Central New York Injury Lawyer Blog

Syracuse New York medical malpractice, like medical malpractice everywhere, is by definition avoidable. And any new medical procedure or device that helps avoid such errors is a godsend --- especially to the patient who, thanks to the new procedure or device, avoids becoming one of the many victims of medical malpractice.

A new Syracuse-area invention may pave the way for a significant reduction in Syracuse medical malpractice claims, and eventually medical malpractice claims elsewhere. The Syracuse Post Standard reports that Welch Allyn, a Skaneateles-based manufacturer of medical equipment, has brought to market its "electronic vitals documentation system", which does the work of three machines, by recording (1) oxygen levels, (2) temperature and (3) blood pressure. These vital signs are then automatically stored into the device's computer, where they can be instantly viewed by other medical personnel from their Blackberries or computers.

This machine avoids the possibility of human error because no one has to handwrite or type the vital signs --- the machine automatically records them. Currently, many medical errors occur when nurses or medical professionals handwrite the vitals data incorrectly (or illegibly) on a piece of paper, and then later type the wrong numbers into the computer. Such errors can lead to serious consequences for the patient, including death.

The new three-in-one vitals documentation machine is already being used at Syracuse's St. Joseph's hospital. It could one day become the norm in hospitals throughout the world.

Any medical invention that reduces the opportunity for medical mistakes is welcome news for patients and doctors. The Syracuse medical malpractice attorneys at Michaels & Smolak applaud Welch Allyn for this life-saving invention.

There are many common misperceptions about New York personal injury lawsuits. I will be discussing these in my blog posts over the next few days. One of the most common mistaken ideas is that if you "are almost killed" by someone's negligence, you must have a case. This is usually wrong. Usually, when a client says to me "I almost died in that accident", my response is, "then you ALMOST had a case"! Let me explain by way of examples.

Let's say you were the victim of a medical mistake during surgery. Your rushed surgeon inadvertently and unknowingly cut an artery and, as a result, you bled internally for quite a while before anyone at that hospital realized it. As you were on death's door, they figured it out, opened you up, and stymied the bleeding. End result: You spent and extra week in the hospital, but otherwise suffered no additional harm.

You call up a Central New York medical malpractice lawyer (hopefully this one!) and tell him you want to bring a New York medical malpractice lawsuit. You are angry that the doctor was so careless that he almost killed you. Besides, he never even apologized! Do you have a case? No, at least not one worth bringing. In New York (and in every other State as far as I know), "almost dying" because of medical malpractice or other negligence is not worth a dime in court, or in settlement. You are only allowed compensation for what you ACTUALLY SUFFERED, not for what you "almost" suffered. Since you were completely unaware you were "dying" at the time, you did not suffer even from the fear of death, much less from death itself.

Now let's take another example. Let's say you are on a motorcycle and a tractor trailer tries to pass another car as it comes straight at you. The last thing you remember before waking up in the hospital is the terror, the pure animal fear, of death. Now, is that worth something in court?

Yes. Fear is a type of emotional suffering that is, in fact, compensable in New York (and in all other states as far as I know) if accompanied by physical harm. But it is worth a lot less than you might think. Most juries won't give much for fear. They prefer to compensate injuries they can actually SEE (and they will probably have plenty to see in a tractor-trailer-motorcycle crash case like this one).

There is at least one type of case where juries are sometimes very generous in compensating fear of death. That is where you actually die, but had no or little other suffering before death other than fear. In car crash cases, New York personal injury lawyers call this a "pre-impact terror" case. In the motorcycle example above, if you had never woken up, a jury might give your surviving family a lot of money for your "pre-impact terror". Why? Because you experienced no other pain or suffering, and they sure want to give your family something for what you went through.

So remember, if you "almost died", and are not otherwise injured, you probably have no case. But you have something much more valuable. Your life! So count your blessings.

