New York Law Blog

According to reports, the New York City family court system is completely overwhelmed with no help in sight. With massive budget cuts coming down from both Governor Patterson and Mayor Bloomberg ($1.2 billion and $1 billion by 2010, respectively), help isn’t likely to come soon. The overloaded court system is working as fast as possible, but many children are languishing in foster care for years waiting for their case to be heard in court.

"You have a certain exigency to cases involving children," Judge Ann Pfau, chief administrative judge for New York state courts. "You want to be able to resolve problems as quickly as possible, you just want stability for the child. Six months in criminal court case is different from six months in a family court case. Six months is a very long time for a child. We think about it all the time."

There are 47 judges assigned to Family Court in New York City, and about 146 statewide who handle more than 750,000 filings each year. In New York City, judges regularly have more than 2,000 cases pending, and can hear more than 50 cases per day.

Studies shows that 14 additional judges need to be added in New York City alone to lower the caseload, but with the budget cuts that is not likely to come. There are 17,000 children in the New York City foster care system, and they spend about an average of five years in foster care.

The city of New York was required to pay James McMillan a $18.3 million award in the aftermath of the 2003 Staten Island Ferry crash which left Mr. McMillan paralyzed in all four limbs. The payout is one of the highest the city has ever seen for a personal injury case, and so far New York has paid out over $72 million for the accident. So far 130 victims of the accident have settled out of court and 40 are still waiting to go to trial.

After the crash, the city had argued that its total liability should be limited to $14 million under a 19th-century maritime law, but a federal judge rejected the cap last year. The highest payout from the crash until Wednesday had been $9 million for a woman who lost both legs.

But Mr. McMillan, who lost use of his arms and legs, was the passenger who was hurt the worst in the crash and was likely to recover the most money — in lawsuits, catastrophic injuries typically result in higher judgments than deaths. Personal injury lawyers said they did not expect a raft of eight-figure judgments to follow. The pending cases include 4 of the 11 deaths.

New York City has not faired well as of recently when it comes to lawsuits against it. The ferry accident, however, was one of the biggest accidents in the city’s history.

The judgment comes as the city faces suits over numerous high-profile accidents, including crane collapses, steam-pipe explosions and the Sean Bell shooting. The city has set aside $658 million for this fiscal year for payouts in suits against it, down half a percent from fiscal year 2008 but up 17 percent from 2007, according to the Independent Budget Office.

The crash of the ferry Andrew J. Barberi into the dock at Staten Island on Oct. 15, 2003, with about 1,500 passengers aboard, was one of the worst transportation disasters in the city’s history. The side of the boat was ripped open by a concrete and wood pier and dozens, trapping or partly crushing dozens of people, after the assistant captain operating it blacked out at the wheel.

The city was held responsible for the accident because there was a breach of protocol in the wheelhouse of the ferry: two captains are supposed to be present at all times and at the time of the accident only one was. Two men being held responsible for the accident are serving prison time after pleading guilty to negligent manslaughter.

Many veterans of the Iraq war are finding themselves being misdiagnosed with a variety of ailments instead of the one they really have: some form of Traumatic Brain Injury. Also known as varying level of concussions, soldiers are being told they have varying forms of Post Traumatic Stress Disorder instead of being diagnosed with the debilitating brain injury they more than likely have. Along with the misdiagnosis comes the incorrect disability payment leaving some of these soldiers out in the cold when in fact they need help for the brain injuries they have suffered.

Mr. [Kevin, injured in a roadside bomb attack] Owsley is part of a growing tide of combat veterans who come home from Iraq and Afghanistan with mild traumatic brain injuries, or concussions, caused by powerful explosions. As many as 300,000, or 20 percent, of combat veterans who regularly worked outside the wire, away from bases, have suffered at least one concussion, according to the latest Pentagon estimates. About half the soldiers get better within hours, days or several months and require little if any medical assistance. But tens of thousands of others have longer-term problems that can include, to varying degrees, persistent memory loss, headaches, mood swings, dizziness, hearing problems and light sensitivity.

These symptoms, which may be subtle and may not surface for weeks or months after their return, are often debilitating enough to hobble lives and livelihoods.

To this day, some veterans — it is impossible to know how many — remain unscreened, their symptoms undiagnosed. Mild brain injury was widely overlooked by the military and the veterans health system until recently.

Mr. Owsley’s request for a Purple Heart, given to troops wounded or killed in action, was denied by the military, a devastating blow. Others say that their mild brain injury entitled them only to low disability payments, or, if the diagnosis was inconclusive, to none at all.

Army scientists are working on understanding brain injuries better so that they may diagnose any issues more easily, but it may be too little too late for soldiers who have suffered severe personal injury at the hands of bomb blasts in Iraq. Misdiagnosis is also leaving many veterans unable to work, pay their bills, and provide for their families. Veterans Affairs has now stepped in for better screening procedures for those going overseas as well as those coming home.

It was not until 2006, three years into the Iraq war, that the Departments of Defense and Veterans Affairs began to pay close attention to mild traumatic brain injuries. The Pentagon last year opened the Defense Centers of Excellence for Psychological Health and Traumatic Brain Injury, a clearinghouse for treatment, training, prevention, research and education. This year it is spending a record $300 million on research for traumatic brain injury and post-traumatic stress disorder.

“We are more attuned to brain injuries now,” said Lt. Col. Michael Jaffee, the director of the Defense and Veterans Brain Injury Center. “There has not been as aggressive an effort before.”

That effort begins with screening. As of May, service members who deploy longer than 30 days will undergo neurocognitive testing before leaving, to establish a baseline for changes that may occur later, and again upon returning. At the same time, soldiers in battle who lose consciousness or feel dazed after a blast or other event must be screened by a medical provider and are either approved for duty in the field, told to rest for several days on base or sent to Landstuhl for further evaluation.

And what to do if the military is neglecting some of these soldiers? Some are considering going to federal court over the issue.