Friday, March 4, 2011 at 9:48AM Bruce G. Clark has been named one of Long Island's "Top Legal Eagles of 2011" by Pulse Magazine. The law firm of Bruce G. Clark and Associates maintains offices in Port Washington and Manhattan.
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Bruce G. Clark & Associates
(800) 675-5275
http://www.MedicalMalLaw.com
Friday, March 12, 2010 at 12:15PM Wednesday, January 27, 2010 at 3:51PM I participated in a medical malpractice panel this past August, and the transcript appears in the New York Health Law Journal, Fall 2009. Here is an excerpt of the article (reprinted with permission from: Health Law Journal, Fall 2009, Vol. 14, No.2, published by the New York State Bar Association, One Elk Street, Albany, New York 12207 [1-800-582-2452], http://www.nysba.org):
Bruce G. Clark: Let's look at what has happened in medical malpractice law in recent years, the statute of limitations was reduced from 3years to 2 1/2 for adults and from 21 to 10 years for children, the fee for plaintiffs' attorneys has been reduced from one-third to a sliding scale that goes down to 10%, then the medical malpractice panel was introduced. And that was a panel in which there was a doctor, a lawyer, and a judge. And if they were unanimous in their findings of either liability or non-liability, that could be mentioned to the jury.
We found that the findings of juries tended to be almost diametrically opposite from the findings of the panel. The panels also ended up in delaying malpractice cases, the resolution, for years, sometimes seven or eight years, because they were waiting for a panel. In Suffolk County, one law firm represented most of the doctors, and it was impossible to get a panel that did not have any kind of connection with the Wortman law firm.
So that was another reason why the panels did not work and where special malpractice courts, as it were, in microcosm was not a functional system.
As a practical matter, right now we do have malpractice courts. If you go to New York County -- and in almost every county -- there’s a select group of judges who are the brightest, the most experienced judges, who have experience and who are qualified, who are assigned the malpractice cases. Malpractice cases don’t go to the new judges, the uninitiated, or the judges who don’t know what the law is. So we do have malpractice cases being tried in malpractice courts by judges who are competent.
Most plaintiff's attorneys will not bring cases in the federal court because, while it might be a few months less processing time, to bring a case in the federal court results in probably twice the expense it takes to bring in the state court. Moreover, each federal judge has her own case load, including criminal cases. It is not uncommon for a federal judge to give a "rigid" schedule for the prosecution of the case with a definite trial date, only to have the judge start a 2 month criminal trial the week before the malpractice case is to be commenced. It is also very rare to find a federal judge who had any experience with medical malpractice cases before ascending to the bench or who has presided over medical malpractice cases as a judge.
Clinical practice guidelines, that's what medical malpractice is. If a doctor departs from the accepted standards of medical practice in treating a patient, that is malpractice. Negligence in medical malpractice is a departure from the accepted standard or departure from the practice guidelines. Regularly in the trial of these cases we'll look at the standards of the American College of Obstetricians or the published standards of other specialties as guidance. Paradoxically, an expert witness, on direct examination, cannot support her testimony by referring to a publication, be it a standard published by the specialty board or a learned treatise or article in a medical publication. The expert can, however, on cross examination be confronted with those publications in an attempt to impeach the expert's testimony on direct examination. The federal courts allow publications to be admitted into evidence. In my opinion, the state practice is more likely to result in a better verdict. As far as I am concerned, the system ain't broke and it doesn't need fixing.
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http://www.MedicalMalLaw.com
Wednesday, January 27, 2010 at 9:04AM Radiation is a miraculous tool when properly and conservatively used but capable of killing or maiming and disabling if used incorrectly. The misuse of radiation is a frequent claim in medical malpractice cases.
The most common source of radiation is sunlight, the source of all life but, if overdosed, capable of causing sunburn and short and long term destruction of skin. The most malignant and dangerous type of skin cancer, melanoma, is considered to be the result of over exposure to the sun.
X-rays are one of the most common of physicians’ diagnostic tools. They work by sending radiation through body parts to a sensor that translates the rays into pictures of bones or soft tissues. While the amount of radiation in diagnostic x-rays is small, overexposure can result in destruction of tissue and cancer in the patient or in the physicians or technicians who use radiation. It has been suggested that excessive dental x-rays can cause mouth cancer. Diagnostic x-rays range from the familiar plane film used in chest x-rays to computerized tomography, CT or cat scans in which thousands of x-ray impulses are projected and captured in a computer which provides pictures of the areas of the body millimeters apart making it possible for physicians to find minuscule abnormalities.
Radiation is most dramatic when used purposely employed to destroy tissue. Technics are available to precisely aim a beam of radiation to an area of cancer and destroy that cancer. Radiation can also be used for the obliteration of non-cancerous abnormal tissue.
Our office successfully represented a young person who had had thyroid disease that caused his eyes to bulge and appear pop-eyed. This patient’s physician suggested radiation to reduce the tissue behind his eyes. The patient was told that the procedure would be painless and would be effective in improving the patient’s appearance. He consented and received approximately twenty applications of radiation aimed at the tissue behind his eyeballs. Several months after the completion of the radiation treatments, he noticed that his vision was deteriorating. His ophthalmologist diagnosed radiation damage which continued to worsen even after the radiation treatment was stopped. The patient was left with less than 10% of his pre-radiation vision. After copies of all records were obtained and all doctors and technicians were questioned. Radiologists and physicists were consulted by our office. All experts agreed that the patient was damaged by excess radiation and that the patient should have been made aware of the possibility of blindness. The experts retained by our office agreed that the nature of the injury was such that it would only have happened if there had been medical negligence.
