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.

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.  

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.

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.

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.

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.

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.

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.

Both sides of the aisle want medical malpractice lawsuit “reform” in order to lower healthcare costs.  Prior posts, Parts I and II, discuss the myths of medical malpractice “reform”.

This post focuses on the debate’s central myth.

Myth IV–Doctors Order Unnecessary Tests in Fear of  Being Sued

The argument goes that doctors order unnecessary tests out of fear of being sued for medical malpractice.  The thinking is that doctors order every test possible so that  treatment will not be second guessed.   In the event that the doctor is sued, the jury will say that the doctor did nothing negligent and did everything possible.   Therefore, the cost of healthcare and insurance rises to pay for all of these unnecessary tests.

I have one answer to this claim:  poppycock!

There is one simple reason why doctors order tests:  it is good medicine.  No doctor will admit to doing unnecessary testing.  No patient going under the knife will say that his pre-surgical tests were wasteful.   

Doctors have an arsenal of tests, such as the MRI, which prior generations did not have.  When there is a suspicion of a problem, it is good medicine to do further examination and testing so as to “rule out” the condition.  The availability of tests are but one of  doctors’ tools.   

In the “good old days” doctors were able to diagnose a lumbar herniated disc without the MRI and EMG.  Indeed, back surgery was done without those tests.  However, today no spinal surgeon would give-up the MRI and EMG.  If you were to ask a spinal surgeon why he does the pre-surgical tests, his response is that it is good and careful medicine.  

This claim is also ridiculous because  health insurance will not pay for unnecessary testing.  Indeed, often the insurance company will require a letter of “medical necessity” from the treating doctor before it approves an expensive test.  For example, the treating doctor has to show need for an MRI so that not only will his bill be paid, but the insurance company will pre-approve the test.

However, if a national health plan does pass, it is very possible that the opposite will occur.  There will be much less testing since care will be rationed.  As we have heard from Britain and Canada, there are long waits for MRI’s on so-called elective surgeries, such as spinal surgeries and knee and hip surgeries. 

If you have been the victim of medical malpractice, please feel free to call me at 800-581-1434 or write to me at letters@seitelman.com.

Mark E. Seitelman, 9/11/09, www.seitelman.com.

    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.