One of the many concerns about the health care reform bill that was recently signed by President Obama was that it might deprive those who have suffered devastating injuries or death due to the mistakes of doctors and other medical providers of their right to a jury trial. Fortunately, although the bill permits all states, including New York, to institute alternatives to jury trials in order to resolve medical malpractice lawsuits, it also provides that such alternatives are optional. This means that under the health care bill, plaintiffs in a medical malpractice suit will retain their right to have their claims heard and determined by a jury, a fundamental right under our Constitution. In addition, the proposal to institute caps (limits) on the awards for medical malpractice was defeated, thus ensuring that those who are severely injured due to malpractice will recover just compensation.

If you or a family member have suffered an injury due to medical malpractice please call our medical malpractice lawyers at Zucker & Bennett for a free consultation or contact us through our website at www.zuckerbennett.com.

Immediately after the attacks on the World Trade Center on September 11, 2001, thousands of selfless individuals bravely ventured to the site of Ground Zero to assist in the rescue and recovery efforts.  Unfortunately, many of these rescue and recovery workers performed this heroic work without  any protective equipment and without the proper clothing that we now know was necessary to keep them safe from the toxic debris and dust that they sifted through in order to save as many lives as possible.  As a result many rescuers and recovery workers became ill and suffered various long term and permanent injuries.

Under the law as it existed from 2001 through September 2009, rescue and recovery workers who suffered injuries or health problems as a result of their work at Ground Zero had only 90 days from September 11, 2001 to file a claim for compensation with the City of New York.  This requirement resulted in the rejection of claims brought by thousands of workers whose injuries and health problems did not surface until long after the 90 days period had passed.  Fortunately, on September 16, 2009, Governor Patterson signed what is known as “Jimmy Nolan’s Law.”  Mr. Nolan is a carpenter who spent weeks at Ground Zero assisting in the rescue efforts and has since developed severe allergies and respiratory problems.  This law extends the time for filing a claim for injuries and health problems suffered by Ground Zero workers as a result of their work at the site until September 16, 2010.  At Zucker & Bennett, we have more than 20 years of experience during which we have handled thousands of cases involving personal injuries.   We assure you that we will work hard to make sure that you recover the compensation you deserve for the injuries that you or a loved one have suffered resulting from this brave and heroic work. 

If you or a loved one has been injured as result of work performed at Ground Zero, and have not yet filed a claim, or if you have filed a claim that was previously rejected, please contact one of our attorneys at Zucker & Bennett.

There are special rules and procedures that must be followed when bringing a claim against the City of New York and the New York Health and Hospitals Corporation (NYCHHC). For personal injuries claims, a Notice of Claim must be served within 90 days of the accident that forms the basis of the claim. For medical malpractice claims, a Notice of Claim must be served within 90 days from the date the malpractice was committed or within 90 days from the last date the injured party was treated for the injuries resulting from the malpractice by the facility, hospital, or health care provider acting in behalf of the City of New York or NYCHHC. The court has the discretion to grant permission to file a late Notice of Claim. Such application must be made within a year and 90 days from the accident or from the last date of treatment, however such permission is not always granted.

In determining whether to grant the application to serve a late Notice of Claim, the court must weigh various factors, including the length of delay, whether the City or NYCHHC has been prejudiced in defending the claim by virtue of the delay, and whether there is a justifiable excuse for the delay. Ignorance of the law is not a valid excuse. After the Notice of Claim is served, and before any lawsuit may be commenced, the City and NYCHHC have the right to question the individual bringing the claim under oath and to have that individual examined by a doctor. A lawsuit must be commenced within a year and 90 days from the date of the accident or malpractice or from the last date of treatment for the injuries resulting from the malpractice by the facility, hospital, or health care provider employed by or acting in behalf of the City or NYCHHC. The courts have no discretion to extend the statute of limitations.

Examples of claims against the City include falls caused by a dangerous or defective condition on a public sidewalk where the city owns the abutting building or where the abutting building is a 1, 2, or 3 family home occupied by the homeowner and used only for residential purposes. In addition, a claim may be brought against the City for injuries caused by a defect or a pothole located in the street or in a crosswalk. The injured person must show that the City either created the defective condition or that the City had written notice of the defective condition at least 15 days prior to the date of the accident. Since 1982, the Big Apple & Sidewalk Protection Corporation has filed maps with the City identifying defects located on sidewalks, curbs, and crosswalks.

