New York Personal Injury Poised To Evolve In Face Of Coronavirus Pandemic

We’ve already considered the possibility that states will witness of flood of new coronavirus-related personal injury cases over the coming months and years — and now we’re seeing those projections come to pass as more local and state authorities decide to open up for business again. The pros and cons aside, coronavirus lawsuits are reality. How we adapt to these lawsuits will say a lot about how the law works.

Remember when scientists discovered a link between asbestos and certain illnesses? The lawsuits were both expected and immediate, but governments had to decide how to handle them. How do you balance a business’s rights with an individual’s rights? 

The response was simple for many authorities around the country: create Workers Comp-like pools of cash for affected plaintiffs to pull from if they decide to mount a case against a new asbestos defendant. And that’s what happened. You can still sue for asbestos-related illnesses that result from an organization’s negligence, but there are many different ways of being compensated.

Coronavirus will most likely work in similar fashion.

There will have been employers who took the necessary precautions to keep employees safe throughout the pandemic — PPE, new safety procedures, social distances at work, working from home when possible, etc. — and then there will have been employers who dismissed the pandemic as leftist nonsense. Obviously, there will have to be some pragmatic way of compensation from the latter.

Republicans have already made the first move. Mitch McConnell, the Senate Minority Leader, wants to draft legislation to avoid a sea of lawsuits — the one we’re already experiencing with day-to-day phone calls here in the office. Democrats, on the other hand, want to hold businesses accountable for their mistakes. And isn’t that fair for the people who were hurt by coronavirus but didn’t have to be?

Remember: personal injury lawyers work on contingency and don’t get paid unless the plaintiffs win. That means frivolous lawsuits are at a minimum. Coincidentally, that means Republican arguments are frivolous.

Can I Sue A Healthcare Provider For A Coronavirus-Related Wrongful Death?

The worldwide spread of the novel coronavirus has shown many of us the worst — and the best — qualities of our peers. While many of us have seen monumental and irresponsible indifference from groups of people still acting as if nothing was going on, others have taken note of the simple acts of kindness between individuals who know the worst is yet to come. Some of the “worst” will be most prevalent in our hospitals.

The nurses and doctors fighting on the frontlines of this outbreak are the most at risk population by far. They are the most likely to become infected even after all the protective measures they take on a daily basis. 

And that’s why a judge is very unlikely to want to hear your personal injury, medical malpractice, or wrongful death lawsuit.

To put it bluntly, they will have bigger fish to fry after all is said and done. And that’s assuming you even get your case in front of a judge. First, you’ll need to find a personal injury attorney willing to take on your case. For that to happen, it needs to have merit. Frivolous lawsuits have no place in courtrooms when thousands of people might soon be dying in our tight-knit communities.

How might you successfully build a wrongful death lawsuit? The easiest scenario in which you might have a good case might occur when a loved one is placed into quarantine following an assumed infection, but only becomes infected because of a continued presence at the hospital. Being placed in isolation for no reason is no joke, and healthcare providers should take every precaution to avoid bumbling standard operating procedures or laboratory results.

Our hospitals will soon run low on supplies. It might be possible to build a lawsuit against a third party if your loved one passed away because those supplies were missing. For example, our president could have guaranteed our healthcare providers had enough coronavirus testing kits for patients who show symptoms of the virus, but he failed to make that move. The government will almost certainly be sued for this outbreak at some point.

But the best option for you and your loved ones is simply to avoid becoming infected at all. That means washing your hands at every opportunity, taking a hot shower after every trip outdoors, and self-quarantining as soon as you show symptoms.

Social distancing now means more lives saved from this dangerous virus down the road. Don’t take it lightly! We’re all responsible for reducing the impacts of this mess.

Trump Placed Travel Restrictions On New Yorkers — Are They Legal?

President Donald Trump has an ongoing feud with New York City. The biggest sign of the feud was when he changed his primary residence from NYC to Florida! Although that might just be because he really needs to win Florida to win another term in 2020, and there’s no chance in the realm of men that he can win New York. Recently, though, Trump called for travel restrictions to be placed on New Yorkers because of the city’s status as a “sanctuary city” for immigrants.

