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.

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.

"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.

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.

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.

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.

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

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. 

How Does a New York Medical Malpractice Lawyer Prove Your Case?

A New York medical malpractice attorney must be able to prove three things: (1) Liability, (2) Causation and (3) Damages OK, but what does that really mean? (1) Liability means that we must be able to prove "with a reasonable degree of medical probability" that the doctor or hospital who treated you "departed from good and accepted medical care." "What does that mean?" It means that we must prove that we are more likely right than wrong that the doctors who cared for you did not treat you properly and in accordance with the standard of care that other physicians with the same specialty would use to treat your problem. In New York, we are required to have a medical expert confirm that the treatment was inappropriate and explain how and why. (2) Causation means that our medical expert must be able to say, again, that what he is saying is more likely right than wrong, and that the medical wrongdoing or carelessness was a cause of your injuries. "In human language please..." Our expert must be able to connect the dots to this puzzle. He must be able to show that the medical wrongdoing was a cause of your injury. If he is unable to show that the wrongdoing caused your injury, you will be unable to prove your case. "What if there are multiple causes of my injury? Does he have to show that the wrongdoing caused all of them in order for me to prove my case?" No. We are not required to show that the doctor's carelessness was THE cause of your injury, only that is was A cause of your injury. The distinction is very important. (3) Damages mean injuries. "Well, why didn't you say that to begin with?" In law, specific words have certain meanings. Our expert must prove not only that there was medical wrongdoing and that the wrongdoing caused injury, but we must also show that your injury is significant and/or permanent. We use your treating doctors to explain to a jury what injuries you suffered. If your treating doctors are unavailable, we use medical experts to describe to the jury the extent of your disability and permanent problems. CONCLUSION: Once we have proven these three requirements, we will be able to have a jury decide whether we have successfully proven our case, and if so, how much money to award to you as appropriate compensation.

How To Find a Medical Malpractice Lawyer in New York

You think you're the victim of wrongdoing by a doctor or hospital.

You don't know any lawyers personally.

You don't have any friends who know a good medical malpractice lawyer.

What can you do to find a good medical malpractice lawyer?

Here are your options:
1. Look in the yellow pages
2. Watch daytime TV and wait for the loudest TV commercial screaming "HAVE YOU BEEN INJURED? IF SO, CALL ME."
3. Remember a catchy phone number from a billboard you pass each day on the way to work
4. Look in the classified ads
5. Go online and do a Google search

Let's examine each to see what information you can learn about whether a particular lawyer is right for you.

1. Yellow pages.

Look carefully at each ad to see if you can distinguish one lawyer from another. I've been in practice over 20 years and can't tell one lawyer from another. Yes, one has a full page ad; one has color; one has the total number of years all the lawyers have been in practice; another says they're open 24/7; another says they offer free parking; another says they handle 10 different types of law.

The problem with the yellow pages is that none of the ads give you any information to explain how these lawyers can help solve your legal problem.

2. TV commercials are usually 30 seconds long. They show pictures of crashed cars; sirens in the background; people in an ambulance. So what? How does that explain how they can help you? How do you know if that lawyer is right for you? I can't distinguish one lawyer from another after watching a 30 second TV commercial. How do you know if they've handled cases just like yours? What type of law firm is it- a large firm, a small firm? Who handles your case on a day-to-day basis?

The problem with TV ads is that they don't explain anything. They just shout at you.

3. Billboards: These are even worse than the yellow pages or TV ads. Why? They give no useful information. "Call Me, at 1-800-I SUE FOR YOU" or some other cheesy catch phrase. How can you tell anything about a law firm from a billboard ad? Who are these people? How many cases do they handle? How many lawyers are in their firm? Who handles my case on a day to day basis? Do they give free information in a book or pamphlet?

The problem with billboards is that unless you pass it each day, you're unlikely to remember the number. Even if you do, ask yourself what information that billboard tells you. If you simply switch someone else's name and phone number, can you tell the difference between the two attorneys? If you can't, how can you tell if that lawyer is right for you?

