Maryland Injury Lawyer Blog

Notwithstanding the last two blog posts, I have found reason #394835 why I want my kids to be doctors instead of lawyers: an on-line law school course graduate has been made a new member of the Massachusetts bar.

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.

Ron Miller has written an article for Southern Maryland Online titled, "Is There a Doctor in the House?" Mr. Miller argues that Maryland needs medical malpractice reform if we are going to reform our health care system and that we have to make medical malpractice lawsuits in Maryland "less attractive" for Maryland medical malpractice lawyers. Mr. Miller's bright idea is letting the hospitals decide if a mistake has been made. And then they will pay you and apologize. Soon, and this is really what the article says, we might not need medical malpractice insurance in Maryland anymore.

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.

According to Harvard University economist Amitabh Chandra, annual jury awards and legal settlements involving doctors amount to $3.6 billion, a drop in the bucket in a country that spends $2.3 trillion annually on health care.

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).

Continue reading "Medical Malpractice Lawsuits: How Strong Is the Link to Defensive Medicine?" »

A hospital did not breach a duty of care as a matter of law to a police office who was injured responding to a traffic accident allegedly caused by a just-released colonoscopy patient, Massachusetts' highest court has ruled, affirming the trial court below.

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.

Continue reading "New Massachusetts Opinion on Duty and Foreseeability" »

From President Obama speech today:

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.

President Obama will speak to the American Medical Association on Monday. What's on the agenda of the President? There is speculation that he will support some form of medical malpractice reform to throw doctors a bone in his health care reform package. Whether he supports hard reform (caps) or soft reform is anyone's guess right now.

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.

The Doctors Company provides a list by Dr. Richard E. Anderson of 39 ways for doctors to get sued for for not properly diagnosing breast cancer or failure to properly treating breast cancer after it has been diagnosed (via Day on Torts, via Eric Turkewitz's New York Personal Injury Attorney Blog).

As John Day points out, this is a good checklist for lawyers screening potential breast cancer malpractice cases.

The Maryland Daily Record reports that a Frederick County jury awarded nearly $4 million to a boy in a malpractice lawsuit claiming the child’s cerebral palsy was caused by his doctors’ failure to properly monitor his heartbeat before delivery. The jury’s verdict was against an ER doctor and an obstetrician. Three nurses, a third doctor - another ER doctor - and Frederick Memorial Hospital were not found liable.

The nature of the claims for at least two of the doctors (I’m not sure of the claims against the third who was not held responsible) that were allegedly a substantial contributing factor in the child’s cerebral palsy were different. The emergency room doctor was ostensibly told of the concern about the mother at 5:45 a.m. but did not see or evaluate her. The obstetrician allegedly was told about the concerns with the patient at 7:00 a.m. but did not see her or order that she be sent to labor and delivery.

Yet all three doctors were represented by the same malpractice lawyer. As I have written before, Defendants’ lawyers are moths to the flame of presenting a united front against Plaintiffs. But I would think that the obstetrician would have liked to say, “No one did anything wrong but, sure, I relied on part on the fact that I assumed the ER doctor would have looked at the problem if there were immediate concerns.”

Now, that exact defense might be inapplicable to the facts of this malpractice case but some derivative version of that defense is almost invariably applicable when a medical malpractice lawsuit makes allegations against different doctors. Again, I do not know all of facts and there could certainly be other facts present in this cerebral palsy case that would make one malpractice lawyer handling the claims of all three doctors an understandable strategy. This is obviously Monday morning quarterbacking after a bad medical malpractice verdict - which is incredibly easy to do. The malpractice lawyer who represented the doctors is considered one of the best medical malpractice lawyers in Maryland. But even if there are facts I don't know that would change my analysis in this case, the principle I am talking about still holds true: defendants are almost invariably better off having their own lawyer to at least give them the easy option of jumping ship on the "we are all in this together" boat.

Continue reading "Cerebral Palsy Verdict in Frederick" »

University of Baltimore law professor Richard W. Bourne wrote an article published this year in the Arkansas Law Review articulating the theory that there should be an independent tort claim when a doctor destroys evidence or when a doctor fails to disclose to the patient that there has been a breach of the appropriate standard of care that causes injury. Professor Bourne would limit this tort to cases where (1) the wrong is serious, and (2) the failure to reveal is intentional.

Professor Bourne also quotes Harvard evidence professor Charles R. Nesson on the inherent problem in making the punishment for spoliation of evidence "assuming that the spoliators ... destroy the evidence because it [is] damaging to their case, none of these sanctions puts the spoliator in a worse position than he would have been in had he produced the evidence."

In other words, if the document or evidence indicates the worst possible scenario, the defendant has nothing to lose, except possibly inflaming the jury by destroying the evidence. Of course, in Maryland medical malpractice cases, there are ostensibly ramifications with the Maryland Board of Physicians for doctors destroying medical records. But as this blog recently underscored, the Maryland Board of Physicians does not appear to be an effective enforcer of medical ethics.

I think many doctors who support medical malpractice tort reform will reflexively roll their eyes at the suggestion from a lawyer that we need another medical malpractice tort. But as a lawyer I would certainly support this rule in legal malpractice cases in Maryland. Similarly, I think a lot of Maryland doctors who want to rid the medical profession of dishonest doctors would also support a tort to punish doctors who deliberately destroy evidence and/or do not reveal to the patient that serious medical malpractice has been committed.

So what will happen with this bright idea? Absolutely nothing. The Maryland Court of Appeals is not in the mood to create a new tort in medical malpractice cases and it will be impossible to gin up the inertia in the Maryland General Assembly for anything that will impose new liability on Maryland doctors.

Yesterday, I wrote about how the Maryland the Maryland Board of Physicians does not deter bad doctors and that the most viable deterrent to bad medicine in Maryland is medical malpractice lawsuits. Today, the Maryland Daily Record reports that the consumer advocate group Public Citizen has found that Maryland's physician discipline system is one of the worst in the United States.

The Baltimore Injury Lawyer Blog today underscores why meritorious medical malpractice lawsuits not only bring justice for the malpractice victim but also serve society. The post contrasts two cases of malpractice and cover-up: one by a Maryland lawyer, the other by a Maryland doctor. The lawyer is, appropriately, disbarred. The doctor never stopped treating patients, receiving only a public reprimand.

It is not optimal that the best way to police doctors in Maryland is malpractice lawsuits. But meaningful discipline from the Maryland Board of Physicians is simply not a deterrent because meaningful discipline is so rare.

The Maryland Court of Special Appeals wrote an opinion of interest to Maryland malpractice lawyers who receive referrals from other Maryland lawyers in medical malpractice cases.

This case involves a Maryland lawyer who referred a cancer misdiagnosis case involving an allegedly misread mammogram to a lawyer that handles medical malpractice cases, agreeing to a fee split. Before referring the case out, the original lawyer filed the malpractice lawsuit.

The Defendant sought summary judgment claiming the statute of limitations had tolled because the alleged failure to diagnose cancer occurred more than three years after limitations had passed. Plaintiff prevailed on summary judgment. The opinion does not say, but I assume it was a discovery rule issue – the patient did not know of the malpractice until after it had occurred.

Then things got interesting. The malpractice case settled the claim for $225,000, far less than the referring lawyer had hoped. Allegedly, the medical malpractice lawyer sold the clients on the settlement by “deliberately misle[ading] the [Plaintiffs] into settling by telling them limitations remained a ‘serious concern’”; “telling them that they had been victims of malpractice by [the referring lawyer]”; and “suggesting to them that they sue [the referring lawyer] for malpractice.”

Continue reading "Lawsuit Against Maryland Malpractice Lawyer by Referring Lawyer" »

New England Journal of Medicine has an editorial from doctors who support federal legislation that would give injured patients the right to sue medical device manufacturers in state courts.

Sometimes I have a case against multiple defendants where each defendant would be better served by making a stronger case against the other defendant. But, as if by Pavlovian reflex, the defense lawyers will look to find common ground and bend over backward to avoid pointing to each other to the detriment of their clients.

I think the same Pavlovian reflex causes doctors to oppose the Medical Device Safety Act of 2009 that overrules Medtronic v. Riegel. This is rooted in doctors' disdain for medical malpractice lawsuits, which leads to the reflex that anything that helps injury victims bring lawsuits is a bad thing. Because barring lawsuits against medical device manufacturers will lead many injured plaintiffs to blame their doctor, the result will be more medical malpractice lawsuits. Preemption will also undermine, as doctors writing in the New England Journal of Medicine have previously opined, the confidence that doctors and patients have in the safety of drugs and devices. If doctors cannot trust that the device manufacturers have to make products for which they will be held accountable, doctors are going to resist using medical devices that are efficacious. If Medtronic v. Riegel remains the law, it hurts patients and, ironically, medical device manufacturers.

