Attorney Blog

Traumatic Brain Injury

lawmed10@yahoo.com (Blog Author)27975 — Wed, 10 Mar 2010 08:00:00 EST

The brain is a complex and vital organ that shapes who we are. It allows us to understand questions and solve intricate problems, it produces our emotions while crafting our personality, and it helps us to live on both a biological and spiritual level. If it should experience damage than the essence of who we are could be lost forever. This is why traumatic brain injuries can cause grave damage to the life of its victim.

According to Center for Disease Control and Prevention, a traumatic brain injury (also known as TBI) is an affliction that 1.4 million Americans sustain each year, 50,000 of which don’t survive. While TBI’s have differing levels of severity (ranging from mild to severe), they are usually acquired from a simple injury to the head and/or neck. Falls are the leading cause accounting for 28% of TBI’s, while motor vehicle accidents account for 20%. However, motor vehicle accidents have a higher frequency when it comes to TBI hospitalizations, which studies have shown effect over 280,000 people each year. The causes of the injury are wide in variety and can occur from open or closed head injuries to deceleration injuries (also known as a diffuse axonal injuries), but its complexities delve much deeper.

A traumatic brain injury can have life-altering effects on a victim’s emotional and physical well-being, but can also do severe damage to the physical nature of the brain. The injury may require years, if not decades, of special care and rehabilitation from care facilities like CareMeridian, Las Vegas Nursing Home. The impairments from a brain injury can affect speech, vision, coordination, the short term and long term memory, and may even result in mood swings and behavioral changes in personality. Considering that every brain injury is different, rehabilitation depends on the individual case and injury; yet, prevention is possible.

For an injury as debilitating as TBI, prevention is essential. Luckily, prevention is not difficult. When driving, the best way to avert a TBI is by wearing a seatbelt and not being under the influence of alcohol. In fact, according to the Brain Injury Association of America more than 50% of people with a brain injury were intoxicated at the time of their injury. It’s also smart to always wear a helmet when riding a bike, thus reducing the risk of a head injury by almost 90%. If the right precautions are taken, the severity of TBI’s can be reduced if not prevented.

There is a lot that is still unknown about the inner workings of the human brain. However, one thing known for certain is the life changing affects that a TBI can have on its victims as a result of irreversible damage to its function.

Man dies after 10 calls to 911

lawmed10@yahoo.com (Blog Author)27495 — Mon, 01 Mar 2010 08:00:00 EST

There are some cases that we read about where you shake your head and wonder "What were they thinking?" You get a gut feeling that something was done wrong; an injustice that should have been addressed.

This is one of those cases.

In today's Newsday, writer Dan Neffin reported that a man having severe abdominal pain called 911 for emergency assistance. The man's girlfriend, Sharon Edge called 911 and was repeatedly told "help is on the way." Help never came. The boyfriend, Curtis Mitchell, died in his home without anyone ever coming to take him to a hospital.

Of course this story would not be complete without explaining that on February 6, 2010, the day he suffered severe pain and needed to go to a hospital, heavy snow was falling which brought Pittsburgh to a standstill. In addition, because of the snowstorm he had no electricity and was waiting for an Ambulance while huddled under a blanket.

Recently in New York we had a case involving a gentleman who passed out in a store and there were two emergency medical service workers at the store who apparently refused to render assistance to him. Their excuse was that they were telephone operators and had not rendered medical assistance in more than 15 years despite the fact that they were wearing their emergency medical services uniforms while on a lunch break.

If this had happened in New York, would there be liability against the city and emergency medical services?

To answer that question you need to look at the relationship between the person calling and the relationship of person giving information. The person calling is requesting an ambulance for an emergency medical condition. The telephone operator who answered the call, according to news reports, promised that help was on the way. The operator then contacted ambulance personnel and there were at least a dozen calls between 911 and paramedics. One could argue that there was an obligation together with reassurances to the victim that help was on the way and that assistance would be there shortly.

Interestingly, Pittsburgh public safety director Michael Huss said that the victim might have survived if he had been carried out to an ambulance.

Anytime you have a failure by a municipal agency to timely act, the question always is whether that delay in getting to the patient would have made a difference. If the answer is yes, then you have a strong argument that they had an obligation to attend to this man, and that their failure to timely get him to a hospital caused and contributed to his untimely death.

Just unbelievable.

I Can't Believe I Slipped On Ice!

lawmed10@yahoo.com (Blog Author)27150 — Tue, 23 Feb 2010 08:00:00 EST

Over the years I have written many articles about slip and falls on snow and ice here in New York. I've had my share of slipping on ice.

Today in New York it's a rainy 35° and the ground is covered in certain parts with melting ice. Parking my car in the back of my office building left me on a large patch of ice. Feeling brave and fearless, I eagerly got out of my car and began the short walk to the front door of my building. My black leather shoes had zero traction despite my heel being made of rubber. Unfortunately, the day that I decided to park on a large patch of ice it figures that I was not wearing my snow boots.

It amazes me the speed at which someone goes from walking vertically to being flat on your back in a horizontal position looking straight up at the sky. I took one step on the uneven ice and in a fraction of a second wound up landing on my left elbow laying flat on the ground.

I know some people may find this amusing knowing that an attorney slipped and fell on ice in the back of his own office building, and that's OK. I also would have found it amusing and ironic except for the exquisite pain that remained in my elbow as I walked up to my office. Luckily for me, the pain dissipated and thankfully did not break anything, at least not that I know of.

This brought me back to thinking what an attorney must be able to prove in a case involving a slip and fall on ice in New York. We must show that the property owner knew or should have known of the dangerous condition. We also have to show that the dangerous condition existed for a sufficient period of time so that the property owner should have fixed it to prevent injury to someone walking on their property.

In this particular case large patches of ice existed in the parking lot for an extended period of time. One could argue that the property owner knew or should have known of this icy condition. This is especially true since this is a heavily used and trafficked area for tenants in the building. A property owner cannot simply ignore or put their head in the sand and pretend the dangerous condition does not exist.

A property owner will typically argue that the changing weather conditions made it impossible for him to know exactly what the conditions were at any given time. This is especially true when temperatures rise above freezing during the day, and then as night approaches, the temperatures drop to below freezing levels and you have refreezing. In my case, I think it would be impossible for the owner to make that argument.

However, here's where many cases run into problems. Not only do we have to show that the property owner was responsible for the accident, but we also have to prove that the injuries you suffered are significant and/or permanent. What does this mean for someone who suffered bruising and the temporary loss of their dignity? It means that most experienced personal injury attorneys will shy away from taking a case unless the injuries are severe and serious.

The moral of the story?
It's time to have a nice chat with the owner of the building about ways to improve the parking lot to prevent people from suffering injury.

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

lawmed10@yahoo.com (Blog Author)27005 — Fri, 19 Feb 2010 08:00:00 EST

DOCTORS WORRIED ABOUT COSTS?

I just read an article by James A. Greenberg, M.D., and Errol R. Norwitz, M.D., PhD, medical editors of "Reviews in Obstetrics & Gynecology." The editorial was titled "Creating the World's Most Expensive Circumcision. The article was sent to me by a friend of mine who is a physician who thought I might enjoy it.

Here's the premise behind the editorial:

Circumcisions in ancient times didn't cost anything. Now, they're expensive. Now, you have anesthetic, antiseptic, nursing care, gloves, sterile equipment and on and on. So far so good. In fact, the editorial even was interesting from a contrasting viewpoint of how they performed circumcisions in ancient times compared to now.

The authors real bias didn't hit me squarely in the head until the last paragraph. They shifted gears and started talking about rising health care in the United States. Here's the statement that really bothered me:

"Robotic surgery, fetal surgery, and umbilical cord blood collections are examples of technological advances that have crept insidiously into clinical practice without proven benefit and with disastrous consequences for healthcare costs. Cooler and more rational heads must prevail both for smaller procedures (eg, newborn circumcision) and larger national initiatives."

Wow! Talk about putting cost before health. These authors believe that fetal surgery has no proven benefit. They state that cord blood collections have no proven benefit. They fail to recognize the tremendous amount of medical literature that supports the use of cord blood to help specific medical diseases. They totally ingore the benefits to the patients and their families who have benefited from these innovative treatments and procedures. That's the point of being part of a technologically advanced society; to better ourselves and our children.

Unfortunately, these physicians and their editorial appear only concerned with cost. What a pity.

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

lawmed10@yahoo.com (Blog Author)26311 — Sun, 07 Feb 2010 08:00:00 EST

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.

The hospital publicly admitted liability and initially offered the family $1 million to settle. The offer was rejected. After 9 years of tortured litigation, motions and appeals, the family finally settled this case for $2.9 million.

New York Attorney John Hochfelder does a great job evaluating and giving a full analysis of this case, together with his reasons for why this death case had such a high value. He commends New York attorney Tom Moore, senior partner at Kramer Diloff Livingston and Moore for having the tenacity to achieve what most other attorneys could not have accomplished. I wholeheartedly agree with John's assessment of Tom Moore and Matt Gaier.

To read the entire blog post, click here.

Testicluar Torsion

lawmed10@yahoo.com (Blog Author)26310 — Sun, 07 Feb 2010 08:00:00 EST

Your child complains of pain in their testicle. There was no trauma or accident. You look and don't find anything wrong. Your child still complains. You give him a warm bath. He still has pain.

Testicular pain can be a warning sign that your child may have a twisted testicle, also known as testicular torsion. Failure to timely diagnose and treat a twisted testicle by a doctor or hospital can result in death of the testicle. How?

When the blood supply to the testicle gets cut off or reduced because it is entangled or twisted, you have a limited window of opportunity in which to have it fixed before the testicle dies. The key warning sign is pain. Don't ignore it. At the hospital, they have doppler color flow tests to evaluate whether there is blood flowing through the spermatic cord and into the testicle.

If you have legal questions, I urge you to pick up the phone and call since I can answer your legal questions at 516-487-8207 or by email at lawmed10@yahoo.com. I welcome your call.

Gerry
The Law Office of Gerald Oginski, LLC
25 Great Neck Rd., Ste. 4
Great Neck, NY 11021
516-487-8207
lawmed10@yahoo.com

New York Personal Injury Law Firm Sanctioned $6,000 For "Spiteful" Lawsuit

lawmed10@yahoo.com (Blog Author)25850 — Thu, 28 Jan 2010 08:00:00 EST

This falls under the "Stupid is as Stupid does" Forrest Gump category.

It was inevitable. A woman hired New York personal injury law firm Morelli Ratner to represent her in a medical malpractice case. Shortly thereafter her case was dismissed and the woman brought a lawsuit for legal malpractice against her lawyers. Morelli Rattner then brought a lawsuit against the woman (their former client) seeking to recover $6,000 in expenses that they had incurred to prosecute her medical malpractice matter.

In a scathing decision by Judge Goodman in New York County Supreme Court, she sanctioned the law firm of Morelli Rattner $6,000 for their ridiculous lawsuit seeking to recover legal expenses against their former client. She called their lawsuit "spiteful" and "wasteful."

Law.com, where this story initially appeared, reported the case name: Kremen v. Benedict P. Morelli & Associates, P.C., 101739/06.

Unbelievable.

Excessive Radiation Kills 2 New York Patients

lawmed10@yahoo.com (Blog Author)25542 — Sun, 24 Jan 2010 08:00:00 EST

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.

In an expose video, the Times explains how excessive radiation doses are never disclosed to the public. The New York State Department of Health has identified over 130 instances of careless administration of radiation, and the two people profiled in this report were the most severe.

It is very troubling that when a patient who has been diagnosed with cancer seeks life-saving radiation treatment to try and cure their underlying disease, that the personnel, the manufacturer of the radiation equipment and the hospitals failed miserably to recognize their mistakes BEFORE causing permanent and irreversible damage.

Everyone needs to watch this video.

"Almost" Doesn't Count

lawmed10@yahoo.com (Blog Author)25511 — Fri, 22 Jan 2010 08:00:00 EST

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.

When I explain to these callers that "almost" doesn't count, they get angry. They can sometimes get defensive. "What do you mean 'almost' doesn't count? Are you telling me that if I had died, I'd have a case?" The answer sometimes is "Yes."

In New York, an attorney must be able to prove that a doctor or hospital was careless. The legal terminology is that the doctor departed from good and accepted medical care.

We must then be able to prove that the doctor's carelessness was "a" cause of your injury. Legally, this is known as 'causation'. I say "a cause" because we are not required to prove that the wrongdoing was the "only cause." This is especially true when there may be multiple explanations for what occurred.

The last point we must be able to prove is that you suffered significant and/or permanent injury as a result of the wrongdoing. A temporary bruise doesn't count. Almost dying doesn't count.

Often I will ask a caller to answer the following important question:
"What do you think was done wrong that caused you permanent harm?"

This question contains each of the three elements needed to establish a valid case in New York. If any part of the answer includes "almost," remember that "almost" doesn't count.

Ambulance Chasers

lawmed10@yahoo.com (Blog Author)24775 — Sun, 10 Jan 2010 08:00:00 EST

The first time I heard the term "ambulance chaser" I must have been in college. I had no idea what it meant. I had no idea it was a derogatory term. In fact, I had no idea what personal injury lawyers did or why someone would call them an ambulance chaser.

That all changed when I went to law school and decided to be a medical malpractice and personal injury trial lawyer. I learned that some people referred to personal injury lawyers as "ambulance chasers" to reflect an attorney's eagerness to get accident cases in order to make money. Many felt that lawyers encouraged the public to actively bring lawsuits just to generate fees for these over-eager and zealous attorneys.

Yet the more I learned about the world of a personal injury and the attorneys who handled significant cases, the more I realized that these were hard-working, ethical people who had a true desire to to help injured victims recover compensation. These were not the 'money-grubbing', no-holds-barred people, described in the press. These lawyers wanted to reform the way businesses made defective products; they saw ways to help the little guy when nobody else would. Would they earn money by helping? Yes. Would they lose money if they lost. Definitely.

Long gone are the days when accident attorneys trolled the emergency rooms for trauma victims, handing out cards. Long gone are the days when lawyers descended on plane crash victims as soon as the news reports went live. Long gone are the days when a lawyer would hang around a funeral home waiting to talk to a widow. This type of conduct is notoriously evident in the Paul Newman movie, "The Verdict," where Paul Newman plays a down-and-out injury attorney trolling for cases wherever he can find them.

There have always been lawyers who skate on the border of what might be considered questionable conduct. However, I am happy to say that the great majority of my colleagues are on the right side of justice and do everything possible to help when tragedy strikes.

Imagine if there were no trial lawyers to speak out for those who could not. There would be no recalls of defective toys; defective cars or defective medications. If there were no trial lawyers, businesses would have free rein to limit wages to workers and fail to pay them compensation if they were injured on the job. If there were no trial lawyers, companies would never change the way they built their products since there would be no incentive for them to change if their product caused someone harm.

If there were no trial lawyers, you would be unable to navigate your way through the legal system when you broke your hip after tripping and falling on a broken sidewalk that had not been fixed for five years. No trial lawyers means you'd have no idea what to do when an oncoming car crossed the double yellow line crashing into you head-on and you're in the hospital for the next seven months recuperating from permanent brain injuries. You'd be at the mercy of the car insurance company and would probably accept whatever they wanted to pay you.

Trial attorneys are advocates for injured victims. It's that simple. If you call that advocate an 'ambulance chaser' or any other derogatory term, that's your choice. However, that advocate would stand up for you if you were injured because of someone else's carelessness. What would you call that lawyer then? "Friend," perhaps?

EMTs Accused of Ignoring Dying Woman Get Suspended, Investigated

lawmed10@yahoo.com (Blog Author)23857 — Wed, 23 Dec 2009 08:00:00 EST

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.

Settlement Reached at Same Time as Jury Verdict-Result?

lawmed10@yahoo.com (Blog Author)23854 — Wed, 23 Dec 2009 08:00:00 EST

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.

The judge refused to allow the parties to put the settlement on the record! The jury decision was announced: $1.4 million for the injured victim. Defendant appeals. Read the article by John Hochfelder to see what happened on appeal.

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

lawmed10@yahoo.com (Blog Author)23782 — Mon, 21 Dec 2009 08:00:00 EST

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.

When it comes to medical malpractice lawsuits in New York, do you really think that your doctor woke up that morning and said to himself (or herself) "Who can I injure today?" Unlikely. Instead, what we experienced lawyers regard as a departure from good medical practice, may, in the mind of a physician be simply a bad judgment for which a patient had a poor outcome.

Remember, not every bad outcome represents malpractice. I often tell potential clients when they call that "Just because you suffered a complication or a bad outcome, does not necessarily mean that you have a valid case. You may, but you need to know how an experienced lawyer evaluates a case like yours."

Many people who call an attorney automatically think that because the doctor had a bad bedside manner, or the patient is now worse off than when they had the treatment, then something must have been done wrong. That type of thinking is often not accurate.

Also, contrary to popular belief, the majority of good medical malpractice lawyers refuse to take most cases because either they lack merit, or the damages (injuries) the patient suffered is not significant. Our role has been described as a gatekeeper, keeping out most cases that do not belong in the legal system.

Do some cases get through that should not? Yes.
Do some over-zealous attorneys take on a case that should not be brought? Yes. But this extremely small percentage is statistically insignificant and the jury system works in those cases by discarding those that lack merit, and rewarding compensation to those that rightfully deserve it.

NY Medical Malpractice-How To Find an Attorney

lawmed10@yahoo.com (Blog Author)23718 — Mon, 21 Dec 2009 08:00:00 EST

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..."
"Nobody is telling us what's happening."
"What's going to happen to him?"
"Who can watch the kids, while the adults go to the hospital and keep a constant vigil?"

Someone pipes up and says "We should speak to a lawyer."
Someone else says "Who? We don't know any lawyers."

Where do you start to look for a lawyer when you have questions?
What questions do you need to ask a lawyer to determine if you might have a valid case?

The answers to these questions can be found; the key is knowing where to look.

A consumer typically would open their yellow pages to look for a plumber; but an attorney? Some would.
Maybe they'd jot down a phone number they saw on daytime TV from a lawyer saying "INJURED? Call me."
Maybe they'd remember a catchy jingle they heard on the radio about some lawyer.

If this is how you want to start your search, ask yourself this important question:
How do those ads help you distiguish one lawyer from another?
How can you tell whether those lawyers are right for you?
The answer is that you can't.

You need to look for an attorney who provides you with free books; free reports; free video tips and explains the legal process. You need this information BEFORE you ever make an appointment and walk into an attorney's office. This way, you'll know what information you need to know before ever speaking to an attorney.

Failure to Diagnose Aneurysm

lawmed10@yahoo.com (Blog Author)22545 — Fri, 27 Nov 2009 08:00:00 EST

What is an aneurysm? It’s a balloon-like bubble that appears on the side of a blood vessel. The wall of the blood vessel becomes weakened. If it gets too weak, the blood vessel will rupture and you can bleed to death rapidly.

There are different types of aneurysms: Abdominal aortic aneurysm; cerebral aneurysm and many others. An aneurysm is often diagnosed by angiogram, where a dye is injected and is visible on x-ray, CAT scan or MRI. Many aneurysms do not require intervention. Only where it may be life-threatening or is already leaking does immediate treatment become necessary.

A leaking abdominal aortic aneurysm is often mistaken for cardiac symptoms. Such a mistake has deadly consequences. Likewise, a blood vessel in the brain that leaks often has devastating results.

The failure to recognize a dissecting or rupturing aneurysm can prove fatal. The key is understanding what the standard of care was at the time. In New York, a physician must confirm that there was a deviation from the standard of care, and that departure from good care caused injury, in order to start a medical malpractice lawsuit here in New York.

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

lawmed10@yahoo.com (Blog Author)21986 — Tue, 17 Nov 2009 08:00:00 EST

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.

I told her there was nothing I could do to help her, and that any questions or concerns she has, should be directed to her current trial attorney. She didn't seem very happy with my response. In addition, I told her that even if she would be able to discharge her lawyer and another one came in to take his place, the first lawyer would have a significant lien against the attorney's fee for all of the work he did up to that point.

That means that the second lawyer would have very little incentive to take on a case with such baggage.

The bottom line?

Get to know your attorney before ever getting to trial.

How to Start a Medical Malpractice Lawsuit in New York

lawmed10@yahoo.com (Blog Author)21758 — Sat, 14 Nov 2009 08:00:00 EST

If you suspect that you have been the victim of wrongdoing by a doctor or hospital here is what you need to know:

The first thing you must determine is whether you were potential case is timely. If your time to bring a lawsuit has expired, there is nothing you will be able to do to obtain compensation through a civil lawsuit in New York.in order to determine whether your potential case is timely, you really need to speak to an experienced medical malpractice attorney to give you specific legal advice about your set of facts. There are different time limits for adults compared to children; private hospitals compared to municipal hospitals; state-owned hospitals compared to private hospitals; among other time traps that you may not be aware of.

Once you have determined that your potential action is timely, here are the three required elements that must be proven in order to start a medical malpractice lawsuit in New York:

1. You must be able to prove that a doctor or hospital departed from the standard of care.
2. You must be able to prove that the wrongdoing was a cause of your injury.
3. You must be able to show that your injuries are significant and/or permanent.

Each of those elements must be confirmed by a physician who has either treated you or reviewed all of your records. If any one of those elements is missing, then there is no way to bring a viable case.

In order to determine whether each of those necessary elements are present in your case, you must do a thorough investigation. This involves obtaining all of your medical records up to the present time. once all of your records are obtained, a qualified medical expert, or multiple experts, must review your records to either confirm or rule-out a basis for your case.

Once you have confirmed that you have a valid case, then it is actually time to start your lawsuit.

You must prepare a document known as a summons together with a complaint. There are specific legal requirements regarding what must be contained within the summons as well as what you must put in your complaint. If you fail to have all the necessary elements listed there, you will have many legal problems later on down the road. That is why it is so crucial for you to seek experienced medical malpractice counsel in New York to help you with your particular case. Once you have prepared the summons and complaint, you must now file it in the county clerk's office and pay the appropriate fees.

To make matters even more complicated, those documents, known as the "summons and complaint" must now be delivered to the people that you are suing in a very particular manner. If you fail to deliver those papers appropriately, you'll never get your lawsuit off the ground.

Can you do all of this on your own? Sure you could. You could also do all the rewiring in your house even though you are not an electrician. At the same time you might want to handle all of your plumbing needs by reading a few "how-to" books. While you are at it, you might want to repair and replace your entire roof, even though you may know nothing about roofing. and when your car breaks down, make sure you do all the repairs yourself because you read a few articles online about how to replace your transmission.

Do I recommend handling in medical malpractice case yourself? The answer is "No." Not only do you need to know the detailed steps of how to evaluate a potential case, but you need to avoid all of the legal minefields that occur with inexperience. You should know that the doctors and hospitals in New York hire the best defense trial lawyers to represent them in these cases. Unless you have over 20 years of legal experience trying medical malpractice cases, I strongly urge you not to handle your own medical malpractice case, and rather hire an experienced attorney to help guide you through the legal traps you are sure to fall into.

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

lawmed10@yahoo.com (Blog Author)21757 — Sat, 14 Nov 2009 08:00:00 EST

Fact: You have been injured as a result of improper medical care. You are now looking for an attorney to help solve your legal problems. How do you hire a medical malpractice lawyer in New York without having to pay a penny (upfront)?

The answer is simpler than you think.

Before I get to the answer, it's important to understand how lawyers were paid 100 years ago. When someone had a legal problem and they went to an attorney, the attorney expected to be paid for the time he spent working on their legal matter. In some consumer-oriented types of law, many consumers did not have money to pay for legal services. In some cases lawyers began to barter with clients; they'd exchange goods and services, in lieu of cash. For complicated cases, unless the attorney was willing to take on the case "Pro Bono," which means free of charge, the client would be unable to hire a lawyer if he did not have sufficient funds to pay.

In the mid-20th century, lawyers realized, especially in accident and medical malpractice matters, that many injured victims simply did not have the finances to hire an experienced trial attorney. In order to get around this problem, lawyers developed a formula that would allow injured victims to hire the best lawyers they could find without having to pay a single dime upfront. What was this plan?

This was the birth of the "contingency fee." This meant that people who could not afford to hire a great trial lawyer could now walk into their office, and if they had a valid case that the attorney was willing to accept, they would not have to pay the attorney a single penny to prosecute their case. The lawyer would pay all of the expenses to prosecute a case involving negligence or medical malpractice. At the end of two or three years, when the case finally concluded, either by settlement or by jury trial, the lawyer would accept a percentage of whatever money he could recover for the injured victim.

This created a "win-win" situation for both the attorney and the injured client. Why?

Simple. The attorney would be the one taking on the biggest risk if he accepted a medical malpractice case on contingency. This meant that he would have to make an educated business decision at the beginning of the case to determine whether it was worth his time and money. If the attorney made a bad investment choice, then the lawyer would be the only one to suffer the repercussions which involved a waste of his time and his own money. If on the other hand, the lawyer was successful in obtaining compensation for his injured client, the client would now receive a substantial portion of the proceeds and the lawyer would be rewarded for his efforts with a percentage of what he was able to recover.

The contingency fee arrangement has remained in place for more than the 21 years I have been in practice here in New York. Many people do not realize that in a medical malpractice case, an attorney's fee is calculated based on a sliding scale. This means that the more money we recover for our client, the less fee we recover. The thinking is that the injured victim should retain more money. This is entirely different than if we represent somebody in a car crash case, where the lawyer's fee is one third (after attorney's expenses).

As an example, if I am able to obtain a $5 million settlement in a medical malpractice case, the total attorney's fee may be around 15%. This is significantly less than in an accident case. Nevertheless, there is still a great incentive for an experienced attorney to take on a significant case. What is the incentive? The incentive is that without an experienced attorney's guidance, the injured victim may be unable to recover any money at all. And without having a contingency fee, where the lawyer's fee is contingent upon success, there is no way that an ordinary person would be able to pay a lawyer an hourly fee for all the work that is necessary to prosecute a medical malpractice case.

The bottom line?

Contingency fees work. They allow people without financial means to hire the best attorney they can find to prosecute their case without ever having to lay out a single penny upfront.

How to Choose a New York Lawyer From the Yellow Pages

lawmed10@yahoo.com (Blog Author)21756 — Sat, 14 Nov 2009 08:00:00 EST

Fact: You've been injured and need to hire a New York attorney to represent you in your accident or medical malpractice case.
Fact: You don't know an attorney, and don't know a family member who knows an attorney.
Fact: You decide to look in the Yellow Pages for an attorney.
Fact: If you live in the New York metropolitan area, your Yellow Pages book is likely to have 30-40 pages worth of lawyer ads. The first 10-15 pages will likely be full-page color ads. After that, you are likely to find full-page ads in yellow or in white. After that, you are likely to see half-page ads or quarter-page ads.
Fact: Many law firms now take out two full-page ads, which are known as "double truck" ads, or even four full-page consecutive ads.

Question: How can you, as a consumer, tell the difference between a law firm that has a half page ad compared to a law firm that has two full-page ads? The answer is: You can't. Why not?

In order to answer that question let me ask you if the following phrases help you decide which lawyer is right for you:

"Injured?"
"Free consultation"
"Hurt in an accident? Get the money you are entitled to."
"We fight for maximum cash awards for the seriously injured"
"Aggressive and skilled trial lawyers"
"No fee unless we recover"
"Experience counts"
"Millions recovered in settlements and verdicts"
"No settlement, no fee"
"Over 20 years experience"
"Tell the insurance companies you mean business"
"Same day appointments"
"Immediate hospital and home visits"
"Convenient locations"

Do these phrases sound familiar? If you have opened your phone book, they should. These types of ads are found in practically every state in the country. Why? Because attorneys like to follow the crowd and think that if all of their competitors are doing the same thing, it must be working.

Getting back to the question I asked above, how do these phrases help you distinguish which lawyer is right for you? The bottom-line answer is: They don't. None of these ads educate you about whether a particular law firm can help solve your legal problem. None of those phrases above help distinguish one law firm from another. Rather, they rely on who can shout out the largest message that will catch your eye as you turn the pages from one law firm to another.

Do you really want to select an attorney the way that you hire a plumber? By picking out the biggest ad there is, thinking that bigger automatically means that the company you are hiring is better than someone who has a smaller ad? There is simply no way for a consumer to tell the difference. I will tell you that I have been in practice for over 21 years representing injured victims in accident and medical malpractice cases here in New York, and I cannot tell the difference between one firm and another from a yellow pages ad. If an experienced lawyer can't distinguish one law firm from another, how then can you expect a consumer to make an intelligent decision about which law firm is right for you?

The problem with Yellow Pages ads is that they do not convey information that you need to know before deciding whether to hire a particular firm. A law firm with a smaller ad may be the right one for you. On the other hand a law firm with a big four-page ad may have the money and resources to properly prosecute your case. Did you know that a full-page ad in the Yellow Pages here in New York costs $25,000-$30,000 for one year? Most people don't know that.

When looking to hire an attorney, you need to ask whether the firm has experience handling cases just like yours; who will be handling your case on a day-to-day basis; what information does the law firm provide before you ever walk into their office; whether they provide free reports, free books or even free video tips.

Only by becoming an educated consumer can you make an informed decision about which law firm is right for you.

How to Choose a New York Lawyer From a TV Commercial

lawmed10@yahoo.com (Blog Author)21755 — Sat, 14 Nov 2009 08:00:00 EST

Fact: You've been involved in an accident and are now sitting at home recuperating. You turn on the TV to watch mind-numbing daytime television (apologies to all those who do this on a regular basis) and notice that there is a lawyer commercial after every single TV break. You finally realize that you need an attorney to help solve your legal problems that were caused by your accident. But each lawyer ad that you see says pretty much the same thing. How do you decide which law firm is right for you just by watching these 30 second lawyer commercials?

The bottom line is that you can't and here's why:

Most lawyer commercials are 30 seconds long. In those 30 seconds, they don't have the ability to explain to you how they can help solve your legal problem. An attorney's goal in creating a 30 second message is basically to catch your attention so that you might pick up the phone and call them immediately after watching the commercial. Practically every personal-injury commercial gives you the same information. Ask yourself whether these overly-used common phrases help you distinguish one lawyer from another when watching these television commercials:

'Injured?'
'Been in an accident?'
'We can help'
"Over 60 years combined experience'
'You may be entitled to a cash award'
'We fight for you'
'The insurance companies are afraid of us'
'We know the judges'
'Call me now'

If you watch any daytime TV, these phrases should be so ingrained in your head that they are all mind-numbingly useless. None of this information helps distinguish one lawyer from another. If every lawyer is shouting out the same message, how do you, as a consumer, use that information to make an educated decision about which lawyer is really the right one for you?

Unfortunately, in those 30 seconds lawyers do not have the ability to explain to you how they can help solve your legal problem. Those truncated commercials don't give you free reports that explain what they can do for you and what they have done in the past. Those commercials do nothing more than shout at you and tell you to call them. Importantly, they never explain why you should pick up the phone to call them.

The next time you see a lawyer commercial, and ask yourself why you should call that attorney. Does that lawyer answer the question of why they are the right lawyer for you? 99.9% of the commercials don't answer that key question. They may be the right lawyer for you. Then again, they might not.

Your goal as an injured victim searching for an attorney is to become as educated as possible to determine which lawyer is the right one for you. Only by becoming educated will you be able to make proper decisions about which lawyer to hire. I will tell you that I have been a practicing lawyer for over 21 years handling accidents and medical malpractice cases here in the state of New York. I study lawyer commercials and lawyer advertisements, and I find it difficult, if not impossible, to answer the question of why one particular law firm should be called simply based upon their 30 second television commercial. If you can find a compelling reason to call one law firm over another based solely on their television commercial, then I congratulate you.

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

lawmed10@yahoo.com (Blog Author)21754 — Sat, 14 Nov 2009 08:00:00 EST

In every medical malpractice case here in New York, we are required to prove your case using a medical expert. The expert must have confirmed that there is wrongdoing; that the wrongdoing caused injury; and that your injury is significant and permanent.

