New York Medical Malpractice

Following up last week’s news regarding the shuttering of the obstetrics ward at Long Island College Hospital in Brooklyn, the state of New York has decided to fight back. Wanting to close the ward due to rising medical malpractice premiums regarding obstetrics, the state claims the hospital must provide proof that other hospitals in the area can handle the patient load before they can do so. Will they be able to?

New York Methodist Hospital and Maimonides Medical Center told The Brooklyn Paper that their obstetrics departments are already operating at capacity.

“We are not in a position to accommodate a higher volume of maternity cases,” said Eileen Tynion, a spokeswoman for Maimonides, the Borough Park hospital that delivered 7,207 newborns, more than any other hospital in the state last year.

There’s also no room at the inn at Park Slope’s Methodist Hospital.

“We just expanded to meet demand and we are already at capacity,” said Lyn Hill, a spokeswoman for the hospital, which delivered more than 5,000 babies last year.

Local officials are stepping in to voice their opinions on the matter as well.

State Sen. Marty Connor (D–Brooklyn Heights), whose colleagues could force state hearings over the plan to close the birthing wing, called on Continuum to provide honest numbers.

“The service is too important to the community to allow it to close,” he said.

Judges increasingly don’t relate to the average citizen. Rinaldo Del Gallo III in The Times Union points out:

Judges are losing the ability to relate to average people. Their salaries are more than twice as much as the median household income in New York. They make so much money, they do not understand what a $250 speeding ticket coupled with surcharges can do to a family’s finances, how losing a third of one’s after-tax income in child support can lead to poverty, or what it means to lose a primary wage earner because of a slip-and-fall injury, medical malpractice or driver’s negligence.

This is a great explanation of why you need a responsible lawyer to make your medical malpractice case logical and compelling.

In New York, a medical malpractice insurance crisis has resulted in skyrocketing insurance rates, $50,000 surcharges, and calls for legal reform even from the Democratic governor and legislature. The Center for Justice & Democracy complains, claiming there’s nothing wrong with the legal system, and it’s all the fault of the insurance companies because they kept reserves too low by charging too little. (James T. Madore, “Spitzer to unveil plan to lower malpractice costs”, Newsday, Mar. 5; George Wallace, “Malpractice Crisis Looms For Area MDs”, Suffolk Life, Feb. 20).

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The idea of medical malpractice is certainly an unpleasant one. Patients would like to believe that doctors are committed—perhaps even perfect in their practice. Hearing the news that you or a family member has suffered serious injury because of a medical error can be distressing. You may feel one or both extremes, either believing that the hospital is responsible for the medical malpractice or that there is absolutely nothing you can do.

The truth is that doctors can make mistakes and some medical errors are nobody’s fault. However, medical malpractice involves a degree of negligence. Namely, that the medical professional had an obligation to provide care to the patient in the form of diagnosis and treatment, and breached that trust. Medical malpractice may involve any number of individual factors, including delaying treatment or diagnosis, using faulty equipment or performing while under the influence of drugs or alcohol.

What are some examples of surgeries and other medical conditions and situations that can lead to a malpractice lawsuit? The delaying of diagnosis or treatment in heart attack cases is not only a common problem but also the leading malpractice claim in the country. Birth injuries may be a cause of malpractice if the doctor acted negligently in treatment or surgery. Botched breast implant operations as well as elder abuse and prescription drug malpractice also have a higher number of claims.

However, taking a medical malpractice case to court, and prevailing for significant damages, can be a challenge. Questioning the practice of a credentialed doctor can be an uphill battle, since the doctor has a long list of friends willing to vouch for his or her professionalism. This is why consulting a qualified and experienced New York malpractice attorney is a must.

What determines a medical malpractice in New York? You cannot take a respected doctor to court only because of a medical tragedy. Bad things do happen, and sometimes even doctors can make mistakes. However, medical malpractice is beyond a mistake. This is a mistake that results from negligence and one that could have been prevented if proper, obligated care was given to a patient.

