Photo of Lori R. Semlies

Lori Semlies focuses on the defense of medical and nursing home malpractice claims in both state and federal courts, including all phases of litigation through trial. She has handled appeals in the New York Appellate Division, First and Second Departments, and before the Second Circuit Court of Appeals. Lori also defends general negligence cases as well as trip and falls, motor vehicle accidents and equipment malfunctions.

MedicalPolicy_nursinghomes_ProfLiab504736759In response to increasing runaway verdicts with large awards for punitive damages, many nursing homes are including arbitration clauses in their admission agreements. The U.S. Supreme Court’s decision in Marmet Health Care Center v. Brown, 132 S.Ct. 1201 (Feb. 2012), held that these agreements are enforceable because the Federal Arbitration Act (FAA) preempts both state laws and judicially established public policies that prohibit contracts that require arbitration to resolve personal injury lawsuits. The only exceptions are if the party seeking to enforce the agreement took advantage of the other or the terms are so one-sided that the clause is “unconscionable.”

The issue of enforceability of the contract, however, is deferred to the state courts to apply their own contract principles and laws to determine if the contract between the nursing home and the patient is so unconscionable it cannot be enforced under the FAA.

Continue Reading Arbitration Agreements in Nursing Home Admission Agreements

sb10063567v-001Traditionally, parents encouraged the next generation to seek careers as doctors or lawyers – not only the most prestigious but also, at that time, the most lucrative. However, in today’s world, particularly from the perspective of this medical malpractice attorney, I have not encouraged the same goals for my children. College is expensive enough; I can’t imagine my daughters having to navigate the loans associated with medical or law school.
Continue Reading The Doctor May NOT Be In!

business-teamwork119559277TS3Every profession is facing the impact of baby boomers retiring – and trial lawyers are certainly no exception. At the PLUS Conference in April 2014, I was delighted to be part of a panel discussing a variety of topics impacting the medical malpractice community today, including the “changing of the guard” in defending these cases.

While I have tried several malpractice cases in my 20 years of practice, I don’t have nearly the number of verdicts under my belt as the senior trial attorneys did at my age. This reality is mostly the result of carriers and hospitals insisting on having the most experienced attorneys, those with whom they are familiar, try their cases. Such insistence is not always limited to high-exposure cases, and sometimes it occurs because the attorney is averse to  losing the client relationship.

Continue Reading Are Senior Trial Attorneys Passing the Baton?

Doctor-fromBack_TS-128930760Are courts becoming more liberal with the standards by which physicians are judged in failing to prevent suicides?

Traditionally, the professional judgment rule has been used by psychiatrists and other physicians as a defense against cases alleging a failure to predict and therefore prevent a patient from committing suicide. The premise is that if the defendant had acted within the standard of care in evaluating the patient and determined that there was no imminent danger of suicide, then he or she is not liable. Such reasoning is consistent with the understanding that a physician is expected to use his or her professional judgment in treating a patient. However, the fact that two physicians use different approaches to treat the same patient does not mean that one committed malpractice.
Continue Reading Is the Error of Judgment Defense Still Available in Suicide Cases?

Drepressed Man TalkingAt some point in their careers, most medical malpractice defense attorneys have defended a medical facility against a claim for negligence based on one patient being attacked by another. The negligence claim is premised on a failure to properly supervise and protect a patient from another who is known to have a propensity for violence. This scenario happens in psychiatric institutions, hospitals (psychiatric units or regular floors) and long-term care facilities.
Continue Reading Patient-on-Patient Violence: Does a Negligence Case Trump a Patient’s HIPAA Rights?