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THE SILVER GOLUB & TEITELL BLOG

Connecticut Medical Malpractice Cases in the Era of COVID-19 — Updated

RICHARD A. SILVER

June 4, 2021 

The COVID-19 virus has put an enormous strain on the Connecticut court system.  It has never confronted such a significant challenge.  The Court is now faced with major issues in commencing civil jury trials for all cases, including medical malpractice cases.

Safety, in particular, presents significant concerns.  For instance, how will jurors be able to safely congregate in a jury assembly room containing more than 50 jurors and how will they be arranged in the jury box to ensure that they are the appropriate distance from each other and counsel throughout a jury trial?  When jury trials do commence, it can be anticipated that jurors, particularly those over 60 years of age, will be reluctant to serve in light of the risk of COVID-19, especially if serving with unvaccinated jurors – which may create a shortage of prospective jurors.  Further, courthouses will require extra staffing and perhaps structural changes to ensure the safety of the jurors, judges, court personnel and attorneys.

At present, the Superior Court is scheduled to commence short, limited civil jury trials in the next few months.  However, there will be a delay in medical malpractice cases which usually require lengthy trials with more extensive testimony.

Further delay can be anticipated because criminal trials take priority over civil cases.  In my view, for these reasons, it could be 12 to 18 months until medical malpractice jury trials of a complex nature will be regularly scheduled.

Civil jury trials present many practical issues which have not yet been decided by the court system:

  • Will non-vaccinated participants be required to wear masks or even double masks?
  • Will vaccinated participants (especially seniors) be willing to serve with non-vaccinated participants?
  • Will participants who have been vaccinated, including judges, staff, attorneys, witnesses and jurors, be required to wear masks?
  • Can an in-person trial be effective if judges, lawyers and witnesses are required to wear masks?

Throughout the pandemic, the Superior Court has been utilizing remote technology to hear motions and also to assist the Court in conducting mediations.  Medical malpractice mediations performed outside the court system have had very positive results.  The present remote system of mediation allows the mediator to speak separately and privately with each counsel on-line.  Notwithstanding the many benefits of remote mediation, it is not at all clear whether the insurance companies representing the hospitals and individual defendants will be cooperative in attempting to resolve cases during this interim period without the pressure of trial.

Preparing cases to ready them for mediation and/or trial in this era of COVID-19 presents challenges as well.  While remote depositions by the parties outside the Court system are not as effective as in-person depositions, they have become the new norm.  While there is capability to conduct depositions with counsel and witnesses being separated, successful management of these depositions requires the cooperation of plaintiff counsel and defense counsel.  It serves neither party an advantage to attempt to do the deposition of only the opposite party.

An unexpected positive aspect of the virus is that expert witnesses can be prepared remotely by Zoom or some other video conference platform. Using this technology to communicate allows the sharing of hospital records and films during on-line conferences with the physician.  It is anticipated that this technology will now allow “live” expert testimony remotely during an in-person trial.

Jury trials are the backbone of our legal system, and it is extremely important that the Court is available for litigants to resolve issues that require litigation.  Prior to the virus, a significant number of medical malpractice cases had been resolved by settlement.  However, resolution of these cases at present depends on the cooperation of counsel and on a court system that is available to bring medical malpractices cases to trial.

Richard A. Silver
Silver Golub & Teitell LLP
rsilver@sgtlaw.com

 


Choosing a Birth Injury Law Firm

May 13, 2021 

Connecticut BIrth Injury Law

Connecticut Birth Injury Law

If your newborn is suffering from medical problems (such as cerebral palsy) that you suspect were caused by doctors or other medical personnel who delivered your child, you should seek the services of an experienced law firm as soon as possible.  There are several factors to consider when choosing a birth injury law firm, including to help you to find out why the birth injury occurred, whether it could have been prevented and whether you should consider filing a medical malpractice lawsuit.

