Mar 28 2016

New York Sets No Limits on Non-Economic Damages

In a medical malpractice lawsuit, a successful plaintiff may be compensated for economic and non-economic damages. Economic damages include medical costs and compensation for lost wages. Non-economic damages are for losses that are hard to quantify, such as loss of the ability to biologically have children, pain and suffering, mental anguish, and disfigurement, among many others. Most states have a cap on how much in non-economic damages can be awarded. New York State does not have a cap, and so medical malpractice insurance rates can be higher to cover larger awards.

Some argue that non-economic damages caps create a “caste” system because generally women and children most often receive the majority of their compensation as non-economic damages. If an injured individual has lost wages or medical bills, those are straightforward and can easily be calculated. On the other hand, the amount of pain and suffering, or the loss of the ability to bear a child, is much more difficult to evaluate. Women and children often receive large amounts in non-economic damages because of the type of injury they suffered. For example, if a child is a victim of medical malpractice and has brain damage, or some type of permanent disfigurement, a jury can look at the lifetime effects that injury will have on the child’s quality of life. Without a cap on damages, the child is supposed to receive enough in non-economic damages to cover his or her lifetime. In states which have a cap, the same child would only be able to receive a set amount. In capped states, a child is put at a disadvantage because they will receive the same amount of damages as someone much older, but in general will live much longer and need more of an award.

New York State has taken an innovative approach to the future health care costs of infant plaintiffs who suffer birth-related neurological injuries. In 2011, it established the Medical Indemnity Fund, which purports to cover the future costs of such plaintiffs’ health care on an as-needed basis.

If you have been injured due to a doctor or hospital’s negligence, you may be entitled to compensation. Seeking the guidance of an experienced attorney is vital in protecting your rights. Contact the dedicated, experienced attorneys at Alegria & Barovick LLP for the representation you deserve.  Call (914) 761-1133.

Mar 13 2016

Going Back To School For An Afternoon Was Good For Me

The American Association for Justice runs the National Student Trial Advocacy Competition, also known as STAC, every year, and always needs volunteer lawyers to act as judges.

I would have done it without the added benefit of 3 points of CLE (continuing legal education), but it added to the enticement. And so last Friday, I headed down to Kings County Supreme Court, in Brooklyn, for an evening of watching law students mixing it up in a realistic setting, using realistic case materials.  We even had a realistic judge overseeing our round–Justice Ellen Spodek, who presides over the medical malpractice readiness part in Kings County.  My role, as it turned out, was twofold: I was to act as a juror, but to also score the students on each major task.   Another volunteer lawyer had the same assignment.

It was a Dram Shop Act case, in which bars can be held liable for injuries to a third party that stem from the intoxication of an individual served by the bar.  The plaintiff was the young person injured when a patron of the bar crashed his car into hers. The defendant was the bar. One school represented the plaintiff, and the other represented the defendant. Each team made an opening statement; did a direct exam of its lay witness and expert witness; crossed their opponent’s lay witness and expert witness; and delivered summations.  I had to grade each team’s attorney on each task performed, on a scale of 1-10, and monitor the time of the side to which I was assigned–the defendant–as each team had 80 minutes in total to present its case.  Each team had two lawyers, and two witnesses attached to it.

As in all good trial advocacy fact patterns, there was an equal amount of material available to be used persuasively for both sides, and all four students tapped into it enthusiastically. They had been working on their materials for four to six months, and had, uniformly, an excellent command of the facts. They spoke, for the most part, without notes.  They made, and failed to make, objections. They showed passion for their cause, and used logical thinking on the fly.  And though things got spirited at times, they were always civil to one another, and to Judge Spodek. In short, they were impressive.

Both schools were NYC based, and in the end, one outshone the other. That will be evident in the scoring kept by my fellow volunteer lawyer and me.  But the students left no doubt as to how dedicated they were to the experience, and to excelling at it, and that made me feel great about having participated, for a few reasons. There has been so much negative press about law students: they are mired in debt to finance their education; they are having real difficulty finding appropriate employment after graduating; some have sued their law schools for misrepresenting what a law school education would provide.  To me, these students were not burdened by those kinds of thoughts.  At least, they didn’t show it. They tried the heck out of their cases, and were justifiably proud.