New York Medical malpractice cases, like medical malpractice cases everywhere, are tough. Juries like doctors. They feel sorry for doctors who are sued. They don't want to tell physicians they were "negligent". Doctors' insurance company lawyers fight like hell to disparage the patient in front of the jury, to make the patient seem untrustworthy, and to paint their client-doctor as a helpless, honest victim of a greedy medical malpractice lawyer. These strategies sometimes work. Even when juries think a doctor made a mistake, or was careless, they sometimes refuse to find them liable for the injuries they carelessly caused. They justify such verdicts by saying to themselves things like, "gee, that doctor didn't MEAN to hurt the patient". Statistically, the doctor beats the patient in most New York medical malpractice lawsuits that go trial.

So when a New York medical malpractice lawyer brings a medical malpractice lawsuit all the way to trial, and wins, it is cause for celebration (not for the doctor or her insurance carrier, of course, but for the patient and her lawyer).

Today we celebrate the victory of our friends and fellow Syracuse medical malpractice attorneys David Howe and Michael Porter who, on May 7, won for their client a thumbs-up verdict in a Syracuse medical malpractice lawsuit. The patient's surgeon had committed malpractice by negligently severing nerves in her ankles during a tarsal tunnel syndrome surgery several years ago. This caused significant limitation in her ability to move her feet, as well as permanent and severe pain to her feet and ankles, and eventually caused her to lose her job. The Syracuse jury awarded the patient $678,000 in compensation.

Our hats go off to Syracuse medical malpractice lawyers Michael Porter and David Howe.

There is good news for open-heart surgery patients in Syracuse, New York: New York State's Health Department reported this week that Syracuse's Upstate (SUNY) Hospital's death rate for open-heart surgery has dramatically improved: In 2005 SUNY Hospital had one of the highest death rates for open-hear surgery in New York State, with a death rate of 5.34%, but by 2007 it had one of the lowest. The rate now is .5 %, or one in 200 deaths, the third lowest out of 40 New York State hospitals. The average was just under 2%. St Joseph's Hospital Health Center, the only other Central New York hospital where open-heart surgery is performed, had a rate of 2.27 %, just above average.

Upstate officials claim the improved death rate is due to, among other things, a renewed focus on quality and safety. Those improvements must be applauded. Medical malpractice is, unfortunately, rampant throughout the United States, including in New York State, and including at fine hospitals such as Syracuse's SUNY. We know. We took a more than $2.5 million Syracuse New York medical malpractice verdict against SUNY two years ago for its malpractice of a Parkinson's patient. SUNY Hospital's medical malpractice paralyzed and brain-damaged our elderly client. How? The Hospital's surgeon had performed the delicate brain surgery using poorly maintained brain surgery instrument that malfunctioned during the surgery.

Harvard researchers have conducted samples showing that as many as 1% of patients treated in New York State hospitals, such as SUNY, are injured, and of those, one fourth die, as a result of medical mistakes. One in a hundred needless injuries, including one in four hundred needless deaths, might not seem like a lot to some, but to us it seems unacceptable. Remember, we are talking about NEEDLESS deaths and injuries. And all that is needed to prevent them is a system that focuses on avoiding mistakes. For example the case where we got a $2.5 million verdict against Upstate Hospital for medical malpractice, all that was needed to avoid the medical malpractice was a system of checking and double checking for proper equipment maintenance.

So our hats go off to Upstate Hospital. For its patients' sake, we desire continued improvements in death rates, declines in medical malpractice injuries and deaths, and fewer Syracuse medical malpractice claims.

The other day a fellow Central New York injury lawyer congratulated me on a recent Court victory I had, which changed the law throughout New York State, and helped him, and other New York personal injury and medical malpractice lawyers, better represent their clients. The case he was referring to was Thompson v Mather, which I have already blogged about. He pointed out to me that this was the second time he had seen me change the law for the better in New York State by winning a key appellate argument for New York personal injury and medical malpractice victims. He remembered that I had, a few years ago, stopped no-fault insurance companies from denying coverage for medical bills when the insured had reached "maximum medical improvement" in a case called Hobby v CNA. The lawyer wanted to know how I was able to effect such big changes in the law with my cases.

