Newburgh, NY Metro Personal Injury - Plaintiff Blog | Charles N. Rock, P.L.L.C.

Reforming New York No-Fault Law

2010-09-07T20:29:19Z

This year, the New York legislature passed a bill that increased the property damage threshold for accident surcharges. Automobile insurance companies may not assess a surcharge on premiums unless the damage to property in an accident exceeds $2,000. According to Professional Insurance Agents (PIA), the most recent increase to the threshold was in 1991, when the bar was raised from $600 to $1000.

Since even a minor fender-bender can result in over $1,000 in damage, nearly all car accidents could result in surcharges before the recent change. Moreover, New York drivers arguably bear the burdens of the state's no-fault insurance system, at least indirectly. The American Insurance Association (AIA) claimed in a recent news release that no-fault claim costs in the state have increased by 58 percent since 2004, and no-fault fraud and abuse in New York is costing insurers and drivers more than $200 million per year. Soaring costs have both insurers and drivers calling on the legislature for reform.

]]> New York No-Fault

In New York, though not a pure no-fault state, an individual's own insurance policy provides protection and coverage regardless of fault. Insurance companies in New York are responsible for payment for economic damages such as medical bills and a percentage of lost wages. Nonetheless, if the insured meets a certain threshold, he or she may also be able to sue for noneconomic, or general, damages. Only those who have suffered certain serious injuries or death are permitted to sue negligent drivers for general damages.

Potential Reform

Ellen Melchionni, president of the New York Insurance Association (NYIA), reportedly stated that New York City civil courts receive over 200,000 no-fault filings a year. She cited 2008-2009 and 2009-2010 budget requests to show an increase of 100 percent in filings during that time period.

According to the National Underwriter, industry representatives are calling for increased penalties for accident fraud and greater use of claims arbitration. The Independent Insurance Agents and Brokers of New York would like:

Legislators to make solicitation of participation in accident fraud a felony
To require a firm medical protocol or utilization review for no-fault claims
Mandatory arbitration for disputed no-fault claims
New burden-of-proof requirements for no-fault claims

Drivers and passengers who have been injured in a car or truck crash should contact a personal injury attorney to protect their right to recovery under New York's no-fault law and to enforce their rights in court, if necessary.

Using Checklists as a Tool for Reducing Medical Errors

2010-08-17T15:30:23Z

Medical care checklists have been in use for a decade now, with mixed success. In his 2009 book The Checklist Manifesto, author Atul Gawande examines the checklist and its role in improving outcomes. Gawande, a surgeon and journalist who writes for Slate and the New Yorker, suggests that physicians, nurses and all health care providers should be mindful of how their specific duties fit into the increasingly complex business of health care.

The Checklist Manifesto distinguishes "errors of ignorance" (mistakes made by people who do not actually have the knowledge required to make a particular decision) from so-called "errors of ineptitude" (those resulting from misguided decision-making in the heat of the moment). Checklists are a way to combat both types of errors leading to medical malpractice.

]]> Though Gawande trumpets checklists as a way to "get things right," he does stress that creating a checklist without further effort will not solve problems. He argues that health care providers must not only implement a checklist system, but understand why the system is necessary. Mistakes in health care are inevitable, but by staying cognizant of the errors commonly committed in the medical field, and by being willing to change, mistakes can be prevented and injuries reduced.

Checklists are particularly useful to prevent errors of ineptitude, giving everyone from the world's brightest surgeon to a first-year nursing assistant a straightforward list of tasks that must be dealt with in complex and stressful situations. Creating the checklist in itself is part of the education - you must examine the entire process with a fine-toothed comb, breaking it down into its component parts in order to make the checklist as helpful as possible.

These checklists are at their most useful in a patient-centered environment where teams work collaboratively. These are environments where nurses feel safe to speak up if the surgeon did not follow proper checklist protocol. Checklists are only a tool (with only the potential to be very effective) to combat medical negligence and preventable malpractice, but a checklist's effectiveness is directly related to the willingness of team members to allow feedback, accept flaws and not let egos get in the way. In the right hands, the checklist can help hospitals in the fight to keep their patients' best interests at hand.

The changes suggested by Gawande and Pronovost will bring great benefit to health care but will take time and effort to implement. And no system is one-hundred percent perfect. If you or a loved one has been injured by the malpractice or negligence of a medical provider, consult a personal injury attorney to learn more about your rights and options.

