March 12th, 2007

New York Personal Injury Claimants Can Protect Some Medical Records

New York personal injury lawsuits have very liberal discovery rules when it comes to furnishing medical records. Almost any medical record, it seems, is fair game under the civil practice rule for discovery of all “material and necessary” documents.

But the First Department of the Appellate Division wrote a few days back that a tougher standard exists for more sensitive medical data, particularly with respect to HIV status and substance abuse materials. Applying the standard of the Health Law or Mental Hygiene Law instead of the Civil Practice Law and Rules, the court noted that a court should grant an order for disclosure of confidential HIV related information upon an application showing a “compelling need” for disclosure of the information for the adjudication of a criminal or civil proceeding.

Since the motion court had made its determination using “material and necessary” standard and not the “compelling need” standard, the lower court decision was reversed and remanded for consideration under the higher standard to see if such records exist and determine their discoverability (if any).

The decision in this malpractice case is here.

February 19th, 2007

Medical Malpractice — Litigating the Surgical Error Case

The other day I wrote of Notre Dame football coach Charlie Weis suing his doctors based on a failure to recognize life-threatening complications after his gastric bypass surgery. This resulted in Weis bleeding internally for more than a day and ultimately incurred permanent nerve damage to his legs.

The story highlights a sharp issue in surgical error cases: Simply causing an injury during surgery is one thing, but the failure to recognize that injury is something else entirely. The latter is more likely to be provable malpractice than the former.

Those who litigate these cases know the drill well: The potential client calls regarding a bad surgical result. Simply having a bad outcome, though, is not malpractice. If the problem was seen at the time and the surgeon rendered treatment for it, the case may well be rejected by experienced malpractice attorneys so long as the injured body part was in the surgical field.

There are two reasons for the likely rejection of a case regarding a surgical error: First, if for example a surgeon nicks an adjacent organ, close to where s/he is operating, it is the type of surgical risk about which jurors are very forgiving, even if it shouldn’t have happened. But because it is also a risk, it is therefore incumbent on the surgeon to check to make sure such injury did not occur. The failure to recognize that the injury took place is often, therefore, the actionable malpractice.

Other FAQs on New York medical malpractice from this site:

February 7th, 2007

FAQ: Statute of Limitations in Medical Malpractice Cases

New York’s statute of limitations is just 2 1/2 years in medical malpractice cases, which is brutally short when it comes to the “failure to diagnose” cancer cases. Often the malpractice is not even known (because the diagnosis was missed) until after the statute of limitations has passed.

A few days ago, the Appellate Division decided Trimper v Jones, and this demonstrates how medical practitioners get immunity from suits regarding a failure to promptly diagnose a cancer:

[D]ecedent sought treatment from Dr. Jones for a flare-up of eczema and that he subsequently showed her a mole on his left shoulder that concerned him because it seemed to be growing. Dr. Jones excised the mole and had it biopsied in October 1999. Dr. Jones advised decedent on October 29, 1999, through plaintiff, that the lesion was a minor nevus and was not malignant. Decedent next saw Dr. Jones in January 2001, when he experienced another flare-up of eczema, and he again saw Dr. Jones in March 2002 for a flare-up of eczema. At that time, he pointed out a lump under his left arm, and Dr. Jones referred him to his internist. Upon removal of the lump by a surgeon, it was determined that decedent had metastatic melanoma. Decedent did not see Dr. Jones again, after his appointment in March 2002. Plaintiff commenced this action in February 2003, and defendants thus met their burden of establishing that the statute of limitations, which began to run in October 1999, had expired.

While New York does allow for some exceptions to the time limitations rule, they are not applicable in this type of matter. One could conceivable extend the statutory period under the “continuous treatment doctrine” if treatment was continuing for the same condition that gave rise to the lawsuit. But if the diagnosis was missed there is unlikely to be any treatment for that condition.

New York, unlike some other states, does not have the time limitation starting to run from the date of discovery of the malpractice. The effect is to give immunity to medical care providers who miss a diagnosis, tell a patient all is well, and such error is not discovered until the 2 1/2 year period has elapsed.

In a prior post I had discussed the need for speed sometimes in contacting an attorney. Sadly, it is sometimes impossible.

For other FAQs on New York medical malpractice, click this link.

January 24th, 2007

The Medical Malpractice "Crisis" Hoax — From Public Citizen

Since others had already pointed out the Public Citizen report exposing the hoax of a medical malpractice “crisis” I wasn’t going to bother. But there was Pres. Bush last night at his State of the Union speech once again leading people astray, when he said:

And to protect good doctors from junk lawsuits, by passing medical liability reform.

Good doctors, however, don’t seem to be the problem. Since 1991, according to the report, 5.9 percent of U.S. doctors were responsible for 57.8 percent of the number of medical malpractice payments. That is an extraordinary statistic.

