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These are common questions we received from clients. The answers are only intended to give you a better understanding of various aspects of the law.  New questions are posted regularly, so check back often.

Please Note: Nothing in these question is intended as nor shall be construed as a legal advice, guidance or interpretation. The information provided in these questions is basically for general educational purposes only and specific questions about any fact, law, statute or regulation should be directed to the experts in the area or legislative houses. For Further Information or clarification to your questions you should contact us. All your questions will be treated with strict confidentiality. You may also find answers to your question on  our News, Updates & Articles page.

As each case is different and requires unique treatment. Take the time to talk to any of our staff and explore all possible options together. Our staff are always eager and willing to help you. Schedule a consultation today.

Click on The Below Questions To Read the ANSWERS

MEDICAL MALPRACTICES
 

“How do I know if I have a medical malpractice case?”

A bad medical result doesn’t necessarily mean you have experienced malpractice. Even with the best of care, things can go wrong. Generally, to win a medical malpractice case, you must have expert medical testimony that no reasonable health care provider would have done what yours did. Reasonableness is generally determined by looking at what is reasonable care in view of the: Available knowledge; Geographic location where care occurred; State of medical practices at the time of the illness or injury. You must also prove through expert testimony that the negligence of your health care provider was a cause of injury or death. A doctor can be negligent, for example, and still not be liable, if the injury or death was caused by some other factor.
 

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“What is a ‘wrongful death’ claim?”

A "wrongful death" claim is a statutory cause of action that may be brought on behalf of a surviving spouse, children, and parents of a decedent to compensate them for the losses they sustained as a result of the wrongful death of their family member. The "wrongful" act that resulted in death may have been intentional, reckless, or negligent as long as it is of the character that would have permitted the decedent to maintain an action for injuries had death not resulted.

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"What types of damages may be recovered in a wrongful death case?"
Recovery by parents: Parents may recover for the loss of companionship and society of their child as well as for mental anguish caused by the death of their child. If the decedent was a minor child, the parents may recover the value of the child's services from the time of death until the date the child would have reached the age of majority, less the cost of the child's support, education, and maintenance during the period of minority, plus the value of any financial contributions that the child in reasonable probability would have made to the parents after the child reached the age of 18. The parents of an adult child may generally recover the value of future financial contributions that the deceased child in reasonable probability could have been expected to make to the parent.
Recovery by spouse: A surviving spouse may recover damages for loss of companionship and mental anguish caused by the death of his or her spouse. The surviving spouse may also recover financial contributions that he or she would have received in reasonable probability, as well as the financial value of intangible services that the deceased spouse would have rendered in reasonable probability.
Recovery by Child: A surviving child may recover damages for the loss of companionship and mental anguish caused by the death of his or her parent. A minor child of a decedent may also recover the sum that the decedent would reasonably and probably have contributed to the maintenance of the child and the value of the services that the decedent in reasonable probability would have rendered in training, advising and educating the child. Adult children may also recover the sum that the decedent would reasonably and probably have contributed to the child. Other Damages include: loss of inheritance as well as punitive damages.

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“What should I do in case of personal injury sustained at work place?”

Immediately following an injury on the job, the accident should be reported to someone in a position of authority such as the leadsman, foreman, supervisor etc. Failure or delay in reporting the injury may result in a denial of worker’s compensation benefits. A late-reported claim may delay benefits until the insurance company has had an opportunity to investigate the matter. Within one working day of knowledge of the injury, the employer shall provide a claim form to the employee who is then required to file it with the employer. The form, which is known as a “DWC-1 FORM,” must include information on administrative assistance available and on procedures to commence proceedings. This procedure is a change from the previous rule. Now, the employee must fill out a specific claim form when injured. Therefore, a verbal report of injury is no longer all that must be done.

Note importantly too that the employee should report the accident to his union shop steward or business agent so that he may be advised of any further steps necessary in the protection of his rights and benefits.

If the accident is reported, and medical treatment requested, the employer will either tell the injured employee which doctor to see or advise him to see his own doctor. In either event, the worker’s compensation insurance company is obligated to pay all medical expenses that are reasonable, necessary and related to the injury in question.

