Central New York Injury Lawyer Blog

The Syracuse Post Standard ran an Article this weekend titled, "The stats the hospital industry doesn't want you to know". The article talked about a recent Medicare study revealing that patients in Syracuse area hospitals often get worse, instead of better, because they become victims of preventable "hospital-acquired conditions" ("HAC"), which consist of such things as patient falls, infections, foreign objects being left in patients after surgery, bedsores, poor blood sugar control for diabetes, and wrong blood transfusions. The statistics are alarming: In an 18-month period between 2008 and 2010, our local hospitals had 175 cases of Medicare patients developing "hospital-acquired conditions".

All this may surprise some, but it does not come as a surprise to Syracuse medical malpractice lawyers like those at Michaels & Smolak. We have successfully sued several local hospitals for these types of failures.

Here are some examples of our local hospitals' failures during the Medicare-reported time period: Upstate Hospital had 5 times the national average of blood infections from catheters; St. Joseph's had the 5 times the national rate of urinary tract infections; and there were five cases of foreign objects being left in patients after surgery -- two at Crouse Hospital, two at Upstate and one at St. Joe's.

All this is pretty damn unacceptable. But not as unacceptable as the hospital industry objecting to Medicare's publishing this data on its website. Medicare published the stats despite the objections.

Why did they object? Are they afraid patients will vote with their feet? The only way Syracuse hospitals will improve is if their feet are put to the fire of open disclosure (thank you Medicare investigators) and good reporting (thank you Syracuse Post Standard). As I have said before, shame is a powerful motivator of improvement.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

Here at Michaels & Smolak, we are pretty down to earth and modest. We don't go around calling the press about our Central and Syracuse New York personal injury or medical malpractice settlements or verdicts, although we feel they are pretty impressive. You can see some of them here.

Most of our clients prefer to keep a low profile, and so do we. All they want is justice, not fame . Same with us.

But the press has a mind of its own. For instance, one of my partners, Lee Michaels, started a Seneca Falls medical malpractice trial this past Monday. Lee sued, on behalf of the window of a medical malpractice victim, two Rochester Neurosurgeons. On Tuesday, a front-page article appeared in the Geneva Finger Lakes Times about the trial. No one at our office called the press or let them know Lee was starting a serious medical malpractice trial in Seneca Falls. None of us thought this was newsworthy. It is just one of many Central New York medical malpractice cases that go to trial every year.

I assume the Geneva Finger Lakes Times will also report on the jury's verdict, which should be delivered in about a week. Whatever the result, you can be sure we did not report it to the press. But a trial is open to the public, and the press has a right to report on whatever they deem "newsworthy".

Michaels & Smolak respects freedom of speech and press. We only hope that the reporting will be fair to both sides, just like the verdict.

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

New York dental malpractice lawyers agree on one thing: You have to turn down most calls about dental malpractice. Most alleged dental malpractice cases are going nowhere. We get calls from people all the time. They got a bad result from their dentistry work, and they want to sue. But usually the bad result was a "known risk" of the procedure. When it's a known risk, usually there's no case. Sometimes there really was dental negligence, but then the injury is too small to really warrant a dental malpractice lawsuit. Getting a case with provable negligence, plus a significant injury, well, that doesn't happen every day.

But a case I read about in the Syracuse Post Standard this week is more than just a dental malpractice case. I would describe it as a dental assault and battery case. It's a god-awful story about ten Syracuse-area families who sued a dental clinic, "Small Smiles", alleging their children had been subjected to unnecessary dental treatment, and without anesthesia.

That last part kills me. Imagine having your kids subjected to dental torture, and for no good medical reason? Can you say, "Marathon Man"? If these allegations are true, and apparently they are (Small Smiles' national parent corporation settled with the Federal Government for $24 Million for Medicaid fraud based on the same facts) the case might well warrant punitive damages, which is all but unheard of in medical or dental malpractice cases.