My response was simple: I read the statutes. And I read them carefully. And I read them over and over again, word for word, looking for hidden or perhaps even obvious meanings that everyone else has been overlooking. In both cases this lawyer was referring to, all the case law generated by other lawyers had overlooked the fact that the controlling statutes just did not allow insurance companies to do what they had been doing. In Thompson v Mather, the statute, CPLR 3113, when read carefully, just did not allow a non-party witness to bring in a lawyer (usually an insurance company lawyer) to object to questioning at a deposition. It said that deposition questioning was to proceed just like at trial, and at trial non-party witnesses' lawyers can't object or talk at all. And in Hobby v CNA, the statute at issue, New York Insurance Law 5102, just did not allow a no-fault insurance carrier to cut off an insured's medical treatment based on a finding of "maximum medical improvement". It only allowed them to cut an insured off if the treatment was not "reasonable and necessary", which is not quite the same thing.

So while other lawyers had, for decades, overlooked these nuances, and just assumed that the common practice of insurance carriers and other lawyers comported with the law, I actually READ THE LAW, and found out that everyone else was wrong!

Moral of the story to other lawyers: If you have a legal issue that hinges on a statute, READ THE STATUTE, not once, not twice, but many times. Read the bill jackets and other legislative history of the statute as well, and really think hard about what it means. You just might change the way things are done, for the better of your New York personal injury and medical malpractice clients!

"Help, this woman is bleeding to death! Is there a doctor in the house?"

But no doctor intervened, and poor Diane McCabe died a slow death. In fact, it took her 15 hours to bleed to death. Why couldn't they stop the bleeding? Was she in some remote location with no access to a hospital? Nope. In fact she bled to death in an Albany Medical Center Hospital in New York State where she had undergone a C-section. After the surgeon finished the Cesarean procedure, and stitched McCabe back up, he left to attend to other patients. A physician attending to McCabe then called him several times to report that McCabe appeared to be bleeding internally, and asked the surgeon to open her back up. Despite these calls to action, the surgeon refused to intervene until it was too late. McCabe had lost too much blood.

Diane McCabe's family settled her Albany New York medical malpractice claim last week for $5.2M against the (ir)responsible surgeon and Albany Medical Center Hospital. Since Diane left behind two small children and a grieving husband, this does not seem like too much money. In fact, it seems a little light. But her family got something much more important than money to them, something very unusual in an upstate New York medical malpractice case (or in any malpractice case anywhere): They got the Hospital to agree to implement safety improvements to make it unlikely the same thing would happen again. And they got the Hospital to agree to fund, for the next 20 years, a Diane McCabe Memorial Quality (patient safety) Lecture series. In other words, they got what amounts to an apology, some remorse, and some assurance that the Hospital would learn from its mistake.

Many victims of New York medical malpractice or their grieving family members have told us over the years, "all I want is for them to admit they made a mistake, and to apologize". Our answer always disappoints them: "You can't sue for that". It's true. No law allows a judge to force a malpracticing doctor or hospital to apologize or to agree to change their behavior. All the law allows for is monetary compensation, i.e., money, to the victim, or in the case of a New York medical malpractice wrongful death lawsuit, to the victim's family. In this case, the Hospital agreed to do in settlement what a Court could never have forced it to do in Court.

Michaels & Smolak sends its congratulations to Diane McCabe's brave family, to their lawyer, John Powers, and, yes, even to the Albany Medical Center Hospital for finally agreeing to do what so many malpracticing doctors and hospitals refuse to do: Accept blame.

When Floridian Beth Hippely was diagnosed with breast cancer, and needed a blood thinner to fight it, she walked into Walgreens with her prescription. A teenage, unlicensed pharmacy technician, who Walgreens had recently hired, happened to be filling prescriptions that day. She accidently gave Hippely a dosage 10 times stronger than what she had been prescribed.

The mistaken drug overdose killed Hippley, but she did not "go gently into that good night". The medication error caused her first to suffer a cerebral hemorrhage (a "brain bleed"), which in turn caused her to become imprisoned in her own body in a condition known as "locked-in" state. She lived as a head-on-a-pillow, conscious but unable to communicate with the outside world except by using eye movements (one blink for "yes", two for "no"). Because of her weakened condition, she was unable to undergo chemotherapy to fight her cancer, and died of it, after a long, painful struggle.

Hippley's family (husband and three children) won a $33.3 million verdict in their prescription error wrongful death lawsuit. Walgreens appealed the jury verdict, but last month a Florida court of appeals upheld it.

