Archived Posts from Medical Malpractice Category

Wednesday 11, Apr 2018

The Decision to Start a Lawsuit

As a plaintiff’s attorney representing persons injured, or the family of someone killed, as a result of another’s negligence, whether medical malpractice or some other form of negligence, the goal is to obtain civil justice for that client. That means obtaining a monetary recovery that is commensurate with the injuries and/or death suffered. In other words, obtaining just compensation for damages caused by injuries and/or a fatality as prescribed by New York law.

This is the goal but there are some basic practical issues that must be considered before starting a case. These issues involve: a realistic appraisal of proving the case, the amount of a financial award that could be obtained and sustained on appeal under the law based on the damages suffered, the amounts of any liens on any award obtained and the costs of prosecuting the case

All of these factors are at play in making the decision to proceed. Unfortunately, sometimes there are plaintiffs that you would like to help as a trial lawyer but the realities involved make it impossible. This often is one of the toughest decisions to make and to tell the prospective client. If, for example, a doctor departed from good and accepted standards of medical practice in failing to properly diagnose a condition that resulted in a delay before the proper diagnosis was made but the non-diagnosis or misdiagnosis did not result in increased pain and suffering or alter the outcome for the patient, there is no case to prosecute despite what might be egregious medical malpractice. As upsetting as the failure to properly diagnose was, there is no case that can be pursued in terms of a civil case for monetary damages because the plaintiff was going to suffer all the injuries and damages even if the condition had been diagnosed earlier. You can turn around facts and come to the same conclusion concerning the viability of bringing a lawsuit. Suppose a patient had a rare condition that is very difficult to diagnose. The treating physician administered all the accepted standard tests that he/she believed should diagnose why the patient had the painful symptoms that the patient was experiencing. While the patient went through all the standard tests and treatment ordered, the physician consulted with other physicians, did research and then referred the patient for an esoteric test that helped make the diagnosis. Suppose that the patient suffered severely during the months of testing and attempted treatment before the diagnosis was made and that the patient suffered damage to an organ or was disabled because the diagnosis was not made earlier. If it is determined on expert review that the treating physician treated totally within accepted standards of medical practice in regard to the tests and treatment ordered, consulting other physicians, researching the clinical presentation and referring the patient, there is no medical malpractice to base a suit on notwithstanding the pain and suffering and damages suffered by the patient.

In considering what monetary damages could be awarded in a particular case, there are several elements that must be looked at. First of all, in New York, plaintiffs are awarded damages for conscious pain and suffering. This is important if a person is rendered unconscious immediately or never recovers from a surgery to a conscious state. Even if the injuries are significant, a pain and suffering award will not lie unless the plaintiff was conscious enough to experience some level of pain and suffering. In general, depending on the facts, there can be damages involving loss of income and medical expenses that have been incurred and will be incurred in the future. These can be substantial depending on the facts and individual plaintiff involved.

In wrongful death cases, another element of damages in New York is what is calculated to be the pecuniary loss to the next of kin of the deceased. When the death is of a plaintiff who was not contributing to the support of a wife, children, parents or other next of kin, the award for this element is obviously limited. If there is a spouse and children, there can be an award for loss of support and services including for children the loss of parental guidance, nurturing and education. These damages can be significant especially if the deceased leaves young children. These damages are separate from any pain and suffering award based on pain and suffering before death, which would go into the patient’s estate and is distributed according to a will or, if no will, by intestate statute.

Another important factor that must be considered during the investigation into the realities of the case is whether there are any liens that exist on any recovery obtained. For example, there could be a large Medicaid lien in regard to monies spent by Medicaid for medical care. Under some circumstances these amounts can be adjusted but usually they must be paid back out of any recovery. Other medical insurance may have to be paid back. If the amounts of any liens exceed a realistic amount of the potential damages in a case and they cannot be adjusted which would eliminate recovery for the client or make a financial recovery for the client minimal, the attorney will usually not proceed.

Because prospective plaintiffs have an emotional stake in regard to what happened to him or her or their loved one, it is very hard for them to accept the realities that have to be considered before a case can be started which might prevent the attorney from starting a lawsuit. Suing for monetary damages in a civil action is one way to try to redress a wrong. In some medical malpractice cases, where the particular facts make it impossible to bring a lawsuit, a complaint can be made to try to prevent the medical malpractice from occurring to someone else. This might sound altruistic but sometimes this is very important to the prospective plaintiff who understands that he or she cannot bring a medical malpractice lawsuit for monetary damages. If a victim of medical malpractice cannot under the facts of their individual circumstances bring a lawsuit but wants to try to make sure another patient does not suffer the same malpractice at the hands of a particular medical care provider, he or she can make a complaint to the New York State Office of Professional Conduct in regard to a physician or to the New York State Health Department in regard to a hospital or clinic.

