EXTRA PROTECTION FOR PATIENTS

Over the last decade, there have been repeated revelations of harm caused by prescription drugs that had been approved by the FDA.  Exposes by the news media have documented the short comings of the regulatory approval process and the failures of the Drug Industry to properly test its products before they go to market.  In a January 2006 article in Consumer Reports, “Prescription for trouble” the results of the publication’s investigation revealed that “tens of millions of people may unknowing have been exposed to the rare but serious side effects of a dozen relatively common prescription-drug types”.  The article attributes the problems to “serious flaws in both the initial drug approval process and the monitoring of products after they reach the market”.  http//www.consumerreports.org/cro/health-fitness/drugs-supplements/common-drugs-hidd           

Instead of making reasonable efforts to improve drug safety, the industry has responded by lobbying the federal government to outlaw lawsuits by injured patients against the responsible drug companies.  This has taken the form of asking Congress to outlaw lawsuits when drugs have FDA approval or pushing the FDA to expressly prohibit lawsuits by regulation.         

On Tuesday, May 20, 2008, the Star-Ledger, in an editorial “Extra protection for patients” came out against these efforts because “the threat of lawsuits creates much-needed financial incentives to keep drug companies honest.  Freeing pharmaceutical companies from that threat would only encourage bad behavior and put the public at increased peril, a risk too great when dealing with an industry in which unsafe products can cause serious injury and even death”.  You can read the full editorial at www.nj.com/starledger/stories/indexssf?/base/news-2/1211258189145710.xml&coll=

Ron Grayzel

Rights of the medical malpractice plaintiff in New Jersey are limited by the provisions of the New Jersey Tort Claims Act (“TCA”). The Act requires that anyone intending to sue The University of Medicine and Dentistry of New Jersey (“UMDNJ”), any of its closely affiliated hospitals, or its faculty, fellows or residents needs to file a Notice of Claim within 90 days of the “accrual of the action.” A medical malpractice action has been found to accrue when the patient discovers not only the injury, but also reasonably should have known that this injury was due to the negligence of another. If the plaintiff misses this 3 month window, then the TCA will bar him forever from filing his claim, unless he can demonstrate “extraordinary circumstances” for his failure to file within the period of time prescribed.

The New Jersey Legislature enacted the TCA with the intent of allowing public entities to investigate claims while evidence is fresh and to allow them to settle meritorious claims early. Difficulty with its notice provisions arises because the status of an UMDNJ hospital or physician employee is not always clear. Employee physicians frequently practice at private hospitals or free-standing surgical centers. In addition, physicians-in-training rotate through dozens of hospitals with only the loosest of affiliations with UMDNJ.

The New Jersey Supreme Court has examined the provisions of the physician notice requirement of the TCA in three recent cases: Eagan v. Boyarsky, 158 N.J. 632 (1999), Lowe v. Zarghami, 158 N.J. 606 (1999) and Ventola v. N.J. Veteran’s Memorial Home, 164 N.J. 74 (2000). The Court has held that UMDNJ needs to inform its patients that their attending physicians are public employees protected by the Act. In Eagan, the Court reiterated that the notice provisions of the TCA were not intended as “a trap for the unwary.”

It is imperative that if you have a medical malpractice claim that you must take wahtever steps you can to dientify whether the person or facility who provided treatment is protected by the TCA. Levinson Axelrod can help you investigate the claim and determine if you need to file the notice, file the notice for you and make sure that your rights are protected.

There are may circumstances that you may not think that a TCA notice is required and it is. We suggest that when in doubt, contact an attorney ASAP.

Adam L. Rothenberg
Rosemary E. McGeady, MD

In a buyer’s market with dropping housing prices and dropping interest rates, the numbers of open house signs are increasing exponentially. It is unusual to take a drive on a Sunday without, at least, seeing three open house signs. As you are searching for your dream home or your profitable investment, you may want to consider that you, as a visitor to an open house, if injured during your visit to that open house, have rights. Which individuals have a responsibility for maintaining the premises during an open house; the broker, the owner, both, or neither? As it turns out both the broker showing the house and the owner of the house owe a duty of care to the open house visitor.

