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Nursing Home Negligence

NURSING HOME NEGLIGENCE AND ABUSE

Our elders in this country who depend on the care of nursing homes and residential care facilities deserve respect and dignity in the last stage of their lives.  At the Law Offices of Ira M. Perlman, P.C. & Robert D. Rosen, P.C., we have a duty to enforce the rights of the elderly whom in many cases do not possess the means to defend themselves against improper care, neglect and abuse.  We strive to help these “silent victims” (as they are sometimes referred to) receive the quality of care that they have earned.

Because of the expanding senior population and the need to create a profit in the nursing home industry, quality of care has diminished while abuse and neglect, which affects both a resident’s physical and emotional health (and could even lead to wrongful death), continues to rise. When an individual decides to reside at a long-term care facility, which includes nursing homes, assisted living facilities and residential care facilities, that facility makes a promise to provide a safe environment where quality care is provided. Generally, nursing homes offer a professional level of care in helping residents with their daily living as well as caring for wounds, breathing exercises and rehabilitation, and the expectation is that treatment will be implemented in an environment free from physical harm, sexual abuse and lack of other necessary care.

Unfortunately, the promises made by nursing homes are sometimes broken, resulting in forms of mistreatment such as physical or sexual abuse and neglect. The creation of an environment that fosters these types of mistreatment is illegal under our state and federal laws, so if your family member or loved one has been harmed due to lack of all necessary and proper care in a nursing home, the Law Offices of Ira M. Perlman and Robert a Rosen can provide you with an understanding of your legal rights as well as a means to enforce those rights.

Signs of Nursing Home Negligence and Abuse

Evidence of inexcusable, sub-standard care at a nursing home or residential care facility can include, but are not limited to the following:

  •     Malnutrition
  •     Dehydration
  •     Sepsis
  •     Bruises
  •     Untreated bedsores or pressure sores also known as decubitus ulcers
  •     Unexplainable fractures
  •     Improper use of restraints
  •     Falls
  •     Wandering and disappearance
  •     Loss of dignity
  •     Burns
  •     Unusual bleeding
  •     Sudden and unexplained change in weight
  •     Soiling, poor hygiene, smell of urine or feces
  •     Physical or emotional withdrawal

If you have any suspicions that someone you care about has been the victim of abuse or neglect in a nursing home or residential care facility, promptly contact the state agency that investigates claims of elderly abuse and file a detailed report. Then contact our office just to get some appropriate guidance before speaking with the nursing home. Obviously, arrangements should be made to request  a transfer of your loved one for his or her protection.

If your loved one or family member exhibits any of these signs of nursing home abuse or neglect, call the Law Offices of Ira M. Perlman, P.C. & Robert D. Rosen, P.C. for a free initial consultation.

The Applicable Law

In the early 1970’s, there were many highly publicized cases of abuse in nursing homes and residential care facilities which prompted an investigation by the then Governor Hugh Carey.  This investigation resulted in the enactment of New York State Public Health Law Section 280.1(b) which expressly created a private right of action in favor of nursing home residents in order to enforce their rights to adequate care and treatment, providing them with the ability to sue for damages and other relief.

Pursuant to the statute, a residential health care facility is liable to an individual for depriving that individual of any right or benefit created or established for the well-being of the resident or patient of a residential health care facility by terms of any contract, state statute, code, rule or regulation or by any applicable federal statute, code, rule or regulation.  If there has been non-compliance by said facility with such statute, code, rule or regulation which can be shown and proven, then the residential facility or nursing home will be held liable and responsible under this available statutory cause of action unless the facility can show that it exercised all care reasonably necessary to prevent and limit the deprivation and injury for which liability is being asserted pursuant to Section 2801-d of the Public Health Law.

This statutory remedy is available in addition to and cumulative with any other remedy available to a resident or patient under the law.  In this regard, any attorney handling a nursing care neglect or abuse lawsuit should include other claims and causes of action relating to Common Law Negligence and/or medical malpractice if facts and circumstances give rise to same.

