Articles Posted in New York

The average car/truck/motorcycle accident verdict in New York is $837,020, which is stunningly high compared to most other jurisdictions.

Why is this? Are New York jurors just that much more generous than, say, jurors in Maryland?

The answer is that New York’s no-fault accident law requires that plaintiffs suffer a “serious injury” before a lawsuit can be brought against the at-fault driver. While there is some question that having a magical threshold that needs to be crossed is going to be fraught with great flaws, there is no question that this New York scheme, as desultory as the justice it might bring, keeps minor personal injury car accident cases out of court.

What’s my point? My point is that this completely distorts average car accident verdicts in New York. I read Metro Verdicts Monthly and Mealey’s which provide a lot of individual verdicts in car accident cases in Maryland, Virginia, and Washington, D.C. It is amazing how many jury verdicts there are for $10,000 when, if you look at the case, is really not such a bad result. New York has none of these cases deflating their average.

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A recent Jury Verdict Research (JVR) study found that the average verdict in a New York motor vehicle accident case is $837,020. The median verdict is $150,000. This data does not include defense verdicts which, if considered in the data, would obviously reduce the average award.

To be sure, $837,020 is a lot of money for the average car accident case. But you have to keep in mind that in New York because of the threshold level of injury requirement, juries are more likely to hear a serious injury case than a jury would in, say for example, Maryland.

Rear-end accidents accounted for 21% of the successful verdicts in the study. Pedestrian lawsuits were 17% of the verdicts and intersection accidents made up 15%.

Five New York hospitals are participating in a pilot program to cut medical malpractice lawsuits and costs by, among other things, revealing medical mistakes early and offering quick settlements in cases where it appears there was malpractice.

Believe it or not, I don’t have an opinion. I think under this paradigm more cases are going to settle but the average malpractice settlement in these cases will be less than the statistics now show. Is it worth it to get less but get it over with and be able to move on with your life? It depends on how much less.

One other interesting tidbit from one of the articles in this program: There are 900 pending medical malpractice cases in New York. That is a lot of cases but, then again, New York is a big state.

Albany Medical Center Hospital settled a malpractice lawsuit involving the death of a woman following the birth of her daughter for $5.2 million.

Plaintiffs’ lawsuit alleged that while the woman was delivering her child by Caesarian, the surgeon damaged her uterine arteries which caused severe hemorrhaging that lead to her death. Other doctors repeated suggested follow-up surgery to repair the damage but the surgeon refused for more than six hours.

The $5.2 million dollar settlement included terms that speak well of the hospital and the Plaintiffs, including an agreement that the hospital fund an annual maternal safety lecture series in honor of the victim and requires the hospital take other preventative measures – both training and technological – to make sure this does not happen again.

Physicians’ Reciprocal Insurers, a Long Island medical malpractice insurance carrier than insures nearly 25% of New York state’s physicians, is insolvent. It has a “negative surplus” of more than $43 million.

The problem? New York medical malpractice lawyers and their frivolous medical malpractice lawsuits? Hardly. Eliot Spitzer thought freezing medical malpractice premium hikes was a good idea. Shocker. Has Slate fired him yet?

The learned intermediary doctrine provides that makers of prescription drugs and medical devices discharge their obligation to consumers by providing warnings to the prescribing doctor. In other words, drug and device companies have no obligation to directly warn patients about the risks associated with their drugs or medical devices.

The historic rationale for this rule is that prescription drugs are often complex and prescribing doctors can take into account the propensities of the drug, as well as the susceptibilities of his patient and properly weigh the risk against the benefits. But, arguably, all of this is premised on the notion that drug companies are talking to doctors and not consumers.

Today, drug companies talk to us about their drugs every time we pick up a paper or turn on the television. Does this make the learned intermediary doctrine obsolete? Apparently, some New York legislatures do, proposing a bill to eliminate the learned intermediary doctrine. I first read about this from the Drug and Device Law Blog, a defense oriented blog that naturally opposes the bill.

New York has an awful law that limits the recovery of New York medical malpractice lawyers. As I have written before it is the kind of law I hate the most. No, not because it cuts into malpractice lawyers’ pocketbooks. I hate this cap rule because it is the worst kind of consumer protection: it looks like it helps consumers but actually hurts their ability to retain a lawyer. (While this is not a popular view in 2009, the same is true I believe with CEO salaries.) So while it looks like it helps victims – and it may help some individual victims who might have paid more who have great malpractice claims – the practical impact is that less medical malpractice victims who have claims are able to get New York malpractice lawyers. The related problem that comes from this is that many malpractice lawyers will, as a result, refuse to front the expense of a case, which also transfers the risk and the cost of the case from the malpractice lawyer – where it should be – to the client.

The New York Post has an article critical of efforts in the New York legislature of efforts to finally fix this awful malpractice law.

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A report released last week by the Manhattan Institute — “Greater Justice, Lower Cost: How a ‘Loser Pays’ Rule Would Improve the American Legal System” — says making personal injury lawsuit losers pay the winner’s legal expenses would improve the fairness of our legal system.

“The integrity of our legal system is under assault. Establishing loser-pays rules and other tort reforms can help restore citizens’ faith in the bedrock of society — justice, fairness and the rule of law,” former New York Mayor Rudy Giuliani write in the preface to the report. (With the election over, Giuliani is apparently capable of complete sentences that do not contain 9/11. I am a little surprised.)
I have not given the issue any thought. I think the problem is that it presents an intimidating bar for Plaintiff’s who have been the victim of the neglignece of someone else in a case that is not clear cut. Do we want to discourage those suits? —–

Personal injury verdict reviews reports on $3,990,000 settlement in a cerebral palsy case in New York. Plaintiff alleged hospital malpractice in failing to train and supervise its medical team who administered an excessive amount of fluid to the infant, causing the child to become waterlogged and develop life-threatening hyponatrenia. Plaintiff’s medical malpractice lawyer’s theory of the case was that the hospital should have used (1) a more concentrated solution in a peripheral line and (2) the hospital should have installed a central line, causing them to use too much fluid to deliver adequate amounts of sugar to the child.

Plaintiff’s counsel was Richard A. Gurfein. The case was defended by Lake Success lawyer Henry Zee. Plaintiff’s expert witnesses included Edmund H. Mantell, Ph.D. (economist in White Plains, New York) Daniel Adler, M.D. (pediatric neurologist) and Joseph Carfi, M.D.(rehab expert).

The New York Medical Malpractice Law Blog – which I found via the New York Personal Injury Attorney Blog – reports on something I did not know: electronic medical records are now being widely utilized in Great Britian. For one, York Hospital is now using electronic medical records in an effort to improve communication among doctors in treating patients.

The reality is that this is a public safety issue but it’s also a “it is 2008 and we have no money left in the budget” issue. The federal government pays for nearly 40% of the over $1.3 trillion spent on medical care in this country and spends millions more providing disability benefits to medical malpractice victims. Accordingly, besides saving potentially thousands of lives, electronic medical records will reduce the costs associated with medical malpractice and the government and our health care system will see signifcant savings in the long run. This will, in turn, decrease medical malpractice lawsuits which will lower medical malpractice premiums.

All good. What is the problem? The problem is the cost. While a national system of computerized medical records is on Obama’s wish list, that list is getting cutback as we look at the economic realities of our federal budget in light of our country’s financial crisis. Ironically, this is the perfect kind of project for deficit spending because it is not a money pit – electroic medical records are going to save us more in the long run than the 3% interest the government would pay for the investment. But while I’d love to be wrong about this, I do not see a great push for electronic medical records in Obama’s first term.