Syracuse Personal Injury Law Blog

Why melting snow may lead to black ice

Published on: November 25, 2014 | By Jeff DeFrancisco

The recent snow storms in Buffalo and greater Eerie County have been historic in the amounts that have fallen. Residents and businesses alike have been digging out for days on end. Now it appears that an equally historic warm up is imminent, which raises the possibility of flooding.

If things could not get worse after that, temperatures are bound to fall later in the week, which may bring about the possibility of icy roads just in time for the holiday weekend. With that said, we find it prudent to discuss the dangers of black ice.

This is the term given to large, thin sheets of ice that form on streets and highways after moisture freezes as temperatures fall. Black ice is largely invisible to the naked eye, which makes it that much more dangerous for drivers, because there is hardly any reaction time once a driver hits a patch of ice.

Could non-economic damages caps be discriminatory?

Published on: November 24, 2014 | By Jeff DeFrancisco

In our prior post, we talked about how caps on non-economic damages could be harmful to medical malpractice plaintiffs, in that they may not compensate injuries that involve a great deal of pain and suffering or long-term emotional injuries. With these scenarios possible when medical negligence mars procedures involving reproductive organs or victims of sexual assault, could it be that some malpractice victims are treated differently than others?

According to a study about women, children and elderly medical malpractice victims, it appears that their injuries are largely compensated through non-economic damages, which are capped at $250,000 in a number of states.

Essentially, damages caps create an unfair value system where certain members of society may not recover what they should be entitled to based on the nature of their injury. Instead, damages may be determined on a person’s earning capacity. Since women tend to be awarded more than men when it comes to non-economic damages, such caps could be seen as discriminatory and work towards an unequal system of access to justice.

Three things you can do to avoid medical malpractice

Published on: November 14, 2014 | By Jeff DeFrancisco

In a prior post, we highlighted the breaches in procedure and improper actions taken by physicians that led to Joan Rivers’ death. Essentially, there were critical errors that if they were abated, could have saved Rivers’ life.

While the Rivers’ case appears to be a straightforward case of negligence, many other medical malpractice cases are not so clear cut. This led us to think about potential things that patients could do to help them avoid medical malpractice cases. This post will identify a few.

Speak up – Doctors are trained to diagnose medical conditions and make recommendations on how to treat them. However, you know your body much more than a physician can. So if you feel that something is wrong but doctors are telling you that everything is alright, speak up for yourself and not simply rely on one opinion. After all, it is your body and only you have to deal with the consequences if something goes wrong.

Why professional certifications may be important

Published on: November 13, 2014 | By Jeff DeFrancisco

As a patient, you may not be as concerned with certifications as a physician might be; but perhaps you should. Indeed, doctors may believe that certifications are an important measure for keeping abreast of the latest recommendations and best practices for a particular field. When doctors are into continuing education, the patient stands to benefit as well.

Take Arizona Cardinals quarterback Carson Palmer. He went down with an injury during last Sunday’s game. It was discovered that he tore his ACL, unfortunately on a play where crumpled to the field untouched. Palmer is likely to trust his surgery and subsequent rehab to someone who is certified by the National Academy of Sports Medicine (NASM) and/or the American Orthopaedic Society for Sports Medicine (AOSSM).

Certification by these groups inherently means that they are up to date on the latest techniques for surgery and post-operative care. Doctors who continue to hone their craft by obtaining these certifications are less likely to fail to use reasonable care during a procedure or during the rehab period. For instance, these physicians can advise on the best times after a catastrophic injury has occurred to have surgery. So while you may not have a professional football career to earn a living, medical negligence can occur regardless of your income.

Can doctors acting as Good Samaritans be held liable?

Published on: November 12, 2014 | By Jeff DeFrancisco

Indeed, physicians have difficult jobs where there may be times where they must make split second decisions that can have critical implications on patients’ lives. This is why they go through extensive training in order to properly diagnose illnesses and injuries and to make care recommendations accordingly. Despite the difficult nature of their profession, doctors must use reasonable care when performing their duties.

However, in situations where doctors are acting as Good Samaritans in emergency situations, should they be held to the same standards? More importantly, should a patient injured by a doctor in this position be able to initiate a malpractice suit?

This is an important question given that doctors may have an ethical duty to assist members of the public in the event of an emergency. Nevertheless, Good Samaritans are protected in a number of situations under New York law, including where:

Cancer treatment risks for men with prior cardiac histories

Published on: November 6, 2014 | By Jeff DeFrancisco

A number of our posts focus on the legal duty that physicians, nurses and hospital staff in using reasonable care in treating patients. A large part of that duty involves properly assessing patients for treatments; which may include asking questions about what drugs a patient may be allergic to and what their prior medical history involves.

