The lead plaintiff seeks a class action after injuries frequently the subject of nursing home lawsuits: disfiguring ulcers on her heels. The nursing home denies liability but has asked a law firm to investigate the allegations. The ole "I didn't do it but let me investigate whether I did it" plan of attack.

Lake Worth Manor has been a troubled nursing home. It has the lowest possible rating from Florida's Agency for Health Care Administration and has spent 31 days on Florida's watch list. The nursing home's co-medical director, who just stepped down from his position, has a history that, well, let's say it makes you think he should not be running a nursing home.

The lesson, as always: we have to many inadequate nursing home in Florida and throughout the country.

Botox is well known for its ability to provide relief - albeit short term relief - for those of us who suffer from wrinkles. You might expect the Plaintiff to be middle aged and probably a woman. But this case involved the off label use of Botox in the treatment of a seven year-old girl with cerebral palsy. Some believe that Botox helps fight limb spasticity that sometimes comes with cerebral palsy.

Plaintiffs' Botox lawsuit alleged that their daughter died as a result of an overdose of Botox, which led to respiratory failure and pneumonia. This is a classic product liability claim: Plaintiffs claimed that Allergan failed to adequately warn their daughter's pediatrician of the risks of Botox.

I do not know enough about these cases to give any sort of informed opinion. I fear off label uses of any drug, including Botox, but I also wonder whether the risks are small relative to the upside of providing an effective means of treating an awful cerebral palsy side effect.

Allergan gets just a brief rest: it faces another Botox lawsuit that is going to trial in Oklahoma City next month.

The details of this nursing home lawsuit were, sadly, not atypical. The family of an 87 year-old man alleged that two nursing homes acted negligently when they failed to provide adequate health care for the victim. The decedent fell and fractured his neck during a transfer from his wheelchair. This accident made him unable to walk which led to severe pressure ulcers which ultimately resulted in a fatal case of gangrene in his leg.

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)

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.

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...

Related Information

• President Obama’s Prior Speech on Caps
• Malpractice Caps in Maryland
• Maryland Medical Malpractice

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.

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.

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?