The New York Medical Malpractice Law Blog » Medical Malpractice in Action

Judge Ann Pfau Joins New York’s Efforts at Early Resolution of Medical Malpractice Cases

Andrew Barovick — Sat, 22 Oct 2011 22:48:07 +0000

Please join me at my new new site as I take a peek at what our Chief Administrative Judge will bring to the table when she becomes Coordinating Judge of NY’s Medical Malpractice Program.

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Case of First Impression: No Subtleties in Arons Decision

Andrew Barovick — Wed, 05 Oct 2011 20:36:41 +0000

Come on over to the new blawg to see my thoughts on the latest interpretation of the Arons v. Jutkowitz decision.

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Tort “Reform,” Texas Style

Andrew Barovick — Tue, 31 May 2011 12:59:06 +0000

The State of Texas loves to crow about it’s allegedly successful tort “reform” program. Of course, whether or not it has been successful depends on which article you read, and whether you’re an insurance executive or a wronged patient. And Texas does not like to acknowledge that one clear result of its efforts is that it has become one of the most expensive states in which to receive healthcare.

But here is something else that Texas would probably not want medical consumers to know. If you are a neurosurgeon from, say, Minnesota, who has inflicted enough harm on your patients that your ability to practice has been severey curtailed, all you need do to kick start that income stream is–you guessed it–move to Texas. Just pay your licensing fee, and start practicing, just as Dr. Stefan Konasiewicz did.

According to the Duluth News Tribune, Minnesota is as much to blame as Texas in this unfortunate scenario, as sanctions accrued in that state need not dog a doctor when he moves to another.

So, yes, this is yet another example of the abject failure of the tort “reform” movement to address a real cause of medical malpractice: unskilled physicians who are rarely, if ever, disciplined in a manner that prevents harm to the medical consumer. Tort “reform” is not going to solve this problem.

But it would be nice if hospitals and medical societies stopped looking the other way when doctors under their supervision injure and/or kill patients. It would be nice if “doctor discipline” was more than just a sometime-uttered phrase. And actually imposing recommended discipline would lend the medical societies in every state more credibility when they talk about what’s good for healthcare.

Will this happen? Probably not. But a medical consumer can dream, can’t he?

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Tort “Reform” Works–To Deprive Medical Malpractice Victims Of Their Right To Recourse

Andrew Barovick — Mon, 30 May 2011 16:00:54 +0000

It’s always heartening and reassuring to see that large corporations that manufacture poisons for human consumption–think Phillip Morris here– have gotten their money’s worth from their efforts to promote the great lie that is tort “reform.” You know. It’s the same story, basically, repeated over and over again. The plaintiff with the faked injury who conspires with the ethics-challenged plaintiff’s lawyer, who limps into the courthouse with a frivolous case, i.e., one entirely lacking in merit, and somehow manages to fool the defense lawyers, their expert physicians who have examined the plaintiff, the judge and 12 jurors into awarding him millions of “jackpot justice” cash. I mean, think about it! Those poor defense lawyers at those large firms paid handsomely by the medical liablity insurance companies were fooled for about 3-4 years, the time it usually takes a medical malpractice case to get to trial or settle. The defense lawyers gained no insight from their opportunities to depose the plaintiff for sometimes days at a time. Their understanding of the case and its merits benefited not one bit from the crates of medical records obtained from every doctor that ever looked at the plaintiff prior to the lawsuit, even after these records were analyzed by physicians on staff with the insurance company. The defense lawyers had no chance to observe the demeanor and credibility of the plaintiff during those drawn-out depositions, so that they would of course have no idea whether a judge or jury would appreciate their narrative of events at a trial.

Not surprisingly, medical malpractice suits are down, according to technorati, while injuries resulting from malpractice are up. That is the kind of perversity that results from well-funded efforts aimed at keeping the negligently injured out of the courthouse. How is that accomplished? One favorite tactic is to shorten the time one has to bring the lawsuit. Another is to place arbitrary caps on damage awards, insuring that victims who have already suffered debilitating injuries will think twice before embarking on a painful, drawn-out journey that will not result in very much compensation at the end, even if the journey is a successful one. But the favorite tactic is the one described above–tarnish plaintiffs, their lawyers, their motives for seeking redress in court, everything about them.

Maybe it’s time for a different way of thinking about victims of medical malpractice. And maybe an organization devoted to consumer safety has a suggestion worth hearing.

“There is a crisis in medical malpractice, not lawsuits,” said Taylor Lincoln, research director for Public Citizen’s Congress Watch division and the author of the new study. “Trying to stop people from being compensated for catastrophic injuries is not the answer. We should instead concentrate on making hospitals safer and disciplining doctors who repeatedly commit malpractice.”

I think Mr. Lincoln has a point. And I know, based on a recently concluded study right here at NY Presbyterian Medical Center, that an OB/GYN patient-safety initiative, properly adhered to, will save lives, and millions of dollars in liability costs for hospitals. Yet a bill that proposes using such a system in all New York State hospitals is being virtually ignored. I think that says something about the state of our civil justice system in New York. Unfortunately, because this is a family blawg, I can’t print that statement here.

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A Day In The Trenches, Or, How Med Mal Defense Lawyers Behave At EBTs

Andrew Barovick — Thu, 19 May 2011 09:40:43 +0000

Yesterday, I witnessed a senior partner at a major medical malpractice defense firm act like a toddler. In fact, he became, before my eyes, the neighborhood kid who becomes angry when he does poorly in the backyard football game, and takes his football home.

