Articles Posted in Medical Malpractice

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Medical professionals are getting away with murder!  How?  By a New York law that says victims of medical malpractice have only two and a half years to sue the doctor/hospital or other medical professional who negligently injured them, and only two years to sue for wrongful death (CPLR 214-a), REGARDLESS OF WHEN THE VICTIM FOUND OUT THAT THERE WAS A MEDICAL ERROR OR THAT THEY WERE INJURED BY IT.

Here’s an example of the cruel workings of this rule:  Patient gets a lung or breast ex-ray or mammogram.  Radiologist says it looks good.  Three years later patient is diagnosed with stage-four lung or breast cancer.  The new doctors look back at that ex-ray taken three years earlier, which clearly shows the cancer.  The radiologist three years ago clearly overlooked it.  If the cancer had been timely diagnosed, full recovery was likely.  Now it is too late – the patient is dying.

Can this unfortunate patient or her family sue the careless radiologist?  NO!  Not in New York.  That’s because the two-and-a-half year statute of limitations runs from the date of the malpractice, not from the date when the patient discovers the malpractice.

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There is some good news for nursing home abuse victims and their families. The Health and Human Services Department has passed a rule barring nursing homes and assisted-living facilities that receives federal funding from requiring their residents to sign “arbitration” clauses.

I have already blogged about why arbitration clauses are not good for consumers, especially consumers of medical services.

Nursing homes prefer arbitration to court because the arbitration associations they use are heavily stacked with pro-nursing home arbitrators who are afflicted by something called “repeat player bias”. What’s that?  You might go up against a nursing home in arbitration one time in your life, but the nursing home and all its allies are there repeatedly defending claims brought by others like you.  The nursing home is thus a “repeat player”.   Repeat players get cozy with the arbitrators.  If the “repeat players” don’t like certain arbitrators “tendencies”, they refuse to select them or otherwise sideline them. The arbitrators know who butters their bread. If they want to stay in the arbitration business, they had better please the “repeat players”. And that ain’t you!

cancer25n-2-webI could write about the horrendous injustice of the current New York medical malpractice Statute of Limitations law myself, but never so eloquently as Elissa McMahon, one of the countless victims of the current barbaric statute-of-limitations rule and cheerleader for the proposed bill (“Lavern’s Law”) which would end the injustice:

Why We Need Lavern’s Law

By: Elissa M. McMahon

Doctor's writing a prescription with a pen.
In a few days — March 27 — New York will become only the second State (after Minnesota) to ban handwritten drug prescriptions and instead require e-prescriptions.  And unlike the Minnesota law, the New York one has real teeth: Docs who use a paper and pen to prescribe drugs instead of a computer will face serious fines and even possible jail time. In other words, if they use a pen they may end up in the “pen”.

Why this law?  Why now? Two reasons:  (1) To avoid drug abuse through fraudulent prescriptions and (2) to avoid prescription errors due to physicians’ infamously illegible handwriting.

As for number 1 (fraud), opioid abuse is rampant these days.  And handwritten prescriptions are a recipe for opioid abuse.  Drug abusers are able to alter handwritten prescriptions to increase the quantity or dosage stated. But with e-prescriptions they won’t even touch the prescription.  The e-prescription goes directly from the physician’s computer to the pharmacist’s, by-passing the patient completely.

doctor badMedical Malpractice is rampant. You’ve probably been hearing about it in the news. It is now the third leading cause of death (after heart disease and cancer) in America. But, readers, we bear good news: Although you can’t avoid all malpractice, there are some simple steps you can take to minimize the likelihood that you or your loved ones will be victims:

  1. Buddy up. Always bring a trusted friend or family member with you to a hospital surgery. Having someone act as your advocate throughout your stay is crucial, especially if you will be medicated or anesthetized. Sign any legal paperwork needed so your “advocate” has permission to know the details of your treatment and to discuss it with your doctors and nurses.
  2. Let’m Know. Make sure your healthcare professionals have your correct health information, including pre-existing conditions and allergies. Never assume they already know.

doctor badYour Central New York medical malpractice lawyers, Michaels & Smolak, have a quiz for you: What percent of doctors do you think end up paying 32% of all medical malpractice claims? In other words, what percent of doctors are so bad, so careless, so negligent, that they account for nearly 1/3 of all medical malpractice payments to patients? Do you think it might be 20%? 10%?

