Articles Posted in Medical Malpractice

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4.) The court evaluator stated that when he met with the person, the person was not able to state why he wanted a guardian or what the guardianship proceedings were about. The court evaluator pointed out that the medical records did not indicate what the cause of his medical problems were. In one report, a medical expert states that he is unsure if the person’s memory problems are due to the depression he suffers from or if they are the result of the brain injury he sustained in the accident. The court evaluator stated that even though the person indicated that he was having difficulty managing his finances, he admitted that he has not had any problems paying his bills. The court evaluator further indicated that there may be a conflict with having R.K. appointed as the guardian since the person is claiming to be a vulnerable person who needs help and his personal injury attorney is the one who introduced him to the potential guardian. The court evaluator further stated that the person should be designated a person in need of a guardian and the guardian should have the limited power of assisting the person with the litigation only.

5. The person’s income and assets at the present time, consist solely of Workers’ Compensation benefits in the amount of $ 1,600 per month.

Upon the testimony adduced at the hearing and the documents submitted as well as the court evaluator’s recommendation, this court finds that the person is a person in need of a guardian of his property for a limited duration. This court will not accept the person’s nomination of R.K. as his guardian due to the apparent conflict involved. The person met R.K. through his personal injury attorney with whom R.K. has a professional relationship. Zealously representing the interests of his proposed ward at a time when his own financial interests might be directly tied in with his associate attorney’s financial interests can amount to competing and conflicting endeavors. Even the appearance of impropriety must be avoided at all costs.

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In an action to recover damages for personal injuries, the complainants appeal from an order of the Supreme Court which, in effect, granted the motion of the defendant husband and wife and a man for summary judgment to dismiss the complaint insofar as asserted against them on the ground that the complainant man did not sustain a serious injury within the meaning of Insurance Law 5102 which provides that serious injury means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system, or a medically determined injury or impairment of a non permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less that ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

The most recent developments in this area of law have focused upon the definitions of permanent loss of use of a body organ, member, function or system and permanent consequential limitation of use of a body organ or member. These provisions have provided the complainants with less of a burden in establishing and qualifying a serious injury under New York’s No-Fault Law.

Where properly raised, the issue of whether a complainant has established a legitimate case of serious injury within the meaning of Insurance Law rests with the Court in the first instance.

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This is a case being heard in the Supreme Court of Kings County. In this case the five petitioners state that they are medical professional corporations that are organized and incorporated in the state of New York under the Business Corporation Law. The petitioners are seeking to show cause through a verified petition to have six grand jury subpoenas issued by the New York State Attorney General quashed.

Case Background

The subpoenas in question in this case were part of an investigation made by the Attorney General into the activities of several medical clinics that specialize in treating claimants from motor vehicle accidents under the No Fault or Personal Injury Protection insurance law under the state of New York.

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Leonard Melfi was a well-known playwright. He gained notoriety when he wrote Oh! Calcutta! and Birdbath. One would think that a playwright who was known for his great Broadway successes would have a mansion and live in the lap of luxury. That was not the case for Leonard Melfi. He died in a room that he had lived in for quite some time at the Narragansett Hotel. The Narragansett Hotel is a welfare hotel that is located in Manhattan. His neighbor and his landlord both had information on his next of kin.

When the ambulance arrived, the Emergency Medical Services Staff obtained this information as well as his date of birth and social security number. His friend and neighbor who knew his brother, was listed on the document as his next of kin. When he got to the emergency room of Mount Sinai Hospital, a staff member prepared a patient information form that had all of the information from the EMS report including the information on the neighbor as well as her phone number. Although, he was still alive at the time that he reached the hospital, and an assessment was performed, it does not show that he received any treatment. His final assessment performed by a doctor at the hospital was that he was suffering from congestive heart failure and atrial fibrillation.

The emergency medical records in this case are very disturbing. They do not reflect that Mr. Melfi received any care in the hospital. The only evidence that the hospital staff did anything for him is a billing statement that lists treatments. There is no evidence that when he stopped breathing and became unresponsive that any life- saving actions were initiated. Mr. Melfi passed that evening. His death certificate listed by the hospital stated his name and age, but did not list his address, social security, or his next of kin information. This is true in spite of the fact that this information was on the report from the ambulance, and on the patient information report. Because of this act of neglect, Mr. Melfi ‘s body was relegated to the Mount Sinai Hospital morgue. Thirty days later the death certificate was filed and a burial permit was issued. His body was taken to the city morgue at Bellevue Hospital on November 28, 2001. There is no notation in the records that show if any effort was made to locate his next of kin.

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The opponent describes itself as a non-profit educational and communications organization dedicated to improving public understanding of the property and casualty insurance business and to providing information about issues of relevance to the insurance business.

The complainants consist of State Public Interest Research Group and three (3) individuals. As alleged in their amended complaint, the Research Group is a not-for-profit membership corporation whose members include approximately 30,000 citizens in communities throughout the State besides the 150,000 student members. The Research Group, in furtherance of its broad concern for the public welfare, among other things, investigates and, as appropriate, addresses problems of common concern before the judicial, legislative and executive branches of our State Government. In particular, the Research Group conducts research and makes recommendations concerning the interests of the public and of the members of the Group in insurance-related issues and in the proposed changes in the civil justice system advocated by the insurance industry.

In their complaint, the complainants plead three (3) causes of action relating to multimedia advertising campaign, which refers to as the Lawsuit Crisis. The magazine and newspaper ads, and the television spots all assert that the quality of every American’s life is threatened by the existence of a Lawsuit Crisis; that is, that huge numbers of people are suing doctors, pharmaceutical companies, municipalities, etc., for personal injuriesdue to medical malpractice, negligence, etc., that the personal injury complainants are receiving huge jury awards, that, because of the awards, which are paid, in the final analysis by insurance companies, the insurance companies must raise their premiums for liability insurance, or deny coverage. The crisis, in turn, according to the ads, causes, among other things, obstetricians to cease delivering babies, pharmaceutical companies to discontinue manufacturing life-saving drugs (e.g., polio vaccine), and municipalities to close down playgrounds, firehouses, afterschool programs, etc.

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