When making a claim for an injury resulting from treatment at a hospital or medical center owned and operated by the New York City Health and Hospitals Corporation, the same requirements must be met and the same procedures must be followed as when a claim is made against the city. Click the following link for a list of New York City Health and Hospital Corporation facilities- http://www.nyc.gov/html/hhc/html/facilities/directory.shtml.

If you or a loved one has been injured as result of a fall on a public sidewalk or as a result of medical malpractice at a hospital or medical center owned by the City of New York or NYCHHC, please contact our accident or medical malpractice attorneys at Zucker & Bennett, P.C.

Retinopathy of Prematurity (ROP) is a condition that can affect premature babies (babies born before 30 weeks of pregnancy) and can lead to visual impairment or even total and permanent blindness if not treated in a timely and proper manner. ROP is caused when abnormal blood vessels form that can cause detachment of the retina, the light-sensitive tissue that lines the back of the eye. All infants who are born before 30 weeks should be evaluated for ROP shortly after their birth by an ophthalmologist experienced and familiar with the treatment of ROP, such as a pediatric ophthalmologist or retinal specialist.

There are five stages of ROP, with stage 1 being the least severe and stage 5 being the most serious (total retinal detachment). Infants with stage 1 or stage 2 ROP often suffer no serious complications and require no treatment. However, if an infant suffers from a more advanced stage of ROP, timely intervention is crucial. If proper treatment is instituted, there is a very strong possibility that retinal detachment can be avoided and the infant’s vision preserved. ROP may be treated with laser therapy or with cryotherapy. In more advanced stages of ROP, (stages 4 and 5), surgery may be required. The American Academy of Pediatrics, the American Academy of Ophthalmology, and the American Association for Pediatric Ophthalmology and Strabismus offer guidelines for the time within an infant must be treated for ROP in order to minimize the chance of retinal detachment and ultimately visual impairment or blindness. If an infant is treated outside of these standards there is a greater chance of a negative outcome. However, if physicians appropriately and timely address and recognize ROP and its signs, the success rate for preserving vision is high.

Please contact one of our medical malpractice attorneys at Zucker & Bennett if your child or loved one has suffered a visual loss to ROP.

We, at Zucker & Bennett, have had several cases involving anesthesia injuries. General anesthesia, usually given intravenously or inhaled, puts a patient to sleep during certain medical procedures, so that the patient won’t feel pain or remember anything that happens during the surgery or procedure. Anesthesia is generally considered safe but errors may be made which can lead to tragic consequences for the patient. If the error could have been prevented, the physicians involved may be responsible for the patient’s injuries.

One of errors commonly made is the administering of the incorrect dosage of anesthesia. Before any anesthesia is given, it is essential that the anesthesiologist interview the patient to determine the type and amount of anesthesia to be administered. The physician must first obtain information from the patient including the patient’s age, weight, and medical history, in order to determine the appropriate amount of anesthesia to be administered.

The patient may have to be intubated, meaning a tube is placed into the trachea to breathe for the patient and to protect the patient’s airway. Serious injuries may occur if the patient is incorrectly intubated or if the patient is intubated for too long a period of time. Injuries can include damage to throat structures and collapse of a lung.
The patient must be constantly and carefully monitored while under anesthesia in order to make certain that the patient is not experiencing any complications. In particular, it is important to always be aware of the patient’s oxygen levels and vital signs. The patient’s oxygen level is monitored by a machine called a pulse oximeter which will sound an alarm if the oxygen level drops too far below normal.

Many types of injuries can be caused by anesthesia errors, including damage to the trachea, lack of adequate oxygen supply, heart attacks, birth defects, loss of bodily functions, brain damage, spinal injuries, paralysis, coma and even death. Most injuries are preventable if the physician is vigilant and responds appropriately when complications occur. If you or a loved one have suffered an anesthesia injury, please contact us at www.zuckerbennett.com.

