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.

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.

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.

$2.9 Million Settlement for Death of 6 Year Old While in MRI

In a horribly tragic case in Westchester, New York, a 6 year old boy was killed while undergoing an MRI in 2001. A technician had been walking by with an oxygen cannister that should never have been in the area because of the powerful magnet being used. The cannister became a missile and struck and killed the little boy.

Excessive Radiation Kills 2 New York Patients

Today, January 24, 2010, the New York Times exposes two severe instances of cancer patients in New York, who died not of their cancer, but of excessive radiation doses to TREAT their cancer. This is a moving video.

NY Medical Malpractice-How To Find an Attorney

It's holiday time. You're sitting around the table listening to family members discuss the tragedy that has befallen on someone close to you. You hear these questions: "How did this happen?" "Why did this happen?" "Why didn't the doctor speak to us after it happened?" "What if..." Read the article to learn more...

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.

"Please Take Over My Medical Malpractice Trial...NOW" pleads woman in middle of a trial

I received a call late tonight from a woman who was in the middle of a medical malpractice trial here in New York. She asked whether I would like to take over her case since she was unhappy with how her attorney was representing her. I told her that it would be impossible since the trial judge would not suspend her trial just to get a new attorney. Nor would the judge give her a 'do-over' because she didn't like the way the testimony was going in to the jury. The middle of a trial is not the time to realize that you don't like your attorney.

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.

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.

Don't Let Them Close the Courthouse Doors!

New York's first Constitution of democratic government was passed by the first New York legislature on October 30, 1683. It gave New York citizens a constitutional right to trial by jury in civil cases.

In 1691, that right was reasserted in the revived Charter of Liberties of 1691.

The right to trial by jury in civil cases has been preserved in all New York State Constitutions - 1777, 1846, 1894, 1938. The 1938 Constitution actually states: "Trial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever." (emphasis added)

This is in addition to the 7th amendment guarantee to the right to a jury trial in the U.S. Bill of Rights.

But now, all that is being thrown out the window in order to save money for insurance companies and people and companies that don't do their job appropriately.

Please continually let your state and national representatives know that this is unacceptable.
DON'T LET BIG GOVERNMENT AND BIG BUSINESS CLOSE THE COURTHOUSE DOORS!

This message was written by James Wilkens
President, New York State Academy of Trial Lawyers

The Truth About Malpractice Lawsuits: Business Week Report

Business Week debunks all the talk about health care reform and tort reform.

"Doctors say the suits send health-care costs soaring, but studies show reforms would have little effect

By Catherine Arnst

September 21, 2009

President Barack Obama tapped into a large vein of public support when he suggested recently that he is open to reforming medical malpractice laws. It's common currency in the U.S. that litigation drives medical inflation by forcing doctors and hospitals to resort to "defensive medicine," overtreating patients to avoid lawsuits.

The evidence suggests a much smaller effect. Study after study shows that costs associated with malpractice lawsuits make up 1% to 2% of the nation's $2.5 trillion annual health-care bill and that tort reform would barely make a dent in the total."

To read the full article, click here.

Health Care Reform: Is Medical Malpractice in New York Next?

I read an article today in Newsday by an ‘activist’ that suggested the reason health care costs are so high are because of medical malpractice lawsuits. I will tell you that such a statement is totally false. Why do I say this?

Because there have been studies that show specifically that the two primary reasons health care and medical malpractice costs are so high are: (1) The insurance companies inability to properly plan for and realize significant profit during a down-turn economy, and (2) Private health insurance companies and their profits.

This activist was so radical in her beliefs that she actually suggested that limiting an injured victims’ rights will reduce the cost of health care. She made no mention of compensating an injured victim by the wrongdoer. I am amazed every time I hear such radical comments and here’s why:

Let’s say you own a Picasso painting that is valued at $10 Million dollars. Let’s say that through some carelessness of a painter doing work in your home that painting is destroyed; he accidentally spilled a bucket of paint all over that nice painting. The value of the painting is $10 million dollars and must be repaid. Luckily for you, you have an insurance policy that insured the painting. Do you think it would be fair if a group of ‘activists’ said, “We don’t care what the value of your valuable paintings were, you should only be able to recover a maximum of $500,000 for your damaged painting.”

