Articles Posted in Medical Malpractice

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Undergoing surgery only to find the results are incorrect, flawed, or even harmful can be devastating. In these cases, many patients may qualify to file a medical malpractice suit.

What Qualifies as Medical Malpractice?Two medical professionals working on a patient

Although malpractice is any negligent or illegal activity in medical treatment, not all mistakes qualify for medical malpractice suits. In general, mistakes are only considered malpractice when they cause harm or additional injury to a patient. These injuries may be the result of errors or negligence in diagnosis, treatment, or aftercare, but only the following are generally considered to be surgical malpractice.

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The joys of childbirth are among the highest highs a person can experience in this life. But, with the human condition being what it is, even these wonderful moments are tinged with anxiety at the thought of bringing something so precious and delicate into the world. Too often parents are forced to deal with the agony of an infant’s health issues, whether permanent or temporary. While many of these health issues cannot be blamed on anyone, there are some cases where a neonatal condition is caused directly or indirectly by medical practitioners failing to conform to a reasonable standard of care. Erb’s palsy is one such condition that may justify medical malpractice claim.

What Is Erb’s Palsy?

Chubby baby arm

Erb’s palsy is a condition that affects one to two newborns out of every 1,000 born in the United States, according to the American Academy of Orthopaedic Surgeons. The condition is also known as shoulder dystocia or brachial plexus palsy, and it occurs as the result of injury to the arm’s major nerves. When these nerves are damaged, the arm loses sensation and motor function.

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It was just over 20 years ago that Daniel Leav & Edward Steinberg decided to venture out on their own and start a firm.  For several years it was just them and a small support staff; employee #1 hired in October 1999 and still with the firm today.   The firm has grown into a staff totaling 25 employees including 9 attorney’s.  We proudly celebrate our 20th anniversary in 2019.  As a measure of our success, the firm continues to get most of its clients from old happy clients as well as from other attorney’s who wish to have Leav & Steinberg, LLP handle their personal injury matters.

We are also proud to advise that we started off this year with record number of resolved matters including several million dollar cases.  Some of interest are:

$2.3 million for a  NJ resident, in his mid 20’s who was struck by a Canadian truck while driving on the NYS Thruway.  We were able to bring this action in the Southern District of New York and the matter proceeded to trial before being settled at private mediation.  The client had sustained a shoulder injury and also underwent a lumbar surgery.  The matter was referred to us by a NJ Law Firm that realized that while they could handle the matter in Federal Court, they wanted the expertise and experience of Leav & Steinberg to maximize the recovery for the client.

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Partner Edward Steinberg, presented the Legistlative Update at the Decisions seminar held in Westchester County.   Each year, the New York State Trial Lawyers Association, holds a conference where attorney’s in the field of negligence law speak on varying topics and recent updates.  Last month, Edward Steinberg of Leav & Steinberg was selected to speak on the legistlative changes in New York.  Many of these changes are critical to helping those victims injured as a result of the negligence of others.

Among the most important changes was the change in the law called Laverne’s Law.

Lavern’s Law was recently signed into law by Governor Cuomo on January 31st, 2018, after recent Senate (53-1) and Assembly (104-8) amendments were passed on Tuesday, January 30, 2018.

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Though our country has gone through a turbulent time with the recent election, we understand that many have become frustrated and upset with even discussing the topic of government and politics.  However, it has come to our attention that certain elected government officials have put forth a bill which would severely curtail the rights of all citizens and reduce our access to the Court system as well as the right to receive fair and adequate damages for serious injuries.

This week, the House will vote on a number of bills that will make it difficult for accident victims to seek justice in our nation’s courts. If these bills pass, it will make it nearly impossible for Americans, who are injured in accidents, and their families to pursue legal action. The so-called “Protection Access to Care Act of 2017” [H.R. 1215] will rig the system against us by allowing insurance companies and big corporations to prevail.

You can view the details of the bill by clicking on   HR 1215 Bill.   As you will note, the bill, sponsored by big business and the insurance lobby, sets a cap of $250,000 for all claims of pain and suffering for any person bringing a Health Care Lawsuit.  Such a lawsuit will include all claims of medical malpractice, nursing home negligence and any other claim involving any other health care provider.  If we stop for just one moment and think about this.  An elderly woman who is caused to sustain serious and permanent bed sores while in a Nursing home and suffers for 2 years in awful pain, undergoing debridement (scraping of the necrotic skin) procedures will be limited to $250,000.00 in damages.  A child who suffers a loss of oxygen due to delay and error by the doctor and nurses while being delivered and is rendered handicapped and special needs for the rest of their life; will be limited to $250,000 for their pain and suffering.

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In the Medical Malpractice arena, Plaintiffs routinely face an uphill battle.  From inception, the defendants always seek to limit our claims, and create defenses in hope of proving that the conduct of the doctor/hospital/staff was within the accepted Standard of Care.  When all discovery is complete, we find that defendants and their counsel are making Summary Judgment motions.  A motion for Summary Judgment is a motion before a trial that is made before the assigned Judge.  The defendant submits legal papers and expert affidavits stating that based upon all the evidence the Court should dismiss the case as Plaintiff can not prove that the case has meritorious arguments and should go before the jury.

