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Lies of tort reformers and personal injury opponents, Part 1

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On behalf of of Kahn Gordon Timko & Rodriques P.C. posted in Personal Injury on Friday, January 4th, 2013

So-called tort reformers have undertaken a campaign of misinformation in their efforts to restrict access to the civil justice system. Unfortunately, their efforts have been successful in many areas of the United States resulting in caps on awards and settlements, changes in deadlines to file personal injury lawsuits, and elimination of certain types of damages.

Although this has not happened in New York, tort reformers are working hard to limit the people’s right to obtain justice after they were hurt because of another’s negligence. What follows is a list of the most frequently-told lies about the state of the civil justice system – lies that New Yorkers should look out for when deciding whether tort reform will really help them.

Lie #1: There is a growing number of personal injury lawsuits in the United States that is clogging up the justice system.

The truth: The number of personal injury lawsuits or tort cases has been declining for decades. The National Center for State Courts (NCSC) reports that tort cases declined by 25 percent between 1999 and 2008. And tort cases make up only five percent of civil cases, so the claim that such cases burden our court system doesn’t add up.

Lie #2: Winning a lawsuit is akin to winning the lottery, with many plaintiffs receiving overly generous awards.

The truth: Most personal injury awards are modest, with the average award amount being around $31,000. And, despite the assertions of tort reformers, award amounts are actually going down, not up, according to the Department of Justice.

Read about other myths about the need for tort reform in oiur next blog post.

Source: Take Justice Back, Facts v. Fiction.

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Specialized Courts for Medical Malpractice Cases

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On behalf of of Kahn Gordon Timko & Rodriques P.C. posted in Medical Malpractice on Saturday, November 12th, 2011

New York State is developing a system of specialized medical malpractice courts. There are approximately 4,000 medical malpractice cases filed in New York every year and the volume threatens to overwhelm the court system. The goal of the program is two-fold: reduce backlogs and save money.

One of the inspirations for this program can be traced to New York City’s Health and Hospitals Corporation, which operates the city’s 11 public hospitals. The corporation created its own claims department in 2006, focusing on rapid response to patients filing claims. They found that settling rather than fighting claims gets compensation into the hands of the injured more quickly and saves the corporation the cost of lengthy trials.

A Bronx judge who has been specializing in medical malpractice cases for some time observed that it is easier for the city to participate in such programs. Justice Douglas McKeon observed that municipal entities such as the corporation don’t have investments that they need to get certain returns on. “They’re not an insurance company or one of those captive creations some hospitals put together.” In addition to saving money, having one judge focus on a case streamlines the process.

A $3 million federal grant is being used to train judges in NewYork City and Erie County.

Source: The Wall Street Journal, “More NY courts to focus on medical malpractice”, Nov. 11, 2011.

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Girl’s family reaches settlement with hospital for medical malpractice

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On behalf of of Kahn Gordon Timko & Rodriques P.C. posted in Medical Malpractice on Friday, November 4th, 2011

A little girl and her family have settled a medical malpractice case. The family sued the hospital for medical malpractice after a delay in the ER led to the worsening of their daughter’s staph infection and the eventual amputation of both her legs below the knee, all of one hand and part of her other hand.

The little girl will need wheelchairs and therapy for the rest of her life because of the medical errors and misdiagnosis of the ER staff. The little girl almost died the day that her family brought her to the ER. Her parents noticed that she had a fever and had been getting weaker and weaker and decided to bring her to the ER. She also had bruising on her face.

The triage nurse at the ER said that the little girl had a virus and rash and told her parents to wait. The family waited five hours. While the family was waiting, the parents noticed their daughter getting weaker and the bruising growing to cover her whole face. The father repeatedly complained to the nurse, but the nurse continued to say it was a rash.

When the little girl went limp, the father could not wait any longer and pushed back through the doors and asked another nurse to look at his daughter. That nurse brought her back immediately. The little girl had to be flown to a children’s hospital. She almost died.

The settlement will take care of the little girl’s ongoing medical expenses for the rest of her life.

