New York Law Blog

A New York City man may finally see his day in court after waiting 11 years to have his medical malpractice case tried. Jeffrey Lichtman talks about Luis Berrios’ horrific ordeal with Our Lady Of Mercy Medical Center in the Bronx:

This is another tragic medical malpractice case that has been prolonged by our court system.  An already paralyzed man was put through tremendous torture because doctors took the law in their hands.  This paraplegic was pulled from his wheelchair, handcuffed to a hospital bed, and then forced to consume dangerous levels of laxatives for 27 hours.  He was then probed by doctors while police watched.  The hospital, Our Lady Of Mercy Medical Center in the Bronx, thought the man was a drug mule when he came in with stomach pain based on X-rays showing several spherical shapes they mistakenly identified as condoms stuffed with drugs.  They were gall bladder stones identified by a second radiologist later on.  After years of physical therapy the paralyzed man has still not gained full control over his own bodily functions.  After more than a decade this man will finally see his day in court.

Trolman, Glaser & Lichtman: Don’t settle for less!

Last year, CBS News reported on Marine Sergeant Carmelo Rodriguez and his battle with the medical malpractice system in regards to the military. While serving in the Marines, Sgt. Rodriguez was misdiagnosed by military doctors, saying a malignant melanoma was actually just wart. Years later, Sgt. Rodriguez was medically discharged due to his cancer, and due to a little known law called the Feres Doctrine, Sgt. Rodriguez’s family cannot bring a medical malpractice case against the government.

Feres v. United States, 340 U.S. 135 (1950), is a case in which the Supreme Court of the United States ruled that the United States is not liable under the Federal Tort Claims Act for injuries to members of the armed forces sustained while on active duty and not on furlough and resulting from the negligence of others in the armed forces. The opinion is an extension of the English common-law concept of sovereign immunity.

The practical effect is that the Feres doctrine effectively bars service members from successfully collecting damages for personal injuries, whether or not they were suffered in the performance of their duties. It also bars families of service members from filing wrongful death or loss of consortium actions when a service member is killed or injured.

The full CBS News report can be seen below. CBS reported earlier this year that the “Carmelo Rodriguez Military Malpractice and Injustice Act” is being introduced into Congress by New York state representative Maurice Hinchey.

Following up last week’s post on “never events” in regards to medical malpractice, here is the list of “28 errors that should never happen” from the National Quality Forum. The NPQ is a nonprofit health care safety agency, and this list represents “never events”, or avoidable errors.

1. Surgery on the wrong body part.
2. Surgery on the wrong patient.
3. Wrong surgical procedure performed on a patient.
4. Object left in patient after surgery.
5. Death of patient who had been generally healthy during or immediately after surgery for a localized problem.
6. Patient death or serious disability associated with the use of contaminated drugs, devices or biologics.
7. Patient death or serious disability associated with the misuse or malfunction of a device.
8. Patient death or serious disability associated with intravascular air embolism.
9. Infant discharged to wrong person.
10. Patient death or serious disability associated with patient disappearing for more than four hours.
11. Patient suicide or attempted suicide resulting in serious disability.
12. Patient death or serious disability associated with a medication error.
13. Patient death or serious disability associated with transfusion of blood or blood product of the wrong type.
14. Maternal death or serious disability associated with labor or delivery in a low-risk pregnancy.
15. Patient death or serious disability associated with the onset of hypoglycemia, a drop in blood sugar.
16. Death or serious disability associated with failure to identify and treat hyperbilirubinemia, a blood abnormality, in newborns.
17. Severe pressure ulcers acquired in the hospital.
18. Patient death or serious disability due to spinal manipulative therapy.
19. Patient death or serious disability associated with an electric shock.
20. Any incident in which a line designated for oxygen or other gas to be delivered to a patient contains the wrong gas or is contaminated by toxic substances.
21. Patient death or serious disability associated with a burn in the hospital.
22. Patient death associated with a fall suffered in the hospital.
23. Patient death or serious disability associated with the use of restraints or bedrails.
24. Any instance of care ordered by or provided by someone impersonating a physician, nurse, pharmacist or other licensed healthcare provider.
25. Abduction of a patient.
26. Sexual assault on a patient.
27. Death or significant injury of a patient or staff member resulting from a physical assault in the hospital.
28. Artificial insemination with the wrong donor sperm or donor egg.