The Plaintiff’s bar face these motions more and more frequently.   We vigorously oppose these motions with our own experts and affidavits.

This past month, the Medical Malpractice Unit at Leav & Steinberg, LLP was successful in defeating two motions for Summary Judgment on significant cases.

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Brooklyn resident, Frank Musella, a 37 year old married father of two young boys,  was doing his usual work at the Department of Sanitation in Staten Island on July 29th, 2015 when he began having chest pain.  He went outside and was found immediately unresponsive, having suffered what appeared to be a heart attack.  911 and EMS were called.  From reports received, and due to ongoing issues with the EMS transmission radio system and its WI-FI network, delay occurred in getting to him.  This delay, it is claimed may have created the inability to revive and treat him.  He passed away later that day at Staten Island University Hospital.  An autopsy performed showed that he had severe blockage in his arteries.  He had regular check ups with his doctors and was always told he was okay except for high cholesterol.

Leav & Steinberg, LLP was retained to investigate the circumstances of his death including the delay by EMS as well as the medical care provided by his primary care doctor and a cardiologist who had seen him in months and years prior, but failed to diagnose any emergent cardiac condition.

A suit has been filed naming the City of New York and their EMS service for negligence.

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When one is admitted to the hospital, it is always due to a medical condition; either emergent or developing. Whether serious or just for monitoring the hospital and its staff must always remember, the safety of the patient is paramount.  Unfortunately, what often happens with those who are laid up is that their body begins to breakdown and develop what is knows as pressure ulcers or “bed sores”.

Bed sores develop when the body is caused to rest in one particular position for too long.  As many who are in the hospital have injuries or ailments that restrict movement, hospitals have protocol in place for observing the patient, monitoring any development of bed sores and of course, when seen, enacting a protocal ranging from rotation, to dressing application to adjusting the patient so that part of the body can heal.  The development of bed sores is not at all uncommon but with proper medical care and supervision can be avoided.  At the very least, any initial sign of a bed sore, can then be treated so as not to cause the spread or further deterioration of the skin.  Such bed sores are extremely painful and debilitating.

In pursuing a recent medical malpractice case on behalf of a patient who was in the hospital for unusual abdominal pain, Leav & Steinberg, LLP was asked to investigate how the patient could have developed not just stage 1 bed sores but sores that progressed all the way to a stage 4. Sadly our client passed away only a few months after developing the bed sores, but the family was distraught that he could have endured such a horrific and painful ending to his life, despite being under the constant care and supervision of what was supposed to be trained nurses and doctors.

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Though delivering a child is both amazing and memorable, mistakes and errors can often occur.  The result can be a lifetime of pain and suffering for the child and family.  To address this, a family must keep in mind that the Court has little sympathy for a family or counsel who misses deadlines created.  On June 9th, 2016, the NY Court of Appeals affirmed the dismissal of a case involving a brain damage baby.

Wally G vs. NY City Health and Hospitals Corporation involved an infant Plaintiff who was born prematurely by emergency cesarean section at New York City Health and Hospitals Corp. (HHC) in June 2005. C-Section is a method of delivering the baby when often the baby can not be delivered vaginally or is in fetal distress. Here, Wally G was transferred to the neonatal intensive care unit and discharged in stable condition in August 2005.

Under New York Law, the family, if they believe malpractice occurred must serve a notice of claim against the City within 90 days of when the malpractice occurred. If they serve later than 90 days, they must request Court permission. Here, in January 2007, more than 90 days after the claim arose, without first obtaining leave of court as required by General Municipal Law 50-e (5), plaintiff served a notice of claimagainst HHC claiming that the hospital committed negligence and malpractice arising out of failure to properly treat and manage his mother’s prenatal care, causing the infant to sustain brain damage, cognitive defects, developmental, speech and psychomotor delays fetal and respiratory distress and seizure disorder.

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In 2013, a 41-year-old mother from Brooklyn named Lavern Wilkinson passed away from a form of lung cancer which was thought to be curable. Had Lavern Wilkinson been told that she had a cancerous mass which was shown in a chest x-ray taken in 2010, she may have been alive today. Lavern Wilkinson did not discover that she had cancer, or that the doctors committed malpractice three years earlier, until it was too late. 

To add insult to injury, the Wilkinson family is barred by the statute of limitations in bringing a lawsuit against the doctors at Kings County Hospital who neglected to see the cancerous mass on the x-ray film, thereby denying Lavern Wilkinson an opportunity to get needed medical treatment. 

Under the current law, in order to bring a lawsuit against a public hospital, a plaintiff must commence their lawsuit within one year and ninety days from the act of malpractice. Patients at private hospitals have two-and-a-half years in order to bring their claim. The current law in New York does not allow for a statute of limitations to be tolled for the discovery of a doctor’s malpractice.