Tragically, just 40 minutes can make the difference between a healthy baby and a little girl who will never walk, never talk, never feed herself, never have a boyfriend, never get married…

In this case handled by Elmira medical malpractice attorney Jim Reed, the Labor and Delivery nurses hooked the Mom up to an electronic fetal monitor and then left the Mom unattended for 40+ minutes. Unfortunately, fetal monitors are absolutely no good if no one is there to read the results….

That’s why the standard of care for labor and delivery nurses requires nurses to review the monitor strips for the first 20 minutes that the mother is placed on the monitor. If all is OK after 20 minutes, the Mom can then be left unattended for short periods of time. If the strips are not OK, then the nurse is trained to immediately intervene and summon a doctor if necessary.

In this case, a careful review of the medical records revealed that the mother had been left totally unattended for the first 40+ minutes she was placed on the fetal monitor. As you might have guessed, the monitor strips were bad meaning that the baby was in trouble and needed immediate delivery. The problem is that no one was in the room to hear read the results and respond to the baby’s cries for help. As a result, the necessary C-section to rescue the baby was delayed by more than an hour causing the baby to suffer profound brain damage (Cerebral Palsy). The baby was rushed from the Corning Hospital to the Neonatal Intensive Care Unit at the Arnot Ogden Medical Center in Elmira, but the damage was already done. The baby had a permanent brain injury called Hypoxic Ischemic Encephalopathy (HIE) which means that the baby’s brain was deprived of oxygen at birth. Read the rest…

The Elmira Star Gazette is reporting a breaking news story regarding a death on a natural gas site.  Reports say Greg Allen Henry, a 31-year-old worker, died on March 11, 2010 after falling 20 feet off a natural gas rig in Towanda Township, Pennsylvania.  The man was working on a Nomac Drilling site located just off Plank Road.

This accident highlights concerns regarding safety on natural  gas rigs shared by many people throughout New York’s Southern Tier and Pennsylvania’s Northern Tier.  As exploration of the Marcellus Shale continues to increase, many rural areas are experiencing (or hope to soon experience) strong economic growth.  However, this growth may come at a steep price, as the family of Mr. Henry is no doubt realizing today.  Natural gas drilling is risky business, and the desire to work quickly in order to maximize profits may lead to unnecessary injuries — and even death.

I will follow-up on this post as more details become available.

Thanks, Christina
_________________________________
Christina Bruner Sonsire, Esq.
NY & PA Injury & Malpractice Lawyer
Ziff Law Firm, LLP
303 William Street
Elmira, New York 14902-1338
csonsire@zifflaw.com
Office: 607.733.8866
Toll-Free: 800.ZIFFLAW (943.3529)
Web: zifflaw.com
Blog: NYInjuryLawBlog.com

As a Plaintiff’s Attorney who conducts depositions on a regular basis, one of the more frustrating issues I encounter is the non-party witness (NPW) who is represented by counsel.  Sometimes the NPW brings in their own outside counsel to represent them.  More commonly, the NPW has some loose affiliation with the interests of the Defendants in the case, and defense counsel tries to claim that they are also representing the NPW.  Defense counsel then obstructs objects and delays, hoping to prevent me from obtaining damaging information from the NPW.  These kinds of tactics usually end up in the deposition being adjourned, or a call to the judge to determine the extent to which the defense attorney will be allowed to participate, with wildly varying decisions froom the judges who have addressed the issue.

Thankfully, the Appellate Division has finally ruled on the issue.  In Thompson v. Mather, the NYS Appellate Division, Fourth Department recently ruled that while an NPW is certainly entitled to whatever counsel they want, the NPW’s attorney IS NOT entitled to participate in the deposition.  So they can’t object or obstruct or delay or do any of the many other things that slow, and sometimes stop a deposition dead in its tracks.

