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Limiting Recovery of Neurologically Impaired Infants in New York

The proposed $250,000 cap on medical malpratice cases was eliminated before the latest New York budget was adopted. But the neurologically impaired infant fund was not. The new statute, Public Health Law § 2999-5[1], qualifies “birth-related neurological injuries” as “an injury to the brain or spinal cord of a live infant caused by the deprivation … Read more

What Can Match.com do to Prevent Sexual Assaults Between Members?

Dating website Match.com has had its share of controversies circulated since it went live in 1995. To its credit, the United States District Court for the Central District of California dismissed the 2005 class action lawsuit which alleged that Match.com “secretly employs people as ‘date bait’ to send bogus enticing E-mails and to go on … Read more

Former New York Client of Leav & Steinberg does right by his Community in Queens

Too often, lawyers representing clients forget that they should continue to maintain a relationship and contact with their clients long after they have closed the case. At Leav & Steinberg, LLP we always like to hear about client’s progress after their case has resolved. Very often we receive letters from clients who have used the … Read more

GEICO INSURANCE IN NEW YORK DOESNT CARE ABOUT ITS POLICYHOLDERS

Imagine this horrible scenario: You are operating your own car in New York and are hit by a car that runs a red light or disregards a stop sign. You have severe permanent injuries including a fracture to your leg which requires surgical intervention. The car that hits you carries, the New York minimum, $25,000 … Read more

Cuomo’s Proposed Budget Will Punish Injured Children and Their Families

Governor Cuomo has submitted as part of the proposed budget for New York State a cap on compensation for victims of medical malpractice for their pain and suffering of $250,000. This mandatory cap will kick-in only after a doctor or hospital has been found guilty of malpractice that caused an injury to the patient. Therefore, it will punish only those patients who have meritorious cases. Those who are most seriously injured will be forever barred from seeking reasonable compensation from the wrong-doer and their insurance company..

Cuomo also is attempting to force the State Legislature to pass the budget, on an up or down vote, which also includes a fund, paid for by taxpayers but administered by the insurance-industry, that will decide the amount and extent that brain-injured children can receive medical treatment. Essentially he is gutting New York’s civil justice system and forcing brain-injured children and their families to become perpetual litigants against a fund that will control all aspects of their financial lives. This is being done in the name of “budget cutting” and “Medicare reform.” In reality, the cap will have the result of forcing more brain-injured victims of malpractice into the Medicare system. Meanwhile private insurance carriers, who insure hospitals and doctors, will no longer bear any real burden in compensating victims of their clients’ malpractice.

The following is an excerpt that appeared on March 7th, 2011, in CounterPunch and articulates why Cuomo’s cap must not become the law of New York:

“Many in the health care and insurance industry seem to regard the civil justice system as a nuisance that threatens to destroy our economy and way of life. In reality, America’s civil justice system plays an indispensable role. When the rights of injured consumers are vindicated in court, our society benefits in countless ways: compensating victims and their families for shattering losses (with the cost borne by the wrongdoers rather than taxpayers); preventing future injuries by deterring dangerous health care and other practices, spurring safety innovation; and educating the public to risks associated with certain products and services. These legal rights provide society with its moral and ethical fiber by defining appropriate norms of conduct.

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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”.

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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