When choosing a birth injury law firm, the firm should:

  • Be experienced. Your law firm should have a thorough knowledge of Connecticut birth injury law and should be a law firm that has handled many birth injury cases over a period of many years.
  • Handle your case promptly.  Your Connecticut birth injury lawyers should commit to a speedy handling of your case at trial.  There is a statute of limitations on the amount of time that can pass between a birth injury and when you can file a medical malpractice lawsuit in Connecticut.  A seasoned trial attorney will work quickly to gather information to support your case and to overcome delays in the litigation process.  In addition, many birth injury cases can be quickly brought to a conclusion without going to trial through an out-of-court settlement.
  • Work on a contingency fee basis. This means that you will not pay any attorney’s fees unless you recover damages from the doctor or hospital at fault or from his or her insurance company.  When you do reach a settlement, the law firm then charges a percentage of your overall settlement for lawyer’s fees.
  • Be confident about handling your case.  The birth injury law firm should agree to take your case only if he or she thinks your lawsuit is winnable and that he or she is the right lawyer for the job.
  • Pay the costs of putting together your legal case.  You will reimburse the law firm for these expenses after you have recovered damages.  Your attorney is taking a risk in paying these costs in advance. This is a good indication that he or she thinks you have a strong case.  Your attorney’s law firm should pay for your legal expenses as they come up, such as:
  • Copies of police reports and medical records
  • Deposition fees
  • Court filing fees
  • Investigator fees
  • Expert witness fees
  • Office expenses
  • Take a team approach to meeting your needs.  A successful Connecticut birth injury law firm leverages the diverse talents and experience of its attorneys to meet the challenges of each client’s unique birth injury case.

Victims of birth injuries in Connecticut rely on the skill and professionalism of the trial attorneys at Silver Golub & Teitell LLP.  We take birth injury cases on a contingency fee basis.  Please contact us to find out how we can help you.


Proud To Support the FCBA Toy & Gift Drive — Please Donate

December 15, 2020 

Just a reminder from Mike Kennedy that we are one of the drop off locations for the Fairfield County Bar Foundation’s (FCBA) 13th Annual Toy and Gift Drive. There is a box for any donations in our lobby. Please note the deadline for donations is tomorrow, Wednesday, December 16.

They are in need of new and unwrapped toys for younger children, grocery store gift cards and other appropriate gifts (e.g., gift certificates to clothing, music or book stores) for older children and teenagers.

The FCBA also delivers food baskets to needy families in the area. Your generosity is appreciated and makes a difference in the community. Checks may be made out to: “Fairfield County Bar Foundation,” a 501c3.

To meet the goal of donating 500 toys and gifts and $3,000, please bring your donation to the office of the FCBA or any of the sponsoring firms in addition to Silver Golub & Teitell LLP.

If you have any questions or would like to volunteer to help deliver toys and gifts, please call Jeanne or Lina at (203) 327-7041.

The Toy and Gift Drive Collection Sites include:
• Megan Baroni (462-7528), Robinson & Cole, 1055 Washington Blvd., Stamford
• Michael Barbarula (357-9200), Ryan Deluca LLP, 707 Summer St., Stamford
• Nicholas Vitti (327-2000), Cacace Tusch & Santagata, 1111 Summer St., Stamford
• Dan Fox (324-6777), Curtis, Brinckerhoff & Barrett, 666 Summer Street, Stamford
• Jevera Hennessey (625-5300), Kaye and Hennessey, 71 Lewis Street, Greenwich
• Kara A. T. Murphy (853-7000), Tierney Zullo Flaherty & Murphy, 134 East Avenue, Norwalk
• Jon Kelson (358-0800) Diserio Martin O’Connor & Castiglioni, 1010 Washington Blvd., Stamford
• Michael Kennedy (325-4491), Silver Golub & Teitell, 184 Atlantic Street, Stamford
• Joe Noferi, (327-4500). Ohlandt, Greely, Ruggiero & Perle, One Landmark Square, 10th Fl. Stamford
• Jeanne & Lina (327-7041), Fairfield County Bar Association, 970 Summer St, Stamford

Thanking you in advance …

Contact
Randy Savicky
Silver Golub & Teitell LLP
203-325-4491 ext. 174
rsavicky@sgtlaw.com

 


Proud To Support CT Trial Lawyers Association’s Lawyers vs. Hunger Campaign

December 11, 2020 

CTLA Lawyers vs. Hunger

CTLA Lawyers vs. Hunger

We are very proud to make a donation to the Women’s Caucus of the Connecticut Trial Lawyers Association‘s Lawyers vs. Hunger campaign.

