Author Archives: Andrew J. Barovick

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About Andrew J. Barovick

Andrew J. Barovick is a personal injury attorney & partner at Alegria & Barovick LLP in White Plains, New York.

EMAIL: ajb@alegriabarovicklaw.com

BIO: About Andrew

PHONE: 914-761-1133

Fair Is Fair, Unless You’re A Victim Of Medical Malpractice
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Authored by , re: LAW RELATED ARTICLES, Personal Injury, on .

It’s that time of year when my office gets reminders in the mail about what we must have posted and visible to all employees.  They are entitled, by law, to be apprised of their rights if they hurt themselves here, or become too ill to work.  That’s through Worker’s Compensation and through disability benefits. Posters in english and Spanish are prominently hung in our file room, providing helpful information in case the need arises.  And that’s as it should be.

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The Foreseeability of Accidental Shootings
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Authored by , re: LAW RELATED ARTICLES, Personal Injury, on .

A couple of weeks ago, a 2-year-old boy accidentally shot and killed his own mother while she shopped in an Idaho Walmart. By all accounts, the mother was a smart, professional and otherwise responsible woman. The infant had managed to unzip a specially-designed gun compartment in his mother’s purse, from which he withdrew the gun before firing it. How could this have happened, wondered people across the country?  But the more important question is, how can we make it stop?

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How Is Profiting From Non-consensual TV Coverage of a Patient’s Death Not “Outrageous” Enough?
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Authored by , re: Healthcare Management, LAW RELATED ARTICLES, Personal Injury, on .

Tomorrow’s (1/4/15) NY Times has an article entitled “Dying in the E.R., and on TV.” It raises troubling issues concerning patient privacy and the emotional distress suffered by a family already hurt by the death of its patriarch.  In April, 2011, ABC-TV’s hospital-based reality show, “NY Med,” was filming inside NY Presbyterian/Weill Cornell Medical Center the night Mark Chanko was brought in. He had been badly hurt by a garbage truck outside of his Manhattan apartment building, and died later that night when his heart stopped. He was 83.

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Texas Doctors Send a Posse Out After Those No Good, Thievin’ Dentists!
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Authored by , re: Healthcare Management, LAW RELATED ARTICLES, Personal Injury, on .

Would you trust a dentist to diagnose your sleep disorder?  If you said “no,” the Texas Medical Association is on your side, and is taking its concerns to court.  Why, you ask? Because diagnosing and treating sleep disorders is outside the realm and qualifications of dentists–at least it is if you are a physician and member of the Texas Medical Association.

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Will Ohio Doctors Say “It’s My Fault”?
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Authored by , re: Healthcare Management, LAW RELATED ARTICLES, Personal Injury, on .

Words can mean a lot when patients are injured or killed by medical malpractice.  First came the phrase, “I’m sorry,” which I discussed just over one year ago in this post.  Even the medical establishment has recognized the true value of an apology, as they have come to acknowledge that medical malpractice lawsuits are not fueled by greed, but by anger at the failure to even offer these words of comfort after lives have been derailed.

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Changing The Way The Medical Industry Processes Medical Errors
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Authored by , re: Healthcare Management, LAW RELATED ARTICLES, Personal Injury, on .

Patients who become victims of medical malpractice rarely receive an acknowledgement of the mistake, or an apology, according to a new study by Johns Hopkins University School of Medicine. Apparently, only 9% of the patients who participated in the study said that the medical provider/facility voluntarily disclosed the mistake. When harm was disclosed, it was often because the provider was forced to do so. And only 11% of patients reported ever receiving an apology.  

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Tort Reform-The Ugly Elephant In The Room
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Authored by , re: Healthcare Management, LAW RELATED ARTICLES, Personal Injury, on .

The NY Times editorial board has called for increased accountability and transparency in products liability cases–a call prompted by the recent revelations that General Motors, maker of faulty ignition switches that killed drivers,  and Takata, maker of airbags with deadly defects, hid evidence of the defects as consumers continued be to injured and killed.  The editorial has a more expansive view about such secrecy.

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How California Works To Not Improve Patient Safety
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Authored by , re: Healthcare Management, LAW RELATED ARTICLES, Personal Injury, on .

They say you should learn from your mistakes, and they are right. That’s how growth and development happen. But it is hard, and usually impossible, to learn from your mistakes if you don’t know what they are.  So when hospitals fail to report medical errors, or lump all of them together into the nebulous category of “adverse events,” without enough case-specific information to make the reporting useful, improvements in medical care fail to happen. Yet that is exactly what is taking place in California right now, according to this investigative report from NBC News.

