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Medical Malpractice: Do I Have a Case? January 24, 2012

Posted by Carol L. Schlitt in Medical Malpractice.
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As a successful medical malpractice attorney, I receive many referrals for medical malpractice cases directly from potential clients or other attorneys. One quarter of all calls to my office ask: is this a medical malpractice case? I want to use this forum to help potential clients to understand what qualifies as a medical malpractice case. The lesson from today’s case is that medical malpractice cases depend upon the evidence in the medical records.

A Potential Medical Malpractice Case on Long Island

A Long Island man needed surgery to repair a herniated disk in his neck. A surgeon in Nassau County performed the surgery which was a success. The operation relieved the man of the excruciating pain in his neck. However, immediately after the surgery, the man experienced pain in his right shoulder. After two weeks of pain, he sought help from a new orthopedist who diagnosed a torn right labrum. He needed a second surgery to repair the injured shoulder.

To the man, the only explanation for the injury to his right shoulder was that the surgical team had injured him while he was under anesthesia on the operating table. In fact, the muscles of the body are very relaxed under anesthesia and it takes many staff members to move and position a patient. The man could have been injured due to the surgical team moving or positioning his body. Was this a case of medical malpractice?

Examining the Medical Records in a Malpractice Case

We requested the man’s medical records and reviewed them with our medical review team and medical malpractice consultants. The records confirmed and verified that the man had suffered a torn right labrum. We needed to find evidence in the record that the injury occurred during the operation.

If a problem developed during the surgery and the surgical team was aware of it, then we should have found a record of the incident. The incident could be recorded in the medical records or in a separate incident or event report. Despite receiving the complete hospital record, there was no such report on file.

In examining the outpatient records following the surgery, we did find a complaint by the man about the pain in his right shoulder, but it did not come until two weeks later when visiting a physical therapist. There was no record that he complained of any pain in the two days he spent in the hospital following the surgery.

Did the man suffer a torn labrum on the operating table? Perhaps yes. Was that malpractice? Perhaps yes. However, the medical records do not provide the evidence to support a claim of malpractice. Unless a person in the operating room came forward with new information, there was not enough to prove medical malpractice.

Clients often worry about forged records or records “cleaned up” to hide evidence. In fact, it is very hard to cover up something in a hospital record and it is usually easy to see if something has been deleted or added after the fact. A close examination of the records by our medical review team found no evidence of tampering or anything missing. (I did find evidence of false entries in this wrongful death/medical malpractice case and you can read about it here.)

The man was right to ask if he was a victim of medical malpractice. From his description, it appeared that he might have been injured due to medical negligence, but we needed the medical records to support his story with solid documentation. We retrieved the records and our medical malpractice team reviewed the file, but the evidence did not support the claim.

What is the lesson here? Even if it appears that medical malpractice may have occurred, one can only identify malpractice after reviewing the medical records with the right team of medical and legal experts.

I hope you found this information helpful. If you want to learn more about medical malpractice cases in New York, you might want to read this article.  If you or a loved one has been injured due to medical malpractice, you may want to consult a New York attorney experienced with medical malpractice cases. I would be glad to answer your questions and assist you. The consultation is always free. You can call me at 1-800-660-1466 or email me. 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
http://nylawthoughts.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. Remember, past results do not guarantee similar outcomes in the future.

All content of this site:
© copyright 2010-2012 by Carol L. Schlitt
The material presented in this blog may not be reproduced or appropriated in any way without the explicit permission of the author.

The Failure to Diagnosis a Heart Defect [ASD] Becomes Medical Malpractice in New York December 7, 2011

Posted by Carol L. Schlitt in Medical Malpractice.
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A significant percentage of medical malpractice cases result from a failure to diagnose a condition and that failure to diagnose leads to later problems. I have recently taken on another failure to diagnose malpractice case here on Long Island. A man showed up at the local emergency room with symptoms of a stroke. Doctors admitted him overnight and ran a battery of tests, then discharged him with a referral to follow up with a cardiologist. Those doctors treated him over several months.

Despite these consults, the man later suffered a major stroke and went to a second Long Island hospital. At the second hospital, doctors performed a TransEsophageal echocardiogram (TEE) which immediately identified that the man had a hole in his heart and that condition had caused his strokes.  A short time later, the man underwent surgery to repair the hole in his heart and eliminate that cause of a potential stroke.

The failure of the first hospital and the cardiologist to run the TEE meant they failed to diagnose the hole in the man’s heart. Had they properly diagnosed the man’s condition, he would not have suffered the second, more serious stroke and he would have avoided the problems it has caused him. This failure to diagnose provides the grounds for a medical malpractice claim.

The Nature of the ASD

An ASD, atrial septal defect, is a “hole in the heart.” It develops when the right and left atria do not fully close and leave a hole. Since this is a congenital defect, people who have an ASD have had it since birth.

I am particularly familiar with the ASD since our youngest son was born with this defect. He has Down Syndrome and an ASD is often found in people born with Down Syndrome. The size of the hole in his heart was large enough to create problems in his infancy and he underwent surgery at three months to fix this problems. He is doing great today as a very active sophomore in high school.

Many do not know they have an ASD until much later in life. Sometimes it presents in athletes who cannot obtain peak performance because of it. Often a doctor will hear a heart murmur and further testing will reveal the ASD. An ASD can lead to problems such as cardiac arrhythmias, heart failure, pulmonary problems or stroke.  Because this condition is not rare, doctors should consider the possibility of an ASD when evaluating a patient’s condition.

The Failure to Diagnose

In this case, a  Long Island man experienced a loss of peripheral vision and went to his local hospital. He had a history of hypertension and high cholesterol, for which he received medication. He was admitted overnight and given a neurological consult, including an MRI that diagnosed the stroke and a carotid Doppler to assess the degree of occlusion in the brain. They also conducted a standard echocardiogram. However, the hospital did not determine the cause of the stroke and discharged the man the next day with a referral for a follow up with a cardiologist.

The man saw that cardiology group a half dozen times over the next two years. He followed doctor’s orders by taking his medications, exercising and maintaining his weight. The cardiologist did perform some basic tests, including an echocardiogram, an EKG and a cardiac stress test.

