Maryland Injury Lawyer Blog

The Daily Herald in Chicago published an editorial yesterday that urges the Illinois Supreme Court to overturn the Illinois cap on non economic damages in medical malpractice cases. The article, written by the President on the Illinois Trial Lawyers Association (I guess they have not gotten the Association for Justice memo), does not cover any new ground opposing tort reform.

In fact, it highlights the one argument in opposing tort reform that I reject: that the cap does not lower malpractice premiums. While I hate caps on non-economic damages, I’m sorry, I majored in economics. (Okay, finance, but you get the point.) You cannot assert medical malpractice rates are not impacted by less exposure. Insurance rates are a function of exposure. It’s the first thing an actuary is going to punch into that computer. The fact that rates do not immediately rise or fall after malpractice caps rise or fall does not negate this causal relationship.

Continue reading "Medical Malpractice Caps, David Petraeus, Abraham Lincoln, and Martin Luther King: Watch Me Strain to Relate Them All Together to Close Out 2008" »

The Centers for Medicare & Medicaid Services recently published a report analyzing approximately 16,000 nursing homes in this country and assigned each a rating – from one star to five stars - based on such criteria as health inspections and staffing.

In a less prolific blow then the other shots to the head delivered in 2008 to the theory that an unfettered free market is always the best answer, approximately 27 percent of for profit homes surveyed were given one star, versus 13 percent of non-profit homes. At the top of the nursing home food chain, 19% of non-profit homes were awarded five stars, compared with 9 percent of for profit homes. From this pretty overwhelming data, it is hard to argue that for profit nursing homes provide an equal level of nursing home care to that of non-profit homes. While I am not sure what the profit to non-profit nursing home ratio is in Maryland, I don’t think this conclusion shocks a single Maryland nursing home lawyer. The vast majority of Maryland nursing home cases are against private, for profit nursing homes.

Continue reading "The Failures of For-Profit Nursing Homes" »

The Baltimore Sun had an article on Sunday about the unfairness of the nature and the speed of lawsuits hospitals are filing against patients for unpaid hospital bills. The numbers are staggering: Maryland hospitals have filed 132,000 lawsuits in the past five years for unpaid bills, a third of which have been filed in Baltimore City District Court.

We have had personal injury and even medical malpractice clients sued by Maryland hospitals, often over incredibly small bills, even after the client has signed an assignment of funds to be paid out of their settlement. The collection lawyers hired by the hospitals are often running collection mills so getting a person on the phone typically takes an Act of Congress if you want to talk about a case.

I don’t know what the answer is. The hospital is entitled to be paid. But so many decent people are getting pounded, often at a time in their lives when they most need a break.

Pat Malone put on his website a closing argument he made in a Maryland medical malpractice case. In his final thoughts to the jury, he reminded the jurors of what I always remind jurors of when I'm delivering a closing: the memories of the victim will fade for you and for me, but this person is going to live with these injuries for the rest of his/her life.

In this Montgomery County medical malpractice case, the jury awarded $5.8 million for the wrongful death of a 47-year-old lawyer whose untreated mole turned into a skin cancer that spread to his brain. The jury awarded $3 million in non-economic damages, including $1 million each to Plaintiff’s widow and to his estate and $500,000 each to Plaintiff’s two children. That portion of the award will be reduced to $812,500 due to Maryland’s cap on non-economic damages in medical malpractice cases with at least two claimants. Plaintiff is expected to appeal arguing the unconstitutionality of Maryland’s cap on damages generally and the specific portion of the cap that applies to medical malpractice cases.

Southern Maryland News has an article about a serious problem: the shortage of doctors in Southern Maryland. This is a good issue that needs attention. I’ve written about this on the Maryland Injury Lawyer blog in the past in a post titled “Doctor Shortage in Maryland? A Doctor in Southern Maryland Says There Is a Shortage of Doctors.”

Yet, bizarrely, the article focuses on medical malpractice insurance, profiling the ostensibly tragic story of Dr. Charlene Letchford who was forced by the “skyrocketing cost of medical malpractice insurance” to join a group of doctors at Calvert Memorial. Apparently, the bill “recently jumped from $11,000 to $16,000 a year.”