Here are some details about the case (if you are squeamish, stop reading here!): Small children, ages 1 to 7, got root canals (didn't even know a kid could get those!), cavity fillings, and extractions while "physically restrained in the dental chair and without sedation or general anesthesia". The scheme was to do these procedures, some of them totally unnecessary, on the cheap, bill Medicaid at full dollar, and then pocket the difference. And to make those extra bucks these guys were willing to torture children.

The "Small Smiles" clinic (big-time misnomer) serves low-income kids covered by Medicaid. So they are poor kids. The parents probably never got much dental care themselves over the years, so they don't know how it's supposed to work. That's how the "dentists" were able to convince these parents that it was "safer" to do the procedures, again many of them totally unnecessary, without anesthesia.

As far as I am concerned, sue those sadistic SOB's for every cent they're worth, and then lock them in jail and throw away the key. Nothing is more despicable that preying on poor, defenseless children.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

My outrage at New York doctors and hospitals, who recently tried to sneak into our State budget a booby-trap to explode on their unsuspecting malpracticed patients, has still not subsided. Read my recent blogs about their underhanded efforts here and here. Readers' digest version: They tried to slip a "cap on non-economic damages" for medical malpractice lawsuits into our State budget. Fortunately, their efforts failed. But believe me, New York medical doctors' lobbyists will try it again. Their motto is, "if at first you don't succeed, try, try, try again".

So forgive me if I rant a while longer. They will keep at it, so why shouldn't I?

New York doctors and hospitals keep whining about skyrocketing insurance premiums, which they choose to blame not on greedy insurance companies, but on New York malpractice claimants and their New York medical malpractice lawyers. But when juries hammer doctors with big verdicts, it's because the doctors hammered their patients with big harm -- carelessly. Juries reluctantly bang out big verdicts to compensate big screw ups. Those juries have found the doctors' treatment of their patient so pathetic - wait, let's be generous -- "crappy" - as to fall below any acceptable standard of medical care.

So what is the New York medical profession's response to those big jury verdicts for their big screw-ups? In a word (or two): "Shut up!" Doctors don't like what juries are telling them, so they go to Albany and try to muzzle them. The docs are essentially saying, "we don't want the jury to tell us how badly we devastated a human life by our crappy medical practices --- put a lid on it, pal".

But this is what I want the medical profession to understand, so listen up docs!: Capping a jury's damages verdict is like shooting the messenger. It won't fix the harm you are inflicting on your patients. "Shut up" fixes nothing. Stop paying all that money to your Albany lobbyists to undo your patients' rights and instead spend it on fixing what's wrong with your medical practices. Curb your screw-up rates and you will lower your premium rates, without robbing your malpractice victims of their right to full compensation. Retool, retrain, implement safer practices. You can do it! You were the smartest kids in class! We know you can!

Hey, don't get me wrong. I can commiserate with you about those high insurance premiums. I am a New York personal injury and malpractice lawyer whose legal malpractice premiums continue to skyrocket even though neither I nor any of my law partners have ever been sued for malpractice. But if I ever screw up --- god forbid - and cause a client to suffer big harm --- I sure hope I have enough insurance to make it right for my client. That's because I care about my clients. New York doctors, do you care about your patients? I can't help but wonder . . .

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

New York Medical malpractice victims, you might not know it, but you just dodged a bullet! The New York hospital and physician lobby just tried to cut the legs off your rights to compensation. They tried to get the governor to incorporate into his budget a provision that would have capped all medical malpractice pain and suffering verdicts at $250,000. I already blogged about the unfairness of such a rule.

Good news: The doctor lobby failed! The final budget, which has now become law, tossed out the ill-conceived medical malpractice cap. And that is cause for celebration, not only by New York medical malpractice lawyers, but also by New York medical malpractice victims and their families.

