You have a lot of choices. “Who’s the best?” “Who has the most experience?” “Who can get you the most money for your case?” “How do I know I can trust him?” “What does it cost to hire an experienced trial attorney?”

These are all valid questions and I’m going to answer each one here:

“Who’s the best?”

In New York, there is no specific answer for that question. There are a lot of good attorneys. However, lawyers in NY are not permitted to say “Come to me because I’m the best…” The best at what? With what type of case? Under what circumstances? What set of facts? Which court? As of when? There are too many variables and it really becomes impossible for anyone to say “I’m the best.” Anyway, if a lawyer says that, they’d probably get in trouble with the ethics committee that governs what attorneys can say. Yes, it’s true; there is an ethics committee that controls what New York lawyers can say in their marketing messages.

“Who has the most experience?”

That’s easy to find out; just ask. “How long have you been handling and trying medical malpractice cases here in New York?” Warning: Just because a lawyer has been in practice longer than someone else, does not necessarily mean they are automatically “better” than a lawyer who has been in practice for less time.

“Who can get you the most money for your case?”

The answer to that question is impossible to answer. I know of lawyers in a trial law firm in New York City who privately comment on large jury awards and settlements and quietly boast that they could have gotten more money on a particular case. Could they have done so? Who knows? Is there any way to really know? No. Is there any way for a consumer to get an educated and intelligent answer to that question? No. Why not?

Each case is different. Each case has its’ own peculiar ups and downs. Each case is located in a different court before a different judge. Each defense attorney and their insurance company has their own peculiar standards. If an attorney tells you that they can get you “X” dollars for your case, or that they can get you more money than any other attorney, ask them to put that in writing. It will never happen, because no lawyer, no matter how good or experienced, can ever guarantee a result.

“Trust”

This is clearly the hardest thing to judge. You’ll make a judgment about the lawyer when you walk into their office. From their furnishings to the attorney, you are constantly thinking about how this lawyer can help solve your problem. There is no central lawyer directory where you can check to see which lawyers are trustworthy. Satisfied clients are just one way to judge the quality of a law firm and the lawyers that work there. However, you will probably not get very far to ask for a list of unhappy or disgruntled clients. You can always check with the grievance committee to see if there were any disciplinary actions against that attorney. However, that only proves a negative. If the lawyer has never had a complaint or been disciplined it only means that there’s never been a problem. It does not mean that the lawyer is worthy of your trust.

The best way to answer that question is to talk to the lawyer yourself; meet with the lawyer and judge for yourself. Obviously, you can’t always accurately tell that by talking and meeting with an attorney. However, it will give you a much better sense of who you’re dealing with compared to you never having met the attorney.

“What does it cost to hire an experienced New York trial lawyer?”

Nothing; at least not upfront.

“What does that mean?” It means that you can hire an experienced attorney without having to pay a dime out of your pocket when you begin. If you have a valid case and you start a lawsuit, the attorney and his law firm will pay all the expenses to prosecute your case till the end. Only if you are successful, and you receive money as a result of your lawsuit, will your attorney receive a percentage of what you win. This is commonly known as a contingency fee. The lawyer’s fee is contingent on you getting compensated. If you are not successful in your case, your lawyer gets no money and has spent a considerable amount of money to prosecute your case, without ever getting repaid. That is why most experienced attorneys will be very selective about which cases they accept. An attorney will usually only take a case if he reasonably believes you have a valid case (and must confirm that with an expert physician). Otherwise, he will never recoup the money he has paid to prosecute your case, or receive any attorney’s fee for the hundreds and thousands of hours of time he will put in to prosecute your case to a conclusion.

By becoming an educated consumer about who to choose as your attorney and learning about how cases like yours work, you’ll be able to make an intelligent decision about which lawyer is right for you.

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It’s Memorial Day today and I’m sitting at our pool looking around at the new group of lifeguards who watch the pool. The weather is great today and the pool is busier than usual because of the wonderful weather. The kids are off from school and their friends are all in the pool having fun.

