through the defendant’s representative. Other schools drew criticism by relying on a “single investigator” model which abandoned the adversarial model altogether.

The Winds of Change

In September 2017, the Department of Education issued new guidance to replace the Obama-era “Dear Colleague” guidance. This new guidance was considered to be “interim guidance” that would apply only until new regulations were issued. The interim guidance differed from the guidance contained in the 2011 “Dear Colleague” letter in important ways.

The new guidance, for example, eliminated the proposed 60-day deadline to complete a Title IX investigation. It also allows mediation in sexual assault cases, permits schools to raise the applicable standard of proof to “clear and convincing evidence,” and allows schools to permit appeals only for defendants instead of requiring this right to be accorded to either both parties or neither of them.

The New Title IX Regulations

The Department of Education published proposed new Title IX regulations for notice and comment in November 2018. The response from the public was overwhelming, and over 100,000 public comments were received. The new regulations finally took effect on August 14, 2020.

Key Features of the New Regulations

The new regulations incorporate the following key features, many of which are based on court decisions that ruled on cases filed by students who had been subject to disciplinary action by their schools.

  • Advisors can cross-examine the opposing parties and any witness.
  • Institutes of higher education (“colleges”) must offer counseling or academic accommodations to anyone who alleges an offense, regardless of whether they have filed a formal complaint.
  • Defendants must be provided with notice, an opportunity to respond, and a hearing before impartial decision-makers.
  • Although complaints must be resolved in a timely fashion, there is no hard deadline.
  • Both parties must be provided with accurate and complete information about the entire disciplinary process.
    • Schools must investigate both inculpatory and exculpatory evidence, and they must grant equal credibility to complainants, defendants, and witnesses unless there is an individual reason not to do so.
    • The Title IX definition of sexual harassment has been changed to exclude activity that may fall within the first amendment rights of the accused. The regulations, however, do not prohibit a school from instituting disciplinary proceedings for such offenses based on the school’s own code of conduct (rather than proceedings based on Title IX).
  • Schools are required to respond to sexual harassment incidents and complaints, but they cannot be penalized for failing to do so unless they had actual knowledge of the incident or complaint.
  • When a school is legally bound to respond to an incident or complaint, its response must be prompt. It must offer supportive measures to the complainant, explain the process for filing a formal complaint, and meet certain other obligations.
    • Schools must deal with incidents or complaints of sexual harassment that occur on their campus, or off-campus in a facility that is owned or controlled by a college or by a college-recognized student organization (a fraternity house, for example). Schools may (but are not obligated to) deal with sexual harassment outside of these boundaries if it concerns one of their students.
  • Anyone can report sexual harassment, not just the alleged victim.
    • Investigators, decision-makers, and mediators must be trained and must be free from bias or conflicts of interest.
    • Schools can use the “preponderance of evidence” standard or the “clear and convincing evidence” standard, but they must choose only one standard and use that same standard whether the defendant is a student, employee, or faculty member.
  • The school must provide both the complainant and the defendant with access to all relevant evidence, whether or not the school intends to use it.
  • Each party must be given 10 days to respond to the evidence before an investigation is concluded
  • The school must issue a written investigation report that summarizes the evidence, provide a copy to both parties, and allow both parties to review and respond to it.
  • Live hearings are required.
  • Certain rape shield protections are incorporated, but limited exceptions apply.
  • The decision-makers may not rely on any statement made by a party who refuses to submit to cross-examination.

The foregoing is only a partial list of the contents of the new regulations.

The Effect of the Biden Presidency

The Biden administration has already committed to changing many sections of the new regulations. Keep in mind, however, that issuing new regulations takes time. It took the Trump administration 43 months, most of President Trump’s term in office, to do so. Moreover, the Biden administration will face a task more difficult than the Trump administration did.

The Biden administration will face new regulations rather than a mere “Dear Colleague” letter that can easily be rescinded. Accordingly, the Biden administration will not be able to issue interim guidance that contradicts the new regulations. Instead, the new administration will have to live with these hostile regulations until they are repealed.

We Can Help You Fight Back

If you have been accused of sexual harassment or sexual assault at your college or university, disciplinary measures are not a foregone conclusion—you can fight back. Indeed, the legal tools available to do so are more plentiful than ever before, and we have successfully defended accused students on many occasions.

Contact student conducts attorney Julie A. Nociolo at E. Stewart Jones Hacker Murphy for a free initial consultation, by filling out our online contact page or by calling one of our offices in Albany, Colonie, Schenectady, Saratoga, or Troy.

How Can I Defend Myself Against Criminal Charges Arising from a COVID-19 Paycheck Protection Program (PPP) Loan?

Paycheck-Protection-Program-PPP-LoanYou could be charged with a crime if the federal government believes you made a false statement on your application for a PPP loan. The most commonly used defenses in these types of prosecutions include (i) the allegedly false statement was actually true; (ii) the false statement was the result of an innocent mistake; and (iii) the misrepresentation was immaterial.

COVID-19 has rampaged through the US economy like a bull in a china shop. In response, Congress passed an economic stimulus package of unprecedented magnitude. Among the relief measures passed by Congress is the Paycheck Protection Program, or PPP loan program. Federal law enforcement authorities are hyper-vigilant to stamp out any abuse of this program – sometimes at the expense of innocent parties, unfortunately.

The Paycheck Protection Program (PPP)

The PPP loan program closed on August 8, 2020, was one of the primary components of the $2 trillion CARES Act, the federal government’s first major COVID-19 economic relief program. The goals of the PPP program were to:

  • Avoid small business bankruptcy by helping these businesses pay their near-term operating expenses; and
  • Avoid mass unemployment by encouraging small businesses to retain as many of their employees as possible.

The PPP loan program, which was allotted a stunning $350 billion, allows small businesses all the way down to the sole proprietor level to obtain forgivable loans of up to $10 million per business in order to achieve the foregoing purposes. Obviously, this measure sets up a dynamic in which fraud is likely, and false allegations of fraud are perhaps even more likely.

Federal Prosecutions for PPP Fraud

The federal government has initiated and pursued several dozen cases of criminal fraud arising out of the abuse of the PPP loan program. Between May 1 and September 10 alone, the US Department of Justice criminally charged dozens of individuals with defrauding or attempting to defraud the PPP loan program out of more than $175 million in federal funds. The department continues to pursue other potential fraud cases involving the PPP loan program.