Many times, you, as the injured victim, may be unaware that there has been any wrongdoing. The first inkling of a problem is where one physician criticizes the treatment you had by another doctor.

Let's say you experienced a bad outcome with Doctor #1 and now continue your treatment with Doctor #2. This doctor will have much more information than a doctor who merely reviews your medical records as an expert. It is always preferable to have a treating physician come into court and testify not only about his review of your medical records, but also about his physical examination of you; his findings; and his treatment plan.

I often have clients ask me "How do I ask my treating doctor if they will come into court and be an expert in my medical malpractice lawsuit?" Here's my response:

I always recommend that you be up front and honest with your treating doctor. Let him know that you have significant concerns about the treatment you received in the past. You might suggest letting your current doctor know that in order to prove a valid claim against the original doctor who caused you harm, it is necessary for you to bring in a medical expert who can talk about what the standard of care is in your community. I always advocate that doctors should stand up and be able to say, without fear of retribution, whether a colleague treated a patient appropriately and in accordance with good and accepted medical practice.

In many medical specialties, there is great reluctance for physicians to stand up and speak out against their colleagues, regardless of what town, county or state they practice in. In those cases where the patient's own treating doctor refuses to cooperate and come in as a medical expert, we have no choice but to go to our own stable of medical experts to review the records and comment upon them.

Years ago, I had two different malpractice cases which were coming up for trial. I specifically tried to contact expert witness doctors who were known for frequently testifying for doctors and hospitals. I wanted them to review a case on behalf of an injured victim. To my surprise, neither one of these physicians would agree to review the records on behalf of my clients. The purpose of bringing in an expert medical witness is to explain to the jury what the records mean and have an experienced physician interpret those medical records.

If an expert witness has testified for both sides, is much harder to show that this expert witness is entirely biased. It is much easier to show a consistent bias if the expert doctor testifies only for doctors and hospitals.

The bottom line? Tell your treating doctor that without having his knowledge and expertise to help prove your case, you will need to hire someone who has not had the benefit of his expertise and his examination and treatment of you.

WHY DO LAWYERS USE PRESS RELEASES TO MARKET THEMSELVES?

lawmed10@yahoo.com (Blog Author)21590 — Wed, 11 Nov 2009 08:00:00 EST

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

lawmed10@yahoo.com (Blog Author)21475 — Mon, 09 Nov 2009 08:00:00 EST

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?

lawmed10@yahoo.com (Blog Author)20451 — Fri, 23 Oct 2009 08:00:00 EST

"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

lawmed10@yahoo.com (Blog Author)20024 — Wed, 14 Oct 2009 08:00:00 EST

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

lawmed10@yahoo.com (Blog Author)19703 — Thu, 08 Oct 2009 08:00:00 EST

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.

Apartment Building Fire Results In Significant Property Damage-Tenant Settles for $150,000

lawmed10@yahoo.com (Blog Author)19461 — Sat, 03 Oct 2009 08:00:00 EST

My clients owned a condominium in Queens. Their condo was in a large development which was undergoing repairs to the roof. The roofers were using hot tar to put down the new commercial-grade roof. Because of high winds, the tar overflowed causing a massive fire. My clients' condo suffered extensive water damage, and during the course of repair it was learned that their apartment, along with everybody else on the floor had its best those articles throughout the apartment. This required asbestos abatement, and force them to discard all of their remaining possessions that survived the massive water damage from the original fire.

The management company and the condo association refused to compensate my clients for the damage to their condo. They were willing to make only minor and modest repairs to get their unit functioning again. They would not consider replacing any of the items or contents in their unit. that prompted them to seek my legal services.

Approximately 9 different people and companies filed lawsuits against the management company, the condo association and the roofers who caused the fire. These lawsuits were brought in different counties here in the state of New York. Because all of these cases arose out of the same incident, all nine cases were consolidated into one case that was being handled by one judge in Queens County.

After 4 1/2 years of litigating this case I'm pleased to say that we were able to successfully resolve this case to my client's satisfaction for the sum of $150,000.

Woman Hit By Mack Truck Wins $350,000

lawmed10@yahoo.com (Blog Author)19460 — Sat, 03 Oct 2009 08:00:00 EST

At 6:30 in the morning a young woman was crossing 23rd Street in Manhattan at the intersection of First Avenue. Despite her crossing with the walk signal, and walking in the crosswalk, a Mack truck carrying demolition debris was making a left turn at the same time. Despite three separate signs that direct drivers to yield to pedestrians, the truck continued to make its left-hand turn knocking down this young woman causing her to hit her head and suffer severe fractures of her wrist.

Police arrived at the scene along with an ambulance, and she was taken to Bellevue Hospital trauma center in New York City for evaluation. In the emergency room she had all of her clothes cut off, she had x-rays, CT scans and a thorough physical exam which revealed the following:

She suffered a bleed in her head, lacerations to her forehead and the back of her head, a contusion, a concussion, loss of consciousness, and a fracture of her wrist in multiple places. She received stitches to the lacerations on her head, and was given a cast to mobilize her wrist and told to follow up with an orthopedic surgeon for further treatment.

A few days later she consulted with an orthopedic surgeon who advised her that she needed to have surgery, known as open reduction with internal fixation and external fixation. What this means is that in order to stabilize the broken bones, she would need to have surgery to put the bones back into place and hold them together with hardware that would be attached to her bones. That is known as internal fixation. In addition, she would also require a device to hold the bones in the place from the outside of her arm, known as an external fixator.

After many weeks of being in a cast with metallic titanium rods sticking out of her arm, the external hardware was removed along with the cast. She remained out of work for a number of weeks, and with physical therapy was able to get most of her motion back.

Despite the fact the trucking company had no defense, they refused to try and settle this case until the day before jury selection.

I'm pleased to say that my client was satisfied the settlement offer of $350,000 which will compensate her for the injury she suffered through no fault of her own.

Moving The Malpractice Debate Beyond 'Caps'

lawmed10@yahoo.com (Blog Author)19025 — Sun, 27 Sep 2009 08:00:00 EST

"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

lawmed10@yahoo.com (Blog Author)18719 — Mon, 21 Sep 2009 08:00:00 EST

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.

Lawsuit Lottery Jackpot! -Part 1

lawmed10@yahoo.com (Blog Author)18632 — Sat, 19 Sep 2009 08:00:00 EST

“Step right up. Just sign your name we’ll enter you into the lawsuit lottery jackpot. Injured in a car accident? Step right up. Injured during surgery? Step right up? Killed by a stray bullet? Step right in. Did you fall and break your leg? No problem, just step right in to our lawsuit lottery jackpot where you’ll have a chance to win millions and live on easy street for the rest of your life. That’s right folks. You too can be a winner in the lawsuit lottery jackpot.” (Carnival music is playing in the background).

“What do I have to do to enter?” asked a curious onlooker.

“Simple,” said the man in front of the tent. “First you have to stand in the street and get hit by that Mack truck over there. Then, you have to make sure the tires run over your legs. Oh yes, make sure the truck is loaded with equipment so the total weight of the truck is about 40,000 pounds. Then, when the truck has finished running over you, make sure you’re still conscious so you feel the excruciating pain of having your legs crushed to a pulp. Then, when you’re bleeding to death, make sure you go into cardiac arrest and are revived by the paramedics.”

“I forgot to tell you...when you get to the hospital, make sure that the trauma surgeons amputate your legs from below your waist because there is no usable skin, bones, veins or arteries to use to reconstruct your legs.

Remember, they were in a pulp, and are now useless to you.”

The onlooker stood there gawking with his mouth wide open but no sound coming out.

“But wait!” said the man, continuing his talk.

CONTINUED IN PART 2...

CNN Reports Today: White House offers medical malpractice initiative

lawmed10@yahoo.com (Blog Author)18544 — Fri, 18 Sep 2009 08:00:00 EST

"WASHINGTON (CNN) -- The Obama administration announced a $25 million medical malpractice initiative Thursday as part of its plan to rein in skyrocketing health care costs.

HHS Secretary Kathleen Sebelius says 1 percent of health care costs are attributable to malpractive premiums.

The program, administered by the Department of Health and Human Services, will fund grants of up to $3 million awarded on a competitive basis to states and health care systems for implementing and evaluating "patient safety and medical liability demonstrations," according to a release from the White House.

A review of current malpractice reform initiatives will be completed by December, the White House said, and used to evaluate future grant applications."

Oh, I get it, let's spend $25 million to save on health care. How about if they gave that $25 million to uninsured people to actually pay for the medical care they need? Don't you think that would have been smarter?

The Truth About Malpractice Lawsuits: Business Week Report

lawmed10@yahoo.com (Blog Author)18471 — Wed, 16 Sep 2009 08:00:00 EST

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.

Don't Let Them Close the Courthouse Doors!

lawmed10@yahoo.com (Blog Author)18408 — Wed, 16 Sep 2009 08:00:00 EST

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?

lawmed10@yahoo.com (Blog Author)18366 — Tue, 15 Sep 2009 08:00:00 EST

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.

Developmental Delays-Why Is Your Child Developmentally Delayed?

lawmed10@yahoo.com (Blog Author)17862 — Wed, 02 Sep 2009 08:00:00 EST

You will likely learn about a developmental delay from your child's pediatrician. As your child grows they are expected to meet certain milestones; when a baby turns over, when a baby turns over, when they start to crawl, start to talk, start to walk, etc.

When your child is delayed in meeting their developmental milestones you start to question the pediatrician about why there's a delay. Often, your pediatrician will not be eager to point a finger at your obstetrician or any other doctor. So, how then do you get an honest answer about why your child is delayed?

You need to have your medical records evaluated by experts in the field of obstetrics, neonatology and pediatric neurology. Only then can we determine what the likely cause of your child's problems are from.

Keep in mind that there may be many different explanations for your child's delays:
It could be genetic, or hereditary.

It could be from a lack of oxygen during the course of your labor and delivery.

It could be from distress during labor that went unrecognized causing diminished blood flow and oxygen to the baby.

Regardless of the cause, it needs to be investigated to rule in, or rule out the possible causes. How do you do that? Simple.

You ned to contact an experienced attorney who handles medical malpractice cases on a daily basis. Only then can you answer the question, "Why is my child developmentally delayed?"

If you have legal questions about developmental delays in children I encourage you to pick up the phone and call me. I can answer your questions at 516-487-8207 or by email at lawmed10@yahoo.com.

Botched Gallbladder Surgery

lawmed10@yahoo.com (Blog Author)17660 — Sun, 30 Aug 2009 08:00:00 EST

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

lawmed10@yahoo.com (Blog Author)17076 — Tue, 18 Aug 2009 08:00:00 EST

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

lawmed10@yahoo.com (Blog Author)16950 — Sat, 15 Aug 2009 08:00:00 EST

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

lawmed10@yahoo.com (Blog Author)16921 — Fri, 14 Aug 2009 08:00:00 EST

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.

Driver in Wrong-Way Crash on Taconic highway That Killed 8 Was Drunk

lawmed10@yahoo.com (Blog Author)16390 — Tue, 04 Aug 2009 08:00:00 EST

The New York Times reported today that the horrific crash involving a woman who drove the wrong way on the Taconic highway in Westchester, New York, kill herself, her two year old daughter and three nieces, together with three men who were driving the correct way, was caused because this woman was drunk at the time of the accident.

Reading this article, you can't help but wonder how someone could do this to her kids, her brother's kids and to unsuspecting drivers going about their business. It's just shocking and absolutely stunning. The autopsy reported a blood alcohol level of 0.19 and that it was fresh, with some alcohol still remaining in her stomach.

Investigators couldn't figure out what would have caused this woman to cause such a tragedy. Now, we know that it was her own decision to drink and drive causing the needless deaths of seven people and herself.

Negligence is carelessness. The facts, as reported in Newsday and the New York Times would clearly suggest that these deaths were caused by this woman's carelessness. What a tragedy. My heart goes out to their families.

Read the full article here.

Looking for an attorney? 5 tips to help you decide which attorney is right for you.

lawmed10@yahoo.com (Blog Author)16265 — Mon, 03 Aug 2009 08:00:00 EST

When looking for an attorney online it is often difficult to determine which lawyer is right for you. Before making any decision, look critically at the information the lawyer is providing to you, either in an advertisement, an article or even a video. If the lawyer simply provides a brief message that says nothing more than "Call me because I'm here," ask yourself "Why?"

Selecting the right attorney to help solve your legal problem is an important decision. Read the article to learn the difference between pay per click ads and organic search results. Find out what experience this particular attorney has and how it can help you in your quest for justice. At the end of the article, read the conclusion for a neat little trick that will tell you a lot about any attorney that you call.

To read the full article, click here.

Cover-up at New York's municipal hospitals-NY Daily News Exposes Hospital Errors and Fraud

lawmed10@yahoo.com (Blog Author)15878 — Mon, 27 Jul 2009 08:00:00 EST

New York Daily News blows the lid on cover-ups at New York City municipal hospitals including Bellevue hospital, Coney Island hospital, Elmhurst hospital, Harlem hospital, Jacobi hospital, Kings County hospital, Lincoln hospital, Metropolitan hospital, North Central Bronx hospital, Queens General hospital and Woodhull hospital.

"City-run hospitals faked records and covered up dozens of botched operations, deadly accidents, malpractice and other medical screwups, a Daily News investigation has found.

The coverups hid a trail of human suffering among patients who were maimed and relatives who were never told the truth about how their loved ones died or were injured unnecessarily."

Read the full article here.

How Much Does It Cost To Hire a NY Medical Malpractice or Accident Attorney?

lawmed10@yahoo.com (Blog Author)15853 — Sun, 26 Jul 2009 08:00:00 EST

All attorneys who handle cases involving accident or medical malpractice in New York handle them on "Contingency." What does this mean?

It means that the lawyer receives a fee only if he is successful in getting you compensation for your injuries. His fee is 'contingent' upon you getting money. If the lawyer is unsuccessful and you receive nothing, the lawyer also receives no fee.

FOR AN ACCIDENT CASE IN NEW YORK:

The attorney's fee is 1/3 of the amount you recover, after the attorney's expenses have been paid back to his law firm. What this means is that the lawyer pays all litigation expenses and really provides you with an interest-free loan during the time your case is in litigation. At the end of the case, if you are successful, the lawyer's gets repaid for his expenses.

FOR A MEDICAL MALPRACTICE CASE IN NEW YORK:

The attorney's fee is LESS THAN an accident case. This has been true since 1985. The fee is based on a sliding scale, which means that the more you recover, the more you get to keep.

$1-$250,000, the attorney's fee is only 30%.
$250,001-$500,000, the attorney's fee is only 25% for that segment.
As the amount increases, the attorney's fee decreases, until you reach $1.25 million. Anything above $1.25 million, the attorney's fee is only 10% for that segment.

Remember, at the end of the case, if you are successful, the lawyer's gets repaid for his expenses. From the remaining amount, his fee is calculated, and then you receive the remaining amount.

CONCLUSION:
The purpose of having a contingency fee is so that people who could not afford an attorney's hourly rate would be able to hire an experienced lawyer without having to worry whether they could pay.

You win your case; the attorney gets paid. You lose your case; your lawyer gets nothing. That's a significant incentive for your lawyer to work hard to get you the most compensation you are legally entitled to.

DREAMS-An Inspiration

lawmed10@yahoo.com (Blog Author)15671 — Wed, 22 Jul 2009 08:00:00 EST

Your dreams are gifts that set you in motion.

On the tides of time where life is an ocean.

Your sails are filled with the winds of desire, to surge through the wake of muck and mire.

And when you awaken with your goal at hand, you see your true destination was the voyage, not the land!

(Comment: I read this many years ago, and found it to be very inspiring. I would love to credit the author, but do not know who it is.)

Beware of the "Medical Expert" consultant

lawmed10@yahoo.com (Blog Author)14959 — Tue, 07 Jul 2009 08:00:00 EST

I was contacted today by a physician who claimed to do expert witness work for injured victims. He wanted some business. I asked him what his medical speciality was. Instead of a direct answer, he said he'd done consulting for attorneys before, and that if I want, I should go to his website to see what he has done.

I said "No. Tell me what your medical specialty is."
His reply- "Research."
"Are you board certified in any field of medicine?"
"No, but I help attorneys understand their case, and I don't have to be board certified to testify."
I asked, "How can you testify as a credible expert witness if you're not board certified?"
His response: "I do this all the time. I don't really testify. I help explain the case to you so you become more familiar with the medicine."
"What types of cases do you review?" I asked incredulously. "Surgery, pulmonary, cardiac, cancer..." was his reply.

I was amazed.

I then asked why I should hire him, and then have to hire a second expert to testify at trial? I only heard silence on the phone.
I asked again.
"Why should I hire two medical experts; one who reviews the case, and another who testifies?"
His reply was "Because I'm a better teacher."

"But wait," I said. "You still haven't answered my question."
"If I hire a medical expert to spend 5 hours to review medical records, and that expert feels the case has merit, I don't want to hire another expert two years later to review the case starting fresh, and close in time to the trial. That's double the work, and double the money. What do you have to say about that?"

He had no answer.
"But I'm a better teacher," he repeated.
"So are many of the experts I hire. They're clinical doctors with academic credentials who are board certified," I said.
I was getting frustrated talking with this guy.
"What good does it do for my client if you're a good teacher, but you can't come into court to teach a jury that our position is more likely right than wrong?"
His final answer was "I've been doing this for a long time, and you really should see my website."
My final reply was "Have a nice day."

The moral of the story: Don't let your medical malpractice attorney hire a "medical consultant" who does not testify, just to confirm you have a case, and then have to hire a new medical expert during your case. Make sure you hire a board certified expert in the specialty you need to review and to testify."

Great Neck Firefighter Saves Cardiac Arrest Victim in Fort Myers, Florida

lawmed10@yahoo.com (Blog Author)14871 — Mon, 06 Jul 2009 08:00:00 EST

July 4, 2009

At 7 PM on July 4, in Fort Myers airport, Florida my family and I were walking toward the boarding gate of our JetBlue flight 138 heading back home to New York. As we approached the boarding gate, we saw a gate attendant kneeling on the floor next to an elderly man who was clearly unresponsive. The gate attendant had his finger on the man’s carotid artery, checking for a pulse. My son immediately dropped his laptop ran over to the man on the floor, announced that he was a first responder and a firefighter and also checked for a pulse. Having found no pulse and that he was not breathing, my son directed that they immediately begin CPR and advised the gate attendant to begin chest compressions.

A few moments later, a Port Authority policeman arrived and my son requested a mask to ventilate his lungs.

Together, the gate attendant and my son worked as a team to perform CPR on this cardiac arrest victim. If you’ve ever performed CPR it is physically taxing. Your adrenaline is pumping and you’re focused on reviving the patient.

Chest compressions and ventilation continued for minutes until the pilot of our plane and another Port Authority police officer arrived with an automatic external defibrillator. Two large electrodes strips were placed on this man’s body and the defibrilator was activated.

If you’ve never seen an automatic defibrillator in action, it’s fascinating to watch and to hear. It announces that it is evaluating the patient’s heart rate and once it has finished assessing heart rate, it immediately recommends action and whether or not to shock the patient in an attempt to restore the normal heart rhythm.

After the first assessment was made by the automatic defibrilator, it recommended that the patient be shocked immediately. Once you press the button to administer the shock, the automatic defibrilator advises that everyone should stand back away from the patient. If you’ve ever seen someone shocked using defibrillator paddles on TV, it is the same as watching it in real life. A tremendous jolt of electricity is sent throughout the patient’s body to try and restore the heart rhythm or to get the heart rhythm reverted back to normal.

In this case, after the shock had been administered, my son and the gate attendant continued CPR until the automatic defibrilator advised to momentarily stop so it could check for a heart rate. At this point, there was still no heart rate or respirations. The defibrillator again recommended shocking the patient, and after the patient was shocked for the second time, the patient regained a pulse and respirations. My son together with an EMS attendant and the gate attendant turned the patient onto his side in order to prevent him from inhaling any fluids into his lungs (known as aspiration), now that he was breathing again.

By this time, two other emergency medical crews arrived and took over where my son had left off.

My son is 17 years old and is a volunteer firefighter with the Vigilant Fire Department here in Great Neck. Watching my son take control of this medical emergency and selflessly run to help this man in distress gave me the greatest feeling I could ever have as a parent. All of his training with the fire department effortlessly kicked into gear and I’m proud to say that my son helped save a life on July 4, 2009, Independence Day.

On the plane ride home to New York, my son told me this was his 15th time performing CPR. Looking at him, I could see the sparkle in his eye knowing that he did something good for someone else. Even though we were unaware of this man’s fate, I couldn’t help but think what a great person my son turned out to be.

Jurors in NY Should Be Allowed to Twitter

lawmed10@yahoo.com (Blog Author)13644 — Sat, 13 Jun 2009 08:00:00 EST

Find out why Gerry Oginski, an experienced New York medical malpractice and personal injury trial attorney believes that jurors in NY should be allowed to twitter during a trial. Currently, jurors are not allowed to talk to each other about the case until after they have received legal instructions from the judge.

Likewise, attorneys and the litigants are also prohibited from talking to the jurors. Twitter allows us to see what a juror is thinking about the testimony. Watch the video to learn more.

For answers to your legal questions, call Gerry personally at 516-487-8207 or by email at lawmed10@yahoo.com. He welcomes your call.

New York Medical Malpractice Insurer Has One Foot in Bankruptcy The Other on a Banana Peel

lawmed10@yahoo.com (Blog Author)13503 — Wed, 10 Jun 2009 08:00:00 EST

This comment is brought to you straight from White Coat's Callroom, a blog from Inside the Emergency Department.

"Physician’s Reciprocal Insurers, a med mal carrier that insures 25% of New York’s physicians has one foot in bankruptcy court and the other foot on a banana peel. State mandated insurance premium rate freezes appear to be partly to blame. How could this happen if insurers are raking in the money and are really responsible for the medical malpractice crisis."

He raises an excellent question. Why aren't more physicians asking the same question?

New York Injury Times- May 09' Newsletter #2 Now Available

lawmed10@yahoo.com (Blog Author)12438 — Sun, 24 May 2009 08:00:00 EST

Learn about the 5 key questions I need to know in a failure to diagnose cancer case. Read a list of defense attorneys whom I consider to be worthy adversaries in the State of New York. Learn 6 common definitions of legal terms that you may not know.

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

lawmed10@yahoo.com (Blog Author)11920 — Wed, 13 May 2009 08:00:00 EST

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

lawmed10@yahoo.com (Blog Author)11877 — Tue, 12 May 2009 08:00:00 EST

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

lawmed10@yahoo.com (Blog Author)11763 — Fri, 08 May 2009 08:00:00 EST

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.

Enclosed Is Your Check For $1 Million Dollars

lawmed10@yahoo.com (Blog Author)11754 — Fri, 08 May 2009 08:00:00 EST

Here's a letter I received:

"Dear Mr. Oginski,

Enclosed is your check for $1,000,000. This represents the full and final settlement of this action."

Looking at this remarkable check, I couldn't help but think how useful this will be for my client who suffered permanent and irreversible injury due to medical wrongdoing. So often we read about injured victims who abuse the legal process for their own financial gain, as well as lawyers looking to make a quick buck at the expense of their clients. However, little is written about the seriously injured victim who goes quietly into the night after settling their case with a "no publicity" clause.

In New York, many insurance companies demand that the attorney and injured victim agree not to publicize the terms of the settlement. The injured victim is often left without much choice should they wish to settle their case for the number being offered by the insurance company. Obviously, if the settlement offer is unacceptable and the case goes to a verdict, the winner is free to publicize that verdict in any way they choose.

There are some people who think that a $1 million settlement is a windfall. There are others who look at it as a winning lottery ticket. Yet there are similarly injured victims who look at it as insufficient compensation for the horrible and irreversible injuries this person suffered through no fault of their own.

So, when I saw the check addressed to my client and my law firm telling me "Here's your $1 million dollar settlement, I couldn't help but think about the injuries, the suffering, and the turmoil my client endured to justify obtaining a $1 million settlement on his case.

New York Injury Times- May 09' Newsletter Just Released

lawmed10@yahoo.com (Blog Author)11415 — Wed, 29 Apr 2009 08:00:00 EST

In this 12 page newsletter you'll learn about Gerry's new book, "Doctors Gone Wild." Learn how medicare and medicaid can ruin your accident lawsuit. Find out how Twitter and Facebook led to mistrials in recent lawsuits. Read about a juror in New York who was Twittering during the jury selection process. Learn why a permanent nerve injury resulted in a $1 Million Dollar settlement. Test your knowledge of medical malpractice and negligence cases in NY; Try our trivia game, and see what sits on top of the St. Maarten Courthouse.

Fellow New York Personal Injury Attorney John Hochfelder Includes My Blog in his Review

lawmed10@yahoo.com (Blog Author)11370 — Tue, 28 Apr 2009 08:00:00 EST

I am thrilled to post an excellent legal blog review (known as a blawg) by fellow New York personal injury lawyer John Hochfelder. Here is an excerpt of his review where he graciously included my blog among three for New York medical malpractice attorneys he would have turned to had he needed our advice.

"It was in the 1970's that Mom got cancer. She was a free spirit, and after traditional medicine failed she sought alternative treatment (including a clinic in Germany with reggae star Bob Marley) but ultimately the scourge that is cancer took her life in 1982. Was she treated properly by all of her physicians? Did they delay the diagnosis of cancer when they could have saved her? I don't think so and I hope not. Had I thought otherwise, I could have turned for advice either to the aforementioned Eric Turkewitz or other bloggers and top medical malpractice lawyers such as Andrew Barovick at New York Medical Malpractice Law Blog or Gerry Oginski at NY Medical Malpractice Blog."

Read the rest of the blog post here.

Attention all Medical Malpractice Trial Lawyers

lawmed10@yahoo.com (Blog Author)11314 — Sat, 25 Apr 2009 08:00:00 EST

For medical malpractice trial attorneys like myself who wonder what jurors are thinking and what they're doing before entering the jury room, here are exact twitter messages from one twitterer waiting to be picked as a juror in New York:

"Heading to jury duty - limited blogging." 8:00 AM Apr 23rd from web

"Can you be exempt from jury duty by twittering court proceedings? Stark editor Matt, explores this option today." 11:21 AM Apr 23rd from web

"In the midst of a grueling selection process for jury duty. Live twittering capabilities limited. Medical malpractice case. Juicy. Hopin ..." 12:12 PM Apr 23rd from web

"One lawyer put me directly asleep. The other lawyer - seasoned, charismatic - I'm voting for his client. Thanks for the support folks." 12:15 PM Apr 23rd from web

"Here come the big boys with the judge. Signing off." 12:20 PM Apr 23rd from web

"Back from lunch, escaped being picked for the medical malpractice. Feeling I won't be so lucky again. Hearing rumors of Lykke Li on idol? wtf" 3:34 PM Apr 23rd from web

"@nisianista yeah so illegal. Now I have medical malpractice lawyers following my twitter. Not kidding." 5:33 PM Apr 23rd from web in reply to nisianista

"Still jurying... nothing funny happening today." about 10 hours ago from web

These tweets come from @StarkNY.

These tweets are both eye-opening and somewhat disturbing. Why? I finally get to look into the thought process of someone waiting to be picked as a juror in a medical malpractice case.

Typically, lawyers have no way to look into the minds of jurors, other than to ask them specific questions about their feelings, biases, and prejudices.

These tweets are somewhat disturbing though because in the last few months there have been a number of jury trials, both criminal and civil whose verdicts may be in jeopardy because of jurors who were twittering about the trial or doing their own research online. Those jurors totally disregarded the court's instructions not to do their own research and not to discuss the case with anyone outside of court.

When someone is chosen as a juror, they are admonished by the court not to discuss the case with their friends or family. They are repeatedly told not to do their own independent research. Despite these warnings, there are still some renegade jurors who disregard the instructions of the court and put the civil justice system and the case they are deciding, at risk.

Now this twitterer @StarkNY does not appear to be doing anything wrong, as long as he does not twitter about a case in which he is a selected juror.

Jurors who choose to do their own online research, or twitter their thoughts during a trial risk exposing biases, prejudices, and leanings before hearing all the evidence and importantly, before hearing the judge's legal instructions that applies specifically to their case.

If I were the plaintiffs attorney on a case, and learned that @StarkNY were twittering, I could theoretically follow him on Twitter solely to learn his thoughts about the testimony and evidence during the trial. This would clearly give me an unfair advantage over my adversary as I would have an inside view into at least one juror's thinking as the trial progressed.

Interestingly, I recently posted two videos addressing this exact issue: "Does an attorney who learns that a juror is twittering during trial have an ethical obligation to inform his adversary and the court of this fact?" To watch the videos click on the titles, <a href="http://nymedicalmalpracticevideoblog.com/?p=305">Twitter & Facebook Jury Instructions in NY</a>, <a href="http://nymedicalmalpracticevideoblog.com/?p=307">Twitter Communication with jurors in New York</a>."

In my opinion, an attorney has an ethical obligation to disclose this information immediately to both the judge and to the defense attorney.

Think about the possibilities:
Who needs a news reporter in the courtroom when jurors can simply twitter their thoughts as the trial progresses? Both sides and the judge could see in real time what the jury is thinking as each piece of evidence unfolds and each witness is presented. This way the playing field is leveled, and all attorneys could tailor their case based upon what the jurors are saying in their twitter messages. If this were to occur, this would be truly revolutionary in the civil justice system here in the state of New York.

In Case of Death-NY Trial Lawyer Gerry Oginski Publishes New Book

lawmed10@yahoo.com (Blog Author)11163 — Tue, 21 Apr 2009 08:00:00 EST

In this new book you’ll learn learn how a wrongful death lawsuit in New York works. You'll learn how much time you have to file a lawsuit for wrongful death, how much time you have to file a claim against the New York City Health and Hospitals Corporation and the City of New York. Learn how to choose a wrongful death lawyer in NY. Find out whether you need an autopsy to determine the cause of death. Learn 9 Facts Your New York Wrongful Death Attorney May Not Tell You, and much much more. I guarantee that after reading this book, you will learn things you did not know before. I promise that this book will educate and inform you. That’s my guarantee.

Enjoy the book and if you have questions, please pick up the phone and call me at 516-487-8207. I welcome your call. Or you can send me your questions by email to lawmed10@yahoo.com. I can answer your legal questions, and I promise to give you a straightforward and personal response.

Doctors Gone Wild

lawmed10@yahoo.com (Blog Author)11118 — Mon, 20 Apr 2009 08:00:00 EST

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.

A Lawsuit For Every Calamity-NY Trial Lawyer Explains

lawmed10@yahoo.com (Blog Author)11026 — Thu, 16 Apr 2009 08:00:00 EST

You can't avoid reading about different lawsuits every day. Open any newspaper across the country and you'll see many stories about people suing cities, hospitals, negligent drivers, incompetent police, employers for sexual harassment, the church, manufacturers and the list goes on and on.

Break a finger opening a jelly jar; sue the manufacturer for a defective product.
A lawn mower blade slips and slices off your leg. Sue the manufacturer.
A doctor perforates your colon and you need emergency surgery; sue the doctor and hospital.
A radiologist misreads your chest x-ray and fails to diagnose your lung cancer; start the lawsuit.
You have a fender bender in a parking lot and bring a lawsuit for soft tissue injuries; start a case and watch it get thrown out of court.

Is every injury worthy of money compensation?
The answer is no.

Our system of justice requires that a wrongdoer who causes injury pay money compensation to the injured victim. The wrongdoer is supposed to make their victim "whole" again. This is impossible when the injured victim suffered significant physical injury.

When a wrongdoer causes physical harm, he incurs a debt that must be repaid. The only way our justice system in New York allows that debt to be repaid is with money. Money to pay the victims' medical bills in the past; the future, money to pay for lost earnings and for future lost earnings, and money to pay for the victims' pain and the suffering he caused.

Attorney Blooper #4 just posted

lawmed10@yahoo.com (Blog Author)10891 — Sun, 12 Apr 2009 08:00:00 EST

Watch my blooper, as I try to get the words out of my mouth, but just can't. Then, to make matters worse, I can't get the position of the camera straight. It's a quick 30 second blooper.