Nonetheless, the man went on to suffer a major stroke and a second hospital diagnosed the cause immediately. What had the first hospital and the cardiologist done wrong? The man had suffered a stroke due to a blood clot, yet he displayed no risk factors for having a clot. Standard practice in this case would include a full cardiac consult and a TransEsophageal echocardiogram (TEE). The failure to run the TEE meant the hospital and the cardiologist failed to diagnose the cause of the stroke and that led to the later, more significant stroke.

Proving a Medical Malpractice Case in New York

In New York, 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.

In this case, the failure to conduct the TEE constitutes a deviation from good and accepted practice. The substantial harm came in the form of the second stroke and the damage it has caused the man.

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. In this case, the failure to run a standard test meant the hospital and the cardiology group failed to diagnose the ASD.

If you or a loved one has been injured due to medical malpractice, you may want to consult a New York personal injury attorney experienced with medical malpractice cases. I would be glad to answer your questions and assist you. You can call me at 1-800-660-1466 or email me. 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. Remember, past results do not guarantee similar outcomes in the future.

All content of this site:
© copyright 2010-2011 by Carol L. Schlitt
The material presented in this blog may not be reproduced or appropriated in any way without the explicit permission of the author.

New Medical Malpractice Courts in New York Create an Opportunity for Victims of Medical Malpractice November 15, 2011

Posted by Carol L. Schlitt in Medical Malpractice, Personal Injury Law.
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Fifteen years ago, Justice Douglas McKeon began focusing on medical malpractice cases brought in the Bronx, New York. His focus and knowledge of medical malpractice issues has allowed him to settle cases earlier and at less cost for all involved. New York State has now announced that it will expand the specialized medical malpractice approach to Brooklyn, Queens, Manhattan and Erie County. The State will train select judges on medical malpractice issues and allow them to focus on these cases. According to court records, each year New Yorkers file 4,000 medical malpractice cases (out of 19.4 million residents).   You can read about it here and here.

New York Chief Administrative Judge Ann Pfau has touted the ability of these specially trained judges to cut court backlogs and to reduce court expenses. She also asserts that it will save money for doctors and insurance companies. Will it benefit the victims of medical malpractice?

The Benefits to Medical Malpractice Victims of the Specialized Medical Malpractice Courts

As an experienced medical malpractice attorney in New York, I always fight to protect my clients. The ability to work with judges and defendants to rapidly resolve medical malpractice claims offers some potential benefits to clients:

  • Victims can settle cases sooner and, therefore, receive money sooner
  • Victims can avoid the often very high expenses of a medical malpractice case
  • Victims can avoid the wait for a case to come to trial which can take years

The ability of a victim to take advantage of these specialized courts depends upon the ability of the medical malpractice attorney to investigate a case thoroughly and quickly and to present the issues well. It is also important to have an attorney who will strongly advocate for her client and who understands that settling early is an option and not a requirement. If the defendant does not offer a settlement of fair value, then the plaintiff can reject the offer and take the case to trial. A settlement only works if it is fair for all parties involved.

New York State Trial Lawyers Association (NYSTLA, of which I am an active member) has provided input into the development of these special courts to protect the interests of medical malpractice plaintiffs. NYSTLA President Leslie Kelmachter made the point to the Associated Press that that malpractice issues are often straightforward, and the lawyers can support earlier settlements on behalf of their clients, the injured victims, as long as they are fair.

How Do these Specialized Medical Malpractice Courts Work?

It is important to understand that under New York State Law, an attorney can only file a medical malpractice case if a doctor has certified to the plaintiff’s attorney that the case appears to meet the standard for a medical malpractice case. Before filing suit, I will have received and reviewed them with the appropriate medical experts. I will have also researched the legal issues and the case law that will apply. By the time I file suit on behalf of my client, I am well-versed in the medical issues and the case law and prepared to enter into settlement talks.

Under this new approach to medical malpractice cases, once the case is filed, a single judge will oversee the case from beginning to end. This provides continuity in the handling of the case. The judge will try to bring both sides together to settle the case. If one side – usually the defense – requests additional information, the judge will make sure it is a valid request. Once all sides have all necessary information, the judge will work to find the common ground for a settlement.

As reported by the Associated Press, “Earlier this year, the Administrative Board of the Courts approved new rules for the state trial courts on medical malpractice, calling for settlement conferences 45 days after court papers are filed indicating that the case is ready for trial. Only attorneys fully familiar with the case and authorized to settle it are to appear, and judges may also order insurance representatives and others with an interest to appear.”

The well-prepared medical malpractice attorney welcomes these courts and this new approach because she can take advantage of her research, investigation and knowledge of the case and the law to negotiate an early settlement on behalf of her clients.

At the same time, one cannot force a settlement. There are times when the defendant simply will not negotiate or makes a low ball settlement offer that is not serious. In those cases, it is important to bring the case to trial.

If you or a loved one has been injured due to medical malpractice, you may want to consult a New York personal injury attorney experienced with medical malpractice cases. I would be glad to answer your questions and assist you. You can call me at 1-800-660-1466 or email me. 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

http://NYLawThoughts.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. Remember, past results do not guarantee similar outcomes in the future.

All content of this site:
© copyright 2010-2011 by Carol L. Schlitt
The material presented in this blog may not be reproduced or appropriated in any way without the explicit permission of the author.

What is a Claim Letter or a Letter of Representation? November 4, 2011

Posted by Carol L. Schlitt in Customer Service, New York Law, Personal Injury Law.
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If you retain a lawyer to represent you in a personal injury case, that lawyer will send a claim letter, also known, as a letter of representation, to the defendant. The claim letter informs the defendant that you have a claim against the defendant and that the lawyer represents you for that claim.

The claim letter is not required by law so it is optional for a lawyer to send it. However, in New York, if the claim is against a municipality or a municipal agency, one must send a Notice of Claim within 90 days of the incident. You can learn more about the Notice of Claim by clicking here.

In some areas, people use the term letter of representation to refer to the contract between the client and a lawyer. In New York, we generally refer to that agreement as the retainer or the retainer agreement. You can read more about the retainer agreement here.

