Accident and Injury Lawyer Blog

The average personal injury verdict in Louisiana $ 95,000. The national average is $45,000. Historically, the best verdicts in Louisiana come out of New Orleans.

Related Posts to Value Louisiana Case:

What is the Value of My Personal Injury Case in Louisiana? (analysis of how value is determined in personal injury cases thoughout the country, including Louisiana)

Value of Personal Injury Cases in Louisiana (comparing Louisiana to other jurisdictions)

My two volume treatise Insurance Settlements is now available from James Publishing. The book discusses how to position a lawyer's car accident, truck accident, medical malpractice or product liability case to the best possible settlement at every step along the way (until the state's high court affirms the judgment).

Click on the James Publishing link. If you have any comments on the book, please email me at ronmiller@millerandzois.com under the subject "Insurance Settlements Comments."

The Toledo Blade has an article today about defensive medicine, the doctrine that in fearing medical malpractice claims, as opposed to acting in the patient’s interests, doctors prescribe tests, medication and sends patients for referrals or follow-ups that are not warranted by the circumstances.

First, some defensive medicine is good. If a doctor thinks he might be on the hook for not ordering a test down the road, I’d like him to perform that test on me 9 times out of 10. In the 10% of the time when the test is invasive or has significant risks, are doctors really going to order such a test to protect themselves from the unlikely event that that there will be a malpractice claim that is covered under their medical malpractice insurance policy? I doubt it. And I don't think I'm overestimating Ohio doctors.

The article quotes a Toledo medical malpractice lawyer who states the obvious: doctors can avoid malpractice concerns simply by following the appropriate standard of care. “And that's a really good rule of thumb to go by. If you would want your own family member to go to the specialist to make sure [of a diagnosis], then that's what you should do with everybody else. But most of the time, it may not be good to go to a specialist, and then they should use their own judgment. Time and again, the juries favor them when they do that, ‘I think they should be treating everybody as if it is their own family member.’” said Steve Collier.

Ironically, most doctors say that ordering unnecessary tests that are risky to the patients not only violates the oath they took when they signed up for the job, it is also committing medical malpractice.

I received the following email regarding my post concerning from Mississippi Supreme Court Justice Oliver E. Diaz, Jr.'s recent dissenting opinion in a wrongful death case:

Dear Mr. Miller,

Thank you for the recent post on your blog concerning the banning of my dissent at the Mississippi Supreme Court. Your comments were right on point and it is indeed incredible that the majority of my court voted to ban my dissent in the wrongful death case. I am currently running for re-election to the court and am opposed by forces that want to implement further tort reform measures. I would appreciate it if you would provide a link to my campaign website in case anyone would like more information about my campaign. The address is www.justiceoliverdiaz.com. Again, thank you for your comments.

Oliver E. Diaz, Jr.
Mississippi Supreme Court

As Justice Diaz requests, I have passed this information along. As I have written before, the Mississippi Supreme Court has been been - and I don't think it hyperbole to say this - harsh to accident and malpractice victims. Without involving myself too deeply into elections (I try unsuccessfully to stay out), I think Justice Diaz can be relied upon to be a voice for accident and malpractice victims.

(Postscript: I wrote Justice Diaz back and told him that I like to stay out of politics but I would post his message. He responded, "Good luck staying out of elections, I wish I could as well!" I also wish that Justice Diaz and other Mississippi Supreme Court justices could stay out of the election process.)

The Desert Sun has an editorial or "tort abuse" that provides the following statistic: "Tort (sic) costs amount to $865 billion nationally each year — or 6.5 percent of the gross domestic product. That's a lot of lost economic output."

Can we get a footnote? And while I don't want to get too demanding, how about a cite to the actual study that supports this figure? It is absolutely outlandish. Does the Desert Sun have any criteria for what it will publish?

Here's another great one: "California also ranks near the bottom when it comes to farm owners' tort losses — that is, how much farm owners pay when an outside vendor sues them for an injury incurred on the farm owner's property. These losses translate into higher food prices for consumers everywhere."

Okay, ah, exactly how much does this cost California? And what exactly do you propose to do about it? The editorial has no call to action. Instead, it is a laundry list of complaints. It adds nothing to the intellectual discourse on this subject. Look, reasonable people are making the argument for tort reforms, although not many are complaining about California, a state with some of the most draconian laws against accident and injury victims, including an awful $250,000 cap on in California on noneconomic damages. But while tort reforms have a cogent argument - albeit one with which I strongly disagree - this Desert Sun editorial does not help their cause.