Now, is it possible - just possible - that this $5,000 was not the deal breaker? Are there other possible alternatives to explain why her practice was not successful other than the additional $13.70 she has to pay every day for malpractice coverage?

The article also points to the insurance company reimbursement rates which are increasingly defeating Maryland malpractice lawyers in the battle to be the archenemy of Maryland doctors. But it is troubling the extent to which doctors seek to bundle up all of their problems and place them at the doorstep of medical malpractice lawsuits.

The article includes the following bizarre quotes from Dr. Barry Aron, an OB/GYN in La Plata (Charles County):

Even if the case is dismissed the lawsuit still counts against you with the insurance carrier. It's a losing situation. Even if a doctor wins a case the insurance company still pays out money.

It's all a game to the lawyers involved. It's kind of a shame. The way the system works is that pain and suffering brings in a lot of money.

Continue reading "Let's Blame Maryland Medical Malpractice Lawyers for Everything" »

In an awful decision this week in a wrongful death medical malpractice case, the Michigan Court of Appeals overturned a lower court’s ruling which would have prevented ex parte communications between defense counsel and a Plaintiff’s treating physician from being entered into evidence, because HIPAA privacy rules already prohibit medical malpractice defense lawyers from meeting ex parte with plaintiff's physicians even if the Plaintiff has executed a HIPAA authorization.

This Michigan Court of Appeals opinion relies on the fact that the Plaintiff executed a HIPAA authorization for the defense counsel. In Maryland, there is no mechanism to require a Plaintiff to waive HIPAA rights because a lawsuit has been filed. Based on a quick review of Belote v. Strange, another Michigan Court of Appeals case, I think Michigan does interpret HIPAA to protect oral interviews with doctors, if there is no executed HIPAA authorization. So I extrapolate from this that plaintiffs are required to sign a HIPAA form to pursue a medical malpractice case in Michigan.

Our lawyers never allow our clients to sign HIPAA authorizations for defense counsel use in personal injury or medical malpractice cases. Many of us, as attorneys, want to be considered cooperative lawyers and feel bad denying these requests. But the lesson learned here is that if you compromise your client’s rights under HIPAA you are leaving your client open to unforeseeable consequences.

Personally, I’m not a big privacy guy. I don’t have a big problem with the Patriot Act, for example. I also realize that accident and malpractice victims cannot use their medical history as a sword and a shield. You cannot pick and choose the medical records you want to put at issue in a case. But there is something awful – and creepy, actually - to me about allowing a defense lawyer in an adversarial system to sit down ex parte and talk to a patient’s doctor about the care, treatment and private conversations a doctor had with that patient. (Adding to the creepy factor: this is a wrongful death case.)

This raises the question as to what kind of doctor would be willing to talk to the lawyers ex parte. But that is a whole different issue.

You can find the entire opinion here.

Dr. Henry M. Learner, an instructor in Obstetrics and Gynecology at Harvard, writes an article in this month’s OBG Management called “Rebuff Those Malpractice Lawyers’ Traps and Tricks.” Dr. Learner is also the president of Shoulder Dystocia Litigation Consultants, a group that works with defense lawyers, medical malpractice insurance company case managers, and hospital risk managers in shoulder dystocia-related injuries and litigation.

I hate to give up one of my own but I’m pretty sure Dr. Learner is a double agent. Because the advice he gives in this article is either obvious (“know the specifics of your case”) or downright counterproductive. One piece of advice is to pull a Sarah Palin: “you don’t necessarily have to play by the rules for answering questions….” That cracks me up. But this one is even better:

Never allow an attorney to bully you in the courtroom or at a deposition. If the attorney begins to use such behavior, call it by its name and demand that it be stopped. Your lawyer will likely have raised the objection before you do; if she does not, protest such inappropriate behavior yourself. Never allow an attorney who is questioning you to raise his voice or speak to you sarcastically or rudely.