The Department of Justice identifies many potential criminal prosecutions by examining PPP loan applications filed through the Small Business Administration (SBA), which administers the PPP loan program. As of September 10, 2020, the federal government had either recovered or frozen over $30 million of the $70 million in PPP funds that it claims were fraudulently obtained (over $100 million more in PPP loan funds were subject to unsuccessful fraud attempts).

Common Forms of PPP Fraud Allegations

When it comes to the PPP loan program, the most likely types of alleged fraud fall into three categories: falsifying basic eligibility requirements, increasing the size of the loan through misrepresentation, and misrepresenting the necessity of the loan. Other types of fraud allegations are possible as well.

Eligibility

To be eligible to be considered for a PPP loan, the applicant must (i) have commenced business before February 15, 2020; (ii) fit the legal definition of “small business”; (iii) not be owned by an undocumented alien; and (iv) not be owned (20 percent or more) by anyone who is in prison, on parole, on probation, charged or chargeable with a crime, or convicted of a felony within the last 5 years.

Loan Amount

Since one of the primary purposes of the PPP loan program is to discourage employers from laying off their employees, the amount of the loan that an employer is eligible for is based on average monthly payroll costs.

To be exact, the maximum amount of the loan should be 2.5 times the employer’s average monthly payroll – if payroll is $100,000, for example, eligibility will top out at $250,000. This amount will give the employer enough money to pay its payroll for two and a half months, hopefully long enough to account for both the COVID-19 shutdown and its aftereffects on the business.

Exaggeration of Payroll Expenses

Exaggerating payroll expenses is the most common form of PPP nor its total payroll expenses to qualify for more than it is entitled to, or to create a shell company with no employees and claim payroll expenses.

This strategy will require representatives of the company to make false statements under oath, which will trigger criminal liability. The company officials who knowingly make false statements under oath will face personal criminal liability, meaning that they could go to prison. The Department of Justice has already initiated criminal prosecutions for exactly this type of fraud (see below for two examples):

  • On June 22, 2020, for example, Elijah Majak Buoi was charged with federal wire fraud in Winchester, Massachusetts over PPP loans worth $13 million. Buai misrepresented both the number of employees his company employed and his company’s total payroll expenses.
  • In May 2020, Manhattan resident Muge Ma (also known as Hummer Mars) was charged with fraud for seeking over $20 million in PPP and other government-backed loans that are designed to help small businesses affected by the Covid-19 crisis. More specifically, he claimed payroll expenses for hundreds of employees in two companies, when he was the only employee of either company.

Necessity

To qualify for a PPP loan, a company must assert that the loan is necessary – in other words, that the loan is necessary to ensure that it continues to operate during the period of economic uncertainty caused by the COVID-19 crisis.

The SBA maintains that public companies or other companies with access to funding are not likely to qualify for a PPP loan under the “necessity” test. Company representatives who make false statements under oath to assert necessity are subject to criminal prosecution. Nevertheless, a claim of necessity by itself is a judgment call that will not necessarily result in criminal prosecution — it is false statements about objective facts that trigger criminal liability.

Types of Criminal Charges

Bank fraud is not the only charge that might be asserted against you if you are accused of abusing the PPP loan program. Depending on the circumstances, you might also be charged with:

  • Making misrepresentations to the SBA;
  • Making false statements to a federal agency;
  • Mail fraud;
  • Wire fraud; and
  • Many other possible charges.

Although it is not always the case, federal charges have a reputation of carrying longer prison sentences than state charges for equivalent conduct.

Possible Defenses

Fraud cases, especially at the federal level, are highly fact-dependent. In other words, they tend to be decided on a case-by-case basis where the court weighs one factor against another. Nevertheless, some of the most common federal fraud defenses are listed below.

  • The “false statement” you were charged with making was actually true – at least at the time, it was uttered. In some cases, the dividing line between a true or false statement is clear. In other cases, it’s a judgment call whether a statement is true or false. Did your business have a real “necessity” for a PPP loan? Our job would be to introduce evidence and arguments that created at least a reasonable doubt as to whether the loan was necessary.
  • You acted in good faith. Remember, criminal charges require criminal intent, and when it comes to PPP fraud, you will prevail if you can show that any mistake you made (as to whether the loan was “necessary”, for example) was innocent and was not intended to deceive. Perhaps you relied on the statement of an incompetent or corrupt accountant, for example.
  • The subject matter of the false statement was not “material.” Keep in mind that ”material” is one of those words that means something very different in a legal context than it means in everyday conversation.
    In this context, “material” means something like “significant” or “important” with respect to the issue of whether you should have been granted the loan. If the misrepresentation wouldn’t have changed the decision, you may have a “materiality” defense.

Civil Liability

Even if you are not convicted of a crime, you or your company might still face significant civil liability – perhaps even enough to bankrupt the company. It is much easier to prove a civil claim than it is to prove a criminal charge.

Move Quickly

If you have been arrested or indicted for a PPP-related offense, or if you even suspect that an investigation is underway, it is critical that you get started preparing your defense as soon as possible. Defenses to these types of charges can involve many complex issues that need to be investigated and prepared for well before trial or even plea bargaining.

The stakes could be high because the risk involved is not only the company’s – individual executives could face prison time. How fast you move can make the difference between an effective defense or either a conviction or a bad plea bargain. If you need help, please do not hesitate to contact our highly-experienced defense team:

Stewart Jones, Jr.(518) 730-4723
James C. Knox  – (518) 730-4723
Julie A. Nociolo – (518) 380-2597

Contact the trusted attorneys at E. Stewart Jones Hacker Murphy for a free initial consultation by filling out our online contact page or by calling one of our offices in Albany, Colonie, Schenectady, Saratoga, or Troy. We’re ready to fight for you!

Excessive Force, Brutality, and Unlawful Shootings by the Police in New York State

During much of 2020, the United States has been rocked with protests over numerous incidents of police misconduct, including fatal shootings and other forms of excessive force. Unfortunately, Albany and the rest of the Capital Region have not been spared. Those who have been victimized by police misconduct (or their survivors in cases where the victim was killed) do have access to certain legal remedies, however, and we know how to use them effectively.

High Profile Incidents of Police Misconduct in the Capital Region

Police officers in Albany and elsewhere in the Capital Region have been accused of inappropriate use of force on many occasions. The following are brief descriptions of three recent high-profile incidents that provoked controversy.

March 2019: The First Street Incident:

In March 2019, a video taken by a police body camera showed Albany police officers, called in because of a loud party, beating three black men. In response, a confrontation took place between the officers and several residents of First Street. Albany police initially charged the men with resisting arrest, but the Albany D.A. later reversed course by dropping all charges against the men and charging one of the police officers with felony assault and official misconduct.

