The SUM Bill and Insurance Law

In June 2012, the New York State Legislature passed an amendment to the Insurance Law that would protect car insurance policyholders and their loved ones from injuries caused by uninsured and underinsured drivers. The SUM bill requires that a driver’s SUM insurance limit match their liability coverage — unless the driver chooses to decline the cost of the added protection. The amendment was later vetoed by Governor Cuomo in December 2012.

In New York State, drivers are currently required to carry 25/50/10 in bodily injury and property damage liability on their policy. This means that $25,000 is the maximum amount payable for bodily injury per person; $50,000 is the maximum payable per accident; and $10,000 is the maximum payable for property damage including the other driver’s vehicle as well as street signs, buildings, light posts, etc.

If an accident is deemed your fault, in theory your insurance policy will compensate any parties injured by your carelessness. The problem occurs when the negligent party has little or no insurance on the car. Often the most dangerous drivers have low policies because risk-factors (including previous accidents, speeding citations and DWIs) have given them high premium rates. Others are just trying to save money by lowering their insurance coverage; NY is 4th in the nation for auto insurance costs according to a 2013 report by the Insurance Information Institute.

Whatever the reason, many individuals are paying the minimum of $25,000 – hardly enough to cover a serious accident. In 2010, the National Safety Council reported the average cost of an accident with disabling injuries is over $70,000. SUM (Supplementary Uninsured/Underinsured Motorist) coverage allows individuals to “supplement” the insurance of negligent drivers who cause an accident. For example, if the victim has liability coverage of $100,000 with SUM benefits while the driver at fault has the state minimum of $25,000, the latter would be considered “underinsured.” The victim could then receive the $25,000 from the negligent driver’s insurance company as well as $75,000 from their own. Such was the case in a 2012 lawsuit that energized the issues surrounding SUM insurance. In June 2010, 24-year old Johns Hopkins graduate Kaitlynn Fisher was killed in an intersection collision in Baltimore, Maryland. Fisher’s estate asserted a liability claim against the driver and her own insurer, Progressive, for compensation and SUM benefits. Progressive declined to pay out the benefits claiming that Kaitlynn was the negligent party, thereby creating a highly-publicized controversy. A lawsuit against the surviving driver determined that Kaitlynn was not the negligent party and the case was eventually settled.

In August 2012, a New York Times article referred to the incident as “The Auto Insurance Case That Blew Up on the Internet.” Aside from being a PR nightmare for Progressive insurance, the case also caused many officials and individuals to take a closer look at car insurance and policyholders’ understanding of it – particularly with regard to SUM coverage. The law remains that insurance companies do not have to offer more than the state required minimum of $25,000 unless a policy holder requests more body liability coverage. The new amendment would have required insurers to provide increased SUM coverage matching the chosen liability limits, though individuals could opt to decline it via a waiver or statement. In lieu of Governor Cuomo’s decision, a debate over whether the amendment protects responsible motorists or is unfair to consumers continues. The New York State Trial Lawyers Association (NYSTLA) says the amendment keeps taxes low for New Yorkers because underinsured drivers will not have to rely on benefits like Medicaid. Others, including The New York Public Interest Research Group praise it for potentially reducing auto fraud by medical companies who have a history of excessive billing, while United Policyholder (UP) feels it encourages people to be more financially literate and take more interest in how their coverage works. The bill’s sponsors are currently moving on a modified bill to address the governor’s concerns.

Opponents of the amendment like Governor Cuomo and the group New Yorkers Stand Against Insurance Fraud believe the law will unfairly increase insurance rates for NY drivers who already pay more than the national average. The governor stated in his veto message that “consumers should be free to choose what level of SUM coverage makes sense to them” and should not have to “affirmatively opt-out of such coverage.”

Despite the debate, many drivers remain unaware that SUM coverage exists. For a comparatively small premium (usually around $50-$100 per year) SUM coverage can protect those involved in an accident from the low insurance policies of negligent drivers. If an individual is injured by a driver with no insurance, an expired policy, a stolen car or a hit and run, SUM insurance will be their only compensation. The founder of UP, Amy Bach, points out that while awareness is low and insurers undersell SUM coverage, if drivers knew about it they would likely opt for it as a “common-sense” addition to their policy.

The mission of the New York State Trial Lawyers Association is “To promote a safer and healthier society, to assure access to the civil justice system by those who are wrongfully injured and to advance representation of the public by ethical, well-trained lawyers.” Okun Oddo & Babat partner, David Oddo is an active member of the NYSTLA.