New York State Attorney General Letitia James was quick to file a lawsuit in response to the perhaps unconstitutional travel restrictions. 

The restriction was put into place by the Department of Homeland Security, which announced that residents would not be allowed to enroll (or renew enrollment) in the Global Entry program that speeds up waiting time in customs lines during international travel. The proposed reason for the restriction? A New York law provides a path for undocumented immigrants to get a drivers license. It also says that DMV can’t share that information with authorities who, say, might target undocumented immigrants for deportation.

James said, “No one should ever use our national security as a political weapon, let alone the commander in chief.”

“The president’s crusade against New York is not only an inconvenience to New Yorkers,” she continued, “but also poses a direct threat to one of the nation’s largest economies. We will not allow the president of the United States to single out New Yorkers, to discriminate against New Yorkers, to target New Yorkers and to coerce us.”

The federally mandated Intelligence Reform and Terrorism Prevention Act of 2004 forced certain jurisdictions to create registered traveler programs, one of which is the Global Entry program. By removing the ability of New York residents to enroll in the mandated program, Trump may be violating federal law, the lawsuit alleges.

The suit reads, “Singling out one state for coercion and retribution as a means to compel conformity with preferred federal policies is unconstitutional. Defendants’ ban on New Yorkers’ participation in the Trusted Traveler programs not only violates the law, but also injures New York by undermining public safety and causing extensive economic harm.”

The lawsuit is not inaccurate in its portrayal of the administration’s decision to single out New York. At least 13 states allow undocumented immigrants to apply for and receive drivers licenses. So does Washington D.C.

James said, “It has nothing to do with safety. It’s nothing more than political retribution.”

Tulsi Gabbard Sues Hillary Clinton In New York-Based Defamation Lawsuit

Talk about hitting her where it hurts! Tulsi Gabbard recently launched a $50 million defamation lawsuit against Hillary Clinton. And the best part? It’s based out of New York, where Clinton once held a Senate seat. The lawsuit alleges that Clinton smeared Gabbard as a Russian “asset,” which hurt her chances of becoming president.

Gabbard was recently asked about her feelings on Clinton’s statements. She said, “I’m a patriot, I love our country.”

She mentioned her service in Congress and Army National Guard as proof of her patriotism.

“I will not stand quietly by as Hillary Clinton or anyone else tries to smear my character and my loyalty and dedication to serving our country,” she said. “I’ve filed a lawsuit against her for that defamation. I hold her accountable.”

Good luck to Gabbard, though. The lawsuit seems mostly superficial. The term “asset” doesn’t necessarily imply that Gabbard was knowingly benefiting Russian interests. That’s what will destroy her case in court. She’ll have a tough time proving that Clinton meant she was actively working for the Russians (since it’s absurd). On top of that, defamation cases are already difficult to win because you have to prove how they hurt you. 

Plus, Clinton never mentioned Gabbard by name. 

In an October 2019 interview with David Plouffe of popular podcast Campaign HQ, Clinton suggested off-hand that a particular candidate was “the favorite of the Russians.” When asked if she specifically meant Gabbard, Clinton said, “If the nesting doll fits.” All Clinton has to do is tell the judge that, in fact, she was referring to no one in particular.

Either way, the lawsuit brief says: “Rather than facts or reliable evidence, Clinton’s basis for the Defamatory Statements was one or both of: (a) her own imagination; or (b) extremely dubious conspiracy theories that any reasonable person (and especially Clinton, a former United States Senator and Secretary of State) would know to be fanciful, wholly unverified, and inherently and objectively unreliable.”

The lawsuit draws somewhat questionable claims about the point of Clinton’s statements — claims that might be based in less fact than the statements themselves. According to Gabbard, “Clinton was extremely angry — to put it mildly — that Tulsi endorsed Senator Sanders over her.”

Gabbard said that someone told her “the Clinton team would never forget this slight.”

If true, then apparently Clinton didn’t forget after all.

“These agents then forwarded this correspondence to Huma Abedin (Clinton’s closest aide) and John Podesta (chairman of Clinton’s 2016 presidential campaign) to gloat about the beatdown they felt they delivered on Tulsi, writing ‘Hammer dropped!’” 