Why was the Beth Hippely verdict so high? In part, I believe, it is because Walgreen's "blame the victim" defense backfired. Instead of sucking it up and taking responsibility for its error, Walgreens' trial strategy was to blame Beth Hippley's physicians, and even the victim herself, for the overdose! They claimed SHE should have caught the mistake. She should have checked the prescription against the dosage she was given. In other words, she should not have trusted Walgreens, the self-proclaimed "Pharmacy America Trusts", to do its job right!

I have blogged about this "blame the victim" defense before, and while it can sometimes work, it just as often backfires. Let's face it; anyone can make a mistake. But the jury obviously got angry at Walgreen for failing to shoulder its responsibility, and especially for blaming boor Beth Hippely, who, by the time of trial, had succumbed to her long, unbelievably painful struggle, and had left a grieving husband and two small children behind.

Most medication errors can be avoided by simple, solid, procedures and rules for double-checking the prescriptions against the medication and dosage being given to the patient. When such procedures are put into place, and enforced, medication errors are drastically reduced. When a pharmacist or technician makes a prescription mistake, whether by giving the wrong dosage or the wrong medication, the drug store is liable not only because its employee made a mistake, but also because the pharmacy itself failed to implement proper procedures and rules for double-checking the dosage and medication.

Suing pharmacies for medication errors is the right thing to do; these lawsuits provide economic incentive for drug stores to put in place, and enforce, safe drug dispensing practices.

Lawyers who handle nursing home neglect, negligence and abuse cases in the Syracuse and Central New York area are never surprised to see local nursing homes cited and fined for serious deficiencies. In fact, what is surprising is that more fines and citations are not issued. Bad conditions in nursing homes are pandemic, not only here in Central New York, but all across the United States.

So we at Michaels & Smolak were not surprised to read in yesterday's Post-Standard that three Syracuse-area nursing homes were recently fined for serious deficiencies that harmed patients. And for at least two of them, this was not the first time. The three nursing homes, and their wrongdoings, are:

St. Camillus Health & Rehabilitation Center in Geddes, cited and fined for serving a regular meal to a resident who was supposed to get pureed food. The resident choked, was hospitalized and subsequently died.

Rosewood Heights nursing home at 614 S. Crouse Ave. in Syracuse, cited and fined for failure of its nurses to wash hands, change gloves and take other infection control precautions and because staff members were not administering insulin injections correctly.

Central Park Rehabilitation and Nursing Center, 116 E. Castle St., Syracuse, cited and fined for failing to prevent residents from being exposed to a patient with a suspected case of active tuberculosis.

There are more than 34 million Americans over the age of 65, and approximately 40% of them live in nursing homes or other long-term care facilities. With an aging population that lives longer thanks to modern medicine, nursing homes have become a necessity for many. But nursing home negligence, malpractice, neglect and abuse are never a "necessity", rather, they are a shameful reality.

What causes nursing home abuse and neglect? In a word, "greed". Nursing home owners too often put profit before the well-being of their charges. They cut corners to shed costs to maximize profit. They can get away with this because their "customers" are too frail, frightened or disabled to complain.

Experts say that most abuse goes unreported because many seniors are physically or mentally unable to report it. Sometimes they are terrified of receiving even worse treatment if they report abuse or neglect.

How can you tell whether your elderly parent or grandparent is being neglected, abused, mistreated or is the victim of nursing home malpractice? Some signs and symptoms of abuse and neglect are: unexplained injuries, bruises, cuts, broken bones, torn clothing, bleeding, malnourishment, dehydration, and fear.

If you suspect an elderly relative in a nursing home is the victim of neglect, abuse or nursing home medical malpractice, call a nursing home neglect and medical malpractice lawyer to discuss your suspicions.

I recently had a win at an appellate court in Rochester, New York, (Thompson v Mather) that has been the subject of chatter within the New York medical malpractice lawyer blogosphere, and even made an entry on one of our nation's top legal blogs, Eric Turkewitz' New York Personal Injury Law Blog. If Turkowitz found my appellate win fit to blog about, I figured I should blog about it myself. So here's the real scoop, from the horse's mouth:

My partner, Lee Michaels, sued a doctor for medical malpractice, and needed to take the deposition of his client's treating cardiologist (whom Lee had NOT sued) because that doctor had information Lee needed to prove his client's injuries. Lee scheduled a video-taped deposition (a deposition to be used at trial in lieu of live testimony) of the doctor-witness in our law office in Auburn, New York.

