June 21st, 2017

NY Senate Passes “Lavern’s Law” — A Date of Discovery Law for Cancer Cases (Updated!)

A month ago I posted about New York’s need to pass “Lavern’s Law,” which extends the date of discovery in medical malpractice cases from the time the discovery of malpractice was made, or could reasonably have been made.

The problem, as I noted back then, was that some folks lost their rights due to our short statute of limitations — 2 ½ years for most cases and a mere 15 months against a municipality — before they even knew they had an undiagnosed cancer or other condition.

The Assembly had, in prior years, passed the bill. The obstruction was in the Senate.

A couple hours ago, though, the Senate passed the bill. Or at least a version of the bill.

While the original version related to discovering malpractice in general, the Senate version is restricted to undiagnosed cancers and other malignant tumors.

This is a victory for consumers no doubt, in that some of them won’t have the courthouse doors slammed in their faces before even being aware they had any rights to begin with.

The law is named for Lavern Wilkinson, who went to Kings County Hospital on February 2, 2010 with chest pain. A radiologist saw a suspicious mass on the x-ray. But Wilkinson wasn’t told.

When it was found again two years later when her complaints worsened, the 15-month statute of limitations had expired. As per the Daily News summary of the incident:

A chest X-ray found the cancer had spread to both lungs, her liver, brain and spine. The disease was now terminal.

She left behind family including an autistic daughter.

The bill had bipartisan support, and passed the Senate by a vote of 55 to 6.

Reconciliation with the Assembly is next, and assuming that happens, on to the Governor for signature.

The extension of the statute of limitations is not forever, of course. It starts to run from the date of discovery, and the time to start suit will end seven years later, even if the cancer is not discovered.

This is all very good for New York’s residents. Should they fall victim to malpractice, they have to worry less about being victimized a second time by an unjust civil justice system.

Updated: The Assembly has now passed the same bill. It goes to the Governor for signature.  He had previously been a supporter of the law.

 

May 17th, 2017

It’s Time to Pass Lavern’s Law (Updated)

There is little that can be more infuriating on the civil side of the law than people losing their rights before they even knew you had them.

But such is the state of the law in New York, where the statute of limitations in medical malpractice matters is calculated from the time the incident occurs — not from the time the person found out about the conduct.

‘Scuse me while I put on my advocacy hat for a moment. This won’t take long.

New York is in a deep minority of just six states that measures the time to sue from the date of the malpractice, and this hits people particularly hard if they have undiagnosed cancers.

Lavern Wilkinson, for whom the law is named, went to Kings County Hospital on February 2, 2010 with chest pain. A radiologist saw a suspicious mass on the x-ray. But Wilkinson wasn’t told.

When it was found again two years later when her complaints worsened, the 15-month statute of limitations — you read that right, people sometimes have a paltry 15 months to discover the malpractice, hire a lawyer and bring suit — had expired. As per the Daily News summary of the incident:

A chest X-ray found the cancer had spread to both lungs, her liver, brain and spine. The disease was now terminal.

She left behind family including an autistic daughter.

That 15-month statute of limitations, by the way, is for city hospitals. For others, it is 2 ½ years.

But you know what? The problem still exists. Think about this: Pap smears are done every 3 years. A misread abnormal Pap that isn’t picked up until the next one? So sorry, you’re out of luck.

The curious thing about this bill, currently pending before the New York legislature, is that it enjoys wide bi-partisan support. There is no conceivable reason why the substantial burdens of medical negligence should fall to the patient and the patient’s family. None. Zero. Nada.

And you know what else? If the hospital was private, and continues to get immunity for its conduct, it is you the taxpayer that picks up part of those costs. You. Not the hospital that was negligent.

But the bill has never been brought to the floor for a vote.

Want to do something constructive today? Contact your New York Senator or Assemblyperson and let them know that this bill should be brought to the floor for a vote.

In the Assembly, the bill is A. 3339. (Updated: The bill was reported from the Assembly Codes Committee to the floor.)

In the Senate, the bill S. 4080. (Updated: The bill is stalled in the Senate — so if you make one call, it should go to your Senator.)

And yeah, the next victim could be you. Or me. And we may not even know it.

