Medical Malpractice and the Great Healthcare Debate

So-called “reform” of medical malpractice law has been in the healthcare debate.

At this time one “reform” has died.  The Ensign Amendment limiting attorneys’ fees failed to pass by a vote of 66-32 in the Senate.

     We applaud the senators who voted against fee caps.  A cap on attorney’s fee would have the chilling effect of discouraging lawyers from accepting medical malpractice cases.  If injured people cannot hire attorneys, then effectively, they will not bring cases.  Although fee caps supporters say that injured people will still have the courthouse open, by removing the lawyers it is like removing the front steps to the courthouse.   

Although medical malpractice “reform” has been a rallying call to some in the debate, the fact is that the cost of medical malpractice is no more than 1-1.5% of the entire cost of our healthcare system.  See our prior posts here.  See also our prior posts on the medical malpractice and Obamacare at I, II, III, and IV. 

If you have been injured by malpractice please feel free to call us for a free consultation at 800-581-1434.

Mark E. Seitelman, 12/7/09, www.seitelman.com.

Expert Psychiatrist and Trial Lawyer, Dr. Ari Kiev, Dies

Yesterday I learned of the death of Ari Kiev, M.D.  See The New York Times obituary here.

    Dr. Kiev was a noted psychiatrist studying  Wall Street traders and athletes and heading suicide prevention clinics.  His recent focus has been on advising stock traders.  See www.arikiev.com.  However, I came to know Dr. Kiev as an expert witness on and off the witness stand.

I tried a case against the State of New York in the Court of Claims with Dr. Kiev as our expert medical witness.  He did an excellent job on the stand.  He was in total command.   I also hired him as our expert on a couple of other cases which were settled before trial. 

What is particularly remarkable about Dr. Kiev is that during the late half of a distinguished medical career, he became a trial lawyer.  He went to New York Law School at night.  He graduated, and he was admitted to practice.  He was burning to try cases, and he wanted to be the next great trial lawyer.  He became “of counsel” to a personal injury firm, and he tried some cases for them.  I recall him asking me for cases to try. 

I believe that he moved away from trial practice and returned to medicine full-time when he saw that it was a bit hard to become a great trial lawyer at his late stage in life.  He left the practice of law since he was only interested in trying cases, and he had no interest in pursuing “office” law, such as real estate and commercial transactions. 

Dr. Kiev was a colorful denizen of the personal injury world, and he will be missed.

Mark E. Seitelman, 12/1/09, www.seitelman.com.

Getting a Recovery for Surgery at a Spa

Would you go to your shoemaker to get laser hair removal?  Or would you go to the auto garage to get liposuction? 

The answer is no.  However, many people are getting these medical procedures at so-called medical spas as reported in The New York Times.

Spas are no longer offering just facials.  Many are performing medical procedures which should be done properly by a dermatologist.  However, state law permits some of these procedures, such as laser hair removal.

These spa procedures have increased because they cost less to the consumer than at a doctor’s office.  However, a reason for lower cost is that spa personnel are not licensed medical professionals, and the spa does not carry the costs of a medical office.  Similarly, the consumer does not get the level of expertise and professionalism of a medical professional.   Despite the risks, there has been increased numbers of procedures at so-called medical spas.  These medical procedures are big money-makers for the spa industry.

Here are examples of how things can go wrong:

• In Florida a 37 year old nurse died during a supposed, minimally invasive liposuction to remove fat from her abdomen and thighs.  During the treatment she suffered seizures and lost consciousness.  She was given Lidocaine and Propofol, a drug that induces sedation and is believed to have contributed to Michael Jackson’s death.  The case raises the question as to whether the facility, which was licensed only as an electrolysis facility, should have been performing a medical procedure involving anesthesia.
• People getting laser hair removals have suffered second and third degree burns from inexperienced operators.

In the event of injury from a medical procedure at a spa, the injured person must still prove negligence by the spa.  The standard of proof of negligence may be lesser than the standard of proof of medical malpractice against a medical professional.

Furthermore, there is often an insurance problem or more specifically an uninsurance problem.  Spas do not have to carry insurance.  We have had cases where the spa has no insurance.  Sometimes a spa will have insurance, but its insurance will not cover the loss.  For example, it may carry general liability insurance for slips and falls, but it did not carry insurance for negligent cosmology procedures.  In that case, there will be no insurance for the claim.

