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Sad State of Damages

Posted by Andrew J. Barovick | Mar 07, 2012 | 0 Comments

A friend and fellow lawyer just asked me to look at a potential ophthalmology-related medical malpractice case. It was a hefty-looking file, and I had delayed starting my analysis for fear of how long it would take.
This morning, I had time. I unwrapped the FedEx envelope, pulled out the records and began reading. And then stopped. Once I saw that the patient was 85 years old, I knew that any further reading would be a waste of time. I did not need to know whether there was evidence of medical malpractice or not, and I'm jaded enough by now to not even bother to find out, once I see that I can't take the case.
Why did I have this reaction? Because tort law, at least in New York, undervalues the elderly.
Even if the opthalmologist who treated her committed obvious, easily provable malpractice, no plaintiff's attorney in his/her right mind is going to take this case, because it is a losing propostion for everyone. The law does not value the decrease in vision of an elderly person under 99% of circumstances. Usually, such a person is retired, so their income has not been reduced. Usually, such a person is not providing services to others that can no longer be performed. Naturally, such a person has a drastically reduced life expectancy, so that the damages she might win for, say, future pain and suffering, and future medical care, will not amount to much. And any defense attorney worth his/her salt will point out the many other ailments that a person of this age is bound be saddled with anyway, to minimize the affects of an injury to an eye.
Then consider that to properly work up such a case, a medical malpractice attorney must purchase reams of medical records, consult with and pay a medical expert, and sometimes two or three, conduct and pay for depositions, invest weeks of his/her own time to the detriment of other cases conducting medical and sometimes legal research, meeting with the client, and often the client's healthcare providers.
Your investment of time and money will dig you into a deeper financial hole, and the client may be dead by the time any award is obtained for her, given the current pace of cases through our court system.
OK. Done ranting. Carry on.

About the Author

Andrew J. Barovick

Mr. Barovick is a graduate of Columbia College and Cardozo School of Law. He began his legal career at the Queens District Attorney’s Office, where he tried over 20 felonies to verdict, and argued an equal number of appeals before the Appellate Division, Second Department, the New York Court of Appeals and the United States Court of Appeals for the Second Circuit.


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