Updated: A June 5, 2017 editorial from the NY Daily News: Legislative malpractice: Doing right by Lavern Wilkinson:

…At last count, there were 39 sponsors in the 63-member Senate, which has passed the state Assembly and would easily do so again…

The Democratic-led Assembly passed Lavern’s Law and is poised to do so again this year. Gov. Cuomo pledges his signature. But in the GOP Senate, with the bill opposed by the well-heeled Greater New York Hospital Association, [John] Flanagan has made it a dead letter, never letting it get to the floor.

The bill is carried by Republican John DeFrancisco, the Senate’s No. 2. He can — and should — file a motion for full chamber consideration, which under Senate rules requires the support of “three-fifths of members elected.” That’s 38 senators. This bill has, we repeat, 39 sponsors.

 

 

 

March 1st, 2017

Republicans Move to Grant Immunity for Medical Malpractice

Yes, a real case. Yes, the x-ray hangs in my office.

Well, this comes as no surprise. With Republicans now controlling the Senate, House and White House, they have decided that they didn’t really mean what they said about states’ rights. And they didn’t really mean what they said about personal responsibility.

Out of the House of Representatives, courtesy of Rep. Steve King of Iowa, comes a bill (H.R. 1215) to grant immunity to doctors and hospitals if they negligently injury someone.

Given that 210,000 to 440,000 are estimated to die each year from medical malpractice  — a number that dwarfs the 30,000+ killed by guns — you should care about the subject.

Cynically named as a bill to “improve patient access to health care services” by “reducing the excessive burden the liability system,” the King bill slams an artificial cap on awards for pain and suffering at $250,000 in both federal and state cases, among many other things.

Did the hospital negligently operate on the good leg instead of the bad one? 250K.

Did you lose the good leg? The same 250K.

Did you also lose your previously bad leg because they operated on the wrong  one? The same 250K.

And it comes as no surprise to anyone that lawyers won’t actively jump at the chance to spend hundreds of hours and tens of thousands of dollars on a suit that is so artificially limited. Thus, de facto immunity for most pain and suffering causes of action from medical malpractice.

How does King go all federal on this, going deep into what is most often a state cause of action? By stating that it will apply to anyone that receives health care through a “federal program, subsidy, or tax benefit.” [Copy Of Bill] That means anyone who uses Medicaid, Medicare, veterans health plans or Obamacare.

And by “tax benefit,” it may mean anyone who has a deduction for healthcare of any kind.  Essentially, the idea is to make sure that no one, anywhere in the country, can ever bring a meaningful action for medical malpractice.

The losers in this, of course, are the patients and their families who have already been injured once. And the taxpayers, who are now forced to pick up the tab for the rest of the loss.

King’s bill is based on a faulty premise, that doctors and hospitals order unnecessary tests to protect against malpractice claims. This is the “defensive medicine” theory of why medical costs go up.

But that theory was tested in Texas, and found to fail. As I noted in 2011, the $250,000 Texas cap didn’t stop medical increases. In fact, costs went up faster in Texas than in states that didn’t have a cap.

While doctors may have saved money with fewer suits, and insurance companies may have made buckets more money, it didn’t stop health care costs from rising.

The Texas Experiment also was also supposed to bring more doctors to Texas and more to rural counties. It didn’t work.  Even noted tort reformer Ted Frank wrote, in 2012, that the data from Texas “substantially undermines the empirical case for the conventional wisdom that Texas’s 2003 reforms against medical malpractice lawsuits attracted more doctors to Texas.” Ouch.

Frank went on to conclude:

I, for one, am going to stop claiming that Texas tort reform increased doctor supply without better data demonstrating that.

The real kicker to the artificial caps, of course, is that the taxpayers then get saddled with the costs of the injured person instead of the ones that negligently caused the injury. That’s right, saddling the taxpayers with the costs is a form of socialism. And it is being promoted by alleged conservatives.

The myth that tort “reform” reduces costs was debunked awhile ago. As Steven Cohen noted in Forbes two years ago regarding additional studies, there was no reduction in the expensive tests from states with caps:

That myth was dispatched by the recent publication of a major study in the New England Journal of Medicine. A team of five doctors and public health experts found that tort reform measures passed in three states – specifically designed to insulate emergency room doctors from lawsuits — did nothing to reduce the number of expensive tests and procedures those ER doctors prescribed.