How many times have you seen parents view the pool as a chance to socialize and not pay attention to their kids in the pool? I see it constantly. Just look around at how many young children are in the pool. Look to see if you can match up those parents in the shallow end with each child in the pool. Invariably, there will be parents sitting on a lounge chair reading or chatting away, thinking that the lifeguards will be there to watch their kids for them if the worst should happen.

Let’s take a look at the lifeguards. These are typically young kids, some no more than teenagers. Depending on where you live, Brooklyn, Bronx, Queens, New York City, or Staten Island, lifeguards are required to take certain lifeguarding classes with a specified amount of time required for lifesaving. If they pass the final test, then they are qualified to lifeguard anywhere in the five boroughs of New York for a period of three years. Interestingly, in Nassau County, a lifeguard who takes the lifeguarding class must then take an additional and more rigorous lifeguarding exam to become qualified to be certified as a lifeguard in Nassau County. In addition, if you want to lifeguard at a Nassau County beach, I understand that the requirements for becoming a lifeguard are even more rigorous than for a pool.

Regardless of the qualifications and credentials of each lifeguard at your pool, it is still my opinion, that you, the parent, have an obligation to watch your own child at the pool. Why do I say this? Because the lifeguards get distracted during the day. Especially when it gets busy. I have seen many instances where the lifeguard was looking elsewhere and a child was in distress and having difficulty swimming. By the time the lifeguard recognized the problem, a parent jumped in to save the child.

Now, don’t get me wrong- I think lifeguards do a great job. In fact, my eldest son is going to be a lifeguard this summer. However, as a parent, you can never entrust the safety of your child to someone who has a responsibility to oversee and protect many people in a pool. I believe that you must be ever-vigilant at poolside. Put aside your desire to socially interact, or do so while keeping a direct and close view of your child. Doing so, in my opinion, will minimize the risk of something bad happening while your child is swimming. Remember, lifeguards are not babysitters for your child in the pool. They react to people in distress. They do not take a pro-active role. It is the parent’s job to be pro-active in watching their child.

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The answer is no, he will not lose his license. Many prospective clients come into my office with the feeling that their doctor has offended them. Many want “justice.” Many tell me they’re not interested in the money, rather, they just want the doctor’s license revoked and want to make sure he does not do the same thing to another patient.

The purpose of the civil justice system is to provide an outlet for an injured victim to seek and obtain compensation for their injuries. It is not a criminal proceeding seeking to put a medical professional in jail. Nor is a civil lawsuit the appropriate forum to have a doctor’s license suspended or revoked. For the purposes of this article I will assume that any injuries that a doctor or hospital have caused were unintentional and accidental. Why do I say this? Because if the doctor’s action is intentional, two things happen. (1) It could then be a criminal case- a type of battery (a criminal law term used to describe an unwanted touching), and (2) Intentional acts are never covered by a doctor’s medical malpractice insurance policy.

Getting back to the original question- when you bring a lawsuit in civil court, you ask them to determine if the doctor is responsible for causing you harm, and whether that harm is significant and permanent. If a jury answers all three elements “Yes,” “Yes,” and “Yes,” then they will determine how much money you are entitled to be awarded. At no time will a jury be asked whether the doctor should retain his license to practice medicine. In fact, the jury has no ability to make such a decision.

The only time a doctor will lose his or her license is when their actions rise to such a significant level of malpractice (possibly from intentional acts, and possibly from repeated acts of malpractice) that the general public is at significant risk of harm by allowing this doctor to continue practicing medicine.

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Bunions and hammertoes are two common problems people have with their feet. Oh yes, corns too. Many people try to live with these annoyances by wearing modified shoes, wearing shoes of different sizes, or simply bearing with the discomfort of disfigured and mis-shapen toes.

Many foot doctors, known as podiatrists, are more than happy to recommend surgical procedures to get rid of bunions, hammertoes and corns. Some podiatrists fail to inform the patient of significant risks associated with these seemingly “routine” and “simple” procedures. Patients get lulled into a false sense of simplicity and assume that it’s a ‘quick’ procedure and they’ll be up on their feet in days.