What a Claim Letter Says 

Years ago, I used a standard claim letter that was bureaucratic and full of legalese. I subsequently changed my claim letter to put it in plain English and to use it as an important tool to open discussions with the defendant. This approach has proven much more effective. I highlight several points in the claim letter:

  • I state the name of the person making the claim (my client).
  • I state in very general terms the nature of the claim
  • I state the date and location where the incident occurred
  • I suggest that the defendant notify his or her insurance company. For example, if the claim involves a car accident, I ask the driver to contact his or her auto insurer. If the defendant is a property owner or a store, I ask them to contact their insurance company or risk management department.
  • If appropriate, I ask that the defendant to retain any evidence they may have relating to the claim. This request can be very important in cases where the defendant – say a supermarket – has surveillance tapes that might have captured an incident.

I end each letter by highlighting my willingness to resolve the matter before putting it in suit and I explain the process that I use:

When I complete my full investigation and my client’s medical condition is fully known and stabilized, I will complete my assessment of the case. At that time, I will send you or the appropriate representative from your insurance company a Settlement Proposal in an effort to resolve this claim in a manner that is fair to all parties and saves all parties time and legal expenses. If we are unable to resolve the case at that time, I will file a lawsuit and pursue this matter through the courts.

While I work with each client to develop a specific plan for that client’s case, the last paragraph summarizes my general approach of investigating a case and making a Settlement Proposal before filing suit. The defense often has more flexibility to settle before we file suit. There is no need to threaten or rant and rave in a claim letter. I make it plain: if we do not receive a satisfactory settlement offer, then I will file suit.

The Claim Letter is Very Important 

The claim letter is important for several reasons:

  • It makes the defendant aware that you have a lawyer representing you and that all communications should go through the lawyer.
  • It makes the defendant aware that you have a claim so they can begin to compile information on that claim. The sooner they gather information, the easier for us to discuss a possible settlement.
  • It triggers the defendant to contact their insurance company which protects the defendant and usually makes settlement talks more likely.
  • It makes the defendant aware that they should retain any critical evidence such as surveillance tapes.

If the defendant has insurance, we want the defendant to notify the insurance company. If the defendant receives a claim letter and fails to notify the insurance company, the insurance company may disclaim on that incident, meaning they may not provide coverage due to lack of notice.

When I Do Not Send a Claim Letter

In most cases, I send a claim letter on the day I received the client’s signed retainer, though it is optional and I do not always send a claim letter or may not send one right away. I only send a claim letter if it will advance my client’s case.

In most medical malpractice cases, I do not send the claim letter right away, if at all. I prefer to complete my investigation of the case and evaluate the medical records before sending any claim letter. While the medical records by law belong to the patient, if a doctor or hospital receives a claim letter before releasing the medical records, they often become very slow in releasing the medical records. I also want to make sure we have a valid medical malpractice claim before alerting the doctor or hospital.

A Warning that I Always Give to My Clients 

Once an insurance company becomes aware of a claim, they will investigate the matter. Some are more aggressive than others. The defendant or their representative may try to contact the client directly. They should not do so, but some investigators are very aggressive. If they do so, I ask my clients to refer them to me. Do not answer any questions, sign any documents or give them any information. I tell my clients not to speak to anyone else about their case; especially not to discuss the case with a stranger. It is not uncommon for insurance companies to hire investigators to try to glean “insider” information.

I hope you have found this information helpful. I do need to remind you that this information offers general guidelines. If you have questions about a specific case, you should consult an experienced personal injury lawyer 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. 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. Remember, past results do not guarantee similar outcomes in the future.

All content of this site:
© copyright 2010-2011 by Carol L. Schlitt
The material presented in this blog may not be reproduced or appropriated in any way without the explicit permission of the author.

A Client Calls: “Wood Fell on My Head at a Building Supply Store” April 2, 2011

Posted by Carol L. Schlitt in Consumer News, Legal Services, Personal Injury Law, Premises Liability.
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I recently received a question from a customer who went to a home supply store for some construction supplies. I thought you might find the question and answer interesting.

 Question:

I went to a store to get some supplies, and some wood. When I went to get the wood I noticed it was a mess and above the safety braces. So I reached to grab the top one and 4 or 5 boards fell down. When I went to pick them up another one fell and hit me on the top of my head. The corner of the board hit me on the top of my head and left a big bump and gave me a huge headache. I had to go the emergency room to get a CT scan. Do I have a case?

 Answer:

I am sorry to hear about your injury and hope that you make a fast and full recovery. You ask if you have a case to seek compensation against the store for your damages. 

To bring a claim you need to prove that the store was negligent and their negligence resulted in your injury or other damages. To prove negligence, you would need testimony and evidence that the wood was stacked incorrectly and that it caused your injury. Your description suggests that the store was negligent in stacking the wood and maintain it in a safe manner. Your description raises several questions:

  • Did you file an incident report with the store? If not, then you should call and notify them immediately and follow that with a letter.
  • Were there any witnesses that saw this incident happen?
  • Were there any witnesses that saw the improperly stacked wood?
  • Did an ambulance take you from the store to the hospital?
  • Did you tell the emergency room staff how you suffered your injury?
  • Did anyone take pictures of the wood on the shelves?

I ask you these questions because the answers could help build support for a negligence case. The more evidence you have, the stronger your case.

If you can prove negligence on the part of the store, you would also need to prove that you suffered damages.  You state you went to the emergency room. What was the result of that visit? Did they give you a diagnosis of an injury? What is your condition now? Are you receiving follow up treatment? You would need a doctor and medical records to support a claim of damages arriving from your injuries.

You might have the basis for a claim if you could prove negligence and document your damages. You state that you saw the wood was a mess and you reached to the top to grab some boards. If you were to file a claim, the defense would suggest that you bear some comparative liability for causing the incident because you reached for the boards instead of seeking assistance from store personnel. A good lawyer would fight that argument.  It is not clear how severe your injuries are.

If the injuries are relatively minor, then the cost of bringing a claim may exceed the value of the claim. If you have limited injuries from this incident, then you may want to contact the store directly and ask them to cover your medical expenses and seek a small settlement for your pain and suffering.

If you believe your injuries are more extensive, then you may want to contact a local personal injury attorney to discuss filing a claim against the store and seeking a larger amount of compensation. If in doubt, you should contact a local personal injury attorney. That consultation should be free.

I hope you have found this information helpful and I wish you well in your recovery from this incident.

Carol L. Schlitt
New York Personal Injury Attorney
www.SchlittLaw.com

http://nylawthoughts.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. Remember, each case has a unique fact pattern. Past results do not
guarantee future outcomes.

