How Do You Choose a Medical Malpractice Lawyer in New York?

How do you decide which attorney is right for you? If you've never hired an attorney before, you won't know until you're in the thick of it. Here's information you need to know to make you a better informed consumer.

Are you more likely right than wrong? Proving a medical malpractice case in New York

When you bring a civil lawsuit in New York, the burden of proof is on us to prove your case at a trial. What exactly is the “burden of proof?” It is that level of proof that is known as the “preponderance of evidence.” Well what exactly does that mean?

Filing Complaints against Hospitals: How to Be an Effective Advocate

Many hospitals consistently provide quality care to their patients, but there are always instances where certain individuals don’t receive the professional attention they deserve. This is to be expected in any business, but in hospitals, the consequences can be more serious and could lead to life-threatening situations. Hospitals also present more difficulty because patients are not always in a sufficiently stable mental or physical state to be their own care quality advocates. The following are steps to be taken by patients or their family members and should serve as a guide to proceeding through the proper channels to achieve fast and effective results.

Diseased Heart Transplant

“New Heart, New Problems” Organ transplants are a medical advancement that has saved countless lives. For people on an organ transplant list, waiting to receive a heart, kidney, lung, etc. can be one of the most anxious periods in one's life. After all, successfully receiving an organ often means life itself. But even after an organ becomes available, there are still risks involved in the procedure, and even after the procedure, in post-op care. Despite these inherent risks, patients almost always opt for the chance at a healthy life rather than the certainty of death.

Residents Performing Unsupervised Operations

What happens when doctors-in-training perform surgery unsupervised? Think it doesn't happen? Think again. As more hospitals cut back on expenses, training and personnel, who do you think suffers the most? The nurses? The technicians? The doctors? Wrong. The patient suffers. Read the article to learn why.

Gerry Oginski wins $1.5 Million Verdict in Podiatry Malpractice Case

On Friday, July 23, 2010, a Westchester County jury in the Supreme Court of the State of New York determined that my client, Annemarie Flannery was entitled to be compensated $1.5 million as compensation for injuries caused by a podiatrist during bunion surgery. Her husband, David Flannery was entitled to be compensated $50,000 for his lost services claim. The case involved a claim of a failure to properly perform foot surgery involving my client's bunion on her right foot. It was our claim that the podiatrist removed too much bone during the procedure, and improperly positioned the first metatarsal. As result, this changed the dynamic forces of her foot and forced her to bear most of her weight underneath the second and third metatarsals in her foot. We also claimed that the patient should have had her second and third metatarsals surgically shortened during her first bunion surgery. This would have prevented the problem from arising.

NY Medical Malpractice lawyer has solution for medical malpractice

Have you ever wondered why there's so much friction between lawyers and doctors? Doctors don't like lawyers, believing that we are evil and only look to sue undeserving doctors. Lawyers believe there are doctors in practice who are truly harming patients. The friction can be palpable. One smart lawyer has the answer that will solve the problem...

Mysterious Pain or Telltale Sign? Should Doctors be Liable for Failing to Diagnose Illnesses?

What is the most important tool in communication? Speaking? Writing? The most important tool in communication is listening. When patients communicate with their doctors, this is what they should be focused on, listening. Doctors are taught in medical school to listen carefully to what complaints the patient has since the patient is in the best position to tell them what’s going on.

Why Getting Sick at St. Vincent's Hospital In New York City May Be Hazardous To Your Wealth

Did you know that getting sick and going to a hospital that has declared bankruptcy may be hazardous to your wealth? It's true. Here's why: In cases where you are injured by a doctor or hospital, your only recourse is to bring a lawsuit to recover compensation for your injuries. When the hospital has declared bankruptcy, it is impossible to bring a lawsuit against the hospital until the bankruptcy proceeding has been completed. Declaring bankruptcy means that the hospital does not have enough money to pay their bills; similar to a personal bankruptcy. Where a hospital is self-insured, which means that they do not buy malpractice insurance from an outside company to pay any judgments or settlements arising out of a lawsuit against them. Instead, they set up a fund (where they are self-funded) and set aside money in the event they have to pay out money for any lawsuits; both accident cases and medical malpractice cases.

MEDICAL MALPRACTICE IN NEW YORK; FACTS AND TRENDS

FACT: Patients sue doctors and hospitals. They’re unhappy with the outcome of a procedure; they’re upset because a doctor misdiagnosed their condition and now they have a permanent injury or disability. That’s a fact. However, the facts and trends show an entirely different story. Fact: Most victims of medical malpractice in NY don’t even know they’ve been a victim of improper medical care because nobody tells them.

