Accident and Injury Lawyer Blog

Peter Orszag, Director of the Office of Management & Budget, in a Q&A with Business Week:

Q: One of the things Republicans always say is, why doesn't the White House want to make a deal about tort law? The President says he's open to every idea, so why is it a big thing to say "I'm open to medical malpractice reform"?

A: I guess I'd push back and say, if that's the deciding issue, then let's see a comprehensive plan that says, with this additional piece, we now sign on.

Thankfully, he falls short of saying what "reform" means. Is he talking about caps (ridiculous), requiring certificates of merit in every state (arguably not unreasonable), or using Comparative Effectiveness Research guidelines to create presumptions (a bad idea but I get the argument).

• The Theory That President Obama Will Flip on Medical Malpractice Tort Reform (and why I don't believe it)
• Post Obama's Malpractice Tort Reform Speech in June (President Obama on malpractice reform - his big speech addressing malpractice before health care legislation failed)


• President Obama's Views as an Illinois Senator (insight into where President Obama may be on malpractice caps)


• A Federal Malpractice Cap (yet another reason why it is a bad idea)

The Maryland Accident Lawyer Blog provides interesting data on knee injury settlements. But it is important to underscore the obvious: every case and every jurisdiction is different and knee injury settlement data does not tell you what your cases is worth. Still, if you have no idea of what the value of your case is, verdict data can be one of the puzzle pieces you can add to equation.

The manufacturer of Poligrip denture cream will change its formula to take out zinc. Denture cream products Super Poligrip Original, Ultra Fresh and Extra Care will be removed from shelves and replaced with zinc-free denture cream.

This is a great example of lawsuits making a difference. But for the hundreds of denture cream lawsuits that have been filed, Poligrip would certainly continue to contain zinc without any warning of the hazards of zinc poisoning. Of course, for those who have suffered zinc poisoning, this is of little consolation.

Glaxo is taking Poligrip with zinc off the shelves. Why not just call it a recall?

If you have a Poligrip lawsuit, call 800-553-8082 or get a free online consultation.

LawyersUSA provides a status on what will likely be the first Seroquel lawsuit to go to a jury. Opening statements will be given today in a New Jersey Superior Court.

The lawyers defending the Seroquel lawsuits have certainly made it a point to publicly mock the merits of the well over 10,000 lawsuits that have been filed around the country. Certainly, many of the Seroquel lawsuits are not going to a jury because causation cannot be proved in some individual cases. And, give credit where credit is due - defense lawyers have done a good job defending these Seroquel lawsuits. Maybe this should be expected give the zillion dollars being spent to defend these cases. Still. I give these lawyers some credit.

Still, the arc of mass tort cases tends to be long. Defendants have a long history of winning the early battles even in cases that eventually turn towards plaintiffs. Could this be the Seroquel lawsuit that turn the tide? Stay tuned...

The Pittsburgh Injury and Disability Lawyer Blog has a good post on Westmoreland, Pennsylvania verdicts in 2007, providing a full list of verdicts.

Our lawyers are reviewing both Zimmer and Stryker hip implant lawsuits. If you believe you have a potential product liability lawsuit because of a defective replacement, call our law firm at 800-553-8082 or get a free online hip replacement lawsuit case evaluation.

Part II of John Bratt's appellate tips on the Baltimore Personal Injury Lawyer Blog.

The Washington Law Blog has a good post on the big winner when there are issue being raised about raising, instituting, or abolishing malpractice caps: campaign coffers.

President Obama continues to put out feelers that he might consider making real concessions to Republicans on medical malpractice reform/caps in exchange for a health care bill.

What does this all mean in general and to Maryland malpractice lawyers and their clients? First, I think President Obama is trying to offer Republicans just enough to flip one or two GOP senators which means, if anything, he will propose a bill that he thinks will be opposed by medical malpractice lawyers but not enough to set them off into the stratosphere. In Maryland, we already have a significant cap on noneconomic damages in malpractice cases. So I suspect this thinking is he will support either reform measures that fall short of caps, perhaps requiring certificate of merits in every state before the filing of a lawsuit, or a national malpractice cap that is higher than many states, including Maryland, already have on noneconomic damages. My guess if he agrees to a cap: $950,000 on noneconomic damages.

If this turns out to be the case and this is what comes out of a health care reform bill, there will be no immediate practical effect on Maryland medical malpractice cases because we already have a cap and we already require a certificate of merit. But it would still be an awful blow for victims everywhere, including Maryland, because once you open the floodgates and allow the federal government to enter into what is clearly an issue that historically has been reserved to the states (and the judiciary for that matter), it is going to be open season on civil lawsuits. This is why Republicans will accept a relatively weak malpractice reform bill - to get their foot in the door. So in Maryland, malpractice reform might simultaneously have no immediate impact and still be a disaster for malpractice victims all at the same time.