Maryland’s nursing homes had an “off year” according to Jay Handcock’s blog for the Baltimore Sun. The Government Accountability Office reports that citations in Maryland for inflicting residents with “actual harm” or putting them in “immediate jeopardy” were given to 17% of Maryland’s 234 nursing homes last year. This is more than a 100% increase from last year.

There is a bill in the Maryland House of Delegates that would require Maryland nursing homes to give people the choice of installing cameras to monitor their loved ones in nursing homes. What would that cost Maryland nursing homes? Nothing. The patients or their families would pay for the camera themselves. Yet I’m going out on a limb to say the bill does not pass. Why? Maryland nursing homes have good lobbyists.

The Baltimore Injury Lawyer Blog offers additional insight into the Baltimore Sun's editorial on proposed changes to the medical malpractice cap in Maryland, including the Sun's publication of a letter to the editor presenting the victim's point of view on the issue of malpractice caps. Clearly, the Sun saw the light after criticism from the Maryland Injury Lawyer Blog. (Shhh. Let me delude myself.)

Last week, I wrote on the Maryland Medical Malpractice Attorney Blog about the Baltimore Sun taking a position opposing medical malpractice caps, choosing the new, innovative path of side stepping the substance of this issue and trying to demonize trial lawyers. The Baltimore Sun responded Sunday by printing a letter to the editor offering the opposing view on damage caps, explaining how children who lose a parent by the carelessness of someone else are woefully under-compensated. In other news yesterday, Larry Summers is stepping down from his position as Director of the National Economic Council to co-host The View.

Oh, wait. Those things didn’t happen. Instead, the Sun printed a “me too” editorial from Timonium doctor Mark Hass:

At a time when the nation's economy is slumping and the governor is proposing to mandate that Maryland hospitals and physicians provide more free care to lower-income families, it's ironic that the state House Judiciary Committee, led by trial lawyer Joseph F. Vallario Jr., is proposing legislation to roll back the reforms in the state's medical malpractice insurance policies enacted in 2004 ("Attack of the trial lawyers," editorial, Feb. 17).

Such a rollback would ultimately result in higher malpractice insurance rates for doctors and hospitals, higher health care costs for consumers, higher health insurance premiums for businesses, and, of course, higher incomes for well-heeled trial lawyers.

Perhaps the "attack" of these lawyers on physicians and hospitals will only abate when enough doctors have left Maryland and enough hospitals have closed that they no longer have anyone left to sue.

Dr. Mark Haas
Timonium

Continue reading "Medical Malpractice and the Baltimore Sun" »

It is much easier to comment on the content of other people's writings than writing commentary that is original and interesting. So let's go that route today. This is what I've been reading:

Robert J. Samuelson is one of the country’s most prolific economists. His regular columns in Newsweek and the Washington Post secure his status as an opinion leader on economic issues of our day.

Samuelson is unrepentantly a proponent of Reagan supply side economics. I’ll bet you a thousand bucks he voted for President Bush. Twice.

This week, Samuelson wrote a depressing article on the health care debacle President Obama inherits. He speaks to the nuance of the problem you do not often hear from non economists. To the chagrin of medical malpractice tort reform proponents, there is no mention of medical malpractice insurance premiums or defensive medicine as part of the health care problem.

Continue reading "Medical Malpractice and the Cost of Health Care" »

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.

On Monday the Montana Supreme Court ruled in a 5-2 decision that a father's wrongful death medical malpractice claim on behalf of his 16 year old son was time-barred.

In Runstrom v. Allen, the plaintiff' son sustained a broken femur in an ATV accident (I wonder if was a Yahama Rhino ATV, which has been the subject of numerous lawsuits around the country). The ambulance took him to the emergency room in Great Falls where he was treated by the defendant, an orthopedic doctor. Plaintiff's son regrettably died the next day. Plaintiff immediately blamed the doctor and consulted with medical malpractice lawyers but for whatever reason did not pursue a case.

Almost 4 years later, plaintiff read an article in the Great Falls Tribune reporting on an administrative proceeding against the doctor; the article referred to a peer review report and some of the doctor's former patients, whose names had not been released to the public. Plaintiff believed that his son was one of those unnamed patients, and after reviewing the documents, filed a medical malpractice claim with the Montana Medical Legal Panel (Maryland's version of Health Claims Arbitration).

Montana's medical malpractice statute of limitations reads a lot like Maryland malpractice statute. In Montana, medical malpractice actions alleging injuries or wrongful death must be brought within three years from the date of injury or from when the plaintiff first discovered the injury. Again, like Maryland, claims may not be brought after five years from the date the injury was incurred.

Accordingly, the Plaintiff’s medical malpractice claim would appear barred by the statute of limitations on its face. Plaintiff asserted, however, that minority polling delayed the running of the three year statute of limitations and that because his son would have lived two more years until he reached the age of 18, the statute of limitations for his claim did not begin to run until his son had reached the age of majority.

The doctor's medical malpractice lawyer disagreed, contending that the person at issue is not the decedent, which is how the court found.

The nuances of Plaintiff's argument are too involved for this blog post (read: I don't feel like breaking them down) but they are spelled out exceptionally well in William A. Rossbach's (Rossbach Hart Bechtold, PC in Missoula) amicus brief on behalf of the Montana Trial Lawyers Association). The Montana Supreme Court does a fantastic thing by publishing not only the opinions but all of the briefs that were submitted. You can find the Montana Trial Lawyers Association brief here and the Montana Supreme Court decision here.

There is an article in the New York Times today that concludes that it is best to settle most accident, malpractice and breach of contract claims based on a recent study.

The basis for the conclusion is a study suggesting that defendants made the wrong decision by proceeding to trial, based on the offer and the outcome, in 24 percent of cases, and plaintiffs were wrong in 61 percent of cases.

Setting aside that these numbers do not even resemble the numbers of our lawyers - and probably 90% of the personal injury lawyers reading this - these numbers are hardly persuasive in reaching that conclusion. The reason is simple: if you bet on a horse that is a 50-1 shot and the horse has a 10% chance of winning the race, you are going to lose more often than you win but you are still better off making the bet (i.e., trying the case) than you are not making the bet (i.e. setting the case).

In fact, the article presents powerful evidence of this. When plaintiffs err in going to trial, the study states that they lose $41,000 on average. When the defendants make the wrong call, the error costs them over $1 million. Accordingly, the plaintiff – like the man betting on the horses – may get the decision wrong more often than the defendants from a win-loss perspective, but might still be better served statistically by going to trial.

The irony of the article is the suggestion that personal injury lawyers are pushing cases to trial. The reality is that the failing of most personal injury lawyers is that they push their clients to settle too soon and too often because the lawyer would rather not have to try the case; perhaps this is because they do not want to spend the time or effort or do not have the ability and experience to try the case.

Thankfully, most personal injury cases can and do settle. Moreover, it is important to remember – as the article points out – that for most Plaintiffs a $500,000 settlement is a better choice than a 75% chance of getting $1,000,000 at trial, regardless of the math, because the settlement acts as an insurance policy. But the notion that personal injury lawyers should try fewer cases is just false and plays into the hands of insurance companies that are seeking every possible avenue to convince injury and malpractice lawyers to recommend to their clients values that do not approximate a fair settlement for the case.

The 11th Circuit Court of Appeals decided the question of whether a debtor's claims for legal relief that arose after the confirmation but before the completion of his plan to pay creditors are property of the estate, under Chapter 13 of the Bankruptcy Code.

In this case, after the debtors' joint Chapter 13 plan was confirmed, the joint-debtor husband was involved in a car accident and suffered personal injuries. The bankruptcy court approved the $25,000 claim against the at-fault driver. Debtors then sought authority to settle the uninsured motorist claims arising out of the car accident without further approval from the bankruptcy court because the car accident happened after the confirmation, and accordingly, the claims vested in the debtor and were not subject to the bankruptcy proceedings.

The court addressed two distinct issues: (1) whether the husband’s underinsured-motorist benefits are property of the estate, and (2) whether the bankruptcy court erred when it required both the husband and the wife to amend their schedules of assets to disclose the husband’s claim and partial settlement.

With respect to the first issue, the 11th Circuit affirmed the lower courts finding that post-confirmation assets "remain" property of the estate. The court found the husband acquired his claims for underinsured-motorist benefits after the commencement of the bankruptcy case but before their case was dismissed, closed, or converted, and that if Congress intended for confirmation to so dramatically affect the expansive definition of property of the estate, it could have easily done so.