Turns out the doctors and hospitals are poor losers. In a letter from Medical Society of the State of New York President Dr. Leah McCormack to his fellow doctors, he says he is "more than disappointed" that the budget did not include the cap. He feels "angry, disgusted and betrayed".

So here's my response to Dr. McCormack.

Dear Doctor McCormack, I understand you feel "angry, disgusted and betrayed" by our governor and State legislature. But just imagine how "angry, disgusted and betrayed" your malpracticed patients would have felt had you gotten your way with Albany. Your position is clear: medical doctors in the State of New York should have the right to exercise their profession NEGLIGENTLY AND CARELESSLY, and BELOW AN ACCEPTABLE STANDARD OF CARE, and not pay the full consequences. That position is the product of ARROGANCE.

Thanks for listening

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

Let's say a doctor carelessly performs eye surgery on you. As a result of his negligence, your vision is impaired for life. You are only 30, so you have a long life of impaired vision in front of you. You hire a New York medical malpractice lawyer and take him to Court. What should fair compensation be to you for the doctor's malpractice? Well, if the impairment isn't so bad, if glasses can mostly correct it, maybe $250,000?

Now let's say the same doctor carelessly performs the same operation on you, but this time blinds you for life. Darkness surrounds you for the next 50 years. You'll never see your kids or wife again. You'll only hear them. What's fair compensation for your anguish, suffering, and loss of enjoyment of all the things a seeing person can do for the next 50 years of your life?

According to Governor Cuomo's proposed fiscal budget, $250,000. Same as if your vision had merely been impaired. That's called a medical malpractice "non-enconomic award cap" (a/k/a a "med mal cap"). It's also called a travesty of justice.

I hear you, dear reader. You just blurted out, "hey, wait a minute, before we start talking about travesties of justice, did you just say this med cap law is in the Governor's proposed budget? What the hell is a rule like that doing in a fiscal budget for the State of New York?

Good question. (My readers are smart!). Answer: a group of New York hospital and insurance lobbyists convinced him to put it there - apparently because they knew they could never get a law like that passed if it went through the normal democratic process.

If the Governor's fiscal budget passes, then the "med mal cap" passes, too. If that happens, no matter how horrendously crippled any quack-of-a-doctor might leave you, you are entitled to no more than $250,000 in compensation.

OK. Maybe I'm over-reacting. Truth be told, there's really only one problem with the med mal cap rule: It is cruelly, viciously, unjust. Picky, picky, right?

I can't help it. You see, I went to law school. And I learned a few things there. One thing I learned was that the purpose of our justice system was --- well --- to render justice. And they taught us that justice means greater compensation for greater harms, and lesser compensation for lesser harms.

Governor Cuomo is a law school graduate, but he must have skipped that class, because his one-size-fits-all $250,000 medical malpractice cap flies in the face of any notion of "justice" that has ever embraced humankind's mind since we first crawled out of caves and began holding court around camp fires.

Why doesn't the governor propose to get rid of our justice system altogether and replace it with an inquisition or something? That would save the hospitals money, too. But it would have the advantage of being more honest. A medical malpractice justice system that features an arbitrary "cap" awarding the same $250,000 to the visually impaired victim as to the blinded victim is a charade, and it is blind to justice.

Governor Cuomo is about to commit medical malpractice on our justice system. He wants to poke its eyes out. If his budget passes, medical malpractice awards will be rendered blind to justice.

But there's hope --- Democrats, who dominate the New York Assembly, are opposed to capping non-economic awards for medical malpractice, and are proposing an alternative budget that would eliminate it. Those guys didn't skip that law school class about justice! Thank God for that!

Let's keep justice in our system of justice!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

When I clicked my way to Syracuse.com this morning to check out the Syracuse Post Standard news, I was both surprised, and not surprised, to read that Dr. Holsapple, a former Upstate University Hospital neurosurgeon, had sued the Hospital for retaliating against him after he voiced concerns about dangerous medical practices there. I'll tell you why I was both surprised, and not, but first let me summarize the allegations.