The officer, as well as two other police officers, were suspended with pay pending an investigation into the matter. The criminal charges that were filed against one of the officers have yet to be resolved.

August 2018: Shooting of Unarmed Black Man by Albany Police Detective James Olsen

On August 20, 2018, an Albany grocery store owner called the police on Ellazar Williams, a store customer, after an argument followed by a minor disturbance. When police arrived, they drew their guns and ordered Mr. Williams to stop. Williams fled, and the police fired two shots — one of which permanently paralyzed Williams from the chest down.

Albany police asserted that the shooting was justified because Williams brandished a weapon and rushed the officers. Although the security camera did not show these events, a knife was found nearby that fit a sheath found on Williams’ jeans. The District Attorney sided with the police and charged Williams with felony menacing of a police officer and misdemeanor weapons possession, provoking widespread outrage.

The Albany police officer who fired the shot that paralyzed Williams was investigated, and he was eventually cleared of wrongdoing by a grand jury. Despite this, he retired on January 4, 2019. Charges against Williams were dropped four days later, and he filed a federal civil rights lawsuit against the Albany police. In August 2019 the lawsuit was expanded to include the City of Albany.

Constitutional Rules on the Use of Force by Police

Law enforcement officers have an inherent right to use a certain amount of force in the performance of their duties. This right is limited, however, by various laws at the local, state, and national levels. Ultimately, the legal limits on the right of police officers to use force are defined by the US constitution. Local laws may place further restrictions on an officer’s right to use force, but they may not dilute constitutional limitations on the use of force by law enforcement officials.

The Use of Force Spectrum

The use of force by law enforcement occurs along a graduated spectrum, which officers may not escalate absent a threat sufficient to justify the escalation. The following are six levels of threat or force that are often used by law enforcement.

  1. Physical presence: The mere physical presence of a police officer is often enough to deter illegal activity.
  2. Speech: While it is probably true that only TV cops ever utter phrases such as “Freeze, sucker!”, verbal statements or commands can be more effective than mere physical presence in inducing compliance, especially if the refusal to obey a command would justify an arrest.
  3. Force without weapons: Police officers are trained to use holds, punches, and kicks to subdue a suspect.
  4. Non-deadly use of weapons: Certain weapons such as batons, mace, tasers, and police dogs can easily be used by a trained police officer against a suspect without a significant risk of killing a suspect.
  5. Deadly force: Deadly force can include the use of a lethal weapon such as a gun or the use of a normally non-lethal weapon in a lethal manner (the use of a chokehold by someone trained to kill with their bare hands, for example).

The use of force along this spectrum must stop as soon as the need for it stops – no punitive retaliation is allowed. The amount of force that an officer is justified in using is the minimum amount necessary to de-escalate an incident (tackling a fleeing suspect who has already been placed under arrest, for example) or to protect the officer or others. Any escalation beyond the minimum is considered excessive.

Although the terms “police brutality” and “excessive force” appear nowhere in the US constitution, the concepts underlying that term are expressed in several places, including:

  • The Fourth Amendment’s prohibition against unreasonable search and seizure (where “seizure” is written to include the seizure of a person, not only property);
  • The Eighth Amendment’s prohibition against cruel and unusual punishment; and
  • The 14th Amendment’s prohibition against depriving anyone of life, liberty, or property without due process of law.

Any of these provisions can provide the basis for legal action against the police.

Although all police brutality is prohibited, special rules apply to the use of deadly force. Deadly force can only be used to prevent a suspect from escaping, for example, if (i) it is necessary to prevent the escape, and (ii) the police officer who used deadly force had probable cause to believe that the suspect posed a risk of death or serious injury to others (including the officer) if he was allowed to escape.

Qualified Immunity

“Qualified immunity” is a legal concept that shields public officials, including police officers, from being sued for money damages unless they violated an individual’s “clearly established” rights. Although this concept makes it more difficult to successfully sue the police, its purpose is to prevent public officials from being too hesitant to perform their duties due to fears of civil liability.

Recent Legal Reforms

In June 2020, New York Governor Andrew M. Cuomo signed several bills designed to prevent the abuse of power by the police. The two most prominent reforms were:

  • Banning “chokeholds” by police under any circumstances; and
  • Repealing a statute that allowed New York police officers to conceal their disciplinary history from the public.

Further reforms are expected in the coming months.

The Most Popular Legal Remedies for Victims and Survivors

The two most popular remedies for the use of excessive force by police are filing a civil lawsuit under Section 1983 of the US Code.

Filing a Civil Lawsuit for Injunctive Relief and/or Money Damages under Section 1983 of the U.S. Code

A 1983 claim is a complaint that your civil rights have been violated by someone acting under the “color of law,” which would include an on-duty police officer under almost any circumstances.

Although you may seek injunctive relief (a court order demanding that the defendant do or refrain from doing something), most plaintiffs seek money damages from the police officers and from the city government. If the victim died as a result of police use of excessive force, a claim can still be filed on behalf of the victim’s family and the probate estate.

It is best that you consult with an attorney before filing a claim for money damages. One of the main reasons for this necessity is that your claim might be worth a lot more than you think it is. You might be entitled to compensation for:

  • medical bills;
  • past, present, and future lost earnings;
  • pain and suffering; and
  • any loss of liberty arising from the civil rights violation (false imprisonment, for example).

The “Totality of the Circumstances” Test

Civil rights claims arising from the excessive use of force by police are judged on a case-by-case basis, known in legal parlance as the “totality of the circumstances” test. Factors that may be taken into consideration include:

  • The severity of the victim’s crime (if, in fact, any crime was committed at all);
  • Whether the victim presented an immediate threat to others, including but not limited to the officer;
  • Whether the victim was resisting arrest or trying to escape;
  • Whether other alternatives to the amount of force that as used were available; and
  • Whether the officer warned the victim or could have warned him/her.

Courts also tend to give the officer the benefit of the doubt under the doctrine of qualified immunity (see above).

We Have Won Many Civil Rights Cases Involving Police Misconduct

If you believe that you have been victimized by police brutality, excessive use of force, or another form of police misconduct – or if your loved one was killed by the police – justice demands a response. You have rights that you might not even know about, and E. Stewart Jones Hacker Murphy can help you enforce those rights.

Contact us by completing our online contact form or by calling one of our office locations in Albany, Schenectady, Saratoga, or Troy, so that we can set up a free, no-obligation initial consultation. We look forward to hearing from you!