Source: Associated Press, “Girl to get $10M for amputations after ER delay,” Oct. 28, 2011

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VA hospital sued for medical malpractice over death of war veteran

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On behalf of of Kahn Gordon Timko & Rodriques P.C. posted in Medical Malpractice on Friday, September 2nd, 2011

The Veterans Administration operates hospitals across the country, including in New York. Recently, a medical malpractice suit was filed against a Veterans Administration Hospital in the death of an Iraqi war veteran.

The 32-year-old war veteran marched into Baghdad with Operation Iraqi Freedom. Trained as a medic, he was responding to a call to help soldiers in a downed helicopter when the vehicle in which he was riding was hit with a rocket-propelled grenade. He was returned to the U.S. partially disabled and was awarded a Bronze Star from the U.S. Army.

Last year, the injured soldier went to a VA hospital after falling in his home. VA doctors found he had fractured his right tibia and sent him home with crutches and pain medicine. A date for surgery had yet to be scheduled.

Several days later, he returned to the VA hospital with respiratory problems. He was given oxygen and sent home with more painkillers. Two days later, the veteran was found unresponsive in his home. Efforts to revive him were unsuccessful.

The man was also being treated by the VA for post-traumatic stress disorder and a brain injury. The lawsuit filed by his widow alleges that the VA did not monitor the drugs he was taking and that the VA failed in its duty to provide necessary, appropriate and reasonable medical care.

The soldier’s death certificate indicates that he died as the result of mixed drug intoxication and a pulmonary emboli resulting from the leg fracture. He had been taking at least six different prescription drugs.

The initial lawsuit against the VA does not specify damages, but an additional wrongful death lawsuit filed in Federal Court against the U.S. Department of Veterans Affairs is seeking a $5 million dollar settlement.

Source: Deseret News, “Widow of decorated Iraqi vet files wrongful death suit against VA hospital,” Dennis Romboy, Aug. 19, 2011

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New York judges work to reduce medical malpractice settlements

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On behalf of of Kahn Gordon Timko & Rodriques P.C. posted in Medical Malpractice on Friday, June 17th, 2011

There are few people who would willing choose to spend months in litigation or thousands of dollars to hire the high-quality lawyers needed to protect their rights. However, regardless of what we might choose to do, when the negligence of another person leaves us injured, it is important to do everything in our means to protect our rights.

Unfortunately, part of the health care bill that was proposed by the Obama Administration leaves victims of medical malpractice in New York without the ability to receive the full financial compensation they deserve.

Under the federally-funded project, courts in New York are experimenting with a new method to resolve medical malpractice cases. An article in the Wall Street Journal explains that judges will get involved in malpractice earlier than they usually do. The judge meets with lawyers from both parties but delays meeting with the actual clients.

During the initial meeting, judges work with the lawyers to achieve a fair settlement. If a settlement is reached, the injured party will likely receive compensation much sooner than if he or she waited to go to court with the lawyer.

However, there is also a significant downside. According to the deputy counsel of the Health and Hospitals Corporation, the average payment in medical malpractice cases had decreased more than $100,000 in the past few years. One of the major causes for that are earlier settlements.

When injured parties accept the earliest offers of a settlement, they often receive less than they might if they waited until later in the legal proceedings. The president of the New York State Trial Lawyers Association added that the settlement conference led by the judge can create pressure for clients to accept compensation that is less than what they deserve.

Source: The Wall Street Journal, “New York Judges Aim to Curb Medical Malpractice Litigation Costs,” Nathan Koppel, 13 June 2011

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Obama Doles out Millions for Potential Medical Malpractice Fixes

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On behalf of of Kahn Gordon Timko & Rodriques P.C. posted in Medical Malpractice on Thursday, June 24th, 2010

There’s no question that the issue of medical malpractice is one that needs to be looked at, though the angle you are looking at it from usually depends on your politics. Republicans tend to favor criticism of malpractice attorneys, focusing on the few large settlements that are awarded and ignoring the many more that are never rewarded at all.

Others focus on the hospital system, hospital safety procedures and things like infection control. (About half of all deadly infections originate at hospitals.)

Clearly, there is much more to the issue of medical malpractice than simply lawsuits. Even though most attempts at malpractice reform have come from the Republican side, President Obama recently released $23.2 million in funding for hospitals, universities and legal bodies that are ready to test different approaches to the issue.

