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Blog

Geico Faces Deceptive Trade Practices Over Use Biased Medical Opinions

false or true deceptive trade

In a 5-0 decision issued on December 14, 2017, the New York State Appellate Division, Third Department, re-instated claims against GEICO Insurance Company for deceptive business practices related to its use of so-called “independent” medical doctors.

The precedent setting case of Brown v. Government Employees Insurance Company (available at http://decisions.courts.state.ny.us/ad3/Decisions/2017/524696.pdf ) now makes clear that insurance companies cannot simply deny claims based upon biased medical reports.  The case alleges that GEICO’s “independent” medical examiners have a strong financial motive to systematically issue reports that deny benefits whenever an argument can be made that the injuries are pre-existing or degenerative in nature.  It is further alleged that GEICO hires only experts who will go along with its scheme to defraud applicants out of benefits. It is alleged that the “independent” experts have a financial incentive to give GEICO what it wants: medical opinions that support denial of benefits.

Ryan M. Finn, a Partner with E. Stewart Jones Hacker Murphy, LLP (https://joneshacker.com/), represents Brown in the action, and stated as follows “this Decision should be a wake-up call for the insurance industry.  Attorneys representing injured victims have been referring to these exams as defense medical exams for a long time and for good reason:  there is nothing independent about the process and many of these doctors make millions of dollars issuing reports to deny lost wages and medical expenses to injured victims who most need the help.”  For more information please contact Ryan Finn, Esq.  at [email protected] or 518-274-5820.

Will a Nursing Home Arbitration Prevent You from Suing?

Nursing Home Abuse and Arbitration Attorneys Serving Upstate New York Families

Experienced Legal Representation for all of Upstate New York Including Troy, Albany, and Sarasota

nursing home arbitration
When we leave our loved ones in the care of a nursing home, we trust the caregivers to provide their needs and care for them in the best way possible. Unfortunately, this doesn’t always happen. Far too often, our elderly and disabled family members end up being neglected or injured. And, in some cases, the treatment can be fatal. When this happens, family members are often forced to sue the nursing home facility and the personnel responsible for the abuse, in order to get justice for their loved ones.

Unfortunately, even if you can prove that someone else caused your loved one harm, you could still be prevented from suing. Here’s what you should know regarding arbitration if you are considering a lawsuit against a nursing home.

What is Arbitration?

Sometimes, nursing homes include an arbitration clause in their contracts, stating that even if you pursue a wrongful death claim for your loved one, you might have to go through arbitration first. If you sign a contract when you admit your family member into the nursing home that includes a binding arbitration agreement, it typically means that you must resolve any conflict through arbitration rather than court.

The arbitration process is usually where an argument is heard, and judgment is passed by arbitrators. It is intended to solved issues at a lower cost while avoiding a lawsuit in a court of law. While it might seem like a better process for everyone involved, the biggest issue with arbitration is that in nursing home neglect and abuse cases, it usually favors corporations rather than family members or the loved one who was neglected.

Your Options if You Face Arbitration

Before you sign any contract, it’s important to examine the details carefully to ensure the details are in your loved one’s best interests. When you agree to arbitration, you agree to resolve issues without a public record of the dispute and without a trial or opportunity to appeal.

However, even if you aren’t sure whether or not you agreed to a binding arbitration clause, you might still have other options. If your loved one was injured or harmed in a nursing home, it’s in your best interests — and your family member’s best interests — to make sure the right person is held accountable. At the very least, you could help prevent the neglect and abuse from happening to someone else.

Contact Experienced Nursing Home Abuse Attorneys

The lawyers at E. Stewart Jones Hacker Murphy have a hundred-year reputation for making sure our personal injury clients get justice for their injuries. We know how frustrating and devastating it can be to trust a nursing home only to find out they weren’t doing their jobs or caring for our loved ones properly. If you believe your family member has been hurt or neglected by a nursing home, let us help you get justice for them. We offer a free and confidential consultation with you and your family. Request a consultation with one of our injury lawyers by calling (518) 380-2597 or fill out our online contact form to get started immediately.

