September 5th, 2007

New York City Reports Lowest Number of Claims In 10 Years

The New York City Comptroller’s Office reported that personal injury claims against the city have dropped to a 10-year low. This includes cases in the most expensive claims category, medical malpractice. From the Executive Summary of the report comes this:

In Fiscal Year 2005, the cost of claims totaled $529.8 million. In Fiscal Year 2006, the cost of claims totaled $496.4 million. This represents a decline of 10 percent and 16 percent respectively from the historic high of $589 million in Fiscal Year 2001.

The most remarkable part of the report was not all the facts and figures in the report, but that the city just created a new division regarding risk management (Can you believe the City didn’t already do this?):

The Risk Management Division focuses on City-wide loss prevention efforts and provides litigation support for the Comptroller’s Early Intervention Units. Most importantly, by reviewing the notices of claim filed with the Office, the Division seeks to identify patterns in claims at an earlier stage in order to implement risk prevention strategies.

After complaining for years about the high cost of the tort system, could the city actually be doing something about it by cleaning up their act (instead of blaming the victims)?

Regarding medical malpractice, the biggest of the cases, the report states about these new risk management units:

The units, handling carefully selected claims, strive to negotiate reasonable and fair settlements prior to extensive discovery and before expensive legal and expert witness fees have accumulated. The units also develop risk management and loss prevention programs from the information gathered through these cases.

Thus, the city’s management of the biggest of the cases is now changing, with a view toward earlier (and cheaper) resolution and preventive efforts for the future. It’s hard to believe this wasn’t done 20 years ago, but better late than never, especially for those that find themselves stuck in some of the city-owned hospitals.

A few of the bullet-pointed facts from the press release:

In FY 2006, the costliest personal injury claims category was medical malpractice, which cost the City $155.2 million for 293 cases. In FY 2005, the cost was $145.9 million for 327 cases.
699 medical malpractice claims were filed in FY 2006, the lowest number in the last ten years. In FY 2005, 824 medical malpractice claims were filed. (See the chart on page 16 of the report)
The three hospitals for which the City paid the highest total amount for medical malpractice claims in FY 2006 were Kings County ($33.6 million), Elmhurst ($25.7 million), and Woodhull ($15.1 million).
Three hospitals (Elmhurst, Kings County and Queens) had increases in the number of medical malpractice claims filed from FY 2005 to FY 2006.
1,351 personal injury motor vehicle accident claims were filed in FY 2006. This represents a decrease from the 1,396 claims filed in FY 2005.
In FY 2006, claim filings against the Health and Hospitals Corporation, the Department of Transportation, Department of Buildings, Department of Corrections, and the Department of Environmental Protection were the lowest for each of those agencies in the last ten fiscal years.

(Eric Turkewitz is a personal injury attorney in New York)

September 4th, 2007

The September 11th Lawsuits And The Problem Of Compensable Grief in NY

As the New York Times reports today, 41 lawsuits are heading for trial this fall resulting from the September 11th attacks. These trials are for those that opted out of the September 11 Victim Compensation Fund — usually because the amounts offered to a certain class of survivors were so low, and no doubt because the wounds were too raw for many to “put a number” on the loss of a loved one so quickly.

Here is the problem in a nutshell: The economic losses of the victims were evaluated with a schedule dependant on earnings that resulted in an average award of $2M. But the non-economic loss was limited to a flat $250,000, plus $100,000 to surviving spouses and children, regardless of whether death came instantly and without warning based on a direct hit by an aircraft, or whether a victim was on board a flight for 45 minutes in fear, or stranded on a high floor of a tower before it collapsed. (The feeling at the time was that this was too difficult a task for 3,000 people, many of whose stories would never come out.)

So those who lost family members who were not earning any money, children, retirees, etc., felt they were treated unfairly and could not, or would not, simply take a small sum without exploring the accountability of numerous entities, such as the airlines, Boeing or security companies that were supposed to be screening passengers. Here is one example of some of the thinking:

The plaintiffs are people like Mike Low, whose 28-year-old daughter, Sara, was a flight attendant on American Airlines Flight 11, the first plane to crash into the World Trade Center. For Mr. Low, it is strange for the airlines to deny that they could have anticipated the attacks, because, he says, his daughter was offered antiterrorist insurance as one of her fringe benefits, and took it.