This is a boon for not just plaintiffs attorneys, but for every attorney who handles depositions.  The trial judges who have to field phone calls from attorneys complaining of these tactics will be happy to hear of this decision as well.  Many thanks to our good friend Eric Turkewitz, who wrote about the topic here.  It seems that the scales of justice may be tipping toward common sense!

Thanks for reading,

_______________________________
Adam M. Gee, Esq.

When will these drug manufacturers learn that it is NOT acceptable to keep distributing a drug they KNOW is causing injury and death?

Haven’t they learned anything from the asbestos cases, the Vioxx cases, the Levaquin cases? The bottom line is that they will NOT be able to conceal damaging information forever. In today’s age of free exchange of information, it is becoming more difficult than ever for any manufacturer to keep a lid on problems with their products. In the old days, a heart attack victim in Pennsylvania might know nothing about a heart attack victim in New York, but those days are over. Online communities of patients, doctors and medical researchers can now share their experience with people around the world with just a click of a button.

If this is so obvious to me, why isn’t it obvious to these drug manufacturers who mistakenly believe they can hide the damaging information from the public? Hmmmm, perhaps it is the lure of BIG DOLLARS. The longer you wait to recall a drug can mean millions if not billions of dollars of drug sales.

Heck, why not try to make as much money as possible on a drug before you pull the plug on it? It sure makes business sense but it totally forgets that you are injuring or killing innocent people in exchange for a few more $. Sadly, big business often cares more about profits than people.

A recommendation to manufacturers

Here’s what I would like to tell the companies who have learned that a product they thought was safe but has now been revealed as dangererous: IMMEDIATELY stop distribution of any suspected dangerous product BEFORE more people are permanently injured or killed. Toyota, are you listening?

It appears that Avandia is among the latest drugs to join the “dangerous drug concealed from the public” camp. Avandia, manufactured by GlaxoSmithKline, is a popular diabetes drug. Unfortunately, Avandia has a deadly side effect of drastically increasing the risk of heart attacks and causing liver damage.

A 2007 study in the highly respected New England Journal of Medicine revealed the increased heart attack risks associated with Avandia. CNN did a great video report on the dangers of Avandia and how those dangers were well known to GlaxoSmithKline long before they publicly revealed any information:

Avandia Linked to Heart Attacks – CNN “American Morning”

More details about Avandia:

Avandia (rosiglitazone maleate) is a GlaxoSmithKline (GSK) drug developed to treat type 2 diabetes mellitus. First approved by the FDA in 1999, the agency reported 8 years later a significant increase in the risk of heart attack in those patients to whom Avandia had been prescribed. And many deaths have been linked to Avandia. More recently, two independent studies showed that bone fractures, particularly in female patients, have been associated with this popular diabetes drug, while a third study has found a link between Avandia and liver failure.

Safety concerns and side effects that have been associated with Avandia include the following:

• hypersensitivity
• cardiac failure
• hepatic impairment
• macular oedema
• bone fracture

In addition to these serious side effects, several other risk factors associated with consuming Avandia include: weight gain, cold, cough, headache, inflammation of sinuses, back pain, swelling, fluid retention and cardiac arrest.

If you or a family member have used Avandia and have suffered heart attack or liver damage after taking Avandia, please consult with an experienced malpractice lawyer ASAP so you can learn about your legal options. If you do not know an experienced malpractice lawyer, you can feel free to e-mail me at jreed@zifflaw.com.

Thanks, Jim

_________________________________

James B. Reed
NY & PA Injury & Malpractice Lawyer
Ziff Law Firm, LLP
Mailto: jreed@zifflaw.com
Office: (607)733-8866
Toll-Free: 800-ZIFFLAW (943-3529)
Web: www.zifflaw.com
Blogs: NYInjuryLawBlog.com and
NYBikeAccidentBlog.com

I recently had an e-mail from a concerned personal injury victim about his case. The writer is not a client of mine, but he was hoping I could give him some advice about the statute of limitations on legal malpractice claims.

