Texas Medical Malpractice Case Reveals Unfairness of Tort Reform

January 28, 2013 by Mark Siesel

For years, liability insurance companies, doctors and hospitals have been attempting to establish “tort reform” in the State of New York. In fact, Governor Cuomo had a provision in his initial budget in 2012 which would have capped non-economic damages in medical malpractice cases at $250,000, regardless of the severity of the injuries suffered by the victims of the malpractice. Fortunately, public interest groups, and bar associations throughout New York State were successful in their efforts to fight off this draconian measure and preserve the legal rights of all New Yorkers to obtain full compensation for all injuries suffered as the result of medical errors of a physician or hospital. Without question, insurance lobbyists, chambers of commerce and physicians’ representatives will keep pushing for these limits, and we who represent victims of medical negligence have to be ever vigilant to fend them off.

To give readers of this post an idea of just how unfair tort reform (we like to call it tort “deform”) is, there is a vivid example from Texas, where ex-President George Bush was once a prime mover in the effort to deprive legitimately injured citizens of their legal rights when seriously injured due to medical malpractice. Connie Spears had a history of blood clots when she was seen at the Christus Santa Rosa Hospital in San Antonio, Texas in 2010, with complaints of severe leg pain. The emergency room doctors at the hospital sent Spears home without conducting sufficient tests or recommending follow up with the correct specialists. Several days later, Ms. Spears was taken by ambulance to a different hospital where doctors found a severe clot and massive damage to the surrounding tissues in her legs. With a now life threatening condition on their hands, the treating doctors were required to amputate both of Ms. Spears’s legs above the knee.

In 2003, Texas lawmakers passed a “tort reform” bill by which the maximum non-economic (essentially pain and suffering) damages a plaintiff could obtain in a medical malpractice case is $250,000. To add more hurdles to victims’ burdens, plaintiffs would now have to prove that the physician or hospital personnel were “willful and wanton” (a virtually impossible standard) –essentially, that they intended to harm the patient, before the person could prevail in a medical malpractice case. Further, and equally egregious, tort reformers in Texas were able to institute a requirement that plaintiffs must procure expert reports from physicians in the same specialty as the defendants within 120 days of filing their cases. If the plaintiff is unable to do so, the plaintiff is responsible for the defendant’s legal fees, even if the doctor was clearly negligent in causing the plaintiff serious injury.

Obviously these requirements place huge obstacles in the way of plaintiffs in finding a lawyer willing to take their cases, and a major threat in the event that experts are not retained within the short time frame required. In Ms. Spears’ case, she underwent substantial difficulty in finding an attorney willing to handle her case, and when she finally did, her expert’s report was deemed insufficient. She now has no legs, and although the hospital did not pursue legal fees against her, the other defendants in the case have. Ms. Spears has lost her retirement savings, and with an unemployed husband, is concerned that they will lose their home to foreclosure.

Insurance companies without conscience blame high premiums on frivolous cases and the volume of medical malpractice cases. However, the truth is that there are already laws on the books which require that in order to file any medical malpractice case in the State of New York, the case must be reviewed by a practicing physician in that specialty who finds that there were departures from good and accepted medical practice. Further, even if a case is filed, if a Court determines that a case was filed frivolously, there is a section in New York’s Civil Practice Law & Rules in which a plaintiff and his or her lawyer can be assessed fines of up to $10,000. Moreover, when cases do go to trial, the percentage of medical malpractice cases which are successful pales in comparison to the cases which are not, due to the benefit of the doubt that many jurors accord doctors in general.

Thus, anyone reading this post who is motivated to do something to prevent the Texas scenario from being implemented in New York, (a cap on medical damages will undoubtedly be foisted on the public again in the near future) contact your local representative, State Senator and Governor Cuomo and tell them “No caps on non-economic damages in New York!”

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Medical Malpractice Bill Approved by New York Senate Judiciary Committee

March 6, 2012 by Mark Siesel

124811_medical_series_3%20sxchu.jpgThe New York Senate Judiciary Committee has approved a bill which would prohibit physicians and other medical malpractice defendants from interviewing a plaintiff’s non-party, later-treating doctors in private. Senate Bill 3296-A is designed to overturn the 2007 New York Court of Appeals decision in Arons v. Jutkowitz that said a defendant in a malpractice lawsuit may interview a plaintiff’s physicians so long as federal Health Insurance Portability and Accountability Act (HIPAA) requirements are met. HIPAA requires a defendant to obtain consent from a plaintiff prior to interviewing a non-party doctor. The Judiciary Committee approved the proposed law with a 21-2 vote.

