December 11, 2020
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.”
Silver Golub & Teitell LLP
203-325-4491 ext. 174
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
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
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
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.
August 16, 2019
Consumer products were involved in nearly three out of four nonfatal traumatic brain injuries (TBIs) to U.S. children treated in emergency rooms between 2010 and 2013.
According to a new study published in Brain Injury, a startling 72.2% of TBI-related emergency room visits and hospitalizations among children and adolescents up to 19 years of age are caused by consumer products. Most injuries in infants (71.3%) and children ages 1 to 4 (60.6%) were related to home furnishings and fixtures, such as beds and flooring.
Using the National Electronic Injury Surveillance System—All Injury Program, research scientists at the Pacific Institute for Research and Evaluation in Beltsville, MD, identified 4,091,376 nonfatal pediatric TBIs seen in emergency rooms between 2010 and 2013. Divided by age, there were 380,842 TBIs in infants under a year; 1,085,680 in children ages 1 to 4; 682,826 in kids ages 5 to 9; 834,565 in 10- to 14-year-olds; and 1,107,463 in those ages 15 to 19. These numbers reflect only emergency room visits, not visits to doctors outside of hospitals.
Prevention strategies across pediatric age groups start with awareness, and ultimately should include changing our behaviors. Wherever feasible, manufacturers should learn from this data and modify product designs and surfacing to reduce avoidable brain injuries. At the same time, children and adults supervising them should be aware of how certain products and activities can lead to head injuries and take steps to avoid them. Together, we can reduce pediatric head trauma without radically changing healthy and active childhood activities.
Paul A. Slager
Silver Golub & Teitell LLP
March 13, 2019
A recent USA Today and Naples Daily News article headlined “Florida plastic surgery clinics cut prices, boost ads, and eight women died” (February 1, 2019) lays out in painful detail the life-threatening consequences of states failing to regularly and thoroughly inspect healthcare facilities.
According to the article, a Miami physician built a national plastic surgery business using aggressive marketing tactics and discounts that targeted working class minority women from around the country. So far, eight women, most of them young mothers, have died because of alleged medical errors at the clinic founded and overseen by Dr. Ismael Labrador.
There is no reason the death toll should have reached these heights. All deaths tied to surgery centers are supposed to be reported to the state health department, which is supposed to investigate them in a timely manner. Only then can troubling evidence of critical breakdowns in care be assessed and corrected so that the standard of care is followed and so that physicians and facilities are held responsible for their actions.
The public needs to be made aware of physicians and facilities that have a troubled past, including companies that close and then reopen under a new name – like Dr. Labrador’s Vanity Cosmetic Surgery reopening as Eres Plastic Surgery.
Why doesn’t the National Practitioner Data Bank function as it should as an accurate, updated national database that collects instances of medical malpractice and then makes this information freely available and easily accessible to the public? Isn’t it worth the effort if it saves even one life?
Richard A. Silver
Silver Golub & Teitell LLP
January 28, 2019
With a standard car on the road today weighing an average of 4,000 pounds and a tractor-trailer truck carrying up to 80,000 pounds, collisions involving cars and tractor-trailers are some of the most devastating motor vehicle accidents. Many of these catastrophic, life-changing accidents are caused by negligent truck drivers who are tired from lack of rest.
By law, truck drivers are mandated to follow the Federal Motor Carrier Safety Administration (FMCSA) rules and regulations. According to the FMCSA, a truck driver may drive a total of 11 hours a day during a 14-hour work period. This 14-hour work period begins when a driver starts any type of work, such as loading or unloading a trailer. Once a driver has reached the end of the 14-hour period, he or she cannot drive again until he or she has been off duty for another 10 consecutive hours. The FMCSA also requires all drivers to keep accurate daily logs their time. These daily logs are in written form, unless a driver’s time is being recorded electronically.
However, because of strict deadlines, payment structures and bonus allotments, drivers and the companies they work for often forgo adequate rest and required driver time off. By choosing profits over safety, they create a dangerous environment for Connecticut drivers. Tired drivers are more likely to be distracted, are slower to react and are more prone to dangerous decisions than well-rested drivers. Some studies, including one done by the American Automobile Association, found the risks of fatigued driving comparable to drunk driving.