Caps on Medical Malpractice Awards Bad for New York, Bad for Patients and Good for the Insurance Industry March 10, 2011

Posted by Carol L. Schlitt in Consumer News, Insurance Policies, Legal Services, Medical Malpractice, New York Law, Personal Injury Law, Uncategorized, Wrongful Death.
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As part of his proposal to control health care costs, Governor Cuomo has proposed capping medical malpractice payments for non-economic losses at $250,000. We have all heard the claims that medical malpractice premiums are driving doctors out of business and raising our health care costs, so caps would help everyone but the lawyers. Right? Wrong. In reality, limits on medical malpractice awards would have little impact on the medical malpractice insurance premiums, would not lower health care costs and would hurt many individuals. The only clear winner would be the insurance industry.

Let’s start with some facts:

Medical Malpractice Caps Do Not Guarantee Lower Medical Malpractice Insurance Premiums: According to a National Center for Policy Analysis study, “Researchers have not found a direct connection between damage caps and reduced premiums.” Repeated studies have found that med mal insurance premiums rise due to broad economic factors and cycles, not the amount of pay-offs made. According to the Injury Board, “the median annual premium in states with caps increased an alarming 48.2%.  Surprisingly, the median annual premium in states without caps increased more slowly: by 35.9%. In other words, the median medical malpractice insurance premiums were actually higher in states with caps.  This is contrary to the goal of the limitations on medical malpractice awards.”

Medical Malpractice Insurance Rates, Adjusted for Inflation, Are Down:  It is true that medical malpractice rates rose in the late 1990’s and early 2000’s. However, that is no longer true. The Council of Insurance Agents & Brokers shows a drop in premium growth during the last five years across all lines of insurance, including medical malpractice insurance. The credit rating and financial firm A.M. Best found that the rate of growth of premium increases has been dropping in recent years. New York State froze rates for two years and allowed a modest rate increase this year. A study byAmericans for Insurance Reformfound that medical malpractice insurance premiums, adjusted for inflation, are the lowest they have been in 30 years.

 

Medical Malpractice Caps Have Little or No Impact on Health Care Costs:According to a 2010 Robert Wood Johnson Study, medical malpractice premiums account for less than two percent of total health care spending. A big change in medical malpractice insurance premiums, whether up or down, has a negligible impact on health care costs. That same paper found that even the most successful tort reform would only reduce health care spending by less than one percent.

Medical Malpractice Claims Are Down: A study byAmericans for Insurance Reformfound that medical malpractice claims, inflation-adjusted, are down 45 percent since 2000.

A Harvard Study Found that Claims of a System Overrun with Frivolous and Unwarranted Medical Malpractice Cases Are Not True: This studyfound that “most malpractice claims involve medical error and serious injury, and that claims with merit are far more likely to be paid than claims without merit.” In fact, only 73 percent of cases that involved actual medical malpractice received compensation so placing caps would worsen the current system.  The study’s author, David Studdertsaid, “Overall, the malpractice system appears to be getting it right about three quarters of the time. That’s far from a perfect record, but it’s not bad, especially considering that questions of error and negligence can be complex.”

These facts demonstrate that placing caps on medical malpractice will not reduce health care costs, will not solve the problem with rising medical malpractice insurance rates and will deny victims compensation. In short, capping medical malpractice compensation offers no improvement and will hurt victims.  As the Harvard study found, for every three frivolous lawsuits stopped by tort reform, there are 97 people with actual injuries who will be denied the right to a trial. Reductions in payouts are also likely to have more effect on people who suffered serious injuries as a result of errors, who are entitled to more compensation.

New York Already Has Strong Limits on Medical Malpractice Lawsuits

New York already limits medical malpractice suits in key ways:

  • To file a medical malpractice suit in New York, a plaintiff must prove that the care substantially deviated from good and acceptable medical practice and the deviation resulted in substantial damages.
  • To file a lawsuit in New York, an attorney must first have a doctor review the records and advise the attorney that malpractice existed. If a doctor does not provide that information, the attorney cannot file the lawsuit.
  • New York State law already limits attorney fees in malpractice suits. Existing New York law reduces legal fees by 29 percent or more in larger verdicts.
  • New York has a strict statute of limitations that limit when a person can file a medical malpractice lawsuit.

Current New York law keeps out frivolous and unwarranted medical malpractice claims and limits attorney compensation to make sure that payments go to the victims, not the attorneys. The current system works to ensure that only valid claims make it to court.

The Proposed Limits on Medical Malpractice Will Remove Pressure to Improve Care

The proposed limits on medical malpractice will not lower health insurance premiums, but they will result in fewer improvements in medical care. After paying out on several medical malpractice claims, the obstetrics team at New York Presbyterian Hospital/Weill Cornell instituted a comprehensive obstetrics safety program that has dramatically reduced the number of “sentinel events”—such as avoidable deaths and serious injuries. According to a report in the American Journal of Obstetrics & Gynecology, this safety initiative reduced the number of sentinel events from five in the year 2000 to zero by 2008. According to an article in Crain’s New York, “At Weill Cornell, the safety changes resulted in annual medical malpractice payouts dropping from an average of a $28 million from 2003 to 2006 to $2.6 million a year from 2007 to 2009. With no sentinel events reported in 2008 and 2009, those totals are expected to drop still further.” If we remove the penalty for medical malpractice, we reduce the incentive to improve the quality of care and reduce instances of medical malpractice.

The overwhelming number of doctors and hospitals are always seeking to improve care. Our system relies on medical malpractice suits to hold health care providers accountable for extreme errors. The possibility of medical malpractice suits leads providers to invest in error avoidance and quality improvement. Do we want to remove that financial incentive to ensure quality care?  If we artificially cap malpractice suits will we create the Pinto scenario? You may remember that the Ford Motor Company knew of potentially lethal flaws in the Pinto, but decided that the payout for wrongful death suits would simply be a cost of doing business. Do we want to create a situation where large health care providers decide it is cheaper to pay the lower amount of capped medical malpractice payments instead of investing in improved care? Don’t we want to provide the incentive that led to the improved quality of care at New York Presbyterian Hospital?