There are various regulations within the State of New York as set forth in the New York State Codes, Rules and Regulations Section 415.1, et seq. relating to promoting care for residents in a manner and environment that enhances each resident’s dignity and respect while a resident or patient at a facility.  These regulations are comprehensive in terms of a list of rights and include under Section 415.3(c)(vii) which mandates that a resident be “free from verbal, sexual, mental, or physical abuse, corporal punishment and involuntary seclusion, and free from chemical and physical restraints except those restraints authorized in accordance with  Section 415.4 of this Part.”  Further, there are a number of regulations relating to minimum staffing requirements, quality of care, adequate supervision and assistive devices to prevent accident, proper record keeping and the need to provide comprehensive assessments and plans of care for residents and patients.

Additionally, there are a number of federal regulations under 42 CFR Section 483, et seq. which require the same or similar requirements as New York State law.

Therefore, there are a number of tools available in order to hold a nursing home or residential care facility liable through statutory negligence under the Public Health Law, Common Law Negligence and/or medical malpractice.  Of course, if any negligent abuse, neglect or wrongful conduct resulted in a wrongful death, then a claim can be made pursuant to New York’s wrongful death law and statutes.

It is important to realize that all of these claims pursuant to statute, Common Law Negligence, medical malpractice and/or wrongful death law can all be brought together in one single proceeding.  However, navigating through all of these laws, statutes, rules and regulations can be quite complex, thereby requiring thorough knowledge and experience of a qualified lawyer to prosecute a nursing home negligence and abuse lawsuit.  The Law Offices of Ira M. Perlman, P.C. & Robert D. Rosen, P.C. have all of the necessary experience and knowledge concerning nursing home negligence and abuse cases and have successfully prosecuted and continue to prosecute these cases.

Further Information on Specific Types of Nursing Home Negligence and Abuse

Further information about specific types of negligence and abuse of nursing home residents is provided in the sections identified below:

  • Dehydration and Malnutrition
  • Bed Sores, Pressure Sores, Decubitus Ulcers
  • Sepsis
  • Physical Abuse
  • Sexual Abuse
  • Restraints and Bedrails
  • Wandering and Disappearance
  • Choking
  • Clogged Breathing Tubes
  • Burns
  • Medication Errors/Restraints
  • Falls
  1. Dehydration and Malnutrition

It is of paramount importance to the health of nursing home residents that proper nutrition and hydration are provided. Maintenance of proper levels of nutrition and hydration is supposed to be among the standard policies and procedures in nursing homes; however, there are many nursing homes that are understaffed and undertrained, and at those facilities residents become in danger of dehydration and malnutrition.

It is a requirement of nursing homes to provide each resident with necessary care. Clearly, food and water fall under the category of a necessity for all residents, but this may not be as obvious a fact as it seems since some nursing homes do not provide residents with adequate food and water. Elderly residents face many challenges in providing themselves with sufficient food and water. Water may become difficult to access for residents who are too weak to lift large containers on their own, and residents who have dementia may not try to find a drink of water on their own. In similar situations where residents need assistance in eating, they are too often left to their own devices and do not obtain the necessary sustenance.

In cases of malnutrition, some residents have trouble swallowing and/or other combinations of ailments that impairs their ability to ingest food. In other cases, residents may have good appetites but still need assistance to eat. This becomes a pertinent issue at nursing homes that are not adequately staffed, as those residents who need assistance with feeding cannot find any help at all.

The budget of food for residents is another unfortunate truth of nursing home corporations, which is roughly $4.00 per day. Coupled with noisy, overcrowded dining rooms, all of this would seem to contradict the requirement of nursing homes to provide their residents with appetizing food and a pleasant eating environment.

In cases of dehydration, some residents have trouble gaining access to water independently, while others take medications that cause dehydration if they are not properly monitored. Although providing residents with a drink of water seems like the most simple task, overworked nursing home staffs often fail to accomplish it.

Malnutrition and dehydration can be a cause of serious ailments such as pneumonia and bed sores in residents.

Indicators of Malnutrition

  • Dizziness/lightheadedness
  • Weight loss
  • Fatigue

Indicators of Dehydration

  • Darker and more concentrated urine
  • Decreased urine output
  • Muscle cramps
  • Fatigue
  • Thirst
  • Vomiting and nausea
  • Dizziness/lightheadedness
  1. Bed Sores, Pressure Sores, Decubitus Ulcers

Pressure sores or decubitus ulcers (commonly known as bed sores) are two terms that describe the same ailment: the development of a wound due to prolonged pressure on a specific part of the body. Although they are known to be commonplace in nursing homes, bed sores are still serious as well as preventable. They can develop during periods of immobility such as when a resident is sitting in a wheelchair or lying in bed, and these sores can be worsened by friction or excess moisture on the skin, becoming very painful and possibly complicating prior health issues. Unfortunately, infections from improper treatment of bed sores resulting in death are not uncommon in nursing homes.

