Long Island Personal Injury Lawyer

"Formal silverware" and the State of New York's duty to its psychiatric patients

Edward Nitkewicz — Tue, 13 Sep 2011 10:32:00 GMT

In what a Court of Claims Judge ruled a specious defense claim, the State of New York argued that its duty to account for knives in its psychiatric hospitals should extend to silverware and not plasticware.

The New York Law Journal reported that a Court of Claims judge found the State of New York fully liable for the attempted suicide of a psychiatric patient who cliamed he was able to pocket plastic knives from the dining area because the staff failed to account for utensils after meals.

In Acerbo v. the State of New York, Judge Terry Jane Ruderman undertook an extensive evaluation of the state's obligation to its patients and detailed the specific facts pertaining to the Acerbo claim.

It is undisputed that Rockland's own written policy and procedure explicitly requires that its staff "must ensure that the complete compl[e]ment of eating utensils (knife, spoon, fork, etc.) given to the patient is returned [emphasis added]" after each meal (Ex. 14). Additionally, the staff "must ensure that the patient does not enter into the bathroom with any eating utensils [emphasis added]" (id.). Rockland's policy and procedure further addresses the potential circumstances that "a patient may have hidden the utensil on their person or in their property" and provides for conducting a search of the immediate area and possibly the patient.The issuance of this policy and procedure evidences Rockland's awareness that there is a danger posed by unaccounted for utensils because a patient may hide a utensil and then proceed into the bathroom. The potential danger posed by a psychiatric patient alone in a bathroom with a utensil is that the patient may self inflict wounds.

The Court pointedly rejected the state's "specious" argument that its own procedures did not apply to plastic utensils.

The Court rejects the argument that Rockland's written policy and procedure regarding utensils (Ex. 14) was not applicable at the time of claimant's suicide attempt in 2006 because the policy and procedure related to silverware and Rockland was using plasticware at that time. First, Rockland's own employees testified to their dining room practices which were consistent with the written policy and procedure (id.). Second, defendant failed to establish when Rockland stopped using silverware and began using plasticware. Third, the change in the type of utensils did not change the acknowledged danger posed by a missing utensil. Fourth, the policy and procedure was revised five times since it issuance in 1989 with the last revision in 2003; thus Rockland had the opportunity to address the change from silverware to plastic and did not. Finally, if any part of the policy and procedure appears to be superfluous with Rockland's use of plastic utensils, it would be only that which refers to the placement of utensils in a special container, which was used for cleaning the silverware, whereas the plastic utensils were discarded after theywere accounted for and taken to the kitchen. The Court also rejects the argument that claimant may have obtained the knives due to an extra knife placed in his packet or in the packet of another patient. These arguments are specious and, in any event, could also lead to a finding of negligence attributable to Rockland.

The clear message from the court is that the state's duty extends to untensils that cut. Period.

Originally posted at InjuryBoard by Edward Nitkewicz

The September 11th Victim Compensation Fund: ten years later

Edward Nitkewicz — Fri, 09 Sep 2011 15:08:35 GMT

The terrorist attack of September 11^thwas the most traumatic assault on our nation since the bombing of Pearl Harbor. Americans would unfortunately bear witness to the destruction that a deadly assault on our country could produce. The collective patriotism that arose in the immediate aftermath of the attacks would be a first for a new generation of Americans who will never forget where they were on 9/11.

For many, the days following the attacks brought a considerable amount of soul searching. The gap between “wanting” to help and “ability” to help was different for each of us. We Americans wanted to dig through the rubble for survivors; we wanted to tend to the injured; and we wanted to find and capture the perpetrators of the horrific acts of terror. However, most of us were not firefighters, or doctors, or welders, or heavy machine operators, or crime scene experts.

It was during the days after 9/11 when I questioned my chosen profession. Until that time, I found representing individuals injured by the negligence of others rewarding. I was proud of the fact that I would be an advocate for the rights of those who did not have the financial support enjoyed by insurance companies, corporations and municipalities. I was unbowed by those who would use deplorable terms like “ambulance chaser.” However, advocacy skills were not required on September 11^th and the days thereafter. The country needed tradespersons and rescue workers, and apparently not attorneys.