Federal Regulators Fine Company for Lead in Toys

2010-06-18T05:36:21Z

Daiso Holding USA and its subsidiaries signed a consent decree agreeing to pay the Consumer Product Safety Commission a fine of $2,050,000 in connection with charges that it imported toys contaminated with lead. The consent decree also bars future imports until Daiso establishes a comprehensive safety program that includes product testing and a recall procedure. The Daiso fine is on the high end of the scale for CPSC fines, with the highest to date being a $2.3 million civil penalty levied last year against Mattel Fisher-Price.

]]> The U.S. has banned lead paint since 1978 due to its health dangers, particularly to children. Inhaling lead dust or consuming paint chips containing lead can lead to a variety of health problems. In children, the health problems caused by exposure to lead paint include brain damage, hyperactivity, growth retardation, headaches and hearing problems. For adults, the problems associated with lead paint exposure include reproductive problems, memory loss, high blood pressure, digestive issues, nervous disorders, and joint and muscle pain.

The CPSC is charged with protecting the public from risk of injury or death from 15,000 types of consumer products including toys. The CPSC collects incident reports on consumer products, issues recalls and enforces product safety standards. There are more than 4,500 product recalls and product alerts detailed on the CPSC website. Since 2008, five of those recalls have involved Daiso products.

While CPSC evaluates injury reports and issues recall notices, upfront product safety testing remains the responsibility of manufacturers bringing consumer products to market.

More Deaths From Medical Errors Than Car Accidents?

2010-06-18T05:34:00Z

According to a report from the Institute of Medicine of the National Academies, medical errors are the eighth leading cause of death in the United States. That number surpasses even the number of deaths caused by car accidents.

In 2009, the Hearst Media Corp. conducted an investigation that revealed that preventable medical mistakes and infections received while in the hospital are likely responsible for 200,000 deaths in the United States every year.

You are much more likely to hear about people dying in car accidents than to hear about a patient who died due to a doctor's mistake. If these medical deaths were more publicized, it's possible that we could change this trend.

]]> Part of the problem is that there are currently no federal laws requiring hospitals to report those deaths caused by hospital error. There is no mandatory nationwide reporting system for medical errors in general, though the federal government called for these procedures to be put into place five years ago. Though the government demanded that the high number of deaths caused by medical errors and hospital infections be reduced by half, the number of both types of cases continues to rise. More patients are dying from these preventable medical errors than those who die from AIDS complications or breast cancer.

Operating on the wrong body part causes a number of patient deaths annually. Other preventable medical errors include giving the patient the wrong type of blood, the wrong medicine, incorrect doses of medicine and even leaving surgical tools inside the patient's body. Many of these mistakes could be prevented by following strict pre-surgical guidelines, as well as pre- and post-surgery checklists.

Patients need to advocate for themselves, both before and after surgery. Check the surgeon's medical record, go over their checklist with them, and do not be afraid to ask a lot of questions before surgery or other medical treatment.

New Jersey Patients Beware: Wrong Site Surgeon Who Removed Healthy Lung Returns to Hoboken

2010-06-18T05:29:32Z

In June 2008, surgeon Santusht Perera, practicing at Meadowlands Hospital in Secaucus, N.J., had his medical license suspended for only 2 years after performing wrong-site surgery - in which he removed a healthy portion of his patient's right lung rather than the diseased portion of his left lung and then he altered the medical records to try to cover up his gross malpractice. The two-year suspension was abbreviated when the New Jersey Board of Medical Examiners granted the doctor's request to shorten his suspension (to six months). Perera is once again working, now at New Jersey's Hoboken Medical Center.

]]> Following hearings, the New Jersey Board of Medical Examiners found and concluded that Dr. Perera engaged in two distinct acts of gross negligence in treating Richard Flagg when he (1) needlessly removed the middle and lower lobes of the patients right lung (rather than his left lung where a carcinoid tumor had been identified) during an operation on September 5, 2000 and (2) by failing to have recognized and corrected his error (by, among other items, failing to order a repeat CAT scan) prior to commencing the operation."

The Board further found "that Dr. Perera deliberately altered the medical record he maintained for R.F. (specifically, a note dated August 29, 2000) so as to make it appear that his decision to perform right sided surgery was intentional, rather than a product of physician error."

What made the surgeon's actions especially outrageous was how he told his patient that the right lower and middle lobes had to be removed because he'd found a more serious lesion there - but about six months later when Mr. Flagg picked up his medical records for a new doctor, he saw the pathology reports that showed that to be a lie, that in fact the tissue was healthy. This deception caused Mr.Flagg to delay seeking other treatment options, and when he finally did, it was too late.