There is a fundamental problem with soft tissue injury cases that few plaintiffs’ lawyers will admit: some percentage of soft tissue injury plaintiffs are either completely faking the injury or exaggerating the symptoms. Certainly, exaggeration is a more a nuance issue so this post will just focus on “victims” that are truly faking injuries to gain a settlement.

Whiplash. Car accident. What comes to mind when you hear these three words? Most people – and more important to this conversation, most jurors – conjure up some version of someone in a neck collar pretending to be more hurt than they really are. Clearly, the world view that most jurors have causes them to lean towards the insurance companies and doubt victims with soft tissue injury claims. How do I know this? Jury verdicts.

So just how many plaintiffs are faking soft tissue injuries? With some very notable exceptions, soft tissue injuries cannot be objectively proven or proven false. So the answer is anyone’s guess. Your guess is going to depend in no small measure on your own preconceived view of the honesty level of your neighbors.

I think a relatively small number of clients that I have met with who claimed serious soft tissue injuries were faking their injuries. Moreover, I do not think I have ever tried a soft tissue injury case where the client was not seriously hurt. This assertion obviously sounds like plaintiffs’ lawyers head in the sand fluff. So let me explain why I think these twin assertions are true.

I read something once I never forgot: “If you marry for money, you earn every penny.” Unbelievably true. But its cousin is also true: “If you receive medical treatment to get a larger settlement, you earn every penny.” From a victim’s standpoint, getting a substantial verdict or settlement involves a leap of faith that it will actually happen. Which means to get medical treatment you don't need, you are putting in a great deal of work for an uncertain result. Even if you have ill intent, it is hard to summon up the strength to continue to fake injuries. Most people that would go through the trouble are quitters. Maybe they can do it for a week or two but they will not have the strength to stick with it. If they have that kind of fortitude, they would probably just spend that energy getting a job or getting a better job.

So why then does anyone fake a serious injury? Some people spend more time trying to find creative ways to get around the system when they would do better just expending the same efforts to walk through the front door. We all know someone like this, someone who spends more time trying to find some way around the line that usually takes longer than just getting into line themselves. These are your soft tissue injury fakers.

Because the injuries are subjective and cannot be proven, you cannot know specifically which clients were being honest even in hindsight. But I don't think I have ever tried a case before a jury with someone faking their soft tissue injuries. Why? Because to take a case to trial and believe you will do substantially better than the offer, you have to believe in the client and believe the case is large enough for a jury trial when you file it.

A personal injury lawsuit has been filed against a bar in Charleston by a man who was shot in stomach in 2008. Plaintiff's lawsuit claims that the bar was negligent in allowing entry to the guy with the gun. The gist of the argument appears to be the employees saw the gone but did nothing about it

I really hate these types of cases. The bar's duty to make take affirmative action really should always depend on the context. Does he have license to carry a gun? Was he acting in such a way as to lead a reasonable person to believe he was a danger to himself or other?

The Maryland Injury Lawyer Blog writes about a defense verdict in a medical malpractice lawsuit in Baltimore.

Day on Torts breaks down just how little emergency room doctors spend on malpractice insurance.

Over three million American workers risk benzene exposure each year. Benzene is a colorless, sweet smelling, and flammable liquid that is a carcinogen. Benzene has been largely banned for the last twenty years. But many petroleum solvents and other products still contain benzene. Benzene is also used by manufacturers in producing detergents, drugs, pesticides, plastics and other chemicals. Exposure to benzene has been associated with aplastic anemia, acute myelogenous leukemia, acutelymphocytic leukemia, and other forms of cancer and leukemia.

How are workers at risk for benzene exposure? Benzene is highly toxic when inhaled and/or ingested. Workers contact benzene through vapor inhalation, ingestion, or through any contact with the eyes or skin.

More recent studies underscore the toxicity of Benzene. White blood cell counts were lowered in workers exposed to less than 1 ppm (parts per million) of benzene. In other words, a little exposure can cause a lot of harm.

If you want to speak to a lawyer about a potential lawsuit involved Benzene exposure, call 800-553-8082 or get a free online consultation.

Pioneer Local (Chicago) has an editorial from Dan Kotin on the new Illinois Supreme Court decision that caps on damages in medical malpractice lawsuits violates the Illinois Constitution's separation of powers. He makes an interesting point that sounds from one angle like a classic Tea Party ideology:

That means a jury of 12 citizens should decide what is proper compensation for another citizen, not politicians sitting in Springfield.

Take the power away from the politicians and give it to the people. This is classic fare from the right wing. It seems to me this is the best way to explain the problem with malpractice caps to people who are on the fence.

Instead of jury trial in criminal cases, let's have a panel of five real experts evaluate criminal cases. Let's say a retired judge, two police officers and, ummm, two victims. That would be fair. I think that is what the framers of the Constitution had in mind.

