Phelan, Phelan & Danek LLPAlbany Personal Injury Lawyer | Insurance Defense Attorney2024-03-12T19:16:37Zhttps://www.ppdlawoffice.com/feed/atom/WordPressOn Behalf of Phelan, Phelan & Danek LLPhttps://www.ppdlawoffice.com/?p=479112024-03-12T19:16:37Z2024-03-12T19:16:37ZThis arrangement, called a contingency fee, has been around for a long time. Plaintiffs’ lawyers have also for a long time been allowed to front certain costs and expenses associated with a lawsuit, although the patient must pay those costs back.
Even though contingency fees have been around for a while, according to one insurance trade journal, many members of the public do not fully appreciate how they work.
While in theory it helps those who have valid legal claims pursue them, the contingency fee also means that, effectively, providers accused of medical malpractice and their insurance carriers are paying both the patient and the attorney.
Another industry, called third-party litigation financing, is also emerging, and both medical professionals and those who defend them in court need to pay attention.
Third-party litigation financing can impact large and high-profile cases.
However, in the world of medical malpractice, the most common type of litigation financing is when a patient takes money from their lender for the patient’s living expenses.
Arguably, when a provider issues a letter of protection agreeing not to pursue a bill in exchange for a share of any recovery, they provider is engaging in third-party litigation financing.
In theory, the patient needs helps with bills and expenses while they are waiting for their settlement. Provided they recover funds, the patient then promises to repay the lender from their lawsuit. The lender may also collect interest, often at a handsome rate.
As is the case with a contingency fee, one problem with this type of funding is that it gives people an incentive to drive litigation forward even when the facts suggest they should do otherwise. After a funding arrangement, plaintiffs must recover enough money even to break even on their lawsuit.
Providers, insurers must deal with third-party funding in their strategies
Several states have taken steps to regulate third-party litigation financing. New York is not one of those states.
For now, law firms which defend against medical malpractice claims will have to account for the growing popularity of this type of lending in their legal strategies.]]>On Behalf of Phelan, Phelan & Danek LLPhttps://www.ppdlawoffice.com/?p=479092024-02-29T22:12:46Z2024-02-29T22:12:46Zis on the rise. Earlier this year, a New York jury ordered a hospital system to pay more than $100 million after its staff failed to recognize the signs of a stroke in a patient.
This example is not an anomaly. The average monetary settlement or award from medical malpractice lawsuits in 2023 was larger than any other year on record. Almost sixty cases that moved forward throughout the country had a final verdict of more than $10 million, and those who practice in New York often face higher dollar verdicts than other areas of the country.
What’s a doctor to do? You likely entered the profession to help the community, to heal those in need, and now you need to worry about multi-million dollar lawsuits. It hardly seems fair. Thankfully, there are steps you can take to mitigate the risk.
Three steps to mitigate the risk of a medical malpractice claim
In this case, the sports adage bears some truth: the best offense is a strong defense. These proactive steps can help reduce the risk of a medical malpractice claim during your tenure as a physician:
Document, document, document. Keep thorough and organized records. These can help to establish the reason for a chosen treatment option in the event of a lawsuit.
Remember your manners. There is evidence that a good bedside manner goes a long ways towards reducing the risk of a lawsuit. Take time to listen to your patients.
Follow the rules. Most notable: informed consent. Make sure patients receive this information and take time to answer questions if necessary. Also follow the acceptable standard of care for any given situation.
With these steps, you not only reduce the risk of a medical malpractice lawsuit but also put methods in place that help you have the information you need in the event you are forced to defend yourself against allegations of malpractice.]]>On Behalf of Phelan, Phelan & Danek LLPhttps://www.ppdlawoffice.com/?p=479082024-02-28T16:36:48Z2024-02-28T16:36:48Zthings medical professionals can do to prevent medical malpractice claims.
According to a network of doctors affiliated with Duke University, most medical malpractice claims happen for three basic reasons:
A doctor has a lapse of professional judgment. These lapses can involve not collecting enough information before jumping to what turns out to be a wrong conclusion. They also happen when a doctor does not fully analyze the case. The University said that so-called “defensive medicine”, or taking the most conservative route possible, is not a guarantee of good clinical judgment.
While lapses in judgment account for well over half of all medical malpractice suits, poor communication is also a significant contributing factor to claims. Poor communication can include gaps in documentation, failure to fully listen to a patient’s concerns or explain things in a way they can understand, or failure to communicate with other medical professionals.
There are some cases where a doctor falls short with respect to their technical skills, such as in the case of a botched surgery.
Doctors can follow some best practices to prevent claims:
Good documentation that shows why a doctor chose one diagnosis and treatment plan over another can go a long way in establishing that the doctor exercised good decision-making, even if their conclusion turns out to be wrong.
Communicating in an understandable way both to the patient and to all involved is key.
Many times, patients who have experienced a bad outcome, or their families, simply need some empathy and encouragement, as well as ongoing medical support. Doctors who get defensive over their work may be more likely to face a medical malpractice claim.
