When starting a New York medical malpractice case many folks invariably ask, "How long will it take?" I'd love to give a good answer about how fast the courts move, or how quickly insurance companies offer a quick settlements, but that's not the way it works.

It will take years. Even if a surgical team leaves a clamp or sponge inside you, the defendants are unlikely to even discuss a settlement until the time of jury selection. The reasons are not terribly complex, and are related in part to the fact that the defendants' insurance companies will hire the defense lawyers and plot the strategy:

• If the insurance companies make your life miserable -- even on slam dunk cases of retained surgical equipment as shown in the link above -- then attorneys won't take smaller suits because it isn't worth the immense amount of time and money needed, thereby decreasing the overall number of malpractice cases;
• Defense lawyers bill by the hour and have no incentive to reach a quick disposition; and
  
• If you get a judgment in your favor in New York, then interest on the money starts to run from the time of the judgment, not from the time of the incident. Thus, the insurance companies continue to hold and use the money for investments in the interim.

So there it is, short and not-so-sweet. Nothing is likely to happen fast.

And because of this, any medical malpractice case that is taken must be prosecuted and prepared with the intent to take a verdict. It would be foolish to hope for a settlement offer that may never come.

Labels: Medical Malpractice

This case from Missouri appeared in one of the jury verdict reporters I receive, and I think it illustrates well the issues presented when personal injury results from failed security. The issues are the same whether it occurs in Missouri, New York, or elsewhere:

Tenant attacked in hallway of apartment building: Failure to properly maintain premises: Rape: Emotional trauma: Settlement.

X.Y.Z., 24, was exiting her apartment when a man attacked her and forced her back inside. He robbed and raped X.Y.Z. and burglarized her apartment. X.Y.Z. suffered emotional trauma and now is afraid to be alone in her apartment or in crowds of strangers...

X.Y.Z. sued the owner and operator of her apartment building. Suit alleged the key-operated lock to the back door did not function properly, allowing individuals without keys to gain access to the building. Plaintiff claimed defendants were aware of the malfunctioning lock but failed to repair it.

Defendants denied they were responsible for the attack and contended they had no knowledge of the defective lock. Plaintiff countered with maintenance work orders that showed problems with the back door lock two months before she was attacked.

The parties settled before trial for $700,000, with an additional $15,000 to be donated to the local rape crisis center on plaintiff's behalf.

While building owners are not the attackers in these personal injury cases, the owners may be liable for having failed in the duty to provide security. If there is a broken door lock in an apartment building in a high crime area, for example, and they know about it but do nothing, it is not a question of if someone will be attacked, but when. Since the owners owe a duty of care to the residents, if they act negligently and breach that duty, they would be liable for damages to the individual.

Labels: Failed Security, Personal Injury

In part one of this FAQ, I discussed 1) the need to find a lawyer in your area, and; 2) concerns one should have if they are solicited by an attorney. Now we turn to legal fees:

3. How much are the legal fees in a negligence case?

Most New York personal injury law firms operate the same way:

First, there is no legal fee for an initial consultation. If the case is taken it is usually done on a contingency basis, which means that the lawyer gets paid only if the client gets paid. This is an incentive for the lawyer to only take good cases with serious injuries, and it relieves a burden from clients who would not otherwise be able to afford a good attorney.

Legal fees are governed by the Judiciary Law, which establishes a limit of 1/3 of any recovery as the fee, with the exception of medical and dental malpractice cases where the fee is lower (see below).

Over the course of the representation, there will be expenses that most attorneys will generally advance on behalf of the client, such as for medical records, experts, stenographers, and certain court filings. There may be exceptions to this, and a good attorney will candidly discuss them with you. (For example, if a settlement offer is made that the attorney recommends accepting, and the client refuses, the client might be asked to front any additional expenses.)

At the time of recovery, the firm will first reimburse themselves for the cash outlay for expenses and then do an apportionment of the remaining recovery. For example, if a case settles for $100 and there was $10 in expenses paid by the attorneys on behalf of the client, then the $10 would be paid back to the attorney and the remaining $90 would be used to determine the legal fee.