That’s not always the case where bone is removed from one’s toes. In some cases the remaining ends of bone must be connected together with wires, usually known as ‘k-wires’. If those wires are removed prematurely, the bones may become unstable and heal in an unnatural and awkward position, leaving you with a permanent deformity. In other cases, a doctor may take too much bone off, leaving you with an overly-shortened toe which sticks up in the air.

Why are podiatric mishaps so significant?

Here’s a good analogy:

When you build a house, you first need a good foundation. You can then build layer upon layer on top of that foundation without fear the house will collapse. When dealing with feet, if you damage your ability to walk or stand, your entire skeleton and muscles will now shift to accomodate your changed in gait (the way you walk) and your legs will begin to hurt as well as your back. Your ‘foundation’ will be affected, placing undue stress on other areas of your musculo-skeletal system.

What’s the alternative to having surgery to correct those bunions, hammertoes and corns?

The first line of defense is called ‘conservative treatment’. This includes modifying your shoe gear. It also includes using orthotics, also known as shoe inserts. Those shoe inserts can be bought from your pharmacy, over the counter, or can be custom made. In any event, they’re certainly worthwhile as an attempt to reduce the pressure placed on your foot. In the event the orthotics do not work, podiatrists may sometimes try giving you anti-inflammatory medication or a course of steroid injections to reduce inflammation and associated pain.

If after those ‘conservative treatments’ you still have problems, you will probably be asked to consider having surgery to correct your bunion, hammertoe or corn. Before you agree to have surgery, make sure to ask your foot doctor about the risks and benefits to the procedure. Ask how long you’ll be off your feet (this is known as being non-weight bearing). How long will you be on crutches? Importantly, get references of other patients who have had this procedure with this doctor. Learn as much as you can about the doctor and the type of procedure that’s being recommended. Only by being fully informed can you make an intelligent decision about what procedure is right for you.

You may also want to get a second opinion, just to make sure this is the correct procedure for you.

I hope these tips make you informed about your choices.

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Here is an example of a case I handled recently-

A man had been mugged and suffered a fracture of the bone surrounding his eye. One of the muscles that controls movement of the eye got slightly stuck in the fractured bone. The result was that he couldn’t move his eye past a certain point. Since he could only move his eye up to a certain point, he had some double vision. However, if he closed one eye, he had perfect vision in the eye that had limited movement.

The man went to an eye doctor that was affiliated with his primary care doctor. The eye doctor evaluated the man and assured him that the procedure was ‘routine’ and there was nothing to worry about. “The doctor had done this type of surgery many times before,” he was told. The plan was to remove the muscle from the bone fragment, and then fix the bone. “You should have no problem with your vision after the surgery,” remarked the eye doctor.

The patient had the surgery as scheduled. He never sought a second opinion as he was assured this eye doctor was capable to do the procedure. He never was referred out to a specialized eye surgeon who only does this type of surgery. The reason, I later learned, was that the medical group did not want to give up the patient to an ‘outside’ physician, since they would lose money if he had surgery elsewhere.

Surgery went well, or so the patient thought. A patch covered his eye and he was told to return the next day. The next day he returned to the doctor’s office, had the patch removed and was asked “Well, what do you see?” The patient replied “I don’t see anything. Did you take the patch off?”

Frantically, the eye doctor quickly examined the patient and found that there was a big problem- the optic nerve appeared dead. She immediately scheduled the patient for repeat surgery later that day. The patient underwent surgery later that afternoon in an attempt to get his vision back. During the second surgery, I learned during the course of the patient’s lawsuit, that the doctor first checked the muscle. That was fine. The doctor checked the MRI that was taken immediately before the second surgery. The MRI revealed that the optic nerve was cut, through and through. It was severed in half. That’s why the patient lost his vision.

