Oct 21 2016

“Fixation Device” or “Foreign Object” Means You Have A Case Or Don’t

Statutes of limitations are time restrictions limiting the starting of lawsuits. A legitimate argument for having them is that over time, evidence is lost or becomes stale, and the memories of victims and witnesses fade. Thus, statutes of limitations force victims of negligence to speak now or forever hold their peace, so to speak. That would be a wonderful idea, if American consumers and patients were educated about such limitations. But they are not. And sometimes, the people on the front line protecting the rights of wronged victims–us lawyers– who absolutely need to know about them, do not.

The first thing a competent defense lawyer will do upon receiving a suit accusing his client of negligence is to check the applicable statute of limitations. Did the plaintiff file his suit in time? Because if not, that is usually the end of the matter. The plaintiff’s claim is barred forever. Sometimes the issue is not clear cut, as in the case of foreign objects left behind in one’s body by a doctor or nurse. In medical malpractice world, the usual time period that applies is 2 and one-half years from the date of the negligent medical care (NY CPLR 214-a). However, if a patient discovers, long after the initial surgery, that something was left behind and should not have been, he has one year from the time of discovering that “foreign object” to bring suit, even if the 2 and one-half year period has passed. The problem for patients making such an unpleasant discovery is this: if the thing found is considered a “fixation device,” which must have a securing or supporting role after surgery, it won’t qualify as the type of “foreign object” that allows a lawsuit within one year. If you’ve discovered it more than 2 and one-half years after the negligent surgery, you have no medical malpractice case to bring.

How do you ascertain the difference? Justice Robert Berliner, of Rockland County Supreme Court, articulated the process in Livsey v. Nyack Hospital and Rockland Thoracic and Vascular Associates, P.C., decided on October 13, 2016. He found, based on testimony from expert witnesses, that the ureteral catheter/stent left inside the patient’s body had not performed a securing or supporting role, and instead had been used as a surgical drain. Therefore, it was not a “fixation device,” and the patient’s claim survived defense counsel’s motion to dimiss, since the patient had brought his claim within one year of discovering the “foreign object.”

If the thing left behind has hurt you, what difference does it make if it had a fixative function or not? That’s a great question. I am unaware of any good reason, and suspect that it came down to some give and take between patient advocates and proponents of tort reform when the legislation was being drawn up. Either way, it is a difference that every medical malpractice attorney, on either side, in New York State, needs to know.

Sep 7 2016

Was My Child Born with Cerebral Palsy Due to Medical Malpractice?

About 500,000 children in the United States have cerebral palsy, a congenital disorder that affects movement, muscle tone and motor skills. The disorder is usually caused by an infant’s brain injury before or during delivery or shortly after birth. Depending on the severity of the injury, cerebral palsy can result in paralysis, preventing children from using certain muscles or muscular functions. According to the Birth Injury Guide, about 10 percent of cases, or 1 in 10 children with cerebral palsy, are the result of a medical professional or staff member’s error.

Cerebral palsy is often due to hypoxia (lack of oxygen to the brain) or asphyxia (lack of oxygen to the body), premature delivery, or birth trauma — sometimes due to delivery mistakes and medical errors or negligence during labor or childbirth. According to Nolo, the most common signs of cerebral palsy resulting from medical malpractice may include:

  • Failure to identify and/or appropriately treat infections in a pregnant woman

  • Failure to properly monitor a fetus’ heart rate before, during and after labor

  • Failure to observe if umbilical cord prolapse occurs

  • The delay or failure to plan, schedule, or perform a medically necessary cesarean section

  • Medical error or negligence in using instruments like forceps or a vacuum in performing the delivery of a baby

Cerebral palsy may manifest in several different ways. Some types will only affect fine motor skills, such as ataxic cerebral palsy, which may cause balance or depth perception issues, speech impediments, and tremors and make performing tasks such as tying shoelaces, using a pen or buttoning a shirt difficult. The most common form, athetoid cerebral palsy, is characterized by involuntary movement, difficulty swallowing, slurred speech, inability to maintain posture, and lack of muscle tone.

If your newborn child has developed cerebral palsy as a result of a doctor or hospital’s negligence, you may be entitled to compensation. Seeking the guidance of a New York medical malpractice lawyer who is experienced in medical error is vital in protecting your rights and securing the compensation you deserve. Call Alegria & Barovick LLP at 212-861-2800 and 914-761-1133 for a consultation today.

Aug 18 2016

Initiatives New Yorkers Can Take to Prevent Medical Errors

As cited in a previous blog article, medical error is now the third-leading cause of death. Medical error may involve medication mix-ups, mistakes made during surgical procedures, misdiagnoses, or improper use or care of equipment and lab reports. Although some instances may not be avoidable, an individual can take proactive measures to prevent themselves from becoming a victim of medical error.

Although many medical errors may occur as a result of the complexities of the health care system, some may be caused by miscommunication between medical staff and their patients. For this reason, it is important for patients to keep doctors informed about the medications they are taking, including prescription and over-the-counter drugs, as well as dietary supplements such as herbs and vitamins. The U.S. Department of Health and Human Services suggests patients keep their records up to date by bringing all of their medicines and supplements to their doctor’s visit at least once a year. Patients should alert their health care professional of any allergic and adverse reactions they’ve had to these medications that may cause them harm.

A patient should be proactive when it comes to staying informed about their prescription medication by asking questions about its intended use, dosage, and side effects. Patients should ask if the medication is safe to use in conjunction with other drugs or dietary supplements and what food, drinks, or activities should be avoided while using the medicine. In 1979, a study published in the Journal of the American Medical Association (JAMA) revealed that one-third of medical professionals’ handwriting was illegible. It may be presumed that handwriting may still be a factor in medical errors today. For this reason, patients should make sure they can read their prescriptions; if a patient has difficulty reading it, the person filling the prescription may also encounter a similar issue.

For surgeries, there should be a mutual agreement among the referring doctor, the surgeon and the patient about what will be done. If a patient has a choice in hospital location, he or she should pick one that has a history of treating many patients for that particular condition. When being discharged, a patient should ask the doctor to explain the treatment or recovery plan to be followed at home.

If you know you are entering the hospital to be treated for a severe condition, try to bring a friend or relative who can participate in the discussion about your care, and maybe even take notes.

The complexities surrounding medical malpractice and errors can be difficult to navigate, especially when victims and their families are dealing with its physical and emotional after effects. The medical malpractice attorneys at Alegria & Barovick LLP are experienced in handling complex negligence cases resulting from medical errors, including misdiagnoses, mistakes made during the birth process, surgeries, and aftercare. Contact the firm at (914) 761-1133 or (212) 861-2800.

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