Traditionally, under common law, a landowner’s tort liability towards a person who has been injured due to a dangerous condition on private property is based on the status of the person who was injured. Under common law there are three categories of entrants on private property: business invitees, social guests, and trespassers. An owner of a private premise has a duty only to warn trespasser of artificial conditions that pose a risk of death or serious bodily harm. As for social guests, owners have a duty to warn of any dangerous conditions that the owner had actual knowledge of, which the guest is unaware. However, an owner is not obligated to discover concealed defects. The highest duty of care of an owner owes is to a business invitee. An owner has a duty of reasonable care to guard against any dangerous conditions on his or her property that the owner knows about or should have discovered. In this regard, an owner has a duty to conduct a reasonable inspection to discovery concealed dangerous conditions. In certain circumstances, a court may determine based on public policy considerations that the common law should not be used. Instead, a court may decide to allocate the duty of care based on the general tort obligation to exercise reasonable care against foreseeable harm to others, no matter what type of category they fit into.

In the case of the open house scenario, the New Jersey Supreme Court was faced with the task of deciding whether the traditional common law principles were applicable or whether the general tort obligation was applicable. Ultimately, the Court decided that the traditional common law premises liability theory did not adequately address the open house scenario. Open house circumstances were not comparable to any of the rigid categories of entrants under the traditional common law notions of premise liability. In an open house situation, you have a broker who is the agent of the owner, but is not in control of the premises like an owner. In addition, you have an entrant that is not a trespasser and is arguably neither a business invitee nor a social guest. Therefore, the Court had to determine what degree of duty to impose on the broker, in light of the considerations of public policy, fairness and justice. The Court felt that in this situation there was a dual invitation and therefore, a shared responsibility on the part of the owner and broker for the well-being of potential purchasers, since they share the benefits of the person’s presence on the property. Implicit in the broker’s invitation to customers is some degree of responsibility for their safety while visiting the premises. Furthermore, the Court found that the owner’s duty of care concerning their premises was non-delegable.

Ultimately, the Court determined that a broker is under a duty to conduct a reasonable broker’s inspection when an inspection would comport with customary standards governing the responsibilities and functions of real estate brokers with respect to open house tours. The broker is under an obligation to examine the premises to ascertain the obvious physical characteristics that are material to saleability and those features that open house visitors would normally examine during a “walk through.” There is a duty to warn of any such discoverable physical features or conditions of the property that pose a hazard or danger to such visitors. However, there is not duty to warn of dangers not otherwise known or that would not be revealed during the course of a reasonable inspection. Therefore, brokers have no duty to inspect for latent defects that are hidden, of which the broker has no actual knowledge. Moreover, the broker does not have a duty to remedy the hazardous or dangerous condition, only to warn against the condition.

In addition, the court noted that the owner has a non-delegable duty towards invitees, including open house visitors, to make reasonable inspection of property and remedy any reasonably discoverable defects. The owner is primarily liable for the safety of all invitees, a duty that is higher than the broker’s duty of care.

So next time you are going from open house to open house on a warm Sunday, know that you have rights in the event you are injured on the premises of an open house and listen carefully to any warnings given by a broker to avoid an injury.

After making the important decision to seek prompt medical treatment for a personal injury, the next step is to effectively communicate with your medical care provider. Effective communication with your medical care provider has two benefits. First, the medical care provider utilizes all the information provided to him or her to develop an accurate diagnosis and an effective treatment plan. The type of information you give and the accuracy of that information directly affects your recovery. Second, effective communication documents and substantiates the timing, extent, and duration of your injuries. If you do decide to pursue a lawsuit, this documentation will assist your attorney in proving your case. Personal injury cases are complex and intricate, and success is not guaranteed. Effective communication with your medical care providers is one thing you can do to strengthen your case.

While making the decision to seek prompt medical attention is not complex, effective communication with the medical care provider you choose is not so simple. Patients often become frustrated by the challenges of communicating their pain and symptoms to their medical care providers. A strong patient-doctor relationship can help you feel more comfortable describing your pain and can facilitate a doctor’s understanding of your pain. A few simple guidelines may aid you in the process of effective communication.

If you have seen other medical professionals prior to a doctor visit or underwent prior diagnostic testing, such as x-rays or MRIs, bring the pertinent medical records you have in your possession to your appointment. Also, you may want to keep a list of prior treatment, to give your doctor a more complete description of the circumstances surrounding your pain. You can also, during the days and weeks leading up to an appointment, jot down any questions you have. It happens to everyone, before you get into the examination room you have multiple questions, but when the doctor asks, somehow they all escape you. Jotting down the questions you have as they come to you will help avoid this phenomenon.