Another interesting question is whether the spa will be deemed to have done a medical procedure or a cosmetology procedure?  Will the medical malpractice statute of limitations apply (2 years, 6 months) or will the regular negligence statue apply (3 years)? 

As with all cases, early investigation by an attorney is necessary.

If you have been injured from a medical procedure at a spa, please feel free to call me for a free consultation at 800-581-1434 or write to letters@seitelman.com.

Mark E. Seitelman, 11/19/09, www.seitelman.com.

Getting a Recovery for Fire Injuries in an Illegal Apartment

During this weekend a horrific fire killed three men in an illegal set of rooms.  See New York Daily News story here.

     One of the survivors being taken from the scene

The fire occurred in the basement of a Woodside, Queens, two family house that was converted to an illegal five family house with a set of seven single rooms in the basement.  The fire and fatalities occurred in the basement where Bangladeshi immigrants lived.   The building owner was cited for illegal occupancy, failure to provide a basement exit, and conducting renovations without a permit.  Illegal apartment conversions are a problem in working class neighborhoods with a heavy immigrant population.

In a lawsuit plaintiff would have to show that the building owner’s negligence was a substantial factor in causing the injuries.  The violation of a safety law, as the building and fire codes, would be proof of negligence.  This is called negligence per se.  In this situation, the building owner would be liable for the illegal conversion which caused or were a substantial factor in causing the deaths. 

However, the owner’s violation of building and fire codes will not necessarily spell victory for a plaintiff.  The injuries must have been causally related to the violation, such as lack of exits, if the injured person were trapped in the apartment.  

If  you have been injured in a fire, please feel free to call us for a free consultation at 800-581-1434 or write to letters@seitelman.com.

Mark E. Seitelman, 11/8/09, www.seitelman.com.  

 

 

Getting a Recovery for Injuries from Trips and Falls on Stairs

Over the years we have handled hundreds of cases involving trips and falls on stairs.  

Often, a stair accident case will require an early inspection by an engineer.  The engineer will take measurements and photographs.  His opinion is necessary to prove a case of  negligence.  He may find that the stairs may not conform to the building code.  Or he may determine that the stairs are not in conformity with sound safety and engineering practice.  Sometimes, the stairs are in derelict condition and need repair.

For example, these stairs are very striking and an engineering feat in that the treads are supported only from the wall.   However, the stairs are very dangerous from a number of viewpoints, such as 

• the stairs lack a grill or sidewall to prevent a fall;
• there are not handrails; and
• the dimensions of the stairs do not appear to conform to the building code.

The steps are typical for many backyard decks.  Again, they lack a banister or handrail or a grill or sidewall.  There is nothing to hold onto in the event that one  were to lose  his balance.

Dangerous stairs are not limited to buildings.  We have had cases involving dangerous public stairs.  The stairs in the park are not level due to settlement of the earth.  Although the building code may not pertain to stairs in a park, an engineer can opine as to whether the steps pose a hazard.  It is noteworthy that the handrail is a little out of reach and should be closer to the steps.

These stairs are hazardous because the overgrown vegetation pose a tripping hazard since a person would tend to walk next to the wall so as to grip the wall to steady herself.  The greenery may hide a defect, such as a broken nosing.    Routine maintainance would have prevented this condition.  The stairs also lack a handrail.

Here are some examples typical stair defects:

• lack of handrails;
• the treads and risers are not of consistent dimensions and do not conform to the building code;
• the nosing or edge of the step is broken or missing;
• foreign objects have littered the steps, such as discarded food, soda, beer, or urine;
• the stairs have inadequate lighting; and
• the steps are unduly slippery, and non-slip edging would have prevented this.

   

 If you have been injured due to a fall on a stairs, please feel free to call us for a free consultation at 800-581-1434 or write to letters@seitelman.com.

Mark E. Seitelman, 11/4/09, www.seitelman.com.

Getting a Recovery for a Sidewalk, Street, or “Pothole” Accident; It’s Where You Trip that Counts

When falling on a “pothole” there is the central question of “where”?  The answer will determine whether the client can recover.

The law is unfair and arbitrary.  A matter of falling either a few inches here or there will make or break a client’s case.

