Physicians' Reciprocal Insurers, a Long Island medical malpractice insurance carrier than insures nearly 25% of New York state's physicians, is insolvent. It has a "negative surplus" of more than $43 million.
The problem? New York medical malpractice lawyers and their frivolous medical malpractice lawsuits? Hardly. Eliot Spitzer thought freezing medical malpractice premium hikes was a good idea. Shocker. Has Slate fired him yet?
The learned intermediary doctrine provides that makers of prescription drugs and medical devices discharge their obligation to consumers by providing warnings to the prescribing doctor. In other words, drug and device companies have no obligation to directly warn patients about the risks associated with their drugs or medical devices.
The historic rationale for this rule is that prescription drugs are often complex and prescribing doctors can take into account the propensities of the drug, as well as the susceptibilities of his patient and properly weigh the risk against the benefits. But, arguably, all of this is premised on the notion that drug companies are talking to doctors and not consumers.
Today, drug companies talk to us about their drugs every time we pick up a paper or turn on the television. Does this make the learned intermediary doctrine obsolete? Apparently, some New York legislatures do, proposing a bill to eliminate the learned intermediary doctrine. I first read about this from the Drug and Device Law Blog, a defense oriented blog that naturally opposes the bill.
New York has an awful law that limits the recovery of New York medical malpractice lawyers. As I have written before it is the kind of law I hate the most. No, not because it cuts into malpractice lawyers' pocketbooks. I hate this cap rule because it is the worst kind of consumer protection: it looks like it helps consumers but actually hurts their ability to retain a lawyer. (While this is not a popular view in 2009, the same is true I believe with CEO salaries.) So while it looks like it helps victims - and it may help some individual victims who might have paid more who have great malpractice claims - the practical impact is that less medical malpractice victims who have claims are able to get New York malpractice lawyers. The related problem that comes from this is that many malpractice lawyers will, as a result, refuse to front the expense of a case, which also transfers the risk and the cost of the case from the malpractice lawyer - where it should be - to the client.
The New York Post has an article critical of efforts in the New York legislature of efforts to finally fix this awful malpractice law.
Related Posts
A report released last week by the Manhattan Institute -- "Greater Justice, Lower Cost: How a 'Loser Pays' Rule Would Improve the American Legal System" -- says making personal injury lawsuit losers pay the winner's legal expenses would improve the fairness of our legal system.
"The integrity of our legal system is under assault. Establishing loser-pays rules and other tort reforms can help restore citizens' faith in the bedrock of society -- justice, fairness and the rule of law," former New York Mayor Rudy Giuliani write in the preface to the report. (With the election over, Giuliani is apparently capable of complete sentences that do not contain 9/11. I am a little surprised.)
I have not given the issue any thought. I think the problem is that it presents an intimidating bar for Plaintiff's who have been the victim of the neglignece of someone else in a case that is not clear cut. Do we want to discourage those suits?
Personal injury verdict reviews reports on $3,990,000 settlement in a cerebral palsy case in New York. Plaintiff alleged hospital malpractice in failing to train and supervise its medical team who administered an excessive amount of fluid to the infant, causing the child to become waterlogged and develop life-threatening hyponatrenia. Plaintiff’s medical malpractice lawyer’s theory of the case was that the hospital should have used (1) a more concentrated solution in a peripheral line and (2) the hospital should have installed a central line, causing them to use too much fluid to deliver adequate amounts of sugar to the child.
Plaintiff’s medical malpractice lawyer was Richard A. Gurfein. The case was defended by Lake Success lawyer Henry Zee. Plaintiff’s expert witnesses included Edmund H. Mantell, Ph.D. (economist in White Plains, New York) Daniel Adler, M.D. (pediatric neurologist) and Joseph Carfi, M.D.(rehab expert).
The New York Medical Malpractice Law Blog - which I found via the New York Personal Injury Attorney Blog - reports on something I did not know: electronic medical records are now being widely utilized in Great Britian. For one, York Hospital is now using electronic medical records in an effort to improve communication among doctors in treating patients.
