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How Preexisting Conditions Can Complicate a Nursing Home Abuse Case

How Preexisting Conditions Can Complicate a Nursing Home Abuse CaseMaking the decision to move an elderly loved one into a nursing home was undoubtedly difficult. In many circumstances, however, this is the best option to provide family members with the care they need. Sadly, nursing home abuse and neglect are on the rise.

If you suspect a caregiver has been abusive, you may be able to pursue monetary damages from the facility. Once you decide to take action, you can expect the opposing party to do everything in their power to challenge your claim. One common defense asserted in these cases is that the plaintiff is seeking compensation for a preexisting condition.

Read on to learn how a preexisting condition might complicate a nursing home abuse lawsuit:

A Dispute over Causation Might Arise 

To win a settlement, you must be able to prove that the damages being claimed would not have accrued but for the abuse or negligence. This is called proving “causation.” The defense might contend that you are trying to recover compensation for medical bills and other damages caused by your family member’s preexisting condition. While it is true that damages arising from a preexisting condition are not recoverable, it may be possible to collect damages for the aggravation of a preexisting injury or illness. 

Additional Evidence May Be Needed to Recover a Fair Settlement 

If the defense disputes causation, you may need evidence to prove the aggravation of the preexisting condition. Such evidence may include:

  • Deposition from the Victim’s Treating Physician: The doctor who has been treating your loved one might be deposed regarding how his or her condition has changed since the abuse or neglect. 
  • Deposition from Other Medical Experts: Your attorney might depose healthcare providers who specialize in your family member’s particular medical condition. 
  • The Victim’s Medical Records: If the medical records show a clear deterioration in your loved one’s condition after the incident, they will serve as valuable evidence of causation. 

Much of the evidence needed to strengthen your case will likely be in the nursing home’s possession. That means there’s a chance that key evidence will be withheld or even altered to cover up negligence. It is important that you contact an attorney right away so evidence can be gathered while it is still available. Your attorney can perform an immediate investigation and file subpoenas to obtain evidence that is being withheld.

Discuss Your Case with a New York Nursing Home Abuse Lawyer 

At LoTempio P.C. Law Group, we are passionate about holding nursing home administrators and staff accountable for their misconduct. Our attorneys have won several multimillion-dollar settlements and verdicts in personal injury cases, and they are well-versed in the case law and statutes pertaining to nursing home abuse and neglect.

Fill out our Online Contact Form or call 716-855-3761 to arrange a free, no-obligation consultation with a nursing home abuse lawyer in New York. We accept personal injury and wrongful death cases on a contingency fee basis, so you won’t owe any attorney’s fees unless we win.

Why Every Couple Should Draft a Prenuptial Agreement 

Why Every Couple Should Draft a Prenuptial Agreement It’s a common misconception that only the incredibly wealthy need to worry about prenuptial agreements. The truth is that a carefully drafted prenup can protect your financial security, ensure that you and your spouse are on the same page regarding financial matters, and much more.

At the end of the day, signing a prenup provides a host of benefits regardless of your circumstances. It’s so advantageous, in fact, that family lawyers urge everyone to enter into such an agreement before tying the knot. Here are some of the biggest reasons why:

1. Life Is Unpredictable 

If you asked any divorce attorney how many clients knew their marriage was going to end, the answer would probably be close to zero. This is precisely why every couple should draft a prenup regardless of how strong their relationship seems.

Most people don’t enter into a marriage with the intention of ending it, and very few think divorce is a realistic possibility. But family dynamics are complicated, and there are no guarantees in life.

Even if you feel certain that your marriage will last forever, think of the prenup as a kind of insurance policy. You don’t buy auto insurance with the intention of crashing your car; in the event of a wreck, though, you’ll be glad you have it. 

2. You and Your Future Spouse Should Be on the Same Page 

When drafting the prenuptial agreement, both you and your partner will have to disclose various assets and debts. As such, you’ll get the opportunity to address any financial concerns head-on—and ensure you’re in agreement about your long-term goals.

Starting your marriage with such transparency will only serve to make your relationship stronger. Perhaps ironically, it could also reduce the risk of divorce since money-related issues are one of the leading causes of divorce. 