We hope that you will join us in supporting this very worthy cause fighting against hunger; it will make a big difference in the lives of some of Connecticut most vulnerable citizens.

Fully 100% of the tax-deductible contributions to the Lawyers vs. Hunger campaign will go directly to the Connecticut Food Bank and Foodshare for buying and delivering food to the hungry during this holiday season.

Food insecurity in Connecticut continues to be a concern. According to NBC Connecticut, the Connecticut Food Bank and Foodshare are still seeing thousands more people than they were pre-pandemic.  Anyone seeking help with food can dial 2-1-1 for a confidential referral to the nearest food bank.

The Connecticut Food Bank and Foodshare are discussing a merger, which would result in one statewide organization to address food insecurity.  Officials from the state’s two largest food banks said merging into one statewide organization would “more effectively serve the people in Connecticut who struggle with food insecurity.”

Contact
Randy Savicky
Silver Golub & Teitell LLP
203-325-4491 ext. 174
rsavicky@sgtlaw.com


The Truth About Pre-Existing Conditions In Medical Malpractice Cases

SARAH A. RICCIARDI

October 1, 2020 

The phrase “pre-existing condition” is a term of art that has been cropping up more and more frequently in recent news cycles. In the context of medical malpractice, a “pre-existing condition” is an illness or injury that a person sustains before the negligent medical treatment. There is a common misconception that a claim for medical malpractice cannot be successful if the patient who received the negligent medical treatment also suffered from one or more pre-existing conditions.

While pre-existing conditions certainly play a part in evaluating malpractice claims, the fact that an individual may suffer from such a condition does not automatically bar recovery in a medical malpractice lawsuit. In fact, it is not at all uncommon for a plaintiff in a medical malpractice case to have some underlying condition that has been exacerbated by a health care provider’s negligent medical treatment. Indeed, the plaintiff in such a case is often under the care of the defendant health care provider because she is suffering from an underlying illness or injury.

In most jurisdictions, including Connecticut, a defendant health care provider is responsible for all of the injuries caused by his negligence, even if the patient was more susceptible to those injuries because of a pre-existing condition. The concept that a defendant must “take the plaintiff how he finds him” is often referred to as “the eggshell plaintiff doctrine.” Under the eggshell plaintiff doctrine, the wrongdoer is liable for all of the damages that he legally caused, even if the consequences are more serious than they would have been had the injured person been in perfect health. See Rockhill v. Danbury Hospital, 176 Conn.App. 39, 56 (2017). In these cases, a plaintiff may claim that his pre-existing condition was exacerbated and/or aggravated as a result of the defendant’s negligent treatment.

Some scholars argue that the eggshell plaintiff doctrine is fundamentally unfair. Why should a health care provider be responsible for the exacerbation of a patient’s pre-existing condition when the health care provider’s mistake would not have caused such an injury in a perfectly healthy patient?

The public policies underlying tort law provide an answer. Tort law – the law that holds wrongdoers responsible for their conduct – serves two primary purposes: (1) to compensate victims for their injuries; and (2) to deter wrongdoers from acting carelessly at the expense of others. See Lodge v. Arett Sales Corp., 246 Conn. 563, 578-79 (1998). Holding a defendant health care provider liable for all of the injuries caused by his negligence ensures that those purposes are met.

That being said, the scope of damages for which a defendant is liable is not infinite. A health care provider is only liable for damages that are proximately caused by his negligence. As with any other element of damages, a plaintiff must be able to prove that the aggravation or exacerbation of his pre-existing condition was, in fact, caused by the defendant’s negligence.