The reality is that this is a public safety issue but it's also a "it is 2008 and we have no money left in the budget" issue. The federal government pays for nearly 40% of the over $1.3 trillion spent on medical care in this country and spends millions more providing disability benefits to medical malpractice victims. Accordingly, besides saving potentially thousands of lives, electronic medical records will reduce the costs associated with medical malpractice and the government and our health care system will see signifcant savings in the long run. This will, in turn, decrease medical malpractice lawsuits which will lower medical malpractice premiums.
All good. What is the problem? The problem is the cost. While a national system of computerized medical records is on Obama's wish list, that list is getting cutback as we look at the economic realities of our federal budget in light of our country's financial crisis. Ironically, this is the perfect kind of project for deficit spending because it is not a money pit - electroic medical records are going to save us more in the long run than the 3% interest the government would pay for the investment. But while I'd love to be wrong about this, I do not see a great push for electronic medical records in Obama's first term.
By the way, bravo to the Eric Turkewitz and his New York Personal Injury Lawyer Blog for publishing a link of a fellow New York medical malpractice attorney. Eric's mentality is that he is writing with a focused eye on what would be interesting to his readers, which is one of the reasons why his blog has been so successful.
The widow of a man whose brain was allegedly taken without permission for medical study has filed a lawsuit against the hospital and the medical examiner who performed the man's autopsy. According to the lawsuit, neither plaintiff or her deceased husband signed an organ donation card and the brain is still missing.
The lawsuit seeks $4 million against Mount Sinai in damages. This woman, while I am very sorry that she lost her husband, does not want me on the jury. My question would be why are you and your husband not organ donors? I hate these kind of lawsuits and I wish these type of claims never found a lawyer who would take them.
I tried a case last week. We did not get a good outcome because, in the end, the jury did not believe my client was still suffering from her injuries. These kind of cases just don't help.
Newsday reports that a New York jury awarded a woman $10.7 million in a medical malpractice case against a hospital in Queens. The woman became partially paralyzed after waiting two hours for a brain scan at a Queens hospital. The jury found the woman was cleared for a brain scan two hours before she got one. The purpose of the test was intended to check for bleeding.
The Plaintiff lapsed into a coma in the emergency room less than an hour after the scan. The Plaintiff is now in a wheelchair.
New York's brand of tort reform caps the fees of New York medical malpractice lawyers as opposed to the award to the malpractice victim. In the end, the real loser is medical malpractice victims because lawyers will not take their case because the risking potentially hundreds of thousands of dollars is not worth the risk (most medical malpractice lawyers front the costs and the victim is not obligated to pay the monies back if there is no recovery). But this case certainly did not fall into that category and is one of the few that actually meets the goals of this otherwise warped New York medical malpractice statute.
Jurors found New York Hospital Medical Center of Queens was negligent in caring for Candida Diego after she fractured her skull in a fall in September 2004. A spokeswoman says the hospital doesn't believe it is liable for the 71-year-old's condition and is appealing the Oct. 3 decision awarding her $10.7 million.
My two volume treatise Insurance Settlements is now available from James Publishing. The book discusses how to position a lawyer's car accident, truck accident, medical malpractice or product liability case to the best possible settlement at every step along the way (until the state's high court affirms the judgment).
Click on the James Publishing link. If you have any comments on the book, please email me at ronmiller@millerandzois.com under the subject "Insurance Settlements Comments."
Our lawyers are reviewing Byetta claims after the FDA announced this week that the diabetes drug has been linked to severe pancreatic problems in dozens of patients. On Monday, the FDA warned patients taking Byetta to discontinue use if they develop symptoms of the disorder. Further the FDA said that doctor prescribing Byetta should consider other prescription options for patients with a history of pancreas problems.
Since Byetta was introduced into the United States in 2005, more than 700,000 patients have used the Byetta.
