Gov. Cuomo Attempting To Install Caps On Medical Malpractice Awards

March 21, 2011 by Mark Siesel

As part of his effort to obtain a balanced budget by April 1, Gov. Cuomo has selected a "Medicaid Redesign Team", whose purported function is to "reduce Medicaid spending." While this goal might have some merit, the problem is that the team he put together is comprised solely and wholly of hospital CEO's, administrators, doctors and insurance representatives. Not one single patient representative on that team to provide some level of objectivity. Naturally, the "team" included in it's proposal something that doctors have been pushing for many years. A blatant attack on patient safety in the form of a arbitrary $250,000 cap on all medical malpractice awards in the State of New York. Imagine a relative or friend has been left paralyzed, blind, brain damaged, disfigured, or dead through the negligence or carelessness of their doctor or hospital. If this cap is instituted, these grievously injured people would be limited to a total award of $250,000, regardless of the doctor or hospital's gross neglect, carelessness or recklessness.

For many years now, doctors and hospitals have been making the argument that their medical malpractice premiums are excessive, and that they are forced to practice defensive medicine to avoid lawsuits. However, this specious claim has been refuted time and again by studies and statistics. For example, as reported in the February 2011 edition of the American Journal of Obstetrics & Gynecology, by instituting a comprehensive patient safety program in 2002, New York Presbyterian Hospital was able to reduce "sentinel events" (defined as avoidable deaths and serious injuries) from 5 in 2000 to none in 2008 and 2009. Further, medical malpractice payouts shrank from a high of $50,940,309 in 2003 to an amazing low of only $250,000 in 2009!

In another example proving that the issue is not costs but rather patient safety, a June 2005 report in the Wall Street Journal found that anesthesiologists substantially reduced their malpractice premiums (paying less in 2005 than they did 20 years earlier) by initiating the use of devices that alerted doctors to potentially fatal operating room problems. Further, they instituted procedures that protected patients from potentially fatal carbon monoxide poisoning, The results of these measures are impressive indeed--patient deaths dropped from 1 in every 5,000 cases to 1 death per 200,000-300,000 cases.

Statistically speaking, despite the complaints of doctors and hospitals about medical malpractice lawsuits, they are in fact steadily decreasing in New York State. The New York State Office Of Court Administration (OCA) reports that malpractice filings in 2009 were 3,961, from 2005 when 4,270 such cases were filed.

Normally, this blog focuses on interesting cases, changes in the law and advice to plaintiffs on how to have a successful personal injury case. However, the grossly unfair and arbitrary effort to shift the responsibility of doctor and hospital errors away from those who should ultimately be held responsible--the doctors and hospitals that cause these injuries and deaths--must be stopped in its tracks before it is too late. Please urge your local legislator to vote no to the arbitrary and unfair malpractice caps, and yes to patient safety in allowing grievously injured patients to receive just compensation for their injuries.

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Will Second Fatal Tour Bus Crash Lead To Increased Safety?

March 18, 2011 by Mark Siesel

In a follow up to our blog "Fatal Bus Accident Under Federal Investigation" earlier this week, the tour bus industry was rocked again after a second fatal accident occurred, this time on the New Jersey Turnpike on March 14, 2011. In the second accident, a bus operated by Super Luxury Tours crashed after it went onto the grassy median and struck a concrete support for an overpass. The bus was traveling from Chinatown to Philadelphia. The 50 year old driver, Wei Wang, who was not wearing his seat belt as required by statute, was thrown through the windshield and died, as did one 20 year old passenger. 41 other passengers were hospitalized subsequent to the accident. This follows the March 12, 2011 accident on I-95 in the Bronx in which 15 people died when a bus driven by Ophadell Williams rolled onto its side and struck a road sign stanchion. Investigation has revealed that the 40 year old Williams was driving with a suspended license, and had previously been convicted for manslaughter and theft.