This can be a particularly difficult in situations where a patient suffers from a pre-existing condition with an inherently high mortality rate. Take, for example, a patient who was recently diagnosed with terminal cancer. Two years before her diagnosis, the patient happened to undergo an MRI, which showed a cancerous tumor. The patient’s physician either misread the MRI or failed to notify the patient of the results. As a result, her cancer went untreated for two years and the patient ultimately passed away. Can the physician be held liable for the patient’s death even if she was going to die anyway?

This type of claim is known as “loss of chance of survival.” A loss of chance of survival case typically arises when a patient, who is already suffering from a pre-existing condition that places the patient at risk of death, alleges that the negligence of a defendant health care provider decreased the patient’s chance to survive.

The viability of a loss of chance claim depends on the law of the applicable state. In Connecticut, a plaintiff can recover for loss of chance of survival if she can prove that the victim of the alleged medical negligence more likely than not would have survived had the medical treatment been appropriate. In other words, the plaintiff must prove that, prior to the defendant’s alleged negligence, the victim had a chance of survival of at least 51%. See Peterson v. Ocean Radiology Associates, P.C., 109 Conn.App. 275 (2008). In other states, the plaintiff can recover for the percentage difference in the victim’s chance of survival regardless of whether she had a 51% chance of survival prior to the defendant’s negligence. A minority of states do not recognize claims for loss of chance of survival no matter the circumstances.

Just as the rules in every state are different, every case is different. Do not assume that a pre-existing condition precludes you from seeking compensation for your injuries or those of a loved one. If you are considering pursuing a medical malpractice lawsuit, it is important to consult an experienced personal injury attorney.

Sarah A. Ricciardi
Silver Golub & Teitell LLP
sricciardi@sgtlaw.com


American School for the Deaf: The Clock May Be Ticking for Abuse Survivors

NICOLE B. COATES

September 24, 2020 

When people learn of a childhood sex abuse scandal, their mind may reflexively think of clergymen or camp counselors. However, while the Boy Scouts of America and the Catholic Church have regularly appeared front and center in the news for the horrifying sexual abuse that ran rampant within their respective organizations, they are by far not the only organizations harboring such awful secrets in their past. In fact, earlier this year such a scandal was uncovered in Connecticut’s very own backyard. In February 2020, following an independent investigation, credible reports of physical and sexual abuse were found against the American School for the Deaf in West Hartford. Per its own website, the American School for the Deaf was founded in  1817 and was “the first permanent school for the deaf in the United States.” The school educates both boys and girls from pre-school through age 21 and offers both boarding and day school experiences. Despite the American School for the Deaf’s long history and prestigious reputation nationally and abroad, the independent investigation found that the allegations of sexual and/or physical abuse leveled against nine of the school’s former employees were “credible.” The investigation also found that staff members engaged in “multiple instances of past sexual abuse, and physical abuse and/or corporal punishment from the 1950s through the 1980s.” The accusations against one former school employee involved children “who would have been 12 years old or younger at the time of the abuse.”

Unfortunately, the victims of the abuse at the American School for the Deaf may find limited recourse under Connecticut’s civil justice system. Under current Connecticut law, in order to file a civil lawsuit stemming from childhood sexual abuse, a victim must bring his claim by the time he turns 51-years old. See C.G.S. § 52-777d. Of note, however, up until October of 2019, Connecticut’s statute of limitations barred claims brought after a victim’s 48th birthday, and the change to 51-years old was not retroactive. As the reported abuse at the American School for the Deaf spanned decades, there is a strong chance that a victim’s claim may already be time-barred. Thus, if a survivor does make the brave decision to come forward about his abuse, he needs to be aware that he only has a restricted amount of time to seek justice. This is particularly important for cases of childhood sexual abuse, as evidence has shown that it takes decades for victims to come to terms with their abuse, and sometimes even longer to report it. A 2014 study from Germany, which included 1,050 subjects, found that men and women were 52-years old, on average, when they first reported childhood sexual abuse. See Spröber, N., Schneider, T., Rassenhofer, M. et al. Child sexual abuse in religiously affiliated and secular institutions: a retrospective descriptive analysis of data provided by victims in a government-sponsored reappraisal program in Germany. BMC Public Health. 2014; 14: 282. doi: 10.1186/1471-2458-14-282. While no similar study has been performed in the United States, CHILD USA, a non-profit think tank, has also published statistics citing the average age of disclosure for childhood sexual abuse survivors as 52-years old. Thus, even Connecticut’s current statute of limitations arguably falls short of capturing instances of childhood sexual abuse before they are even reported.

