Really, the one of the nicest complements you can give a writer is that you listen to what the writer has to say even when you disagree with it. I feel the same way about, for example, George Will and Charles Krauthammer. I think that all of us need to keep in mind that on a lot of issues of our day, someone smarter than us disagrees. And, with Walter, you always feel like you are getting his thoughtful views as opposed to a knee jerk "party platform" opinion. One good example: Sonia Sotomayor. I don't know how much Walter agrees with her on issues of our day on which reasonable minds differ that will be before the Supreme Court, but those differences did not change his analysis. Too many of us try to solve the equation after we already know the answer. Walter comes up with his own answer by doing his analysis and forming a conclusion, as opposed to forming a conclusion and then doing the analysis.
Happy 10th Birthday Overlawyered!
]]>I'm glad to see the FDA is looking at the safety and efficacy of existing drugs. There is no question that Vicodin and Perocet are misused and overprescribed. My only fear with a recall or withdrawal of these drugs for what I'm guessing is the 5% of people on Perocet or Vicodin that really need the drug. They are in great pain, are not finding relief elsewhere, and the benefits of the drugs far exceed the risk of overdose or liver damage for that patient.
]]>Maryland jury verdicts in series personal injury cases are generally higher in the District of Columbia. Again, I don't know the methodology of how MVM gets its numbers. If they rely on personal injury lawyers reporting that data - which I do not think they do - then that could possibly skew the data as could a lot of other things that only a statistician could find. Particularly since Metro Verdicts includes settlements in their statistics, it is hard not to suspect that data could be skewed. The only way auto accident settlements (as opposed to malpractice settlements that have to be reported) get on the radar screen is if you call Metro Verdicts and tell them you settled a case. But there are few sources of verdict and settlement statistics in personal injury cases so it is hard not to find data like this interesting. I would love to see a jurisdiction comparison of Baltimore City and all of the counties in Maryland.
This new lawyer's picture is in the Boston Herald story. He looks like a great guy and I give him credit for fighting the system, fighting his case to the Massachusetts high court, and becoming a lawyer. That's great and he will probably be a good lawyer. But can you imagine going to a doctor who says, "Oh, yeah, I got my medical degree on-line while I was working as a computer consultant." And what would that make you think about other doctors?
I have not read the opinion. But I cannot imagine why having a rule that only graduates of ABA-accredited laws schools can take the bar exam is a bad idea.
]]>Perhaps I've gone completely mad. Maybe. But hospitals' risk management will decide whether there is malpractice and then appropriately pay the victims? I have not gone that mad. This article is written by bizarro Ron Miller, to coin the Seinfeld phrase, a "conservative blogger and activist, former and future candidate for the Maryland Senate, and communications director for the Calvert County Republican Party." I'm sure he is a nice guy. But politically, and particularly on this issue, he is the anti-me. And I don't think this article even offers the best arguments for those arguing for tort reform in Maryland medical malpractice cases.
From this, a serious question has to be asked: who is the most famous Ron Miller in Maryland? For conclusive, unassailable proof, I turn to Google. So I Googled "Ron Miller Maryland," and "famous Maryland Ron Miller." It would be indiscreet to publish the results of this search. But in an unrelated story, your Ron Miller will be signing autographs at Einstein's Bagels in Severna Park on Saturday between 9:00 a.m. and 10:00 a.m.
]]>Medical malpractice reform advocates claim that this does not account for defensive medicine. They rely in part on 2005 JAMA study that found that over 90 percent of doctors admit to practicing defensive medicine. President Obama’s speech to the AMA last week certainly led them to believe that he agreed that we need to “scale back the excessive defensive medicine” in this country.
Let us not pretend that there is no defensive medicine in this country. But we have to take out of the medical malpractice equation three kinds of defensive medicine: (1) tests and evaluation that are actually good for the patients, (2) additional treatment that is motivated, not by fear of lawsuits, but by fear of harm to the patient, and (3) patient induced defensive medicine (i.e. patient seeks tests doctor would not necessarily recommend).
