The Sun thinks that the governors of this state have nominated judges that cannot understand how to administer medical malpractice lawsuits. Either this is nonsense or we have a gubernatorial malpractice claim against Governors Mandel, Hughes, Schaefer, Glendening, Ehrlich, and O'Malley. I'm going with the nonsense theory myself. It is also silly to suggest that doctors are so vested in this idea. Even if trained malpractice judges are better malpractice judges, I don't think anyone has any idea of whether having malpractice specific judges is going to help plaintiffs or the doctors' lawyers in discovery or at trial.

The Sun goes on to tout the importance of a new "I'm sorry" law so doctors can admit they screwed up. On its face, it sounds okay. There is evidence that patients and their families benefit when doctors disclose medical errors and apologize. But did we do a study as to how these same patients feel when these apologetic doctors admit to their patients what they did but then can make a farce of that admission by denying it publicly later? Will this make a mockery of the victims and the court who sanctions what is going to approach or reach perjury?

The reality is a sympathetic "I'm sorry" when any professional (or even the other driver in a car accident) makes a mistake is going to make it less likely that the victim is going to bring a claim. Doctors should say they are sorry because it helps the patient, themselves and because it is the right thing to do, not because they are given immunity for the apology.

I also don't think the law is going to make much difference. Good, decent doctors (the vast, vast majority) will apologize if they think they make a mistake. Doctors that won't because they fear malpractice probably wouldn't apologize anyway.

Specifically, the court found that the Illinois malpractice cap violated the “separation of powers” clause because imposing a cap imposes on a decision that should be made not by legislatures but by juries.

The underlying lawsuit involves a catastrophic birth injury. Plaintiff’s lawyers alleged the infant Plaintiff’s severe cerebral palsy was caused by the negligence of the hospital, her obstetrician, and a nurse.

The appellate path taken in this case was atypical. Plaintiff sought summary judgment on the issue of whether the cap applied, which the trial court granted before the case was tried. Procedurally, this is odd and the dissenting opinion took exception to the idea of deciding this case without a verdict. I understand the dissent’s thinking on this. But the parties at least are best served taking this path because they both know how the law is going to be applied. This makes the case much easier to settle and settle fairly whichever direction the court takes. After the trial court’s ruling, the Defendants appealed directly to the Illinois Supreme Court.

Essentially, the court found that a cap on damages is a legislative remittitur and the failure to leave the issue of remittitur to the court which decides the issue on a case-by-case basis represents legislative intrusion on the powers vested in the court by the Illinois constitution.

One favorite part of the opinion for me was the way the court responded to the defendant’s argument that other states had damage caps: “That ‘everybody is doing it’ is hardly a litmus test for the constitutionality of the statute.”

To stop this insanity, House Bill 207 has been introduced by House Delegate William J. Frank from Baltimore County, to raise the negligence bar for people who use force against a home or office burglar to make them immune from civil liability unless they acted “with malice or gross negligence.”

Naturally, Maryland courts are clogged with frivolous lawsuits by personal injury lawyers representing criminals who were injured breaking into homes of the innocent. Just ask John H. Josselyn who is with the Associated Gun Clubs of Baltimore:

Far too many attorneys are willing to initiate a civil action on behalf of criminals who allege that the victim, who was acting legally in self-defense, did something that violated the rights of the attacker. Defending a civil action, even when it is a frivolous lawsuit, involves great expense.

Let's take a breath and break this quote down and get our arms around whether there is even a portion of it that is not demonstrably false on its face.

The jury appeal of this case is easy to see. It is transcendently awful enough to have your wife murdered. But being wrongfully accused when the evidence should have sent police in another direction and then being physically and mentally brutalized by police? It makes anyone’s top 5 nightmares list. These police officers crossed lines that would make Jimmy McNulty blush.

Still, there are limits to the ‘it could just as easily have been me” feeling you might be having reading this post. Plaintiff admitted to having a verbal and physical altercation with his wife just hours before her body was found. After the altercation, he got a knife and ran after her. Later, she turns up missing and murdered. So while I fault the police for a lot based on these reported facts, jumping to conclusions about Plaintiff guilt is not one of them. I mean, what are the chances?

That’s more on the facts than I planned but it is just an incredible story. Anyway, Prince George’s County argued – apparently without shame – from the beginning that that the Local Government Tort Claims act barred his claim because he did not provide adequate notice. Plaintiff responded with the complex legal theory of “how on earth can you expect me to give you notice when you have wrongfully imprisoned me for more than 180 days?”

