What They Don't Teach You in Law School?
John Bratt's Baltimore Injury Lawyer Blog has a good post today offering his thoughts on what they don't teach you in law school.
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September 30, 2008
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September 30, 2008
Text Messaging While Driving
Christopher T. Hurley of the Illinois Car and Truck Accident Lawyer Blog has a post about calls in Chicago for a ban on text messaging.
I believe 18 states have a texting ban while driving at least to some degree. Who would vote against such a ban? Is there any doubt that eventually text messaging while driving will be banned in every jurisdiction? So why don't we just cut to the chase and ban it now and maybe save a few lives in the process?
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September 29, 2008
Minnesota's Seat Belt Law
The Maryland Lawyer Blog has a post on a tragic case involving Minnesota child seat belt law.
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September 29, 2008
Six Oregon Medical Malpractice Cases Settle
Oregon Health and Science University is looking to move past claims of medical malpractice that have been brought against the hospital, settling 6 malpractice case on Friday for $38.6. Oregon Health and Science University has insurance through Washington Casualty, which will cover $21.35 million of the settlement costs of these six medical malpractice lawsuits.
Not everyone is happy. Scott Gallant, of the Oregon Medical Association, says that now that these lawsuits have been resolved, it means that “schools, special districts and others, are going to pay substantially higher premiums to try to cover essentially unlimited liability where there’s an unfortunate injury that might occur in their official duties.”
Gee, Scott, what is the alternative? One of the cases involved a $9.3 million settlement to a boy who suffered prolonged oxygen deprivation causing permanent and profound brain damage because of a medical malpractice at OHSU. How much do you think that boy should have received?
Moreover, he presents a false choice. A modern society can pay for its schools and take care of the children that are harmed by the negligence of doctors and hosptials.
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September 27, 2008
Medical Malpractice Informed Consent Lawsuit in Kentucky: Are Punitive Damages Warranted?
Medical malpractice lawyers filed an informed consent lawsuit last week accusing a doctor of amputating a man’s penis without his consent. In the lawsuit, a Kentucky man alleges that the doctor was only authorized to perform a circumcision. What happened – right or wrong - was the doctor did what he thought he should to save the patient’s life when he found cancer during the operation.
I won't prejudge this lawsuit without hearing the evidence. I can certainly imagine a scenario where a doctor finds cancer during a routine operation and does what the doctor believes he must do to save the patient. The Plaintiff affirmed the doctor’s prerogative in this regard by signing a consent form acknowledging that unforeseen conditions discovered during the circumcision "may necessitate additional or different procedures." But I would reserve judgment on the merits of the case because it really depends on whether reasonable minds could differ as to what was the appropriate course.
But I find disturbing that the lawsuit seeks punitive damages. Unless facts in the case exist that were not included in the Courier-Journal article I read, there is no malice or even recklessness in a doctor - right or wrong - making a decision to try to save a patient's life.
One thing John McCain does that drives me nuts is to vilify everyone who does not agree with him as "corrupt" or as "violators of the public's trust." I think this lawsuit is a cousin of that mentality. We can have an honest conversation about whether the doctor was negligent in this case. But for an award of punitive damages, Kentucky law requires that the plaintiff show “clear and convincing” evidence that a defendant acted with oppression, fraud or malice. Is there even a scintilla of evidence that that is what occurred here?
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September 26, 2008
Washington Supreme Court Decision in Emotional Distress Case
The Washington Supreme Court this week overruled a trial court’s summary judgment against the family of a man whose brain was harvested for mental-health research when he died can pursue a lawsuit against the county medical examiner, and the Stanley Medical Research Institute of Maryland.
The case involves a man who tragically died heart problems in 2003 shortly after his 21st birthday. Obviously a young man who cared about other people, he was an organ donor. His parents consented to provide brain tissue to the nonprofit. Instead of taking a small tissue sample, however, the King County Medical Examiner's office – presumably by accident - provided the young man’s entire brain.
The injury to the family is the emotional distress the taking of the brain caused them. I could not possibly feel more for this family. There is nothing worse than burying your child. But I do not support this lawsuit.