]]> With respect to the defensive medicine that is actually good for the patient, it is certainly true that the cost/benefit analysis weighs in favor of some tests not being taken. But there are a lot of tests and other care that carries little risk, so while they might be ‘defensive,” they are also a good idea. If defensive medicine includes cautious and careful, sign me up for some defensive medicine.My view has always been that it takes a pretty bad person to order medical care they think will, on balance, hurt a patient, just to save themselves from a malpractice lawsuit for which the vast majority of doctors have medical insurance. The vast majority of doctors – including those correctly accused of medical malpractice – are good people who are going to pick their patient over their own liability risk that is covered by malpractice insurance.
]]>The law firm did what a lot of plaintiffs’ law firms do in product liability cases where there is a chance of significant recovery: they offer plaintiff a medical test at no charge which is characterized as an independent medical exam. In this case, the test was an echocardiogram.
As many good stories do in 2009, this one also involves sex and (audio) tape. Plaintiff’s lawyer is accused of telling his client that she needed to “spend some time on [her] back” with him (later in the conversation he said he was kidding), that he wanted to touch her breasts, asking her how many people she had had sex with, and the like. Plaintiff taped the conversations because – get this – her husband did not believe her. The article gives the impression that Plaintiff never really voiced objection to these comments.
Who do you root for in a case like this? Not the lawyer who, on his best day, acted inappropriately in the case. Bar counsel in Kentucky has put on hold its evaluation until after the case, but eventually these claims are going to be heard. But it also hard to root for a Plaintiff who claims the lawyer and his law firm damaged her "mentally and emotionally" and "caused her a great deal of humiliation.” Exactly how much money are allegations like this worth? There is no question that the allegations are very serious. But there is an incredibly important difference between making allegations of serious misconduct and allegations of serious injury.
The police officer responded to an emergency report of a pedestrian-automobile accident. On his way to the scene of the reported accident, Plaintiff's police car was hit by another car, causing what were apparently pretty serious injuries. The pedestrian involved in the accident to which the Plaintiff was responding had earlier that day undergone sedation after a colonoscopy at Brockton Hospital. Plaintiff's theory of the case was had the hospital provided an escort for the patient/pedestrian, he would not have had to respond and the accident would not have occurred.
Specifically, Plaintiff argued that a duty of care existed under two theories to back door the foreseeability problem: (1) a "special relationship" the hospital had with the patient and with Plaintiff, (2) a voluntary assumption of a duty of care by the hospital to protect third parties from harm caused by "impaired" patients.
The case generated some attention. Amicus briefs filed by the Massachusetts Academy of Trial Attorneys in support of Leavitt, and by the Massachusetts Defense Lawyers Association and the Professional Liability Foundation, Ltd., in support of the hospital.
The Massachusetts high court found that both theories were not distinctions from the duty and foreseeability problem in finding that a hospital owes a duty of care to a nonpatient third party to prevent a sedated patient from causing injury after the patient leaves the hospital.
Whether negligence extends to "an innocent third-party bystander" was recently decided in Maryland in Gourdine v. Crews. In that case, the family of a man killed in an auto accident brought a lawsuit against Eli Lily claiming that his death was caused by a diabetic who blacked out while under treatment with two insulin medications.
]]> The Maryland Court of Appeals faced the same fundamental issue: whether Lily owed a duty to the decedent, in this case for the inadequate warning to the driver that she might cause a car accident as the result of the medications. Plaintiff's argument was that the driver was on Humalog and suffered hypoglycemic reaction which caused her to black out (which caused the car accident). Humalog's manufacturer owed a duty to protect users of the roads by warning them of the risk of hypoglycemia that the drug imposed.The court adopted Justice Cardozo's logic that we all read in law school during the first few weeks of torts in Palsgraf v. Long Island Railroad, finding that because there was no direct connection between Eli Lily’s warnings and the victim, finding a duty from Lilly to decedent would be tantamount to Lily owing a duty to everyone.
I'm not sure why this is necessarily a bad thing: Eli Lily would be negligent and the victim of the accident died. Of the two, I'd rather the Lily pay for that loss than the Plaintiff. But I also understand the practical concerns of why my reasoning - and Judge Andrews’ reasoning in Palsgraf, has not carried the day in American jurisprudence.