Department of Defense Could Soon Pay Medical Malpractice Claims For Service Members

When you have a medical concern while serving in the United States armed forces, you’re pretty much out of luck — regardless of whether or not your injuries were sustained on the operating table due to the negligent behavior of a mad scientist or bad doctor. That’s because those injuries are simply a part of volunteer military service. They’re a risk you opted to take when you signed up. At least that’s how the military has traditionally viewed such circumstances.

That might not be the case for much longer.

It’s because of the Feres Doctrine that members of the military cannot sue for medical malpractice. But the relevant clauses have begun to raise eyebrows. Special Forces Sergeant First Class Richard Stayskal began to experience problems breathing in early 2017 while he was serving near Fort Bragg. He checked himself into the hospital there, but was basically told to get some rest.

He continued to complain over the next few months. By May, he was rushed to the hospital when he stopped breathing. Doctors found evidence of cancer, but sent Stayskal home after diagnosing him with a case of pneumonia. It was at least another month before he was finally correctly diagnosed. Now, he has stage 4 lung cancer that has spread to other parts of his body.

Although technically not allowed, he opted to open a case against the U.S. government for the gross negligence of the doctors at Fort Bragg. It landed on the desk of Representative Jackie Speier (D-CA), who chairs the House Armed Services subcommittee on personnel. She quickly decided to sponsor a new medical malpractice bill for service members on behalf of Stayskal. 

And it looks like the pair succeeded. A new clause of the National Defense Authorization Act of 2020 will allow the Secretary of Defense to approve “redress” claims for victims of malpractice. Those claims would not be inflated to include attorney’s fees. Lawyers would also be limited to a maximum of 20 percent of the payout. The bill approves $738 billion in military spending during the 2020 fiscal year and provides increases for military pay.

Speier doesn’t believe the SecDef should have this authority — instead, she thinks it should belong to someone else’s purview — but she knows it’s a necessary first step. “It was important that we seize this unique political moment,” she said.

She says it was thanks to Stayskal that they were able to make progress at all. He “forged a bipartisan coalition to achieve this legislative breakthrough through his countless visits to [Congress] and heroic advocacy,” she said.

Are Medical Malpractice Statutes of Limitations Unconstitutional?

A statute of limitation — sometimes called a statute of repose — is a limit placed on civil litigation. These limits restrict how long a plaintiff has to bring a valid case against a defendant. States have varying statutes of limitations, but many cap the restriction at only one or two years after the negligence occurs, or in some cases, only one or two years after the victim discovers the negligence occurred.

Other states have stricter limitations still; Pennsylvania, for example, had a statute of repose that capped all medical malpractice lawsuits at seven years regardless of whether or not a victim knows that it occurred. 

Many states are now asking whether or not these laws serve a public interest at all. Much of the reasoning behind them rests in trying to reduce the amount of increasing healthcare costs or ballooning premiums. It turns out there is little research to back these ideas.

The Pennsylvania Supreme Court recently decided as much when, in a 4-3 ruling, it nixed the state’s seven-year statute of repose. The justices who struck it down explained that not only do these limitations have little to no effect on skyrocketing costs, but they also don’t do anything to protect the victims or the overall public good.

One of the three dissenting justices wrote that “it is not this court’s role to upend duly enacted legislation simply because we might sometimes deem it imperfect or unwise.”

That isn’t exactly true; America’s founding fathers created the three branches of government to check and balance each other. It is the court’s role to determine if and when the legislative branch has overstepped constitutional authority, and to strike down laws deemed to do so.

The case the Pennsylvania Supreme Court heard in regard to the seven-year law involved a mother and son who were both victims to the same genetic liver disease. Even though the blood tests confirmed they both had the disease, the doctors allowed the son to donate a lobe of his liver to the mother — all without telling either one of them about the blood tests.

The mother discovered she still had the genetic liver disease that should have disappeared after the transplant — but it had already been eleven years, which restricted legal recourse because of the seven-year rule.

Their lawyer, Patrick Cavanaugh, said, “The family felt aggrieved that their case was barred because of the arbitrary seven-year limitation, and they’re glad to be able to assert their rights in court.”