What is important to know is that every good personal injury attorney wants to help his or her prospective client achieve civil justice, which would mean appropriate monetary compensation. Sometimes, however, the facts and the economic realities do not allow the attorney to bring a lawsuit.

Wednesday 14, Sep 2016

Civil Justice and the Appellate Process

Winning a personal injury civil case usually is difficult and requires a great deal of effort. The fact that the case has gone to trial means that the defense side feels that it is worth the risk and the defense lawyer and the defendant believe strongly that a jury could find that there is no liability. No settlement has been reached and battle has been joined. The defense side are putting their time and effort into defeating the claims of the plaintiff. In a civil case the defense side usually involves an insurance company, an institution, business or municipality so there are ample resources available for the defense to fight the plaintiff’s claims. If it is a medical malpractice case, it usually means that the medical establishment is also there to provide experts and other help. As I have discussed before, the plaintiff’s attorney usually fronts the expense of prosecuting a civil case. Once the plaintiff wins this battle and the jury has come in with a verdict and made an award to the plaintiff for the damages proven at trial, the case may not be over. The defendant always has the right to appeal if the defendant thinks there was a legal error by the judge or the damage award was excessive based on the awards of similar cases that have been sustained on appeal. Of course, the plaintiff can also appeal if he or she believes he or she lost because of legal error or the award was not sufficient to fairly compensate for the damages proven.

When an appeal is taken, legal principles and prior case law precedent are supposed to be applied and followed by the appellate justices. The basic rule is that the appellate court that is the first level of appeal will not disturb the jury’s decision unless there is a clear legal reason to do so based on existing law even if the court may not like the result. The appellate justices are not supposed to substitute their view of the facts presented to the jury and overturn the jury’s verdict on that basis unless they determine that there is absolutely no basis in the evidence for the fact finding by the jury. Certainly the justices are not supposed to overturn the jury’s verdict because they want to affect policy. This is what gives some order to the prosecution of the case at the lower trial level. Nevertheless, as is evident by the politics surrounding the nomination and confirmation of our U.S. Supreme Court justices, there can be politics at play with state court appellate judges whose job it is to uphold justice whether it is criminal or civil. Therefore, sometimes the appellate judges’ decision is affected so as to create an injustice for the winner of the case in the lower court. If, for example, in a civil case, an appellate justice feels that it is his or her role to protect municipalities from liability as a matter of public policy that judge may vote to reverse the verdict won by the plaintiff against the municipal defendant on a ground that was not part of the trial or a theory proved by the defendant at the trial level. The consideration could be what appears to be reasonable on the surface. For example, if the plaintiff is allowed to prevail, there could be a multitude of similar suits that might be difficult for municipalities to pay for. Nevertheless, the plaintiff in that case that has been appealed played by the rules in force based on the laws and precedent in existence at the time of the trial. The plaintiff and his or her lawyer went through the time, expense and emotional turmoil required to prosecute the case, starting with pleadings and proceeding from depositions through a trial and then convincing the jury through evidence and testimony to find for the plaintiff against the defendant. The plaintiff won the trial. Obviously, such a decision by the jury in a trial presided over by a judge who is making legal rulings based on the law both legislative and case precedent should not be overturned unless there were serious legal errors. In other words, errors that prevented a fair trial and may have wrongfully contributed to the verdict against the defendant. If the verdict is overturned, the case may be re-tried which means doing the whole thing over again or worse for the plaintiff, the case dismissed. This is a disaster for the plaintiff unless the next higher appellate court agrees to review the intermediate appellate court’s decision to dismiss the case and overturns what that appellate court did. The higher appellate court, the last appellate resort, does not take the case unless there was a split decision by the justices at the lower level or there is some unique or new question of law the court wishes to weigh in on so as to declare their wisdom on what they believe should be the applicable law of the state on the question presented. That means if the appellate court’s decision is not split or the higher appellate court does not believe there is a novel question of law for them to weigh in on, they will not agree to review the decision of the lower appellate court, even if it means that the decision is patently unjust to the plaintiff who won the case at the trial level and did the work and suffered the expense required for the appeal. This usually means that the plaintiff and the plaintiff’s attorney who won the case and laid out the money and effort to win the battle at the trial level have lost everything. This is a result that should almost never happen if the appellate judges do their job impartially, following the applicable law and appellate principles. Unfortunately, if the judges have an agenda, this unfair result can happen. This is a danger that few plaintiffs in civil cases are aware of and why the prosecution of most civil cases is an act of courage in face of the uncertainties of how the jury will view the evidence presented in the initial contest and then what the appellate courts will do if the case is appealed.