Seeing Jimmy Carter tonight at the convention reminds me of the line that Ronald Regan used so effectively against him, “There he goes again.” In West Virginia, the malpractice reform drum beat goes again, this time on the scanty information that the number of medical malpractice lawsuits filed in West Virginia is grew from130 in 2004 to 174 in 2007.

The reality is that 75 medical malpractice lawsuits have been filed in West Virginia through July of this year. At that pace, there will be less medical malpractice cases filed in West Virginia than there had been in years.

If doctors and malpractice reform advocates are going to beat the drum again, couldn’t they wait until there have something resembling evidence? As the Maryland Medical Malpractice Blog points out, random malpractice lawsuit filings are not a predictor of trends. In West Virginia, more than a third of the medical malpractice filings for the year were in July. Does this mean there will be 338 medical malpractice lawsuits filed over the course of the next year? Of course not.

The Mississippi Supreme Court - an elected body that has a recent history of siding with defendants in personal injury cases - attempted to bar a dissenting opinion from Justice Oliver Diaz, Jr. in a wrongful death case. Diaz dissented with the majority's decision to remand Mississippi Veterans Affairs Board v. Kraft.

Justice Diaz argued in the dissent of a wrongful death case that the statute of limitations for wrongful death lawsuits begins at the time of the injury, not on the date of death. "The obvious result is that a wrongful death action may expire before the decedent does," Justice Diaz wrote.

Justice Diaz is no stranger to the crazy world of Mississippi politics. In 2005, a jury cleared Justice Diaz of all bribery charges. His ex-wife, however, pled guilty to tax evasion and was sentenced to two years' probation. But the logic of his argument - that wrongful death claims start at the time of death - is so manifestly obvious that defense lawyers in other jurisdictions would not even make the argument.

The Mississippi Trial Lawyers Association needs to do a better job of getting out the message of how personal injury victims are being treated in Mississippi. Because Mississippi in the matter of a decade has gone from a jurisdiction with an open mind on personal injury claims to a state that says no to any issue that is a close call and some that should not even be close calls.

Garrard County, Kentucky Judge Janet Booth sentenced a woman to jail for three days for wearing short shorts to court, according to the Herald Leader in Kentucky. Apparently, this was the woman’s third court appearance and she had been warned on two previous occasions.

Regardless of your view on whether this was appropriate (personally, I think we have more pressing problems with our criminal justice system and its defendants), I think it is reasonable to say three days is way over the top. The defendant had to be transported to the Boyle County jail because the Lincoln County jail, which normally holds prisoners in Garrard County, had no room for her. Taxpayers should question whether it was worth spending so much money and effort over a point that could have been made – if it even needed to be made – in a half hour.

Thanks to Above the Law for the link although we come at it from two very different angles.

In Edenshaw v. Safeway, the Alaska Supreme Court addressed, by way of certified question from the U.S. District Court of Alaska, the question of whether in a slip and fall case plaintiff must show actual or constructive knowledge of the dangerous condition.

Not much in the way of facts provided for this case. Plaintiff slipped and fell at a Carr’s store in 2003 (apparently Carr’s is owned by Safeway). Safeway’s lawyers moved for summary judgment which was denied.

The court found that the Alaska test is basic reasonableness test. Under this test, the owner’s notice of a dangerous condition was a factor to consider but not issue determinative. Accordingly, Alaska defense lawyer cannot argue in slip and fall cases that actual or constructive knowledge is required to defeat summary judgment, at least not in a tightly controlled areas like a grocery store.

Dennis Sherer had a good article on Tuesday in the Times Daily about Alabama Chief Justice Sue Bell Cobb concern that the lawyers representing the poor in Alabama receive provide quality legal representation. Justice Cobb would like the state of Alabama to fund an oversight committee to ensure the legal interests of poor defendants and state taxpayers.

Tennessee does what is clear a dumb thing: lawyers receive $40 per hour for work on indigent cases outside of court and $60 for work inside the court. (This is mostly in criminal cases. The paradigm of accident and malpractice cases does not require clients to pay fees before a recovery.) Lawyers obviously cannot run a law practice on this so the lawyers are allowed to bill the state for their overhead. Not a bad idea in utopia but an awful idea in the real world. Justice Cobb wants to change this system. I hope she can.