Months later, the September 11^th Victim Compensation Fund was created by an act of Congress to compensate the victims of the 9/11 attacks, their estates and their families for their loss. Kenneth Feinberg was appointed by President George W. Bush to serve as Special Master of the Fund. Any family or injured person making a claim to the Fund would irrevocably waive their right to sue the government and airlines involved in the tragic attacks.

Like many others, I knew individuals who lost their lives on 9/11. My college football roommate was Tom Haskell, a firefighter from Seaford. Both Tom and his younger brother Tim, also a firefighter, perished when the towers of the World Trade Center collapsed. The younger brother of my best friend in high school, Patrick Lyons, was a firefighter captured on film that morning as he bravely geared up and ran into the burning buildings of the World Trade Center. His remains were never recovered.

I was asked by the wives of Tom and Patrick to investigate the newly unveiled Victim’s Compensation Fund. I was just starting my own law practice at the time but volunteered to learn everything I could about the Fund and how it worked. I attended several “Town Hall Meetings” where Mr. Feinberg would come to address the families of victims on Staten Island and Long Island. I engaged in lively debate with him on behalf of the firefighters I was now representing. Determining what life insurance or other benefits would be offset by the Fund was a significant legal issue. Projecting through economists the future earnings of each claimant or victim was a tedious but important task. Assembling “simple applications” was in fact an arduous task that called upon my skills as a trial attorney and resulted in three 250 page/35 exhibit trial notebooks for each applicant.

As time quickly passed, I was requested to take on additional claimants. At one Town Hall meeting, Special Master Feinberg himself invited attendees to seek me out if they required counsel who understood the Fund and its procedures. In addition to the Haskell and Lyons families, I was asked to represent the families of firefighters Christopher Sullivan, Andrew Jordan, John Viggiano, II, Michael Kiefer, David Halderman, Kenneth Watson, and George Cain. I was honored to do so and like many of my colleagues, I did on a pro bono basis.

After I filed all nine claims, I received what at first I thought was a “prank” call. “Ed, a Mr. Kenneth Feinberg on line 1.” In fact, Special Master Feinberg learned that I had agreed to represent the families of several firefighters on a pro bono basis and called me personally to offer to personally serve as the hearing officer to my clients. True to his commitment, Mr. Feinberg flew to New York and in one day met with each of my client-families, listened to their stories with compassion and empathy, and evaluated the evidence submitted. Awards were thereafter rendered that fairly compensated the families of the brave firefighters who lost their lives on that fateful day.

The founding partner of the Sanders Law Firm also took on the representation on a pro bono basis the claims of victims who lost their lives at the World Trade Center on 9/11. Stanley J. Sanders spent over a year preparing for the hearings and was able to obtain awards totaling over $20 million dollars for the families he represented.

Over 1000 lawyers who were members of the Association of Trial Lawyers of America joined together to form Trial Lawyers Care, a non-profit organization of attorneys dedicated to providing free legal help to families filing claims with the Victim’s Compensation Fund. Both Stanley J. Sanders and I were proud members of Trial Lawyers Care.

Like Stanley and many of the other lawyers of Trial Lawyers Care, I have remained close to the wonderful people I stood beside during those difficult hearings. The compensation awarded to each family helped them to start rebuilding their lives in the aftermath of the death of their fathers, their husbands, their sons and their brothers. They have all expressed gratitude for my commitment to their claims and to their families.

Serving as an attorney for the families of the brave firefighters of 9/11 is a source of personal and professional pride for me, for Stanley J. Sanders and for all the attorneys who volunteered to help at our countries’ time of need. I was never happier to be a plaintiff’s personal injury attorney then I was at the conclusion of the 9/11 Fund claims.

Originally posted at InjuryBoard by Edward Nitkewicz

Litigation update: defective hip and knee implant claims

Edward Nitkewicz — Fri, 12 Aug 2011 13:51:21 GMT

Update on claims regarding the Zimmer NexGen Knee Replacement and the DePuy Hip Replacement litigation.