But also, not so long ago, I was like them, and for me, the stakes were high. By the time I was able to sign up for the three-week long Intensive Trial Advocacy Program (ITAP) at my law school, Cardozo, during my second year, I was ready to leave school. The cold academics of my classes had disappointed me, and I found it hard to imagine being motivated to work as a lawyer.  But getting thrown into the trial advocacy program, which aimed to replicate the intensity of being on trial, lit a spark.  Working hard to prepare the materials, and then standing up to deliver an opening, or to cross-examine a witness, was amazingly invigorating, and motivated me to finish law school and become a trial lawyer.  I saw that spark in a couple of the competition’s students, and I’ll bet it stays with them for the length of a career.

Feb 23 2016

What New York City Doesn’t Want You To Know About Medical Malpractice Claims

Sometimes it seems as if New York City pays out a lot of money, on a regular basis, in lawsuit recoveries.   And recent headlines, such as this one, concerning the approximately $140 million dollars the City is expected to pay to injured firefighters, continue to keep that idea alive.

But allow me to share with you the manner in which the City conducts itself in an extremely fiscally conservative way–though patient advocates might call it something less flattering.  It has to do with limitations of time, and the public’s lack of awareness of the limitations.  Medical consumers must be particularly aware of time limitations when they are treated by hospitals, and other healthcare facilities, that are part of the New York City Health and Hospitals Corporation, or HHC, such as Jacobi Medical Center, or Bellevue Hospital Center.  If you are injured in a non-HHC hospital in New York City, or a facility anywhere else in the state that is not run by a municipality, the time limit to bring a lawsuit is two years and six months from the time of the malpractice. (If you want to look it up, go to New York Civil Practice Law and Rules, Section 214-a.)   But if you are the victim of medical malpractice in a New York City Health and Hospitals Corporation Hospital, you must act within 90 days of the malpractice, by filing a Notice of Claim with HHC, or you are, with certain exceptions, forever barred from seeking compensation, no matter how serious the error and the resulting injury. And if the claim is not resolved, and it becomes necessary to file a lawsuit, that must be done within one year and 90 days from the malpractice. (Again, for the curious, see New York General Municipal Law, Sections 50-e and 50-i.)

Chances are good that unless you work in hospital risk management, or are a lawyer involved in prosecuting or defending medical malpractice actions, this news comes as a surprise. And that’s exactly how New York City wants it. The less you know about your rights as a patient injured by medical malpractice, the better for the City, and for its fiscal health.  Because if you don’t know about the 90-day time limit, you have a very good chance of missing it, which means that New York City gets to dodge another bullet.  Let’s be realistic. If you have been unlucky enough to have become the victim of a life-altering medical mistake, your focus, and that of your friends and family, is going to be on getting better, and getting home from the hospital, and perhaps a rehab facility, as soon as possible.  It may not dawn on you, or those close to you, that your poor outcome, or your “complication,” could have been the result of a doctor or nurse’s error, until long after you are home.  And then it’s too late.

You’ve probably noticed that hospitals, including City hospitals, have lots of helpful signage and pamphlets in view of, and available to, all patients: blurbs on “patient rights”; disinfection procedures; discharge instructions about symptoms that warrant returning to the hospital, or at least calling your doctor; “consent” forms documenting information that has been explained to you before a procedure.  But one thing you never see is a sign alerting you to how little time you have to file a Notice of Claim if the hospital screws up.  And I’ve got a pretty good hunch that such signs won’t be in place any time soon.  When you think about that institutional level of information withholding, you can begin to see just how much New York City actually saves every year by doing its best to keep its hospital patients in the dark about their rights as medical malpractice victims.  Perhaps this is all part of the glorious “tort reform” our politicians have been promising us.

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