Do Not Let the State Legislature and their Insurance Company Donors Reach into the Jury Box to Affect Your Case

Imagine that a loved one suffers a terrible outcome as the result of medical malpractice. After many months or years of depositions and legal filings, you finally have your day in court. The jury listens to days of testimony from you, doctors, and experts. The jury then announces they have a verdict.  Before the jury announces their decision, the unseen hand of the State Legislature reaches into the jury box and takes away the verdict sheet. The State Legislature, which heard none of the testimony, none of the evidence and knows nothing about the case, takes over for the jury and issues a verdict based on an arbitrary amount set in Albany. Is that justice? Is that right?

Do you want the New York State legislature to arbitrarily say that your husband’s quality of life is worth no more than $250,000? That your wife, your son, your daughter, your mother, your father’s pain and suffering is worth no more than $250,000?

Medical Malpractice Caps Sacrifice Individual Needs to Benefit Insurance Companies

The effort to impose limits on medical malpractice payments will not reduce health care spending and will not reduce medical malpractice premiums. Caps on jury awards will hurt victims and will reduce pressure to improve the quality of care. So who benefits from medical malpractice caps? As they said in Watergate, follow the money.

Medical malpractice caps will reduce payouts for medical malpractice, but will not reduce medical malpractice premiums. Where does the money go? The money saved by medical malpractice caps does not benefit patients or doctors; instead, it goes directly into the pockets of the insurance companies.

Follow the money. Insurance company profits are up in all phases of their business and medical malpractice provides more profits than other property and casualty lines of business. According to the National Association of Insurance Commissioners (NAIC), in 2007 the medical malpractice insurance industry had an overall return on net worth of 15.6%, well over the 12.5% overall profit for the entire property/casualty industry.

Follow the money: According to the New York Public Research Interest Group (NYPIRG), last year the insurance industry spent over $8.9 million lobbying the New York State legislature. That’s over $42,000 per member of the legislature.

The overwhelming number of doctors in New York and elsewhere do an excellent job. Sometimes patients have bad outcomes despite the best efforts of doctors. Yet there are cases of medical malpractice that can ruin patient lives. We need to compensate those patients and hold doctors who commit medical malpractice accountable. If you live in New York, contact your state legislators and ask them to protect victims, ask them to protect efforts to improve medical care, ask them to oppose caps on medical malpractice cases that hurt victims and protects bad doctors.

I hope you found this information helpful. Pleaseemailme if you have comments or questions. You can also visit mywebsiteor 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. Remember, each case has a unique fact pattern. Past results do not guarantee
future outcomes.

All content of this site:
© copyright 2010-2011 by Carol L. Schlitt
The material presented in this blog may not be reproduced or appropriated in any way without the explicit permission of the author.

Better Medical Care, Not Limits on Medical Malpractice: How the Obstetrical Safety Program at New York Presbyterian Led to Better Care, Fewer Events of Medical Malpractice and Reduced Medical Malpractice Rates by 91 percent March 5, 2011

Posted by Carol L. Schlitt in In the News, Medical Malpractice.
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There is a fierce debate going on in the New York State legislature over an attempt to limit medical malpractice cases by capping tort claims. The debate misses the point: instead of artificially capping medical malpractice cases, which limits the rights of victims, we should emphasize improvements in medical care that reduce medical malpractice.

Here’s one example of what we should do. The obstetrics team at New York Presbyterian Hospital/Weill Cornell instituted a comprehensive obstetrics safety program that has dramatically reduced the number of “sentinel events”—such as avoidable deaths and serious injuries. According to a report in the American Journal of Obstetrics & Gynecology, this safety initiative reduced the number of sentinel events from five in the year 2000 to zero by 2008. According to an article in Crain’s New York, “At Weill Cornell, the safety changes resulted in annual medical malpractice payouts dropping from an average of a $28 million from 2003 to 2006 to $2.6 million a year from 2007 to 2009. With no sentinel events reported in 2008 and 2009, those totals are expected to drop still further.” You can read the full article here.

In the same article, Blair Horner, legislative director for the New York Public Interest Research Group (NYPIRG), a non-partisan research and advocacy organization, said, ““People don’t get sued if they don’t get hurt.”

Medical malpractice cases have decreased in New York and across the country. Total medical malpractice payouts have decreased. Despite these trends, medical malpractice rates have not fallen. Why? Don’t look to the lawyers. Don’t look to the doctors. Look to the insurance companies. One thing is for sure: so called Tort Reform which limits a patient’s right to sue does not solve a problem, it creates one. Let victims receive their just compensation. Let the justice system work. Let bad doctors pay for medical malpractice and let doctors and hospitals focus on improving care, not avoiding justice.

Please understand that efforts to cap medical malpractice cases will not save the government money, but it will hurt victims. Artificial limits on jury awards – where politicians override juries – deny the most severely injured victims fair compensation for a lifetime of pain and suffering. This type of legislation hurts the most vulnerable members of our society – children, the elderly, the poor, minorities, and women – who often earn less money and whose injuries are more likely to involve non-economic damages.

New York already has a high threshold before one can even bring a medical malpractice lawsuit. Before filing a suit, a lawyer and client must assert that a doctor substantially deviated from good and acceptable medical practices and that deviation caused substantial harm. And another doctor must review the case and state that he or she believes there is a valid case. This process prevents frivolous medical malpractices cases from going to court. You can read more about medical malpractice requirements here.

My colleague, Eric Turkewitz, posted an excellent letter on this topic on his blog, the New York Personal Injury Law Blog, you can read it here.

The overwhelming number of doctors in New York and elsewhere do an excellent job. Sometimes patients have bad outcomes despite the best efforts of doctors. Yet there are cases of medical malpractice that can ruin patient lives. We need to compensate those patients and hold doctors who commit medical malpractice accountable. If you live in New York, contact your state legislators and ask them to protect victims, ask them to protect efforts to improve medical care, ask them to oppose Tort Reform that hurts victims and protects bad doctors.

I hope you found this information helpful. Please email me if you have comments or questions. 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.

Slip and Fall on Snow and Ice January 29, 2011

Posted by Carol L. Schlitt in New York Law, Premises Liability, Slip and Fall, Stairway Accidents, Trip and Fall, Uncategorized.
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We have had record snowfall in New York this month and that means plenty of people slipping and falling on snow and ice. As a personal injury attorney, I am frequently asked when is a slip and fall on snow and ice one of the hazards of the season and when does it result from negligence?

