by John Darer CLU ChFC MSSC CeFT RSP CLTC
Prolific Great Neck Medical Malpractice Lawyer Serves up a "Trope-I-cal Cocktail"
"First, a structured settlement is simply a way for the defense to pay you money over a period of time" Gerald Oginski Great Neck, NY
That appears under the heading why his New York medical malpractice client REFUSES to take a structured settlement. The emphasis is Oginski's
Gerald Oginski's "cocktail shaker" produces foul tasting "cough medicine" with this statement and he knows it. The statement by Oginski is both misleading and inaccurate. Structured settlements are not funded over time. The defendant or the defendant' insurer funds the cost of the future payments up front. These amounts and payments are required to be disclosed under the New York State General Obligations Law Section 5-1702(e)
Oginski states on his law firm's website that he is a member of the New York State Trial Lawyers Association, New York State Academy of Trial Lawyers and the Nassau County Bar Association. NYSTLA solicits money from structured settlement brokers and other businesses that may be associated with a structured settlement broker/settlement planner and calls them "Partners for Justice". Two such firms contribute more than $100,000 annually to NYSTLA. A member of NYSTLA has, in a prior year, published on a confidential NYSTLA listserve that its members should do business with a particular firm because they made a $60,000 contribution to NYSTLA. If Oginski's trope (that can be heard in the sales pitches of cash now vultures) were true, then what would that say about NYSTLA, the New York State Academy or any other lawyers association that Oginski is affiliated with, that solicits money from (and takes money from) structured settlement brokers or settlement planners?
Any trial lawyer who believes the trope and is biased because of it, may be doing a massive disservice to their clients. Given that plaintiffs are increasingly doing their own research online, I hear from some of those people who ask me "why did my lawyer (not specifically Oginski) not tell me about that?"
Oginski attempts to explain the trope:
"In a medical malpractice case here in New York, if your case goes to a jury verdict and the jury determines that you are entitled to receive compensation from the doctors and hospital who caused you harm, you are able to receive the first $250,000 upfront. The remaining amount of money is required to be paid out over a period of many years.
Oginski attempts to explain a structured settlement using a long outdated characteristic of a medical malpractice structured judgment. But they are not the same and Oginski hasn't even got that right. First, ALL past damages are paid up front. A portion of the future damages are also paid up front. The amount of the future damages that are paid up front varies by the applicable section of the New York CPLR. CPLR Article 50- A (CPLR 5031-5039) applies to Medical, Dental and Podiatric Malpractice since 1985. A companion law, CPLR Article 50-B (CPLR 5041-5049) applies to other types of judgments in personal injury, injury to property and wrongful death actions other than medical dental or podiatric malpractice. Until July 25, 2003, when the so-called "New 50-A" went into effect, $250,000 was lopped off future damages, and paid in a lump sum, just like CPLR 50-B. After that date the amount and process for calcualtions was radically changed. That was more than 16 years ago!
In "Unintended Consequences of Tort Reform: Rent Seeking in New York State's Structured Settlements Statutes" Spizman and Schmitt {2000), economists Lawrence Spizman and Elizabeth Dunne Smith inaccurately referred to New York's CPLR Articles 50-A and 50-B as 'structured settlement statutes".
Examples of legitimate structured settlement statutes
IRC 104
IRC 130
IRC 139F
IRC 5891
NY G.O.L. 5-1702
How can a lawyer and economists miss what is actually written in the CPLR Article 50A statute? To wit PERIODIC PAYMENT OF JUDGMENTS IN MEDICAL AND DENTAL MALPRACTICE ACTIONS
Comments and Trackback Policy