Medicare Can Ruin Your Lawsuit- Find Out How

lawmed10@yahoo.com (Blog Author)10687 — Mon, 06 Apr 2009 08:00:00 EST

Did you know that if Medicare pays for medical care that you received because of someone else's wrongdoing, and you then bring a lawsuit seeking compensation for your injuries, Medicare has a legal obligation to make you repay them?

Let me repeat that and explain. Let's say you're in an accident caused when a driver crossed over the double yellow line and hit you. You're in the hospital for weeks and Medicare pays your bills. If you now sue the driver of the car that caused your accident, Medicare will come to you and your lawyer and say "Pay Up."

The government wants their money back if you get money from the person who caused your injuries. Depending on how much money you get and how much money Medicare paid, we can, in some cases negotiate with Medicare to reduce the amount that they must be repaid.

To learn more, click here to watch Gerry's informative video.

Is It Ethical For a Lawyer To Send a Letter to a Car Accident Victim?

lawmed10@yahoo.com (Blog Author)10606 — Fri, 03 Apr 2009 08:00:00 EST

Q: My mother was in a car accident last week, and already she's gotten letters from lawyers

asking if she's ok, and if she wants a lawyer? Is it ethical for a lawyer to send such a letter?

A: First, I hope she is feeling better. Second, in limited circumstances in New York, it may be

'acceptable' for an attorney to send such a letter to a victim of an accident. However, new ethical rules

say that a lawyer may not send an unsolicited letter to a victim's family within the first 30 days of the

incident.

In any event, the majority of lawyers feel such a letter to a victims' home is demeaning and degrading.

Some lawyers feel this is nothing but a solicitation, which is clearly not permitted in New York. Other

attorneys (the ones who send these letters) feel that it may be their only chance to entice the injured

victim to come to them as a client.

The letter is supposed to only offer them legal assistance and guidance- should they want it. Again, how

do you choose which attorney to use when you're inundated with a flood of letters from different

lawyers promising to help you with your accident claim?

The answer is simpler than you think. Ask yourself why an attorney would even bother to send such a

letter. Are they really that desperate to need to send such a letter? How did they get your name anyway?

I'll tell you how- maybe it came from the tow truck operator who took your car away. Maybe it was

from an ambulance technician. Maybe it was from a police blotter at the police station. (That's public

information that many investigators working for lawyers troll for in various police stations).

Ask yourself another question. Do you let a stranger into your house simply because he says he saw you

need a paint job, and amazingly, he's a painter who is willing to paint your house for a great price? Did

you call him? No. Did you seek out other customers of his to determine if he's reliable and professional?

No. He just showed up while trolling through the neighborhood. Is this the type of painter you want

working on and in your house? I don't think so.

The same rationale holds true for a lawyer that sends you an unsolicited letter following an accident.

What do you know about that lawyer? Probably nothing. Does that mean that he (or she) isn't a good

lawyer? No. But, again, think who you want for your attorney. Does it help knowing that your lawyer

gets many cases this way, by sending out unsolicited lawyer letters hoping that a few unknowing people

will answer the letter? The choice, as always is yours. Make an informed choice.

Ambulance Chasing

lawmed10@yahoo.com (Blog Author)10163 — Sat, 21 Mar 2009 08:00:00 EST

How many times have we heard the term ambulance chasing and thought of lawyers who were unscrupulous and had no ethics?

Just yesterday I critiqued an attorney video where a lawyer was seeking accident victims while shooting her video in an operating room. What made the video even more unusual is that there appeared to be a real patient on the operating room table, a physician operating, and a nurse attending to the patient. Unlike a video that depicts a hospital in the background, this medical malpractice attorney was clearly and visibly located within the operating room itself. Whether the people in the operating room were actors or not I could not tell.

However, this brief video did nothing to educate an injured victim who was searching for an attorney online. It is this type of advertising that gave rise to the term of ambulance chaser for negligence and medical malpractice attorneys years ago. Typically, lawyers had a very limited means in which to educate consumers about which lawyer was the right one for them. Traditional forms of advertising consisted of television advertisements lasting no more than 30 seconds, and a Yellow Pages ad that contained very little useful information.

Comedians routinely spoofed lawyer advertisements and movies portrayed negligence lawyers hanging out in funeral homes, (The Verdict with Paul Newman), as being the only way they could find cases. Other lawyers were shown hanging out in emergency rooms seeking to sign up every available accident victim.

Although every spoof has a hint of truth to it, it is highly unusual for attorneys nowadays to be found lurking in hospital emergency rooms or chasing ambulances to track down injured victims.

The other day while in court I ran into a defense attorney I worked with on a number of cases. He was on my mailing list to receive my monthly newsletter. I hadn't seen him in a few years, but the first thing he said to me when we saw each other was "I still get your newsletter." The comment he made after that prompted me to write this blog post. He said, "Your newsletter appears to be a bit of ambulance chasing, doesn't it?" I asked him what he meant by that.

He said, "I recognize that attorneys have to have their shtick as a way of getting potential clients." I replied that my newsletter was not only informative, but helped educate potential clients, friends, colleagues and injured victims about how the legal process works. Importantly, I told him that there are people who have not received my newsletter on time who call me up wanting to know why their newsletters are late because they enjoy it so much.

Contained within my informative newsletter I have a trivia game, interesting news items, one or two stories about law, and in many cases an ongoing story called "Gerry's Never Ending (fictional) Story." When I returned back to my office later that day, I removed this defense attorney from my mailing list recognizing that he truly didn't understand the purpose of the newsletter. Clearly, I never want to send my newsletter to someone who doesn't want it. I will tell you that in all the years I've publish my newsletter, this is only the second person I've removed my mailing list.

Are You The Perfect Client?

lawmed10@yahoo.com (Blog Author)9944 — Sat, 14 Mar 2009 08:00:00 EST

Every person who calls my office thinks that they are the perfect client.
Every person truly believes they have a valid case.
Every caller believes their injuries are worth more than the national treasury.

From an attorney's perspective, just who is the perfect client?

A perfect client is one who is willing to listen.
A perfect client is one who is willing to learn.
A perfect client is one who is willing to go on a stressful journey with someone they trust as their legal guide.
A perfect client it one who communicates with me.
A perfect client is one who does not demand, yell, scream or give ultimatums.
A perfect client is one who, after listening to my lawyerly advice, makes an intelligent decision about how to proceed, regardless of whether they agree with my advice or not.
A perfect client is one who responds to my letters, emails and phone calls.
A perfect client is one who is helpful and assists me when I prosecute their case.

A perfect client respects me, my time and my secretary.

Does every client have to be the perfect client? No. But having a perfect client makes the attorney-client relationship that much more enjoyable.

Should Your Lawyer Pay $500 to Impress You?

lawmed10@yahoo.com (Blog Author)9921 — Fri, 13 Mar 2009 08:00:00 EST

Just today I received mail from a company called Elite Lawyers of America asking me to join their organization to promote my success stories. How did they propose to do that? By joining an organization that supposedly restricts its membership to attorneys who have had awards, settlements or verdicts of at least two million dollars. Now I have no problem with an attorney who wants to tell their prospective clients about their accomplishments. Keep reading to find out the catch.

"Acceptance in this organization represents an incredible accomplishment by the civil trial attorney." You may ask, "What do I get for joining this Elite group?"

Well my friends, I get a lucite object to put on my desk which is etched with the name of the (previously never heard of) organization and a statement that says "Membership limited to civil trial lawyers who have obtained a verdict or settlement of at least 2 Million dollars." Then there is a place for your name, and the accompanying photo says "Your name here." How nice.

And the cost to have this company pay a few dollars to put my name on a generic lucite obelisk and for a fancy certificate I can impress you with? Only $500. Payment of this fee guarantees lifetime membership. Ooh, I feel so lucky.

Guess what? I personally don't need to spend $500 to show my clients that I have obtained settlements in excess of $2 million dollars. All they need to do is read my website and realize some of my accomplishments include settling a failure to diagnose heart attack case for $6 million dollars. Why do I tell you about this? The next time you walk into an attorney's office and are impressed with their certificates and fancy objects on their desk, look closely at it and ask them how they got it. The answers may surprise you.

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

lawmed10@yahoo.com (Blog Author)9851 — Wed, 11 Mar 2009 08:00:00 EST

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

lawmed10@yahoo.com (Blog Author)9603 — Wed, 04 Mar 2009 08:00:00 EST

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.

Doctors Want Patients To Waive Their Right to Comment Online!

lawmed10@yahoo.com (Blog Author)9592 — Wed, 04 Mar 2009 08:00:00 EST

I thought I'd heard everything by now. I was wrong.

A North Carolina neurosurgeon has created a company that provides doctors with a written waiver (for a fee) that basically says, I agree not to post negative reviews about my doctor online.

Wow. The premise is that patients have the ability to comment anonymously online about a doctor. This neurosurgeon, Dr. Jeffrey Segal hopes this will nip the negative criticism's in the bud.

Here's how it works. When you walk into a doctor's office, you are required to fill out lots of forms. One form that this doctor advocates having patients sign is a "Waiver." This means that the patient gives up their right to post opinions about the doctor online. The article does not mention what has happened if a patient refuses to sign such a waiver, or whether the patient will still be seen and treated.

This waiver appears to be nothing more than an attempt by doctors to limit the negative opinions that patients may truly have. Sounds like a restriction of freedom of speech to me.

New York Negligence Cases-Facebook & Twitter Jury Instructions?

lawmed10@yahoo.com (Blog Author)9548 — Tue, 03 Mar 2009 08:00:00 EST

In negligence lawsuits in New York, attorneys must pick impartial jurors to sit in judgment and determine whether the injured victims' version of what happened is more likely right than wrong. As the trial gets underway, the trial judge typically gives the jury preliminary instructions about what they can and cannot do as jurors.

One of the most common instructions in New York is that jurors should not discuss the case with either their fellow jurors, or with anyone outside the court room. They are often told not to go to the library to research the issues in the case. With today's prevalence of social networking sites like Facebook and Twitter and Google as the king of search engines it becomes hard for a juror not to have the curiosity to find out more information about the lawyers in their case, the litigants, and even the judge.

Can you imagine jurors going home after hearing testimony and then going online to Google, Facebook and Twitter to see what the lawyers and parties to the lawsuit have posted? Do you think comments posted online by litigants in their "private" lives might have any impact on a juror? Put aside for the moment the juror's disregard for the Courts' stern warning to do no research online about the case or the people involved.

Should pre-trial instructions to jurors in New York now include specific warnings that they should not do a search on Facebook or Twitter for the parties to the lawsuit? Should they be told not to Google the lawyers? Is the judge immune from having his decisions exposed by inquisitive and internet savvy jurors?

In my opinion, most of today's jurors who come into Court in Brooklyn, the Bronx, Queens, Manhattan, Staten Island, Nassau & Suffolk are smart enough to know about Google, Facebook, MySpace and Twitter. The question that always arises is: Even though jurors are told not to do any outside independent research on the issues in the case, and told not to investigate the parties, how do you really know whether they listen?

The difficulty with our system is that you don't. As an attorney, I must rely on a juror's statements and assurances that they will uphold the law that the trial judge gives them. Having said that, I still believe that jurors should be reminded not to go online and research the issues, the litigants, the parties or even the judge.

Twtitter & Facebook Comments-Can They Be Used Against You in a New York Negligence Trial?

lawmed10@yahoo.com (Blog Author)9547 — Mon, 02 Mar 2009 08:00:00 EST

You've brought a lawsuit in New York for injuries you received in a car accident. You've just given a deposition (a question and answer session) under oath where you explained in detail how your injuries prevent you from playing sports and doing many of your life's daily activities.

A few weeks later you are on Facebook telling your friends how you just went skiing and had no problem speeding down the double diamond slopes on an amazing mountain. While on Twitter, you posted a few quick comments about how you spend your day working part-time for a carpenter as a helper carrying heavy items in and out of the job site.

A bright defense attorney decides to check out your Facebook profile while he prepares his report to the insurance company. He also does a Google search of you to see where your name pops up. He finds your Facebook comment about your skiing adventure as well as your Twitter posts saying that you're working part-time.

What does this mean for your lawsuit in New York?

The short version is that you're in trouble. The longer version is that you have created contradictions between the injuries that you claim to have suffered versus information that you have put out for public consumption on at least two social network sites.

Many people using Facebook and Twitter fail to recognize that by using and posting on these sites they generally have no expectation of privacy. It's not like having a private face-to-face conversation with one person. When you post to Facebook and Twitter, you are talking to the world.

Will a trial judge allow a defense attorney to cross-examine you with the statements that you made on Facebook? Will your contradictions show that you were less than truthful under oath? In my opinion, a trial judge in New York will allow this information in.

What do you think will happen to your credibility once you are portrayed to have lied? A jury will no longer believe what you have to say. I'm not even going into the possibility of fraud or an intention to lie.

So what's the take home message? Remember, that when you post comments on Facebook, Twitter and other social networking sites, the entire world can see them. Contradict yourself at your own peril.

Attention PI & Med Mal Attorneys! Your Clients May Be Looking for a New Attorney

lawmed10@yahoo.com (Blog Author)9319 — Sat, 21 Feb 2009 08:00:00 EST

Not a day goes by without getting a call from a disgruntled client asking if I would be willing to take over their case from another attorney.

One of the first questions I ask this person is "Why do you want to switch attorneys?"

The response is usually one of two possible reasons:
1. The original lawyer has withdrawn from their case or
2. The client is unhappy with what the lawyer is doing, or in some cases, not doing.

When a lawyer withdraws from a case in New York, he must get permission from the Court to withdraw as the attorney. The Court will then give the client ample time in which to try and find another attorney to continue the case.

Clients may not realize it, but when an attorney withdraws from a medical malpractice or a negligence case, the defense knows that there must be some problem either with the merits of the case, or a conflict between the attorney and client that cannot be resolved. In either situation, it sheds a cloud over the case. A new attorney taking over the case has many intangible obstacles to overcome.

Just this week a potential client asked me to take over her case telling me that she had an "excellent case." Her attorney had withdrawn and now she had all the records to give to the next attorney.

When I asked why he withdrew, the response was "Well...he and I didn't get along."
"He didn't want to do what I asked him to do..."
"He wasn't really doing anything on my case..."

I informed this woman that it is my policy that I do not take over a case when another attorney has withdrawn. I do not need to inherit a whole host of someone else's problems. Her response was "There are no problems with my case. Only with my attorney."

What type of client do you think this person would be?

When the client is unhappy with what the lawyer is doing, it's usually because there is a lack of communication. I will always suggest that the client sit down with their attorney and have a straight-forward conversation about their concerns. An open line of communication with the attorney is vital. Stay in the loop, keep informed, and ask your attorney for regular updates.

Failure to Recognize Nerve Injury Results in $1 Million Settlement

lawmed10@yahoo.com (Blog Author)9176 — Mon, 16 Feb 2009 08:00:00 EST

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-Unnecessary Gyn Surgery

lawmed10@yahoo.com (Blog Author)9119 — Sat, 14 Feb 2009 08:00:00 EST

Just uploaded a new informative video about a young woman who had a hysterectomy and didn't need one. Find out what the doctor told this young woman would happen if she didn't have her uterus surgically removed. Learn what the pathologist found after the surgery was over. Click here to watch the video.

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

lawmed10@yahoo.com (Blog Author)8847 — Fri, 06 Feb 2009 08:00:00 EST

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.

2 Questions Every New York Medical Malpractice Lawyer Needs To Ask?

lawmed10@yahoo.com (Blog Author)8772 — Thu, 05 Feb 2009 08:00:00 EST

Many calls I receive are from potential clients who want to know if they have a valid medical malpractice case. These callers want to tell me their story, but sometimes the story rambles on and on. I can't follow the timeline, and I can't determine why this person is calling, and cannot tell what injury they're calling about. As politely as possible I tell them to stop and list to this two-part question:

"What do you think was done wrong that caused you permanent harm?"

That question usually stops most callers cold. They pause to think about the permanent injury they may have suffered.

Most callers have no problem explaining how they feel a doctor or hospital did something wrong. However, when asked to link the wrongdoing to the permanent injury, many callers simply get stumped, finally recognizing that they may not have a potential case here in the State of New York.

The two-part question listed above has, contained within it, three elements needed to prove a successful case. In every medical malpractice case in New York I must be able to prove that
1. There was wrongdoing,
2. The wrongdoing caused injury, and
3. The injury is significant and permanent.

Lots of callers can talk at length about elements number one and two, but when they think about the permanent injuries, many realize that they simply don't have any long-term permanent injury. It is also important for any lawyer to speak to, to inform you that in New York, all three of the elements needed to prove a malpractice case must be confirmed by a medical expert who has either treated you, or reviewed all of your medical records. If any one of those elements is missing, then there's no way to prove your case.

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

lawmed10@yahoo.com (Blog Author)8627 — Sun, 01 Feb 2009 08:00:00 EST

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!

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

lawmed10@yahoo.com (Blog Author)8625 — Sun, 01 Feb 2009 08:00:00 EST

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 - 2 Reasons Why Victims Won't Recover Any Money

lawmed10@yahoo.com (Blog Author)8624 — Sun, 01 Feb 2009 08:00:00 EST

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.

ANNOUNCEMENT! Gerry Oginski is now a Faculty Member of Solo Practice University

lawmed10@yahoo.com (Blog Author)8420 — Sun, 25 Jan 2009 08:00:00 EST

As of Monday, January 26, 2009, Gerry has been named as a faculty member of Solo Practice University!
Solo Practice University is an online school for lawyers to learn about areas of law they never learned in law school. SOLO PRACTICE UNIVERSITY™ is a revolutionary new web-based educational community that picks up where legal education left off.

"Learn from some of the most progressive lawyers, marketing pros, technology consultants and legal business giants how to:

Plan, build and grow your private practice
Differentiate yourself from the competition
Attract and engage new clients more easily

… and much more. They just can’t teach you that in law school."

Gerry will be teaching two classes at Solo Practice University:

The first will be about Creating Online Video for lawyers.
The second will be about Medical Malpractice Law here in the State of New York.

NY Accidents & Injuries- "Why Isn't The Store Responsible For My Injuries?"

lawmed10@yahoo.com (Blog Author)8318 — Wed, 21 Jan 2009 08:00:00 EST

I was asked this question today by a very educated man. He knew someone who had walked into a store, gotten hurt while taking something off a shelf, and assumed that the store was totally responsible for the other man's injuries.

I asked "Did the store know about the dangerous condition before this man pulled the object off a shelf?" "Why is that important?" asked this intelligent young man.

It's important because in the legal world, in New York, I must be able to prove that the store had "Notice" about a dangerous condition and that the store failed to time act to correct the problem before someone got hurt. This man felt strongly that the store should be held accountable for any injury or accident that takes place within its' premises. An encouraging thought for an injured victim, however, that is not what the law says.

In order to hold a store responsible for an accident that causes injury in New York, the employees of the store had to know about the dangerous condition and fail to timely fix the problem. If the people who worked in the store did not know about a dangerous problem, how then can they be held accountable for any injuries that happen while in the store?

There is another instance where a store will be found responsible for injuries arising out of an accident. Let's say that a dangerous condition existed for a lengthy period of time, so that "everybody" who went by that area of the store knew there was a problem, yet nobody fixed it.

Where the defect is present for such a long period of time, the law says that the store, or its' employees are deemed to have "Constructive Notice" of the defect, and they should have fixed it long ago.

Here's a good example: You're in the produce section of your supermarket. A shopper immediately in front of you accidentally drops a few grapes, and seconds later you step on it. You fall and fracture your leg. Is the store responsible? In New York, the answer likely is no. Why not? Because the people who worked in the store didn't know, and didn't have enough time to know of the dangerous condition. Therefore, there was no way they could have cleaned up the grapes before the accident happened.

Ok, here's another example: What if a shopper accidentally knocks a jar of tomato sauce to the ground, causing the jar to shatter and tomato sauce to splatter all over the aisle. Suppose that ten shoppers reported the damaged jar with sauce on the floor, and after ten minutes nobody has cleaned up the mess. Along comes some oblivious shopper, mindful of only herself and her grocery list.

You know what's going to happen, right? She slips, falls, and fractures her hip. Is the store responsible? As long as we could prove that the store had a policy of cleaning up their messes within minutes of being notified, then a gap of ten minutes without a clean-up might be construed as showing they had sufficient time to clean up the problem and failed to do so.

The bottom line is that when an accident happens in a store, you must notify the management immediately; have them complete a written report, and you should immediately go to the hospital for treatment if needed.

Neurosurgery Delay Results in Pre-trial Settlement

lawmed10@yahoo.com (Blog Author)8158 — Fri, 16 Jan 2009 08:00:00 EST

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

lawmed10@yahoo.com (Blog Author)7928 — Wed, 07 Jan 2009 08:00:00 EST

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.

NY Medical Malpractice - Informed Consent Trap - An Experienced Trial Lawyer Explains

lawmed10@yahoo.com (Blog Author)6626 — Wed, 26 Nov 2008 08:00:00 EST

INFORMED CONSENT- THE MEMORY TRAP

You need surgery. You're worried. You have a consultation in the surgeon's office. You're by yourself. The surgeon tells you what he plans on doing. The medical terms are confusing. The procedure is difficult to understand. All you want to know is whether you'll be ok. The surgeon keeps reassuring you, and on the way home you do not even remember if he discussed any alternative treatment that you could have. You think he did, but you're just not sure.

You like the surgeon. He's confident. He's suave. He talks like he knows what he's doing. "OK, I'll have the surgery with him," you say to yourself.

AFTER THE SURGERY

You learn you had an unfortunate complication. The surgeon cut part of your anatomy that he should not have touched. You then needed corrective surgery and can expect to be in the hospital for another three weeks. The surgeon tells you this was a "recognized risk" of the surgery.

"But you didn't tell me this could happen," you protest. The surgeon insists that he told you very clearly on that first consultation exactly what the risks, benefits, options and alternatives were. "Don't you remember?" he asks. "You were sitting in my chair, you had on a black sweater and black pants. You had a long coat with you and you were visibly upset." In the back of your mind you have a vague memory of talking about risks, but you just do not remember.

THE SOLUTION

Whenever possible, bring a family member to an important doctor's visit. It's natural to be worried and thinking about how your treatment will affect your health. Many of us forget to ask questions while we're in the doctor's office. How can you be expected to remember everything the doctor said while your mind was racing elsewhere?

If you bring a trusted family member, they can help you recall the conversation about any risks, benefits and alternatives that was discussed with the doctor. This way you'll be in a better position to make an informed decision about whether the proposed treatment is right for you.

About Gerry

Gerry Oginski is an experienced medical malpractice and personal injury trial attorney practicing law in Brooklyn, Bronx, Queens, New York, Staten Island, Nassau & Suffolk. He has tirelessly represented injured victims in all types of medical malpractice, wrongful death and injury cases since 1988. As a solo practitioner he is able to devote 100% of his time to each individual client. A client is never a file number in his office.

For more information, call Gerry personally at 516-487-8207 for answers to your legal questions.

Also, go over to http://medicalmalpracticetutorial.blogspot.com for Gerry's free instructional videos on New York Medical Malpractice, Wrongful Death & Accident law.

Negligence in New York - How to Recognize It - NY Personal Injury Lawyer Explains

lawmed10@yahoo.com (Blog Author)6625 — Wed, 26 Nov 2008 08:00:00 EST

Negligence is a lack of ordinary care. Here are some examples of negligence:

1. A woman in a car drops her cell phone while driving 50 miles per hour on the highway. Inexplicably, she reaches down to search for the ringing cellphone and takes her eyes off the road. You can guess what happens next.

2. A boy walking by his local pizza place is fascinated by a construction crew working on a building next door. The big equipment; the cranes, the bulldozers, the dump trucks are just waiting for him to run in and play with these "toys." The gate to the construction site is left unlocked and the front door is open. This is known in the legal field as "An attractive nuisance." The boy's curiosity encourages him to walk into the empty construction site with all these big pieces of construction machinery. What do you think can happen to a young boy playing with heavy machinery at an empty construction site?

Who do you think might have been negligent in securing the doors to the construction site? When the boy is crushed between a forklift that moved and a wall, do you think there has been a lack of reasonable care for the owner of the site and construction crew to protect the site from trespassers?

3. A company makes a ping pong table and the bolts holding the table together were not properly heat-treated, causing the bolts to have stress fractures. While playing ping pong, the table collapses and 200 lbs. worth of ping pong table crushes the leg of a young girl with aspirations of becoming a gymnast. Do you think the manufacturer of the ping pong table owed a duty of reasonable care to the consumer who knows nothing of the manufacturing process?

4. A mechanic fixes your brakes on your 2005 Ford Taurus. He charges you four hundred dollars and tells you the brakes are good as new. What he doesn't tell you is that he only learned how to fix brakes last week, and forgot to test drive them before allowing you to drive home. You get in the car to go home and when you approach a red light, you naturally put your foot on the brake. Can you guess what happens? There is no brake. Putting your foot on the brake does nothing and the resulting crash puts you in the hospital for three weeks, and the driver of the car in front of you is in surgery as we speak.

Is it reasonable for the owner of the car repair shop to have looked into the credentials and experience of the mechanic before hiring him?

5. You are a pedestrian crossing the street with a "Walk" sign, in the crosswalk, when you are hit by a car that went through a red light. Is it reasonable to assume that a driver will recognize that a red traffic light means "STOP" and not "GO"?

6. You are an avid bicycle rider, riding in the street in the same direction of traffic. A man in a parked car decides at that moment to fling open his driver-side door to exit his car. Unfortunately for you, you were about to pass his car but were thrust into moving traffic by a 50 lb car door that destroyed your femur and caused the car behind you to drive over your legs and your bike. Do you think this person who flung open the door was careless for not looking behind him to see if there was any oncoming traffic?

These examples of negligence are seen every day by an experienced New York personal injury trial lawyer. When you've been a victim of negligence there are important steps you need to take in order to protect your legal rights. Knowing these rights will help you in deciding what your options are.

For more information, call Gerry personally at 516-487-8207 for answers to your legal questions.

Also, go over to http://medicalmalpracticetutorial.blogspot.com for Gerry's free instructional videos on New York Medical Malpractice, Wrongful Death & Accident law.

Queens Bicycle Rider Hit By Car at a T Intersection-New York Accident Attorney Explains

lawmed10@yahoo.com (Blog Author)6158 — Thu, 13 Nov 2008 08:00:00 EST

My client was out riding his bicycle on a beautiful sunny Spring day this year, on a quiet stretch of road in Queens. He was approaching an intersection where cars were coming off of the Grand Central Parkway exit ramp. As a driver coming from the Grand Central heads down the exit ramp, he is left with one of two choices as he approaches the T intersection: Either turn left, or turn right. If you are going to make a left turn, you must get into the left-hand turning lane. There is a stop sign at that T intersection for cars just getting off the GCP exit. In this case, a driver coming off the Grand Central Parkway exit ramp got into the left-hand turning lane and proceeded to stop at the Stop sign. A good thing he did.

However, instead of looking to his left, which is where he was intending to turn, to check for oncoming traffic, he looked to his right and removed his foot from the brake and applied the gas. As he did so, he proceeded to hit my bike-riding client-who by the way was in the middle of the intersection, on the right side of his body, throwing him to the pavement. A trip to the emergency room revealed a fractured finger, that days later required surgery to correct. An MRI of the knee revealed damage to a tendon, which required arthroscopic surgery to fix.

In addition, my client suffered a significant shoulder injury requiring extensive physical therapy. This young man, who was wearing his helmet at the time of impact, was a computer programmer and because of the injury to his finger and surgery, had great difficulty typing and performing his job duties. Recuperation and physical therapy has helped him regain function to his finger and hand, and he performs strengthening exercises each day.

This accident was preventable. The careless and negligent driver had only to look to his left to see what he should have seen. Had he merely looked to his left, he would have seen my client riding his bike peacefully on a beautiful Saturday morning. Instead, through the negligence of this driver, my client's day was turned upside down.

Lawyers swoop in after the Metrolink crash, looking for clients

lawmed10@yahoo.com (Blog Author)5072 — Sun, 05 Oct 2008 08:00:00 EST

Here's an article directly on point with lawyer behavior that is simply unacceptable. It describes lawyers actually soliciting injured victims and their families and encouraging them to sign up with a particular law firm following the train accident tragedy in California. Correctly, the California Bar has reminded attorneys that soliciting victims is unethical and improper. In New York, in a mass disaster, lawyers are prevented from contacting any victim or family member within 30 days of the accident. There are very few exceptions. Ask yourself this question: "Would you hire a painter because he knocks on your door, telling you he's trolling around the neighborhood and sees that your house is in need of new paint?"

"Would you hire a contractor who calls you out of the blue to say you need to renovate your kitchen?" How did he get your name? Simple, from his friend who is a refrigerator repair man, who called him to say that you could certainly use a new kitchen. What do you know about him? Have you checked his references? Why does he have to chase customers for business?

Read the article. It's an eye opener.

Lawyers swoop in after the Metrolink crash, looking for clients

State bar officials cite possible professional sanctions, but the aggressive attorneys note that time is limited and the stakes are expected to be very high.

By Carol J. Williams, Los Angeles Times Staff Writer
October 5, 2008

The phone rang at a rare moment between Angie Akins' frantic drives from her home and her husband's bedside in an intensive-care unit, between shuttling to her job and driving her 14-year-old daughter to after-school sports and ballet.

It was a lawyer who'd spotted her husband's name among those badly injured in the Sept. 12 Metrolink crash in Chatsworth. An attorney she had never met was urging her to retain him and sue the government railroad for all it was worth. Only a week had passed since her comfortable suburban life had been upended by tragedy.

NEW YORK MEDICAL MALPRACTICE-Are Injured Victims Money Hungry?

lawmed10@yahoo.com (Blog Author)5071 — Sun, 05 Oct 2008 08:00:00 EST

If you believe all they hype by "tort-reform" zealots, every injured victim is a 'money-hungry, selfish and health-care destroying monster."

Contrary to all the hype, practically every single injured medical malpractice victim who walks in my door is just the opposite. Here's what I mean:

The people who come to me never started off their medical treatment by looking for a lawsuit. Instead, they went to a doctor or hospital to get better; to get treatment they needed; or to get checked to make sure they did not have any dangerous medical condition. They did not go to the doctor's office hoping the doctor would do something wrong, and cause them serious permanent harm. They didn't go to the doctor's office hoping the doctor would screw up and they would 'rake in the cash'! Nobody is that foolish. In fact, almost every person who comes to me for advice is almost apologetic that they're coming in searching for answers. Many potential clients tell me "We're not looking for money...we just want justice." "We want to make sure this never happens again..."

It is days, weeks and months later do these potential clients wonder how they will survive financially as a result of their diminished earning capacity and their lost time from work. Who will pay for their health insurance premiums if they cannot work? Who will buy the groceries, pay the mortgage, the medical bills? How will they pay for their children's school tuition and camp if they cannot return to work? Those thoughts usually come after the healing process, assuming there is one.

There are many "reformists" who argue that there should be an artificial and arbitrary limit to an injured victims' pain and suffering compensation. Does that mean that even when an injured victim has unrelenting pain that never goes away and limits their daily activities, that the most compensation they can receive is an arbitrary number created by someone who has never had that type of pain? Is that fair?

Does a patient seeking a doctor's help truly seek to destroy the health-care system and how insurance companies reimburse doctors? The patient just wants to get better. They want treatment that will let them continue on with their lives unobstructed and free from limitation. Does a patient want a doctor to commit malpractice so his or her life can be destroyed and ruin his job and his family life just to bring a lawsuit? Such thinking is incomprehensible.

On the other hand, I am sure there are many good physicians who wake up each morning and say to themselves "I'm going to do the best I can today." I don't expect there are any physicians who wake up and say "Let's see how many patients I can screw up today so they can sue me for medical malpractice."

However, malpractice occurs when a physician is careless and departs from good and accepted medical care in the State of New York; when there is a lack of communication; where someone drops the ball and misinterprets a radiology report or a pathology report leading to incorrect or improper treatment. A failure to diagnose is always significant, especially if the failure leads to the patient needing additional treatment that otherwise he would not have needed if the condition had been timely and properly diagnosed.

