Blog: Thoughts on Law and Life

A ROOMFUL OF ELEPHANTS & OTHER ESSAYS

Depending upon one’s practice area(s), most lawyers spend a considerable amount of time writing. Litigators compose pleadings, trial briefs, motions, affidavits and an array of other legal documents. Commercial practitioners write contracts, leases, deeds, etc. Those engaged in estate planning and probate work assemble wills, trusts and other testamentary documents. Nearly all of us write letters, many letters. For many years, I flirted with the notion of writing outside of my law practice. The results were many quiet evenings at the keyboard, culminating in the publication of was my first book, entitled “A Roomful of Elephants & Other Essays.”

The book is a collection of thirty non-fictional essays, covering a wide range of topics including pursuits that have interested me, people who fascinated me, places I have visited and various random subjects. Only two of the thirty touch upon the practice of law. Many deal with things that happened to me a long time ago, during my childhood and teenage years.

I have been pleasantly surprised by the positive reception the book has received. You can sample it on www.amazon.com, where it is available for sale. As of this writing, I have a handful of promotional copies still on hand but just a few. If you would like to receive a free copy and I still have one available by the time you contact me, I will be happy to send one to you. You can use the contact form on this website.

Lavern’s Law Finally Passes

In 2017, 606 bills passed through the New York State Assembly and the Senate on their way to Governor Cuomo’s desk. Cuomo signed or vetoed 605 of them.

So what’s left? Lavern’s Law. This past February 2018, after it was finally passed by the New York State Assembly and Senate, Governor Andrew Cuomo signed Lavern’s Law into effect.

The law is named after Lavern Wilkinson, who went to Kings County Hospital on February 2, 2010, with chest pain. A radiologist saw a suspicious mass on the x-ray, but didn’t inform Ms. Wilkinson. Two years later when her complaints worsened and Ms. Wilkinson was finally correctly diagnosed with cancer, the 15-month statute of limitations to report medical malpractice in cases against a City hospital had expired. (The statute of limitations is 2 and ½ years in cases against private hospitals and physicians). Wilkinson passed away shortly thereafter at age 41, leaving behind a severely autistic daughter.

Under Lavern’s Law, a cancer victim who was misdiagnosed would have 2 1/2 years from the date of discovery to bring a lawsuit. However, if the negligence happened more than seven years prior, the person would be barred from suing. It should be noted that the reforms of Lavern’s Law only apply to cancer cases and not to other instances where the statute of limitations expired due to non-discovery of the malpractice.

Prior to Lavern’s Law, New York Law gave just 2 1/2 years for suits against non-governmental medical facilities, one of the shortest statutes of limitations in the country (and 15 months against governmental facilities). However, the clock starts when the treatment error occurs, not when the patient learns of the problem. New York is one of just six states without a “date of discovery” law.

This is problematic for a few reasons. Treatment error is sometimes not documented by medical professionals and oft times not discovered until the statute of limitations has expired. But more importantly, patients and the family of patients who have already suffered severe, preventable harm are now being denied a chance at legal restitution due to no fault of their own. Critical medical information was withheld from Lavern Wilkinson, information that could have potentially saved her life. In what world does it make sense to close legal doors to citizens before they even get a diagnosis?

New York State patients already have the odds stacked against them. With some of the lowest legal fees for attorneys, the New York State medical community has broad leeway for many acts of malpractice – since taking smaller suits is often not financially feasible.

New York has some of the best medical care in the world. In a cruel twist of irony, it has also become one of the worst places at holding healthcare providers accountable when that care goes wrong.

Research by Alex Eidman

ADMISSION TO THE SUPREME COURT OF THE UNITED STATES

The Supreme Court of the United States hears only certain types of cases and it accepts only a small minority of the cases that it has the power to hear. Then, it hears oral argument in a small minority of the cases that it does accept. The nature of my practice makes it highly unlikely that any of my cases will ever make its way to the nation’s highest court or that I will have the opportunity to argue a case there. Still, when I was presented with the opportunity to be admitted to practice before the US Supreme Court, I decided to take advantage of it.

After getting my paperwork, including the required recommendations in order, I joined about thirty of my friends and colleagues for the group admission, which took place on a beautiful day in May. When we entered the hallowed halls of the most famous and influential court in the world, I was first struck by the small size and beautiful, understated intimacy of the space. I am certain that I have argued many simple motions in larger courtrooms in Manhattan. Suddenly, without fanfare, the most famous jurists in the world assumed their seats on the bench. Well, there were seven of nine present that morning because Justice Alito was absent due to a conflict of interest with the case that was about to be decided and the seat formerly held by the late Antonin Scalia, had not been filled. But it was still quite impressive. Within minutes, Chief Justice Roberts was reading the Court’s decision in a case involving water rights. He had a pleasant, friendly and open demeanor. I tried listening closely but my attention kept shifting from one Justice to another. As Chief Justice Roberts continued reading, I watched Justice Clarence Thomas leaning back deeply, really reclining, practically prone on his chair.