4. What are the fees in New York medical malpractice and hospital malpractice cases?

Medical, dental and hospital malpractice cases are also governed by the Judiciary Law, which sets forth a legal fee "sliding scale" structure that looks like this:

30% of the first $250,000 of the sum recovered;
25% of the next $250,000 of the sum recovered;
20% of the next $500,000 of the sum recovered;
15% of the next $250,000 of the sum recovered;
10% of any amount over 1,250,000 of the sum recovered.

Thus, while malpractice cases are significantly more difficult to bring, and cost a great deal more (due to the necessity of hiring additional experts), the fees are lower than in other New York personal injury matters. In fact, they are some of the lowest in the nation. Because of this, many New York firms have a much higher threshold barrier in taking malpractice cases. Essentially, the lower fees, greater expense and significant technical difficulty of bringing such suits has given virtual immunity to the medical profession for smaller claims. Samples of some of the New York medical malpractice cases my firm has handled can be viewed at this link, and they demonstrate the complexity of many matters.

In future FAQs, I hope to cover the need for speed in certain things, the issues around how to "value" a potential case, and other subjects.

Labels: FAQ-Medical Malpractice, FAQ-Personal Injury, Medical Malpractice, Personal Injury

The recent election seems destined to play a role in the counterfeit drug bill pending in New York. While last week I wrote about Tim Fagan's Law pending in Washington, that is not the only proposed legislation designed to bring greater safety to our drug distribution system. In Albany, Assemblywoman Amy Paulin (D-Scarsdale) introduced her own bill to track drugs and increase pharmaceutical safety. From the press release:

This legislation requires drug manufacturers to establish a pedigree for each prescription drug, requires every wholesaler to submit a bond of $100,000, punishes manufacturers and wholesalers who intentionally package, sell, transfer, distribute or deliver a counterfeit drug with a class D Felony, establishes a fine of up to two thousand dollars per violation for offending drug manufacturers, and authorizes criminal background checks for manufacturers and wholesalers.

But two things happened in the election. First on the negative side, Paulin's Republican co-sponsor lost his Senate seat. Nick Spano (R-Yonkers) had hung on to re-election by a mere 18 votes in 2004, but this time lost. Paulin was bold to reach across the aisle to ask Spano to co-sponsor this bill -- both pictured with me here after the press conference annoucing the legislation -- especially given the vulnerability of his seat. But sound public policy comes first for this bill she cares passionately about. She now needs a new sponsor on the Senate side.

And second, on the far more positive side, Eliot Spitzer blew away his opponent to win the governorship. Since Spitzer as Attorney General started an investigation into drug distribution practices in New York, it is presumably a matter he knows and cares much about. One of the subpoenas he dropped in this investigation was on my firm, for the records that I have for representing Tim Fagan and investigating the problem of counterfeit drugs.

This bill is one of many in state legislatures across the country that have popped up give the extraordinary risks from counterfeit drugs that exists due to our leaky drug supply chain. Hopefully the holes can be plugged before more people are injured.

Labels: Amy Paulin, counterfeit drugs, Eliot Spitzer, Nick Spano, Political Action, Tim Fagan's Law

Counterfeit drugs fly beneath the usual political radar of war, deficits, gay rights, and other issues that Washington often deals with. But to Kevin Fagan, the problem of pharmaceutical fakery is a real problem: Tim, his then 16 year old son, had been injected with counterfeits after a life-saving liver transplant in 2002.

Kevin's crusade to help clean up our leaky drug distribution system -- which all too often allows fake drugs to slip into the legitimate supply chain through shady secondary wholesalers -- brought him to Washington, where Representative Steve Israel introduced Tim Fagan's Law in 2005. The bill, and the significant problems with the distribution system that allows this to happen, are detailed more fully on my Counterfeit Drug Resource Page. Since I represent the Fagan family, it is a matter of some interest to me.

The problem with the proposed law doesn't seem to be self-evident since it is non-partisan legislation that does the following:

• Increases criminal penalties. The current federal law is three years in prison. Israel's bill increases penalties and includes up to life in prison.

• Mandates that a manufacturer must alert the FDA of a counterfeited drug in 2 days. Currently, there is no mandate. The pharmaceutical industry has said that it would voluntarily tell the FDA about counterfeited drugs within 5 business days.