Governor Cuomo Grants Healthcare Workers Legal Immunity from Most COVID-Related Medical Malpractice Lawsuits

Medical Malpractice Report Documents And The StethoscopeIn March 2020, New York Governor, Andrew Cuomo, responded to the COVID-19 crisis by issuing an executive order granting legal immunity to many healthcare workers, which protects them from negligence and malpractice lawsuits. The state legislature followed up by passing legislation, which Governor Cuomo signed, that extended and broadened the scope of this immunity.

The purpose of Governor Cuomo’s executive order and the subsequent legislation is to encourage healthcare workers to join the fight against COVID-19 (often risking their own health to do so) without an inordinate fear of financial ruin that could be caused by a lawsuit. The immunity granted is not absolute, however. In certain cases, it can be stripped from a healthcare worker and he can still be sued for medical negligence and malpractice.

How Legal Immunity Works

Legal immunity is not so much a defense against liability as it is a defense against ever standing trial in the first place. A defendant who believes he has legal immunity should assert it as soon as he answers the plaintiff’s complaint against him, and it will be the first issue that will have to be resolved. If it is resolved in the defendant’s favor, no other evidence matters. The defendant cannot be tried at all, no matter how convincing the evidence against him.

There are two kinds of legal immunity: civil immunity (immunity from a lawsuit) and criminal immunity (immunity from criminal prosecution). The type of immunity that is the subject of this article is civil immunity, not criminal immunity.

Executive Order 202.10

Governor Cuomo issued Executive Order 202.10 on March 23, 2020. Although it was originally scheduled to expire on April 22, 2020, the Emergency or Disaster Treatment Protection Act (“EDTPA”) superseded it on April 6, 2020. Executive Order 202.10 included the following:

  • It provided qualified legal immunity to healthcare providers against civil lawsuits seeking money damages for injury or death caused by any act or failure to act, that occurred while providing treatment during the COVID-19 outbreak.
  • The legal immunity thereby granted could be stripped from a healthcare provider, allowing him to be sued, if the healthcare provider caused harm due to gross negligence or some other mental state of comparable culpability.
  • The executive order did not clarify whether legal immunity would apply only to healthcare provider decisions involving the treatment of COVID-19 patients or whether it would also apply to healthcare providers treating patients whose cases are affected by the COVID-19 crisis (a cancer patient whose chemotherapy was delayed due to COVID-related hospital congestion, for example).

An Executive Order Becomes Law of the Land: The Emergency or Disaster Treatment Protection Act

Unlike Executive Order 202.10, the  EDTPA is legislation, not an executive order. Since the granting of legal immunity on a widespread scale is more broadly recognized as the prerogative of the legislature rather than of the executive branch, this legislation places COVID-related immunity on firmer legal ground. It also operates retroactively to March 7, 2020 – 16 days before Governor Cuomo issued Executive Order 202.10.

The EDTPA is included in Cuomo’s annual budget for the fiscal year 2021, and also as a new Article 30-D of the Public Health law. It provides qualified legal immunity to:

  • hospitals;
  • nursing homes;
  • administrators;
  • nurses’ aides;
  • nursing attendants;
  • EMTs;
  • home healthcare providers;
  • medical doctors; and
  • other health care professionals.

Among its other protections, the EDTPA immunity protects the above-listed people and institutions from the harmful consequences of decisions that resulted from a shortage of resources (masks or ventilators, for example) or staff.

Limitations

This immunity is temporary – it lasts until the expiration of Governor Cuomo’s emergency declaration, including any extensions. Like Governor Cuomo’s original executive order, the new legal immunity is qualified. It can be stripped from a defendant in cases of harm that was caused by willful misconduct, gross negligence, reckless misconduct, and/or intentional infliction of harm. 

Since the immunity conferred is civil immunity, criminal behavior will also strip a healthcare provider of legal immunity.

Gross Negligence, Willful or Reckless Misconduct, and Intentional Infliction of Harm: What’s the Difference?

Gross negligence, willful or reckless misconduct, and intentional infliction of harm will all strip a healthcare provider of legal immunity. Below are descriptions of each of these concepts.

Gross Negligence

Under New York law, gross negligence is more serious than ordinary negligence. To qualify as gross negligence, an act or omission must exhibit reckless indifference to the rights and safety of others. It is characterized by the failure to exercise even the slightest care.

The difference between gross negligence and ordinary negligence, which is currently protected by qualified immunity, lies in the magnitude of the deviation from the applicable standard of care. There is no objective dividing line; it all depends on the circumstances.

A surgeon operating on a patient while willfully intoxicated would almost certainly qualify as gross negligence, for example, while a lesser error might qualify as the type of ordinary negligence that would result in malpractice damages if not for the protection afforded by Cuomo’s qualified immunity.

Willful or Reckless Misconduct

A person commits willful or reckless misconduct when he intentionally acts (or fails to act) with the knowledge that his act or omission will probably cause harm. Imagine a doctor, for example, refusing to perform CPR on someone having a heart attack because his shift ended five minutes ago.

Willful or reckless misconduct is similar to gross negligence, except that it focuses more on the harm caused rather than on the behavior of the perpetrator. Some courts attempt to distinguish between willful and reckless misconduct. However, the distinction is so fine that it is not worth delving into here.

Intentional Infliction of Harm

Intentional infliction of harm means that the perpetrator positively intended the harm that resulted. Imagine a health care provider, for example, inflicting a beating on a nursing home resident or withholding food as a form of punishment. This type of behavior is not only unprotected by legal immunity, it typically results in criminal prosecution.

Because it is so difficult to revoke legal immunity (little short of absolutely outrageous behavior on the part of the healthcare provider seems to be enough to violate the above-listed standards), the EDTPA is likely to greatly lower the risk of medical negligence and malpractice lawsuits that hospitals, nursing homes, other healthcare facilities, staff, and insurance companies normally face.

Criticism of New York’s COVID Immunity Laws

Surgery scene in New York.New York’s legal immunity laws were designed to encourage doctors and other healthcare professionals to join the fight against COVID-19, and even to recruit new healthcare professionals, by reducing their risk of civil liability. Critics assert that the legal immunity concept has backfired badly, resulting in a far higher death toll than necessary. The following are some of the “hot zones” of criticism.

The Nursing Home Crisis

Astonishingly, the EDTPA actually required nursing homes to accept the readmission of medically stable nursing home residents who had been discharged from the hospital after being treated for any condition, including COVID-19. Furthermore, the nursing home was not even allowed to test any of these readmissions for COVID-19 to determine if they were still contagious.

