Possible Statute of Limitations Bar to Over 600 People Who Doctor Might Have Exposed to Hepatitis B and C and HIV Illustrates Gross Unfairness of Lack of “Discovery Rule”

Earlier this week, 628 people were sent letters by the New York State Health Department urging them to get tested for hepatitis B and C and HIV, all blood borne diseases, because they had received epidural injections from Dr. Harvey Finkelstein, who used re-used syringes, from January 1, 2000 to January 15, 2005.

Even though the victims would have had no way of knowing that they had been exposed to the diseases until now, it may be too late for them to sue the doctor. This is because under New York law, the time period to bring suit (2 1/2 years) begins to run from the date of the malpractice, not the date the malpractice was or should have been discovered by the victim.

The lack of a “discovery rule” in New York for medical or dental malpractice often results in a victim of malpractice not learning that he has a perfectly valid case until it is too late for him or her to seek damages in court.

A common scenario where such an unfair result occurs is where a woman’s mammogram is mistakenly reported as normal, and then after the 2 1/2 years has gone by cancer is found and a review of the earlier mammogram reveals the presence of a tumor that was missed. The discovery rule would aid patients in pursuing litigation. (If you think you might have a case, consult with an attorney to determine whether in fact the statute of limitations bars your case.)

In Dr. Finkelstein’s situation, all but 12 of the 628 people who received the letters live in Nassau and Suffolk Counties. Two Long Island men are known to have contracted hepatitis C, a potentially fatal liver disease, due to the doctor’s breach of proper infection control procedures. The doctor’s practice of re-using syringes can contaminated a multidose vial, even where a clean needle is used for the subsequent injection. When the used syringe is used to draw mose medicine from a vial, backflow causes the medicine in that vial to become contaminated. The tainted medicine is then used for other patients, infecting them.

For this reason, the Centers for Disease Control and Prevention has strongly recommended that single dose vials be used wherever possible. State health officials first became aware of problems in January 2005, when both county and state officials visited his office and watched him re-use a syringe on two separate occasions.

As a result of that, in May 2005, the state health department sent letters to 98 of Finkelstein’s patients who had received injections around the same time as the patients who developed hepatitis. An investigation by the Office of Professional Medical Conduct, the state disciplinary board for doctors, resulted in him being cleared of any wrongdoing, but the doctor did agree to be monitored for 3 years.

Hepatitis C is one of the few viral infections that can be completely cured, or is capable of resolving on its own. However, after many years of infection, it can lead to cirrhosis and eventually liver cancer. Symptoms include nausea, vomiting and aching, rendering a victim bedridden. Hepatitits C is a leading cause of liver transplants in the U.S.

The State Health Department has come under blistering criticism for not alerting Dr. Finkelstein”s patients sooner and for failing to use its subpoena power. The doctor has been allowed to continue to practice uninterrupted. Each month he performs about 100 epidural steroid injections for back pain. It is believed that these injections are the type responsible for the hepatitis C transmission.

Dr. Finkelstein runs Pain Care of Long Island, a pain management clinic where the two hepatitis cases originated. He also practices at Long Island Surgicenter in Melville, New York, and has privileges at New Island Hospital in Bethpage, Plainview Hospital, which is part of the North Shore-Long Island Jewish Healthcare System, and University Hospital at Plainview, New York.

The Health Department Web site shows Dr. Finklestein had 10 medical malpractice settlements against him in the past 9 years, five of which settlements were characterized as “above average,” meaning he paid a high amount to the person suing him. It is estimated that at least a half dozen physicians on Long Island and in New York City within recent years have experienced similar problems as Dr. Finkelstein.

With offices in New York City and on Long Island, Levine & Slavit have been successfully representing clients for 50 years in cases in Manhattan, the Bronx, Brooklyn, Queens and the greater metropolitan area. Contact us with your questions and concerns.

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