Obama’s Already Made His Deal With the Doctors
September 10, 2009

1219484_caduceusOne thing that I have noticed is that the fallout from President Obama’s speech has already begun as members of both parties begin to spin the speech. What is obvious, from Obama’s own words in his speech, is that he will pacify the doctors and look to take away our legal rights by insulating the medical community from their malpractice.

“I don’t believe malpractice reform is a silver bullet, but I have talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs,” Obama said in his speech to the nation. I for one don’t understand what “defensive medicine” means. I understand that doctors are claiming that they order “unnecessary” tests in order to prevent lawsuits, that they will order a CT-scan instead of a simple x-ray. If that’s the case, I want defensive medicine to continue. I want the best medical care available to me and I don’t want doctors to play the odds or to make an economic decision about my treatment.

In order to win a malpractice case, you must prove that your doctor’s actions deviated from the generally accepted standards of care. To prove the standard of care, you will need a doctor to testify, as a medical expert, as to the standard of care. Its just about impossible to win a medical malpractice case unless you have that expert. Doctor’s blame plaintiff’s attorneys – but you can’t win a case without a doctor willing to testify against another doctor about what they did wrong.  

A non-defensive doctor might normally order an x-ray based upon his examination of a patient. A CT-scan would be a better diagnostic tool because an x-ray may not always find what is affecting the patient; however, the CT-scan may cost 10 times as much as the x-ray. In my opinion, the doctor performed a cost-benefit analysis on your medical care. The CT-scan was not worth the cost based on the likelihood of what was possibly affecting the patient. Although the CT-scan could have uncovered the ailment, the doctor didn’t feel the cost was worth a possible life-saving find.

Some doctors argue that the practice of defensive medicine is driving up the standard of care. Their argument is that medical care is getting too good which equates to “too expensive.” When a human life is involved, how can medical care be too good? Is the increase in available testing the result of increased costs or an evolution in medicine? Who is to say that a human being is not worthy of a test or exam? When today’s common medicines were first introduced, would their use at the time constitute “defensive medicine”? I think that a doctor should use the best medicine and equipment available, not defensively, but to ensure that a human life is saved and not to reduce healthcare costs.

But the president’s idea of reducing health care costs by cutting down on lawsuits isn’t the same as Republicans, who want to cap lawsuit damage awards. Instead, Obama plans to run with an idea left over from his predecessor’s administration and fund pilot projects in states that trumpet patient safety.

In one approach, the Department of Health and Human Services would fund projects aimed at limiting lawsuits by encouraging doctors and clinics to disclose accidents early and apologize to patients when appropriate.

Experts point to the University of Michigan Health Care system as a potential model. Malpractice claims in the system dropped by 55% between 1999 and 2006.

“If we make a mistake, we’ll move quickly to apologize and compensate that patient. But if we didn’t make a mistake, we talk to the patient and explain,” said Richard Boothman, chief risk officer for the University of Michigan system.

Unfortunately we now have to wait to see what the outcome will be of the behind the scenes dealing and political arm twisting. Will your constitutional rights be forever taken away or will medical professionals be held accountable for their actions?

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Universal Healthcare leads to “Tort reform?”
August 21, 2009

CaduceusDespite what anyone says about the provisions contained in the universal health care proposal, I can guarantee that medical providers will need to make some concessions, financially, to even begin to allow the idea to work. Since medical providers will be forced to see more patients for less money, the President’s plan needs to be “sweetened”, especially for doctors. Doctor’s have been lobbying for years for “caps” on medical malpractice awards, claiming that their malpractice insurance premiums are too high because of the jury awards. Research has shown that despite medical malpractice awards on a downward trend in New York State, and Staten Island, malpractice insurance rates have continued to rise.

Doctor’s claim to order more “unnecessary” testing to combat possible malpractice claims. They claim that they need to reduce these “defensive” tests to save money. If these tests are “defensive”, in an attempt to thwart medical malpractice liability, are they really unnecessary? If these so-called defensive tests have the opportunity to uncover some hidden ailment, why are they not “routine”? At what price do we as a consumer place on our lives?  If the doctor’s failure to order these tests is the basis for holding them liable, these tests are not “unnecessary”. We have access to the greatest medical care in the world, why should we not be tested? The argument used to be that the health insurance companies were not authorizing the tests solely because of  “cost” – now that the government is trying to take the place of health insurance companies, the test have become unnecessary.

The President appears ready to strike a deal and place caps on malpractice awards for pain and suffering in exchange for the doctors backing of the helath care proposal.  The President and the Doctor’s will get what they want but the consumer will suffer if they are ever the victim of medical malpractice. Be careful of what rights you allow the government to take away. Your life may depend on it.