Our lawyers are now exploring potential Byetta lawsuits. If you would like to discuss your case with a Byetta lawyer, call 800-553-8082 or click here for a free consulation/case evaluation (or even to answer any question you may have). For more information on Byetta and the concerns with Byetta, click here.
Last week, Digitek manufacturer Actavis Totowa recalled over 65 different drugs made at their New Jersey manufacturing plant. The list of recalled drugs (in some form or another) includes such generic drugs as Bellamine, Buspirone, Carisoprodol, Oxycodone Meperidine, and Rifampin. This strengthens the conclusion that the New Jersey plant that made these drugs may be the cause of irregularities in Actavis medications.
In April 2008, Actavis recalled Digitek, a drug prescribed to treat heart failure and irregular heartbeat because it was discovered that Digitek tablets appeared to have double the thickness – and likely double the active ingredient – listed on the label. When Digitek is given in abnormally high doses it can lead to digitalis toxicity which, paradoxically, worsens the problems Digitek is intended to treat, causing nausea or lower blood pressure and other side effects from the Digitek overdose that can lead to the increased risk of stroke or a heart attack.
If you would like to speak to a Digitek recall lawyer about a potential Digitek lawsuit, call 1-800-553-8000. For more information on the Digitek overdose recall or a free consultation on your potential Digitek case, click here.
Zimmer's Durom Cup hip implants are likely to be the subject of a good number of lawsuits from patients with the Zimmer implants. But they will not be the only ones. Apparently, Zimmer’s own shareholders may agree that Zimmer left its hip implant on the market way too long. Last week, shareholders of Zimmer stock filed a class action in Indiana. Interestingly, the lawsuit seeks damages for shareholders who purchased stock between January 28, 2008 and July 21, 2008. This tells our Zimmer hip implant recall lawyers that these shareholders believe that Zimmer knew or should have known and issued a recall on or before January 28, 2008.
If your Zimmer Durom hip resurfacing cup was defective, call our Zimmer hip implant lawyers at 1-800-553-8082 or click here for a free consultation.
More information on the Zimmer Hip Implant Recall
History of the Zimmer Durom Cup Hip Implant Recall
More information on the Zimmer hip implant recall lawsuits
The Missouri Supreme Court ruled in Sides v. St. Anthony's Medical Center, that plaintiffs in a medical malpractice cases in Missouri may rely on an expert's opinion that the injury would not have happened in the absence of the defendants' negligence even without a specific proof of a negligent act. The court adopted the Restatement of Torts rule that if a medical malpractice plaintiff cannot demonstrate which specific act of negligence caused the injury but is able to demonstrate the potential causes are within the control of the doctor, and the injury would not occur in the absence of negligence, then a medical malpractice plaintiff has jumped over the motion to dismiss/summary judgment hurdle.
The defendant’s medical malpractice lawyer argued that Hasemeier v. Smith, 361 S.W.2d 697 (Mo. banc 1962), an OB/GYN medical malpractice case, was controlling. In that case, the court found that generally res ipsa loquitur is not applicable in medical malpractice cases. The Missouri Supreme Court did not overrule Hasemeier but it may as well have.
The Missouri high court’s ruling in this case is consistent with common sense and, as the court noted, the trend in many other states including Kentucky, Nebraska and New York.
Jury Verdict Research(r) study reports that
rotator cuff injuries reached a 7-year high in 2006 with a compensatory award median of $72,667. This is almost 50% higher than previous reported settlements and verdicts in rotator cuff injury cases.
Our lawyers have never understood while the national data in these cases was so low. Washington D.C. rotator cuff injuries have averaged well over $100,000 for rotator cuff settlements and verdicts so we have never understood why the national average was as low as it has been. In any event, for whatever reason, rotator cuff verdicts are on the rise.
