State lawmakers continue to be concerned about the serious potential impact of the escalating costs of medical malpractice coverage: limited access to health care resulting from a loss of healthcare providers. To address this concern, many of the 2004 state legislative sessions have taken steps to avert this outcome.

These efforts have focused on establishing fairness for both the injured party and the healthcare provider in the event of an alleged medical malpractice event. Many states are considering measures that will require that all filed claims be reported to the state to support the legislative analysis needed to improve the system. Tennessee, in particular, has already passed legislation requiring medical malpractice insurers to submit information to the Department of Commerce and Insurance regarding claims and lawsuits resulting from medical and civil liability.

Other states are examining the way these cases are heard and amending existing law to either require pretrial hearing or certification of claims. Arizona lawmakers, for example, have enacted legislation to create a process of certification for all civil actions against healthcare providers to curtail frivolous medical malpractice lawsuits. In addition, a number of states have addressed comprehensive medical malpractice reform, most notably Connecticut and Missouri.

onnecticut. After thorough debate, members of the Connecticut state House rejected an amendment to a proposed bill (HB 5669) that physicians hoped would reduce their medical malpractice premiums. HB 5669 contained several provisions concerning malpractice, including tax credits for insurance premiums, review of noneconomic damages, and mandatory mediation. The amendment would have limited noneconomic damages, also called “pain and suffering” damages, to $350,000 for physicians and $650,000 for hospitals. A version of the bill passed by the Senate did not limit noneconomic damages, however, prompting Governor John G. Rowland to veto HB 5669. The governor also asserted that HB 5669 ignored the crisis of access to healthcare professionals, provided no real relief for physicians or patients, and would have given the false impression that lawmakers had effectively addressed the issue.

New research published in the latest issue of Journal of Empirical Legal Studies examines Texas medical malpractice claims and finds no tort crisis. Instead, the study’s authors find that, over a 15 year period, the system was largely stable and generated few significant changes in claim frequencies, payments, or jury verdicts. “Average payments on medical malpractice claims rose because small claims were squeezed out of the system over time, not because payments on larger claims increased,” the authors explain. The authors used a comprehensive database of insured closed claims maintained by the Texas Department of Insurance since 1988. The data presented a picture of stability in most respects and only moderate change in others. Their research also revealed a weak connection between claims-related costs and short-to-medium fluctuations in insurance premiums. “Our hope is that better understanding of the claims process will lead to reforms that address real shortcomings in the malpractice litigation and claims payment systems, rather than respond to anecdotes or the rhetoric of crisis” the authors Bernard Black, Charles Silver, David A. Hyman and William M. Sage conclude. From 2000 to 2004, the increase in premiums collected by the leading 15 medical malpractice insurance companies was 21 times the increase in the claims they paid, according to the study.

Few people would disagree that the current state-specific medical liability systems throughout the United States are slated for significant changes to address what many have termed the “medical malpractice crisis.” (1) Although there seems to be consensus regarding the breadth of the so-called crisis and the need for successful reform, there is little agreement regarding which methods of change will result in the most effective strategy for medical malpractice reform. The fact that more than 400 legislative bills on this topic were filed in 48 states in 2005 is indicative of the diverse, and oftentimes contentious, solutions to reform. (2)

The numerous solutions suggested by state legislators illustrate that medical malpractice reform is a multidimensional issue that cannot be resolved with one distinct strategy. Legislators must take a number of factors into consideration when proposing medical malpractice reform strategies, making the task both complex and controversial. Among the many elements that factor into the reform strategies are economics (eg, rising health care costs, increased medical malpractice insurance premiums, jury awards in malpractice lawsuits); patient rights (eg, access to quality health care, compensation for negligent medical acts); regulatory aspects (eg, of physicians, the insurance industry, attorneys); and the affect of the proposed law on existing laws both at the state and federal levels.

This article explores some of the reform strategies that state governments have adopted, including the elements of the medical malpractice system the state legislatures intended to change. It also provides a brief discussion regarding the states in which medical malpractice reform initiatives are anticipated to continue during the 2006 state legislative session. Overall, this article explores the extreme complexity and political polarization that state legislators face in attempting to successfully achieve medical malpractice liability reform.

1. Brenda D’Client comes into my office with many problems.

“My doctor did my plastic surgery wrong. I can see my scar. See, look close, it’s a line right below my belly. He promised me I wouldn’t have any scars.”

“I was given the wrong medication by the pharmacy and I have bruising all over my body.”

“I had a terrible reaction to the anesthesia and now have to get follow-up treatment including a blood patch, and medications.”

