Legal Caps on Pain are Wrong

Caps on pain and suffering and the loss of quality of life of victims of medical malpractice are not a legitimate solution to recent insurance-rate increases. Caps only unfairly discriminate against those patients who have been injured the most seriously, or those too young or old to show an economic loss from their injuries. In California, which has such a cap, victims of medical malpractice have had difficulty in retaining attorneys to take their cases, because typically malpractice cases are difficult, time-consuming and expensive to litigate. In New York attorneys in malpractice actions are forced to accept reduced fees because of legislation that has been in effect for many years. By placing such minimal caps on a victim's potential compensation for his or her pain and suffering and loss of enjoyment of life, in addition to the already imposed legal fee cap, the courthouse doors will clearly close for good for many legitimate victims of medical malpractice. This is exactly what the malpractice insurance companies would like to see.

Solving Malpractice Costs

This article is on display in my office. It appeared in Newsday on July 24, 2007. It is entitled "Don't Blame the Victims: Other ways to solve malpractice costs."

Costly medical malpractice insurance is a real problem, particularly on Long Island. Unfortunately the solution most often touted - limits on jury awards - is bogus. The debate over the rise in the cost of premiums has to get beyond demonizing trial lawyers if solutions are to be found.

Nobody likes being sued. And trial lawyers are a tantalizing target for retribution. But its the people they represent - those injured due to medical negligence painstakingly proved in a court of law - who would be the victims of dollar limits on damages for pain and suffering.

There's no magic bullet to miraculously control the cost of malpractice insurance. So debilitated patients shouldn't be singled out to bear the brunt of reform, when there are so many other players in this drama with deeper pockets.

The problem was laid out last week by Newsday reporter Ridgely Ochs. The cost of medical malpractice insurance is on the rise in New York after years of relative stability, and the highest rates in the state are here on Long Island .

With HMOs and insurers playing hardball to keep a lid on costs, doctors are getting squeezed. Some are altering their practices: ob/gyns, for instance, opting to stop delivering babies. That's worrisome and, if unaddressed, could become a problem for patients. But the assertion that all this is being driven by rapacious lawyers is unconvincing.

The size of jury awards has gone up in recent years. But according to the Center for Justice and Democracy, a consumer group that tracks such things, payouts from verdicts and settlements have risen no faster than the rate of inflation in medical costs. And while some doctors have left or altered their practices, many have set up shop on Long Island , driving an overall increase in the number of obstetricians and surgeons, including neurosurgeons, in the area.

Still the cost of insurance is a problem, and there are approaches to slowing the increases that merit consideration. A specialized medical court without juries, for instance, or a no-fault system for claims involving neurologically impaired infants. A crack down targeting the licenses of incompetent or chronically negligent doctors would help. So would still penalties for lawyers who filed frivolous suits.

There are bound to be other, more creative ideas. Unfortunately, they may never be explored if the debate remains fixated on attacking damages awarded to patients for their pain and suffering as the root of all evil.

Protection of Construction Workers and Workers in the Trades under the NY state "Safe Place to Work Laws"

In NY state, construction workers in the “trades” (carpenters, plumbers, electricians, steel workers, steamfitters, laborers, masons, painters, and every other trade) are protected under the “safe place to work” laws. These laws are known in the legal arena as the “labor law” and there are different sections covering varying types of work related activities and injury causing situations. Labor Law cases are very favorable to construction workers. These laws hold the building/structure owner as well as the general contractor liable for certain injuries suffered by workers in the trades. What this really means is that in addition to having a worker’s compensation claim against their employer, the injured worker may also have the right to bring a lawsuit against the owner of the building/structure and against the general contractor overseeing the job. Thus, the injured construction worker has two claims.

In order for the safe place to work laws to apply and provide protection to the injured worker, certain criteria must be met. First, the work being performed by the injured worker must be the type that is covered under the law. All trade work is typically covered if its being done for construction, erection, repairing, demolition, or altering of a building or structure. The injury does not have to occur on a construction site or project. As long as the work being performed is trade type work there is typically protection under these laws.

So, for example, if the trade worker’s company was hired to by a building owner to simply paint, replace electrical wiring, or install an alarm system, or to install a new boiler, these types of activities will normally be covered under these laws.

In addition, the safe place to work laws concentrate on providing workers in the trades with protection from elevation-related accidents, such as falls from a height (ladders, scaffolds, platforms, etc.). When a worker falls from a height and is injured because a ladder/scaffold is inadequate, unsecured, unstable, or defective these laws mandate “absolute liability” upon the owner and general contractor. This is true regardless of who owned the ladder or scaffold. The owner and general contractor are required to ensure that workers working at a height are provided with proper safety devices. So, if a ladder or scaffold collapses, breaks, tips, slides, etc., and causes injury to the worker, both the owner and general contractor are liable. The same is true if materials, tools, or supplies fall from a height striking a worker below. There is even a special section of the law providing heightened protection for window washers who are injured on the job due to height/fall related injuries.

The safe place to work laws also provide protection for injuries caused by slipping/tripping on a work site, injuries caused by lack of eye protection, injuries caused by electrocution, injuries caused by unguarded power equipment and many other types of trade related activities.

Of course with all laws there are certain exceptions and exemptions. It is crucial to hire a lawyer who is fully familiar with these laws and has had repeated success with lawsuits against owners and general contractors. At Buttafuoco & Associates, Daniel P. Buttafuoco and Mark T. Freeley have a proven track record of success in handling labor law cases and in taking on the owners, general contractors, their insurance companies, and their attorneys. Dan and Mark take a personal interest in every injured trade worker and prepare an individual case strategy for every client. The injured worker does not become a case number, as is the common practice in other firms, but instead becomes a case partner. We help injured construction workers rebuild their lives.

Frivolous Lawsuits

Everywhere I go, whether it be a dinner party, nonprofit organization meetings, church or on the golf course, people always ask me why trial lawyers file frivolous medical malpractice lawsuits. "Don't insurance companies raise our rates when they have to pay for those suits?" they ask.

Here's my answer: Frivolous lawsuit claims are overblown. They're circulated by powerful corporate interests that want to escape accountability for the dangerous products they market to the public. Government agencies that track civil suits report declining numbers.

The real problem is the insurance company gouging physicians. Annual statements of the 15 largest companies handling malpractice insurance show that premium collections increased by 120 percent between 2000 and 2004, while claims rose by only 5.7 percent.

The rate of premium increase was 21 times greater than the rate of increase in claims payments during the same period. None of that has anything to do with lawsuits and everything to do with the insurance industry stuffing its pockets at the expense of the American public.

Voted Best Lawyer of Long Island 2008!

Daniel Buttafuoco, of Buttafuoco & Associates, has just been voted the #1 lawyer on Long Island for 2008 by readers of The Long Island Press. This is the second year in a row Dan has won the honor and both he and his firm wish to thank all those who took the time to vote. Winning this honor shows that we are successfully doing our job and our clients are happy, which is of utmost importance to us. We will strive to continue our success and make the coming year even better. Thank you again!