Surgery and anesthesia errors are always signficiant. Many of those mistakes lead to the patient needing additional corrective surgery, or possibly lead to an untimely and wrongful death. Having practiced personal injury law and medical malpractice law for almost twenty years now in the greater New York metropolitan area, I recognize that medical mistakes and errors happens with doctors that are board certified as well as doctors that are not board certified. There are excellent doctors who are well qualified, yet in some cases, those doctors may be careless and that carelessness may have caused significant harm to the patient.

Getting back to the original premise of this article: Are injured medical malpractice victims 'money-grubbing, selfish, health-care destroying' people? Or are they just stuck in the unfortunate position of having been the recipient of improper medical care that has now turned their life upside-down? You decide.

I hope that all of your medical care goes well and you do not need the services of an experienced medical malpractice lawyer practicing law here in the State of New York.

NEW YORK CAR ACCIDENTS-6 REASONS TO SUE THE DRIVER WHO HIT YOUR CAR

lawmed10@yahoo.com (Blog Author)5067 — Sun, 05 Oct 2008 08:00:00 EST

You were on your way to work that morning, and never saw him blow past the stop sign without ever slowing down.

1. You can’t believe he destroyed your car.

2.You can’t believe you had to be removed from your car with the “Jaws of Life” that the fire department uses to open crushed cars. After being taken out on a backboard and having your head, neck and body strapped to the board and placed onto a stretcher in the ambulance, you still can’t believe you had to go to the emergency room.

3. You can’t believe that your clothes had to be cut off of you in the emergency room, then had your entire body x-rayed and sent for CT scan. You can’t believe that you needed emergency surgery to fix the bones in your thigh-bone, also known as the femur, and your arm. When you woke up you learned that the surgeons had to put in a titanium rod into your leg with steel plates, surgical screws and pins to hold the bones together.

4. You can’t believe that the surgeon told you your leg will be one inch shorter than the other, and that you’ll have to learn to walk again and need rehabilitation for about three weeks after getting out of the hospital in a week.

5. You can’t believe that you’ll be out of work, at a minimum, for 5 weeks, and your disability insurance won’t even kick in unless you’re out of work for 9 weeks continually. Your can’t believe that your boss in the factory where you work stopped paying you your salary after two weeks, and now you have no income. Your wife does not work and you have two young kids in elementary school.

6. You can’t believe that the bone in your leg is not healing properly and the surgeon tells you that you will need another surgery in two months. You can’t sleep at night because the cast on your arm requires you to sleep only on one side and the pain in your leg requires you to take narcotic pain medication on a regular basis. Your kids cannot understand why you can’t play with them or pick them up from school since you are now home during the day. You can’t believe how difficult it is to go up and down your stairs when you have a cast on your leg and also on your arm. Going to the bathroom is a 15 minute ordeal as is getting dressed in the morning. Brushing your teeth and hair with your other hand is confusing and frustrating. Spending quality time with your wife is physically impossible, and the agony of figuring out how you’ll survive without an income is horribly stressful.

In New York, an injured victim must be compensated for their medical expenses both in the past and in the future, their lost earnings, their lost future income, their pain and the suffering it caused to both the victim and their spouse, as well as any lost opportunities he would have had, had the accident not happened. When a wrongdoer causes an accident that causes harm, he incurs a debt that must be repaid. Often, with a seriously injured victim, the cost to repay that debt is significant.

If an accident happens, call Gerry Oginski, an experienced New York personal injury and accident attorney, to make sure that your rights and ability to obtain proper compensation is protected. Gerry can be reached through his website: http://www.oginski-law.com or you can call Gerry personally at 516-487-8207. For more information, take a look at Gerry’s educational video tips on his website as well as hundreds of free reports about accidents, wrongful death and medical malpractice in New York.

NEW YORK CAR ACCIDENTS- 12 Key Deposition Techniques in a Car Accident Case

lawmed10@yahoo.com (Blog Author)5066 — Sun, 05 Oct 2008 08:00:00 EST

Here are 12 key tips to help you question a defendant in a car accident case:

1. Were you taking any medication or non-prescription drugs on the day of the accident?
You want to know whether the driver was high on drugs while driving. The natural follow-up is whether he drank any alcohol within 24 hours prior to getting into the car that day.

2. Weather: You want to know whether the weather had any effect on contributing to the accident.
Was it raining? Had it rained? Was the ground wet? Do you have snow tires? Was your window open? (To determine if he could hear anything immediately prior the accident like screeching tires or kids playing.)

3. Their senses: You want to know whether their sight, sound and balance were all in good working order. If not, you need to question them extensively about their limitations. Do you wear eyeglasses? Any difficulty hearing? Any neurological problems? Previous medical problems such as a stroke?

4. Speed: You must establish their speed at impact, as well as at various points immediately before impact. If the witness does not know an exact speed, ask for an estimate. In New York, an attorney can, without objection, ask for estimates of speed. Once you have established the approximate speed, you can now move on to timing.

5. Timing: You need to establish how long it took to go from point A to point B. It is those reference points that will tell you conclusively whether this witness' testimony about their speed, time and distance are accurate. For example, "How long did it take you to travel 1/4 mile?" "How much time did it take you to travel the one block before impact? "How long did it take from the time you left the intersection at Main Street until the impact?" The follow-up questions lead directly to the next question: Distance.

6. Distance: You need to establish how far the driver was at various reference points. "How far were you from the impact point when you saw the red light?" "How far did you travel from Main Street until the impact?" Why is this important? There are simple mathematical formulas that will allow you to plug in the numbers that the witness testifies to that will either support their testimony, or allow you to prove that they are wrong. "Speed, time and distance" is the mantra of any personal injury trial lawyer who tries car accident cases. If you know any two out of the three elements, you can calculate the third. It's a very valuable tool for a trial lawyer, and allows you to create a devastating point when making closing arguments.

7. Geographic area: What is surrounding you? Is this a residential area or a commercial area? Was there parking on the street? Were there any trucks, busses or cars that blocked your view?

8. The car they were driving. Besides the usual make, model and color, ask for their license plate number and when their car was last inspected before the accident. Ask whether they have an ipod dock or a GPS system. Is the GPS portable, or fixed on the dashboard? Are there fuzzy dice hanging from the rearview mirror? Do you smoke? Were you smoking at the time?

9. Were you distracted?

10. WHEN DID YOU SEE THE OTHER CAR FOR THE FIRST TIME? This is important to establish that the defendant may not have seen the driver until it was too late to do anything. The failure to see that which should have been seen may establish liability for you in your case.

11. Mechanics of your car: Was it in good working order? If not, when had it last been serviced?

12. Passengers in your car: Who were they? Ages? Addresses? Conversation level? Distracted by passengers?

This list gives you an outline of key elements you need to establish liability in a car accident case in New York. As always, preparation is the key to knowing what questions to ask.

BROOKLYN MEDICAL MALPRACTICE LAWYER PROVIDES MONTHLY UPDATES TO CLIENTS

lawmed10@yahoo.com (Blog Author)5064 — Sun, 05 Oct 2008 08:00:00 EST

Before you hire an attorney practicing in Brooklyn for your medical malpractice matter, ask them this important question: "How often do you update your clients?" Why is this important? Because many lawyers are so busy they do not have time to provide regular written updates to their clients. Many lawyers believe that if a client wants to know what is going on, they can call to find out. However, contrary to this thinking, I believe it is extremely important to keep clients informed about everything that is going on with their case, and to provide written updates on a regular basis.

Many clients think that if they do not hear from their attorney, then nothing is happening with their case, and their case is just lying around with nothing getting done. This is not always true. But if the client is not informed about what is happening, how are they to really know what is going on with their case? Most good, experienced medical malpractice lawyers who practice law in Kings County, also known as Brooklyn, make great efforts to keep their clients apprised of new developments in their case. There are many different ways to communicate with a client including, sending letters, calling, sending email, and in-office consultations. In my practice I make it a point of sending monthly updates to each and every client to let them know what is happening on their case.

Often, a lot of work is going on in their case that involves paperwork and motions to the court and exchanges of documents and authorizations for medical records. These are tedious but necessary things that go on in every case. I believe that clients are entitled and actually want to know what happens on a day-to-day basis on their case. They really are starved for information. In addition to monthly written updates, I will call clients when possible, and also email them to discuss the different stages of their case. I know lawyers who just do not have the time, energy, manpower or desire to send regular updates to their clients. As long as the client knows that, and is OK with it, then it is fine. However, I find that an informed client is a happier client and knows that I am actually working and thinking about their case.

Gerry's Video Made The New York Times Blog!

lawmed10@yahoo.com;5163141195@vtext.com (News Author)12961 — Mon, 22 Feb 2010 08:00:00 EST

The other day when I opened up my e-mail, and I saw a Google alert with the title "When Black Ice Strikes, Who is to Blame?" I was confused when I noticed my name was attached to the title and the website URL was from the New York Times online blog. I knew I hadn't created an article or video with that title, so I clicked on the link to the New York Times and was pleasantly surprised.

The writer, J. David Goodman was writing about how black ice affects people in New York City. In the article he mentioned one of the videos I made involving a woman I represented who slipped and fell in a parking lot on black ice. The key question I raised in the video was who is to blame if you slip and fall and suffer injuries on ice or snow? The answer is never clear cut.

There is always the issue of who was responsible for maintaining and cleaning that part of the property. Sometimes it's a property owner, sometimes it's a municipality, and oftentimes it is a snow plow company that is hired to keep the sidewalk or property clear of snow and ice.

I have written extensively about slip and fall cases on snow and ice and those articles appear here on my website and in video tips on my New York personal injury video blog. If you have legal questions about a slip and fall on snow or ice, I encourage you to pick up the phone and call me or e-mail me since I can answer your legal questions. You can reach me at 516-487-8207 or by e-mail at lawmed10@yahoo.com. I welcome your call.

Nyack doctor fined $150,000 by state

lawmed10@yahoo.com;5163141195@vtext.com (News Author)12049 — Sun, 03 Jan 2010 08:00:00 EST

The Lower Hudson Valley news reporter Jane Lerner wrote yesterday that a Nyack radiologist was fined a whopping $150,000 for performing medical tests on patients who didn't need them. Imagine that.

The article reports that Dr. Joseph Anthony Vittorio did not contest the negligence charges against him by State officials.

"State investigators said Vittorio ordered unwarranted videoflouroscopic imaging by failing to establish any legitimate medical need for such a test, according to records. The state Board for Professional Medical Conduct also found that Vittorio "failed to adequately obtain complete histories and perform appropriate physical examination" when treating patients between 2004 and 2005."

Gerry Oginski gives Lecture on Medical Malpractice for Continuing Legal Education Course

lawmed10@yahoo.com;5163141195@vtext.com (News Author)11687 — Mon, 14 Dec 2009 08:00:00 EST

Items discussed:

Statute of limitations for medical malpractice in New York and the six major exceptions.
How to recognize a possible medical malpractice case.
What an experienced attorney needs to look at when evaluating a potential medical malpractice matter in New York
Examples of cases.
Referrals and retainers.

Charleston attorney helps win record medical malpractice case in Tennessee

lawmed10@yahoo.com;5163141195@vtext.com (News Author)9480 — Sat, 18 Jul 2009 08:00:00 EST

By Andrew Clevenger

Staff writer

CHARLESTON, W.Va. -- Earlier this month, thanks in large part to the efforts ofCharleston attorney Jim Lees, a Tennessee jury awarded a young couple almost $24 million in a medical malpractice case.

The verdict, which found a Memphis OB-GYN negligent for failing to order follow-up tests after a patient found a lump in her breast, is believed to be the highest medical malpractice award in that state's history.

But Lees thinks the jurors were thinking about more than money when they settled on $11.85 million for Courtney Hill and $11.75 million for her husband, Robert.

CLICK HERE TO READ THE FULL ARTICLE.

An Open Letter to President Obama on Medical Malpractice in New York

lawmed10@yahoo.com;5163141195@vtext.com (News Author)9019 — Tue, 16 Jun 2009 08:00:00 EST

An Open Letter to President Obama From Gerry Oginski, Esq.
A New York Medical Malpractice Trial Lawyer
June 15, 2009

Dear Mr. President,

The New York Times reported today (Obama Open to Reining in Medical Suits, June 15, 2009) that you were considering reining in medical malpractice lawsuits. Although you have expressed your opinion that you would not consider placing a cap on jury awards, I’d like you to read this letter before you give further thought to this potentially disastrous policy change.

A few years ago I had the privilege of representing a young man, aged 34, who worked as a mortgage broker. One day here in New York he suffered chest pain and went to a local hospital for evaluation. The physicians admitted him to the hospital for a few days to do a cardiac workup. Blood was drawn, a stress test was performed, and a physical examination was done. The patient was given a clean bill of health and told to follow up with a cardiologist after being discharged. Over the next three months this young and energetic young man continued to experience significant chest pain. On each visit to the cardiologist, the doctor performed a physical examination and shrugged off the patient’s complaints of pain as being “stress related.” Shortly after the third visit to the cardiologist, this young man experienced severe crushing pain which radiated down his arm.

Bicycle Accidents In New York City-An experienced NY Negligence Attorney Explains

lawmed10@yahoo.com;5163141195@vtext.com (News Author)8193 — Sat, 18 Apr 2009 08:00:00 EST

Ever been doored? I have.

EVER BEEN CUT OFF BY A CARELESS MOTORIST? I have.

Have you ever been thrown off your bike after a car side-swiped you? Did you wind up in the emergency room? Broken bones? Need surgery? Did you have head trauma? Was your bike totally destroyed? Do you know someone who went over their handlebars and walked away without breaking a bone in their body?

Evaluating liability- Who’s responsible?

Where were you riding (on the street, on the sidewalk, with traffic, against traffic)?

What was the weather like?

What time of day did your accident happen?

What safety devices did you have on (helmet, reflective clothing, blinking butt lights, headlights)?

Describe the road or intersection where the accident happened (one way, two-way, how many lanes of travel in each direction, was there parking on both sides, was it residential or a commercial area)?

Was there anything blocking your view?

Were there any double-parked cars/buses/ trucks?

How fast were you going at the time of the impact?

How fast was the other driver going at the time of impact?

How did the accident happen?

“What happens if I was riding against traffic? Does that affect my liability?” Yes it does. As a bicycle rider you are still obligated to follow the ‘rules of the road’ and to ride responsibly. You cannot disregard red lights with impunity. You cannot blow through a stop sign knowing there’s no oncoming cars or pedestrians. You are required to follow the same traffic signs as cars. If you are hit while riding against traffic, you will be partially responsible for causing your accident.

Remember, since New York is a “No-Fault” state, that means that the drivers’ insurance company will still be obligated to pay for your medical bills. If you own a car and have car insurance, the two insurance companies will hook up and determine, behind the scenes, who is actually responsible for your accident. Depending on the analysis, one insurance company will reimburse the other for the medical expenses they had to pay out on your behalf.

Evaluating damages- What Injuries Did You Suffer as a Result of This Accident?

Read the article to learn more...

Gerry's Videos Watched over 76,000 times

lawmed10@yahoo.com;5163141195@vtext.com (News Author)8151 — Tue, 14 Apr 2009 08:00:00 EST

Gerry's videos on YouTube have been watched over 76,000 times! Amazingly, this doesn't include all the other video sharing sites where my videos are posted- only YouTube.

Practically every caller who comes to me from my website thanks me for creating educational and informative videos to help explain how lawsuits in New York work. I'm glad I can provide useful information that allows a prospective client to obtain useful information before they ever pick up the phone to call.

Twitter, Facebook & Internet Lead to Mistrials

lawmed10@yahoo.com;5163141195@vtext.com (News Author)7784 — Wed, 18 Mar 2009 08:00:00 EST

Well it finally happened. A lengthy federal criminal trial in Florida resulted in a mistrial after a juror admitted to doing Internet research, despite the judge's instructions not to.

Eight weeks worth of trial were wasted because of one juror's failure to follow the court's instructions. There's a shocker.

John Schwartz, a writer for the New York Times, also noted that an Arkansas court is being asked to overturn a $12.6 million judgment claiming that a juror used twitter to send updates during the civil trial.

Also, in Pennsylvania, defense lawyers in a federal corruption trial requested a mistrial because a juror posted updates in the case both on Twitter and Facebook.

In today's day and age of social networking sites and the ability of people to communicate via iPhone, Blackberry, and text messages, it has never been easier for jurors to do their own independent research about the issues involved in a trial. Not only that, but today's communication devices allow anyone to immediately do a Google search on anyone involved in the trial including the lawyers and the judge.

Pretrial instructions by the trial judge in New York routinely advise potential jurors that they are not do any independent research outside of the court. The reason is simple: we don't want jurors basing their decisions on any outside influences that have not been subject to the scrutiny of the court and the attorneys.

When jurors obtain information outside of the courtroom, the attorneys and the judge no longer have an ability to know what information the juror has obtained and how it could possibly influence them when reaching a decision.

In civil cases in New York, where jurors are never sequestered, no one really ever knows whether jurors talk to friends or family members or do their own research. It's only when someone has observed them investigating on their own can this breach of a juror's duty come to light.

Just last week I posted an informative and educational video about this exact topic. The title? "Twitter and Facebook jury instructions in New York." in the video I posed the question: "Should judges be required to give jurors warnings that they are not to use twitter, Facebook, my space and other social networking sites to blog about the case?" Watch the video to find out the answer.

Interestingly, in the cases discussed in the New York Times article, jurors were warned not to do online research. Despite these explicit warnings jurors disregarded them to investigate on their own.

Ah, what's a Twitterer supposed to do while serving jury duty?

California Attorney Achieves $18.4 Million Negligent Supervision Settlement

lawmed10@yahoo.com;5163141195@vtext.com (News Author)7474 — Tue, 24 Feb 2009 08:00:00 EST

Attorney for the plaintiff, Stanley Jacobs of Jacobs, Jacobs & Eisfelder discusses the case of Roque Renteria, 14, a ninth-grade student who became an instant quadriplegic after being dropped to the ground - head first - during horseplay with a senior at the high school track team's afternoon practice. Jacobs claims cursory supervision on the part of a substitute coach who all but ignored what was happening on the field and also speaks to what role a cellphone's video and the boys themselves may have contributed to the case.

Gerry settles Medical Malpractice case for $1 Million Dollars

lawmed10@yahoo.com;5163141195@vtext.com (News Author)7388 — Mon, 16 Feb 2009 08:00:00 EST

Newsday-Great Neck Lawyer turns to Web video marketing

lawmed10@yahoo.com;5163141195@vtext.com (News Author)6753 — Mon, 22 Dec 2008 08:00:00 EST

Newsday profiled Gerry Oginski today, 12/22/08 and described how he uses video to help website viewers understand how the lawsuit process works.

Read the full article- it's a quick read.

The Doctor Will See You Now — Online

lawmed10@yahoo.com;5163141195@vtext.com (News Author)6392 — Thu, 20 Nov 2008 08:00:00 EST

NEW YORK TIMES TECHNOLOGY BLOG
November 19, 2008, 9:08 AM

The Doctor Will See You Now — Online

By CLAIRE CAIN MILLER

If Roy Schoenberg, the start-up’s co-founder and chief executive, has his way, patients will no longer have to wait a month to see a doctor for an urgent sore throat, wait all day for a doctor to return their call or leave work midday and drive a long distance for a routine appointment. Instead, patients will log on to their computers and find themselves face-to-face with physicians over Webcam...

A.I.G. has agreed to provide malpractice insurance to doctors providing online care, and the cost is low enough that most of the health plans are paying for it instead of charging the doctors, Dr. Schoenberg said.

To read the full article go to:
http://bits.blogs.nytimes.com/2008/11/19/the-doctor-will-see-you-now-online/

Doctor liable for lawyer's fatal cancer

lawmed10@yahoo.com;5163141195@vtext.com (News Author)6367 — Tue, 18 Nov 2008 08:00:00 EST

Doctor liable for lawyer’s fatal cancer

Jury’s award to family, estate capped at $3.6M

STEVE LASH

Daily Record Legal Affairs Writer

November 17, 2008 7:23 PM

A Montgomery County Circuit Court jury has returned a $5.8 million medical-malpractice verdict in the death of a 47-year-old lawyer whose untreated mole turned into a skin cancer that spread to his brain.

The award will be reduced to $3.6 million due to Maryland’s cap on non-economic damages in medical-malpractice cases, said plaintiffs’ attorney Patrick Malone. He represents the family and estate of Richard H. Semsker, who died in 2007 and is survived by his wife and two children.

To read the full article go to:
http://www.mddailyrecord.com/article.cfm?id=9091&type=UTTM

Ambulance chasing? Lawyers zero in on metro-east clients

lawmed10@yahoo.com;5163141195@vtext.com (News Author)5812 — Sat, 04 Oct 2008 08:00:00 EST

Here's an article on point about lawyers who solicit accident victims after having obtained their personal information from police accident reports. I've been writing about this for years. If you get a letter from a law firm following an accident, does that letter make you want to rush to the phone to call these unknown, faceless lawyers? Let me ask you a better question: If a man knocks at your door, out of the blue, and tells you he was driving around your neighborhood and noticed that your house needs painting, are you going to let him in to paint your house? You know nothing about this person; you didn't call him; you don't know anything about his credentials or his references. Do you let him in? The same exact question for some lawyer who sends you a letter telling you that he (or she) can answer all of your legal questions and solve all of your legal dilemmas, without knowing a single thing about you.

You are best off to send him on his way. If you really need an attorney, you should be the one doing the research and learning how to select an attorney for your possible case. Some lawyers use the argument that injured victims may not know their rights. That may be true. But ask yourselves another question: Why is a law firm sending me letters and promising to send an investigator to my home the same day I call? Are they that desperate to sign me up? Is my case that valuable to them, without them even knowing what injuries I suffered in my car accident? Here's the article. You decide.

Ambulance chasing? Lawyers zero in on metro-east clients

BY BRIAN BRUEGGEMANN

News-Democrat

Injured in a car accident? Need a lawyer?

Don't worry, you no longer have to watch daytime television, waiting for the lawyers' commercials. The lawyers are already looking for you.

Personal-injury attorneys are getting -- or trying to get -- access to crash reports from police departments across the metro-east. The lawyers' investigators scour the reports, looking for names and addresses of people who have been injured or might have a lawsuit on their hands. The chosen people then get letters and brochures in the mail, in which the lawyers tout their ability to win multimillion-dollar settlements.

Two law firms in particular, both with headquarters in Wisconsin, are blanketing metro-east police departments, trying to get their hands on crash reports. Some of the departments are allowing access, while others are resisting on grounds that letting people see the reports could lead to identity theft, or would be too much of a burden for police.

Some police officials flat-out call the practice ambulance-chasing. But the lawyers say they're trying to inform people of their rights and put them on a level playing field with insurance companies.

"Insurance companies can immediately contact people after an accident, and people should have the option to know what their rights are, if they want to talk to a lawyer," said Michael Hupy of the Milwaukee-based Hupy and Abraham law firm. "Many people still think you have to pay a fee to talk to a personal-injury lawyer."

TO READ THE FULL ARTICLE GO TO:
http://www.bnd.com/news/crime/story/485257.html

Don't look to a doctor for understanding

lawmed10@yahoo.com;5163141195@vtext.com (News Author)5769 — Tue, 23 Sep 2008 08:00:00 EST

Don't look to a doctor for understanding

6:00 PM, September 22, 2008

Doctors provide little in the way of empathy, even when their patients seem to ask for it, according to a study in the Sept. 22 Archives of Internal Medicine. Researchers looked at real doctor/patient encounters between 137 patients and their oncologists or thoracic surgeons from a Veterans Affairs hospital.

Doctors could respond to concrete concerns, such as that a patient was feeling physical pain, or was having trouble getting an appointment. But they largely ignored patients' emotional concerns -- even when that concern was an outcome of surgery, or how long they had left to live.

Here's a sample of an encounter reported in the study when the patient received the diagnosis:

"Patient: But this is kind of overwhelming, you know...I've had anxiety problems before. I go to the [mental health clinic]...

Doctor: Okay."

To read the full blog post go to:
http://latimesblogs.latimes.com/booster_shots/2008/09/dont-look-to-a.html

Staten Island Hospital To Pay $89 Million In Fraud Case

lawmed10@yahoo.com;5163141195@vtext.com (News Author)5699 — Tue, 16 Sep 2008 08:00:00 EST

$9 Million Awarded For Failing To Diagnose Spotted Fever

lawmed10@yahoo.com;5163141195@vtext.com (News Author)5621 — Fri, 05 Sep 2008 08:00:00 EST

Jury Awards Wichita Man $9.8 Million

Posted: Sep 3, 2008 11:04 PM

Updated: Sep 4, 2008 06:34 AM

Michael Schwanke (Wichita, KS)

Kyle Jim was 11-years-old when he went to Via Christi St. Francis Emergency Room in 1996 with fever, rash and headache.

It turns out Kyle had Rocky Mountain spotted fever he contracted from a tick.

Doctors misdiagnosed Kyle and didn't get him the right medication soon enough.

Because of the misdiagnosis, both of Kyle's legs had to be amputated, plus four fingers on one hand, and his index finger on the other. He also lost his hearing, speech and has brain damage.

His attorney says today's verdict is a big win for Kyle and his family and brings awareness to a treatable disease.

"This is a disease that was cured by American medicine and considered to be a triumph of American medicine. Kyle should not be in this condition and Margie (Kyle's mom) shouldn't have to suffer like she has," says attorney John Sheehy who worked with Patterson, Gott & Burk.

Of the $9 million awarded, more than $5 million was for pain and suffering, but Kyle's attorneys say Kansas law caps that amount at $250,000.

To read the full article go to:
http://www.kansascw.com/Global/story.asp?S=8949085

Jury awards $16 Million for False Sex Abuse Claim

lawmed10@yahoo.com;5163141195@vtext.com (News Author)5592 — Sat, 30 Aug 2008 08:00:00 EST

KANSAS CITY, Mo. -- A federal jury awarded a man who was acquitted of molesting his adopted daughter $16 million on Friday. The verdict came in Theodore W. White Jr.’s lawsuit against his ex-wife and a Lee's Summit police officer.

White, who now lives in Aurora, spent more than five years in prison after a jury convicted him in 1999 of molesting the girl between 1995 and 1998. He got a new trial on appeal in 2002 after prosecutors revealed the lead detective, Richard McKinley, was dating White’s wife during the investigation. The ex-wife, Tina, is the mother of the girl and is now married to McKinley.

White’s second trial ended with a hung jury, which was split 11-1 in White’s favor. His acquittal in his third trial came in February 2005, and White left jail and moved to Aurora to be near his family, who supported him and raised money for his defense.

To read the full article go to:
http://www.ky3.com/news/local/27671074.html

Jury awards Cornwall crash victim's family $29.4M

lawmed10@yahoo.com;5163141195@vtext.com (News Author)5521 — Sun, 24 Aug 2008 08:00:00 EST

Jury awards Cornwall crash victim's family $29.4M

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By Oliver Mackson

Times Herald-Record

August 23, 2008

GOSHEN — A state Supreme Court jury awarded $29.4 million in damages Friday to the family of a New Jersey man who died in the aftermath of a 2002 car crash on the state Thruway in Cornwall.

It appears to be the largest civil damage verdict in Orange County's history, said Steven I. Milligram, the president of the Orange County Bar Association. "I've been practicing here since 1986, and I have not heard of anything that high," said Milligram, who's a partner in a Newburgh law firm.

The crash occurred on Jan. 25, 2002, when a freight container on a northbound flatbed trailer smashed into the bottom of the Pleasant Hill Road overpass. Denise Malkin of Franklin Lakes, N.J., swerved her SUV to avoid the wreckage of the exploding container and was broadsided by another tractor-trailer.

The impact left Malkin's husband, Peter, suffering from serious internal injuries and brain damage that eventually claimed his life.

His daughter, who was 15 at the time, also suffered injuries. The Malkins were on their way to Vermont to go skiing.

During the two-week trial before Justice Joseph Alessandro, the jury heard Malkin described as "a spectacular person and spectacular worker," said Robert Kelner, the lawyer who represented Malkin's family. Malkin worked for CSC Corp., a large business technology company.

The damages are against Sebastian Tremblay of Montreal, who was at the wheel of the tractor-trailer and got a ticket for driving an over-height vehicle, as well as two Canadian companies: Transport Expressway Inc., which owned the truck, and Finloc, a leasing company with insurance on the trailer.

"This case was one of the worst human catastrophes that I have seen in my practice. It came out before the jury as to the horrible impact of this accident on all of the members of Peter Malkin's family, and I really do feel that justice was done," Kelner said after the verdict.

Lawyers for the defendants indicated that they'll ask Alessandro to reduce the size of the award.

Wall Street Journal Reports Unacceptable Hospital Infections

lawmed10@yahoo.com;5163141195@vtext.com (News Author)5466 — Fri, 15 Aug 2008 08:00:00 EST

Hospital Infections:
Preventable and Unacceptable

By BETSY MCCAUGHEY
August 14, 2008; Page A11

On July 30, a jury awarded over $2.5 million to James Klotz and his wife Mary in a medical malpractice lawsuit against a heart surgeon, his group practice and St. Anthony's Medical Center in St. Louis, Mo. In 2004 Mr. Klotz, now 69, was rushed to the hospital with a heart attack and a pacemaker was surgically implanted. He developed a drug-resistant staph infection called methicillin-resistant Staphylococcus aureus (MRSA). It was so severe that he underwent 15 additional operations, spent 84 days in the hospital and lost his right leg, part of his left foot, a kidney and most of his hearing.

To read the entire article go to:
http://online.wsj.com/article/SB121867229022038907.html?mod=googlenews_wsj

Stuff of nightmares: Criminal prosecution for medical malpractice

lawmed10@yahoo.com;5163141195@vtext.com (News Author)5445 — Tue, 12 Aug 2008 08:00:00 EST

Google the words "New York Medical Malpractice Lawyer" to see which attorney website comes up #1 on the 1st Page of Google

lawmed10@yahoo.com;5163141195@vtext.com (News Author)5438 — Tue, 12 Aug 2008 08:00:00 EST

Wal-Mart ordered to pay $1 Million to Florida Woman For Injuries

lawmed10@yahoo.com;5163141195@vtext.com (News Author)5260 — Mon, 14 Jul 2008 08:00:00 EST

A Lee County jury said Wal-Mart owes a Fort Myers woman $1 million because its negligence caused her to fall and injure her neck.

Linda Gail Wright, now age 57, slipped at the North Fort Myers Wal-Mart on Oct. 30, 2002 while searching for Halloween candy.

She slipped on a puddle of oil and water that had spilled from rotisserie chickens, which were packaged by Wal-Mart in plastic containers.As a result, Wright, an avid horse trainer and rider, underwent multiple cervical spine surgeries. She now has a permanent titanium cage stabilizing her neck.
Wright owes more than $123,000.00 in medical bills.

Throughout the trial, Wright's attorneys highlighted Wal-Mart's failure to follow many of its own policies and procedures in regards to keeping its floors safe and clean for customers.

$5 Million Awarded in Upstate Barge Accident

lawmed10@yahoo.com;5163141195@vtext.com (News Author)5247 — Sat, 12 Jul 2008 08:00:00 EST

KINGSTON — A state Supreme Court jury in Ulster County this week awarded $5 million to a Milton man who suffered injuries in a barge accident.

George Brown, 56, required three surgeries to address back injuries in the wake of the 2003 accident, which happened while his barge was on Long Island Sound. His lawyer, Elliot Tetenbaum, argued that the barge's owner, Reinauer Transportation Cos. of Staten Island, should be punished for causing Brown's medical predicament.
Reinauer's lawyer argued Brown had pre-existing medical problems.

Queens Jury Awards $19.6 Million For Traumatic Delivery

lawmed10@yahoo.com;5163141195@vtext.com (News Author)5203 — Wed, 02 Jul 2008 08:00:00 EST

A jury has awarded $19.6 million to a couple who sued a hospital for medical malpractice after their baby was brain-damaged at birth and the mother was mutilated in the delivery.