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September 25, 2008
Chantix Suicide Lawsuits
Today I stumbled on Pfizer's second quarter Earnings Conference Call. Here is a nugget of interest to Chantix lawyers and those who believe they have been injured by Chantix: "Strong international growth was largely offset by a 35% decline in US revenues, which was due mainly to labeling changes and to external reports about adverse events. Let me be clear -- we believe the Chantix labeling appropriately reflects the medication's risks and benefits, and we will continue to encourage doctors and patients to have a robust dialogue about the dangers of smoking and appropriate treatment options." Missing from the statements is Pfizer's answer to the question of whether it believes Chantix always had the appropriate labeling.
In other words, adverse reports are slowing sales but Pfizer is going to keep pushing Chantix. So without any further label changes, Pfizer is going to continue to try to milk it Chantix franchise.
Accordingly, our Chantix lawyers are now investigating cases involving suicides, cardiac disturbances, acute myocardial infarction, diabetes, seizures, and psychosis. If you or a loved one experienced an injury you attribute to Chantix, or if you are a lawyer looking to refer your Chantix lawsuit to a pharmaceutical injury lawyer, call our Chantix lawyers at 1-800-553-8082 or click here for a free, no obligation Internet consultation.
In other words,
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September 25, 2008
Digitek Lawsuits Transferred to MDL
Last month, the Digitek lawsuits pending around the country were consolidated in West Virginia under Judge Joseph R. Goodwin, a judge noted by the MDL Panel to be an experienced MDL transferee judge (the Serzone MDL for one) that had "a docket that will allow him to devote the needed attention to these cases." In the order consolidating the Digitek lawsuits, the MDL Panel said that with the increasing number of MDLs, it makes sense to spread the burden among districts, noting that the Southern District of West Virginia has no current MDLs.
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September 25, 2008
Eli Lilly to Publish Doctor Payments Online
The New York Times reports pharmaceutical giant Eli Lilly will join Merck in posting all payments to outside doctors online. Eli Lilly decision comes on the heels of congressinal pressure for monitoring and reporting of these payments.
My favorite quote from the article comes from Dr. Paul S. Appelbaum, a Columbia University doctor, who said any doctor who believes "that disclosure is likely to be embarrassing should not be accepting the money in the first place.” Well said.
Related Post:
Drug Companies and Doctors: Why the Marriage Is a Public Health Problem (January 12, 1006)
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September 24, 2008
South Dakota Supreme Court Rear End Accident Opinion
Last week in Baddou v. Hall, the South Dakota Supreme Court either enunciated new law or affirmed existing law (depending upon your perspective) on whether South Dakota has a presumption of negligence in Rapid City rear-end car accident case. The court’s answer: it does not.
This is bad law, in my opinion, because it makes South Dakota car accident lawyer prove a negative. Rear-end car accidents rarely happen in the absence of negligence and the defendant is the one in the best position to know the nuance of the negligence. It is basically a technicality generating law.
I disagree with the Plaintiff that a rear end accident should be negligence per se. Instead, the better law, applied in many states such as Florida, Maryland, and Colorado, is that there is a rebuttable presumption of negligence in rear end accident cases.
The South Dakota court also affirmed in dicta the notion that the “mere fact an accident happened creates no inference that it was caused by someone’s negligence” in South Dakota. This instruction has fallen out of favor in many jurisdictions but, apparently, not in Bismarck.
Another aspect of South Dakota law that I don’t like is that they are more liberal in allowing police reports in evidence than most other states. Jurors are confused when they do not see the police report but they are even more confused when they do and tend to delegate their decision making power to the police officer instead of using their own judgment. I actually think this rule generally helps plaintiffs’ car accident lawyers. But not always and I don’t think the admission of the police report is fair.
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September 23, 2008
Seroquel Lawsuits: What Is the Path to Settlement?
Right now, most of the over 13,000 Seroquel cases are consolidated in an MDL in Orlando, Florida. Mass tort cases - like the Seroquel lawsuits - are gathered in an MDL for, among other reasons, identification of discovery issues that are common to all of the cases, and to give a lens to the lawyers on both sides as to the settlement value of cases by taking some to trial.
The Florida judge handling these cases has called for the first Seroquel trial to start in February 2009. A group of 12 Serqouel cases has been selected to be tried first. These are called “bellwether” trials (defined as “leader or as a leading indicator of future trends”) that help guide the parties into an accurate understanding of the settlement value of the Seroquel lawsuits. Obviously, particularly in cases of diabetes and pancreatitis, two conditions of wildly varying severity, lawyers on both sides want to try the cases that are best for them on damage and on liability.