Despite the MRI finding, the eye doctor confirmed this unfortunate fact during the second surgery. There was nothing that could be done to fix the severed optic nerve. The patient would never regain sight in his eye.

During the patient’s lawsuit I learned that this eye doctor had done only a handful of these procedures. Most of these procedures were done by specialized eye doctors who perform this surgery on a regular basis. During the case the eye doctor’s attorney tried to get the doctor dismissed from the case, claiming that this doctor did everything possible to help the patient. Yes, everything possible was being done- after this doctor had negligently and carelessly cut the optic nerve. The two key issues in the case were (1) That the doctor didn’t have enough experience to do this surgery, and (2) The doctor cut the nerve that controls eyesight and never recognized that the optic nerve was severed. Because of significant issues that were present in the case, the doctor’s attempt to get out of the case failed. I was able to obtain full and appropriate compensation for this man’s vision loss shortly before the case went to trial.

Unfortunately for the patient, despite obtaining significant compensation, he will live his life with vision in only one eye. Every expert who reviewed this case confirmed that this medical error was totally preventable.

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You have waited for years for your medical malpractice case to come to trial. The day has finally arrived and you are nervous. You have some idea what to expect based upon your preparation by your attorney. You have never been in the courthouse before but have seen plenty of TV shows and movies about lawyers and lawsuits. You have a good idea in your mind about what to expect.

Here are some secrets that most lawyers don’t tell you when your case goes to trial:

(1) In New York, you must go through a security screening in order to get into the courthouse building. We live in a post-9/11 world where all litigants and witnesses must be subjected to going through the magnetometer and having their pockets and bags searched. Lawyers and court personnel have special court IDs that allow us to bypass the security ritual that all other people coming in to the building must go through. What most attorneys forget to tell their clients is that in the morning when everybody has to be in court at 9:30 a.m., there is a huge line rushing to get into the courthouse. That means that you, as the litigant, must arrive 15 to 20 minutes early just to get through the line to get into the door. This little tip will save you tremendous amounts of aggravation.

(2) Did anyone tell you that the people you have sued will likely be in the courtroom with you each and every day? You might have expected that. In all likelihood the people you sued will be present in court each day. Here is where it gets awkward. Every time the court takes a break there is an opportunity to go to the bathroom. Unfortunately, there is only one exit. That means that you will encounter these people each and every day and will have to walk by going to and from the courtroom on the way to the restroom.

Is it awkward? Yes. Is it uncomfortable? Yes. What happens if you are in the bathroom at the same time as the person you have sued? In all likelihood, you will ignore each other, but keep in mind that it will be awkward and uncomfortable.

(3) What is a sidebar conference?

During the trial you may have noticed that one of the attorneys asked to speak to the judge privately outside of earshot of the jury. Why do they do this? This is commonly known as a sidebar conference where issues of law are discussed. The reason it’s done outside the hearing of the jury is because issues of law are dealt with only by the judge. The jury has no need or reason to listen to legal arguments made to the court about why something should or should not be done or why certain evidence should or should not be allowed in.

(4) Why is the judge yelling at your attorney?

Out of the blue you notice that the judge is yelling and screaming at your lawyer but you don’t understand why. The next day, you notice that the judge is yelling at your opponent’s lawyer, also for no good reason. Why is this happening and what does it mean for your case?

Judges are humans too. They get tired and cranky and like to control their courtroom and the speed at which the trial progresses. There are some judges who have an ill temperament. However, most judges are able to rein in their personal feelings and not disclose any frustration they may be experiencing from the slow pace of trial. The judge will usually tell the jury at the beginning of the case that they are impartial and the jury is not to consider any comments made by them during trial as being in favor or against any one party.

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A woman, working as a health aide, was accompanying her ‘patient’ to the doctor’s office. She was in a van that was transporting her and her patient for a routine office visit. On the way, the van was involved in a car accident. The woman hit her head during the accident and both she, and the patient were taken to the emergency room by ambulance. Ironically, the accident happened in front of the hospital they were taken to.