I told him that the time limit to bring a legal malpractice claim in NY  is “generally” 3 years from the date of the alleged malpractice by the attorney (ie the first date you feel the lawyer screwed up).

The reason I qualified this statement by saying “generally” is that there are a few, very limited exceptions to this 3 year time limit requirement (more on this below).

In this man’s situation, his case may be dismissed – and that could have been caused by legal malpractice by his own attorney. Through no fault of his own, this victim is looking at his case being dismissed before he even really gets started because the time limit to bring a NY legal malpractice case (3 years) has already expired.

The sad part is that he might not have any recourse because he was so caught up in his medical situation that he didn’t even know the applicable time limit for bringing a lawsuit against his lawyer. Now he has discovered that he may have to hurry up and file a legal malpractice case – if he can – before the 3-year window to bring a legal malpractice case closes.

He wanted to know if this was all the time his case had left – and if there were anything else he could do.

Statute of limitations in legal malpractice cases can be very tricky to determine and often are very fact-dependent.

My usual rule of thumb is to use 3 years from the date of the alleged malpractice.  Any date other than that can become very risky because you are relying on exceptions to the general rule.

With that said, there is an exception generally referred to as the “continuous treatment doctrine” that is occasionally applied in medical malpractice cases. It says the clock doesn’t start to tick on the time limit to file a malpractice claim until the last date the defendant doctor continued to provide active treatment to the patient.

The corollary to this exception in the legal malpractice world is the “continuous representation doctrine” and it would suggest that the clock doesn’t start to tick on the attorney’s malpractice until the last date the attorney represented you on the particular matter that you allege he screwed up.

As I said before, these are general exceptions and the courts can be very strict in applying these exceptions to the facts of any particular case.  Accordingly, competent malpractice lawyers prefer not to ever rely on these exceptions and try to bring the action within 3 years of the date of the alleged malpractice.  I refer to this as the KISS principle: Keep It Simple, Stupid!

Because determining the proper time limit is so important (and fatal to your case if you do it incorrectly!), I urge anyone with a this issue to consult with an experienced malpractice lawyer ASAP!

I hope this helps.

Thanks for reading,
Jim
_________________________________________
James B. Reed, Esq.
Personal Injury & Malpractice Attorney
Ziff Law Firm, LLP
303 William St., Elmira, NY 14902
Tel. (607) 733-8866  Fax. (607) 732-6062
Toll Free 1-800-943-3529
mailto:jreed@zifflaw.com http://www.zifflaw.com

E-mail me at FreeReports@zifflaw.com for two free books:
NY Car Accidents and NY Car Insurance Secrets YOU Need to Know.

As an experienced injury lawyer, you often demonstrate how smart you are by the cases you DO NOT take – as much so as by those cases that you DO take.

While I certainly don’t mind a challenging case (and I have taken many over the years!), there are certain types of cases where the law is so stacked against you that you just have to know when to say NO.

Sad to say, school sports injury cases are an example of the type of case that is virtually impossible to win.

Why?

Well, the law is stacked against you in many respects.  First, there is a defense known as the “assumption of the risk doctrine.” Basically, this doctrine contends that people who are voluntarily engaging in a sport, assume the risk of the types of injuries that are inherent in that sport, and therefore they cannot recover for those injuries.

For example, if you are a pitcher on a baseball team, you assume the risk that a batter might hit a ball that hits you in the mouth. Likewise, if you are a baseball spectator, you assume the risk that a foul ball might hit you. On both of these scenarios, there are tons of NY cases that have been dismissed by the court because of the assumption of risk doctrine.

Two great blog posts, “Assumption of Risk Doctrine Bars New York Sports Injury Lawsuits – Part 1″ and “Assumption of Risk Doctrine Bars New York Sports Injury Lawsuits – Part 2 (Baseball)”, by NYC attorney John Hochfelder explain the assumption of the risk doctrine as it applies to many sports:  baseball, floor hockey, wrestling and soccer.