Serious medical errors occurred an average of once every six days in Utah hospitals and surgical centers with 57 reported last year according to a recent study.

This is of no surprise to medical malpractice lawyer in Utah. Instead of blaming vicitims and malpractice lawyers, doctors and hospitals need to look at better systems and practices to reduce the number of serious medical malpractice injuries in Utah.

Our lawyers are reviewing Byetta claims after the FDA announced this week that the diabetes drug has been linked to severe pancreatic problems in dozens of patients. On Monday, the FDA warned patients taking Byetta to discontinue use if they develop symptoms of the disorder. Further the FDA said that doctor prescribing Byetta should consider other prescription options for patients with a history of pancreas problems.

Since Byetta was introduced into the United States in 2005, more than 700,000 patients have used the Byetta.

Our lawyers are now exploring potential Byetta lawsuits. If you would like to discuss your case with a Byetta lawyer, call 800-553-8082 or click here for a free consulation/case evaluation (or even to answer any question you may have). For more information on Byetta and the concerns with Byetta, click here.

Bob Zarbin and Jim MacAlister write a telling article in this month’s journal of the Maryland Trial Lawyers Association about Maryland’s new bad faith law. The authors note that the avalanche of bad faith claims the insurance companies said were coming down the pike with Maryland’s new bad faith law was actually only 12 in the first quarter of the 2008 and only 12 all last year.

Similarly, on the medical malpractice front, Maryland malpractice insurers claimed the sky was falling one minute and the next they are declaring $74 million profit to their doctor shareholders and lowering malpractice insurance rates. The legislative process requires that the viewpoints of all stakeholders. But can we at least make sure we put the proper discounted value on “the sky is falling” on the next go around? I’m hoping the next go around includes a revised bad faith law with more teeth than mere costs and expenses.

In the same issue, Kevin Goldberg, who is with Goldberg, Finnegan & Mester in Silver Spring, Maryland, writes a great article laying out a great checklist of avenues to explore when you have a catastrophic accident and what appears to be limited coverage.

The message, as always: if you are a plaintiffs’ lawyer in Maryland handling personal injury claims, you should be member of the Maryland Trial Lawyers Association.

The University of Idaho wants to open a law school in Boise before Concordia University does. The dean of the law school, Donald L. Burnett Jr., is telling the Idaho Board of Education that the University of Idaho Law School cannot remain competitive if it stays exclusively at the Moscow campus in northern Idaho.

The Chinese are right about this free market economy stuff. Certainly, law students in Idaho would find it convenient to have an option in Boise. Competition is seeing to it that it does.

In separate letters in The American Journal of Psychiatry, psychiatrists in California and Ohio describe prisoners drug-seeking behavior and addiction to Seroquel.

Incredibly, staff members at the Los Angeles County jail believe that as many as 30% of the prisoners by psychiatrists have faked psychotic episodes or symptoms in an effort to get a prescription for Seroquel.

Tennessee Supreme Court Justice Janice Holser, a Pennsylvania native, will become Tennessee's first female Supreme Court Chief Judge on September 2, 2008. Justice Holser career on the bench began in 1990 when she was elected to the Circuit Court Judge of Tennessee's Division II, Thirtieth Judicial District.

The Connecticut Supreme Court reached an interesting decision this week on the question of recovery for emotional damages in car accident cases. You can find the Connecticut Supreme Court opinion and analysis of the opinion here.

Thanks. - Ron Miller

http://www.marylandinjurylawyerblog.com/2008/08/connecticut_supreme_courts_rul.html

Last week, Digitek manufacturer Actavis Totowa recalled over 65 different drugs made at their New Jersey manufacturing plant. The list of recalled drugs (in some form or another) includes such generic drugs as Bellamine, Buspirone, Carisoprodol, Oxycodone Meperidine, and Rifampin. This strengthens the conclusion that the New Jersey plant that made these drugs may be the cause of irregularities in Actavis medications.

In April 2008, Actavis recalled Digitek, a drug prescribed to treat heart failure and irregular heartbeat because it was discovered that Digitek tablets appeared to have double the thickness – and likely double the active ingredient – listed on the label. When Digitek is given in abnormally high doses it can lead to digitalis toxicity which, paradoxically, worsens the problems Digitek is intended to treat, causing nausea or lower blood pressure and other side effects from the Digitek overdose that can lead to the increased risk of stroke or a heart attack.

