|

I recently read an article in Bloomberg online which confirms what most personal injury and medical malpractice attorneys know to be true: hospital errors are vastly underreported, with a federal study finding that a full 90% of patient injuries are not recorded. The most common injuries are pressure sores and infections following surgery, according to the U.S. Agency For Healthcare Research and Quality, which analyzed 354 “adverse events”, including bloodstream infections, medication errors and pressure sores. The data was taken from 3 U.S teaching hospitals, which remain anonymous due to patient confidentiality issues.

The adverse events happened during 33% of admissions at the hospitals, using reviews of 795 patient records by nurses, pharmacists and physicians. No effort was made in the study to determine if the errors could have been averted.

In a 1999 study by the U.S. Institute of Medicine, it was determined that 98,000 deaths and more than one million injuries were due to medical errors. In a 2008 study by the Seattle consulting firm Milliman Inc., which reviewed hospital claims from 2001 through 2008, they found that these errors cost the 17.1 billion by 2008, and identified 564,000 injuries to patients in U.S. hospitals and 1.8 million injuries to patients treated at outpatient facilities.

Closer to home, considering these eye opening statistics, this writer is thrilled that Governor Andrew Cuomo failed in his efforts (at least for this year) to cap at $250,000 all medical malpractice awards in New York State, which he had inserted in his 2011 budget (as a clear gift to very well paid insurance companies and hospital administrators) but gave up in negotiations with the Assembly and NY Senate two weeks ago.

Continue reading ›

|

According to a report published in the Journal News on April 10, 1011, approximately 15% of motorcoach carriers in New York State have been cited for safety problems over the last 20 years. Of the five issues that are examined by the Federal Motor Carrier Safety Administration (FMCSA), the most common issues are fatigued driving and driver fitness. The other three areas which the FMCSA looks at are vehicle maintenance, unsafe driving and controlled substances/alcohol. When a motorcoach carrier is found to have a safety violation, they are issued an alert. The report establishes that of the 386 carriers in New York, 56 companies were issued an alert, or 14.5 %, with 31 alerts issued for fatigued driving and 17 for driver fitness.

The enhanced attention comes after the two fatal accidents involving buses last month, including the March 12 accident on I-95 which killed 15 and injured 17 seriously, and the March 14 accident on the New Jersey Turnpike which killed two, including the driver. Nationwide, approximately 12% of carriers have received an alert. The Federal Transportation Safety Board, which has no regulatory authority to implement its recommendations, alleges that its’ recommendations have not been followed by either the National Highway Traffic Safety Administration (NHTSA) or the FMCSA. The recommendations were, among others, to: install electronic onboard data recorders; design stronger bus roofs and windows to prevent passengers from being ejected in a rollover crash; and more stringent vehicle inspections.

In March, New York Senators Gillibrand and Schumer sponsored legislation, long overdue, which would require seat belts for all passengers; more driver training; stronger roofs; anti-eject windows; tougher vehicle inspections and medical exams for drivers. With the conservative and pro-business environment that prevails in the Senate in 2011, this writer has serious doubts as to whether such common sense measures will be implemented.

Continue reading ›

|

A recent study by the National Highway Traffic Safety Administration (NHTSA) indicates that traffic deaths decreased to an all time low in 2010, in which 32,788 people were killed in auto crashes, a 3 % decrease from 2009. The drop in fatalities was surprising in light of the fact that there was an estimated increase of 20.5 billion miles driven in 2010.

There was also a decrease in the fatality rate, (calculated as deaths per 100 million miles driven) from 1.13 in ’09 to 1.09 in 2010, the smallest fatality rate since the U.S. began recording this information in 1949. Traffic deaths have also dropped a full 25% since 2005, but the NHTSA has not yet determined the explanation for the significant decrease. What makes the drop so surprising is that distracted driving certainly seems to be on the increase, due to the huge increase in motorists testing while driving, speaking on their cell phones, adjusting GPS devices and attempting to multi-task in our increasingly fast moving society.