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"My mother had a surgery in one of the hospitals in Brooklyn last month for appendectomy and was discharged from the hospital 7 days thereafter. 2 days after her discharge she developed some acute pain at home, which led to a re-admission into the hospital, where another abdominal problem was discovered, which was initially not discovered by the doctors before her previous surgery. On the 3rd day after her re-admission, she died and my family feels the hospital must have been negligent by not giving my mother a proper check - leading to her death. However we are not too sure whether or not we can sustain a claim for a medical malpractice against the hospital and need your opinion on what we have to establish in order to succeed in such a claim?"

Standard of care is important in medical malpractice suits because to be held liable, a doctor must not only cause injury, but the injury must result from not following the "standard of care." A standard of care holds a person of exceptional skill or knowledge to a duty of acting as would a reasonable and prudent person possessing the same or similar skills or knowledge under similar circumstances. In other words, a health care provider's actions are measured against the standard of care active in the caregiver's location or similar community.

It is most important that a plaintiff's medical malpractice lawyer screen cases and accept only those that are worthwhile. (In some states, the lawyer must certify that he has reviewed the matter with a qualified physician who states that the case is "meritorious.") Often the experienced lawyer can tell if the case is worthwhile from the first contact with the client. If it is not, the client should be informed immediately; the legal and medical systems should not be cluttered with the prosecution of worthless cases.

True medical malpractice consists of negligent conduct that causes damage. There may be "malpractice" from a theoretical point of view, but if the conduct has not caused injury it is not a matter for the legal system. Sometimes there may be true "malpractice" but no residual damage. These are not strong cases. Juries are not all interested in a past history of damage; they do become interested when a plaintiff can show permanent injury.

Please note importantly that in any negligence case action, personal injury is described as any harm caused to a person, such as a broken bone, a cut, or a bruise; bodily injury. Any invasion of a personal right, including mental suffering and false imprisonment. For purposes of workers’ compensation, any harm (including a worsened preexisting condition) that arises in the scope of employment.

Personal Injury also, means any injury resulting from libel, slander, malicious prosecution, or false arrest, any bodily injury, sickness, disease, or death sustained by any person and caused by an occurrence for which the state may be held liable. Hence, if for any reason you suspect an injury has been caused by negligence of another, you do not need to suffer financially and or mentally anymore, contact a personal injury attorney in your area now.
 

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"My friend was involved in an automobile accident with the driver of another vehicle who ran a red line. I was a passenger in my friend's car and now have a torn shou8lder. My doctor says that I need surgery. My friend was also hurt. We both want to sue the other drive. How can we go about this?"
As a passenger in your friend’s car, you may sue both your friend and the driver of the other vehicle as well. Although it sounds as though the other driver was negligent in running the light, your friend may also have been negligent in the operation of his car as well. However, this would be for the court to decide the relative degrees of fault. As a passenger, you are entitled to obtain a judgment from either your friend or the other party or both.

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"I was involved in an automobile accident and have been out of work since February 2004. Who will pay for my loss wages from work?"
In New York State, you can recover under the “no-fault” laws for lost of wages as a result of an automobile accident. However, to bring suit against the other driver you must meet the threshold requirement of having sustained a “serious injury”. Because it appears that you have been out of work for at least ninety days or more, you would qualify as having suffered a serious injury. You should consult with a lawyer and how on commence an action.

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"I got hurt while operating one of the machines in my office, the machine fell on top of my leg and I sustained a fracture on one of my toes. I reported the injury to my boss who chastised me for being reckless and warned that I be more careful in future or be fired. He has done nothing about this and this is the 2nd week into my injury, which still hurt me badly. I am an alien on a visitor’s visa and do not know if I can pursue this case under work comp program to be compensated?"
Workers Comp Claim - Compensation laws are designed to ensure that employees who are injured or disabled on the job are provided with fixed monetary awards, eliminating the need for litigation. These laws also provide benefits for dependents of those workers who are killed because of work-related accidents or illnesses. Some laws also protect employers and fellow workers by limiting the amount an injured employee can recover from an employer and by eliminating the liability of co-workers in most accidents. State Workers Comp statutes establish this framework for most employment. Federal statutes are limited to federal employees or those workers employed in some significant aspect of interstate commerce.
    However, awards are limited to "disability or death" sustained while in the performance of the employee's duties but not caused willfully by the employee or by intoxication. The act covers medical expenses due to the disability and may require the employee to undergo job retraining. A disabled employee receives two thirds of his or her normal monthly salary during the disability and may receive more for permanent physical injuries, or if he or she has dependents. The act provides compensation for survivors of employees who are killed. The act is administered by the Office of Workers’ Compensation Programs.

