Medical Malpractice: Proving that a Doctor Deviated from Accepted Standards of Medical Care June 10, 2010
Posted by Carol L. Schlitt in Medical Malpractice.Tags: Medical Malpractice, New York Medical Malpractice Attorney, New York Personal Injury Lawyer, ny personal injury attorney
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In New York, as in many other states, proving a case of medical malpractice requires that a person prove two points:
- That the doctor or medical professional deviated from accepted standards of medical care; and,
- That the deviation caused substantial harm.
The standard for proving medical malpractice is high. Not every bad outcome constitutes medical malpractice and sometimes a doctor’s treatment deviates from good and accepted practice, yet that deviation does not result in a worse outcome. If you believe that you or a loved one has suffered from medical malpractice in New York, you should consult a New York attorney experienced with medical malpractice. Most medical malpractice attorneys will evaluate your case free of charge.
Assessing a Medical Malpractice Case
I read in the newspapers about lawyers who immediately rush to file lawsuits claiming millions of dollars in damages. In reality, they do their clients a disservice by filing charges before they fully assess the case. A rush to file a lawsuit can lead to errors, including failing to sue the correct person and failing to identify the correct claims and to present them in a way that best serves the client’s case.
I have developed a thorough process to evaluate each medical malpractice case so I can advise my clients on the best actions for them to take and, if we pursue a medical malpractice lawsuit, prosecute the strongest case possible. I begin by thoroughly interviewing my client and family members if necessary. It is important to understand what happened from the victim’s point of view and important to understand what impact the medical malpractice has had on their lives.
Reviewing Medical Records
I collect all the relevant medical records. Retrieving medical records should be a simple process, but often requires diligent follow up as some providers illegally resist releasing records. I then organize the medical records and analyze them.
I consult with a highly regarded nurse reviewer who helps in this process. In this initial review, we can identify the steps taken (or not taken), procedures and tests performed (or not performed) and the patient outcomes. The medical records are very revealing and usually hold the essential information for a potential case. By this point, we can usually determine if medical malpractice has occurred.
In a recent case, we were able to identify falsified records where nursing home staff made entries in the records after the fact in an attempt to cover up medical malpractice. The ability to identify those falsified entries depended upon the very careful review of the medical records and the years of experience that my nurse reviewer and I have in assessing medical records.
Receiving a Medical Opinion
After assessing the medical records with the nurse reviewer, I provide a preliminary assessment to my client and we decide on the next steps. If the record review suggests that medical malpractice did occur, I take the following steps:
- I consult with a physician to review the records and give me a verbal opinion.
- I work with the nurse reviewer to identify any published medical standards that may apply to the case. For example, many professional associations, such as the American Academy of Pediatrics, publish standards that doctors should follow in treating a particular condition.
- I conduct a case review to find similar cases.
If the consulting physician finds malpractice, I then prepare a full assessment of the case for my client. This assessment is a detailed written review of the facts of the case, of the liability arguments and the damages. It includes both a trial and a settlement strategy. I review this assessment with my client and incorporate any feedback from my client.
Filing a Medical Malpractice Lawsuit in New York
At that point, we are ready to file the lawsuit. Before doing so, I will approach the other aside about a settlement. Sometimes a defendant will agree to settle a suit at this point because it enables them to avoid substantial legal fees.
New York medical malpractice law requires the attorney to file a certificate that he or she has consulted with a medical expert who verifies the case meets both requirements. Therefore, we cannot file the lawsuit unless and until we have thoroughly reviewed the medical record and received a medical opinion that medical malpractice did occur.
Proving a Variation from Good and Accepted Medical Malpractice
Winning a medical malpractice case depends on proving to the jury that a doctor (or other medical professional) varied from accepted standards of care. Doing so requires a combination of substance and showmanship or, in other words, science and art. We build our case around the substance and science of the medical review and professional opinions. We win the case by presenting that information in a persuasive manner. I rely on the following approach:
- Presenting expert testimony: We will have doctors testify about the variation form good and accepted practice. The doctor must have the same specialty as the doctor on trial, so if the case involves an orthopedist, then we will have an orthopedist provide expert testimony. I work with a group of professionals who possess strong credentials, proven expertise and the ability to present complex medical information in ways that juries can readily understand.
- Presenting the medical records: We will walk the jury through the medical records to both document our case and to tell the story of what happened. Juries need to see the records to verify what transpired, but they need to hear a story to both understand and believe.
