Ben Rubinowitz, a personal injury attorney who has attained a number of record-breaking verdicts, recently handled a case where the hospital acknowledged a mistake, but said that wasn’t what led to the damage.
As in many cases, the crucial decision wasn’t about facts, but fault.
In “Lee v Westchester Medical Center,” a second-year radiologist and first-year resident neurologist at Westchester Medical misdiagnosed a stroke as an infection.
Three hours later, the 41-year-old-man was diagnosed properly and treated by a board certified radiologist. The man experienced severe brain damage and massive memory loss. The hospital argued it was due to the stroke’s severity. Rubinowitz said delays led to the damage.
With strokes, time is crucial. Time is life, one might say. Rubinowitz summarized the case in three words: Time is brain.
“Two million brain cells die a minute,” he said.” Three hours and 20 minutes, that’s 420 million brain cells.”
Simplicity and precision, as well as a clear focus on error and its impact are hallmarks in his method. He acknowledged the hospital did a lot right, but argued their failure was nearly fatal.
“They have board-certified radiologists, but they didn’t have any there at the time,” Rubinowitz said. “Just as a plant will die if you don’t water it, the brain will die if it doesn’t get sufficient oxygen and nutrients.”
The managing partner at Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf, Rubinowitz won a $120 million medical malpractice verdict, leading to a $30 million payout after the judge modified the amount.
“The verdict was based on his pain and suffering, medical costs for life,” Rubinowitz said. “He has to be institutionalized.”
Although he didn’t say it, the verdict also reflected years of training, experience and courtroom prowess.
A topnotch trial attorney and personal injury lawyer who lives in Sea Cliff, Rubinowitz is past president of the American Board of Trial Advocates and a board member of the National Institute of Trial Advocacy.
He has taught more than 200 courses for continuing legal education, lectures to hospitals, law schools and recently won another verdict out of court. He was named by Best Lawyers “Lawyer of the Year” for personal injury and product liability plaintiffs, in the New York metro area. It was the eighth time he won similar distinctions.
“We get paid if we win, so we are strict with what cases we agree to accept,” Rubinowitz said, noting selection is key. “I don’t want to sue a doctor unless they’ve really done something wrong.
The art of argument
If money (or a least verdicts, since large ones typically are reduced by judges) is any measure, Rubinowitz is a master lawyer. He recently won a $59.2 million verdict for a student disfigured by a chemistry experiment; a $41.4 million verdict for the family of a city sanitation worker killed by a street sweeper; a $71 million verdict in a car accident injury case; and $27.5 million verdict for a woman struck by a bus.
“That is the art of advocacy,” he said of framing cases or reducing them to a phrase. “Depending on who the lawyer is, they know how to frame this for the jurors.”
He talks about framing or boiling down cases to the simplest obligation and negligence, making sure jurors don’t get lost in details. State the facts. Find the fault. Explain the principle, so they feel the impact.
He, for instance, a number of years ago handled a case where a student was disfigured when a tenth-grade chemistry teacher did an experiment with methanol gas to show different substances burn different colors. Students were closer than the 12 feet recommended for safety.
“He’s a kid minding his own business, interested in science. The teacher didn’t take proper precautions,” Rubinowitz said. “The lack of care and caution on the part of this teacher was not just wrong; it was egregious.”
He framed it as a failure to provide for safety of children in your care.
“If you’re going to use fire and fuel in a classroom, you have an obligation to protect children,” he said.
He sued the New York City Board of Education, winning a roughly $59 million verdict, the biggest such verdict at the time, even when the appellate division reduced it to $29
million.
Portrait of an Attorney
To know a street, you have to walk on both sides, which he has done.
Rubinowitz graduated with a B.A. from Boston University in 1978 and a JD from Hofstra in 1981 and then worked for the Nassau County prosecutor’s office.
“That’s where I learned how to try a case, “he said. “I had 50 jury trials in three years as a young assistant district attorney. The training I received there was, as far as I’m concerned, the best training in the world.”