Zimmer NexGen Knee Replacement failures have given rise to claims of failure soon after their implant. Last year, the New York Times reported that the manufacturer has "pushed back" against doctors who lodge complaints or share concerns.

For years, Dr. Richard A. Berger designed surgical tools and artificial joints for Zimmer Holdings, trained hundreds of doctors to use its products and talked it up wherever he went. In return, Zimmer, an orthopedic implant maker, helped enrich Dr. Berger, portraying him as a master surgeon and paying him more than $8 million over a decade.

Those days are gone. Dr. Berger started complaining to Zimmer a while back that one of its artificial-knee models was failing prematurely, and he went public recently with a study that he says proves it. Zimmer told him that the problem was not the artificial knee, but his technique, and pointed to data overseas indicating that the knee was safe.

Last year, Zimmer did not give Dr. Berger a new contract. The company says it routinely rotates consultants.

In a victory for the injured recipients of the Zimmer NexGen knees, the United States Judicial Panel on Multidistrict Litigation ("MDL") last week granted the motion of plaintiffs' counsel centralize the litigation commenced against Zimmer, Inc. and its subsidiary companies, relating to its NexGen Knee replacement implants and the claims filed that they have presented an "unacceptably high" failure rate. The Order directed that 28 actions filed outside of the Northern District of Illinois are to be transferred to that district and assigned to the Honorable Rebecca R. Pallmeyer for coordinated multi district pre-trial proceedings.

DePuy Orthopaedics, Inc. waited until August of 2010 to announce a recall of its defective hip implant. Known as the ASR XL Acetabular and ASR Hip Resurfacing System, these ASR hips have been implanted in over 93,000 patients. Due to the premature failure of DePuy Hips, up to 12.5% (approximately one in eight) of patients may be forced to endure the pain and associated expenses of subsequent corrective surgery.

As a result, DePuy has issued a voluntary recall of its ASR Hip.

The MLD in the Depuy ASR cases were consolidated in a multidistrict litigation (MDL) under federal District Court Judge David Katz of the Northern District of Ohio in Toledo(In re: DePuy Orthopaedics, Inc., ASR Hip Implant Products Liability Litigation (MDL Docket No. 1:10-md-02197)).

More recently, DePuy has been subject to another MDL regarding its Pinnacle Hip Implants.

The nationwide hearing on Pinnacle hip implants follows the recent national coordination of lawsuits over the DePuy ASR(TM) Hip System and the ASR(TM) XL Acetabular System, which were recalled in August 2010. The DePuy Pinnacle® product, like the ASR devices, utilizes a metal-on-metal design, which experts have identified as a distinct flaw that can cause metal shavings to dislodge inside a patient's body, resulting in infections and other problems.

Meryl Sanders Viener, a partner at the Sanders Law Firm, is a nominee to the Plaintiffs' Steering Committee of the DePuy Pinnacle litigation.

Originally posted at InjuryBoard by Edward Nitkewicz

Hospitals and "the Fear of Flying"

Edward Nitkewicz — Thu, 11 Aug 2011 18:47:00 GMT

Aerophobia is the fear of flying and ultimately, of dying in an airplane crash. Last month, the World Health Organization announced that "going into hospital is far risker than flying."

Millions of people die each year from medical errors and infections linked to health care, and going into hospital is far riskier than flying, the World Health Organization said on Thursday.

"If you were admitted to hospital tomorrow in any country ... your chances of being subjected to an error in your care would be something like one in 10. Your chances of dying due to an error in health care would be 1 in 300," Liam Donaldson, the WHO's newly appointed envoy for patient safety, told a news briefing.

This compared with a risk of dying in an air crash of about one in 10 million passengers, said Donaldson, formerly England's chief medical officer. "It shows that health care, generally worldwide, still has a long way to go."