Thursday 08, Jan 2015

My Letter to the New York Times concerning tort reform and caps

The Opinion Pages | LETTERS

How Damage Caps Harm Public Safety and Justice
JAN 6, 2015

To the Editor:

Re “Falling Through the Legal Cracks” (Business Day, Dec. 30):

The failure of General Motors to take appropriate actions when it learned that a defective ignition switch in vehicles it sold caused the injuries and deaths of innocent people speaks volumes about corporate morality and accountability. That is why plaintiffs must be able to sue without caps.

The history of corporations’ failure to protect the public is replete with such stories, from flammable pajamas to the lack of safety guards on dangerous machinery. Without the threat of recovery from lawsuits brought by plaintiffs and the potential for punitive damages, corporations have shown that they will not do what is morally required, but merely weigh the costs against the risks and take steps to discourage those who have suffered personal injuries and/or deaths of loved ones from suing.

So-called tort reform and capping compensatory and/or punitive damages are wrongheaded and cause additional suffering for the innocent who become victims of a known dangerous product.

New York, Dec. 30, 2014

The writer is a plaintiffs’ attorney.

Wednesday 15, Oct 2014

A Wrong Perception…

People very often have a wrong perception of what being a personal injury litigator representing injured plaintiffs and their families entails.  The following scenario actually happened.  I had been preparing intensely for a medical malpractice trial.  As always, it is an all consuming job that requires reviewing all the facts, studying all the depositions, reviewing the medical records, preparing your opening statement, meeting with your experts, scheduling witnesses, preparing questions for your witnesses, initial meetings and preparation of your witnesses, preparing cross-examination of the defendants and experts, preparing what exhibits you wish to blow up or project at trial,  thinking about strategy, what you wish to discuss with potential jurors, etc..  It is, as we always say: pedal to the metal, 24/7.  My life was put on hold for the most part except for the work.  A friend of mine wrote me to say that she has a lawyer friend in Florida who has the perception that personal injury litigators don’t work hard.  My friend upon hearing this opinion responded vehemently to that Florida lawyer that such certainly is not true of the attorney she knows, Walter G. Alton, Jr.  She knew the amount of work that had gone into prior cases and this one case I was preparing that had started in 2010. Not only had there been 5 depositions as the case proceeded but multiple motions of all kinds that had to be prepared and other motions made by the defense that had to be opposed in order to have defense lawyers provide the documents requested and to prevent one of the doctors from being discharged from the case.  In fact, right before trial the defense lawyers made spurious motions for a physical examination of the injured plaintiff that they were not entitled to, merely to delay the trial.  All these motions required meticulous work to oppose right before trial which is non-productive.  Cross-moving for sanctions accomplishes nothing.  All the pleadings, depositions, conferences in Court, motions, etc., constitutes a tremendous amount of work that must go into the case.  Opposing some motions are very important even though the motions are not determinative of the merits of the case.  Basically, it is part of the battle for civil justice that goes on until the case is concluded.  This process can go on for years and in regard to the case mentioned in this blog post, it did, for 4 years before the case was resolved.  I might add that even after a case is won, there very often is much work that must be done like preparing a judgment and in cases of wrongful death and cases involving infants preparing the papers for a compromise order which a judge must sign permitting the collection of the award or settlement to be received and outlining how the award is to be distributed.

