Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf is a New York Plaintiff's personal injury law firm specializing in automobile accidents, construction accidents, medical malpractice, products liability, police misconduct and all types of New York personal injury litigation.

Articles Posted in Medical Malpractice

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African American Patient with DoctorsMedical Malpractice may have been committed on many American Africans who were previously diagnosed with hypertrophic cardiomyopathy.  A recent study found that some genetic variations that were linked to this condition were indeed harmless. These specific genetic variations were found more often in black Americans than in white Americans. Therefore many patients from African descent may have been misdiagnosed or are still being treated for a condition they don’t suffer from.

Also called, abnormally thick heart muscle, hypertrophic cardiomyopathy is a genetic disease that affects 1 out of 500 Americans. The disorder can cause arrhythmia and can be fatal. Symptoms may include chest pain, difficulty, breathing, fatigue and swelling in the ankles and feet. For a complete list and diagnostic testing see The American Heart Association web site. Sometimes there are no symptoms.

Abnormally thick heart muscle is diagnosed through genetic testing. A patient who tests positive for  the condition will often be required to change his or her lifestyle. These changes may include healthy diet, additional physical activities, losing excessive weight or stopping smoking. Patients diagnosed with hypertrophic cardiomyopathy  are often prescribed specific medication to treat the condition.  Various types of surgeries are also commonly used as well as  alcohol septal ablation, a noninvasive procedure.

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Patient checked by doctorDischarging a patient too early can be hospital negligence that puts a patient at higher risk of readmission or death. An alarming new study shows that 1 out of 5 patients is released from the hospital before his vital signs are stable. The study released in the Journal of General Internal Medicine, was conducted by Dr. Oanh Nguyen (Assistant Professor Internal Medicine Department of Clinical Science), Dr. Anil Makam  (Assistant Professor Internal Medicine Department of Clinical Science) and Dr. Ethan A. Halm (Professor Internal Medicine Department of Clinical Sciences and Chief of the Division of General Internal Medicine), all from the University of Texas (UT) Southwestern Medical Center.

Vital signs include:

  • temperature
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alcohol withdrawal symptoms vary depending on the level of addictionFailure to diagnose alcohol withdrawal symptom (AWS) can be medical malpractice that may cause severe injury or even death in some cases. The ECRI Institute  is looking at options to  better “Identify Alcohol Withdrawal Symptoms Early and Ease Patients’ Care”.

An estimated 20 % of the patients that are admitted in US hospitals show symptoms of alcohol abuse or dependence. Those that are admitted for alcohol poisoning and detoxification may be difficult to treat but their alcohol withdrawal symptoms will usually be properly diagnosed and addressed.

Patients at a higher higher risk to be misdiagnosed for alcohol withdrawal symptoms are those who are admitted for a different medical condition than alcohol intoxication or dependence.

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newbornFailure to diagnose or delay to treat a bacterial infection in a newborn can be medical malpractice. Doctors (and also parents) may sometimes be reluctant to submit a young infant  to a lengthy and complicated process in order to  find out if a fever may  be caused by a bacterial infection. Thanks to new research this process may become much easier in the future.

Fever is usually one of the first symptom of a bacterial infection. However it can also be caused by other medical conditions. When a health care provider evaluates a young infant with fever and suspect an infection, there is no quick way to find out if the infant suffers from a bacterial infection. The actual method consists in isolating live bacteria from blood, urine or spinal fluid and grow a bacteria culture in a laboratory. This may require difficult and traumatizing medical procedures such as spinal tap. Additionally the  infant may necessitate hospital admission and an antibiotic prescription until the results of the tests are available.

A recent study that was published on Aug. 23, 2016 in the Journal of the American Medical Association found that through advances in genetic sequencing technology it may soon be possible for doctors to diagnose bacterial infections in infants with fevers quickly and in a non invasive manner.  More work is needed but in the future only a small blood sample may be enough to immediately determine if an infant suffers or not from a bacterial infection.