4. Classifieds: Again, like the billboards, these offer zero information. Who searches in the classifieds? Everyone looking for a bargain, or a used car. What information does the classified ad tell you? Nothing, except that "I'm a lawyer and here's my number."

The problem with classified ads is they don't give an injured victim any useful information that will allow them to make an intelligent decision about who to call, and who to hire as their lawyer.

5. Go online: This is the best way to search for an attorney if you don't know one. Do a google search for a medical malpractice lawyer in your State. Go onto YouTube to search for attorney videos. Look at the lawyer's website. Look critically to see what information they offer. Does the lawyer offer free reports on their website? Do they explain how lawsuits work? Do they have free informational books about medical malpractice? Do they have free video tips that help explain the legal process. Do they have more than 10 FAQ's that every lawyer seems to have? If the lawyer has video on their website, look carefully to see what information the attorney provides. Are they simply telling you how great they are, or are they explaining different types of cases they handle? Does the lawyer help you understand what an experienced lawyer looks for when evaluating a case?

CONCLUSION: Only by looking critically at the information an attorney provides online can you begin to make an intelligent decision about which attorney is right for you.

Emergency Room Doctor explains what she did to treat a shoulder dislocation

Read actual pre-trial testimony given by an emergency room physician about how a young man who came into an emergency room with a complaint of shoulder pain, left the hospital crippled.

Learn how this doctor "reduced" the patient's shoulder dislocation and what happened after that. Miscommunication between attending phsyican, radiologist and resident led to a delay in diagnosis of a significant and permanent nerve injury.

Doctors Gone Wild

Gerry's new book, DOCTORS GONE WILD, is an insider's view of medical malpractice cases here in New York. Reading this book you’ll learn 10 Reasons Why You Shouldn't Sue Your Doctor. You'll learn about a Urology Disaster, a Dental Implant Nightmare, a botched breast reduction surgery. Find out whether a doctor who perforates your colon during colonoscopy is responsible for your injuries. Learn about a failure to diagnose ectopic pregnancy, failure to diagnose lung cancer, emergency room mistakes and much much more. If you live in New York, and want to learn about medical malpractice cases in New York, you can download the book immediately, for FREE! Just click here and enter your information.

You've Got to Read This- Jury Duty Causes Disbarment of Calif. Lawyer

The Recorder

Mike McKee

March 11, 2009

Changing his vote during jury duty so he could get back to his busy law practice has come at a high price for San Francisco solo Francis Fahy and possibly placed him into a category unique unto itself. 

A California State Bar Court review panel on Friday upheld disbarment (.pdf) for the 19-year lawyer after finding he violated his oath as a juror and then compounded the problem by lying to the trial court judge when confronted.

Read the entire article here. 

The Dental Appliance that Sues the Dentist

Have you ever seen a medical appliance that will sue the doctor that puts it on?
Well, here it is...
Take a look at the 'self-litigating' set of braces in this article. Through a goof in the ad, the text would appear as if the patient can automatically bring a lawsuit for putting these on.

I got a good laugh from this typo. 

Failure to Recognize Nerve Injury Results in $1 Million Settlement

The failure to recognize that a nerve was being compressed, despite the patient complaining about symptoms of pain, numbness and tingling were ignored during a busy emergency room shift. The failure to perform surgery in a timely manner resulted in permanent damage to the nerve, the arm and hand. This case was settled during discovery and shortly before it was placed on the trial calendar.

New York Medical Malpractice-Your Doctor Was Sued. Is He Still a Good Doctor?

You just found out that your treating doctor was sued for medical malpractice. You do not know the details, nor do you know what injuries the patient claimed as a result of the alleged malpractice. Does the fact that your doctor was sued mean that he or she is not a good doctor? The short answer is "No," and here's why.

In this great Country we live in, an injured victim has a legal right to seek compensation from those people he believes caused him physical and emotional harm. This is true in New York as well. Our civil justice system is set up so that if you choose to bring a lawsuit against a doctor or hospital, then the "burden" of proving your case is on the person bringing the lawsuit. "That seems fair, right?"