Lo and behold, the doc witness shows up with a medical malpractice defense lawyer, even though he had not been sued, and was just a witness. Not unusual. Now-a-days, many malpractice insurers require their insured doctors to notify them when they are subpoenaed as a witness in a medical malpractice case, and then send a lawyer with the doc to the deposition.

But this was not just any lawyer. It was an obstructionist lawyer. The lawyer was objecting up and down to many of my partner's questions. She was making it very difficult for Lee to get a nice flow of testimony. She was even suggesting, by her objections, the answers the doctor should be giving.

Lee had enough of that, called the deposition off, and asked me to bring a motion to, well, shut the doc's insurance lawyer up. I researched the issue, and found absolutely no New York cases that talked about what a lawyer for a non-party witness could and could not do or say at a deposition. I found a statute, however, CPLR 3113, that seemed promising. Essentially it said that examination and cross-examination at depositions must proceed just like they would at trial. I thought about this. Hmm . . . at trial, a non-party witness has no right to "lawyer up", so why should he have that right at deposition?

I brought this argument to the judge, but he did not buy my argument --- and instead ruled that Lee's client had to either release the witness-doctor from liability for any malpractice he might ever have committed on her, or else Lee would just have to call the doctor to trial for live testimony instead of taking his video-taped deposition for use at trial.

I appealed and, guess what? The appellate court in Rochester agreed with me. Those guys up in Rochester sure know how to read a statute! The Court specifically held that Lee was entitled to take the videotaped deposition of his client's cardiologist and that the doc's insurer-provided lawyer was barred from objecting or otherwise participating in the deposition. Moreover, the appellate Court seemed pretty miffed at the trial judge for trying to force our client to sign a release in favor of the testifying doctor in exchange for allowing the deposition to proceed. The Court found that placing such a condition on the doctor's duty to testify at deposition was "repugnant to the fundamental obligation of every citizen to participate in our civil trial courts and to provide truthful trial testimony when called to the witness stand." Holy Cow! You can almost see the American flags waving in the background of that sentence!

So there you have it, the story from the horse's mouth.

I can think of few laws as unfair as "damages cap" laws. For those readers unfamiliar with this concept, let me explain. A "damages-cap" law essentially says that, in a personal injury or medical malpractice lawsuit, the injured plaintiff is limited to a certain amount of compensation for his or her "non-economic" damages, no matter how devastating the injury. "Non-economic damages" essentially means compensation for pain and suffering and loss of enjoyment of life.

The unfairness of damages caps can best be shown by way of example:

Patient A undergoes neck surgery, his surgeon commits medical malpractice, he ends up with moderate but permanent pain running down both arms. Full and fair compensation for this annoying, painful sensation for a lifetime is about $500,000. Patient A goes to court, the jury awards him $500,000, and he gets it. He is fully and fairly compensated for his injury.

Patient B undergoes the same operation, the surgeon commits medical malpractice, but this time renders the patient QUADRIPLEGIC. Patient B is now nothing but a head on a pillow for the rest of his life. Patient B goes to court, the jury says he should get $3,000,000, but the judge says, "sorry, the medical malpractice damages cap law requires me to reduce this verdict to $500,000, which is the maximum allowable, no matter what the injury".

So the guy with the less serious injury gets full and fair compensation for his injury, while the guy with the devastating, catastrophic injury gets pennies-on-the-dollar for his injury. Sound fair? Of course not.

The Illinois Supreme Court doesn't think it's fair either. Just this week, in Lebron v. Gottlieb Memorial Hospital, the Court overturned the State of Illinois' landmark 2005 "Medical Malpractice Reform Law", which featured a $500,000 cap on medical malpractice pain-and-suffering damages. The Court ruled the law unconstitutional because it violated the principle of "separation of powers". In other words, the LEGISLATIVE branch of government should mind its own business and not tell the JUDICIAL branch of government how much it can award for pain and suffering in court.