]]>Given the reputation of AIG these days, these might have been smart claims to pay. But AIG really has no obligation to pay them because there is no evidence that I've heard that its insured, US Airways, was responsible for the accident. The geese are not responsible.
US Airways did a good thing paying each victim $5,000 after the accident to cover their immediate needs. That is just smart public relations. AIG would be wise to look at the big picture as US Airways did. But they are not obligated to do so. And my plea to every lawyer in the United States: please don't file a lawsuit in these cases to get your name in the paper.
]]>Anyway, I'm back and these are the links of interest I found this weekend:
Now, I recognize that it will be hard to make some of these changes if doctors feel like they are constantly looking over their shoulder for fear of lawsuits. Some doctors may feel the need to order more tests and treatments to avoid being legally vulnerable. That’s a real issue. And while I’m not advocating caps on malpractice awards which I believe can be unfair to people who’ve been wrongfully harmed, I do think we need to explore a range of ideas about how to put patient safety first, let doctors focus on practicing medicine, and encourage broader use of evidence-based guidelines. That’s how we can scale back the excessive defensive medicine reinforcing our current system of more treatment rather than better care.
A lot of medical malpractice lawyers and their victims breathed a sigh of relief. I'm starting to feel like my post last week was a bit reactionary.
Shocking? Biting the hand that feeds him? As I wrote back in December, Obama's support of malpractice caps in Illinois was an incredibly overlooked clue to Obama's receptivity to tort reform. No one was paying attention because every personal injury lawyer assumed Obama was a better choice than the other guy.
I voted for Obama and I would do so again: malpractice tort reform and other issues of importance to personal injury lawyers is just one issue of many that are important to me. But would medical malpractice lawyers have been better served with McCain in office? McCain would not have moved 60 Democrats on this issue. Obama might be able to do so. Remember, only the zealously anti-communist Nixon could go to China. This is obviously a little bit of hindsight analysis but maybe support of Obama was the wrong play for personal injury lawyers. Democrats rolled their eyes when President Bush called for malpractice caps. Obama's political position rightnow is such that it is hard for Democrats to roll their eyes at much of anything he supports right now.
I still do not think malpractice reform makes it past the Senate and I think Obama will lose his base in Congress on health care reform if he pushes substantive medical malpractice reform which probably suits President Obama just fine. Obama causes no harm to his base and the AMA and its progeny will have a lot less anti-Obama venom in 2012. Of course, I'm just speculating on all of this but if politics is a chess match, Obama always seems three moves ahead.
I like that Obama is willing to flip on his base. I just think he is wrong in thinking that malpractice reform is what this country needs.
Post Script: Okay, I completely overreacted and got bad information from the media and my "inside sources." Here is the text of Obama's speech to the AMA with respect to medical malpractice.
]]>Ah, what about the collateral source rule? Well, the Indiana Supreme Court thinks they have us covered. The court says this evidence can only be introduced to the extent that discounted amounts can be introduced without referencing insurance. I dissent.
This is an appeal of an accident case of what was probably a decent verdict: $70,000 on $11,570 in medical bills (does not appear to be a serious injury case, but the opinion is not clear). His medical bills actually received by the health care providers were adjusted by write-offs negotiated by his insurance company, Anthem Blue Cross Blue Shield, to $6,820.
Defendant’s lawyer agreed that he could not ask questions about Plaintiff’s collateral source rule, which, as I understand it, is similar to Maryland’s rule. But the defense lawyer did argue that neither the Plaintiff nor his insurance company was responsible to pay the written-off sum, and accordingly, the write-offs did not constitute an insurance benefit under Indiana's collateral source statute.
