Physicians typically recall, with stunning clarity, the moment a patient’s treatment went wrong.  Following an adverse event, physicians often are tormented by competing desires to apologize and instincts to forge ahead without acknowledgement. A patient’s decision to file a malpractice action may be triggered by the physician’s response to a problem − or lack thereof.

The Washington Post highlighted contrasting tales of medical errors in which two patients suffered devastating consequences during surgery. Frustrated by a “white wall of silence” preventing her health care providers from articulating more than “’things didn’t go well,’” the first patient desperately committed to finding truth at all costs. In stark contrast, following his surgeon’s immediate explanation and apology for an error that rendered the second patient quadriplegic, the patient engaged in productive discussions with risk managers. The patient’s needs were met and his attorneys negotiated a confidential settlement without litigation.

Continue Reading You Had Me at “I’m Sorry”: The Impact of Physicians’ Apologies on Medical Malpractice Litigation

We all are familiar with complex medical malpractice lawsuits against hospitals that include claims against the numerous professionals and staff members involved in the treatment of admitted patients. The list of parties and potential cross-claims against other parties can be extensive. Approximately 25 million surgical procedures, however, are performed every year at ambulatory surgical centers (ASCs), as opposed to at acute care hospitals. Given the nature of ASCs and their common business model − to treat patients safely in an economical and expeditious manner without the need for an overnight stay − there are certain theories of malpractice that predominate. The factual and legal issues that must be examined by a defense attorney when an ASC is first faced with a medical malpractice claim differ somewhat from those raised when there are other defendants that may have caused or contributed to the alleged injury. The number of parties and theories of liability may be limited but the defense must be equally vigorous.
Continue Reading Factual and Legal Issues of Malpractice in Ambulatory Surgical Centers

I vividly recall attending the Bronx Bar Association Dinner last fall when it was announced that the Centers for Medicare & Medicaid Services (CMS) would ban pre-dispute arbitration provisions in nursing home admission agreements as of November 28, 2016. This news was relayed to me by a Bronx Supreme Court judge who had denied my very first motion to compel arbitration under such a provision. That denial ultimately was reversed on appeal.
Continue Reading Ding Dong the Arbitration Ban Is Dead!

Attorneys are accustomed to being called “ambulance chasers” or “sharks,” always interested in increasing their fees. Even if a lawyer reduces a bill for an unhappy client, that conduct may backfire if the client isn’t satisfied with the reduction. The attorney cannot later renege on the gratuitous fee discount or reduction, no matter what the reason. In a March 3, 2017, ruling, the Massachusetts Appeals Court − the commonwealth’s intermediate appellate court − held that a voluntary “professional courtesy credit” issued unconditionally to a client cannot be rescinded by a law firm when the client fails to timely pay its reduced bill. It just wouldn’t be “fair.”
Continue Reading Nice Attorneys Sometimes Finish Last

Hospitals are commonly named as defendants in medical malpractice lawsuits for claims arising from alleged injuries within their walls, but what is their exposure to liability for claims that arise from alleged sexual assaults by staff on their premises? In September 2016, the Atlanta Journal-Constitution released a five-part investigative series examining the alleged epidemic of physician sex abuse in all 50 states. The series examined the purported problem of sexual abuse by physicians, including how licensing bodies discipline physicians, how cases of sex abuse are handled in each state, the ability of physicians to continue to practice despite allegations of abuse, and the effects of such abuse on the victims.
Continue Reading Claims of Negligent Hiring, Supervision or Retention Draw Hospitals into Abuse Cases