HAVE YOU EVER HEARD OF A DOCTOR SAY "I'M NOT GOING TO ORDER A TEST OR PROCEDURE, BECAUSE IT COSTS TOO MUCH?

When two prominent physicians say in an editorial of a medical journal that they edit that robotic surgery, fetal surgery and cord blood collection has no proven benefit because it costs too much for healthcare, I can't help but wonder what agenda they have going on. Read the blog post to learn more about this outrageous editorial.

"Almost" Doesn't Count

I often get calls from potential clients telling me that because of some doctor's wrongdoing they "almost" died. Luckily for them, "almost" doesn't count. Some callers say they almost suffered permanent harm from carelessness of a doctor or nurse. Again, "almost" doesn't count.

Settlement Reached at Same Time as Jury Verdict-Result?

This medical malpractice case, tried in Kings County Supreme Court, also known as Brooklyn, NY had a bizarre twist. The case involved a man who underwent knee surgery and suffered permanent injury. The first trial resulted in a verdict of $1.5 million. After appeal, the case had to be re-tried. During the second trial, as the jury was deliberating, the parties agreed to settle the case for $150,000. The jury, almost simultaneously announced they had reached a verdict.

EMTs Accused of Ignoring Dying Woman Get Suspended, Investigated

Two New York Emergency Medical Technician's employed by the New York Fire Department were suspended yesterday for failing to help a pregnant woman after she had collapsed. Instead, according to reports, they directed people to call 911. How's that for cold comfort?

Both mother and baby died. Results of the autopsy are pending.
Read the article here at Gothamist for a chilling account of indifference by people who are paid to help injured victims.

Do New York Doctors Wake Up and Say "Who Can I Injure Today?"

With all the talk about health reform today, and proposed 'tort reform' by Republicans together with sensationalized lawsuits in the newspaper today, it's no wonder that many people think that they're "Entitled" to money just because they had a bad outcome. Our society is conditioned to think, rightfully so, that if they've been wronged, then they have a right to go to court and obtain compensation from the person or company that caused them harm.

How to Hire a New York Medical Malpractice Lawyer Without Paying a Dime (upfront)

You've suffered injury because of a doctor or hospital's wrongdoing. You need to find an attorney to help you with your legal problems. How much does a good lawyer cost? How much does he want to meet with him? Will he take my case if I don't have money to pay now? Read the article to learn the answers to these questions.

How to Start a Medical Malpractice Lawsuit in New York

Ever wonder how exactly a medical malpractice case gets started in New York? Reading this article will take you through the different steps an attorney needs to evaluate once you walk into their office. Take a look.

How to Ask Your Treating Doctor to Be Your Expert in Your Medical Malpractice Case

Learn why your treating doctor may be your best expert in a medical malpractice case.

WHY DO LAWYERS USE PRESS RELEASES TO MARKET THEMSELVES?

Every day when I go online, I see  press releases that attorneys put online telling the world about what they do for a living. Most of these press releases are typical of the 30 second TV commercial we have grown to hate over the years. Most ads for lawyers and TV commercials lack any real information that help explain why you as a consumer of legal services should choose that particular attorney over any other attorney.

There are certain instances where lawyers have achieved remarkable results, and in those instances, I can clearly understand why an attorney would put out a press release announcing a fantastic result he was able to achieve.

However, I monitor various attorney keywords on a daily basis, and unfortunately most attorneys use press releases simply as another tool to market their bland and ineffective message.

You should also ask "Why is an attorney using a press release to explain that he practices law?"
Many attorneys simply pay a service a monthly fee to create press releases and send them out on a regular basis.

When you see a press release with an attorney's name or law firm, obviously you will Google them to see what else they have online. Take it one step further. Type in the specialty that they practice together with the geographic area where they are located, and see where they come up on the Google search engine ranking area.

Press releases are just another way to shout out to the world "Ooh Ooh pick me, pick me" without giving the viewer any real reason or explanation why you should choose him over any other lawyer.

A Defense Attorney's Agenda

You have brought a lawsuit seeking compensation for the injuries you suffered at the hands of a doctor or hospital. Your goal, is to win your case and to obtain "Justice" for the  injury you suffered. Your attorney is known as a "plaintiff's attorney." His entire goal is to obtain compensation for your injuries. His success is directly linked to yours. Should he win your case or settle your case favorably, he stands to receive a portion of whatever is recovered, after his expenses.

