Accident and Injury Law Blog

In what can only be described as an awful decision, the Oregon Supreme Court yesterday rejected a claim challenging a five-year statute of limitations for medical malpractice lawsuits involving minors. In the challenge, Oregon medical malpractice lawyers contended that Oregon's constitution - not to mention common sense - prohibited the application of the five year statute of limitations in medical malpractice case.

Actually, I should not say the Oregon Supreme Court decision is awful because I have absolutely no idea whether the medical malpractice statute of limitations is constitutional. But I know that the law is awful. Hopefully the Oregon legislature will look hard at the question of whether you should be able to lose your rights while you are a minor, particuarly in birth injury cases.

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Posted In: Medical Malpractice , Oregon

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The Pennsylvania Supreme Court disclosed that the number of medical malpractice lawsuits filed in Pennsylvania declined again in 2007, the third consecutive year medical malpractice lawsuits have decline. In fact, malpractice lawsuits have declined some 40% since 2002.

Clearly, the key has been "medical malpractice reform" but the kind of malpractice reform that even plaintiffs' medical malpractice lawyers largely believe is a good law: the requirement that a doctor certify to a reasonable degree of medical probability that medical malpractice caused the plaintiff injury.

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Posted In: Medical Malpractice , Pennsylvania

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A trial judge in Fulton County, Georgia has struck down Georgia’s cap in medical malpractice cases, if in fact in the legislature’s cap of $350,000 for non-economic damages was unconstitutional in its affording of special protections to doctors.

My guess is that this new rule is not going to spin because the Georgia Supreme Court will not agree. Practically, it may be a bad thing for injury victims if they do, because it would not be surprising to see Georgia Legislature respond by extending the cap on damages to old tort victims as opposed to singling out victims of medical malpractice.

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Posted In: Georgia , Medical Malpractice

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Medical malpractice claims statistics from the Oklahoma Insurance Department are certainly not music to the ears of Oklahoma medical malpractice lawyers and their clients.

In 2006, 805 medical malpractice claims that resolved in Oklahoma. The malpractice cases was dismissed in 59, or almost 70%. Of the remaining medical malpractice case, 181 settled and 20 went to trial. The average claim settlement or award in 2006 was $257,887. The total amount paid in settlements and verdicts was just shy of $50 million.

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Posted In: Medical Malpractice , Oklahoma

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In litgation that is a byproduct of the Ford Explorer rollover lawsuits, Ford Explorer owners will be "compensated" in a settlement because of the loss of value of the Explorer because of the perceived rollover danger. This settlement covers about 800,000 people who purchased Explorers in California, Connecticut, Illinois and Texas.

Unfortunately, the only people who will get a significant recovery will be the lawyers who brought these claims. Explorer owners will only be eligible for vouchers for $300 to purchase new vehicles Ford or Lincoln Mercury vehicles (or $500 off the Ford Explorer). Practically, the car dealers will just negotiate a higher sales price on the car the sale of the car, reducing the list price less than they otherwise would.

Accordingly, this settlement is worthless to everyone except for the lawyers bringing these claims. The frustrating thing about this is that 800,000 people see this settlement and think, "Geez, what a scam, the only people that really profit from this are the lawyers." For personal injury victims and their lawyers, this does not help when one of these 800,000 people shows up on a jury.

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Posted In: California , Connecticut , Illinois , Medical Malpractice , Texas

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In Jackson v. Sunforest OB-GYN Associates, the Ohio Court of Appeal affirmed the trial court’s decision in a medical malpractice shoulder dystocia/brachial plexus case not to strike for cause two jurors who said they were biased towards doctors. The jury then found that an OB-GYN was not negligent in delivering a baby who suffered a brachial plexus injury.

I do not like this opinion. The Ohio Court of Appeal believes, as most jurisdictions do, that as long as the juror says they can be fair and reasonable in spite of their bias, it is not an abuse of discretion of the trial judge to sit the jurors. But the truth is that even if you are Rush Limbaugh biased, you are going to say that you can be fair and reasonable. So practically, you are tipping off your bias as much as you can when you say “I have a bias.”

One question I would have for the plaintiff’s medical malpractice lawyer is why not use a preemptive challenge against the jurors? Unless the rest of the jury panel was awful – I’m thinking doctors and nurses awful – I cannot imagine why these jurors were not stricken.