If you would like to speak to a Digitek recall lawyer about a potential Digitek lawsuit, call 1-800-553-8000. For more information on the Digitek overdose recall or a free consultation on your potential Digitek case, click here.

A nursing home in Carrollton has been sued for failing to maintain the health and safety standards required by Texas law, according to a lawsuit filed by the Texas Attorney General.

Specifically, the Texas Attorney General's complaint alleges that Brookhaven Nursing Center's failure to have backup safety measures and emergency response protocols was a contributing cause to the death of a patient who died of oxygen deprivation because the patient's oxygen system shut down during a power outage.

It is a sad commentary that Texas now has to rely on the state to bring about justice because there are so few nursing home lawyers left in Texas.

Zimmer's Durom Cup hip implants are likely to be the subject of a good number of lawsuits from patients with the Zimmer implants. But they will not be the only ones. Apparently, Zimmer’s own shareholders may agree that Zimmer left its hip implant on the market way too long. Last week, shareholders of Zimmer stock filed a class action in Indiana. Interestingly, the lawsuit seeks damages for shareholders who purchased stock between January 28, 2008 and July 21, 2008. This tells our Zimmer hip implant recall lawyers that these shareholders believe that Zimmer knew or should have known and issued a recall on or before January 28, 2008.

If your Zimmer Durom hip resurfacing cup was defective, call our Zimmer hip implant lawyers at 1-800-553-8082 or click here for a free consultation.

More information on the Zimmer Hip Implant Recall
History of the Zimmer Durom Cup Hip Implant Recall
More information on the Zimmer hip implant recall lawsuits

The Missouri Supreme Court ruled in Sides v. St. Anthony's Medical Center, that plaintiffs in a medical malpractice cases in Missouri may rely on an expert's opinion that the injury would not have happened in the absence of the defendants' negligence even without a specific proof of a negligent act. The court adopted the Restatement of Torts rule that if a medical malpractice plaintiff cannot demonstrate which specific act of negligence caused the injury but is able to demonstrate the potential causes are within the control of the doctor, and the injury would not occur in the absence of negligence, then a medical malpractice plaintiff has jumped over the motion to dismiss/summary judgment hurdle.

The defendant’s medical malpractice lawyer argued that Hasemeier v. Smith, 361 S.W.2d 697 (Mo. banc 1962), an OB/GYN medical malpractice case, was controlling. In that case, the court found that generally res ipsa loquitur is not applicable in medical malpractice cases. The Missouri Supreme Court did not overrule Hasemeier but it may as well have.

The Missouri high court’s ruling in this case is consistent with common sense and, as the court noted, the trend in many other states including Kentucky, Nebraska and New York.

Texas is a rare state that requires almost everyone - doctors (it is now dirt cheap because there are so few medical malpractice claims under Texas' new draconian law), building contractors, and motor vehicle drivers to have insurance. Lawyers are not required to have insurance. Texas lawyer oppose mandatory legal malpractice insurance. They are wrong in opposing legal malpractice insurance, these lawyers open the door to hypocracy. Moreover, any Texas injury lawyer that does not have legal malpractice insurance is putting themselves and their clients at great risk.

In the past, Virginia nursing home lawyers have been able to convince Virginia circuit judges to reject the efforts of allegedly negligent nursing homes to force Virginia nursing home claims into binding arbitration. Must more nursing homes are making patients sign these agreements not to arbitrate, according to Virginia Lawyers Weekly. The paper quoted Lauren Ellerman who handles nursing home cases in Roanoke to say that she believes that "at least 75 percent of Virginia nursing home contracts have arbitration agreements in them today.”

Unless Congress grabs this issue from the states we can expect this issue to rise in Virginia nursing home cases in the future.

Jury Verdict Research(r) study reports that rotator cuff injuries reached a 7-year high in 2006 with a compensatory award median of $72,667. This is almost 50% higher than previous reported settlements and verdicts in rotator cuff injury cases.

Our lawyers have never understood while the national data in these cases was so low. Washington D.C. rotator cuff injuries have averaged well over $100,000 for rotator cuff settlements and verdicts so we have never understood why the national average was as low as it has been. In any event, for whatever reason, rotator cuff verdicts are on the rise.