This is the absolute best path for a doctor to snatch defeat from the jaws of victory in a medical malpractice case. Jurors tend to trust doctors. The playing field is tilted in favor of the doctor. The very best way for a doctor to blow that lead is tell the plaintiff’s malpractice lawyer on the stand that he/she won’t be spoken to sarcastically. For anyone testifying - plaintiff, defendant, fact witness or expert - the very best advice is the very opposite of this advice: if there is no objection, just answer the question.

Here is the article.

In January, I wrote about Marcantonio v. Moen, an Anne Arundel County medical malpractice lawsuit that was dismissed on summary judgment by the trial court. The malpractice lawsuit alleges wrongful death as the result of an OB/GYN’s misinterpreting a sonogram and failing to order sufficient tests to follow up on the woman’s symptoms. Because of this failure to diagnose, the Plaintiff claims that his wife’s chances of survival went down from 80% to 50%-60%. The Maryland Court of Special Appeals found that there has to be a 51% likelihood that the person would have died but for the negligence. So in this case, she would have to have a 29% chance of living as a result of the negligence to recover an award. So while she was statistically likely to defeat the cancer even with the malpractice, she died.

The post focused on the dissent of Judge Timothy E. Meredith who contended that the requirement that the decedent’s chance of survival should not – as a matter of fundamental mathematics – revolve around the question of whether there was a 51% decrease in the likelihood the decedent would survive. Because if you had a 90% chance of living and defendant’s negligence takes you down to 60% and you die, there is a 75% chance you died as a result of the negligence.

The Maryland Court of Appeals reversed that decision last week in an opinion by Judge Greene. I grabbed the opinion and – cheater that I am – ran to the punch line of who won. So I concluded that the court made their decision based on the issue of what probabilities are required to bring a medical malpractice lawsuit for wrongful death. But the Plaintiffs were ordered a new trial for a different reason having to do with sham affidavits (relying on Pittman v. Atlantic Realty, a case I argued and won on summery judgment when I was a defense lawyer that was ultimately vacated by the Maryland Court of Appeals).

Okay, fine, I thought, the issue remains unresolved. But in a footnote to the very last sentence in the opinion, the court notes that the Maryland legislature has not amended Maryland’s wrongful death statute since the court decided Weimer v. Hetrick – the case relied upon by the Maryland Court of Special Appeals - and that the court is not included to overrule prior authority, particularly in the area of statutory construction.

I think a lot of Maryland medical malpractice lawyers were looking to this opinion to see if the new more liberal makeup of the Maryland Court of Appeals was going to lead to real changes in some of the more archaic rulings in Maryland medical malpractice and personal injury cases. And, sure, I know this footnote is dicta that is – by its own words – inconclusive on the issue and is not necessarily the view of every judge on the Maryland Court of Appeals. But the hopes of many malpractice lawyers in Maryland looking for a more moderate view on what level of harm must be caused to sustain a medical malpractice lawsuit in a cancer misdiagnosis case are set back by this unanimous opinion.

• Maryland Court of Special Appeals Opinion in Marcantonio v. Moen
• What is Required to Bring a Medical Malpractice Case in Maryland?
• New Kentucky Supreme Court Opinion on Diminished Loss of Chance

In the final debate, Senator Barack Obama was asked to name a situation where he stood up to leaders of his own party. The answer Senator Obama most forcefully pointed to was his vote in 2005 for the Class Action Fairness Act (CAFA) which he described as standing up to trial lawyers. The CAFA essentially shut down state courts as a venue to hear many class action lawsuits, which has had a great deal of impact on some types of class actions.

Senator Obama is correct that this was the path less traveled by other progressive candidates. Hillary Clinton and Joe Biden both voted against the Class Action Fairness Act as did other notable Democrats such as Dick Durbin, Ted Kennedy, Pat Leahy, Barbara Boxer, and Maryland’s Attorney General at the time, Joe Curran.

Does this mean Senator Obama is in favor of tort reform? I really do not think so. He has consistently been against any kind of tort reform for medical malpractice damage caps in the Illinois legislature and in the U.S. Senate.