Wrong. One percent! That’s right, 1% of docs end up paying 32% of med mal claims. That’s because they are TERRIBLE doctors. That means that if the American Medical Association and medical malpractice insurance companies (“the medical establishment”) would be so kind as to boot out only one in one hundred doctors, medical malpractice payments would go down by 1/3. Insurance companies would save millions of dollars. The medical malpractice premiums the remaining doctors pay would conceivably be reduced by 1/3.

And get this: Ninety-four percent of all doctors have no medical malpractice claims brought against them. None! So conceivably if the medical establishment would weed out the “bad” six percent, medical malpractice claims would cease to exist.

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The personal injury and medical malpractice lawyers at Michaels & Smolak have come across some strange injuries in their line of work.  But we recently met perhaps the strangest ever.  What I am about to tell you might seem like a total fabrication. But I am not making it up. This is not April 1. This law firm is involved in a case just like the ones described below.

The case involves the anti-depressant drug Abilify, which, like the Parkinson’s drug Mirapex, can have a very bizarre side effect:  Compulsive gambling. That’s right.  Big time, pathological gambling.  When it has this side-effect, the patient tends to gamble away his or her life savings.

Don’t believe me, right? But it’s true. The evidence now is clear.  So clear that warnings are required on the drugs in most countries – including Canada — but not yet the U.S.A , where the drug lobby is more powerful.  In the U.S.,  lawsuits are swarming around the creators of the drugs (Bristol-Myers Squibb and Otsuka Pharmaceuticals for Abilify, Pfizer and Boehringer Ingelheim for Mirapex).  The legal theory is “failure to warn”.

A real MRI/ MRA (Magnetic Resonance Angiogram) of the brain vasculature (arteries) in monochrome

A real MRI/ MRA (Magnetic Resonance Angiogram) of the brain vasculature (arteries) in monochrome

As anyone who has been following health news in the last few years knows, medical malpractice is rampant. But what fewer people know – except perhaps those of us who sue doctors for a living – is that medical malpractice cover-ups are also rampant.

Here’s a recent example of a med mal cover-up that made headline news. (But note there is no way of knowing how many med mal cover-ups go on since many of the cover-ups surely succeed).

juryOur jury system is in trouble, big trouble, and that’s no small matter.  It’s a Constitutional matter.  The right to a civil jury trial is enshrined in our Constitution’s Seventh Amendment as part of the Bill of Rights.

But that right is under siege, as explained in a recent series of New York Times articles. Who is assaulting this important right? Corporate America.  Corporations are tucking away arbitration clauses into the contracts their customers and employees are routinely required to sign. These arbitration clauses state something like this: “The company may elect to resolve any claim by individual arbitration”. With these simple words, corporations are depriving millions of Americans to their Seventh Amendment right to a jury trial.

Examples abound.  Do you have a credit card, a cell phone, or internet service? Then you have given up your right to a jury trial in any dispute with those companies.  In the fine print of your service contract lies a hidden a requirement that you “arbitrate” any disputes at a forum pre-selected by the corporation. The same is true in many employment contracts you might sign. Think your boss has discriminated against you? No jury.  No Court.  Arbitration.

lavernLavern Wilkinson was a thirty something year-old single mom with mild chest pain. Being of a cautious nature, she thought to get the chest pain looked into. This eventually brought her to Kings County Hospital in New York City for chest x-ray. The results, she was told, were just perfect. Go home. Nothing to worry about.

Two years later, with more significant symptoms, and with the aid of another x-ray, she was diagnosed with advanced lung cancer. It had spread to other organs. She was terminal. Her doctors then looked back at that old x-ray and saw a nodule in its early stage. It was plainly visible. At that stage, it could have been easily removed surgically. She could have been cured.

Now, though, it was too late. But it was not too late – she hoped – for a lawsuit. After all, she was a poor single mother with an autistic 15 year-old daughter who was about to become motherless. Her daughter would need the compensation Lavern was entitled to. Her case, she figured, was a slam dunk.

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