Federal investigators from the National Transportation Safety Board (NTSB) have conducted an initial interview of Mr. Williams, who claimed that the bus was clipped by a tractor trailer, causing him to lose control of the bus and causing the horrific accident. Investigators are examining both the bus and the tractor trailer to determine if there is any damage to either vehicle substantiating Mr. Williams' version of events. Allegedly, witnesses have given statements that the bus had been veering onto the shoulder of the road on several occasions prior to the accident, leading to speculation that Mr. Williams was falling asleep at the wheel before the accident happened. Federal and state investigators questioned Mr. Williams as length about how much sleep he had both prior to and during the overnight trip to draw conclusions as to whether fatigue was a factor in the accident.

Under regulations in place enforced by the Federal Motor Carrier Safety Administration, which oversees the tour bus industry, Williams should not have been driving for more than 10 hours during a 15 hour workday. Legislators including U.S. Senator Charles Schumer have called the safety guidelines inadequate, including the fact that rules are often enforced by roadside inspections carried out by state officials on a random basis.

Another questionable safety practice is that only the driver must be seat belted, and tour buses are generally not equipped with seat belts for passengers. The NTSB is studying whether having seat belts would have reduced the number of fatalities in the I-95 crash that claimed 15 lives. It is also looking at whether new technologies such as a warning system to alert the driver that he is veering off the road or heading for an obstacle would have made any difference.

According to the Federal Motor Carrier Safety Administration website (FMCSA), Super Luxury Tours, the operator of the bus in the NJ Turnpike accident, had one of the worst safety records, faring worse than 99.6 similar companies in the unsafe driving category. World Wide Tours, the operator of the bus in the March 12th I-95 accident, was rated almost right in the middle of all similar companies, with 52.6 operators having a better safety record regarding driver fatigue.

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Fatal Bus Accident Under Federal Investigation

March 14, 2011 by Mark Siesel

On Saturday, March 12, 2011, 14 passengers on a tour bus returning to Chinatown from the Mohegan Sun Casino were killed when the driver lost control of the bus, it rolled onto its side, and struck a sign stanchion on southbound 1-95 near the Bronx border. The fatal accident is now being investigated by the National Transportation Safety Board (NTSB) , who are interviewing the owners of World Wide Travel of Greater New York, and examining the crash site for physical clues to explain the horrific accident.

What is known is that on March 12th, thirty one passengers on the bus were returning from a day trip to the Mohegan Sun Casino. The driver of the bus, Ophadel E. Williams, (who suffered non life threatening injuries in the accident including a fractured hip), has informed investigators that he was attempting to avoid a tractor trailer which swerved into his lane and then lost control of the bus. Apparently, the bus tipped onto its right side, slid down the shoulder of the highway (the bus is alleged to have slid 480 feet from first contact with the guardrail until stopping), and then hit a sign stanchion which tore through the middle of the bus, leading to the massive injuries and fatalities. It has also been reported that World Wide Travel has been cited in the past for driver fatigue. Police investigators are working to retrace the driver's actions for 72 hours before the crash. It has been reported that witnesses observed the bus moving at an excessive rate of speed.

In cases such as this, there are several pieces of evidence which will be instrumental in determining the true cause of the accident. These include:

Debris from the accident scene;

Tire marks, skid marks and other roadway evidence;

Damage to the vehicles involved;

GPS tracking information, which could indicate the route and speed of the tractor-trailer;

Statements from the drivers and occupants of the bus;

A review of the engine control module in the bus, which might assist the police in determining the speed of the bus at the time of the accident;

Driver's logs which both the bus driver and truck driver and required to maintain by federal regulation;

Maintenance records for both vehicles.

There will undoubtedly be several lawsuits for wrongful death, and for the non-fatally injured passengers, for pain and suffering, medical and hospital expenses, lost earnings, loss of enjoyment of life, and long term care. I would assume that World Wide Travel would carry significant liability insurance coverage, but whether that coverage will be sufficient to compensate all of the victims of this tragic accident is a big question. If the evidence substantiates that the tractor-trailer's actions contributed to the accident, there will be additional insurance from the owners of the trucking company, but there may still be insufficient insurance to compensate all victims.

We will continue to report on this case in future installments as the investigation continues.

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