Moreover, it is an open question as to whether the CAFA is a bad law for lawyers who did not drink the “anything that limits plaintiffs’ rights in any way is a bad thing” Kool-Aid. Lawyers typically take a knee jerk reaction by opposing any changes in the system. (I'm probably guilty of this.) But I know that I take exception to some of these consumer lawsuits where the lawyers make a fortune and the plaintiffs only receive a free oil change and 10% off their next purchase of the Defendant’s product. While I appreciate the important deterrence effect that trial lawyers can have on bad corporate conduct, I think there is a problem when the actual victims do not get any meaningful compensation. I’m not proposing a better solution; I just have some concerns about those types of cases which I think are the kind most impacted by the CAFA.

I also disagree with the notion many have offered against the CAFA that state judges, as opposed to federal judges, are better equipped to handle consumer protection laws because they sometimes involve state, rather than federal law. First, I don’t think that there are enough consumer law cases such that state court judges would be extremely familiar with them. Moreover, I’ve spent enough time in front of federal court judges to be pretty confident that these are largely extremely smart people who can figure these kinds of things out.

Ironically, Republicans, the party of states’ rights, voted for the bill en mass. I think there are about 11 people in the country who really care less about the balance between the states and the federal government. It is a hard thing to get passionate about in 2008. A person who sings the States’ rights mantra (or federalism for that matter) quickly abandons the song when it conflicts with an issue that really matters to them.

Going back to the topic at hand, I do not blame him for taking a shot at trial lawyers: we are easy targets and most trial lawyers are going to vote for Senator Obama anyway on a host of other issues that have nothing to do with tort reform. But I think Senator Obama is going to help decrease the number of medical malpractice lawsuits the way it should be done: by fighting for changes that will decrease the number of people who are seriously injured or die each year as a result of medical malpractice - almost 100,000 malpractice related deaths a year in the country, according to the government. I also think Senator Obama will support legislation that will overturn the dreadful decision the Supreme Court made in Medtronic v. Riegel and the dreadful decision they may well make in Wyeth v. Levine.

• Clinton and Obama on Tort Reform
• Malpractice Tort Reform

I just finished George Lakoff’s book, Don't Think of an Elephant! Know Your Values and Frame the Debate. Channeling my inner Joe Biden, I loved the book; I hated the book.

I hated the book because as much as Lakoff obviously tried to fight it, he does too much of the “no reasonable person could think this way unless they were being manipulated” spiel. It is just too condescending and partisan for my tastes, which I think takes away from some of the luster of the book for me.

A topic near and dear to my heart, tort reform, is the classic example. Lakoff writes (on page 30 for those of you following along at home) that conservatives are not focused on tort reform because of their disdain for the volume of lawsuits, but because they want to take money out the coffers of progressives by taking away the attorneys’ fees available to trial lawyers. Obviously, medical malpractice and accident lawyers generally contribute heavily to progressive candidates.

The thought had never occurred to me that tort reform is a back door to bleed progressive causes and I’m sure there is some truth to it. But the notion that this is the primary source of the motivation for tort reform among conservative thinkers ignores the magnitude of the animosity in many circles of our society – including people smarter than me – with frivolous lawsuits and, to a lesser extent, large jury verdicts.

This problem is compounded by the repeating of verdicts that are completely taken out of context (the McDonald’s verdict), fabricated (the Stella Awards), or simply rare. Compounding this problem further is the fact that celebrities tend to use lawsuits as the resolution mechanism of first choice, leading Americans to assume that these de facto aliens are a microcosm of our country.

Lakoff suggests that trial lawyers need to frame the issues differently. Consumer protection and personal injury trial lawyers should be framed as public protection lawyers. Under this frame, when tort law tries to put a cap on non-economic damages, they are taking away the constitutional right of juries to decide justice. Large settlements and verdicts result in greater public safety because the impact of accident, malpractice and, most importantly in this context, products liability cases go beyond the case at hand and are a form of public protection law.

