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.

The Myths of Medical Malpractice “Reform” and Obama’s Health Insurance Plan, Part II–Frivolous Lawsuits and Junk Science

    Medical malpractice “reform” is an issue in the health insurance debate.  See our prior post, Part I, on the myth that “medical malpractice reform” is a change for the better for everyone.  In fact, it favors the medical industry, and it hurts people who may be injured by malpractice in the future.

This post will discuss another two myths, i.e., frivolous lawsuits and junk science are an undue burden on the public.

Myth II–Frivolous Lawsuits Are Draining the System

It has often been repeated that frivolous medical malpractice lawsuits are costing billions.

The frivolous medical malpractice lawsuit is a myth, at least in New York.

In a prior round of medical malpractice “reforms” in New York in the 1980’s there were changes in the law which made the frivolous lawsuit extinct.

For example, in order to file a lawsuit the case must have merit.  Th plaintiff’s attorney must have an independent expert  opine that there was medical malpractice.  The complaint must contain a certificate from plaintiff’s attorney that he has such an opinion.  In order to get to the starting gate of the lawsuit the lawyer will have to spend $5,000 to $10,000 or more for the expert’s review of the records.  More on this later.

Second, the legal fee on medical malpractice is lower than other cases.  Rather than the the usual 1/3 contingency fee, there is a sliding scale:

1. 30% on the first $250,000;
2. 25% on the next $250,000;
3. 20% on the next $500,000
4. 15% on the next $250,000;  and
5. 10% on all amounts over $1,000,000

Therefore, let us assume that an automobile case involving very serious injuries brings a recovery of $1,500,000.  Roughly, the attorney’s fee would be $500,000.  However, let us assume that a medical malpractice case settles for the same amount.  The fee would be $325,000.  That is a difference of $175,000!

Therefore, medical malpractice cases pay less.  The fee is not only smaller, but handling a case means that more labor will go into a $1,500,000 medical malpractice case than an $1,500,000 auto case.  The lawyer must familiarize himself with the medicine.  Many lawyers have to read the same textbooks and articles used by the physicians.  The full trial of a medical malpractice case can take many weeks and as much as a month.  The medical malpractice defense attorneys vigorously defend cases.  Often, defendants will only settle at trial, and sometimes, the only option is to go to full verdict.

Beyond the greater labor and expertise involved, a medical malpractice case is very expensive to prosecute.  Typically, it can cost $5,000 to $10,000 to get the records and have the case evaluated by an expert before filing the lawsuit.  It is not unusual for the lawyer to spend that money and have to turn-down the case if his expert does not find negligence.  If a case is filed, it is not unusual for the expert fees, exhibit fees, and other costs to run in many thousands of dollars, such as $50,000 to $100,000 or even higher!  Medical malpractice experts are very expensive, and they charge anywhere from $5,000 to $15,000 to appear in court (along with travel and hotel expenses).

In view of the lower fee, high costs, and great labor and expertise, lawyers can only pursue medical malpractice cases if the damages are above a certain threshold.  Some lawyers have a threshold of $250,000.  Some have much a higher threshold.  That means that only cases with permanent and very serious injuries will get to court.

Furthermore, jurors do not like frivolous medical malpractice case.  They tend to favor doctors.  Medical malpractice cases have only about a 33% rate of success in the courts.  That means about 2 out 3 cases get dismissed.  Only strong cases can go to a jury.

In view of all of these factors, an attorney cannot take a frivolous case with the hope of “shaking down” defendant for a quick settlement.  Quick settlements do not exist. 

I can attest from my own experience that I pass on any medical case which is not strong and is not serious and permanent.  Each case is a battle.  I have heard the same from my colleagues.  There is no easy and quick money from handling medical negligence cases.

The frivolous case does not exist.  It is a myth created by the medical and insurance industries.

Myth III–Junk Science Lawsuits Are Burdening the System

The voices for “reform” also call out for abolishing “junk science” lawsuits. 

“Junk science” means cases based on very questionable and untested scientific theories.    The term “junk science” has been used to criticize drug and medical device (e.g., silicon breast implants) cases where the scientific evidence has been questioned or disproven.