Betsy DeVos Rescinds Title IX Dear Colleague Letter

sexual assault Education Secretary Betsy Devos has rescinded the Obama-era Title IX Dear Colleague Letter to colleges and universities, which established a crucial part of the Department of Education’s policy on campus sexual assault. Devos has said that the move aims to give colleges and universities more freedom in dealing with campus sexual assault.

The Title IX Dear Colleague Letter

The Dear Colleague Letter in question implemented two important changes in policy several years ago, in an effort to get colleges and universities to crack down on campus sexual assault. The old rules required the colleges use a “preponderance of the evidence” to decide whether a student was or was not responsible for sexual assault.

Opponents of the old rule felt that this wasn’t fair to students accused of sexual assault. The consequences of campus sexual assault can include expulsion and other forms of discipline. The change by Secretary Devos allows colleges to raise the standard to “clear and convincing evidence.”

A statement issued by the department has said that the Obama-era rules “lacked basic elements of fairness.” Advocates of students accused of sexual assault have sought this change since it the old rules were implemented. The Obama-era standard of evidence was controversial at the time of its implementation.

More Changes to Come

Secretary Devos plans to change the rules again following a public comment period which “could take at least several months,” and colleges may continue to adhere to the lower standard of proof in the meantime. However, Secretary Devos has not given any indication of what the new rule for standards of evidence might be.

However, some colleges may not be legally able to raise the standard of evidence for investigating sexual assault cases on campus. Some states have passed laws requiring colleges to use the lower, preponderance of evidence standard. In the near future, different colleges may evaluate and investigate sexual assault cases in different ways, leading to vastly different environments for students. Some students disciplined for sexual assault under the old rules have already successfully sued their colleges for violation of their legal rights.

Contact an Experienced Criminal Defense Attorney Today

Sexual harassment and sexual assault are serious charges, whether they happen in school, in the workplace, or in your personal time. This is just one of the reasons it’s important to make sure you have someone on your side who represents your best interests. If you have been charged with sexual assault, it’s crucial that you have an experienced defense on your side to ensure you retain your rights.

The attorneys of E. Stewart Jones Hacker Murphy law firm have decades of experience defending clients against many different types of criminal charges. Let us help you defend yourself throughout the process in the best way possible. To request a free and confidential consultation with one of our experienced attorneys, call us at (518) 274-5820 fill out our online contact form as soon as possible.

What to Do If You Are Bitten by a Dog in New York

angry barking dogFew things are more confusing and frightening than being bitten by a dog. Man’s best friend has turned on you, and now you need to know what to do about it! If you or someone you love has been bitten by a dog in New York, here’s what you need to do.

Identify the Owner

The first thing you should do after being bitten by a dog is find out who that dog belongs to. Get the owner’s name and address, if you can. This will allow you to sue for damages should you require medical treatment, and can even help your healthcare provider determine what treatments you’ll need, such as rabies vaccinations, for example.

The owner will need to present proof that the dog has been vaccinated against rabies, or, alternatively, will need to monitor the dog at home for a period of 10 days for signs of rabies. If the dog is a stray, it will be euthanized and tested for rabies.

Seek Medical Attention

You will need to seek medical attention for your injuries right away. While there have been no dogs with rabies in New York City since 1954, it’s best to begin receiving vaccinations for this possibly fatal disease as soon as possible, if necessary.

Report the Dog Bite

Although you might be hesitant about reporting the bite, it’s in your best interest to do so. All animal bites in New York City must be reported. City officials will follow up with the owner of the dog, and the person who was bitten, to make sure that the animal presents no additional threat.

Document Everything

Even if you haven’t yet decided whether you want to sue the dog owner, you should document everything to do with your dog bite injuries, including medical treatments, time lost from work, damage to personal property, and therapy for psychological and emotional distress.