Saturday 06, Sep 2014

The mindset of prospective jurors…

I recently was picking a jury in a medical malpractice case for 2 ½ days.  The prospective jurors were told a little information about what kind of case they might possibly sit on and judge.  The whole panel of jurors was told that the case involved claims of medical malpractice, what specialties were involved, the names of the parties and the attorneys representing them.  The attorneys also agreed to inform the jurors in the panel the approximate length of time it was expected the trial would take.  The attorneys then asked the panel of prospective jurors to raise their hands if anything that they heard up to that point in time might be a problem in terms of sitting on the case and explained that we would then talk to each of them individually and privately about any problem they had.  Invariably for each panel that was given, there were many hands and the jurors were spoken to privately outside the courtroom.  Aside from scheduling issues because of work commitments or personal problems usually involving health or family, a certain uniform pattern of problems voiced by the prospective jurors privately to the attorneys became evident, which was interesting but also a little disturbing.  Any juror who was related to a physician or other health care provider, or who knew such a person as a friend, automatically said that they had to be excused and could not be fair.  In other words, they would be biased in favor of the doctor defendants no matter what they heard about the departures from good and accepted medical practice in court or the injuries caused by the departures.  This was true of every person who brought up a connection to the medical profession.  I found the unanimity of this phenomenon pretty amazing and somewhat different from what jurors expressed in the past.  On many occasions in the past, a prospective juror who had a close relative who was in the medical profession would say that it would be a problem and uncomfortable to sit on a medical malpractice case, however, there were other prospective jurors who knew or were related to medical care providers who would say that they could judge fairly the claims of medical malpractice in the case and that their relationship with a medical care provider would not cause them to be biased in favor of the defendant doctors or medical institution if they believed based on the evidence and the law that the defendant doctors committed malpractice.  In other words, they felt that justice for the injured plaintiff required them to find for the plaintiff if the evidence showed the treating doctors committed medical malpractice which caused the injuries and losses proven under the law.  And these jurors would assure me that they would do that:  find for the plaintiff against the defendant doctors if that is what the evidence showed them and award the appropriate financial damages to compensate the plaintiff for the injuries and losses suffered.  In 2 ½ days not one person expressed such a belief.  I actually had received this assurance from nurses in the past!

On the other side of the coin, any juror who believed he or she had been injured by what the person felt was medical malpractice or had a family member or close friend so injured, also automatically disqualified him or herself.  There was no prospective juror who said I believe I was so injured or a family member or friend was so injured but if, after listening to the evidence and the law, I believe that there is no proof of medical malpractice, I could find for the defendant doctors and not for the plaintiff notwithstanding any injuries or losses proven.  In the past, again, there were some people who said even though he or she was injured or a family member or friend was injured by medical malpractice, he or she would find for the doctors if, after listening to the evidence and the judge’s instructions on the law, he or she felt that there was no malpractice that caused the injuries, losses or death of the plaintiff.

I am not suggesting that I, as the plaintiff’s attorney, would want a prospective juror who has a close friend or relative who is a medical care provider, or that the defense attorneys would want a prospective juror who had been injured or had a family member or close friend so injured because of the fear that the prospective juror could not get over a potential bias notwithstanding his or her’s good intentions.

So what is my point?  What happened to the person who cares about civil justice?  The person who says that even though I have a brother who is a doctor, of course, I would find for the injured patient and award the appropriate compensation if I believed based on the evidence and the law that the defendant doctor in the case injured that person as a result of medical malpractice?  What happened to the person who says that even though I believe my uncle was injured as a result of medical malpractice, I would have to find for the defendant doctor and award no damages if there was no proof that the plaintiff was injured as a result of departures from good and accepted medical practice?  In other words, why were there no people who cared about civil justice and doing the right thing notwithstanding who they knew, what had happened to them or someone close to them?   Does it mean that there is no caring for others or achieving the correct result?  Making the system work properly?  Why?  Any prospective juror might have to avail him or herself of the legal system to resolve a dispute in the future.  Is this is what has happened to our society?  People are just that jaded.  It is discouraging when you think about our legal system being the last resort in terms of resolving such matters and makes a sad statement about us as a society.


Friday 21, Oct 2011

Reply to New York City Corp Counsel re tort reform…

Michael Cardozo, the New York City Corporation Counsel was quoted on the City Room Page of the New York Times on September 23, 2011, as advocating changes to the civil laws to limit award to plaintiffs who have sued the city because he claims that plaintiffs are compensated “too generously for their claims that they bring against the city” and “the law requires that the city pay damages even when the plaintiff was primarily at fault for the accident.  He highlighted other provisions like the lack of a cap on awards for pain and suffering and an allowance of 9 percent interest on judgments.”