Moreover, there is also the question of causation. Seroquel lawyers obviously want the “bellwether” trials to be cases where specific causation is harder for the plaintiffs’ lawyers to prove. In a diabetes case, plaintiffs’ lawyers would prefer someone young and seemingly not likely at risk for diabetes while the Seroquel lawyers would prefer someone who was overweight and at high risk for diabetes. For pancreatitis cases, Seroquel lawyers would prefer someone with a history of alcohol abuse or otherwise at risk for pancreatitis while plaintiff’s lawyers would prefer someone with a clean living history and otherwise at little risk for pancreatitis. In the Seroquel cases, the plaintiffs’ lawyers will chose the first case and the Seroquel lawyers will chose the second and then back and forth until the 12 cases are tried (or the cases settle).
If you think you may have a Seroquel case and have a question about the Seroquel class action lawsuit, you can call one of our Seroquel lawyers for a free consultation at 800-553-8082 or click here for a free online consultation.
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September 23, 2008
$1 Million Verdict in Minnesota Shoulder Dystocia Case
A jury in Minnesota awarded yesterday nearly $1 million to a shoulder dystocia case involving a child's delivery in 2003.
I blogged about the details of the Minnesota shoulder dystocia case yesterday.
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September 22, 2008
Shoulder Dystocia Case: Blue Earth County Is Jury Still Out
The jury is still out in a shoulder dystocia case against the Mankato Clinic and one of its obstetricians.
Plaintiffs medical malpractice claim is premised the argument that pre-birth measurements of the fetus were suggested a exceptionally large baby and that a C-section would have been the appropriate course given the risks to large children in childbirth.
The “should have had a c-section” argument is still difficult to make based on the current medical literature. But Plaintiffs also argue that infant plaintiff’s shoulder dystocia injury could have been avoided if the OB/GYN had not pulled the baby’s head during delivery.
Related Posts:
Shoulder Dystocia Cases (background of claims and what plaintiffs’ and defendants’ lawyers often argue in shoulder dystocia cases)
Mankato Free Press Article (report on this Minnesota shoulder dystocia case)
Medical Malpractice Birth Injuries (discussion of birth injuries that are sometimes cause by medical malpractice)
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September 22, 2008
Medical Malpractice Caps in Illinois
The Illinois Supreme Court will look again at the constitutionality of limits this fall on medical malpractice awards. Illinois law limits noneconomic damages, such as pain and suffering to $500,000 for doctors and $1 million for hospitals.
The case the Illinois Supreme Court will hear is certainly one that underscores the injustice of medical malpractice damage caps. The plaintiff has cerebral palsy, one of the worst possible birth injuries, and will need extensive care for the rest of her life (unless technology can come to the rescue).
Last year, Cook County Circuit Judge Diane Larsen declared Illinois' medical malpractice cap unconstitutional under Illinois law because juries' should have the authority to medical malpractice cases to appropriate what they believe to be appropriate compensation for the plaintiffs' injuries.
Related Posts:
Blog Post on Trial Judge's Ruling Declaring Malpractice Cap Unconstitutional (Maryland Injury Lawyer Blog post from November 14, 2008)
St. Louis Post Dispatch (recent article on case)
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September 19, 2008
Car Accident Claims Without a Lawyer: Handling Auto Accident Cases on Your Own
If you have talked to a personal injury lawyer who handles a lot of car accident cases in the last six months, you will hear complaints that car accident cases are drying up. Yet, unfortunately, there is no indication we have less automobile accidents in this country. So why?
I think the main reason is that car insurance companies are getting better at reaching out to clients before they find a lawyer. Insurance companies are absolutely entitled to do this. Moreover, I think this works mostly with smaller auto accident cases. The reality – and this is something a lot of car accident lawyers don’t want prospective clients to know – is that you can often handle small auto accident cases without a lawyer.