Although there are policies and guidelines in nursing homes for prevention and treatment of bed sores, the implementation of these policies is at times ineffective, in many cases as a result of a shortage or insufficient training of staff members.

How Do Bed Sores Form?

If those in charge of the care of immobile nursing home residents do not take proper precautions and measures to relieve continuous pressure through repositioning, these residents become at high risk for bed sores. Bed sores develop when there is continuous pressure on bony areas of the body such as the coccyx, hips and heels.

Another important factor in the control of bed sore development is cleanliness. When residents are forced to sit or lay in their own waste for much too long (an unfortunately common occurrence in nursing homes), the skin is susceptible to being broken down by the acidity of urine, which can lead directly to the development of bed sores or the worsening of existing bed sores. Prolonged exposure of a bed sore to feces and urine can lead to deadly, systematic infections throughout the body such as sepsis.

Hydration and nutrition are among other important factors in bed sore prevention and treatment. Many immobile residents require assistance even with the most basic living necessities like food and water, and a poorly trained or understaffed nursing home may overlook some of these life requirements. When this happens, residents become at risk for dehydration and malnourishment, which weakens the body. Dehydration makes the skin more fragile and brittle, and therefore more prone to bed sore development. A malnourished resident would have decreased fat and muscle content, also increasing the risk for bed sore development.

Bed Sore Diagnosis

Bed sores are categorized according to stages that progress by greater degree of tissue and skin damage. Below are descriptions of the four stages of pressure ulcers, as defined by The National Pressure Ulcer Advisory Panel in February 2007:

  • Stage 1: Intact skin with non-blanchable redness that is typically localized to a bony prominence. Darkly pigmented skin might not show visible signs of blanching and its color may be different in the areas surrounding it.
  • Stage 2: Skin that has a partial thickness loss of dermis and a shallow open wound with a red pink bed without slough. This is sometimes intact and looks like an open or ruptured fluid filled blister.
  • Stage 3: Full thickness loss of skin tissue. The wound is open where subcutaneous fat is visible. Slough may be present but not to the point of obscuring the wound depth, which may have undermining or tunneling.
  • Stage 4Deep wound with full thickness tissue loss. Muscle, tendon and bone are visible. Eschar and slough may exist on top of the wound while undermining and tunneling are often in the proximity of the wound and under the intact skin.

Bed Sore Prevention in Nursing Homes

Bed sores are much easier to prevent than to treat, and there are numerous practices at the disposal of nursing homes that should be implemented in order to stop bed sore occurrence. For example:

  • Cleanliness, hydration and nourishment should be maintained at all times.
  • Pressure sore checks should be implemented on a weekly basis (at the least), and observations of skin and tissue should be kept in residents’ medical records.
  • Protection of the skin from orthopedic devices should be provided to residents who use them such as specific kinds of clothing and padding.
  • Residents who have sufficient upper body strength and sit in wheelchairs should be taught a method of exercise called the “wheelchair pushup” that allows relief from the pressure of sitting in the chair.
  • Immobile residents should have their positions changed constantly. Specialized mattresses for the prevention of bed sores can be used, but repositioning of the resident should continue nonetheless.
  1. Sepsis

Sepsis is a bacterial infection of the blood stream or tissue. It is curable when treated properly, but all too often this is not the case. A minor septic infection can become systematic and deadly if left untreated.

Nursing home staffs are often overworked and undertrained which makes the development of a curable infection into sepsis more likely and more dangerous. Residents with bed sores unfortunately are many times left in their own filth and excrement, which has bacteria that can enter the blood stream and cause sepsis. The urinary tract infection is easily treatable as well; however, poorly trained staff members might not he able to identify such an infection before it develops into sepsis.

In order to win a case involving sepsis as a result of nursing home negligence, the plaintiff must prove that the actions or lack thereof of the nursing home led to a loved one’s contraction of sepsis and corresponding injuries or death.