He continued, “The family assumed that if the liver transplant went forward, the doctors would use a healthy liver. It was a safe assumption by the family that Christopher didn’t have AATD, but in fact he did. There’s no way the plaintiffs could have found all that out within seven years.”

Does New York Legislation Now Ban A First Amendment Right To Discriminate By Calling Someone An Illegal Alien?

Recently a lot of right-wing websites (and others) have opened up a can of worms by describing New York’s new anti-discrimination laws as a blatant violation of first amendment rights. The law itself defines the discrimination policy as geared toward those who would call someone an “illegal alien” in order to “demean, humiliate or harass a person.” But guess what: harassment is already illegal, so you don’t have to worry about your first amendment rights being violated!

Especially since the new law isn’t about personal rights in the first place.

The new law now defines discimination “on the basis of perceived or actual immigration status and national origin under the New York City Human Right Law in public accommodations, employment and housing.” 

Although the law can certainly be interpreted to mean that individuals will be fined upwards of $250,000 for each time they’re heard calling someone an “illegal,” the point of the law is to prevent discrimination, plain and simple — especially in the workplace.

Here are a few things you can’t do (and never could): you cannot harass someone because they have a different accent. You cannot refuse service if you suspect someone is foreign born. You cannot threaten to call ICE. You cannot pay someone a lower wage (or withhold an already earned wage) from someone based on immigration status. You cannot harass someone in a store you frequent by demanding they speak a language other than the one they were speaking.

Again, all of these actions amounted to illegal activity before the law was passed. The reasoning for the new law is clear enough — people like to harass people they think are foreign born, and they’re not taking the hint that they cannot do that legally. Maybe now they will. You cannot harass people. You cannot discriminate someone based on ethnic origin. It’s been a long time since you legally could. Time to get over it.

It’s also worth noting that this is a “New York City Human Rights Law.” Of NYC’s 12 million people, 3 million were born outside the United States. And it protects everyone from wanton discimination, not just people who weren’t born here. 

Carmelyn P. Malalis, a commision for the law, said, “The New York City Human Rights Law is one of the most protective in the nation…In the face of increasingly hostile national rhetoric, we will do everything in our power to make sure our treasured immigrant communities are able to live with dignity and respect, free of harassment and bias.”

Can A Plaintiff’s Medical Malpractice Lawsuit Get Dismissed If She Dies?

One would think a medical malpractice lawsuit could — and would — evolve into a wrongful death lawsuit if the plaintiff were to pass away during proceedings, but that’s not what happened when Katrina Dennis sued the University of Maryland St. Joseph Medical Center. She accused the hospital and one of its doctors of medical malpractice for failing to prevent a recurrence of her breast cancer, but when she passed away the presiding judge dismissed her case.

That’s a tough pill to swallow for some, especially since Dennis was such an important member of the Baltimore community. Maryland Governor Larry Hogan described her relationship with the community in a tweet after she died: “Katrina was a top lawyer, a respected leader in the Baltimore region, and someone who lived each day committed to giving back to her community.”

The case’s dismissal has left some people asking how and why something like this could be allowed to happen. Was the case found frivolous by the presiding judge or the plaintiff’s own attorneys, or was it dismissed for yet another reason? In order for the case to have continued in court, it would have required the go ahead from Dennis’ attorneys. More likely a close family member could have picked up where Dennis left off, but decided against going to the trouble or prolonging a period of grief.

Dennis was a member of the Education Policy and Student Life Committee, the Organization and Compensation Committee, chair of the Coppin State University Presidential Search Committee, and a member on the Board of Regents.

She was suing the University of Maryland St. Joseph Medical Center for a massive $24 million in damages after accusing the hospital and one of its doctors of not providing an appropriate standard of care. According to Dennis, the doctor led her into the false assumption that breast cancer could not recur once it was cured. She was first diagnosed in 2015, and hoped that would be it.

But then she underwent surgery to remove the cancerous tumor only to be diagnosed again in 2017. Breast cancer cells had multiplied to spread throughout her bones, blood, and organs. The case also details that Dennis believed she should have been placed on a drug called Tamoxifen to reduce the chances the cancer cells would continue to spread. It didn’t happen.

Dennis died in the middle of the two-week trial in the Baltimore County Circuit Court.