Our car accident lawyers handling your case will increase the value of your case. In fact, the mere involvement of our law firm, given our reputation, is going to increase the value of your case. But how much? If you have a big case, it will increase the value a great deal. Our car accident lawyers have been referred cases by other lawyers that already have an offer and we have gotten more than 35 times the offer given to the original lawyer. But our accident lawyers’ ability to add value to your case is directly proportional to the size of the case. If you have a case with an ER visit and a few physical therapy sessions, our car accident lawyers will increase the value of your case. And it certainly will make your life easier because you have someone to process everything for you. But is it enough to make it worth hiring us? The answer to that varies from case to case. Our car accident lawyers used to take these kinds of cases because we thought it was a bad idea to deny anyone the right to a lawyer if they had a valid claim. Now, I’m telling at least a third of the people that call us with legitimate cases that they certainly can hire a lawyer, but they also have the option to proceed without a lawyer, and we tell them what they should do to continue bringing their car accident claim without a lawyer.
Don’t get me wrong: there are real risks in proceeding on your own without a car accident lawyer. Among other risks, you can miss deadlines to file a claim and you don’t have the experience that a car accident lawyer does to know the value of your auto accident claim. But the reality is some people are willing to assume those risks. If you are one of those people, you can click on the article titled “Handling My Own Auto Accident Claim.”
If you are going to proceed without a lawyer for your car accident, call a lawyer just to discuss your case with them.
Related Posts:
Handling Your Own Auto Accident Claim (a “how to” for those proceeding on their own)
Why Hiring a Lawyer is the Best Way to Maximize Your Recovery in Most Auto Accident Cases (explanation of the pitfalls of proceeding without a lawyer).
What is the Value of My Car Accident Case? (explanation of how value is determined in auto accident cases)
Sample Demand Letter (sample letter to the insurance company to settle an accident claim)
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September 16, 2008
Maryland Athletic Club Lawsuit in Baltimore Settles
The Severna Park Fitness Blog, published by Club One Fitness has a blog entry today on a involving a negligence claim stemming from a theft at a Baltimore area health club.
According to the Maryland Daily Record, the Plaintiff brought a lawsuit against the Maryland Athletic Club ("MAC") over a theft that occurred at the club. Just before trial earlier this month, the case settled. The case was settled by the Maryland Athletic Club just before it went to trial in Baltimore City earlier this month.
The Plaintiff's complaint sought $30,000 so it is reasonable to assume that she wanted more than $10,000 to settle the case. When someone has no injury and no significant damages but demands a meaningful recovery, that is not exactly a good thing for Maryland personal injury lawyers trying cases before juries that hear about such cases.
The Maryland Lawyer Blog also has additional comment on this Maryland Athletic Club theft lawsuit regarding adhesion contracts.
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September 15, 2008
Mississippi Nursing Home Nursing Home Escapes Liability on Technicality
The Fifth Circuit U.S. Court of Appeals affirmed the dismissal of nursing home abuse neglect claim because the plaintiff failed to provide 60 days' notice of the intention to file a medical malpractice action against a health care provider as required under Mississippi Code Section 15-1-36(15). This statute requires Mississippi nursing home and medical malpractice plaintiffs to health care provider's sixty (60) days' prior written notice notifying the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered.
This statute comes from Mississippi’s disastrous tort reform act passed in 2002 that, among other things, establishes a cap on noneconomic damages of $ 500,000 for lawsuits filed before July 1, 2011, $ 750,000 for those filed after July 1, 2011 but before July 1, 2017, and $ 1,000,000 for those filed thereafter.
I do not have a problem with the ruling because it is a correct interpretation of the Mississippi law. But the law accomplishes nothing in this case but to deny a Plaintiff the right to justice.
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September 15, 2008
Value of Facial Scarring Injuries
Metro Verdicts provides this month information on facial scarring settlements and verdict in Maryland and Virginia. The median facial scarring verdicts in Maryland and Virginia are $20,000 and $32,500, respectively.
These numbers seem bizarrely low. Of course, I’m not really sure about the inclusion criteria for this study. How do they define facial injuries? Are they permanent? Must they be visible? Because for what I consider facial scarring, these number seem shockingly low.
Related Posts:
What is the Value of My Personal Injury Case? (analysis of how value is determined in personal injury cases)
Value of Personal Injury Cases in Your State (state-by-state comparision)
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September 15, 2008
Medtronic Lawsuit
Our lawyers are continuing to accept Medtronic defective lead recall cases. Our law firm has been reviewing Medtronic lead cases for almost a year and I’m amazed by the continued flow of cases although they are slowing down. If you have a Medtronic case you would like our lawyers to review the Medtronic class action, call 800-553-8082 or click here for a free Medtronic Internet consultation.