Let me set the scene. As is usually the case, I was outnumbered. There were 3 defense lawyers, one of whom was defending his client, and me. Things began inauspiciously enough. I asked the Dr. the topic of the one article he had published in his career. The Dr., who had been trained in gastroenterology, responded “parasites.” And a defense lawyer for one of the codefendants immediately rose to the occasion, displaying his wit by chuckling “like plaintiff’s lawyers.” Mind you, this fellow was also quite senior in the defense bar, until his firm dissolved, and he was taken in by one of the still-financially-healthy defense firms. Of course, it may not have occurred to him that without plaintiff’s lawyers bringing cases on behalf of plaintiffs, he would not have his job.

But on to the deposition. It should have been a short one, and would have been, had the defense lawyer defending the subject of the deposition played by the rules. Unfortunately, that was not to be. We came to a question that the defense lawyer found objectionable. There’s nothing wrong with raising the objection, and he did so. However, the lawyer then directed the witness not to answer my question, which was improper. According to 22 NYCRR 221.2,

“A deponent shall answer all questions at a deposition, except: (a) to preserve a privilege or right of confidentiality; (b) to enforce a limitation set forth in an order of a court; or (c) when the question in plainly improper and would, if answered, cause significant prejudice to any person…”

The defense lawyer’s objection was, in essence, one based in a perceived lack of relevancy. But even assuming the lack of relevancy of my question, the defense lawyer could not articulate how anyone would be prejudiced. And in practice, I would be surprised if a lawyer ever could, since what is said at a deposition will often never come in as evidence at trial if the proper trial objection is made.

And frankly, the “new” rules (which became effective in 2008) were designed to put a halt to the practice of many less ethical lawyers, who would delay, obstruct and sometimes stop completely depositions that were in progress over minor issues that would ultimately be addressed at trial.

When it became clear that the defense lawyer wouldn’t budge or engage in reasonable conversation, I called the assigned judge, and we consulted her for a ruling. Here’s where things get really good. The judge told the defense lawyer that his client had to answer my question, though in the same breath, suggested that it was not an entirely relevant question. Instead of allowing that to put an end to the matter, the defense lawyer told the judge that he would not abide by her decision, and would instead “put in on papers.” He indignantly claimed that all medical malpractice litigation would be negatively affected if he allowed my question to be answered, and continued to block it.

So after about half an hour of arguing over the telephone before the judge, and awaiting her decision, the defense lawyer rejected it when it was not favorable to him. In the process, he kept his client in the deposition for an extra half hour, wasted my time and that of the counsels for the codefendants, and did so knowing that he was wrong on the law. But I’ll bet he gets some great billing out of it.

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NYS Commission on Public Integrity Wants to Muzzle Me

Andrew Barovick — Fri, 01 Apr 2011 02:20:50 +0000

Why would it want to do that? All I did was suggest that the Commission may have had ulterior motives when it dismissed, without so much as an investigation, an ethics complaint made by the Center for Justice and Democracy about the lack of balance on the Medicaid Redesign Team.

And yet, today I received this in my email box:

Dear Mr. Barovick,

In your blog posting on March 26 (“In New York State, Lots of Irony In Integrity”) you wrote:

Well, here’s something that consumers in New York State might be interested in. The good folks on the NYS Commission On Public Integrity serve at the pleasure of the Governor. And so, speaking of the subject of integrity, its members have a personal stake in pleasing the same entity. Could it be that the NYS Commission On Public Integrity was unduly influenced by that interest when it outright rejected the conflict of interest claim? And wouldn’t that be the ultimate irony?

I am writing to inform you that the Commissioners do not serve at the pleasure of the Governor. In order to insulate the Commission from such influence, they serve five-year terms and cannot be removed except for “substantial neglect of duty, gross misconduct in office, inability to discharge the powers or duties of office or violation of this section, after written notice and opportunity for a reply.” [Executive Law § 94(7)]

I believe that a correction is in order.

Walter C. Ayres

Director of Communications

Commission on Public Integrity

540 Broadway

Albany, New York 12207

And here is my response to Mr. Ayres:

Dear Mr. Ayres:

I disagree with you. It is the Governor who can remove commission members, and therefore, they serve at his pleasure. The statutory reasons that allow for such discharge are, as I am sure you will agree, vague enough to justify removal whenever the Governor feels like getting rid of someone who is being particularly pesky to him or his agenda.

I also think that your organization made a decision based not on reason or ethics, but pure politics. So to me, you do not have sufficient credibility or standing to complain about my post, which I will not change.

Thanks for writing.

Andy Barovick

So what’s really going on here? The Commission doth protest too much, methinks. Or, to put it another way, the Commission is reacting a bit dramatically because it doesn’t like being called out on its shortcomings of integrity. Yet the spirit of deception continues in Mr. Ayres’ own missive. He emphasizes that the commissioners cannot be removed except under several circumstances, but leaves out who it is that does the removing, i.e., the Governor. However, when you read the applicable statute, found in my initial post (click on link above), you cannot miss that fact.

Nobody in this debate will argue with a straight face that the Medicaid Redesign Team wasn’t stacked with hospitals and related organizations. Nobody will contest that there was no representation of patient-safety groups or consumers’ rights organizations. Nobody could deny that it is the patients harmed by malpractice who would be most affected by any tort “reforms” proposed by the MRT. So when the Center for Justice and Democracy filed its complaint, which was grounded in the stark imbalance and unfairness of the makeup of the MRT, that organization deserved, at the very least, to be heard. Instead, the Commission on Public Integrity muzzled them, and quickly. To give them a fair hearing would have involved conducting an investigation, and actually examining the serious, fact-based claims that the Center put forward. But the pillars of Integrity at the eponymous Commission must have had other things on their minds, such as political expediency. Because nothing else will explain the failure to accord the Center’s complaint even a momentary look.

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