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“Health Insurance” Not Necessarily Good For Patients’ Health
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Authored by , re: Insurance, LAW RELATED ARTICLES, on .

According to the Hippocratic Oath, a doctor must first do no harm.  But the influence of health insurance companies on modern doctors raises the question of exactly who doctors are bent on not harming: their patients, or their corporate benefactors.  This subject was the topic of a recent, disturbing op-ed piece in the NY Times, which is entitled “How Medical Care Is Being Corrupted.” The authors, both Harvard physicians, warn that:  

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False Advertising Times Three
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Authored by , re: Healthcare Management, LAW RELATED ARTICLES, Personal Injury, on .

Here is a brief roundup of recent news in the area of false advertising.  Two stories concern medical care, and  consumers of medical care ought to know about them.  One delves into the subject of mayonnaise, and whether a certain upstart manufacturer is selling the “real” item. First, from The Center for Public Integrity, comes the troubling news that nursing home care levels may be much lower than families think.

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The Hidden Epidemic of Medical Errors
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Authored by , re: LAW RELATED ARTICLES, Personal Injury, on .

Some of the leading causes of death in this country are preventable, but none as much as the third: Fatal medical errors. The figures are sobering:

  • The US Senate Subcommittee on Primary Health and Aging recently held hearings in response to a study by the Journal of Patient Safety that estimated the annual number of fatalities due to medical errors at 440,000 – well over 1,000 people a day.
That is equal to three 747 jumbo jets crashing every week. Add to that the 10,000 people who suffer non-fatal medical errors and misdiagnoses, and the scale of the problem begins to come into focus. This epidemic is worsened by the public’s unawareness of it. About half of the respondents of the Journal’s study believed the annual death total for medical errors was 5,000 or less – which is 80 times, or 8000%, lower than the actual figure.

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Medical Malpractice: The Clock is Ticking
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Authored by , re: LAW RELATED ARTICLES, Personal Injury, on .

It sounds unfair, and arguably, it is. But, there are strict time limits on when you can file a medical malpractice lawsuit, and unless you are a lawyer who specializes in the area, or you are someone who is unfortunate enough to have already been through a medical malpractice lawsuit, you would have no idea of what the time limit is, or that it even exists. And frankly, you are unlikely to guess at what the limits are, because they appear to have been created arbitrarily. The really bad news is that if you decide to file a medical malpractice lawsuit after the time limit has run out, you are out of luck. You can never pursue your claim, absent rare exceptions. That is why the time limits are called “statutes of limitation.”

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What New York’s Business Community Doesn’t Want You To Know About The Scaffold Law
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Authored by , re: LAW RELATED ARTICLES, Personal Injury, on .

New York’s Scaffold Law, Labor Law Section 240 and its related statutes, is a hot-button issue again, pitting those needing compensation for often life-changing injuries against the so-called tort reformers, who believe the laws are too favorable to victims of construction site negligence. Here is a voice that expresses a view “from the trenches,” and from the perspective of the minorities that are often victimized. On the other side of the fence is the business community, which relies on demonizing “trial lawyers,”  frightening business owners, and reshaping facts (i.e., New York is the only state with worker-protective labor laws). Here is a recent example by one of its regular mouthpieces. Of course, the same type of construction law liability has been in place in other states for years: including inTexas and Illinois. But acknowledging that might obscure the message of fear mongering the tort “reformers” rely on. Here is something that no one wants to talk about, least of all the comfortably-ensconced insurance companies who purport to insure general contractors from construction site liability. To say that they do not vet carefully the construction companies they insure is a sad understatement. They will insure anyone who sends them a check, as the story of a client of mine shows. And should an insured make any one of several missteps once an injury happens, the construction liability insurance companies will “disclaim” coverage, hurting not the insured who purportedly erred, but the victim of the insured’s often gross negligence, who may never see the benefits of the insurance policy.

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Improve Work/Life Balance With Volunteering
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Authored by , re: KNOWLEDGE NUGGETS, PERSONAL ARTICLES, on .

Volunteering can have positive effects on your personal life, as well as your work life.

Once a week, I participate in an ongoing volunteer project as an after-school reading buddy. Created by JCY Westchester Community Partners, a charitable organization based in Yonkers, our reading buddy group consists of 10 or so volunteers who meet with kids at 3:00 pm in a nearby public library to help them improve their reading skills.