Let’s see if that’s fair. Maybe you paid a few million dollars for your precious painting. Let’s say that painting’s value increased over the years and now a buyer wanted to pay you $10 Million dollars for it. Before you had a chance to agree to the transaction, your painting is destroyed and now the maximum you can recover for your damages is $500,000. That doesn’t sound right to me. Does it sound right to you?

These ‘activists’ believe that by limiting the amount of money  a medical malpractice insurance company pays to an injured victim will reduce the amount of money we all pay in health insurance premiums. To be blunt- that’s nonsense.

Insurance companies are in business to generate profit and make money for their shareholders. When CEO’s of health insurance companies are raking in millions of dollars a year in salary while thousands of people are uninsured, there’s a significant disparity that should not be ignored.

The next time you talk to someone with ‘activist’ views, ask them about their Picasso painting and how they would feel if it was destroyed and could only recover a minimal arbitrary amount. I guarantee you that they won’t have the same viewpoint after that.

Botched Gallbladder Surgery

An out-of-work chef was told he needed his gallbladder taken out. It was going to be done laparoscopically. It was "routine." The healing time was minimal and there was no need for an extended hospital stay. The doctors call this procedure a 'laparoscopic cholescystectomy'.

Shortly after the surgery my client started having significant abdominal pain. Calls to the surgeon's office brushed off the his complaints as 'normal post-operative pain'. After two weeks of unremitting belly pain, the patient was told to go to the closest emergency room. An MRI and CT scan revealed the patient needed emergency surgery right away to explore what was going on in his belly.

After surgery at a different hospital, the surgeon told the patient that his common bile duct had been clipped off during the original surgery. As a result, bile continued to back up causing significant pain. During the emergency surgery, the patient required a 12 inch massive abdominal incision so the doctors could explore his entire belly. He also required drains for more than six months sticking out of his abdomen.

The common bile duct should never have been clippped off during the gallbladder removal. The fact that the surgeon failed to recognize it, is a departure from good medical practice. If he had recognized the misplacement during surgery, the clip could have been removed and properly placed.

This surgeon's carelessness resulted in significant pain and the need for emergency surgery for this patient and almost a year of recuperation. 

Pardon me, but I'm Not Walmart

I received a call at 7 AM this morning asking whether I was Walmart. I politely told the caller, after rubbing the sleep out of my eyes that she was calling an attorney's office and not Walmart. When I finally awoke, I questioned why this woman would think that I was Walmart. 

I don't have a big-box store-front office. I don't discount my fees. I don't offer sales on goods and services. I don't advertise on TV, and I don't have thousands of customers pouring in and out of my parking lot on a daily basis.

• As a solo practitioner, I have the benefit of knowing every detail of every case but I handle.
• As a solo practitioner, I don't have to ask three associates what was the last thing that happened on your case, when you call asking for information.
• As a solo practitioner, I have the privilege of meeting you at your very first office visit.
• I have the privilege of being with you when you are questioned at your question and answer session, known as a deposition. I also have the privilege of representing you at trial.

There are many large law firms in New York that are set up differently. The attorney you first meet with may not be the attorney who handles your deposition. The attorney you call to get an update may not be the same lawyer that you met on your first visit. The attorney who handles your deposition may not be the trial attorney who tries your case. There are some law firms that have attorneys dedicated to the pretrial phase of your case, and those lawyers do not try cases. Likewise, those law firms may have teams of dedicated trial lawyers, where all they do is try cases. 

I personally found, in almost 21 years in practice, that clients love continuity.

Clients like to know that if they have a question, they can go directly to their point person at the lawyer's office to ask them a question or address any concerns they have. No one likes to be shuffled around from one person to the next. However, the question I always ask is "Do you want to deal with the senior trial attorney from day one?" or "Do you want to go to a large firm with many attorneys to handle your case where you may not speak to the actual trial lawyer until shortly before trial?" The choice, as always is yours to make. Choose wisely.

