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Medical Malpractice Debate in New York: Limit Injured Parties’ Ability to Recover or Fix the System?

As of late there has been a colossal debate over medical malpractice law. Gov. Andrew M. Cumo and his Medicaid Redesign Team came up with Proposal Number 131 to impose a cap of $250,000 on noneconomic damages for victims of medical malpractice and create an indemnity fund for neurologically damaged infants, among other things. But are injured people the ones who should be penalized?

What about fixing the medical system so the possibility of injury from malpractice is decreased in the first place? Seemingly, this would make all sides better off. One Columbia-Presbyterian study by three medical doctors was done with the goal of finding a comprehensive obstetric patient safety program to reduce compensation payments and sentinel adverse events. Data was gathered from 2003 through 2009 and the results are simply astounding. “Average yearly compensation payments decreased from $27,591,610 between 2003-2006 to $2,550,135 between 2007-2009, sentinel events decreased from 5 in 2000 to none in 2008 and 2009. Instituting a comprehensive obstetric patient safety program decreased compensation payments and sentinel events resulting in immediate and significant savings.” Yes, that is about $25 million. Here is the report:

Columbia-Presbyterian Patient Safety Study

The issues that this study covers are very real. Bronx-Lebanon Obstetricians in the South Bronx recently received a warning from their insurance company that their practice may be cut off from insurance coverage, due to their subpar “method of practice” and “practice environment”.

Read moreMedical Malpractice Debate in New York: Limit Injured Parties’ Ability to Recover or Fix the System?

Loss of Enjoyment of Life, Conscious Pain and Suffering: Personal Injuries in New York

In New York, injured people can recover for the conscious pain and suffering and loss of enjoyment of life that they suffer as a result of injuries they sustained in an accident. Conscious pain and suffering, according to the Pattern Jury Instructions (PJI) 2:280, is “pain and suffering of which there was some level of awareness by the plaintiff”. Loss of enjoyment of life, according to the PJI, includes the “loss of the ability to perform daily tasks, to participate in the activities which were a part of the person’s life before the injury, and to experience the pleasures of life”. The threshold of “some level of awareness” in order to recover under the law had to be set by the Court of Appeals for purposes of simplicity.

When a person brings a personal injury case, he or she waives the physician-patient privilege as to mental or physical injuries or conditions, but only as to those that are affirmatively put in issue by him or her in the lawsuit. The party seeking the disclosure of mental or physical health information (defense counsel) bears the burden of making an evidentiary showing that the condition is in controversy and discovery may proceed under the statute. Defense counsel will ordinarily not be able to show entitlement to discovery of a medical file pertaining to treatment for an injury to the cervical spine in 2008 when the plaintiff is making a claim for a 2011 foot fracture.

What if a plaintiff claims that she suffers from anxiety as a result of a fractured foot that occurred in a 2011 accident? Does it render her complete file of psychiatric records discoverable? Or what if she claims that she lost the enjoyment of her life as a result of the fractured foot she sustained in the 2011 accident? Does this claim render her entire physical and mental medical file discoverable?

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Individuals’ Right to Sue Again Under Attack by “Corporate America”

The House Judiciary Committee voted 18-15 along party lines in the past week to send a Republican sponsored medical malpractice tort reform bill to the full house for approval. This bill is the latest in a long continuing assault by the minions of corporate america, i.e the Republican party, to limit or eliminate the individual’s … Read more Individuals’ Right to Sue Again Under Attack by “Corporate America”

National Football League and Sports in New York, Part 2

This is the second part of a series of entries. The first part can be accessed here What if you are not NFL material but become injured while playing sports and want to recover money for your injuries? In most cases there will likely be no issue with fraudulent concealment, workers’ compensation, and collective bargaining. … Read more National Football League and Sports in New York, Part 2

National Football League and Sports in New York, Part 1

Football season is winding down, but the National Football League should soon be winding up for two class action lawsuits that are purportedly being formulated against it. Continued and increasingly in depth research on football related brain injuries has spawned potential legal claims that have the ability to wreak havoc on the now over ninety year old organization.

Seventeen years ago, in 1994, the NFL medical committee on concussions was formed. In the last several years, report after report has surfaced detailing clinical research findings of severe and permanent cognitive harm associated with playing football. But these reports were not from the NFL. Rather, the NFL has put out conflicting statements on the subject and only recently reported similar findings to what reputable researchers have been warning about for years. In 2007 the NFL circulated a pamphlet to players stating, in essence, that a few concussions would not result in permanent brain injury, so long as proper medical treatment was received. Last summer, however, the NFL finally circulated a poster, meant to be hung in locker rooms, revealing that concussions may not be so benign after all (click the image to the right to make larger). Indeed, various studies have found that early dementia, Alzheimer’s disease, Lou Gehrig’s disease, depression, chronic traumatic encephalopathy, and memory problems, among other things, are all associated with head injury.