The term “junk science” is inapplicable to medical malpractice.  Trials are based on differing expert opinions and facts as to whether the doctor or hospital deviated from the acceptable standard of medical care in the community.  You do not get experts going out on a limb offering strange and untested claims.  Usually, the experts have a differing opinion on treatment which might fall into the “gray area” of either appropriate or negligent conduct.  In other words, the alleged negligence involves routine and factual matters, such as failure to diagnose and failure to treat.  There are no “junk science” theories offered in these cases.

An expert’s opinion must be based on facts and learning accepted in the scientific community.   The judge will not let the jury hear opinions from a “junk scientist.” 

Therefore, “junk science” is not an issue in the debate.  The tort reformers use of the term as a buzzword to stir-up support. 

If you have been injured due to medical malpractice, please feel free to contact me at  800-581-1434 or write to letters@seitelman.com.

Mark E. Seitelman, 9/10/09, www.seitelman.com.

A Great Man Passes On; Bela Kiraly, Leader of Hungarian Revolt, Dies

Although Being Prepared is devoted to personal injury,  insurance law, and issues affecting people injured in accidents, I must note the passing of a great man that I knew.

        General Bela K. Kiraly died at the age of 97 in his native Hungary.  He was the military leader of the failed Hungarian uprising of 1956.  Read his full obituary from The New York Times here.

I knew the general as Professor Kiraly of the Brooklyn College History Department.  He escaped Hungary with the Soviets in hot pursuit when the uprising failed.  He settled in New York where he took doctoral studies at Columbia University and became a professor of history.  I took his course in military history.  

Although General Kiraly was an Hungarian hero, he did not talk about it in his course.  He was a modest, nice, and humble man.  When I was privileged to have lunch with him he did discuss much about his great past, such as the following  from the Times obituary:

During the war, Mr. Kiraly commanded a battalion of 400 Jewish slave laborers at the Ukrainian front. Disobeying orders from his superiors, as The Jerusalem Post wrote in 1993, he “put the 400 men under his command into Hungarian uniforms and treated them humanely.” For his actions, he was honored in 1993 as a Righteous Gentile by Yad Vashem, the Holocaust memorial authority in Jerusalem.

Mark E. Seitelman, 7/9/09, www.seitelman.com, letters@seitelman.com, 800-581-1434.

Getting a Recovery for Injuries to a Child from a Day Care Center or Babysitter; The Case of the Drowned Infant

We have been hired by the family of the infant who drowned while in the care of a babysitter.  See news story here.

     James Daniel Farrior, III, died while in the care of Kristal Khan.  James, 11 months old, fell into a bucket of water and drowned while Ms. Khan dozed in the living room after taking Nyquill cold medicine.  Nyquill can induce sleep.

Our deepest sympathies are with the Farrior, Josiah, and Weeks families.

Ms. Khan ran an unlicensed day care center.  Essentially, she took-in children for the day from working mothers in the Richmond Hill neighborhood.  Ms. Khan charged $25 a day.

Under the law a day care provider or babysitter is deemed to be in loco parentis.  This Latin phrase means that she stands in the shoes of a parent and must provide the same duty of care that a parent should provide to her child.

In this case it appears that Ms. Khan was negligent in dozing while letting the children have free run of her house.  She was also negligent in keeping a water bucket in the kitchen which would have been a trap for a child.  Apparently, James must have leaned-over and fell-in head-first, so that he became caught and disoriented and was unable to free himself.

We have handled other cases against day care centers and babysitters.  For example

• An infant sustained a serious leg fracture.  The child probably fell from a table in the living room.  The fracture would not have occurred if the adult had properly supervised the child.
• An infant sustained fractured teeth in a playground in the back yard of the day care center.  Again, playtime should have been supervised.
• The child fell from stairs due to a shelf which was attached to the wall and became an obstruction.  The child bumped into the obstruction, lost his balance, fell, and sustained a serious leg fracture.   The shelf was a dangerous condition.

If your child has been injured due to a accident while under the care of a babysitter or day care center, please call me at 800-581-1434 or write to letters@seitelman.com for a free consultation.

Mark E. Seitelman, 6/23/09, www.seitelman.com.

