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Call Stamford (203) 325-4491
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Court Secrecy: The Importance of Open Proceedings

Michael R. Kennedy

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
mkennedy@sgtlaw.com


Advances in Medicine and Recognition of the Validity of Medical Malpractice Cases

Richard A. Silver

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:

Headaches

  • Bleeding
  • Chloroform
  • Mustard: Poultice to nape of neck

Palpations of the Heart

  • Cocaine
  • Digitalis
  • Hot bath

Diabetes insipidus

  • Arsenic
  • Creosote
  • Opium: Most useful; large doses if necessary

Hysteria

  • Alcohol
  • Camphor: in hysterical excitement
  • Cod liver oil

Insanity and Dementia

  • Codeine
  • Opium
  • Zinc phosphate

Prostatitis

  • Leeches to perineum

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:

  • Artificial metal on metal hip implants
  • Vaginal mesh
  • Various implantable cardioverter-defibrillators
  • Several birth control devices, such as Essure

Litigation has also exposed dangerous drugs that eventually got taken off the market, such as:

  • Accutane
  • Darvocet
  • DES
  • Quaalude
  • Vioxx

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
rsilver@sgtlaw.com


Protect Yourself Against Connecticut Drivers with Little or No Insurance Coverage

Joaquin L. Madry

November 12, 2018 

In Connecticut, drivers are required to have a minimum amount of liability car insurance — $25,000 for bodily injury, per person per accident, and $50,000 for bodily injury, total per accident.  As such, there are many Connecticut drivers that choose this minimum amount of coverage over a much more comprehensive, but only slightly more expensive, policy.  The 25/50 policy is wholly inadequate to compensate an individual with a significant permanent injury or death from a motor vehicle accident.  It is even more problematic if there are multiple individuals injured in the same accident that need to share in this limited policy.  Importantly, there are people driving illegally in Connecticut without any insurance.

In order to protect against these underinsured or uninsured motorists, drivers can purchase uninsured/underinsured motorist (UM/UIM) insurance coverage.  As part of an automobile insurance policy, it provides some protection in the event of a catastrophic injury in a motor vehicle accident when the individual who caused the accident does not have insurance or has insufficient insurance to pay for the injuries and other losses. Most insurance carriers will allow drivers to purchase a maximum of $1 million dollars in UM/UIM insurance coverage on a primary automobile.

Two additional ways to protect against Connecticut’s uninsured/underinsured motorists are through:

  • An umbrella policy with UM/UIM coverage
  • Conversion insurance

Designed as secondary insurance, an umbrella policy provides excess coverage above and beyond homeowners and auto insurance policies.  It has underlying insurance requirements so that drivers must have a certain amount of auto insurance and homeowners insurance coverage as a condition of being approved for an umbrella policy.  However, an umbrella policy alone does not protect you from Connecticut drivers with little or no insurance coverage.  You must purchase UM/UIM coverage on the umbrella policy.  Not all umbrella insurance carriers will offer UM/UIM insurance coverage on an umbrella.  The insurance carriers that do offer it generally provide a maximum of $3 million dollars in additional insurance coverage as a purchase option.

Conversion coverage is an option that insurance companies must offer you by law.  With UM/UIM conversion coverage, the insurance company must pay the full amount of coverage and is not permitted to reduce this coverage by any amounts paid by the negligent driver’s auto policy.

The bottom line is that the safest course of action is to be fully insured in case of a serious automobile accident.

In Connecticut, persons injured in a serious auto accident 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
jmadry@sgtlaw.com


Decisions in the Neo-natal Intensive Care Unit

Richard A. Silver

November 9, 2018 

In this week’s New England Journal of Medicine, November 8, 2018, Vol. 379, No. 19, Page 1851, there is a detailed discussion of decision making for neo-natal babies in reference to hypoxic encephalopathy, degenerative neurologic diseases and even brain death. This article discusses ethical decisions in reference to when treatment is futile or should be withdrawn.

It further discusses disagreements between doctors and parents and family members as to the decision making. In this very sensitive issue, it discusses the information to be given to parents to make a final decision.  It also discusses focusing on shared decision making. While it is rare that attorneys become involved at this stage, it is a very important article discussing these very sensitive issues.