Some recent players of the league are expected to allege that the NFL was aware of the long term risks of playing football and chose to suppress them, or that the NFL reasonably should have known of the long term risks. The root of these claims is that the NFL’s failure to disclose what they knew made an already dangerous sport even more dangerous and that the NFL made no attempt to lessen the danger. Such claims could result in awards to injured players for economic loss, pain and suffering, and in the case of a fraudulent concealment claim, punitive damages. Wives, and in some states, children of the injured players, could also recover monetary damages if the injured player’s lawsuit is successful.

Read moreNational Football League and Sports in New York, Part 1

Mediation Increases the Success of Injured Clients in New York

Last week I attended the wake of one of New York’s foremost mediators, Michael McAllister. Having been a private mediator with JAMS for the last six years, he had developed a reputation among all litigators in the negligence field as fair, honest, hardworking and a true gentleman. As I watched attorney after attorney and even insurance adjusters pass through the funeral home, I was reminded of the first time I had ever heard of the concept of mediation.

Almost fifteen years ago, I was asked, as a law student working at a prominent New York personal injury firm, to prepare a case for mediation. Having just completed three years of law school, I was kind of surprised that I had not heard of mediation. Furthermore, having worked for over ten years at this firm as a high school student, college student and law student, the concept of trying to settle the case using a private mediation service was something unheard of. We were weeks away from trial and it seemed like everything had been going as planned.

I walked into the managing partner’s office and asked, what is this private mediation and why are we trying this since we are so close to trial? The answers I was given, though strange at first, are so on point and correct in today’s litigation trial strategy.

Private mediation is essentially a mutual agreement by all sides to retain the services of a retired judge or former court attorney so that each side can present the strengths and weaknesses of their case in a forum that allows for open communication and dialogue. The goal is to begin settlement discussions and resolve the matter to the benefit of all parties, more often than not.

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Worker Dies at Queens Construction Site

Labor Law § 240(1), a New York State statute, imposes upon owners and general contractors a non-delegable duty to provide proper and adequate safety devices to afford protection to construction workers working on a building or structure subject to elevation-related hazards. No matter how stringent the safety standards are in New York regarding construction, all construction laborers are at risk every single day while on the job.

Any breach of the statute will impose absolute liability upon the owner and general contractor at the construction site. Moreover, negligence of the injured construction worker is of no consequence against a Labor Law §240(1) claim. This statute, along with Labor Law §241(6) and §200 (codification of common law standards) allows an injured construction worker to recover monetary damages for injuries suffered in a construction site accident.

Earlier this month, a wall collapsed at a construction site in Rego Park, Queens on January 10, 2011, killing a construction worker and seriously injuring three other workers at the site. This was the first construction death recorded in New York City this year, according to New York City’s Department of Buildings. The accident occurred as two workers were perched atop the wall, which was 18 feet tall, pouring concrete into the spaces in the cinder block wall, when it collapsed. There were two workers on the ground near the wall and beneath the scaffolding when the wall began to collapse.

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Summary Jury Trials: Justice or Just Fast?

Human tendency is to want immediately everything that can be obtained immediately. We like one hour photo-labs, microwave ovens, overnight mail, same day dry cleaning, and fast food. Well, as proof that the wheels of justice don’t always turn slowly, our beloved court system has developed the summary jury trial also referred to as the “SJT.” An SJT is an alternative dispute resolution technique that has been around for years but is now gaining increasing use around the country and certainly in New York. It is a break from the regular trial system and can afford a litigant several benefits.

The particular technique of which I have had personal involvement has been the “Binding SJT” in which the parties try the case to a binding verdict rather than simply engaging in a non binding mock trial. The binding SJT’s are generally one or two days in length. The parties stipulate as a prerequisite that each litigant will be bound by the jury’s verdict. The right to move to set aside the verdict may be waived or strictly limited to instances where, for example, fraud was used to obtain the verdict, or there is an error of law that occurred during the trial, or a miscalculation of figures occurred.

The first day of the trial is generally used as an evidentiary hearing for purposes of determining which documents and witnesses the jury will learn about and/or hear from during then trial. Related medical treatment records as well as the plaintiff’s and defendant’s expert medical reports are usually stipulated to be admissible. This generally saves money for the both the plaintiffs and defendants. Day two consists of jury selection and the trial. The presentation of evidence and arguments made by the attorneys are governed by strictly enforced time limits to ensure that the entire case is presented and the jury gets the case the same day for deliberation.

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New York City Transit Authority and City of New York Sued by Stranded Passengers

The effects of the blizzard of 2010 are finally ending but not for the New York City Transit Authority (NYCTA) or the City of New York. Hundreds of passengers were stranded for several hours on trains that never should have left the station. THERESA JUVA of amNewYork, who spoke with passengers on a stranded train … Read more New York City Transit Authority and City of New York Sued by Stranded Passengers

Technology: Friend or Foe to New York Personal Injury Attorneys and their Clients?

In September 2010, Nebraska State created an iPhone application that allows realtime searching of its court dockets by date, time, and location. Although it appears the app has its share of kinks to work out, such a tool could be a useful aid to attorneys in all states who need to obtain reliable information when … Read more Technology: Friend or Foe to New York Personal Injury Attorneys and their Clients?