In the lawsuit, Holsapple claims that, at Upstate University Hospital, safety took a second seat to profit concerns, and that the Hospital regularly covered up their mistakes and bad medical practices by doctoring the medical records. For example, the suit contends that a neurosurgeon was allowed to oversee spine surgeries in two different operating rooms at the same time, which Holsapple says was way too dangerous. Statistics seem to support the Doctor's allegations; at the time, five times more patients were dying from spine surgery at Upstate compared to the national average.

Holsapple also alleges that when he complained about the dangerous, unethical practices, the Hospital responded by demoting him and cutting his pay. For these reasons, he claims, he resigned from Upstate in early 2009, and that's why he is suing, too.

Now here's why I am not surprised: Everything Holsapple says rings true. Not just for Syracuse's Upstate Hospital, but for hospitals across the nation. In our experience as Syracuse New York medical malpractice attorneys who have successfully sued several New York State hospitals, including Upstate Hospital, for millions of dollars, hospitals regularly shortchange safety, make bone-headed errors as a result, and then, rather than accept responsibility for their negligent practices, they pass the blame to medical malpractice lawyers and their clients for their problems. They try to paint us as "greedy", and our claims as "frivolous", and blame us for causing their medical malpractice insurance premiums to skyrocket. What they do NOT generally do is say, "gee, sorry about that, we'll make every effort to improve so this won't happen again". As the old Saturday Night Live skit put it, "they think denial is a river in Africa".

Now here's why I am surprised by Dr. Holsapple's suit. I am surprised that Dr. Holsapple would blow the whistle on his former employer, the Hospital. In our experience as Syracuse New York medical malpractice attorneys, there appears to be an unwritten oath that doctors swear to when they graduate from medical school, which goes something like this: "I hearby swear that I will do no harm, except that I shall never report the medical errors of my brothers-in-medicine no matter how much harm my silence causes, and no matter how egregious, how wrong, and how bone-headed, or careless, their errors are, so help me God". Dr. Holsapple appears to have broken this unwritten code of conduct.

And for that, I say, "thank you Dr. Holsapple"!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

The Auburn Citizen recently reported on a Cayuga County Nursing Home Negligence case, and that's my topic for today.

At first blush, it seems like a compelling case. The nursing home's negligence is clear cut. So clear cut that when the State Department of Health cited the Home with violations, the Home almost immediately paid the $12,000 fine without protest. And the resulting injury was severe; death! And the nursing home has been sued. But even though the negligence is clear, and the injury severe, I may have declined to take this Auburn New York nursing home negligence wrongful death case. Why?

Glad you asked. First, a few facts. The nursing home nurses gave this 94-year-old resident (I'll call her "the victim") the wrong medication. The mix-up happened because two drugs' names - metolazone and methimazole - have many letters in common. But in fact they were nothing alike; one would help treat this woman's ailments and the other would kill her. (New York prescriptions errors like this one are, unfortunately, all too common). The mistake started when a pharmacy (which has also been sued) entered the order incorrectly, but the nurses failed to detect the mistake and gave the victim this wrong drug repeatedly.

During 18 days, the victim developed symptoms that should have tipped off the nurses that something was amiss; she developed an inflamed large intestine and became wane and dehydrated and then suffered an "unresponsive episode". The victim eventually died of heart problems from kidney failure aggravated by the medication.

Sounds like a great case, right? So why might this Central New York wrongful death lawyer have rejected the case?

The problem is not the facts of the case, which are compelling, but rather New York wrongful death law. Unlike the law in almost all other States, New York wrongful death law does not allow for compensation for the grief of family members. The law allows only for "economic" loss, which means funeral expenses and any loss of economic support to close family members (spouse and children). But when you are 94 and in a nursing home, you aren't supporting anyone, and therefore you have no compensable loss under New York wrongful death law, except perhaps for some funeral expenses.