Article by Shea Bergesen for Lavery Design Associates, Ltd. copyright 2013. This article may not be reproduced without permission from the author.

A Landlord’s Failure to Maintain Property

Recently, a Bronx Housing Court Judge sentenced a Bronx landlord to 30 days in jail for neglecting to make needed repairs on his apartment building. While the landlord claimed he was unable to make needed repairs to his apartment building due to lack of funds, he was unable to prove this claim in court. His 12-unit Bronx apartment building had more than 300 open violations and the building is considered, according to an article by Denis Slattery in the New York Daily News on October 9 to be “one of the 200 most distressed structures in all of New York City.” Slattery’s article also states that as a result of the landlords negligence, the city has spent over $100,000 fixing water leaks, providing heating fuel, removing lead and on other emergency repairs. He quotes the commissioner of the city Department of Housing Preservation and Development, RuthAnne Visnauskas as saying “If you neglect your property and your tenants, disregard your legal responsibilities, and defy court orders, we will seek the maximum penalties available under the law,” HPD is responsible for developing and maintaining the city’s affordable housing units. The agency is headquartered in Lower Manhattan, and includes smaller branch offices in each of the city’s five boroughs.

It is a landlords lawful responsibility to maintain their property. These responsibilities are outlined in many laws and codes which are enforced by the HPD and include issues regarding heat and hot water, bed bugs, infestation, carbon monoxide detection, mold, and lack of window guards. Potential housing code violations and tenant rights and responsibilities are available on the HDP website.

Last month the Daily News also reported on a tenant lawsuit in Manhattan Housing Court over an uninhabitable apartment in Lenox Avenue, citing collapse ceilings and walls, rat infestation and mold.

Many landlords fail to ensure for a tenants’ safety. Tenants who have concerns regarding landlord neglect may choose to seek the legal advice of a lawyer who handles tenant and landlord disputes. If you or someone you know has suffered illness or injuries or from apartment accidents and from landlord negligence, the experienced New York attorneys at Okun, Oddo & Babat can help you. Don’t hesitate to contact us or call us at 212.642.0950 to discuss your case.

Article by Madeline Mohr for Lavery Design Associates, Ltd. copyright 2013.
This article may not be reproduced without permission from the author.

Cardiovascular Disease, Heart Surgery and Wrongful Death

Cardiovascular disease is the leading cause of death for New York citizens and the worldwide population. The World Health Organization (WHO) reports that in 2008, 17.3 million people died due to CVD, representing 30% of all global deaths. According to the New York State Department of Health’s comprehensive report, The Burden of Cardiovascular Disease in New York, approximately 40% of NYS deaths in 2008 were caused by CVD.

Often called “heart disease,” CVD includes a number of conditions that affect the heart and circulatory system. Common types are:

  • Coronary Heart Disease: Build-up of fatty deposits on blood vessel linings
  • Congenital Heart Disease: Malformations of heart structure existing at birth
  • Congestive Heart Failure: Failure to pump enough blood throughout the body
  • Pulmonary Heart Disease: Slowed or blocked blood flow into the lungs
  • Rheumatic Heart Disease: Complication of untreated strep throat / rheumatic fever

While the Center for Disease Control and Prevention projects heart disease will remain the leading cause of death globally for the next 20 years, more people are living with CVD than ever before due in part to heighted awareness, medical improvements and less invasive procedures. For some, illness and death due to CVD can be prevented simply by a healthy, conscientious lifestyle. Known and modifiable risk factors for cardiovascular disease include tobacco use, physical inactivity, poor nutrition, obesity, hypertension, high blood cholesterol and diabetes.
In addition to preventative behavior by individuals, proper pre-care by a doctor is necessary to detect abnormalities in the heart. If a condition is left undiagnosed, it may worsen over time without treatment and can lead to heart attack, stroke or other serious illness and injury. Signs of heart disease medical professionals often mistake for more minor conditions include trouble breathing, chest pain, nausea, dizziness, high blood pressure and pain in the left arm. Once a heart condition is detected, operations may be necessary. As with any surgery, there are risks involved in cardiac operations.

