March 16th, 2020

Coronavirus and Statutes of Limitations

“STAY HOME” was what Gov. Andrew Cuomo publicly tweeted Sunday morning at 9:07. And the Department of Health sent a message, which could’t be any more blunt in the Stay Home message:

** New #COVID19 guidance for New York City ** Everyone in NYC should act as if they have been exposed to coronavirus. That means monitoring your health closely and staying home from work if you are sick. New Yorkers who are not sick should also stay home as much as possible.This demand by the Governor, and the concurrent closing down of most of society, brings special legal issues.

I certainly can’t address all of the legal issues here. But I’ll bite off one: What happens to time limitations in potential lawsuits? There are things that must be done by a certain date or legal rights are lost.

Sure, the courts can adjourn conferences, stop holding trials, start conferencing cases via phone and video conferencing, extend time to perfect appeals. But what of the victims who have not yet found their way to the lawyers’ offices?

Consider this: The Notice of Claim requirement that are a mandatory prerequisite to bringing a suit against a municipality is just 90 days. And then suit must be started within 15 months from the date of an incident.

How does the lawyer meet with the potential client and do an investigation to see if representation is warranted? What of the injured people who simply say to themselves, unaware of the 90-day rule, that they will wait a few months until the crisis is over?

And the problem is not, by any means, restricted to municipal actions (for general negligence, thee years in New York).

What of the generally non-litigious people who don’t want to bring suits, and have been waiting and waiting and waiting for the injuries to get better but they didn’t? And are now compelled, on the eve of a statute of limitations running, to make that lawyer visit that they hoped was unnecessary, but can’t

Are lawyers supposed to just sign cases up willy-nilly by phone to protect people who might have a suit? And then be saddled with such clients when they find out later that no viable claim exists? That cannot possibly be good for anyone.

How does an investigator interview people in person and get a signed statement?

How does something get notarized, in the absence of a personal visit?

How does a process server serve papers when folks are reluctant to meet strangers?

After September 11th, the state faced similar problems, albeit on a more sudden and dramatic scale.

And the answer was an Executive Order from Gov. George Pataki extending all kinds of time limitations.

With the Governor now asking everyone to state home, the time to issue such orders to deal with the statutes of limitations is now.

March 10th, 2020

Greetings from the Containment Zone

It’s weird seeing your immediate neighborhood at the top of the news in a doom and gloom sorta way. You don’t really want to be trending on social media due to an illness.

It makes me think of a Twighlight Zone opening:

It is the middle ground between light and shadow, between science and superstition, and it lies between the pit of man’s fears and the summit of his knowledge. This is the dimension of imagination. It is an area which we call the Twilight Zone.

Some of us in New Rochelle, NY have been designated a “Containment Zone,” decreed by Gov. Andrew Cuomo, with the National Guard coming in. The day before he called us a Hot Spot, which I thought was a whole lot sexier and “I’m a Hot Spot” t-shirts would have been great. If not for that whole illness and death thing.

I’m essentially the center of the bulls-eye on the map with the circle around it, so I wanted to…

Oh my god you’re sick!!!

Ugh, who let you in here? And no, but thanks for kinda, sorta, almost askin’. I mean, there’s a good chance I will be in the next year or two, but that’s the same risk for everyone else in the ~~country~~ world. For the sake of our healthcare folks, let’s hope it doesn’t all happen at once.

So with the National Guard, that means you’re under military rule!?

Not exactly, and when I say not exactly I really mean absolutely not. The National Guard, which isn’t here yet, will be used to clean the schools that have been closed and get food to some people.

Are there guns all over the place? I bet there will be guns. Lotsa guns. And ammo. And tanks. And more guns!

Cool your jets. The Guard is not coming for military or police functions. It’s a straightforward manpower issue. We’ve only got so many hands on deck and simply need more.

How boring! OK, tell me all about the food shortages! Are folks fighting in the stores over the scraps? There must be fighting!

I’ve been to three different markets over the last week. The shelves are full. Grocery store traffic is normal. I’ve no fight videos to share. But there are hand sanitizers or wipes at the entrances.

So what the hell is different?!

