Articles Posted in Medical Malpractice

Imagine the following scenario, which is quite common in Bronx personal injury lawsuits: After years of litigation, your personal injury case finally comes up for trial; and after a month-long trial, the jury awards you a substantial amount of money as compensation for your injuries. However, several months have passed, and your personal injury attorney explains that the defendants are still refusing to pay.

Why, you might ask are the defendants refusing to pay when a jury has decided that you are owed compensation? Shouldn’t a jury verdict, rendered after years of litigation and a long trial, be the end of the story? Unfortunately, the answer to these questions can often be “no”. This is because, even where a jury has found in your favor, defendants and insurance companies in New York personal injury lawsuits have the absolute right to appeal to the trial judge, as well as to the appellate courts (which may include, in the New York State Court system, the Appellate Division and the Court of Appeals), and ask that the jury’s verdict be modified or thrown out entirely. This article discusses some of the ways in which, even after a favorable jury verdict, defendants may still try to deny you the compensation that is rightfully yours.

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Whatever you think about President Trump, it is undeniable that he has kept his campaign promise to stringently – and, in many cases, cruelly – enforce the immigration laws of the United States of America.  Though he has not successfully put forth any significant immigration legislation in Congress, he has stepped up – to a seemingly-exponential degree – enforcement of existing laws and rules, and has also signed several Executive Orders directing immigration officials and agents of the Immigration and Customs Enforcement Agency (known as “ICE”) to increase efforts to find and deport hard-working, law-abiding, though undocumented immigrants.  In following the President’s orders, ICE has undertaken extremely-unsavory – nay, un-American – tactics in an effort to catch, process and deport undocumented immigrants in New York and all over the United States.

Among these distasteful methods of furthering President Trump’s agenda to deport more undocumented immigrants involves conducting raids and searches at courthouses across New York State, catching undocumented immigrants as they attempt to comply with our laws, respond to legal process, or seek justice to which they are entitled.  This tactic deprives the undocumented from vindicating their legal rights – yes, the undocumented do have a substantial number of legal rights and do have access to our courts – and puts the undocumented at risk of suffering inhuman and un-American abuses without the possibility of the legal recourse to which they are entitled.

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Among the hallmarks of President Barack Obama’s signature piece of healthcare legislation – known officially as The Affordable Care Act, but most-commonly referred to as “Obamacare” – was its expansion of Medicaid benefits to more Americans.  By way of background, Medicaid is a program run by the several States which is designed to provide medical coverage to vulnerable individuals among the population, and has a means test (i.e., an income-based test, as well as an asset-based test) to determine eligibility for benefits.  Prior to the passage of the Obamacare law, generally, only the neediest Americans had access to Medicaid.  This left many hard-working Americans who simply could not afford the high cost of health insurance and whose employers did not offer health insurance benefits in connection with employment without health insurance coverage.  For these Americans, a single serious illness or injury in the family could – and often did – lead to abject financial ruin, as, without health coverage, the medical bills associated with a serious illness or injury were simply too large to pay.  This was, unfortunately, the case of many victims of serious personal injury accidents or medical malpractice, who, despite having been injured by no fault of their own, were left to contend with mountains of medical bills that they simply could not afford to pay.  Even for those victims who were ultimately awarded compensation through a personal injury lawsuit or a medical malpractice lawsuit, during the years in which their case was pending, these bills often went unpaid as the victim and their family simply did not have the money.  Furthermore, these unfortunate victims often were denied the medical care necessary to treat their injuries, as, without healthcare coverage, many physicians and hospitals would refuse to treat them because payment for medical services simply could not be made.

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According to just about every television show or Hollywood movie ever made about a legal case of any kind (including personal injury cases), once a jury returns a verdict in favor of one party or another, the case is over.  Many a famed courtroom drama has ended just after the jury delivers its verdict, with the final scene often depicting a cathartic and celebratory scene on the courthouse steps between the victorious lawyer and his or her clients.  However, in this regard (as in many others), cinematic depictions of legal cases of all sorts are, to phrase it generously, inaccurate.  In a real personal injury or medical malpractice lawsuit, a jury verdict in favor of an injured plaintiff is very often not the end of the case.  This is because, under the court systems of every state across the United States, including the Federal Courts of the United States, the losing party at trial has the right to “appeal” various aspects of a jury verdict against them to a higher court and request that the jury verdict be overturned.  The post-verdict appeal process is extremely complicated, and to address all of the salient aspects of this process would require authorship of a textbook, rather than a blog post.  In this article, we explore some very basic concepts pertaining to the post-verdict appeals process as applied to personal injury and medical malpractice cases in the state court system in New York.  The reader is encouraged to take the following lesson from this article:  The jury verdict is not the end of the story, as the appeals process is expensive and fraught with risk; thus, if possible, it is usually advisable to attempt to obtain a final settlement of a New York personal injury or medical malpractice lawsuit (settlements cannot be appealed in almost every circumstance), rather than proceed through a jury verdict and an appeal.

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Ultimately, the goal of most every personal injury and medical malpractice case is to obtain compensation for a person who has been injured.  New York law recognizes several categories of damages in these cases, which include, but are not limited to, pain and suffering, lost earnings and earnings capacity, and medical expenses.  In personal injury and medical malpractice cases involving very serious injuries – those which leave an injured victim with a lifetime need for ongoing medical care and treatment – the cost of future medical care is often the largest item of damages for which the injured person can receive compensation.