Our lawyers handle rotator cuff injury cases throughout the United States. Our lawyers have handled scores of rotator cuff injuries in car and truck accidents, typically in side collision or "T-bone" accidents. Our lawyers believe that insurance companies do not give fair value in most rotator cuff injury cases and our lawyers will fight to get you the financial compensation you deserve. Call a rotator cuff lawyer to protect you at 800-553-8082 or click here for a free consultation and case evaulation.

Related Posts

What Is the Value of Your Personal Injury Claim? (how the value of rotator cuff and other person injury settlements are calculated)

Sample Demand Letter (sample letter demanding settlement in a personal injury case)

Handling Your Claim Without a Lawyer (tips and pratfalls)

Jury Verdict Research's recent study finds that the compensatory median award for personal injury trials in New York is $287,628, dwarfing nationwide median is $34,550. The report is trials from 2001-2007.

New York has favorable juries, particuarly in its urban areas. But the reality is that this number is distorted by the lack of smaller and midsized car accident lawsuits. Under New York's no-fault law, an insurance company is required to pay drivers, passengers and pedestrians up to $50,000.00 for the legitimate economic and medical losses but does not provide for pain and suffering. Only permanent injuries cases can recover more than $50,000. This leads to less lawsuits in smaller cases - of which there are many - which increases the overall award in New York.

Two links for Missouri accident and injury lawyers from last week:

The Illinois Trial Practice Weblog has a post on a new rule regarding expert witnesses.

The Maryland Injury Lawyer Blog has a post about a legally correct yet troubling opinion from the Missouri Supreme Court regarding a personal injury truck accident.

There has been an increased concern over the use of Topamax – a treatment for migraine headaches and for epilepsy - during pregnancy has been associated with an increased risk of birth defects. There have been reports of birth defects as cleft palates, cleft lips, genital defects.

Besides the anticdotal reports, the respected medical journal Neurology published an article – albeit with a small cohort – that found that women who used Topamax to prevent seizures associated with epilepsy had a much higher incidence of delivering babies with birth defects.
While the study included only 203 pregnencies (178 children), the data found that woman on Topamax while pregnant had babies born with cleft lips or palates 11 times more frequently that you would otherwise expect. These children had genital defects at a rate 14 times higher than would be expected. Of the 178 babies, 16 had major birth defects.

This is an unfortunate development for Topamax, a drug that is apparently efficacious in treating the migraines that are debilitating for so many. A study published last year in Lancet found that patients using Topamax – which was approved for migraine headaches in 2006 - had a reduction in the number of migraine days per month and reported significant quality of life improvements.

It is also worth nothing that the label for Topamax indicates that Topamax has been associated with birth defects, miscarriages, and decreased fetal weight in rabbits, rats, and mice.

Our lawyers are not taking Topamax cases at this time. One study of this size – absent other facts – does not give rise to a lawsuit. But our lawyers will closely monitor the reports and literature on birth defects in children whose mothers were using Topamax during pregnancy.

If you have a question you would like our lawyers to address regarding Topamax or would like to be included on information as it develops with Topamax, call 800-553-8082 or click here.

The North Dakota Supreme Court last week ruled that there can be a wrongful death claim seeking non-economic damages for adult children of the decedent in a medical malpractice against a doctor and hospitals in Crosby and Minot.

In Weigel v. Lee is a procedurally bizarre case where the trial judge let the case go to a jury, dismissed the claim on grounds that could have been ruled upon at the outset of the case and then declared a mistrial because he decided he made wrong decision. But in "correcting" his ruling, the judge still did not allow non-economic damages - the pain and suffering of losing a parent - to be a compensable element of their medical malpractice case under the North Dakota Wrongful Death Act.

The North Dakota Supreme Court reversed finding that adult children are entitled to recover damages and wrongful death case is in North Dakota.

This is a good fooling not only with respect to the interpretation of North Dakota wrongful death law but also as a matter of justice. The notion that there can be no recovery and wrongful death because the children of the decedent are adults is just plain draconian. Imagine that a doctor says, “Yes, assume I killed your mother. There is no real value to your loss therefore I should not be held responsible even if it was my medical malpractice that killed her.” Insane right? Thankfully, the North Dakota Supreme Court agreed that the North Dakota legislature intended something very different when it drafted the wrongful death act.