Because of her head injury, the woman had an MRI of her head. She also had x-rays and blood work done while she was in the emergency room. The x-rays were normal, as was the blood work. She was also told that her MRI was normal as well. “Go home, take some tylenol, and you’ll be fine,” said the emergency room doctor.

About five months later, this woman started having difficulty seeing out of one of her eyes. She thought she needed eyeglasses. She went to her local eyeglass store where an optometrist examined her and gave her a prescription for eyeglasses. He noticed something in the eye that was troubling her and suggested she see an eye doctor for further evaluation. Shortly afterward, she made an appointment with a local eye doctor who also noticed something abnormal. By this time, her vision was getting worse by the day. It got so bad that this woman could barely see anything out of her eye. Her eye doctor ordered an MRI.

The MRI showed that there was a brain tumor compressing the nerve that controls sight in the eye- the optic nerve. “Do you know that you have brain tumor?” the doctor asked this patient. No. In fact, only five months ago, I had an MRI of my head done at the local emergency room, and they said everything looked good. “Get me a copy of the MRI, will you?” asked the eye doctor.

The patient made arrangements to send her MRI and MRI report from the hospital to her eye doctor. Contained within the report was this statement “Patient has a mass that appears to be close to the optic nerve. Follow-up recommended.”

“You were never given a copy of this report?” asked the eye doctor with disbelief.

“No, they told me my MRI was normal,” said the patient.

“Did anyone ever call you from the hospital and tell you to return for follow-up treatment regarding this mass in your brain?” asked the eye doctor.

“Nobody from the hospital ever called me,” responded the patient.

What this patient learned after coming to us to investigate her potential medical malpractice matter was that the emergency room doctors treated her correctly. The doctors ordered the appropriate tests for her as well. The problem started after the MRI was read and nobody ever informed the patient that she had this abnormal mass in her brain.

If this observation had been communicated to the patient, she would have had elective surgery to remove the tumor (it was a benign tumor that was creating a mass-effect, causing compression on all the structures surrounding the tumor). The tumor would have been removed before it started to change her vision in one eye. Over the five months since the car accident, the tumor had grown so large as to cut off the blood supply in the optic nerve, causing her to go blind on that one eye.

Even though this woman had surgery to remove the tumor, there was nothing anyone could do to restore the vision in her eye. She was permanently blind in that eye. Why? Because the radiologist who read the MRI never communicated this finding to the emergency room doctor. Another factor causing miscommunication was that the emergency room doctor never received a copy of the MRI report. What happened was that the radiologist dictated his report- which was an accurate report. We had no issue with what he found in the MRI.

The big problem was that nobody in the hospital communicated the abnormality in the patient’s brain TO THE PATIENT! The radiology report was simply filed in the patient’s chart, which was no longer in the emergency room, since the emergency room doctor discharged the patient shortly after the MRI was done. Nobody ever ‘red-flagged’ the report to see if the patient was recalled to the hospital, or to see if she received treatment for the abnormal mass in her head.

Here, the tumor was right in front of the doctors’ eyes. Yet nobody ever told the patient she had this tumor. As a result, the tumor continued to grow causing the optic nerve to die. This patient lost vision in her eye solely as a result of the mistakes made by the doctors in the hospital. This was a preventable occurrence. Unfortunately for this patient, she will never regain her sight.

This is one example of how we helped an injured victim in her quest for justice. A thorough investigation and prosecution of the case resulted in a favorable settlement right before a jury was selected for trial.

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This case involved the improper insertion of stents into a young man’s penis causing total destruction of the tube that carries urine from the bladder down into and through the penis. This tube is called the urethra.

This man’s unfortunate journey began when he started having difficulty urinating. He saw a a urologist (a specialist who treats diseases of the urinary system) who, after examining him, told him that he had abnormal scar tissue (called a “stricture”) in his urethra that needed to be cut open. This procedure is known as a “urethrotomy.” The doctor inserts a tube into his penis and then once the tube is in the correct place, then inserts a knife within the tube to cut away the scar tissue.