The results were predictable. New York nursing homes were ravaged by COVID-19 to the point that, as of mid-June 2020, over 6,000 New York nursing home patients had died from the disease, representing more than six percent of New York’s total nursing home population.

Increased Likelihood of Medical Negligence and Malpractice

New York’s COVID immunity laws eliminate many normal record-keeping requirements in order to allow health care providers to quickly perform tasks necessary to respond to a very large and sudden influx of COVID-19 patients. They also allow healthcare providers who are not doctors to provide medical treatment without supervision from a physician as long as the medical services they provide are within their training.

Although these provisions were designed to help the state deal with an epidemic large enough to overwhelm New York’s healthcare system, the lack of accountability that is inherent in these rules, critics say, could result in serious errors being committed by poorly trained staff, with no opportunity for the correction of errors by a supervising physician and no opportunity to use medical records to prove they ever even occurred.

Legislative Update

On August 3, 2020, Governor Cuomo signed legislation that narrowed this sweeping legal immunity measure by removing protections against lawsuits not related to COVID-19.  The law maintains the previously-enacted protections related to the diagnosis and treatment of confirmed or suspected COVID-19 patients, as well as protections for healthcare providers “where appropriate pursuant to a COVID-19 emergency rule.”  The legislation fell short of the full repeal that was advocated for by immunity opponents.

No Justice for Survivors

A large number of COVID-19 deaths are inevitable – there is simply no way around that harsh truth. It is almost as likely to be true, however, that many unnecessary deaths are going to result (and have already resulted) from the “free ride” from accountability that legal immunity provides. Two kinds of survivors will see no justice: (i) people who were harmed by substandard treatment and (ii) the grieving loved ones of COVID-19 victims whose deaths were preventable.

We’re Here to Help

If you believe that you were a victim of medical negligence and malpractice during the validity of Governor Cuomo’s executive order or the subsequent Emergency or Disaster Treatment Protection Act, your claim is not necessarily lost. Since the immunity granted to healthcare workers is not absolute, there may be a way around it. And if there is, we will find it.

Contact E. Stewart Jones Hacker Murphy immediately, either online or at (518) 730-7270, to set up a free initial consultation on your case. Our offices are located in Albany, Colonie, Schenectady, Saratoga, and Troy.

The Impact of the COVID-19 on New York Federal and State Cases and Inmates

A gavel and a Covid-19 note.Covid-19 has affected the New York state and federal justice system in a variety of ways, including the manner in which court hearings are held, the enforcement of a defendant’s right to a speedy trial, and plea bargains. It has also resulted in the release of a number of prison inmates due to humanitarian and safety concerns.

Summary of Current New York State Bail Reform Laws

In New York, anyone who is arrested must be arraigned by a judge before they can be released, unless he is issued a Desk Appearance Ticket (DAT), which operates as a sort of “get out of jail free card.” To stay out of jail between arraignment and trial, defendants may be required to post bail.

Historic state bail reform laws were implemented a few weeks before the Covid-19 crisis began. Under the new bail policies, most non-violent offenders are not required to put up bail to stay out of jail before their trial. Nevertheless, since the defendant must still show up in person for the arraignment itself, the defendant without a DAT can still be held in jail for a significant period (perhaps 36 hours or less) before the arraignment.

Covid-19’s Effect on Bail Bond Hearings

Although opponents are working to rescind New York’s bail reforms, New York’s reduced reliance on the bail system during the Covid-19 crisis greatly alleviates pressure to hold in-person bail hearings during a pandemic whose conditions demand that such proceedings be minimized. The reforms will also help New York deal with the legal challenges when someone’s bail is denied at a remote hearing using videoconferencing technology.

Legal challenges are inevitable, of course, but they will be reduced in number due to New York’s bail reforms. Since no such reforms occurred in the New York federal criminal justice system, expect legal challenges to video conference bail denials to continue for the foreseeable future.

Covid-19’s Effect on Substantive Criminal Law

Has the Covid-19 crisis resulted in new criminal laws being passed? No. Although a stay-at-home order was in place for a while, violations were not treated as crimes. Likewise, violations of business closure orders result in a fine and closure of the business, not criminal charges against the business owner. Repeated violations could, of course, result in restraining orders, a violation of which could result in criminal charges.

Covid-19’s Effect on Procedural Criminal Law

Many courts closed temporarily during the height of the state’s Covid-19 crisis, and they may do so again if a second wave washes over the state. Even if a second wave does not occur, a large backlog of cases is likely to burden the judicial system for some time to come.

Court Closures and Modifications

Court closures were extensive during the height of the Covid-19 crisis. The following is an abbreviated summary of some of the court closures that took effect beginning in March 2020.

New York State Court System

All nonessential court activities were suspended on March 16th, 2020:

  • No new criminal trials were started during the suspension period. In some cases, defendants were incarcerated during the entirety of the suspension period.
  • Special courtrooms were established in certain designated courthouses to handle “essential matters.”
  • The disposition of non-trial felony criminal matters such as motions to suppress, etc. was postponed, as long as the defendant was not incarcerated at the time.
  • The disposition of non-trial felony criminal matters where the defendant was in custody could be resolved through videoconferencing in certain cases. In other cases, matters such as these were simply postponed.
  • Arraignments took place through videoconferencing to the extent that local technology allowed (some remote locations lacked access to this technology).

Federal Courts

In most cases, New York federal courts are completely independent of New York state courts. The federal lockdown included the following features:

  • At the height of the Covid-19 crisis, the New York federal courts suspended jury selection and all jury trials, including criminal trials for several weeks (exceptions were allowed in certain cases). Even bench trials, where no jury sits and the judge decides the case, were suspended during this period.
  • Criminal matters before a magistrate were continued in person, with certain exceptions where such matters were resolved by telephone or videoconferencing.

The 6th Amendment Right to a Speedy Trial

The 6th Amendment to the US Constitution guarantees every criminal defendant a speedy trial. This is meant to avoid the possibility that he will languish in prison for an extended period due to being charged with a crime he did not actually commit and that he will eventually be acquitted of.

One of the main purposes of this rule is to prevent prosecutors, who lack evidence to convict a suspect, from holding him indefinitely, thereby forcing them to, in effect, serve a full sentence for a crime that he may or may not have committed. Someone who is charged with a crime and who is denied a speedy trial can claim a violation of his 6th amendment rights.

The Covid-19 Challenge

How do you guarantee a right to a speedy trial when courts are closed due to a virus pandemic? One way to do this is to take advantage of the ambiguity in the term itself – how soon must a “speedy” trial take place, and to what extent can it be modified by circumstances?