They could not, however, find evidence of negligence in the medical records of the treatment received.
Finally, a deposition was taken of the technician who operated the machine that projected the radiation and whose job was to record amounts of radiation given and the settings on the machine. At our insistence, the original records were produced for the technician’s deposition. As the technician was being questioned about her settings, it was noticed that the chart page containing over 20 entries supposedly made over months was unblemished except for the handwriting of the entries. Every entry was made with the same pen and with the same handwriting and angle of paper to handwritten characters. The technician admitted that it was her duty to record settings at each session and the entries were in her handwriting. When asked about pen and ink and handwriting which looked like they had all been made at the same time, she became embarrassed and unresponsive. The hospital attorney noted this serious defect in the technician’s behavior and testimony. Within weeks the case was settled for several million dollars.
The New York Times has reported that radiation injuries are often the result of faulty computer software, and quality-assurance procedures, or insufficient staffing.
The article in the Times notes that because there are not strict legal requirements for reporting radiation overdoses, many overdose cases are not reported to state agencies. In New York State hospitals are allowed to refuse to disclose findings of committees that monitor patient safety.
Wednesday, October 21, 2009 at 12:03PM
No problem, I did the lawyerly thing: the next time I was in Mineola, I stopped in to see the jury clerk with my notice. I was sure that there must be some exception for lawyers who work in the same court where they would be expected to sit as jurors. The clerk heard me out - Nassau court personnel are the most polite in the state - and then explained that there are no longer any exemptions for lawyers and that I had a right to one adjournment. It looked like I had to serve.
On January 16, I showed up at the courthouse wearing flannel shirt, corduroys and moccasins - I know from experience that jurors don't wear coats and ties. I did use my lawyer's identification card to get past the line at the metal detector. I thought the court officer raised an eyebrow. At 8:30, almost all the seats in the Jury Assembly Room were taken and there was a long line heading into the back where the jury clerk's office is. I got on the line assuming that was what you did. Eventually, I realized that most of the people sitting around were there for the first day of their service.
I found a seat and waited. They showed us a video about jury service. I watched it carefully, looking for some prejudicial statement that I could use as a basis for an appeal in the future. The only objection I had was that they really should have used an actor instead of a judge to play the judge. Then I went into a small room in the back and opened my shoulder bag in which I had brought two novels, Newsday, the Times and my laptop computer. I had a week ahead of me to finish the books I was reading and work on the one I am writing. What luxury. Better than a vacation.
The loudspeaker started calling out names. The three other people in the room I was in got up and left. I felt left out. About 20 minutes later, two came back. Both had been told that the trial would be at least three weeks and excused themselves. The woman was called again. I started talking with the man about jury service. He was a retired engineer who had been doing jury duty for 40 years. He said he usually gets rejected from panels. My first reaction was that I would not want him as a juror on one of my cases - engineers are math-oriented, precise, analytical, maybe trained to tune out the emotional questions that are the stuff of the medical malpractice cases I try.
We spoke for an hour, much more time than I can ever take getting to know anyone when I'm selecting a jury, about our lives, our work, our jury service. He told me of the death of his first wife and the happy life he had built in his retirement with his second wife. The man was a sensitive, intelligent and fair-minded person who would grace any jury. He was called again and I got up and found a seat at a table in a larger room next to an outlet where I could plug in my laptop.
A woman was reading a large-print mystery by Margaret Truman and a man was working on some kind of spreadsheet. I couldn't help tuning into the conversations around me as I pounded on my laptop. A waitress who worked two jobs was worried that she might not make her rent this month because of jury duty. A man came back after being rejected for knowing too much. He took care of the plumbing and heating systems in his family's greenhouse business. I was listening for reactions to lawyers. The only one I heard was, "He asked the same question to every single person. It was so boring. We were sitting in the back cracking jokes and laughing."
On my second afternoon, I was listening to a woman at the next table describe how she had learned how to express the anal glands of her Rottweiler-Shepherd mix when my name was called - finally. Thirty-nine other jurors and I were assembled and then escorted by a uniformed court officer to Judge John DiNoto's courtroom on the fourth floor. We were told to take seats in the back. I had the feeling of being out of control, ordered, gently but still ordered, from one place to another. The attorneys were sitting at the counsel tables and did not turn around. I didn't have my uniform: my suit and my briefcase, to set me apart. We were all without individuality. The court officer slapped his hand on the door, called out, "All rise," and we all rose.
The judge in his black robe came in and we were ordered to sit. Without taking the bench, the judge walked forward to the railing and explained that we were about to begin jury selection and read out the names of the parties to the case. He asked if any of the jurors had had any contact with any of the people he named. About five raised their hands. I did not recognize any of the people but had sued the defendant hospital. The fee had paid for a year of my daughter's college. Rather than be cute and stay sitting because the hospital wasn't a person and wait to be asked about attorneys, I raised my hand.
The six of us were told to walk to the front of the courtroom. A woman ahead of me was a teller in a bank where one of the defendant doctors did his banking. She was excused. Judge DiNoto recognized me, even without a tie, and told me to step up. The group of attorneys broke into smiles. I have cases pending against all of the defendants' attorneys. The attorney for the plaintiff was a nurse-lawyer, who had asked me for a job a few years ago. I was excused before I had a chance to say I had heard of the hospital. I asked the judge if I could sit in the room and watch the selection. He sent me back to the jury assembly room, no room for argument.
Later that afternoon another list of names, including mine, was called. We were told to bring our belongings and follow the court officer out the side door. I heard the phrase, "criminal court," and thought they don't know me there. Instead of a bus waiting, we were excused and told we did not have to come back for another four years. I looked around and saw some very happy people leaving with me.