With all of that said, there ARE some types of sports injuries cases that MAY be a possible case despite the assumption of the risk doctrine.

These cases usually involve an injury that is NOT inherent in the nature of the sport or a hazard of a type that is generally not assumed in that particular sport. For instance, if there’s a metal spike sticking up out of the ground in the base path to second base and a school knew about that hazard and failed to take any steps to remedy that condition, that might give rise to liability against the school.

The bottom line is that it is VERY difficult to decide if you have a good case or not and therefore it is usually best that you consult with an experienced injury lawyer to determine if you have a case or not.

If you want to e-mail me the details of your case at jreed@zifflaw.com, I am happy to let you know what I think.

Thanks for reading,

Jim
_________________________________
James B. Reed
NY & PA Injury & Malpractice Lawyer
Ziff Law Firm, LLP
Mailto: jreed@zifflaw.com
Office: (607)733-8866
Toll-Free: 800-ZIFFLAW (943-3529)
Web: www.zifflaw.com
Blogs: NYInjuryLawBlog.com and
NYBikeAccidentBlog.com

Over my 23 years of practice in Upstate NY and PA, I have handled my share of tragic cases due to falls on snow and ice:

• a woman from Ithaca, NY who suffered a permanent brain injury due to hitting her head on an ice sidewalk outside a Corning, NY pizzeria;
• a construction worker from Elmira who was caused to suffer a nasty, spiral fracture of his femur when caused to fall on icy steps at a Waverly, NY factory;
• a Binghamton, NY man who badly injured his back in a twisting fall in a shopping mall parking lot.

Each of these cases resulted in very substantial payments by the insurance carriers for the property owners.

The sad part about each of these cases was just how easily they could have been avoided had the property owner just taken the simple (and legally required) step of keeping their property free of snow and ice.

Now don’t get me wrong, as a property owner myself, I know that it’s often a pain in the neck to keep my home and my office clear of snow and ice but I also know that it is my legal responsibility to do so and even more important, I sure don’t want to see one of my family, friends or clients hurt just because I was too lazy to make sure that I kept my property safe.

During the cold and stormy months of winter, it seems as if we just get the sidewalks cleared before Mother Nature strikes with another storm. A new layer of snow and ice coats the area, making roads and sidewalks slippery and dangerous until we can treat and clear them again.

I want to share some advice about winter conditions and legal liability. This is good information to remember, no matter what your “walk” in life. You may a business or building owner with the responsibility of keeping sidewalks and entrances clear and safe, or you could be a victim of a nasty fall on ice, trying to figure out what your legal rights are.

I was inspired to share some information about this issue by a post, Snow and Ice: Five Ways to Avoid Legal Liability by attorney Tim Rayne. Tim’s tips address the potential liability of property owners. He basically cautions them to:

Determine who is responsible for keeping walking areas free of snow and ice. It may be the property owner, or it could be the municipality – the key is to KNOW for SURE and assume the responsibility if it is yours.

Treat ice and snow effectively and get rid of it quickly. Don’t dawdle! If you are a property owner, and you don’t address dangerous walking conditions quickly, you are opening yourself up to a lawsuit.

I want to add that if you are a pedestrian and you note poor conditions, be sure and tell the property owner. You don’t want to be the victim of a slip and fall accident – or allow anyone else to be, either.

And finally, Tim tells property owners to be sure and have enough liability insurance to cover the cost of perhaps serious injuries to victims of slip and fall accidents.

I know from my 20+ years of experience handling personal injury cases that even when insurance adequately covers the costs of physical recovery, serious injuries have repercussions in victims’ family life, careers, mental state and more. First and foremost, we need to keep people aware of their responsibilities and/or risk during this sometimes treacherous season.  Stay safe!