The Maryland Court of Special Appeals agreed, finding that an “ordinary prudent person” in Plaintiff’s situation could not have given notice in 180 days. I’m dumbing down a complex opinion, but I think that is an adequate summary.

What would have saved everyone a lot of time in this case and furthered justice in countless others would be if the Maryland legislature would simply abolish the Local Government Tort Claims and the Maryland Tort Claims Act. What exactly is the wisdom in treating government different from you and I when it comes to the statute of limitations? If we all agree it is fair that a local government can be sued in actions sounding in tort in the same manner and extent that anyone can be sued, why change the limitations period? I think the idea of governmental immunity is illogical and outdated but at least I understand the rationale. Altering the statute of limitations is a crude and illogical way to treat citizens in substantially similar situations in dissimilar ways.

Interesting historical footnote that may be of interest only to me: Prince George’s County was the first county in Maryland to waive sovereign immunity in 1970.

You can read the full opinion here.

• More on St. Joseph's Stents (Drug Recall Lawyer Blog)
• Original Maryland Injury Lawyer Blog Post

The plaintiff claimed that her triple screen blood test found that she had a 2.6% chance her daughter would be born with Down syndrome. The case was a classic case of he said/she said. The doctor claimed the patient was told three times of her test results and that she rejected the doctor’s suggestion that she get the more invasive amniocentesis test.

Most likely, the jury believed the doctor’s notes were accurate and made contemporaneously with his discussions with the patient regarding the results. Only the doctor, the Plaintiff, and God know exactly what information was conveyed. But I also wonder the extent to which this federal jury had a problem with the “I would have had an abortion” claim from Plaintiff. Statistically speaking, someone on that jury strongly believed that abortions are immoral.

I'm tempted to add here my trite commentary on the scope of this tragedy. But at this point, we all get it. It is unspeakably horrible world sometimes. All we can do is pray and send money.

The reality is that Haiti has been a disaster forever. But if the world throws its heart and soul (and checkbook) at Haiti, is there a chance that Haiti can overcome its history of corruption and instability and can be rebuilt better and stronger than it was before?

Also, if you want to do your own Facebook friend drive or any other hook you can think of to raise money, let us know and we will plug it for you.

Stents are used to fight artery blockages. St. Joseph Medical Center is a hospital that puts in a lot of stents. Many patients drive past University of Maryland Hospital and Johns Hopkins Hospital to get stents put in at St. Joseph's. Think about how remarkable an accomplishment this was for St. Joe. Now, one doctor trying to earn a few extra bucks may have tarnished the reputation of a hospital and a lot of great work done by a lot of great doctors, nurses and other health care providers. Obviously, the biggest tragedy is the patients who have been subjected not only to an unnecessary heart procedure, but have likely also been over- medicated, as if their condition had been more serious. But I also feel bad for the good guys at St. Joseph who were not involved in any of this and are now tarnished by it all.

The doctor at the center of this scandal lost his privileges at the hospital last summer without notice to his patients or any comment from hospital officials. There is a lot of information that needs to come out, but this raises the obvious question: if hospital officials knew something was going on, why wait so long to convey this information to patients? If it is important for St. Joseph's to tell patients now, why were patients not told this summer? I don't want to prejudge this, but it is a question that is going to be raised.

Do these 369 patients have malpractice claims? I don't think there is going to be significant injury in most of the cases. But you can certainly expect some valid claims to arise. Moreover, this is a a classic - and rare in the real world - case of a malpractice lawsuit that has a great settlement value than trial value. Because St. Joseph's has to be eager to settle these claims and put this debacle behind them.

• More on St. Joseph's Stents (Drug Recall Lawyer Blog)
• Baltimore Sun Article on Lawyers Fighting for St. Joseph's Stent Lawsuits)

This is not a bad list to gloss over before trial if you are not crystal clear on what your trial theme(s) should be. I like that these themes are short and simple. If you can't describe your claim (or defense) in 5 words or less, it is going to be hard to get it across to a jury. From the plaintiffs' perspective, as David Ball and Don Keenan explain in Reptile, the best themes show the defendant's actions constitute an immediate threat to public safety and that a significant verdict for the plaintiff will reduce that danger.

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But that is not the only blow the opinion gives to Maryland malpractice lawyers and their clients. The court also ruled that because the cap applies, any pro rata reduction – in this case $1 million – applies after the cap has been applied. The practical difference in this ruling for the Plaintiffs in this case is that it reduced their already reduced jury award from $2,172,936 to $1,766,686, a difference of more than $400,000.