- Presenting diagrams, photographs and other presentation materials: Court proceedings can be dry and very long. Juries are often surprised because they see the fireworks that occur in TV courtroom dramas. I work with experts to enliven the proceedings and to make clear our case by presenting photos, diagrams and other presentation materials. Many jurors want visual evidence to understand a case.
- Cross-Examining the Defendant: I usually call the defendant doctor before calling my expert doctor. I want to let the defendant lay out exactly what he or she did or failed to do so that the expert testimony will show how they deviated from standard medical practices.
Pursing Medical Malpractice Cases in New York
In recent years, medical malpractice lawsuits have gained notoriety. Some have claimed that medical malpractice lawsuits have raised medical costs for everyone. The facts suggest otherwise – as awards paid in medical malpractice cases have declined, medical malpractice insurances costs that doctors pay have risen.
Medical malpractice cases are very important to me. I listen to patients and families who have suffered great hardship and their stories can be very emotional. I often need to tell patients that they may have suffered a bad result, but they do not have the grounds for a medical malpractice case. I never rush to judgment. If I believe that medical malpractice occurred, I conduct a through evaluation before drawing any conclusions.
If I do find that medical malpractice occurred, I fight as hard as I can for my clients. They deserve justice and compensation for their damages. Our medical system depends on us holding doctors accountable for their malpractice. The vast majority of doctors do a great job providing medical care, but when medical malpractice occurs, my clients depend on me to bring them justice.
I hope you found this information helpful. Please email me if you have comments, questions or would like assistance with a medical malpractice case. You can also visit my website or read more on my blog, New York Law Thoughts.
Carol L. Schlitt
New York Personal Injury Attorney
www.SchlittLaw.com
1-800-660-1466
Carol@SchlittLaw.com
This material is intended for informational uses only. It is not meant as legal advice. To receive legal advice, you should consult an attorney.
Medical Malpractice: Painful Lessons Learned from the Liew Kidney Lawsuit June 2, 2010
Posted by Carol L. Schlitt in In the News, Medical Malpractice.Tags: kidney lawsuit, Medical Malpractice, New York Medical Malpractice Attorney, New York Personal Injury Lawyer, ny personal injury attorney
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Last week, a Queens jury cleared the NYU Langone Medical Center and one of its doctors of medical malpractice in a case that involved the death of a patient after a kidney transplant. Vincent Liew died at age 37 in 2002, less than one year after receiving the kidney because the transplanted organ infected him with uterine cancer. This is a tragically sad case that cost a man his life and left behind a grieving widow. It provides key lessons for patients and lawyers.
Facts of the Case
Victor Liew developed kidney disease from diabetes and his kidneys weakened to the point that he required a transplant. The waiting list for an organ transplant is long and there is no guarantee that a patient will find a matching organ. Waiting for an available organ is very stressful; finding an organ brings great joy.
In April 2002, the hospital notified Mr. Liew that a matching kidney was available. Mr. Liew underwent the transplant, but he immediately experienced problems with the kidney. He ultimately died in August of 2002 and an autopsy revealed that he died of uterine cancer.
You can read about this case in the archives of the Daily News and the New York Post.
What went wrong?
The donated kidney came from a woman who died of a stroke at St. Luke’s Cornwall Hospital in upstate Newburgh. The New York Organ Donor Network matched the organs with the recipients. At least three patients received organs (kidneys and a heart) from that woman and all three patients died shortly after the transplant.
It turns out that the donor had uterine cancer and the hospitals, doctors and patients receiving the organs were unaware of that fact. In Mr. Liew’s case, he and his doctor were unaware that the kidney he was about to receive carried this deadly disease.
Why did the jury find the doctor not guilty?
Mr. Liew’s original attorney sued the doctor but no one else. However, the doctor was not at fault here. The mistake came somewhere between the original hospital and the New York Organ Donor Network, which failed to screen the donated organ. The statute of limitations against the original hospital and the New York Organ Donor Network expired. Mr. Liew’s widow hired a new lawyer who continued the case against the doctor. Ultimately, a jury found that the doctor was not at fault; he had followed good and accepted medical practice in relying on the integrity of the original hospital and the Organ Donor Network to properly screen organs before transplant.
It is interesting to note that the hospital where Mr. Liew received his kidney (NYU) is suing both St. Luke’s Cornwall Hospital and the New York Organ Donor Network for failing to adequately screen the donated organ.
