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Practical Info & 'News' about Medical Malpractice, Litigation, Standards of Care, Using Expert Medical Consultants & Witnesses, other Med/Law issues...
Lawyers are just like physicians: what one says, the other contradicts. - Sholem Aleichem
Practical Litigation Info
What is a Strong Malpractice Case?
Special Medical Malpractice Statutes
Evaluating the Medical Malpractice Client
Chosing Proper Medical Malpractice Defendants
Initial Malpractice Case Review by Medical Experts
Errors to Avoid when Handling Medical Malpractice Cases
Some Tips to ease using Medical Experts
Direct Exam of Medical Experts - Checklist
Compensating the Medical Malpractice Expert
Choosing & Using Pathologists as Expert Witnesses
Preparing the Plaintiff's Medical Expert Witness for Trial
Determining Injured Plaintiff's Economic & Financial Losses
Determining Potential Defendant Liability in Large Class-Actions
Using Physician Assistants as Expert Consultants & Witnesses
Establishing Medical Standard of Care & Breach Without Experts
Medical Experts & Establishing Standards of Care in Malpractice Cases
Start Preparing for the coming "Wellness" Industry Litigation Tidal-Wave
Lawyers Beware! - Your Client's Personality Disorder can Destroy your Case
Discovering your Opponent's Expert Consultant's Work under FedRCivP 26(b)(4)(B)
FIRST, KILL ALL THE EXPERTS , Proposed Solution to Serious Problems re Medical Experts
From MediScene: Medical CLE Courses & many more Medical Resources for Legal Pros
Be sure to Check Out the Articles, Cases & other Resources
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Q: Before signing the death certificate had you taken the man's pulse? -- A: No.
Q: Did you listen for a heart beat? -- A: No.
Q: Did you check for breathing? -- A: No.
Q: So when you signed the death certificate you hadn't taken any steps to make sure the man was dead, had you?
A: Well, let me put it this way. The man's brain was sitting in a jar on my desk, but for all I know he could be out
there practicing law somewhere. - Cross of Coroner by Defense Atty
Related Medical Issues
Advance Health Care Directives, 9k
Organ Donations - All You Need to Know, 13k
Medical Records - Confidentiality & Access, 6k
Multiple Chemical Sensitivities - Fact, Fiction, Disability & the Law, 17k
Proving Links Between Toxic Exposures & Injury - Epidemiology
Proving Links between Toxic Exposures & Injury - Toxicology
Food-borne Illness' -- Solutions to this Growing Concern?
Medical-Legal Issues in Quality Assurance
Hepatitis C - A Silent Epidemic
Dialyzer Reactions
Only Pink Eye?
Plastic Surgery
Rheumatoid Arthritis & Medication
The Practice of Emergency Medicine
Emergency Medicine's 11 Commandments
Snoring & Sleep Apnea - Missing the Warning Signs
Common Negligence Issues In Cardiology
Pulmonary & Critical Care Medicine
Cardiovascular & Vascular Surgery
Acute Cardiac Ischemia Diagnosis
Radiation Oncology
The Gynecologic Oncologist
Medical Malpractice, Cancer & the Oncologist
Mammography & the Diagnosis of Breast Cancer
Cancer Growth - Medical & Malpractice Implications
Managed Care, Cancer & Mohs Micrographic Surgery
Failed Back Surgery Syndrome (FBSS)
Facts about Steffe Plate Spinal Litigation
Trauma & Temporomandibular Injury (TMJ)
Temporomandibular Joint Syndrome - A Primer
Common Obstetrical Complications
Respiratory Distress in the Newborn
Pediatric Orthopedic Surgery Problems
Placental Pathologist's Role Re Birth Problems
Bile Duct Injury & Laparoscopic Cholecystectomy
Laparoscopic Cholecystectomy Information
Q: Do you recall approximately the time that you examined that body of Mr. Edington at the Rose Chapel?
A: It was in the evening. The autopsy started about 8:30 p.m.
Q: And Mr. Edington was dead at the time, is that correct?
