Tag Archives: tort reform

Fighting For Your Benefits – Protecting Our Safety Net

As an attorney who has been practicing in the field of Workers’ Compensation for close to 30 years, it has been a privilege and an honor to represent the working men and women of New York. As the daughter of both a retired firefighter and retired teacher, I see the sacrifices that most working men and women make in order to provide for their families and create a better life for their children. We all have similar long-term goals of being able to earn enough of a nest egg to retire and enjoy our “golden years”.  No one goes to work expecting that they will sustain an injury that will not only change the course of their employment, but may change the course of their lives. Even less expected is the bureaucratic maze most will have to navigate for benefits to which they are entitled.

Injured workers in this country have seen their weekly benefits capped, their medical benefits slashed, and their medications limited based upon the opinions of those who may not even examine them but only review records. Injured workers have been the pawn in political battles throughout the country.  Benefits are seen as too expensive or excessive, and are described as the reason businesses cannot thrive or survive as premiums have become so expensive because of the high costs of claims. Injured workers are sometimes seen as “gaming the system” by fraudulently obtaining and keeping Workers’ Compensation benefits beyond their need. There could be nothing farther from the truth.

One of the things I am proud of in my legal career is that I am past president of the Workers’ Injury Law and Advocacy Group (WILG), an organization of attorneys who have dedicated their practices to representing the needs of injured workers’ and their families. Our mission statement notes that “our members are committed to improving the quality of legal representation to those injured on the job or victims of occupational illness by superior legal education and my keeping informed of legislative and judicial proceedings”. We do this by keeping up with trends throughout the country that impact injured workers and might end up coming to the states in which we practice.

While injured workers rarely have the finances to take on some of the very wealthy and deep-pocketed business and insurance industry groups, our organization has found that in many instances we can fight back by having knowledge and knowing the facts. My colleague and another past president of WILG, Leonard Jernigan, has for the last decade or so put the perception of “gaming the system” to the test. In his most recent report, he notes that the top 10 cases of fraud resulted in almost $100 million in lost revenue and that not one of those cases involved the actual worker. This is not out of the ordinary. While there are those workers who clearly fabricate an injury or exaggerate its seriousness, they are in the minority. Most men and women do not want to be injured, nor do they want to stay out of work when they are. As the recent government shut down showed, there are many people in this country who live paycheck to paycheck. Any loss of income creates major financial hardship for injured workers and their families, not to mention the psychological impact created by the mere thought of losing their places of residence or their dreams for their future. We must remember that while injured workers in this country are a minority of the population, in the blink of an eye, we too can become a part of this very unfortunate club.

 

Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy  Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717.

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Despite Majority Support, Albany Legislators Fail To Consider Lavern’s Law

Lavern Wilkinson’s family was barred from seeking justice because of an archaic law.

There was a recent lawsuit filed by a woman against a major coffee chain for injuries sustained when the lid came off of a coffee cup as it was being handed to her by the barista. According to the lawsuit, the woman sustained serious burns as a result and missed more than a month of work. The lawsuit was filed two years after the accident occurred and the injured woman maintained the only reason she pursued legal recourse was that the coffeehouse failed to respond to her repeated requests for payment of medical bills. The woman indicated she was very hesitant to file a law suit as she was opening herself up to ridicule. I was extremely saddened by her reaction, but understand her reluctance.

This case brings up a similar story from a number of years ago when another woman filed suit after she was injured by scalding hot coffee in a McDonalds drive thru when it spilled on her. This was the topic of conversation for many talking heads, citing it as the poster child for frivolous lawsuits that clog the court system and cost hard-working taxpayers billions of dollars every year. The lawsuit became fodder for countless comedians and an alarm for tort reform around the country. 

What was left out in the entire media blitz is the fact that the injured woman – Stella Liebeck – then 79 years old, asked McDonalds to pay for the medical bills totaling approximately $20,000, but they refused. It was only then that she filed the lawsuit, as she sustained third degree burns over 16 percent of her body, necessitating hospitalization for eight days, skin grafts, and horrific scarring. McDonalds admitted they knew the coffee could not be consumed immediately as it was at a scalding temperature and had to cool down. The company also admitted it was aware that more than 700 people had sustained serious injuries in the 10 years prior to the Liebeck lawsuit. It appears their coffee was kept at such a high temperature in an effort to last longer. In this case, McDonalds made a conscious decision to put savings before consumers. 

The tort reform movement has been fabricating or exaggerating facts for years to push its agenda, with the legal profession being portrayed negatively on many occasions. As an attorney, I laugh along with others at the humorous lawyer jokes I hear. But putting aside that humor, I am proud to be an advocate for the injured. I have seen first hand what can happen as a result of the negligence of others.

Last week the New York State Legislature had an opportunity to rectify an unjust, archaic law by passing a bill known as Lavern’s Law, named after a woman who died of cancer three years after she had gone to the emergency room with a cough. The hospital performed an x-ray and sent her home, but never advised her that the x-ray showed a curable cancer growth. By the time she discovered the cancer was terminal, she could not seek justice because the time to file the suit had passed.

Lavern’s Law proposed to start the statute of limitations from the time a patient discovers the malpractice, rather than from the time the medical malpractice occurred. Unfortunately for many victims of malpractice, the bill never reached the floor for a vote despite overwhelming support by a majority of both the Assembly and Senate. Those who opposed this bill felt it would cause malpractice insurance to skyrocket and put many in the medical profession out of business.

The opposition misses the point. A tort in law is a civil wrong that unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who committed the act. It holds accountable the person who caused the injury. The current law for malpractice claims weakens incentives for hospitals and doctors to improve patient safety measures so these harmful incidents never happen in the first place. Lavern’s Law and other laws allowing citizens the right to jury trials actually result in a safer and healthier society.

Hopefully Lavern’s Law will be a continued topic of conversation when legislators return to Albany in January. Malpractice isn’t always discovered within what the current law considers a timely fashion. However, that doesn’t mean that injured people won’t suffer for the rest of their lives, or die, due to the negligence of others.

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Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy  Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717.

Prior results do not guarantee outcomes.
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