Lessons Learned
This case offers a few lessons for attorneys and patients. First, it is important to recognize that medical malpractice cases are hard to prove in court. You must prove that the offending health care provider deviated from good and accepted medical care and that the deviation caused substantial harm. In the Liew case, Mr. Liew and his widow suffered substantial harm but not because of the actions of Mr. Liew’s doctor.
Second, not all bad outcomes result from medical malpractice. I have seen enough cases that have caused great sadness, but not resulted from deviations from good and accepted medical practice. Sometimes excellent doctors and medical professions do their jobs well and patients still die or suffer poor outcomes. However, in those cases where the medical professionals did not follow good and accepted medical practice, it is important to hold them accountable and to press medical malpractice claims.
It is also important to identify who caused the damage. Simply put, attorneys must know whom to sue. In this case, the original attorney hired by the Liew family failed to identify the parties that had committed the error and caused Mr. Liew’s death. They sued the wrong person.
Facts about Organ Transplants
Please do not let this case make you fearful of organ transplants. The federal Centers for Disease Control and Prevention estimate that 1 percent of U.S. organ transplants are suspected of transmitting illnesses. There are over 100,000 people in the United States waiting for a transplant as I write this article. If you are interested in donating your organs, you can take the following actions:
- Register with your state’s donor registry. Most states have registries. Check the list at OrganDonor.gov.
- Designate your choice on your driver’s license. Do this when you obtain or renew your license.
- Sign and carry a donor card. Cards are available from OrganDonor.gov.
If you want to learn more about organ transplants or if you have questions, click here for a good article from the Mayo Clinic.
Medical Malpractice Laws and Lawsuits in New York
If you want to learn more about medical malpractice in New York, you can check my website where I provide extensive information. I have written a number of articles on the issue, including one entitled “Medical Malpractice: Sometimes It’s What the Doctor Doesn’t Do,” one on the statute of limitations for medical malpractice lawsuits and one on bedsores and medical malpractice. Although some people believe that we need limitations on medical malpractice suits, I refute that assertion in an article on a court striking down caps on medical malpractice awards in Georgia.
If you have legal questions regarding potential medical malpractice, you may want to consult an experienced and successful medical malpractice attorney. I handle medical malpractice cases in New York and if you have a medical malpractice question in New York, I will be glad to answer your questions and assist you. You can call me at 1-800-660-1466 or email me.
I hope you found this information helpful. Please email me if you have comments, questions or would like assistance with a medical malpractice case. You can also visit my website or read more on my blog, New York Law Thoughts.
Carol L. Schlitt
New York Personal Injury Attorney
www.SchlittLaw.com
1-800-660-1466
Carol@SchlittLaw.com
This material is intended for informational uses only. It is not meant as legal advice. To receive legal advice, you should consult an attorney.
Medical Malpractice: Sometimes It’s What the Doctor Doesn’t Do June 1, 2010
Posted by Carol L. Schlitt in Medical Malpractice.Tags: Medical Malpractice, New York Personal Injury Lawyer, ny personal injury attorney
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We often think medical malpractice results from a doctor or health care provider doing something wrong. Sometimes, medical malpractice results from what a doctor fails to do.
A few years back, a fifty year-old man went to his internist seeking assistance in losing weight. The internist put him on phentermine, a weight loss drug that the manufacturer recommended be used for no more than eight weeks. The physician kept the patient on the drug for two years and failed to monitor his cardiac, circulatory or pulmonary functions despite warnings that this drug could affect those functions. The patient developed pulmonary hypertension and right ventricular heart failure and returned to see his physician. The covering physician failed to order even basic tests and failed to detect these life-threatening disorders. As a result, the patient’s condition worsened until taken to the hospital where he suffered complete pulmonary failure and nearly died.
The good news is that the man sought care from new physicians and has recovered, though he still has a weakened heart and some lung damage. The man came to me asking if he had a case of medical malpractice against his original doctors.
The Standard for Medical Malpractice in New York
Bringing a medical malpractice case in New York is quite difficult. Though I am a medical malpractice attorney, I believe it should be difficult to bring a malpractice case. Not every bad outcome is a result of medical malpractice. That said, if medical malpractice does occur, it is important to pursue the matter. Medical malpractice lawsuits bring justice to victims and help improve the safety of our heath care system.
To bring a medical malpractice lawsuit in New York, you must establish the following:
- That there was a substantial deviation from good and accepted medical practice;
and
- That the deviation caused significant harm.