Getting a Recovery for an Accident While Working for the Federal Government; Hillary Clinton Fractures Her Elbow Going to the White House

Yesterday Secretary of State Hillary Clinton fractured her elbow on the way to the White House. 

Last week the Supreme Court nominee, Judge Sonia Sotomayor, fractured her ankle while catching a flight to Washington, DC.  See our story on Judge Sotomayor here.

Secretary of State Clinton is expected to have surgery, an open reduction with internal fixation.  In comparison, the Judge’s fracture did not require surgery;  her treatment consisted of a closed reduction.  We wish them both full recoveries.

It is a coincidence that both were injured in the course of their employment.   Judge Sotomayor was going to the equivalent of  interviews for a job promotion with members of the Senate.  Secretary Clinton was going to meet the “boss” at the White House.  Both would be entitled to medical and lost income benefits under the federal government’s equivalent of workers’ compensation in that they were injured while working.

Federal government employees have an equivalent of New York workers’ compensation.  United States employees injured in the course of their employment are entitled to medical coverage and lost income during their recovery.

We have had US government employee-clients who have been injured while working.  

The federal equivalent of workers’ compensation precludes the federal employee from suing his employer, the USA.  Also, the injured employee cannot sue a fellow employee.  This is similar to New York’s workers’ compensation law.  However, a federal employee may have a lawsuit against a third-party who caused the accident.   

For example,

• the operator of a post office truck may sue the owner of the private truck that struck his USPO vehicle;
• the letter carrier may sue the homeowner when he is bitten by the dog; and
• the federal employee who is injured in a car accident may sue the other vehicle even where the government employee was using his private vehicle on federal business.  

Therefore, Judge Sotomayor and Secretary Clinton may have valid third-party actions.  However, I doubt that they will pursue lawsuits, and I doubt that they will call me for a free consultation. 

In any event, if you are employed by the US government and have been injured in an accident, please feel free to call me at 800-581-1434 or write to letters@seitelman.com for a free consultation.

Mark E. Seitelman, 6/18/09, www.seitelman.com.

New Law Blog on Appeals

Our friend and colleague, Norman A. Olch, has launched an appellate law blog entitled www.fullcourtpass.com.

Norman Olch is one of the New York’s preeminent appellate attorneys.  Norman is one of the first people that I turn to when I have an appellate problem.   I highly recommend it for Norman’s thoughts about the appellate courts.

Mark E. Seitelman, 5/14/09

www.seitelman.com, letters@seitelman.com, 800-581-1434

Lawyers, Beware of New Internet Swindle!

We seem to be living in ”The Age of the Swindle.”

There is a new fraud circulating on the internet directed to lawyers.

We are all familiar with this unsolicited e-mail and its many variations:

Dear Friend:

I am the deposed Chancellor of the Exchequer of Togo Land, and I need your assistance to be transfer agent on $150,000,000 which is sitting in Barclays Bank in London.  I cannot access the funds, and I need to hire a transfer agent.  We shall gladly pay 10% if you . . .

Almost everyone knows that this is a con game.   However, there is a new internet confidence game aimed at lawyers.  The new fraud seeks to hire the lawyer to do what a good number of lawyers routinely do, i.e., collection on a debt.

Here is how it works.  Lawyer receives the following e-mail:

Dear Lawyer Jones:

I am the president of  Tongo Electric in Hong Kong, and I need to hire your esteemed firm to collect on unpaid invoices for wiring and coils that we sold to New Amsterdam Machine Works in Amsterdam, New York.  We sold $860,000 of goods in February, 2008, and we have not been paid despite our best efforts and repeated calls.  We understand that we need a lawyer in your jurisdiction to collect on these bills.

We urge that you attempt collection and negotiation before filing suit since we want to keep this customer.

If you are interested, please contact me by e-mail.

The lawyer gets interested.  This appears to be a straight-foward collection case involving a serious amount.  The lawyer checks, and there are websites for both Tongo and New Amsterdam.  Tongo is a manufacturer of wire and coils, and New Amsterdam appears to be a legitimate company in upstate New York.  The lawyer and Tongo exchange e-mails, and the parties agree to a contingency fee agreement. 