With respect to the latter issue, the court found that the Bankruptcy Court did not abuse its discretion by requiring the couple to amend their schedule of assets. On this issue, the court simply found that the law clearly recognizes a debtor's continuing duty to disclose changes in his financial situation while the bankruptcy is pending.

Our law firm handles only personal injury cases. I think this is the best way to practice law; I cannot imagine trying to be the jack of all trades in 2008 because there is simply too much that personal injury lawyers need to know just in handling malpractice and accident claims. But the downside is that everything I learned about bankruptcy law I learned in the day I started my Debtor-Creditor class, only to drop it because it was way too boring.

I think the key for personal injury lawyers is not in knowing bankruptcy law but in issue spotting. You don’t need to understand the bankruptcy code but you do need to be able to spot issues. In this case, if you have an accident or malpractice client whose bankruptcy has not been fully completed, you have an issue you need to address.

The Baltimore Sun reports today the medical malpractice rates continue to fall. My favorite line from the article: "Since that deal was struck, claims payouts have fallen sharply, sparking debate over whether a malpractice crisis ever existed." Hmmm, I hadn't thought about that.

I'm preparing for trial on Monday and I don't want to completely flush out this issue but this article made me think of something. If we are going to offer state subsidies to doctors for their malpractice insurance - which I don't necessarily oppose but I'm not sure I believe are necessary - couldn't we make financial necessity a variable in the equation? Could we make a rule that a doctor make less than $300,000 a year to be eligible for a subsidy? Would MedChi or Medical Mutual oppose this? If so, on what basis?

I have no problem with doctors making a boatload of money. By all means. They should. But if you are making a half million a year, should you be able to claim that the state should subsidize or, far worse, that victims of medical malpractice should be under compensated to subsidize your business expenses?

While I was on vacation, I promised more commentary on Matsuyama v. Birnbaum, a landmark medical malpractice opinion on loss of chance from the Massachusetts Supreme Judicial Court.

In Matsuyama, the 42 year-old Plaintiff’s decedent, Mr. Matsuyama, saw the Defendant doctor, a board-certified internist and the Plaintiff’s primary care doctor, for a physical in July, 1995. Mr. Matsuyama's medical records from that visit indicated disclosure of complaints of gastric distress for the last seven years and that Mr. Matsuyama's prior doctor had noted that he might need additional tests to evaluate his symptoms.

The Defendant doctor testified that Mr. Matsuyama complained of "heartburn and difficulty breathing associated with eating and lifting." The Defendant also knows Mr. Matsuyama was a smoker at high risk for developing gastric cancer. Without further testing, the doctor diagnosed Mr. Matsuyama with gastrointestinal reflux disease.

Plaintiff’s expert testified that at this point the doctor committed medical malpractice by failing to order the appropriate tests, and, over a year later with the same symptoms and facts available to him, he continued his diagnosis in spite of complaints that Mr. Matsuyama’s heartburn was worse and that he had gastric pain after eating. A year later, Mr. Matsuyama again visited his doctor and asked about moles that been developing. The doctor diagnosed “benign seborrhea keratosis."

I’m getting deeper into the medical facts here than I would like, but you get the point. Mr. Matsuyama went back to the doctor with more symptoms consistent with gastric cancer and his doctor continued to fail to test more thoroughly for cancer. But in May, 1999, when his symptoms went through the roof, the doctor ordered a gastrointestinal series and an abdominal ultrasound, which quickly revealed a two-centimeter mass in Matsuyama's stomach. He died in October, 2000, leaving behind a wife and child.

After a six-day trial in Norfolk County Superior Court, the jury found the doctor negligent and found that the doctor’s medical malpractice was a "substantial contributing factor" to Mr. Matsuyama's death and awarded Matsuyama's estate $160,000 for pain and suffering caused by the negligence. Then, in response to a special jury question, the jury awarded damages for “loss of chance.” They calculated the damages to be $875,000 as "full" wrongful death damages and found that Matsuyama was suffering from stage-2 adenocarcinoma at the time of doctor's initial negligence and had a 37.5% chance of survival at that time. The Norfolk jury awarded the plaintiff "final" loss of chance damages of $328,125 ($875,000 multiplied by .375) for a total of $488,125.

Continue reading "Lost of Chance in Medical Malpractice Cases: What Massachusetts Has Done and What Maryland Should Do" »

The Massachusetts Supreme Judicial Court - Massachusetts' highest court - ruled yesterday that medical doctors can be held liable for medical malpractice that reduces a patient's chance of survival, even if the patient's chances of recovery was already less than 50 percent.

Maryland also has a loss of chance case currently pending before the Maryland Court of Appeals although few Maryland medical malpractice lawyers expect Maryland will go as far as Massachusetts has in this case.

I'm on vacation this week but I'll read and report on this important opinion next week.

Medical Justice is what appears to be a new organization whose aim is to “’prevent, deter and respond’ to frivolous malpractice lawsuits.”

This seems like a goal we – including good plaintiffs’ medical malpractice lawyers - can agree on, right? Frivolous lawsuits hurt everyone. For a cost of $625 to $1990 a year Medical Justice will give you:

•Pursuit of counterclaims against expert witnesses in their professional societies and state licensing boards

•Published database of members on the Internet to notify plaintiffs and their representatives that the physician is backed by an organization with the expertise, will, and funds to fight back

•Establishment of pre-emptive critical practice infrastructure to deter plaintiffs without interfering with the patient-doctor relationship

•Proactive early intervention strategy that can be executed in the event you are sued

•Access to PEER team of volunteer defense experts

•License to use Patient-Physician contract template language

•License to use contract template language to prevent being forced into small-claims court

•License to use contract template language to prevent physician being defamed on the Internet

•Access to program to address unwarranted requests for refunds or write-offs

•Allocation of up to $100,000 as assignee to pursue viable counterclaims, when requested and appropriate

Except for the first and the last, these are pretty much fluff benefits. The most absurd is the use of “license[d]” contract language to file a complaint. Please. I’ll put these on the Maryland personal injury lawyer website to save everyone the trouble.

I find the first one interesting – the pursuit of counterclaims against expert witnesses. It is an interesting strategy of trying to attack experts who are willing to stand up for patients. The last one is also interesting: up to $100,000 in legal fees to pursue counterclaims when “requested and appropriate.” Gee, I wonder who gets to decide what is appropriate… I’m guessing Medical Justice.

What troubles me about Medical Justice is the kind of doctors this is likely to attract: good doctors. This program appeals to good doctors who are unlikely to ever have a medical malpractice claim brought against them, but they fear frivolous lawsuits. As awful as they are for society, there is never going to be a jury verdict in a frivolous case. So why should doctors fear frivolous lawsuits? The doctor’s malpractice carrier will hire an excellent medical malpractice defense lawyer to get the case dismissed long before a settlement or verdict.

Wait you say, jurors award damages in frivolous medical malpractice lawsuits all of the time and frivolous malpractice cases settle all of the time. Okay, let’s ignore the studies that prove this is false and just pretend this is an accurate statement. If a case is settled or a jury finds against you, that is going to be an absolute defense to any claim that a medical malpractice lawsuit is frivolous. So there is no way this “insurance policy” (which I doubt is actually an insurance policy, anyway, because I suspect the term frivolous will be defined by Medical Justice) is going to have any real meaning for end users. It is like selling terrorism insurance in some farm town in Kansas. It is an illusory security blanket. (This was probably shot down as the Medical Justice motto.)

Medical Justice is “run by physicians for physicians.” They don’t exactly note this is a non-profit. So it is doctors trying to make a buck off other doctors by capitalizing on their fear of medical malpractice.

On the Medical Justice website, they offer a slew of testimonials, the majority of which are just puff, vague, “hey, you are great” testimonials. Of the few “results” testimonials Medical Justice offers, all could be attributed to the work of the doctors’ medical malpractice lawyer whose job it is to defend these cases in the first place.

If I’m wrong about this, Medical Justice let me know. And here is my challenge to you. Tell us exactly what your “results” have been. How many lawyers have you successfully brought claims against for filing frivolous lawsuits? How many actual claims have you brought? How many experts have you sued for standing up for patients? How many experts have you sued successfully? How many volunteer experts have acually provided testimony? If I’m wrong, I’m wrong. But I doubt it. If you are a doctor reading this, please make sure you ask these questions before you give them a single penny.

Medical malpractice lawyers in New York today released incredible surveillance camera video from Kings County Hospital in Brooklyn, New York, showing a 49 year-old woman dying on the floor of a psychiatric emergency room while being completely ignored by the hospital staff.