New York medical malpractice law requires the attorney to file a certificate that he or she has consulted with a medical expert who verifies the case meets both requirements. It is not enough to show a deviation from good and accepted practice; one must prove that it caused the negative outcome. Similarly, a case may have a negative outcome, but it may not have resulted from a deviation from accepted practice. In New York, a medical malpractice case must meet both conditions to succeed.
Medical Malpractice in this Case
In this case, we were able to prove a substantial deviation from good and accepted medical care against both the treating physician and the covering doctor. The treating physician prescribed powerful medicine for too long without monitoring the patient’s condition. The fact that the overweight patient failed to lose weight only heightened the deviation from accepted care as the physician failed to perform even the most basic medical tests and failed to consider alternative weight-loss strategies. Likewise, the covering physician failed to perform basic tests that could have prevented the patient’s pulmonary failure.
We were able to prove that the doctors’ failure to monitor their patient directly led to the pulmonary failure. Had the doctors performed basic monitoring and tests, they could have helped the patient avoid the collapse and hospitalization. There was no better proof of their failure than the patient’s recovery under the care and treatment of new doctors.
At trial, the defense tried argued that the patient’s obesity and lifestyle caused his medical condition. That argument was flawed – every patient goes to the doctor when he or she is sick. The doctor has to properly treat every patient, not just the patients who are healthy and fit. Faced with the evidence, expert testimony and case findings that we assembled for the trial, the defense settled this medical malpractice case during trial. The defending physicians paid a combined settlement of $970,000.
The case shows that medical malpractice can result from what a doctor fails to do as much as from what a doctor may do. If you have legal questions regarding potential medical malpractice, you may want to consult an experienced and successful medical malpractice attorney. I handle medical malpractice cases in New York and if you have a medical malpractice question in New York, I will be glad to answer your questions and assist you. You can call me at 1-800-660-1466 or email me.
I hope you found this information helpful. You can read about medical malpractice statute of limitations in New York here and more the process of bringing a medical malpractice case here. Please email me if you have comments, questions or would like assistance with a medical malpractice case. You can also visit my website or read more on my blog, New York Law Thoughts.
Carol L. Schlitt
New York Personal Injury Attorney
www.SchlittLaw.com
1-800-660-1466
Carol@SchlittLaw.com
This material is intended for informational uses only. It is not meant as legal advice. To receive legal advice, you should consult an attorney.
Medical Malpractice from Bed Sores in a Nursing Home or Hospital May 24, 2010
Posted by Carol L. Schlitt in Medical Malpractice.Tags: bed sores, bedsores, decubitus ulcers, long term care cases, Medical Malpractice, New York Medical Malpractice Attorney, New York Personal Injury Lawyer, nursing home cases, ny personal injury attorney, pressure sores
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I am currently working on a case for a widow whose husband developed bed sores while in the hospital and those wounds caused him to develop two serious infections: sepsis and Clostridium difficile. The bed sores were so severe and the infections so strong that they persisted for more than a year and he ultimately died from a combination of cardio respiratory arrest and sepsis. The sad truth is that these bed sores should never have occurred. In fact, all bed sores are preventable and at worst, if one begins to develop, immediate action can lead to rapid healing with no damage.
Never let anyone tell you that bed sores are an accepted fact of life of long term care. They are not. The overwhelming number of long-term hospital and nursing home patients never develop bed sores thanks to the application of good standards of care, the use of modern technology and the diligent work of the medical staff.
The presence of bed sores, particularly advanced bed sores, is almost always an indicator that medical malpractice has occurred. Advanced bed sores are very painful, difficult to treat and can lead to life-threatening infections as they did in the man whose widow I now represent.
This article provides basic information on bed sores by explaining what they are, how they form, how to prevent bed sores, the four stages of bed sores and how they are treated. This information is not a substitute for medical or legal advice. If you need medical treatment, please see a medical doctor as soon as possible. If you need legal advice, you should consult an experienced medical malpractice attorney.
What are bed sores?
Bed sores, sometimes spelled as bedsores and sometimes known as pressure sores are decubitus ulcers. These pressure ulcers result from prolonged pressure on the skin, though repeated friction can cause bed sores as well. They may begin as a mild pink mark on the skin though they can develop into open and deep wounds that extend to or even through bones.
How do Bed Sores Occur?