3. You Can Protect the Inheritance Rights of Children from a Prior Relationship 

If you have children from a prior relationship, you can include terms in the contract to protect their inheritance rights. In the event of divorce or death, such conditions will ensure they receive what is rightfully theirs without interference. 

4. You Can Address More Than Existing Assets 

Even if you don’t have many assets yet, a strategic prenup can protect your future assets. If you’re climbing the ladder in a fairly lucrative field, for example, or if there’s an inheritance headed your way, you can implement provisions regarding anticipated assets and finances.

Couples may also use prenups to shield themselves from each other’s debts. Even if you don’t actually get divorced, the document could prove useful should creditors ever come after you—or your property—to pay your spouse’s debts. Its terms may help prove premarital ownership of otherwise vulnerable assets. 

Call 716-855-3761 to Speak with a Family Law Attorney in New York

If you need help drafting a prenuptial agreement, contact LoTempio P.C. Law Group. Our approach to the law is built on providing clients with straightforward answers, personal attention, and the customized legal solutions they deserve. Call 716-855-3761 or fill out our Contact Form to schedule a free consultation with a family lawyer in New York.

How Attorneys Investigate Nursing Home Abuse and Neglect

How Attorneys Investigate Nursing Home Abuse and NeglectIf you think nursing home staff has neglected or abused your loved one but you’re not sure how to prove it, a personal injury attorney may be able to help. Your lawyer and his or her legal team can conduct a thorough investigation, file subpoenas for any evidence that is being withheld, interview eyewitnesses, and perhaps consult with medical and technical experts to determine if nursing home abuse or neglect occurred and how best to proceed with the claim.

Read on to learn a few steps your attorney might take during the investigation:

1. Gathering Relevant Records 

Your attorney will want to review your family member’s medical records from before and after the incident to determine when his or her health began to deteriorate. Such records may also show evidence of medical malpractice.

Relevant documentation may include:

  • Nursing home logs;
  • Hospital records;
  • Prescriptions; and
  • Diagnostic images.

2. Consulting with Medical Experts

Medical experts who specialize in geriatric care can review your family member’s records and other evidence to determine if they are indicative of neglect or abuse. Examples of anomalies include significant weight loss over a short period of time, treatment for unexplained injuries, or diagnosis of an STI. 

3. Questioning Eyewitnesses 

The deposition of eyewitnesses such as other nursing home residents, caregivers, or people who visited the facility may corroborate your loved one’s claims. Your lawyer will want to interview eyewitnesses to find out what they saw and to uncover additional sources of evidence. For example, if other residents have also been neglected, their medical records might help your lawyer establish a pattern of mistreatment at the facility.

4. Reviewing Surveillance Footage 

New York does not have any laws governing the use of surveillance cameras in long-term care facilities. In other words, the state neither authorizes nor prohibits the installation of cameras in a resident’s room.

After evaluating the situation, your attorney can help you determine if monitoring your loved one’s environment is a strategy worth considering. If so, your lawyer can devise a practical plan for installing cameras in such a way that you do not violate anyone’s privacy including that of other residents.

Alternatively, your attorney might try to obtain surveillance footage that was already captured at the facility. Even if the actual instances of abuse were not caught on camera, the footage might help your lawyer identify the liable party and gain insight into how the facility operates. 

Call 716-855-3761 to Speak with a Nursing Home Abuse Lawyer in New York 

At LoTempio P.C. Law Group, we have the resources and experience to take on even the largest medical facilities. If you suspect your elderly loved one has been abused or neglected by nursing home staff, we can review your case for free and help you plot the way forward.

There’s no cost for the consultation, and we accept personal injury and wrongful death cases on a contingency fee basis. Call 716-855-3761 or fill out our Contact Form to schedule a free case evaluation with a nursing home abuse attorney in New York.

Can Children of Divorce Choose Which Parent They Live With?

Can Children of Divorce Choose Which Parent They Live With?It’s not uncommon for children to develop a closer relationship with one parent over the other. As such, they may have a preference regarding custody should their parents ever separate or divorce.

In some states, a child’s wishes will hold a lot of weight, especially when he or she reaches a certain age. In Tennessee, Oklahoma, and Mississippi, for example, family law judges seriously consider the preferences of children who are at least 12. And in Georgia and West Virginia, teens who are over 14 may actually choose the custodial parent, unless their preference threatens their wellbeing in some way.

