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As was expected for several months, Melissa Rivers, the sole daughter of the late comedian and T.V. personality Joan Rivers, has filed a medical malpractice and wrongful death lawsuit in connection with her mother’s death on September 4, 2014.  The suit, filed on January 26, 2015, alleges that Rivers unnecessarily died from cardiac and respiratory arrest due to a series of easily preventable medical errors committed by several treating doctors during the course of a voluntary examination of Ms. Rivers’ vocal cords.

The defendants include:  Dr. Gwen Korovin, Ms. Rivers’ private doctor; the Yorkville Endoscopy Clinic; (which has been temporarily shuttered to determine if it will continue to be permitted to receive Medicaid and Medicare funding); Dr. Renuka Bankulla, the anesthesiologist; and Dr. Lawrence Cohen, the medical director of Yorkville, where the procedure was performed. The case revolves around complaints that Ms. Rivers had concerning unusual hoarseness and inflamed vocal cords.  Dr. Korovin, who reportedly did not have privileges at the clinic, was to insert a small instrument into Ms. Rivers’ windpipe to examine her vocal cords.  However, Dr. Bankulla appears to have noted that Ms. Rivers’ vocal cords were very swollen, and could seize up, causing her to be unable to breathe.  It is alleged in the suit that Dr. Cohen dismissed those concerns with a claim that Dr. Bankulla was “paranoid.”  In fact, it is further claimed that Dr. Cohen was so unconcerned about Ms. Rivers’ condition that he took cellphone photographs of Ms. Rivers while she was lying unresponsive on the operating table. Continue reading ›

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The family of the late James McNair, 63, good friend and mentor of “30 Rock” and Saturday Night Live” comedian Tracy Morgan, announced last month that it settled a wrongful death lawsuit filed against Wal-Mart.  Mr. McNair, along with Mr. Morgan and three other friends, were travelling home from a comedy club performance in Dover, Delaware, and were on the New Jersey Turnpike on June 7, 2014, when Morgan’s Mercedes limousine bus was struck in the rear by a Wal-Mart tractor-trailer operated by Kevin Roper.

Roper, 35, had apparently been operating the tractor-trailer for more than 24 hours straight in violation of federal D.O.T regulations.  The National Transportation Safety Board performed an investigation of the accident.  In its investigation, the NTSB determined that Roper was operating the vehicle at 65 miles per hour in the seconds before the truck struck the rear of the Morgan vehicle, suggesting that he either fell asleep or was distracted prior to the crash.  The initial impact led to a chain reaction crash with another tractor-trailer, an SUV and two other cars.

In the accident, Mc. McNair apparently died at the scene as a result of his injuries. McNair was from Peekskill, New York and was a close friend of Mr. Morgan.  Morgan sustained traumatic brain injuries, a fractured femur, several broken ribs and a broken nose. He was hospitalized in critical condition for several weeks.  Another occupant of the Mercedes, 37 year old Harris Stanton, suffered a fractured wrist in the accident.

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In an interesting article in the Journal News in December of 2014, the issue of the how local Westchester County high schools respond to concussions suffered by young athletes was analyzed. Dr. Mark Herceg, the director of Neuropsychology at Burke Rehabilitation Hospital in White Plains, was interviewed to discuss what the proper protocol should be when a player suffers head trauma and a concussion is suspected, in the course of a football game, for example. It is Dr. Herceg’s opinion that the correct approach to begin with is that all high schools should have a full time athletic trainer and sideline testing.

Dr. Herceg discussed the case of a local high school football player (for privacy reasons the student’s name was not disclosed) who suffered a concussion on the first day of practice. He was told to go home, without any further testing, returned to practice the next day, and had another concussion on the second day of practice. The next day, amazingly enough, he was allowed to practice again, and suffered a third concussion, which necessitated a trip to the emergency room. Despite the overwhelming and thorough coverage of the one billion dollar settlement that the NFL has entered into with former players suffering from Alzheimer’s Disease, Parkinson’s Disease, dementia, ALS, mood disorders and a whole variety of other devastating effects of traumatic brain injuries suffered during the course of their careers, it would appear that the seriousness of the traumatic brain injury issue is not being heard at the high school level.

New York State requires only that an athlete suspected of suffering a concussion be removed from play, and that coaches, school nurses and athletic trainers take an online course on concussions. However, there is no state requirement that “pre-injury cognitive testing”, or post injury sideline testing be performed on athletes, nor that school districts employ part time or full time athletic trainers. In the Westchester County town of North Salem and the City of Peekskill, for example, their high schools have no part time or full time athletic trainers.

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The Metropolitan Transportation Authority has announced that beginning in the fall of 2015, buses in New York City will be equipped with “collision avoidance devices”, which will alert bus drivers to the location of pedestrians, bicyclists and motor vehicles which are in the operator’s blind spots. The system will utilize radar and sensors with speakers mounted on the exteriors of the buses, and will sound warnings to pedestrians and others as the bus is turning, to stay clear of the direct area.