Without question, safer cars and more prevalent use of seat belts and the increase in the manufacture of cars with front and side air bags is certainly a factor in the drop.

Continue reading ›

|

An investigation by the National Transportation Safety Board (NTSB) has determined that the casino tour bus involved in the March 12, 2011 fatal bus accident that killed 15 passengers was traveling at speeds of up to 78 m.p.h., more than 20 miles per hour over the speed limit. Investigators also determined that despite the bus driver’s claims to the contrary, there was no evidence that a tractor-trailer had come into contact with the bus, causing the driver to lose control. The tragic accident, in which the bus struck a road stanchion and split in 2, killed 15 passengers returning from a gambling trip to the Mohegan Sun Casino in Connecticut, and caused several passengers to be hospitalized for a week after the crash, four in critical condition.

Neither the federal investigators nor the New York State Police have yet to determine a cause of the accident. Possible factors include driver fatigue, as casino bus drivers frequently work long hours with little sleep. Bronx County prosecutors are also evaluating the crash to make a decision as to whether criminal charges will be filed against the driver, Ophadel Williams. It has been learned that Williams had made false statements when he obtained his commercial driver’s license, including the fact that he had been incarcerated on a manslaughter charge years earlier, and was driving with a suspended license on the date of the accident.

As a result of the accident, New York Senator Chuck Schumer and Rep. Nydia Velazquez of Brooklyn have called for an examination of the safety of buses in the low-cost bus industry, which capitalizes on providing cheap transportation to casinos in Connecticut and New Jersey in order to fill their buses with passengers. One obvious and “no brainer” step would be to immediately require seat belts for all passengers, not just the driver as is presently the statutory requirement. Additionally, another measure being considered would be an interior alarm in the bus which would notify the driver if he were veering off the road or about to run into an obstacle.

Continue reading ›

|

As part of his effort to obtain a balanced budget by April 1, Gov. Cuomo has selected a “Medicaid Redesign Team”, whose purported function is to “reduce Medicaid spending.” While this goal might have some merit, the problem is that the team he put together is comprised solely and wholly of hospital CEO’s, administrators, doctors and insurance representatives. Not one single patient representative on that team to provide some level of objectivity. Naturally, the “team” included in it’s proposal something that doctors have been pushing for many years. A blatant attack on patient safety in the form of a arbitrary $250,000 cap on all medical malpractice awards in the State of New York. Imagine a relative or friend has been left paralyzed, blind, brain damaged, disfigured, or dead through the negligence or carelessness of their doctor or hospital. If this cap is instituted, these grievously injured people would be limited to a total award of $250,000, regardless of the doctor or hospital’s gross neglect, carelessness or recklessness.

For many years now, doctors and hospitals have been making the argument that their medical malpractice premiums are excessive, and that they are forced to practice defensive medicine to avoid lawsuits. However, this specious claim has been refuted time and again by studies and statistics. For example, as reported in the February 2011 edition of the American Journal of Obstetrics & Gynecology, by instituting a comprehensive patient safety program in 2002, New York Presbyterian Hospital was able to reduce “sentinel events” (defined as avoidable deaths and serious injuries) from 5 in 2000 to none in 2008 and 2009. Further, medical malpractice payouts shrank from a high of $50,940,309 in 2003 to an amazing low of only $250,000 in 2009!

In another example proving that the issue is not costs but rather patient safety, a June 2005 report in the Wall Street Journal found that anesthesiologists substantially reduced their malpractice premiums (paying less in 2005 than they did 20 years earlier) by initiating the use of devices that alerted doctors to potentially fatal operating room problems. Further, they instituted procedures that protected patients from potentially fatal carbon monoxide poisoning, The results of these measures are impressive indeed–patient deaths dropped from 1 in every 5,000 cases to 1 death per 200,000-300,000 cases.