The only way this case makes economic sense to bring is if the victim endured, before she died, "conscious pain and suffering" as a result of the prescription error. If she did, her estate can claim compensation for it. From the newspaper article I have read, it seems there might be a problem proving that the patient endured any conscious pain and suffering. But I could be wrong. I would need to review the medical records and talk to the family members and other witnesses to find out.

My point is that New York wrongful death law often results in a travesty of justice for elderly victims of medical malpractice and their families. Negligent and careless doctors and nurses can almost literally "get away with murder" as long as the patient experiences no conscious pain and suffering. Fair-minded people have been lobbying Albany for years to change the law, but the insurance and doctor lobby has pushed back all assaults on this horrendous law. Maybe one day justice will prevail . . . .. Let's hope so.

related posts:

Central New York Prescription Malpractice Lawyer Explains How Medication Errors Happen

>Syracuse Medical Malpractice Lawyer Explains: Medical Malpractice Is Killing Us.

Federal Law Regarding Compensating Wrongful Death at Sea Is, Like New York's Wrongful Death Law, Unfair and Harsh

Syracuse Malpractice Lawyer: Nursing Home Neglect and Maplractice Is Pandemic, As Demonstrated by Recent Fines Issued to Syracuse Nursing Homes.Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

In my last blog, I explained the maximum legal fee in a New York personal injury case. The fee is different, however, in medical malpractice cases, and that's the topic of today's blog post.

In medical malpractice cases, New York law provides for a "sliding fee" in which the lawyer's percentage drops as the amount recovered increases. The sliding scale goes like this: 30% of first $250,000 of recovery, 25% of the next $250,000, 20% of the next $500,000, 15% of the next $250,000 and 10% of the recovery over $1. 25 million.

Notice that the fee in a medical malpractice case (sliding scale starting at 1/3 and dropping down to as low as 10%) is lower than the fee in a regular personal Injury case (straight-out 1/3 regardless of the amount of the recovery).

Why does New York law provide for a lower fee in medical malpractice cases than in other injury cases? After all, medical malpractice cases are more demanding, and usually require more work and skill than most regular personal injury cases. (As Central and Syracuse New York medical malpractice lawyers, the lawyers at Michaels & Smolak know this first hand). In a medical malpractice case, a New York medical malpractice attorney worth his salt will spend countless hours absorbed in medical text books to become fluent enough in the particular field of medicine at issue to not only clearly explain to the jury what went wrong, but also to effectively cross-examine the defendant doctor, who will try to convince the jury he did nothing wrong at all. And medical malpractice cases are less likely to settle than regular personal injury cases, and therefore a New York medical malpractice lawyer is more likely to end up spending weeks in trial. It's more work. Lots more!

Then why is the attorney fee less in a New York medical malpractice case if it requires more work?" Answer: doctor Lobbying. Yes, your friendly doctor belongs to a group of doctors which pays lobbyists to bend the ears of lawmakers in Albany. Not only do they bend these lawmakers' ears, they also fill their re-election campaign chests. No surprise, then, that these lawmakers are willing to vote for such a silly, complicated "sliding scale" fee schedule as the one described above, whose overall aim is simply to reduce attorney fees in medical malpractice cases.

When the doctors lobbied for this law, and won, they hoped that the reduced legal fee would make medical malpractice lawyers more reluctant to represent the victims of medical malpractice. They hoped fewer New York medical malpractice victims would find lawyers to take their cases to the courthouse doors. They did not pass this bill because they wanted you, the malpractice victim, to end up with more money at the end of your case. They wanted you to go away! But did you go away? No! Why not? Because many fine New York medical malpractice lawyers are still willing to represent you, even at a reduced fee.

If the doctors and their lobbyists really want malpractice lawsuits to go away, I have a better idea: Prevent malpractice! It's easy. Just read a few of my prior blogs on this topic (here and here).