When it comes to custody proceedings in New York, though, there is no age at which a child automatically assumes the right to choose the custodial parent. Once children of divorce turn 18, the court system can no longer dictate where they live (even if child support payments continue until their 21st birthday); however, until that time, custody will ultimately be up to a judge.

Should a child have a preference, though, the judge might take it into account. While the court does not have to abide by the child’s request, any such wishes will at least be considered. Naturally, the older the child is, the more weight his or her preferences will hold.

As for actually stating their wishes, children are not typically expected to testify in court. Not only is doing so stressful and potentially traumatic, but it can also fracture the relationship the child has with the parent whom he or she does not end up choosing.

Instead, the child might accompany both parties’ lawyers into the judge’s chambers to discuss the matter privately. Depending on the circumstances, a third lawyer who is serving as the child’s advocate may also be involved. If each parent’s lawyer provided a different answer when asked whether the child exhibited any preferences regarding custody, for example, the judge might deem it appropriate to appoint a third lawyer to represent the child and speak on his or her behalf.

At the end of the day, though, a child’s preference remains just one factor that influences the custody proceedings. Other factors that may impact the outcome of the case include:

  • Which parent has served as the primary caregiver up to that point;
  • The physical and mental health of each parent;
  • The work obligations of each parent;
  • Each parent’s history, if any, of neglect or abuse;
  • The quality of the relationship between the child and each parent;
  • Each parent’s living accommodations and ongoing ability to provide a stable home environment; and
  • Each parent’s willingness to cooperate when it comes to resolving common co-parenting issues.

Call 716-855-3761 to Speak with a Family Law Attorney in New York

If you need help finalizing or modifying a custody order, contact LoTempio P.C. Law Group. Our knowledgeable attorneys have more than 200 years of combined experience in the legal field. Call 716-855-3761 or fill out our Contact Form to schedule a free case evaluation with a family lawyer in New York.

How to Prepare for Your Consultation with a Nursing Home Abuse Attorney

How to Prepare for Your Consultation with a Nursing Home Abuse AttorneyIf your elderly loved one was neglected or abused at a long-term care facility, your family may be able to sue for damages. While filing a lawsuit won’t undo the trauma your relative suffered, it may yield enough compensation to provide him or her with the highest quality of care moving forward.

The first step to building a strong nursing home abuse claim is to consult a seasoned attorney. After evaluating the evidence you’ve compiled and the facts of your case, an experienced lawyer can help you determine the most strategic way to proceed.

To ensure your case gets off to a strong start, you can prepare for your first meeting with the legal team by doing the following:

1. Gather All the Evidence You’ve Obtained

Do you have any evidence of the abuse or the resulting damages? If so, compile it all before the initial consultation so your attorney can review it. Evidence worth bringing to this meeting includes:

  • Photographs of any bedsores, bruises, lacerations, or other visible injuries;
  • Medical records;
  • Statements from other nursing home residents or visitors about what they have witnessed;
  • Any video footage you’ve managed to obtain; and
  • Any correspondence you’ve already had with the nursing home administrators or insurance company.

2. Prepare Your Answers to Specific Questions

You will spend a significant portion of the consultation answering the lawyer’s questions. If you prepare your answers in advance, you can avoid leaving out any pertinent details.

Naturally, the specific questions will depend on the situation, but generally speaking, you should be prepared to answer the following:

  • When did you first suspect nursing home abuse, and why?
  • Who do you think is responsible for the abuse?
  • How has your loved one suffered as a result of the abuse?
  • Do you have reason to believe other residents have suffered similar abuse?
  • What is the victim’s condition now, and where is he or she living?
  • What kinds of expenses were incurred as a result of the abuse?

3. Compile a List of Your Own Questions

At the end of the consultation, you will have the opportunity to ask your own questions. To ensure you don’t forget any, write them down in advance. Questions that may be worth asking include:

  • What should I do (and not do) moving forward to contribute to the strength of the claim?
  • What is your fee structure?
  • How can I reach you if I have any questions or concerns?

Discuss Your Case with a Nursing Home Abuse Attorney in New York

If you want to sue a long-term care facility in New York because your loved one was neglected or abused, contact LoTempio P.C. Law Group. Our team is available 24/7 to take your call.