The problem goes beyond framing, though, because the real issue in the tort reform battle is that there are not enough people to make the frames. Trial lawyers are the wrong messengers. Trial lawyer lobbyists? Worse. So who is left?

The fuel that fills the tort reform train is that everyone on the ride has never suffered a catastrophic injury as the result of the negligence or willful disregard for their safety (typically consumer or med mal context) of someone else. Those folks who have suffered a catastrophic injury often do come forward and make compelling witnesses for the unfairness of many tort reforms, most notably caps on noneconomic damages. But most people who have suffered a grave injury have enough to deal with, without having to the carry the anti-tort reform ball. So that leaves a few compelling proponents against a lot of people who think that their insurance costs and what they pay for drugs and medical devices are due to greedy personal injury lawyers and their clients. And this is a hard obstacle to overcome.

Overlawyered links to a post called Munchausens by Attorney. The blog, Throckmorton, is written by a doctor who says he is a “mere foot soldier stuck in the medical-legal battlefield.” I don’t know what this means, either. But it is a pretty decent blog.

The post deserves a link because the title is so funny. (Warning: do not read the comments to the post unless you are looking to lose a few IQ points.)

But this post is about MY reaction to the blog. When I hear about a lawyer doing something awful, I think to myself, “Oh my, I hope someone catches and stops the person who does it.” I think that is the response most lawyers have. But when doctors hear about a doctor habitually committing medical malpractice, their instinct is to defend the doctor and attack the accusers (not the victims, but their medical malpractice lawyers).

Maybe being a doctor is more of an intrinsically self-identifying profession because at the core, doctors help others in a more direct way than almost any profession, and this makes them more loyal to fellow doctors. In contrast, a lawyer just moved into my neighborhood. He has three kids. I identify with him more because he has three kids (like me) than I do because he is a lawyer. If you see a tombstone that mentions the person was a doctor, I don’t think you would be surprised. But you would find the mention of someone being a lawyer a little odd, right?

So that all makes sense. But here’s the thing: according to the federal government, medical malpractice is killing like 100,000 people a year and causing serious injury to countless more. So at some point, regardless of where you are on medical malpractice lawsuit reform, doctors need to spend less of their energy firing out at medical malpractice lawyers and insurance companies and focus more of their energy and attention on patient safety initiatives.

I read in the paper today that Dale Adkins III and Emily C. Malarkey, both with Salisbury, Clements, Bekman, Marder & Adkins in Baltimore, filed a wrongful death medical malpractice case against an OB/GYN in Salisbury.

We also have a medical malpractice case pending against the same doctor. In April, a jury in Baltimore found this doctor negligent in yet another medical malpractice case. We have previously reviewed and rejected another claim against this same doctor, not because medical malpractice could not be established but because the damages – while significant – were not of the magnitude that would make a medical malpractice lawsuit.

I’m not naming the doctor because our goal with this blog is not to embarrass people or invade their privacy. I do not name plaintiffs or defendants unless they are a company or hospital. And I’m told this doctor appears to be a decent guy. But this doctor underscores that high malpractice rates are not from medical malpractice lawyers filing frivolous lawsuits. Instead, the problem is that 3% of doctors in Maryland are responsible for half the medical malpractice payouts (data from earlier this decade but I suspect it is still holding true). If these doctors are [fill in your own phrase for politely asked to stop treating patients], malpractice premiums in Maryland would plummet.

If a lawyer is not effective in trial, there are lots of other productive things the lawyer can do to make a contribution in the field of law. Doctors who shouldn't be treating patients do not need to get a job a Burger King. There are invaluable things that many doctors do who don't treat patients. We need a plan to transition a small minority of doctors into hopefully a related line of work where they can be productive but where they cannot harm patients.

It is trite but it true: anyone can make a mistake. But how many is too many?

Interesting data from Jury Verdict Research on the median and average values of wrongful death cases where the decedent is female. The overall average compensatory award for wrongful death of an adult female over the last eight years in the United States is $2,990,032 ($1,102,976 is the median).