The problem with this procedure is that the scar tissue is virtually guaranteed to return weeks or months later. Why? Because this procedure is a band-aid. It only removes the scar tissue, but does not eliminate the reason why it keeps coming back.

Three months later, my client was back in the urologist’s office with the same exact complaints: Difficulty urinating, straining and pain. The doctor again recommended the same “cold-knife urethrotomy.” Despite the doctor’s attempts to get rid of the scar tissue, the same problems came back a few months later. Here’s where things started to go wrong.

After the second procedure, when the urolological symptoms returned, he should have been sent to a urologist who specializes in reconstructive surgery. Had the happened, he would have had a simple two hour surgery to remove the section of urethra with the scar tissue and replace it with skin from the inside of his mouth, known as a “buccal mucosa skin graft.” This procedure would have had a 90% success rate with a well-trained surgeon.

Instead, the original treating urologist told my client he required a unique device known as a “stent” to be inserted into his penis, into an area called the “bulbar urethra.” This stent is a coiled steel mesh, that when placed into the urethra, springs open to hold the urethra open. Unfortunately for this young man, this clearly was the wrong device to use. First, the stent was not meant for young men. Rather, it was meant for old men who no longer have erections. The reason is that in a young healthy man who still gets erections a stent will cause excruciating pain. In an elderly man who no longer is able to achieve an erection, the stent may be the right fix. Second, this stent was not meant to be used for the amount of scar tissue that my client had- in fact the manufacturer’s own guideline clearly indicated it was not to be used for strictures that were as long as my client’s stricture.

To make matters even worse, after four weeks, my client had such excruciating and terrible pain in his penis from the stents that the doctor decided to try and remove the stents and insert two new ones. The problem is that these stents are designed to be permanent. Once inserted, layers of skin tissue grow over the stents to hold them in place. They literally become embedded within the urethra.

When the doctor went to remove the stents, he had to pull the wire filaments out one by one since they do not come out in one piece. Unfortunately, when he removed the stents, he destroyed the inside of this man’s urethra. Instead of removing the stents and allowing the urethra to heal, this doctor decided that instead he’d insert two new stents during the same procedure right back into the the urethra, in a slightly different location, thinking that would do the trick. However, the only ‘trick’ it caused, was a total destruction of my client’s urethra.

The pain where the stents were located became so unbearable that my client thought seriously about committing suicide. He obtained a second and third medical opinion, this time with a reconstructive urological surgeon. My client was told that his urethra was totally obliterated and he needed massive reconstructive surgery to fix it.

CORRECTIVE SURGERY

Two surgeries, 17 months apart. The first surgery took 12 hours. The embedded stents had to be painstakingly removed. Since the urethra needed to heal for more than a year, there had to be another location where the urine would exit from his body during this time. The surgeon created something called a “urinary diversion,” which is exactly what it sounds like. The urine is diverted from the urethra and out the penis, to a different location. The problem is that there is no other natural way for urine to exit in a man’s body, so the surgeon had to create an alternative opening. The only place for this alternate way to urinate was to make a surgical hole between his scrotum and his anus. Every time he needed to urinate, he’d have to sit down on the toilet, like a woman, and wipe every time. This was totally humiliating for him. He also had to have a huge section of skin taken from his thigh to use as a skin graft inside his penis for his new urethra.

After almost 17 months of healing, with no sex and no ability to go swimming during this time, he had his second corrective surgery. The urinary hole next to his scrotum was finally closed. His urethra was reattached to his bladder and now urine flowed correctly out through his penis. After two months, he was remarkably better.

We alleged that the doctor never should have inserted stents into this man’s urethra and doing so was a departure from good medical care. Putting the stents in, taking them out, and putting two new ones in destroyed his entire urethra. Had the original urologist done the right thing and sent the patient to a reconstructive urological surgeon after the second urethrotomy procedure, this young man never would have needed such an extensive reconstructive procedure known as a “rescue urethroplasty.”