Backed by more than 200 years of experience, our attorneys know what it takes to go up against even the largest corporations and insurance companies. Call 716-855-3761 or fill out our Contact Form to schedule a free case evaluation with a nursing home abuse lawyer in New York.

Can You Modify a Child Custody Order in New York?

Can You Modify a Child Custody Order in New York?If you have joint custody of your children but the current arrangement is no longer working, you may be able to get the custody order modified. As long as you can demonstrate a “change in circumstances,” you can file a Custody/Visitation Modification Petition in Family Court.

The same factors that influenced the original court order will affect the judge’s ruling on your petition. In other words, the requested changes must be in your children’s best interests.

As an added hurdle, you will have to show how your situation is considerably different than it was the last time you went to court over custody. Some of the most common scenarios that warrant a new arrangement include:

  • One parent has developed substance use disorder;
  • One parent has committed domestic violence;
  • One parent’s living situation has become unstable;
  • One parent has developed a debilitating medical condition;
  • One parent wants to relocate out of state or far enough away that it will disrupt the existing arrangement;
  • One parent has neglected or abandoned the children; and
  • The children are at least 12 years old and have requested a change.

Do You Have to Go to Court to Modify a Child Custody Order?

If both parents can agree on the terms of their new arrangement, they don’t necessarily have to obtain a court order to implement it; however, while there may be advantages to bypassing the proceedings in the short term, doing so could pose a problem down the road.

Unless you have a formal arrangement in place, there’s nothing stopping your ex from violating the terms you agreed upon and reverting back to the original schedule. Should this happen, you would have no legal recourse.

As such, it’s wise to go through the court for all modifications, no matter how minor. Once a judge signs off on the new arrangement, it will be legally binding.

Does a Child Custody Order Have to Be in Place for a Certain Amount of Time Before It Can Be Modified?

Unlike some states, New York does not require parents to wait a certain amount of time after an arrangement has been ordered to file a petition for modification; however, that doesn’t necessarily mean you can change a custody order right away if you’re not happy with its terms.

Although there are no minimum time limits for existing orders to run out, the other requirements for modifying arrangements stand. For example, you must prove there’s been a significant shift in circumstances since the last time you went to court, regardless of whether that was one month or 10 years ago. You must also demonstrate how the requested changes are in your children’s best interests.

Call 716-855-3761 to Discuss Your Case with a New York Family Law Attorney

If you want to modify a child custody order, turn to LoTempio P.C. Law Group for guidance. When it comes to family law disputes, we understand what’s at stake, and we will tirelessly fight for the arrangement that you think is in your children’s best interests. Call 716-855-3761 or fill out our Contact Form to schedule a consultation with a family lawyer in New York.

Nursing Home Fall Lawsuits: Who May Be Liable?

Nursing Home Fall Lawsuits: Who May Be Liable?Falls are the leading cause of serious injury among senior citizens. While it’s natural for balance, strength, and coordination to decline with age, there are many circumstances when a fall accident is caused by the negligence of a caregiver or another party.

Nursing homes have a duty to take reasonable measures to prevent residents from falling and suffering injuries. This may involve providing mobility aids, stability bars, non-slip shower mats, and other essential equipment.

If your elderly loved one is recovering from a serious injury after falling at his or her long-term care facility, your family may be entitled to compensation for the resulting damages. To give your claim the best possible chance of success, you will need strong evidence of liability.

Determining liability in these cases often requires a thorough investigation. Because much of the evidence needed to prove fault might be time sensitive, it is imperative that you consult an attorney right away so the investigation can begin immediately.

Below are a few examples of parties who might be liable for damages after a fall in a nursing home:

1. The Facility’s Administrators

Nursing home administrators must take reasonable measures to prevent residents from slipping, tripping, and falling. When appropriate, they must equip tubs and showers with non-slip mats and sturdy handrails. They must also provide mobility devices to those with physical limitations and schedule enough staff during each shift to assist residents as needed. If they fail to take such measures, they may be held liable for any injuries that result.

2. Various Healthcare Providers

Sometimes providers who work independently for private practices will visit nursing homes to treat the residents. Since these professionals usually are not employed by the facility, patients may be able to sue them directly if they receive substandard care.