From this creative argument – which I applaud on either side of the v - Defendant’s lawyer contended that he could introduce evidence of reductions as indicia of the actual expenses. Plaintiff’s lawyer’s response – that carried the day below in the trial court and to the Indiana Court of Appeals – was that because collateral source payments were insurance benefits that Plaintiff paid for, they are not admissible. Plaintiff claims that the Defendant should not be the beneficiary of Plaintiff’s bargaining power through the insurance companies because – again this bears repeating – he was the one who paid the insurance premiums for the last 50 years, not the Defendant (okay, I’m making up the 50 year thing – you get the point).
The Indiana Court of Appeals cited Griffin v. Louisiana Sheriff’s Auto Risk Association, 802 So. 2d 691 (La. App. 2001) to underscore Plaintiff’s argument:
This rationale can best be understood by analyzing the write-offs in two situations: one in which a tortfeasor injures an uninsured victim and the other in which the same tortfeasor, in the same manner and to the same extent, injures an insured victim. Unless the write-offs are considered collateral sources, the tortfeasor would be relieved of his liability to the insured victim to the extent of the amount of the write-offs. The argument that there is no underlying obligation for plaintiff to pay the amount of the write-offs and, therefore, the plaintiff should not be allowed to benefit from a non-existent debt, fa[i]ls because the effect of this reasoning results in a diminution of the tortfeasor's liability vis-à-vis an insured victim when compared with the same tortfeasor's liability vis-à-vis an uninsured victim.
Another Louisiana case, Bozeman v. Louisiana, 879 So.2d 692 (La. 2004) tightens this analysis further:
If we were to permit a tortfeasor to mitigate damages with payments from plaintiff's insurance, [the] plaintiff would be in a position inferior to that of having bought no insurance, because his payment of premiums would have earned no benefit. [The defendant] should not be able to avoid payment of full compensation for the injury inflicted merely because the victim has had the foresight to provide himself with insurance.
The Indiana Supreme Court disagreed, relying on the fact that under the current system we have in this country, a doctor’s medical bills do not equate to cost. But this makes every medical bill unreasonable on some level. Should the law be that you cannot introduce medical bills because the whole system is screwed up? I just don’t think it makes any sense.
]]> Look, I think the Defendant has every right to claim the medical bills are excessive. They certainly are in some cases and “the doctor overcharged” has to be fair game in every case. Bring a witness, lay a foundation for the fair value, and let the jury decide the value of the medical services. But just tossing up a document and saying “Hey, this is what we think the medical bills are” without laying a foundation for the numbers seems just ridiculous.The other reason why this is a bad idea: more juror confusion. Juries are not told about whether the Defendant has insurance, whether the Plaintiff has health insurance, whether there are caps on damages, what the police report said and a whole host of other things that leaves them thinking the lawyers on both sides did not present all of the evidence. Does it help this problem to give them numbers suggested as the fair value of medical services without being able to tell them where the numbers are coming from?
Justice Brent E. Dickson writes a long dissent underscoring the logic articulated in this blog post plus a number of other theories why this is bad law that does not honor the letter or the spirit of the collateral source rule statute that I never would have thought of on my own. It is worth reading.
]]>This title got my attention because I have been speculating about the impact our economic troubles are having on jury verdicts. The thesis of the article appears to be that juries are more likely to side with plaintiffs in this economy, but are less likely to give large damage verdicts. Although, it quotes one lawyer saying he got a larger verdict than he asked for, which he attributed to the economy.
Unfortunately, the article is just anecdotes from plaintiffs’ personal injury lawyers who have recently received good verdicts. This is not exactly the target audience for a fair look at the issue. The lack of hard evidence is not the fault of Michigan Lawyers Weekly. The economy really turned in October with the meltdown in the financial markets, and there is just not a lot of data since then that has been collected and analyzed.
The Michigan Lawyers Weekly article did discuss another phenomenon that I’m certain is true: clients are pressured by the difficult economy to settle cases (and seek settlement loans). It appears to me that the amount of the pressure is actually inversely related to the size of the case. Personal injury victims with larger claims seem to me to feel less pressure from the economy to settle because their goal is not to get enough money to get back on track, but rather, their goal is to seek an amount of money that will have a larger impact on their lives. But in smaller personal injury cases – mostly car accidents in our practice – clients seem a bit quicker to pull the trigger on settlement.
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