The Maings' lawyer, Thomas Moore, said Daniel Maing was born with cerebral palsy after Dr. Po Ching Fong, a hospital resident, yanked at his head with forceps for 23 minutes until she pulled him through his mother's birth canal.

To read the article go to:

http://www.1010wins.com/Queens-Jury-Gives--19-6M-to-Injured-Baby-s-Parents/2519384

Jury Awards $12 Million in Baby Death Malpractice Suit

lawmed10@yahoo.com;5163141195@vtext.com (News Author)5188 — Mon, 30 Jun 2008 08:00:00 EST

Couple's Baby Died at Tampa General Hospital

By Robin Williams Adams
THE LEDGER

Published: Friday, June 27, 2008 at 9:26 p.m.
Last Modified: Friday, June 27, 2008 at 9:31 p.m.

TAMPA | A jury hearing a civil lawsuit against Tampa General Hospital awarded a $12 million judgment Friday to a Polk County couple whose premature baby died there after having been transferred from Winter Haven Hospital.

Parents Allyson Parham and Robert Gardner contended in their suit that TGH didn't have the appropriate specialists on its staff to deal with their baby's infection. The suit is one of at least nine with similar allegations filed by Tampa lawyer Harold Tripp Sebring.

Amanda Sparks, a Fort Meade resident who is among the other parents in those suits and was in the Tampa courtroom Friday, said the family "cried and cried and cried" when the verdict was announced.

To read the full article go to:

http://www.theledger.com/article/20080627/NEWS/617208967/1410&title=Jury_Awards__12_Million_to_Polk_Couple_in_Malpractice_Suit

Woman wins more than $6 million in medical malpractice case

lawmed10@yahoo.com;5163141195@vtext.com (News Author)5169 — Sat, 28 Jun 2008 08:00:00 EST

Woman wins more than $6 million in medical malpractice case

By Julie Manganis
Staff writer

SALEM — A woman who wanted to stop having to take heart medications so she could have another child, only to end up with permanent heart damage, has won a $4.3 million verdict in a lawsuit against two Boston doctors.

With interest, the total amount will be more than $6 million, said the woman's lawyer, Annette Gonthier-Kiely of Salem. It's one of the larger jury awards in a medical malpractice case in recent history. The jury returned its verdict Wednesday in Suffolk Superior Court.

Amesbury native Denyse Richter was a 39-year-old mother of three who wanted to have a fourth child when, in 2002, she saw Dr. Laurence Epstein, chief of the arrhythmia service at Brigham and Women's Hospital in Boston. Epstein was a noted specialist in a procedure that used radio frequency catheter ablations — using high-frequency radio waves to burn away abnormal cells that were causing the arrhythmia.

To read the entire article go to:

http://www.salemnews.com/punews/local_story_179230035.html

ExxonMobil to pay $1M jury award to woman who chopped off fingers

lawmed10@yahoo.com;5163141195@vtext.com (News Author)5171 — Sat, 28 Jun 2008 08:00:00 EST

ExxonMobil to pay $1M jury award to woman who chopped off fingers

6/26/2008 1:00 PM

By David Yates

Minutes before they began deliberating, plaintiff's attorney Brett Thomas told jurors that if they didn't award his client $3.7 million for inadvertently sticking her hand in a rotary feeder, ExxonMobil would throw a party.

Seemingly, jurors thought the oil company executives could party but on a smaller budget, awarding the plaintiff Vickie Hall $1 million for her self-mutilating injury.

The week long trial of Hall vs. ExxonMobil began June 17 in Judge Gary Sanderson's 60th District Court, and concluded Wednesday, June 25.

When a conveyor began spilling polyethyline pellets onto the floor, workers at ExxonMobil came up with modifications to the machine that solved the problem. But within hours, a contract worker had parts of her fingers sliced off while using the altered equipment.

Jurors were asked to decide whether ExxonMobil negligently failed to place a guard over the rotary blade, or if Hall, who knew a spinning blade hovered only inches away from her hand, was solely responsible for her injury.

To read the rest of the article go to:

http://www.setexasrecord.com/news/213526-exxonmobil-to-pay-1m-jury-award-to-woman-who-chopped-off-fingers

$6 Million Awarded to Paralyzed Woman

lawmed10@yahoo.com;5163141195@vtext.com (News Author)4979 — Sun, 08 Jun 2008 08:00:00 EST

Jury awards $6 million to woman paralyzed after receiving shots at area pain clinic

Posted by Shandra Martinez | The Grand Rapids Press June 08, 2008

GRAND RAPIDS -- A Kent County jury has ordered a West Michigan pain clinic and one if its former doctors to pay $6 million to a woman who became paralyzed after a treatment.

Jurors sided with Betty Geldersma's contention that the doctor was negligent for failing to swab her neck with disinfectant before giving her pain shots.

Geldersma developed an infection in her spine canal that resulted in losing use of her legs and most function of her arms and hands, said her lawyer, Grand Rapids attorney Brad Glazier.

"Medical negligence cases are always very difficult because juries don't want to second-guess a doctor. But we thought this was a case of strong liability and large damages," Glazier said. "This type of infection is not something that happens unless there has been a failure to swab the area."

To read the entire article go to:

http://blog.mlive.com/grpress/2008/06/jury_awards_6_million_to_woman.html

Doc slammed with $20.5 million in damages after lipo death

lawmed10@yahoo.com;5163141195@vtext.com (News Author)4925 — Sat, 31 May 2008 08:00:00 EST

Montco doc, anesthetist found liable after complications claim life of teen

By WILLIAM BENDER
Philadelphia Daily News

benderw@phillynews.com 215-854-5255

AMY FLEDDERMAN's case was never going to be settled out of court, her parents say, because it was never about money.

Daniel and Colleen Fledderman, of Newtown Square, Delaware County, decided in 2001 that the doctor who performed the fatal liposuction surgery on their daughter, an 18-year-old Penn State freshman, must be held accountable for her death.

And they wanted to warn the public about Dr. Richard Glunk, who they say refused to call an ambulance before it was too late to save her life.

Glunk, a board-certified plastic surgeon who has been practicing for 21 years, insists that Fledderman died from a rare and virtually untreatable complication that was out of his control.

Yesterday - exactly seven years after Fledderman walked into Glunk's King of Prussia office to have pockets of fat removed from her chin and stomach - a Philadelphia jury said he was wrong.

And they want him to pay for it.

The jury of nine women and three men deliberated for 14 hours over three days before awarding the Fleddermans $20.5 million in compensatory and punitive damages, finding that Glunk and his nurse anesthetist were responsible for Amy's death.

To read the entire article, go to: http://www.philly.com/philly/news/20080524_A__20_5M_AWARD_IN_LIPO_DEATH.html

$6 Million Awarded In Morphine Overdose Death

lawmed10@yahoo.com;5163141195@vtext.com (News Author)4846 — Fri, 16 May 2008 08:00:00 EST

$6 million awarded to family of woman in care-home death

But settlement will trump the jury's amount

By Rhonda Bodfield

ARIZONA DAILY STAR

Tucson, Arizona | Published: 05.15.2008The family of a woman who died of a morphine overdose was awarded $6 million by a Pima County jury.

The jury determined last month that 90 percent of the award should be paid by the nursing home that cared for 81-year-old Sylvia Culpepper, while 10 percent should be paid by Tucson Medical Center.

To read the rest of the story go to:

http://www.azstarnet.com/allheadlines/239074

$15 Million Awarded to 14 Year Old Car Accident Victim

lawmed10@yahoo.com;5163141195@vtext.com (News Author)4798 — Mon, 12 May 2008 08:00:00 EST

Jury awards $15 million to crash victim

By Jutta Biggerstaff / Hi-Desert Star

Friday, May 9, 2008 11:27 PM PDT

TWENTYNINE PALMS — A jury has awarded $15 million to the family of a 17-year-old Twentynine Palms boy who was severely injured in a 2005 traffic collision in Joshua Tree.

According to Spencer Lucas, attorney for the family, Kyle Tilton, who was 14 at the time of the accident, will require care for the rest of his life, and the award will adequately provide for his future medical needs.

"The family is very pleased," he said. "They are relieved that now they can rest assured that Kyle will have the funds to be able to have the proper medical treatment that he so desperately needs."

The boy was injured Nov. 2, 2005, when a Southern California Gas truck ran a red light at Twentynine Palms Highway and White Feather Road and struck the Tilton vehicle on the passenger side where Kyle was sitting.

To read the rest of the story click on the link:

http://www.hidesertstar.com/articles/2008/05/10/news/news2.txt

NY Lawyer Sued For Not Timely Starting Medical Malpractice Lawsuit

lawmed10@yahoo.com;5163141195@vtext.com (News Author)4795 — Sun, 11 May 2008 08:00:00 EST

Lawyer sued for not filing medical malpractice papers against urologist

BY JOHN MARZULLI

DAILY NEWS STAFF WRITER

Monday, April 21st 2008, 4:00 AM

A Great Neck lawyer is being sued for failing to file court papers in time to sue a urologist who allegedly botched a penile implant procedure.

The suit, filed in Brooklyn Federal Court, accuses Ira Podlofsky, of the law firm Podlofsky, Hill, Orange & Modzelewski, of missing the deadline to file a medical malpractice action against the doctor.

To read the article at the Daily News click on:

http://www.nydailynews.com/ny_local/brooklyn/2008/04/21/2008-04-21_lawyer_sued_for_not_filing_medical_malpr-2.html

Judge finds Georgia's malpractice caps unconstitutional

lawmed10@yahoo.com;5163141195@vtext.com (News Author)4751 — Mon, 05 May 2008 08:00:00 EST

An Atlanta judge says a Georgia law that limits medical malpractice damages in some cases is unfair to the poor and middle class. He says the law needs to be tossed out.

Click on the link below to read the full story at WALB news.

NY Sen. Schneiderman Votes for Us, Against "Harvey's Law"-Watch the Video

lawmed10@yahoo.com;5163141195@vtext.com (News Author)4659 — Fri, 18 Apr 2008 08:00:00 EST

KIA FRANKLIN

NY Sen. Schneiderman Votes for Us, Against "Harvey's Law"

I'm proud of how Senator Eric Schneiderman a) stood by his principles and stood up against the squandering of our public funds. Articulating why a proposed bill to subsidize New York medical malpractice insurance is problematic, he identifies the real medical malpractice crisis—the tiny 4% of doctors who are responsible for a whopping 50% (yes, half) of the medical malpractice payouts. The real problem is the lack of effective professional discipline that allows these doctors to keep practicing. The bill he voted against would exacerbate this problem by forcing the vast and overwhelming majority of good doctors to subsidize malpractice insurance for high risk doctors, spreading the costs of their malpractice across the board.

Below is a clip of him explaining why he is voting against the bill. This is the type of thing we need to see more of: representatives who fully grasp the issues and the interests involved, and are willing to stick to their guns and speak out on behalf of what they believe.

CLICK HERE TO WATCH THE VIDEO:

http://www.youtube.com/watch?v=lL15G-cyQYI

Lawyer held in criminal contempt

lawmed10@yahoo.com;5163141195@vtext.com (News Author)4569 — Thu, 03 Apr 2008 08:00:00 EST

Lawyer held in criminal contempt

By Lawrence Buser (Contact)
Thursday, April 3, 2008

In a medical malpractice case last week, plaintiff's attorney R. Sadler Bailey repeatedly called defense attorneys liars and told the judge her rulings could "set a world record for error."

On Wednesday, Bailey was led from the courtroom in handcuffs after Circuit Court Judge Karen Williams held him in direct criminal contempt of court for those and other "unprofessional and inappropriate" remarks he has made over the two-year course of the case.

"Much time was wasted because Mr. Bailey could not discuss issues in this case in the courteous and controlled manner that is expected of all attorneys and officers of the court," said Williams, who declared a mistrial in the case last Thursday. "He made abusive remarks which the court considers to be discourteous to defense counsel and disrespectful to the judicial process as a whole."

In a courtroom crowded with some two dozen attorneys and deputies, Williams sentenced Bailey to 10 days in jail, but promised to suspend nine days if he participates in the Tennessee Lawyers Assistance Program, which helps lawyers with personal issues.

He was jailed, with bond set at $1,500.

Attorney Jake Erwin, who represented Bailey, argued that Williams should give him time to prepare a defense or to allow Bailey to address the court, but Williams denied the request and read her seven-page finding of fact, conclusions of law and pronouncement of sentence.

"Your honor, my client is not being given due process, and we object to the procedure," Erwin said. "I feel like we're in front of a train that can't be stopped."

Erwin said later he would file an immediate appeal with the Tennessee Court of Criminal Appeals.

Bailey, 50, who has practiced law for more than 30 years, is known for his aggressive style and was once ordered by another judge to take an anger management course.

John Hall of Atlanta, an attorney for the defense in the case before Williams, said he was appalled last week by Bailey's behavior.

"I have never in my life seen a lawyer speak with a judge in that manner, to tell you basically you can't get rulings right, criticize you, argue with you, demean you, belittle you and then turn around and do the same thing to us," Hall said, according to a trial transcript. "It is a strategy to be a bully. ... I get called a liar. You get called a fool, and it's just ridiculous."

Bailey said in an interview last week that he is an honest and ethical attorney who fights passionately and aggressively for his clients. He said that if he sometimes goes too far, it is only because he is trying to stand up for what is right.

The medical malpractice case involving a 9-year-old girl who has been severely handicapped since birth settled out of court after Williams granted the defense motion for a mistrial.

Under the law, criminal contempt includes acts disrespectful of the court or its processes that obstructs the administration of justice.

Direct contempt occurs in the presence of the court, as opposed to constructive contempt, which occurs outside of court and may include failure to abide by court orders.

Lawrence Buser: 529-2385

Staten Island jury holds Ford liable in fatal crash, awards $6.5M

lawmed10@yahoo.com;5163141195@vtext.com (News Author)4538 — Fri, 28 Mar 2008 08:00:00 EST

Staten Island jury holds Ford liable in fatal crash, awards $6.5M

by Staten Island Advance
Thursday March 27, 2008, 8:12 PM

A Staten Island jury today awarded $6.5 million to the widow and estate of a Boy Scout leader from Mariners Harbor who was killed eight years ago when his Ford Explorer went out of control and rolled over on an upstate highway.

Steven Motelson's death was due to a defectively designed roof support system, determined a jury in the home port annex of state Supreme Court. Motelson was 60.

But the panel found Ford was not liable in the death of his 9-year-old grandson and the injuries suffered by two other family members in the horrific July 1, 2000, crash.

Gary Motelson, then 36, Steven Motelson's son, was a front-seat passenger. Gary Motelson's 9-year-old and 5-year-old sons were rear-seat passengers and were ejected along with a third rear-seat occupant. The jury said the two boys were not wearing seat belts.

Minutes after the verdict was announced, Elissa Motelson, the boys' mother, wailed in the courthouse lobby.

"They killed my son," she sobbed, as family members tried to console her.

Michael Motelson, another son of Steven Motelson and the administrator of his estate, shook his head after the verdict was read.

Outside court, he said the jury had vindicated his father, although he expressed disappointment at Ford's being found not responsible for the other death and injuries. The panel said Steven Motelson had not driven the SUV negligently.

"For the last eight years, Ford has been saying my father was responsible for the accident and for killing my nephew and himself," Michael Motelson said. "The jury said loud and clear that he's not responsible. They acknowledged this was the worst roof on the road today."

It was not immediately clear whether the verdict will be appealed.

Robert Cecala, a Ford lawyer, declined comment outside court.

Jurors were not immediately available for comment afterward.

The panel reached a verdict hours after Justice Joseph J. Maltese charged it at the end of the four-week trial. Both sides had offered reams of complex documents, data, experts' tests and videos into evidence.

The Motelsons sued Ford Motor Company, the SUV manufacturer; and Ford Motor Credit Company, the SUV owner and lessor.

Steven Motelson lost control of his 1998 Explorer while returning home from a Boy Scout trip upstate. The SUV flipped over nearly four times on Route 17 in Goshen, killing Motelson, fatally injuring his 9-year-old grandson and injuring the three other occupants.

The crash, about 75 miles northwest of Staten Island, occurred around 3:35 p.m. as the group returned from a Scouting camp-o-ree at Ten Mile River Scout Camps in Narrowsburg, N.Y.

The plaintiffs contended the SUV suddenly sped up and lost its brakes as Steven Motelson wrestled to regain control.

In his closing argument yesterday, J. Edward Bell III, a lawyer for the Motelsons, accused Ford of seeking profit over safety.

Steven Motelson was killed, he said, when the driver's side roof shredded on the first roll, exposing his head. To save pennies, Ford had shortened a metal support rod in the door that bolstered the roof, he charged.

Bell also said the SUV's speed-control cable and rear seat-belt system failed. Each defect could have been remedied with minor additions or enhancements that would have cost Ford a dollar or two. Ford, he said, was aware of those problems.

In his closing argument, Cecala, the Ford lawyer, said Steven Motelson's actions had set the deadly chain of events in motion.

Motelson, he alleged, wasn't paying attention, drifted off the road, and sent the vehicle careening when he overcompensated on the steering wheel trying to regain control.

He further contended that company tests and evidence showed the speed-control cable did not jam open; in that event, the SUV would have spontaneously accelerated. Additional tests showed the three rear-seat passengers could not have been wearing seat belts -- although two of the victims said they all were.

Cecala said the Explorer's construction exceeded federal standards and could not have prevented the deaths and injuries.

Jurors, however, found Ford negligent in the design, inspection and testing of the roof support system.

The panel awarded $5 million in economic loss to Enid Motelson, Steven Motelson's widow, and $1.5 million in damages to his estate.

"Clearly, [this is] a resounding verdict against Ford in regard to their weak roof structure," Bell, the plaintiffs' lawyer said outside court. "It killed Mr. Motelson and it will kill others if something isn't done about it."

-- Contributed by Frank Donnelly

6-Year-Old Dies Following Tragic Pool Accident

lawmed10@yahoo.com;5163141195@vtext.com (News Author)4494 — Fri, 21 Mar 2008 08:00:00 EST

The young 6-year-old girl who was badly injured in a pool accident last June has died. Abigail Taylor passed away Thursday night at the Nebraska Medical Center in Omaha.

Abigail was injured back in June 29 when she was sitting in a wading pool in St. Louis.

Reports are that her parents were with her when she died.

The powerful suction of the drain ripped out part of her intestinal tract in an absolutely tragic accident.

The six-year-old has been in the hospital since December. She had to receive organ transplants to try and be cured of her medical troubles.

She ran into many complications though, as she had to go through several different surgical procedures. She also had to be fed through an intravenous tube.

In the beginning of March, she got the worst news yet when she had to begin chemotherapy. She developed cancer due to the organ transplants.

This story has sparked nationwide interest as many pushed for new safety standards to prevent further accidents.

In December, Congress approved legislation to ban drain covers that do not meet certain safety standards.

Minnesota lawmakers are also looking into new pool safety regulations on the state level.

It is a shame that something terrible has to happen before action is taken and safety regulations are put in place.

$21 Million Awarded in Queens for Car Crash Death

lawmed10@yahoo.com;5163141195@vtext.com (News Author)4482 — Thu, 20 Mar 2008 08:00:00 EST

$21M FOR GIRL OF TRAGIC CRASH DAD

By IKIMULISA LIVINGSTON

March 13, 2008 -- A Queens jury awarded a 10-year-old girl more than $21 million after her father was killed in a fiery car crash caused by a doctor nearly five years ago.

Antionette Hawthorne-Stanton was barely 5 years old when her father, James Stanton, was killed in a car crash after being hit by minivan driven by a physician from Teaneck, NJ.

Stanton and his brother were both burned to death as flames engulfed the car.

"She was devastated. There was no more communication, no more hugs and kisses," said the girl's mother, Sheila Hawthorne. "She enjoyed being in his presence, and all that came to a screeching halt."

The Queens Supreme Court jury awarded Antionette $21.35 million - $10 million alone for pain and suffering - after finding Dr. Howard Antosofsky and the company from which he leased the minivan responsible for the crash.

The girl's lawyer, Evan Torgan, said Antionette got to hear from witnesses how much of a doting father Stanton was. "It was important for her to see who her father was, how much he loved her," he said. "And it was important for her to know he didn't abandon her."

$19 Million Awarded in Brain Damaged Baby Case

lawmed10@yahoo.com;5163141195@vtext.com (News Author)4478 — Wed, 19 Mar 2008 08:00:00 EST

Monmouth jury awards $19 million to woman in malpractice case

(Published March 18, 2008)

FREEHOLD, N.J. — A jury has awarded more than $19 million to a Freehold woman whose 10-year-old son was born with severe brain damage and cerebral palsy.

A judge could reduce Monday's award since the jury found there was a chance the child would have suffered some harm anyway.

Bonnie Kowalski claimed that Dr. Aravind Palav didn't immediately notice her abdominal bleeding when she arrived at Riverview Medical Center in Red Bank, and didn't act promptly to deliver the baby by C-section.

Palav's attorney says he expects to appeal the verdict.

Surgery Death Case to Proceed to Trial

lawmed10@yahoo.com;5163141195@vtext.com (News Author)4414 — Thu, 06 Mar 2008 08:00:00 EST

Fall Date for Surgery Death Case

March 5, 2008

By April Drew

A DATE of September 15 has been named for the trial of New York cosmetic surgeon Dr. Michael Evan Sachs, the doctor who carried out a face-lift on a Limerick woman in 2005 who died three days after the operation.

Kay Cregan, 42, from Croom, Co. Limerick, died after a face-lift operation performed by Sachs at his Manhattan clinic on March 14, 2005. Shortly after the operation Cregan suffered a heart attack in a recovery room of Sachs' Manhattan clinic and died on St. Patrick's Day after she was transferred to nearby St. Luke's Roosevelt Hospital.

Cregan paid the doctor $32,000 for her operation, which included accommodation after the procedure.

It also emerged this week that Sachs has been struck off the register of physicians in New York. He received word of the rebuke from the New York State Board for Professional Medical Misconduct, which had investigated his role in the handling of four patients, including Cregan, in 2005.

Sachs' lawyer, Jay Butterman, argued that Cregan suffered from an undiagnosed irregular heartbeat. However, New York's Medical Examiner ruled in May 2005 that Cregan's operation was partly to blame for her death, and said she had no pre-existing condition that could have played a role in her death.

Cregan, an employee in Limerick City Council at the time, traveled to New York for her operation after reading a report in an Irish newspaper about a woman from Carlow who attended Sachs' clinic for a facelift.

Cregan, who is survived by her husband Liam and two sons, Eoghan and Brian, kept the trip a secret from her husband so she could surprise him with her new procedure.

The Cregan family, who are being represented by medical malpractice specialist Thomas Moore, who hails from Waterford, met with Sachs lawyers to set a trial start date for Monday, September 15. In the lawsuit Cregan's husband blames Sachs of negligence, carelessness and gross indifference. The suit also names Dr. Madhavrao Subbarao, an anesthesiologist, and claims that both doctors failed Cregan during her operation.

Sachs, nicknamed "Dr. Botch" because of his involvement in 30 malpractice cases in a 10-year period, recently sold his New York townhouse for $24 million.

In the coming months a judge will be appointed and a jury of six will be chosen to hear the case. Depending on the verdict, the jury will be asked about monetary damages for the loss, with no limit.

Damages will be decided based on the loss of a wife and mother of two young children, in addition to the pain and suffering Cregan suffered before her death.

Jury awards $325K after funeral home lost remains

lawmed10@yahoo.com;5163141195@vtext.com (News Author)4393 — Wed, 05 Mar 2008 08:00:00 EST

Jury awards $325K after funeral home lost remains

(David Kamerman/Globe Staff)

Therese Bellissimo Benedict and Robert Benedict held hands after the verdict today in Suffolk Superior Court.

By John R. Ellement, Globe Staff

A couple was awarded $325,000 today by a jury that ruled that they suffered emotional distress when the remains of their stillborn son were lost and possibly cremated by a Boston funeral home.

The civil verdict in Suffolk Superior Court came after 1 1/2 days of deliberation and made the couple very happy. Robert and Therese Bellissimo Benedict said they suffered needlessly because of a mistake made by a local funeral home that lost the personal touch when it was absorbed by a national chain.

The jury found that the funeral home was negligent and caused Robert emotional distress and awarded him $75,000. The jury awarded Therese $250,000 after concluding she was subjected to both negligent actions and intentional infliction of emotional harm.

Therese Bellissimo Benedict was pregnant with twins in 2003 when one fetus -- a boy the couple named Lourdes -- was stillborn. The couple hired JS Waterman & Sons, which was once family owned but had been purchased by Service Corporation International, based in Texas. The funeral home lost Lourdes's remains and ultimately concluded he may have been accidentally cremated with an elderly woman.

The couple said they each suffer equally and will suffer their loss for the rest of their lives. "It was never about the money,' Robert Benedict said. "It was about SCI and their treatment of us.'

Gordon T. Walker, the couple's Boston lawyer, said the ultimate cost to Service Corporation International is not yet final. He said the couple still has a pending claim that the company violated the state's consumer protection law, which could lead to a tripling of the damages, plus attorney's fees.

Kim Pineau, an official with the company who was involved in trying to discover what happened to Lourdes Benedict, spoke briefly following the verdict. "It was a very unfortunate incident and we have been, and remain, very sorry,' she said. "Out of respect for the family, I will have no further comment.'

Jury finds surgeon negligent, awards $14.5 in malpractice case

lawmed10@yahoo.com;5163141195@vtext.com (News Author)4390 — Tue, 04 Mar 2008 08:00:00 EST

Jury finds surgeon negligent, awards $14.5 in malpractice case

The Associated Press

LOWELL, Mass.— A jury has awarded $14.5 million to the family of a 30-year-old Chelmsford woman who died one day after undergoing thyroid surgery at Brockton Hospital.

The lawyer for Shannyn MacPherson's husband said she developed uncontrolled bleeding that resulted from air trapped in her abdomen.

Attorney Robert Higgins said the Superior Court jury found the lead surgeon, Dr. John Ambrosino, negligent and responsible for MacPherson's death in May 2001. A second surgeon, Dr. Julie White, was also found negligent, but not responsible for the death.

Abrosino's lawyer, Martin Foster, would not comment on Monday's verdict or say whether his client planned to appeal.

Higgins said the verdict was "bittersweet" for MacPherson's husband, Brad.

The award includes about $5 million in interest.

Urology: Missed Diagnoses May Be Unavoidable

lawmed10@yahoo.com;5163141195@vtext.com (News Author)4339 — Wed, 27 Feb 2008 08:00:00 EST

To cut their malpractice risks, some urologists have been limiting their practices or referring their most difficult cases. Now, a new study finds those strategies are useless against one of the most common risks: missed or delayed diagnoses. A survey of 469 successful lawsuits against New Yorkurologists found 15% were based on alleged missed diagnoses. Many of those claims had nothing to do with urology.

"Historically, urologists have associated high malpractice risk with complex cases and in-hospital care," the researchers wrote in The Journal of Urology(2007;178:2537-2539). "However, evolving data indicate that office-based urologists may incur significant diagnostic malpractice risk."

Led by William J. Badger, MD, a team from Albany Medical College looked at records spanning 20 years from Medical Liability Mutual Insurance Company of New York State. The largest malpractice underwriter in New York, it insures about 400 of the state's 1,100 urologists.

To read the rest of the article go to:

http://www.renalandurologynews.com/Missed-Diagnoses-May-Pose-Unavoidable-Risk/article/107251/

California Court Orders Health Insurer to Pay $9 Million For Cancelling Policy

lawmed10@yahoo.com;5163141195@vtext.com (News Author)4327 — Mon, 25 Feb 2008 08:00:00 EST

When Patsy Bates began her battle against breast cancer, she didn't expect she would also have to battle her health insurer too.

Bates faced the bureaucratic diagnosis of rescission: when a health insurer retroactively cancels your insurance policy. But in a precedent-setting decision announced last week, a California judge ordered Bates' insurer to pay her more than $9 million for dropping her policy after it learned she had cancer.

When Bates, a 52-year-old hairdresser, found out she had breast cancer in 2004 she thought she had reliable health insurance.

But her insurer, Health Net, dropped her coverage while she was in the middle of breast cancer chemotherapy, leaving Bates with $129,000 dollars in unpaid medical bills and no choice but to abandon her lifesaving treatment.

Bates said she had undergone surgery to remove a tumor and had received her first two chemotherapy treatments when doctors stopped treating her because her bills were going unpaid.

"I was devastated. I didn't know what was going to happen," Bates said. "It's boggling that someone can do that to you."

"I have breast cancer and I need my insurance and these people walk away from me," she said. "I was traumatized. Who wouldn't be?"

Angry and sick, Bates sued her insurer. And now, four years later, she has won a significant victory.

Not only did she receive a $9 million punitive damages settlement against Health Net Inc., one of the largest for-profit insurers in California, but the company also announced Friday that it had stopped the controversial practice of canceling sick policyholders' policies.

In the landmark ruling, the outraged judge wrote: "She had valid health insurance ... when the rug was pulled from underneath, and that occurred at a time when she is diagnosed with breast cancer, one of the leading causes of death for women."

William Shernoff, Bates' attorney, said, "People count on health insurance when they get sick and if the rug is pulled from them, that's probably just as bad as not having insurance at all."

Health Net said Bates had made mistakes on her insurance application, citing a weight discrepancy and a heart condition. But after the ruling Health Net, which made more than $2 billion in gross profit last year, said in a statement that it planned to immediately stop rescinding policies without an independent third-party review.

"They have to change because people are dying," Bates said. "It's just not my face here, there are a bunch of people that have so much hurt over this."

There is also much money at stake for insurance companies. During arbitration, Bates' attorneys produced internal company documents that showed that Health Net was rewarding employees with bonuses based on the number of cancellations they got.

Employees were asked to meet cancellation quotas and were also rewarded based on the amount of money they saved the company. Bates' lawyers argued that Health Net had saved more than $35 million by rescinding policyholders between 2002 and 2006.

Bates completed her cancer treatment through a state-funded program.

UK Home owner sued for junk mail injury

lawmed10@yahoo.com;5163141195@vtext.com (News Author)4319 — Sun, 24 Feb 2008 08:00:00 EST

Home owner sued for junk mail injury

By Richard Alleyne

Last Updated: 2:03am GMT 22/02/2008

A home owner is being threatened with legal action after a woman claimed she trapped her hand in his letterbox while delivering unwanted junk mail.

Joy Goodman, a cake decorator, is seeking damages for personal injury and loss of earnings, claiming the top of her right index finger was severed when she delivered the mail. She claims she needs compensation because she is now unable to carry out her intricate job.

But the home owner vowed to fight the case. Paul O'Brien, 44, a self-employed engineer from Leeds, said: "When I received a solicitor's letter I thought someone was having a laugh. I actually told them they had sent it early. April Fool's Day is still six weeks away.

"I just cannot believe someone who came on to my property uninvited, to put junk mail through my door that I didn't want, can now sue me because they hurt themselves."

He added: "There is nothing wrong with the letterbox. I haven't altered it or done anything to it. It's just like every other letterbox on this estate."

Mrs Goodman declined to comment, saying only: "It is in the hands of my solicitors."

A law expert said that householders had limited duties of care to people who went on to their property such as delivery people or postmen.

These duties of care include not having such things as bare electricity cables sticking out, but were not likely to extend to a letterbox providing it was a standard model.

Heating Pad Injury in NY - Medical Malpractice Or Negligence?

lawmed10@yahoo.com;5163141195@vtext.com (News Author)4323 — Sun, 24 Feb 2008 08:00:00 EST

Heating Pad - Medical Malpractice Or Negligence?

You go to the doctor, or maybe a physical therapist, and they apply a heating pad for treatment. If you are burned by the heating pad was there medical malpractice or simple negligence? That was the issue last week in Morales v Carcione, 2008 NY Slip Op 01513 before the Second Department.