Glad you asked, even if you did invite yourself in. Not too much. People try not to use the hand rails for the stairs. And at the train station folks will hold the station house doors open for others with their elbows.

That ain’t what I meant.

OK. The trains into the city are about ⅓ emptier as they leave New Rochelle because many folks in my neighborhood have been quarantined for the last week.

But outsiders reacted differently when the initial people got sick. The reaction of outsiders is vaguely reminiscent of the September 11th aftermath when some folks living in the back of beyond thought terrorists were coming for them and they needed tanks. And as bad as it was for many people locally, New Yorkers simply adapted. We even ran a marathon while the World Trade Center was still burning.

But I saw the screaming headlines! Like this one from the Daily News!

Yeah, well, they probably got tired of running Trump-Is-Clueless headlines and they gotta sell papers, you know?

[Yawn] So, anyway, the whole city is under quarantine now, right? Shut! Containment! Exclusion!

No. The city is not shut, regardless of what the Daily News screams at you. The containment refers to prohibiting large gatherings like in schools or worship houses in the area where people got sick. But people are free to come and go as they please if they are not part of the 1.5% of the population that was quarantined. It is neither an exclusion nor a quarantine zone. Perhaps Cuomo should have called it a “support zone” to refer to the National Guard helpers coming in, but I guess that ship has sailed.

OK, you can leave if you are not one of the quarantined ones, so tell me about the nightmare of disease on those rolling petri dish commuter trains into the city!!

Well, I drive to the station and take a seat on the train, most of which are new. No need to touch anything if I have a seat, and I almost always have a seat — even before the virus. It’s a relaxing 30-minute ride into Grand Central. The only thing I need to touch is my phone, since it’s an e-ticket.

So anyone working in midtown can easily go from their car to their office without touching anything until they get to their building. Subways are another matter, but that’s a NYC issue.

You know, this is really boring. Someplace there must be fire and brimstone coming down from the skies! Rivers and seas boiling! Cats and dogs living together! Mass hysteria!

Yeah. Sorry. But it just ain’t like that. In some places people will be sick, but I haven’t even heard a cough on the train. The only thing you’ll see are news trucks parked in front of City Hall and maybe a photographer at the train station, all looking for something, anything, to shoot.

In the end, this will still be New Rochelle. Norman Rockwell once lived here. Also Rob and Laura Petrie. The city now has a population of about 80,000 and growing with tons of downtown development. [Addendum: Cool interactive map.]

OK, now you’re just being a civic booster.

Who? Me? Actually, I tell you that because I don’t have much to work with here, OK? Life doesn’t really look any different for most. I saw a bunch of deer when I went for a trail run yesterday, does that help? And I heard coyotes last night.

OK, I got one for you — the politicians must be screwing this up big time! I mean, really, really big time!! Bigly!

A viral emergency is like a snow emergency for a politician. If you handle it well, few will notice. But if you screw it up you lose your job.

You know who knows that well? The Cuomo family growing up in Queens where the streets didn’t always get plowed. So Governor Andy has been all over this emergency giving extensive press conferences and showing a command of the facts. So too for New Rochelle’s Mayor Noam Bramson and Westchester County Executive George Latimer.

When people have a command of the facts you tend to trust them more when they give advice on what to do, or not to do.

Those guys are policy wonks. They dive into the material and know they damn well better be candid because there is comfort in knowledge and anxiety in secrecy. Yes, the illness is very important, but mostly so that people in the sweet part of life, who might get only a little sick because of younger and healthier lungs, don’t inadvertently pass it on to vulnerable populations.

Oftentimes people only mention politicians when bad stuff happens. But Cuomo, Latimer and Bramson all deserve much praise for doing as well as they can under exceptionally difficult circumstances.

New Rochelle is like a canary in the coal mine as they experiment, in conjunction with the Centers for Disease Control, to see what will slow down the viral spread so that hospitals aren’t inundated all at once. If 2% need hospitalization, that’s still 1,600 hospital beds for an 80,000-person city.

You mentioned the Mayor. And the County Executive. And the Governor. Any other political chief executive you want to give accolades to?

Finally. I get to answer your question with one of my own. Do you know of a national level chief executive that is a policy wonk with a command of the facts?

