Claims Involving Birth Defects

By Andrew M. Rockman

December 1st, 2016

Over the years, many have come to me about their children not performing or progressing normally. Their reaching out was based on the belief something was done incorrectly during pregnancy, labor and delivery, or after birth.

These are almost always difficult and complex birth defect claims, needing evaluation of the parents’ medical and medication history,  sometimes genetics, obstetrics and gynecology, and the conduct of the pediatrician and after birth caregivers. At some point, other specialists might need consulting to discuss why this particular child has his or her specific problem, birth defects or disabilities.

Human nature and the reflex reaction of someone who has done something wrong, make these difficult cases to seek out the facts and separate them from excuses and accurate medical investigation. The problem in finding the truth can often be connected to the fact that the script, in the form of the important medical records, were authored by those involved in the care through pregnancy, labor and delivery.

Put more directly, there is rarely an “oops, I messed up” in the medical records. It is often easier to point to some other explanation than it is to uncover the inconsistencies, and perhaps, true causes of what happened. Major portions of the care that leads up to and includes the birth of a disabled child, are not observed or recorded, other than in the chart that is supposed to record what was done.

Sometimes that chart can be a script written after the fact, describing what the textbooks say is to be done, rather than what was done. Therein lies the mystery to be solved by the birth defect attorney and the resources he must use and know how to find.

The pain and heartache is real and obvious. The facts are often not.

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Doctor Confesses: I Lied to Protect Colleague in Malpractice Suit

By Sherri Warfel

October 4th, 2016

While we frequently hold the medical community on a pedestal and believe they always act in our best interest, we are reminded that they do sometimes make errors or do something wrong.   If you suspect your medical care professional or facility is not being up front with you, or suspect there is negligence in your care or the care of your loved one please contact our office.

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Ovarian Cancer and Talc

By Andrew M. Rockman

May 31st, 2016

Ovarian cancer is uncomfortable to talk about, but a reality of modern day life. Yes, it does happen, but when it occurs as a result of the uncaring conduct of a manufacturer, camouflaged by the seemingly innocent conduct of daily hygiene, it is even more upsetting.

If you, or someone you love had been diagnosed with ovarian cancer, there are questions that need to be asked to determine if either of you has been unnecessarily victimized by a preventable and avoidable cause.

You would want to know from the doctor certain things about the cancer to determine if it is the type known to be caused by pro-longed talc use. That information is known and knowable. If you or your loved one have been a pro-longed TALC user for at least four years, you may be one who has been its victim.

Genetic testing has known results that would tell whether or not you or your loved one are genetically susceptible to the disease.  If you do not have this specific genetic susceptibility, that might be another element of proof, connecting the ovarian cancer to the pro-longed use of talc. In addition, it would be important to know whether or not the diagnosis of ovarian cancer was at a certain age or younger.

There are attorneys who have made themselves familiar with the relationship of talc to ovarian cancer and will know the questions that need answering in order to determine if the connection between the talc and the ovarian cancer can be established and proven.

You should know that talc has been found to be carcinogenic. How often and how it is used can create a very real risk to a seemingly simple daily attempt at hygiene. One company is believed to produce an overwhelmingly major portion of the talc sold in the United States. When it was sold to that company, it had an MSDS warning affixed to the plastic packaging bags, warning that certain exposure can cause ovarian and lung cancer.

The path to victimization started when the company selling it, removed the talc from it’s original plastic bags containing the cancer warnings, added fragrance, put it in the plastic container and marketed it under its brand names.

Regrettably, with long-term use, typically for feminine care and personal hygiene, the fibers in the talc make there way up into the ovaries and have been shown to cause ovarian cancer.  It has also been shown that once cancerous ovaries are removed, talc fibers can be seen on the pathology specimens.  However, when the pathology slides are interpreted for the diagnosis for cancer, the pathologist reviewing them to make the diagnosis would not normally be looking for the talc fibers. If the pathology slides were positive for ovarian cancer, then the tissue block used for the slides would probably need further testing to confirm that they are, in fact, talc fibers.

If you want to see whether or not this product has victimized someone, whether or not that person has had a talc use history of at least 4 years would be significant.  It has been shown that those that have used talc only a few times, are less likely to have a provable claim against the manufacturer or distributor.

There are multiple medical studies confirming the connection between the pro-longed use of talc and ovarian cancer.  The American Cancer Society has indicated that there is a 30 to 40% increased risk of ovarian cancer associated with or connected to regular talc use. By way of example, tampon manufacturers removed talc from their products some years ago, due to the increased risk of ovarian cancer.

If you have been unfortunate to have been diagnosed with cancer, you may want to seek a medical malpractice attorney to see if the likely cause, is other than genetic or from some other reason. There are several factors that should be discussed with an attorney you trust, who is familiar with the problem and the connections between talc and ovarian cancer, to see if your family has a sound basis to seek compensation from the manufacturer of the talc.

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“Medical Error” – the 3rd leading cause of death in the United States

By Sherri Warfel

May 5th, 2016

According to new report from researchers at the Johns Hopkins University School of Medicine in Baltimore you have a greater chance of dying from medical error than from respiratory disease, strokes, Alzheimer’s, diabetes, the flu, pneumonia or car crashes.