You must establish to an attorney, and later to a court, that a medical professional was responsible for the injury or loss of life. A medical professional can include a doctor, a pharmacist or a hospital. A lawyer has to prove that the injuries would not have resulted naturally, but occurred because of the negligent treatment. He or she also has to prove that the negligent care was below the minimum standard of care. After all, perfection in medical care is not a requirement.

Here are a series of questions that can help you determine if you may have a medical malpractice claim:

1. Did the injury occur while you were under the care of a medical professional?
2. Did your doctor disclose all specifics of the condition and all risks of surgery?
3. Did the doctor advise you properly and provide diagnosis and treatment?
4. Was there a delay in diagnosis/treatment that could have worsened the condition?
5. Was prescription medication the result of your injury?
6. Did the doctor refer to you a specialist in a timely manner or was there a delay?
7. Did your doctor investigate any and all abnormal test results?
8. Was there any faulty equipment used?
9. Was the doctor and his or her staff fully trained in diagnosis and treatment?
10. Were you rushed out of a hospital room or doctor’s care prematurely?

Your answers to these questions may prove to be telling in analyzing your NY medical malpractice case. Remember that you have the right to speak to a malpractice attorney regarding your options even if you don’t go to court.

Eufemia Martinez died from a botched gastric-bypass surgery. Not only was the surgery botched, it wasn’t even necessary.

“You heard about predatory lending? This was predatory medicine,” the lawyer said. “This surgery is a surgery of last resort. It’s not a cosmetic procedure.”

Martinez’s sons were represented by Trolman, Glaser & Lichtman, a New York Law Firm that specialized in Medical Malpractice. When asked about the the case, it was reported that:

The Bronx mom stood 5-foot-6 and weighed 230 pounds. But the doctor “changed the records” to make her height 5-foot-3 so she could be considered morbidly obese to medically require the surgery, Lichtman said.

Her two sons were awarded $17 million from North General and the doctor involved with the surgery. The New York Post has the full story in their artice, Just Desserts.

Newsday listed what they feel are David Paterson’s Long Island to-do list. Among the many todos, deal with the ongoing medical malpractice issue. Specifically, implement reforms that reflect the needs of all involved.

Making sure medical malpractice insurance is affordable for the state’s doctors is a real challenge. With obstetricians on Long Island already paying, on average, $177,880 a year, double-digit premium increases could drive doctors to relocate.

There are signs that the debate has moved beyond the fight over capping noneconomic damages awarded in lawsuits. That’s progress. The state needs nuanced reforms that reflect the concerns of consumers, insurance companies, doctors and patients harmed as a result of negligent care. It’s a tall order.

You go to the doctor, or maybe a physical therapist, and they apply a heating pad for treatment. If you are burned by the heating pad was there medical malpractice or simple negligence? That was the issue last week in Morales v Carcione, 2008 NY Slip Op 01513 before the Second Department.

Conduct may be deemed malpractice, rather than negligence, when it constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician.

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In case you missed this report a few months ago, the medical malpractice cost for New York continues to climb.

Medical malpractice cases cost the city $155.2 million in 2006, up 6% from the $145.9 million of the year before, according to a claims report published yesterday by the city comptroller’s office.

Even as costs increased, they fell short of the high of $195.4 million in 2003. The number of malpractice claims filed also dropped in 2006, to 699, the lowest number in a decade and 15% less than some 820 claims filed in 2005.

Settlements among the city’s 11 public hospitals increased to $152 million in 2006, up 20% from $126.5 million in 2005.

So, which hospital is the worst offender? It appears that Kings County Hospital has the most claims.

The hospital with the most malpractice claims filed against it was Kings County Hospital in Brooklyn, which had 98 claims filed against it in 2006, up from 93 the year before. Kings County also cost the city the most in settlements. The city paid $33.6 million in settlements there in 2006, up from $26.6 million in 2005.

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