We have experience in representing families who have had their loved ones die wrongful deaths as a result of a nursing home stay. If you have the suspicion that your family member or loved one had an infection left untreated and developed sepsis as a result, call the Law Offices of Ira M. Perlman, P.C. & Robert D. Rosen, P.C. for a free initial consultation.

  1. Physical Abuse

Tragically, many forms of physical abuse exist towards vulnerable nursing home residents by fellow residents as well as by staff members in care facilities. Food or water deprivation, beatings, inappropriate use of restraints, biting and over-medicating are simply examples on a long list of types of physical abuse in nursing homes. Sometimes signs of physical abuse are obvious in cases where residents have broken bones or bruises, but sometimes the symptoms of abuse reside in the mental state and emotions of the resident when they become fearful of their abuser and reclusive as a result. If you have any suspicion that your loved one has endured any kind of physical abuse under the care of a nursing home, immediately notify the police as well as the state agency that oversees nursing homes, and remove the resident from the nursing home if necessary.

What You Can Do To Protect Your Loved One

Although it is unlikely that a nursing home or their parent corporation would encourage physical abuse towards their residents, they are still capable of ignoring or hiding incidents of abuse. You must stay both proactive and reactive in order to protect your loved one.

Proactive Measures

  • Make visits to nursing homes often and unpredictable.
  • Do not hesitate to enter your loved one’s room even when told not to.
  • Remember the names of all employees who come into contact with your loved one.
  • Make a note of other residents who seem potentially violent.
  • Talk to an administrator of the facility in order to make sure proper criminal background checks were done on all staff members.

Reactive Measures

  • Consistently check your loved one for unexplained bruises and report them accordingly.
  • Notify the facility’s management with concerns, request changes and follow up on them accordingly.

We have a history of success in representing victims of physical abuse in nursing homes. If you have the suspicion that your family member or loved one might be one of these victims, call the Law Offices of Ira M. Perlman, P.C. & Robert D. Rosen, P.C. for a free initial consultation and a discussion of their injuries and legal rights.

  1. Sexual Abuse

It may disturb you to know that a recent study found that 15 out of every 20 reports by nursing home residents of sexual assault were made against nursing home staff members. Elderly residents are vulnerable to sex offenders due to their diminished mental capacity to alert the proper channels of such abuse and due to their diminished physical ability to evade an attack. Families of residents must stay wary of sexual abuse in nursing homes and should be prepared to both detect and prevent it.

Indicators of Sexual Abuse

  • Hints or insinuations by residents that abuse may have occurred.
  • Reports of the abuse of other residents.
  • Diagnosis of a sexually transmitted disease.
  • Trauma or sensitivity in the genital region.
  • Personality changes.
  • Crying/depression
  • Strong emotions toward a certain staff member.
  • Shame/embarrassment when questioned about physical signs of abuse.

What You Can Do To Protect Your Loved One

The sexual abuse of defenseless nursing home residents is an atrocious act that leaves both physical and emotional scars on victims. You must stay both proactive and reactive in order to protect your loved one.
Proactive Measures

    • Since most incidents of sexual abuse occur at night, be sure to make visits at that time.
    • Do not hesitate to enter your loved one’s room even when told not to. Stay vigilant for signs of sexual inappropriateness among other residents.
    • Remember the names of all employees who come into contact with your loved one.
    • Talk to an administrator of the facility in order to make sure proper criminal background checks were done on all staff members.

Reactive Measures

  • Check for and report all bruising or redness in or around the genital region and demand a documented explanation for the injury.
  • Attempt to talk with your loved one about concerns with particular staff members or other residents.
  • Notify the facility’s management with concerns, request changes and follow up on them accordingly.

If you have any suspicion that your loved one has endured any kind of sexual abuse under the care of a nursing home, immediately notify the police as well as the state agency that oversees nursing homes, and take the resident to the hospital for examination as soon as possible (do not bathe the resident before taking him or her to the hospital). Also, make sure that all evidence related to the abuse is preserved, such as bed sheets or clothes worn during the assault.

How We Can Help You

We have a history of success in representing victims of sexual abuse in nursing homes. If you have the suspicion that your family member or loved one might be one of these victims, call the Law Offices of Ira M. Perlman, P.C. & Robert D. Rosen, P.C. for a free initial consultation and a discussion of their injuries and legal rights.