The study, which was recently published in British Medical Journal, claims that “medical errors” in hospitals and other health care facilities are very common and may now be the third leading cause of death in the Unites States. According to research going back to 1999, as many as 251,454 Americans a year die from medical errors in hospitals-things such preventable infections, drug errors, mistaken diagnoses, and poor communication – especially upon discharge.

Martin Makary, a professor of surgery at the John Hopkins University School of Medicine who lead the research, noted that medical error includes everything from bad doctors to more systemic issues such as communication breakdowns when patients are handed off from one department to another.  “It boils down to people dying from the care that they receive rather than the disease for which they are seeking care,” Makary said.

It is also possible that these numbers are underestimated.   According to the study authors, Makary and Michael Daniel, M.D., “We believe this understates the true incidence of death due to medical error because the studies cited rely on errors extractable in documented health records and include only inpatient deaths.”  Part of the problem in establishing firm numbers, Makary and Daniel write, is that the Centers for Disease and Control and Prevention does not require that death certificates record medical errors. Currently, death certificates rely on assigning an International Classification of Disease (ICD) code to the cause of death-so deaths not associated with an ICD code, such as human and system errors, are not captured.

While these numbers are both shocking and appalling, human life should not be thought of as simply a “statistical human error”.  It is neglectful, bordering on reckless, to become that cavalier about the health and life of someone who has placed themselves in the hands of a professional who has sworn to the highest ethical standards.

If you know a loved one who has been harmed by medical malpractice please contact our  offices to discuss your legal rights.

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Many New Jersey Hospitals Not Making The Grade

By Sherri Warfel

April 28th, 2016

One-third of New Jersey hospitals dropped a grade or more in the latest national report card judging how well they kept their patients safe by protecting them from infections, bed sores, and harmful errors during their stay.

New Jersey ranked 22nd in the nation – down from last year’s fifth place rating, and the lowest the state has ever scored in the nine reports issued since 2012 by the Leapfrog Group, a nonprofit health care watchdog organization.

Of the 67 hospitals that participated:

  • 23 received an A, 9 fewer than the last round;
  • 16 received a B, 1 more than last round;
  • 26 earned a C, 6 more than last round;
  • Meadowlands Hospital Medical Center is Secaucus earned the only D;
  • Saint Michael’s Medical Center in Newark received the only F.
  • The AtlantiCare Regional Medical Center City Campus and AtlantiCare Regional Medical Center Mainland Campus showed the most improvement by going from C’s to A’s.

In a separate study that Leapfrog contracted with Johns Hopkins Medicine’s Armstrong Institute for Patient Safety and Quality an analysis estimated the number of avoidable deaths at hospitals in each grade level.  According to findings patients have a 9% higher risk of death that was in B hospitals, 35% higher in C hospitals, and 50% higher in D and F hospitals, than in A-rated hospitals.

Linda Schwimmer, president and CEO of the New Jersey Health Care Quality Institute, a Leapfrog-affiliated organization, commented that the study was created with the input of national medical experts and that Leapfrog’s report card remains a powerful tool for educating the public and prodding poor-performing hospitals to improve.

If you have concerns about medical malpractice of yourself or loved one contact us or want to learn more about the study click here.

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Arbitration – A privatization of the Justice System (Part 2)

By Sherri Warfel

November 12th, 2015

In their second article in the series the New York Times writes about arbitration as a ‘Privatization of the Justice System’. Through real-life accounts and interviews they express fear that over the last 10 years thousands of businesses across the country — from big corporations to storefront shops — have used arbitration to create an alternate system of justice.

The change has been swift and virtually unnoticed, even though it has meant that tens of millions of Americans have lost a fundamental right: their day in court. “This amounts to the whole-scale privatization of the justice system,” said Myriam Gilles, a law professor at the Benjamin N. Cardozo School of Law. “Americans are actively being deprived of their rights.”

For more information a link to the complete New York Times’ article is listed below:

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Forced Arbitration

By Sherri Warfel

November 4th, 2015

Forced arbitration is a clause in a contract that requires parties to resolve their disputes without a trial; but instead outside the courts where an arbitrator decides the rules, weighs the facts and arguments of both parties, and then decides the outcome. The clauses, typically written by the corporation, often give them the right to choose the arbitrator and the arbitrator’s decision is almost impossible to appeal.

Many feel forced arbitration is a corporate bullying tactic designed to kick people out of court and eliminate their right to seek justice. It’s a system set up by corporations designed to favor corporations. Businesses are using “the fine print” to take away the rights of consumers, patients, and workers. Unfortunately, forced arbitration has infiltrated nearly all aspects of American life from when they use credit cards, talk on their cell phones, visit websites, start a new job, and even admit a loved one into a nursing home

Congress recognized that forced arbitration was among the leading threats to consumer protection when it created the Consumer Financial Protection Bureau (CFPB) in 2010. Consumer advocates have long said that mandatory arbitration clauses deny clients their rights to a fair hearing.