Not every lawsuit is preventable
Even a New York doctor who diligently follows best practices can still face a medical malpractice lawsuit during their careers. As this can happen even to the best doctors, they as well of those who provide their insurance should make sure they understand all their options.]]>On Behalf of Phelan, Phelan & Danek LLPhttps://www.ppdlawoffice.com/?p=479072024-02-12T18:26:06Z2024-02-14T18:21:55Zexpert witnesses be in your case? Well, if you are defending against a medical malpractice claim, expert witnesses will likely be the most important part of your efforts to gain a favorable result in your case.
Expert witness basics
An expert witness is, in short, someone who has specialized skill, knowledge or education in a certain field and who is able to testify with authority on areas in which the court or factfinders would need help in highly technical or scientific fields.
Obviously, medical malpractice cases deal with these types of detailed areas, as most people don’t know the specific terms or procedures involved in medical care. Expert witnesses in these cases may be doctors, nurses or even healthcare administrators, for example.
There are many ways in which expert witnesses might be involved in your medical malpractice defense strategy. They could explain the appropriate standard of care, or perhaps explain how a medical procedure should be performed. Or maybe they explain how a test is administered or interpreted. It just depends on the facts of your case.
One crucial aspect of expert witness testimony is this: the person’s qualifications must hold up upon examination. There is a chance that the other side might claim that your “expert” is not, in fact, an expert at all.]]>On Behalf of Phelan, Phelan & Danek LLPhttps://www.ppdlawoffice.com/?p=479062024-01-30T19:23:07Z2024-01-30T19:23:07Zopens the door to legal liabilities for the facility and its staff, tarnishing their reputation and eroding trust.
Best practices and policies
Key measures include recruiting qualified, trained and compassionate staff with the capability to deliver adequate and appropriate care. Conduct routine background checks and screenings for both staff members and volunteers.
Maintain adequate staffing levels and ratios aligned with resident needs and preferences. Check these levels regularly to ensure that your residents’ needs and preferences have not changed over time. Provide ample resources and equipment to ensure residents’ safety, comfort and well-being.
Continuous education and training for staff on the identification, reporting and prevention of neglect should be a routine part of staff and volunteer development. Develop and enforce transparent protocols for assessing, documenting and communicating residents’ needs, conditions and preferences.
Implement quality assurance and improvement programs to monitor and assess nursing home performance and outcomes. Encourage feedback and complaints from residents, families, staff and other stakeholders. And, make sure there are processes in place that ensure prompt and effective responses to allegations or signs of nursing home neglect. Finally, cooperate with regulatory agencies and authorities during inspections or investigations.
Conclusion
Adhering to these best practices empowers nursing homes in New York to diminish the risk of neglect claims and enhance the overall quality of life and care for their residents. Those that neglect these measures may face legal consequences, jeopardizing their standing and trustworthiness.]]>On Behalf of Phelan, Phelan & Danek LLPhttps://www.ppdlawoffice.com/?p=479042024-01-17T11:30:03Z2024-01-17T11:30:03ZRecent report discusses diagnostic errors
Newly released statistics regarding diagnostic errors in hospitals is shining a light on how often people are harmed. People who needed to be moved to the intensive care unit were impacted by a diagnostic problem in almost 25% of the cases. This is in line with a previous report in the late-1990s noting how many patients were harmed or lost their lives due to diagnostic missteps.
It is important to remember that systemic challenges were found to be a fundamental problem in a significant number of cases. Doctors who are facing legal claims need to be aware of this. Researchers looked at almost 2,500 random cases from various facilities. Of those, 550 patients dealt with a diagnostic error. Eighteen percent were harmed temporarily or permanently. Seven percent of patients who died had this noted as a factor.
Doctors are not always to blame
It is common for people to think about a legal claim after a poor medical outcome while in a hospital. These numbers indicate that some are due to mistakes on the part of doctors, healthcare professionals and the facility itself. Despite that, many cases are diagnosed accurately based on the information available at the time and the negative result is circumstantial without overt fault to be placed on the doctor.
For cases in which doctors are said to have made any type of mistake, it is imperative that they understand how to craft a viable medical malpractice defense. This is integral to continuing their career and avoiding the ramifications that come with claims of wrongdoing and missteps.
]]>On Behalf of Phelan, Phelan & Danek LLPhttps://www.ppdlawoffice.com/?p=479032024-01-09T10:46:10Z2024-01-09T10:46:10Zbedsores. These are painful skin injuries that come about from a person being in bed or seated in a chair for too long. While it is easy to blame the staff, there are times when they happen due to circumstances beyond their control and there is no justifiable reason to file a legal claim.
Facilities that follow the rules can effectively combat lawsuits
Bedsores appear on parts of the body that are in contact with the bed or the chair when the resident sits for an extended period. They are common on the buttocks and the rear of the arms and legs. They can also be on the hips and the back of the head. They are also referred to as “pressure” sores because that leads to them coming about. Friction and the skin and bones heading in opposite directions can also cause it.