It is also best to photograph your injuries, and any damage to clothing or personal property. Collect the names and contact information of any witnesses to your dog attack.

Contact an Experienced Dog Bite Attorney Today

The statute of limitations for filing a dog bite lawsuit in New York is three years from the date of the incident. A dog bite lawyer can tell you whether you have a case, and to what compensation you may be entitled. And, although it might be might be difficult to make sure you’ve followed all these steps after a dog bite, you might still be entitled to compensation.

If you or someone you love has been bitten by a dog in New York, whether it was your neighbor’s dog or a stranger’s in the park, it’s best to consult experienced dog bite attorneys to help you and your family get justice. The attorneys of E. Stewart Jones Hacker Murphy law firm can help. To request a free and confidential consultation with one of our experienced attorneys, call us at (518) 274-5820 fill out our online contact form.

7 Key Defenses for Sexual Harassment Cases

sexual harassment

Dedicated New York Lawyers for Defense of Sexual Harassment

Employers have a duty to protect their employees from sexual harassment. When sexual harassment does occur, however, the employer can be vulnerable to significant financial liability, or even criminal charges.

Sexual Harassment Defense in Troy

The courts do allow employers to defend against employee allegations of sexual harassment. Individuals accused of criminal sexual misconduct can also use many of the same defenses. Here are some of the most common defenses for civil and criminal sexual harassment cases.

1) The Sexual Harassment Didn’t Happen

Perhaps the most obvious argument that can be made in defense of sexual harassment claims is that the harassment didn’t happen. The truth of the plaintiff’s claims can be challenged in court, and the court will want proof that the conduct in question is indeed actionable. Isolated incidents or teasing events are most likely not actionable. Courts may also permit testimony as to whether the plaintiff’s behavior has changed in a manner consistent with someone who has suffered from sexual harassment.

In a criminal sexual assault or harassment case, the defendant may argue that he or she was in a different place at the time the alleged crime occurred by providing the court with an alibi. Such an alibi must be supported with credible evidence. A defendant could also argue that he or she was misidentified by the plaintiff. DNA evidence is often used to establish whether or not a defendant was present at the scene of a crime.

2) The Conduct Was Welcomed

One defense available to defendants in sexual harassment cases is to claim that the sexual conduct in question was welcomed by the plaintiff. No matter how offensive the conduct was, the employer cannot be held responsible if it can be proven that the employee consented to or welcomed the conduct. The Supreme Court held, in Meritor Savings Bank v. Vinson, that a plaintiff must demonstrate the following in order to successfully establish claims of a hostile work environment due to sexual harassment:

  • That he or she was subjected to unwelcome advances
  • That the unwelcome advances were sexual in nature
  • That they represented a condition of employment
  • That the conduct could be attributed to the employer

The Equal Employment Opportunity Commission defines unwelcome conduct as conduct that “the employee did not solicit or incite” and that “the employee regarded as undesirable or offensive.” The court may consider whether the plaintiff participated in the conduct, whether he or she complained to his or her supervisors, and whether a reasonable period of time elapsed between the conduct and the employee’s complaints.

In criminal cases, consent can be an effective defense against allegations. In such a defense, the defendant might admit to the conduct in question, but argue that the behavior was consensual. Whether civil or criminal, sexual assault or harassment cannot be committed when the victim consents. This defense can be very effective if the defendant can prove consent.

3) The Conduct Was Not Sexual in Nature

A plaintiff alleging sexual harassment must prove that the conduct in question was sexual in nature or based on sex. Generally, the “but for” rule is used to determine sexual harassment. The plaintiff must prove, by a preponderance of the evidence, that he or she would not have suffered sexual harassment but for having been a representative of the defendant’s preferred gender. Courts have traditionally considered that sexual harassment allegations are inherently gender based.