A recent medicalnewstoday.com story exemplifies the importance of these screenings. According to a recent study featured on the site, certain prostate cancer treatments could lead to increased risk of death from heart-related causes. Specifically, men with prior cardiac histories or a diagnosis of congestive heart failure were found to be at risk when undergoing androgen deprivation therapy (ADT).

ADT focuses on reducing levels of male hormones in the body so that cancer cells will not be stimulated, thus preventing further growth of cancerous cells. Despite the success of this treatment, patients have seen an increased risk of diabetes, heart disease and even heart attacks.

Kimberly-Clark sued over Ebola risk to health care workers

Published on: November 6, 2014 | By Jeff DeFrancisco

With all the questions that have arisen about how several health care workers contracted Ebola in the past month, it was only a matter of time before lawsuits would be filed claiming fault. According to a recent Reuters.com report, Kimberly-Clark is being sued for fraud in the marketing and sale of some of its surgical gowns.

Specifically, the lawsuit claims that the Kleenex tissue maker falsely asserted that its gowns could protect wearers from contracting Ebola. It also notes that Kimberly-Clark misled health regulators, as well as health care workers who believed that the gowns were impermeable, thus providing inadequate protection against Ebola. It is further alleged that the gowns failed industry tests, and did not meet relevant protection standards against such an infectious disease.

As a matter of law, manufacturers cannot use phrases, slogans or sayings that could mislead a consumer (or federal regulators, for that matter) into believing that a product does something that it actually does not do. The Reuters report did not indicate specifically what phrases or marketing strategies were at issue. Nevertheless, manufacturers that are held liable for false advertising could be subject to a host of monetary damages stemming from liability to affected consumers.

Culture of intolerance among doctors coud drive medical excess

Published on: November 6, 2014 | By Jeff DeFrancisco

There is a notion in the medical community that over-testing and over-treatment of patients (i.e. defensive medicine) is practiced in order to limit the risk of future medical malpractice cases. While there may be some truth to this notion, a recent publication in The BMJ suggests that the overall culture in the medical community, as well as the attitudes among physicians may be more of a reason for defensive medicine than the specter of a medical malpractice claim.

Essentially, the culture of intolerance towards uncertainty and error among physicians themselves is the driver of over-testing and over-treatment. Doctors appear to perpetuate a culture where uncertainty in treatments is unacceptable; almost as if they have to be perfect with every diagnosis and recommendation for treatment. Indeed, there is an obvious incentive in being accurate, but when it deteriorates into medicine that does not focus on the best treatment for the patient, the culture behind it should be changed.

Because of this, two highly regarded professors argue that professional and public attitudes towards medical errors must be changed. This goes beyond medical malpractice reform, as the financial incentives presented to doctors along with the persistent marketing efforts to physicians create an increasing demand for testing and treatment.

Should pregnant women be excluded from medical research?

Published on: November 6, 2014 | By Jeff DeFrancisco

With all the research conducted on chronic health conditions such as depression, diabetes and hypertension, it is interesting how little, if any, research is done to see how treatments or drugs that abate these conditions would affect pregnant women.

According to a recent HuffingtonPost.com report, there is a significant gap of knowledge on how medications affect pregnant women because they have been historically excluded from medical research. This is due, in large part, to the notion that pregnant women should avoid taking a number of medicines out of fear that it would adversely affect the fetus. Nevertheless, a woman who fails to continue necessary medications, or fails to begin a prescribed treatment may run into the same risks.

The reality is, women are having children at older ages, and chronic medical conditions are more common. Because of this, stopping medication may not be the best option for an expectant mother. Additionally, if a pregnant woman has more information about the benefits and drawbacks of a medicine or treatment, chances are that staying the course could improve her short-term (and long term) health while minimizing the potential complications to the baby.

Stryker to settle hip implant lawsuit for $1 billion

Published on: November 5, 2014 | By Jeff DeFrancisco

Nearly a year after DePuy Orthopaedics settled what was one of the largest hip replacement recall lawsuits, it appears that another similar settlement is in the works. According to a recent New York Times report, Stryker, a Michigan based artificial hip implant provider, will settle the lawsuit against it brought by thousands of hip replacement patients that have experienced complications after using Stryker products.

Many patients who used the all-metal implants, which had become popular because of how durable they reportedly were, found that metal debris would come from the device’s ball and cup as the parts wore out, which would irritate the tissue surrounding the replacement hip.

Manufacturers have a legal duty to ensure that the products they put on the market are safe for a consumer’s intended use. If the product turns out to be defective (either through design or the means in which it was built), a manufacturer could be held liable for injuries to consumers. Before they were recalled, all-metal devices accounted for nearly one in three of the estimated 250,000 hip replacement procedures performed in the United States.