Instead of focusing on ways to prevent harmed patients and families from filing lawsuits, most of the money is going towards projects that will attempt to remedy the reason malpractice lawsuits are filed in the first place. 20 recipients, in 16 different states, will dedicate time and energy over the next one-to-three years working on solutions.

These will then be presented and, if considered scalable, will likely be widely implemented, building up to mass-adoption.

In states like California, where patients are capped on what they may be awarded in a medical malpractice trial, targeting hospital payouts has done little or nothing to lower healthcare costs. The Obama administration, at least, hopes to find another solution.

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NYU Medical Center Found Not Liable in Medical Malpractice Case

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On behalf of of Kahn Gordon Timko & Rodriques P.C. posted in Medical Malpractice on Wednesday, June 2nd, 2010

On Friday, May 28, a New York jury acquitted the NYU Medical Center of any wrongdoing in the tragic case of Vincent Liew, a Chinese immigrant who died from cancer a month after undergoing a kidney transplant at the hospital. Kimberly Liew’s medical malpractice lawsuit against NYU surgeon Thomas Diflo was also dismissed for lack of evidence that Diflo had shown any negligence prior to and following the transplant.

Liew, a Chinese immigrant, suffered from diabetes and when the opportunity for a kidney transplant arose, he took it, accepting the donation from a 50-year-old stroke victim. Dr. Diflo later learned that the organ donor had been afflicted with uterine cancer, unbeknownst to family and friends.

The medical malpractice suit alleged that the kidney should have never been used and after the cancer was discovered, should have been taken out immediately.

Diflo claimed that the kidney had appeared normal and that, in the normal course of things, it was the job of The New York Organ Donor Network to screen donors and ensure that donated organs were safe. After learning of the cancer, he spoke with Liew, who refused to have the kidney taken out, choosing to risk it instead.

It was a fatal decision, but one that Liew should have never been forced to make.

During the course of the trial, it was revealed that two additional patients had passed away following organ donations from the same stroke victim. One died following a kidney transplant, the other following a heart transplant. In both cases, the families received significant settlements.

In this case, Kimberly Liew walks away with nothing.

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$3.1 Million Verdict in New York Medical Malpractice Case

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On behalf of of Kahn Gordon Timko & Rodriques P.C. posted in Medical Malpractice on Friday, May 14th, 2010

In early 2005, Kathleen Kelly Cregan arrived in New York for what she hoped would be a restorative, and safe, plastic surgery procedure. However, not long after her surgery, she suffered a cardiac arrest, causing severe brain damage and, shortly thereafter, her death. The Cregan family sued, alleging medical malpractice on the part of Dr. Michael Sachs, Dr. Subbaro – an anesthesiologist, and nurse involved in Kathleen’s surgery and recovery.

Kathleen had first heard of Dr. Michael E. Sachs in The Sunday Independent of Ireland, where his list of glamorous clients and multiple media appearances were highly touted. Not mentioned was the fact that Dr. Sachs had also settled over 30 medical malpractice lawsuits during his career.

Following her facelift surgery, Kathleen was left to recover by Dr, Sachs and Dr. Subbaro, who departed the clinic – leaving her under the supervision of a nurse later shown to have inadequate experience in dealing with certain situations.

The morning following her surgery, a blood clot that had formed at the top of Kathleen’s throat dropped into her trachea, cutting off oxygen. The lack of air put Kathleen into cardiac arrest, causing traumatic brain injury and eventually killing her.

The malpractice case went before the State Supreme Court, in Manhattan, where Dr. Sachs eventually settled for $2.1 million. A month later, the nurse named in the wrongful death lawsuit also settled – for $1 million.

However, Dr. Subbaro, the anesthesiologist who had assisted with Kathleen’s surgery refused to settle and was judged by a jury – who found him innocent.

The news was shocking to the Cregan family and lawyer representing them. While the jury acknowledged that mistakes had been made, they also noted that these seemed insufficient to hold Dr. Subbaro responsible for Kathleen’s death.

The Cregan’s lawyer was set to file a post-trial motion on the issue.

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