This is a big win for trial lawyers and patients' rights advocates, and a black eye for tort-reformers.

I hate damages caps because I love justice. Damages caps are unfair because they disproportionately impact those who have suffered the worst injuries. Why should only the catastrophically injured "pay" for tort reform?

Several courts around the United States agree with me. They have tossed out such laws, either because they violate the separation of powers, or because they deny citizens the right to a fair jury trial, or because they violate equal protection principles.

Fortunately, New York State has never adopted damages caps, though the insurance industry has had its cronies in Albany propose such laws. Let's hope our legislature never passes such a law and, if it does, that New York courts would have the guts to strike them down as unconstitutional.

A New York Times article today, written by two fourth-year Harvard Medical School students, describes the frightening pervasiveness of medical malpractice in the United States, and the medical profession's seemingly incorrigible habit of turning a blind eye to it. In my blog post today I will extract the article's pearls of wisdom, and hand them to you, my reader. If you want the full oyster, shell and all, I highly recommend the full article.

The authors start by summarizing some of the more alarming studies that have catapulted medical malpractice to the headlines in recent years, including the famous (or infamous) Institute of Medicine Report in 1999 estimating that medical errors kill as many as 98,000 people a year, and a more recent New England Journal of Medicine study with similar findings.

Most interesting, though, was the authors' discussion of recent polls of medical students regarding their experience with medical malpractice. Surprisingly, a poll of third-year students revealed that most students had already witnessed medical errors (and they aren't even doctors yet!) or had committed errors themselves, but did not know what to do about it, who to report it to, or how to handle it. The system just wasn't set up to admit, explore, or learn from medical error.

According to the two authors, the message that medical malpractice is out of control has not hit home. In a recent survey of some 391 medical students, four out of five opined that medical school had only, at best, provided a "fair" emphasis on patient safety and quality improvement. According to one medical school professor, there was "still some debate" about how and when to teach patient safety! (I've got an idea --- how about from day one!)

The medical establishment needs to find a cure to its own blindness, and these young docs just might provide it with a much needed shot in the arm. As fresh-faced, idealistic neophytes to the profession, these authors are positioned to rattle the smug, old-school, doctors-can-do-no-wrong mentality of the medical profession. But here's how we can really tell whether they stand a chance: How were they received by their colleagues, professors, and senior physicians after this article hit the press? Were they ostracized for "outing" medical malpractice secrets, or were they greeted as dragon-slaying heroes? Hate to say it - but I suspect it was the former.

Today Community General Hospital in Syracuse, New York, opened its new $7.6 million orthopedics unit. The new unit, located on the hospital's sixth floor, will care for patients recuperating from knee, hip (including hip and knee replacements) and spine surgery. The Hospital's old orthopedics unit on the fourth floor provided insufficient space, as the orthopedic surgery practice has grown. The new, modern facility will provide better care and may even reduce orthopedic medical malpractice lawsuits. Outgrown, overcrowded surgical recovery units are breeding grounds for medical malpractice lawsuits.

The new unit is timely. We are going to need more, better, and larger orthopedic units in the future. One big area of growth in the orthopedic surgery field is joint replacement, especially knee and hip replacements. To demonstrate this growth, let's just look at knee replacements. In 2006, 59,077 people between the ages of 45 and 54 had knee replacements. But experts predict that, by the year 2030, that number will have increased to almost 1 million, nearly 17 times as many! Similar statistics are available for hip replacements.

Why this increase? Three facts are driving the trend: (1) Joint replacements are more successful than before, and thus attract more patients. New technology allows the artificial parts to withstand more stress and strain; (2) Seniors are more active, and need those hips and knees to work for them; and (3) There are more and more obese people, which triggers earlier and greater arthritis and other orthopedic problems.

Kudos to Community General Hospital for building this new unit to meet Central New Yorkers' ever increasing orthopedic surgery needs.