Originally posted at InjuryBoard by Edward Nitkewicz

Fosamax leadership team announced for femur fracture cases filed against Merck

Edward Nitkewicz — Tue, 09 Aug 2011 18:23:54 GMT

The United States District Court has appointed several prominent mass tort lawyers, including Victoria Maniatis of the Sanders Law Firm, to serve as members of the plaintiffs' committee of the multidistrict litigation involving the osteoporisis drug, Fosamax.

U.S. District Judge Garrett E. Brown, Jr., who is presiding over all federal Fosamax femur fracture lawsuits, has appointed a number of lawyers to serve in leadership roles in the recently formed multidistrict litigation (MDL). These attorneys will perform certain actions during the coordinated pretrial litigation that will benefit all plaintiffs who have filed a lawsuit over a fractured femur from Fosamax, a popular osteoporosis medication manufactured by Merck & Co.

Fosamax was first the subject of lawsuits alleging that the drug causes osteonecrosis of the jaw. In October, the FDA issued a safety update regarding the risks of atypical fractures of the thigh, known as subtrochanteric and diaphyseal femur fractures, in patients who take bisphosphonates for osteoporosis. In January of 2011, Merck Sharp & Dohme Corp., a subsidiary of Merck & Co., Inc., issued a new label with a safety precaution regarding "Atypical Subtrochantric and Diaphyseal Femoral Fractures." In February 2011, the Journal of American Medical Association published a study that concluded:

Among older women, treatment with a bisphosphonate for more than 5 years was associated with an increased risk of subtrochanteric or femoral shaft fractures; however, the absolute risk of these fractures is low.

As a result, it is expected that there will be hundreds, if not thousands, of claims brought against Merck for the dangerous side effects of Fosamax.

Originally posted at InjuryBoard by Edward Nitkewicz

The Peace Corps: "it's been a privilege flying with you, Sergio Maldonado."

Edward Nitkewicz — Fri, 22 Jul 2011 11:11:02 GMT

In the last 30 days, the evening news has been a repository of seemingly endless stories of all that is going wrong in the world. The Federal Government is dangerously close to defaulting on its debt obligations. The State Government announced that it cannot offer raises to it's judicial branch despite the fact that its has not received an increase in pay since 1999. Wars on several fronts continue to be waged with no real end in sight. The price of gas still hovers at the $4.00 per gallon price.

And then, just yesterday, I was fortunate enough to have a conversation with a terrific, quiet spoken, young man who has worked in our firm as a paralegal over the past two years. Sergio announced that he will be leaving the firm on Friday to join the Peace Corps where he will be trained to serve as an Environmental Health Volunteer.

He must, I thought, have an ulterior motive. I mean, what thirty-something single man would simply quit his job as a paralegal for the mass torts division of a nationally recognized law firm to become a volunteer? A resume building detour, perhaps? A guaranteed assignment to Hawaii, maybe?

No. This remarkable young man was motivated to help others for reasons that evoke the spirit of John F. Kennedy, the man responsible for establishing the Peace Corps.

On October 14, 1960, at 2 a.m., Senator John F. Kennedy spoke to a crowd of 10,000 cheering students at the University of Michigan in Ann Arbor during a presidential campaign speech. In his improvised speech, Kennedy asked, "How many of you, who are going to be doctors, are willing to spend your days in Ghana?Technicians or engineers, how many of you are willing to work in the Foreign Service and spend your lives traveling around the world?" His young audience responded to this speech with a petition signed by 1,000 students willing to serve abroad. Senator Kennedy's challenge to these students—to live and work in developing countries around the world; to dedicate themselves to the cause of peace and development—inspired the beginning of the Peace Corps.

Sergio was kind enough to share his motivation with me.

I made up my mind to join the Peace Corps during a trip to El Salvador last summer. I was staying in a poor neighborhood in San Salvador. The house was small, it was hot, there was rarely any running water, and the electricity went out almost every other day, but I was genuinely happy and I did not want to be anywhere else. I noticed that despite the harsh living conditions everyone I met was kind, generous, and optimistic. People would go out of their way to make me feel welcome. At that moment I decided that I was going to join the Peace Corps because as a volunteer you get the opportunity to help improve living conditions in a community even if it’s in a small way.