An important tool used by skilled personal injury or medical malpractice attorneys to prove future medical expenses is known as the “life care plan”.  In brief, a life care plan is an analysis of the future medical needs of an injured person which describes appropriate and necessary future treatment and its costs.  In fact, while the main focus of the life care plan is future medical costs, they also help to substantiate an injured victim’s claims of future pain and suffering.  In this article, we explain the details of what a life care plan is, and its value to personal injury and medical malpractice lawyers representing very seriously injured people who require long-term medical care and treatment due to having suffered very serious injuries at the hands of negligent actors.

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The relationship between physician and patient is a partnership when it is functioning properly.  This is a partnership in which trust is a foundational and indispensable component.  When a patient seeks medical care and treatment from a doctor, the patient is entitled to trust that the doctor is providing full disclosure, informing the patient of all of the pertinent risks and benefits to a particular course of treatment, as well as alternative courses of treatment – which may include no treatment at all – for a particular medical condition.  This way, the patient can make an informed decision along with his or her doctor, and give informed consent to a course of medical treatment that may have both positive and negative effects upon the health of the patient. However, in all too many circumstances, a doctor or other medical provider does not provide the full disclosure to which the patient is entitled, and the patient agrees to undergo a course of medical care and treatment that the patient might not have opted for had full disclosure been provided.

When physicians breach the trust of their patient, fail to provide full disclosure to a patient, and harm the patient as a result, a species of medical malpractice claim known as “lack of informed consent” may accrue to the patient and entitle the patient to substantial compensation in a medical malpractice lawsuit.  These claims are often brought in tandem with medical malpractice claims involving a breach of the standard of care applicable to a particular course of medical treatment.  In this article, we explain the basic legal elements of a claim for “lack of informed consent” under New York medical malpractice law, and hope to educate readers about their legal rights if a doctor does not fully disclose all of the information regarding a particular course of medical treatment that he or she is obligated to discuss with a patient before undertaking to render care and treatment that may be harmful or undesirable.

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When a victim of negligence – whether due to a serious personal injury accident or medical malpractice – brings a lawsuit seeking compensation from those who caused him or her grievous harm, the victim (known as the “plaintiff” in the parlance of the courts) is obligated to prove that the negligence of each defendant was a proximate cause of all personal injuries claimed by the plaintiff.  It is not enough for an injured person simply to allege negligence in order for compensation to be paid.  Every single element of an injured victim’s claim – which vary, depending upon the circumstances through which the victim’s injuries came about – must be proven in accordance with certain standards in order for an injured victim to obtain compensation from those who have done him or her harm.  This requirement to prove all of the elements of a case in accordance with applicable legal standards is called the “burden of proof”, and applies to every personal injury and medical malpractice case brought under New York law.  If an injured victim does not meet his or her “burden of proof”, their case will be dismissed and no compensation will be awarded, no matter how serious the victim’s injuries may be.  It is also true that the “burden of proof”, in some instances during a personal injury or medical malpractice trial, is placed upon the defendant, such as when the defendant make a summary judgment motion asking the court to dismiss an injured victim’s personal injury or medical malpractice case.  In this article, we will explore the general concept of the “burden of proof” in medical malpractice and personal injury cases and how it is applied in practice.

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The State of New York is among the states with the highest incidence of medical malpractice litigation throughout the United States.  With respect to legal fees, nearly every New York medical malpractice attorney (as do most medical malpractice lawyers around the country) charges a type of fee known as a “contingency” fee, the amount of which is determined based upon the size of the settlement or judgment obtained when the case concludes.  This fee structure is important for several reasons:  (i) It allows people who have been harmed by negligent doctors to obtain high-quality legal representation without having to pay large legal fees out of their own pocket, which most victims could never afford; and (ii) it aligns the financial interests of the medical malpractice attorney with his or her client, as, under a contingency fee arrangement, the more money the client gets from his or her case, the more the attorney gets paid.  It used to be, prior to the year 1985, that medical malpractice lawyers in New York customarily charged a contingency fee equal to one third of the recovery in a medical malpractice case.  However, since 1985, and as a result of extensive lobbying by the medical industry designed to reduce medical malpractice litigation, the contingency fees that medical malpractice lawyers in New York may charge their clients have been restricted.  This article intends to explain what the current limits on medical malpractice contingency fees are, and why those limits are detrimental to medical malpractice victims and attorneys alike.

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Litigation Funding and Lawsuit Loans: An Important Resource, or a Total Scam?

Nowadays, it is very well known – by clients and Bronx personal injury lawyers alike – that an injured person can quickly obtain a “lawsuit loan” against the proceeds of their case. Indeed, a robust industry has sprung up in recent years, seemingly out of nowhere, to provide these loans to injured people. The loan companies advertise heavily and solicit business directly from lawyers because it is a profitable business. Competition to loan injured clients money against the proceeds of their cases is extremely stiff. Predictably, because of the high profits that are collected by the loan companies, even Wall Street banking and trading firms (such as hedge funds and private equity funds) have begun to invest in and provide capital to loan companies that provide these high-interest “lawsuit loans” to injured individuals. “Lawsuit loans” are provided in many different contexts; this article addresses their use by, and impact upon, individual personal injury and medical malpractice plaintiffs, and leaves out any discussion of the use of such loans in other contexts (such as in mass torts/class action lawsuits, wherein “lawsuit loans” are used to fund attorney expenses).

What is a “Lawsuit Loan” and How Does it Work?

Positive Reinforcement: Persuasive Use of the Language of Jury Instructions from Jury Selection Through Summation – Part 2.


Jesse Minc on Trial in Brooklyn, New York

This article is the second in our series regarding how expert Bronx accident lawyers can use the language of jury instructions – the law that is read by the judge to the jury at the end of a case and before jury deliberations begin – as a persuasive tool throughout a Bronx personal injury or medical malpractice trial.