California Leads The Way To Suing Trump For Human Rights Violations — Again

In news that will surprise absolutely no one, California and Massachusetts are sponsoring a legal challenge to Trump’s attempted amendment of a law that limits the amount of time that asylum-seeking migrants — and children especially — can be detained by authorities. Nineteen states have added themselves to the lawsuit. This brings the total number of California-represented legal challenges brought forward to the Trump Administration to a whopping 57.

Trump has a lot of support for making the change because his administration and several conservative media outlets have successfully spread the rumor that these asylum-seeking migrants have entered the United States illegally.

That isn’t the case.

In order to legally make a case for asylum in the U.S., migrants must first step foot in the country. They can apply if they are already living here (whether undocumented or not), but otherwise they must first cross into the country through a point of entry — such as El Paso.

And that’s exactly what the majority of the migrant population at the U.S.-Mexico border has done. Not only have they legally entered the country, but they’ve proceeded to legally apply for asylum here. And the Trump Administration has detained them for growing lengths of time, even though there are laws limiting how long the migrants can be kept in custody.

This should be easy for anyone to understand, conservative or not: the Trump Administration is flagrantly breaking the law; the asylum-seeking migrants are not. It’s very simple.

In addition, by law we are required to provide the migrants with basic necessities — because even our “prisoners” have rights. These include food, water, clothing, shelter and medical care when necessary. Those who have visited what have been correctly labeled concentration camps have pointed out that not only are our authorities falling short on nearly all of these basic necessities, but people have also died while in custody — and for no good reason.

The Trump Administration is actively trying to change the law so it can be said that the law was followed (retrospectively). Trump wants to hold these migrants “indefinitely,” i.e. as long as he wants. Trump wants to force migrants from non-border countries to apply for asylum in other countries along the way to stop them from getting to the United States. 

According to Attorney General Xavier Becerra, “No child deserves to be left in conditions inappropriate and harmful for their age. The actions by this administration are not just morally reprehensible, they’re illegal. Children don’t become subhuman just because they’re migrants.”

Three Diseases Account for The Majority of Harmful Diagnostic Errors

Misdiagnosis is something that is a source of fear for most health-care professionals. No doctor wants to make a mistake, and misdiagnosis of certain medical conditions can be catastrophic for the patient, and lead to medical malpractice issues for the doctor.

According to new research, misdiagnosis related harm is most commonly associated with three specific areas: vascular events, cancer, and infections.

David E. Newman-Toker MD, Ph.D., who serves as a professor of neurology at Johns Hopkins University in Baltimore, Maryland, was one of the leads of the study, which was published in the Diagnosis journal.

According to the study, diagnostic errors in the ‘big three’ of cancers, vascular events, and infections account for around 75% of the serious harms that come from diagnostic errors. There are other medical errors which can cause serious harm, however, diagnostic errors account for just over one-third of all ‘serious harm’. Of the diagnostic errors which cause serious harm, 64% lead to either permanent disability or death. Diagnostic errors account for 28% of total payouts relating to medical malpractice claims, with the median payout being $766,000 for a claim relating to a highly severe case.

Not all diagnostic errors which lead to serious harm result in a malpractice claim. In fact, it is thought that malpractice claims account for just 1.5 percent of all medically negligent events, but overall the cost to society resulting from harmful diagnostic errors is in excess of $100 billion per year, according to a group of attorneys who help settle claims for victims.

Now that the researchers have some clear data on the long term impact of seriously harmful diagnostic errors, their next goal is to find ways to fix the problem. Newman-Toker believes that he has some ideas that can help to improve patient safety and diagnosis and advises doctors to stay focused on what the patient is saying in a diagnostic setting. The information provided by the patient is key to diagnostics, and it is important that doctors feel confident in their ability to do the best they can for their patients in a time-pressured setting.

The Council of Medical Specialty Societies noted that it is important to acknowledge that the issue is very complex and to avoid blaming clinicians for any errors. This is a complex process, and physicians need to be equipped with the resources that will allow them to make clear and correct diagnoses on a consistent basis. Helen Burstin, the societies executive VP, advised physicians to call specialists when they are unsure, to provide the best possible care for their patients.