After the new decision became the law of the land, the court officer asked my colleague, Jay Breakstone, to present each of us for formal admission to the Court. Jay is an accomplished appellate lawyer, a prior member of the SCOTUS and had organized the group admission. I vaguely remember hearing my name called, then standing and being sworn in as a member of the Court. I was proud to be doing this in front of my wife Daphne and my youngest son, Benjamin, who had taken the train from Baltimore that morning. In addition, I was thrilled to be joined by my closest legal colleague, Sam Rosmarin, who was sworn in beside me.

After the ceremony, our group thoroughly enjoyed a private breakfast reception with the incredible Justice Ruth Bader Ginsburg, who spoke to us and posed for a group photograph. Months before, Jay had written to each of the Justices, asking if any would be able to join us. One accepted and that speaks volumes about her.

With my admission, I now have the privilege to argue a case before the Supreme Court of the United States, should the opportunity ever present itself. I am also entitled to sit in the section of the Court reserved for its lawyer-members and to observe oral arguments, should I happen to be in Washington.

Supplemental Uninsured Motorist (SUM) Law Passes

Motorist insurance is a tricky thing.  One component that was traditionally ignored, neglected or misunderstood is Underinsurance or Supplemental Uninsured Motorist (“SUM”) coverage. This coverage is designed to “supplement” or add to the insurance coverage of the party who negligently causes your injury (or an injury of someone living in your household or riding in your car). The problem was that before June 18, 2018, drivers needed to actively purchase additional SUM coverage. For example, if Mr. Smith suffered a life-altering injury due to the carelessness of Mr. Jones and Mr. Jones only had $25,000 in bodily injury liability coverage, and Mr. Smith’s own policy contained $300,000 of SUM coverage, he conceivably would be able to collect $25,000 from the Jones policy and an additional $275,000 from his own policy (that is, $300,000 minus a credit for the $25,000 he already received). On the other hand, if Mr. Smith did not have additional SUM coverage, all he would recover is the $25,000 from Mr. Jones even if his own policy contained $300,000 in bodily injury liability coverage, to protect strangers. In fact, many people unwittingly drove around with bodily injury liability limits of $250,000 or more (at great expense) to protect strangers who they might hurt, without having additional SUM coverage to which protect themselves and their families (and which is relatively inexpensive).

About 15 percent of drivers do not have the legally required coverage. The unfortunate outcome for many drivers has been unexpected, exorbitant medical bills because they didn’t know supplemental coverage existed, or were unaware of their ability to purchase it and the modest price (about $33 a year for the lowest SUM coverage to about $135 a year for much higher coverage according to one car insurance company).

Gov. Andrew Cuomo recently signed a bill (A8519/S5644) that requires insurance companies to make available SUM coverage at the same level as bodily injury limits and removes caps related to such coverage. The law, which took effect on June 18, 2018, requires insurers to notify customers at least once a year about the availability of such coverage, explain what it is and encourage them to consider it.

Drivers who do not want to pay for it can sign a waiver to decline it or pay for a reduced amount of SUM coverage. Because drivers have an option to opt out, this is not a new, unsupported expense being forced on New Yorkers. Since drivers will pay for SUM coverage through their premiums, it’s not a new unfunded mandate on insurance companies. Rather, this is a sensible reform that provides individuals (who have been harmed through no fault of their own) and families a better chance to meet what can be severe medical costs. The physical and emotional toll an accident takes on an individual cannot be reversed.  Thanks to this legislation, the deck is now a little less stacked against victims.

Research by Alex Eidman

New York Refuses To Enact The Child Victims’ Act

As is often the case in politics, a popular policy does not necessarily translate to successful passage. This trend is currently playing out in New York State with the Child Victims Act, a bill that would give sex abuse victims more time to file criminal charges and civil lawsuits.

New Yorkers overwhelmingly favor passing the bill, but Republicans declined to include it in this year’s budget. Those against it include the Catholic Church, the United Federation of Teachers (UFT), and the American Insurance Association (AIA), which has spent $130,000 lobbying against the bill.

Currently a victim of childhood sex abuse in New York has until age 23 to sue his/her attacker. The statute of limitations is even shorter when a suit targets an institution — like a school or church — where the abuse took place. In that case, survivors can’t sue after they turn 21.

Criminal offenses like rape, aggravated sexual abuse, or sexual conduct against a child can be prosecuted at any time. However, the abuse often doesn’t fall within these limited categories, in which case the victim is forced to press criminal charges before they turn 23.

The proposed Child Victims Act would amend the law as follows:

  • Survivors could file a civil lawsuit until they turn 50;
  • Survivors could file criminal charges until they turn 28; and
  • There would be a one-year window during which cases from any time could proceed in court.

Of particular concern for those against the bill is the provision of a one-year “lookback” period that allows victims to file lawsuits that were previously forbidden by the old statute of limitations.

All of this strikes me as a staggering admission of guilt by the Church and UFT. The insurance industry has unsurprisingly decided that profit margins are more important than people who have suffered irreparable harm.

There are many reasons victims do not come forward for years to report what happened to them. They are often dealing with severe psychological trauma, which sometimes goes untreated. Instead of punishing them with a restrictive time window, Albany needs to empower them by passing this bill.

I can only hope that the legislature realizes that the time for playing politics is over, and moves to pass this bill provide some small measure of justice to innocent children who have suffered unspeakable horrors.

Research by Alex Eidman