A bed sore will develop when a person’s skin becomes trapped between his or her bones and an external surface, such as a hospital bed or a wheelchair. If this condition persists, a lack of blood circulation will occur and the skin will decay. It is easy to understand how repeated friction can cause the skin to blister or tear. Bed sores develop their name because they often occur during a prolonged hospital or nursing home stay when a person may lay in bed for hours or days on end with little or no movement.
Bed sores most often develop near bony areas of the body. For example, these skin ulcers will develop when a patient’s skin becomes trapped between the hip bone and a nursing home mattress for an extended period of time. Other bones that frequently become involved with bed sores include the spine, tailbone, elbow, heel and foot.
The longer a person goes without moving, the more likely a bed sore will form and the longer it goes untreated and the pressure unalleviated, the worse the bed sore will become. Nursing homes with lax standards or inadequate staffing often produce conditions where patients develop bed sores.
Preventing Bed Sores
The best way to avoid bed sores is to ensure regular movement of the body and to keep the person well-hydrated and well nourished. The hydration and nourishment promote healthy skin and good blood flow. The regular movement ensures that no part of the skin becomes trapped for a prolonged period of time. Standard protocols in nursing home and extend hospital stays require moving a bed-ridden at least once every two hours.
Here is a list of standard ways to prevent bed sores:
I cannot stress enough the importance of prevention. Given the available body of knowledge and experience, there is no reason for patent to develop a serious bed sore or decubitus ulcer. If a patient develops a Stage One bed sore (pink or red skin), rapid recognition and treatment will led to immediate healing and the prevention of a more serious condition.
Four Stages of Decubitus Ulcers or Bed Sores
Like other wounds, bed sores are categorized in four stages according to severity:
Stage One: Intact skin with redness. The treatment consists of identifying the source of the bed sore and alleviating pressure as well as covering and cushioning the affected area. Doctors will take steps to ensure an adequate diet and adequate hydration and may prescribe increased Vitamin C and zinc. Stage One bed sores may heal themselves and are readily treatable. The key is to identify the source of the wound and to prevent any worsening of the condition.
Stage Two: This stage involves blistering of the skin, though the blister may be either broken or unbroken. The most notable change from a Stage One wound is that the skin is now injured. In addition to the same steps taken to treat a Stage One wound (i.e., alleviating pressure), Stage Two wounds require wound dressings that not only protect the affected skin area, but also provide insulation and absorption of any fluids. Doctors may use skin lotions to hydrate the area and will monitor nutrition as well. It is critically important to aggressively treat a Stage Two bed sore to prevent any worsening. Stage Two wounds are readily treatable and any worsening only results from a lack of sufficient care.
Stage Three: This stage involves a clear break in the skin and the wound may extend through all layers of the skin. Infections are likely to occur, making a Stage Three wound particularly dangerous. The treatment of Stage Three wounds can be difficult and requires immediate efforts to alleviate pressure and to cover and protect the wounded area. Doctors may use antibiotics to treat infections that develop.
Stage Four: This stage involves an open wound that extends through the skin and affects underlying tissue such as muscles, tendons or ligaments. Stage Four wounds can affect bones and organs. Stage Four wounds are very painful and can be life-threatening. Treatment usually requires the intervention of a wound specialist and may require surgery.
Treating the Serious Bed Sore
The best treatment is prevention as prevention is much easier than treating the serious skin ulcer.
All stages of bed sores require at least two forms of treatment:
If the bed sore breaks the sin, then medical providers must take additional actions to protect the wound and facilitate healing. The medical staff should provide a dressing for the wound and may use a lotion to help the healing. If the bed sore is infected or oozing fluids, then the medical staff must keep the wound clean, usually by using a saline solution to help clean it. If dead skin develops, the doctors will remove the dead skin (known as debriding). Doctors may irrigate the wound to keep it clean.
The deepest bed sores are the most difficult to treat. Some doctors may use surgery to place a layer of skin over the wound. They will also use antibiotics to treat infections.
Patients with Bed Sores
It can be very difficult to learn that a loved one has developed bed sores. We may feel guilt for not preventing the wound, even though we did our best to ensure our loved ones receive good medical care. We may experience anger at the medical staff. The best thing we can do is to ensure that the medical provider acts aggressively to treat the bed sore and prevent further bed sores.