Statistically speaking, despite the complaints of doctors and hospitals about medical malpractice lawsuits, they are in fact steadily decreasing in New York State. The New York State Office Of Court Administration (OCA) reports that malpractice filings in 2009 were 3,961, from 2005 when 4,270 such cases were filed.

Normally, this blog focuses on interesting cases, changes in the law and advice to plaintiffs on how to have a successful personal injury case. However, the grossly unfair and arbitrary effort to shift the responsibility of doctor and hospital errors away from those who should ultimately be held responsible–the doctors and hospitals that cause these injuries and deaths–must be stopped in its tracks before it is too late. Please urge your local legislator to vote no to the arbitrary and unfair malpractice caps, and yes to patient safety in allowing grievously injured patients to receive just compensation for their injuries.

Continue reading ›

|

In a follow up to our blog “Fatal Bus Accident Under Federal Investigation” earlier this week, the tour bus industry was rocked again after a second fatal accident occurred, this time on the New Jersey Turnpike on March 14, 2011. In the second accident, a bus operated by Super Luxury Tours crashed after it went onto the grassy median and struck a concrete support for an overpass. The bus was traveling from Chinatown to Philadelphia. The 50 year old driver, Wei Wang, who was not wearing his seat belt as required by statute, was thrown through the windshield and died, as did one 20 year old passenger. 41 other passengers were hospitalized subsequent to the accident. This follows the March 12, 2011 accident on I-95 in the Bronx in which 15 people died when a bus driven by Ophadell Williams rolled onto its side and struck a road sign stanchion. Investigation has revealed that the 40 year old Williams was driving with a suspended license, and had previously been convicted for manslaughter and theft.

Federal investigators from the National Transportation Safety Board (NTSB) have conducted an initial interview of Mr. Williams, who claimed that the bus was clipped by a tractor trailer, causing him to lose control of the bus and causing the horrific accident. Investigators are examining both the bus and the tractor trailer to determine if there is any damage to either vehicle substantiating Mr. Williams’ version of events. Allegedly, witnesses have given statements that the bus had been veering onto the shoulder of the road on several occasions prior to the accident, leading to speculation that Mr. Williams was falling asleep at the wheel before the accident happened. Federal and state investigators questioned Mr. Williams as length about how much sleep he had both prior to and during the overnight trip to draw conclusions as to whether fatigue was a factor in the accident.

Under regulations in place enforced by the Federal Motor Carrier Safety Administration, which oversees the tour bus industry, Williams should not have been driving for more than 10 hours during a 15 hour workday. Legislators including U.S. Senator Charles Schumer have called the safety guidelines inadequate, including the fact that rules are often enforced by roadside inspections carried out by state officials on a random basis.

Another questionable safety practice is that only the driver must be seat belted, and tour buses are generally not equipped with seat belts for passengers. The NTSB is studying whether having seat belts would have reduced the number of fatalities in the I-95 crash that claimed 15 lives. It is also looking at whether new technologies such as a warning system to alert the driver that he is veering off the road or heading for an obstacle would have made any difference.

According to the Federal Motor Carrier Safety Administration website (FMCSA), Super Luxury Tours, the operator of the bus in the NJ Turnpike accident, had one of the worst safety records, faring worse than 99.6 similar companies in the unsafe driving category. World Wide Tours, the operator of the bus in the March 12th I-95 accident, was rated almost right in the middle of all similar companies, with 52.6 operators having a better safety record regarding driver fatigue.

Continue reading ›

|

On Saturday, March 12, 2011, 14 passengers on a tour bus returning to Chinatown from the Mohegan Sun Casino were killed when the driver lost control of the bus, it rolled onto its side, and struck a sign stanchion on southbound 1-95 near the Bronx border. The fatal accident is now being investigated by the National Transportation Safety Board (NTSB) , who are interviewing the owners of World Wide Travel of Greater New York, and examining the crash site for physical clues to explain the horrific accident.