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Universal Healthcare? How would it affect my Car Accident?
July 23, 2009

You might be asking how President Obama’s health care plan would affect your car accident? You are probably not asking yourself that question because most Staten Island residents have never been involved in a car accident before and haven’t needed medical care after a car accident. 

New York, as well as many other states, enacted a no-fault statute that took away some one’s right to start a lawsuit for injuries resulting from a car accident if they didn’t suffer a “serious injury.” A serious injury is something more than a bruise, but recent rulings have said that even herniated discs are not “serious” and you would be unable to bring a lawsuit. Despite your painful injuries, the legislature took this right away from you in exchange for providing some medical benefits to you.

The no-fault laws were enacted to stem the supposed tide of lawsuits brought on by the injured victims of car accidents. The widely accepted belief for the lawsuits was that since injured victims did not have medical insurance, they needed to started a lawsuit to help pay for their medical bills. Does the new health care bill take away the need for no-fault coverage? I believe that it does. Since everyone would be covered, there would be no need to include no-fault coverage in your insurance policy. Car insurance companies would be relieved of the burden to and auto insurance rates would drop dramatically. No longer would the car insurance companies be able to pridefully announce the bust-up of a no-fault fraud ring in New York. I am sure that they would pass that savings on to you. If you believe that, I have a nice bridge to sell you.

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I was in an accident with a police car!
July 10, 2009

police-cars-1aSilive is reporting that 2 police officers were injured in a car accident while responding to a 911 call. Apparently, as the police were responding to the call, travelling along Hylan Boulevard, another car, driving in the opposite direction, was attempting to make a left turn and hit the drivers door of the police car, sending both cars spinning. The article makes special note that the “lights and sirens” were on at the time of the accident. You may wonder why that fact is so prominently mentioned, especially if you are the driver of the other car.  You may be waking up this morning and have a totally different version of how the accident happened, questioning if the police actually had their lights and sirens on.

In New York, the law allows police to speed, run red lights and stop signs and even drive on the opposite side of the street as long as they are responding to a call with their lights and siren’s on. If they did not have their lights and sirens on and an accident happened, they would be negligent, just like you or I would be if we ran a stopsign. But the law allows police officers to be negligent, just not reckless.

Section 1104 of the Vehicle and Traffic Law relieves the driver of a police car from the duty to obey the otherwise-applicable rules and regulations governing the movement of vehicles, but does not relieve the driver from “the consequences of his reckless disregard for the safety of others.” In a personal injury suit against the City of New York, you would need to prove that the police officer was reckless – meaning that the police officer would have to commit an act knowing that harm would follow and not care about the outcome. You would think that would be easy.

Unfortunately, the courts favor to the police officer. In a recent case, a police officer responding to an emergency failed to stop at a stop sign and entered an intersection with a four-lane highway. His view of the traffic was obstructed and he failed to see an oncoming vehicle, resulting in a collision. The courts said that the police officer “enjoyed a qualified privilege pursuant to Vehicle and Traffic Law § 1104 which permitted him to disregard the ordinary rules of prudent and responsible driving.” Even though he couldn’t see other cars, the court said that the officer’s conduct did not amount to reckless disregard for the safety of others.

On Staten Island, we see too frequently police cars going through stops signs and red lights, not because they are responding to an emergency but simply because they feel they don’t have to wait like you or I. With the courts in their favor, and no one to police them, its just another danger that Staten Island residents have to be on the lookout for.

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Unlicensed teen leads police on chase through Staten Island
July 8, 2009

910919_nyc_taxi_1_2Silive is reporting that a teenager led cops on a chase through Staten Island today, causing pedestrians and other drivers to dodge his car as he ran through red lights and stop signs. Although it doesn’t appear that the chase caused any injuries, as an attorney, I always look at “what if?” – what if he did hit a pedestrian or hit a car – whose insurance would cover the loss?

Although the driver was unlicensed, the car he was driving may still be “insured.” The insurance company for that car may try and disclaim coverage – that means that they will say they are not responsible to pay because the terms of the policy were violated – and the car will be “uninsured.” In order for the insurance company to try to disclaim coverage, they may claim that the car was taken without permission by the unlicensed driver. Under the terms of most insurance policies, the lack of  ”permissive use” may allow the insurance company to decline any financial responsibility. As the car’s owner, although you have paid your insurance premiums, your insurance company will not stand by you, despite what the TV commercials may say, and you will be left to defend any claims made against you on your own.  At your expense.

If you are a pedestrian, and don’t own a  car, you may apply for medical benefits and compensation for your pain and suffering through the New York State Motor Vehicle Accident Indemnification Corporation, or MVAIC. MVAIC protects New York State residents from accidents involving ”hit and run” or uninsured drivers. The MVAIC benefits are the minimum financial benefits mandated by New York State law, which in some circumstances, may be insufficient to compensate you for your injuries.