The video shows the woman keeling over and falling out of a chair on June 19, 2008, and lying facedown on the floor, then thrashing wildly before going limp. A full hour passes before anyone bothered to try to help.

Absolutely incredible video that reminds me of the Rodney King incident. If it was not on video, no one would ever believe that it happened as the plaintiffs’ lawyers will argue.

I have no problem with these malpractice lawyers releasing the video of this incident in principle. It may - with the caveat below - enhance the value of this malpractice case from a settlement perspective. Still, I find it disconcerting that a lawsuit gets a lawsuit filed in a malpractice case within two weeks. It is impossible to get a malpractice case ready for filing two weeks after someone’s death. And, frankly, it is a little unseemly to me. I’m not saying this is the case, but the perception left on most medical malpractice lawyers who usually handle these kinds of cases – rightly or wrongly – is that these lawyers filed suit so quickly because they could not wait to see themselves in the news. Is this a case that could have been settled for greater than the value of the case because the hospital wanted to explore quiet settlement alternatives? If so, how could these lawyers have possibly fully explored these avenues in two weeks?

Medical malpractice victims suffered a setback in Kentucky last week when the Supreme Court of Kentucky reversed the Kentucky Court of Appeals ruling adopting the “lost or diminished chance of recovery” in medical malpractice cases in Kemper v. Gordon. (This defense verdict was, however, reversed on other grounds because the trial court erred in excluding evidence that an expert has reached the opposite conclusion in another case.)

The facts of Kemper are tragic. A 38 year-old mother in otherwise good health presented at the emergency room with chest pain, shortness of breath, severe nausea and dizziness. For a year, these and related symptoms appeared. All were dismissed as anxiety or panic attacks. Finally, the woman was diagnosed with metastasized gastric (stomach) cancer. After her death, her family brought a medical malpractice lawsuit. At various points along the way to the jury, she settled with five of the six doctors that treated her. The jury returned a defense verdict.

At trial, Plaintiffs sought a jury instruction that the doctor’s negligence was a “substantial factor in causing the injury” to the decedent. The trial court rejected this instruction. The Kentucky Court of Appeals reversed and adopted the “lost of diminished chance of recovery” doctrine, pointing out that a growing number of states have adopted the lost or diminished chance doctrine, including Kentucky’s neighbors Illinois, Missouri and Indiana.

There are essentially two competing rules vying to be Kentucky law. The first is the rule we have in Maryland, the all or nothing rule. Under this rule, the compensable injury in the case is death. Under the lost of diminished chance doctrine, the compensable injury would be the lost recovery or survival from cancer.

You can drive a two ton truck through the difference. Under the former rule, there is no legal liability by a negligent doctor for any injury to the plaintiff unless the plaintiff has a 51% likelihood of survival.

The question is why should a negligent doctor be given a free pass just because she was not 51% responsible? How many billions of dollars do we spend in this country at our grocery stores buying organic food, and at pharmacies, health clubs, and doctors’ offices to improve our chances of avoiding even non fatal diseases by fractions of percentage points? If someone shaves off a 49% chance of your survival, would anyone be able to say that you were not injured? If you were told you had even a 1% chance of dying next year because of the negligence of someone else, how would you feel? Unharmed?

There are two things worth reading from this case. First, while I could not disagree more with the Kentucky Supreme Court, on page 8-10 of their slip opinion is a very articulate argument as to why public policy mandates keeping the 51% rule. (I respect good arguments, even those with which I disagree.) Second, in the Plaintiffs’ appellate brief – all 71 pages of it – Plaintiffs’ medical malpractice lawyer Ann B. Oldfather of the Oldfather Law Firm does a magnificent job of articulating the insanity, in law and in human terms, of the 51% rule.

In an even more egregious finding last year, the Maryland Court of Special Appeals found in a 2-1 decision in Marcantonio v. Moen that a reduction of 30 percent in the survival chances of a woman with cancer as the result of medical malpractice is not actionable as a matter of Maryland law.

The same conclusions divorced of human experience (and fundamental mathematics) in Kemper v. Gordon were applied in this malpractice case. In Marcantonio, the court’s logic is that your must have 51% decrease in the chance of survival to recover. So, if you have a 99% of survival and the missed diagnosis drops your chances to 80%, no claim can be had for your death even though there is a 95% chance your death was caused negligence. How on earth does that make sense? As Judge Timothy E. Meredith points out in the dissent, basic mathematical principles mandate a different conclusion.

The Maryland Court of Appeals granted certiorari in Marcantonio in April so we will hopefully soon find out whether they will provide a more logical and just law.

The University of Chicago Journal of Legal Studies published an interesting article on medical malpractice tort reform. Current Research on Medical Malpractice Liability: Medical Malpractice Reform and Physicians in High-Risk Specialties, 36 J. Legal Stud. 121 (2007). The article supports the plaintiff’s view of medical malpractice tort reform… with a very notable exception.

The article concludes that introduction of medical malpractice reform in response to the fear of losing doctors may be misguided because the “relationship between medical malpractice reform and physician labor supply suggest that the effects are modest.” The article suggests that many doctors are likely to be indifferent to medical malpractice reform “because their likelihood of being sued is low.”

Interestingly, the article references one study by Eric Helland and Mark Showalter titled, “The Impact of Liability on the Physician Labor Market,” which indicated that medical malpractice damage caps induce physicians to work more hours in a year.

Helland and Showalter found that medical malpractice reforms did not increase the supply of doctors in some underserved communities (a topic of two Maryland Injury Lawyer Blog posts back in March). But the article points out that other tudies have disagreed with this assessment.

In fact, because the purpose of this blog is not simply to point out every fact that plays to medical malpractice lawyers’ views of tort reform, it is worth noting one finding that, if borne out by other studies, is significant. The article found that, although the results are not entirely clear, non-economic medical malpractice damage caps appeared to improve the black infant mortality rate by 6%.

There is nothing insignificant about such a finding. But, as the article points out, it may be that the correlation is the result of endogeneity. In other words, the passage of medical malpractice reforms may be related to unobserved factors that also correlate with the size of the physician workforce. (This is why I have never liked the malpractice lawyers’ argument that medical malpractice damage caps do not lower malpractice insurance rates because, all things being equal, I’m sure they do even if the data does not show it.)

The latter theory is my theory that the study is not looking at “all things being equal” and there are other factors at play. I base this on my review of the totality of the studies on this and my own common sense. Moreover, the larger question is whether it is a zero sum game. If infant mortality goes down in one state but goes up in another, what has been accomplished? Still, only a fool or someone with an incredibly closed mind looks at a study that sees an improvement in infant mortality and just shrugs their shoulders.

The Maryland Daily Record reports today that The Law Offices of Peter G. Angelos intends to file an appeal in a Baltimore City medical malpractice case in which the Plaintiff’s $10.2 million jury verdict against University of Maryland Medical Center was capped at $632,500.00 because that is the limit on non-economic damages.

The Daily Record reports that the Plaintiff's medical malpractice lawyers intend to argue that: (1) the limitation on damages has not accomplished its purported legislative objective of reducing medical malpractice insurance rates for doctors; (2) the Maryland cap on non-economic damages is pre-empted by the ADA; (3) that it violates equal protection and due process; and (4) that it deprives the jury of the information necessary to make an informed decision.

Not surprisingly, Baltimore City Circuit Judge Carol E. Smith denied Plaintiff’s motion to overturn the cap and reduced the Plaintiff’s verdict to his medical expenses and $620,000.00 in non-economic damages (the malpractice must have occurred between October 2002 and September 2003).

I’ve written here about 10,000 times that I think that caps on damages are unjust. As a Maryland malpractice lawyer, I’m rooting for the Plaintiff to convince the legislature to overturn the cap. I think the result would be justice and a system where we do not discriminate against those that have been the most seriously harmed. That said, if I were on the Maryland Court of Appeals, I would find that the Maryland General Assembly made a law that it had every right to make when it instituted a cap. Because there is no law against dumb laws.

I read over the weekend an interesting decision from the Connecticut Supreme Court that came out last week. The case, Monti v. Wenkert, is an absolutely awful medical malpractice case involving a seventeen year-old girl who presented with significant but subjective symptomology that was dismissed as psychological by her GP, his physician’s assistant, and the emergency room at the hospital. This diagnosis continued even after she collapsed at her doctor’s office with “blueish, purple” lips. The young girl died of acute respiratory distress syndrome caused by a viral infection. Like I said: awful. I don’t suspect this case will show up on the cover of Tort Reform Monthly anytime soon. It is anyone's guess how this case made it to verdict.