In addition, it is often difficult to find the right words to describe the pain you are feeling. If you have trouble describing your pain, the following words may be helpful: aching, burning, nagging, sharp, throbbing, stabbing, radiating, and sore. Being able to accurately describe to your doctor exactly what you are feeling will greatly help your doctor in accurately diagnosing and treating you.

Next, when you are meeting with your medical care provider do not be afraid to ask for a laymen’s explanation of what the doctor is telling you, if you do not understand. You are paying for your time with the doctor; you should never be timid about asking for a more clear explanation. It may even be helpful to bring someone with you to help absorb and remember everything the doctor says and can even help you to remember your pain and symptoms.

Lastly, BE HONEST. Do not lessen the pain you are experiencing to protect the feelings of your doctors or therapists. If the treatment your doctor or therapist is prescribing you is not helping, let them know as soon as you realize its ineffectiveness. It is not your job to boost their confidence; it is their job to provide you effective treatment.

By following these helpful guidelines you will be more able to articulate your pain experience to all your medical care providers. It is important to realize that these techniques can be used with any type of medical care provider, at any stage of your treatment. Effective communication throughout your treatment will ultimately assist your medical care providers in accurately diagnosing you and in creating an effective plan of treatment, while simultaneously documenting and substantiating your pain, which assists your attorney in proving your case if a lawsuit arises. Effective communication, no matter what your situation is or where you are in your treatment is a must.

Allstate Insurance Company trumpets that it has a “commitment to strong principles and the highest ethical standards”. Everyone is familiar with its mantra: “You’re in Good Hands with Allstate”. An expose on the claims practices of Allstate Insurance Company authored by respected journalist, Paige St. John published on April 6, 2008 in Florida’s Sarasota Herald Tribune critically examined corporate documents of the insurer which revealed claims strategies that promoted corporate profits at the expense of the carrier’s policy holders. The article, “How a get-tough policy lifted Allstate’s profits” can be found at:

http://www.heraldtribune.com/article/20080406/804060659/1661

According to Paige St. John, “For more than a decade, Allstate Insurance Company kept a secret from its auto policyholders- a national strategy to force customers to accept reduced cash payouts or face years in court”. The article critically examined a previously secret treasure trove of 12,000 documents that revealed “how the nation’s second-largest insurer systematically cut payments” to insured’s “as a way to boost profits”.

According to the article, the two components of the Allstate strategy included:

-Use of its own adaptation of a software package known as “Colossus” to lower payouts for bodily injuries by more than 20%
-Pressure on its claimants “to accept quick settlement without the help of lawyers”. “Policyholders who try to fight for more money face Allstate attorneys coached to refuse to negotiate and to drag out litigation”.

The article indicates that Allstate hired a consultant, McKinsey & Co. to formulate strategies to foster success. In PowerPoint presentations and discussion papers drawn up for Allstate executives, McKinsey used “boxing gloves” to characterize how Allstate should treat policyholders who balk at settlements. For customers who hired lawyers, McKinsey urged, “align alligators, adding these instruction: “sit and wait”.

PowerPoint slides also show the consultants advised the company to convince their insureds that they did not need lawyers and then to target those who disregarded that advice for denials, delays and litigation. Another slide purportedly urged it client to “Win by exploiting the economics of the practice of law”. The article quotes a former Allstate lawyer, Robert Healy, stating that “They put pressure on people by establishing that they are a bully in the market”.

Allstate was sanctioned by different courts for failing to provide these documents in litigation. After considerable publicity about these documents, Allstate released some of the documents on its website:
http:/media.allstate.com/releases/4395-allstate-acts-to-dispel

Allstate has produced record profits of 4.9 billion in 2006 and 4.6 billion in 2007.

There is nothing more disheartening for an attorney than discovering that there is inadequate insurance coverage to compensate a client for the injuries that he or she sustained in an accident. Even harder, is the task of informing a client that was severely injured about this harsh reality.

Recently, I represented a client whom sustained significant injuries in an automobile accident, only to discover that there was woefully insufficient insurance coverage to compensate this individual. This client was in an automobile accident with another driver who was insured with a limited split limit policy of $15,000/$30,000. What that meant is that the defendant only had $15,000 in insurance coverage per person, per accident. If there were multiple parties injured, there would have been a total of $30,000 that would have had to be divided among the injured parties.