The plaintiff claimed that she sustained burns from heating pads applied to her legs by technicians at the defendant Central Westchester Neuromuscular Care, P.C. where she was receiving treatment for neuropathy and other neuromuscular ailments. The defendant moved to dismiss the action because it was not commenced within the two years and six months medical malpractice statute of limitations of CPLR 214-a. The Supreme Court found that the plaintiff's action was timely because it was commenced with the the three-year statute of limitations period applicable to actions to recover damages for personal injuries CPLR 214(5).

However, the Second Department reversed finding that the action sounded in medical malpractice, and thus, should have been dismissed as untimely. The Court explained:

Conduct may be deemed malpractice, rather than negligence, when it constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician. When the duty arises from the physician-patient relationship or is substantially related to medical treatment, the breach gives rise to an action sounding in medical malpractice, not simple negligence (citations and quotes omitted).

Here, the incident which resulted in the alleged injuries to the plaintiff arose out of the physician-patient relationship and was substantially related to the rendering of medical treatment to combat her neuropathy and other neuromuscular ailments. Accordingly * * * as it sounds in medical malpractice, [the action] * * * is therefore subject to the limitations period of two years and six months.

New York Legal Update

An Online Resource For Developments In New York Law

NY Plastic Surgery Death Case Going to Trial

lawmed10@yahoo.com;5163141195@vtext.com (News Author)4307 — Thu, 21 Feb 2008 08:00:00 EST

LIAM Cregan, 46, the husband of an Irish woman who died after a face-lift in New York in 2005, has heard that his multimillion-dollar lawsuit against Dr. Michael Evan Sachs will take a step forward this week with a conference to set a trail date on Thursday, February 21.

Kay Cregan, 42, from Croom, Co. Limerick, died after a botched operation performed by Sachs at his Manhattan clinic on March 14, 2005. Shortly after the operation Cregan collapsed in a recovery room of Sachs' Manhattan clinic and died on St. Patrick's Day after she was transferred to nearby St. Luke's Roosevelt Hospital.

Sachs has New York State's worst malpractice record, having been involved in more than 30 malpractice cases since 1995. Agnes Kelly, sister of the late Cregan, told the press that she didn't believe her sister would have chosen Sachs had she known how often he had been sued in the past.

Cregan, a senior executive with Limerick City Council, paid Sachs $32,000 for her operation.

Thomas Moore, an Irish American attorney who specializes in medical malpractice cases, is suing on behalf of Liam Cregan and his two young sons. Moore recently told the press, "We will be looking for quite a bit of money. We are talking in the millions of dollars at least. Parental loss to children is regarded in cases such as this as a very significant matter."

In the lawsuit Cregan's husband accused Sachs of negligence, carelessness and gross indifference. The suit also names Dr. Madhavrao Subbarao, an anesthesiologist, and claims that both doctors failed Cregan at every step of her procedure.

In 2005 Cregan had secretly arranged to travel to New York for a facelift after reading a report in an Irish Sunday newspaper about a Carlow woman who had attended Sachs' clinic. Cregan had wanted to surprise her husband with the surgery, agreeing to pay Sachs $32,000 for the operation, which included her accommodation after the operation to recuperate.

Cregan underwent the operation on March 14, 2005, but suffered a heart attack while in a recovery room at Sachs's clinic. Sachs has denied Cregan's death was his fault. His lawyer, Jay Butterman, said she suffered from an undiagnosed irregular heartbeat.

However, New York's medical examiner ruled in May 2005 that Cregan's operation was partly to blame for her death, and said she had no pre-existing condition that could have played a role in her death.

A spokesperson for the medical examiner said Cregan had died from "therapeutic complications" and that the surgery to her face, nose, lips and eyebrows was "a contributory factor in her death." Butterman disputed these findings and claimed Sachs had operated "perfectly."

Before her death Cregan had lived in Croom with her husband, a farmer and plumber, and their two sons, Brian, who was eight at the time of her death, and Eoghan, who was six.

After the conference to set a trial date gets under way on February 21, a judge will be appointed and a jury of six will decide the case. Depending on the verdict, the jury will be asked about monetary damages for the loss, with no upward limit.

It's understood the damages will be assessed based on the loss of a wife and mother of two young children, coupled with the pain and suffering Cregan endured before her death.

Fla. surgeon stripped of license for lying during Michigan trial

lawmed10@yahoo.com;5163141195@vtext.com (News Author)4257 — Wed, 13 Feb 2008 08:00:00 EST

Fla. surgeon stripped of license for lying during Michigan trial

February 12, 2008

By DAVID ASHENFELTER

FREE PRESS STAFF WRITER

A Florida vascular surgeon was stripped of his medical license today and sentenced to 30 days in a federal halfway house and one year of probation for lying while giving testimony as an expert witness in 2002.

Alex Zakharia, 68, a Miami-Dade County heart surgeon, received the sentence from U.S. District Judge Paul Borman.

Zakharia pleaded guilty last year to misdemeanor contempt of court after falsely testifying in a medical malpractice case involving the Veterans Administration in Ann Arbor. He testified that he had performed more than 100 coronary artery heart bypass grafts since 1995, which was untrue, authorities said.

The U.S. Attorney's Office in Detroit represented the Veterans Administration in the medical malpractice case.

Connecticut Jury awards $38.5M in obstetrical malpractice case

lawmed10@yahoo.com;5163141195@vtext.com (News Author)4219 — Sun, 10 Feb 2008 08:00:00 EST

A jury ruled a city obstetrician must pay $38.5 million to the family of a baby born with cerebral palsy in what may be the state's largest medical malpractice award ever.

Click here for full article:

http://www.stamfordadvocate.com/news/local/scn-sa-malpractice2feb09,0,4678606.story

Good News For Malpractice Lawyers, Wal-Mart Opens More Clinics

lawmed10@yahoo.com;5163141195@vtext.com (News Author)4200 — Thu, 07 Feb 2008 08:00:00 EST

Good News For Malpractice Lawyers, Wal-Mart (WMT) Opens More Clinics

Wal-Mart (NYSE: WMT) likes the medical clinic business. Many of its customers do not have health insurance. It can deliver these people inexpensive care using nurse practitioners instead of doctors. Offering generic drugs also cuts costs to patients.

Wal-Mart plans to expand its clinic business into several hundred more stores. It will co-brand the operations with local hospitals and medical groups. That will most likely give the locations a greater air of legitimacy.

According to The New York Times "We have learned that people are willing to receive their health care from the front of a store or the back of a drugstore," said Dr. John Agwunobi, a medical doctor who is a Wal-Mart senior vice president. The doctor must not be a trial lawyer.

Of course, it is fantastic that Wal-Mart can save people money on medical care, but such a large company makes a very nice target for people who feel that their visit was inadequate and that they were somehow harmed in the process of their time spent at the closest "super center".

Wal-Mart will serve tens of thousands of patients. It will need good malpractice insurance.

Douglas A. McIntyre

Ford must pay $6.5M jury award

lawmed10@yahoo.com;5163141195@vtext.com (News Author)4188 — Tue, 05 Feb 2008 08:00:00 EST

Ford must pay $6.5M jury award

Texas jurors decide automaker owes victim, 41, for injuries sustained in 2004 Explorer rollover.

Margaret Cronin Fisk / Bloomberg News

Ford Motor Co., the second-largest U.S. automaker, must pay $6.5 million to a 41-year-old man left brain-damaged in a 2004 rollover accident involving an Explorer sport-utility vehicle, a Texas jury said.

Ruben Zamora lost control of the 1993 Explorer when a tire lost its tread and was ejected from the vehicle as it rolled over.

His mother, suing on his behalf, said the tread separation set off vibrations in the rear of the vehicle that made it skate sideways because of a defect in the SUV's suspension.

"The tires get to bouncing severely and the back end swings around," causing the driver to lose control of the vehicle, Zamora's attorney, Bill Neumann, said Monday in a phone interview.

"They've known about the problem for years and failed to fix it."

A state court jury in Cotulla, Texas, found the Explorer defective and awarded $10 million on Feb. 1.

The jury found that Zamora was 35 percent responsible for the accident, leaving a verdict of $6.5 million against Ford, Neumann said.

Ford will appeal, a Ford spokeswoman, Marcey Evans, said Monday in a phone interview.

"It is unfair to blame Ford for this tragic accident or for Mr. Zamora's injuries, which were caused by not being belted properly while losing control of his vehicle," Evans said.

"We think the verdict isn't supported by the evidence," Evans said.

The verdict will be further reduced "substantially" because of a prior settlement with a co-defendant, Evans said.

Lifetime care needed for victim

Zamora, a disabled oil field worker before the accident, was injured in August 2004 while driving in south Texas, near San Antonio. Zamora, who sustained severe brain damage, "will need someone to take care of him for the rest of his life," Neumann said.

Zamora had been using the shoulder portion of the seat belt, which had been modified by a previous owner of the Explorer, his lawyer said.

Ford sold 137,817 Explorers last year, a 23 percent decline from 2006. Ford sold more than 400,000 Explorers in 2002.

Honda Motor Co.'s smaller CR-V surpassed Explorer in 2007 as the top-selling sport utility vehicle.

Jury awards $22 million to family

lawmed10@yahoo.com;5163141195@vtext.com (News Author)4093 — Thu, 24 Jan 2008 08:00:00 EST

Jury awards $22 million to family

Issue date: 1/21/08 Section: News Briefs

A jury has awarded $22 million to the family of a woman who died from complications that arose during childbirth at an Evanston hospital.

The jury agreed with the family of Rachelle Bentivenga that in 2003, the staff of St. Francis Hospital failed to properly treat her high blood pressure during labor and that she suffered a massive brain hemorrhage as a result.

Bentivenga was placed on a ventilator and died four days later. Her son, Richard, was delivered by Caesarean section and survived.

The verdict was awarded Tuesday against St. Francis Hospital and Dr. Calvin Monroe.

Aiju Thevatheril, an attorney for the defendants, said Wednesday the hospital was disappointed with the verdict and would pursue an appeal. Thevatheril declined to comment further on the trial.

California Court Overturns $1.5M Spanking Verdict

lawmed10@yahoo.com;5163141195@vtext.com (News Author)4094 — Thu, 24 Jan 2008 08:00:00 EST

Court Overturns $1.5M Spanking Verdict

Jan 16, 2008

FRESNO, Calif. (AP) — An appeals court overturned a $1.5 million verdict awarded to a woman who was spanked in front of co-workers in what her employer called a camaraderie-building exercise.

A jury in 2006 had ruled that Janet Orlando had suffered sexual harassment and sexual battery when she was paddled at home security company Alarm One Inc. The jury punished the company with a $1 million punitive damage award.

But on Monday, a three-judge panel of the state Court of Appeal overturned that verdict, ruling that the jury had been given improper instructions. In particular, the jury wasn't instructed that one vital element of proving that sexual harassment occurred is showing the action was directed at a woman because of her gender.

Lawyers for Alarm One, an Anaheim-based, 300-employee company, said that the spankings were not discriminatory because they were given to both male and female workers and that Orlando and others willingly took part.

Orlando's attorney, Nicholas "Butch" Wagner, vowed to take the case to trial again.

"We may get more this time," Wagner said.

But K. Poncho Baker, the attorney who defended the company at trial in 2006, said that because the company has since gone into bankruptcy and its insurance was exhausted battling Orlando's claim and settling with three other co-workers, there may be little left to recover.

"Good luck retrying this one," Baker said.

Orlando quit the company in 2004, less than a year after she was hired at the Fresno office, saying she was humiliated during the company's team-building practices.

Employees were paddled with rival companies' yard signs as part of a contest that pitted sales teams against one another. The winners poked fun at the losers, throwing pies at them, feeding them baby food, making them wear diapers and swatting their buttocks.

The company has since abandoned the practice.

College students awarded $18 million from flash fire

lawmed10@yahoo.com;5163141195@vtext.com (News Author)4071 — Mon, 21 Jan 2008 08:00:00 EST

Local students awarded $18 million

Dick Russ

Created: 1/17/2008 6:22:24 PM

Updated:1/18/2008 3:37:32 PM

Two students of Western Reserve Academy, who were burned in a chemistry class fire, have won an $18.9 million settlement.

Calais Weber and Celia Chen were among eight people injured in the flash fire that happened during a chemistry demonstration on January 23, 2006.

Weber was burned over 46% of her body, spent 70 days in the hospital, and required numerous skin grafts. Chen was burned over 18% of her body. They, four other students, a teacher, and the teacher's 10-year-old son were injured when a common chemistry demonstration went erupted into a flash fire.

Paul Perantinides, the lawyer for students and their families, said part of the settlement will be spent to create a program that will prevent similar accidents.

Weber and her family had agreed to a settlement in the summer of 2007 but the terms were not released until the outcome of the Chen case, which had been scheduled to go to trial in December, 2007.

Russell Morrison, director of marketing and public relations of WRA, confirmed the terms of the settlements and issued this statement:

"We deeply regret this incident and the injury it caused those who were present that day. We hope these settlements will allow the individuals involved to continue to move on with their lives."

"We also hope it will help bring closure for our entire school community as well as for the students and their families."

"It is important for the public to know that these settlements are covered by our insurance carrier. We believe that the agreements we've reached are fair. However, it will not have an impact on our programs or on WRA's finances going forward."

Calais Weber and Celia Chen are both now 17 years old and attend college.

Jury awards plaintiff $250 for mental anguish in injury case

lawmed10@yahoo.com;5163141195@vtext.com (News Author)4072 — Mon, 21 Jan 2008 08:00:00 EST

Jury awards plaintiff $250 for mental anguish in injury case

1/17/2008 1:55 PM

By David Yates

Glynn Fowler told jurors he would need at least $50,000 to pay for his neck surgery, a condition he claims was caused by a 2002 automobile collision. He was awarded $4,750 as the personal injury trial in Judge Milton Shuffield's 136th District Court concluded on Wednesday, Jan. 16. His award for mental anguish was $250.

Fowler sued Virginia Olsberg, an elderly woman, in November 2005 claiming the auto collision she negligently caused three years earlier worsened his neck condition.

After the accident, testimony showed that Olsberg was ticketed for failing to control her vehicle.

The jury agreed that she negligently caused the accident and awarded Fowler $4,500 in past medical expenses and $250 for past mental anguish damages.

Fowler was asking for nearly $12,000 in past medical expenses and $50,000 for future medical expenses, plus court costs and attorney's fees.

During the trial, Fowler testified that the pain in his neck kept him from holding down a job and that his 12-year-old daughter was forced to do most of the household chores.

He also testified that immediately after the accident, Olsberg was yelling at him and accusing him of faking an injury.

On the other hand, Olsberg testified that it was Fowler who was yelling at her at the accident scene.

Fowler was represented by the Moore Landrey law firm.

Case No. E176-082

$22 mil. award in childbirth death

lawmed10@yahoo.com;5163141195@vtext.com (News Author)4073 — Mon, 21 Jan 2008 08:00:00 EST

$22 mil. award in childbirth death

January 17, 2008

A Cook County jury Tuesday awarded $22 million to the family of a woman who died in 2003 after giving birth in an emergency Caesarean section.

Attorneys said a doctor and nurse at St. Francis Hospital in Evanston failed to properly treat Rachelle Bentivenga's high blood pressure, a release said. Her son was successfully delivered, but Bentivenga, 34, died four days later.

Jury awards widow $3 million in wrongful death suit

lawmed10@yahoo.com;5163141195@vtext.com (News Author)4074 — Mon, 21 Jan 2008 08:00:00 EST

Portage County jury awards widow $3 million in wrongful death suit

By Phil Trexler Beacon Journal staff writer

POSTED: 03:56 p.m. EST, Jan 16, 2008

When James Hizer found himself laid off after 27 years, he did what a lot of middle-aged men have to do: He took a low-paying, blue-collar job to get by.

And after just five weeks of working for about $12 an hour at a Streetsboro steel-cutting company, Hizer died.

While working alone on the midnight shift, the 58-year-old was trapped and suffocated inside one of the machines he was paid to run.

This week, a Portage County jury hearing a wrongful death lawsuit awarded his wife $2 million in compensatory damages and $1 million in punitive damages.

Mark Ropchock, an attorney with the Akron law firm of Roeztel & Andress representing Wanda Hizer, said James Hizer was out of work when he was hired by Artisan Industries Inc., a company doing business with Singer Steel of Streetsboro.

It was a career change of sorts. Hizer had worked for years as a white-collar computer technician when he was let go from his job at Greer Steel in Dover.

'Obviously, when you're 58 years old and you get laid off, you don't usually get a good job,' Ropchock said. 'He basically took this job to make ends meet.'

Ropchock said Hizer was on the midnight shift at Singer Steel n March 2005, operating a laser cutting machine. Whenever a sheet of steel shifted inside this machine, a worker ventured inside to straighten it.

It was while performing this task that Hizer became trapped, his chest pinned against a part of the machine. He died of compressional asphyxiation and was found that morning by co-workers; the crooked sheet of steel was still inside the machine.

An attorney for Artisan, Steve Chuparkoff, said the company has not decided whether to appeal the verdict.

``We are obviously disappointed in the decision, but we believe in the jury system and have faith that this is the best way to resolve these types of matters.'

Wanda Hizer, who lives in Green, wept as the jury in Common Pleas Judge Laurie J. Pittman's courtroom announced its verdict.

``I was overwhelmed,' she said. ``It really wasn't the money. It was the fact that, finally, other people believed me.'

Phil Trexler can be reached at 330-996-3717 or ptrexler@thebeaconjournal.com.

Navy hospital malpractice suit is settled for $750,000

lawmed10@yahoo.com;5163141195@vtext.com (News Author)4066 — Sun, 20 Jan 2008 08:00:00 EST

Navy hospital malpractice suit is settled for $750,000

The case involved a Middleburg woman who died in 2005.

By Paul Pinkham, The Times-Union

The government has agreed to pay $750,000 to settle a medical malpractice lawsuit with the family of a Middleburg woman who died after undergoing eight surgeries in just over a month at Jacksonville Naval Hospital 2005.Lawyers for the Justice Department and relatives of Betty Jean Plato informed their court-appointed mediator Wednesday that they had agreed to the settlement.

Plato, 76, died in 2005 of a blood infection after showing up with abdominal pain at the hospital emergency room at Jacksonville Naval Air Station. She underwent eight surgeries over 35 days.

Her family's lawsuit accused the Navy of failing to properly evaluate or diagnose her condition, provide reasonable care or transfer her on time to a facility equipped to manage her medical condition.

Jacksonville Naval Hospital's commanding officer, Capt. Raquel Bono, was on leave Friday and couldn't be reached for comment.

The family, including a son serving with the Marines in Iraq, declined comment. Their attorney, Sean Cronin, said they are pleased with the settlement.

The settlement leaves five pending lawsuits against the hospital in U.S. District Court in Jacksonville. The facility has been sued repeatedly in recent years, facing allegations of substandard care.

Former Palm Beach County Neurosurgeon Sentenced

lawmed10@yahoo.com;5163141195@vtext.com (News Author)4067 — Sun, 20 Jan 2008 08:00:00 EST

Former Palm Beach County Neurosurgeon Sentenced

By Rebekah Price

January 19, 2008

Former Palm Beach County neurosurgeon, David M. Baron, was sentenced in a Ft. Lauderdale federal court Friday for felony convictions of prescribing scheduled drugs illegally over the internet. David Baron was indicted in early February 2007 as part of a Florida-based internet prescription ring netted by the DEA. He received 25 months for each count, followed by 3 years of conditional supervised release. Reportedly, he is currently facing other charges in Iowa related to similar offenses. Baron may also face more felony charges relating to back-due child support totaling over $330,000.

David Baron opened a neurosurgical practice in Loxahatchee, Florida in 1986, becoming the first neurosurgeon in the western communities of Palm Beach County. He practiced in South Florida until he relocated to Pueblo, Colorado in 1996. In December 2000, David Baron voluntarily surrendered his Florida medical license in order to avoid further prosecution in a disciplinary action related to malpractice. He continued to practice in Colorado until his license was suspended in 2005 by the Colorado Board of Medical Examiners, at which time he moved to Anaheim Hills, California to live with his mother. In 2007 Colorado Board of Medical Examiners formally revoked Baron's medical license in connection with several malpractice cases and the DEA's felony indictments.

According to investigative reports taken before sentencing, David Baron admitted to drug use throughout his medical career including marijuana and cocaine. As part of sentencing, Baron is ordered to attend a drug and alcohol treatment program. Baron will serve each 25 month sentence concurrently and will voluntarily surrender to the designated federal facility by noon on or before March 8, 2008 to begin serving his sentence.

Bizarre medical malpractice ruling

lawmed10@yahoo.com;5163141195@vtext.com (News Author)4053 — Wed, 16 Jan 2008 08:00:00 EST

Misguided ruling SJC decision could further chill medical practice In a split ruling stemming from a fatal accident, the state Supreme Judicial Court has opened the door to a huge increase in medical liability lawsuits, a result that is apt to raise the cost of medical treatment while undermining the quality of care. Medical malpractice laws properly hold physicians responsible for mistakes that harm their patients and/or causes pain and suffering. While vulnerable to abuse, that standard of accountability has a net positive effect on the quality of patient care. On Monday, the Supreme Judicial Court reinstated a lawsuit against a doctor who was treating a 75-year-old cancer patient whose car struck and killed a 10-year-old boy in 2002. The man, who died later that year, had finished his course of chemotherapy but was taking medicine for high blood pressure and other conditions, the Associated Press reported, and the lawyer for the boy's family contended the physician should have known the man's medicine created a dangerous situation. In reversing the superior court's dismissal of the lawsuit, the SJC did not rule on the validity of the family's claims. However, it did allow the case to go forward — in effect opening a whole new field of medical liability law that is ripe for exploitation. Dissenting from the ruling, Chief Justice Margaret H. Marshall emphasized the "sweeping" change it would usher in, citing its chilling effect on medical practice: "The physician would be forever looking over his shoulder." Indeed, making doctors legally liable not only for their treatment of their patients, but also for an extended chain of events over which they have no control, will certainly change the way physicians treat their patients, and certainly not for the better. Helpful medicines that might have side effects may not be prescribed. Costly tests may be ordered not because they are needed but to provide legal cover for the physician in case of a lawsuit. In creating a whole new area of medical liability litigation, the court majority has set in motion changes that will ill-serve patients and drive up the cost of health care for everyone.

Settlement reached after med-mal mistrial

lawmed10@yahoo.com;5163141195@vtext.com (News Author)4049 — Tue, 15 Jan 2008 08:00:00 EST

Settlement reached after med-mal mistrial 1/10/2008 3:00 PM By David Yates Memorial Hermann Baptist Orange Hospital In June 2007, The Record reported on a $3 million medical malpractice trial that tied up Judge Gary Sanderson's 60th District Court only to end in a mistrial June 4. A new trial was slated for November, but on Jan. 7, 2008, Sanderson signed a final judgment in the case, acknowledging that the two parties had settled for an undisclosed amount. In June jurors failed to craft a fair judgment for the family of the late Richard Bernard Salter, who alleged the lack of action and incompetence of numerous Memorial Hermann Baptist Orange Hospital medical personnel ultimately led to Salter's death. They had asked jurors to award them more than $3 million in damages. The trial and testimony Salter's family claims that Dr. Marshall Packard, the Triangle Hospital Care Group and the Baptist Hospital of Southeast Texas (Baptist Orange) breached the ordinary standard of care by failing to adequately observe, assess, diagnose, treat and transport Salter. According to the court documents, Salter, 36, sought emergency medical treatment at the Orange Hospital on Feb. 1, 2003. He was diagnosed with dehydration and R/O sepsis and held for four hours before being transported to the telemetry unit, where he was attended by Dr. Packard and a nurse. Salter had previously undergone surgery to remove his spleen in 1997, which medical experts agreed made him highly susceptible to infection. An autopsy report revealed he died of sepsis, a severe infection. The defense argued that no matter what course of action medical personnel pursued, Salter was going to die of "overwhelming" infection. Expert testimony by the defense said his survival rate was below 50 percent. The defense also argued that Salter died because of his own laxity, saying he should have gone to the hospital the night before when his temperature reached 102 degrees Fahrenheit. On the other hand, medical records and testimony on both sides state the nurse spent only 14 minutes with Salter before leaving him "in his time of need" to take her lunch break. The plaintiffs argued that the nurse never properly performed a physical examination. If she had, the nurse might have discovered Salter was suffering from circulatory fluid overload, which could easily progress to pulmonary edema, a dangerous condition. During the trial, Davis said Salter died from fluid in his lungs, not just infection. Right before his death, testimony showed Salter had 2,500 milliliters of intravenous fluid in his system, the equivalent of three bottles of Gatorade and two Red Bulls. "This man drowned to death," Davis said. Conversely, the defense argues that the nurse was a seasoned veteran with more than 20 years of experience who did not breach the standard of care while tending to Salter, and that nurses are prohibited from making medical diagnosis. Nurses can only assess a patient's condition and relay the information to a physician. "These were good nurses," said Griffin Vincent, defense attorney, at the trial. "They provided good care." Medical records showed the nurse's notes on Salter were vague, and that she returned to add more detailed information to Salter's chart only after his death. "All the evidence in this case, I believe - proves the (medical personnel) dropped the ball," Davis said, adding that if Salter's oxygen was simply increased to 100 percent, he would still be alive today. Case No. B176-490

Unlawful Surveillance At The Legal Aid Society

lawmed10@yahoo.com;5163141195@vtext.com (News Author)4030 — Wed, 09 Jan 2008 08:00:00 EST

Unlawful Surveillance At The Legal Aid Society Are lawyers any less perverted than the rest of society? Probably not, and maybe, just maybe, they are more so. Take the small example of attorney Peter A. Barta who was disbarred yesterday by the First Department - Matter of Barta, 2008 NY Slip Op 00071. Mr. Barta was an attorney who was employed by the Legal Aid Society. He admitted that during the period from approximately May 25, 2004 through September 30, 2004 he intentionally used an imaging device to surreptitiously record and review a person dressing or undressing in the offices at the Legal Aid Society. He thus pleaded guilty to unlawful surveillance in the second degree (Penal Law § 250.45). Because unlawful surveillance in the second degree, is a class E felony, Mr. Barta lost his license to practice under Judiciary Law § 90(4)(b),(e). I guess you never know who or where someone might be watching you. And a question: Why are people dressing and undressing at the Legal Aid Society? What is going on there?

'Gross-out factor' makes episiotomy story most-viewed for 2007

lawmed10@yahoo.com;5163141195@vtext.com (News Author)4019 — Fri, 04 Jan 2008 08:00:00 EST

'Gross-out factor' makes episiotomy story most-viewed for 2007 1/3/2008 2:00 PM By Marilyn Tennissen Since its first publication in April 2007, the Southeast Texas Record has written about hundreds of Hurricane Rita-related lawsuits, asbestos injury claims, class actions against refineries and countless other civil suits filed in Jefferson County. But by far, the story that created the most interest and received the most hits on the Record's Web site in 2007 was a medical malpractice case about a botched episiotomy. "Episiotomy delivers doctor to court, settlement reached" was first posted on www.setexasrecord.com on April 16, 2007. The case dealt with a Nederland woman who began complaining of abdominal pain after giving birth and discovered feces in her vagina. "Before the medical malpractice trial of a Jefferson County doctor began on Monday, April 16, prospective jurors were warned the content of the trial -- complications following an episiotomy -- may turn even the strongest of stomachs," wrote Record reporter David Yates. "Apparently, the defense thought the details were too gruesome for jurors to digest. The case was settled the next day." While jurors were spared the gruesome details, the "icky" story received almost 90,000 hits the first week as it made its way around the World Wide Web. Ten months later, the story still receives around 100 hits a week, usually ranking in the top 10 most-viewed stories. Apparently, the unfortunate woman's tale has found its own audience in cyberspace. But, aside from the fans intrigued by the gross-out factor, a substantial number of readers visited the Record Web site for its coverage of local litigation. Frequently in the top 10 is the recent patent infringement case listing from the Marshall Division of the Eastern District of Texas. Marshall's federal court has become known as the "Rocket Docket" for its stream-lined handling of patent cases from around the country. "Legally Speaking," a column by Dallas attorney John Browning, is also a regular as the No. 2 or No. 3 most viewed story for the week. Using humor and compassion, Browning has covered topics as serious as the 9/11 attacks and as insane as the judge who sued his drycleaner for losing a pair of pants. A November "Legally Speaking" column, "Truth Is Stranger Than Fiction," dealt with a preacher being sued for a boring sermon, a kid's party clown sued for blowing bubbles that were too slippery and other wacky suits. It received almost 10,000 hits. A suit by a fireman for having to strain to buckle his seatbelt and one by a lawyer suing Ford for a not-so-tough truck also scored high on the hit meter. In October, a federal suit by a postal carrier who hit her head on an overhead door and sued Wal-Mart received several thousand hits in two weeks. At year's end, the most popular story is about a man who sued the International House of Pancakes after tripping over a floor mat. IHOP failed to respond to the suit, so the plaintiff was awarded a $1 million default judgment. Without a doubt, 2008 is sure to see its share of cases both bizarre and tragic, and The Record will be there to cover it.

NY POL'S BID TO EXPOSE BOTCH DOCS

lawmed10@yahoo.com;5163141195@vtext.com (News Author)3997 — Mon, 31 Dec 2007 08:00:00 EST

POL'S BID TO EXPOSE BOTCH DOCS By NEIL GRAVES December 31, 2007 -- Doctors who botch operations and are successfully prosecuted will no longer be able to hide behind the surgical mask if a Queens lawmaker gets his way. Assemblyman Michael Gianaris (D-Astoria) said he would introduce legislation requiring the state Department of Health to publish a list of doctors in New York who have the worst malpractice histories. Gianaris said the bill would require the Health Department to annually list the names of doctors who have accrued five or more malpractice payments over the prior 10 years. "Patients should not have to play Russian roulette with their health care," Gianaris said. "This list will enable New Yorkers to identify the worst of the worst and give them a fighting chance to prevent a tragedy before it's too late." He said that the "vast majority" of the state's 80,000 licensed doctors are "careful and dedicated practitioners" but that about 4 percent are responsible for about half of all malpractice payouts. "The few bad doctors in an otherwise honorable industry have practiced in the shadow of anonymity for too long," said Gianaris, noting that 7,000 New Yorkers die annually from preventable medical error. "The curtain should be pulled back, allowing New Yorkers to view doctors' malpractice history and make an informed medical decision." He noted that prospective patients currently "have to search through 80,000 names individually" to learn which doctors have poor malpractice histories yet the state "already has that list." He added that he expects no resistance from any medical associations and that he expects the 96 percent of good doctors to be in favor of "routing out the bad apples."

Surgeon admits to photographing patient's tattooed genitals

lawmed10@yahoo.com;5163141195@vtext.com (News Author)3972 — Sat, 29 Dec 2007 08:00:00 EST

No federal charges for doc who photographed patient's tattooed gentials PHOENIX -- A Valley surgeon probably will not face criminal charges for taking a picture of a patient's genitals. Earlier this month, Dr. Adam Hansen admitted using his cell phone to snap a picture of a patient's tattooed penis before a surgical procedure. Hansen could have been prosecuted under federal laws designed to protect patients' privacy. While he likely will not face federal charges, Hansen still might have to go before the Arizona Medical Board. Mayo Clinic Hospital in Scottsdale, which is where the incident took place, posted a statement on its Web site, saying that Hansen "is no longer practicing medicine at Mayo Clinic." The hospital would not be more specific, declining to say if Hansen, who was chief resident of general surgery, had been fired or if he resigned. Hospital officials are still trying to identify the person who initially reported the incident and gave the patient's name to the media.