At trial, after the close of Plaintiffs’ case, Plaintiff and one of the Defendants agreed to a high-low agreement that was not disclosed to the other Defendant. After an adverse verdict the Defendant who was kept in the dark appealed his case.

The court explained the perils associated with Mary Carter and undisclosed high-low agreements and found that all verdict contingent settlement agreements must promptly be disclosed to the court and to the lawyers for any non-settling defendants. Such agreements cannot be used to prove liability or damages but can be admitted – within the trial court’s discretion, to show bias or prejudice of a witness.

In this case, however, the Connecticut Supreme Court gives the Plaintiffs’ a pass on their failure to disclose the agreement because it came after the Plaintiffs’ had rested their case and because the agreement did not change the adversarial alignment of the parties.

If the Connecticut rule is that the agreement should have come into evidence, I think the non-settling defendant could have used this agreement effectively on cross-examination. I think the court may have cut the Plaintiffs’ a break in this case probably because upsetting the verdict in this case – given the facts – would seem unjust.

You can find the full opinion of the Connecticut Supreme Court in Monti v. Wenkert here.

In the Maryland Lawyer Blog a few weeks back, I wrote about what I thought was the primary fuel to the tort reform engine: people do not expect to be the victims of an accident that is the result of the negligence of someone else, and they certainly do not expect to be victims of medical malpractice. Statistically, they are right.

The odds were in favor of a West Virginia gynecologist when he went in for abdominal surgery last month. But after his surgery, the gynecologist developed an infection and developed severe and debilitating abdominal pain, decreased consciousness and overwhelming septic shock, requiring mechanical ventilation and additional surgeries. Attributing his injuries to negligence, the gynecologist brought a lawsuit against his doctors and the hospital for medical malpractice.

Flashback to April 7, 2008, the day before the doctor’s surgery: What would have the doctor said about caps on medical malpractice cases on that day? What would he have said about whether litigation is the answer? Obviously, in this case, he thought litigation was the only answer, filing suit an almost unheard of one month after the alleged negligence.

Assuming this doctor supported malpractice reform and caps before filing suit, does that make this West Virginia gynecologist a hypocrite? If you contend that he is, you have a lot of ammunition. But we have a hard time putting ourselves in someone else’s shoes and when we are forced to do so, it forever changes our perspective. The fuel that fills the tort reform bus is that most people on the ride have never meaningfully suffered from the negligence of someone else. People who are lifelong riders of the bus – like this doctor probably was – almost invariably get off at the first stop after they have suffered a serious injury that due care could have avoided.

You can find the article on this story here.

Every month or so, I report on the Metro Verdicts Monthly graph on the front of their publication which compares verdicts and settlements for a certain type of personal injury claim in Washington D.C., Maryland, and Virginia. Sometimes I am surprised by the difference in the results.

This month I am astounded by the difference between Virginia, Washington, D.C. and Maryland in median nursing home liability verdicts and settlements since 1987. The median recoveries in Maryland and Virginia are $125,000 and $175,000, respectively. This means that the median settlement and verdict in Virginia is 40% higher than Maryland. Virginia juries are generally more conservative than Maryland so this result is somewhat surprising. But here is what I find surprising: the average nursing home case settlement or verdict in Washington, D.C. is $700,000.

I have not done any sort of sophisticated jurisdictional analysis but I believe there is a general correlation between the size of nursing home verdicts and the size of medical malpractice verdicts. Yet these figures do not appear to support this conclusion. Metro Verdicts Monthly reports that the median settlement and verdict in Washington, D.C. for wrongful death medical malpractice cases over the last 20 years is $665,700. This is much less than Maryland’s median recovery of $900,000 or Virginia’s median recovery of $750,000.

These statistics would surprise me less if the study used average instead of median because the average can be influenced by extremely high verdicts or settlements that can create a misleading picture. But the median settlement or verdict number means that the study divided the jury verdicts and settlements into two equal groups, half having settlements or verdicts above the median and half having settlements or verdicts below the median.

On Wednesday, a Baltimore City jury awarded a 78-year-old Owings Mills woman $2 million in a medical malpractice case stemming from a failed surgery that led to three successive leg amputations.

After the verdict, Defendant’s medical malpractice lawyer gave this quote to the Maryland Daily Record: “This reaffirms my long held view that it is extremely difficult for a physician to get a fair trial in Baltimore City, particularly where there is a bad outcome and a sympathetic Plaintiff.”

If I were the reporter, I would have asked a few follow-up questions. Do you think that the people of Baltimore are not as smart and more prone to emotion then, let’s say, a Baltimore County jury? Why do you think this is? Is it just medical malpractice cases we cannot trust them with or all cases? What should we do about this problem with Baltimore City jurors? Should we replace Baltimore City jurors with the right kind of people, like the good folks in, let’s say, Potomac. If Baltimore City jurors can’t be fair on juries, should we continue to trust them to vote?

Congratulations to the malpractice victim and her lawyers Charles J. Piven of Brower Piven in Baltimore and Barry J. Diamond.

The Maryland Injury Lawyer Blog received today the following comment from an emergency room doctor in southern Maryland regarding my blog post on the alleged shortage of doctors in Maryland:

"You are guilty of not supporting your assumptions with data as well. I practice emergency medicine in St. Mary's County and Southern Maryland DOES have a doctor shortage problem. I know, I work here. I have many patients that cannot get into a primary care physician or a specialist. Talk to any hospital CEO at Civista, St. Marys, or Calvert Hospital and they will all tell you the same thing. While the shortage may not be evenly distributed about the state, the shortage is real and affects real people. You mentioned that you do not know anyone that has not been able to see a doctor. I imagine that in your nice neighborhood, your friends from the club, your colleagues have all been able to find doctors. You are out of touch with the rest of Maryland. If you are waiting for 'one person to tell you they cannot find the medical care they need' come visit me in St. Mary's county and I will introduce you to many. Maybe that will convince you. By the way, I am not a member of MedChi, have not attended any MedChi meetings and have no other motive to respond to your comment other than your gross misstatements that are baseless."

First, I appreciate the comment. I publish every comment I get, even those that, unlike this one, insult me personally. The Maryland Injury Lawyer Blog is obviously slanted towards plaintiffs and victims because I am slanted that way. But I try hard to make this a forum where I am writing as a human being who sees the world as I do, not as a plaintiffs’ lawyer’s manifesto.

As it turns out, this was not the only disparaging comment I received on this blog. I received a couple of emails and a telephone call from my father echoing Dr. Tucker's sentiment. I think my father may have even mentioned southern Maryland as an example.

First, I stand by the premise of the article. Last month, CareFirst BlueCross told the Maryland General Assembly that rather than a shortage of doctors, Maryland enjoys an adequate supply of physicians, fourth best in the United States. Supporting their argument with facts, CareFirst said that, based upon company records, there are approximately 16,500 full-time doctors practicing in Maryland. MedChi's estimation was approximately 10,000. You can drive a Mack truck through the difference in these numbers. Would this article have come out if 16,500 doctors was the number MedChi used in its calculations? As to who is telling the truth, I don't know, but I can tell you I do not trust Med Chi's numbers. They have always shown a willingness to collect and report numbers that are misleading, in an effort to vilify medical malpractice lawyers and/or insurance companies. So, I do continue to believe that Maryland has plenty of doctors even if "fourth best in the nation" is a CareFirst exaggeration.

What got me into trouble with some readers was the flip "find me someone who cannot find a doctor" comment. I felt comfortable saying this because it is true and I felt insulated from Dr. Tucker's "your friends at the club" jab because we have a lot of clients with limited means throughout the state of Maryland, and I do not recall anyone having trouble finding a doctor who would see them (and because the only “club” that I belong to is a health club - good, this segue gives me a chance to plug Club One Fitness).

I saw Doc Hollywood almost twenty years ago, and I get the idea that rural areas do have shortages of doctors, at least in certain specialties. I should have qualified my words more than I did because my experience of patients looking for and finding doctors in rural areas of Maryland is limited to the kinds of doctors patients typically see after trauma caused by negligence, which clearly leaves out many areas of physician specialties.

If the problem exists in rural areas of Maryland where successful medical malpractice lawsuits are as frequent as cicada sightings, Med Chi should focus on presenting ideas that can be used to recruit doctors to areas suffering from a shortage of physicians, such as public subsidies, scholarships and other incentives, instead of continuing to beat the drum that every problem faced by Maryland doctors involves either the insurance companies or medical malpractice lawyers.