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


Private Foundations: A Guide To Organization and Administration

November 6, 2018 

A PROBATE & ESTATES COMMITTEE LUNCHEON PROGRAM CO-SPONSORED BY THE FAIRFIELD COUNTY BAR ASSOCATION (FCBA) WITH THE FAIRFIELD COUNTY BAR FOUNDATION

FCBA Co-Chairs: Mark Chioffi & Michael Clear

At the office of Fairfield County Bar Association

970 Summer Street, Stamford, CT

WEDNESDAY, NOVEMBER 7, 2018                                  NOON to 2:00 PM

PRESENTED BY: 

Stefania L. Bartlett, Esq. & Cara Howe Santoro, Esq.
Cummings & Lockwood LLC

Jennifer Pagnillo, Esq., Day Pitney LLP

Jay H. Sandak, Esq., Carmody Torrance Sandak & Hennessey LLP 

Ernie F. Teitell, Esq., Silver Golub &Teitell LLp

  • Have you ever considered starting a charitable foundation?  Don’t know where to start?
  • Talk with local lawyers who have started their own foundations for their insights.
  • Our panel will also include representatives from Foundation Source and Fairfield County Community Foundation to discuss other types of charitable vehicles

TOPICS:

  • Statutory Framework
  • Characteristics of a Private Foundation and their alternatives
  • Considerations when forming a Private Foundation
  • Qualifying for and maintaining tax exemption
  • Administration of a Private Foundation (including compliance, grant-making and investment considerations)

Registration: 12:00 to 12:15 pm


Pricing, including lunch & materials: $50 (Members); $75 (Non-Members)

*Reduced Rate FCBA Members: $35 *(Legal Administrators, Paralegals, Law Students & Law Clerks)

  • THE FAIRFIELD COUNTY BAR ASSOCIATION IS AN ACCREDITED PROVIDER FOR NY & CT CLE
  • 2 TRANSITIONAL & NON-TRANSITIONAL NY & CT CLE AREA OF PRACTICE CREDITS
  • FULL REFUND WITH 48-HOUR CANCELLATION NOTICE
  • Information on financial assistance is available upon request

http://fairfieldbar.org/?post_type=events&p=8617

 


The Enormous Cost of Cerebral Palsy Caused by Doctor Negligence

Richard A. Silver

November 6, 2018 

The cost of care for a brain-damaged child as the result of physician medical negligence is enormous.  Extensive, costly supportive care is required for cerebral palsy in children and often continues into adulthood.  The lifetime cost of caring for someone suffering from cerebral palsy at birth is projected into the millions of dollars (Centers for Disease Control and Prevention. MMWR 2004; 53-57-9).

The services that can be needed for Connecticut cerebral palsy care include:

  • Medical evaluations and medical care
    • Neurologic, orthopedic, gastroenterological, surgical
  • Hospitalizations
  • Home nursing and/or skilled nursing facility
  • Diagnostic tests and laboratory procedures
  • Therapeutic evaluations and treatments
    • Occupational, speech, physical, feeding/oral/communication
  • Rehabilitation, orthopedic, mobility equipment
    • Braces, walkers, wheelchairs, modified vans
  • Prescription medication
    • Tube feeding nutrition
    • Gastrostomy tube equipment
  • Support care for family (respite, family counseling, education)
  • Home modifications
  • Special education

The costs of medical care, psychologic and physical therapy continue to increase every year – and at rates greater than the inflation rate.  As a whole, consumer prices for medical care have increased 98% since January 1997 — compared with a 50% increase for all items over that same period.  Specifically, since January 1997, consumer prices for inpatient healthcare services have increased 195% and prices for outpatient healthcare services have increased 200%.  Over that same period, consumer prices for prescription drugs have doubled, as have prices for nursing homes and adult day services (Bureau of Labor Statistics. Spotlight on Statistics: A Look at Healthcare Spending, Employment, Pay, Benefits, And Prices. June 2016)

Unfortunately, public funding, support services and facilities for Connecticut brain-damaged children and adults are extremely limited and are often simply not available.  Parents of these children need to rely on their recoveries from medical malpractice cases to provide the required lifetime care for their children.  Without those funds, average parents do not have the resources they need and cannot provide adequate care for their children.

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


Medical Literature Resources for the Medical Malpractice Attorney

Richard A. Silver

November 2, 2018 

Medical malpractice attorneys conduct medical research on medical issues in the particular cases in which they are involved. It is my opinion that in addition to this case-specific research, it is helpful to keep up-to-date with current medical literature.

The New England Journal of Medicine is an excellent source to keep current with major medical breakthroughs. This periodical comes out weekly.  The articles are peer reviewed and are heavily relied on by experts in the field.  https://www.nejm.org

In addition, I have found the New England Journal Watch monthly publications are extremely helpful.  They contain summaries of important, peer reviewed articles that have been published throughout the U.S. and internationally.  These include, for example, Obstetrics and Gynecology, The Lancet (an English publication), Nature, JAMA and Journal of Urology.  https://www.jwatch.org

I have found that the series that are helpful in my work are Women’s Health, Emergency Medicine, General Medicine and Hospital Medicine. Other Watch series include Cardiology, Gastroenterology, Infectious Disease, Neurology, Oncology, Hematology, Pediatrics, Adolescent Medicine and Psychiatry.  These publications can be ordered through the Massachusetts Medical Society — Jwatch.org.  The Journal Watch publications also include comments on recent medical news; for instance, the FDA approval of a new migraine drug.