Cohen went on to summarize that none of the “expected” reductions in health care costs came to fruition:

This latest study follows numerous others that deflated other tort reform myths: that making it harder for victims to file medical malpractice lawsuits would reduce the number of “frivolous” suits that “clog the courts;” that imposing caps on the damages victims could receive would reign in “out of control” juries that were awarding lottery-size sums to plaintiffs; and that malpractice insurance premiums would fall, thereby reversing a doctor shortage caused by specialists “fleeing the profession.”

Trump is now on the bandwagon also, or at least whoever wrote this portion of his speech last night:

“Fourthly, we should implement legal reforms that protect patients and doctors from unnecessary costs that drive up the price of insurance — and work to bring down the artificially high price of drugs, and bring them down immediately.”

This oblique reference — Trump never deals in details — was presumably put there by his staff, as I know of no other Trump comment on the subject of medical malpractice.

But wait, there’s more! Tort “reform,” you see, has never saved a life. But has it ever killed anyone? Answer, yes!

I addressed that subject a few year back by pointing to plunging payouts at Columbia Presbyterian Hosptial / Cornell Weill Medical Center. A study found that “instituting a comprehensive obstetric patient safety program decreased compensation payments and sentinel events resulting in immediate and significant savings.”

How much did they save by instituting new safety procedures — in pure dollars and cents leaving aside the human misery of injury? “The 2009 compensation payment total constituted a 99.1% drop from the average 2003-2006 payments (from $27,591,610 to $ 250,000).”

You read that right: 99.1% drop. Based on a safety program, not tort “reform.”

Now if Congress wants to take away the incentive for safety, and just give immunity, you can expect continued deaths. The results should have been screamed from the rooftops:

Safety improvements = fewer malpractice payments and healthier patients.

Tort reform = more patient deaths.

Now let’s return to politics, shall we? I just want to close by asking conservatives a few questions, and do so with the knowledge that medical protectionism has already been a proven failure in reducing health care costs:

1. Do you believe in limited government?

2.  Is giving immunity your idea of limited government?

3.  Do you believe in states rights? Would federal tort “reform” legislation that limits the state-run civil justice systems run contrary to that concept?

4.  Do you believe in personal responsibility?

5.  Do you want to limit the responsibility of negligent parties and shift the burden to taxpayers?

6.  If you believe in having the taxpayers pay for injuries inflicted by others, how much extra in taxes are you willing to authorize to cover those costs?

7.  Is shifting the cost of injuries away from those responsible, and on to the general public, a form of socialism?

Elsewhere:

Congress Moves To Punish Anyone Using The ACA And Medicare (Doroshow @ Huffington Post), which lists other “features” of the bill

Statement of the Honorable John Conyers, Jr. In Opposition to H.R. 1215, the So-Called “Protecting Access to Care Act of 2017”

 

May 16th, 2016

Joan Rivers’ Lawyers (How did they do?)

Joan Rivers in 2010, via Wikipedia

Joan Rivers in 2010, via Wikipedia

Over the years I’ve had a few occasions to take my own to task over crappy lawyering. Today, however, is not one of those days. If I’m going to spend time skewering bad stuff, I should also laud the good stuff.

Following the death of Joan Rivers during a routine endoscopy in 2014 at a small private clinic, her daughter Mellisa went out and hired counsel to investigate and bring suit.

Deaths during routine procedures are not supposed to happen, so hiring counsel was logical.  If not, they may never have learned about the breaks of protocol that occurred. From the New York Times:

Ms. Rivers was to undergo a laryngoscopy, an examination of her voice box and vocal cords, and an endoscopy, which involves looking at the upper digestive system and is performed under anesthesia, according to a report by the New York City medical examiner’s office, which investigated the death.

According to the malpractice suit, the doctors were so eager to please that they violated protocols, and at one point [Medical Director] Dr. [Lawrence] Cohen pulled out his cellphone and took a photograph of Ms. Rivers on the operating table.

Enter, stage right, Ben Rabinowitz and Jeffrey Bloom from the highly respected firm of Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf. The case has now settled — exceptionally quickly, I might add — and is in the news again.

But this is the part that really jumped out at me from the Times article, and the reason for today’s piece:

The lawyers for the Rivers family, Jeffrey Bloom and Ben Rubinowitz, said they did not reveal the amount of the settlement because they wanted to focus on improving patient care. But they said it was “substantial.”