Although Perera appealed the Board's initial decision, that decision was upheld. But when Perera applied to have his license back sooner, the Board granted it saying:

"...we ordered that the respondent's license was to be suspended for a period of two years,the first six months of which (at a minimum) were to be served as a period of active suspension and the remainder of which was to be stayed and served as a period of probation. We additionally assessed a civil penalty in the amount of $30,000. and assessed costs in the amount of $51,273.10 and ordered that during the period of active suspension, respondent fully attend and successfully complete a course acceptable to the Board in medical record keeping and medical ethics..."

But the most shocking finding of all:

"...respondent also does not presently accept responsibility for mistakes on his part (other than for having failed to do a repeat CAT scan prior to performing the operation on R.F. and acknowledging that his records were not as complete as they could have been), nor does he appear to demonstrate remorse for the events which occurred and the subsequent death of R.F."

"The Board expressly notes that it finds respondent's failure to presently accept responsibility for the conduct which respondent was found to have engaged in, and his apparent failure to show remorse for the events which occurred, to be disturbing."

Mr. Flagg's family and close friends are outraged by the findings and decision and all are shocked that Hoboken Medical Center is allowing Perera to operate there.

So too should everyone else who relies upon the Board and hospital administrators to guard the health and safety of consumers of medical services. Is it any wonder that the decision was rendered by a physician, Paul C. Mendelowitz, M.D., president of the Board of Medical Examiners? What does this say about how doctors police themselves? Perhaps they could adopt the motto: "By Doctors For Doctors."

The hospital's CEO said they had little choice but to allow him to practice surgery there since his license suspension is over. The hospital further suggested that it risked a lawsuit if they denied him surgery privileges now, because he had surgery privileges at Hoboken prior to his suspension.

New Jersey consumers of medical services, BEWARE. If the New Jersey Board of Medical Examiners exists to protect consumers of medical services, they've failed.

Read the case in full at http://www.nj.gov/lps/ca/bme/orders/20081204_PERERAS.pdf

FMCSA Listening Sessions Wrap Up

2010-04-21T15:52:01Z

In a series of five listening sessions that began in Washington, D.C., and finished at the Mid-America Trucking Show in Louisville, Ky., representatives from the Federal Motor Carrier Safety Administration were recently given the chance to hear firsthand feedback from truckers on the state of the hours-of-service rules that control how long interstate truckers can drive per day, and on how much rest.

]]> Much of the discussion at the listening sessions revolved around proposed revisions to the hours-of-service structure. The hours-of-service rules were last altered in 2004, when the Bush administration allowed truck drivers to operate their vehicles longer, and on less rest. A number of safety advocacy groups filed lawsuits over the 2004 revisions; under a settlement between the Federal Motor Carrier Safety Administration and these groups, the FMCSA is required to consider revising the rules. The settlement also called for these listening sessions, so safety advocates and industry groups could have a public discussion on the hours-of-service rules.

At the latest session, several truck drivers called for greater flexibility in the rules, allowing drivers to stop and nap when necessary. Under the current rules, many drivers feel pressured to drive for 10 hours without rest, so that they can get the most of their allowed drive time per week.

With the listening sessions over, the FMCSA moves on to the next stage in the process. By July, the agency must have a formal draft of a new Notice of Proposed Rulemaking available. From there, any proposed changes will travel to the White House Office of Management and Budget, after which the rules will be published. Before any new rule becomes official in July of 2011, there will be additional chances for all concerned to comment on the proposed changes.

Chiropractic Board Rejects Proposal

2010-04-15T13:34:00Z

Following the public hearings earlier this year, the Board of Chiropractic Examiners in Connecticut has decided against requiring that chiropractors in the state warn of the risk of stroke from neck manipulations before administering treatment.

]]> According to the executive director of the Connecticut Center for Patient Safety, the board was presented with scientific evidence of the risk for stroke, but decided to rely on one recent Canadian study. The study referred to, lead by chiropractors and designed by chiropractors, bucks the trend of decades of medical research that establishes the relationship between neck manipulation and injury to the arteries to the brain, leading to stroke. The board is not commenting on their decision, leaving the citizens of Connecticut -- and all others following the debate -- in the dark as to why such a ruling was made.