January 19th, 2018

Lavern’s Law Will Save New Yorker’s Money (Updated!!!)

Lavern Wilkinson, who lost her chance for justice before she even knew she had that chance.

Dear Gov. Cuomo:

A couple of weeks ago I wrote a piece about why you should sign Lavern’s Law, which has been sitting on your desk for weeks now as the only bill out of 600+ that you’ve failed to act on from last year’s legislative session.

But in my list of reasons to sign a bill that starts the statute of limitations in failure-to-diagnose-cancer cases from the date the malpractice is discovered (as opposed to when the malpractice happens) I neglected to mention one thing.

Lavern’s Law will save taxpayer funds. As it stands now, if someone loses the right to sue before they ever even knew that malpractice occurred, there’s a pretty good chance that Medicaid will pay out much of the medical expenses. And those kinds of expenses can add up.

But if suit is permitted then much of the money can be recovered from the people actually responsible for the unnecessarily diminished health of the patient. Medicaid often recoups money paid out from such lawsuits.

And the best part, from Medicaid’s perspective, is that a private attorney is doing all the work. There is virtually no cost to the state other than contacting us every so often to find out the status of the suit, and settling up if the recovery is partial.

So the question is — aside from the moral and public policy issues I already addressed — who should bear responsibility for the medical costs of malpractice? The party that was negligent? Or the taxpayers?

There are reasons this bill enjoyed wide support from both Democrats and Republicans and why similar laws exist in 44 states. Yes, that’s right, even deep red states have such laws.

But not New York.
———-

Updated (1/30/18)! Gov. Cuomo has agreed to sign Lavern’s Law and it will happen today!

As with many laws, there is an issue of, “When does this become effective?” The very powerful health care lobby was concurred that malpractice from 5 years ago — if it hadn’t been discovered until after the statute of limitations had expired — would now become actionable.

The bill was, therefore, tinkered with a bit for past acts of malpractice, so that it would no longer allow patients to revive already-expired claims that occurred up to seven years prior. Instead, a patient could file for a cancer claim that expired within the last 10 months and file the claim for an additional six months.

But on the whole, a big victory for civil justice. The Daily News, which has long championed this legislation, has an editorial celebrating the event, writing:

It took too long — indeed, far longer than the time stingily allotted Lavern — but first the Assembly, then the Senate had the wisdom to open New York’s lawsuit window despite opposition from the hospital lobby.

The version of the legislation to earn Cuomo’s signature will include adjustments to be passed this week at the governor’s insistence. Albany being Albany, the bill that passed both houses of the state’s Legislature wasn’t good enough for the governor, so Cuomo brokered a deal with legislative leaders to force through amendments.

Oddly, the law will only cover malpractice related to cancer. Why? Malpractice comes in all forms. Fix that, stat.

It’s also a shame that Cuomo doesn’t dare open the door to past patients, beyond 10 months ago.

Still, take comfort that Lavern smiles down on all who trust their lives to medical professionals sometimes fatally imperfect. Her law and legacy demand they do better.

January 2nd, 2018

Will Gov. Cuomo Sign Lavern’s Law?

Yes, a real case. Yes, the x-ray hangs in my office.

There is one bill on Gov. Andrew Cuomo’s desk from last year. Just. One. Bill.

There were 606 bills that passed by both of New York’s legislative houses. All have been signed, or vetoed.

Except for Lavern’s Law. A law that Cuomo previously stated that he supported and would sign.

It was finally sent to the Governor during the holiday week for signature. He has 30 days to sign it.

As I bang on this keyboard, it sits on his desk.

Lavern’s Law, for those that don’t know, mimics the law in 44 other states, extending the statute of limitations in certain medical malpractice cases from the time the discovery of malpractice was made, or could reasonably have been made, instead of when it occurred

In the final hours dickering over the bill last June, it was watered down to apply only to cancer cases, leaving all other “failure to diagnose” cases, where the patient didn’t even know s/he was victimized, hanging out in the cold.

But still, even in its watered down state, it is something for those that have not only been victimized by malpractice, but didn’t even find out until the time to bring suit had expired.