In New York, an injured victim must show to a jury that what he is alleging is more likely right than wrong. In other words, he is not required to prove to a panel of 6 jurors that what he is saying is 100% absolutely true. Instead, he is only required to show that his version of his claim is "more likely true than not true." "But what if a juror just isn't sure about the injured victim's claim? What happens then?"

The answer is that a juror does not have to be absolutely sure. Instead, the juror just needs to determine whether what the plaintiff (the injured person bringing the lawsuit) is saying is more likely true than not true. If it is, then the jury is required to render a decision in favor of the plaintiff. During jury selection, a good trial lawyer may tell prospective jurors that "Dr. Jones is a good doctor and we are not here to dispute that. However, at a particular time, and at a particular place, this doctor was careless and that carelessness caused my client injury. When a doctor was careless, we expect that person to take responsibility for their actions."

To answer the question posed in the title of this article- just because a doctor is sued for malpractice does not mean that he is a bad doctor. This is especially true if the case has not finished and is still in litigation.

Most patients will not know what the facts of the case are. They will not know what the doctor's defenses are. Nor will they likely know the patient's injuries and whether that patient is permanently disabled. For all you know, the case may not have merit. On the other hand, it may.

The bottom line: Don't judge a person by accusations you may have overhead somewhere else. Wait for the outcome. Learn the details. If you are truly concerned, be straightforward with your doctor. Ask him directly. Ask for reassurance. The answer will help you make an informed decision about whether to continue your medical care with this doctor.

NY Medical Malpractice - 2 Reasons Why Victims Won't Recover Any Money

Even though there are still calls for "Tort Reform" the vast majority of malpractice victims in New York fail to recognize that they are a victim of medical neglect.

1. Patients don't know they are victims of medical malpractice.

Studies show that roughly 2.9 to 3.7 percent of admitted hospital patients suffer some sort of preventable injury as a result of improper medical care. Even more management-related injuries occur outside of the hospital. These injuries are a result of a physician's affirmative mistake, or that person's failure to act. Types of mistakes include errors in diagnosis, use of automated materials, and inappropriate delay of treatment.

However, one of the most common errors occurs with administering medication. Up to 98,000 patients are killed each year as a result of preventable medical errors, the eighth leading cause of death in the U.S., yet only 10,000 cases of malpractice are filed each year. In the vast majority of cases, however, the fact that a poor medical outcome was caused by malpractice is hidden from the patient.

2. No autopsy was ever performed.

Remember that we must prove both carelessness on the part of the doctor or hospital and that the carelessness resulted in death or injury. In a medical malpractice case that results in death, it is extremely difficult to prove that the death occurred because of the malpractice without an autopsy. This is because there are so many reasons why a person might have died, but we must prove that at least one of the reasons for the death was the negligence or carelessness of the doctor or hospital.

NY Medical Malpractice -Does Obnoxious Doctor or Small Injury=Compensation For Victim?

1. A physician's poor bedside manner does not constitute negligence.

In the vast majority of cases, even extremely poor bedside manner cannot be considered in determining whether a physician was legally negligent in providing treatment. We have reviewed many cases where arrogant doctors provided care and the patient was injured. It just doesn't matter legally that the doctor was a jerk. We must prove, with expert medical opinion that the treatment departed from good and accepted medical care; that such care was a substantial factor in causing injury and that the injury is significant and permanent. Bedside manners are not, in and of itself, part of the formula that a jury will use to establish responsibility. 

2. The patient suffered no significant damages.

If the victim suffered minor injuries, the legal system is not set up to handle small medical malpractice cases. We decline hundreds of cases a year where it appears that the doctor was careless but the resulting injury was not significant. A pharmacist may incorrectly fill your prescription, and you might get sick for a few days. If you have a good recovery, however, you probably don't have the basis for a case. That's because the costs of pursuing the case will be greater than the expected recovery. Our Court system may not be perfect, but it does act as a filter to keep out all but the most serious cases of medical malpractice.

NY Medical Malpractice -3 Reasons Your Case Will Not Be Accepted

The physician or hospital's mismanagement did not necessarily cause the injury suffered.