  1. Restraints and Bedrails

According to the Nursing Home Reform Act of 1987, any type of restraint used by a nursing home that is not ordered by a doctor is illegal. Restraints can be either physical or chemical. Chemical restraints refer to medications, usually anti-psychotic drugs, which have the purpose of inducing the passivity of residents. Nursing homes that are focused on minimizing expenditures will often choose to use chemical restraints since medicated residents are easier to control and allow for cuts in staffing.

  1. Wandering and Disappearance

One of the most important reasons that a nursing home must be adequately staffed is the danger of elderly residents with Alzheimer’s disease or dementia wandering into unsafe environments, putting themselves at serious risk for injury or death. Proper monitoring of residents is always an expectation that families have when they place their loved one into the care of a nursing home. Unfortunately, many nursing home corporations have budgets that do not sufficiently account for proper levels of staffing, and the result can be saddening. If your loved one has sustained injuries or died as a result of wandering off the grounds of a nursing home, call the Law Offices of Ira M. Perlman, P.C. & Robert D. Rosen, P.C. for a free initial consultation.

Nursing Home Liability

When a nursing home staff fails to follow its procedures and policies and a wandering resident is injured as a result, the facility may be found to be liable. Understaffing, insufficient training of staff and inadequate supervision of residents can all lead to a situation where a resident wanders off and is accordingly put at risk of injury. Types of injuries as a result of wandering include:

  • Falling down stairwells
  • Escaping the building and walking into traffic
  • Escaping the building and becoming susceptible to outside conditions
  • Being assaulted or robbed by people who can easily take advantage of them

We have a history of success in representing nursing home residents who have been injured as a result of wandering. If your loved one has been the victim of an injury resulting from wandering, call the Law Offices of Ira M. Perlman, P.C. & Robert D. Rosen, P.C. for a free initial consultation and a discussion of their injuries and legal rights.

  1. Choking

Choking is a clear and apparent danger for the many nursing home residents with either physical or mental impairments that make swallowing a difficult task. Nursing homes have an obligation to assess what foods are the safest for a resident with a swallowing problem to eat.  A resident who is at potential risk for choking should have their food pureed, which is a term used to describe solid food that is liquefied into a sort of pudding. Unfortunately, many nursing homes are poorly staffed, and as a result residents who should be closely monitored during their meals are left alone to potentially choke. Even those residents who already have their food pureed may accidentally take another resident’s solid food if they have any limits on their mental capacities, and choking may be the result. Also, residents who have limited mental capacities should be treated with the same amount of caution as is used with children. Small or sharp objects, such as rubber gloves, razor blades, pen caps and coins are all choking hazards for these residents. Nursing homes have a responsibility to make sure than the residential environment is free of choking hazards.

Choking is a frightening, painful experience that can result in catastrophic injuries. Choking inhibits breathing and restricts the flow of oxygen to the brain, and its consequences may include brain damage or even death. If your loved one choked due to insufficient monitoring and neglect by a nursing home, the nursing home may be liable for abuse or neglect.

  1. Clogged Breathing Tubes

Nursing home residents who require endotracheal tubes (commonly referred to as breathing tubes) require assistance from the nursing home staff for basically everything. Breathing tubes block the vocal cords making it impossible for residents using them to talk, and these tubes also make it impossible for residents using them to eat or drink, so these residents have to eat through a feeding tube or an IV that is directly connected to the stomach. Also, proper training is a necessity for the care of residents who use breathing tubes because the tubes need to be cleaned constantly and maintained at all times in order to insure the comfort and safety of those residents. A malfunction or clogging of the tube may result in asphyxiation, constricting the flow of oxygen to the brain and resulting in severe brain injuries or death. Nursing home staff members must therefore be extra cautious and vigilant in tending to the needs of residents who use breathing tubes.

  1. Burns

The most frequent causes of nursing home resident burns are when a nursing home resident is placed too close to heating units and when a resident is bathed in scalding water. Cigarette burns are another common mishap in nursing homes. Burns to nursing home residents can be painful, severe and even life-threatening, and they may also be due to negligence on the part of the nursing home.

Heater Burns

Residents of nursing homes are often cold, since they have older bodies that do not retain heat as well as they did when they were younger, and one of the solutions that nursing home staff members have to solve this issue is to move residents who complain about the cold close to heating units. Although well-meaning, if a resident is placed too close to a heater or if he or she is left in that spot too long, severe burns may result.