As I previously described it:

The law is named for Lavern Wilkinson, who went to Kings County Hospital on February 2, 2010 with chest pain. A radiologist saw a suspicious mass on the x-ray. But Wilkinson wasn’t told.

When it was found again two years later when her complaints worsened, the 15-month statute of limitations had expired. As per the Daily News summary of the incident:

A chest X-ray found the cancer had spread to both lungs, her liver, brain and spine. The disease was now terminal.

She left behind family including an autistic daughter.

Lavern Wilkinson, who lost her chance for justice before she even knew she had that chance.

The bill passed the Assembly. Then it passed the Senate 56-6, that being the tougher of the two houses.

Why hasn’t the bill been signed?

It can’t be due to insurance premiums because, after all, the state’s largest insurer is being sold to Warren Buffet because it’s so damn profitable.

And at just 2 ½ years for suits against non-governmental medical facilities, we already have one of the shortest statutes of limitations in the country (and 15 months against governmental facilities) since we have no date of discovery statute.

And with some of the lowest legal fees for attorneys, the medical community has already been granted widespread de facto immunity for most acts of malpractice — since taking smaller suits simply isn’t financially economical.

And it can’t be because of a lack of caps on malpractice cases, because we not only have them, but have had them for over 200 years.

New York has become, with some of the best medical care in the world, one of the absolute worst places with respect to finding justice when that care goes wrong.

And all this happens despite medical liability insurance premiums and premiums continuing to plummet, and the costs of insurance as a percentage of healthcare costs likewise continuing to drop. From a Public Citizen study in 2017 (The Medical Malpractice Scapegoat), look at these three charts:

Under what justification does a state close the courthouse doors on its citizens before they even knew they were injured?

Under what logic do we grant further immunity to those that commit preventable harms?

For what public policy reason do we continue to withhold justice?

This bill enjoys widespread support among voters, as demonstrated by the overwhelming vote in the Senate.

It is long past time that New York get a date of discovery law. There are no reasons not to do it.

Gov. Cuomo, please sign that bill.

See also (1/19/18): Lavern’s Law will also save New Yorkers money

December 6th, 2012

An Open Letter to Gov. Cuomo On Filling Two Court of Appeals Seats

Gov. Cuomo:

You now have two spots to fill on New York’s Court of Appeals, as a result of the retirement of Judge Carmen Ciparick at the end of this year and the untimely death of Judge Theodore Jones last month.

There is now a list available of seven candidates for the first slot, that of Judge Ciparick.

It isn’t my intention to parse that list here, or the next list that comes out with respect to the late Judge Jones. Rather, it is to remind you that New York has a long tradition of elevating practicing lawyers, and judges that used to be practicing lawyers, to high positions.

While this would seem to be pretty obvious — who but a practicing lawyer could appreciate much of the procedural nuance and nonsense that takes place — it bears repeating due to the stark contrast with the US Supreme Court and the national political stage.

Back in 2009 President Obama needed to fill the seat vacated by Judge Souter. Before he selected Sonia Sotomayor, I wrote about the need for having lawyers who had once practiced in the private sector up on the bench. I called that The Tissue Box Test, based on lawyers knowing what it is like to have sobbing clients in the office, and trying to deal with the legal issues that brought them there.

I urge you to read it.

But if you don’t want to click that link, this is snippet:

I want a nominee to know what it’s like to see real people — not political philosophies or corporate giants trying to add a few cents per share to their earnings — in their office in distress, and to represent them. I want a nominee that has experienced being the last, best hope for a downtrodden individual and the problem brought in the door. I want someone who knows what it’s like to be the underdog against corporate or government interests.

There is more at the link, and what I wrote back then still holds true today. It isn’t just political philosophy that is important, but having a true appreciation for the problems of desperate individuals trying to obtain a small bit of justice.

I hope that, as analysis of the judicial list goes on, that these will be considerations. For all of the judicial philosophizing in the world won’t make up for decisions that treat people as merely “interesting issues.”

In other words, beware those with a lifetime in academia. Beware those that never ran an office, worked on behalf of individuals or made a payroll. Beware those who have not had one-on-one dealings with those frantic for legal service.

And look for those that kept a box of tissues on their desks to hand to the clients in need.

Respectfully yours,

–Eric Turkewitz