Thanks for reading,

Jim

_________________________________________
James B. Reed, Esq.
NY Fall and Injury Lawyer
Ziff Law Firm, LLP
303 William St., Elmira, NY 14902
Tel. (607) 733-8866 Fax. (607) 732-6062
Toll Free 1-800-943-3529
mailto:jreed@zifflaw.com http://www.zifflaw.com
E-mail me at FreeReports@zifflaw.com for two free books:

NY Car Accidents and NY Car Insurance Secrets YOU Need to Know.

In the aftermath of a NY auto accident you may think a lawsuit is the best means of achieving justice and receiving just compensation. Don’t be shocked to hear this from a lawyer, but there may be some compelling reasons NOT to bring a lawsuit.

I’ve been receiving the New York Injury Times online newsletter by Gerald M. Oginski, an experienced accident attorney practicing in the New York City area. Gerald has some great advice and he’s given his permission for me to repost a recent article from Gerald Oginski’s Blog. Be sure to visit www.oginski-law.com to read more of Gerald’s excellent advice on the topic or to request a copy of his book, “Secrets of a New York Medical Malpractice Lawyer.”

‘7 Reasons You May Not Want to Sue’

- by Gerald M. Oginski (originally posted at www.oginski-law.com)

If you were involved in a car accident, there’s an excellent chance that you would bring a lawsuit against the driver of the car that hit you. In this article, I explain 7 reasons why you may not want to bring a lawsuit if you were involved in a car accident:

1. You were not injured. You’d think this was self-explanatory, but it’s not. There are two types of claims you can bring in an auto accident. The first is a property damage claim for the damage to your car. The second is a personal injury claim which would be for the physical injuries you suffered, the medical expenses, your past and future pain and suffering, as well as lost wages and potential lost future wages.

2. Your friends will think you are greedy. Some people feel that the only reason to bring a lawsuit is because you are looking to “make money” off the system, and why not? It’s only the insurance company’s money. Other people don’t look at their injuries as a way to make money. They’d rather go to work and earn money the old-fashioned way by working for their income.

During a trial, a good trial lawyer can make the following argument when asking a jury to understand what his client went through and why he’s entitled to compensation:

Let’s suppose that this morning Mr. Jones put an ad in the newspaper and said he’d give away one million dollars, for free! Just show up at his door, and the first one there will get it. No questions asked. How many people do you think would sprint out their door and race to be the first one in line? Thousands of people would try. But …what if you placed certain conditions on getting that $1,000,000 dollars?

Let’s say now that the ad said that in order to get that one million dollars you had to be involved in a horrific head-on collision that ejected you from the car and you landed 30 feet from the car. How many people do you think would still be waiting on that line? A lot less than started. But what if the ad went further, and said that before you could get that money, you not only had to be involved in this terrible car accident, but you had to have suffered a fractured pelvis, shattered both of your femurs (the largest bone in your body – they’re the thigh bones) had to be placed on a respirator for 20 days, intentionally put into a medically-induced coma for 10 days, and had major reconstructive surgery to fix the broken bones. How many people do you think would still be standing on that line? Not very many, but maybe one or two very desperate souls.

What if we added a few more conditions on to that advertisement, so that in order to get that “free” million dollars, you had to learn how to walk all over again, you had to spend three months in a rehabilitation center, and had to have two more surgeries to fix complications and infections that happened from the original surgery. Then on top of that, explain that their daily activities would have to be forever changed and they could not play sports, run, jog, ski, play basketball, football and everything they liked to do before the accident. How many people do you think would still be standing at the door seeking that “free” million dollars? Nobody.

That’s what a good trial attorney tries to explain to a jury in a significant accident case. The money will help pay for medical bills and modifications to their home to ambulate. It will provide a safety net for the injured victim and their family. Anyone who thinks a seriously injured car accident victim is suing because they’re greedy should read this article. In addition, they should spend at least one day in a victim’s home watching them struggle with daily activities such as tying their shoes or buttoning their shirt. Only by showing someone the tremendous hardships you face will they realize how important it is to obtain full compensation for your injuries.