2. Each of these scenarios represent someone who strongly believes that they have been wronged by a doctor, pharmacy or hospital.

Unfortunately for each of them, they don’t have all of the required elements needed to bring a successful malpractice case in New York.

In a malpractice action, I have to prove not only that there was wrondoing, but the wrongdoing has to have caused injury, and the injury has to have been significant and/or permanent. If any one of those aspects are missing, there’s no case. Oh yes, all of those three elements must be confirmed by a medical expert, before I can go ahead and start a lawsuit for you in the State of New York.

3. So, why are these cases too small for most New York Medical Malpractice attorneys?

In the first scenario, Brenda’s injuries are minimal. It becomes financially impossible to bring a lawsuit for someone where the injuries are so small as to be virtually unoticeable to the average person.

In the second scenario, Brenda appears to have been injured by the pharmacy’s dispensing the wrong medicine. But in this case, the damages are limited, and Brenda is expected to make a full recovery shortly. Again, it becomes financially impossible to bring a malpractice/negligence lawsuit where the injuries are temporary (such as bruising).

In the third scenario, Brenda experienced a well-known side effect of anesthesia. For her, there’s no malpractice here. There was no way to prevent this condition from occurring, and no alternatives to the procedure she had. Unfortunately, she had a bad outcome to a procedure, without any evidence of wrongdoing. Again, it becomes impossible to accept such a case to prosecute.

Conclusion

Since a New York medical malpractice attorney takes a case on contingency (this means that he only gets paid if he is successful in obtaining money for you), he must lay out a considerable amount of money to prosecute your case.

Not only does he have to make sure you have a valid and meritorious case, but has to determine whether your injuries rise to the level where you will receive sufficient money after all of his expenses and legal fee are taken out. What good does it do you, if most of the money is used for expenses and legal fees and you are left with a small amount of money?

It is for this reason that most New York Medical Malpractice lawyers can only accept cases that have a certain value.

Attorney Oginski has been in practice for 17 years as a trial lawyer practicing exclusively in the State of New York. Having his own law firm, he is able to provide the utmost in personalized, individualized attention to each and every client. In our office, a client is not a file number. Client’s are always treated with the respect they deserve and expect from a professional. Mr. Oginski is always aware of every aspect of a client’s case from start to finish.

Have you ever wondered why there’s so many lawyer advertisements?

It’s because lawyers think that injured victims don’t know how to choose an attorney on their own. Guess what? They’re right! If you’ve got a billboard in front of you after you’ve been injured that says something like “Is your car totalled? Did you break your bones? Call our law firm…” Isn’t this a call to action? Sure it is. But is this the best firm for you? Let’s see.

Your family lawyer is great to have general legal issues taken care of; preparing your will, maybe some business matters, parking tickets, small claims court, or maybe even some personal injury. When you’ve been injured by a doctor or a hospital, your family lawyer is probably the first one you’re going to turn to for advice.

But, is he the right person for the job? Maybe, maybe not. Medical negligence, or medical malpractice is a very specialized area of law. Extensive knowledge of medicine, while not required, is often helpful in prosecuting a malpractice case. The defense lawyers who represent the doctors and hospitals are usually a sophisticated group of trial lawyers. You want your attorney to be familiar with the defense attorneys, and you want your attorney to have experience handling, prosecuting and trying malpractice cases.

It’ll do you no good if the biggest case your family lawyer has had involved a minor injury or a ’soft-tissue’ case. Ask your family lawyer if he handles malpractice cases regularly. Having a few personal injury cases, does not make him an expert trial attorney in a malpractice case.

Nor should you let your family lawyer put your case into suit to try and ’squeeze’ a few dollars out of the malpractice insurance company- for a quick settlement. Why? Because it dosen’t work with malpractice claims. They’ll quickly realize that your lawyer doesn’t have the ability to take your case to trial, and your case will suffer because of it.

A law firm that has taken cases to verdict and is not afraid to try a case stands a better chance of getting a good result, than a lawyer just looking for a quick settlement.

Just remember- your family lawyer may be a great lawyer- but think long and hard whether you want him (or her) to handle your malpractice case. Ask lots of questions, and choose wisely.

Attorney Oginski has been in practice for 17 years as a trial lawyer practicing exclusively in the State of New York. Having his own law firm, he is able to provide the utmost in personalized, individualized attention to each and every client. In our office, a client is not a file number. Client’s are always treated with the respect they deserve and expect from a professional. Mr. Oginski is always aware of every aspect of a client’s case from start to finish.