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IMMIGRATION

“Is it true that any immigrant who does not first become a U.S. Citizen will no longer be eligible to receive benefits like Supplemental Security Income (SSI) from the Government?”
In 1996 Congress passed a Decision to eliminate Supplemental Security Income, (S.S.I.,) for most immigrants who entered the U.S. after August 22 of 1996, and to set a seven year time limit for others – mainly refugees – receiving the Welfare payment until they become united states citizens and, although, a minimum income level necessary for people who are elderly and disabled to live on was been established by the government, New York State now, denies that level of assistance to some people because they are immigrants. The state echoed those restrictions in a 1998 Law - denying state Aid to anyone ineligible for Federal Benefits because of immigration status. These impoverished and disabled immigrants are now reduced to public assistance grants of $352 a month which are not even enough to pay for their rent. So far, the ages of the immigrants affected by this restrictive decision ranges form 67 - 92 years and many more people will still be affected. Congress reasoned that seven years is long enough for them to process and obtain U. S. Citizenship before they can be entitled to any further benefits from the government. It is therefore advised that all immigrants in this category should consult with their attorneys for legal direction on the appropriate steps to take in this regard.

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“Who are the first preference immigrants and how can I be qualified for a first preference immigrant’s visa?”
The immigrants who qualify for first preferences employment based visas are those immigrants who have the highest priority among all employment based visas and are automatically eligible to receive their visas first. They do not need to obtain a Labor certification. They are categorized as:
(a) Immigrants with extraordinary abilities in Science, Arts, Business and sports. The intending immigrants in this category are considered to have extraordinary skills if they are nationally or internationally famous and their fame and achievement can be documented. Evidence which shows extraordinary ability includes nationally or internationally recognized prizes or awards for excellence, membership in associations, which require fame in a given field and articles published in scholarly journals. This category of immigrants can apply to obtain their green card without any letter from prospective employer or job offer provided they have documentation of their extraordinary abilities.
(b) Outstanding Professors, Researchers, and Scholars. This category of immigrants also qualifies for a first preference visas if the intending immigrant have a documented credential as an outstanding professor or researcher or a scholar. The outstanding skill here, can be proved by showing that such individual is internationally recognized in his or her field and have a minimum of three years of experience teaching or researching in the field or will be entering the U. S. on a tenure or tenure track as teacher or researcher at a University or institute of education. Labor certification is not required. (c) Multinational Executives and managers. This category is similar to the L-1 temporary visa for intra company transferees. To qualify in this category, the intending immigrant should have been employed outside the U. S. for at least one of the preceding 3 years in a managerial or executive capacity or if the person is already working in the U. S., he or she must have been employed on such a position for one of the three years preceding entry to the U. S. A letter from a prospective employer and other documentation is necessary, but a labor certification is not required.

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“How will successful entrants for the 2007 Diversity Visa Lottery be selected?”
At the Kentucky Consular Center, all entries received from each region will be individually numbered. After the end of the registration period, a computer will randomly select entries from among all the entries received for each geographic region. Within each region, the first entry randomly selected will be the first case registered; the second entry selected the second registration, etc. All entries received during the registration period will have an equal chance of being selected within each region. When an entry has been selected, the applicant will be sent a notification letter by the Kentucky Consular Center, which will provide visa application instructions. The Kentucky Consular Center will continue to process the case until those who are selected are instructed to appear for visa interviews at a U.S. consular office, or until those able to do so apply at a USCIS office in the United States for change of status.