What is known is that on March 12th, thirty one passengers on the bus were returning from a day trip to the Mohegan Sun Casino. The driver of the bus, Ophadel E. Williams, (who suffered non life threatening injuries in the accident including a fractured hip), has informed investigators that he was attempting to avoid a tractor trailer which swerved into his lane and then lost control of the bus. Apparently, the bus tipped onto its right side, slid down the shoulder of the highway (the bus is alleged to have slid 480 feet from first contact with the guardrail until stopping), and then hit a sign stanchion which tore through the middle of the bus, leading to the massive injuries and fatalities. It has also been reported that World Wide Travel has been cited in the past for driver fatigue. Police investigators are working to retrace the driver’s actions for 72 hours before the crash. It has been reported that witnesses observed the bus moving at an excessive rate of speed.

In cases such as this, there are several pieces of evidence which will be instrumental in determining the true cause of the accident. These include:

Debris from the accident scene;
Tire marks, skid marks and other roadway evidence;
Damage to the vehicles involved;
GPS tracking information, which could indicate the route and speed of the tractor-trailer;
Statements from the drivers and occupants of the bus;
A review of the engine control module in the bus, which might assist the police in determining the speed of the bus at the time of the accident;
Driver’s logs which both the bus driver and truck driver and required to maintain by federal regulation;

Maintenance records for both vehicles.

There will undoubtedly be several lawsuits for wrongful death, and for the non-fatally injured passengers, for pain and suffering, medical and hospital expenses, lost earnings, loss of enjoyment of life, and long term care. I would assume that World Wide Travel would carry significant liability insurance coverage, but whether that coverage will be sufficient to compensate all of the victims of this tragic accident is a big question. If the evidence substantiates that the tractor-trailer’s actions contributed to the accident, there will be additional insurance from the owners of the trucking company, but there may still be insufficient insurance to compensate all victims.

We will continue to report on this case in future installments as the investigation continues.

Continue reading ›

|

Robert Donohue, a Southeast resident whose wife and 8 year old daughter were killed by a drunk driver back on June 8, 2009, has filed a Putnam County wrongful death lawsuit against the owner of the vehicle and the property owner where the accident happened. The facts are that on June 8, 2009, Lori Donohue and her daughter Kayla were outside of Kayla’s dance class at the Seven Stars School of Performing Arts in Brewster, when illegal immigrant Conses Garcia-Zacarias, who was driving while intoxicated, struck the two and killed them.

Garcia-Zacarias, illegally in the United States from Guatemala, was employed by horse trainer Valarie Renihan, a Westchester County resident, and was apparently living with several other undocumented workers employed by Renihan in a Southeast house leased by Renihan. Renihan is being sued on the basis that she permitted Garcia-Zacarias to operate her Ford F-350 pick up truck despite the fact that she knew or should have known that he was an unlicensed, illegal immigrant. Mr. Donohue is also suing Jan and Mindy Stark, the owners of the property where the accident occurred, on the theory that they knew that the dance school was close to a very busy road and had there been barricades between the parking lot and the roadway, the accident could have been prevented.

Shortly after the accident, the Town of Brewster installed concrete barriers to protect visitors as they walked to and from the dance school. Further, the Starks added columns to provide for a sheltered walkway. The allegations in the lawsuit are that the Starks should have taken these safety measures prior to the accident and were aware of the dangerous proximity of the dance school parking lot to the roadway. However, it would appear that this will be a much more difficult allegation to prove than the claims as to Mr. Garcia-Zacarias, who clearly should not have been permitted to operate a motor vehicle without a license and who was operating a motor vehicle with a blood alcohol content (BAC) of almost twice the legal limit at the time of the accident.

Garcia-Zacarias pled guilty to two counts of vehicular homicide in November of 2009 and is serving a jail term of 8 1/3 to 25 years in the Clinton Correctional Facility in Dannemora, New York. When he completes his jail sentence, Garcia-Zacarias will likely be deported to Guatemala.