• Provides the FDA with the authority to require companies to use anti-counterfeiting technology, as the technology becomes feasible and available.

• Mandates that the FDA implement the paper pedigree rule that was mandated in 1988 and has been postponed for 17 years. It also closes the "authorized wholesaler" loophole and includes manufacturers as needed to start the pedigree.

• Authorizes $60 million for spot-checking for counterfeits for each year between fiscal years 2006 and 2010.

• Authorizes $5 million for each year between fiscal years 2006 and 2010 for educating the public and health care professionals on how to identify counterfeit drugs.

• Provides recall authority to the FDA for prescription drugs. Currently, the FDA can only recall equipment and can only encourage private companies to recall their drugs.

• Authorizes the FDA to issue subpoenas with respect to preventing threats to public health.

So why would a bill that has no partisan agenda languish in a committee despite it being sound public policy? The answer, I'm afraid, is that it languishes simply because it came from the minority party. Israel, who is the Fagans' congressman, happens to be a Democrat. So too is New York Senator Chuck Schumer, who introduced a counterfeit drug bill in the Senate.

With the Democrats taking control of Congress, it is hoped that this bill can now move out of the committees where it is stuck and out on to the floor for debate and voting.

Labels: Charles Schumer, counterfeit drugs, Political Action, Steve Israel, Tim Fagan's Law

Back on September 7th, CNN host Nancy Grace mercilessly grilled a mother whose two-year old had disappeared, essentially accusing the mother of failing to help find her son. The day after the inquisition, the mother killed herself. Now the family is suing Grace and CNN for wrongful death.

Leaving aside Grace's contemptible television personality, this poses an interesting legal question in an extremely sad case.

On one side, CNN/Grace will assert that the First Amendment protects them from asking questions, and further, that there was nothing preventing the mother, Melinda Duckett, from telling Grace to go stuff it and walking off the set.

On the other side, the Duckett family claims in their Complaint a fraudulent inducement to appear on the show. They claim the mother was asked to appear so that she could help publicize the kidnapping, but instead, Grace/CNN saw a 21-year old mother as an easy target to cross-examine for the benefit of ratings.

For fraudulent inducement, one needs a contract. The implied contract here would likely have been Ms. Duckett receiving the airtime to tell her story in exchange for CNN getting the interview.

If Ms. Duckett's ability to negotiate the details of her appearance on Grace's show were impaired by misrepresentations made to her, then the family could prevail.

Frankly, CNN should have fired Grace immediately. I guess the ratings were more important than a little humanity.

Labels: First Amendment

Since many of the same questions recur in personal injury law, it makes sense to write about them. Here then is the first installment of Frequently Asked Questions:

1. There are so many attorneys and legal websites, how do I select a law firm?

• Make sure the firm has a real office in your area. A "national" firm advertising on the Internet may merely be a toll free number from anywhere, without even having an attorney admitted to practice law in New York. Such a firm is likely to sign clients up, and then shop the case around to others in New York in exchange for a legal fee. This lowers the fee to the local attorney (who you have not met) that will do the actual work. Because the "national" firm is taking some of the legal fee, it will also make it less likely to be accepted by high caliber local attorney. The same is true of the dozens of attorney search "services" that are little more than an advertising web site.
  

• Make sure the firm has handled personal injury cases such as yours and has some examples for you to see. Would you want a firm that devotes 95% of their time to matrimonial matters handling a medical malpractice birth injury lawsuit for your child?

• Visit the office and talk to the attorney that will handle your case. If you feel you are being rushed and not given enough time to discuss the matter, hire another firm.

• Will your case get individual attention, or be one of thousands of New York personal injury cases that the firm handles, assembly-line style? Some people like small firms with individual attention, and others like larger firms. It is a matter of personal preference.

• If possible, get a reference from someone you know and trust.

2. Someone approached me at the hospital and recommended a lawyer. Is it OK to use that firm?

Any law firm that solicits you, your family or friends at a hospital should be immediately reported to the District Attorney or the local disciplinary committee. This "ambulance chasing" is illegal, unethical and embarrassing to the profession. Further, if such conduct takes place at the start of representation, it will be impossible to trust the attorneys later on to do the right thing for you when you seek advice on how to proceed. I don't care how good they claim to be, if they are unethical than you should look elsewhere, or if you have already hired them, change attorneys.