If you own a car, you may be able to proceed under the “uninsured motorist” coverage of your own car insurance policy. If you have done your homework and read my book, A Lawyer’s Guide to Car Insurance, you will have already purchased sufficient insurance to protect you in an accident. If you have only the New York State minimum required insurance, you may not be able to recover enough money to cover your losses.

If the driver was unlicensed but still had the owner’s permission to use the car, that car’s insurance will cover you against the physical and financial losses that you may sustain, provided you reach the “No-Fault Threshold.” Regardless of the extent of your injuries, you will be eligible for no-fault benefits, which provides medical coverage and lost earnings due to the accident. However, unless you sustain a  “serious injury” in the accident, you may not be able to sue for your injuries.

It is important that if you own a car, you purchase sufficient insurance to protect you in a car accident. Unfortunately, most people discover too late that their policy doesn’t provide them with enough coverage in the scenarios discussed above. Take the time to read through the declaration page of your insurance policy and speak with your broker to make sure you are covered.

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Unseen dangers lurking in the pool?
July 6, 2009

579156_swimming_poolBased upon the title of this post, most people fear the danger to be some high levels of bacteria present in their community or swim club pool. However, the danger lies not in the water but on the bottom of the pool, in the form of the pool drain. The design of most pools includes a single high-volume drain, with a flat cover, flush to the bottom of the pool. The design allows the human body to obstruct the drain, causing great suction which can hold the person or their hair to the bottom of the pool, sometimes with hundreds of pounds of force. Numerous tragic drownings like this occurred throughout the United States over the last 10 years that have brought the danger to the forefront. In 2007, President Bush signed the Virginia Graeme Baker Pool and Spa Safety Act  into law. The law is named after the late granddaughter of former Secretary of State James Baker. 7-year old Virginia died when she became trapped underwater in a swimming pool while at a friend’s pool party. The suction at the pool drain was so great that despite the efforts of two grown men, it took 10 minutes to free Virginia. By that time, it was too late to avoid a tragedy.

The Act mandates that as of December 2008, all public pools and spas meet anti-entrapment safety standards issued by the Consumer Products Safety Commission. The standards require that all pool drain covers be designed to prevent body, limb or hair entrapment. The drain covers on most public pools are flat and flush with the bottom of the pool. If a person blocked the drain, the suction could be amplified, trapping the person underwater with hundreds of pounds of force. The new drains are designed to allow water to continue to flow into the drain, reducing the suction and allowing the person to return to the surface. In addition to the drain covers, public pools must be equipped with automatic shutoff valves or other devices designed to prevent the risk of injury or death associated with pool drainage systems. The Act goes so far as to provide safety standards for the construction of new pools, mandating pool drains that reduce the possibility of drowning.

The Act is absolutely necessary step as drowning is the 2nd leading cause of children under 14 years of age. Despite it’s good intentions, my concern is the enforcement of the Act. As of very recently, many people responsible for public swimming pools were not even aware of the requirements of the Act. Remember, a “public pool” under the Act includes the pool in the Heartland Village, the pool at the Island Swim Club, or even the pool in the Hilton Garden Inn hotel. Staten Island is filled with numerous other pools that fall under the “public” banner but there is no central website to determine if the Act has been complied with. I know of no document that a pool is required to display to certify their compliance with the Act.  How do you know if the pool you are entering is safe?  The best prevention is to always supervise your children when they are in the pool. Know where the pool drains are located and make sure your children stay away from them. Only a parents ever-vigilant supervision can truly prevent a child from suffering a severe injury or even death.

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Staten Island Ferry loses power and crashes into slip
July 2, 2009

imagesAnother major Staten Island Ferry accident was likely avoided due to the painful lessons learned from the 2003 crash of the M/V Andrew J. Barberi. Yesterday, the ferry boat John J. Marchi lost power while entering its slip at the St. George ferry terminal on Staten Island. Without power, the ferry was unable to slow down and essentially crashed into the slip and the wooden pilings surrounding it without slowing down. Although 15 people were injured, tragedy was avoided due to the actions of the now ever-present crew members and improved public address systems.

My firm had the privilege of representing a passenger injured in the 2003 crash of the Barberi and much knowledge and insight was learned into the workings of the Staten Island Ferry operations. Before the crash, most deckhands would leave the decks and wait out the ride inside the crew-only spaces. When the ferry slowed down to dock, the deckhands would re-emerge onto the deck and prepare for docking. During the Barberi crash, the ferry never slowed down and the deckhands didn’t know that they were so close to the slip. If the deckhands were on the deck that day, they would have seen that the ferry was fast approaching the dock and could warn passengers to move away from the front of the ferry, where the impact occurred.