The practical impact of this rule? The exact opposite of what the Maryland legislature wants: more malpractice trials. Applying a "cap first" approach will encourage defendants not to settle because if the non-settling defendants believe that the plaintiff has negotiated a good settlement (which is often the case when one party settles and the other does not), remaining defendants are going to be more willing to roll the dice to get the full benefit of plaintiff’s good settlement.

Finally, in a non cap related issue, the court also ruled that if medical bills have been waived, Defendant can seek, via a post trial motion for remitter, to reduce the verdict by the amount of the waived or reduced bills after the verdict.

The expert, a neurosurgeon in Philadelphia, charges $5,000 for the first hour of deposition and $2,000 for every hour thereafter. Please don't extrapolate that over the course of a year. Your head will explode.

I have mixed feelings about this issue. I really think experts should be allowed to largely charge what they want. If they want to price themselves out of the market because they don't like to testify all that much, I'm fine with that. Generally, I hate interference with what someone wants to charge if there is a willing buyer on the other side. Alex Rodriguez is not overpaid. He is worth exactly what the Yankees were willing to pay him. For better (usually) or for worse (sometimes), that is your free market economy.

The doctor had two contacts with Baltimore City that Plaintiff’s malpractice lawyer argued constituted doing business in the jurisdiction. The doctor had privileges at Mercy Medical Center in Baltimore City, and he held active-staff part-time privileges and had a faculty appointment at Johns Hopkins Hospital.

The doctor argued he no longer was seeing patients in Baltimore City and that merely having privileges was not enough to constitute doing business. The Court of Appeals agreed, finding that the proper time period for determining whether a defendant carries on a regular business or habitually engages in a vocation in the venue is when the complaint is filed. The court also rejected the idea that the injury occurred in Baltimore City, in spite of the fact that a doctor provided an affidavit that showed to a reasonable degree of medical probability that Plaintiff’s injury more likely than not occurred in Baltimore City. In other words, while the misdiagnosis may have been elsewhere, the manifestation of injury was likely in Baltimore City.

I think this is a bad decision because I thought the idea in the big picture was to defer to Plaintiff’s choice of venue when in doubt. If the Plaintiff appeared to suffer injury in Baltimore City – and an affidavit said she did – that would seem good enough for me, particularly coupled with the fact that the doctor had privileges and appointments in the city. Believe me, if he testifies, you will hear a lot of throwing “professor at Johns Hopkins” around. Geography should matter a little here, too. Should this defendant doctor really be surprised to be amenable to suit in Baltimore City?

While six smart people obviously disagree with me, I’m heartened by the fact that at least Judge Bell agrees. He believes that under the majority’s interpretation, the venue statute loses it rightful voice in determining venue. From the court’s analysis, Judge Bell points out, every misdiagnosis medical malpractice case must be brought where the misdiagnosis occurred. This does not seem to be the intent of the venue statute. He argued that prior case law makes clear that a plaintiff who experiences pain before, during and after a misdiagnosis, suffers an “injury” for venue purposes. (I'm simplifying a bit, you need to read the opinion.)

You can find the opinion here.

One thing I have been doing though Facebook is keeping track of lawyers in other states when we have potential clients that come in from other jurisdictions. If you want to be on the list of referring attorneys that we use, please sent us an email though our Miller & Zois page after you have become a fan, telling us of your areas of practice and what part of your state you cover.

Five Miller & Zois lawyers were represented on the Maryland Superlawyer 2010 list: Ron Miller, Laura Zois, Rod Gaston, John Bratt, and John Cord. This honor is accorded to less than 5 percent of the total number of lawyers in Maryland.

Some have questioned honors like these. Eric Turkewitz in his New York Personal Injury Blog specifically questioned how much gravitas the Superlawyers award should have. Of course, some awards are so powerful that it is impossible to question whether politics and other factors impact whether an honor is bestowed, such as the Nobel Peace Prize and the Time Magazine Man of the Year. Oh, wait, bad examples.

You get my point. Every honor is tainted with some measure of politics or something else that qualifies the purity of the award or accomplishment. So you graduated as your class valedictorian. But did you really work harder than everyone else or were you just good at taking exams? Yes, your child turned out great but was it the luck of the draw or your spouse's genes or were you really a great parent? So I think when you get an honor, particularly one like Superlawyers that puts you in an exclusive class of Maryland lawyers, I think you should happily smile and be proud.

I'm also proud of what this shows about the depth of our law firm. Five of our lawyers received mention in SuperLawyers. Our goal in bringing new lawyers aboard was to make sure that every lawyer that touches a Miller & Zois file could handle a case at the highest level. Does this award prove that? No. But it is definately a point on the right side of that question.