Not many people outside of New York recognize that the lawyer's fee in medical malpractice cases in New York only starts at 30% and decreases by 5% as we go up in the amount we recover for you. To put it simply: 30% is the maximum fee allowed in New York.  As we go up incrementally, the attorney's fee goes down by 5%. This is known as a "sliding scale."

What does this have to do with a defense attorney's agenda? Everything.

A defense attorney's job is to defend the doctor or hospital as best he can. A defense lawyer gets paid by the doctor's insurance company. He gets paid an hourly fee for the work he performs. It is an unspoken fact that defense attorneys prefer to handle a case as long as possible before having to resolve it or go to trial. Why? The longer they handle a particular case, the more they are able to bill for the work they perform. There is no incentive for a defense attorney to resolve a case sooner rather than later.

Having said that, there are some excellent medical malpractice defense lawyers in New York who recognize troublesome cases at the beginning of a lawsuit. Those experienced trial lawyers will sometimes attempt to resolve a case in the early stages to save the insurance company money by having to pay extensive legal fees, a protracted trial and appeal.

Good defense attorneys who recognize they cannot defend a case will recommend to their insurance carrier that they should make an effort to resolve a case sooner rather than later. An early settlement can often save an insurance company a great deal of money by discounting the ultimate amount of compensation a victim receives years before the case goes to trial.

An experienced plaintiff's attorney recognizes the benefits of early settlement because it means that his client will receive a guaranteed amount of money years earlier, without the need to spend many thousands of dollars. Of course, along with that early settlement proposal, both sides recognize that they expect some type of discount for the benefit of settling early.

The defense attorney's only incentive to settle a case early and save the insurance company money is the knowledge that doing so may put him in good standing with the insurance company.  An attorney who saves an insurance company money is likely to benefit from additional cases that the insurance company  sends to them as a "reward" for saving money.

Conclusion:

When you wonder why your case is not settling early, keep in mind a defense attorney's hidden agenda and recognize that you may have to go to trial in order to prove your case. Your attorney should recognize this and be prepared to go the distance in every case.

Frivolous Lawsuits in New York City: Where Are They?

"Hey Sam, did you read about the lawsuit where the neurosurgeon operated on the wrong side of the patient's brain?"
"Yeah. I wonder how a brain surgeon could have made such a simple mistake?"

When was the last time that you actually read about a "FRIVOLOUS" lawsuit in the newspaper or one that was reported on TV? Sure there are some stupid lawsuits that should never have been brought; look at the Judge who sued his dry cleaner for thousands of dollars because the dry cleaner destroyed his pants.

But really. Think about the last time you heard about a frivolous medical malpractice case in New York. I haven't heard of one in a long time, and I've been in this business for over 21 years.

I know that when a doctor is sued for providing negligent care and being careless, 99 times out of a 100 they feel they did nothing wrong. Yet the injured victim has a totally different opinion. When you have two competing opinions, where each side has their own medical experts to support their position, if a jury ultimately sides with the doctor, does that mean that the patient's lawsuit was "Frivolous?"

If the patient wins, does that mean that the doctor should have never defended the lawsuit, since his defense was "Frivolous?"

Personally, I think this is semantics; a play on words. Each side can manipulate their viewpoint to show how the other side's position was "frivolous" at the end of the case. What does that mean for the argument for or against the way medical malpractice lawsuits are handled here in New York and throughout the country?

It means that you need to look at the fundamentals of why we, as citizens of this State and Country, are permitted to bring lawsuits. The reasoning even goes back to Talmudic (ancient biblical) times. If someone causes harm to another, they must pay. It's as simple as that. The payback includes actual costs; the cost to replace a destroyed item as well as the intangible cost- the suffering caused when the incident occurred.

Our common law adapted those basic fundamental rights, and gave citizens the absolute right to seek compensation in a Court of law. That rule of law applies to anyone in any State in the United States. If you are a company and a competitor stole your secrets; you have an absolute right to go to court and try to prove that you were wronged and seek compensation from the wrongdoer.

If you are in a business that makes T-shirts and you hired a vendor to supply you with special t-shirts and the vendor breached his contract and you lost hundreds of thousands of dollars; you have an absolute right to go into court claiming breach of contract and try to prove that you're entitled to be compensated for your business losses.

If those businesses lost their cases, for whatever reason, does that mean that they had "Frivolous" cases? If they won their cases, does that mean the people or companies that they sued had "Frivolous" defenses? You see the semantics and how this word "frivolous" has little meaning depending on who won or who lost?