Sometimes a slip on snow and ice is simply an accident. It has happened to all of us and if we’re lucky, we get up, wipe off the snow and hope that no one saw us fall. If we’re lucky, we can laugh about it. Sometimes the slip and fall can cause injury, especially among the elderly. The fall can break bones or leave us with bad backs or sprains of our knees, ankles and wrists. The reality is that simply because one suffers an injury does not mean that someone else is to blame. Common sense and our experience tells us that during and after a snowstorm, we all need to tread with a little more caution.

Yet there are times when a slip and fall on ice that causes an injury resulted from the negligence of the property owner. Failing to properly remove ice and snow or to fix a condition that creates an ice hazard are common forms of negligence that can lead to an injury. Clearing snow and ice, but in a haphazard or inconsistent way can create a dangerous situation and lead to negligence.

What Can a Property Owner Do to Prevent Slips and Falls on Snow and Ice?

No one wants to see someone slip and fall on their property and suffer an injury. In the face of snow and ice, what is a property owner to do? We have an obligation to take reasonable steps to clear ice and snow from walkways and public passageways. Many municipalities, such as New York City, require property owners to clear the sidewalks in front of their buildings. Owners of stores and offices need to clear the entrances and exits to their buildings. Parking lot owners, if they intend their parking lot to be used, need to clear the snow and ice from their parking lots.

Applying a reasonableness test means that we do not need to clear walkways in the middle of a snowstorm, but should do so in a reasonable time after a storm. The reasonable test means that we should do a thorough job of clearing ice and snow. If I clear the sidewalk in front of my building, then I need to clear a pathway wide enough to allow foot traffic and I need to be consistent so that I don’t leave icy patches. If I clear a parking lot, I need to clear the entire area that people may use and I should not leave icy patches. Why is consistency important? If I create the impression that the walkway or parking lot is clear and yet I leave some icy patches, then I set a trap for someone to fall.

If I know that snow will melt and refreeze on a passageway – creating the dreaded black ice – then I have an obligation to prevent the ice from forming and to clear the ice so it does form. That means putting down sand or salt or some other substance to melt the ice. I have an obligation to monitor the condition of the walkway to make sure it is safe.

Private homeowners have more leeway. For example, at my home, we leave part of our driveway uncleared so our children can go sleigh riding. (As they reach college age, there’s less frolicking in the snow). However, we do clear part of the driveway and the path that leads from the driveway to the house. In doing so, we create an expectation for visitors that the cleared path is safe. If we did a poor job, we could create a hazard. In general, if a private homeowner does nothing, that homeowner creates no expectation that the path is safe to travel. If you do clear a path, then you must do a good job to make it safe for use. 

When Does a Slip and Fall Result from Negligence?

Having reviewed the reasonable expectations of what a property owner should do, it becomes easier to identify when a slip and fall results from negligence. If a sidewalk or parking lot is cleared in a haphazard way, creating icy patches, that can be negligence. If black ice forms and should have been prevented or cleared, that can be negligence. If a defect, such as a leaky pipe, causes black ice to form, that can be negligence. If a landlord only clears part of a sidewalk and a person goes to use that sidewalk and falls, that could be a negligence case.

It is important to remember that no matter what a property owner does, as pedestrians, we all have an obligation to tread with caution and to be wary of potential hazards caused by ice and snow. In trials resulting from slips and falls on ice and snow, juries often look first at the victim and wonder how he or she could let this happen. Because of that perception, it can be very hard to prove a slip and fall on ice case. Even when a plaintiff prevails, juries commonly hold the plaintiff – that is the victim of the slip and fall – at least partly responsible for a slip and fall on ice.

In the past week, I have received numerous phone calls and emails from people asking if their fall on snow and ice resulted from another party’s negligence. Let’s look at some of these potential cases:

  • A college student pulls into the designated parking lot to attend class on Friday morning, the day after the snowfall. She parks in a designated lot, which has been cleared. As she walks towards her classroom building, she falls on an icy patch and breaks her ankle. She may be able to prove negligence because the university had ample time to clear the parking lot and had told students to use that lot and report to class. The young woman had the expectation that the parking lot was safe to cross and it was not.
  • A woman works cleaning houses. She shows up at one client’s home that requires that she walk down a flight of outdoor stairs to a basement apartment. She is very careful going down the stairs, but slips and falls on black ice and hurts her back.  It turns out the black ice formed from water dripping from a busted gutter. The failure to fix the gutter and to clear the black ice that it caused created a hazard and forms the basis for a negligence claim.
  • As a snowstorm wound down, a woman walked on the sidewalk in front of a fast food restaurant. She slips and falls on a snowy patch. A companion goes to tell the manager of the restaurant who is rude and does not offer to help.  Because the snow had just ended, the restaurant probably cannot be held liable for this fall. It would be a very hard to prove negligence. Nonetheless, the woman should file a complaint with the restaurant owner given the manger’s rudeness.

Consider a few other sample slip and fall on snow and ice cases that I have handled which may further illuminate when negligence existed:

  • A woman parked her car at a train station parking lot and walked to pay her parking fee at the pay station. She could not see and did not expect to find black ice that covered the pay station floor. It turns out that the railroad failed to clear the ice. The woman slipped and fell and hurt her neck and so badly that she ultimately required surgery. After proving liability at trial, the defendant settled and paid $265,000.
  • A Nassau County man walked to use a stand-alone ATM. On his way out of the parking lot where the ATM stood, he slipped and fell on uncleared ice. He fractured his ankle and required surgery. The parking lot owner had the obligation to clear the path to the open ATM and failed to do so. The defense settled the case for $160,000.
  • A Bronx man walked out of his friend’s apartment building and slipped on some uncleared ice, breaking his ankle. The landlord had cleared some of the sidewalk, but as the man made his way home, he slipped on an icy patch the landlord had failed to clear. The case settled on the eve of trial for $150,000.
  • A Suffolk County woman walked out of her chiropractor’s office a few days before Christmas and slipped and fell on some ice injuring her back. It turns out that the lawn sprinklers had run that morning and created the icy hazard. Several of the retail tenants called to complain, but the property owner ignored their calls to clear the sidewalk. Because he created the hazard with the sprinklers (in December!) and failed to clear the ice despite ample warning, the landlord bore liability for the woman’s fall. The case settled at mediation for $35,000.