According to Senate Judiciary Committee Chair, John Bonacic, the holding in the Arons case "usurped the legislature's authority." In 2007, Judge Eugene Pigott expressed a similar sentiment in his dissent from the majority holding in the case. Joshua Cohen, President of the New York Medical Defense Bar Association, believes the proposed law is unfair to defendants. He argues private interviews are necessary in order to determine whether a plaintiff’s purported injuries are the result of a pre-existing condition. The bill’s sponsor, Republican Senator John DeFrancisco of Syracuse, has stated the legislation is fair as it protects a defendant’s right to question physicians at depositions.

The Greater New York Hospital Association strongly opposes Senate Bill 3296-A. The Association has alleged the new law would raise malpractice insurance premiums by as much as 6 percent or $96 million. In response, Senator DeFrancisco has stated it would be impossible to predict whether the bill would have any monetary impact or what that impact might be. An identical Assembly Bill 694-A was also introduced this year by Democrat Rory Lancman of Queens. The Assembly previously passed the measure on multiple occasions, including last year when the proposed law died in the state Senate.

Medical malpractice occurs when a doctor, surgeon, hospital, or other medical provider renders services that fall short of the local standard of care. Health care providers must exercise reasonable care in accordance with the prescribed standard of care for their profession. If a medical provider deviates from the accepted local standard of care, then he or she may be liable for any resulting injuries. Unfortunately, mistakes that could adversely affect an individual’s quality of life are sometimes made. If you were injured by a medical professional, a qualified medical malpractice lawyer can evaluate your claim and help to protect your rights.

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New York Medical Malpractice Courts Expanding

November 14, 2011 by Mark Siesel

Courts that specialize in medical malpractice cases are now increasing in New York City. The initial program was started in Bronx County approximately 15 years ago through the supervision of Justice Douglas McKeon in response to the filing of 4,000 medical malpractice cases annually. The idea was to reduce Court backlogs and save New York City money. More specifically, the New York City Health and Hospitals Corporation was seeking to manage filed claims and reduce payouts with regard to the 11 public hospitals it operates.

Judge McKeon has claimed that since he began focusing on resolving medical malpractice cases, he has settled approximately 1,000 which otherwise would have further clogged an already overtaxed Court calendar. Presently, McKeon meets with attorneys for malpractice litigants in 12-15 cases monthly. Due to the success of this system, it has now been expanded to include courts in Brooklyn, Queens, Manhattan, and upstate in Erie County.

In the 1980’s and early 1990’s in Westchester County, there used to be a program by which before a medical malpractice case could be filed, it would have to be presented to a medical malpractice panel comprised of one judge, one physician and one attorney, which would make a determination whether or not the case had sufficient merit to be instituted. Only if 2 of the 3 panel members decided that the case was meritorious would the plaintiff’s attorney be permitted to file the case in Court.

New York Chief Administrative Judge Ann Pfau noted that the program has been saving City hospitals money and having an impact on physicians’ malpractice premiums. Beginning on December 1, 2011, and utilizing a $3 million dollar federal grant, Judge Pfau will become the coordinating judge of the State Court’s medical malpractice program, responsible to train judges in how to properly handle malpractice claims. Additionally, Judge Pfau will begin conducting conferences to resolve these claims in Brooklyn as Judge McKeon does in the Bronx.

Judge McKeon claims that the City now settles approximately 95% of its medical malpractice claims filed against the Health and Hospitals Corporation. Further, the Health and Hospitals Corp. has announced that its payouts on claims dropped from $196 million in 2003 to $130 million in 2010. The program includes an early investigation of claims and attempts to settle cases before they reach the trial stage. In Counties such as Kings and the Bronx, where litigants can wait for years to obtain a trial date, and be forced to endure numerous delays before the case actually gets into a courtroom, any effort to resolve cases on an expedited basis is most welcome.

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Medical Malpractice Awards At All Time Low Says Study

August 31, 2011 by Mark Siesel

According to a study by the consumer protection group Public Citizen, medical malpractice awards are at an all time low in the United States. Public Citizen used data collected from the National Practitioner Data Bank (NPDB), which started tracking payments made in medical malpractice cases in 1990. The 2010 report, released recently, found that malpractice payments made for physicians in 2010 was the lowest on record. This information should be imparted to all physicians who claim that personal injury lawyers are responsible for the increase in their malpractice premiums. Clearly, that is not the case, and the true culprits are the powerful insurance companies and their well paid/connected lobbyists, who consistently manage to thwart all reform efforts to remedy the insurance crisis in this country.

