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.
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A recent study on safety in hospitals conducted by Consumer Reports shows that hospitals are not a safe place to be.

For this study Consumer Reports magazine ranked more than 2000 hospitals based on the following criteria:

-Infections aquired in hospitals
-likelyhood to be re-admitted in 30 days
-communication issues around drugs and discharge
-likelyhood to get too many CT scans
-likelyhood of complications

Dr John Santa, director of Consumer Reports’ Health Ratings Center, was recently on “CBS This Morning” (see video below) to express his concerns.

In the New York area, out of 70 hospitals studied, 58 hospitals rank below the national average when it comes to safety.

Among these hospitals 27 out of the 28 teaching hospitals are scoring below average with some of them among the worst of the nation. The only teaching hospital in the New York region that scores above average is the the Winthrop Hospital in Mineola, NY with a safety score of 58 out of 100.

Teaching hospitals are supposed to lead by example as they are training the future doctors of our nation. It is an alarming fact that most teaching hospitals in the New York area are actually the most unsafe in the country.

In the New York area, the worst teaching hospitals when it comes to safety are the Kings County Hospital Center in Brooklyn, N.Y. with 22 points, the Bronx-Lebanon Hospital Center Health Care System in the Bronx, N.Y. with 25 points, the Westchester Medical Center in Valhalla, N.Y. with 28 points, Harlem Hospital Center in New York City with 28 points and the Jacobi Medical Center in the Bronx, N.Y. with 29 points.
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Stephen-Mackauf-thumbOur partner Stephen Mackauf and John E. Hall Jr. from Hall Booth Smith, P.C. will co chair the 12th Annual Advanced Forum of the American Conference Institute on Obstetric Malpractice Claims on June 26th-27 2013 in Philadelphia.

This two day forum is the nation’s foremost gathering of medical experts, insurance professionals, risk managers, leading plaintiff’s and defense lawyers in the field of Obstetric Malpractice. Participants will be able to attend highly specialized workshops and presentations covering the following subjects:

  • The state of obstetric malpractice
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safetypaysfallscost-2.jpgOn April 10, at 11 a.m. EST, OSHA’s Director of Construction Jim Maddux, and NIOSH’s Director of Construction Safety and Health, Dr. Christine Branche, will co-moderate a webinar to discuss ways of stopping the leading killer of construction workers – falls from heights. To register for the free webinar and to learn more about efforts by OSHA, NIOSH, and CPWR to protect construction workers from fatal falls, visit the registration page.

This seminar is part of of a nationwide outreach campaign by OSHA to prevent falls in construction sites. The theme of the campaign is – PLAN ahead to get the job done – PROVIDE the right equipment – TRAIN everyone to use equipment safely These says OSHA are three simple steps to reduce the number of falls and save lives.

Falls are the leading cause of death among constrcution workers. According to the most recent statistics of the LBS in 2011, falls accounted for 541 fatal work injuries.

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The Bureau of Labor Statistics recently published the initial release of the Census of Fatal Occupational Injuries.Here is a summary of their findings:

The 2011 preliminary total of 4,609 fatal work injuries represents a slight decrease from the final count of 4,690 fatal work injuries reported for 2010
The preliminary rate of fatal work injuries in 2011 was 3.5 fatal work injuries per 100,000 full-time equivalent workers, down from the 2010 final rate of 3.6.

More fatal work injuries resulted from transportation incidents than from any other event.
Roadway incidents alone accounted for nearly one out of every four fatal work injuries in 2011.


In 2011, falls to a lower level accounted for 541 fatal work injuries. Of those cases
where height of fall was known, 57 percent involved falls of 20 feet or less.

Roadway incidents accounted for the greatest number of work-related transportation fatalities. Of these, 512 deaths resulted from a roadway collision with another vehicle. Pedestrian vehicular incidents constituted the second greatest number transportation-related fatal injuries Continue reading →

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The talus bone is one of the most important bones of the ankle joint. It is the rounded bone at the top of the foot. Because of its location, the talus can be easily fractured after falls from heights such as falls from ladders and scaffolds in construction accidents or after a severe impact to the foot such as those caused by a motorcycle, a truck or a car accident. Some subtle fractures can be misdiagnosed as ankle strains as the symptoms are very similar: acute pain, swelling and bruising. A talus injury can severely limit the ability to walk and bear weight. Delays in treatment can result in long term disability and surgery.

In the following video segment, Dr Nabil Ebraheim, Professor and Chair of Orthopedic Surgery at The University of Toledo Medical Center, demonstrates the different types of talus fractures.

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“Malpractice claims may capture nonlethal errors; however, they are most often associated with permanent disability or death. Only about 1% of adverse events due to medical negligence result in a claim.” write David E. Newman-Toker, MD and Martin A. Makary, MD, MPH in this article commenting on Singh H, Giardina TD, Meyer AND, Forjuoh SN, Reis MD, Thomas EJ. Types and origins of diagnostic errors in primary care settings [published online February 25, 2013]. JAMA Intern Meddoi: .1001/jamainternmed.2013.2777.