That’s right, there is no settlement number in the article. No blaring heading with a ginormous number, as there would be with 100% certainty if the amount was revealed.  Instead, the lawyers focused on the fact that patient safety was at issue.

Now, if you Google the story, you’ll see tons of stories that focus on patient safety.

While the settlement amount may one day come out, as the will (I presume there is a will) gets probated, it was not part of the initial round of press. The information that comes out later will talk about the size of the overall estate (her estate is valued at $x million — as opposed to being simply about the lawsuit), and the settlement amount will be partially buried as part of another story.

Now let us contrast this with the conduct of the lawyer that sued Red Bull for $85M or the lawyer that sued on behalf of a dog bite victim for  $30M. Both created screaming headlines and a fusillade of negative comments from those that saw the stories. Both of those cases served to diminish, devalue and demean the practice of law and the people that we represent, due to the outlandish claims. Because they used outrageous numbers (when they were not permitted to use any number at all) the story ledes were about those numbers, and not the issues of safety.

The really important stuff for the Rivers suit, from the point of view of how to practice as a lawyer, was at the very end of the article:

Melissa Rivers and her lawyers, however, said they did not want the focus to be solely on what happened to the famous entertainer.

They said that the case highlighted the lax oversight at outpatient surgical centers, and that they would be working to advance legislation in Albany to ensure that these clinics operate under the same minimum safety standards as hospitals do.

“Profit cannot be placed above patient safety,” Mr. Rubinowitz said.

A statement Melissa Rivers put out said:

“Moving forward, my focus will be to ensure that no one ever has to go through what my mother, [my son] Cooper and I went through and I will work towards ensuring higher safety standards in out-patient surgical clinics.”

It just made me want to stand up and applaud, which was kinda tough since I was in a car at the time, but you get the idea.

This part about publicizing the money, by the way, is a tough line to walk on sometimes, as both their firm and mine (and many, many  others) talk about past results on our websites, so that potential new clients know what kind of experience we have. As a general practice though, it is without names.

But when it comes to the press we must behave differently. The web sites, after all, are only read by those that are actively looking to hire counsel, whereas news stories are pushed into the public light and help to shape public opinion. And when I write public opinion, I mean that they shape the minds of potential jurors.

Public safety needs to be the theme of the news stories, just as it is a theme in jury selection and trial.  That is why we talk, in the medical malpractice world, of deviations from customary and usual practice. Because the customary and usual practice equals safety.

And then there was this from the Times:

The doctors agreed not to contest the suit’s findings. A spokesman for Yorkville Endoscopy said: “The parties agreed to settle this case to avoid protracted litigation. We remain committed to providing quality, compassionate health care services.”

That is another highly unusual bit, as almost every settlement agreement has some statement about the defendants not admitting liability and stating that this is merely a business decision. This appears to be absent.

And finally, a third unusual piece — an actual whistle blower’s report from inside the center:

The main anesthesiologist, Dr. [Renuka] Bankulla, concerned that she would be blamed in the death, wrote out five pages of notes on the day of the procedure detailing what she saw and heard. Lawyers for the Rivers family said they were greatly aided in their case by Dr. Bankulla’s notes.

I’ve only had one case in 30 years where a doctor did a tell-all operative report from the inside. Other lawyers I shared it with said they had never seen anything like it, despite practicing even longer than I.

But every so often there will be doctors on the inside, who have seen the catastrophic failures, and elect not to be in on the cover-up. They object to the White Coat of Silence and become our Serpicos.  It’s exceptionally rare, but it can happen.

And so, on this Monday morning, a tip of the hat to counsel for the estate of Joan Rivers.  Not for how they handled the case, but how they handled the press. It’s a model others should follow: Focus on the safety, not on the number.

 

December 21st, 2015

Stanley Tessel (1929 – 2015)

A 60-year-old trial bag that I use, which I inherited from the firm of Turkewitz & Tessel

Way back in the day, students sat in classrooms in alphabetical order. So if your name was Turkewitz, you’d sit next to a kid named Tessel.

And so it was at Brooklyn Law where my father sat next to Stanley Tessel, who scared the crap out of dad with his incredibly organized notes, made with different colored pens.  My father, by contrast, has handwriting like mine, which my 5th grade teacher charitably called chickenscratch.