Age is a big variable when looking at median and average female wrongful death values. The average wrongful death verdict for a female between 18 and 24 is 2,990,032 ($1,102,976 median). For females between 30 and 39, women who are far more likely to have left behind children, the median wrongful death verdict escalates to $5,605,127 ($2,500,000 median). For women over 80, the average wrongful death verdict plummets to $1,314,241 (322,920 median).

I always find it maddening when insurance companies discount the value of human life in wrongful death cases because of the age of the decedent. If you are eighty years-old and you are killed, those last 10 years of seeing your kids as adults, your grandchildren coming of age and everything else that comes with it are incredibly valuable years. But these numbers, regrettably, demonstrate that there is some logic to their thinking when it comes to how juries value wrongful death cases.

Approximately 62% of the non motor vehicle wrongful death claims in this study are medical malpractice and wrongful death claims – particularly with older patients - so it is reasonable to assume that many of these wrongful death verdicts were compromise verdicts.

Related Posts:

How Lawyers and Insurance Companies Value Personal Injury Cases (summary and report on settlements and verdicts by injury type)

Value of Personal Injury Cases in Washington D.C. (District of Columbia settlements and verdicts)

Valuing Cases in Virginia (average settlements and verdicts in Virginia)

Personal Injury Verdicts Across the Country (personal injury verdicts in your state)

Wrongful Death Settlements and Verdicts in Maryland (wrongful death values)

Value of Wrongful Death Motor Vehicle Accident Cases in Maryland (average settlements and verdicts)

These are some personal injury related links from around the country this week:

The Burlington Times News has an article about North Carolina’s decision to require North Carolina doctors to report all medical malpractice payments greater than $25,000.00. These results will be released to the public. The article notes that only 4% of the doctors in North Carolina in the last seven years have made malpractice payments.

Legal Newsline.com has an article on how medical malpractice damage caps in Texas have decreased malpractice premiums. As I have written before, in spite of what a lot of medical malpractice lawyers have argued, this cause-and-effect relationship is textbook economics. I think it is also true that the quality of patient care in Texas is falling dramatically because there are no repercussions when a doctor seriously harms a patient.

The Baltimore Injury Lawyer Blog has a post on John Bratt’s recent auto accident trial in Montgomery County.

Pharalot reports that the FDA will now be compile quarterly a list of drugs that have been identified as having potential safety concerns. Can anyone argue this is a bad idea?

The new Maryland Accident Lawyer Blog has a post on the Maryland Court of Special Appeals’ recent ruling in a wrongful death car accident case that took the lives of a man and his three children.

The Illinois Trial Practice Weblog has a post about the top 10 rules of evidence every lawyer must know. (Top 10 lists are irresistible.) The same blog also has a good post on videotaping your opponent’s deposition.

Does Sarah Palin support the idea of jury nullification?

The Baltimore Sun reports that the FDA may not be properly screening drugs for the potentiality of the medications inducing suicide. Plaintiffs’ product liability lawyers who have been looking at these issues for the last 20 years are Captain Renault-like stunned to learn that the FDA (and the drug companies) has not properly focused on the risk of drugs – particularly antidepressants – and suicidal thoughts and ideations.

Finally, the Torts Prof Blog continues to put together a comprehensive list of personal injury links from around the country.

Insurance Settlements, a two volume treatise for which I am the lead author, is now available from James Publishing. This treatise is for personal injury lawyers handling auto accident, truck accident, medical malpractice and product liability cases with a lens toward getting the best possible outcome at all stages of these cases (though trial). The better title for the book - with the benefit of hindsight - would have been "Maximizing the Value of Personal Injury Cases." Maybe I can convince James Publishing to change it down the road.

I’m excited about the book. If you are interested getting a copy, click on this James Publishing link. If you have any comments on the book, please email me at ronmiller@millerandzois.com under the subject "Insurance Settlements Questions or Comments."

The Baltimore Injury Lawyer Blog has a interesting post about Baltimore City juries from the perspective of a Maryland accident lawyer.