New York Medical Malpractice Law in Action

At least 44,000 Americans die each year from medical errors—more than from car accidents, AIDS or breast cancer, according to a study from the Institute on Medicine.

But it is the civil justice system and jury verdicts against providers of faulty medical care that are the best method for keeping patients safe, says Thomas Moore, a New York City lawyer who concentrates in medical malpractice cases.

Verdicts, for instance, like the $8.5 million awarded last year against Mt. Sinai Hospitaland a neurosurgeon who jurors found had failed to provide adequate follow-up care following brain surgery on a postal worker who then developed severe brain problems.Litigating these kinds of cases is critical to medical safety, says Moore, who represented the woman and her husband in the jury trial in Manhattan.

“These statistics demonstrate that there is a huge degree of medical negligence,” says Moore, who has won scores of multi-million dollar medical malpractice verdicts againstNew York hospitals and doctors over his 20-plus-year career. “The system of civil justice, while not perfect, is a huge positive in reining in malpractice and protecting the public.”

Civil lawsuits are an essential deterrent to medical errors because the system for disciplining doctors has not operated well enough in removing the worst offenders, Moore says. “Even when they are policed in their own states, some doctors go to anotherstate and pick up practicing medicine there as if nothing happened,” he says. But lawsuitsand judgments provide records that give the public the ability to monitor the safety recordof specific doctors, he notes.

The plaintiff in the case, Karine Aquilino, was a postal worker in her early 30s when shebegan feeling dizzy and having difficulties with walking. Doctors determined that she had been born with hydrocephalus, a condition which causes fluid to accumulate in thebrain. Aquilino was referred to Dr. Isabelle Germano, a neurosurgeon on staff at Mt.Sinai Hospital in Manhattan. In September 2000, Germano performed surgery to insert ashunt into her patient’s brain to drain away the excess fluid.

A few weeks after Aquilino was discharged from the hospital, she began to slur her words and had trouble swallowing, key signs that the shunt was not working properly. But the patient and her husband were not told to watch for these symptoms, the lawsuitclaimed. When her condition worsened, including the loss of her bowel control, her husband called Dr. Germano. According to the plaintiffs, instead of urging them to comeimmediately to Mt. Sinai, Dr. Germano told them to get a CT scan, thereby losing critical time for averting serious brain injury.

The CT scan showed blood leaking in her brain, a potentially life-threatening condition. Yet it took another eight or nine hours before emergency brain surgery was performed. The plaintiffs rushed to Mt. Sinai Hospital but sat in the emergency room for three hours before Aquilino saw a doctor, according to the lawsuit. Another five or more hours passed before Dr. Germano performed surgery to release pressure on Aquilino’s brain, but by that point, she had suffered brain damage, the plaintiffs claimed. Aquilino slipped into a near- comatose state for a year, and was admitted to a rehabilitation center where she lived for months. She also developed an infection in the shunt and underwent five more brain surgeries. While Aquilino has recovered many of her functions, today she still has significant difficulties with walking, talking, and basic tasks such as housework.

Moore and the plaintiffs claimed that the hospital and Dr. Germano deviated from standard medical care, and the jury agreed.

The verdict of $8.5 million was compensation for Aquilino’s pain and suffering, lost earnings, and future medical expenses. The defendants did not appeal the verdict, and the plaintiffs have already received the money awarded to them.

“We respect the jury’s verdict but disagree with the findings,” says James S. Brown of Wilson Elser Moskowitz Edelman & Dicker, attorney for The Mount Sinai Medical Center.

The defense contended that the standard of care was met in performing numerous surgeries on Aquilino and that an unrelated condition developed after the patient was discharged from Mount Sinai, which was responsible for many of her deficits. Elevenquestions on liability were submitted to the jury, only two of which resulted inthe plaintiff’s verdict, Brown says. Neither of the two dealt with the performance of the surgeries, says Brown, and the defendants maintain that the surgeries were properly performed.

“The system of civil justice, while not perfect, is a huge positive in reining in malpractice and protecting the public.” – Thomas Moore

The defendants did not appeal, Brown said, because “appeals are generally limited to questions of law. The trial did not involve questionable legal rulings. Our disagreementwith the jury’s findings is not a basis on which to successfully appeal.”

Moore says that while doctors are of course unhappy when they themselves are sued, many of them often confide to him, off the record, that civil lawsuits serve an important purpose. “Many of them will say to me that this is positive, that in terms of medical negligence our civil justice system is a positive—although of course, their statements on the record are the exact opposite,” he says.

Jury verdicts “are not the only deterrent we have, but they are the best one, and withoutthem society would be very, very gravely at risk,” Moore says. “Do [medical malpracticeverdicts] do away with malpractice? No, although I wish we could say we do. But weare standing up against it and showing the medical community we will not ignore it.”

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New York Medical Malpractice Law in Action