Scalding Burns

The skin of an elderly individual is similar in its fragility to the skin of a newborn baby. It is very important that nursing home staff members remember this when giving a bath to a resident. The temperature of bath water must be maintained at a safe level. If not, residents may incur severe burns.

The legal responsibility that nursing homes have to keep your loved one safe includes keeping them from getting burned, and failing to do so may deem nursing homes liable for abuse or neglect. If you have any suspicion that your loved one has been burned as a result of nursing home negligence, call the Law Offices of Ira M. Perlman, P.C. & Robert D. Rosen, P.C. for a free initial consultation.

  1. Medication Errors/Restraints

When a family places their loved one into a nursing home, it is the promise of the facility that the resident’s medication(s) will be properly dispensed. Most residents at nursing homes take at least one kind of medication and any deviation from the prescribed dosage may result in serious harm to the resident or even death. Strict budgeting on training and staffing in nursing homes many times impedes the ability of staffs to properly dispense medications, often resulting in a resident receiving too little, too much, or the wrong medication entirely.

For example, there can be one resident who is on high blood pressure medication and another resident who is taking diabetes medication.  If these medications are reversed for these two residents, not only are both patients failing to be treated their respective medical conditions, but there is also a very dangerous and high risk that these residents could suffer unintended drug interactions and side effects as a result of the unintended medication errors at the facility.

Overmedicating – Chemical Restraint

Unfortunately, nursing homes and residential care facilities have been known to engage in the practice of using drugs or medication to chemically restrain a patient when the staff has felt the need to control a difficult resident or patient.  It is estimated that twenty-five (25%) percent of nursing home patients are given anti-psychotics.  The use of dangerous drugs to chemically restrain a patient is illegal and such a practice can result in a diminution in the quality of life or even result in a wrongful death.  Common symptoms of the overuse of drugs or medication include confusion or lethargy of a resident/ patient in addition to other unusual physical symptoms that were never noticed before.

If you suspect that your loved one has been the victim of a medication error or medication restraint, or there has been a wrongful death of your loved one due to this type of wrongful conduct, call the Law Offices of Ira M. Perlman, P.C. & Robert D. Rosen, P.C. for a free initial consultation.

  1. Falls

One of the most frequent causes of broken bones and other serious injuries in the elderly are falls. The severity of a broken bone or a fracture in a nursing home resident is particularly great as it can create other serious health conditions such as infections, bed sores, loss of appetite, pneumonia and brain injuries. It is the responsibility of nursing homes to assess residents for fall risk and to provide means to reduce that risk if it exists, including:

  • Sufficient staffing to monitor residents at fall risk.
  • Safety devices to prevent falls.
  • Adequate housekeeping that prevents fall hazards.

A nursing home that fails to provide residents with an environment safe from fall risks is potentially liable for any injuries suffered by a resident in their care.  If you have a loved one who has fallen and sustained an injury under the care and supervision of a nursing home, call the Law Offices of Ira M. Perlman, P.C. & Robert D. Rosen, P.C. for a free initial consultation.

HOW WE CAN HELP YOU

Ira Perlman and Robert Rosen have over 30 years of experience in winning their clients full and complete monetary compensation for their harms and losses as well as the respect and dignity they so justly deserve.  Mr. Perlman is a tenacious and seasoned trial attorney who has been successfully trying his clients’ cases as well as cases referred to the office from other attorneys for over 30 years.  Mr. Rosen, with his adept litigation and writing skills has navigated clients’ lawsuits inside and outside the courthouse in order to achieve the excellent results that generate their ongoing success.  The Law Offices of Ira M. Perlman, P.C. & Robert D. Rosen, P.C. are prepared to expend all of the necessary resources, financial or otherwise, in order to investigate and prosecute your case including retaining all necessary medical and/or technical experts in the relevant areas and fields and taking your case to verdict at trial if the insurance companies who represent the wrongdoers do not want to fully and fairly compensate you and your loved ones.  If you, a family member or a loved one has become a victim due to an accident, malpractice or a serious injury and you would like to achieve optimum results relating to your claims, call the Law Offices of Ira M. Perlman, P.C. & Robert D. Rosen, P.C. at 212-689-5000 for help now including a free initial consultation.