Pulmonary embolism is a condition that occurs when a blockage occurs in one or both of the branches of the pulmonary artery that carry blood to the lungs.

Pulmonary embolism is most often caused by Deep Vein Thrombosis (DVT), a condition where a blood clot (thrombus) forms in the deep veins of the legs. The most common cause of DVT is trauma to the hip or leg. In addition, certain medical conditions create an increased risk of DVT, including paralysis, pregnancy, cancer, Irritable Bowel Syndrome, and certain rare blood conditions. DVT may also result from being confined to bed or sitting for a prolonged period of time. A pulmonary embolism occurs when a piece of the clot breaks off and travels (embolizes) to the heart.

A pulmonary embolism may result from failure to timely diagnose and treat DVT. There are many ways in which DVT can be diagnosed, the most common being an ultrasound. DVT”s are treated most often by administering anticoagulants (blood thinners) intravenously in the hospital and continuing orally once the patient is stabilized.

There are many recognizable signs of a pulmonary embolism. These include shortness of breath, sharp chest pain, rapid pulse, profuse sweating, and anxiety. It is important that the symptoms be treated immediately as death may occur within a very short period of time if left untreated. There are three common tests used to diagnose a pulmonary embolism, including pulmonary angiography, a lung perfusion scan (also known as a V/Q scan), and a lung ventilation scan.

The most effective means of preventing pulmonary embolism is by identifying those patients at greatest risk for DVT and providing appropriate prophylactic (preventive) measures to minimize the possibility of forming blood clots. Some common methods of DVT prophylaxis include elastic stockings, sequential compression devices, and subcutaneous (under the skin) low dose heparin. These patients must be closely monitored for signs and symptoms of DVT or pulmonary embolism so that therapeutic treatment can be promptly instituted.

Many of the wrongful death cases that we handle at Zucker and Ballen involve the failure to prescribe appropriate DVT prophylaxis as well as delayed diagnosis and treatment of DVT and pulmonary embolism. Please contact one of our medical malpractice attorneys if a loved one has suffered a wrongful death due to pulmonary embolism.

We at Zucker and Ballen handle many types of cancer cases. Cancer includes any of more than 100 diseases characterized by excessive, uncontrolled growth of abnormal cells that invade and destroy other tissues. Survival rates depend on the type of cancer and the timeliness of diagnosis. Many, but not all, cancers have a high cure rate when diagnosed early and a very low cure rate when diagnosed late. Unfortunately, some cancers have a low cure rate even when detected at the earliest possible time. Examples of cancers that are highly curable when caught and treated early and rarely curable when the diagnosis or proper treatment is delayed are melanoma, colon cancer, bladder cancer, breast cancer, cervical cancer, prostate cancer, lung cancer, kidney cancer, thyroid cancer, and testicular cancer.

Some cancers, such as breast cancer, cervical cancer, and colon cancer, can be detected before the patient experiences any symptoms by performing routine screenings, such as mammograms, pap smears, HPV tests, and colonoscopies. In evaluating cases such as these, we review the medical records to determine if the patient was advised to have appropriate screening tests performed, whether the tests were performed properly, and whether the results of the tests were correctly interpreted. It is important to consider the individual patient when determining when and how often these routine tests must be done. For example, certain patients are at increased risk of developing colon cancer, including patients who suffer from ulcerative colitis or have a family history of colon cancer, or have a history of polyps. Therefore, those patients must have more frequent colonoscopies.

Although the majority of cancers are not tested for routinely, certain symptoms should cause a physician to have a high index of suspicion for the presence of cancer. When a patient presents with non-specific symptoms, doctors are trained to formulate a differential diagnosis by first ruling out any condition that could potentially pose an immediate threat to the patient’s life and then, by process of elimination, identify the etiology (cause) of the patient’s symptoms.

Examples of cases we have handled include misread mammograms and x-rays, failure to biopsy a suspicious lesion for melanoma, failure to thoroughly evaluate the colon and perform a sufficient number of biopsies during a colonoscopy, failure to inspect the bladder and ureters when investigating the cause of hematuria (blood in urine), taking inadequate tissue samples for biopsies to rule out laryngeal cancer, failure to properly read a PAP smear, and causing severe burns due to excessive radiation.

