Angelo G. Faraci and Stephen G. Schwarz are among the 50 attorneys who received the highest point totals during the New York Super Lawyers-Upstate nomination, research and review process.

Faraci, of Rochester, is listed in the New York Super Lawyers in personal injury plaintiff: medical malpractice. He has been listed in New York Super Lawyers since 2007. Schwarz, of Fairport, is listed in personal injury plaintiff: medical malpractice. He has been named to New York Super Lawyers since 2007.

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The seven attorneys named in the 2012 edition of Best Lawyers are:

• Matthew F. Belanger, of Brighton, in the practice areas of personal injury litigation and product liability litigation. Belanger has been named to Best Lawyers since 2008.
• John A. Falk, in medical malpractice law, personal injury litigation and product liability litigation. The Brighton resident has been named to Best Lawyers since 2009.
• Angelo G. Faraci, of Rochester, in legal malpractice law, medical malpractice law, personal injury litigation and product liability litigation. Faraci has been listed in Best Lawyers since its inception in 1983.
• Paul K. Lange, of Rochester, in medical malpractice law, personal injury litigation and product liability litigation. He was first named to Best Lawyers in 2001.
• Joseph A. Regan, in medical malpractice law, personal injury litigation and product liability litigation. The Rochester resident has been named to Best Lawyers since 2005.
• Stephen G. Schwarz, of Fairport, in medical malpractice law, personal injury litigation and product liability litigation. Schwarz has been named to Best Lawyers since 1999.
• Brian M. Zorn, of Victor, in medical malpractice law, personal injury litigation and product liability litigation. Zorn has been named to Best Lawyers since 1995.

Best Lawyers is regarded, by both the legal profession and the public, as a definitive guide to legal excellence in the U.S. The new 2012 Best Lawyers is based on a rigorous national survey involving more than 3.9 million detailed evaluations of lawyers by other lawyers.

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“The Best Lawyers in America” is a national organization that lists by specialty the attorneys and firms in each geographical area who other attorneys rate among the best in their specialty. As you would expect these attorneys are highly experienced in their fields. Look for firms who have attorneys listed in the medical malpractice section – the more attorneys listed, the greater the firm’s overall medical malpractice experience.

The American Board of Trial Advocates and the American College of Trial Lawyers are two other excellent resources because they have rigorous admissions standards and only admit highly experienced trial attorneys. For example, The American College of Trial Lawyers only admits those trial lawyers who are outstanding and considered the best in a state or province. This is very important because the better medical practice attorneys are all highly experienced trial attorneys. This is also very important because highly experienced and regarded medical malpractice trial attorneys are more likely to obtain better settlements and verdicts.

In matters as serious as birth trauma injuries you want to know if in addition to superior medical malpractice experience and legal skills, the attorneys and firms also practice at the highest ethical standards. “Martindale-Hubbell” is a highly respected national publication that uses peer reviews to rate attorneys and firms on both the quality of their legal work and their ethical standards. Look for attorneys and firms that receive both an “A,” their highest legal quality grade and a “V” their highest ethical grade.

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Various treatments, procedures and equipment, which may be needed over your child’s lifetime, can benefit your child in multiple ways. Children with Erb’s palsy may benefit greatly from physical therapy and/or surgery.

Although cerebral palsy cannot be cured, treatments are available to help children overcome developmental disabilities or learn different ways to accomplish tasks they otherwise could not do. Such treatments may include: physical and occupational therapy; speech therapy; procedures and equipment to improve respiratory care and/or nutrition; medications to prevent seizures, alleviate muscle spasms, and reduce pain; surgery to correct anatomical abnormalities or release tight muscles; braces and other orthotic devices; wheelchairs and walkers; and communication aids such as computers with attached voice synthesizers.

Because cases involving birth trauma injuries typically are highly complex, involve several medical specialties, and multiple technical economic issues, highly experienced medical malpractice attorneys willing to devote the substantial time and resources these cases require, are best equipped to handle these cases.

Substantial experience with medical malpractice cases generally, and birth injury cases specifically, are required to understand the medical records and complex medical issues, and put together the team of medical and other experts necessary to evaluate thoroughly whether medical mistakes were made and, if so, how those mistakes caused the deficits and disabilities and the appropriate amount of compensation to seek.