A: No, you idiot, he was sitting on the table wondering why I was doing an autopsy! - True Court Quote
'Lectric Law & Medicine News
APPLETON, WI. (UPI '97) - Nadean Cool, 44, has sued her psychiatrist for malpractice in a suit alleging that Dr. Kenneth Olson convinced her that she had 120 personalities, then billed her insurance company for group therapy . Her insurance carrier, after adding up bills it paid for her psychiatric care -- about $300,000 -- has joined the suit. Ms Cool claims that Olson said her 120 personalities included a duck and angels. Thankfully, it appears no one is alleging Cool is mentally healthy.
MIAMI, Fl. (Press-Telegram '95) - A diabetic patient woke up after an operation to find that the surgeon had mistakenly cut off a foot and one toe. The Fl. State Board of Medicine reduced a state hearing officer's recommended stiff sentence, and fined Dr. Rolando Sanchez $10,000 and suspended his practice for six months instead. I'm not saying what he did wasn't wrong, board member Dr. Edward Dauer said, but doctors are not God, and hospitals are not heaven.
NEW YORK, NY. (AP '96) - Rajeswari Ayyappan, 59, checked-in the Memorial Sloan-Kettering Cancer Center for brain surgery. Medical personnel performed the operation flawlessly... but on the wrong side of his brain. Chief of Neurosurgery, Dr. Ehud Arbit, has been relieved of his duties.
LONDON, England. (Daily Telegraph '96) - Cancer patient Cyril Smith, 59, gave up his job in 1993 when doctors said he had three months to live. Now Smith, who since giving up his well-paying job has only averaged 48 pounds ($72) a week, is suing the doctors for loss of earnings because he outlived their predictions. I'm not suing the hospital for thousands of pounds. I just want compensation for their mistake, for the last three years when I could have earned a living to support my family. I want the hospital to apologize, Smith said.
It's astonishing. People sue for anything these days, absolutely anything, said a British Med. Assn. spokesman.
ALBANY, NY. (AP '97) New York Attorney General Dennis Vacco said that the state was being sued for $10 million by Francis Hugh Smith, a convicted burglar, claiming that poor medical care was the cause for his amnesia that made him leave his work release job and forget to return to prison.
NORFOLK, Va. (AP '96) - Thomas Passmore, 32, was working at a construction site when he thought he saw '666', a demonic sign, on his hand. So, recalling the Bible's instruction, If thy right hand offend thee, cut it off, he did... with a circular saw. Doctors at Sentara Norfolk General Hosp. wanted to re-attach the hand, but Passmore refused, believing that he would go to hell if he agreed. The doctors contacted a judge, who advised them to follow Passmore's wish and not re-attach his hand.
Now Passmore is suing both the hospital and the doctors, claiming the hospital should have contacted his parents or sister to overrule the judge's decision and that the hospital didn't tell the judge that he was incompetent.
HARARE, Zimbabwe. (Reuters '96) - A Zimbabwe man was arrested for having sex with a cow. He claimed he was afraid of contacting AIDS from a human partner, so he developed a special, monogamous relationship with the animal. During his court appearance, he expressed his deep affection and love for the cow, recited marriage vows and promised to be faithful while serving his nine month jail sentence.
PITTSBURGH, Pa. (Tribune-Review '97) - An Indiana County man shot himself in the mouth after he mistook a .22 caliber gun for a medicine inhaler. Daniel Sutherland, 49, kept both the inhaler and gun in the same drawer and accidentally shot himself just before 2 a.m. He was airlifted to Presbyterian Univ. Hospital in Pittsburgh where he was listed in fair condition. The .22 caliber bullet did not exit his head.
ANKARA, Turkey. (AFP '97) - A 52-year-old Turkish man was shot in the leg over his attempts to have a penis transplant from a donkey . On two previous occasions Mehmet Esirgen, 52, purchased donkeys, amputated their sexual organs and appealed in vain to doctors to perform a transplant in order to cure his sexual impotence. His family, opposed to the plan, became hysterical when he purchased a third donkey on his way home from Ankara and one of his sons shot him. For a long time now I have had sexual problems and I have spent all my pension funds to overcome them, said Esirgen. He plans to buy a fourth donkey as soon as he recovers from his wound.
SANTA BARBARA, Ca. (AP '96) - A woman, claiming emotional distress, sued her veterinarian for $1 million in damages for breaking the back of her pet iguana.
GOA, India. (Reuters '96) - More than 600 scientists from 17 nations, many of whom drink their own urine and use it for body massage, gathered in western India for the First World Conference on Auto-Urine Therapy to present research showing human urine's healing powers and its effectiveness against cancer, hepatitis B, influenza and diabetes. Several doctors had data showing that urine therapy can ease the painful symptoms of AIDS.