I came across this article in the New York Times titled "Mistakes Still Prevalent in Hospital Care, Study Finds". The article didn't tell me, a Central and Syracuse New York medical malpractice lawyer, anything I didn't already know. To know how prevalent hospital malpractice is, all I have to do is pick up phone and listen to the stories my clients tell me.

The Times article discusses a recent, extensive study on hospital errors and problems. This is the first major study of hospital malpractice since 1999. That one caused a public outcry when it revealed that hospital malpractice causes a million injuries a year, and more than 50,000 deaths, in the U.S. alone.

The new study concludes that things have not improved since 1999. Here is a very scary statistic: About 18 percent of hospital patients are harmed by medical care, and most of those injuries are preventable.

The study concludes that many hospitals have failed to implement safety measures proven to reduce errors. How can hospitals improve safety? The study suggests that 1/3 of the errors in the intensive care unit disappear when residents work 16 hours or less. But they are still working longer hours. Longer than 16 hours? You have got to be kidding! No wonder they make mistakes.

Also, computerized systems for prescription drug orders, which drastically reduce prescription errors -- by as much as 80 percent -- are available. (The computer corrects the doctors' dosage prescription errors and alerts doctors when they have ordered a drug counterindicated for the patient.) Yet only 17 percent of hospitals have installed such life-saving computer systems.

Also, the study shows, hospitals can reduce deaths and injuries caused by medical malpractice by being transparent, and allowing themselves to be compared to other hospitals. The sense of competition among hospitals spurs improvements. Patients ought to be able to easily know, for example, the infection rate of their hospital compared to other hospitals. They will vote with their feet, and the hospital who finds its beds empty will either shut down or improve its safety statistics.

This article demonstrates, as usual, good reporting by the New York Times. But next time they want to know about the prevalence of hospital medical malpractice, all they have to do is call me!

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

This should never happen, not any more. But it still does. What am I talking about?
Not too long ago it was pretty common for surgeons to mistakenly operate on the wrong leg, wrong arm, wrong eye, etc. But this kind of error got national attention. It outraged the public, including of State hospital regulators. Hospital administrators cracked the whip and made their hospitals and surgery centers adopt more stringent safeguards to prevent this kind of gross error. They started requiring that the part of the body to be operated on be marked with a sharpie. They began asking the patient, before surgery, to confirm which side he was expecting to be operated on. New York surgery malpractice lawyers like us at Michaels & Smolak began seeing fewer wrong-side surgery cases.

So a few weeks ago, when I got a call from a guy whose upstate New York surgeon performed his operation on the wrong leg, I asked myself, how could this happen? As I investigated, it became clear why. It seems that the hospital just did not follow the safety protocols. No one bothered asking the patient, before the surgery, which leg he expected to be operated on. No one marked his leg.

Here's a message to all local hospitals and surgeons: If you operate on the wrong part of the patient's body, you will be sued. There is no excuse for it. It is always malpractice. It is always negligence. You failed to follow your own safety rules. This is a slam dunk case of medical malpractice. Be careful. Mark the part, ask the patient, and do it right. Because if you don't do it right, we will do what good New York medical malpractice lawyers do, and we will do it right.

Syracuse medical malpractice lawyers are taking note: Upstate University Hospital has a recent demonstrated history of performing botched or erroneous surgeries. The lawyers at Michaels & Smolak know this first-hand. We have successfully sued Upstate several times, including a case two years ago which rendered a $2.5 Million verdict to an elderly Parkinson's patient who was paralyzed and brain damaged due to an avoidable equipment malfunction during brain surgery.

The Syracuse Post Standard now reports that an Upstate University Hospital neurosurgeon was recently suspended after he or she (they won't disclose the name) made an unnecessary incision. And not just a minor incision. Although the Hospital refused to disclose any further details, anonymous sources say that the unnecessary cut spans almost the entire length of the patient's back, whereas only a relatively small incision was needed.