3. What good will the money do you? This is a famous defense attorney line. This is used during negotiations, and also used during summations. “Plaintiff’s attorney is asking for millions for his client. Think about this … what good will the money do him? He can’t use it. His medical expenses … sure, give it to him, he deserves it. But the millions he’s asking for? No way. His injuries prevent him from going out and spending such huge exorbitant amounts of money.

The reply to this argument is not what you think. As much as you’d like to shake some sense into the defense lawyer, this is a better approach. “Look, your client created the problems that my client suffered. He didn’t do anything to create this accident or his injuries that stem from this accident. My client has incurred medical expenses in the thousands of dollars. Who is going to pay for those expenses? Should he, or his insurance company, have to foot the bill for your client’s wrongdoing? I don’t think so. That only covers his medical expenses in the past. What about future medical expenses that he’s sure to have? You’ve got to cover that as well.

This doesn’t even begin to address the compensation that he’s entitled to for the suffering he’s endured from the time of the accident until today. Don’t forget about the future suffering he’ll have from his injuries and medical care he’s going to need to treat his ongoing problems. This is known as past and future pain and suffering. Thankfully for injured victims in New York, there is no cap on pain and suffering awards.

To answer the question above … it will do a lot for the injured victim and their family.

4. You don’t know a good New York lawyer anyway. If you don’t know a good lawyer, you should keep looking. There are many ways to find a good attorney. Importantly, you want an attorney who has handled many cases just like yours. You want someone with experience. The question of whether you want a big New York City firm, a small firm, or even a solo practitioner is simply a matter of personal preference. Keep in mind that whomever you choose, you must feel comfortable with him or her. Always ask, “Who is going to be handling your case day to day?” “Who will be appearing on your conferences with the Court?” “Who will appear at your deposition, and the depositions of the people you have sued?” “Who will be trying my case if it goes to trial?”

If you don’t mind many different attorneys handling different parts of your case, then you should have no problem going to a large firm.  If you want the same attorney to handle your case from beginning to end, you may want a small firm or experienced solo practitioner.

5. The chances of you recovering money are not good unless you have a significant injury. That may be true. If you have a minor injury, then your compensation will likely be minimal. If your injuries are significant, the compensation you may be entitled to may also be significant. Each case will differ. The answer also depends on where your case is venued – that is, which court it’s in. Is it in the Bronx or Brooklyn? Or is it in Westchester or upstate Albany?

If you don’t have any injury, or the injury was minimal, your case may be dismissed without ever getting to trial. Your injuries may not meet the “threshold” that is needed to continue your case. There are specific guidelines relating to the type of injury you must have to bring a case in the Supreme Court of the State of New York – which by the way, is the trial-level court.

6. The driver of the car that hit you will not like you if you sue him. My response is “So what?” Why would you care about what the other driver thought? You shouldn’t. The other driver was careless and his carelessness caused you permanent injury. If you want to live your life worried about what other people think, then you should re-think what you do on a daily basis.

A decision to sue someone isn’t about whether you’re popular or whether someone will or will not like you. It’s about your fundamental right to be repaid something that is owed to you. When a wrongdoer causes harm, he becomes obligated to pay you for your harm and the disability that he has caused. That’s an obligation we as a society recognize, not just in New York, but throughout the United States.

7. Your picture might appear in the newspaper. In most accident cases in New York your picture will not appear in the newspaper. Most cases are not deemed “newsworthy” by the local newspapers. They’re a common occurrence and unless it’s an extremely slow news day, or there’s something unusual about your particular case, it is unlikely your picture or your case will get any mention in the newspapers.

Conclusion

After reading this article you should have a better understanding of whether you should or should not bring a lawsuit if you’ve been injured in a car accident in the State of New York.

