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Bruce G. Clark & Associates
(800) 675-5275
http://www.MedicalMalLaw.com

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

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.

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.

Just what is a million dollar personal injury case? The best approach may be to consider the case backwards. In other words, look at the damages first. The plaintiff's life must have been devastated by the injury. There has to be either brain damage, loss of sight, paralysis or some smaller injury that affects the particular plaintiff's life drastically. Damages are awarded for "pain and suffering".

"Pain " and "suffering" are not the same thing. Pain is the familiar entity that is sometimes helped by analgesic medicine. It is the sensory discomfort that results directly from injury to some physical part. It always diminishes and often disappears in time. It is, however, that element of damages that is most easily translatable into dollars and cents in the verdict. Great pain necessarily begets a large verdict. Suffering is the more important and more valuable element. Suffering is what has happened to the plaintiff's life as a result of the injury. It is the loss of the normal attributes of life that every human being has a right to enjoy.

A person suffers when he or she cannot walk, talk, see, play, dance, go to school, fall in love, work, marry, have children, look nice, use the bathroom or do any of the things that might sometimes be considered as problems but are the normal aspects of life. Fear is suffering. The depression that follows terrible injury and so often brings the plaintiff to thoughts or attempts at suicide is suffering. Suffering endures. A young woman who is crippled from age 14 to age 24 when she is cured will bear scars for the rest of her life from not having been able to finish school, have a social life, marry, and have children during those important early adult years. An injury that might be slight to most people can destroy the life of a person in a particular field. A surgeon whose only injury is the inability to focus his eyes at short distances will endure suffering that is amplified by the years and years of education and preparation to practice his art and by the emptiness left by the loss of the most important aspect of his life, not to mention lost income.

Lost income is that aspect of many personal injury cases that gives the attorney the opportunity to bring out concrete proof during the trial that brings the case into the million dollar category. Ordinarily it is only in the closing argument that amounts of money can be discussed. If, however, the plaintiff has any work history or there is a reasonable probability that the plaintiff would have worked but for the injury, it is possible to prove the enormous amounts that would have been earned over the remainder of the working life expectancy.

After the proper foundation has been laid an economist is usually called to testify to the total income that would have been earned, the inflationary expectations regarding income and the discounted present value. Even if the plaintiff has never worked and the jury may infer that he or she would have worked, an economist may be asked to project what the lost income would have been if the plaintiff had worked at the minimum wage and at some jobs that such a person might reasonably have been expected to assume. Given good damages you must also have good liability for the megaverdict. The more definite the liability, the more likely the jury is to award the full value of damages. Conversely, if liability is weak the jurors will begin deliberation on an uncertain footing. The compromise and argument that are spent in arriving at a liability determination will deplete the enthusiasm for fully compensating the plaintiff for the damages.

Good liability means more than just putting in a prima facie case. Good liability means knocking the defendant down and then stamping on him so badly that he can't get up and doing it in such a way that the jury does not feel sorry for the defendant. It is that factor that makes the jury so angry at the defendant that they cannot wait to punish him. In a malpractice case that can be done by proving fraud by the defendant that not only was designed to protect himself from suit but had the result of endangering the plaintiff's life and frustrating further treatment. In an accident case the defendant's wanton and reckless actions are such proof.

While plaintiffs must be very careful not to introduce evidence that is so inflammatory that it becomes reversible error, testimony showing how terribly the defendant acted is never reversible. It is good inflammatory prejudicial proof that leads to the million dollar verdict. Two "erb's palsy" cases tried by the author in which the juries arrived at vastly different verdicts provide good illustrations.

Erb's palsy is a paralysis and lack of growth of the arm that results when a child is too large for its mother's birth canal and the physician delivering the baby pulls and twists the head. The process breaks the nerves that supply the arm. In the first case the doctor had delivered the child's mother and had treated her and her family for over thirty years without charging a fee. The doctor had died before the lawsuit was instituted and the only evidence upon which liability could be based was the single statement, "shoulder dystocia", in the hospital record. This means that the child's shoulder got stuck. The jury awarded $250,000.

In the second case there was proof that the doctor completely ignored the mother's family history of diabetes and one of his own tests that showed that the mother herself became diabetic during pregnancy. Maternal diabetes causes the child to grow very large. He then took no note of the enormous size of the mother. The child was 11 pounds at birth. During the delivery there was testimony that the doctor pulled and twisted the child's head until his arms were so tired that he had to stop. Another doctor who was in the vicinity of the delivery room testified that the defendant walked away from the delivery while the child's head was partially delivered and refused to proceed. The second doctor testified that it was apparent to him that the child was dying so he came in, did the proper maneuver to deliver the child, delivered it and was out of the delivery room in less than two minutes.

The jury was so incensed at the defendant's multiple errors including leaving the child to die that they awarded $2,500,000.

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