Conclusion:

Am I Walmart? Clearly not. Obviously, she got the wrong number.

MEDICAL MALPRACTICE IN NEW YORK: 3 WAYS TO IMPROVE YOUR CHANCES OF BEING INVITED INTO AN ATTORNEY’S OFFICE

1. Be clear and concise when telling your lawyer what your legal problem is. 

There is nothing worse than having a potential client call and literally ramble endlessly without a defined purpose. I understand that when you make that big leap and call an attorney, you want to explain every detail that caused you to call an attorney. 

However, the purpose of talking to you on the phone is only to get a brief summary. I personally use the call as a screening tool to determine if your case is one that I’d be interested in looking into. I also use our call to find out what you think was done wrong that caused you permanent harm.

2. Be able to tell your lawyer what permanent injuries or disability you or your family member suffered as a result of wrongdoing.

Any attorney who handles medical malpractice cases in New York needs to know what injury or permanent disability you suffered. If you have no injury, or your injury is minor then most experienced attorneys in New York (myself included) would not accept such a case.

3. Have specific documents in one central place.

It helps greatly if you can locate and put into a folder documents such as health insurance explanation of benefits; marriage certificate; income tax records (if you are claiming lost earnings or lost future earnings); medicare or medicaid card, health insurance card; any medical records you may have; as well as a list of all doctors you have seen over the last 3 years.

CONCLUSION: 

By having this information when you call an attorney’s office you stand a much better chance of not only impressing the attorney with your knowledge, but being invited to meet with the attorney in person to evaluate your case.

5 THINGS A NY MEDICAL MALPRACTICE ATTORNEY LOOKS FOR WHEN YOU COME INTO THEIR OFFICE

Have you ever wondered how some cases are eagerly accepted by an attorney and others are not? What are the top five things an experienced attorney looks for when deciding whether to take a case?

DOES YOUR STORY SOUND BELIEVABLE?

If your story is not believable, an attorney will likely reject your case without ever doing an investigation. Why not? The moment you walk in the door, an attorney looks at you as if you are walking into court and taking the witness stand. He will look at your story from the viewpoint of a jury sitting and listening to your case to see if they will find it believable and is credible. If your story lacks credibility, no attorney will want to spend thousands and thousands of dollars and hundreds of hours prosecuting your case, knowing at the outset that the chance of you winning your case is minimal.

DOES WHAT YOU SAY MAKE SENSE?

This is commonly referred to as the ‘smell test’. What’s that? If it doesn’t smell right, then a jury will find it hard to believe your story. Again, if the attorney thinks a jury will not accept your story, then he likely will not take your case.

WHAT DO YOU THINK WAS DONE WRONG?

Every attorney who evaluates a medical malpractice case in New York wants to know what you think was done wrong. The injured victim or their family is usually a very good source of information when trying to find out what went wrong.

WHAT HARM DID THE WRONGDOING CAUSE?

The reason we need to know what injuries you suffered is because we are required to link the injuries with the wrongdoing in order to proceed forward with a valid case. This is known legally as ‘causation’. If there is a missing link, then it becomes impossible to prove a valid case. Keep in mind that in any evaluation of a medical malpractice case, the attorney MUST get a medical expert to review your records and confirm each element of your case.

What are those elements? Exactly what I talked about in paragraph 3 and 4. I must prove (1) wrongdoing; (2) that the wrongdoing caused harm; and (3) that the harm is significant and permanent.

DO I GET ALONG WITH YOU?

Believe it or not, your case will take approximately 2-3 years from start to finish. The attorney will need to determine whether you are a good fit and whether you will have a good relationship that you can both live with for the duration.

If you do not get along with each other, it’s probably not a good idea to stay together at the outset. The attorney-client relationship is an important one. If the fit is a good one, great. If it’s not, just as in a marriage, don’t get started.

CONCLUSION:

These five tips will help you understand what an attorney looks for when you walk in the door and they start asking you questions.