Thanks for reading, and thanks to Gerald for allowing the NY Injury Law Blog to post his advice!

- Jim
_________________________________________
James B. Reed, Esq.
Personal Injury & Malpractice Attorney
Ziff Law Firm, LLP
303 William St., Elmira, NY 14902
Tel. (607) 733-8866 Fax. (607) 732-6062
Toll Free 1-800-943-3529
mailto:jreed@zifflaw.com http://www.zifflaw.com

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Utica’s Observer-Dispatch newspaper recently posted a Guest View column titled “Tort Reform: Make Negligence Behavior Focus.”

I wholeheartedly agree with this Guest View. Rather than blaming the lawyers for the fictitious “lawsuit crisis,” why don’t we blame the true culprit — the parties responsible for injuring innocent people.

The doctors and hospitals that commit malpractice injuring more than 98,000 people a year…

The nursing homes who neglect their elderly patients…

The drunk drivers who maim and kill hundreds of thousands people each year…

You get the picture. I’ve reposted a copy of the column below:

“Tort Reform: Make Negligence Behavior Focus”

(Observer-Dispatch, Utica, 12/13/09)

In Washington, President Obama has said he would be open to suggestions about constraining lawsuits by victims of medical malpractice – and insurance companies and medical organizations are making their case.

In Albany, buttressed by so-called “research,” business advocates are launching their own campaign to insulate negligent entities from having to compensate those they injure.

Lawyers and lawsuits have been attacked politically for years, but in reality, civil lawsuits shine a spotlight on wrongdoing, call the offenders to account, deter future misbehavior and provide justice for people who have been hurt.

Repeated studies have shown that approximately 100,000 people die each year due to medical malpractice in our nation’s hospitals. These are not simply bad outcomes that were unavoidable; they are instances where physicians or hospitals failed to meet the normal standard of care – where other physicians deemed the damage done to have been avoidable.

If a hospital, for example, allows an expectant mother to lie in one of its labor rooms, fails to notice for several hours that the fetal monitor shows the fetus in distress, and the child is born severely brain damaged, should that institution be protected from a lawsuit? How is that family going to pay for a lifetime of care for their child? What incentive is that hospital going to have to correct its procedures to prevent such an incident from ever happening again?

State authorities normally don’t have the power to impose more than minor sanctions in cases like this. The one avenue that leads to a fair outcome is a lawsuit. That family should not be told there is an arbitrary cap on the amount of damages they can receive. They should have the right to have their case heard and decided by a judge and jury in an open courtroom.

This is not a new debate. No one likes to be sued and companies, hospitals and insurers have argued for years that lawsuits should be curbed. They point to a few cases where courts awarded large sums to injured parties. But they ignore some key facts:

The “lawsuit explosion” is a myth. In fact, the opposite is true. The number of tort filings in New York state actually decreased by 30 percent from 1998 to 2008. The total number of tort cases filed was down from 81,952 to 57,023.

These cases often take years to come to a conclusion. Lawyers working for contingency fees don’t get paid unless they win. It would be ludicrous for someone in that position to file a frivolous lawsuit.

There are checks and balances in the system. If someone files a frivolous lawsuit, a judge can sanction the lawyer for doing so and dismiss the case. If a jury awards too large an amount, a judge can reduce it. If the losing side disagrees with the result, they can appeal.

It’s easy to see the benefits to the individuals involved and to our society of these lawsuits.

Companies that have polluted the environment have been deterred by members of communities who have filed lawsuits. Automakers that have sold unsafe cars have been deterred by lawsuits. Manufacturers of items ranging from garage door openers to children’s toys have adhered to higher safety standards after lawsuits showed their products to be defective.

Usually, the people who bring these lawsuits are not people of means. They have no way of fighting back except through our court system. And without lawyers who were willing to work on a contingency fee basis, they would never be able to sustain an action against these deep-pocketed entities.