The New York Personal Injury Lawyer Blog tipped me off to an article in the Chicago Tribune last week about a patient who filed a lawsuit against her eye doctor and his assistant alleging that the patient's toes were licked during her eye exam by the doctor’s assistant in Skokie, Illinois.

Apparently, the Plaintiff went to get an eye exam. The doctor’s assistant entered and dimmed the lights and told the plaintiff he was going to perform a "strip test." He placed a strip over her eyes and told her she would need to keep her eyes closed for 5 to 7 minutes. Feeling something on her feet, she opened her eyes and saw him licking her toes. The assistant reportedly replied, “"I'm sorry, I'm sorry, but I was checking your sugar level."

Many personal injury lawyers are going to disagree with me, but this is my definition of a frivolous medical malpractice action. Her damages were that her toes were licked. Obviously, this is not a good thing, and if it happened to my wife, I might be pretty annoyed and want to do something about it. The Plaintiff did do something about it. She pressed charges and the guy was convicted and sentenced to a year of probation. But now she wants to profit from that moment of having her toes licked and she wants to drag the doctor into it, even though there are no allegations the doctor knew or should have known that this guy was the nutcase that he apparently was. Who knows what a jury will give her but she does not want me on that jury.

I know that the Chicago Tribune sells a lot of papers. You can be sure that someone read this article in the morning on the way to jury duty and then was impaneled for a case where someone was seriously hurt. That deserving injury victim started his or her case behind the eight ball with that juror.

The wife of former Dallas Cowboys running back Ron Springs has filed a medical malpractice lawsuit against two Texas doctors she accuses of letting him slip into a coma, leaving him mentally and physically incapacitated.

Springs’ case is a wonderful story with a tragic ending. Last March, he received a kidney from ex-teammate Everson Walls and hopes were high for a full recovery, leading to some wonderful stories about Springs' friendship with his ex- teammate Walls. The public's interest in the story was furthered by the fact that Springs' son is professional football player.

I have zero information on the merits of this malpractice case. It could have a great deal of merit, I don’t know. Obviously, the injury is catastrophic. But it does not help the public’s perception of medical malpractice cases when it seems as though every famous person who has a bad medical outcome files a medical malpractice case. Charlie Weis and Dennis Quaid are a few recent examples of celebrity malpractice cases.

Why does this happen? Because many lawyers are more aggressive in taking cases on behalf of people that are famous even when the damages are not extensive or the probability of success is low. Everyone wants to be so-and-so’s lawyer and receive the ensuing publicity. The problem is that the public then perceives that every bad medical outcome case ends up being a medical malpractice case, furthering the acceptance of medical malpractice insurance companies’ argument that people bring lawsuits every time something goes wrong. The reality is that the economic demands of malpractice cases too often lead to the opposite result for most people: they have a meritorious case, but the costs of a medical malpractice case are such that no lawyer is willing to take a risk to pursue the case.

How many times have you Googled for one purpose and then found something interesting completely unrelated to what you were looking for? This weekend, looking for something completely unrelated, I found a New Yorker article from two years ago on medical malpractice in the comments section of a blog. It is an interesting and somewhat balanced article by a doctor writing about the medical malpractice problem in this country. I disagree with his conclusions but it really is a wonderfully well written article that points out the paradox inherent in medical malpractice cases. Three quotes in the article I found of particular interest:

“Malpractice attorneys are hardly the most impartial assessors of care, but medicine has offered no genuine alternative because physicians are generally unwilling to take financial responsibility for the consequences of their [medical malpractice]. Indeed, the one argument that has persuaded many doctors to be more forthright about mistakes is that doing so might make patients less likely to sue.”

“I watch a lot of baseball, and I often find myself thinking about the third baseman's job. In a season, a third baseman will have about as many chances to throw a man out as I will to operate on people. The very best (players like Mike Lowell, Hank Blalock, and Bill Mueller) do this perfectly almost every time. But two per cent of the time even they drop the ball or throw it over the first baseman's head. No one playing a full season fails to make stupid errors. When he does, the fans hoot and jeer. If the player's error costs the game, the hooting will turn to yelling. Imagine, though, that if every time Bill Mueller threw and missed it cost or damaged the life of someone you cared about. One error leaves an old man with a tracheostomy; another puts a young woman in a wheelchair; another leaves a child brain-damaged for the rest of her days. His teammates would still commiserate, but the rest of us? Some will want to rush the field howling for Mueller's blood. Others will see all the saves he's made and forgive him his failures. Nobody, though, would see him in quite the same way again. And nobody would be happy to have the game go on as if nothing had happened. We'd want him to show sorrow, to take responsibility. We'd want the people he injured to be helped in a meaningful way. This is our situation in medicine, and litigation has proved to be a singularly unsatisfactory solution. It is expensive, drawn-out, and painfully adversarial. It also helps very few people. Ninety-eight per cent of families that are hurt by medical errors don't sue. They are unable to find lawyers who think they would make good plaintiffs, or they are simply too daunted. Of those who do sue, most will lose. In the end, fewer than one in a hundred deserving families receive any money. The rest get nothing: no help, not even an apology.”

“What would most doctors do if someone close to them was hurt by a medical error? In a recent national survey, physicians and non-physicians were given the following case: A surgeon orders an antibiotic for a sixty-seven-year-old man undergoing surgery, failing to notice that the patient's chart says that he is allergic to the drug. The mistake is not caught until after the antibiotic is given, and, despite every effort, the patient dies as a result. What should be done? Unlike fifty per cent of the public, almost none of the physicians wanted the surgeon to lose his license. Medical care requires that a thousand critical steps go right every day, and none of us would have a license if we were punished every time we faltered. At the same time, fifty-five per cent of the physicians said that they would sue the surgeon for malpractice.”

Continue reading "Article on Medical Malpractice in the New Yorker" »

The Washington Post and the Baltimore Sun wrote yesterday about a new report that Maryland faces a doctor shortage that may well become severe by 2015.

We already have a shortage of doctors and things will get worse? I don’t know anyone – family, friend or client – who could not find a medical doctor when they needed one. Ever.

Who wrote the report? Well, if you go to the fourth paragraph of the Washington Post article, you learn that the report was commissioned by our good friends at MedChi, the Maryland State Medical Society. These are the same folks who warned of impending doom for doctors as the result of escalating medical malpractice cost. The same folks that came out with data supporting the future abyss.

Of course, that data turned out to be nonsense as evidenced by the fact that malpractice claims in Maryland dropped 32% over the following three years. But the MedChi cry of wolf did lead to new caps on medical malpractice cases in Maryland.

Another coincidence is the timing. Before the Maryland legislature began a special session to deal with the “medical malpractice” crisis, MedChi put out tons of information about how the sky was falling. Now, this report comes out – surprise! – just as the Maryland General Assembly goes into session. Having hoodwinked the Maryland legislature last time around, MedChi knows there is no chance of imposing new restrictions on damages in medical malpractice cases. Instead, I think their goal is to stop any groundswell to roll back those new restrictions and to apply pressure on the insurance companies to increase compensation.

Look, I’m all in favor of the insurance companies increasing doctor reimbursement rates. This issue makes the cost associated with medical malpractice claims seem like chump change. The only reason that MedChi targets medical malpractice cases is that medical malpractice lawyers are easy targets and injury victims are relatively small in number, so medical malpractice insurance rates are just an easier target for MedChi than taking on the insurance companies and their lobbyist.

This is not the first jurisdiction where doctors have complained about a doctor shortage where no shortage exists. Following this is a good editorial from Arizona on this topic.

I am not saying that there will never be a shortage of doctors in Maryland. What I am saying is that considering the messenger, I’m going to wait for an impartial study that tells me there is a crisis or until I talk to one person – anyone – who tells me they cannot find the medical care they need.

Reading back over this post, I hate that I sound so anti Maryland doctor. I'm not. I love Maryland doctors. I have three kids and I hope all three of them become doctors in Maryland. Years ago, I had cancer twice. Maryland doctors saved my life and I will be forever grateful to them. I'm not anti-doctor. And most doctors that I talk to don't have strong opinions on these medical malpractice issues, with respect to insurance premiums, caps, or anything else. They just want to help their patients and earn the decent living to which they are entitled. I also realize that MedChi is doing their job, fighting for these doctors. I just think they are advocates without any credibility on these issues. So I find it incredibly annoying when the Washington Post and the Baltimore Sun publish their findings as fact without questioning the source and MedChi's possible ulterior motives.

The Maryland Court of Special Appeals found in a 2-1 decision last month that a reduction of 30 percent in the survival chances of a woman with uterine cancer as the result of medical malpractice is not actionable as a matter of Maryland law.