If you have questions about bed sores that you or a loved one has developed, you should seek the care of a good doctor, perhaps a wound care specialist. If you have legal questions regarding bed sores and medical malpractice, you may want to consult an experienced and successful medical malpractice attorney. I handle medical malpractice cases in New York and if you have a bed sore or medical malpractice question in New York, I will be glad to answer your questions and assist you. You can call me at 1-800-660-1466 or email me.
I hope you found this information helpful. Please call or email me if you have comments, questions or would like assistance with a medical malpractice case. You can also visit my website or read more on my blog, New York Law Thoughts.
Carol L. Schlitt
New York Personal Injury Attorney
www.SchlittLaw.com
1-800-660-1466
Carol@SchlittLaw.com
This material is intended for informational uses only. It is not meant as legal advice. To receive legal advice, you should consult an attorney.
The Statute of Limitations for Medical Malpractice Cases in New York State April 21, 2010
Posted by Carol L. Schlitt in Medical Malpractice, New York Law.Tags: Medical Malpractice, New York Laws, New York Medical Malpractice Attorney
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I receive more questions about medical malpractice cases than any other type of case. Medical malpractice cases can be very emotional and confusing. Sometimes it is hard to differentiate between a poor outcome and medical malpractice. When a person has questions, he or she should consult a New York medical malpractice attorney for guidance.
What is New York’s Statute of Limitations for Medical Malpractice?
Potential clients often ask how long after medical treatment they can timely file a medical malpractice case. According to New York State Law, a person must file a medical malpractice lawsuit no later than two and a half years (30 months) from the act or omission named in the complaint or from the end of the continuous treatment during which the act or omission took place. There are cases with different timeframes. For example, claims against municipal hospitals or clinics face much shorter filing dates.
Examples of Medical Malpractice Cases
Let’s look at some examples. I had a client who sought treatment for obesity and his physician prescribed a short-term weight loss pill. That pill had potential damaging side effects that required careful monitoring of the patient’s condition and limited the duration a patient should have taken the medicine to no more than three months. In this case, the physician prescribed the drug for more than two years and failed to monitor the patient’s vital signs. Eventually, the patient developed respiratory failure and wound up in the hospital near death. We conducted a thorough investigation and determined that the physician committed malpractice. The initial malpractice began when the physician prescribed the diet drug for more than three months and failed to monitor the patient’s vital signs. However, the patient received continuous care from that physician for over two more years so the “clock” on the statute of limitations did not begin until after the continuous treatment ended.
Here is case that falls outside the statute of limitations. A client goes to a doctor complaining about an odd discoloration on his back. The doctor dismisses the patient’s concern as needless worrying. Three years later, the patient sees another doctor who looks at this growing discoloration and determines that it is a melanoma that has spread and now threatens the patient’s life. The second physician remarks that had the first doctor properly diagnosed the patient’s condition, the patient most likely would have avoided extensive surgery and the risk of death. The patient wants to sue the first doctor but cannot because that visit occurred more than two and a half years ago and the patient had not seen that doctor since. Unlike many other states, New York does not have a toll on the statute of limitations when the patient has no reason to know that malpractice has been committed.
Here is another example. A patient enters a nursing home in July of 2006 and the treating physician issues orders to accompany the patient to the bathroom or anytime she gets out of bed. During the first week, the patient requests assistance to go the bathroom, yet no one comes to assist her. She eventually gets up on her own, falls and breaks her hip. The nursing home transfers her to a hospital for treatment of the broken hip and the patient returns to the nursing home from the hospital. In January 2010, the patient’s daughter learns the circumstances of how her mother broke her hip and transfers the patient to another nursing home. The daughter wants her mother to sue but is worried since the incident took place nearly three and a half years earlier. Because the patient received continuous care from the nursing home, the clock on the statute of limitations did not start until January 2010 when the patient transferred to a new facility.
The Continuous Care Provision Only Applies to Medical Malpractice Cases
The continuous care protection only applies in medical malpractice cases. Consider a variation on the previous example. Suppose the patient was not under medical orders to receive an escort to the bathroom. The patient gets up in the middle of the night to go the bathroom and slips and falls on a puddle that the maintenance staff failed to clean. She breaks her hip. That injury would result from the negligence of the nursing home and not medical malpractice. The statute of limitations for negligence cases is three years so it would expire in July 2009. If the woman did not file a claim until January 2010, the case would be dismissed for falling outside the statute of limitations.