This would not have presented a problem if the client would have had sufficient Underinsured Motorist Coverage (UIM), under her own insurance policy. Hypothetically, if the client would have had $100,000 in UIM coverage, we would have been able to obtain another $85,000 under her own insurance policy, which constitutes the difference between the third party and first party insurance coverage. However, my client’s policy had limited UIM coverage of $25,000. Thus, there was only an additional $10,000 of insurance coverage that was available beyond the $15,000 underlying policy.

The most difficult part of all, was informing my client, that had to undergo multiple surgeries due to the injuries she sustained, that there was barely any insurance coverage to compensate her. When she asked how this could be, she was very upset to learn that she could have protected herself under her own insurance policy with adequate UIM coverage.

Thus, when renewing your automobile insurance policy, make sure that you have adequate underinsured motorist coverage to protect yourself and your family. If you do not protect yourself and your loved ones, then who will?

This week, the Star-Ledger published a series of articles documenting many of the issues involved in a New Jersey Workers’ Compensation claim. These include insurance carriers that are unwilling to provide timely and effective treatment and pay appropriate temporary disability benefits. The articles also show, in graphic detail, how lengthy and difficult it is for an injured worker in the State of New Jersey to receive any award for permanent disability. Even more sadly, the Ledger made it clear how difficult it has become for Judges of the Division of Workers’ Compensation to effectively enforce their Orders when the insurance carriers for their employers refuse to comply.

Workers’ Compensation in State of New Jersey was never an “easy” area of the law. However, as these articles show, there no longer is such a thing as an “easy” case. In fact, without an attorney that specializes in Workers’ Compensation, a difficult case is nearly impossible to move forward through a treacherous system.

What these amazingly researched and details articles do not show is that some injured workers are indeed receiving all of the benefits that they are entitled. Here, at Levinson Axelrod, we know that our job is to work smarter than our competition and to use every available resource to get benefits for our clients. Despite overwhelming odds, we are in Court, every day fighting for the rights of injured workers.

To paraphrase Mr. Wheaton from the commercial – now, more than ever, it really does matter which Workers’ Compensation attorney you choose.

The articles can be found here: http://tinyurl.com/5rzlru

Although these terms may sound like they mean the same thing, in reality they are two distinct areas of the law. A survivorship claim is based on damages that the deceased has suffered to his person or property prior to his death. However, a wrongful death claim is based on the damages suffered by others as a result of the decedent’s death.

A survivorship action is brought under the Survivor’s Act N.J.S.A. 2A:15-3 which preserves any cause of action that the decedent would have been able to bring had he or she survived. This allows a plaintiff to pursue any cause of action that the decedent would have had. On the other hand, a wrongful death action is brought under the Wrongful Death Act N.J.S.A. 2A:31-1 which allows a surviving dependent to bring a claim for financial losses sustained as a result of the death of the decedent. The fundamental purpose is to provide compensation for those who will suffer financially as a result of the wrongful act of another.

It is important to bear in mind that these are two separate causes of action. A person who brings a wrongful death action will not also recover for a survivorship claim unless such a claim is brought. A plaintiff is capable of recovering under both statutes as long as the decedent has suffered some personal or property loss before death, and as a result of the death, the plaintiff has also suffered a financial loss. A common example occurs when the “breadwinner” of the family is killed by the wrongful act of another. However, before dying, the “breadwinner” suffers tremendous pain and suffering for several days. This scenario would allow the spouse to recover the losses sustained for pain and suffering, as well as the lost financial contributions that will result from the tortious conduct of another.

The primary difference between these two causes of action is who must suffer the damages. In a survivorship action, the claim is brought based on what damages the deceased suffered before he or she died. On the other hand, in a wrongful death action, the claim is brought as a result of damages suffered by designated beneficiaries as a result of the decedent’s death.

If the person dies leaving a will, the potential plaintiff who has the authority to bring the cause of action will be the person who is named as the executor or administrator of the estate. Prior to having this authority, the person named in the will must first become appointed executor or administrator through the county surrogate.

However, a problem arises when a person dies intestate (without a will). Because there is no will to determine who has the authority to bring a cause of action, an administrator must be appointed by the court. For a wrongful death case, the surviving family member must be appointed as an Administrator Ad Prosequendum. This simply means that a family member is appointed to prosecute or defend a certain action involving the estate. For a survivorship case, the person bringing the claim must be appointed a general administrator. This person will be appointed to administer the entire estate of the decedent.

