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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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.

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