As the old saying goes, “If you repeat something often enough people will assume it must be true.” Americans have repeatedly been told by no less a source than the President of the United States that the courts are flooded with frivolous medical malpractice cases that have driven up the cost of medical care and health insurance. The typical uninformed citizen might be justified in assuming that this must be true. After all, we have heard this message frequently during political campaigns and in each of the president’s State of the Union addresses. However, a January 2007 report by Public Citizen Congress Watch found that the overwhelming majority of medical malpractice cases are not frivolous, that insurance companies continue to reap huge profits, that the number of medical malpractice cases has decreased over the past several years, that the largest payments have been made to those who have suffered the most serious injuries, that most medical errors do not result in lawsuits, and that a small percentage of physicians account for the majority of cases where payments are made. To those of us who represent clients in the field of medical malpractice, this comes as no surprise. At Zucker & Ballen, we consult with appropriate medical specialists before commencing a lawsuit. We provide these specialists with all of the relevant medical records and obtain an opinion as to whether the treatment conformed with accepted standards of care. This allows us to identify the responsible parties before the lawsuit is commenced and, importantly, provides our attorneys with a clear understanding of the relevant medical issues. If you believe that you or a loved one have been injured as a result of medical malpractice, call our attorneys at Zucker & Ballen or go to our website at www.zuckerballen.com.

One of the most common medical malpractice cases at Zucker & Ballen involves injury to the common bile duct during surgical removal of the gallbladder. Since 1990, when laparoscopic cholecystectomy was approved, it has grown in popularity and is currently the most common surgery performed in the United States for removal of the gallbladder. This surgery has obvious advantages over the open surgery where a large incision is made and the abdomen opened. Laparoscopic surgery entails four very small incisions through which instruments and a camera are placed and allows the surgeon to view the gallbladder and surrounding structures on a television monitor which magnifies the image to 12 times its normal size. Surgical clips are then placed on the cystic duct which connects the gallbladder to the common bile duct. One clip is placed at the base of the gallbladder where it connects to the cystic duct and a second clip is placed at the other end of the cystic duct where it connects to the common bile duct. A cut is made between the two clips and the gallbladder is removed through the umbilicus (the belly button). Foremost among the concerns of the surgeon is to avoid mistakenly cutting the common bile duct rather than the cystic duct. It is this surgical error that has been the basis of many malpractice claims that we have successfully handled at Zucker & Ballen. In truth, there is no excuse for this error. Surgeons are taught in their training that if there is any doubt as to whether they have correctly identified the cystic duct, they should cease doing the surgery laparoscopically and convert to an open surgery. The surgeon can only be certain that he has identified the cystic duct if he can clearly see the connection between the end of the duct and the base of the gallbladder. This requires that the surgeon dissect (cut away) the gallbladder from the surrounding tissue. However, because of variations in anatomy (only 25% of patients have the classic anatomy) and because of inflammation that frequently occurs in acute flareups, it may be difficult to clearly visualize this junction. Thus, all surgeons routinely obtain consent from the patient preoperatively to convert to an open procedure in the event there is difficulty identifying the junction between the cystic duct and the gallbladder. In its March 12, 2007 issue, Newsweek reports that 1 in 200 patients undergoing this surgery sustain serious injury due to the surgeon’s error in cutting the common bile duct rather than the cystic duct. Even more alarmingly, many patients sustain further injury due to inadequate repair of the common bile duct after the initial injury occurs. Whereas it was previously common to perform a repair by simply sewing the severed bile duct back together (a primary repair), it has been found that this frequently causes stenosis (narrowing) of the bile duct with a resultant blockage of bile flow to the intestine and a backup of bile into the liver which, in turn, can lead to liver failure and death. Thus, a Roux-en-Y repair is now preferred whereby a new connection is made in order to circumvent the blockage. Many surgeons who are untrained or unskilled in this repair nevertheless attempt to perform the repair themselves rather than call in an appropriately trained specialist. If you or a family member have been injured during laparoscopic gallbladder removal surgery, please call our medical malpractice lawyers at Zucker & Ballen for a free consultation or contact us through our website at www.zuckerballen.com.

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