The defense claimed that it was appropriate to use these stents and that he still would have required a “urinary diversion” regardless of when the corrective surgery took place. The problem with this reasoning was that the defense failed to take into account that before his urethra was totally destroyed, he could have had a simple urethroplasty procedure with no need to divert his urine.

CONCLUSION:

After months of trying to negotiate a settlement, and with trial approaching within weeks, both sides agreed to try mediation. It was only through hard-fought negotiation on both sides and with the help of an experienced mediator, were we able to reach a settlement that was agreeable to both sides.

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The words we never want to hear “I’m sorry, your loved one has irreversible brain damage…” says the doctor in the crowded waiting room. You blurt out “But how did this happen?” you ask with baited breath, trying to learn the source of your terrible angst. The doctor wants to tell you, in fact, is eager to tell you…but the doctor knows that if he tells you the reason why this happened, you will likely bring an immediate lawsuit against the hospital, the anesthesiologist, and everyone who cared for your loved one.

When going to have surgery, the anesthesiologist is obligated to talk to you prior to surgery to ascertain whether you are a good candidate for, say, general anesthesia, where you are put to sleep. The anesthesiologist is supposed to discuss with you the risks associated with general anesthesia. In every instance where anesthesia is administered, there is always the possibility of death. However, if every anesthesiologist told every patient that they could die from the anesthesia during the “routine” surgery, nobody would ever have surgery.

Why is this important? Because there are some patients who would rather not take a risk, however remote, that something catastrophic could happen during a “simple, routine” surgical procedure. Take for example a case I handled a few years ago. It involved a woman who was having a colonoscopy in a doctors office. She had followed the doctor’s instructions to prepare for the procedure to the letter. No food past midnight, nothing to drink. She’d taken that awful, disgusting drink that causes you to go to the bathroom 20 times in a row, for a total clean-out.

When she arrived for her colonoscopy, she never expected what was ultimately to happen. Interestingly, the doctor performing the procedure had the good sense to have an anesthesiologist in the room. The anesthesiologist gave her an IV and gave her medicine to make her sleepy. Then the procedure started. There was some difficulty passing the tube through the intestines and the next moment the patient had vomited. The anesthesiologist did not recognize what had happened, and rather than stopping the procedure, advised the doctor doing the colonoscopy to continue- that the patient was fine. To the contrary. The patient had inhaled the vomit into her lungs. The anesthesiologist never suctioned the vomit past her trachea. In fact, she had inhaled so much vomit that in a very short time, the acidic stomach contents began to eat away at the patient’s lungs. Soon she could not breathe easily and was having very labored breathing. Only when the doctor doing the colonoscopy realized he couldn’t complete the procedure did he stop what he was doing.

The anesthesiologist still didn’t recognize the significance of what had happened. The patient’s oxygen content was dropping rapidly. There was a strong suggestion that the anesthesiologist wasn’t even around to monitor the patient as he had to go into the next case to provide anesthesia for the next patient. After almost an hour of labored breathing in the recovery room, and a decreasing oxygen content in the patient’s blood, did someone finally call an ambulance. The patient developed severe pneumonia from the foreign matter (vomit) that was now in her lungs. Two days later she died directly as a result of the anesthesia errors and the doctors failing to stop the procedure when there was a significant complication.

The sad part of this story is that this woman would have lived for many more years had these errors not taken place. The patient suffered brain damage and severe damage to her lungs from an anesthesiologist who failed to recognize common complications- and developed a condition the doctors called aspiration pneumonia, as well as hypoxia- also known as a decreased amount of oxygen in her lungs, blood stream and brain.

Another case I handled recently involved a young man who had hernia surgery. It was to be a ’same-day’ procedure and the young man was to be discharged after the anesthetic had worn off. Unfortunately for this young man, he was given too much anesthesia. Instead of being discharged from the recovery room after an hour, he was still there three hours later. Since it was about 7:00 p.m. and the ambulatory center was already closed, the doctor decided that the patient should be admitted to the hospital overnight- just for observation. This way, he can be watched, and when the anesthetic wears off, he’ll be able to go home in the morning. Not a bad thought.

