Apr 15 2016

When Email Is Evidence Of Continuous Treatment

Medical malpractice lawyers know that a lawsuit for medical, dental or podiatric malpractice must be commenced within two years and six months of the malpractice. Barring an exception or two, any case that is brought beyond this time limit will be dismissed.  That is why this limit, memorialized in New York CPLR 214-a, is known as a “statute of limitations.”

A frequently-invoked exception to the statute is the continuous treatment doctrine.   For example, if you were being treated by a doctor who injured you through a medical error, and you did not realize that his error had caused your injury until more than two and one half years after that error had occurred, you could still bring a lawsuit, if you can show that you continued being treated by the errant doctor, for the same general condition,  after the statute of limitations had expired.  In effect, your two and one-half year time limit would not begin to run until all treatment had stopped.

A medical malpractice victim’s best evidence when trying to make use of the continuous treatment doctrine is medical records that comprehensively document the treatment, and the nature of the doctor-patient relationship, in the wake of the incident (or incidents) of malpractice. Recently, however, New York State Supreme Court Justice Alice Schlesinger, who sits in New York County, found that emails between the defendant podiatrist, and the plaintiff patient, were enough to extend the statute of limitations by two days–enough to save the plaintiff’s case from being dismissed. The case is Caesar v. Brookman, 800004/15, NYLJ 1202754584903, at *1 (NY Co. Sup. Ct, 3-30-16).  She interpreted the messages shared between plaintiff and defendant as being in the nature of further medical treatment, since the defendant podiatrist advised plaintiff to “take the antibiotics just in case” certain symptoms were indicative of infection, after plaintiff had written complaining of new symptoms suggestive of a serious infection, that were out of proportion to the reactions that a foreign object in plaintiff’s heel–his presenting complaint–would have caused. The defendant’s malpractice allowed a MRSA infection to develop in plaintiff’s foot, resulting in the need for surgery, which left the plaintiff with atrophied muscles, weight gain, severe levels of coronary plaque, and the need for biweekly visits to a wound care facility for months.

You might not expect a couple of emails to mean much in a medical malpractice case. But here, they made the difference between the life and death of that case. And as a result, the plaintiff has an opportunity for just compensation for his injuries.

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Mar 28 2016

New York Sets No Limits on Non-Economic Damages

In a medical malpractice lawsuit, a successful plaintiff may be compensated for economic and non-economic damages. Economic damages include medical costs and compensation for lost wages. Non-economic damages are for losses that are hard to quantify, such as loss of the ability to biologically have children, pain and suffering, mental anguish, and disfigurement, among many others. Most states have a cap on how much in non-economic damages can be awarded. New York State does not have a cap, and so medical malpractice insurance rates can be higher to cover larger awards.

Some argue that non-economic damages caps create a “caste” system because generally women and children most often receive the majority of their compensation as non-economic damages. If an injured individual has lost wages or medical bills, those are straightforward and can easily be calculated. On the other hand, the amount of pain and suffering, or the loss of the ability to bear a child, is much more difficult to evaluate. Women and children often receive large amounts in non-economic damages because of the type of injury they suffered. For example, if a child is a victim of medical malpractice and has brain damage, or some type of permanent disfigurement, a jury can look at the lifetime effects that injury will have on the child’s quality of life. Without a cap on damages, the child is supposed to receive enough in non-economic damages to cover his or her lifetime. In states which have a cap, the same child would only be able to receive a set amount. In capped states, a child is put at a disadvantage because they will receive the same amount of damages as someone much older, but in general will live much longer and need more of an award.

New York State has taken an innovative approach to the future health care costs of infant plaintiffs who suffer birth-related neurological injuries. In 2011, it established the Medical Indemnity Fund, which purports to cover the future costs of such plaintiffs’ health care on an as-needed basis.

If you have been injured due to a doctor or hospital’s negligence, you may be entitled to compensation. Seeking the guidance of an experienced attorney is vital in protecting your rights. Contact the dedicated, experienced attorneys at Alegria & Barovick LLP for the representation you deserve.  Call (914) 761-1133.

Mar 13 2016

Going Back To School For An Afternoon Was Good For Me

The American Association for Justice runs the National Student Trial Advocacy Competition, also known as STAC, every year, and always needs volunteer lawyers to act as judges.

I would have done it without the added benefit of 3 points of CLE (continuing legal education), but it added to the enticement. And so last Friday, I headed down to Kings County Supreme Court, in Brooklyn, for an evening of watching law students mixing it up in a realistic setting, using realistic case materials.  We even had a realistic judge overseeing our round–Justice Ellen Spodek, who presides over the medical malpractice readiness part in Kings County.  My role, as it turned out, was twofold: I was to act as a juror, but to also score the students on each major task.   Another volunteer lawyer had the same assignment.

It was a Dram Shop Act case, in which bars can be held liable for injuries to a third party that stem from the intoxication of an individual served by the bar.  The plaintiff was the young person injured when a patron of the bar crashed his car into hers. The defendant was the bar. One school represented the plaintiff, and the other represented the defendant. Each team made an opening statement; did a direct exam of its lay witness and expert witness; crossed their opponent’s lay witness and expert witness; and delivered summations.  I had to grade each team’s attorney on each task performed, on a scale of 1-10, and monitor the time of the side to which I was assigned–the defendant–as each team had 80 minutes in total to present its case.  Each team had two lawyers, and two witnesses attached to it.

As in all good trial advocacy fact patterns, there was an equal amount of material available to be used persuasively for both sides, and all four students tapped into it enthusiastically. They had been working on their materials for four to six months, and had, uniformly, an excellent command of the facts. They spoke, for the most part, without notes.  They made, and failed to make, objections. They showed passion for their cause, and used logical thinking on the fly.  And though things got spirited at times, they were always civil to one another, and to Judge Spodek. In short, they were impressive.

Both schools were NYC based, and in the end, one outshone the other. That will be evident in the scoring kept by my fellow volunteer lawyer and me.  But the students left no doubt as to how dedicated they were to the experience, and to excelling at it, and that made me feel great about having participated, for a few reasons. There has been so much negative press about law students: they are mired in debt to finance their education; they are having real difficulty finding appropriate employment after graduating; some have sued their law schools for misrepresenting what a law school education would provide.  To me, these students were not burdened by those kinds of thoughts.  At least, they didn’t show it. They tried the heck out of their cases, and were justifiably proud.

But also, not so long ago, I was like them, and for me, the stakes were high. By the time I was able to sign up for the three-week long Intensive Trial Advocacy Program (ITAP) at my law school, Cardozo, during my second year, I was ready to leave school. The cold academics of my classes had disappointed me, and I found it hard to imagine being motivated to work as a lawyer.  But getting thrown into the trial advocacy program, which aimed to replicate the intensity of being on trial, lit a spark.  Working hard to prepare the materials, and then standing up to deliver an opening, or to cross-examine a witness, was amazingly invigorating, and motivated me to finish law school and become a trial lawyer.  I saw that spark in a couple of the competition’s students, and I’ll bet it stays with them for the length of a career.

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