The topic of expanding, or even eliminating, statute of limitations for sexual abuse claims has been the recent subject of much debate across numerous jurisdictions in the United States. Connecticut’s neighbor, New York, made headlines in 2019 when it extended the statute of limitations for civil lawsuits arising from child sexual abuse to when the victim reaches the age of 55. The old statute of limitations blocked any claims where the victim of child sexual abuse was older than 23-years old. In addition to expanding the statute of limitations, New York law also provides a one-year window during which survivors of child sexual abuse whose claims would otherwise be time-barred can bring an action. Vermont has gone even further than New York, setting an impressive standard for the rest of the US by completely abolishing its civil statute of limitations on cases arising from childhood sexual abuse cases. Earlier in 2020, a Connecticut legislative task force unanimously recommended that Connecticut eliminate the statute of limitations for civil sexual assault cases, which would allow victims to hold their abusers accountable at any point in their lives. Unfortunately, for those abused in Connecticut, including those abused at the American School for the Deaf, it is unclear if the statute of limitations will ever be expanded in a way that allows them to seek justice. Victims need to be aware that the clock may be ticking on their chance for justice.

Nicole B. Coates
Silver Golub & Teitell LLP
ncoates@sgtlaw.com


Connecticut Medical Malpractice Cases in the Era of COVID-19

RICHARD A. SILVER

May 27, 2020 

The COVID-19 virus has put an enormous strain on the Connecticut court system.  It has never confronted such a significant challenge.  The Court is now faced with major issues in commencing jury trials for all cases, including medical malpractice cases.

Safety presents significant concerns.  For instance, how will jurors be able to be safe in a jury assembly room containing more than 50 jurors and how will they be able to be seated the appropriate distance from each other and counsel in the jury box throughout a jury trial?  When jury cases do commence, it can be anticipated that jurors, especially those over 60 years of age, will be reluctant to serve in light of the risk of COVID-19.  Further, the Court will require extra staffing to ensure safety of the jurors, judges, staff personnel and attorneys.

At present, the Superior Court is scheduled to commence civil jury trials in February 2021.  I believe this date is somewhat optimistic based on the practical safety considerations.  Additionally, since traditionally criminal trials have precedent, it can be expected that medical malpractice cases will experience further delays once trials recommence.  In my view, it could well be 12 to 18 months until medical malpractice trials commence.

Even though the Governor has issued a proclamation that the statute of limitations will be extended, I believe it is wise to proceed with instituting cases within the actual statute of limitations so that when the Courts do open, these cases will already be on the trial list and thus have priority over cases being newly filed. I have filed a number of cases in the past weeks so that they will be processed earlier.

The Superior Court is now making provisions to utilize remote technology to hear motions and also to assist the Court in conducting mediations remotely.  Medical malpractice mediations performed outside the court system have had very positive results.  The present remote system of mediation allows the mediator to speak separately and privately with each counsel on-line.  A significant issue will be whether the insurance companies representing the hospitals and individual defendants will be cooperative in attempting to resolve cases during this interim period without the pressure of trial.