In all the bad weather we have had, we all need to use some extra caution and care. If you are a property owner, take care to fulfill your obligation to keep your public access areas safe. If you are out walking, wear shoes that make sense for the conditions and be wary of icy patches. If you slip and fall and injure yourself, make sure you get the medical care you need. If you think your injury resulted from the negligence of another person or party, you may want to discuss the incident with a personal injury attorney experienced with handling slip and fall cases on snow and ice. I will be glad to answer your questions and assist you. There is never a charge for this consultation. You can call me at 1-800-660-1466 or email me. 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

http://nylawthoughts.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.

Not Every Case Is a Big Dollar Case, but Every Case Matters January 25, 2011

Posted by Carol L. Schlitt in Bus and Subway Cases, Car Accidents, Consumer News, Legal Services, Medical Malpractice, Slip and Fall, Stairway Accidents, Uncategorized, Wrongful Death.
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I often hear from potential clients who ask if their case is large enough for me to take. Others wonder if I will devote enough attention to their case if it will not return a large award. I make a promise to do everything I can to get the most compensation for each of my clients. Yes, it is nice to win the big case, the headline case, but what matters is getting the most for each case.  

Sometimes a small case turns into a large case. I have won several settlements and trials worth over $500,000 where other attorneys had turned down the case. Sometimes a case has a small value, yet every extra dollar can make all the difference to a client. After each case, I ask myself, “Did I do all I could to get the most for my client? Did I get my client all that I possibly could?”

What Starts Small Sometimes Turns into a Large Case

In recent months, I have won four very large cases for my clients, two of which I tried for other attorneys. Each case started small, with the client and others seeing little or no value in the case. By thoroughly investigating each case, by rigorously preparing for trial, by looking for every opportunity to increase the case value, I turned each of those small cases into big wins. Consider these outcomes:

  • A New York City Transit Bus struck an elderly immigrant woman in Washington Heights. Transit Authority thought so little of the case that they refused to offer any settlement. By the time I finished investigating the case and presented it at trial, the jury returned an award of $500,000. (Click here to read more.)
  • A woman’s mother died within days of entering a Queens nursing home. Other attorneys turned down the case. I took it promising only to investigate, but making no promises on whether we actually had a case. By the time we finished investigating, it was clear that we had a strong wrongful death and medical malpractice case against the nursing home. After we filed suit and completed depositions, the defendant settled for $625,000. (Click here to read more.)
  • A young girl witnessed the New York City Police falsely arrest her father and beat him. The City offered a small amount to settle the case and all agreed that the daughter’s case was worth no more than half of the father’s case. By the time I finished presenting my case at trial, the daughter settled for $250,000, much more than anyone expected and almost as much as her father received. (Click here to read more.)
  • A Bronx woman slipped and fell down the stairs on her way to work and broke her ankle. She thought she might collect some money from her landlord. After investigating the case, we found a pattern of problems in the building and a record of complaints about problems on the staircase. We settled the case for $350,000. (Click here to read more.)

I make no false problems that every case will result in a large court award or settlement. The lessons of these cases are simple. If you have a potential case, contact a personal injury attorney. If the case is at all viable, a good attorney will investigate the case. That investigation, if done right and in concert with the right professionals, may find value where no value appears to exist. As an attorney, I know that if I keep looking, if I prepare the best possible case, I can help my clients receive the maximum value for their cases. By fighting for every dollar, a small case can turn into a big case.

Every Dollar Counts

While everyone wants to hear about the big dollar cases, most cases are smaller. What matters to me is getting the most on each case regardless of size. Consider these recent cases:

  • A woman tripped and fell on the stairs while attending a show at a Broadway Theater. The woman broke her finger. While the finger healed, the woman grew frustrated that the theater would have such an obvious defect in the stairway. We pursued a case. The defense offered $1,000. After much back and forth, I was able to raise the initial offer to $5,000. Now $5,000 is not the largest case, but increasing the initial offer by 500 percent made a difference for my client and put substantially more money in her pocket.
  • A woman slipped and fell in a Long Island supermarket. I assessed the case as worth between$15,000 and $20,000 at trial given some of my client’s prior conditions and some concern about proving liability at trial. My client wanted to have surgery on both her knees and a settlement that low would not pay for the surgery. By working with her doctors and engaging in extensive negotiations with the insurance company, we were able to settle the case for $25,000. In addition, I negotiated to lower a medical lien the woman owed so she could keep more of her settlement. 
  • A woman hurt her back in a car accident, yet it appeared that she would have difficulty meeting New York’s serious injury threshold and would be left with nothing for her injury. While her soft tissue injury was minor, it was real. The insurance company offered to settle the claim for less than $3,000. After substantial negotiations, we raised that offer to $6,000, putting several thousand dollars more in my client’s pocket.

None of these cases would make headlines, but for each client, their particular case was the most important one in the world. By keeping the faith with my clients, by fighting for every dollar I could win for them, I helped each person receive the most he or she could. It is never simply about winning a case or settling; it is about doing my best for each client.

I hope you have found this information helpful. I practice personal injury law in the New York metropolitan area. If you or a loved one has suffered an injury through the negligence or recklessness of another, you may be entitled to compensation. If you have questions, you should consult an experienced personal injury lawyer in New York. I will be glad to answer your questions and assist you. There is never a charge for this consultation. You can call me at 1-800-660-1466 or email me. You can also visit my website or read more on my blog, New York Law Thoughts.  

Carol L. Schlitt
New York Personal Injury Attorney
http://www.schlittlaw.com/

http://nylawthoughts.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.

$625,000 Settlement for Medical Malpractice and Wrongful Death Nursing Home Case in Queens December 15, 2010

Posted by Carol L. Schlitt in Medical Malpractice, Personal Injury Law, Uncategorized, Wrongful Death.
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Today is a poignant day as the settlement check arrived for a wrongful death case brought against a Queens nursing home. The case involved the death of a retired homemaker and grandmother, a woman deeply missed by her family. No lawsuit or court action can undo the loss this family has experienced. At the same time, pursuing justice has allowed this family to honor their mother and grandmother. Like all wrongful death cases, winning or settling a case brings the satisfaction of holding the defendant accountable for their actions and often force changes in policies, procedures or behavior to prevent future deaths. In this case, we also involved the State Department of Health to investigate the nursing home.