The next time you read about "Frivolous" lawsuits here in New York or anywhere in our great United States of America ask yourself who is claiming the case was frivolous? The winner or loser? Then you'll have a better understanding of their agenda and why they want people to think cases are frivolous.

Thanks for taking the time to read my blog.

New York Judge Rules Health Insurance Company Has No Right to a Lien

Typically, in a medical malpractice or personal injury case in New York, an injured victim has their medical care and treatment paid by their health insurance company. (This assumes of course that they have health insurance and does not discuss the different issues that arise when Medicare or Medicaid are involved.)

When an injured victim brings a lawsuit against the person or company that caused the injury, the health insurance company that paid for your medical bills usually turns around and asks to be reimbursed for that money. That is known as a "Right of Subrogation." If you were injured and need to see a doctor but don't have money to pay, the doctor, knowing that you'll be bringing a lawsuit for your injuries may agree to treat you and he will have a "lien" against the proceeds of your lawsuit. This means at the end of your case, if you are successful, you are required to repay the doctor for his treatment of you.

So what does this have to do with the case of Thomas v. Waller 113940/07, that was just decided by Justice Alice Schlesinger, a sitting judge in the Supreme Court of the State of New York and reported in the New York Law Journal on Tuesday, October 13, 2009? A lot, and here's why:

When your health insurance company gets wind that you have a lawsuit, they hire a company, in this case The Rawlings Company, to go after you and your lawyer to get reimbursed for the medical bills that they paid on your behalf. In some cases, a company like this one has been permitted to participate in the actual medical malpractice or personal injury lawsuit that you have brought against the wrongdoer. They do this to protect their right to get repaid. But here's the problem for them.

If a case is settled for only pain and suffering, the health insurance company is not entitled to get repaid. If the case is settled and money is set aside for medical expenses, then they can get reimbursed. The reasoning is that you should not be allowed to get double the benefit; once by your health insurance company paying for your medical bills, and second, you getting paid for bills that you didn't actually pay out of your own pocket.

In the Thomas case, there was no claim for medical expenses. Nor did The Rawlings Company, on behalf of Oxford health insurance company ask to insert themselves into the lawsuit. Instead, the case was settled prior to trial, with no money set aside for any medical expenses. Now comes Rawlings who says to the injured victim and his attorney, "Pay us the $28,718.05 that Oxford paid for your medical bills. The injured victim says "No way. You're not entitled to it. You don't have a lien, and you cannot assert a right of subrogation since there's no allocation of money for medical bills."

Justice Schlessinger rebuked the health insurance company for claiming that the injured victim was taking advantage of their health insurance company. In fact, she said that the injured victim had a contractual right to receive medical benefits when needed. The bottom line: Oxford Health Insurance and their agent, The Rawlings Company, were not entitled to recover anything.

THE INSURANCE HOAX: HOW DOCTORS AND PATIENTS PAY FOR THE HUGE EARNINGS OF MEDICAL MALPRACTICE INSURERS

You think "Tort reform" is good for you and the economy? Think again.
You think altering the way injured victims are compensated helps lower health care costs? Think again.
You think that doctors' medical malpractice insurance companies don't make huge profits? Think again.

You've got to read this article from the American Association for Justice which describes in detail how insurance companies earn their money and what they do with it. Learn why crying "wolf" just doesn't cut it anymore. This is a must read.

Click here to read THE INSURANCE HOAX: HOW DOCTORS AND PATIENTS PAY FOR THE HUGE  EARNINGS OF MEDICAL MALPRACTICE INSURERS.

Moving The Malpractice Debate Beyond ‘Caps’

"Insurance expert says patient safety measures could reduce costs

Former University of Connecticut law professor Tom Baker recently moved to the University of Pennsylvania Law School and its prestigious Wharton School of Business to teach insurance.

While in Hartford, he rose to become a national expert on the impact of medical malpractice litigation on physicians’ insurance costs — and on the costs of health care generally. In recent interviews, he has maintained that the U.S. has long experienced an epidemic of medical malpractice, but is not in the grip of an epidemic of malpractice litigation."

Read the full article here.

Don't Believe The Hype: Medical Malpractice Tort Reform is Not What Americans Want

Philadelphia trial lawyer Maxwell Kennerly hits the nail on the head by scouring through the actual survey that was conducted that leads a reader to conclude that 83% of people surveyed want tort reform.

It's important that you read the actual question that people were asked in order to truly understand the fallacy behind the study and the conclusions the writers wants you to reach.

Good job Maxwell.

To read the full article, click here.