People who have limited mobility, are incontinent, or are lacking in sensory perception like those with a spinal cord injury are vulnerable to bedsores. There can be long-term problems such as infections and even cancer.
There are rules that nursing homes must adhere to with preventing and treating bedsores. After the full assessment of the resident’s needs, the facility and its staff need to make certain that the resident who does not have bedsores upon admission does not develop them unless they were unavoidable regardless of the treatment and attention. If there are bedsores when the resident enters the facility, they must be given appropriate treatment to heal them, avoid infection and stop any new sores from appearing.
Facilities should defend against unfounded allegations
It is understandable when family members want to hold someone else responsible for their loved one’s medical condition, particularly when it is something like a bedsore that can be prevented with adequate care.
Still, just because a person developed bedsores or had them when they arrived at a facility does not mean that the nursing home and its staff are responsible. There are avenues of nursing home neglect defense that can be used to fight these accusations and knowing how to do so can maintain a facility’s reputation and keep its owners from being obligated to pay compensation.
]]>On Behalf of Phelan, Phelan & Danek LLPhttps://www.ppdlawoffice.com/?p=479022024-01-04T20:23:44Z2024-01-03T20:22:37ZMedical malpractice
First, the patient must show that they had a doctor-patient relationship with you and that you did not meet the standard of care expected in the medical community. The patient must also show that your breach of the standard of care caused their harm and that they suffered actual harm or damages. For a delayed diagnosis, the patient would need to show that the delay caused their condition to get worse.
These conditions can be physical, such as the progression of a disease or may be emotional based on the patient’s claim of increased anxiety or stress because of the delay.
Potential defenses
You may have several defenses available to challenge the patient’s medical malpractice claim. If you can show that there was a delay, but it did not cause or contribute to the patient’s harm, that may be a defense. Similarly, if you treated the patient in an emergency, the diagnosis may have been delayed because you were not their primary care provider and aware of all of their medical history.
Also, you may be able to show that the treatment you gave the patient was within the medical community’s standard of care, using expert witnesses to testify on your behalf.
In other situations, you may be able to argue that there was no doctor-patient relationship that obligated you to care for the patient.]]>On Behalf of Phelan, Phelan & Danek LLPhttps://www.ppdlawoffice.com/?p=479012023-12-28T16:06:56Z2023-12-19T16:03:12Zmedical malpractice actions.
Medical malpractice defense
At Phelan, Phelan & Danek LLP, our law firm understands how complex medical malpractice actions can be when a doctor, nurse or hospital is blamed for medical harm or a wrongful death. Our attorneys know that there is a lot at stake in these actions, which is why they utilize their years of expertise to protect our clients.
We have knowledge of medical record keeping processes, the advance training complex medial issues require, the innerworkings at medial facilities and the communications among medical professionals and personnel. This allows us to thoroughly investigate the claims, providing the necessary information to create a strong defense against these allegations.
Protecting your reputation
A professional license is a doctor’s lifeline, as without it, they would not be able to practice medicine. Our law firm understands that a lot is at stake, so we take these matters very seriously. Because any reporting on these claims could tarnish the reputation of a medical professional or hospital, we take immediate action to limit the negative impacts this civil action could project.
With our wide range of experience in medical malpractice actions and our continued goal to better educate our legal team on all medical areas, our law firm is prepared to take immediate action when a claim is filed. Similarly, those facing claims of medical malpractice should act quickly. This will better equip you when it comes to disproving these claims and protecting your reputation and career.]]>On Behalf of Phelan, Phelan & Danek LLPhttps://www.ppdlawoffice.com/?p=479002023-12-07T05:58:40Z2023-12-07T05:58:40ZHowever, there are ways to structure the nursing home’s entity to minimize investor liability.
Choose the right business entity
Different types of business entities offer different levels of investor protection. For example, a limited partnership allows investors to be passive partners who are not liable for the debts or obligations of the partnership beyond their capital contribution. A limited liability company provides similar protection, but also allows investors to participate in the management of the business without losing their limited liability status.
A sub-entity structure, where a parent company owns multiple subsidiaries that operate different nursing homes, can also limit the exposure of the parent company and its investors to the liabilities of each subsidiary. A combination of these strategies can also be used to maximize investor protection.
Maintain adequate insurance coverage
Nursing home investors should ensure that their facilities have sufficient insurance coverage to cover potential claims arising from abuse or neglect. This may include general liability insurance, professional liability insurance, umbrella insurance and directors’ and officers’ liability insurance. Review them regularly and update them as needed to reflect changes in the law and industry standards.
Proactive steps to prevent issues
Nursing home investors should also take proactive steps to prevent abuse and neglect from occurring in their facilities. This includes hiring qualified and trained staff, conducting background checks and drug tests, providing ongoing education and supervision, establishing reporting and investigation protocols, enforcing disciplinary measures and complying with all applicable laws and regulations. Investors should also monitor the performance and quality of care of their facilities regularly and address any issues or complaints promptly.
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