For example, this photo shows a raised curb.  The law provides, generally, that the adjoining premises owner is responsible for the condition of the sidewalk.  However, the City is responsible of the curb’s condition.  Let us assume that the client trips on the raised curb when going to the roadway.  Who is responsible?  Is it the adjoining premises owner for not making the sidewalk level with the curb?  Or is it the City for a curb which is raised above the sidewalk?  Or are both responsible?

A further complication is that the City will only be liable if the City received prior written notice of the defect through the Department of Transportation.  If there were no notice, there is no case against the City regardless of the severity of the injury and the curb condition.  However, prior written notice need not be proved against a private property owner.

In this photo the potholes are in the roadway.  Again, there is no case against the City unless we can prove the receipt of prior written notice on the DOT.  It is insufficient to prove that the condition existed for a long period of time.  We must prove that the City had actual notice of this defect.  Generally, this is an impossible task because potholes in the roadway are very rarely reported to the City.

In this photo the client tripped over the raised flagstones while going to her car.  Although the adjoining property owner is responsible for the sidewalk, the City is responsible for the tree and the tree bed.  Again, it is a chicken and egg game.  Who is responsible?  Is it the City because its tree’s roots pushed-up the sidewalk?  Or is it the adjoining property owner for failing to level the sidewalk?  Or is it both?

A further complication is the notice issue.  Although actual notice need not be proved against the private property owner (who should have observed this condition over a long period of time), actual written notice (prior notice) must be proved against the City.

Therefore, a matter of inches can spell either victory or defeat for an injured person’s case.

If you have been injured in a trip and fall accident on a sidewalk or roadway, please feel free to contact me at 800-581-1434 or write to letters@seitelman.com for a free consultation.

Mark E. Seitelman, October 22, 2009, www.seitelman.com.

Getting a Recovery from a Bankrupt Defendant; Injured Clients Face Uncertainty and Great Delay

What happens when a defendant is bankrupt?  Can an injured person still recover for his injuries?

The answer is a little bewildering:  perhaps yes, perhaps no.   It all depends upon the bankrupt defendant.

One answer is certain:  bankruptcy of a defendant is not a good thing for an injured person.  Bankruptcy creates great delays and uncertainty as to getting money into the client’s hands.

Here are a few examples:

1. The client was struck by a hi-lo operated by a K-Mart employee.  Sometime after the accident K-Mart entered bankruptcy for the purpose of reorganizing, i.e., re-structuring its debts so that it could continue business. Eventually, K-Mart emerged from bankruptcy, and it is a viable, national company.
2. The client slipped and fell in a Macy’s after Macy’s parent company, Federated Department Stores, declared bankruptcy.  
3. Two different clients had motor vehicle accidents with bakery trucks from Interstate Bakeries, the makers of Tastee Cakes and Wonder Bread.  Interstate declared bankruptcy after their accidents., and their cases were settled after the bankruptcy filing.

In case # 1, the client’s accident occurred pre-bankruptcy and was subject to the bankruptcy court.  That means that the ulitmate payment of any settlement or judgment would be passed upon by the bankruptcy court.  That means that even if  there were a verdict, the bankruptcy court would decide how much of it would be paid.  The entire verdict would not necessarily be paid.  This is so because the court is preserving the bankrupt’s assets for all creditors, which include federal and state governments, landlords, suppliers of merchandise, employees, etc.    In this case the client sustained a fractured ankle.  Fortunately, we were able to achieve an excellent settlement which was paid in full.  We stipulated that the agreed settlement amount was to be paid in full.  Otherwise, the bankruptcy court could reduce the settlement!

In case # 2, an accident after the bankruptcy filing would not be subject to the bankruptcy if the corporation were an ongoing business, such as Macy’s and Federated.  In these instances, the bankruptcy court would not pass upon the verdict or settlement. 

In case # 3, the two clients settled with Interstate.  However, the bankruptcy court has to approve the settlements and determine how much would be paid on each settlement.  Each settlement would be reduced on a pro rata basis along with the other debts of  Interstate, such as rent, lease payments for vehicles, etc..  The cases were settled almost four years ago, and we have yet to receive any settlement funds.

Therefore, a defendant’s bankruptcy can be a monkey wrench thrown into a client’s lawsuit and ultimate recovery.

If you have been involved in an accident with a bankrupt defendant, please feel free to call me at 800-581-1434 or write to letters@seitelman.com.

Mark E. Seitelman, 10/13/09, www.seitelman.com.