Now here is the “problem” from the subject heading: Under New York law, grief of the surviving family members is not compensable. Unlike the vast majority of other states, New York remains in the dark ages when it comes to this subject. So a child that has been lost is viewed through the eyes of the law based solely on their earnings (none) and their suffering. But not the grief of the parents or siblings. So while some will always scream “It’s just about the money,” the reality is that for many it is mostly about raw emotion. Like this:

The Cottoms’ lawyers would not say how much Asia might have received from the fund. Mrs. Cottom said she believed they would have received little more than the minimum $250,000 — an amount she found “insulting.”

She lost a daughter, she said, who had her first menstrual period just before the fatal flight, a school trip to Los Angeles. “I took her to Wal-Mart to buy sanitary napkins,” Mrs. Cottom said. “So she was growing up one day and the next day she’s gone.”

Her decision to reject the fund was not hard, she said. “To me, it just smelled of dishonesty. How do you justify, O.K., an 11-year-old is worth $2, but because you’re the pilot of that plane, that’s worth $2 million?”

While the passage of time may have made it easier for some to settle this matter, it is clear that some will want a jury hold various entities accountable for their malfeasance. But while the actual amounts awarded may surpass that which was awarded by the Victim Compensation Fund if claimants can show what their lost family members went through, the awards will not be exceptionally high. And if they are, they will be reduced by the courts afterward.

In an unusual twist, damages will be tried before liability, in the hope I assume, that this will assist with settlement talks.

(Eric Turkewitz is a personal injury attorney in New York. He also represented two claimants before the Victim Compensation Fund)

August 29th, 2007

Canadian Court Overturns 1959 Murder Verdict

He was 14 years old when he was sentenced to hang. The year was 1959 and he had been convicted in Canada of raping and killing a 12-year old.

Due to his age, and the fear of political backlash, his term was commuted to life in prison. He was paroled after 10 years behind bars according to a New York Times article today (sub. req., an AP version is here).

And now, 48 years later, the conviction has been vacated.

According to the Times:

Last year, the Ontario Court of Appeal heard evidence that the original autopsy conclusions allowed for a time of death much later than that cited by the prosecution, perhaps a day later, when Mr. Truscott was in school.

“The conviction, placed in the light of the fresh evidence, constitutes a miscarriage of justice and must be quashed,” the court said in a unanimous judgment.

It is hard enough to figure out what “fair and reasonable” is for a broken arm or lost eye. We do it, not because it is perfect, but because it is the best system we have to make one whole.

But 10 years taken away from one’s life, and being haunted by the conviction for an additional 38 years? More from the article:

The Ontario attorney general, Michael Bryant, said he would not appeal and asked a judge to advise on compensation. “On behalf of the government, I am truly sorry,” Mr. Bryant said.

I’m curious as to what others think, assuming this blog is still being read in the waning days of August…

August 27th, 2007

Court: Assumption of Risk May Not Apply To Gym Class Injury

Sometimes the issue of “assumption of risk” is easy. A person voluntarily does something with a bit of danger and gets hurt. The photo at right is an example. The official legalese, however, looks like this:

The doctrine of assumption of risk is a form of measurement of a defendant’s duty to a voluntary participant in a sporting activity. The voluntary participant is deemed to have consented to apparent or reasonably foreseeable consequences of engaging in the sport.

But a gym class is different than the outside world, according to New York’s Appellate Division, Second Department, where there is a significant disparity between the learned instructors and the neophyte students, as well as the “persuasion” that may be used to “force” a student to complete a task.

In Calouri v. County of Suffolk, a 40 year old woman suffered a broken leg during a team activity in which she had to clear a rope strung between two chairs without touching it. After several failures (she was not only the oldest, but the shortest student in the class) she stepped onto the knee of a teammate as a makeshift step, who wobbled, and she fell.

Under these circumstances, the court refused to have the case dismissed on summary judgment and ordered it to go to the jury.

(Photo credit: Me)

August 25th, 2007

Playland Operator Faulted In Death

The 18-year old operator of the Mind Scrambler ride at historic Rye Playland has been faulted for the death of his co-worker and supervisor earlier this summer. The story is reported today on the front page of my local paper, The Journal News. Playland is the only government owned amusement park in the country.

I had previously written of the story here in Round-Up #20, and it has been extensively covered by TortsProf Bill Childs.