Jul 31 2014

The Hidden Epidemic of Medical Errors

Andrew Barovick, http://www.thenewyorkmedicalmalpracticelawblog.com, shares figures on fatal medical errors.Some of the leading causes of death in this country are preventable, but none as much as the third: Fatal medical errors. The figures are sobering:

  • The US Senate Subcommittee on Primary Health and Aging recently held hearings in response to a study by the Journal of Patient Safety that estimated the annual number of fatalities due to medical errors at 440,000 – well over 1,000 people a day.

That is equal to three 747 jumbo jets crashing every week. Add to that the 10,000 people who suffer non-fatal medical errors and misdiagnoses, and the scale of the problem begins to come into focus. This epidemic is worsened by the public’s unawareness of it. About half of the respondents of the Journal’s study believed the annual death total for medical errors was 5,000 or less – which is 80 times, or 8000%, lower than the actual figure. Read More

Jun 13 2014

Medical Malpractice: The Clock is Ticking

Medical Malpractice: The Clock is TickingIt sounds unfair, and arguably, it is. But, there are strict time limits on when you can file a medical malpractice lawsuit, and unless you are a lawyer who specializes in the area, or you are someone who is unfortunate enough to have already been through a medical malpractice lawsuit, you would have no idea of what the time limit is, or that it even exists. And frankly, you are unlikely to guess at what the limits are, because they appear to have been created arbitrarily.

The really bad news is that if you decide to file a medical malpractice lawsuit after the time limit has run out, you are out of luck. You can never pursue your claim, absent rare exceptions. That is why the time limits are called “statutes of limitation.”

The lesson from all this is: do not keep your suspicions about malpractice to yourself.  The moment you suspect that you, or someone else you care about, has been the victim of medical negligence, find a medical malpractice lawyer to discuss your concerns with. Any good and experienced medical malpractice attorney will listen without judgment, and he or she will advise you about whether your claim can be an actual court case.

Take note, probably the most important thing you will learn by speaking to a medical malpractice attorney is the type of time limitation you are up against, and some of them are extremely short. For example, if the medical malpractice occurs in a municipal healthcare facility in New York State, you must file a Notice of Claim with the municipality within 90 days of the malpractice.  In New York City, the municipal hospitals are those run by the New York Health and Hospitals Corporation, which is where the Notice of Claim must be directed.  If you want to pursue your claim once it becomes clear that the municipality is not interested in settling your claim, you need to file a lawsuit within one year and 90 days from the malpractice.

If there is no municipality involved, and the facility is not run by the U.S., you have 2.5 years from the malpractice to bring suit. The same limit applies to individual healthcare providers.

Medical consumers should also be aware that most medical malpractice lawyers will not take on a new client who contacts them days, or even weeks before the time limit runs out.  It does not leave us with enough time to properly evaluate your case. Hospitals and doctors are notoriously slow in responding to requests for medical records, and they are often voluminous and difficult to decipher.

So, whoever said “Speak now, or forever hold your peace,” was very wise. If you don’t pipe up early, you will have to remain quiet forever, legally speaking, about your injury that resulted from medical malpractice.


May 4 2014

What New York’s Business Community Doesn’t Want You To Know About The Scaffold Law

Andrew Barovick, http://www.thenewyorkmedicalmalpracticelawblog.com/, discusses the Scaffold Law. New York’s Scaffold Law, Labor Law Section 240 and its related statutes, is a hot-button issue again, pitting those needing compensation for often life-changing injuries against the so-called tort reformers, who believe the laws are too favorable to victims of construction site negligence. Here is a voice that expresses a view “from the trenches,” and from the perspective of the minorities that are often victimized. On the other side of the fence is the business community, which relies on demonizing “trial lawyers,”  frightening business owners, and reshaping facts (i.e., New York is the only state with worker-protective labor laws). Here is a recent example by one of its regular mouthpieces. Of course, the same type of construction law liability has been in place in other states for years: including in Texas and Illinois. But acknowledging that might obscure the message of fear mongering the tort “reformers” rely on.

Here is something that no one wants to talk about, least of all the comfortably-ensconced insurance companies who purport to insure general contractors from construction site liability. To say that they do not vet carefully the construction companies they insure is a sad understatement. They will insure anyone who sends them a check, as the story of a client of mine shows. And should an insured make any one of several missteps once an injury happens, the construction liability insurance companies will “disclaim” coverage, hurting not the insured who purportedly erred, but the victim of the insured’s often gross negligence, who may never see the benefits of the insurance policy.

The reality is that many in the local construction industry are immigrants, legal and otherwise. Becoming a general contractor, even a small one, is often a first step up for newcomers with some basic training in the trades. Many construction sites in the New York City area are run by such small-time, hungry-for-business operators. Their sites are nothing like those run by giants of the local construction industry, such as Macklowe, which at least attempt to look out for worker safety. Cutting corners, paying workers “off the books,” and overlooking safety requirements are everyday affairs, and the insurance companies know this.

My immigrant client was working at such a site in New York City when he fell off of a second-story balcony, landed in the pit below, broke his neck and crushed his spinal cord. He will be in a wheelchair for the rest of his life. The balcony had no safety barricades. There was no safety netting. My client was never offered a safety harness. There was no safety equipment on the site. There was never even a “toolbox talk.” The general contractor was also an immigrant, from the same country as my client. He’d bought liability insurance, though he hadn’t met some obligations he was supposed to have met with subcontractors, all of whom were his friends. But the larger problem was that he did not, according to the insurance company, notify it as soon as practicable. The timing of the notification is still an open question, as is the issue of whether the small-time general contractor who made use of my client in a less-than-traditional way was even aware of his reporting responsibilities.

The end result, though, is that there is an excellent chance that my client will never be compensated for the life-changing injuries he received as a direct result of unquestionably gross negligence on the part of a contractor. And he is not alone. And this will happen again and again. Somehow, the construction liability companies do not seem bothered enough by this recurring circumstance to do anything about it. And why should they be bothered? They are getting paid.

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