Truck accident lawyers will investigate the unique cause of each car-truck accident, including driver fatigue. Most trucks manufactured in the United States since the 1990s have an Electronic Control Module (ECM) integrated with their engine components, similar to that used in commercial airliners. These ECMs are designed to capture a variety of on-going data regarding the operation of the truck. Specifically, ECMs record operational data over a period of time (usually 30 days), including overall average speed, highest speed and time driven.
Truck drivers can fudge their log books; however, experienced truck accident lawyers work with top experts in the trucking field, including accident reconstructionist and FMCSA experts, to analyze ECM data against a driver’s log books to determine if driver fatigue played a part in each accident.
In Connecticut, injured persons have up to two years to file a lawsuit and also have two years to file a suit for property damage, such as compensation for vehicle repairs. Failure to bring a lawsuit within this time frame will prevent any recovery regardless of the merits of the case.
Joaquin L. Madry
Silver Golub & Teitell LLP
January 3, 2019
For centuries, our civil justice system has relied on open trials, ultimately evolving into a presumption of public access to court proceedings and records, which remains a fundamental part of our judicial system today. This presumption of public access is grounded in the public’s interest in monitoring the judicial process. Such access enhances public confidence that the judicial system is operating fairly, impartially and in accordance with established norms. Transparency is necessary to ensure accountability and effect change. This is especially true because our civil justice system serves both as a vehicle for compensation and a powerful societal force to hold people and entities accountable for their conduct.
Today, however, wealthy and powerful defendants are increasingly using secrecy as a weapon to prevent consumers, employees, injury victims and victims of sexual assault, abuse and harassment from their day in court. Rather than punishing bad behavior, such secrecy enables wrongdoers, silences victims, prevents the public from learning of dangers existing in society and can embolden bad actors. While secrecy may have a role in some limited circumstances, e.g., protecting trade secrets, too often these defendants – corporations, institutions and individuals – are instead trying to shield litigation from public view through forced arbitration, protective orders, confidentiality agreements and secret settlements.
It is critical not just to the claimants, but to society at large, that these types of cases remain open to the public. Survivors of sexual abuse are empowered to confront their experiences in positive ways when their stories are available to the public. This been poignantly illustrated by other public cases of institutional sexual abuse or harassment, where lawsuits against the Catholic Church, the Boy Scouts of America, Boys and Girls Clubs, YMCAs and, more recently, multiple news broadcasting agencies, have been filed by survivors, thereby exposing the institutional enabling of such conduct. These examples clearly illustrate the importance of open proceedings that have given sexual abuse survivors and victims of sexual assault, who previously felt voiceless and alone, the courage to come forward. As attorneys who represent victims of sexual abuse and harassment, we should vigorously fight the imposition of any defense effort to shield a case or documents obtained through discovery from public scrutiny.
Michael R. Kennedy
Silver Golub & Teitell LLP
December 11, 2018
The Merck Manual of 1899 was a guide to the general practitioner as to the appropriate remedy or remedies for various illnesses.
Some of the following are treatments and poultices recommended in the 1899 Manual:
Palpations of the Heart
Insanity and Dementia
Obviously, in the past 100 years there have been enormous advances in medical knowledge and practice. There also have been advances in the public recognition of the role of medical malpractice actions in promoting patient safety. Numerous advances in medical procedures, medical products and drugs have come about as a result of this litigation.
An excellent example is in the field of anesthesia. As a result of very significant malpractice verdicts which occurred as a result of poor monitoring, the anesthesia profession took significant measures to develop mechanical safety procedures and devices which have greatly reduced injury and death. The effect of these changes has improved patient safety and significantly reduced anesthesia malpractice claims.
In addition, a vast number of medical products and drugs that have caused harm to patients have been removed from the market or redesigned as a result of lawyers bringing cases for injured patients. Products that have gone under public scrutiny as a result of litigation include:
Litigation has also exposed dangerous drugs that eventually got taken off the market, such as:
Dramatic advances have occurred in medicine as well as in the recognition of the social good of medical malpractice actions.
Richard A. Silver
Silver Golub & Teitell LLP
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