Many patients on auto-urine therapy recover from serious illness, said Dr. Shigeyuri Arai of Japan. His study of 1,752 people who practiced urine therapy found that 60 percent - and 73 percent of cancer patients - reported that their symptoms disappeared. Yes, urine can cure cancer, agreed Dr. Ming Liau, while Dr. Ryoichi Nakao said that about 200,000 Japanese, and perhaps 5 million Germans, gargle their own urine. The Conference attendees, though puzzled as to the reason, generally agreed that some doctors are skeptical and don't even offer their patients urine therapy, despite all the evidence.
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[Last Revised 2/02]
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New York Medical Malpractice Summary
NEW YORK
Statutes of Limitations Statutory Cap on Attorneys' Fees
Contributory or Comparative Negligence Periodic Payments
Joint and Several Liability Collateral Source Rule
Contribution Pre-Judgment Interest
Vicarious Liability Patient Compensation Funds
Expert Testimony Immunities
Damage Caps Arbitration
Statutes of Limitations
In New York, any medical malpractice action must be brought within two and a half years from the act or omission complained of or from the end of a continuous treatment during which the act or omission took place. N.Y. C.P.L.R. § 214a (McKinney 1990). However, foreign object cases may be brought within one year from the date upon which the foreign object is discovered. Id . A claimant's incompetency ( i.e. , infancy or insanity) tolls the above-noted limitations until the disability ceases, but in medical malpractice cases this can only extend the limitations period a maximum of ten years. N.Y. C.P.L.R. § 208 (McKinney 1990).
An action alleging wrongful death must be brought within two years from the date of death. N.Y. Est. Powers & Trusts Law § 5-4.1 (McKinney Supp. 1997-1998); Krowicki v. St. Elizabeth Hospital , 113 A.D.2d 1023, 494 N.Y.S.2d 590 (1985).
Contributory or Comparative Negligence
New York is a pure comparative negligence state. A claimant's negligence, no matter how great, will not bar recovery, but the damages recoverable will be reduced in proportion to his negligence. N.Y. C.P.L.R. § 1411 (McKinney 1997).
Joint and Several Liability
As a general rule, New York holds joint tortfeasors jointly and severally liable. Klinger v. Dudley , 41 N.Y.2d 362, 361 N.E.2d 974, 393 N.Y.S.2d 323 (1977). However, any joint tortfeasor whose liability is 50 percent or less of the tortfeasors' combined fault is severally liable only for the claimant's non-economic losses. N.Y. C.P.L.R. § 1601 (McKinney 1997). Non- parties are not counted in this calculation if they could not be joined or are immune from liability. Id .
Contribution
In New York, joint tortfeasors have a right to contribution. N.Y. C.P.L.R. § 1401 (McKinney 1997). A claim for contribution may be brought by either a cross-claim, a third-party claim, or a separate action. N.Y. C.P.L.R. § 1403 (McKinney 1997). Liability in contribution is determined by the tortfeasors' relative degrees of fault. Ravo v. Rogatnick , 70 N.Y.2d 305, 514 N.E.2d 1104, 520 N.Y.S.2d 533 (1987).
Vicarious Liability
Hospitals are not vicariously liable for the acts of non-employee members of the medical staff. Hill v. St. Clare's Hospital , 67 N.Y.2d 72, 490 N.E.2d 823, 499 N.Y.S.2d 904 (1986). However, a hospital can become liable for emergency physicians and others either by actual agency, because the control it exercises makes purported independent contractors employees in fact, or by ostensible or apparent agency, because it holds out independent contractors as hospital employees. Mduba v. Benedictine Hospital , 52 A.D.2d 450, 384 N.Y.S.2d 527 (1976).
Expert Testimony
At the time of filing a complaint or within 90 days thereafter, a claimant generally must file a certificate which indicates that the claimant's attorney has consulted with an expert on the case or, in the alternative, that such a consultation could not be obtained. N.Y. C.P.L.R. § 3012-a (McKinney 1991). This requirement, however, does not apply when res ipsa loquitur is the only theory alleged. Id . Also, in lieu of doing so, the claimant may provide discovery information concerning its experts, their qualifications, and the nature and scope of their opinions. Id .