Our lawyers handle rotator cuff injury cases throughout the United States. Our lawyers have handled scores of rotator cuff injuries in car and truck accidents, typically in side collision or "T-bone" accidents. Our lawyers believe that insurance companies do not give fair value in most rotator cuff injury cases and our lawyers will fight to get you the financial compensation you deserve. Call a rotator cuff lawyer to protect you at 800-553-8082 or click here for a free consultation and case evaulation.
Related Posts
What Is the Value of Your Personal Injury Claim? (how the value of rotator cuff and other person injury settlements are calculated)
Sample Demand Letter (sample letter demanding settlement in a personal injury case)
Handling Your Claim Without a Lawyer (tips and pratfalls)
Jury Verdict Research's recent study finds that the compensatory median award for personal injury trials in New York is $287,628, dwarfing nationwide median is $34,550. The report is trials from 2001-2007.
New York has favorable juries, particuarly in its urban areas. But the reality is that this number is distorted by the lack of smaller and midsized car accident lawsuits. Under New York's no-fault law, an insurance company is required to pay drivers, passengers and pedestrians up to $50,000.00 for the legitimate economic and medical losses but does not provide for pain and suffering. Only permanent injuries cases can recover more than $50,000. This leads to less lawsuits in smaller cases - of which there are many - which increases the overall award in New York.
Lawyers representing Digitek overdose victims have filed nine lawsuits in New Jersey against Actavis Totowa LLL and its parent company Actavis Group, alleging a manufacturing defect in Digitek, namely that some Digitek tablets have contained twice the active ingredient of the drug. Digitek recall lawsuits have also been filed in West Virginia and California.
Our Digitek recall lawyers are reviewing these Digitek overdose cases in all 50 states expecting that a consolidated class action lawsuit will be appropriate (as opposed to this scatting of individual cases). If you want to discuss your case with one of our Digitek lawyers call us at 800-553-8082 for a free consultation or click here for a free Internet consultation.
New York limits an attorneys medical malpractice contingent fee in a medical, dental or podiatric malpractice case to 30 percent of the first $ 250,000 of the sum recovered; 25 percent of the next $ 250,000 recovered; 20 percent of the next $ 500,000 recovered; 15 percent of the next $ 250,000 of the sum recovered; 10 percent of any amount recovered over $ 1,250,000.
While contingency fees vary from malpractice lawyer to malpractice lawyer, 40% is a common fee in medical malpractice cases. So if a case settles or the plaintiff obtains a verdict for $1,000,000, the attorneys’ fees in many cases is $400,000. In New York, when a malpractice case recovers $1,000,000, the malpractice lawyer’s fee is limited to $225,000.
If you are not a malpractice lawyer, you might be thinking that this is not a bad payday for a single case. You are right. But the problem is that plaintiffs’ medical malpractice lawyers lose most cases. When a lawyer loses a case, he might lose $100,000 or more in out-of-pocket costs. This discourages many good lawyers from handling medical malpractice cases.
Because doctors and their insurance companies are not limited in what they spend on their lawyers, this creates an unbalanced playing field that favors doctors. Victims with legitimate malpractice claims suffer as a result. Good lawyers just find more lucrative cases.
It is easy to pass this kind of legislation because it appears to target the ostensibly already rich trial lawyers. But the reality is that victims with limited claims are the real losers.
The Times Union (Albany, New York) reports that after a three week trial before Supreme Court Judge Michael Lynch, a jury awarded Watervliet man and his wife $1.87 million in a medical malpractice lawsuit Tuesday against a doctor who Plaintiffs alleged failed to detect and disclose a high glucose condition leading to a stroke.
Specifically, the jury believed it was negligent not to advice the Plaintiff of the results of a blood glucose study that had been done. The jury found the doctor's negligence in this regard was a a "substantial factor" in his stroke. The doctor's lawyer contended that there is no evidence the Plaintiff would have acted had he been given the results of the blood glucose test.
Samaritan Hospital was also a named defendant but the jury did not find that the hosptial was negligent.
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