He helps navigate the murky waters that can trap an unknowing victim into muck and mire.

When a person slips and falls, causing injury, your lawyer needs to find out why you slipped.

Was there a defect on the property that should have been corrected? Was it simply that you didn’t see where you were walking? Was the staircase not up to code so as to make it dangerous? These are the questions your lawyer will need to examine.

Products causing injury

This is known as product liability. Let’s say you opened a bottle of soda and the cap exploded off the bottle and into your eye causing permanent damage. Is the bottling company to blame? Possibly. How about a miter saw that is supposed to have a guard to protect your fingers as you slide the wood into the cutting blade? What about a car that permits you to move the gear into reverse without first putting your foot on the brake? (This is called a gear interlock to prevent kids from playing with the gear lever. It’s happened where they slip the gears into reverse and the car starts to move causing injury).

Evaluation of a product that is commonly used or bought can be very technical. Many times we need to hire engineers to evaluate a product to see whether it was designed properly and was properly placed into the marketplace.

Medical Malpractice

Malpractice is a departure from good and accepted medical care causing injury. As with anyone, doctors are held accountable for their actions, as we all are. In order to confirm evidence of wrongdoing we need to have medical experts review your records before being able to start a lawsuit for your injuries. Most cases that I see in my office do not meet the strict criteria for being able to start a case. Of those we accept, some will go to trial and others will be settled before trial.

Malpractice cases are one of the most hotly contested areas of law today. The defense attorneys we often encounter are extremely well educated and trained at defending these lawsuits.

Car accidents

We all know what terrible reputations lawyers get from all those tacky advertisements showing damaged cars and clients in wheelchairs holding up poster-sized checks with lots of zeros after some number.

But the fact is that there are accidents and very serious injuries that result from these horrible events. Lives are shattered from a moment of carelessness. Just look around at how many people still talk on their cell phone while driving even though it’s against the law!

Most people aren’t interested in these informative newsletters because luckily, a tragedy hasn’t befallen them. That’s ok. We hope that it never does. The purpose of this newsletter is to give my readers an understanding of what we as lawyers do, and how we can help if the need ever arises. You’ll find that I like to inform my readers about their options before they ever need a lawyer, and before they ever step foot into a lawyer’s office. How many other lawyers do you know who do that?

In an accident case, I look to see how the accident happened. Where were you driving? What were the road conditions? Was your car in good mechanical condition? Was someone speeding? Did someone turn where they shouldn’t have been turning? Was horseplay involved? (Think back to when a turkey was thrown from a moving car causing terrible damage to the woman driving behind them).

While going about our daily lives we shouldn’t have to worry ourselves about getting injured. Common sense should dictate what good conduct is and what is not. Unfortunately, there are many people out there who are simply careless about how they do their daily activities. Haven’t we all seen people reading the newspaper while stuck in traffic- and they’re driving! How about applying makeup on the way to work, and driving at the same time?

Imagine this scenario…

A woman is late for work.

She’s in her car and traffic is crawling. She’s putting on lipstick and looking in the rearview mirror to see if it’s on correctly. At the same time her cell phone rings, and while answering it, she decides to light her cigarette. Unfortunately for her, the car lighter drops to her feet and now she’s got her lipstick in one hand, the cell phone in the other, a cigarette dangling in her lips, and she’s supposed to be paying attention to the road.

Can’t you just hear the accident in your head, and visualize the crushing of metal, as her eyes are on the floor looking for the lighter? Believe me, there are plenty of cases like this one that have caused other people injury.

Imagine if people were never careless! There would be no accidents, no need for insurance, and there’d be no personal injury lawsuits. Unfortunately, we are not perfect and accidents do happen.

But how then do you determine whether the accident was something that couldn’t be avoided or was the result of lack of attention? We must conduct a thorough and detailed investigation.

Remember, when an injured victim comes to us, they’re telling us what happened to them from their point of view. We have to investigate and make sure that all other points of view (witnesses) can confirm what we’ve been told. When we do that, we build your case and can then support the facts that led to your injury.

Dog Bites

Did you know that certain types of dogs are more prone to bite someone than others? Let’s look at the pit bull for example. Just because a pit bull bites someone, as opposed to a tiny Chihuahua, does that mean the owner of the dog will be held responsible? The answer depends on many factors.

If the dog has never had any prior vicious tendencies and has never bitten anyone before, how then can his owner be responsible for this biting episode? One could argue that all pit bulls in general, are inherently violent. Not a bad argument to make, but not a totally accurate one either. What if you learned that before biting, the dog was tormented and teased repeatedly by a guest? Would that change things? Sure it would.