New York medical malpractice attorneys,, like medical malpractice lawyers all over the U.S., are often blamed for high health care costs and other woes. But are they really to blame? No! This past November 2009, the American Association of Justice (AAJ) published a bulletin titled "Five Myths about Medical Malpractice". It debunks, with hard statistics gathered by non-biased agencies, all the "medical malpractice myths" spouted out by the insurance industry and doctors' PAC groups. Here is a summary of AAJ's "Medical Malpractice Myths" bulletin:

MYTH #1: THERE ARE TOO MANY "FRIVOLOUS" MALPRACTICE LAWSUITS
Far from it. In fact there are hundreds of thousands of the medical malpractice victims each year, but very few medical malpractice lawsuits. 98,000 people die in hospitals each year from preventable medical mistakes, but only a small fraction of the families sue.. Many more suffer non-fatal injuries, yet still medical malpractice lawsuits are rare. Moreover, the number of medical malpractice suits is declining, not growing. Medical negligence filings dropped 8% between 1997 and 2006. According to the National Center for State Courts (NCSC), medical malpractice cases constitute only 3% of all tort (injury) lawsuits, and only a very tiny fraction of all civil lawsuits. Medical malpractice lawsuits are not only rare, but the few that are filed are general strong cases. The Harvard School of Public Health put researchers to the task of examining over 1,400 closed medical negligence cases and found that 97 percent were meritorious.

MYTH #2: MALPRACTICE CLAIMS DRIVE UP HEALTH CARE COSTS
Not so. Medical malpractice insurance premiums, and injury payouts, constitute only a tiny fraction of health care costs. The National Association of Insurance Commissioners reports that the amount spent defending medical malpractice lawsuits and compensating the victims in 2007 amounted to only 0.3% of health care costs.

MYTH #3: DOCTORS ARE FLEEING THE PROFESSION
Not at all. The number of U.S. physicians has been growing, not declining, for decades. In fact, the number of doctors is growing faster than the general population. In 2007, the number of physicians per capita was at a record high (307 doctors for every 100,000 people).

MYTH #4: MEDICAL MALPRACTICE CLAIMS DRIVE UP DOCTORS' PREMIUMS.
Wrong again. Researchers at the National Bureau of Economic Research (NBER) found that malpractice settlement and verdict payments do not drive premiums up. Even though medical malpractice payouts have not increased significantly over the years, doctors' insurance premiums have increased astronomically. Premiums spike upward when investment income is down (insurers make their money by investing the premiums in the stock market and elsewhere). Insurers need to recover their losses by jacking up premiums.

MYTH #5: TORT REFORM WILL LOWER INSURANCE RATES
Tort reformers always claim that, if tort reform passes, premiums will fall. They are wrong every time. For example, premium rates in states that have capped damages (such as Texas) and states that have not (such as New York) show no appreciable difference. In fact, in 2009, the liability premiums in states without damages caps was, on average, somewhat lower than in states with such caps.

If you or a loved one is seriously injured by medical malpractice in New York, don't buy into the myths about your right to sue driving up health care costs. Instead, see a good medical malpractice lawyer, and get the compensation you are entitled to.

Prescription errors and medication mistakes are as common in Central New York, including Syracuse, Auburn and Geneva, New York, as anywhere else in the United States. Every year they cause about a million deaths and injuries in the U.S. Prescription-error lawyers in New York, and everywhere for that matter, know that there are generally two possible culprits: Either the doctor prescribes the wrong drug or dosage or it's the pharmacist's fault for filling the wrong dosage or dispensing the wrong medication. Either way, it constitutes medical malpractice and the victim has a right to seek compensation against the doctor or pharmacist for the injuries suffered, or, the family of a deceased victim has a right to seek compensation for the wrongful death of their loved one.

Here's a recent example of a prescription malpractice lawsuit: The Detroit News reports that the family of a man who was "issued a lethal dose of a chemotherapy drug" by Rite Aid pharmacists sued the company. The patient, who suffered from melanoma, was instructed to take 14 capsules per day of Temodar, ten times the usual dose, and double a fatal dose. In an out-of-court settlement, the doctors who prescribed the dose admitted the error (as well they should!).