The lawyer then contacts New Amsterdam whose contact information is provided by Tongo.  New Amsterdam is amenable to making a good faith partial payment of $500,000.  The lawyer is ectastic  because he will make a good fee with very little work and without filing suit.  The debtor says that the remaining $360,000 will be paid in two weeks after New Amersdam’s management can meet and find a way to scrape together the remaining funds.

Tongo is very happy with this result.  It promises more work to the lawyer. 

Immediate payment of  $500,000 is made by New Amsterdam by Citibank cashier’s check made payable to “Tongo Electric and Donald Jones, as Attorney.”  It is sent by overnight courier, and the lawyer swiftly deposits it into his client trust account at HSBC.

At the time that the payment is made Tongo Electric sends an e-mail to Lawyer Jones.  Tongo states that it  has been told by New Amsterdam that $500,000 has been paid.  Tongo requests immediate payment after the lawyer deducts his fee.  The bank wire transfer information is provided.

Lawyer Jones does one of the following:

1. He immediately wires the net  funds of $400,000 to Tongo  after deducting his fee of $100,000.  Lawyer Jones does not feel that he has to wait for the funds to clear his bank because he was presented a cashier’s check which his bank accepted.
2. Lawyer Jones waits 3-4 days for the check to clear before wiring the net funds to Tongo.  He confirms that the funds are available on day 4.  He wires the funds to Tongo on day 6.

Under both scenarios the lawyer will lose the funds that he wired  to Hong Kong.  

The Citibank cashier’s check was counterfeit.  It looked and felt like an official cashier’s check.  It even fooled the bank officiers at HSBC.  On day 10 the lawyer’s bank, HSBC, tells him that the $500,000 credit was reversed, the lawyer’s account is frozen, and many of the lawyer’s checks will bounce.

The lawyer protests to his bank that he was given a cashier’s check by a debtor in partial payment of  his client’s debt.  However, upon further investigation it is found that the lawyer was tricked.  Tongo’s website is phony.  There is no Tongo Electric.   New Amsterdam is contacted.  It is a real company in upstate New York,  However, its owners say that they never heard of Tongo.  The lawyer’s contact at New Amsterdam was a confederate of Tongo.  The whole thing is something out of the movie, The Sting.

However, under scenario 2 where the funds did clear you may think that the lawyer was safe to pay the funds.  The answer is a clear NO.    This is so because Citibank has 30 days to return the check if it is a counterfeit or forgery.  It is allowed to charge-back the funds, and the lawyer’s bank will debit the funds.   

The lawyer would have lost the money in the nano-second of a wire transfer.  If the lawyer had to sue Citibank and his bank he would be hard-pressed to explain that he was the victim.  Indeed, in view of all of the facts and circumstances, the banks would prevail because the lawyer was negligent in checking  the existence of the client, the debtor, the debt, etc.

Lawyers should be aware of this new fraud and take the following precautions:

1. If you receive an unsolicited offer of employment from an unknown source, especially, Asia, verify the existence of the alleged client by multiple sources.  Do not rely solely upon e-mail communciations.
2. Verify the bona fide existence of the defendant.
3. If you are hired in a collection matter which settles very quickly after your retention, be suspicious as to why it was not settled before you were hired.
4. If you received either a certified check or cashier’s check in payment, go to the issuing bank to make sure that the check is genuine.
5. If you have any suspicions about defendant’s check, then review the situation with your bank before you deposit the check. 
6. If you deposit the check, then hold-off payment for 30 days.  Check and doublecheck the UCC on bank deposits.

The lesson:  If something is too good to be true, then it is.

Mark E. Seitelman, 5/11/09, www.seitelman.com, letters@seitelman.com, 800-581-1434.

Recovering for Business Damages Where Customers Fail to Pay for Goods Sold

The subjects of breach of contract and commercial damages are a bit off the beaten path of Being Prepared.  However, our office has always handled commercial matters and other cases outside of the realm of personal injury and insurance.

