Articles Posted in New York

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 will 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 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, and 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.

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 wrote 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 Plaintiffs who have been the victim of someone else’s negligence 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 hyponatremia. 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 Britain. 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 an “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. 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 significant savings in the long run. This will 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 considering our country’s financial crisis. Ironically, this is the perfect project for deficit spending because it is not a money pit – electronic medical records will 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.

The widow of a man whose brain was allegedly taken without permission for medical study has filed a lawsuit against the hospital and the medical examiner who performed the man’s autopsy. According to the lawsuit, neither plaintiff nor her deceased husband signed an organ donation card, and the brain is still missing.

The lawsuit seeks $4 million against Mount Sinai in damages. This woman, while I am very sorry that she lost her husband, does not want me on the jury. My question would be why are you and your husband not organ donors? I hate these kinds of lawsuits and I wish these types of claims never found a lawyer who would take them.

I tried a case last week. We did not get a good outcome because, in the end, the jury did not believe my client was still suffering from her injuries. These kinds of cases just don’t help.

Newsday reports that a New York jury awarded a woman $10.7 million in a medical malpractice case against a hospital in Queens. The woman became partially paralyzed after waiting two hours for a brain scan at a Queens hospital. The jury found the woman was cleared for a brain scan two hours before she got one. The purpose of the test was intended to check for bleeding.

The Plaintiff lapsed into a coma in the emergency room less than an hour after the scan. The Plaintiff is now in a wheelchair.

New York’s brand of tort reform caps the fees of New York medical malpractice lawyers as opposed to the award to the malpractice victim. In the end, the real loser is medical malpractice victims because lawyers will not take their case because risking potentially hundreds of thousands of dollars is not worth the risk (most medical malpractice lawyers front the costs and the victim is not obligated to pay the monies back if there is no recovery). But this case certainly did not fall into that category and is one of the few that actually meets the goals of this otherwise warped New York medical malpractice statute.

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