Expert testimony is required at trial, unless the matter is within the ordinary experience and knowledge of laymen. Fiore v. Galang , 64 N.Y.2d 999, 478 N.E.2d 188, 489 N.Y.S.2d 47 (1985).
It is a distinctive characteristic of New York practice that expert witnesses are generally not deposed prior to trial. While each party must disclose the substance of an expert's qualifications and expected testimony, it need not disclose his identity. N.Y. C.P.L.R. § 3101(d) (McKinney 1991 & Supp. 1997-1998). Further disclosure, including oral deposition, is only allowed by agreement or by court order under special circumstances. Id . This is in contrast to the many jurisdictions in which expert discovery dominates pre-trial preparation.
Damage Caps
New York does not limit the amount of damages recoverable in medical malpractice actions.
Statutory Cap on Attorneys' Fees
The attorneys' contingent fees in a medical malpractice action shall not exceed the following schedule: (a) 30 percent of the first $250,000, (b) 25 percent of the next $250,000, (c) 20 percent of the next $500,000, (d) 15 percent of the next $250,000, and (e) 10 percent of any amount over $1,250,000. N.Y. Jud. Law § 474-a (McKinney Supp. 1997).
Periodic Payments
A claimant's future damages in excess of $250,000 must be paid in periodic payments. N.Y. C.P.L.R. § 5031 (McKinney 1992). Those damages relating to the claimant's future pain and suffering must be paid in a period no longer than 10 years. Id . Further, a judgment debtor's obligation to make such periodic payments terminates at the judgment creditor's death, unless the parties agreed otherwise. N.Y. C.P.L.R. § 5035 (McKinney 1992). The judgment debtor's obligation to pay, however, does not terminate with respect to damages for lost future earnings. Id .
Collateral Source Rule
New York has repealed the collateral source rule in medical malpractice cases. N.Y. C.P.L.R. § 4545(a) (McKinney 1992). Therefore, evidence of the claimant's receipt of collateral benefits may be submitted to the court so that those benefits can be deducted from claimant's recoverable damages. The claimant is entitled to credit for premiums paid over the two years preceding the accrual of the cause of action and projected future payments for obtaining such benefits. Id .
In medical malpractice cases, damages for lost income are reduced by the taxes the claimant (or decedent) would have been reasonably certain to owe on the lost income. N.Y. C.P.L.R. § 4546 (McKinney 1992) and N.Y. Est. Powers & Trusts Law § 5-4.3 (McKinney Supp. 1997-1998).
Pre-Judgment Interest
Medical malpractice and other personal injury cases are not included among those for which pre-trial interest is authorized. N.Y. C.P.L.R. § 5001(a) (McKinney Supp. 1997-1998). However, in a bifurcated trial interest is calculated from the date of the liability determination. Love v. State , 78 N.Y.2d 540, 583 N.E.2d 1296, 577 N.Y.S.2d 359 (1991). Interest is computed in a wrongful death case from the date of death. N.Y. Est. Powers & Trusts Law § 5-4.3 (McKinney Supp. 1997-1998). However, no pre-trial interest is allowed on amounts awarded for future damages. Milbrandt v. A.P. Green Refractories Co. , 79 N.Y.2d 26, 588 N.E.2d 45, 580 N.Y.S.2d 147 (1992).
Patient Compensation Funds and Physician Insurance
New York does not provide a patient compensation fund, and it does not require its licensed physicians to carry liability insurance.
Immunities
The State of New York has waived its immunity, including that of its political subdivisions. N.Y. Ct. Cl. Act § 8 (McKinney 1989); Sharapata v. Town of Islip, 56 N.Y.2d 332, 437 N.E.2d 1104, 452 N.Y.S.2d 347 (1982). Claims must be filed within 90 days of the injury or, if a notice of intent to sue is filed within the 90-day period, within two years from the time the cause of action accrued. N.Y. Ct. Cl. Act § 10 (McKinney 1989 & Supp. 1997-1998).
Arbitration
New York has a procedure by which a defendant can concede liability in exchange for an agreement to arbitrate damages. N.Y. C.P.L.R. § 3045 (McKinney 1991). It also expressly authorizes health maintenance organizations (defined broadly) to agree in writing with their members prior to treatment that all medical malpractice claims will be arbitrated. Members must be permitted to opt out. N.Y. Pub. Health Law § 4406-a (Supp. 1997-1998).