During the course of litigation, there are many times when a plaintiff will be required to give their account of the incident. Almost every time, their statement will be recorded either through auditory or written methods. The importance of telling the truth and being completely candid is especially important during such a process. This is because your adversary has access to these statements through the discovery process and if your case goes to trial and you give a statement that is inconsistent with an earlier statement, your adversary will take that opportunity to impeach you regarding your contradictions.

Demonstrating that the witness has previously made a statement that is not in agreement with his or her testimony at trial is a permissible and effective way to attack the credibility of that witness. In other words, the opposing counsel will try to discredit you in front of the jury which may decrease your chances for the recovery that you deserve. This technique has been called “one of the most valued tools of litigation.” Matter of Wolf, 231 N.J.Super. 365, 371 (App.Div. 1989). This “litigation tool” can be utilized even if your statements do not directly contradict each other. The courts take a liberal view and allow for the impeachment of any inconsistency in your line of statements.

The judicial system is based on discovering the truth. The use of these inconsistent statements helps to serve this purpose. The best way to avoid having your adversary attack you on the witness stand is to make sure that you don’t fabricate any story during the course of litigation. Of course, there are other ways, including the hearsay rules, that a party’s inconsistent statements may be used against them. However, that is a topic for another day. You should use this information to make sure that if and when you are confronted with a potential litigation situation, you refrain from lying and proceed to tell the truth. Otherwise, your little white lie may come back to haunt you in the long run. You should do whatever you can to help bolster your case and not destroy it.

During the confusing and stressful time after an accident, it is critical to see a medical professional as soon as possible to document your complaints of pain; whether or not you intend to bring a personal injury lawsuit at that time. Often-times, people feel that their injuries are simple sprains and strains which will resolve in a couple of days or weeks so they opt not seek the appropriate medical care. After the pain persists for multiple months, they then decide to go to see a medical professional only to learn that the “sprains and strains” which they originally self-diagnosed are in reality much more significant. It is at this point that most individuals who were injured by the negligence of others decide to take legal action.

First and foremost, the most important thing for all our clients is to ensure that they get the medical care and treatment they need. Treatment should be gauged upon need and its ability to help the person. We encourage our clients to seek treatment in order to provide curative and palliative care to protect their health. Secondarily, the prompt seeking of treatment documents and may substantiate the timing of the injury and the extent. WE encourage our clients to seek treatment for the primary purpose, but acknowledge that there may be a secondary purpose as well.

The insurance companies and defense lawyers who evaluate these personal injury claims are quite savvy and will use any means possible to persuade a jury that you were either not injured as a result of their client’s actions or that the injuries you are suffering from were pre-existing. The most common and one of the most effective arguments that they make is the lack of immediate medical attention. A typical argument to the jury may sound like this:

“Ladies and gentleman of the jury, Mrs. Smith will have you believe that she suffered a permanent, life altering injury in this accident in the form of a herniated disc in her neck. She will have you believe that the injury occurred at the moment of the accident, but doesn’t it seem odd to you that she did not see Dr. Jones for the first time until three months after the accident. There was no ambulance needed at the accident scene, no emergency room visits, no medical treatment and no documented complaints of pain to her neck for three months. If the injury was that bad, that significant, that life altering, isn’t it suspicious that she did not seek medical attention for such a long time? Wouldn’t a reasonable person who was truly injured with an injury such as this go to the hospital…”

The moral of the story is that if you feel any pain or discomfort as a result of an accident, it is advisable that you seek medical attention immediately. It would also be in your best interests to contact a doctor even if you do not have specific complaints of pain. Get yourself checked out. It is better to be safe then sorry. If it turns out that there is not significant injury and no lawsuit, you have lost nothing. In the event that your injuries are significant and permanent, you will have accomplished two goals: mitigating the injury through the immediate medical care/diagnosis/treatment and preventing the defendant from arguing that they could not have caused the injury because you never complained about pain for an extended period of time.

Personal injury lawsuits are very complex and there is no guarantee of success. Following these simple guidelines can help you to get the appropriate medical diagnosis and care, while at the same time taking one element away from a defendant who will try to make you out to be a liar.