Yesterday, those lessons learned were put into action. Deckhands were present on deck at all times and warned the passengers of the impending crash, moving them away from the front of the ferryboat. New loudspeaker systems installed after the Barberi crash warned passengers to “hang on” and enabled many people to brace for the impact. If the new practices were not enacted, I could only imagine how many passengers would have seriously been injured just as I could only imagine how many less people would have been killed or injured if theses common-sense safety rules were followed in the Barberi crash. I am thankful that when faced with hundreds of claims, the City of New York realized that in the interest of safety, changes were needed. Those changes most certainly saved many more passengers from injury yesterday.

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Hylan Boulevard pedestrian improvements a danger to drivers?
June 29, 2009

317932_stop_pedestriansI am sure that most of you have noticed a few more trees in the median on Hylan Boulevard. Along with those trees, the City of New York Department of Transportation has attempted to improve the safety of pedestrians crossing one of the most dangerous streets on Staten Island. The Staten Island Advance has called Hylan Boulevard Staten Island’s version of the “Boulevard of Death.” Hylan Boulevard has claimed the lives of 5 senior pedestrian’s from 2001-2006. One of the most notorious and deadly intersections is that of Hylan Boulevard and New Dorp Lane. The City of New York has recognized the danger posed to pedestrians and has undertaken an ambitious program to protect pedestrians but at what cost?

The City and the DOT have painted new, high-visibility crosswalks, installed fencing to keep pedestrians safely out of traffic, and painted “stop bars” at the start of the intersection to signal to drivers where they should stop for yellow and red lights at a safe distance from the crosswalk. They have also installed heavy metal “bells” in the median, presumably to protect pedestrians who didn’t have enough time to finish crossing the street from the cars streaking along Hylan Boulevard. Unfortunately, the “bells”, which are approximately 2 1/2 feet high and painted black, are most likely isnbatleld below the site line of most cars and so near the road that they are a danger to cars, especially for turning cars. The shape of the “bells” and their location appear to enable cars to ride up and over them, with potentially devastating effects. It is believed that at least one accident was already caused by these “bells” and it is readily apparent from the scuff marks on the bells that numerous cars have hit them already, just a few weeks after they were installed. In order to protect the pedestrians, should driver’s safety be put at risk? The bells need to be removed or redesigned immediately to prevent any further injury or accidents. Although the safety of pedestrians is paramount, driver’s should not be subject to severe injuries in exchange for their safety.

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An Injury Lawyer Visits a Staten Island Chiropractor
June 26, 2009

1193404_spineYesterday, after dealing for years with chiropractors and physical therapists in my personal injury practice, I went for a treatment. I had hurt my lower back “spring cleaning” and despite rest and the heating pad, I was not feeling better. I have always heard from my clients that without a chiropractors help, they would be unable to walk. With my pain becoming debilitating, I called up a well known Staten Island chiropractor and made an appointment for that afternoon. Driving to my appointment through Staten Island traffic, I was anxious to get started with treatment. Sitting down in my car wasn’t making me feel better. The doctor’s office had me fill out the usual paperwork and then put me in a  consultation room. I told the doctor what I did and where it hurt. The pain was in my lower back and an x-ray confirmed that the discs at L4-5 and L5-S1 were out of line. I was first put on a machine that put heavy rollers under my back. Already I could feel my back loosening up. I then transferred to another table where the doctor was able to “pop” my discs back into place. After some heat treatment and electrical stimulus, I felt incredibly better. Despite the sometimes negative view of chiropractors by “medical doctors”, such as orthopedists, they are able to restore mobility and quality of life to those injured in Staten Island car accidents.

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Get ready for the next victim of the recession: Car insurance!
June 19, 2009

Here on Staten Island, with every house having what seems to be at least three cars per family, the next way to save money in tight times is to reduce the amount of insurance coverage carried for their cars. Instead of high liability limits, people are now reducing their coverage to save money on their monthly premiums. With the average car insurance bill running $1,200 per year for a single car in New York State, people are looking to cut back their expenses any way they can. This means that when you are involved in an accident with a driver that recently lowered his coverage, you may find yourself looking to your own insurance policy to make up the difference. Remember, New York State only requires you to carry $25,000 in liability insurance. In a serious car accident, the value of your injuries could easily exceed these minimum policy limits. Silive has reports everyday of car accidents occurring on Staten Island, some involving those big, expensive SUV’s that can cause extreme damage to an average sedan in a car accident.  If you are involved in an accident with a driver that has minimal limits, the “underinsurance” portion of your own car insurance policy would kick in to make up the difference. So in these tough times, it has become even more important for you to protect yourself against the underinsured. If you are unsure if the amount of insurance that you carry is sufficient to protect you, call your insurance broker or call or write for my free book, A Lawyer’s Guide to Purchasing Car Insurance. It’s free and what better word than “free” could you hear in this economic climate!

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