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Dentists, Podiatrists, Certified Nurse Midwives, and Certified Nurse Anesthetists Unable
to Obtain Medical Malpractice Insurance as of July 1, 2000
Pursuant to legislation enacted in 1999, effective July 1,
2000 the Medical Malpractice Insurance Association ("MMIA") will no longer be
issuing or renewing medical malpractice insurance policies, and will be dissolved
effective August 31, 2000. The Superintendent of Insurance has, by regulation (Regulation
No. 170), established the New York Medical Malpractice Insurance Plan, to provide for the
equitable distribution, to authorized medical malpractice insurers, of the insureds of the
MMIA and eligible health care providers unable to obtain insurance in the voluntary market
upon the dissolution of MMIA.
An Insured of the MMIA whose policy is expiring, and those
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writing this coverage in the voluntary market. A list of those
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be obtained from the Department by calling 1-800-522-4370.
Since the mechanism established under Regulation 170 is not
yet operational, the Superintendent has directed MMIA to act as temporary administrator on
behalf of the Plan. Individuals and facilities unable to obtain medical malpractice
insurance in the voluntary market should contact the MMIA at 212 962-0210.
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From Around the Country ...
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Americans Cite Drug or Medical Error in Their
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The Commonwealth Fund --
Research finds that over eight million
Americans say they or someone in their family
has experienced a prescription drug or medical
error.
Connecticut Legislature Passes Law Requiring
Medical Errors Reporting
Hartford Courant --
In response to news reports that medical
errors go unreported (see story below)
Connecticut passes new law.
Arbitration Costs More Than Court System
Washington Post --
A public interest research group says
resolving disputes through mandatory
arbitration may cost significantly more than
using the court system.
State of
Connecticut Fails to Investigate Patient
Deaths
Hartford Courant --
The State of Connecticut has failed to
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malpractice.
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From ATLA ...
Damage Caps Are Unfair to Patients with
Significant Injury from Medical Malpractice
Physicians Weekly -- Caps on
damages set absolute, arbitrary limits on that
medical malpractice victims may receive from
injuries suffered. Opinion by Leo V. Boyle,
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National Data on Medical
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A look at some
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malpractice, insurance premiums
and health costs:
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Litigation
Damage Caps Do Not Reduce
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VIH From the Field, MD Society of NY
NY Medical Society to Open Free
Clinic
profiled 6/99
T he
Medical Society of the State of New York is
currently developing a free clinic in Queens. The
clinic, which is spearheaded by the society's
former president, Ralph Schlossman, MD, will be
staffed by retired physicians and other community
members who will volunteer their time. In order
to start the clinic, however, Dr. Schlossman
feels that the state must first provide liability
insurance for volunteers and waive the biennial
$650 physician registration fee. Until then, the
clinic is only a dream.
Yet, Dr. Schlossman is hopeful.
With bipartisan support from New York state
Senator Kemp Hannon (R-Chair of Health Committee)
and Assemblywoman Ann-Margaret E. Carrozza (D-I),
Dr. Schlossman feels that the pending legislation
to waive the physician registration fee is an
almost certainty. Hannon and Carrozza are also
poised to add a line item into the state budget
to fund malpractice insurance for retired
physician volunteers as soon as the state's new
budget is finalized.
After these hurdles are crossed,
Dr. Schlossman and his colleagues at the Medical
Society hope to open a clinic at the New York
Hospital Medical Center of Queens. As Dr.
Schlossman notes, a free clinic would not create
competition for the hospital, but rather help
contain costs. "Currently, uninsured,
low-income residents use the Emergency Room as
primary care," Dr. Schlossman commented,
"our free clinic will help the hospital
alleviate this problem and also ensure that
people get the kind of continuous care they
need."
Dr. Schlossman has physician
volunteers ready to start as soon as the clinic
becomes a reality. And, with the society bringing
the problems associated with malpractice
insurance and registration fees to the attention
of state legislators, Dr. Schlossman feels
confident that the clinic will become a reality
in the near future.
For more information about the
Medical Society of the State of New York's plans
to open a free clinic, please contact, Matthew
Guilbault at the Medical Society. He can be
reached at 518-465-8085 or by e-mail at mssnyalb@ix.netcom.com .
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