The ruling also leaves those who may undergo chiropractic manipulation in the future without an informed consent rule that would allow them to fairly weigh the benefits and potential risks of their treatment.

When a patient is considering undergoing any medical procedure -- including chiropractic procedures -- health care providers have a duty to inform the patient of the risks and benefits associated with the particular procedure. Since most patients are not trained in medicine, the medical care provider must communicate this information clearly and in an understandable way. Having an opportunity to weight the benefits against the risks, the patient will then be able to make an informed decision about the procedure before giving permission for the treatment to begin. With this ruling, however, chiropractic patients in Connecticut are not necessarily given all the critical information.

Hours-of-Service Revisions on the Way?

2010-04-05T20:42:18Z

The Federal Motor Carrier Safety Administration (FMCSA) is the federal agency responsible for regulating the trucking industry. Over the years, the FMCSA has enacted a wide range of measures to ensure the safety of truckers and others on the roadway. Among these are the hours-of-service (HOS) regulations, which set forth the maximum drive times and minimum rest periods for interstate truckers.

The hours-of-service rules are intended to reduce the fatigue of truckers on the highway. Although relatively straightforward, the rules can be complex for those new to them. For example, under the current HOS rules semi operators may not drive their trucks after 60 hours on duty in seven consecutive days (or 70 hours on duty eight consecutive days). The numbers reset after a 34 hour rest period, during which the trucker must be completely off-duty.

]]> After remaining unchanged for many years, under the Bush administration in 2003 the FMCSA revised the rules, allowing truck drivers to drive longer hours on less rest. Among other changes, these revisions increased the number of hours that a trucker could drive, from 10 to 11.

The 2003 HOS revisions have long been opposed by a coalition of public safety advocates and the Teamsters Union, who have filed a number of lawsuits challenging the new regulations. Last fall the FMCSA agreed to settle the latest lawsuit; the agency has agreed to "review and reconsider" the hours-of-service rules this year. Under the terms of the settlement, the FMCSA must publish a final rule by the summer of 2010.

Many believe that, under the Obama administration, the FMCSA will move to undo the 2003 revisions, decreasing the drive time and increasing the mandatory rest periods for truckers. For its part, the agency has announced that it will contact interested parties and solicit feedback from the public before the summer deadline.

New Federal Regs for Preventing Lead Poisoning During Renovation Begin April 22, 2010

2010-01-20T15:43:21Z

On and after April 22, 2010, anyone paid to renovate, repair and/or paint in any way that disturbs the paint in homes, childcare facilities, or schools built before 1978 must be EPA RRP certified and follow lead-safe work practice standards to prevent lead contamination. Simple renovations that include sanding, cutting, and demolition can create hazardous conditions that create lead dust and lead paint chips. This exposure is especially hazardous to children. In 2007, 14% of the children reported with elevated blood lead levels in New York State were poisoned as a direct result of home renovation projects. These regulations will significantly decrease childhood lead poisoning.

For more information go to www.epa.gov/lead/pubs/renovation.htm#contractors.

Chiropractors Oppose Informed Consent Regulations

2010-01-08T21:28:37Z

I just spent two days watching and listening to the testimony being given to the Connecticut Chiropractic Board where advocates for chiropractors strenuously oppose any regulation that would require they obtain written consent from their patients before giving neck manipulations.

Chiropractors refuse to be bound by any regulation that would require that they give adequate information about the risk or association of stroke to the therapy they administer. Their biggest argument is that they don't want to be singled out.

]]> Speaking on behalf of the victims of chiropractic, Ms. Mathiason had the room near tears as she recounted her experience of running into the chiropractor's office to find her 20 year old daughter lying on the chiropractor's table after having neck manipulation, seizing from the stroke that would take her life a few day later. They had no idea that the treatment could cause such massive harm. Several others were planning to speak but because of procedural issues between the lawyers, their testimony has been put over for the next session.

It surprises me how the chiropractic industry has kept this risk quiet for so long. It surprises me even more that they don't realize that they are on the wrong side of this issue. By accepting the overwhelming weight of medical literature and by stepping in line with the rest of the medical world, chiropractors could help their profession gain some needed credibility. Patient safety must always come first, no matter what.

Welcome to our blog

2009-12-28T18:18:33Z

At the Law Office of Charles N. Rock, PLLC, we are committed to making your community safer- one case at a time. In order to do this, we dedicate our resources to staying current with legal issues and following developments that will impact our ability to pursue justice for the victims of negligence by individuals and corporations.

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