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Medical Malpractice lawsuit rate per stateThe New York Medical Malpractice lawsuit rate was 19.3 Per 100K residents in 20015. A new study released by Zippia identifies in which  states  the highest and the lowest amount of malpractice lawsuits against medical practitioners were brought in 2015.

For this study Zippia used the data from the National Practitioner Data Bank. The results are somewhat surprising with Louisiana coming first with 44.1 lawsuits Per 100k residents, followed by Oklahoma and Delaware with respectively 36.3 and 35.2 lawsuits Per 100K residents.

New York State came in 31st with 19.3 medical malpractice lawsuits Per 100K residents.

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Elmhurst HospitalA man died from Sepsis after being treated at the Elmhurst hospital in New York City. More investigation will be necessary to determine if the hospital committed medical malpractice. The patient, 59 year old Antonio Flores, showed up at the emergency room of the hospital on July 7th after sustaining a minor injury in a bicycle accident. He was treated and sent back home. The patient came back to the hospital on July 10th and died there from Sepsis the following day.

Sepsis is a potentially life threatening condition that occurs as a complication of an infection. Commonly acquired in healthcare facilities, sepsis if detected early can be treated.

Eelmhurst Hospital has a very good reputation in preventing Sepsis. In 2013 the Hospital won an award at HHC’s Patient Safety Exposition 2013 for hospital achievement in preventing complications and death from Sepsis. At the time Dr. Scott Weingart who was director of critical care in the ER and a co-chair of the STOP Sepsis collaborative had developed a standard treatment protocol to promptly deliver fluids and restore blood pressure. His best practice model called Early Goal-Directed Therapy is based on intense identification, monitoring and treatment of septic patients with unstable blood pressure by promptly giving intravenous fluids and antibiotics.

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jbAfter Lavern’s Law was left to die by the NY legislature, NYC medical malpractice attorney Jeff Bloom was quoted in Politico saying “The fact that once again the Senate leadership has caved to the will of hospital executives is a slap in the face to the men and women who are injured by careless medical errors and through no fault of their own find out too late to hold anyone accountable”. Jeff Bloom, a senior partner at our firm and the attorney for Elissa McMahon, whose doctors allegedly failed diagnose her uterine cancer, added: “[Senate Majority Leader John] Flanagan should look Lissy McMahon, her son Jack and other victims in the eye and explain why he is protecting negligent doctors rather than letting them have their day in court.” (For more info on the rejection of the Lavern’s Law by the NY legislature see our previous blog.)

The Lavern’s Law bill was not the only health care bill that didn’t make the cut in Albany.  HIV and AIDS advocates were expecting a $70 million in funding for housing that didn’t go through despite a previous announcement by Governor Cuomo that $200 million would be spent to fight the epidemic. A Cuomo task force dedicated to end the HIV epidemic also recommended passing the Gender Expression Non-Discrimination Act and the Reproductive Health Act but neither of them made it through the Senate. The Senate also blocked two bills facilitating the distribution of medical marijuana and a universal healthcare bill.

A bill proposing a cap of $250,000 for pain and suffering in medical malpractice cases didn’t make it to the Assembly and another bill that would have relaxed the rules excluding hearsay as admissible evidence made it to the Assembly but was blocked by the Senate.

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A New York medical malpractice bill that proposed to start the statute of limitations when a medical error is discovered rather than when it is committed wasn’t considered by New York legislators before the summer break. It is the second year that the bill called Lavern’s Law died in the State legislature despite the strong support from many (see previous blog), including our firm.