Transit authorities in Los Angeles, Baltimore and Portland have either adopted the program or tested it, with the two main providers being ProTran from Newtown, New Jersey, and Clever Devices, with headquarters located in Long Island. In 2010, the Cleveland Regional Transit Authority installed the devices on 400 buses after averaging six pedestrian deaths a year. Since 2010, there have apparently been no pedestrian fatalities reported in Cleveland.

Ironically, the bus collision rate in NYC has dropped significantly (46%) from 92 collisions per million miles travelled in 1988, to 50 per million miles travelled in 2014. Nonetheless, there were 55 pedestrians and 7 bicyclists killed in bus collisions (including buses operated by private companies) in the City since 2010. Further, 131 pedestrians died in all types of traffic accidents in NYC in 2014, which is the lowest number of fatalities reported since 1910 (when record keeping of fatalities began), but still an unacceptably high number.

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For the last several years, several European countries, including Sweden, the Netherlands, and Norway, and some states in the U.S., have adopted a program known as “Vision Zero” in an all-out effort to reduce traffic fatalities and serious injuries. The program includes better traffic signs and roadway design, and a reduction of speed limits on local roads and highways. Research has determined that the human tolerance for a collision with a well-designed motor vehicle is approximately 19 miles per hour. When Mayor Bill de Blasio entered office last year, he announced that New York City was going to adopt the Vision Zero program to emphasize an effort to make New York City streets safer for pedestrians and bicyclists. This was after a personal plea by more than 4,500 letters from members of Families for Safe Streets, an organization that was created by family members of those killed or seriously injured in pedestrian, bicycle or car crashes in New York City.

The Vision Zero program involves improving traffic signage and reducing speed limits. In New York annually, approximately 4,000 people are seriously injured and there are more than 250 fatalities in traffic crashes. For children under the age of 14, being hit by a car is the leading cause of injury-related death, and is the second leading cause of death due to injury of seniors. On average, vehicles seriously injure or kill a New Yorker every two hours. Interestingly, although Mayor de Blasio has placed a major impetus on implementing the Vision Zero program, traffic fatalities in New York City have been steadily decreasing from 701 in 1990, 381 in 2000, to 249 in 2011. Obviously, any traffic fatalities are a problem when it comes to the huge volume of pedestrians in the City of New York.

Vision Zero has also been implemented in major cities across the U.S., including Boston, where in March of 2014, personal injury attorney John Sheehan initiated the “Vision Zero Auto Accident Prevention Scholarship” to encourage young adults to recognize the benefits of safer driving, and San Francisco, where district supervisors introduced the Vision Zero plan after 25 pedestrian and bicyclist fatalities in 2013 alone.

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On December 1, 2013, an otherwise ordinary early Sunday morning after the Thanksgiving holiday, a southbound Metro North train bound for Grand Central Station from Poughkeepsie derailed just north of the Spuyten Duyvil station in the Bronx. The train engineer, William Rockefeller, who had been employed by Metro North for fifteen years, fell asleep at the controls, (or fell into a trance sometimes called “highway hypnosis), allowing the train to hurtle along the tracks at 82 miles per hour in an area where the speed limit is 30 m.p.h. The derailment was investigated by the National Transportation Safety Board (NTSB), the MTA Police, the NYPD and the Bronx District Attorney’s Office to determine if a crime was committed, but none of these agencies found any basis for criminal charges. The brakes on the train were in working order and a check of Mr. Rockefeller’s phone revealed that he was not texting or using his cell phone prior to the crash. Rockefeller awoke just prior to the derailment and attempted to slow the out of control train to no avail as the train went flying off the tracks. Of the more than 100 passengers on the early morning train, four were killed and more than 80 injured. Mr. Rockefeller’s shift had been switched two weeks earlier from a night to the early morning run starting in Poughkeepsie at 5:04 AM. He was diagnosed with sleep apnea, which certainly contributed significantly to the tragic incident. No drugs or alcohol were found in his system. Continue reading ›

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Walk down any block in cities large or small, and you will inevitably see people walking across the street, into crosswalks, onto roadways, through parking lots with moving traffic, and along sidewalks, never looking up from their cell phones while they busily send a text or email. Worse, there have been ample examples on You tube of people walking into telephone poles, falling into Lake Michigan, falling onto train tracks, tripping on uneven areas of the sidewalk or into holes, into other pedestrians on the sidewalk, or in one heavily viewed video, a woman walks into the wall of a fountain in a mall, falling directly into the water while passersby look on.

At the University of Ohio in 2010, researcher Jack Nasar conducted a study of 1,500 pedestrians who suffered injuries while using their cell phones and who were treated at emergency rooms. The study showed that there were six times more injuries suffered by texting pedestrians than five years earlier. Nasar’s study included a teenager who fell into a ditch after he walked off of a bridge, and a 23 year old man who was hit by a car and suffered hip injuries when he walked into the street without paying attention.