If a doctor who’s not affiliated with the nursing home prescribes medication that causes dizziness, for example, but fails to remind staff to take additional precautions regarding that particular patient, he or she could be at least partially liable for any fall accidents that occur as a result.

3. Maintenance Contractors and Equipment Manufacturers

If a nursing home hires a third-party contractor to install safety railings and other fall prevention devices but they perform substandard work, they may be responsible for any injuries that happen when the devices fail. If it turns out they did perform quality work, though, and the devices were simply defective from the start, the engineer, designer, manufacturer, or distributor of the equipment may be liable.

Call 716-855-3761 to Speak with a Nursing Home Negligence Attorney in New York

At LoTempio P.C. Law Group, we are committed to helping the victims of nursing home abuse and neglect fight for the compensation they need to move on with life. Our personal injury attorneys have more than 200 years of combined experience in the legal field. Call 716-855-3761 or use our Online Contact Form to set up a free case evaluation with a nursing home negligence lawyer in New York.

What Factors Influence Child Custody Rulings in New York?

What Factors Influence Child Custody Rulings in New York?In the state of New York, child custody arrangements always come down to the best interests of the children. Of course, what’s best for some kids may not be best for others, so judges consider the unique circumstances of each individual case before handing down their final court order.

Below are a few factors that may influence child custody rulings in New York:

1. Stability

The court will only award custody to parents who are financially and emotionally stable. This doesn’t necessarily mean you must be working full-time to have custody, nor does it mean you’re barred from being the custodial parent if you have a mental health disorder.

Instead, the court wants to see that you can provide a stable living environment for the kids, whether you’re doing so with regular earnings, spousal maintenance, child support, government benefits, or some other form of income. They also want to see that you’re taking care of yourself physically and mentally and that you’ve sought any necessary treatments for existing conditions.

2. Logistics

Like it or not, logistics will play a role in your custody case. If you both work, for example, but your ex’s mother lives with him or her and can provide regular childcare, the court will take that into consideration. Family law judges will also consider which parent lives closer to the children’s school, which has more time to help with homework, and which will be around to drive them to and from extracurricular activities.

3. Relationships

Does one parent have a much closer relationship to the kids? When children are especially young, it’s not uncommon for them to bond more with one parent than the other. As such, the judge is going to ask who serves as the primary caretaker and addresses most of the kids’ everyday needs. If you’re the one who gets the children ready for school every morning and tucks them in every night, this may help your custody case.

4. Preferences

The older a child is, the more credence that may be given to his or her preferences. Before a judge awards custody to the parent the child wishes to live with, though, the court is going to ask why. Does the child have valid reasons for preferring one parent over the other, and will moving in with said parent be in his or her best interests?

Speak with a New York Child Custody Attorney Today

If you’re facing a contentious child custody dispute, turn to LoTempio P.C. Law Group for guidance. Our attorneys have more than 200 years of combined experience in the legal field.

We understand how much is at stake for those embroiled in a custody battle. While we will seek to reach an amicable agreement with the opposing party, we will not hesitate to take an aggressive approach where warranted.

Our lawyers have an in-depth knowledge of the relevant case law, statutes, and proceedings, and we know what it takes to win favorable outcomes in complex child custody disputes. Call 716-855-3761 or fill out our Contact Form to schedule a free case evaluation with a family lawyer in New York.

8 Terms to Know When Facing Domestic Violence Charges

Terms to Know When Facing Domestic Violence ChargesGetting arrested for domestic violence is stressful enough without having to decode complicated legal jargon. Although a criminal defense attorney can handle the logistics of your case, it may be possible to alleviate some of the stress you are experiencing by learning the terms you will likely encounter throughout the proceedings.

Below we’ve defined some of the most important terms to know if you’re facing domestic violence-related charges:

1. Intimate Partner 

The state of New York differentiates between domestic violence and intimate partner violence. While domestic violence encompasses violence against any member of the household, intimate partner violence refers to violence against a former or current romantic partner. 

2. Arraignment 

The arraignment is the first time the defendant appears in court. It’s usually held within 48 hours of arrest. During this proceeding, bail is set if applicable, and the accused will get the opportunity to enter a plea of guilty or not guilty. 

