Jun 16 2017

You Should Know Why Lavern’s Law Matters

New York State is far from the worst when it comes to how victims of medical malpractice are treated in court. For example, we do not have set limits on the amount of money damages that can be awarded to a plaintiff for so-called non-economic damages, that is, the damages that can be awarded to compensate for the victim’s pain and suffering. Other states do, in the form of “caps,” often placed at $250,000.

But medical malpractice victims can be hurt, a second time, by unrealistic limitations in the time they have to bring an action in court. Barring exceptional circumstances, malpractice victims who miss such a deadline, called a statute of limitations, are forever barred from having their complaint heard in court. In New York, a victim of medical malpractice has 2 and 1/2 years from the date of the malpractice to start a lawsuit. That may sound like a sufficient amount of time to realize that a medical error was made, and to hire a lawyer to do something about it.

But what if, through no fault of your own, you don’t discover the malpractice until more than 2 and 1/2 years have passed? Right now, you, and every other New Yorker, are powerless to seek compensation. But there is a groundswell of support for a law that may change that unfortunate situation. It is called “Lavern’s Law,” after a New Yorker who fell victim to the unfairness of the current statutes of limitations. This story in the NY Daily News provides some background. Lavern Wilkinson had a curable case of lung cancer, but her doctors failed to diagnose it on time. By the time they, and Lavern, realized their mistake, it was more than 2 and 1/2 years from the time of the misdiagnosis, and neither she, nor the family she left behind, had any recourse in our court system.

As this article in The Journal News points out, New York is one of only 6 states in the U.S. that fails to use a “date of discovery’ rule for medical malpractice victims, i.e., a rule that allows a malpractice victim to bring suit within a set time from the date of discovery of the malpractice–and not just the time of the malpractice.

As my colleague, Eric Turkewitz, stresses in his post on the topic, it’s time to pass Lavern’s Law, before this nonsensical void in our law works to deprive someone else of his or her right to hold a negligent doctor accountable. Eric’s post provides helpful information on how you can help advocate for getting Larvern’s Law to a vote on the Senate floor, and I hope you will do so. New York’s victims of medical malpractice deserve better.

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Mar 14 2017

An Orderly Transition?

It is by now old news that President Trump’s top lawman, Jeff Sessions, ordered most of the country’s U.S. Attorneys to clear out, immediately or sooner, a couple of days ago. This normally calls for the submitting of resignations. The U.S. Attorney for the Southern District of New York, Preet Bharara, did not go peacefully however, and forced Sessions to fire him instead, for reasons that will likely come into focus in the coming weeks. One reason for the highly charged departure, though, is quite public. President Trump had met with Mr. Bharara, and had personally requested that he stay on to work during the Trump Administration’s tenure. Therefore, the change of position apparently took the U.S. Attorney by unpleasant surprise.

Not everyone in Mr. Bharara’s position was treated that way. In fact, the U.S. Attorney for the Northern District of New York was told that he could stay on, in order to accumulate enough time for his pension to become effective, and to ensure an orderly transition. That was a generous and reasonable thing to do: generous concerning Mr. Hartunian’s pension; and reasonable because leaders of federal prosectors’ offices need time to effectuate an orderly transition, and insure that investigations in progress continue to move forward under proper guidance.

The manner in which Mr. Sessions carried out his removal of most sitting U.S. Attorneys was abrupt, making the possibility of achieving orderly transitions at each office slim. From here, I can’t imagine why he chose to do it this way. But the end result is that lots of dedicated public servants who worked hard for modest paychecks are leaving their offices in a hurry, and feeling slighted. They deserve better. They deserved to be treated like the U.S. Attorney for the Northern District of New York.

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Nov 9 2016

A Tale Of Two Babies

Statutes of limitations are unfair and arbitrary. For the non-lawyers, statutes of limitations are time limits on your opportunity to bring a lawsuit. Some of them appear reasonable. For example, here in New York State, you have three years to bring a suit against a person or entity whose negligence, or carelessness, caused you to suffer an injury. In the case of medical malpractice, where a healthcare provider, such as a doctor, makes an error while treating you, and the error results in injury or death, you have two and one-half years to sue.

But if that carelessness, or that medical error, took place in a city or state-run facility–think NYCHHC facilities, such as Bellevue Hospital–you have ninety (90) days to file a notice of claim against the appropriate city or state organization behind the healthcare facility, or you are forever barred from bringing a lawsuit, no matter how egregious the misconduct, and no matter how devastating the injuries, barring certain rare exceptions.

Let me put that into context for you. I have a client who suffered severe injuries at his birth because a hospital run by New York State failed to take steps to address a neonatal blood disorder of which they were aware. Because the parents were quite sophisticated and smart, they realized the need to reach out to a lawyer quickly, and with my office’s help, filed their notice of claim against New York State within ninety days, preserving their right to bring an action on behalf of their son, who will need care for the rest of his life. Between New York’s Medical Indemnity Fund (MIF) and the state, the money for that family’s needs will be there, thanks to the settlement being negotiated on the family’s behalf.

But then there is the case of the young lady I spoke with last week, who lost her baby a few weeks shy of his expected birth date due to atrociously poor neonatal care from a NYC hospital. A single mother with other children to care for, and with a background that included little education, she did not reach out for help until well after the ninety days had expired, and I couldn’t help her. She had been trying to get back on her feet after losing a child, and simply had not gotten around to thinking more carefully about the suspicious-sounding explanations she had been given in response to her questions on how she lost her baby. The case, if there was a case, would have had a very limited value in terms of damages, for reasons not relevant to this discussion. But the time limitation here was not helpful to any party, and kept a potentially deserving one from accessing our courts.

And perhaps you’ve noticed that hospitals run by NYC or New York State do not alert you to the the ultra-short times facing you if you are unfortunate enough to be the victim of medical malpractice. Well, now you know. Tell your friends. Contact my office if you have any questions.

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