Complications can arise due to a number of factors, including:

  • Abnormal heart rhythms
  • Reactions to anesthesia
  • Tissue damage
  • Severing of the aortic valve
  • Hematomas
  • Heart valve damage or dysfunction
  • Neurological complications
  • Damage to surrounding blood vessels
  • Infection, excessive bleeding or blood clotting
  • Inadequate surgical techniques or inexperience of the surgeon

While cardiac surgeons are among the most highly trained specialists in the medical industry, human error or bad judgment can be a factor in the success of surgery and recovery. Miscalculations can be life-threatening and there are cases when medical professionals do not provide proper care, increasing the risk of further illness, injury or even death. After an operation, close monitoring, medication adjustments and progress evaluations are vital factors in the recovery of a cardiovascular surgery patient. It is important for doctors to notify the patient of any ongoing risks they may have, particularly if additional treatments are needed or they lead a physically demanding lifestyle.

Cardiovascular disease treatments and surgery can save lives but when surgeons and their staff make errors or exercise inadequate medical judgment, it can also end up causing serious harm and in some cases, wrongful death. Evaluating whether medical negligence is involved – whether pre-, during, or post operation – requires the expertise of experienced lawyers. An individual or family that has suffered by inadequate medical care may choose to pursue legal action against the medical professionals involved.

Okun Oddo & Babat specializes in Medical Malpractice and Medical Negligence claims. Contact us today or call or call us at 212.642.0950 to arrange an appointment with one of our experienced New York attorneys. 

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Article by Shea Bergesen for Lavery Design Associates, Ltd. copyright 2013. This article may not be reproduced without permission from the author.

Effectiveness and Reliability of the Drugs Presently Prescribed to Treat Hypothyroidism

According to a recent publication in the Wall Street Journal, some sufferers of hypothyroidism and several associated activist organizations are calling for more thorough screening tests and more effective treatment of the condition.
Though studies regarding alternative therapies and medications show conflicting results, Michelle Bickford, the 36 year old founder of the advocacy group, ThyroidChange, insists she experienced higher energy and less anxiety, depression and fatigue when she was prescribed a less commonly distributed, animal-derived medication. Bickford had been taking the popular levothyroxine prescription for hypothyroidism since the age of 11 but reports minimal alleviation of her symptoms until the switch.
Associate Professor of Medicine at Harvard Medical Center Jeffrey Garber, on the other hand, believes, “The vast majority of people are fine on the standard therapy.”

While thyroid patients and medical professionals may be at odds over what, if any, further research is needed, the complaints have called into question the effectiveness and reliability of the drugs presently prescribed to treat hypothyroidism.

Earlier this year, the brand Levoxyl recalled 52,000 bottles of levothyroxine due to a bad odor.
Uncertainty about stability and potency in a second batch of the drug led to another recall, potentially causing a shortage of the drug for the remainder of 2013.

Another levothyroxine brand, Synthroid has a long history of problems, including a class action lawsuit in the 1990s claiming millions of patients were overcharged for the drug, as well as more recent concerns over batch potency and stability.

Low potency of hypothyroid medication can cause serious harm to patients who depend on them, including little to no relief of symptoms and exacerbation of the condition. In such cases, patients may opt to take more than the recommended amount of the drug and an overdose is possible.

Thyroid disease affects 15 million people in the United States. The American Thyroid Association reports that approximately 50% of sufferers are not even aware that they have it, attributing it to other issues they are experiencing like aging, menopause or depression. The thyroid, a small, butterfly-shaped gland at the back of the neck, controls the body’s metabolism. It affects the functioning rate of cells, tissues and organs and controls heart rate, weight, temperature, energy level and muscle strength.
Thyroid malfunctions can happen in one of two ways.

The first, hypothyroidism, involves too little production of the thyroid hormone, causing the body to function at a lower rate.
Hypothyroidism is the most common type of thyroid disease, affecting 11 million Americans in 2012 according to the Center for Disease Control. Symptoms include:
• Fatigue
• Memory loss
• Depression
• Difficulty concentrating
• Coarse, dry skin and hair
• Intolerance to cold
• Constipation

Too much of the thyroid hormone (hyperthyroidism) causes the metabolism to function at a higher rate. Symptoms include:
• Nervousness
• Irregular menstrual cycles
• Weight loss
• Irregular heartbeat
• Increased metabolism
• Nervousness
• Perspiration

After the age of 35, The American Thyroid Association recommends anyone with a family history of testing positive for thyroid disease be evaluated every five years. Doctors can provide a definitive diagnosis with a simple blood test to measure the levels of thyroid hormones TSH, T-4 and T3. If a doctor fails to diagnose or improperly treats thyroid disease, the patient can experience severe consequences including heightened lethargy, depression, anxiety, weight gain, hair loss, bulging of the eyes, and hypoglecemia.