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“If my Visa expires while I am in the United States, what does this mean to my status and how can I find out how long I am authorized to stay in the U.S.?”
A visa must be valid at the time a traveler seeks admission to the U.S., but the expiration date of the visa (validity period/length of time the visa can be used) has no relation to the length of time a temporary visitor may be authorized by the Department of Homeland Security to remain in the United States. Persons holding visas valid for multiple entries may make repeated trips to the U.S., for travel for the same purpose, as long as the visa has not expired, and the traveler has done nothing to become ineligible to enter the U.S., at port of entry. At the port of entry, and upon entering the U.S., the Department of Homeland Security, US immigration inspector, provides you a small white card, Form I-94, Arrival-Departure Record in your passport. 

Visa Waiver Program travelers receive Form 1-94W. On this form, the U.S. immigration inspector records either a date or "D/S" (duration of status). If your I-94 contains a specific date that is the date by which you must leave the United States. Your Form I-94 or I-94W is a very important document to keep in your passport, since it shows your permission to be in the U.S. However, if by any reason you know you may be overstaying the duration of your status, you must consult with your attorney for a legal advise on the procedure to adopt in commencing an application for adjustment of status for you – and note that it is most advisable to do this before the expiration of the duration of your status except when disallowed by some special circumstances which must have to be proved.

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“What family members should I include on my DV 2007 Entry Form?”
On your entry you must list your spouse, which is husband or wife, and all unmarried children under 21 years of age, with the exception of children who are already U.S. citizens or Legal Permanent Residents. You must list your spouse even if you are currently separated from him/her, unless you are legally separated (i.e. there is a written agreement recognized by a court or a court order.) If you are legally separated or divorced, you do not need to list your former spouse. You must list ALL your children who are unmarried and under 21 years of age, whether they are your natural children, your spouse's children, or children you have formally adopted in accordance with the laws of your country, unless such child is already a U.S. citizen or Legal Permanent Resident. List all children under 21 years of age even if they no longer reside with you or you do not intend for them to immigrate under the DV program. 

The fact that you have listed family members on your entry does not mean that they later must travel with you. They may choose to remain behind. However, if you include an eligible dependent on your visa application forms that you failed to include on your original entry, your case will be disqualified. (This only applies to persons who were dependents at the time the original application was submitted, not those acquired at a later date.)

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ADJUSTMENT OF STATUS CASES
"I came to the United States in 1999 and I am presently out of status because I failed to file for relevant immigration applications on time. I am afraid of returning to my country due to the present political and economic problems facing my country as a result of the new change in government. What is my right in the United States with my present immigration status? Can I file for asylum or are there other alternative immigration applications favorable to me to enable me to stay in the United States?"
The general Rule is that you must file for Political Asylum within one (1) year from the time you entered the United States unless you can demonstrate “extraordinary circumstances” which prohibited you from filling on time: such as illness etc. A change in Government may also be considered an “extraordinary circumstance” which would allow you to file your application for asylum outside the one (1) year period. However, you should consult an immigration Attorney to determine whether changed conditions in your home country, short of a civil war, qualifies as a changed circumstance. If not, you can always make an Application for Withholding of Removal to your home country. This is a more limited Relief than Asylum and consequently an immigration attorney should be consulted for instructions.

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"I was married under the native law and custom in Africa with two children from the native marriage. But, I came alone to the United States in 1992 where I got married again and equally have two children from the present marriage. Can I file for Green Card and am I qualified to bring my children in Africa over here to stay with me in the U.S.?"
The answer would depend on whether your current wife is a Lawful permanent resident or a United States Citizen. Only a spouse who is a U.S. Citizen or who has a Green Card can file what is known as immediate relative petition to accord you permanent residence status. Generally, the Bureau of Citizenship and Immigration Services (BCIS) will acknowledge the validity of a marriage if it is legally valid in the country where that marriage is performed. Therefore, it would depend on what country in Africa your first marriage took place. If the marriage is performed as result of tribal ritual but not recognized by the registrar of that country (not registered in court), the first marriage is not valid for immigration purposes. Your children, however, would be considered legitimate if your marriage appears on the birth certificate. Again, because you may be required to present evidence from your home country regarding the tribal rituals involved in the traditional marriage in your country, it is strongly suggested you consult an immigration Attorney.