When I met with Sergio yesterday, I recalled the memorable line from the movie Apollo 13. As the astronauts were preparing to "splash down" near the end of their ill-fated but unforgettable journey, Commander Jim Lovell paused and informed his crew mates "Gentlemen, it's been a privilege flying with you."

Sergio Maldonado is a young man whose future aspirations include helping less fortunate people of third world nations secure access to clean drinking water and electricity. Finally, some good news. It has been a privilege knowing you, Sergio.

Originally posted at InjuryBoard by Edward Nitkewicz

Pitching without a safety net: court rejects theory of inherent compulsion.

Edward Nitkewicz — Mon, 18 Jul 2011 12:33:23 GMT

A college freshman pitching batting practice for the Clarkson University baseball team assumes the risk of injury when he does so without a protective "L" screen net, even when directed to do so by the coaching staff. So says the Third Department in Bukowski v. Clarkson University.

Plaintiff, Shawn Bukowski, suffered injuries to his face when he was struck by a baseball batted back at him by a teammate during batting practice. The trial court dismissed the action at the conclusion of the evidence presented and did not allow the jury to render a verdict. The Third Department of the Appellate Division of the New York State Supreme Court affirmed the dismissal by a 3-2 margin. The majority cited the plaintiff's testimony in refusing to overturn the decision.

During his jury trial testimony, plaintiff acknowledged that he was an experienced baseball player who was aware of the risk of being struck by a batted ball while pitching. Plaintiff testified that he had been playing baseball and pitching in various leagues for many years and that balls had been batted directly back at him 50 to 100 times throughout the course of his experience as a pitcher. In addition, plaintiff testified that he had extensive experience playing on fields of all different types, under a variety of conditions, which included different backdrops, pitching mounds and lighting. Plaintiff further acknowledged that he was familiar with the indoor training facility where the team practices were held and had regularly attended the practices in the facility a month before the incident. Plaintiff confirmed that he had been informed by his coaches that they intended to hold "live" practice without the use of a protective screen, known as an L-screen, in the indoor facility at least two weeks prior to the accident. He also testified that, both on the day before his accident and just prior to his turn on the pitching mound, he had observed other pitchers practicing "live" in the netted-off "batting cage" area without the use of an L-screen. After the close of proof, Supreme Court (Devine, J.) granted defendants' motion to dismiss on the ground that plaintiff had assumed the obvious risk of being hit by a line drive.

The dissenting Justices disagreed and found that the plaintiff presented sufficient evidence for a jury to conclude that "the risk of injury incident to his participation in the indoor practice was unreasonably increased over the inherent risks of the sport and, commensurate with that finding, that defendants owed a duty to protect him from those risks."

The majority opinion suggests that a college baseball freshman is capable of simply refusing a coach's directive that he practice in a certain manner. As a technical matter, any athlete can refuse the order of his or her coach. As a practical matter, even professional athletes with lucrative guaranteed contracts are hesitant to refuse a directive for fear of reduced playing time, being ostracized in the clubhouse, being traded or being cut from the roster of very limited spots. This theory of "inherent compulsion" was rejected by the majority.

Most 18 year old freshman are thrilled to make the team. To suggest that Mr. Bukowski assumed the risk of being smashed in the face with a line drive because he failed to instruct his coach to put up the protective screen is, respectfully, ludicrous.

Originally posted at InjuryBoard by Edward Nitkewicz

Pelvic Mesh: FDA announces "clear risks"

Edward Nitkewicz — Mon, 18 Jul 2011 10:44:09 GMT

The Food and Drug Administration ("FDA") announced last week that transvaginal placement of surgical mesh in connection with Pelvic Organ Prolapse repair poses "greater risk than other surgical options."

According to the American Urogynecologic Society, pelvic organ prolapse is a medical condition that occurs when the normal support of the vagina is lost, resulting in “sagging” or dropping of the bladder, urethra, cervix and rectum. As the prolapse of the vagina and uterus progresses, women can feel bulging tissue protruding through the opening of the vagina.