Marcantonio v. Moen is a case about the delay in diagnosing cancer. Plaintiff claimed that his wife died as the result of her doctors 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%. So while she was statistically likely to beat the cancer even with the malpractice, she died.

The Maryland Court of Special Appeals found that the “major issue to be decided is whether proof that a health care provider was responsible for a twenty to thirty percent reduction in the decedent's chance of survival is sufficient to prove that the malpractice caused the death. We shall hold that it is not," wrote Judge James P. Salmon.

In other words, the court is saying 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.

But what the plaintiff and the minority opinion (a very well reasoning dissent from Judge Timothy E. Meredith) argue is that the 51% math is illogical because the majority opinion is doing the calculation pretending it does not know the outcome. So if you have 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.

Doesn’t this make sense? In the scenario I just gave, it is more likely than not that the person died because of the negligence of the doctor. Shouldn’t that be enough? Yet you can’t recover in Maryland as a matter law in a wrongful death case when clearly the doctor’s negligence is likely the cause of the death.

The only way to make this right is going to be with help from the Maryland legislature because I don’t see the Maryland Court of Appeals fixing this.

You can read the opinion here or this summary of an article written by Scott Daugherty of the Capital Gazette (which contains a brief quote from me).

On Monday, the Supreme Judicial Court of Massachusetts overturned the dismissal of a lawsuit filed by a woman against a physician who had failed to warn his patient of the side effects of a medication. These side effects had caused the patient to lose consciousness at the wheel and kill the woman’s 10 year-old pedestrian son. The driver had recently had treatment for cancer and had been told by his doctor that he could safely resume driving while on his medication. (He had stopped driving for a period of time.) The mother sued, alleging that the doctor failed to warn his patient, the driver, of the possible side effects of drowsiness, dizziness, and altered consciousness.

The lower court had dismissed the lawsuit, claiming that the physician had a duty to his patient only, not to third parties. The Supreme Judicial Court disagreed and found that the doctor's duty extended to anyone who could be harmed by his failure to warn his patient about the drug's side effects. This ruling greatly widens the scope of duty of physicians when choosing treatment options for their patients and perhaps necessitates a wider discussion of possible side effects when prescribing medications. The case will now return to the lower court and be tried on the issue of the doctor's negligence (the dismissal was on the basis of standing to bring the lawsuit in the first place).

This is a very sad case. The driver was 75 years old and suffered from lung cancer, chronic bronchitis, high blood pressure and emphysema. At the time of the crash, he had finished his cancer treatment but was still on many medications. He died of cancer shortly after the accident. A ten-year old boy lost his life when he was in the wrong place at the wrong time. It does not get much more awful than that.

Obviously, if the duty of care a doctor has to his patient is widened to include third parties, it will be seemingly impossible to imagine the number of persons, like the ten-year old boy, who will fall into this scope. Will doctors in this doctor's position now have to tell their patients not to drive at all for fear of harm being caused to some third parties if any of the side effects arise and an accident ensues? Or will it be enough just to inform them of the side effects? I don't know but I think it is a question for the jury.

It will be interesting to see what the Massachusetts legislature does with this issue, because the legislature, as it has been prone to do, can pass laws limiting physicians' liability. I hope they don't. The politics of limiting the liability of doctors for medical malpractice cases notwithstanding, the court's rule in this case is consistent with the more modern view of ignoring privity and focusing on allowing actions in negligence by individuals or groups within a foreseeable zone of danger of the negligence. Clearly, in this case, this ten year-old boy was a foreseeable victim of the doctor's alleged negligence.

A quick search for a Maryland case on point came up empty, but this holding is consistent with the Florida Supreme Court's ruling in Pate v. Threlkel, 661 So. 2d 278, 278 (Fla. 1995), which found that "when the prevailing standard of care creates a duty that is obviously for the benefit of certain identified third parties and the physician knows of the existence of those third parties, then the physician's duty runs to those third parties." Id. at 1168.

I read this weekend an absolutely crazy story about a Tennessee medical malpractice case. A Tennessee lawyer was sued for legal malpractice for botching a medical malpractice case which he supposedly should have won. The legal malpractice case settled for $750,000 which means, if logic and reason were at all involved in the settlement process, it was a meaningful case with real value. Incredibly, he was also successfully sued for bringing a groundless lawsuit – the same case he should have won. There can be only once cogent response to these facts: huh?

Here is what happened. Underlying plaintiff has back surgery which left him blind in one eye and without peripheral vision in the other, rendering him legally blind and unable to work. Obviously, this was an awful outcome. Plaintiff brings a medical malpractice claim against the doctor, claiming that incompatible blood control products were used together during the surgery and caused Plaintiff’s injuries.

Plaintiff’s lawyer apparently starts screwing things up from there. The lawyer failed to find a medical expert that supported the claim before filing the suit, although there is a requirement in Tennessee that he do so. Ultimately he never did obtain an expert. In the legal malpractice suit, Plaintiff contended that incompatible medications did not cause his injuries. Instead, he and his experts claimed that the real cause of his injuries was the misplacement of his head during his seven hour surgery. The legal malpractice claim was settled, again for a substantial amount of money.

Of course, in the legal malpractice case, the lawyer being sued steps into the shoes of the doctor being sued in the medical malpractice case as a defendant for the “case within the case.” So someone was willing to write a pretty big check under the assumption that the doctor had committed medical malpractice, but the doctor’s medical malpractice insurance rates do not go up and he gets off scot-free.

Continue reading "Can a Medical Malpractice Case that Settles for $750,000 Be Frivolous?" »

A few weeks ago, I wrote about a new product for medical malpractice lawyers called MedMal Reports. This company creates a report of the expected medical malpractice payout for a given case, based on the National Practitioner’s Data Bank. I received an email from MedMal Reports Chief Economist, Dr. David M. Frankel, asking if I might tell Maryland Injury Lawyer Blog readers about his new newsletter.

I get a lot of these emails and my first instinct was to press delete. But I took a quick look at the newsletter. If you are into the statistics of personal injury and medical malpractice cases like I am, you are going to love the newsletter. It answers the questions I have always wondered about: whether gender matters (it does not), and what is the optimal age of a plaintiff with respect to settlement/trial value of the case (30-39).

As always, good information is power. This kind of information does two powerful things for medical malpractice lawyers. First, it gives you ammunition to use in settlement negotiations. The majority of good medical malpractice cases settle. The battleground is usually over price, and detailed information that shows the value of your client’s case is helpful. The second thing it gives you is information to inform and educate the client in making the call as to whether they want to take their medical malpractice case to trial or whether to resolve it.

This is the first newsletter MedMal Reports has put out. I get the idea that it will be monthly. As anyone who blogs knows, it is hard to consistently put out useful and informative information. But with the analysis Med Mal Reports has done with the treasure trove of information the National Practitioner’s Data Bank provides, they are certainly armed with the weapons to continue to provide regular information of interest to medical malpractice lawyers on both sides of the v.

You can find their November newsletter here.

The West Virginia Supreme Court, applying West Virginia’s medical malpractice cap, affirmed the trial court’s decision to cut a $10 million medical malpractice verdict against a West Virginia hospital and one of its doctors down to $1 million.

Plaintiff’s lawyers contended that the non-economic damages cap in medical malpractice cases in West Virginia did not apply to the jury’s verdict because their claim against the hospital did not arise out of the care and treatment of the Plaintiff but instead because of the hospital’s failure to control an environmental serratia outbreak which the jury found caused Plaintiff to contract a nearly fatal infection during an otherwise routine anterior cruciate ligament (“ACL”) surgical reconstruction in 1995.

Relying on judicial estoppel, the West Virginia Supreme Court disagreed in a tight 3-2 decision. The court found that Plaintiff pursued the case as a medical malpractice case in the pleadings, in their requested jury instructions, the agreed upon verdict sheet, and in Plaintiff’s closing argument.

Of those four, I think the verdict sheet is the most compelling. The verdict sheet read: “Do you find by a preponderance of the evidence that West Virginia University Hospitals, Inc., was negligent in its care and treatment of the Plaintiff by failing to maintain a safe and proper hospital environment with respect to infection control?”

Like most personal injury attorneys, I dislike medical malpractice or any other caps on non-economic damages. But I also believe in applying the law and suspect that this was the right decision.

I say "suspect" because two judges did dissent but neither have issued an opinion. There still may be a dissenting opinion; in West Virginia, they put out the majority opinion when it is ready even if the dissenting opinion has not yet been drafted. I will be interested in seeing specifically why those judges dissented.