In New York, the Covid-19 crisis was used to justify delays in criminal trials of several weeks. Such a short delay under the circumstances might be seen as consistent with a criminal defendant’s right to a speedy trial, especially if the defendant was not incarcerated during the delay. Nevertheless, the closure of courts has created a long backlog of cases that will persist long after courts have opened back up.

Since New York state and federal courts are still dealing with this backlog, it remains to be seen to what extent the criminal justice system will be forced to resort to the dismissal of charges. If the courts reduce this backlog within a reasonable time, they might be forced to dismiss charges against many criminal defendants, no matter what the evidence against them.

Plea Bargains

In the United States, plea bargains are the rule rather than the exception. In a plea bargain, the defendant agrees to plead guilty to a lesser offense and, in exchange, the prosecutor agrees to recommend that the judge accept the plea. Prosecutors agree to plea bargains when they are uncertain whether they can win in court and when they need to reduce crowded dockets.

The court closures and the resulting backlogs in cases have greatly increased pressure on prosecutors to offer and accept plea bargains. That still doesn’t mean a defendant should plead guilty to a crime he didn’t commit, but in many cases, pressure on prosecutors to secure plea bargains can work in favor of a criminal defendant.

Effect on Inmates

Covid-19 is spreading through New York state prisons. In addition to inmates falling ill, hundreds of staff members in the New York state prison system had tested positive for COVID-19 by late April 2020, very early in the pandemic.

Although the situation is moving too rapidly for any number inserted into a blog post to be meaningful, suffice it to say that Covid-19 numbers have significantly increased in both state and federal prisons in New York, including the Albany area. Nevertheless, the feared explosion in cases has not occurred, at least outside of New York City.

Release of Aging Prisoners

In response to the spread of Covid-19 in state prisons, the state of New York is releasing certain aging prisoners due to their particular vulnerability to hospitalization and death due to Covid-19.

To qualify for early release, an inmate must:

  • be at least 55 years old;
  • have 90 days or less remaining on his sentence; and
  • have not been convicted of a sex offense or a violent felony.

Federal Inmates

In March 2020 Attorney General William Barr ordered federal prisons throughout the nation to release certain inmates due to the Covid-19 crisis. To qualify for release from federal prison, an inmate must:

  • be at least 60 years old; and
  • have never been convicted of a violent or sexual offense.

A high-profile beneficiary of the federal inmate release program was Paul Manafort, former campaign chairman for President Trump, who left federal prison to serve out the remainder of his sentence under home confinement.

Contact Us Immediately with Your Concerns

Handcuffed prisoner in jail.We live in dangerous times – times when social distancing requirements are challenging what it means to be human. If you believe that the New York state or federal criminal justice system has victimized you by using the Covid-19 crisis as an excuse to treat you unfairly, well, that doesn’t surprise us.

In any case, if you are in trouble with the New York state or the federal criminal justice system, you need to act immediately to retain an experienced defense lawyer. Contact E. Stewart Jones Hacker Murphy, through our online contact page or by telephone, for a free consultation. Although we have offices located in Albany, Colonie, Schenectady, Saratoga, and Troy, we will be happy to speak with you over the telephone.

Police Brutality, Qualified Immunity, and The Killing of George Floyd

On May 25, 2020, George Floyd, a 46-year-old black man, died in the custody of the Minneapolis police when a white police officer, Derek Chauvin, knelt on his neck for nine minutes while Floyd was handcuffed and lying face down on the street. Officer Chauvin continued kneeling on Floyd’s neck for at least three minutes after he had stopped breathing.

Floyd’s death triggered massive worldwide protests against police brutality and racism, and all four officers were arrested and charged with felonies. The case has triggered discussions in legal circles about reforming the police and limiting the application of the doctrine of qualified immunity, which protects officers from personal liability for actions performed in the line of duty.

What Is Police Brutality? Section 1983 and the Use of Excessive Force by Police Officers

The term “Section 1983” refers to the Civil Rights Act of 1871, passed in the aftermath of the Civil War, which allows people whose constitutional rights have been violated by government officials to sue those officials in civil court for money damages, including personal injury damages and wrongful death damages. Actions are typically brought under the Fourth Amendment to the US constitution, which prohibits unreasonable search and seizure.

Section 1983 has been amended and reinterpreted several times in its history, and it has often been used as a legal weapon to fight police brutality against ordinary citizens, particularly citizens of minority ethnic groups.  Section 1983 cannot be used against a private citizen acting in his personal capacity – even if that citizen happens to be a government official – but only against someone acting “under the color of law” such as an on-duty police officer.

Excessive Force 1983 Cases

Stewart Jones Hacker Murphy has represented a number of clients who have been victimized by the police, including:

Exactly How Much Force Is Considered “Excessive”?

The answer to this question is necessarily vague since it must apply to any officer using force under any circumstances. The general standard is that an officer uses excessive force when he used more force than a hypothetical “reasonable officer” would have used under identical circumstances. This definition begs the questions, however, of exactly what a “reasonable” officer would have done under this or that circumstance.

Generally speaking, the legal standard for what a “reasonable” officer would have done under similar circumstances is defined by courts making decisions in cases with highly-specific fact patterns. When a new case arises with different facts, lawyers for opposing sides will argue that “this case is like Case X” or “no, this case is more like Case Y,” in order to convince a judge to apply Section 1983 in a manner that is favorable to their client.

The inquiry, however, attempts to focus on the objective reasonableness of the amount of force that was used under the circumstances of a given case. A particular amount of force is not necessarily excessive even if the suspect was killed, and it is not necessarily reasonable even if the suspect was not injured. The officer’s state of mind is irrelevant. The question is not whether the officer acted in “good faith,” but how his actions compare with a “reasonable” officer.

The Burden of Proof

The “burden of proof,” also known as the “burden of persuasion,” refers to the weight of evidence that must be gathered against a defendant to prove whatever charge or claim is being asserted against that defendant – a wrongful death, for example (a civil offense) or a murder (a criminal offense).

The burden of proof that applies in a Section 1983 civil lawsuit for money damages is very different from the burden of proof necessary to prevail in a criminal prosecution against a rogue police officer. In almost any civil trial, the applicable legal standard for the burden of proof is typically a “preponderance of the evidence.” This means that the evidence in favor of the claim outweighs the evidence against it, even if only slightly.

The burden of proof that applies in a criminal prosecution is guilt “beyond a reasonable doubt,” which is normally a much more difficult standard to meet. In other words, it is easier to win a lawsuit against someone than to successfully prosecute them for a crime. Although the doctrine of qualified immunity does complicate matters, it can be invoked in either a civil lawsuit or a criminal trial.