Pat McCloskey trained Rubinowitz and hundreds of other assistant DAs. After three years there, he left and began representing plaintiffs, including medical malpractice and
“never looked back.”
He won a $75,000 verdict in his first civil case on behalf of a woman who tore her meniscus in a car accident, claiming the other driver improperly entered an intersection.
“I thought it was a huge amount of money back then,” he said of the 1985 verdict.
While cases are often complex, he often finds key pieces of information regarding liability. He’s currently handling the case of a 30-year-old man crushed as he exited an
elevator that failed to stop. He found an email from an elevator repair company to the owner, indicating the elevator needed a part replaced.
“It said the part we’re talking about reached their life expectancy,” he said. “You need to make immediate changes.”
Making Big Change
In addition to a good record with verdicts, Rubinowitz sometimes promotes change to prevent errors from recurring.
Melissa Rivers brought him and his firm in on behalf of her mother, comedian Joan Rivers, who died after going for an upper endoscopy, a simple medical procedure at a surgical center.
They didn’t have a crash cart with medication and equipment in case a tracheotomy was needed. So the center couldn’t do a life-saving procedure. They reached a confidential settlement, but went for much more.
“Melissa was concerned about making sure this doesn’t happen to anyone else,” Rubinowitz said, noting they helped craft legislation mandating centers in New York State to have these carts and capabilities.
“These surgical centers now have to have crash carts available with rescue medications and equipment. We tried to change the law to make things better for everyone.”
Consolidated cases
While he can be described as a “lawyer’s lawyer,” there are cases where other lawyers select him to represent their clients.
After a Metro North train crash killed five and injured 30, he and other lawyers represented the injured. When judge Paul Marx asked the liability phase be consolidated, the other attorneys asked Rubinowitz and his partner Richard Steigman to take the initial case.
“That verdict stands for all injured or killed,” Rubinowitz said. “There was one case on liability.”
A motorist had stopped on the train track at night, not realizing that’s where she was.
The conductor on the Metro North train from Grand Central to Chappaqua saw an object on the track with a light, but didn’t slow down.
“He knows it’s not an animal. He knows there has to be something there,” Rubinowitz said. “My position was if you see something like that, slow down.”
Rather than stopping, the train speeded up to 59 miles an hour, according to the black box. “My frame on that case was slow down, speed kills,” he said.
Rubinowitz won a verdict, holding Metro North 71% responsible, making them fully financially responsible. The driver was found to be 29% responsible. Metro North damages have yet to be determined.
“The conductors and engineers on a train are told there is one major rule. And that is, when there is doubt or uncertainty, you must, not may, take the safest course of action,”
he said. “That’s what they are trained. It’s in their guidelines.”
Anatomy of errors
Rubinowitz also teaches, lecturing to lawyers in continuing legal education courses and to healthcare providers.
“I’ve been teaching throughout my career,” he said. He also has lectured at the Mayo Clinic, Columbia, NYU/Langone, Mount Sinai Hospital, Vanderbilt and the American Urologic Association about medical malpractice
“I give examples of cases and show what they did wrong, to try to make procedures better and safer,” Rubinowitz said.
He tells healthcare providers, as well as attorneys, there are many reasons for mistakes, but “lack of communication” can matter as much as lack of competence.
Tests often find incidental things such as potential cancerous findings where providers’ call for tests are ignored.
“Very often there’s a lack of communication,” Rubinowitz said. “Nobody notices the patient might have lung cancer. And it goes untreated and the patient dies.”
The radiologist may write a note indicating findings that get lost in the shuffle, leading to death.
Rubinowitz has pushed for providers to forward findings, lecturing to radiologists at NYU Langone, where they now have a communications division.
“If someone has to be notified of an incidental finding that could be life-threatening, a group of people call the doctors,” said Rubinowitz who advocates for clear communication among healthcare providers. “I feel very good about that.”