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Posted In: Medical Malpractice , Ohio

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A Florida teenager and his family were awarded $30 million after a five week trial yesterday by a Broward County jury in a medical malpractice lawsuit against Westside Regional Medical Center in Plantation against the OB/GYN who delivered him 17 years ago. The family's medical malpractice lawyer had requested $24 million in damages. Underscoring the jury’s view of the case, they awarded $6 million more than the lawyer requested. Its decision was unanimous. The award is reportedly the largest medical malpractice award in Broward County.

The first line of the Miami Herald article on the case says that the plaintiff was happily posing for the camera and showing off the same leg braces that subjects him to “constant teasing and prodding” from other teens at his high school. This young man suffers from cerebral palsy and has the classic symptomtology of cerebral palsy - spastic legs at the level of a child years younger than his is. So this line really tugs at your heartstrings for sure. But I the cynic in me – and the optimist – wonders whether the boy told the Miami Herald exactly this. Teenagers can be cruel for sure but rarely do they pick on people who are suffering from cerebral palsy. I don’t remember anyone in my public high school picking on a boy like this plaintiff who has cerebral palsy.

In any event, while I’m sure the Plaintiff would rather be 100% healthy, this was certainly a good day for help and helps him lead a life where he finds himself frequently overcoming obstacles.

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Posted In: Florida , Medical Malpractice

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Missouri Lawyers Weekly reports on a recent medical malpractice defense verdict after an 8 day trial in Buchanan County, Missouri in favor of an obstetrician and nurse involving a difficult deliver almost 12 years ago.

Shoulder dystocia can result from a difficult childbirth where the baby’s head is able to clear but the shoulders - typically one shoulder - will not come out. Not surprisingly, this problem develops with larger babies.

The doctor in this case argued that he used fundal pressure and forceps to clear the shoulder. Defendants further claimed there was no shoulder dystocia and any complications the baby had must have occurred in utero (I’m assuming the last part).

Interestingly, the Plaintiffs videotaped the delivery which I imagine gave the jury a far better idea as to how the delivery went then you would see in most cases.

Shoulder dystocia cases typically are not, thankfully, medical malpractice cases because the injuries tend to resolve. When they do not, the child may suffer permanent brachial plexus injury or mental impairment. Whether shoulder dystocia is caused by medical malpractice of the delivering doctor depends on the facts of the specific case.

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Posted In: Medical Malpractice , Missouri

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The Times Union (Albany, New York) reports that after a three week trial before Supreme Court Judge Michael Lynch, a jury awarded Watervliet man and his wife $1.87 million in a medical malpractice lawsuit Tuesday against a doctor who Plaintiffs alleged failed to detect and disclose a high glucose condition leading to a stroke.

Specifically, the jury believed it was negligent not to advice the Plaintiff of the results of a blood glucose study that had been done. The jury found the doctor's negligence in this regard was a a "substantial factor" in his stroke. The doctor's lawyer contended that there is no evidence the Plaintiff would have acted had he been given the results of the blood glucose test.

Samaritan Hospital was also a named defendant but the jury did not find that the hosptial was negligent.

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Posted In: Medical Malpractice , New York

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According to an article in Missouri Lawyers Weekly, a Jackson County jury recently found for the defendant doctors in a medical malpractice claim for failure to diagnose Plaintiff’s appendicitis, causing the appendix to perforate, leading to peritonitis. Fortunately for the Plaintiff, she had already received a settlement from other doctors who have provided care to her from this incident. At trial, the defendant doctors pointed to the empty chair defendants.

It might have made sense to settle out with the other defendants in this case. We don’t know what the numbers were. But a trial is a search for blame and it is always easier for a jury to blame someone who is not in the room.

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Posted In: Medical Malpractice , Missouri

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North Carolina Academy of Trial Lawyers looked at the 5,401 med-mal cases were filed in North Carolina from 1998 through 2006 and complied a few statistics. The median jury award in medical malpractice cases was $301,300. The largest medical malpractice award was $8.1 million.

Looking at personal injury cases in North Carolina generally, Jury Verdict Research estimates the median award in North Carolina is $10,000. Personal injury plaintiff receive damages in 61% of cases that are tried (national average is 53%).

The average jury verdict in medical malpractice cases in North Carolina is relatively low. I do not have the national median for medical malpractice cases in front of me but the average - as opposed to the median which makes a difference - is over $1 million. The national median for personal injury cases generally is $38,179 which means that North Carolina and the nationwide plaintiff recovery probability, the number of plaintiff verdicts to total verdicts, is 53 percent.