Continue reading ›

|

With the incredibly snowy winter we’re having here in the Metropolitan area, people are slipping on icy sidewalks and stairways and suffering very serious injuries. In New York, in order to be successful in a slip and fall accident, you must be able to establish that the landowner had “notice” of the dangerous condition of the walkway or stairs prior to the accident. Notice can be either “constructive”; that is, that the landlord or property owner “knew of should have known” of the icy conditions–i.e. the landlord has his or her office there and could observe the dangerous conditions, or “actual”, meaning that the property owner knew of the snow or ice by virtue of a letter, e-mail or phone call specifically informing she or he about the snow and ice conditions.

If you are the victim of a slip and fall on ice or snow, make sure that you do the following:

1. Take photographs of the area where you fell from numerous different angles (have a friend or relative do this for you after learning of the accident). This is critical, as particularly in snow and ice accident cases, most of the time the conditions have changed or have disappeared within hours after the accident, making it much more difficult to prove your case if the case proceeds to litigation.

2. Obtain the names, addresses, phone numbers and e-mail addresses of all witnesses to the accident. This is another critically important factor in proving cases, as defendants and insurance companies frequently utilize the defense that the accident either did not occur at all or did not happen where the injured person says it did.

3. Report the accident to the property owner, and if possible, obtain a copy of the accident report.

4. Report the accident to the police, and request a copy of the police report.

5. Keep any damaged property or clothing in a safe place as it will be evidence in the case.

6. Seek hospital and medical treatment immediately. It is vital that you make sure that the triage nurse correctly describes the happening of the accident and that you confirm this before leaving the hospital. We are seeing an increase (either for reasons or carelessness or more sinister reasons) in admitting notes which distinctly blame the accident on the injured person without any foundation, for example: “patient reported that while late for work, he slipped on the driveway and broke his left arm”, or “while attempting to answer her cellphone, patient didn’t observe the ice on the sidewalk and fell, landing on her right hip.” In both of these cases, the admitting notes were completely inaccurate, but once you leave the hospital, try to convince the insurance company of that fact.

As for don’ts, there are two critical ones to remember. First, do not sign anything from an insurance company for the property owner. For example, they will often contact you before you are aware of the extent for your injuries, offering to pay for your medical bills in exchange for your signature on a “release” which will end your rights to bring a claim or lawsuit. Second, do not agree to give a recorded statement on the telephone to the insurance adjuster. These insurance representatives are trained in asking questions to elicit answers which attribute the fault of the accident to you.

Continue reading ›

|

After four fatal car crashes since 2008, a stretch of Route 9 in Cortlandt from the Annsville Circle to the Putnam County border will now have rumble strips on the center of the road to provide warning to inattentive or sleepy drivers to prevent cross over accidents. The roadway, also known as Albany Post Road, is narrow and curvy with grades which obstruct sight distance, adding to the dangers. Since 2008, serious car accidents at this location have claimed the lives of a Canadian trucker, a deli manager, and a Peekskill City attorney, who died this past July when his car collided with another vehicle and rolled over near the ABC Deli.

Other improvements which the DOT has implemented to make the roadway safer include extending a 45 mph speed limit, flashing lights, new warning signs and pavement markings. Alcohol has been a contributing factor in one of the fatalities, with regard to the September 4, 2009 accident which took the life of Ralph Wood, a 56 year old Peekskill resident. The driver of the car that struck the vehicle Mr. Wood was a passenger in was convicted of vehicular manslaughter and criminally negligent homicide in November of this year.

I have traveled on Route 9 near the Annsville Circle on numerous occasions over the last 15 years since moving to the area. I have witnessed numerous near accidents, and have frequently encountered vehicles on my side of the road coming out of blind turns. The State’s action was welcome and long overdue.

Continue reading ›