Central New York Injury Lawyer Blog

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, 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.

The Institute of Medicine reported a decade ago that as many as 44,000 to 98,000 people die in hospitals in the U.S. every year from medical errors. At Michaels & Smolak we handle many medical malpractice actions involving injured patients from the Syracuse, Auburn, and Geneva, New York areas, as well as other upstate New York communities. Although medical malpractice is never the patient's fault, there are some steps you can take to minimize the risk that YOU will become one of the many victims of medical malpractice:

(1) ASK. You have a right, and a duty to yourself, to know all about your medical condition and treatment. Don't be afraid to ask questions, especially if you have any doubts or concerns about a procedure your doctor is recommending, or a drug he is prescribing. Asking questions not only helps you understand how to get the most out of your medical treatment, it may also help the doctor focus on your particular needs. It doesn't hurt to bring a friend or relative along with you to help you understand.

(2) Be careful about PRESCRIPTION DRUGS. Keep a list of the medicines you are taking, and share that list with your doctor. Don't forget to tell him about any allergies or side effects you have had. If your doctor orders a prescription drug, make sure the medicine the pharmacist gives you is the same one, and the same doses, the doctor ordered.

(3) Make sure you receive, and understand, the results of any MEDICAL TESTING. Don't just assume the results were negative if you don't hear from your doctor. Call and find out. If you get the results, but don't understand what they mean, make sure you find out.

(4) SHOP FOR THE RIGHT DOCTOR AND HOSPITAL. Some doctors and hospitals are better for certain procedures or conditions than others. Some are just plain better than others. You can find out a whole lot about hospitals and doctors on the internet these days. Research them! For example, the web site http://www.nydoctorprofile.com provides information about disciplinary actions taken or criminal charges filed against doctors.

(5) MAKE AN INFORMED DECISION ABOUT SURGERY. Make sure you understand all the possible benefits, and risks, of any surgery that is recommended for you. Keep in mind that your doctor makes a lot more money performing surgery than just seeing patients. He may want to do the surgery, but it might not be the right thing for you. Some doctors like to do a lot of surgery, even when the possible benefits are minimal. Research the surgery, and the success rate, on the internet. If you decide to undergo the surgery, be sure to tell not only your surgeon, but also the anesthesiologist and nurses, of any allergies or bad reactions you have had to any medications and anesthesia.

You can't always avoid being a victim of medical malpractice in New York or anywhere else. You can research your doctor carefully, ask all the right questions, and make all the right decisions, but in the end, at some point, you are at the mercy of the professional who is treating you. Still, following the steps above will help reduce the risks that you will become one of the many victims of medical malpractice.

I recently read an article entitled "Deadly Mistakes that Plague Hospitals" by William Campbell Douglass II, M.D. According to the article, there are 400,000 preventable drug-related injuries every year and there is a 1-in-30 chance that your prescription will be filled out wrong. A lot of these are blamed on poor handwriting scrawled out onto prescriptions. Another article I have read, "Dead by Mistake" reports that medical errors cause about 200,000 preventable deaths every year in the United States, which includes many Syracuse area medical malpractice deaths each year. That's more than the deaths from diabetes, Alzheimer's, the flu, and pneumonia all combined!.

I am convinced that one reason for these amazing statistics is medical arrogance. Humble people learn from their mistakes. Arrogant people never learn from their mistakes because they don't believe they can make mistakes. I am not saying that all doctors are arrogant, but the American medical establishment, which seems to have a personality of its own, is arrogant.

The medical establishment does not sufficiently castigate and weed out bad doctors. Instead, it protects them. When a doctor makes a consequential mistake in a hospital, a small group of other doctors conducts a "peer review" of his or her actions. But if wrong-doing or negligence is found, the peer review group usually meets out a mere wrist-slapping rather than consequential penalties. To add insult to injury, the complaints and investigation records are, unlike police and other such records, kept sealed and confidential.

The truth is there is only one force in our society that weeds out bad doctors; lawsuits. Since doctors won't adequately police themselves, we lawyers have to police them for all of us. The bad doctors, the ones that are successfully sued time after time, eventually cannot find any affordable medical malpractice insurance. To find out more about medical malpractice lawsuits, visit our website

Maybe it is too much to ask that doctors police their own. Metaphors regarding foxes and henhouses come to mind. But for Christ's sake, doctors should stop whining, and screaming, about medical malpractice lawsuits, which provide the only effective policing of medical doctors in the United States.