NY Lawmakers Deride Plan for Fees on Doctors

lawmed10@yahoo.com;5163141195@vtext.com (News Author)3966 — Fri, 28 Dec 2007 08:00:00 EST

Several New York lawmakers are joining doctors in denouncing a proposal floated by the state's insurance superintendent, Eric Dinallo, in an interview with The New York Sun, of a $50,000 fee on every doctor in the state as a solution to New York's malpractice insurance crisis. "This is not the right solution. This is a prescription for medical disaster," Rep. Vito Fossella, a Republican who represents Staten Island and Brooklyn in the U.S. Congress, said. "If it's an indication of what lies ahead, what lies ahead of this is not good." In a letter sent to Governor Spitzer yesterday, Mr. Fossella and state Senator Andrew Lanza, also a Republican of Staten Island, said a surcharge on doctors should not be an option for addressing the state's malpractice insurance crisis. "It would really place a penalty on doctors, and especially wreak havoc on specialists," Mr. Lanza said. "We'd drive good doctors out of business." Yesterday, Mr. Spitzer indicated that the extra fee was under consideration. In July, Mr. Spitzer created a task force, chaired by Mr. Dinallo, to address the state's malpractice insurance crisis. "It's going to be a smart package that I think doctors would be fully supportive of," Mr. Spitzer told the Sun. In an interview last week, Mr. Dinallo suggested that he might impose a fee on doctors as a way to protect the solvency of the state's medical malpractice insurance companies. He is also weighing other options, he said. "I'm just very worried, as head of the Insurance Department, that we have carriers that are able to fulfill their obligations," he said. Any solution would follow a 14% increase in malpractice insurance rates that went into effect in July. The rates, set by the Insurance Department, vary by county and by specialty. Specialists with the highest premiums are brain surgeons in Brooklyn, who currently pay $267,000 annually for malpractice insurance. Obstetricians in Queens pay $180,490. Several other lawmakers, including some in Mr. Spitzer's own Democratic Party, expressed concern over the idea of a surcharge for all doctors, particularly those who have not been named in lawsuits. "I certainly would not recommend an across the board per capita surcharge," the chairman of the Assembly's health committee and a member of the task force, Richard Gottfried, said. Mr. Gottfried said he would, however, support a surcharge on doctors with a history of losing malpractice verdicts. "There is a very small number of physicians in New York who are responsible for a very substantial portion of malpractice payouts," he said. "Many of those physicians should not be practicing at all. Many of them, if they do practice, ought to be bearing a much larger portion of the cost of their coverage rather than spreading out on all doctors the burden of the misconduct of a few." "A surcharge is the most ridiculous concept of all," state Senator Carl Kruger, a Democrat of Brooklyn, said. Doctors said a $50,000 surcharge would create an impossible burden for them to sustain. "We're running scared right now," an internist and pediatrician in Staten Island, Dr. Ralph Messo, said. Dr. Messo, who is president of the Richmond County Medical Society, said that a $50,000 fee would nearly triple his current annual premium of $30,000. "There are a lot of physicians trying to figure out a backup plan if this goes into effect for how they will make ends meet and still provide for their families," he said. "Somebody's got to pay for it, and I don't know how long the physicians can keep bearing the brunt of it." Other doctors warned that the insurance crisis may drive younger doctors out of New York. The head of Lutheran Medical Center's obstetrics department, Dr. Iffath Hoskins, said applicants to the hospital's residency program increasingly ask her about the malpractice insurance crisis during interviews. "Five years ago, they would say, 'Tell me about the program, what about the working hours?'" Dr. Hoskins said. "Now, in the top five questions is, 'What do you think about this malpractice crisis'?" Mr. Fossella warned that the "real losers" would be the patients. "Specialties will become so problematic or burdensome that the patients ultimately will suffer," he said.

Jury awards $15.7 million to ex-cop in cycle-truck crash

lawmed10@yahoo.com;5163141195@vtext.com (News Author)3967 — Fri, 28 Dec 2007 08:00:00 EST

Jury awards $15.7 million to ex-cop in cycle-truck crash By Susan Abram, Staff Writer Article Last Updated: 12/26/2007 11:02:36 PM PST A retired police officer has won a $15.7 million jury verdict against the city of Los Angeles for injuries he suffered in a collision with a dump truck in Northridge three years ago, attorneys announced Wednesday. Barry Bowman, 62, suffered severe brain damage in the crash at Vanalden and Wilbur avenues in Northridge on Oct. 13, 2004. His attorneys said he was on his way home on a motorcycle from working as a security officer on a movie set when a dump truck collided with Bowman and his bike. But attorney John DeGomez, who represented the city in the trial, said Bowman collided with the dump truck, driven by Tommy Wyatt. "Mr. Bowman struck the dump truck," DeGomez contended. "He ran into the wheel well of the dump truck and sustained brain injuries. The dump truck was traveling 2 to 3 miles per hour." Attorneys also disagreed on whether the city was responsible. Wyatt was contracted by the city but an independent worker, DeGomez said. "The question was: Was the city deemed to be the employer?" said Michael Alder, one of Bowman's attorneys. "The jury found that (the city was)." Bowman had been a police officer with the Los Angeles Police Department for almost 30 years. His speciality had been flying helicopters. He also was a Vietnam veteran, his attorneys said. The jury awarded him nearly $5 million for past and future medical care and $11 million for pain and emotional distress. The verdict was handed down on Thursday at the Chatsworth Courthouse.

Spotlight on New York's Malpractice Insurance Crisis

lawmed10@yahoo.com;5163141195@vtext.com (News Author)3968 — Fri, 28 Dec 2007 08:00:00 EST

Spotlight on New York's Malpractice Insurance Crisis Posted by Peter Lattman See that guy on your left? He's Eric Dinallo, New York's insurance commissioner, who isn't very popular with the state's doctors these days. Now, he's less popular after threatening to impose a $50,000 fee on every doctor in the state as a solution to the state's malpractice insurance crisis. Here's the NY Sun story. As you might imagine, physicians in the Empire State are none too happy. "We're petrified of this thing," said Robert Goldberg, the president of the Medical Society of the State of New York, told the Sun. "There's no doubt that this is going to shutter practices." Another doctor told the Sun: "This is a disaster. I feel like I'm watching Rome crumble." While insurance commissioner Eric Dinallo acknowledged that the surcharge would be difficult to impose, he said it might be required to guarantee the financial viability of the state's medical malpractice insurers. This surcharge would follow a 14% increase in malpractice insurance rates that went into effect this summer. The article gives some examples of existing malpractice-insurance rates, like the $267,000 annually — $267,000! — that brain surgeons in Brooklyn pay. Some doctors don't blame Dinallo. Said one physician working on solutions to the problem: "The enemy is the system. We're just the victims here." He added: "How do you recruit the next generation of doctors to come into New York and practice when they are faced with those kinds of expenses? Who would come to New York with that hanging over their head?" Readers, we've been reading, and writing, about the impact of tort-reform efforts, mostly on the state level. Are New York's apparent problems typical? Or is the state an outlier when it comes to med mal woes? Permalink | Trackback URL: http://blogs.wsj.com/law/2007/12/27/spotlight-on-new-yorks-malpractice-insurance-crisis/trackback/

Milwaukee Malpractice lawsuit could have big financial implications for state

lawmed10@yahoo.com;5163141195@vtext.com (News Author)3969 — Fri, 28 Dec 2007 08:00:00 EST

Malpractice lawsuit could have big financial implications for state Wheeler News Service Published Wednesday, December 26, 2007 Can hospitals use the state's malpractice fund as a crutch, instead of trying to avoid errors in the first place? The State Medical Society is asking that question in a lawsuit which could have major financial implications statewide. Larry Schultz of Mosinee is suing St. Luke's Hospital in Milwaukee. He said a technician erred in administering a spinal injection. As a result, he suffered catastrophic injuries that confined him to a wheelchair for life. Court records said his care would cost more than $6 million. And he could be in for a big jury award, since the case was filed before the Legislature put a $750,000 cap on malpractice pain and suffering. The Medical Society has taken the rare step of filing a counter claim in the case. It says the hospital was negligent in training and supervising its employees. Therefore, St. Luke's should pay some of the damages so the malpractice fund doesn't take the entire hit. But the state's Hospital Association says malpractice is why the fund exists and therefore, St. Luke's should get what it might be due. If not, it says the quality of care throughout Wisconsin would be put in jeopardy. The Medical Society is also using the case politically to show why the malpractice fund needs money. Gov. Jim Doyle took $200 million from the fund to balance the new state budget. The Medical Society is now suing the governor. It says the St. Luke's case shows why Doyle's raid was "ill-advised."

Jury awards $2.85M to child mangled by escalator

lawmed10@yahoo.com;5163141195@vtext.com (News Author)3970 — Fri, 28 Dec 2007 08:00:00 EST

Jury awards $2.85M to child Escalator mishap mangled his hand By Thomas Caywood TELEGRAM & GAZETTE STAFF If the escalator was set to the proper gap clearance, the incident would never have happened. Jeffrey S. Raphaelson, THE VICTIM'S LAWYER WORCESTER— Kevin Lou, an eighth-grader at Forest Grove Middle School, doesn't remember the escalator accident that mangled his right hand when he was 4 years old. But he can't forget the pain of five surgeries he's had over the years to save his hand and keep open the option that he might one day, with additional operations, regain some use of it. On Thursday, a Worcester Superior Court jury awarded the Lou family $3.4 million in their personal injury lawsuit against the Connecticut company whose brand name was on the escalator that nearly ripped the boy's hand off in October 1998, while he was visiting his grandmother in China. After deliberating for seven weeks, the jury ordered the escalator manufacturer, Otis Elevator Co., to pay $2.85 million to the 13-year-old city boy. The jury also awarded his parents $250,000 each, said the family's lawyer, Jeffrey S. Raphaelson. The boy's father, Jidong Lou, said one of the first things he did after the jury read out its verdict Thursday morning was to begin searching for a good microsurgeon who specializes in hands. "The jury held the company responsible. This is very good for us," said Mr. Lou, an immigrant from China who speaks English as a second language. "Honestly, I'm thankful for the law and justice." Kevin, who was right-handed before the accident, said today he can only use his right hand to assist his left. He can't bend his fingers or grasp objects with his right hand, but he hopes the jury award, and the additional surgeries it will fund, will allow him to regain some function in his hand. "I was really nervous and anxious waiting for the verdict," he said yesterday, "and after, I was really overjoyed." A spokeswoman for Otis Elevator e-mailed a one-sentence statement in response to an interview request from the Telegram & Gazette: "We are disappointed by the verdict and will likely appeal." The escalator was manufactured at a Chinese plant under the Otis Elevator brand name, Mr. Raphaelson said. Kevin and his grandmother were riding the escalator down from the third to the second floor of a Chinese department store when the boy fell, Mr. Raphaelson said. Kevin's right hand slipped into a gap between the moving escalator surface and the stationary side panels. The next escalator step that reached his stuck hand caused the injury, Mr. Raphaelson said. "His hand was severed almost through at the palm. It was a near-amputation," said Mr. Raphaelson, who argued in court that the gap violated the company's internal safety standards. "If the escalator was set to the proper gap clearance, the incident would never have happened." Mr. Lou said he was relieved to finally have a verdict in the lawsuit. "This case lasted almost nine years. We feel so much anxious because Kevin needed more surgery. It should be carried out very soon," he said. Mr. Lou said his son may need as many as five more operations to restore some function to his hand, and doctors have told him the boy is at a critical age. "He's close to maturity, but still growing. This stage is the best time for the surgery," he said.

$6.1m award over death

lawmed10@yahoo.com;5163141195@vtext.com (News Author)3922 — Thu, 20 Dec 2007 08:00:00 EST

$6.1m award over death Man killed in '03 stadium crash By Jay Fitzgerald Thursday, December 20, 2007 - Updated 11h ago + Recent Articles + Recent Blog Entries + Email + Bio Boston Herald General Economics Reporter Jay Fitzgerald has been a journalist and blogger for years. He's now the general economics reporter for the Boston Herald. E-mail Printable (3) Comments Text size Share (0) Rate A jury has awarded $6.1 million to the family of a Cape Cod man killed as a result of a bizarre 2003 accident at Gillette Stadium in which a steel gate smashed through the windshield of a bus and pinned terrified passengers inside for an hour. The Suffolk Superior Court jury found Foxboro Realty - owner of Gillette Stadium and part of the Kraft family's sprawling business empire that includes the New England Patriots [team stats] - and two other firms negligent for the fatal mishap that also injured a woman so badly she had to have a leg amputated. The jury awarded the widow of Thomas Kelly, who died of injuries a few days after the Aug. 29, 2003, incident, $1.82 million and Kelly's two sons $1.14 million each. After medical expenses, interest payments and other costs were included, the final ruling in the Kellys' favor was $6.1 million. Larry Kenney, a lawyer for Foxboro Realty, said his client will likely appeal the jury's ruling, handed down Tuesday. A spokesman for the Krafts referred questions to Kenney. Kelly, 64, a resident of Yarmouth, was among a group of passengers on a shuttle bus returning to the Foxboro stadium from the Deutsche Bank Championship professional golf tournament in Norton. A heavy gate blown shut by the wind crashed into the bus, severely injuring some passengers. "There was debris everywhere. We pushed the windows open. We yelled, 'We need an ambulance. We need to call 911,' " one passenger recalled at the time, according to published reports. Three of the 16 injured were later airlifted to an area hospital. Other injured passengers have previously settled their cases out of court, including a woman who had one of her legs amputated below the knee, according to Kelly attorney Andrew C. Meyer Jr. of Boston's Lubin & Meyer P.C. Also found guilty of negligence by the jury were Apollo Security and Standard Parking, which are independent firms that worked for Foxboro Realty. Their attorneys could not be reached for comment yesterday.

Case dismissed-The right NY medical malpractice expert makes difference

lawmed10@yahoo.com;5163141195@vtext.com (News Author)3842 — Thu, 06 Dec 2007 08:00:00 EST

de Hernandez v Lutheran Med. Ctr. 2007 NY Slip Op 09559 Decided on December 4, 2007 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 4, 2007 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT ROBERT W. SCHMIDT, J.P. REINALDO E. RIVERA ANITA R. FLORIO RUTH C. BALKIN, JJ. 2007-01409 (Index No. 13826/03) [*1]Maria Ofelia Nino de Hernandez, etc., appellant, v Lutheran Medical Center, et al., defendants, Raymond Barry Walsh, etc., et al., respondents. David Kownacki, P.C., New York, N.Y., for appellant. Aaronson, Rappaport, Feinstein & Deutsch, LLP, New York, N.Y. (Steven C. Mandell of counsel), for respondent Raymond Barry Walsh. Gordon & Silber, P.C., New York, N.Y. (David Henry Sculnick and Andrew Kaufman of counsel), for respondent Ruben Toribio. DECISION & ORDER In an action to recover damages for medical malpractice, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Patterson, J.), dated January 22, 2007, which, upon the granting of the separate motions of the defendants Robert Barry Walsh and Ruben Toribio pursuant to CPLR 4401 for judgment as a matter of law, made at the close of the plaintiff's case, is in favor of those defendants and against her, dismissing the complaint insofar as asserted against them. ORDERED that the judgment is affirmed, with one bill of costs. It is within the Supreme Court's sound discretion to determine whether a particular witness is qualified to testify as an expert, and its determination will not be disturbed in the absence of a serious mistake, an error of law, or an improvident exercise of discretion (see Meiselman v Crown Hgts. Hosp., 285 NY 389, 398-399; Steinbuch v Stern, 2 AD3d 709, 710; Pignataro v [*2]Galarzia, 303 AD2d 667, 667-668; Dimond v Heinz Pet Prods. Co., 298 AD2d 426; Goldman v County of Nassau, 170 AD2d 648; McLamb v Metropolitan Suburban Bus Auth., 139 AD2d 572, 573; Karasik v Bird, 98 AD2d 359, 362). An expert is qualified to proffer an opinion if he or she possesses the requisite skill, training, education, knowledge, or experience to render a reliable opinion (see Matott v Ward, 48 NY2d 455, 459; see Miele v American Tobacco Co., 2 AD3d 799, 802). In this case, the Supreme Court providently determined that the plaintiff's expert on the issue of causation, a physicist who studied the growth patterns of breast cancer in general, was unqualified to render expert testimony regarding the rate of growth of the decedent's tumor, a retroperitoneal sarcoma. The expert, who was not a physician, showed no specialized knowledge, experience, training, or education from which it could be inferred that his opinion regarding the growth of the decedent's sarcoma would be reliable (see Matott v Ward, 48 NY2d at 455, 459; Behar v Coren, 21 AD3d 1045, 1047; Rosen v Tanning Loft, 16 AD3d 480; Miele v American Tobacco Co., 2 AD3d at 802). Without any relevant expert testimony, the plaintiff was unable to present a prima facie case of medical malpractice. Therefore, the Supreme Court properly directed judgment in favor of the defendants Raymond Barry Walsh and Ruben Toribio at the conclusion of the plaintiff's case. In light of our determination, we need not reach the respondents' remaining contention. SCHMIDT, J.P., RIVERA, FLORIO and BALKIN, JJ., concur. ENTER: James Edward Pelzer Clerk of the Court

Injured California joggers get $49 million from Dana Point

lawmed10@yahoo.com;5163141195@vtext.com (News Author)3750 — Thu, 29 Nov 2007 08:00:00 EST

Injured joggers get $49 million from Dana Point The two women were left disabled after being hit by a drunk driver on PCH in 2006. Their lawsuit said the city was liable because the road was unsafe. By David Reyes, Los Angeles Times Staff Writer November 28, 2007 Two women left permanently disabled after being struck by a car while jogging along Pacific Coast Highway reached a $49-million settlement Tuesday with the city of Dana Point. The lawsuit brought by Carol Daniel, 42, and Stacy Neria, 35, both mothers of three who live in San Clemente, was scheduled to go to trial Tuesday. Instead, it ended with one of the largest settlements in Orange County history. The women were hit April 8, 2006, by William Todd Bradshaw, who fled the scene. Bradshaw, who had three previous drunk-driving convictions, was arrested several days later, convicted and sentenced to four years in prison. Daniel and Neria were jogging with two other women in the bicycle lane on the northbound side of PCH when they were struck. Daniel was thrown about 60 feet, breaking her neck and pelvis and nearly severing one of her legs. Neria suffered a fractured skull, broken legs and a broken pelvis, nose and cheek. Both women are now quadriplegics. The other two women were not injured. "It's a bittersweet result for both women and their families," said Daniel J. Callahan, the women's attorney. "They're pleased that they're going to have the ability to take care of themselves into the future. But their lives were forever changed." The lawsuit alleged that the road was unsafe because the bike lane was too wide -- possibly causing drivers to mistake it for another lane -- and improperly marked. The city has since added concrete barriers protecting joggers and bicyclists. The city's insurer, the California Joint Powers Insurance Authority, oversaw the settlement discussions, Dana Point officials said. The settlement will be paid in a lump sum from four policies, Callahan said. Mark P. Robinson Jr., a prominent tort lawyer in Orange County, said there have been many personal injury cases settled in the $20-million range in recent years. "It certainly ranks as one of the top settlements in the county," he said. Robinson is perhaps best known for helping to win a $127-million verdict for a boy badly burned when the gas tank of the Ford Pinto he was riding in exploded in 1978. In Orange County, the biggest single settlement is probably the $420 million that Merrill Lynch & Co. agreed to pay in 1998 for its role in the county's 1994 bankruptcy. According to Dana Point officials, the settlement was $49 million. Callahan said the figure was closer to $50 million. City Atty. A. Patrick Munoz said the settlement was a compromise for the city, which had maintained that its roads were safe. "Our view is the real wrongdoer is Mr. Bradshaw," he said. "We only hope the money will help these ladies with their lifelong needs." Munoz said the agreement should not be construed as an admission of fault by the city, but rather is being offered in the hopes the money "will aid in a better quality of life for both women and their families." Three months after the women were struck, the City Council approved spending $350,000 to install a wall between car traffic and bicyclists and joggers along that section of road between Camino Capistrano and Palisades Drive. The city faces two other lawsuits filed by the families of bikers killed along the same stretch of PCH later in 2006. During discovery, Callahan found that the city's master plan for bike lanes stated that no lane shall be more than 8 feet wide. "Except this orphan stretch of roadway . . . varied from 9 to 12 feet," he said. "And it wasn't marked as a bike lane. We had an oversized bike lane, the same width as a travel lane with no signs. This was an accident waiting to happen." Callahan said the city had a report that people were inadvertently driving in the bike lanes in 2002 in a previous case he handled. An expert at that time testified the lanes were unsafe but the city failed to do anything, according to depositions of public works officials in the Neria and Daniel case, he said. "All they had to do was get a can of paint and stencil little bike figures in the bike lane and drivers would have known there was a bike lane," Callahan said. City officials could not be reached late Tuesday to address Callahan's contentions about the previous case. "It's our understanding that there never was a dangerous condition out there," Munoz said. "We created a bike lane that goes north and south and is protected by K-rails." Dana Point Mayor Diane Harkey said the settlement will "help provide a better quality of life for the two survivors." "This was a really sad accident," she said. "It upset two families and it's just a shame that the guy driving was a criminal," referring to Bradshaw's three previous drunk driving convictions.

New York's medical malpractice insurance troubles are self-inflicted: Report shows

lawmed10@yahoo.com;5163141195@vtext.com (News Author)3747 — Wed, 28 Nov 2007 08:00:00 EST

PUBLIC CITIZEN * NY PIRG * CENTER FOR MEDICAL CONSUMERS Nov. 27, 2007 Contact: Angela Canterbury (202) 454-5188 acanterbury@citizen.org MEDIA ADVISORY State Government - Not Lawsuits - Responsible for New York's Medical Malpractice Woes, New Report Shows Responses to Self-Inflicted 'Crisis' Subject of State Task Force Review; Public Interest Groups to Release Report Thursday at Press Conference WHAT: Press conference at which Public Citizen, with New York Public Interest Research Group and the Center for Medical Consumers, will release a report showing that New York's medical malpractice insurance troubles are self-inflicted - caused by the state's manipulation of insurance rates and its misuse of a rainy day fund. The report comes in the wake of a state-approved rate hike in medical malpractice premiums last summer and as a state task force examines New York's malpractice insurance issues. Public Citizen researchers determined that medical malpractice litigation is not to blame for the rate hikes; in fact, malpractice payments in New York fell to historic lows in recent years. Patient safety remains a dire concern in New York. Moreover, New York's population of doctors is flourishing, not dwindling, as some claim. WHEN: 11 a.m. EST, Thursday, Nov. 29 WHO: Joan Claybrook, president, Public Citizen Laura MacCleery, director of Public Citizen's Congress Watch division Russ Haven, legislative counsel, New York Public Interest Research Group (NYPIRG) Art Levin, director, Center for Medical Consumers Erin Howard, teacher from Long Island, whose brother, Kevin Deane, died while at Mt. Sinai Hospital earlier this year WHERE: Room 130, First Floor, Legislative Office Building (State Street, across from the Capitol), Albany, N.Y.

Check Out Gerry's Exclusive Medical Malpractice Video Channel

lawmed10@yahoo.com;5163141195@vtext.com (News Author)3742 — Mon, 26 Nov 2007 08:00:00 EST

Go to Gerry's new, exclusive medical malpractice & accident law video channel- playing now.

Pittsburgh Jury awards $3 million in malpractice suit

lawmed10@yahoo.com;5163141195@vtext.com (News Author)3735 — Sun, 25 Nov 2007 08:00:00 EST

Jury awards $3 million in malpractice suit Sinuses treated with steroids, not antibiotic Saturday, November 24, 2007 By Paula Reed Ward, Pittsburgh Post-Gazette When Lynn Flaherty visited her family doctor's office in Mt. Lebanon on Dec. 4, 2001, she had been having headaches and a nasal discharge -- symptoms consistent with a sinus infection. But the physician's assistant who saw her failed to make that diagnosis or to prescribe antibiotics. Instead, according to Mrs. Flaherty's attorney, his client received a prescription for steroids, was told to undergo additional testing and return in a week. But just five days later, she developed stroke-like symptoms, including facial drooping and disorientation, said one of her attorneys, Stephen Del Sole. Mrs. Flaherty, of Bethel Park, went to the emergency room at St. Clair Hospital, where a CT scan revealed a brain abscess. She was immediately flown to Allegheny General Hospital where she underwent emergency brain surgery. On Tuesday, after an eight-day trial before Allegheny County Common Pleas Judge Jeffrey A. Manning, a jury awarded Mrs. Flaherty and her husband, James, a $3 million medical malpractice verdict. It deliberated for five hours. The defendants in the case, Dr. Lesley DeGiovanni, Dr. John Montini and their physician's assistant, Kellie Egidi, plan to appeal. Based on her attorney's advice, Dr. DeGiovanni said that she could not talk extensively about the case. She did say, though, that they -- and their malpractice carrier -- believed Mrs. Flaherty was treated appropriately in their office. "We feel badly for the ultimate outcome," she said. "This poor woman went through a horrible situation." She added that they have complete confidence in Ms. Egidi. But Mr. Del Sole said that the doctors in the office failed to follow the protocol they laid out in employing a physician's assistant. On paperwork submitted with the state, Drs. DeGiovanni and Dr. Montini said they would see every patient treated by Ms. Egidi. "The testimony was undisputed that that did not happen," Mr. Del Sole said. "Clearly, the doctor would have treated her differently." Instead, Mrs. Flaherty took the steroids, which experts testified would have masked the sinus infection and exacerbated it. Following the first emergency brain surgery, Mrs. Flaherty -- who had part of her skull removed -- went into respiratory failure. She was on a ventilator and later had to have follow-up surgery. Her skull has since been replaced by plastic. She went to rehabilitation to learn how to walk again and regain the skills to function in daily life. Mrs. Flaherty lost all peripheral vision on her left side, has balance problems and a nerve injury in her right leg, Mr. Del Sole said. Now 61, she has not been able to return to working as a real estate agent, he continued. His client is now considered to have a frontal lobe injury. She is unable to regulate her emotions and has difficulty with complex cognitive function. "She's just not the same person," Mr. Del Sole said. The $3 million verdict was divided, with $2 million going to Mrs. Flaherty to cover medical expenses and pain and suffering. The other $1 million went to her husband, who was her high school sweetheart, for loss of consortium. "It's a tough injury for him, as well," Mr. Del Sole said. "He still has a horribly injured wife. No amount of money is going to change that."

$2.5M award in Mass. Gynecology wrongful-death lawsuit

lawmed10@yahoo.com;5163141195@vtext.com (News Author)3736 — Sun, 25 Nov 2007 08:00:00 EST

$2.5M award in wrongful-death suit By Lisa Redmond, lredmond@lowellsun.com Article Last Updated: 11/06/2007 06:08:46 PM EST LOWELL -- In one of the largest jury verdicts in the Merrimack Valley, the estate of a 31-year-old Lowell woman who died in 1999, 19 days after having surgery to remove ovarian cysts, was awarded $2.5 million in a wrongful-death lawsuit against two local doctors who performed the surgery. After an 11-day trial, including three days of deliberations, a Lowell Superior Court jury yesterday found surgeon Dr. Muhammad Akmal Khan and Dr. Edward Lipman, a gynecologist, as well as Lipman's practice, Chelmsford Ob-Gyn, P.C., in Chelmsford liable for Bernice Edwards' death in June 1999, according to attorney Suzanne McDonough, of the Boston law firm Lubin & Meyer. McDonough represented the estate of Bernice Edwards, whose mother, Ruby Edwards, and brother, Jesse Roy Edwards, both of Lowell, brought the medical-malpractice lawsuit after Bernice Edwards died after being admitted to Lowell General Hospital on May 13, 1999, to remove an ovarian cyst, McDonough said. While in the hospital, Edwards developed pneumonia. Despite Edwards' weakened respiratory system, Khan and Lipman performed surgery to remove the cyst, McDonough said. Edwards died 19 days later of acute respiratory distress syndrome. When reached for comment, attorney George E. Wakeman Jr., of Boston, representing Lipman, said, "The litigation is still open so I can't comment." He didn't say whether the verdict would be appealed. Attorney Kenneth Weiss, representing Khan, could not be reached for comment. "This was a big verdict," said attorney Andrew Meyer, who also represented the Edwards family. With interest, the verdict could rise to $4.1 million, he said. McDonough said that the lawsuit, filed in 2002, arose from the June 6, 1999, death of Edwards, the mother of an 11-year-old daughter, who went into Lowell General Hospital a few weeks earlier on May 13 to remove an ovarian cyst. But while in the hospital, Edwards developed pneumonia. McDonough alleges that at trial, the attorneys representing the doctors argued that the ovarian problems were making the pneumonia worse, so surgery was necessary even though Edwards had not been a candidate for surgery five days earlier. Even before Edwards was taken into the operating room, she was given medication that caused her to go into respiratory arrest, McDonough argued. Despite that medical problem, the doctors went forward with the surgery. McDonough argued that while the ovarian problem was improving, people with pneumonia who undergo surgery run the risk of "getting stuck on a vent," she said. Edwards' lungs were so compromised, McDonough said, that after the surgery she remained on a respirator. Edwards was transferred from Lowell General Hospital to Massachusetts General Hospital in Boston, where she died 19 days later, McDonough said. The jury found that both doctors were negligent and their negligence caused Edwards' death, McDonough said. The jury awarded Edwards' daughter, Alicea, $2 million, and the estate $500,000. "It speaks to the degree of the negligence," McDonough said of the verdict. Both doctors must report the verdict to the Board of Registration in Medicine, which is available to the public. While Edwards' daughter is now grown, McDonough said the money will never replace a mother who died too young. "There is a hole that just can't be filled," she said.

$6.7 Million Awarded for Man in Hit in Head by Softball Bat

lawmed10@yahoo.com;5163141195@vtext.com (News Author)3722 — Sun, 18 Nov 2007 08:00:00 EST

Jury awards A.F. family $6.7 million Joe Pyrah - DAILY HERALD A $6.7 million jury verdict was handed down earlier this week in favor of an American Fork boy who was hit in the head with a softball bat in 2004. Dalton Nielson was 7 when he ran out onto the field at Lehi Veterans Memorial Park between batters to give back a foul ball. The batter warming up swung without seeing the boy and hit him in the head. Nielson was flown to Primary Children's Medical Center for emergency brain surgery. While initially Lehi city and the batter were named as defendants in the lawsuit, the batter was dismissed and Lehi settled. The verdict is split into two parts, with 92.5 percent being assigned to U.S. Specialty Sports Association and its local chapter, and 7.5 percent being assigned to Lehi city. The latter amount will not be collected because of the earlier settlement. "I'm shocked at the size of the verdict, and there will be some post-trial motions and appeal," said Cliff Payne, the defense attorney for USSSA, a sports tournament organizing association. The injuries were so severe that many in the community thought Nielson had died, but he improved so quickly that he was released from the hospital just two weeks after the incident. While there was a swift recovery, doctors testified at trial that he would need ongoing treatment for the rest of his life. "The system works. Dalton has now been compensated for his tragic and terrible brain injury," said the family's attorney, Lynn Harris, in a statement. During the trial it was argued that the umpire, provided by USSSA, had been allowing kids to bring back foul balls between innings, which set up the expectation of being allowed to come on the field, Payne said. The umpire disputed that he ever waived Nielson onto the field and there was some debate as to whether the boy's grandfather, who took him to the game, encouraged Nielson to go.

NY Anesthesiologist Uses Syringes Twice! Hepatitis Found

lawmed10@yahoo.com;5163141195@vtext.com (News Author)3717 — Fri, 16 Nov 2007 08:00:00 EST

An anesthesiologist in New York has recently been found to have used the same syringe to inject medication into different patients. As a result of this breach of infection control, two of his patients have contracted hepatitis. How could this happen in today's day and age? Here's an apparently well-trained physician who claimed, according to his PR person's statement that "He was unaware that what he was doing was incorrect." Give me a break. It's common knowledge that you don't re-use needles, and you certainly don't re-use syringes. Why would anyone re-use a syringe? It makes no sense. Here's how it happened, according to the New York State Department of Health: The anesthesiologist used a clean needle and syringe to obtain medicine from a vial. The medicine was injected into patient #1. The anesthesiologist removed the needle and then replaced the needle onto the syringe that he had used for patient #1. He then sticks the new needle and old syringe into the original medicine vial he used for patient #1. He then injects medicine into patient #2. After an investigation by the department of health, they determined that a trace amount of patient #1's bodily fluids likely ended up in the syringe after the first injection. When this doctor inserted the new needle and old syringe into the old medicine vial, it likely contaminated it with patient #1 blood. The tainted medicine vial was then used to inject other patients. Infection control is critical to preventing errors such as this one where two patients suffered hepatitis from this doctor's improper infection control. The doctor claims that he was cleared by the Department of Health, and given remedial instruction on how to use these 'multi-use' vials. However, when looked at from a legal point of view, and not from a Department of Health regulation point of view, one could certainly argue that there was a departure from good medical care that resulted in significant harm (the hepatitis) to the patient. I'll leave it to the politicians to point fingers at the New York State Department of Health and the Nassau County Department of Health about why they didn't notify this doctors' patients two years ago about the possibility they may have contracted hepatitis from this improper procedure. Importantly, if you believe you contracted hepatitis or other infectious disease from improper infection control, you should contact an experienced New York medical malpractice lawyer immediately.