In fact, prescription errors are one of the most common types of medical malpractice. What causes a prescription mistake? The most common causes are:

• Physician's handwriting is not clear or is illegible (physicians have infamously bad handwriting, but this is INEXCUSABLE on something as important as a prescription)
• Physician simply wrote down the wrong drug or doses
• The pharmacist misread the drug or doses
• Manufacturer or pharmacist placed look-alike packages in a row.
• Alphabetical arrangements put sound-alike products together.
• Pharmacist mixed your name up with another customer's
• Telephone misunderstandings: The pharmacist might not hear the doctor correctly over the phone, and as a result, writes down the wrong drug or doses.
• Allergies not taken into account: Some patients have known allergies to certain drugs, yet are given these medications by mistake, or because no one asked the patient about his or her allergies.
• Contraindications not considered: Some medications cannot be taken with other drugs. While manufacturers must list the known contraindications, sometimes these are not carefully followed.

Here are some tips on how to protect yourself from medication errors:

• LISTEN TO YOUR DOCTOR as he prescribes medication to you. Write down what he says about the name of the drug, the doses, and the purpose.
• READ THE LABEL CAREFULLY when your pharmacist hands you the drug. Check for the name of the drug, the condition it is prescribed for, and ensure the name of the drug is the same the doctor told you he was prescribing for you. Don't assume it's the same drug with a different, generic name. Ask the pharmacist about any discrepancies between the name of the drug you are given and the name the doctor told you.
• DON'T SIGN WITHOUT READING. The paper the pharmacist pushes across
the counter at you -- the one you have been signing automatically - essentially says that you agree that you have been given the information you need. Don't sign it without making sure you understand your prescription.
• EXAMINE THE DRUG. Does it look like what you expected? If it's a refill, it should look the same as the previous batch. If not, ask the pharmacist.
• MAKE AND KEEP LISTS of all medications you are taking, including the dosage, etc.
• RECITE YOUR ALERGIES to any doctor when prescribing new medication to you.
• BE ON THE LOOKOUT FOR SIDE EFFECTS. If you feel "funny", strange, or sick after taking a new medication, call your doctor immediately.

On Tuesday, November 24, I took my two children (Sebastian, 12 and Nico, 10) to get their H1NI flu vaccination at the Bristol Field House at Hobart William Smith College in Geneva, Ontario County, New York, where we live. Although I firmly believe this was the right decision, I can never just "relax" when my kids are getting medical treatment, especially a new and relatively untested treatment such as this vaccine. A nagging voice in my brain always asks, "what if the authorities make a mistake, for example, give them the wrong doses?" This "what if" thinking haunts me more than most parents because of what I do all day long; I review and handle, among other types of personal injury cases, medical malpractice cases, in Geneva, Phelps, Penn Yan, Seneca Falls, Waterloo, Auburn, Weedsport and Syracuse, New York, and in a lot of other places in New York State as well. I see a lot of medical mistakes. I am therefore perhaps overly wary of them.

Maybe that little voice in my head wasn't so off base. I just read today that the Center for Disease Control and Prevention alerted residents of Needham, Massachusetts that a vaccine wrongly labeled H1N1 was administered to 47 residents. The residents were instead vaccinated against another strand of the flu. This happened on November 24, the same day my kids were getting vaccinated! The Massachusetts Health Department contacted all 47 recipients to inform them that they had gotten the wrong flu shot. Fortunately, no one got sick. The recipients are simply immunized against a more common seasonal flu and not immunized against the swine flu.

What if one of them contracts the swine flu and dies before he has the opportunity to get the REAL swine flu vaccine? In my opinion, the estate of that person would have a slam dunk lawsuit against who ever made the error. If it was a doctor or hospital, the case would be framed as a medical malpractice case. If it was a pharmaceutical company, the suit would be brought as a products liability case. Either way, I cannot think of a single defense that would defeat such a claim.

On the other hand, if the recipients of the wrong flu vaccine do not now diligently seek out the "real McCoy" swine flu vaccine, and then contract the swine flu and die, the defense could argue both that the deceased "failed to mitigate her damages" (legalize for "you could have prevented or minimized the harm to you but chose not to") and that the deceased''s own decision to not pursue the available swine flu vaccine caused her death rather than the pharmaceutical or medical error that occurred earlier.

My advice to those 47 Massachusetts residents: Go get that HINI flu shot as soon as you can.