Safe Kids Worldwide performed a survey this past October, noting that 40% of the 1,000 teens they interviewed admitted they had been struck by, or almost hit by a car while walking. Of those interviewed, 85% indicated that they were listening to music, texting, or on their cell phones when they were struck or almost hit. Dr. Barry Smith, director of the emergency medicine department at St. John’s Medical Center in Yonkers, noted that he sees many patients with orthopedic injuries suffered when they were walking and trip on the sidewalk, striking their heads or fracturing a limb. Obviously, the problems is greatly exacerbated when the pedestrian is focused on the music they are listening to, sending or reading a text or email, and not looking at what is in front of them.

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Knee replacement surgery has become more and more prevalent over the last fifteen years.  However, two recent studies from researchers at Virginia Commonwealth University in Richmond, after reviewing the records of 200 patients, suggest that in many cases, the surgery may not be appropriate or warranted.  The studies concluded that knee replacement should be performed only for those people who are suffering from advanced arthritis in the knee joint.  This is defined as encompassing severe pain, and impaired range of motion and function which hampers the person from getting out of a chair and walking without assistance.

According to data from the American Academy of Orthopedic Surgeons, knee replacements in people ages 45-64 skyrocketed 205% between 2000 and 2012.  For those aged 65 and older, the increase was a still substantial 95%.  The Virginia Commonwealth researchers indicate that surgical replacements are more indicated for patients over age 65 because the implanted materials last approximately 20 years.  Thus, if a 45 year old patient has the replacement, they will likely need another one during his or her lifetime. The researchers determined that about one third of the subjects were probably not good candidates for knee replacement surgery, because their arthritis was not substantial, and they had only slight pain and physical impairment.

Conversely, those whose arthritis was advanced benefited tremendously from knee replacement, with much improved function, and significantly less knee pain in the two years after the procedure.  Additionally, their knee function scores improved about 2o points.  In contrast, those whose knees didn’t justify the surgery had only a 2 point improvement in function scores.

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Melissa Rivers, the only daughter of the late Joan Rivers, the 81 year old comedian who died on September 4, 2014, has announced her intention to file a multimillion dollar medical malpractice and wrongful death lawsuit against the Yorkville Endoscopy Clinic in New York City. The facts are that Ms. Rivers was seen at the clinic on August 28, 2014 for a voluntary procedure to examine her upper gastrointestinal tract and vocal chords. She was under sedation with Propofol, (ironically the same drug that was responsible for the death of the pop performer Michael Jackson in June of 2009).  Rivers went into cardiac arrest during the procedure, and the allegations include the charge that Yorkville did not properly monitor her intake of Propofol, which was administered prior to the operation. Ms. Rivers was rushed to Mount Sinai Hospital from Yorkville Endoscopy, and died of low blood oxygen to her brain for an extended time, resulting in irreversible brain damage.

Melissa Rivers is the sole heir to the Rivers estate (her father, Edgar Rosenberg, committed suicide in August of 1987), and the estate has been valued as high as $100-150 million. She claims that the lawsuit is not to seek compensation, but rather to “fully determine the facts and circumstances surrounding [Joan Rivers] death.” The official cause of death was “anoxic encephalopathy due to hypoxic arrest during laryngoscopy and upper gastrointestinal endoscopy with Propofol sedation for evaluation of voice changes and gastroesophageal disease.”

Ms. Rivers was in a coma from the throat procedure on August 28, 2014 through her death on September 4, 2014. Thus, with regard to the medical malpractice allegations, which would require that her attorneys prove “conscious pain and suffering”, this will be difficult to establish unless there is some evidence that Rivers had some conscious awareness of her condition.

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This week, ten former NFL players filed objections to the NFL Concussion Lawsuit settlement due to concerns that the settlement does not adequately compensate the victims of chronic traumatic encephalopathy, or CTE. CTE is a brain injury of progressive neurological deterioration caused by repeated blows to the head. It was previously known as “dementia pugilistica”, as the condition was frequently observed in boxers. CTE has symptoms including memory loss, behavioral and mood disorders, personality changes, speech and gait abnormalities, impulsive actions and rage. 

The settlement covers approximately 20,000 players, and the great majority of those players or their families for those who are deceased are accepting the terms of the settlement. But Robert Stern, a Boston University professor of neurology and leasing expert on CTE, has declared that players “who suffer from many of the most disturbing and disabling symptoms of CTE will not be compensated under the settlement.” 

Since CTE cannot be diagnosed in living players, the 76 cases of the diagnosis in football players were all discovered during autopsies, which is part of the reason that the CTE diagnosis was not given the same weight as other conditions when determining the compensation provided to ex-players in the settlement. For example, conditions including Alzheimer’s disease, Parkinson’s disease, ALS, (Amyotrophic Lateral Sclerosis, also known as Lou Gehrig’s Disease), and dementia do not have the same restrictions as does CTE, ostensibly because each of these diagnoses can be determined while the player is alive. As presently constituted and approved by federal justice Anita Brody of the 3rd District in Philadelphia, all caps as to total compensation were removed. However, former NFL players who were diagnosed with CTE prior to January 1, 2006, or after July 7 of this year, are not covered by the settlement.

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