Mar 8 2012

Sad State of Damages

A friend and fellow lawyer just asked me to look at a potential ophthalmology-related medical malpractice case. It was a hefty-looking file, and I had delayed starting my analysis for fear of how long it would take.
This morning, I had time. I unwrapped the FedEx envelope, pulled out the records and began reading. And then stopped. Once I saw that the patient was 85 years old, I knew that any further reading would be a waste of time. I did not need to know whether there was evidence of medical malpractice or not, and I’m jaded enough by now to not even bother to find out, once I see that I can’t take the case.
Why did I have this reaction? Because tort law, at least in New York, undervalues the elderly.
Even if the opthalmologist who treated her committed obvious, easily provable malpractice, no plaintiff’s attorney in his/her right mind is going to take this case, because it is a losing propostion for everyone. The law does not value the decrease in vision of an elderly person under 99% of circumstances. Usually, such a person is retired, so their income has not been reduced. Usually, such a person is not providing services to others that can no longer be performed. Naturally, such a person has a drastically reduced life expectancy, so that the damages she might win for, say, future pain and suffering, and future medical care, will not amount to much. And any defense attorney worth his/her salt will point out the many other ailments that a person of this age is bound be saddled with anyway, to minimize the affects of an injury to an eye.
Then consider that to properly work up such a case, a medical malpractice attorney must purchase reams of medical records, consult with and pay a medical expert, and sometimes two or three, conduct and pay for depositions, invest weeks of his/her own time to the detriment of other cases conducting medical and sometimes legal research, meeting with the client, and often the client’s healthcare providers.
Your investment of time and money will dig you into a deeper financial hole, and the client may be dead by the time any award is obtained for her, given the current pace of cases through our court system.
OK. Done ranting. Carry on.

3 Comments on this post


  1. Sad State of Damages | The New York Medical Malpractice Law Blog | Personal Injury Attorney New York wrote:

    […] and I had delayed starting my analysis for fear of how long it would take. This morning, I … medical malpractice new york – Google Blog Search This entry was posted in Uncategorized and tagged Blog, Damages, Malpractice, Medical, State, […]

    March 8th, 2012 at 10:19 am
  1. Lulaine @ RD Legal Funding said:

    When people call some lawyers ambulance chasers (some do deserve the title) they fail to realize just how much work goes into pursuing a case that may or may not bear fruit. The time alone can cause a lawyer to rethink their purposes and if not for the right reasons may proceed to drop it. There has to be a real goal or bond with the client to keep up a fight that might seem hopeless. Not all lawyers are perfect but the majority are working hard and endlessly for their clients. But many don’t see that, or fail to acknowledge the fact.

    March 21st, 2012 at 11:06 am
  2. Betty said:

    I don’t think you should write it off without looking at the records. I am an ophthalmologists and have lots of patients between the age of 80 and 100 who dutifully come to the office for monthly eye injections to maintain their vision. We fear a loss of vision at any age. I understand that the elderly are generally not part of the workforce but the loss of independence that results from blindness can create a burden for their families and cause social isolation. I would gladly review it for free for you if you are too busy.

    March 30th, 2012 at 4:07 am


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