The New York Times is publishing a series of in-depth articles investigating the corporate bullying tactic of forced arbitration. Their investigation was based on thousands of court records and interviews with hundreds of lawyers, corporate executives, judges, arbitrators, and plaintiffs in 35 states.

Below is a link to the first of their three part series on “Arbitration Everywhere, Stacking the Deck of Justice”


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Medical Malpractice: Fight Medical Error Not Regulation

By Sherri Warfel

September 14th, 2015

With the stalling of NY State’s Lavern’s law – a bill which addressed the statue of limitations for victims of medical malpractice – our focus is once again drawn to the fact that as long as hospitals, doctors and insurance companies block legislation and fight regulation patients will remain in peril.

It seems that every time researchers estimate how often a medical mistake contributes to a hospital patient’s death, the numbers come out worse. In 1999, the Institute of Medicine published the famous “To Err Is Human” report, which dropped a bombshell on the medical community by reporting that up to 98,000 people a year die because of mistakes in hospitals. The number was initially disputed, but is now widely accepted by doctors and hospital officials — and quoted ubiquitously in the media.

In 2010, the Office of Inspector General for the Department of Health and Human Services said that bad hospital care contributed to the deaths of 180,000 patients in Medicare alone in a given year.

Most recently a study from the Journal of Patient Safety that says the numbers may be much higher — between 210,000 and 440,000 patients each year who go to the hospital for care suffer some type of preventable harm that contributes to their death.

That would make medical errors the third-leading cause of death in America. – third only to heart disease and cancer – claiming the lives of some 400,000 people each year. Doctors and hospitals are doing a poor job of policing themselves, yet they have been successful at keeping anyone else from doing it.

A 2013 study concluded that despite the frequency of avoidable errors, very few wind up as medical malpractice lawsuits. “Some say there are lots of frivolous lawsuits, but lawyers would be fools to take on a frivolous case,” says Barry Furrow, director of the Health Law Program at the Earle Mack School of Law at Drexel University. Furrow says attorneys can spend hundreds of thousands of dollars on discovery fees — the costs of gathering facts and evidence to support claims — but in the end, they earn only a percentage of the winnings. And even if a victim wins a medical malpractice lawsuit the awards are generally modest. Thirty-three states restrict the amount of compensation for pain and suffering the victims have endured.

Despite these facts, the American public remains unaware of just how serious the medical error problem is and equally concerning is the fact that many Americans still blame lawyers and the civil justice system for the filing of medical malpractice lawsuits and the cost of medical care. The problem is not limiting injured people‘s statute of limitations, or what they may collect, but instead keeping the negligent act from happening in the first place. Americans already pay a lot for medical care and they should be getting what they pay for not the 3rd leading cause of death in America.

For more information visit our website at or if you believe you or your love ones have been the victim of medical error contact our office at 800-432-LAWS (5297).

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Caring For The Elderly

By Sherri Warfel

June 17th, 2015

At Pellettieri Rabstein & Altman we fight for the rights of the elderly and we respect and appreciate others who join us in their support.

Please enjoy this trailer which shows why what we do is so important…

Thank you.

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Corporate Fraud Litigation: Corporations & Their Attorneys Behaving Badly

By Sherri Warfel

December 3rd, 2014

Recently the Third U.S. Circuit Court of Appeals overturned the New Jersey District Court’s decision relating to a fraud case against defendants BASF and the New York law firm that defended them for years in asbestos cases, Cahill, Gordon & Reindel.

The plaintiffs, who were petitioners in asbestos workers ’ compensation claims, asserted that BASF and their law firm had collected and destroyed or hid evidence of asbestos-contaminated products in order to evade liability and forge minimal and in some cases no settlements.  The alleged deception had gone on for over two decades and conspired to prevent thousands of asbestos-injury victims from obtaining fair recoveries.

“This action is not itself an asbestos injury case, but rather an action about BASF and Cahill’s conduct when they confronted asbestos injury cases in State Courts around the country,” the Appeals Court wrote.

While this reads like a John Grisham novel the unfortunate truth is that often corporations that are defendants, and their attorneys, sometimes employ the same defensive tactics of trying to hide the truth.  Whether the company manufactures plastics or is a privately owned nursing home the fact remains the same – fraud and concealment occur, sometimes pushing the legal limits.   While the discovery process requires both sides to be forthcoming with information, how would a plaintiff know what they don’t have if they don’t know it exists?  Sometimes concealment comes in the form of denying a request because perhaps the right lingo isn’t used and sometimes, like in Cahill, it crosses the line by denying an incriminating incident report even exists or hiding the name of an employee who has knowledge about it.

The District Court Judge dismissed this case initially due in part to the litigation privilege which is a certain type of immunity given to lawyers to protect them from lawsuits based on their statements in judicial proceedings.   However, the Third Circuit found that the litigation privilege has limits, in part, which do not permit corporate defendants to subvert the legal process through a pattern of conduct which includes misrepresentation not only to plaintiff’s lawyers but tribunals as well. In the words of Judge Julio Fuentes, “The privilege has never applied to so shield systematic fraud directed at the integrity of the judicial process.  Nor should it.”

If you believe you or a loved one has been injured at work, by a defective product, or through medical malpractice at a nursing home, please contact our office.

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