Malpractice to cost St. Vincent's $3.5m

lawmed10@yahoo.com;5163141195@vtext.com (News Author)3714 — Wed, 14 Nov 2007 08:00:00 EST

Malpractice to cost St. Vincent's $3.5m MICHAEL P. MAYKO mmayko@ctpost.com Article Last Updated: 11/13/2007 11:03:03 PM EST BRIDGEPORT — Greg Ackley never held a full-time job, but he loved to tell people he finished first in his graduating class. That was by virtue of the spelling of his last name. Many Lordship residents would wave to him as he rode by on his bike. When they learned the 47-year-old mentally disabled man had died Feb. 27, 1999, at St. Vincent's Medical Center, a little part of their life died, too. On Tuesday, a six-member Superior Court jury awarded Ackley's estate $3.5 million after finding that his treatment at the hospital that day was negligent and constituted medical malpractice. "The jury determined his death was preventable," said John Jessep, a lawyer with Koskoff, Koskoff & Bieder, which represented Ackley's estate. "This was a purely noneconomic verdict. My client did not have a full-time job. But the verdict shows a jury can evaluate anyone from any walk of life and assess fair damages." The verdict ended a two-week trial before Superior Court Judge Deborah Frankel. Jessep said St. Vincent's turned down a proposal to settle the suit for $3 million. A St. Vincent's spokesman said the verdict will be appealed. "St. Vincent' s would like to express its deepest sympathy to the Ackley family for their loss. We believe Mr. Ackley received appropriate medical treatment and are disappointed with this decision," said Noreen McNicholas, the Medical Center's director of marketing and communications. "We remain committed to providing the highest quality of health Advertisement care to all of our patients." Paul Williams and Barbara Burke of Day Pitney, in Hartford, represented St. Vincent's. Jessep said Ackley was brought to St. Vincent's by his elderly father, Lawrence, on Feb. 27, 1999. At the time Ackley apparently was suffering from pneumonia. "His body was being starved of oxygen," Jessep said. "They failed to provide proper supplemental oxygen." As a result, Jessep said Ackley's heart became overworked and eventually stopped. The lawsuit accused the hospital of failing to administer proper respiratory care, to monitor his heart rate and frequency of respiration and admit him. "People lovingly called him the mayor of Lordship," Jessep said. "He would ride around helping people stopping to shovel their snow, work on their homes Several of them testified." Michael P. Mayko, who covers legal issues, can be reached at 330-6286.

Study: Eye Surgery Errors Avoidable

lawmed10@yahoo.com;5163141195@vtext.com (News Author)3707 — Tue, 13 Nov 2007 08:00:00 EST

Study: Eye Surgery Errors Avoidable Following Standard Procedures Would Eliminate 90% Of Eye Surgery Errors, Study Shows (WebMD) Most eye surgery errors could be avoided by following standard procedures, such as marking the surgical site and taking a time-out before incision. A new study shows eye surgery errors are rare, occurring at a rate of about 69 errors per 1 million procedures. The most common error was inserting the wrong lens implant, which happened in 63% of cases reviewed for this study and usually happened because the lens specifications were not checked properly before surgery. The advent of laser eye surgery has made eye surgeries more common, but researchers say little is known about the type of errors most commonly associated with eye surgeries. Medical mistakes and surgical errors have become a major concern in recent years, and in 2004, new protocols were adopted by major medical organizations, including the American Academy of Ophthalmology. These safety procedures include verifying the patient's identity as well as his or he procedure before surgery, marking the surgical site, and taking a time-out immediately before incision. Eye Surgery Errors Serious The study, published in the Archives of Ophthalmology, involved 106 cases of eye surgery error reported to a major malpractice carrier and the New York State Department of Health. Researcher John W. Simon, MD, of Albany Medical College in New York, and colleagues investigated how the error occurred, when and by whom it was recognized, who was responsible, whether the patient was informed, and various other aspects of how it happened. The results showed most of the errors were caused by a breakdown in systems, processes, and conditions that led people to make mistakes and 85% of the errors could have been prevented if the safety protocols had been followed. The most common error was implanting the wrong lens, which occurred in 67 of the 106 cases, and was frequently caused by not checking the lens specifications before surgery. Other common eye surgery errors included: Injecting the wrong eye with anesthesia (13%) Operating on the wrong eye (14%) Eight cases involved the wrong patient or the wrong procedure. The wrong tissue was transplanted in two cases.

Merck to cough up $4.85 Billion in Vioxx settlement

lawmed10@yahoo.com;5163141195@vtext.com (News Author)3692 — Fri, 09 Nov 2007 08:00:00 EST

Merck to pay $4.85B Vioxx settlement By LINDA A. JOHNSON, AP Business Writer TRENTON, N.J. - Merck & Co. said Friday it will pay $4.85 billion to end thousands of lawsuits over its painkiller Vioxx in what is believed to be the largest drug settlement ever. Merck faced personal injury lawsuits representing 47,000 plaintiffs, and about 265 potential class action cases, filed by people or family members who claimed the drug proved fatal or injured its users. The agreement covers cases filed in both federal and state courts. Negotiating teams met more than 50 times in eight states and spoke hundreds of times over the telephone to hammer out the deal, according to attorneys. "I'm very happy with it," Chris Seeger, one of the six plaintiff lawyers who helped negotiate the settlement, said Friday. "It's a tremendous way to resolve this litigation." Merck pulled Vioxx from the market Sept. 30, 2004 after its researchers determined the then-blockbuster painkiller doubled risk of heart attacks and strokes. To qualify for a settlement, plaintiffs must have filed claims by Thursday and meet several criteria, including medical proof that they suffered a heart attack or stroke, that they received at least 30 Vioxx pills and that they received enough pills to support a presumption that they were ingested within two weeks before injury. That is a big concession by Merck, which has long claimed that Vioxx caused harm only after 18 months of use. Those claims were dismissed by independent scientists and plaintiffs lawyers. Merck stressed that the agreement is not a class action settlement and that it is not admitting fault. Company executives and attorneys said as recently as last month that every case would be fought individually. Analyst Steve Brozak of WBB Securities called Merck's' handling of the litigation "a Harvard casebook study of how to deal with a problematic product." Investors seemed to agree, as Merck shares jumped more than 2 percent, or $1.23, to $56 at the open of trading Friday. Analysts predicted early on that liability could reach $50 billion, but after losing its first case in a $253 million verdict, Merck has won a string of civil cases. Merck may now have put the uncertainty of millions of dollars in legal costs behind it, though it has been fairly successful fighting cases individually, winning 10 of 15 court verdicts to date. The company said last month it had added $70 million to its reserves for defending lawsuits. As of Sept. 30, Merck had reserved a total of $1.92 billion for legal expenses and spent a total of $1.2 billion. The deal becomes binding only if 85 percent of the plaintiffs in about 26,600 lawsuits agree to drop their cases. It was finalized in the early morning hours after attorneys for Merck and the plaintiffs met with three of the four judges overseeing nearly all Vioxx claims. Seeger said the deal was put in motion last December when three key judges pushed the parties to open out-of-court talks. "Every claimant is going to be compensated" once their claim is validated, he said. Seeger believes it is the largest settlement ever in the industry and said he will recommend that his 2,000 clients accept the deal. Payments would vary, depending on severity of injuries and the length of time that Vioxx was used. "The agreement is structured to provide a significant degree of certainty toward resolving the majority of the outstanding VIOXX product liability claims in the United States for a fixed amount," Richard T. Clark, chairman, president and chief executive officer of Merck, said in a statement. Attorneys for both sides were to present the deal Friday morning to U.S. District Judge Eldon E. Fallon in New Orleans. "In light of significant costs and delay that would result in protracted litigation, the settlement program will ensure that those who suffered injuries as a result of Vioxx are compensated fairly and efficiently," according to a statement from one of the lead plaintiffs law firms in the case, Beasley, Allen, Crow, Methvin, Portis & Miles of Montgomery, Ala.

Jury awards $12.5 million in death of bicyclist

lawmed10@yahoo.com;5163141195@vtext.com (News Author)3689 — Wed, 07 Nov 2007 08:00:00 EST

Jury awards $12.5 million in death of bicyclist Originally published 06:44 p.m., November 2, 2007 Updated 06:44 p.m., November 2, 2007 DOCUMENTS Garvin lawsuit trial brief. View now » STORY TOOLS E-mail story Comments iPod friendly Printer friendly More from Breaking News Incumbents lead in Ventura absentee count Shooting victim's condition upgraded to stable Man sentenced to prison for stealing from employer A jury Friday awarded $12.5 million in damages to the family of a popular dentist killed in an accident while riding his bicycle last year. Glenn Garvin, 49, an avid cyclist, was struck by a vehicle and killed Sept. 16, 2006, while riding along Westlake Boulevard. The Thousand Oaks resident was a member of the city's traffic advisory board and a bicycle safety volunteer. His family filed a wrongful death suit against the driver, Norma Seigel, 82, of Thousand Oaks. The president of the Ventura County Bar Association said he believes Friday's award of damages is one of the highest ever involving a personal injury or wrongful death suit in Ventura County. "I am not aware of one, off the top of my head, that can top that," said attorney and bar president Jonathan Light. "That may be a record for the county. I don't know." The Garvin family's lawyer, Mark O. Hiepler, praised the jury's decision. "I am pleased a jury of conservative Ventura County people saw the value of the life of a father and husband and the value he brought to the community," said Hiepler. In a prepared statement, wife Pamela Garvin, 50, said, "My husband, Glenn, was a volunteer traffic safety commissioner for the city of Thousand Oaks who taught and lived bicycle safety. His death ... as well as the deaths at the Santa Monica outdoor market, were all preventable and teach us that we must individually take responsibility for those we love, whether elderly or young, who should not be driving." She was referring to a 2003 incident in which an 86-year-old man drove his car into a crowd at the Santa Monica market, killing nine people and hurting dozens. The man said he couldn't stop and hit his accelerator instead of the brake. In the Garvin case, Seigel admitted she was responsible for the death, so the accident's cause wasn't an issue in the case. Instead, the trial focused on monetary damages. Seigel's ophthalmologist told her eight days before the accident that she had cataracts in both eyes, according to Hiepler. The day before the accident and during another visit to her ophthalmologist, she was told she had "dense cataracts" in both eyes. Seigel's lawyer, Robert Hanger, couldn't be reached for comment Friday. Attorney Light believes the jury's award was large partly because Garvin had a large annual income -- future earnings the family will no longer receive. Garvin was an endodontist who earned about $746,633 in 2006, according to the lawsuit. "There was a loss of life. That's a big deal," Light said. Hiepler said Seigel has insurance and assets, and another court hearing will determine whether it will be enough to satisfy the judgment. The wrongful death trial lasted seven days in Superior Court in Simi Valley. Friends of the deceased, financial experts, psychologists and family members testified. The jury began deliberating Thursday. During closing arguments, Hiepler never specified to the jury how much should be awarded but suggested it should be a large, multimillion-dollar sum. Hiepler said Pamela Garvin is now a single parent of two teenage sons who struggles without her husband of 25 years. Seigel had agreed to $39,878 in damages to cover such things as medical expenses and funeral costs.

The Emotional Toll of Medical Mistakes

lawmed10@yahoo.com;5163141195@vtext.com (News Author)3630 — Sat, 27 Oct 2007 08:00:00 EST

The Emotional Toll of Medical Mistakes The physical consequences of medical errors are obvious. One well-known study estimated that as many as 98,000 hospital deaths a year stem from mistakes by health care workers. But what about the less visible emotional costs of these missteps? The New England Journal of Medicine tackled the issue yesterday in a moving commentary called "Guilty, Afraid and Alone: Struggling with Medical Error.'' The writers, Dr. Tom Delbanco and Dr. Sigall K. Bell of the Harvard Medical School, note that while the medical community has focused largely on reducing error rates, hospitals also need to address the "human dimensions" of treatment blunders and to assist in the emotional recovery of patients and families. The doctors, who are making a documentary film on the subject, talked to numerous patients and families affected by medical errors. The authors found that family members often feel guilty for not having protected loved ones from the caregivers' mistakes and that many feared retribution if they did complain. And Dr. Delbanco and Dr. Bell note that physicians who err often shut out patients and their families, "isolating them just when they are most in need.'' When mistakes happen, relatives often berate themselves for not keeping close watch on their loved ones. In one case cited in the commentary, the family of a man with sickle cell anemia repeatedly warned health care workers not to administer morphine. But somehow it happened anyway, sending the man into kidney failure and a coma. "The feeling was impotence, because you can't stay with a patient 24 hours a day,'' said his sister. "That's why you rely on hospitals — you rely on nurses. You feel like you failed your family in terms of 'I should have been there.' That's a guilt that everyone shares." A nurse whose mother died after a series of medical errors noted that the doctors and nurses closed ranks against her after the mistakes occurred. "The nurses were ruder to me than you can ever imagine, and the doctors wouldn't tell me anything," she said. "They looked at me like I was a dumb little girl. I became so addled that I couldn't act decisively and get her out of there to another hospital. I'll never get over my guilt." Even when patients suspected mistakes were being made, many feared that confronting the medical staff might lead to further injury, the doctors noted. Said one patient: "I was frightened to complain any more — scared that, you know, you hear about people being mistreated in the hospital. I was scared that I would get more mistreated." Several family members said that they simply wanted their doctors to talk to them and to explain how the mistake had happened. "What we needed was for someone to reach out and connect with us in human terms," said one. "The sense that somebody could empathize and know what I was feeling . . . that was almost totally lacking." The authors note that honest and direct communication are often the "best antidote" to flawed treatment. Patients and families also want to know that some good has come out of these mistakes, and that the event has taught both caregivers and their institutions. "You have no idea how far a 'sorry' will go," said one patient.

Jury Awards $4 Million For Arm Broken By Bully

lawmed10@yahoo.com;5163141195@vtext.com (News Author)3603 — Wed, 24 Oct 2007 08:00:00 EST

Bullying Victim Awarded $4 Million Jury holds private school to account for its failure to protect a student. By COLLEEN JENKINS St. PETERSBURG TIMES Enlarge Text Print EMail Discuss () Share TAMPA | After a bully attacked Danny Heidenberg at Hillel School of Tampa, his parents complained to the principal of the Jewish community day school. When the bully broke 12-year-old Danny's arm in January 2004, they sued. On Monday, a Hillsborough jury ordered the school to pay $4 million for failing to keep Danny safe. Now 16, he has permanent nerve damage in his left hand and likely won't be able to follow in his surgeon parents' footsteps. The verdict sends a strong message to schools, the family's lawyer said. "Schools have to wake up to the point that bullying is serious and supervision is serious," said David Tirella, a lawyer with Cohen, Jayson & Foster. "They allowed a bully to escalate." Hillel officials and their lawyer would not comment. Jurors had to decide whether Danny's injuries resulted from unavoidable roughhousing between preteen boys or the school faculty's inadequate supervision of bullying. The issue isn't unique to Hillel, a private school on Fletcher Avenue. During the 2006-07 school year, Hillsborough public schools reported 266 bullying incidents. Officials concede such incidents are vastly underreported. Lewis Brinson, Hillsborough's assistant superintendent for administration, said he constantly warns principals that someone is going to get sued for negligence if they are not vigilant about addressing bullying. "They're probably tired of me saying it," he said. Danny Heidenberg and his parents, board-certified doctors Howard Heidenberg and Sandra Goodman, claim everyone knew a certain student at Hillel was a bully. The bully, a 7th-grader like Danny, called students names, taunted them and beat them up. Football games at recess were supposed to be "touch only," but the student purposely hit other boys hard enough to hurt them, according to the lawsuit. Danny's parents complained in late 2003 after learning the student had assaulted their son at least twice. Dr. Heidenberg asked the principal to protect Danny. If the school took any action to address the bully's behavioral issues, it didn't work. On Jan. 29, 2004, a group of boys played contact football at the school. The bell rang. A teacher directed them inside. The teacher went in ahead of students, the suit said. The bully chastised Danny for not joining the football game. Then he threw a football at Danny and tackled him. Danny tried to get up. The bully jumped him, breaking two bones in his left arm.. After three surgeries, Danny still suffers from paralysis, Tirella said. He can't control each individual finger on his left hand. He can't type. Dr. Goodman, Danny's mother, described his injuries as "a permanent, lifelong disability" but didn't want to linger on his limitations. She said the lawsuit was about "accountability and moral justice," not money. Of the $4 million verdict, the jury awarded $2.8 million to Danny for past and future pain and suffering. He also got $30,000 for medical expenses, Tirella said. Brinson said public schools should take notice of the jury's decision. "At no time should students be unsupervised," he said. "No time. It's just not acceptable." The bully was not named in the lawsuit. Tirella said the school also let him down by not helping him change his behavior. The family hasn't gotten the apology it hoped for from Hillel officials. But during the week-long trial, Tirella said, the boy who bullied Danny said he was sorry.

Podiatrist Not Competent as Expert Against Orthopedic Surgeon

lawmed10@yahoo.com;5163141195@vtext.com (News Author)3586 — Tue, 16 Oct 2007 08:00:00 EST

Podiatrist Not Competent as Expert Against Orthopedic Surgeon The Pennsylvania Supreme Court recently held that a Podiatrist could not give expert testimony against an Orthopedic Surgeon concerning the proper standard of care in a medical malpractice lawsuit concerning bunion care. Wexler v. Hecht, 928 A.2d 973 (Pa. 2007). The highest court in Pennsylvania found that because podiatrists attend podiatric school and not medical school, the training and licensing of a podiatrist is different from a medical doctor. Consequently, as a matter of law based on the Court's interpretation of section 512 of the MCARE Act, which limits expert who may testify on the standard of care to those with an "unrestricted physician's license," a podiatrist does not possess the required expertise to give expert testimony against an orthopedic surgeaon, who holds a medical degree. This holding demonstrates how the MCARE Act has limited the previous Rules of the Pennsylvania courts, as this ruling apparanently now trumps the much more liberal Pennsylvania Rule of Evidence 702 concerning expert testimony. The Pennsylvania Supreme Court's analysis in concluded that there is bright line rule separating physicians and podiatrists. Physicians must either have a medical degree or an osteopathic degree, which is a medically based. Both Medical Doctors (M.D.) and Osteopaths (D.O.) are trained about the entire body and are licensed and boarded by the same/similar private and state organizations. Podiatrists hold only a podiatric degree and their education and training is limited to the feet. Podiatrists are also licensed and tested by a different organization. Consequently, the Court found that Podiatrists did not have the proper expertise to offer standard of care testimony against orthopedic surgeons. This case did not clarify if the reverse situation would be permissable; that is: may an orthopedic surgeon still testify as to the standard of care against a podiatrist? I believe that because the orthopedist is a medical doctor, the court would still likely permit this type of expert testimony. This case also addressed the retroactive application of the MCARE Act and the court held that the MCARE Act did apply. Fortunately, this issue is not relevant to any cases filed in the future.

Jury awards $100,000 to man for lemon Jaguar

lawmed10@yahoo.com;5163141195@vtext.com (News Author)3566 — Sat, 13 Oct 2007 08:00:00 EST

Jury awards $100,000 to man for lemon Jaguar Click-2-Listen By JANE MUSGRAVE Palm Beach Post Staff Writer Friday, October 12, 2007 WEST PALM BEACH — What began as a $10,000 lemon turned into a $100,000-plus gold mine for a former West Palm Beach man. A Palm Beach County jury on Thursday ordered a Belle Glade car dealership to pay Benjamin Figgie $100,000 in punitive damages for refusing to give him back the $10,000 he paid for a 1998 Jaguar he couldn't even drive off the lot. Circuit Court Judge Kenneth Stern had already ordered Belle Glade Chevrolet-Cadillac-Buick-Pontiac-Oldsmobile Inc. to repay Figgie $10,000. Because the judge ruled that the dealership had committed civil theft, the 33-year-old is entitled to recover triple that amount, or $30,000, said attorney Bill Pincus, who represents Figgie. Pincus said he also will seek attorney's fees, which could add roughly $200,000 to the dealership's tab. The saga began in January when Figgie, who now lives in Fort Lauderdale, went to the lot to test drive the car. He said he wanted it but needed time to line up a loan. He returned to the dealership two weeks later, handed over the $10,000 and got the keys to the car. What the dealership didn't tell him was that sometime during those two weeks someone had driven the car 2,000 miles and the engine had blown up, Pincus said. When the car wouldn't start, Figgie demanded his money back. "Too bad," Pincus said he was told, "you bought it as is." While the car remained at the dealership, Figgie pleaded with salesmen to refund his money. When they refused, he filed suit. The current manager of the dealership said he had been on the job for two weeks and wasn't familiar with the case. He referred phone calls to Douglas Plattner of Sarasota, who is a director of the corporation. He couldn't be reached for comment. Their attorneys didn't return phone calls. However, they have already said in court papers they plan to appeal. Former Florida Supreme Court Justice Arthur England, who specializes in appellate work, is part of the dealership's legal team.

Hawaii jury awards $850,000 for dog bites

lawmed10@yahoo.com;5163141195@vtext.com (News Author)3567 — Sat, 13 Oct 2007 08:00:00 EST

Hawaii jury awards $850,000 for dog bites By Gordon Y.K. Pang Advertiser Staff Writer A young dog-bite victim and his mother were awarded $850,000 by a Circuit Court jury yesterday in what is believed to be the largest dog-bite award in Hawai'i. The decision, reached after less than three hours of deliberations, comes when the number of reported dog bites and the potential for dog-bite lawsuits in Hawai'i are on the rise. Keeton Manguso was 2 1/2 and weighed 24 pounds on Mother's Day 2005 when he was bitten multiple times by a Rottweiler owned by Mariko Bereday at Kahala Beach. Keeton received stitches for bites to his hip and back. He also was bitten on his arms, said Jim Bickerton, his attorney. Veronica Tomooka, Keeton's mother, could not pull the dog off her son and it took a passerby — a former University of Hawai'i football player with martial arts training — to fend off the dog, Bickerton said. Dogs can't be blamed for their behavior, Bickerton said after the verdict, but the case sends a valuable message to those who own dogs and do not follow animal control laws. "Dog owners tell me that this kind of behavior by Miss Bereday ruins things for the responsible dog owners in the community who observe the leash laws and other animal control regulations," he said. "It really highlights that the rules that say 'when a dog is out in public it should be leashed' are there for a very good reason. Too many people want to enjoy the pleasure of running with their dogs at the beach and don't stop to think about the risk that poses, particularly to children." Paul Yamamura, Bereday's attorney in the civil case, could not be reached for comment. Outside the courtroom following the verdict, Bereday told reporters that she denies responsibility for the incident and that photos taken of the boy's wounds were faked. Bereday also said outside the courtroom that she intends to appeal. Bickerton said Bereday was not allowed to testify on her own behalf because she did not submit herself to a deposition despite a court order to do so. The jury awarded Manguso's family $500,000 in punitive damages and $350,000 in general damages. The award included $6,500 in medical bills, Bickerton said, noting that one of Manguso's wounds became infected requiring additional hospitalization. The trial began Tuesday and ran through Thursday, when the case went to the jury. During a separate criminal proceeding last year involving the incident and another attack involving a 4-year-old girl six days after the attack on Keeton, Bereday was sentenced to five days in jail and a $2,000 fine. The dog was ordered destroyed. The case is under appeal. The girl victim's family also has sued Bereday, and the case is ongoing. Gary Dubin, Bereday's criminal attorney, said Bereday's jail sentence and the dog's execution have been stayed, pending an appeal. Dubin said prosecutors in court documents have conceded that the jail sentence was improper. Bickerton said Bereday had a history of ignoring leash laws. He showed as evidence a copy of a letter from the Hawaiian Humane Society to Bereday in 2003 reminding her of leash laws after receiving a sixth complaint about her dogs. The number of reported dog bites has increased steadily in recent years to more than 1,000 annually. Dog bite lawsuits previously have generated awards and out-of-court settlements of more than $350,000 in Hawai'i. "People seem to have gotten more relaxed about controlling their dogs than they used to be," Bickerton said. "Many now go to obedience schools and have more confidence that their dogs would behave and feel more comfortable letting them run around without a leash. But we have to remember that they are animals."

Wyeth hit for $134.5 Million judgment for hormone replacement drug

lawmed10@yahoo.com;5163141195@vtext.com (News Author)3560 — Thu, 11 Oct 2007 08:00:00 EST

Jury slaps Wyeth with $134.5 million judgment over hormone replacement drug The Associated Press Published: October 11, 2007 RENO, Nevada: A jury levied a $134.5 million (€94.72 million) judgment against Wyeth in a lawsuit filed by three Nevada women who claimed the company's hormone replacement drugs caused their breast cancer. It was the largest award to date against the New Jersey-based pharmaceutical company, which faces about 5,300 similar lawsuits across the United States in state and federal courts. The panel deliberated for two days before announcing its verdict late Wednesday in favor of Jeraldine Scofield, 75; Arlene Rowatt, 67; and Pamela Forrester, 64. The same five-man, two-woman jury will return to the courtroom Friday to consider punitive damages against the drug maker. Wyeth spokesman Doug Petkus on Thursday said the company would have no comment because the case was not finished. But in an e-mail to The Associated Press, he noted that 20 similar cases have gone to trial or been otherwise resolved. Of those, he said three resulted in favor of the company, two plaintiff verdicts were set aside by the courts, and three cases were dismissed on summary judgment. Twelve other cases were voluntarily dismissed by plaintiffs before trial, he said. During the four-week Reno trial, the women testified that they started taking Premarin, an estrogen replacement, and Prempro, a combination of estrogen and progestin, to help offset menopausal symptoms, but were taken off the therapy when they developed breast cancer. Wyeth lawyers argued the company sponsored or participated in a list of studies on the risks of breast cancer, and detailed risks on warning labels included with each bottle of the drug. They also said the drug, approved the U.S. Food and Drug Administration, is not dangerous and remains on the market. All three women were awarded $7.5 million (€5.28 million) in past damages. Jurors also awarded $36 million (€25.35 million) each to Scofield and Rowatt for future damages, and $40 million (€28.17 million) to Forrester. After the verdict was announced, the women hugged their attorneys and cried. "You so deserved this," one lawyer, Zoe Littlepage, told them. "You so, so deserved this." Geoffry White, another lawyer for the women, also deferred comment Thursday until after the punitive phase. Wyeth reached an undisclosed settlement last October with a fourth woman who had been part of the Washoe District Court lawsuit. Carol McCreary was diagnosed with breast cancer in 2001 after taking Prempro for about 33 months. She died in April at age 59.

Retired Allstate claims manager: Quick settlements are based on quick response

lawmed10@yahoo.com;5163141195@vtext.com (News Author)3543 — Tue, 09 Oct 2007 08:00:00 EST

Retired Allstate claims manager: Quick settlements are based on quick response By Brandon Ortiz bortiz@herald-leader.com A retired Allstate Insurance Co. manager denied allegations that the insurance giant drags out claims to extort unfair settlements from injury victims. Susan Brawner, formerly the market claims manager for Allstate's now-defunct Lexington claims office, testified for Allstate on Tuesday morning as the company continued its defense in a $1.425 billion civil trial in Fayette Circuit Court. The lawsuit, filed by Geneva Hager of Richmond, claims that the Illinois-based insurer's claims-handling practices violate Kentucky's Unfair Claims Settlement Practices Act, which requires insurers to investigate claims and promptly make fair settlement offers once liability is reasonably clear. Brawner used to supervise Debbie Niemer, a former Allstate supervisor who has testified for Hager and has accused the insurer of sending injury victims to biased doctors, making invasive medical-records requests, and manipulating data entered into a computer program that estimates the values of claims so that it would produce lower values. Brawner said Allstate's practices expedited the handling of claims by requiring adjusters to make quick contact with claimants and establish rapport with them. She said she is not aware of any employees manipulating data entered into to Colossus, the computer program that evaluates claims. Brawner said she testified because "I feel like there were a lot of things said by a former manager (Niemer) that I want to refute." A former Kentucky Court of Appeals judge who reviewed Hager's claim file for Allstate testified that the insurance company fulfilled its duties under the law. Michael McDonald of Louisville was an appeals court judge from 1980 to 1995. Before that, he was a circuit court judge in Jefferson County. He was elected in 1971. McDonald is to continue testifying Tuesday afternoon.

Jury awards $3 million to man who had leg torn off by tractor-trailer

lawmed10@yahoo.com;5163141195@vtext.com (News Author)3522 — Fri, 05 Oct 2007 08:00:00 EST

Jury awards $3 million to man who had leg torn off by tractor-trailer by Cheryl Caswell Daily Mail staff A Kanawha jury has awarded a Hernshaw man $3 million after he was run over by a tractor-trailer at the Marmet Go-Mart in June 2005. Joe Meadows, 46, who admitted that he drank a number of beers before the accident, lost his leg in the incident involving a truck making a late-night delivery. Meadows had asked for $2,336, 449 in compensation for his injuries. Meadows sued Gassaway-based Go-Mart, the North Carolina-based Davenport trucking company and the truck driver, Doug Rader of Canvas. The jury decided that each was partly negligent and will pay an equal share of damages to him as a result. Attorney Joanna Tabit, who defended Davenport and Rader, tried to convince jurors that Meadows was responsible for his own fate since he had been drinking. A Go-Mart employee, Tristan Hicks, testified that Meadows was stumbling and slurring his speech when he encountered him just before the accident. Meadows said the truck knocked him down as it pulled out and the rear tires ran over his leg, tearing it off. Tabit told the jury that due to Meadows' inebriated state, it was more likely that he was already lying underneath the vehicle when it began to move. "What happened to Mr. Meadows was a tragic accident," she said. "But it wasn't due to Mr. Rader's negligence. He would have never expected a person to be lying under his truck." Meadows' blood alcohol content measured at Charleston Area Medical Center after the accident was .296, well above the legal limit to drive a vehicle. Tabit said Rader acted in a reasonable way when he finished his delivery, got back in his rig and checked his mirrors before pulling out of the Go-Mart parking lot at about 1:40 a.m. on June 13, 2005. "If everything was clear, how did Joe get run over?" asked Bill Forbes. "Who's responsible for this? Joe did not run over the truck. The truck ran over Joe." Dr. Mark Reaser, a toxicologist from West Virginia University testified by video that Meadows' blood alcohol level indicated that he had to have had more than 12-13 beers prior to the accident. Meadows defense attorneys, who included former Kanawha prosecutor Bill Forbes, told jurors that the trucking company and Go-Mart requested their trucks park near the front entrance of the store to make deliveries and that it was unsafe. Jesse Forbes told them, "The driver forgot to walk around his truck before he pulled out." According to Rader and police reports, after he pulled onto MacCorkle Avenue he noticed a body lying in the Go-Mart lot and turned back in. A trained emergency medical technician, Rader administered aid to Meadows. He was taken to Charleston Area Medical Center for treatment. Meadows, who is in a wheelchair, testified that because of his injury, he has difficulty with many daily tasks. He said he falls in the shower a lot, and isn't able to play with his children the way he did before. While the defense attempted to characterize Meadows as an irresponsible man who had a drinking problem and worked sporadically over the years, Bill Forbes told the jury his client was a hardworking man who didn't deserve to be run over at a convenience store. Bill Forbes said, "Every time he's been knocked down, he's gotten up."