This disparity between the criminal and the civil versions of the burden of proof is one of the main reasons why O.J. Simpson was acquitted of the murders of Nicole Simpson and Ron Goldman in 1995, but found liable in 1997 for $33.5 million in wrongful death damages for the deaths of the same two victims.

The Impact of Cell Phones, Squad Car Videos, and Body Cameras

Modern technology has dramatically altered the legal landscape when it comes to excessive force cases, because encounters between police and citizens can be (and usually are) filmed by bystanders. In addition, most police are required to wear body cameras to film their encounters, and squad cars are equipped with cameras as well. Civil rights claims that were once impossible to prove are now becoming commonplace.

Qualified Immunity: An Unfair Legal Defense Weapon?

The primary defense used by accused officers in Section 1983 cases, and in criminal prosecutions against officers for the excessive use of force, is known as “qualified immunity.” Qualified immunity is a principle that has not been codified in any law passed by Congress. Instead, it is a court-made law.

In a nutshell, qualified immunity allows police officers and other government officials immunity from civil or criminal liability – or from even standing trial – when performing discretionary acts in the line of duty, such as apprehending or arresting a criminal suspect. The reasoning behind qualified immunity is that it would be unfair to subject the decisions made by an officer, often made under great pressure, to after-the-fact second-guessing.

Negligence

A very controversial aspect of the qualified immunity doctrine is that proving negligence (carelessness) by the defendant is not enough to overcome a defense of qualified immunity. The idea is that nobody would want to become a police officer if a momentary lapse in judgment – which everyone experiences from time to time – could subject an officer to financial ruin or even prison time.

Nevertheless, intentional or outrageous acts used against a victim of excessive force can overcome a defense of qualified immunity, regardless of whether the defense is raised in a Section 1983 civil case or in a criminal case. A possible example is the second-degree murder charge against officer Derek Chauvin. Chauvin’s lawyer is certain to raise a qualified immunity defense, for example, although this defense may or may not be successful.

The “Clearly Established Law” Principle

To strip an official of qualified immunity and thereby subject him to legal liability for his actions, the official must have violated “clearly established statutory or constitutional rights of which a reasonable person would have known”. It is irrelevant whether the officer himself knew of these rights — all that  matters is whether the hypothetical “reasonable person” would have known of them.

A right is considered “clearly established” if prior case law has addressed the conduct in question, and in a manner that leaves little or no doubt as to the illegal nature of the official’s conduct. In other words, prior case law must include a case with similar facts in which it was determined that the conduct in question is illegal. The main problems with the “clearly established law” principle include:

  • Although the Supreme Court can establish the law for the entire US, it is not obvious that a court in Texas has the power to establish the law that applies in New York. Consequently, a right might not be clearly established nationwide unless the Supreme Court has ruled on the issue.
  • Critics allege that the “clearly established law” protects qualified immunity, but only for officials who find new ways to violate someone’s rights.

Excessive Force vs. Qualified Immunity: The Irresistible Force Meets the Immovable Object?

Ultimately, the trial of the officers in the George Floyd case is likely to revolve around the concepts of excessive force vs. qualified immunity. Qualified immunity has come under increasing scrutiny and criticism in recent years, and the pendulum has swung back and forth many times since 1871. Currently, however, the pendulum seems to be swinging strongly in favor of limiting the scope and effectiveness of qualified immunity.

Supreme Court Case Law Development of the Doctrine of Qualified Immunity over the Last 40 Years

Many changes have taken place in the doctrine of qualified immunity over the past few decades. The following is a summary of some of the cases that have reinterpreted this doctrine:

  • Harlow vs. Fitzgerald (1986): The Supreme Court originally defines the doctrine of qualified immunity.
  • Malley v. Briggs (1986): Qualified immunity does not protect a police officer who wrongfully arrests someone on the basis of an obviously faulty arrest warrant.
  • Anderson v. Creighton (1987): Qualified immunity applies to an officer who conducts an illegal search if a reasonable officer would have believed the search was lawful, based on “clearly established law,” and the information possessed by the officer at the time of the search.
  • Saucier v. Katz (2001): A qualified immunity defense must be asserted early in legal proceedings because it is a defense against standing trial at all, not a defense against legal liability. Qualified immunity can be overcome if the defendant violated a “clearly established constitutional right.”
  • Pearson v. Callahan (2009): It is within a court’s discretion whether to apply the Saucier “clearly established constitutional right” test.

2018 Reforms: The First Step Act

The momentum in favor of limiting the qualified immunity defense has been shifting since long before the Floyd case arose. On December 21, 2018, for example, Congress passed the First Step Act. Although the First Step Act contains many provisions, among its most prominent features are new restrictions on the use of force by the police.

Among the First Step Act restrictions are prohibitions on solitary confinement for juveniles, the use of restraints on pregnant inmates, and the increased use of de-escalation procedures to resolve conflicts without the use of violence.

The US Supreme Court Is Taking a Fresh Look at Qualified Immunity

The US Supreme Court is currently considering taking cases that would allow it to overturn or weaken the principle of qualified immunity. Although it is unlikely that the Supreme Court will overturn qualified immunity, it would not surprise many observers if its protections were significantly limited.

Take Action: We’ve Got Your Back

If you believe you may have a claim for excessive force by the police, or if you believe your constitutional rights were violated by the government in some other way, contact E. Stewart Jones Hacker Murphy immediately, either online or at (518) 730-7270, to schedule a free initial consultation. We maintain offices in Albany, Colonie, Schenectady, Saratoga, and Troy.

Motorcycle Accidents in Upstate New York

Your mother was right: Motorcycles are dangerous, even if you wear a helmet. This danger, however, has failed to blunt the enduring popularity of motorcycle riding. Upstate New York, for example, attracts riders from all over the nation, and sometimes from all over the world. Unfortunately, some of these riders end up in the hospital, and a few even end up in the morgue. When someone else is at fault, justice demands a response.

The Tale of the Numbers

The state of New York sees nearly 150 motorcyclist deaths per year, along with over 1,500 inpatient hospitalizations and almost 4,500 emergency room visits. These rates were highest among males aged 20 to 24, which is also the demographic that is least likely to wear a helmet. Motorcycle accidents, more than other types of accidents, are likely to have been caused by the other party to the accident (an automobile driver, for example).

