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.
So if that is how New York State wants us to treat employees, you might think that it would have a similarly caring approach with consumers of medical care. You might think that there must be signs up in prominent places in hospitals and doctors’ offices advising patients of the help available to them if they aren't treated properly—perhaps because they end up as victims of medical negligence–and you've just been missing them all these years.
But of course, you’d be wrong. There are no signs advising such patients that they can pursue a claim for medical malpractice, and that when the hospital fails to take the claim seriously, as is usually the case, they can get themselves a lawyer and take the hospital or doctor to court. There are no signs, in any language, letting patients know about the statutes of limitations, or time limits, so that by the time a family overwhelmed by the toll a medical error has taken gets around to considering a suit, it is often too late. And this is particularly true when a NYC Health and Hospitals facility is involved. Generally, if you don’t know enough to file your Notice of Claim with their office within 90 days of the malpractice, you’re prevented from pursuing your claim any further.
Not surprisingly, the victims who are cheated out of their day in court are usually those who can least afford to miss that opportunity. They are the poor, the immigrants, the day laborers, the speakers of languages other than English, the folks who are disenfranchised and at the margins of society, who have little to no idea about our system of civil justice, let alone how to access it.
I can’t tell you how tired I am of having to tell the people who contact me after time has run out that they are without recourse in our court system. Such a system is not only unfair. It is, frankly, un-American. It does not comport with the concept of a land of opportunity, where there is “justice for all.” It benefits only doctors, hospitals, and insurance companies, while it deprives patients who are often severely injured, through no fault of their own, of any opportunity to better their lives in the wake of medical malpractice.
Are we really OK with a system in which the hospital and insurance industries count on the ignorance of consumers of medical care?
Andrew J. Barovick
(212) 861-2800
[email protected]
www.thenewyorkmedicalmalpracticelawblog.com