In the next FAQ post, I'll cover legal fees for general liability cases as well as the more complex medical malpractice suits.

Labels: FAQ-Medical Malpractice, FAQ-Personal Injury, Personal Injury

A recent op-ed in the New York Times reminds us again that a hospital is not just a good place to get better, but also a great place to get sick. That's not being cute, but simply reminding us that about 100,000 people die each year from infections they acquire in the hospital. The author of the column, former lieutenant governor of New York Betsy McCaughey, points out that this is five times as many as die of AIDS in this country.

The killer bacteria are known as MRSA., or methicillin-resistant Staphylococcus aureus. MRSA, which by definition is resistant to antibiotics, increased in the United States by 32 times from 1976 to 2003, according to the Centers for Disease Control. While staph infections comprised only 2% percent of hospital infections in 1976, it is now 60 %.

Infections are carried from patient to patient due to sloppy institutional practices, as germs travel on gowns, gloves, bedrails, stethoscopes, wheelchairs and even blood pressure cuffs. Prevention comes in the form of testing people for the bacteria that causes the problem, and isolating those individuals. The cost of illness and death vastly outpaces the cost of testing.

The sad truth is that so many of these infections and deaths are preventable. Other developed nations, faced with rapid growth of the problem, have nearly eradicated it with testing.

Ms. McCaughey, who is also the founder of the Committee to Reduce Infection Deaths, writes:

Treating hospital infections costs an estimated $30.5 billion a year in the United States. Prevention, on the other hand, is inexpensive and requires no capital outlays. A pilot program at the University of Pittsburgh found that screening tests, gowns and other precautions cost only $35,000 a year, and saved more than $800,000 a year in infection costs. A review of similar cost analyses, published in The Lancet in September, concluded that M.R.S.A. screening increases hospital profits -- as it saves lives.

The failure to take proper preventative measures is institutional malpractice, and has caused extraordinary suffering and loss. Must hospitals wait to be hit by juries with large liability awards before they change their conduct?

Labels: Hospital Malpractice, Interesting Cases in the News, MRSA, Personal Injury

I put "reform" in quotes for a reason. Because those that tout such reform are really interested in granting various forms of protection and immunities to those who have caused injury to others. Reform generally means an improvement, but those with a political agenda to reduce the rights of the injured have reversed the meaning.

The election of Democratic majorities in both the House and Senate seems certain to have an effect on those who had championed corporate protections against law suits. As the National Law Journal notes in this November 16, 2006 piece:

So-called tort reform is just one of a number of legal agenda issues likely to be placed on the back burner or to undergo redefinition when the new Congress begins in January.

The House Judiciary Committee under Republican control has been a reliable source of tort system-related legislation, including medical malpractice liability limits, new sanctions on attorneys who file frivolous lawsuits, proposed constitutional amendments on a variety of contentious social issues, and efforts to limit what some of its members believe are unaccountable and activist federal judges. A good number of those proposals have been adopted by the Republican House only to be blocked in the narrowly divided, yet Republican-controlled Senate.

That part of the Republican agenda that carries this banner of reform has always smacked of hypocrisy to me. The party, after all, repeatedly claims to champion personal responsibility for one's acts. Yet in this arena they have done the exact opposite -- asking that protections be granted to corporations or physicians so that they would not be held responsible for their negligent or reckless acts. I can only think of one reason for this hypocritical position. In the arena of our tort system, it seems that campaign contributions carry more weight than political philosophy.

On my web site, I put together a page of materials regarding changes to our civil justice system that have been advocated by some. It is a subject I expect to return to in the future.

Labels: Political Action, tort reform

This blog is inaugurated and dedicated with a simple message -- that while the law is often complex, it need not be. It is my intention to discuss cases of interest for New York personal injury lawsuits, pending legislation and other matters of public interest in the same style that I try cases in the courtroom. Simply. If I can take the inner workings of the human body and make them understandable to lay jurors while trying a medical malpractice case, I ought to be able to make the law understandable here. At least that's the theory.

Labels: Odds and Ends