Politically, you also have to figure that all things being equal, the West Virginia Supreme Court would rather not have a ten million dollar judgment against the state's premier hospital. Moreover, even I will admit that the verdict seems high given that there was no mention of any permanent injury. I'm not mimimizing what appears to be an awful case that almost killed a 15 year-old girl. I'm just not sure if the damages should be eight figures. The Plaintiff's medical malpractice lawyers likely did not expect a $10 million verdict because they were clearly couching the case as a medical malpractice case, fully aware of the cap, when they really did not have to do so.

Of course, the preceding paragraph does exactly what I always complain about when others do it: second guessing a jury's verdict when they sat through the entire trial and were in the best position to make the call as to the appropriate damage award. But on the limited information I have, and assumptions I am making because the Plaintiff's medical malpractice lawyers set up the case as a medical malpractice case (knowing about the cap on non-economic damages and the lack of facts regarding permanency) and my own limited knowledge of serratia bacteria infection secondary to surgery, a $10 million verdict seems awfully high.

You can click on the link for the West Virginia Supreme Court Opinion.

Doctors may have a new opponent in their battle for lower medical malpractice premiums: the state of Maryland. As I wrote last month, Maryland has been paying subsidies to doctors to the tune of $80 million over the past three years as a part of the medical malpractice “reform” bill that was passed in 2004. The Baltimore Sun reports today that Maryland Insurance Commissioner Ralph S. Tyler ruled that a $68.6 million malpractice premium surplus, which Medical Mutual had accrued last year, is owed to the state of Maryland.

Back in 2004, doctors’ fervor for caps in medical malpractice cases reached a new high. To fan the flames, I’m convinced that Medical Mutual (easily the largest medical malpractice insurer in Maryland, covering about 75% of Maryland doctors) engaged in a little creative accounting and timely settlement negotiations that allowed Medical Mutual to pay out more during the time frame being examined by the Maryland legislature. The Maryland legislature was looking at this time frame to determine how much medical malpractice premiums had risen.

After they got their wish and the Maryland legislature passed a bill to further cap medical malpractice damages, it quickly became apparent that the rise in premiums was artificial, evidenced by this $68.6 million surplus. For most insurance companies, this means that they have a $68.6 million profit. But Medical Mutual is owned by its own policyholders, the doctors Medical Mutual covers. So this profit would have gone back to the doctors had the state of Maryland not intervened.

In the end, I don’t know what this really means. Commissioner Tyler’s ruling apparently left open an escape hatch, stating that “I have left the door open for Medial Mutual to rescind its dividend declaration and propose a solution to mitigate rates next year.” In other words, Maryland may allow Medical Mutual to keep the money as long as it pays it doctors back in decreased premiums as opposed to a cash payment. This solution might be the best play for everyone, including Maryland medical malpractice lawyers, because stable premiums might strengthen our case for removing the medical malpractice non-economic damages cap. The truth is the only real loser would be Maryland taxpayers who are facing tax hikes next year and want their $80 million back.

A few months ago, I wrote about an upcoming review in Cook County on the constitutionality of medical malpractice caps. Yesterday, an Illinois trial judge found medical malpractice caps are unconstitutional, reversing a 2005 law capping damages in medical malpractice cases. The trial judge found that a cap on medical malpractice damages violates Illinois Constitution's separation of powers between the legislature and judiciary.

The battle is far from over - this is a trial judge making the call. But it is still good news for medical malpractice victims in Illinois.

I have expressed my disdain for Maryland’s cap on non-economic damages many times on the Maryland Personal Injury Lawyer Blog. I read an interesting article in the University of Baltimore Law Forum on an issue to which I have never given much consideration: the impact of the cap on non-economic damages on women. In the article, Maryland Tort Damages: A Form of Sex-Based Discrimination 37 U. Balt. L.F. 97 (2007), University of Baltimore law professor Rebecca Korzec argues that the statutory cap on non-economic damages in Maryland, although facially neutral, has the unintended consequence that it disproportionately disadvantages women.

The essential premise is that limiting non-economic damages disproportionately affects female litigants, because women earn less, in large measure due to women spending more time on unpaid child care and taking care of the children and the house. Accordingly, limiting pain and suffering damages does not allow juries to award fair compensation. Non-economic damage caps solidify bias by rewarding economic losses over non-economic ones, intensifying the gender bias of tort law.

Moreover, Professor Korzec notes that physical injuries to women may not result in significant damages awards, because of the nature of some injuries that are specific to women. A "soccer mom" who suffers an injury requiring a hysterectomy, for example, may result in little economic harm. Accordingly, restricting or limiting her non-economic damages may result in an insignificant award of damages.

In my mind, this is one more intellectual dagger into an idea that is not logically defensible. Now it appears that non-economic damage caps are not only discriminatory towards people who are the most seriously injured, it is also discriminatory to women. Although I do not have a lot of hope, the Maryland legislature should really hold hearings on the efficacy of the cap and its impact on a small minority of injury victims that need the system’s protection more than anyone.

(I found this article in the adjunct facility office at the University of Baltimore Law School after teaching my class. I looked on-line at the University of Baltimore Law Forum’s website, but it is not yet available.)
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A post on the Illinois Trial Practice Blog discusses a product for medical malpractice lawyers called MedMal Reports. This company generates a report based on the payout reported in the National Practitioner’s Data Bank. Reporting of settlements and verdicts is mandatory so the data is not skewed the way published verdict reports favor those medical malpractice lawyers who seek publication.

The theory is that medical malpractice payments are largely predictable. Of course, the question is what variable should be included in the calculus. Interestingly, the company believes that there is not enough focus on the defendant in valuing medical malpractice cases, citing the following facts:

(1) The number of defendants has an impact on value. The more defendants, the higher the total recovery in medical malpractice cases;

(2) The defendant’s job and age impacts the value of medical malpractice cases. Apparently, the data shows that physicians pay more than residents and older doctors pay less than younger doctors; and

(3) The accusations themselves matter. For example, doctors accused of altering medical records pay on average double the settlement/verdict.

These are certainly interesting observations. Anyone who reads this blog knows I am a big fan of statistical calculations to predict value. But, obviously, it is impossible to use data to predict the value of any specific medical malpractice case. But for $320, I think it is worth taking a look at in the right case. The website features a few sample valuations, including a sample valuation of a Maryland medical malpractice case.

The Illinois Supreme Court has approved a new plan that requires medical malpractice parties in two Illinois counties to seek mediation before filing suit in medical malpractice cases.

The hope is that both sides can come to an agreement to resolve the case without the necessity of lengthy (and costly) discovery and trial.

I hope this works but I think most Maryland malpractice lawyers are skeptical. The problem in medical malpractice cases is that it is sometimes difficult to judge the strengths and weakness of the case, with respect to both damages and liability, until extensive discovery has been done. Plaintiff’s medical malpractice lawyers often fume at the insurance companies’ unwillingness to make offers before suit is filed, but the truth is that this is often the best course for both parties.

The Baltimore Sun reports that the extension of a state program that subsidizes doctors' malpractice insurance premiums is no longer in need in light of a $68.6 million surplus reported by the state’s leading malpractice insurer, Medical Mutual Liability Insurance Society of Maryland.

Earlier this week, the new state Insurance Commissioner, Ralph S. Tyler, ordered Med Mutual not to proceed with plans to pay out the $68.6 million as a dividend until it can be determined how much should be returned to the State of Maryland to repay the $80 million paid out to subsidize doctors.

The Baltimore Sun reports that medical malpractice pay-outs in Maryland peaked in 2003 and have declined every year since 2003. The number of paid medical malpractice claims in Maryland has dropped 32 percent in the past three years, 50% more than the national average.

So much for the medical malpractice crisis that reached its apex two years ago when the Maryland legislature passed a bill to further limit the ability of medical malpractice victims in Maryland to receive the compensation deemed appropriate by Maryland juries.

Maryland medical malpractice lawyers during the “medical malpractice crisis” two years ago claimed that Med Mutual had cooked their books to make the numbers seem far more dire than they actually were to elicit support for greater medical malpractice reform. Now that this appears to have been proven correct, shouldn’t we go back and reconsider the lowered medical malpractice cap in Maryland? The problem is that the politics of this is such that the pendulum never swings back toward victims’ rights.

Comically, the Maryland State Medical Society’s (MedChi) executive director, Dr. Martin P. Wasserman, said that while MedChi still intends to seek greater malpractice reform, he further stated, "I don't think we'll be able to come in and say, `The sky is falling.'" This is ironic coming from an organization whose motto has been “the sky is falling” on the issue of medical malpractice insurance premiums.