As the prolapse gets worse, some women complain of:

A bulging, pressure or heavy sensation in the vagina that worsens by the end of the day or during bowel movements
The feeling that they are “sitting on a ball”
Needing to push stool out of the rectum by placing their fingers into the vagina during bowel movement
Difficulty starting to urinate, a weak or spraying stream of urine
Urinary frequency or the sensation that they are not emptying their bladder well
The need to lift up the bulging vagina or uterus to start urination
Urine leakage with intercourse

The FDA announcement stated that it was now recommending to physicians to "carefully consider all other treatment options and to make sure that their patients are fully informed of potential complications from surgical mesh."

The most frequently reported complications from surgical mesh used to repair POP include mesh becoming exposed or protruding out of the vaginal tissue (erosion), pain, infection, bleeding, pain during sexual intercourse, organ perforation from surgical tools used in the mesh placement procedure, and urinary problems. Some reports cited the need for additional surgeries or hospitalization to treat complications or to remove the mesh.

Adverse Event reports to the FDA regarding transvaginal placement of surgical mesh increased significantly from the period of 2008 to 2010.

Originally posted at InjuryBoard by Edward Nitkewicz

Food and Drug Administration panel to examine osteoporosis drugs

Edward Nitkewicz — Thu, 14 Jul 2011 09:00:00 GMT

The Wall Street Journal has reported that an advisory panel of the Food and Drug Administration will convene in September to examine the safety of drugs used to treat osteoporosis including Fosamax, manufactured by Merck & Company. Bisphosphonates such as Fosamax have been linked to osteonecrosis of the jaw. More recent studies link long term use to femur fractures.

Last year, the FDA strengthened warning labels on the drugs and said doctors should periodically evaluate the need for continued bisphosphonate therapy for patients who have been on the drugs for longer than five years.

Bisphosphonates, used by about 5 million Americans, have been shown to increase bone mass and stop or slow the progression of osteoporosis. There have been at least 300 reports of atypical femur fractures, a rare type, in patients taking the drugs, often for longer than five years.

The number of lawsuits commenced by users of Fosamax and other bisphosphonates used to treat osteaoporosis continue to rise as new studies are released.

Originally posted at InjuryBoard by Edward Nitkewicz

"Taking the reins from the buggy driver"

Edward Nitkewicz — Wed, 13 Jul 2011 12:09:33 GMT

In a recent decision by the Second Department of the Appellate Division of the New York State Supreme Court, the Appellate Court overturned a trial court's ruling that dismissed an injured plaintiff's action based upon a "a legal fiction carried over from the days of the horse and buggy where the owner could easily regain control of a horse by reaching over and taking the reins from a negligent driver."

The plaintiff in Mikelinich v. Caliandro, 8430/09, NYLJ 1202500186042, at *1 (App. Div., 2nd, Decided July 5, 2011) was the owner of an all-terrain vehicle (ATV) who was injured when he permitted the defendant try the ATV. The defendant's moved to dismiss the complaint on the grounds that the plaintiff owned the vehicle and permitted the defendant to use it. Thus, it was argued, liability for the accident was attributable to the plaintiff pursuant to Vehicle and Traffic Law 2411.

In Gochee v. Wagner (257 NY 344), the Court of Appeals held that the negligence of the driver of a motor vehicle had to be imputed to the owner of the vehicle for purposes of the owner's claims against the other driver if the owner was a passenger in the vehicle at the time of the accident. This rationale was grounded on the premise that the owner was present and, thus, he or she could exercise authority and control over the driver's actions at any time.

Calling this "an issue of first impression" the Court reversed the trial court's dismissal and pointed out that the Gochee rule was overturned in the context of VTL 388 (which applies to automobiles) and was based on long outdated notions.

The rule was based on a legal fiction that the owner had the capacity to interfere with the operation of the car, a legal fiction carried over from the days of the horse and buggy where the owner could easily regain control of a horse by reaching over and taking the reins from a negligent driver.

Originally posted at InjuryBoard by Edward Nitkewicz