3. Perjury 

Perjury refers to lying under oath. If the alleged victim fabricated his or her story—as is sometimes the case when it comes to domestic violence—he or she could face felony charges. 

4. Assault and Battery 

Battery is the physical act of hurting someone while assault—which is often used interchangeably with “battery”—is simply the imminent threat of harm. In other words, you can be accused of assault even if you didn’t actually lay a hand on the alleged victim. 

5. Affirmative Defense 

An affirmative defense is one that not only refutes the allegations against you but also presents new allegations. Such defenses are especially common in cases involving domestic violence. For example, if the alleged victim attacked you first and you were merely acting out of self-defense, presenting evidence that proves as much would be considered an affirmative defense. 

6. Deposition 

A deposition is sworn testimony that occurs out of court. In criminal cases, depositions are not typically used as a discovery device but, rather, as a way to preserve witness testimony. 

7. Aggravated Family Offense 

If you already have a history of domestic violence, you could face charges for aggravated family offense following an arrest for a subsequent incident. Such charges can apply to defendants who were convicted of a domestic violence-related misdemeanor within the past five years.

8. Alibi

An alibi is a defense that claims the accused was physically in a different location when the alleged incident occurred. When it comes to domestic violence allegations, defendants may be able to prove their alibis using social media check-ins, retail receipts, GPS tracking from their smartphones, security camera footage, or eyewitness testimony.

Discuss Your Case with a Domestic Violence Attorney in New York

If you’ve been accused of a domestic violence-related crime, contact LoTempio P.C. Law Group. Our seasoned attorneys have more than 200 years of combined experience in the legal field. Call (716) 855-3761 or use our Online Contact Form to set up a free case evaluation with a domestic violence lawyer in New York.

How Much Is My Nursing Home Abuse Claim Worth?

How Much Is My Nursing Home Abuse Claim Worth?Nursing home abuse can have devastating consequences with lasting repercussions for both the victim and his or her loved ones. When residents receive substandard care—or suffer downright abuse—it takes a physical, emotional, and financial toll.

In addition to the victim’s physical pain and emotional distress, those closest to him or her will undoubtedly experience their own grief upon learning of the abuse. And when the hospital bills start coming in, it will only add more stress to an already tense situation.

If you or someone you love suffered abuse at the hands of nursing home staff, filing a claim against the facility will not undo the trauma your family has endured; however, if your case is successful, the resulting payout may provide the means to secure the best care possible moving forward.

In New York, victims of nursing home abuse may seek compensation for both the economic and non-economic damages that they incur. And in certain scenarios, they’re also entitled to a punitive award.

Naturally, the specific damages you will be able to pursue and their potential value will depend on the circumstances. There are, however, some general factors that will typically influence the settlement calculations. Such factors include:

1. The Victim’s Life Expectancy

If the abuse caused permanent harm, such as scarring, disfigurement, or disability, the victim’s life expectancy will impact estimates for damages like anticipated medical care, ongoing rehabilitation, and continued pain and suffering.

2. The Severity of the Injuries

More serious injuries typically warrant more compensation for economic damages like hospital bills and non-economic damages like loss of enjoyment in life. Since the extent of the victim’s injuries can have such a significant impact on the settlement calculations, it is often necessary to wait until he or she has reached maximum medical improvement to commence the negotiations.

3. Whether a Punitive Award Is Warranted

New York Public Health Law (PHL) § 2801-d permits victims of nursing home abuse to recover punitive damages and attorney’s fees when applicable. To successfully bring a claim under this law, it must be shown that the victim was deprived of a particular right or benefit. You must also prove how the disadvantage in question contributed either directly or proximately to the victim’s injuries or declining health.

Under NYPHL, punitive damages that are awarded in nursing home abuse cases are typically applied to the long-term care facility, as opposed to the staff member who committed the transgression. There are scenarios, however, in which punitive damages can be awarded against the actual caregiver who abused the resident.

Call 716-855-3761 to Discuss Your Case with a New York Nursing Home Abuse Attorney

At LoTempio P.C. Law Group, we have a passionate commitment to helping our clients fight for the highest possible compensation against those who have wronged them. We will use all the resources at our disposal to prepare your case for court even if a settlement is the expected outcome. Call 716-855-3761 or fill out our Contact Form to schedule a free consultation with a nursing home abuse lawyer in New York.

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