The study showed that the number of payments made for malpractice claims dropped from 16,566 in 2001, to 10,195 in 2010. Despite the dramatic decrease in medical malpractice awards, insurance companies are the real winners, continuing to increase premiums and reap significant profits. According to Public Citizen, malpractice payments amounted to a scant 0.13% of total health care costs. They found that total health care costs increased a massive 90% between 2000 and 2010, with medical malpractice claims dropping 11.9% during that same ten year time frame.

There has not been a corresponding decrease in medical mistakes while malpractice payments have decreased, the study finds. They cite three studies published in 2010 and 2011. Among these was from the Inspector General of the Department of Health & Human Services, who reviewed the cases of Medicare patients in U.S. hospitals. This study concluded that one in seven Medicare patients experienced a “serious adverse event”, which contributed to death in 1.5% of patients. Further, they determined that almost half of the adverse events—44%--were preventable.

The authors of the report concluded that the true medical malpractice crisis is not due to substantial medical malpractice awards, but rather the “epidemic of medical errors.” We hasten to add, and a huge insurance problem in which insurance companies make substantial profits but consistently deny legitimate claims while racking up the profits.

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Federal Study Shows Under reporting of Hospital Errors

April 15, 2011 by Mark Siesel

I recently read an article in Bloomberg online which confirms what most personal injury and medical malpractice attorneys know to be true: hospital errors are vastly underreported, with a federal study finding that a full 90% of patient injuries are not recorded. The most common injuries are pressure sores and infections following surgery, according to the U.S. Agency For Healthcare Research and Quality, which analyzed 354 "adverse events", including bloodstream infections, medication errors and pressure sores. The data was taken from 3 U.S teaching hospitals, which remain anonymous due to patient confidentiality issues.

The adverse events happened during 33% of admissions at the hospitals, using reviews of 795 patient records by nurses, pharmacists and physicians. No effort was made in the study to determine if the errors could have been averted.

In a 1999 study by the U.S. Institute of Medicine, it was determined that 98,000 deaths and more than one million injuries were due to medical errors. In a 2008 study by the Seattle consulting firm Milliman Inc., which reviewed hospital claims from 2001 through 2008, they found that these errors cost the 17.1 billion by 2008, and identified 564,000 injuries to patients in U.S. hospitals and 1.8 million injuries to patients treated at outpatient facilities.

Closer to home, considering these eye opening statistics, this writer is thrilled that Governor Andrew Cuomo failed in his efforts (at least for this year) to cap at $250,000 all medical malpractice awards in New York State, which he had inserted in his 2011 budget (as a clear gift to very well paid insurance companies and hospital administrators) but gave up in negotiations with the Assembly and NY Senate two weeks ago.

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Study Finds Surgical Mistakes Despite Safety Protocols

November 5, 2010 by Mark Siesel

According to a study in the Archives of Surgery, as reported in the the New York Times October 19, 2010 edition, from 2002 through mid-2008 in Colorado, surgeons reported an astounding 25 operations on the wrong patient, and 107 surgical procedures on the wrong body part. The data was drawn from an insurance database in Colorado that involved 6,000 physicians.

Examples of the medical malpractice committed include the most egregious case, in which a chest tube was inserted into the wrong lung, which was healthy, causing the lung to collapse and the patient to die. Surgeons also operated on the wrong side of the brain, removed a healthy ovary and performed surgery on the wrong hand, elbow, knee and eye.

Dr. Philip F. Stahel, chief of orthopedics at the Denver Health Medical Center, noted that: "These data are shocking...These are catastrophic events that are unacceptable. They have been termed a never event--because they should never happen."

In our practice, we have represented clients who had surgical instruments left in their chests, and more recently, a client who suffered unnecessary surgery when his doctor was "out sick" the day of the procedure, and the doctor's partner operated on the wrong side. He was then forced to undergo reconstructive surgery, as well as surgery on the correct body part. Needless to say, in that case, the insurance company and doctor decided that the sensible decision was to settle the case before a jury was given the opportunity to decide the amount of damages.

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Westchester County Malpractice Verdict Against Medical Center

December 22, 2008 by Mark Siesel

On December 12, 2008, a jury in a Westchester County medical malpractice case awarded a 7 million dollar verdict to the family of Theresa Capwell, an Orange County mother of three who died on September 10, 2001. Ms. Capwell had been admitted to Westchester Medical Center on September 18, 2000 complaining of abdominal pain. Apparently, although her symptoms indicated that she was suffering from pancreatitis, an inflammation of the pancreas, doctors at the hospital instead ran tests for various types of cancer, and disregarded test results which showed that Ms. Capwell did not have the disease.