4) First Amendment Rights

Someone who has been accused of sexual harassment may use the defense that his or her allegedly harassing speech is protected by the First Amendment. First Amendment rights can come into play in a sexual harassment case where conduct is based on verbal expression. However, the First Amendment does not protect extortions or threats, so the courts will only recognize the First Amendment defense to the extent that the allegedly harassing verbal expression is protected speech.

5) The Employer Had Valid Business Reasons for Adverse Action

Even if sexual misconduct has occurred in the workplace, the courts have held that employers may successfully defend against allegations by showing that adverse actions taken against the harassed employee were taken for legitimate business reasons, and not for reasons related to the harassment. It is not the court’s responsibility to question a business’s valid decisions.

6) The Plaintiff Was Incapacitated

In criminal sexual assault cases, defendants may be able to claim that they were mentally incapacitated at the time of the offense and that they should not be held criminally liable for their actions. This is known in the popular parlance as the insanity defense. In many jurisdictions, the courts will treat an offender with more lenience if they can show that a mental defect or disorder prevented him or her from fully comprehending the nature of their actions. Generally, the defendant must prove that they had no understanding that unwanted sexual contact is against the law.

7) Affirmative Defense

Under Title VII, an employer can successfully defend against sexual harassment allegations using the affirmative defense. In order to do so, the employer must prove that 1) they took reasonable action to prevent and correct sexual harassment in the workplace, and 2) the plaintiff unreasonably failed to take advantage of those corrective or preventative measures. This is often known as the “Faragher/Ellerth affirmative defense after two U.S. Supreme Court decisions which established the defense in 1998.

According to a recent decision by the Ninth Circuit Court of Appeals ruling in Hardage v. CBS Broadcasting, an employer can use this affirmative defense even if, after the plaintiff’s request, they did not fully investigate the claims of sexual harassment or take any kind of corrective action on the plaintiff’s behalf.

Experienced Attorneys at E. Stewart Jones Hacker Murphy Law

If you’ve been accused of sexual harassment or criminal sexual misconduct, you need the help of a sexual harassment attorney to mount a successful defense. Successfully defending against sexual harassment and assault charges is possible.

To request a free consultation with one of our experienced attorneys at E. Stewart Jones Hacker Murphy law firm, call us at (518) 274-5820, or fill out our online contact form to get started.

Determining Fault in Motorcycle Crashes

Motorcycle Crashes

Trusted Motorcycle Crash Injury Lawyers Serving New York

Who pays the damages after a motorcycle crash? That depends on what state you’re in and whose fault it was. Some states like New York, are “no-fault,” meaning the law doesn’t make provisions for whose fault the accident was, while other states dictate that the person responsible for the accident should pay the damages.

In any event, if you are involved in a motorcycle accident in New York, you need a qualified motorcycle crash attorney on your side to help make sure you get compensated for your damages.

Recovering Damages in No-Fault States

New York is one of 12 states in the country that is considered a “no-fault” state. In a no-fault state, you’ll need to recover damages by filing an insurance claim with your provider. You may not be able to sue the other party, but you may be able to recover non-economic damages, such as pain and suffering, from your insurer with the help of an attorney.

In no-fault insurance states, your insurance company typically reimburses you for the damages, whether the other person was responsible for the accident or not. Some of the damages you can get reimbursed for include medical expenses, as well as other losses that you suffer as a result of the accident.

There are also no fault benefits that the insurance company usually pays, no matter who caused the accident. These benefits can vary and include payment of expenses like prescription drugs, lost wages, and transportation to providers, just as examples.

Determining Fault

States that are not no-fault, or considered at-fault, typically have one of three methods for determining fault:

  • Pure comparative fault, in which each driver is determined to be responsible to a certain extent based on their actions.
  • The 51 percent rule, in which a driver can only recover damages if they are less than 51 percent responsible.
  • The 50 percent rule, in which a driver can only recover damages if he is no more than 49 percent responsible.

