May 29 2015

Marital Vows and Medical Malpractice

wedding-photographer-toronto-3I am not a religious officiant. I have never become a Universal Life Minister, even for a day to marry close friends. But I know this: when you married folks promised to stand by him or her “in sickness and in health,” there were unspoken limits in that phrase.  For instance, if you were a young man fresh out of law school, slinging files for a district attorney, Legal Aid, or  Corp. Counsel, because you knew you had to be a trial lawyer, you were in no way committing to prosecute a medical malpractice case on your young bride’s behalf, in case she was ever a victim of medical negligence, and in case you became a plaintiff’s medical malpractice lawyer.  All you had agreed to, realistically, was to remain patient enough not to run away to Vegas with that Twin Peaks waitress after your wife’s third week of intestinal flu, which also made her very bitchy.

Unfortunately, not every married lawyer experiences this kind of free thinking.  An attorney named Peter M. Zirbes is apparently one who felt constrained to represent his wife recently, in Suffolk County Supreme Court, when she lost vision in one eye as a result of alleged malpractice during a catheterization procedure.The trial is not over, but the defense attorneys moved to disqualify Mr. Zirbes from continuing to represent his wife, based on their belief that Mr. Zirbes had had discussions with the defendant doctors about the risks and benefits of the procedure performed on Mr. Zirbes’s wife, the plaintiff.  Therefore, they viewed him as a witness in the case.

Justice Joseph Farnetti denied defendants’ motion, and allowed Mr. Zirbes to continue to represent his wife.  But he did so only because the claim for which Mr. Zirbes’s observations might have been useful–that based on the lack of informed consent–was struck by the judge, obviating the need for any testimony from any person about risks and benefits of the procedure.  Chances are, however, that if you are the spouse of someone injured by medical malpractice, you will witness something that will make you a helpful witness on your spouse’s behalf.

So the lesson here is, please do not provide legal representation to your wife or husband. It’s a minefield for legal mishaps, and you never promised to do it at your wedding anyway.  And there is no question but that your emotions will deprive you of the calmness and objectivity you will need to do your best. But it really all goes back to that old chestnut about the perils of representing one’s self, often attributed to Abe Lincoln. It is something like–a lawyer who represents himself has a fool for a client.  Let’s expand it to say–a lawyer who represents him or herself, or his or her spouse, has a fool for a client.


May 24 2015

Dr. Oz Is Largely Bulletproof When It Comes To Malpractice

duck1Dr. Mehmet Oz is a New York-based surgeon and television personality.  He brings the complexities of medicine to the people, on shows like “Oprah,” where he tends to preach about products and processes that are modern and “natural.”  He is unconstrained by the boundaries of traditional medicine. Some would say he is unmoored from them.  As long as his adoring viewing public views him as an entertainer with a medical degree, no one gets hurt.  Unfortunately, some viewers have taken him, and his advice, literally, much to their sorrow.

One of the better-known debacles sprung from the weight-loss wonders Dr. Oz assured his public could be found in green coffee beans. It was exciting news, and would result in the loss of 16% of one’s body fat, whether the user exercised or not.  Except the claims were based on poor and unsubstantiated research, forcing Dr. Oz to ultimately acknowledge that more research needed to be performed. Pushing this untested, new-age snake oil likely resulted in nothing more harmful than dashed expectation and some wasted cash.

But then things heated up a bit, after Dr. Oz told his viewers that heating rice-filled socks in the microwave oven and placing them on your feet before bed would help them sleep.  One viewer, Frank Dietl, followed the suggestion, and wound up with third-degree burns on his feet, as is detailed in the article. The victim sued Dr. Oz over his injuries.

The victim lost. If fact, according to the Hollywood Reporter, Dr. Oz “won.”  Any New York medical malpractice lawyer could have predicted that for Mr. Dietl, before he and his attorney filed their lawsuit. Why? Because there can be no medical malpractice without there first being a doctor-patient relationship. Without that, the physician owes no duty of care to someone who decides to give that physician’s advice a whirl. For those of you so inclined, this case provides all the explanation you’ll ever need.  Suffice it to say that Dr. Oz, and one of his many fans out in TV land, never had a doctor-patient relationship.  And no other television viewer silly enough to take Dr. Oz’s medical advice seriously will be able to sue him for medical malpractice, either, for the same reason.

If you would like to establish a doctor-patient relationship with Dr. Oz, you will have to go see him in his office, sign all the required paperwork, speak to him face-to-face about your particular problems, allow him to examine you….well, you get the picture.  Of course, maybe you don’t want to establish that kind of relationship with a doctor who appears to be focused more on television and pushing boundaries, then on carefully treating his patients. But I’ll leave that up to you.




May 20 2015

Americans Don’t Like The Caps On Damages They Know About.

Emergency workers look through the remains of a derailed Amtrak train in Philadelphia, PennsylvaniaIt often takes a tragedy, such as the Amtrak derailment in Philadelphia, to wake Americans up to the cold, hard realities behind arbitrarily-imposed limits on money damages.  Amtrak, a monopoly whose reputation for prior-century levels of safety precedes it, will never have to pay out more than $200 million dollars to victims of last week’s crash.  This will result in gross unfairness, since, as CBS reports in its article, “[e]xperts predict the liability from the crash, which left eight people dead and more than 200 injured, would exceed the cap.”

The cap, which is nice for Amtrak, but disastrous for those injured or killed due to Amtrak’s safety lapses, was created in 1997, and has never been adjusted upward for inflation.  CBS reports that had inflation been taken into account, the cap would be just under $300 million now.

Not only are victims of the derailment upset about the likelihood that they will never be fairly compensated for their injuries–some of which are life changing–but ordinary Americans are outraged, according to most news outlets.  That’s a good thing, because when citizens learn about unfair laws that protect large corporations at the expense of victims of negligence and their needs, sometimes things change.

Unfortunately, victims of medical malpractice are also limited by caps on their recoveries, in more than half of our states.  Forget, for a moment, that America’s largest bar association, the American Bar Association,  has always maintained that such caps do not do anything toward solving the so-called “medical malpractice crisis” that increases malpractice premiums for doctors.  The more insidious results of such caps are that: (a) they deprive victims of medical errors of their 7th Amendment right to a trial by jury, by removing from the jury its right to set appropriate damage amounts; and (b) they deprive severely injured victims of medical malpractice the compensation to which they are entitled, when dealing with pain and suffering for what will often be the remainder of their lives.

So, be outraged about the shabby way that the victims of Amtrak’s carelessness and disregard for safety are being treated.  But please take a moment to also consider the plight of the thousands of victims of medical negligence who will never get their health back, and more insultingly, will never be properly compensated for the carelessness of the doctor or hospital that caused their injury.


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