Articles Posted in Medical Malpractice

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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. 

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A recent study in the New England Journal of Medicine shines a spotlight on the failures of tort reform. Tort reform became a national trend in the mid-1980s when small businesses, doctors and other groups found themselves facing dramatic increases in insurance costs and limited policy availability. Proponents claimed that vast improvements would be seen in healthcare by restricting people’s rights to sue and limiting the compensation they could obtain from wrongdoers. Claiming that doctors were aggressively ordering unnecessary and expensive procedures and tests only to avoid lawsuits, tort reform would supposedly influence doctors’ behavior. Presumably, released from their burden of fear, doctors would reduce patient testing. However, research has proven otherwise. The study published in the New England Journal of Medicine explored the effectiveness of tort reform legislation in three states and found that in fact, tort reform did not impact doctor’s behavior in reducing tests or procedures.

In the study, a panel of doctors examined the records of close to 4 million patient visits in over one thousand emergency rooms for fourteen years. They concluded that “legislation that substantially changed the malpractice standard for emergency physicians in three states had little effect on the intensity of practice, as measured by imaging rates, average charges, or hospital admission rates.” The three states, Georgia, Texas, and South Carolina, had changed the definition of negligence from ordinary to gross negligence, which forced plaintiffs to prove that doctors consciously disregarded the need to exercise reasonable care in treating patients. Despite this reform, which made it nearly impossible to find providers negligent, the frequency and number of doctors’ prescriptions for procedures and tests remained unaltered.Clearly, tort reform does not act, as promised, to modify the decisions of physicians when treating patients. As noted by the panel of physicians who conducted the study, “Our study addresses a very specific question: Do physicians change their behavior in response to changes in the legal environment? We provide strong evidence that, for emergency physicians at least, the answer is no. ”

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The mourning family of Joan Rivers, who died on Thursday at 81-years old, bid her adieu on Saturday at a New Jersey crematorium. Her funeral service, which featured celebrities such as Hugh Jackman and Audra McDonald, was held on Sunday. Though she is gone, her legacy is not.

The sudden passing of Ms. Rivers raises legal questions that cannot be answered until the cause and manner of her death are conclusively determined. An investigation is underway on why a throat procedure that was supposed to be a routine and elective surgery resulted in cardiac and respiratory arrest then death. Medical malpractice has not been ruled out by the state health department. The medical examiner’s autopsy was inconclusive thus far, but additional testing is in the making.

Though Ms. Rivers was advanced in age, her physical and mental health defied expectations. As Edward Steinberg of Leav & Steinberg, LLP pointed out to the Daily News: “Normally, an 81-year-old widow with grown children is not expected to be working. However, she was still a very big earner and in otherwise good health. There could be millions at stake.” Negligence on the part of the Yorkville Endoscopy Center would have to be established. As a part of that, there are questions about the drugs administered by the anesthesiologist, the length of time Ms. Rivers’ brain was deprived of oxygen before her heart was restarted, and the reaction time of clinic staff.

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Surgery of any kind is fraught with perils for the patient. There is nervousness over being in a hospital and dealing with anesthesia. What kind of scar they might have afterwards. How long it will take to recover after the surgery. But having a sponge or a medical instrument left inside your body is not what a patient wants to hear from their surgeon. So the patient sues for medical malpractice, but not every medical instrument left inside a patient’s body will be considered medical malpractice.

The Guide Wire

In 2004, a woman had a biopsy of her lung. The surgeon inserted a guide wire for to make sure he was focused on the correct area of the lung. During the biopsy, the guide wire dislodged. The surgeon spent 20 minutes searching for the guide wire, but was unsuccessful. He left the guide wire inside the patient and ended the surgical procedure because he thought it was in the patient’s best interest. The surgeon informed the woman about the guide wire and explained why he had left it in.

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Medical Malpractice is “the improper or poor performance of a physician, … and other medical professionals.” Malpractice can be intentional or negligent due to an error or omission on the part of the doctor. If a person does not follow a doctor’s instructions or checks themselves out of a hospital, it is not the doctor’s or hospital’s fault for anything that happens to that person.

The Situation

A man went to a hospital because he felt suicidal. The hospital had personnel watch over him and put him on medication to stabilize him. He improved and checked out of the hospital.

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9-1-1. It is commonly the first phone number parents teach their children. It “is the emergency telephone number for the North American Numbering Plan.” And with this dedicated number, we have expectations of extremely rapid service when we call 911. But sometimes human error can delay first responders.

History of 911

The push for the development of a nationwide American emergency telephone number came “in 1957 when the National Association of Fire Chiefs recommended that a single number be used for reporting fires.” This became the national emergency number in 1968 for callers to access police, fire and ambulance services. While 911 may have been established in 1968, it was not until well into 1980s that most municipalities established 911 service.

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