Medical experts are typically needed in one or more of the following fields: obstetrics, neonatology, pediatrics, physical and occupational therapy, pediatric neurology and pediatric neuroradiology. Experts who evaluate the economic expenses flowing from the deficits and disabilities typically include Life Care Planners, who assess the child’s medical, treatment, equipment and facility needs on an annual basis, and economists, who project the cost of those needs over the child’s lifetime.

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Some of the more serious birth trauma injuries include:

• Cerebral palsy, a group of neurological disorders, caused by abnormalities or injuries to the areas of the brain that control muscle movements. Cerebral palsy can affect speech, body movement and muscle coordination. Muscles can be either very rigid or very floppy. All types of cerebral palsy are irreversible and permanent, and all can be severely disabling.
• Brain damage, resulting in vision or hearing loss, motor impairment, and/or cognitive deficits including mental retardation;
• Erb’s palsy, which is arm paralysis ranging from mild to severe, including a non-functional arm and clawed hand. It is caused by injury to a group of nerves exiting the cervical spinal cord called the brachial plexus. These injuries typically are caused by failure to properly manage a delivery when the baby’s shoulder gets stuck behind the pelvic bone, a condition called shoulder dystocia.

The types of medical mistakes that can cause these debilitating conditions, among others, include, failing to:

• appreciate or do appropriate prenatal tests;
• consider and use the appropriate delivery method (such as proceeding with a vaginal delivery when a C-section should be performed);
• monitor fetal wellbeing properly during labor and delivery;
• treat promptly signs of fetal distress (which could be from lack of oxygen, infection and/or bleeding);
• give appropriate doses and types of medications (or, conversely, give wrong doses or types of medication); and
• have appropriate and timely physician involvement and supervision.

If your child suffered a birth trauma injury you suspect was caused by the medical mistake of a doctor, midwife, nurse, anesthesiologist, or other medical provider, you should consider meeting with a medical malpractice attorney who is highly experienced in birth injury cases to learn about your legal rights.

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The statute makes clear that “[h]ealth insurers (other than Medicare and Medicaid) shall be the primary payers of qualifying health care costs of qualified plaintiffs”. It also deprives health insurers of any right of subrogation against the fund to recover these costs. Presumably Medicare and Medicaid will also defer to the Fund for payment of medical expenses on behalf of qualified plaintiffs, although the chance of a qualified plaintiff being Medicare eligible seems a bit remote. Since most settlements of birth injury cases result in the formation of a supplemental needs trust which permits the child to continue to receive Medicaid benefits, there will be a significant shift in the burden of paying these expenses away from Medicaid and to the Fund.

Attorneys’ Fees

The statute provides that the attorneys’ fee shall be paid entirely by the defendant and its insurer including any amount apportioned to future medical expenses in the judgment or settlement. It also provides that “… the portion of the attorney fee that is allocated to the non-fund elements of damages shall be deducted from the non-fund portion of the award in a proportional manner.”  This presumably means that the defendant or insurer must pay all of the damages awarded or provided for in the settlement which are not for future medical expenses and must also pay an attorney’s fee for the portion of the award or settlement that is attributable to future medical expenses. The mathematics involved in applying the sliding scale Judiciary Law fee schedule with the structured judgment provisions of CPLR Art. 50-A and then backing out the portion attributable to the future medical expenses will be frightening for most attorneys who went into law because they were not good at math.

Practice Implications

As stated at the outset, the overall implications of this legislation are difficult to predict. What is certain is that settlement agreements will now have to specifically break out future medical expenses into yearly or monthly payments similar to a structured judgment. The broader question of whether the creation of the Fund will increase or decrease the probability of settling these cases is a much harder call. On the one hand, with the probable elimination of the obligation of payment of the largest component of most awards in birth injury cases insurers may be more willing to go to verdict and take their chances. On the other, the requirement that the insurers pay the attorneys’ fee on the entire award and the possibility that the Fund may suspend enrollment making the defendant or insurer responsible for payment of the future medical expenses, going to trial will retain significant risks for defendants. As stated at the outset, overall the legislation is much less punitive to injured infants and their families than had been feared and plaintiff’s attorneys doing malpractice work of this type may have once again dodged a bullet.