The Most Common Causes of New York Motorcycle Accidents

The following is a list of some of the most common causes of motorcycle accidents in New York:

  • Lane splitting: Lane splitting occurs when a motorcycle tries to pass, by riding between cars. Although lane-splitting is tempting due to the small size of a motorcycle and the convenience afforded by being able to weave your way through heavy traffic, it is illegal in every state except California. If you were lane-splitting at the time of your accident, your case will be difficult to win.
  • Turning left: Turning left will often place you right in the middle of an automobile’s blind spot. Although turning left doesn’t necessarily make the accident your fault, it can still get you hurt or even killed.
  • Getting caught in someone’s blind spot: Turning left is not the only way to get lost in a motorist’s blind spot. Never forget the principle stated on the bumper stickers of many commercial trucks: “If you can’t see my mirrors, I can’t see you.”
  • Rounding a bend too quickly: Rounding a bend too quickly can lay your motorcycle down when an automobile would have survived the turn, due to the ease with which a motorcyclist can lose his balance. Given a motorcycle’s lack of frame protection, the results can be deadly.
  • Distracted driving: Motorcyclists are difficult for motorists to spot even under ideal conditions, much less when the driver is distracted by, say, a text message.
  • Intoxicated driving: Self-explanatory.
  • Debris on the road: Even the remnant of a tire blowout can send a motorcycle into a tailspin, with disastrous consequences at high speeds.
  • Racing.

This list is far from complete – there are a thousand ways to cause a motorcycle accident.

Negotiation vs. Trial

Over 90 percent of motorcycle accident claims settle outside of court. That doesn’t mean injured victims file lawsuits only 10 percent of the time. Sometimes it is necessary to file a lawsuit to force the other side to part with evidence that you need to pursue your claim. In such cases, the parties still typically settle the claim out of court and a trial never occurs. Nevertheless, your only leverage in settlement negotiations is your ability to win by proving your claim in court.

Proving Medical Expenses

The most prominent element of compensation that you are going to need to handle is medical bills. Document all medical bills and keep the receipts, because you will need them as evidence later. You can also use these receipts to prove that you received a particular form of medical care on a specific date.

Naturally, health care providers keep medical records of their own, which you can collect and use as evidence. Don’t rely too heavily on this approach, however, because something might happen – a doctor’s office might go bankrupt and dispose of all of its medical records, for example.

Getting Medical Bills into Evidence at Trial

Collecting medical bills is one thing, but getting them into evidence at trial is another. Even at the negotiating table, the defendant will likely ignore any medical bills that he believes cannot be introduced into evidence should there be a trial. There are two ways to get medical bills into evidence at trial: stipulation and testimony.

A stipulation is when the opposing party agrees to allow medical bills into evidence without challenge. Introducing medical bills into evidence through testimony involves questioning the recipient, the issuer (a healthcare provider), or the issuer’s record keeper under oath to confirm the legitimacy of the bills.

Establishing That Medical Bills Are Reasonable and Necessary

The defendant is obligated to reimburse you only for medical expenses that are “reasonable and necessary.” In particular, this means that:

  • The amount of the bill was reasonable under the circumstances.
  • The bill represents treatment for an injury that was caused by the defendant’s misconduct, not a pre-existing injury.
  • The medical services were necessary for the treatment of the injury. You might trigger some questions, for example, by submitting a bill from a chiropractor.

Maximum Medical Improvement (MMI)

Maximum Medical Improvement (MMI) is the point at which your doctor doesn’t believe your condition will improve anymore. Hopefully, MMI won’t occur until you have fully recovered from your injuries. Unfortunately, however, MMI may leave you with a permanent disability.

Future Medical Expenses

Once you reach MMI, it should be possible to calculate future medical expenses. Of course, if you make a full recovery by MMI, then you shouldn’t incur any future medical costs. If, on the other hand, you suffer a continuing disability that requires ongoing treatment, you are likely to accumulate medical expenses in the future and you should claim them now.

Proving Pain and Suffering

Pain and suffering” refers to the suffering that you endured as a result of your physical injuries. In most cases, compensation for pain and suffering far exceeds the amount awarded for more easily countable losses such as medical expenses. Even though pain and suffering are hard to place a dollar value on, you must still prove this element of your damages claim using admissible evidence.

Each case is different and will warrant a unique amount to compensate the injured victim for pain and suffering. It’s our job to maximize our client’s recovery.  We work closely with the plaintiff’s own treating physicians and, in some cases, retain independent experts to collect evidence regarding a client’s injuries and their value.

Evidence of Pain and Suffering

You can prove the extent and ultimate economic value of your pain and suffering through:

  • Your testimony, including oral and written statements about the extent of the pain and suffering your injuries caused you: Visibility matters – “road rash” is likely to be more convincing than whiplash, although you can receive compensation for both. You might also call household members as witnesses to testify about the extent of your pain.

Unfortunately, your statement that “It hurts a lot” is probably not going to be enough to get you maximum compensation without something else to back it up. Use objective measures, such as your withdrawal from activities that you once enjoyed, strains on your marriage and social relationships, etc.

  • Physical documentation: X-rays and medical charts can help document pain and suffering, as can photos of your injuries and prescription drug records. You can use a morphine prescription, for example, as evidence of severe physical pain, and you can use an antidepressant prescription to prove that you suffered emotional distress related to your physical injuries.
  • Expert witness testimony: An expert medical witness can testify to the degree of pain that is typical of someone suffering from your condition.

Future Pain and Suffering

As is the case with medical bills, if you suffer from a long-term or lifelong injury, you are going to need to estimate and then demand an amount for future pain and suffering. If continuing pain prevents you from returning to your old job, you may need to claim a large amount of future lost earnings as well.

If You Weren’t Wearing a Helmet

Failure to wear a motorcycle helmet at the time of the accident will almost certainly affect the amount of damages you receive. If you suffered a head injury, as helmetless motor vehicle accident victims practically always do, a New York court is likely to rule you negligent as a matter of law and bar you from recovering any money for your head injury. You can still recover for other injuries (road rash, for example) if you can prove the accident was the other driver’s fault.

We Can Help

The aftermath of a severe motorcycle accident is likely to take its place among the most traumatic periods of your life. You are certainly not going to feel like pursuing a personal injury claim against the person who caused the accident, even though your motorcycle accident claim will grow weaker the longer you delay acting upon it. Let us handle it for you.

If you have suffered a motorcycle accident injury, or if your loved one died in a motorcycle accident, contact E. Stewart Jones Hacker Murphy immediately, either online or at (518) 730-7270, to set up a free initial consultation. We maintain offices in Albany, Colonie, Schenectady, Saratoga, and Troy.