Fault will be determined by analyzing each factor that contributed to the accident. These factors include negligence, weather conditions, road conditions, speed – and whether or not the drivers were under the influence, fatigued, or in some other way impaired.

If you were riding the motorcycle or you were in another vehicle that was hit by a motorcycle, you’ll likely need an experienced legal team to help you navigate the process. If you’ve been hurt in a motorcycle accident, talk to an attorney now about how you can recover damages to pay your medical expenses, make up for lost wages, and continue to care for your family.

Contact Experienced Motorcycle Accident Injury Attorneys Today

Although New York is considered a no-fault insurance state, it doesn’t mean you can rely on your insurance company to help you pay for your damages. If you or someone you love has been in a motorcycle accident that wasn’t your fault, the lawyers of E. Stewart Jones Hacker Murphy law firm can help. To request a free and confidential consultation with one of our experienced attorneys, call us at (518) 274-5820 fill out our online contact form.

New Law Might Make It Easier to Clean Up Your Criminal Records

 

criminal record investigations

 

It’s especially common for people who have had criminal convictions, to do their time and move on with their lives to become productive citizens. This path, however, can be difficult with your criminal record following behind you at every turn.

It isn’t always a simple matter to just get a job, an education, or even find a place to live, with certain criminal convictions on your record. Many people wonder if it’s fair for a past criminal act to negatively affect a person for the rest of their lives – after they’ve paid the price for their crime.

Fortunately, a new law in New York, Criminal Procedure Law 160.59 could make it a little easier to get a fresh start. Before the new legislation, you could only seal your records in limited situations. Beginning in October 2017, you could have opportunities you didn’t have before, even with a criminal record behind you.

What Is Criminal Procedure Law 160.59?

This law is considered more forgiving than the previous laws for sealing records.  And while the new law doesn’t exactly make cleaning up your record a walk in the park, it does make it easier. Beginning in October, you will be able to seal up to two New York criminal convictions — only one of which can be a felony conviction.

Requirements for Sealing Criminal Records

There are a couple of caveats with the new law. For instance, you are only eligible to seal a conviction under the new law after 10 years of good behavior from the date you were convicted or released from custody, whichever is later.

However, there are parameters. If you have more than two criminal convictions, if you have serious felonies like murder, or if your felonies are considered violent or are sex offenses – you likely will not qualify. Other examples of felonies that might not be eligible:

  • Manslaughter
  • Sexual conduct against a child
  • Assault
  • Burglary or robbery

But even if you have one of these convictions, it might be worth looking into whether or not the new law can help get your records sealed. Several factors could be considered, including the seriousness of the crime and circumstances; so it doesn’t hurt to see if you are eligible.

How Sealing Your Records Could Help

Unfortunately, Criminal Procedure Law 160.59 isn’t going to erase your conviction completely. Law enforcement and certain regulatory government agencies will still be able to see your criminal records. However, it could make your charges invisible to many employers and other types of government agencies.

This means that you won’t have to divulge your criminal background to a prospective employer, which could also give you a better chance at employment. Other benefits to sealing your criminal record include applying for housing or student loans. If your records are sealed, you could be eligible for housing assistance and professional licenses, which can all lead to increased success in starting fresh and moving forward.

Further, one of the most significant benefits of sealing your criminal record is you won’t have to worry about the embarrassment that comes with failing a background check. With sealed records, you could have opportunities that weren’t available before.

Criminal Lawyers with Experience at E. Stewart Jones Hacker Murphy

Do you have criminal convictions and want a clean slate? Even with the new law to seal records, you’ll need experienced criminal defense lawyers who are familiar not just with the law but also with the application, paperwork, and process required. You might not be sure if you qualify, but a chance at a clean record – especially when it comes to employment and other opportunities – is certainly worth looking into.

Contact the attorneys at E. Stewart Jones Hacker Murphy to request a free and confidential consultation at (518) 274-5820 or fill out our online contact form today!