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The Harm Caused By Malpractice “Consent Clauses”
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Authored by , re: Healthcare Management, LAW RELATED ARTICLES, on .

Physicians have the option to purchase medical malpractice insurance policies, which, at the cost of higher premiums, include special “consent clauses.”

These clauses stipulate that doctors being sued for malpractice must first give consent before their insurance companies can settle any claims filed against them. There are a number of reasons why these types of clauses are thought to be detrimental to all the involved parties:

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Will Access To Clinicians’ Notes Improve Patient Safety?
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Authored by , re: Healthcare Management, LAW RELATED ARTICLES, on .

I just came upon a stirring article in the New England Journal of Medicine, entitled “The Road toward Fully Transparent Medical Records” (sic). It’s a little long, but well worth reading, because it contains truly revolutionary ideas. By now, everyone in the healthcare field, and some patients, have become aware of the increasing use of electronic medical records, or EMRs. Patients of cutting edge medical practices now have access to patient portals through which they can view some of their records, such as lab results, and can communicate with their physicians. My own primary care physician’s practice group has such a set up, and it has been quite useful to me. But as the authors of the NEJM article point out, patients have not had access to their clinician’s notes.  Physicians have been uneasy about granting such access, and understandably so. “Writing accurately about a suspicion of cancer…can be difficult for clinicians who don’t want to worry patients unnecessarily, and addressing character disorders or cognitive dysfunction in ways that are useful to patients, consulting providers and others…requires carefully considered words.” What the article did not address, but should have, is the concerns most physicians have about the role such transparency might have in exposing them to potential medical malpractice liability.

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Pennsylvania Doctors No Longer Have To Fear Saying “I’m Sorry”
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Authored by , re: Healthcare Management, LAW RELATED ARTICLES, on .

Physicians who have made medical errors have traditionally been warned against apologizing to a patient’s loved ones. This is due to the fear that such expressions of regret would be understood as admissions of liability.

A new law passed in Pennsylvania will permit physicians to apologize for mistakes without the fear that their remarks will be used against them in future litigation. The Benevolent Gesture Medical Professional Liability Act was signed into law by Governor Tom Corbett on October 23rd, after years of debate surrounding the issue.

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When Incompetence Is The Status Quo For Medicine
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Authored by , re: Healthcare Management, LAW RELATED ARTICLES, on .

USA Today ran a disturbing article with a dramatic title earlier this week: Dangerous Doctors Allowed To Keep Practicing.   Before you stumble backwards, reeling from shock, be assured that the article is talking about a minority of doctors. Most physicians are solid, well-trained and educated professionals who are dedicated to providing optimal care to their patients. Like any group of professionals, there are a few bad apples among them.  The problem, and the focus of the USA Today article, is that the medical industry does such a poor job of disciplining its incompetent doctors that innocent patients remain vulnerable to their errors.  That is the tragedy that continues to go unaddressed.  Hospital administrators,  heads of disciplinary boards, and the insurance companies that provide malpractice insurance to doctors know which doctors have provided substandard care in the past, and therefore, which of them are likely to injure or kill patients in the future.

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The E-Cigarette “Revolution”: More Than We Bargained For?
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Authored by , re: Healthcare Management, LAW RELATED ARTICLES, on .

Electronic cigarettes, known as “e-cigarettes,” are all over the news.  Some laud their use in helping long-time smokers quit. Others, particularly in the healthcare community, urge consumers to be aware that despite the claimed benefits of using e-cigarettes, they still harm the lungs of users. However, as the article notes, “[t]he medical profession and scientists generally agree that e-cigarettes, if they do pose any dangers to health, are much less harmful than tobacco smoking.”

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Friends Don’t Let Friends DWU (Drive While Upset)
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As readers of this blog know, I’m not a fan of texting while driving, or doing anything else that might distract you from the task at hand–safe driving. That includes using your cell phone, whether hands free or not. It includes making adjustments to your rockin’ music system, if it’s complicated enough.  But even simple tasks have caused significant harm.  One friend, who shall remain anonymous, crashed his new car while looking down from the road for a moment to find a CD to insert into his music system.  Luckily, he was fine. His car was not.  Obviously, it ‘s also a good idea to avoid parenting habits that include spinning around to stare at the misbehaving kid in the back seat while yelling, “One more word from you and you’re walking home!”  Eyes on the road, not the bratty kid.