During the lead up to the budget deadline, the general thinking was that if enacted the neurological birth-injury bill would replace existing tort remedies in this area. However, if that was the initial desire of the health care industry that had lobbied for this legislation, this is not what came out of the negotiations. The final product provides for payment of healthcare costs for qualifying plaintiffs whether they won a judgment or agreed to a settlement. This apparently means that the fund would pay for costs “actually incurred” by the qualified plaintiff in future years. If the fund will pay for the amounts “actually incurred” then it would not pay the judgment or settlement amount. Thus, the relevance of the amount awarded by the jury or apportioned in the settlement for these expenses appears to be only as to the calculation of the attorneys’ fee or when Fund enrollment is suspended (see below).

Modification of Judgments and Settlement Agreements

Settlement agreements rarely if ever apportion the proceeds of a settlement between the various items of damages alleged. This practice will now have to change for birth-related neurological injury cases. To qualify for the fund all settlement agreements must expressly state this expectation and the statute requires judges considering the approval of a proposed settlement to “direct the modification of the agreement to include such term as a condition of court approval” where it is not contained in the original agreement. Where a plaintiff obtains a court decision or jury verdict that includes an award for future medical expenses, the judgment must contain a provision which indicates that the award for these expenses is to be paid out of the Fund.

Since the fund will pay for only expenses “actually incurred” then the amount set forth in the settlement agreement or judgment should have no impact on the ultimate amount received by the qualified plaintiff for such expenses. However, the amount is important to the calculation of the attorneys’ fees and in the event Fund enrollment is suspended.

Suspension of Enrollment in the Fund

The statute provides that whenever the total estimate of current liabilities equals or exceeds 80% of the fund’s assets, further enrollment of qualified plaintiffs is suspended until a new deposit has been made into the fund, which would most likely be in the next budget cycle. Moreover, the statute provides that “[j]udgments and settlements for plaintiffs or claimants for whom applications are denied … or who are not eligible for enrollment due to suspension [of enrollment due to lack of sufficient funds] … shall be satisfied as if this title had not been enacted.”  Thus, in the event that either the plaintiff in the case is not accepted as a “qualified plaintiff” by the nature of his injury, or if enrollment is suspended due to lack of funds, the amount set forth in the agreement or judgment must be satisfied by the defendant. Under the structured judgment provisions of CPLR Art. 50-A, the amount awarded for future medical expenses is stated as a yearly payment in the first year increasing at 4% per year thereafter. Presumably, settlement agreements will now need to set forth yearly amounts for these expenses as well in the event that fund enrollment is suspended when the settlement is reached. After additional funds are added and suspension is lifted, the applicants are to be considered in the order in which they applied. Thus, depending on the backlog, there is some chance that a waiting list of over a year could develop meaning that multiple yearly payments may be required by the defendants.

Basic Provisions of the New Legislation

In its simplest terms, the new legislation is designed to provide a secondary source of payment for future medical expenses incurred by a narrowly defined group of injured infants. This source is available (1) only if the strict definitions of the statute are met regarding the nature of the injury; (2) only if there has been a judgment entered or settlement consummated where it is stated that the injury was alleged to be caused by malpractice and (3) if the fund administrator determines that there is enough money in the fund to accept new “qualified plaintiffs”.

The legislation states as its purpose to create a fund “… to provide a funding source for future health care costs associated with birth related neurological injuries, in order to reduce premium costs for medical malpractice insurance coverage”. The statute defines “Birth-related neurological injury” as “…an injury to the brain or spinal cord of a live infant caused by a deprivation of oxygen or mechanical injury occurring in the course of labor, delivery or resuscitation or by other medical services provided or not provided during a delivery admission that rendered the infant with a permanent and substantial motor impairment or with a developmental disability” as that term is defined in the Mental Hygiene law. Thus, the legislation applies only to hypoxic or mechanical brain or spinal birth injuries resulting in permanent motor or developmental deficits.

“Qualifying health care costs” is broadly defined to include virtually all conceivable future medical expenses that would be incurred by a brain damaged infant.

A “qualified plaintiff” is defined as a plaintiff or claimant who has been found by a jury or court to have sustained a birth-related neurological injury as a result of medical malpractice or has settled a lawsuit or claim alleging the same.