I responded:

Mr. Cardozo’s remarks on the City Room page on September 23, 2011, are unfair and unjust to any individual who has ever been injured as a result of any city employee’s negligence. He knows that every lawyer defending the city or a city agency in any tort action always pleads and tries to prove to the jury that the injured plaintiff was negligent or at least in part contributed to his/her own damages. Many times this is the sole defense. The jury then decides if the injured plaintiff is wholly or partially at fault along with deciding the negligence of the city employee or entity the plaintiff has sued. Furthermore, every plaintiff suing the city must comply with special rules and procedures that were enacted solely for the city’s benefit. The plaintiff has to file a Notice of Claim within 90 days of the accrual of the claim and be deposed in a 50H hearing before commencing a lawsuit within a specified limited period that is shorter than the normal statute of limitations. These special rules often mean that people with justifiable claims against the city never get to litigate their claims because they did not file their claim or commence their lawsuit on time. In many cases the city is immune from liability because of its municipal status notwithstanding a justifiable claim against a city employee or agency. There are strict rules that apply. In addition, it should be noted that the City does not have to pay 9% interest on judgments like non-municipal defendants, as asserted by Mr. Cardozo, but only 3%. There is no legal or equitable justification for a cap on awards for pain and suffering to save the city money when the person injured has and will be enduring the consequences of an injury caused by the city’s negligence and the jury has evaluated that pain and suffering and determined the award to be fair and just. Also,the city always moves the trial court to reduce all awards it considers excessive and will appeal if the motion is unsuccessful at the trial level.


Wednesday 07, Nov 2007

What People Forget About Medical Malpractice…

On a CAT skiing trip in February 2007, I ended up with several doctors in my CAT.  At the end of the first day we were given some hot soup and a snack as our après ski.  As we talked, it came out that I was a personal injury trial attorney with a specialty in medical malpractice.  Of course their antennae went up, and I had to explain to them what I explain to many people who do not understand the wonderful system of civil justice that we have in this country when it comes to trying to correct a wrong that has occurred when someone is injured or killed as a result of another’s negligence, whether it be medical malpractice or being rear-ended in a car. 

First of all, let me say that all the doctors admitted that they had either witnessed or heard about horrendous medical malpractice occurring that had devastating results for the patient.  They complained about being included in some lawsuits that they thought they should not have been in, and, as is true of any defendant, they did not like having to deal with those matters.  

Since the doctors had to agree about the existence of malpractice, I asked them all a question I ask many people who have this discussion with me.  “In what country can the poorest person retain the best attorney and have that attorney not only invest his time, his staff’s time, and anywhere from $25,000 to $100,000 or more, interest free; all on the gamble that he can persevere and a jury will correctly understand the facts and then vote for his client and award sufficient monetary damages to compensate his client for the injuries and consequences that flowed from the negligence?”  The urologist smiled at me and, tongue in cheek, said, “Let’s see. Is it the United States?”  I then asked if the doctors realized that if the jury did not agree and the case was lost, not only did the client fail to receive an award and the attorney lose a fee that would cover the time and effort put in, but also the attorney’s out-of-pocket money spent on the case for experts, depositions, court fees, etc..was also usually lost because most clients cannot pay back those costs incurred by the attorney.  The soup and bread was finished and we headed for our rooms. 

That evening at dinner, one of the anesthesiologists who had been at the table earlier when we had our soup discussion, came over and sat next to me.  He told me that he had always believed that plaintiffs’ attorneys just made a ton of money and never realized that they risked their time and money to prosecute their cases.  He felt it was a good thing.  He thought it was good for those who were negligently injured, especially the poor who could never afford to pay for the best attorney if there was no contingency fee system.  I added that this was a right of every citizen that should not be taken away by those who wish to protect negligent doctors and their insurance companies.    

My next topic:  Why limiting non-economic damages (the goal of “tort reform”) i.e. damages for pain and suffering is a terrible idea and unjust. 


Thursday 11, Oct 2007

Are you a victim of Medical Malpractice? We are here to help

Attorney Walter G. Alton, Jr. can help you if you have been a victim of the following types of cases or injuries:

  • Medical Malpractice
  • Hospital Negligence
  • Nursing Malpractice
  • Physician’s Assistant Malpractice
  • Brain Damage
  • Surgical Negligence
  • Spinal Cord Injury
  • Cerebral Palsy
  • Emergency Room (ER) Treatment
  • Wrongful Death
  • Failure/Delayed Diagnosis of Cancer
  • Birth Injury

Contact Walter G. Alton, Jr. Esq. today – there is no charge for consultation.   


Friday 14, Sep 2007

New York Medical Malpractice Attorney

Retaining the right lawyer to represent you in your serious injury or wrongful death claims is crucial. Whether the claims arise from the negligent treatment by a doctor, hospital, or other medical care provider or from a motor vehicle accident, construction accident, fall down, premises negligence, or other event, the attorney you choose can make or break your case.