A few other points from the report, and things to think about when someone advocates closing the courthouse door to those injured by negligence:

The number of malpractice payments declined 15.4 percent between 1991 and 2005.
Adjusted for inflation, the average annual payment for verdicts declined 8 percent between 1991 and 2005.
Payments for million-dollar verdicts were less than 3 percent of all payments in 2005.
Over 64 percent of payments in 2005 involved death, or major or significant injuries.
Payments for “insignificant injury” were less than one-third of 1 percent of payments in 2005.

The Public Citizen study follows a report last year in the New England Journal of Medicine entitled “Claims, Errors, and Compensation Payments in Medical Malpractice Litigation.” This was based on a study by the Harvard School of Public Health and the Harvard Risk Management Foundation.

Is our society litigation crazy? Apparently not. It appears from the Public Citizen report that only 5-10% of those killed by medical errors had any recovery from a malpractice suit. From the report:

“One-third of malpractice cases resulting in a malpractice payment in 2005 (4,504) involved the death of a patient. Yet, as a 1999 landmark study by the Institute of Medicine showed, an estimated 44,000 to 98,000 patient deaths occur each year as a result of preventable medical errors in hospitals.”

Public Citizen took their data from the National Practitioner Data Bank (NPDB), which contains data on malpractice payments made on behalf of doctors as well as information about disciplinary actions against them by state medical boards or hospitals.

Just reading the table of contents of this report is enough to make anyone think twice about the propaganda spewed by advocates of tort “reform.”

Key Findings
Part I: The Medical Liability System Produces Rational Outcomes

a. Annual Number of Malpractice Payments Is Down
b. Medical Malpractice Payments per Population Continue to Decline
c. Total Value of Malpractice Payments Flat Since 1991
d. Judgments Are Not Irrational
e. Million-Dollar Judgments Are Less Than 1 Percent of the Total Number of
Payments
f. Million-Dollar Judgments Were Less Than 3 Percent of Total Value of Payments
in 2005
g. Severe Injuries Account for a Majority of Payments
h. Medical Liability System Is Rational In Outcomes
i. 82 Percent of Total Value of Payments Compensate Most Severe Injuries
j. The Proportion of Surgical and Obstetrics Payments Flat Since 1991

Part II: Patient Safety and Doctor Discipline
k. Some Common, Preventable Errors Are Increasing
l. Easily Preventable Errors Show a Marked Increase Since 2003
m. Since the Beginning of the NPDB, 5.9 Percent of U.S. Doctors Were Responsible
for 57.8 Percent of the Number of Medical Malpractice Payments
n. Doctors with Repeated Malpractice Payments Experience Few Consequences
o. Many Serious Repeat Offender Doctors Are Not Disciplined

November 28th, 2006

How much are the legal fees in a personal injury case?

In part one of this FAQ, I discussed 1) the need to find a lawyer in your area, and; 2) concerns one should have if they are solicited by an attorney. Now we turn to legal fees:

3. How much are the legal fees in a negligence case?

Most New York personal injury law firms operate the same way:

First, there is no legal fee for an initial consultation. If the case is taken it is usually done on a contingency basis, which means that the lawyer gets paid only if the client gets paid. This is an incentive for the lawyer to only take good cases with serious injuries, and it relieves a burden from clients who would not otherwise be able to afford a good attorney.

Legal fees are governed by the Judiciary Law, which establishes a limit of 1/3 of any recovery as the fee, with the exception of medical and dental malpractice cases where the fee is lower (see below).

Over the course of the representation, there will be expenses that most attorneys will generally advance on behalf of the client, such as for medical records, experts, stenographers, and certain court filings. There may be exceptions to this, and a good attorney will candidly discuss them with you. (For example, if a settlement offer is made that the attorney recommends accepting, and the client refuses, the client might be asked to front any additional expenses.)

At the time of recovery, the firm will first reimburse themselves for the cash outlay for expenses and then do an apportionment of the remaining recovery. For example, if a case settles for $100 and there was $10 in expenses paid by the attorneys on behalf of the client, then the $10 would be paid back to the attorney and the remaining $90 would be used to determine the legal fee.

4. What are the fees in New York medical malpractice and hospital malpractice cases?

Medical, dental and hospital malpractice cases are also governed by the Judiciary Law, which sets forth a legal fee “sliding scale” structure that looks like this:

30% of the first $250,000 of the sum recovered;
25% of the next $250,000 of the sum recovered;
20% of the next $500,000 of the sum recovered;
15% of the next $250,000 of the sum recovered;
10% of any amount over 1,250,000 of the sum recovered.

Thus, while malpractice cases are significantly more difficult to bring, and cost a great deal more (due to the necessity of hiring additional experts), the fees are lower than in other New York personal injury matters. In fact, they are some of the lowest in the nation. Because of this, many New York firms have a much higher threshold barrier in taking malpractice cases. Essentially, the lower fees, greater expense and significant technical difficulty of bringing such suits has given virtual immunity to the medical profession for smaller claims. Samples of some of the New York medical malpractice cases my firm has handled can be viewed at this link, and they demonstrate the complexity of many matters.

In future FAQs, I hope to cover the need for speed in certain things, the issues around how to “value” a potential case, and other subjects.