When proving that medical malpractice was the reason why the patient suffered an injury, I must show that the treatment rendered or not rendered was a departure from good medical care. That medical neglect had to have been a cause of an injury, and the injury has to be significant and/or permanent. The attorneys for the doctors and hospital have many standard defenses such as: (1) The injury was an unforeseeable consequence of the initial condition/injury, (2) The injury was due to the patient's non-compliance with prior medical advice, (3) The risk of the patient's particular injury was a known, recognized, risk (acceptable to whom?), (4) Some other party was responsible for causing the injury, or (5) The injury was caused by a previous illness or disease.

Medical malpractice claims must show that the doctor's substandard care, more likely than not, was a substantial factor in causing injury.

The injured patient has not retained an experienced attorney.

The world of medical malpractice claims is a world unto its' own. It has its' own special rules and laws. We believe that it is imperative that an experienced medical malpractice attorney or an attorney that is 'teaming up with' an experienced malpractice attorney represent you.

The statute of limitations has expired.

This is the time a person has to start a lawsuit. The time limit is very different for a city, state or municipal hospital than it is for a private hospital or doctor. One reason that you should consult an experienced medical malpractice attorney early is to determine when the statute of limitations expires in your case! DON'T LET YOUR TIME RUN OUT without knowing your legal options!

Neurosurgery Delay Results in Pre-trial Settlement

A woman who had spinal surgery was sent home shortly after undergoing successful spine surgery.

Two days later, she was unable to move her legs and had difficulty urinating. A call to the surgeon's office revealed that the surgeon was unavailable, and he would get back to the family shortly. A repeat phone call to the doctor's office resulted in being told to wait for an available hospital bed, and that they would be called as soon as a bed opened up.

The family decided they could not wait at home as the patient's symptoms were getting progressively worse. The doctor's office had told them to go directly to the admitting office where they would wait until a bed was available. Unfortunately, this patient waited about five hours in the admitting office for a bed. During this time, she was never examined or treated by any physician.

Once the patient was admitted to the hospital, the wrong diagnostic imaging test was performed. The imaging test turned out to be inconclusive, and it wasn't until a full day later that the "gold standard" imaging test was done. This conclusively showed there was a fluid collection in the area of her prior surgery that was compressing her spine.  

The reason she had neurological symptoms was because the buildup of fluid compressed the spine. In spite of these findings, surgery was not performed immediately to remove the fluid and relieve the pressure on the spine. It was not until many hours later when surgery was finally performed and the fluid evacuated.

The patient required hospitalization and then a transfer to a rehabilitation facility. She had difficulty walking and ambulating. After a few weeks in physical rehab, she was finally sent home to recuperate.

Shortly before we were scheduled to begin jury selection on this case, all sides were able to reach a mutually agreeable pre-trial settlement. Because the terms of the settlement require confidentiality, I am unable to disclose the amount of the settlement, the people involved or where within New York this took place. 

Surgical Errors in New York

A surgical error can range from an improper procedure to an unrecognized perforation in an intestine leading to injury and death. How do you know whether a surgical error rises to the level of a departure from good and accepted practice? By having either a treating physician tell you that the treatment was improper, or having a medical expert confirm that there was improper medical care.

In New York, before an attorney is permitted to bring a medical malpractice lawsuit on behalf of an injured victim, he must have the case reviewed by a medical expert who is qualified in that field of medicine. The expert must be able to confirm that there was improper medical care; that the improper treatment caused harm, and that the harm is significant and permanent.

If any one of those elements is missing, then it will be difficult, if not impossible to bring a successful case. If the expert confirms there is a valid case, then your attorney must submit a "Certificate of Merit" which lets the Court know that you have had an expert review and confirm there is a basis for a case.

If you have questions about the care and treatment you received, and believe there was wrongdoing that cause you permanent harm, then call Gerry today to answer your legal questions at 516-487-8207. He welcomes your call. 

Some Mistakes Cannot Be Corrected

Learning that you or someone you love has cancer can be the worst news that you ever receive. Normally, finding out that there was a lab mix-up and that there is no cancer would be tremendous news…unless it comes after receiving surgery for the cancer.