Determining the value of damages in a wrongful death suit can be very complicated and raise both legal and emotional concerns. The damages are not the measure of a deceased person’s life. After all, how does one put a dollar value on the love of a mother for her children and a grandmother for her grandchildren? It is a calculation based on what the law and the courts allow. In this case, the settlement is a last gift of a loving mother to her family.

Facts of the Case: Improper Nursing Home Care and Falsification of Records

This case began when the now deceased woman entered a Brooklyn hospital for treatment of abdominal pain. She underwent surgery for a hernia repair and a small bowel resection. After the surgery, she suffered a stroke, which rendered her unable to move her arms.  Her condition required the insertion of a tracheotomy tube in her throat to make breathing possible.  The woman lay in the hospital for nearly a month when doctors discharged her and the family arranged to move her to a skilled nursing facility that could provide the necessary care and rehabilitation services.

Like all families, the woman’s adult children sought the nursing home that would provide the best possible care for their mother. The woman arrived at the nursing home, located in Queens, at eight o’clock in the evening. One of her daughters spent time with her mother that first evening making sure that all was okay and visited her the following day as well, leaving at nine o’clock that night.

By the 7 a.m. the next morning, staff found the woman in severe respiratory distress. An ambulance arrived to transfer her to the hospital where she was pronounced dead.  

What happened? What went wrong overnight that resulted in this woman’s death? The nursing home staff failed to properly insert a tracheotomy tube.  The tube became dislodged so that it was no longer going into the trachea, but was pressing into her tissue. As a result, the woman suffered from a lack of oxygen. The failure to properly insert the tracheotomy tube was identified as the primary cause of death by the New York City Medical examiner. The autopsy lists the cause of death as “complications following dislodgement of tracheotomy tube placed for ventilatory support.” To compound the medical malpractice of failing to insert the tracheotomy tube, the staff failed to monitor the woman’s care. As a result, the staff did not know that the woman spent hours in distress.

The nursing home initially denied the charges. They tried to blame the victim, claiming that she had pulled the tube out, an absurd charge given that the woman’s stroke had left her unable to move her arms. The nursing home also pointed to entries in the records that seemed to claim that staff had monitored the patient. Using medical experts to examine the records, we were able to show that there were false and backdated entries in the record. When the nursing home rejected an early settlement proposal, we moved forward with the lawsuit. To build our case, we deposed five current and former employees of the nursing home and used that testimony to document the backdated entries and the failure to monitor the patient. Shortly before the start of the trial, the defendant agreed to settle the case.

The family believed from the start that their mother died as a result of medical malpractice. They sought legal help and consulted with several attorneys, each of whom rejected the case. Why? They expressed doubts about the ability to prove medical malpractice case against a nursing home for a patient who had already suffered a stroke.

When I listened to the woman’s daughter describe her mother’s plight, I could see the possible grounds for malpractice. It seemed worthwhile to conduct an investigation. I made no promises to the family other than to investigate the case. Once I received the medical records, including the autopsy, and worked with medical experts, the medical malpractice became clear.

Determining Compensation for the Wrongful Death

Those first lawyers felt that even if they could prove medical malpractice, they could not prove sufficient damages to earn enough money to make the case worth their while. New York limits the grounds on which one can collect compensation in a wrongful death suit. The most common grounds include:

  • Loss of Pecuniary Income:  This is the money that the deceased would have provided to survivors had he or she lived. It is not the same as the income the deceased would have earned; pecuniary income subtracts the money the deceased would have spent on herself. One can include projected earned income, benefits, pension plans and other sources of income and value in determining this economic loss.  One can assign a monetary value for worked performed in the home by a stay-at-home parent.

 

  • Pain and Suffering: New York allows for pain and suffering to be paid to the estate on the victim’s behalf. The pain and suffering can include pre-incident terror the victim may have experienced.

 

  • Loss of Parental Guidance: New York law allows for compensation for the guidance that a parent would have provided to children. The deceased need not have been the actual parent, but could have been a legal guardian or otherwise acted in a parental role. The compensation would apply to minor children and any children still living at home and dependent upon the deceased.

 

  • Compensation for Medical Expenses: New York law allows for compensation of medical expenses incurred by the deceased.

 

  • Compensation for Funeral Expenses: New York law allows for compensation for all funeral expenses.

 

  • Punitive Damages: New York law allows for payment of punitive damages in especially egregious cases, though that is rare in New York.

 

In this case, the woman had no income, so there would be no compensation for the loss of pecuniary income. Since her daughters were adults, there would be no compensation for the loss of parental guidance. There were no uncovered medical expenses and the case did not rise to the level where punitive damages would apply. The prospects of proving that a woman paralyzed from a stroke had suffered prior to her death looked daunting, especially given the apparent difficulty of proving medical malpractice. New York law does not allow compensation for loss of companionship or grief and sorrow. Looking over the possible sources of compensation, the first attorneys rejected the case because there was no money in it.

How did we find compensation in the case? We knew we could collect for the funeral expenses. By listening to the family, I learned that a granddaughter lived with the woman and the law allows for compensation for the loss of parental guidance as provided by grandparents. We also pursued compensation for the woman’s pain and suffering. Once we saw that we could prove that the woman spent hours with insufficient oxygen, we sought expert medical opinions that could prove that despite the woman’s stroke, she would have experienced the pain and terror of slowly losing her oxygen. This realization was hard for the family to accept and motivated them to want justice for the harm done to their mother. It also provided the basis for substantial compensation.

A Wrongful Death Settlement that Provides a Legacy

In this case, the family made a difference in their dogged insistence that their mother receive justice and they made a difference in the support they lent the case. By conducting a rigorous investigation, by bringing in the right medical experts, by examining the case law for opportunities and looking for creative solutions, we were able to take what several attorneys saw as a zero pay case and turn it into a $625,000 settlement.

The settlement has become a last, loving gift from a mother to her family. One daughter may use her share of the settlement to put money down on a house, another daughter will use her share to support a business she just started and the granddaughter now has the funds to pay for college. The family’s pursuit of justice and compensation has truly made a difference.

I hope you found this information helpful. If you have questions about a wrongful death or medical malpractice case, you should consult with a New York attorney experienced in handling these cases. I would be glad to offer you assistance. You can email me or call my office at 1-800-660-1466. There is never a charge for this consultation.

Carol L. Schlitt
New York Personal Injury Attorney
http://www.schlittlaw.com/
New York Law Thoughts
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.

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