Getting a Recovery for an Auto Accident Caused by a Driver “Texting” or “Multi-Tasking”

The internet age has spawned ”multi-tasking” while driving, such as texting, calling on cell phones, trolling the internet on a Blackberry, and working on a computer.  Some workers’ cars have become mobile offices.  

Cartoon by Tony Auth, Philadelphia Inquirer

The New York Times did an excellent article discussing the grave dangers of drivers working at the wheel.  See “Driven to Distraction: At 60 M.P.H. Office Work Is a High-Risk Job” (October 1, 2009).  It seems that many workers, especially salesmen and service reps on the road, use either texting, cell calls, or computers or all while driving.  There is just one problem:  people cannot “multi-task” while driving.  This has been proven.  In 5 to 6 seconds that a driver checks a text message, his car is hurtling hundreds of feet along a highway.  

In an automobile accident caused by a driver multi-tasking, the driver’s employer might also be liable if the employee were carrying-out business.  This can be so even where the employee was using his own vehicle.  If an accident occurs while the driver is “working” on either his Blackberry or computer, then the employer may be liable since the employee was “working” at the time and furthering the employer’s business.

In view of this, some employers have a firm policy that cell phones, computers, and Blackberries are not to be used while driving.  Employees can only use these devices when they park.  In the event of a car crash caused by a texting motorist, the issue of whether the driver was carrying-out business may be a crucial issue in the case.

In any event. the courts would hold that a driver texting or using a computer is negligent.  Courts would probably grant summary judgment to plaintiffs on liability.  The key in some cases will be whether the employer can be held responsible where the employee’s personal car carries only minimal insurance.

If you have been injured in a motor vehicle accident involving a “multi-tasking” driver, please feel free to call me at 800-581-1434 or write to letters@seitelman.com.

Mark E. Seitelman, www.seitelman.com, 10/6/09.

Getting a Recovery for Injuries from Laser Skin Treatments at a Health Spa

Health spas and “day spas” have gone beyond offering massages and facials.  Many also offer laser treatments for removal of unwanted hair, spider veins, and skin discoloration. 

A laser machine

People should take great care when thinking about having laser treatments at a health spa.  There has been in increased number of cases against spas for negligent laser treatment.

The spa personnel are not trained medical professionals.  Although New York does not require that laser treatment be administered by a licensed medical professional, it is much safer to have this procedure done under medical supervision.  This is a sophisticated medical procedure.  It should be done in a doctor’s office, specifically a dermatologist. 

If something goes wrong, such as a serious burn from over-exposure to the laser, there may be a case against the spa for negligence.  Similarly, negligent laser treatment by a physician can result in a medical malpractice claim. 

It is interesting that the case against the spa would carry a statute of limitations of 3 years while a case against a physician would carry a 2.5 year statute of limitations. 

Consumers should also be aware that not all health spas carry liability insurance.  In that event, recovery may be unlikely.  

If you have been injured due to a laser treatment, please feel free to call me at 800-581-1434 or write to me at letters@seitelman.com for a free consultation.

Mark E. Seitelman, 9/17/09, www.seitelman.com.

The Myths of Medical Malpractice “Reform” and Obama’s Health Insurance Plan, Part IV–The Myth that “Reform” Will Create Savings

As we explored in Parts I, II, and III, there are many myths of medical malpractice “reform”  in the health insurance debate.

The biggest myth is that medical malpractice “reform” will create great cost savings.

What is the dollar cost of medical malpractice cases?  No politician has stated what it is although “reformers” claim that junk and frivolous malpractice cases are driving-up the costs for everyone.

The truth is that 1 to 1.5% of the total of all medical costs can be attributed to medical malpractice.  This is according to a leading actuarial firm, Towers Perrin.    That means that out of every $100 spent on medical care, $1 to $1.50 goes to pay for medical malpractice costs which include malpractice insurance premiums, legal defense costs, and eventual pay-outs.

Therefore, the cost of medical malpractice is not driving-up the overall cost of medical care in this country.  The politicians do not want the public to know this.  It is easier to create bogeymen of greedy trial lawyers and phony plaintiffs than get to the heart of the matter as to the costs of healthcare. 

If you have been injured in an accident or by medical malpractice, please feel free to call me for a free consultation at 800-581-1434 or write to letters@seitelman.com.

Mark E. Seitelman, www.seitelman.com, 9/16/09.