Article by Shea Bergesen for Lavery Design Associates, Ltd. copyright 2013.
This article may not be reproduced without permission from the author.

Poor Hygiene and Inadequate Care in Nursing Homes

When a loved one is no longer able to live independently due to age or illness, many families decide to place them in the care of a nursing home. According to the Center for Medicare Services, approximately 3.3 million Americans will live in an elder care facility in 2013.

In the over 16,000 facilities nationwide, federal and state regulations are in place to protect nursing home residents from harm and ensure they are receiving proper care. However, a National Center for Elderly Abuse study of 2,000 nursing home residents in 2000 reported that 44% said they had been abused in some way and 95% reported witnessing or experiencing neglect. Instances of mistreatment may involve extreme abuse, including physical or sexual assault. However in many cases, neglecting personal hygiene and facility sanitation are the cause of illness, injury or even the death of a resident. Because many elderly patients are unable to take care of personal grooming without assistance, failure to maintain a consistent hygiene routine with residents — including not bathing them or changing dirty clothes/bed linens for hours or days at a time — can lead to serious physical and emotional problems.

Poor hygiene and inadequate care in nursing homes can result in:
• Bed sores
• Ulcers
• Skin and eye infections
• Internal parasites
• Ingrown fingernails/toenails
• Cataracts
• Kidney infections
• Malnutrition
• Oral pain and gum infections
• Dehydration
• Depression
• Lowered sense of well-being and self-esteem

Because their immune systems may already be compromised by preexisting medical conditions or advanced age, elderly people are more likely to develop infections from germs spread by poor hygiene. The US Department of Health and Human Services reports that infections are a leading cause of death in long term care patients, with an average of 1.5 to 2 million infections occurring in nursing homes each year. The risk of infectious and bacterial diseases such as colds and influenza can be significantly diminished by hygienic practices such as proper bathing, hand washing and oral care. Instead, these infections impact the health of thousands of people and cost billions of dollars in medical costs, with an estimated $1.4 billion spent each year.

While poor personal hygiene may seem minor compared to more egregious forms of neglect in nursing homes, it is a serious hazard that can result in severe medical conditions and even death. Nursing homes are required by law to maintain good hygiene for their residents.

If a resident has been injured or suffers premature death as a result of improper hygiene at a nursing home facility, a lawsuit may be the logical next step and can result in compensation awarded to the victim and/or their family. Contact Okun, Oddo & Babbat to arrange a consultation with one of our experienced attorneys.

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Article by Shea Bergesen for Lavery Design Associates, Ltd.
copyright 2013. This article may not be reproduced without permission from the author.

Recent Johns Hopkins Study

Recent Johns Hopkins Study Links Certain Brands of Beer to Emergency Room Visits

A New York Times article by Anahad O’Connor titled “Beers Implicated in Emergency Room Visits” addresses some questions raised by a new study at Johns Hopkins Hospital in Baltimore which narrows down the five beer brands consumed most often by patents who ended up in the emergency room due to their consumption. The article cites Budweiser, Steel Reserve, Colt 45, Bud Ice and Bud Light, three of which are malt liquors, and contain more alcohol than regular beer. While alcohol frequently plays a part in many emergency room visits – causing car-related accidents, falls, injuries, homicides, drownings, shootings and domestic violence – this new study examines the brands, their consumption and how this could potentially influence labeling requirements on certain beers. It is important to note that the study relies on data collected from one urban treatment center. The complete study was published by the journal of Substance Use and Misuse and is available online.

Informed Consent: Premature Births

In 2010, the New England Journal of Medicine published the details of a 2004-2009 study of 1,300 severely premature infants at 23 medical institutions across the United States. The study, called the Surfactant, Positive Pressure and Oxygenation Randomized Trial (SUPPORT), was designed to address a longstanding issue in the care of premature babies: Oxygen, considered a crucial component in preemie care, administered to an infant in too high a dose can result in blindness while too low a dose can cause severe brain damage or death. Doctors hoped to discover what level of oxygen administration was best to prevent blindness without increasing the risk of neurological damage or death by randomly assigning the infants involved to receive different levels.

Considered ethically flawed by a number of federal officials, the study resulted in much negative feedback and a 2013 lawsuit against overseers of the study at the University of Alabama at Birmingham. The suit by parents of five Alabama children claims negligence and failure to properly inform the family of the risks involved. Along with questions about the ethics of medical experimentation, publicity around the study has raised the issue of informed consent processes as they pertain to premature infants.