In this troubled economic time we suggest that sellers of goods and services do the following:

• adhere to a system of follow-ups and calls on outstanding invoices;
• have a system where unpaid bills get sent to an attorney for collection and then suit;  e.g., do not hold onto an unpaid bill for more than 6 months;
• determine whether “slow paying” customers should be granted further credit or be made to pay C.O.D.;  
• refuse to do further business with customers who are not current in their payments; and
• where you want to keep the customer who might have fallen behind in payments, instruct your attorney to be diplomatic and reasonable in collection efforts.

Generally, the problem of an unpaid invoice will not get better unless there is further action.  Foreign sellers should not be intimidated from using the U.S. legal system for collection.

If you have a commercial matter which requires legal intervention, please feel free to call me at 800-531-1434 or write to letters@seitelman.com.

Mark E. Seitelman, 4/27/09, www.seitelman.com.

When Hiring an Attorney Beware of the “Ambulance Chaser” and the “Runner”

When you have an accident you need doctors and a lawyer who will be on your side.   Hiring an “ambulance chaser” or “runner” can destroy your case.

“Ambulance chasers” or ‘runners” solicit clients at accident scenes and hospitals.  They “refer” clients to either medical clinics or lawyers or both.  In many cases the “runner” will offer cash to the injured client as an inducement to use the “runner’s” doctors and lawyer.

The acceptance of money from a “runner” is illegal.  It is foolish to go to a doctor or lawyer recommended by a “chaser” because that doctor or lawyer most likely will be out of business.  In the past District Attorneys have cracked-down on medical and legal “runners”.   Doctors and lawyers have been arrested.  The net result is that clients’ cases and medical treatment are discredited.  Often, the insurance carrier or defendant will refuse any voluntary settlement on even a meritorious case. 

As a result, clients steered to phony doctors and lawyers end-up with no recovery. 

Do not get hurt twice.  Hire a reputable attorney and doctor.  Ask family and friends for recommendations.  Check credentials. 

If you have been injured in an accident, please call me at 800-851-1434 for a free consultation.  We are listed in the New York Metro edition of Super Lawyers, and we have the highest rating of “Preeminent” from Martindale-Hubbell.

Mark E. Seitelman,  4/16/09, www.seitelman.com.

Getting a Recovery from New York City; Yes, You Can Sue City Hall

There is a popular saying that “you can’t sue City Hall.”

This is not true.  You can sue and recovery against the City.  Indeed, in our experience it is much easier to get a recovery from the City than other governmental entities.

Based on my experience:

• New York City–As compared to New York State and the United States, a recovery against the City is more likely.  One reason is that cases against NYC  are heard in the Supreme Court and are decided by juries.  The right to trial by jury is one of the most important rights that an injured person has.  Due to the large number of cases against the City, it is more likely to settle for a reasonable amount on a good number of cases.  Also, City cases are the least “worked-up” from a defense viewpoint in view of the City’s strained and limited resources at the Corporation Counsel.
• New York State–Cases against New York State are heard exclusively in the Court of Claims.  All trials are non-jury.  Therefore, few cases settle.  Most of the time the Attorney General’s Office will seek a trial rather than settle.  The Attorney General has greater resources than the City’s Corporation Counsel. 
• United States–Similarly, cases against the USA are also non-jury cases.  These cases are tried in the US. District Court.  The USA is defended either by the local US Attorney’s Office or the local office of the US Attorney General.  The USA has at its disposal the Federal Bureau of Investigation to investigate accident cases!  You can well imagine that an accident witness will cooperate fully when an FBI agent knocks on the door.  Generally, the USA will not settle cases, and it will go to a trial.  Of all of the government attorneys, the USA attorneys are the most professional and most prepared.  They have huge resources.

In addition to the foregoing governments, there are government authorities, such as

• New York City Transit Authority;
• Metropolitan Transportation Authority;
• New York City Housing Authority; and
• New York City Health and Hospitals Corporation.

Injured persons have the right to sue these government authorities in the Supreme Court and have their cases decided by juries.

Although cases against NYS and USA are difficult, recoveries can be obtained in the right case with the right facts and injuries.  We have obtained excellent settlements and recoveries against NYC, NYS, and USA.  Therefore, if you have been injured due to negligence by a government agency, please call me at 800-581-1434 for a free consultation.

Mark E. Seitelman, 4/8/09, www.seitelman.com.