Preparing cases to ready them for mediation and/or trial in this era of COVID-19 presents challenges as well.  While remote depositions by the parties outside the Court system are not as effective as in-person depositions, they may become the new norm.  Presently, there is capability to conduct depositions with counsel and witnesses being separated.  However, successful management of these depositions requires the cooperation of plaintiff counsel and defense counsel.  It serves neither party an advantage to attempt to do the deposition of only the opposite party.

A positive aspect of the virus that is actually helpful as the case is prepared is that physicians who are expert witnesses now, for the most part, have greater availability in their schedules and have experience utilizing remote technology such as FaceTime or Zoom.  Using this technology to communicate allows the sharing of hospital records and films during on-line conferences with the physician.  Technology will also now allow “live” expert testimony remotely during a trial.

Jury trials are the backbone of our legal system, and it is extremely important that the Court is available for litigants to resolve issues that require to be litigated.  Prior to the virus, a significant number of medical malpractice cases had been resolved by settlement.  However, resolution of these cases at present depends on the cooperation of counsel and on a court system that is available to try cases that do not resolve by mediation.

*There will be no discussion of the Governor’s Directive in reference to COVID-19 because of the multiple and uncertain issues involved.

Richard A. Silver
Silver Golub & Teitell LLP
rsilver@sgtlaw.com


Statement of the National Crime Victim Bar Association on the Harvey Weinstein Guilty Verdict

February 26, 2020 

STATEMENT OF THE NATIONAL CRIME VICTIM BAR ASSOCIATION ON THE HARVEY WEINSTEIN GUILTY VERDICT

Over 80 survivors stood in strength and unity to speak out against a serial abuser. Eighty incredibly brave women faced not only their abuser, but a barrage of attacks in the media and victim-blaming in the courts.

We are hopeful that the conviction of Harvey Weinstein marks a turning page in treatment of survivors of sexual assault and rape, and is the beginning of the path to justice for all victims. It reaffirms that the rule of law still prevails in the United States but also proves how difficult it has been for survivors of sexual assault and sexual violence to obtain a measure of justice.

It should not take over 80 victimized women over decades of abuse to stop one known predator.  Unfortunately our corporate institutions have fostered a culture that protects the powerful.  We hope this is the beginning of the end of that culture.

The National Crime Victim Bar Association (NCVBA) is proud of our partners at Voices in Action, led by Jessica Barth, and is grateful for their courage.  We are committed to providing support to these victims, and all victims, as they seek justice and the healing that they deserve.

Our members take on the bullies and corporate abusers.  With the renewed awareness of the public, and the heroic willingness of women and men to speak truth to power, we will see a new day in America.

If you are the victim of sexual assault, the National Sexual Assault hotline (1-800-656-4673) can provide resources. For other resources or to request an attorney, you may also go to the NCVBA homepage at: https://victimbar.org/attorney-referral-request-form.

John Elliott Leighton, President
National Crime Victim Bar Association
John@Leightonlaw.com

Renee Williams, Director
National Crime Victim Bar Association
rwilliams@victimsofcrime.org

SGT Partner Paul A. Slager is on the Board of the National Crime Victim Bar Association.


The Art and Science of Trial Law

ANGELO A. ZIOTAS

January 23, 2020 

By Angelo A. Ziotas (Excerpted from the Connecticut Trial Lawyers Association FORUM, Fall 2019) — Try your case, be prepared to pounce and be sure to create your record for appeal.

The party that prevails at trial most often succeeds in framing the dispute on his or her own terms.  So, you must prepare your case with your evidence and themes firmly in mind, i.e., try your case. However, you must also keep your eyes and ears open for that moment – that opening or mistake that allows you to drive home your theme or undermine your opponent.  Finally, you need to preserve your record for appeal when you receive an adverse ruling, as proving harmful error is nearly impossible in a civil case.

Please click here to read the full article.


Celebrating the Longevity of Our Litigation Support Staff

December 19, 2019 

“We have had the good fortune of having a dedicated, long-serving staff that has been essential to our litigation successes over the past four decades. We thank them for their support in ensuring that our clients receive adequate compensation for their injuries” — Richard A. Silver, Esq.


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