Informed consent is a legal procedure to ensure that patients and caregivers are aware of all the potential risks involved in a particular medical treatment.

In the case of SUPPORT, the US Department of Health and Human Services acknowledged many of the parents would not have allowed their newborns to undergo the oxygen level tests had they been aware of the potential for serious harm or fatality.

It is a doctor’s responsibility to notify pregnant patients of the risks associated with carrying and delivering a baby – including factors that may increase their chances of premature labor. Some of the most common conditions that make a mother high risk for a premature birth are:

  • Multiple babies including twins and triplets
  • History of premature birth
  • Short intervals between pregnancies
  • Smoking, drinking and/or drug abuse during pregnancy
  • Poor nutrition
  • Infections of the amniotic fluid or lower genital tract
  • High blood pressure and diabetes
  • Stress
  • Unusual shape of the uterus
  • Physical injury or trauma
  • Age of the mother, with heightened risk for those under 18 or over 35

With 500,000 cases of premature birth in the US each year, it is not always possible for a doctor to arrest early labor and prevent injury to the infant. During and post-delivery, the premature child may experience bleeding in the brain, low blood sugar, infections, severe lung damage and breathing problems that require close post-birth monitoring in neonatal intensive care units. As the baby develops, they are more likely to show signs of cerebral palsy, intellectual disability, vision and hearing problems and learning difficulties.

Failure of hospital personnel to fully disclose the treatment options
available and the risk factors involved in premature birth
may be grounds for a medical negligence claim.

While it is up to the parents to assess the quality of life their child will lead and determine if further operations and life-sustaining treatment should be administered, it remains the doctor’s responsibility to help them make educated decisions in the child’s best interest and obtain their informed consent before carrying out or withholding treatment.

When a baby is born with unexpected brain damage or physical defects, it will alter the course of their life and create significant hardship for the family. According to a report published by the Institute of Medicine in 2006, the cost of medical care in the first year of life for premature babies is 10 times higher than for full-term infants. The resulting disabilities can cost millions of dollars over a lifetime in rehabilitation fees and special education. Failure of hospital personnel to fully disclose the treatment options available and the risk factors involved in premature birth may be grounds for a medical negligence claim. If a doctor fails to notify a patient of risk factors or performs a procedure without informed consent of the patient, they may be liable for damages sustained as a result.

Okun Oddo & Babat specializes in Medical Malpractice and Medical Negligence claims. Contact us today or call or call us at 212.642.0950 to arrange an appointment with one of our experienced New York attorneys.

Sources & Resources:

Article by Shea Bergesen for Lavery Design Associates, Ltd.
copyright 2013. This article may not be reproduced without permission from the author. 

U.S. Department of Justice Releases Details of Rapamune Kidney Transplant Drug Settlement Case against Wyeth Pharmaceuticals

The marketing and sales practices of major pharmaceutical companies has been under scrutiny in the last few years. This week, the U.S. Justice Department announced that drug maker Wyeth Pharmaceuticals has agreed to a $490.9 million settlement for criminal and civil liability charges in connection with improperly marketing Rapamune, the kidney transplant drug. Wyeth Pharmaceuticals was acquired by Pfizer in 2009. According to the Press Release issued by the Justice Department on Tuesday, July 30 the drug was not approved as safe and effective by the U.S. Food and Drug Administration (FDA). Continue reading “U.S. Department of Justice Releases Details of Rapamune Kidney Transplant Drug Settlement Case against Wyeth Pharmaceuticals”

Potential Dangers and Forms of Negligence on Commercial Properties

Shopping malls are designed to accommodate a large population of people moving incrowds through stores, hallways and up stairs and elevators. With all of this activity, occasional accidents are bound to occur.
There are a variety of possible hazards that can endanger mall visitors, especially if the staff and management are not fulfilling their duty to keep the premises safe. 15% of injuries in malls and shopping centers are caused by slip and fall accidents. While they can be attributed to the patron simply losing their balance, these incidents can also be caused by: Continue reading “Potential Dangers and Forms of Negligence on Commercial Properties”

Common Causes of Medical Malpractice Before, During and After Surgery

According to the Centers for Disease Control and Prevention, there are approximately5.4 million surgical procedures performed annually in the United States. Though all operations involve a certain degree of risk, patients should have the reasonable expectation that a high standard of care will be provided to them. Unfortunately, that is not always the case. Each year, thousands of people are affected by preventable surgical errors, a common form of medical malpractice.

Continue reading “Common Causes of Medical Malpractice Before, During and After Surgery”