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Why Plaintiffs’ Lawyers Are Vital To Our Collective Well-being
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Authored by , re: LAW RELATED ARTICLES, on .

If you’ve been up for a while, and had the chance to read the Sunday Review section of today’s New York Times, you may have seen an article entitled “Don’t Take Your Vitamins.”  If you haven’t read it,    please do. It will tell you two things.  First,  taking antioxidants, particlarly in large quantities, is not a great idea. The author, a physician, relies on studies that show disturbing results.  Not only did anti-oxidants not help certain populations–they actually hurt by bringing on cancers. Good to know, and interesting from a scientific standpoint.  But the author’s second point is disturbing in the way that makes you want to shout out loud, or break something. The dangers of large doses of supplemental antioxidants are not well known to most Americans, because that’s the way the vitamin manufacturing industry wants it. In 1972, the FDA proposed a bill that would have regulated supplements that contained over 150% of the recommended daily allowance.  But the industry tapped a Democratic Senator, William Proxmire, who created a bill preventing the FDA from engaging in exactly that type of regulation, and in 1976, it became law.

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Remote Texting
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Authored by , re: KNOWLEDGE NUGGETS, LAW RELATED ARTICLES, Personal Injury, on .

Negligence: The failure to use such care as a reasonably prudent and careful person would use under similar circumstances.

In 2009 the lives of David and Linda Kubert were irreversibly changed for the worse when a vehicle driven  by a distracted driver plowed into their motorcycle and severed a leg on each of them. The driver, a high school student named Kyle Best, had exchanged 62 text messages with his girlfriend, Shannon Colonna, in the hours leading up to the crash.

What is notable about this case is that the Kuberts sued not only Best for negligence, but Colonna as well.

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For Some Automakers, Transparency Stops at the Windshield
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Authored by , re: LAW RELATED ARTICLES, Personal Injury, on .

As I write, it is a beautiful spring day in the greater NYC area. It is the kind of day that motivates you to get out on the road in your sporty convertible and take the top down. You know, let the breeze fly through your hair as the sun shines down and excites your inner race-car driver. Well, you might enjoy that experience if you had a sporty convertible, and a full head of hair. Not all of us do, but one day…

But it is also a time to think more sobering thoughts, such as: Is the car I am driving safe? A fair question considering history has proved time and again that car manufacturers will not reveal defects in their products until forced to do so, either by the government, or by plaintiffs’ lawyers. As all good students of recent legal history will recall, Ford was happy to allow passengers to burn to death in its Pinto, because the cost of defending or settling a few lawsuits was less than the cost to modify the manufacturing process needed to address the tap-and-ignite gas tank.

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Silence Hurts: Hip Replacement Recall Rekindles Debate on Medical Ethics
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It’s a difficult time to be someone injured through medical malpractice or products liability. A recent article in The New York Times talked about how a number of doctors working for Johnson & Johnson on the DePuy hip replacement saw something was wrong very early on, long before the recall of this hip. The idea of doctors remaining quiet when they could be helpful is upsetting. Unfortunately, it is understandable that they remain quiet. Most doctors won’t say anything because it’s not in their interest to do so, as their livelihood is tied up with using and promoting this hip. When you have inside information about how poorly the hip is performing, but want to fulfill your ethical obligation under the Hippocratic oath, talking about the problems with this hip is the equivalent of shooting yourself in the foot, career-wise.

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Guns Are Not Good For Children And Other Living Things
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The New England Journal of Medicine recently responded to the mass shooting of elementary school children in Newtown, CT, by publishing an article entitled “Preventing Gun Deaths in Children.”  Despite the sense of temporary disbelief a reader experiences by seeing such words on the printed page (or computer screen), and the primal feelings of shock, horror, anger and sympathy aroused, the physician authors wrote a sobering article on this most unpleasant subject, devoid of drama and hyperbole.  The ironic thing is that after reading it, all except the paranoid gun owners who fear that “the Government” is going to not only attack them, but disarm them–ideas repeatedly sown by Wayne Lapierre of the NRA–will be fuming in anger, and fantasizing about committing violent acts against the legislators who have failed us so miserably by making it so onerous to take sensible steps to protect our children. Both authors are pediatricians who have lost patients to gun violence. They also know how kids behave, and what influences them. A young child fascinated by cartoons, videogames and superheroes, left unsupervised in a home with unsecured guns might just pick one up and shoot his playdate. Drugs and depression and disappointments in relationships may drive adolescents to guns. And then there are the mentally unstable.

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