When in Doubt, Seek the Advice of a New York Medical Malpractice Attorney
As you can see, New York’s medical malpractice laws have many subtleties that can dramatically affect the ability to bring a medical malpractice lawsuit. If you have questions, you should consult an experienced New York Medical Malpractice attorney. That attorney can assist you in determining if your case involves medical malpractice and falls within the statute of limitations. If you want more information on medical malpractice law in New York, you can click here to visit my web site.
This material is intended for informational uses only. It is not meant as legal advice. To receive legal advice, you should consult an attorney.
I hope you found this information helpful. Please call or email me if you have comments, questions or would like assistance with a medical malpractice case.
Carol L. Schlitt
New York Medical Malpractice Attorney
www.SchlittLaw.com
1-800-660-1466
Carol@SchlittLaw.com
Georgia Supreme Court Strikes Down Malpractice “Caps”: A Victory for Victims March 25, 2010
Posted by Carol L. Schlitt in Medical Malpractice.Tags: caps on damages, Medical Malpractice, ny personal injury attorney, tort reform
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The Georgia Supreme Court has become the latest state court to strike down a limit on malpractice awards (See the New York Times article here). The Illinois Supreme Court took similar action last week. These decisions are good news for victims, patients and our nation.
What’s going on here? Efforts to cap medical malpractice awards are wrong-headed for two reasons.
Caps on awards for pain and suffering undermine the role and rights of judges and juries and therefore undermine the separation of powers that serves as the foundation of our government. As Georgia Chief Justice Carol W. Hunstein wrote, “The very existence of the caps, in any amount, is violative of the right to a trial by jury.” The decision to determine the proper compensation for pain and suffering in medical malpractice cases rests with judges and juries. If a defendant believes an award is too high, the defendant has the right to appeal the award. This system works and does not require change.
Caps on medical malpractice awards are the wrong solution for the problem of rising medical malpractice premiums. Here’s the evidence:
- California established caps on medical malpractice way back in 1975. They failed to slow the growth of medical malpractice rates which increased by 450 percent over the next 13 years. Those insurance rates finally stabilized only after a ballot referendum increased government regulation of the insurers and made the Insurance Commissioner an elected position answerable to the people.
- Texas enacted medical malpractice caps in 2004. Within six months, the largest medical malpractice insurer in Texas filed for a 19 percent rate increase. The filing said: “Non-economic damages are a small percentage of total losses paid. Capping non-economic damages will show loss savings of 1.0%.” That’s right: caps would account for no more than a 1% savings and they sought a 19% increase.
- Illinois instituted premium caps in 2005, though a court recently struck down that law. Supporters argued that rising insurance premiums were a result of large court settlements and doctors were leaving the state because of the high premiums. Duke University studied the issue and determined that the cap supporters had their facts wrong. From 1993 to 2003, the number of doctors in Illinois increased – even in obstetrics and gynecology. The Duke study concluded that a limit on awards “would have resulted in a minimal reduction in overall payouts to plaintiffs and would be unlikely to affect doctor’s liability insurance premiums.”
- In 2003, a Congressional hearing determined that the five states with the highest malpractice premiums (Florida, Michigan, Nevada, Ohio, and West Virginia) all had limits on malpractice awards. Oklahoma, the state with lowest medical malpractice insurance premiums, did not.
- The Robert Wood Johnson Foundation did a study of medical malpractice insurance and found that only 40 percent of the premium dollar actually went to injured patients. That means that 60 percent of the premium dollar went to administration and profit. Any change in payments made to patients would only affect 40 percent of the medical malpractice premiums.
Medical malpractice rates move in a cyclical fashion and the actual amounts paid to patients has little impact on premiums. What drive premium changes? Interest rates, economic conditions and market share. Capping medical malpractice awards does not lower the insurance premiums that doctors face, but those caps do create inequities by denying severely injured patients access to adequate compensation.
Legislated caps on medical malpractice awards undermine the constitution, fail to lower medical malpractice insurance premiums and create inequities among malpractice victims. Limits on damages are a bad idea and all you have to do is look at the facts to see it.
If you or a loved one believes you have been injured due to medical malpractice, you should contact an experienced New York Medical malpractice attorney. If you have questions, you can call me and I will be glad to discuss your rights, answer your questions and help with a potential case. You can call me at 1-800-660-1466 or send me an email at Carol@SchlittLaw.com. The consultation is free and I will gladly assist you.
Carol L. Schlitt
New York Personal Injury Attorney
1-800-660-1466
Carol@SchlittLaw.com