However, the patient was so groggy, he didn’t even know he’d been admitted to the hospital. He was admitted to a regular floor and there was no electronic monitoring of his oxygen levels, his cardiac status, or even his breathing. It was an unmonitored medical floor where the nurses came in every three or four hours just to check on you and possibly take your vital signs if you were lucky.

During the night, the night nurse saw the young man was sleeping and decided not to wake him to take his vitals. That was a bad decision. In the morning, when the next shift came on duty, the nurse went to check on the young man and found him totally blue, not breathing, and in cardiac arrest. An emergency “code blue” was called and doctors came racing from all over the hospital to try and revive this young man. The doctors were ultimately successful and were able to get his heart started again. They put him on a ventilator since he could not breathe for himself. Tests revealed that this young man had been deprived of oxygen for hours. His body had been over-anesthetized from the hernia surgery the evening before, and even though there was medication available to reverse the effects of giving excess anesthesia, this patient never received any such medication.

This young man lived on a respirator, suffered every imaginable complication from being on a respirator and suffered irreversible brain damage including pneumonia, infection, kidney failure and an untimely and horrific death. “But he just went into the hospital for routine hernia surgery!” exclaimed his father. What made this even worse, was that for a few days after this catastrophic event, the man was able to feel pain. When they pinched his skin he moaned. When they touched his eyeball, he retracted. There was evidence of some level of conscious pain and suffering. This young man’s death was preventable.

Anesthesia errors are tragic and unforgiving. If tragedy strikes, try to have this question answered: “Why did this happen?”

Los Angeles Personal Injury Attorney Notebook Dell Vostro

I was in the emergency room with my son one evening, and the emergency room attending physician stayed 5 feet away from my son until he heard why we were there. There was an unspoken feeling that this doctor was afraid to touch my son and was hesitant to come near him until he absolutely had to. I should mention that my son did not have any communicable disease and had no festering sores or boils. He fell at camp and we felt he might have broken a bone. That’s it.

I definitely got the sense that this doctor wasn’t the only one who acted this way toward patients in the emergency room of a large university-based hospital, here in a suburb of New York.

Once the doctor realized we weren’t aliens from another planet, and that we weren’t going to sue him for examining my son, his tone and body mannerisms softened slightly, and he returned to ‘business-as-usual’ in the emergency room.

Recently, whenever you walked into a doctor’s office in New York you’d find articles (I call them propaganda) discussing the high costs of medical malpractice insurance and how it was the terrible trial lawyers who were making their lives miserable. I was fascinated by the material. It didn’t bother me that the doctor was openly trying to get their patients to side with them in their fight against malpractice suits, but I was troubled by what was missing from these articles.

There was no attack upon the doctors’ insurance companies. Nobody came forward to say they were being gouged unfairly for these ridiculous insurance costs. It was as if the doctors were turning a blind eye to the very people and companies who insured them in the event they were sued by a patient. It made no sense.

Whenever I brought this topic up to my doctor or a doctor I knew, I’d get a pause before any explanation. Most of the doctors I spoke to never thought about attacking their own insurance company. Rather, they were quite happy to see an organized effort to focus the blame on trial lawyers for their exceptionally high premiums. There is no question that doctors on Long Island pay some of the highest malpractice premiums in the country. The question of why this is so will best be addressed by politicians and people who have studied the exact reasons for this problem. I will however point out that many credible studies have consistently shown that the insurance companies are to blame for their own cries of “We need more money.” Repeatedly, insurance companies have made poor investment choices and when they’re in a downturn cycle, tend to get their advertising guns out and point the finger at everyone but themselves.

So why are doctors afraid to treat you? They’re afraid of being sued. That’s it. Some doctors practice without caring if someone sues them. They know they’re providing the best medical care they can give. Other doctors look at patients as adversaries, never knowing when that lawsuit is going to hit.

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