The Death Of Esmin Greene At Kings County Hospital Invokes Pleas For Legal Reform From Noted New York City Medical Malpractice Lawyer

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"Despite allegedly being caught red-handed on a surveillance video, Gurfein said, "nothing of any substance is likely to happen to protect patients from the appalling conditions at Kings County Hospital until legislators are willing to reform an arcane statute on the books in New York State called the Wrongful Death Law."

Vows by New York City health officials to institute new reforms - including checks on waiting-room patients every 15 minutes - at troubled Kings Country Hospital in Brooklyn where staff were caught on video tape allegedly ignoring Esmin Greene as she lay on the floor dying, are too little too late and will have little, if any, real impact on the deplorable management and care of patients at Kings County Hospital, said an angered Richard Gurfein, a New York City medical malpractice lawyer and a leading advocate for civil justice in the State of New York.

"Despite allegedly being caught red-handed on a surveillance video, Gurfein said, "nothing of any substance is likely to happen to protect patients from the appalling conditions at Kings County Hospital until legislators are willing to reform an arcane statute on the books in New York State called the Wrongful Death Law."

According to Gurfein, a partner in the New York City personal injury law firm of Gurfein Douglas, The Wrongful Death Law, enacted before The Civil War, prevents families of loved ones who die as a result of neglect and abuse from suing for the heartbreak of losing a loved one by negligence. Ignoring an ill patient in the waiting room of a major hospital in New York City is the most egregious type of neglect.

"I, and other members of the Trial Bar in New York State," Gurfein said, "have been knocking ourselves out for years trying to convince legislators in Albany to toughen this very arcane, 170-year-old statute.

"We have been blocked at every turn by the powerful health insurance lobby," Gurfein added. "Under our system of laws," Gurfein explained, "wrongful death is a civil wrong (tort) that is remedied by the courts with payment of the lost income the decedent would have contributed to support the family. But under the existing statute (Estates Powers and Trust Law section 5-4-3), the right of action by a family member, or other personal representative, to damages for pain and suffering or for the heartache of losing your mother (Esmin Greene had 6 children she was supporting) is not recoverable. The awards for pecuniary loss require a showing of income earned and typically represent only a small portion of the real loss of a mother's love, guidance, child rearing, etc."

According to Gurfein, the existing statute does allow an estate to seek punitive damages where the wrongful conduct was so wanton or reckless as to show a conscious indifference and utter disregard of its effect on the health, safety and rights of others. Punitive damages are used to punish the defendant and to eliminate such reckless conduct in the future by the defendant and others. However, punitive damages cannot be claimed against the City of New York because it is a municipality and lives under the state's umbrella of immunity.

Gurfein, a past president of The New York State Trial Lawyers Association, is one of only two lawyers in New York State to have ever successfully recovered punitive damages on behalf of a client in a medical malpractice case.

"The way the law is now," Gurfein said, "if a city-run hospital is so wanton, and reckless that it puts the health, safety and rights of others at risk, as Kings County Hospital allegedly did in the case of Esmin Greene, they just shrug their shoulders and move on because they cannot be charged with punitive damages and they'll never have to pay the children for the true value of losing their mother. There is something very wrong with this picture that must be changed."

Gurfein suggests that concerned citizens write to their legislators in Albany demanding passage of the grieving families act to allow the true measure of damages for the death of a loved one.

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Richard Gurfein

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