Similar logic is suggested here to deal with medical malpractice cases.

Actually, if you reverse the paradigm, maybe the better analogy is putting two criminals on the panel. If doctors need to be involved in the process of judging doctors, don't we need criminals to evaluate criminals. Do non-criminals - people who have never committed so much as a felony.- deserve to judge criminals. But why stop with doctors and criminals? Should the "only we judge us" rule to lawyers, plumbers, farmers and Indian chiefs. I'm guessing only doctors have earned this special privilege, this end run around the law the rest of us have been following for the last 400 years.

A Charleston urologist is being sued for medical malpractice for treatment rendered in January, 2008 according to a malpractice lawsuit filed last month.

Endourological procedures result in the largest number of urology surgery claim, according to one study. In terms of case value, claims against urologists related to prostatectomy have relatively large values. Obviously, the value of every claim depends on the facts and injuries of the specific case.

John Cord has an interesting blog post in his Drug Recall Lawyer Blog as to how Bayer intends to defend the Yaz lawsuits.

Illinois Supreme Court struck down their $500,000.00 cap on non-economic damages. I'll be writing more about Lebron v. Gottlieb Memorial Hospital tomorrow. But this is a big win for Plaintiffs.

• Full Analysis of Lebron Opinion
(which includes the court's full opinion)
• Opposing View from Walter Olson on Point of Law

Avandia lawsuits took a turn in favor of heart attack victims today. A new Harvard study found that the diabetes drug Avandia have more than double the risk of a heart attack compared with other diabetes drugs.

The soon to be published by the American Diabetes Association found twice the number of heart attacks among 26,375 diabetic patients in patients studied between 2000 and 2006 who took Avandia, compared with diabetic patients in the same time period who took a different oral diabetic medication.

Medical malpractice can happen in almost any medical context because there is often a lot at stake in treating a patient. There are grave consequences to many physician errors. Doctors can prescribe the wrong medication for a relatively insignificant illness and cause life altering or fatal consequences. In fairness, there are few professions where the consequences of errors are so meaningful. Most jobs are far more forgiving of mistakes. But many mistakes on the human body cannot be easily undone.

Breast Cancer: Failure to diagnose breast cancer is a common malpractice claim. Often, a missed breast cancer diagnosis claim is against a radiologist who misreads a mammogram. While it is true that good doctors can make mistakes, the reality is there are a minority of radiologists who are not very good at reading a mammogram and fail to see the severity of the breast lump is ignored as benign or underestimated.

Lung Cancer: Failure to diagnose lung cancer is also a common claim malpractice lawyers see. Like every cancer but maybe particularly in lung cancer cases, it is important to diagnose lung cancer early and misdiagnosis leads to delayed detection which makes treatment down road that much more difficult. It seems the most common problem doctors have in diagnosing lung cancer is not ordering the appropriate follow-up tests, particularly for nonsmokers who you would not expect to be at risk.

Colon/Rectal Cancer: Early diagnosis of colon and rectal cancer are key not only to survival rates but also to how invasive the treatment will be. The difference in surgical options with colon cancer, for example, may mean the difference between invasive laparoscopic surgery and an open abdominal procedure. Often, these cancers are misdiagnosed as IBS (irritable bowel syndrome) or some other aliment.

Infection: Many hospital infections are not caused by hospital malpractice. Even when hospital malpractice is the cause, it is hard to prove. Many infection malpractice lawsuits come a hospital's failure to properly diagnose and/or treat the patient after the symptoms of infection were evident.

Aortic dissection: The classic sign of an aortic dissections are a tearing sensation in his or her chest. But it is not the only symptom and aortic dissections are often dismissed as heartburn.

Heart Attacks: There are a million heart attacks in the country every year, many of which are misdiagnosed by medical providers because the symptoms are not classic. Like non-smokers in lung cancer cases, patients that are otherwise not at high risk are often overlooked in spite of the fact that there symptoms are consistent with a heart attack. What often leads to an incorrect diagnosis is that doctors ignore the symptoms because they are focused on the patient's patient's age, sex, weight and medical history. Doctors sometimes rush out of the ER or exam room patients who are short of breath, telling them then need to workout when the patient is actually suffering from heart disease that needs immediate treatment.

Appendicitis: These cases fall into a common pattern. The symptoms are ignored, usually by primary care doctors or doctors in the emergency room which causes the appendix to rupture, spilling bacteria-ridden intestinal contents into the stomach, causing peritonitis or septicemia. Appendicitis is often misdiagnosed because there are other possible causes of stomach pain.

The British medical journal Lancet today retracted a 1998 study linking MMR vaccine to autism because of "incorrect" elements of research.

This is will do nothing to change the mind of people who believe there is a link between MMR vaccine and autism. The reality is there is no definitive study that proves either side's contention.