The Newman-Toker article from JAMA Intern Med. 2013;():1-2. doi:10.1001/jamainternmed.2013.225 was Published online February 25, 2013. The authors go on to state;

“Nevertheless, with more than half a billion primary care visits annually in the United States, if these data from Singh et al are generalizable, at least 50 000 missed diagnostic opportunities occur each year at US primary care visits, most resulting in considerable harm. Combining this figure with autopsy-based estimates of US hospital deaths from diagnostic errors (40 000/y to 80 000/y1) and unaccounted nonlethal morbidity from hospital misdiagnoses and acknowledging another half billion visits annually to non–primary care physicians, more than 150 000 patients per year in the United States might have undergone misdiagnosis-related harm.”

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From USA TODAY: In a stunning article Peter Eisler reports that “Thousands of patients a year leave the nation’s operating rooms with surgical items in their bodies. And despite occasional tales of forceps, clamps and other hardware showing up in post-operative X-rays, those items are almost never the problem. Most often, it’s the gauzy, cotton sponges that doctors use throughout operations to soak up blood and other fluids, a USA TODAY examination shows.”

He goes on to report that despite this thousands of hospitals and surgical centers have failed to adopt readily available technologies that all but eliminate the risk of leaving sponges in patients.

He further points out that there’s no federal reporting requirement when hospitals leave sponges or other items in patients, but research studies and government data suggest it happens between 4,500 and 6,000 times a year. That’s up to twice government estimates, which run closer to 3,000 cases, and sponges account for more than two-thirds of all incidents.

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From The New York State Trial Lawyers Association:

“New York’s healthcare industry has long pressed for enactment of so-called “tort reform” so they can be relieved of supposedly “excessive” medical liability payments. In fact, payments to medical malpractice victims have already declined substantially:

• The number of medical malpractice claims filed in New York courts has declined every year since 2007. Fewer claims were filed in 2012 than in any year since 1992, even as New York’s population grew.

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From Reuters: “Missed or wrong diagnoses are common in primary care and may put some patients at risk of serious complications, according to a U.S. study.” The study appeared in JAMA Internal Medicine. David Newman-Toker from Johns Hopkins University School of Medicine who co-wrote a commentary on the study was quoted as follows in the article;

“We have every reason to believe that diagnostic errors are a major, major public health problem,” Newman-Toker told Reuters Health. “You’re really talking about at least 150,000 people per year, deaths or disabilities that are resulting from this problem.”

The article goes on to state that, “Most of the missed diagnoses were traced back to the office visit and the doctor not getting an accurate patient history, doing a full exam or ordering the correct tests.”

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By Anthony Gair;


In order to understand the break from precedent by the Court of Appeals in 2004, it is useful to understand the history of the recalcitrant worker defense. For years the leading recalcitrant worker case was Smith v. Hooker Chemicals and Plastics Corp., 89 A.D.2d 361, 455 N.Y.S.2d 446 (4th dept. 1982); app. dismd. 58 N.Y.2d 824. The rule enunciated therein was that the “….the statutory protection (afforded by §240) does not extend to workers who have adequate and safe equipment available to them but refuse to use it.”

The facts in Smith are important in order to understand how the Court of Appeals in decisions between 2004 and 2009 expanded the reach of the recalcitrant worker defense by relying on cases such as Smith, while ignoring the facts upon which the holdings were based, thereby in effect failing to follow long established precedent.
For example, in Smith the plaintiff went up on a roof despite the fact that safety equipment had been removed and after a co-worker had refused to do so unless the safety equipment was put back in place.

The Court’s holding was thus based on the fact the plaintiff knowingly chose not to use safety devices which he knew had been in place and were readily available. His accident was also contemporaneous in time with his refusal to use the safety devices which his co-worker insisted be in place before the co-worker got on the roof.

The Court of Appeals followed the reasoning of Smith for years, as did numerous Appellate Division cases.

In Gordon v. Eastern Railway Supply, Inc., 82 N.Y.2d 555, 606 N.Y.S.2d 127 (1993) the plaintiff was standing on a ladder leaning against a railroad car while using a hand-held sandblaster to clean the exterior of the car. He was injured when he fell from the ladder. In rejecting the defendant’s claim that the plaintiff was a recalcitrant worker, the Court stated:
“Defendants’ claim here rests on their contention that plaintiff was repeatedly instructed to use a scaffold, not a ladder, when sandblasting railroad cars. We have held, however, that an instruction by an employer or owner to avoid using unsafe equipment or engaging in unsafe practices is not a ‘safety device’ in the sense that plaintiff’s failure to comply with the instruction is equivalent to refusing to use available, safe and appropriate equipment (Stolt v. General Foods Corp., supra; see also, Hagins v. State of New York, 81 NY2d 921, 922-923). Evidence of such instructions does not, by itself, create an issue of fact sufficient to support a recalcitrant worker defense.”
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