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"I came to the United States with a visitor's visa. I am presently out of status as I have overstayed my visa. How can I legalize my status and which immigration applications can I file to get a Green Card or permanent residents?"
The Process of obtaining a Green Card in the United States is called “Adjustment of Status. Whether you can adjust in the United States and the Forms which are necessary will depend on whether you are seeking to adjust your immigration status based on a Bona Fide marriage to a United States Citizen, immediate relative or other family member or through an offer of employment called ‘Labor Certification’. In addition, whether you can adjust in the United States will also depend on when and how you entered the country. You also need to have an immigrant visa immediately available.
    In either case however, for you to obtain a Green Card in the U.S., you will need to file an application for adjustment of Status or I-485 Application. Let’s say for example that you entered the U. S. with inspection, using a visitor’s visa, but you have overstayed and that you are now married to a United States Citizen. The Form that you would file is called an I-130 – ‘Immediate Relative Petition’ accompanied by an I-485 Application. It is employment based; your prospective employer would have to file a Form I-140 Petition. Because the circumstances under which you can file the I-140 Application varies, you should consult an immigration Attorney to find out whether you qualify for adjustment of Status and which procedure is best for your situation.
    You may be qualified to obtain Residence in the United States through an Immigration Judge if you are willing to place yourself in removal or deportation proceedings. An immigration judge can cancel your deportation if you establish that you have lived in the United States for Ten (10) years consecutive years; and is a person of good moral character and if your deportation would result in an exceptional and extremely unusual hardship to a spouse or child who is a United States citizen, you will definitely not be deported. Here, the fact that both your children are in the United States would support an application for cancellation of any removal order, but you will need to document the children’s asthma with doctor’s letters and other medical records.

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"I came to the United States and got married. I am divorced but have a Green Card. How can I file for citizenship and how long do I have to wait for this?"
The general rule was that you had to wait for five (5) years from the time that you acquired your Green Card or Permanent Residence before becoming eligible to apply for U.S. citizenship if you are divorced from your spouse. Recently however, the BCIS allowed applicants to file three months or ninety (90) days before the five (5) years eligibility in view of the current backlogs confronting the agency. Had you still been married to a United States citizen spouse, the requirement is three (3) years less ninety days from the time that you obtained your Permanent Residence.

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"I came into the U.S. with false identity (somebody's passport). Presently I have my own passport which has no visa or documentation of my arrival. Unfortunately, I became sick here, as a result of which I was treated in the hospital where an unsuccessful surgery was conducted on me at the end of which I became paralyzed due to the negligence of the doctor who treated me at the hospital. Do I have any legal rights to take legal actions against the hospital or the doctor--and be compensated considering my illegal status in the U.S."
Yes, but your illegal status has nothing to do with the Doctor’s negligence. The same is also true for the Hospital. However, you need to show damages, e.g. showing how you were hurt as a result of the negligent act of the Doctor. Once sufficient evidence of the negligence is established, you have a good cause of action and can make a claim irrespective of your illegal status.

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"My visa expired and I have been in the United States illegally now for the past five years. I am due to return home but I am afraid because my country is being rampaged by civil war in the past two years. What can I do?"
You may be entitled to temporary protected status (“TPS”) in the Unites States. If your country is not included in the “TPS” program, your only alternative would be to file for political asylum. The general Rule is that you need to file for political asylum within one year from the date you last entered the United States if you fear persecution in your home country on account of race, religion, nationality, membership in a particular Social group or political opinion. You can also qualify for asylum if you were persecuted on one of these five grounds in the past. The exception to the one-year rule is that you were unable to file timely because of “extraordinary circumstances”. If, for example the civil war in your home country is a recent event, you may qualify for the exception under “changed circumstances”. In any event, you might qualify for a relief called withholding of removal. Similar to TPS, withholding allows you to remain in the United States in one (1) year increments if the war in your home country persists.

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"I have been in the U.S. since 2003 with a visitor's visa which is going to expire next month. Is it possible for me to file and obtain a work permit, driver's license and Social Security Number?"
No, as a visitor you do not have a right to work in the United states and may be deported. The Social Security Administration like the Department of Motor Vehicle in most States will request verification of your immigration status before issuing you a social Security number. If you are working illegally, off the books without your employer deducting taxes, you can obtain a Tax Identification Number or “ITIN” by which to pay taxes as a self-employed. You will also need to file a Schedule C as someone who is self-employed.

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