Stanley Tessel died on December 7th at the age of 86, having retired after 62 years of practicing law. He wasn’t just one of the preeminent medical malpractice attorneys in the state when it came to obstetrical cases and brain damaged babies, but was a pioneer as the field developed through the 1960s and 70s.

You see that photo of a trial bag to the right? It says “T & T” on it, which stood for Turkewitz & Tessel, the firm my Bronx-born father and his Brooklyn-born buddy formed a couple years after they graduated in 1952. That bag is about 60-years-old, and sits in the corner of my office, ready for my next trial. It’s held a lot of stories, including those from the days that the two friends did defense work for Professional Insurance Company of New York, defending doctors and hospitals in medical malpractice cases.

Tessel, according to my father, was an outstanding trial lawyer back in those days.

After Turkewitz & Tessel split up after 15 years — when Professional Insurance went belly-up — my father went on to lead the medical malpractice department at Fuchsberg & Fuchsberg while Tessel went over to Charlie Kramer’s law firm, which subsequently became Kramer, Dilloff, Tessel, Duffy & Moore.

If that name sounds familiar, it’s because the firm is one of top medical malpractice firms in the nation, now known as Kramer, Dillof, Livingston & Moore. Tessel, even long after he’d retired in 1989 and moved to Florida, would still fly up to New York to take the depositions of doctors in obstetrical cases. When the top firm in the nation has a lawyer flying in from Florida to take a deposition, you know the lawyer is good.

Chuck Silverstein, who worked with Stanley for years at Kramer Dillof, and with whom I shared office space for several years, wrote to me:

One of the things I remember most about Stanley was that he liked to talk about your father a lot.  He told me the law school story (related above), always with a big smile on his face.

At one point Stanley bought himself a Rolls Royce but realized it was a dumb thing to do and got rid of it. (ET – But before getting rid of it, he came by our house to give my folks a ride. My mother quipped, “It rides as nice as our Cutless!”)

Stanley used to love going to Harry’s in the basement of the Woolworth building.  He and I would sit at the bar and he would order two drinks and two shrimp cocktails and the war stories would flow.

The joke at the retirement party was that Harry’s would go out of business without him around.

At the party, a prominent obstetrician toasting Stanley said that “He knows so much about obstetrics, I’d like him present in the delivery room when my own wife gives birth.”

When I first started working at Kramer Dillof Stanley told me that I’d need a copy of Williams on Obstetrics.  I think he gave me his own copy since he basically knew everything in it already.

Stanley was a very generous man.  I think the term ‘magnanimous’ really sums him up — both professionally and personally.”

One day, many years back, Silverstein asked me to try one of the cases that Kramer, Dillof had worked up. This happens from time to time when there’s a manpower shortage and the judges are screaming at you to go pick a jury.

I cracked open the file and found handwriting that looked like it came from a typewriter — with analysis to match. In different colored inks. While I had never actually seen Tessel’s handwriting before, as I’d never worked with him, I recognized his work immediately based on my father’s stories.  And so I went on to take a verdict in this case my father’s old partner had worked up at a different firm.

Stanley Tessel

Stanley Tessel

A long obituary appeared in the New York Times this past Friday, written by his survivors. It recounted Tessel’s service in the Air Force during the Korean War, serving in Pusan as part of the Judge Advocate General.

While the obituary mentioned that he was entombed with full military honors by the Air Force Honor Guard, it failed to mention the time he almost got court-martialed. For working too hard.

It seems that the officers on the base would quit work at four and head over to the Officer’s Club for drinks. And Tessel’s office in the JAG was just across the way. And with Tessel-the-perfectionist working late, the light was always on.

(This late-night work came as no surprise to my father as he recounted the almost-court-martialed story to me, since in law school my father would quit a long day of studying at 7 due to exhaustion, while Tessel continued deep into the night even though he knew the material cold.)

So the other officers discussed this “problem” of Tessel working so hard and so late with Tessel’s superior, telling the boss it wasn’t right to make Tessel work that way. The commanding officer, in turn, told Tessel that maybe it would be a good idea to quit work at four like everyone else.

The court-martial risk came because Tessel thought this had just been a suggestion.

Not bad for a war story.