In addition, I have found the The Medical Letter on Drugs and Therapeutics periodical to be helpful in evaluating drugs in cases that involve malpractice in prescribing pharmaceutical drugs.  https://secure.medicalletter.org

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

 


Cerebral Palsy – Was It Caused by Doctor Negligence?

Richard A. Silver

April 11, 2017 

When complications arise during the birth of a baby, the result can be heartbreaking injuries to the infant or the mother.  Birth injuries are some of the most devastating personally and financially and are often complicated to prove.  These injuries can be extensive — impairment of motor function, muscle control, muscle coordination, muscle tone, reflex, posture and balance.

Cerebral palsy is actually caused by brain damage, such as a brain injury or by the abnormal development of the brain, and it can be caused by medical negligence at or around the time of birth.

Cases of cerebral palsy caused by medical negligence can occur when the physician fails to follow the proper procedures as defined by the mandated medical standard of care, which cause the baby to suffer from lack of oxygen, bleeding, head trauma or other injuries.  The most common reasons include:

  • Delay in delivering the infant, causing oxygen deprivation
  • Failure to appropriately monitor fetal heart rate before and during labor and birth
  • Failure to identify umbilical cord problems, such as a prolapsed cord
  • Failure to correctly use forceps or vacuum extraction during delivery
  • Failure to plan and schedule a cesarean section when a baby is too large to safely pass through the birth canal
  • Delay in performing (or failing to perform) a medically necessary cesarean section
  • Failure to detect and/or properly treat infections in the mother during pregnancy

In order for parents to consider filing a lawsuit in these cases, there must be proof that the doctor acted in a negligent manner and that this negligence caused the baby to develop cerebral palsy.


Sorry Isn’t Enough: Apology Laws Don’t Limit Doctor’s Risk of Medical Malpractice Lawsuit

Richard A. Silver

March 30, 2017 

Apology laws are designed to reduce medical malpractice lawsuits by allowing doctors to apologize to patients or their families, with those statements prohibited from being admissible in a lawsuit. However, a recent Vanderbilt University study found that these laws do not limit medical malpractice lawsuits.

After analyzing 3,517 malpractice claims, the researchers found that apology laws do not have a statistically significant effect on the probability that a surgeon will face a medical malpractice lawsuit. However, they increase the probability of a lawsuit being filed against other types of doctors because the apologies may alert patients to nonsurgical errors they would not have discovered otherwise, such as misdiagnosis or failure to refer, which can encourage them to file a lawsuit.

Wouldn’t it be better for patients if rather than “sorry isn’t enough,” doctors would never have to say they’re sorry because medical errors were eliminated from every type of hospital setting?


Thoughts Raised by the Article ‘Hospitalists and the Decline of Comprehensive Care’

Richard A. Silver

September 29, 2016 

According to a recent article in the New England Journal of Medicine (“Hospitalists and the Decline of Comprehensive Care,” September 15, 2016), the hospitalist model has provided such benefits as reductions in length of stay, cost of hospitalization and readmission rates – all hospital-defined metrics.  But what is its impact on overall health, total costs and, most critically, its benefit to patients?

I see several issues raised by this increased reliance on hospitalists.  Most importantly, it can be highly disconcerting for patients to discover that the physician who knows them best will not be able to see them at their moment of greatest need — when they are in the hospital, facing serious illness or injury.  Isn’t it much better for patients in these situations to be talking to someone they trust and who knows them and their medical history?

In addition, as the number of physicians caring for each patient increases, the depth of the relationship between patient and physician tends to diminish — a sad counterpoint to the patient–physician relationship as the core of good medical care.  This also creates greater opportunities for miscommunication and discoordination, particularly at admission and discharge, between community physicians and hospitalists as well as between hospitalists and other hospitalists. The result may be failures to follow up on test results and treatment recommendations.

Finally, as community physicians treat hospitalized patients less frequently, their skills in hospital care may decline, while hospitalists who never see outpatients may never understand patients’ lives outside the hospital.  This fragmented patient care model may cause physicians to find it more difficult to provide truly integrated care.

In my view, the key to comprehensive patient-centric care is communication between doctor and patient and knowledge of the patient’s condition and past treatment.  By their very definition, hospitalists are not in this position and their utilization does not assist in the necessary communication of patient information to ensure comprehensive, patient-centric care.

 


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