This is yet another clear case of Upstate Hospital medical malpractice. And it's the third time since 2004 that Upstate doctors have blundered by cutting patients in wrong place, a totally avoidable error. In the other two cases, Upstate surgeons made an incision on the wrong side of a baby's head when attempting to operate on his brain and they operated on the wrong side of a patient in attempting to remove a tumor from an adrenal gland.

In recent years, hospitals around the country have been forced by regulators to adopt strict protocol to avoid wrong-site surgeries. Hospitals are required to call "timeouts" before operations in which doctors and others double-check that they are operating on the right person in the right spot. The target site must be pre-marked with markers.

Although wrong-site surgeries have decreased since these procedures were instituted, wrong-site surgery malpractice continues to be a problem at some hospitals such as Upstate. Apparently, Upstate is simply not forcing its doctors to carefully follow the protocol.

Upstate has had other recent malpractice woes. A recent State investigation unearthed numerous medical errors at Upstate, not the least of which was a case where an inexperienced neurosurgeon in training was allowed to perform a complicated spinal surgery without adequate supervision.

Watch this video of a doctor's lecture on "Medpage". He tells his fellow medical doctors how to avoid getting sued for medical malpractice. Some of his points are well taken. For example, "Care deeply about your patients", and "communicate" well and often with them. (It's harder to sue someone you like!).

We at Michaels & Smolak, as Syracuse New York medical malpractice lawyers, have some trouble with his last point: "At the end of the day, recognize that the American system of dealing with medical professional liability, so called malpractice, sucks, that stuff (so to speak) happens, and that many trial lawyers are the scum of sub-humankind."

Actually, what really sucks is the medical establishment's way of dealing with medical malpractice --- ignore it, downplay it, and, of course, blame the lawyers -- as this doctor does here. That's been their modus operandi for many years now. Oh yeah, and I forgot - they also spend more time and money lobbying for malpractice reform than they spend trying to devise systems to prevent malpractice.

This attitude keeps the medical community from mending its ways. As explained in this New York Times article, medical liability has increased patient safety. Because of medical malpractice suits, safer practices are being followed than only a few years ago. For example, hospitals now hire risk managers, and do a much better job preventing infections, and anesthesiologists have developed improved safety standards, just to name a few.

Doctors must begin to see medical malpractice suits as a symptom, not the disease. A long term cure will not come from removing the medical malpractice suits, but rather the root cause of them --- medical malpractice.

The Syracuse Post Standard reports today that the "central line" blood stream infection rate at the surgical intensive care unit of Upstate University Hospital fell to zero last year only a year after it had one of the highest infection rates in the State (8.3%). A "central line" is a tube or catheter inserted in a vein to draw blood or deliver fluids and medications to a patient. Infection can occur when bacteria travel down the tube or catheter and enter the blood stream.

The cause of the decline in the infections? The Hospital initiated an infection prevention program. The new program consisted of a checklist of steps aimed at avoiding infections, ultrasound machines to help place catheters more accurately, and a computer software program that reported daily on infections and their sources.

What spurred Upstate into initiating the aggressive infection prevention program? Its embarrassingly high infection rate in 2008, one of the worst in the State!

Shame is a great motivator. And before 2005 there was no shame. That was the year New York State implemented a new law requiring the Health Department to publicly disclose all New York hospitals' infection rates. Since then, infection rates around the State have dropped dramatically. No one wants to be the "worst in the State" for infection rates!

This shame factor makes me wonder whether Syracuse New York hospital malpractice cases would decline if their medical error rates were calculated and widely published year after year, and the hospitals were "ranked" with hospitals from around the State, from best to worst, for medical mistakes. Would the worst offenders be shamed into reducing their malpractice rates? Would all hospitals reduce their medical errors if they knew their rates were to be published in local newspapers? I think so. Hey Albany, if you are reading this, let's try it and see!

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.