When the inflamed pancreas was not treated, Ms. Capwell suffered complications, and was placed on a breathing machine one week after admission to the hospital. The breathing machine caused an accumulation of air around the lungs, which prevented the lungs from expanding and contracting. Had doctors at the hospital used a chest tube to drain the air around the lungs, tragedy could have been averted, but instead, Ms. Capwell was kept attached to the ventilator, and went into cardiac arrest. She had no oxygen for approximately 12 minutes, causing irreversible brain damage, and Ms. Capwell died 11 months later, unable to speak or leave her bed.

Westchester Medical Center vowed to appeal the verdict, which came after a three week trial and one day of deliberations. Ms. Capwell's three daughters were 7, 9 and 11 when she died back in 2001.

According to the National Institutes of Health, about 210,000 people are admitted to U..S. hospitals annually for treatment of acute pancreatitis. With correct treatment, the condition usually resolves within a few days.

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New York Medical Malpractice--What Is Informed Consent?

November 26, 2008 by Mark Siesel

You have decided to have elective surgery, such as breast implants, a nose job, or radial keratotomy. Before the procedure is performed, the surgeon (or more likely his nurse or assistant) will hand you a document which contains a long list of potential complications and risks of the procedure you are about to undergo. The document you are about to sign is called a "consent form." Before you place your signature on that piece of paper, MAKE SURE YOU READ IT CAREFULLY! What you will find when you read the consent, (for example in the case of the radial keratotomy), is that there is a risk of blindness, a worsening of your eyesight, and death or serious complications from the anesthesia.

Do not hesitate to ask the surgeon any and all questions about the potential risks and dangers of the surgery, and if you feel that your questions have not been fully or satisfactorily answered, walk out of that office without going forward with the surgery. Once you have signed the consent, which will state on the form that you have read it carefully and that all of your questions have been answered, you have now given your "informed consent" to the procedure. What the means is that if a problem develops from the surgery, and that problem was disclosed as a potential risk or complication of the operation, you have most likely waived your opportunity to institute a medical malpractice case as a result of your "informed consent."

If you have been the victim of medical malpractice, contact The Law Office of Mark A. Siesel online or toll free at 888-761-7633 for a free consultation to discuss your case with an experienced, knowledgeable attorney who will outline your potential legal options.

Medical Malpractice in New York-Get Your Medical Records Promptly!

November 22, 2008 by Mark Siesel

If you are the victim of New York medical malpractice by a hospital, doctor, physical therapist or chiropractor, it is vital that you obtain your records immediately after the malpractice has occurred. The most important reason is that an attorney cannot commence a medical malpractice case in New York without having an expert in the that field of medicine review the records and make a determination that there was a "departure from good and accepted medical practice." Secondly, it is a regrettable but frequent occurrence that when records are requested weeks or months after malpractice was committed, they have been "misplaced" or can't be located when the doctor or hospital suspects that a malpractice claim is being considered.

To obtain your records from the doctor, hospital or other provider, simply download a HIPAA compliant authorization form from the Internet, write in your name, address, social security number, the specific records you are requesting, where you want them sent, sign and date the form, and give it to the doctor or hospital. In some cases, there may be a fee involved, but the doctor or provider is required to honor the HIPAA form.

The other benefit of having your records is to obtain second opinions when you simply want to get another physician's determination regarding your medical problem or condition. It is a certainty that the second doctor will want to review your records, and you will be able to obtain a second opinion that much sooner if you arrive for your visit with the records from the original doctor.

Contact The Law Office of Mark A. Siesel online or toll free at 888-761-7633 if you, a family member or friend have been the victim of medical malpractice.

Medication Errors Injure 1 Of 15 Hospitalized Children

April 8, 2008 by Mark Siesel

A study conducted by The National Initiative For Children's Healthcare Quality, using a new scientific detection method, has determined that for every 100 hospitalized children, there are 11 drug-related harmful events. These include medicine mix-ups, accidental overdoses, and bad drug reactions. This new estimate translates to more than 7% of hospitalized children, or approximately 540,000 children annually, based on government data. The new method uses a list of 15 "triggers" on children's charts, including use of specific antidotes for drug overdoses, suspicious side effects and various lab tests.

The results will be made available to the public in the April issue of the journal Pediatrics. Experts say that the problem is larger than the study concludes, because it only reviewed selected charts, and didn't include results from general community hospitals, where most U.S. children are treated.