Injustice, humiliation and psychological injuries

We can all tell when an injustice happens-

Someone is pulled over because the color of his skin is different from those living in the neighborhood.

Someone is denied entry to a club because their religious beliefs are different than those who run the club.

Someone is denied service at a restaurant because of the way they dress or the accent of their voice. How about a woman who was denied a partnership because she was pregnant? What about the indignity of a high school football player who was sexually abused while away at football training camp with his high school team?

Despite all of our advances today, there is still bigotry, prejudice and hatred in this country. If you’re a victim of injustice or humiliation what can you do about it? There are certain types of lawsuits that allow victims of injustice to seek justice. They’re sometimes called discrimination lawsuits, or violation of civil rights lawsuits. The pain inflicted by injustice can be devastating and have long-term social and psychological effects.

Your lawyer will ask about your history, both medical and psychological. You will probably be asked to have specific psychological testing and counseling to confirm and identify some of the problems you are currently experiencing.

I know that some people believe that if an injury can’t be seen that means it’s less meaningful than a horrible disfiguring injury. That’s not always true.

I’ll bet there’s something in everyone’s childhood where they can remember a parent or an older child saying something bad about you. Looking back all those years, you still vividly remember the hurt you experienced that day. That’s injustice. There’s no ‘physical’ injury, but the emotional scar is ever-present.

So, “What does a lawyer do?”

A lawyer is someone to guide you; to help you through your trouble; to explain the law to you and how the law applies to your facts. A lawyer should be advising you of your legal options and what you can do to correct the injustices that have happened to you. That’s what a good lawyer does.

Attorney Oginski has been in practice for 17 years as a trial lawyer practicing exclusively in the State of New York. Having his own law firm, he is able to provide the utmost in personalized, individualized attention to each and every client. In our office, a client is not a file number. Client’s are always treated with the respect they deserve and expect from a professional. Mr. Oginski is always aware of every aspect of a client’s case from start to finish.

Medical malpractice is one of the most commonly recognized forms of malpractice. It refers to the breach of duty by the medical professionals (such as doctors, nurses, technicians, therapists, or hospitals) in providing a decent standard of care to the client and, in the process, cause damage, injury or loss to the client. In such cases of medical malpractice, the client has the right to sue the medical professional. But this is not possible for just any layman. He or she has to rely on an attorney or lawyer who is an expert in medical malpractice.

The client approaches a medical malpractice attorney reputed for his or her outstanding performance in the standard of care, competence and, most of all, an appropriate education. He or she is the one who has specialized in the type of case for which the client wants to sue the medical professional. For instance, if the case is pertaining to a damage caused due to the negligence of the doctor while performing a hip replacement surgery, the client takes the help of a specialist attorney in hip replacement cases. The attorney with his expert knowledge will study the case, estimate the compensation due to his client and tell if the case is worth being filed.

The law in medical malpractice checks for the reasonable standard of health care as provided by the medical practitioner. This standard of care is based on the services provided by similar professionals specializing in the filed of medicine in the same geographical location.

The attorney evaluates the medical professional under scrutiny on this standard of care. The medical malpractice attorney also takes into consideration the fact that some of the procedures involved in medical sciences are prone to unavoidable risks.

The attorney remains just to his or her client, maintaining ethical standards. As far as the attorney’s fee is concerned, the client will pay a percentage of his or her settlement amount. If otherwise, the client gets exempted from making payment.

In this article we’re going to do an overview of medical malpractice, what it is and what are the main causes of medical practice.

Medical malpractice, technically and legally defined as “a specific legal term related to lawsuits alleging various different circumstances leading to damage to a patient.” To put that into English, medical malpractice is anything where a patient receives poor care from a physician leading to the patient developing problems because of this care.

These malpractice suits, stemming from this improper care, include misdiagnosis, mistreatment and any type of negligence. Not all errors are considered malpractice because there is always a certain amount of risk involved in medicine, especially when dealing with a patient who has serious medical problems to begin with. That is why malpractice suits have to be settled in a court of law because it is not so cut and dried.

The most common diseases that are usually involved in malpractice suits are breast cancer, lung cancer, colorectal cancer, heart attack and appendicitis. The main cause of these malpractice suits is usually misdiagnosis either because the diagnosis was delayed for some reason, such as the equipment required wasn’t available or a wrong diagnosis was made. Delays in diagnostic testing too often lead to a patient’s death. The severity of these delays explains why the monetary awards, when given, are so large.