One of our partners, Jeffrey Bloom is representing Elissa McMahon, a patient whose doctors failed to timely diagnose cancer. Elissa McMahon was  unable to bring a lawsuit against the doctors who misdiagnosed her because the statute of limitation had passed. Jeff made the trip with her to Albany to help her campaign for the Lavern’s Law. Now, Elissa McMahon who is diagnosed with stage 4 cancer will have to wait until next year to hopefully be able to bring a lawsuit against the negligent doctors who ruined her life. (see previous blog)

Last year the bill passed the Assembly but died in the Senate. This year the Assembly waited to see what the Republican Senate would do. Despite being backed by the Senate GOP Deputy Majority Leader John DeFrancisco, the medical establishment was clearly against it and the Senate was unable to reach a consensus.

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In  Wally G., an Infant, by His Mother and Natural Guardian, Yoselin T v. New York City Health and Hospitals Corporation (Metropolitan Hospital), 2016 NY Slip Op 04443 decided on June 9, 2016, The New York Court of Appeals in a 4-3 decision affirmed the decision of the Appellate Division, 1st Department dismissing plaintiff’s complaint for serving a late Notice of Claim without first obtaining leave of court as required by General Municipal Law 50-e (5). In this medical malpractice action the infant plaintiff was born prematurely by emergency cesarean section at Metropolitan Hospital in New York City, a New York City Health and Hospitals Corp. (HHC) hospital.

He was transferred to the neonatal intensive care unit and discharged in stable condition in August 2005. In January 2007, more than 90 days after the claim arose, without first obtaining leave of court as required by General Municipal Law 50-e (5), plaintiff served a notice of claim against HHC alleging negligence and malpractice arising out of failure to properly treat and manage his mother’s prenatal care and failure to obtain informed consent with regard to plaintiff’s care. The notice claimed that plaintiff sustained brain damage, cognitive defects, developmental, speech and psychomotor delays, fetal and respiratory distress and seizure disorder. Plaintiff filed suit in August 2008, but waited until December 2010, to seek permission to serve a late notice of claim. The Appellate Division affirmed dismissal, finding unreasonable an excuse that counsel waited because he needed to receive medical records from HHC. The court held that plaintiff failed to establish “that the medical records put HHC on notice that the alleged malpractice would subsequently give rise to brain damage as a result of birth trauma and hypoxia,” The New York Court of Appeals affirmed. Contrary to plaintiff’s argument, the medical records must do more than “suggest” that an injury occurred as a result of malpractice in order for the medical provider to have actual knowledge of essential facts. In a dissent written by Judge Abdus-Salaam in which Judges Rivera and Fahey concurred, she opined “….. I believe that the courts below abused their discretion in holding that infant plaintiff Wally G.’s hospital records did not provide defendant New York City Health and Hospitals Corporation (HHC) with actual knowledge of injury attributable to its potential malpractice.”

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In New York the statute of limitations for medical malpractice starts from the time the medical error occurred. Assemblywoman Helene Weinstein (D-Brooklyn) is sponsoring a bill that would start the statute of limitations from the time the medical error is discovered instead of the the time it occurred. The bill, named after Lavern Wilkinson, a mother who died of a curable form of lung cancer after doctors misdiagnosed her (see previous blog), has 38 Senate Sponsors , both Republican and Democrats according to Assemblywoman Weinstein. This is enough to pass as long as the Senate decides to take the bill to a vote this year. The time is ticking on the bill as there is only one week left before the session ends. Read more in New York CBS Local.

Our partner, New York Medical Malpractice Attorney Jeffrey Bloom is strongly supporting the bill. Jeff is representing Lissy MacMahon, a single mother of a 15 year old son who was recently diagnosed with stage 4 cancer. Lissy had a previous surgery in 2012 in a New York Hospital. At the time of the surgery, doctors failed to diagnose her cancer. When she visited our office, Lissy learned that she was unable to sue because the statute of limitations had passed despite the fact that she had just learned about her cancer.  Lavern’s Law if it passed would allow Lissy to commence her lawsuit and make sure she and her son are taken care of.  Jeff traveled to Albany to support Lissy and many others who could benefit from the passage of this law. Below is a video of Lissy that will be shown to all New York State legislators.