Anyone who wants to reduce the number of lawsuits should focus on reducing the type of negligent behavior that harms people and causes them to sue. Ignoring the underlying causes and simply blaming the victims and their lawyers for suing undermines an important safeguard that our civil justice system provides to all our citizens.

- Michael E. Getnick, a founding member of the Utica law firm Getnick Livingston Atkinson & Priore LLP, is president of the New York State Bar Association.

Thanks for reading,

Jim

_________________________________
James B. Reed
NY & PA Injury & Malpractice Lawyer
Ziff Law Firm, LLP
Mailto: jreed@zifflaw.com
Office: (607)733-8866
Toll-Free: 800-ZIFFLAW (943-3529)
Web: www.zifflaw.com

Blogs: NYInjuryLawBlog.com and NYBikeAccidentBlog.com

For the past two years I have been litigating a medical malpractice case involving a woman who was catastrophically injured at a hospital in Northern Pennsylvania when her surgeon cut the wrong part of her anatomy during a routine procedure.  The case is seated in Federal Court in the Western District of New York because the woman is a resident of New York and the hospital is located in Pennsylvania.  Under the rules governing diversity jurisdiction — a situation where the parties reside or are domiciled in different states — the Federal Court is required to apply Pennsylvania law to the action.

The case is still being litigated, and therefore I will not divulge the details of the woman’s injuries or how the injury occurred.  In fact, the interesting part of the case for now does not involve the malpractice itself, but rather the defendants’ primary defense to it.

Throughout the litigation the defendants have relied upon a principle called the “Error in Judgment” rule.  Under this principle, a surgeon could be excused for his negligence by claiming that although in retrospect it appears he made errors during a procedure, he used his best judgment at the time and therefore did not violate the standard of care.  The main problem with the defense for injured people is that it theoretically excuses medical providers for all but intentional conduct, leaving plaintiffs with little recourse.

However, it appears the days when a surgeon can argue “I thought I did it right at the time and therefore am not to blame” are over, at least in Pennsylvania.  In August, Pennsylvania’s Superior Court handed down a ruling in Pringle v. Rapaport, 2009 Pa. Super. LEXIS 3267 (2009) where it held the “Error in Judgment” is inconstant with Pennsylvania law.

Pringle is a medical malpractice case involving a child who suffered extensive nerve damage in his neck as a result of shoulder dystocia, a condition in which an infant’s shoulder is stuck behind his mother’s pubic bone at the time of delivery.  The child’s parents sued the delivery physician, claiming the physician negligently executed a maneuver (the “corkscrew maneuver”) to dislodge the child’s shoulder, resulting in injury.  The parties agreed the physician correctly diagnosed the child with shoulder dystocia and appropriately chose to administer the corkscrew maneuver.  The only remaining issue was whether the physician properly executed the maneuver.  At trial, the Court instructed the jury, inter alia, physicians “are not liable for a mere mistake in judgment”.  Id. at 1-4.

On appeal, the Superior Court – after addressing several seminal Pennsylvania cases dealing with the “Error in Judgment” charge – held the question of whether a physician exercised sound judgment is not relevant to whether the surgeon committed malpractice.  Id. at 40-42.  Indeed, the Court further reasoned the “Error of Judgment” charge “is inherently confusing and has no place in medical malpractice cases” for at least two reasons:

• “[I]t wrongly suggests to the jury that a physician is not culpable for one type of negligence – the negligent exercise of his or her own judgment”; and

• “[I]t wrongly injects a subjective element into the jury’s deliberations”…and may lead the jury “to conclude that only judgments made in bad faith are culpable – even though a doctor’s subjective intentions while rendering treatment are likewise irrelevant to the issues placed before a jury in a medical malpractice action.”

This is very good news for people who suffer injuries due to medical malpractice in Pennsylvania, and will hopefully result in greater safety and caution in hospitals.

Thanks for reading!

Christina Bruner Sonsire, Esq.