In winning a malpractice suit there are several factors involved. The first is that the claim itself must be made before the statute of limitations expires. If a patient or the patient’s family (assuming the patient has died) brings up the suit after too much time has passed then the case never even makes it to trial. So speed is probably the most important element in winning a malpractice suit. The actual statute of limitations varies depending on the type of lawsuit and where the lawsuit takes place. Each state and country has its own rules.

The next thing is that malpractice has to be proven. It must be proven that the error, if an error occurred, was not an error that could have been reasonably avoided. If something unforeseen happens that could not have been accounted for then the likelihood of proving malpractice is slim. For example, many surgeries and procedures have risks associated with them and therefore if something were to go wrong malpractice would be difficult to prove as long as the patient received what is called “accepted standard of care.”

The problem with many malpractice suits is that in too many cases the patient delayed seeing a doctor about a symptom. Usually they disregard it as just life’s everyday aches and pains. Finally the pain gets bad enough that the patient goes to see a doctor and by that time it is either too late to successfully treat the problem or the treatment itself needs to be more severe than it would have been had the patient seen the doctor right away. This of course leads to a greater risk that the treatment will not be successful. When it’s not, the patient or patient’s family then sues for malpractice.

A medical malpractice case is typically defended with the following 5 important defenses:

(1) We didn’t do it, but…

(2) If we did it, it was an acceptable risk,

(3) However, if we did it, and it wasn’t an acceptable risk, then the patient wasn’t hurt by it, but…

(4) If the patient was hurt, he wasn’t hurt that badly,and finally,

(5) We didn’t do it, but even if we did, the patient also contributed too.

It is the extremely rare case where the defense admits causing injury and the extent of injury. Those cases are settled quickly without ever going to trial.

The majority of medical malpractice cases in New York are settled prior to trial. Of the remaining 5-10% that are not settled, the physician wins the majority of them at trial. Defense counsel have gotten their clients off the hook using the defenses listed above.

Obviously, the list above is overly simplistic, but it’s easy to see how it applies in any malpractice case.

Jimmy D’Victim arrives in my office claiming that hernia surgery caused a perforation in his colon. The defense will quicly claim that (1) Jimmy needed the surgery, (2) That a perforation is a known recognized risk of the procedure, (3) That there is no real injury, (4) That if there is an injury it’s minimal, and (5) That he caused all of his own problems because he moved during surgery or failed to follow the doctor’s instructions before, during and after surgery.

Is it any wonder that most malpractice cases are won by the defense?

Attorney Oginski has been in practice for over 17 years as a trial lawyer practicing exclusively in the State of New York. Having his own law firm, he is able to provide the utmost in personalized, individualized attention to each and every client. In our office, a client is not a file number. Client’s are always treated with the respect they deserve and expect from a professional. Mr. Oginski is always aware of every aspect of a client’s case from start to finish.

Many people may not realize that medical malpractice is a real and ever growing problem. People die everyday from wrong diagnoses and incorrect treatments. The problem is that most of these cases are private and many are never reported. A lot of the population does not know enough about medical practices to know when they are faced with a malpractice problem. They are forced to take the word of the doctor and staff at hand. This may explain why only a small number of claims are filed for malpractice suits and only about half of them actually win the lawsuit.

Physicians have medical malpractice insurance that will cover them in the event someone files a malpractice claim against them. In the past the cost for this type of insurance was a flat rate, but due to the fact that medical malpractice suits are on the rise, the cost for this insurance has also begun to rise. There are not as many providers for this type of insurance as it use to be. This is because medical costs are going up and it is very difficult to make a profit in this business.

Things that can be considered a medical malpractice would be failure to treat a medical problem correctly that causes a new medical problem or makes the existing one worse. If a physician fails to diagnose a disease, detects the problem to late to help the patient or fails to treat the condition correctly after it has been diagnosed it could be considered malpractice. If problems occur during the use of anesthesia or surgery that was due to the fault of the doctor or a member of the staff it could be malpractice. Also prescribing the wrong medication for a patient or medicine that interferes with other known conditions the patient may suffer from is also grounds for malpractice.

Medical malpractice suits are normally always expensive and very complicated. You must be able to provide all of the necessary information to your attorney to have a chance of winning a lawsuit of this nature. This would be information such as a detailed list of the patient’s medical history. This would include all doctors and hospitals or clinics that the patient has visited and all treatments that the patients received during this time, even if it seems unimportant. All medicines taken and prescribed must be recorded and a written description of all conversations that have taken place will be needed along with the dates everything took place. A medical expert will review the case and will ultimately be the one to decide if the suit is legitimate.