The median personal injury award in North Carolina is low but a part of that is due to antiquated jurisdictional limits in North Carolina. Civil jurisdiction for district court, which does involves a judge instead of a jury - is proper for cases involving amounts in controversy of $10,000 or less. Many states have jurisdictional amounts that are five times North Carolina's $10,000 maximum. This leads to more jury trial in small cases thereby decreasing the overall average.

With respect to North Carolina malpractice cases, I think that John Edwards record notwithstanding, it has been a tough history for medical malpractice lawyers and their clients in North Carolina. One old study I saw found that North Carolina medical malapractice plaintffs win 11% of the cases that went to trial.

Another study I read looked at eighteen jury verdicts from North Carolina. In each case, the medical malpractice insurance company obtained expert evaluations on the question of liability. The study divided the reviews into three categories: (1) probable liability, (2) uncertain liability (when experts disagreed), and (3) unlikely liability. The study found that plaintiffs won 10% of the trials in which the doctor's care had been considered good, 17% of the cases where the experts were uncertain, and 50% of the trials where the experts thought there was liability.

I wonder about the experience/quality of the medical malpractice lawyers who lost the cases where there appeared to be liability because quality malpractice lawyers can make a huge difference not just at trial but in discovery. But the take home message is clear: medical malpractice cases are tough anywhere but particuarly in North Carolina.

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Posted In: Medical Malpractice , North Carolina

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Interesting editorial yesterday in the Las Vegas Review-Journal regarding the Nevada Board of Medical Examiners posting medical malpractice lawsuits filed against Nevada doctors. Apparently, the Nevada Board stopped posting this information about three years ago on it website. No one paid any attention until the recent southern Nevada's endoscopy clinic crisis.

You might think a medical malpractice lawyer would be unequivocal that this information should be made public. I appreciate the argument in this regard. But I do not know that it is necessary to post information about the filing of a lawsuit because some medical malpractice claims are groundless (or course, many medical malpractice defenses are groundless too but that is for a different blog). Of course, medical malpractice lawsuits are public information so anyone can post information about the filing of a lawsuit. The question is whether government agencies should be the conduit of this information.

Nevada Governor Jim Gibbons is demanding that the information be put back up and that three members of the Nevada Board resign because of – surprise! – conflicts of interest. I’m inclined to agree with Governor Gibbons but it is a slippery slope of attaching meaning to the mere filing of a lawsuit.

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Posted In: Medical Malpractice , Nevada

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A New Jersey jury Monday awarded Freehold (NJ) woman and her 10-year-old son who was born with severe brain damage and cerebral palsy.

Posted by Ronald V. Miller, Jr. | Permalink | Email This Post

Posted In: Medical Malpractice , New Jersey

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The West Virginia Record has an editorial about how the three of the top verdicts in the country came from West Virginia and derided plaintiffs’ lawyers as “tort barons” destroying industry in West Virginia and through the country.

Okay, the problem is West Virginia personal injury lawyers (tort lawyers). Just for fun, let’s look at the fact and see about all of these tort claims. The big verdict was a $404 million award in Roane County v. Columbia Natural Resources. In that case, 10,000 other royalty owners who questioned the price they were being paid for natural gas produced from their property. This is not a tort claim. This is a company stealing from people. Exactly how should such a claim be handled? Should the plaintiffs have allowed this to go on without question for the “good of industry?” How many folks on the Editorial Board of the West Virginia Record would have refused payment if they were in the class? It is just plain silly.

The second case cited, a $251 million verdict against Du Pont in Clarksburg was not a personal injury case but a lawsuit over Du Pont’s handling of the environmental cleanup created by a West Virginia zinc-smelting facility. This is was not a single insured person. This was a lot of people who had been hurt by a very large company in a case where the jury found they did not give due consideration to the environment or the surrounding property owners. Approximately 7000 people suffered harm to their property and we subjected to significant health risks. What would the Editorial Board of the West Virginia Record do if they sat on the jury in this case?
The final verdict in the top 10 was a $219 million verdict against Massey Energy. The Plaintiff was another big company who was suing for breach of contract. Perhaps if one big company breaches a contract against another big company, they should not be able to sue for breach of contract. Wonderful logic.

This West Virginia Record’s editorial is pathetic. I could argue their position better than they did. There is an intellectual argument that can be made calling some aspect of our tort system in question. I don’t agree this argument – I think it is dead wrong - but it can be made based on facts and it held by reasonable people. This argument is just plain silly and is an embarrassment to the West Virginia Record and the people it has misled.

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Posted In: Car Accidents , Medical Malpractice , Nursing Home Abuse , Product Liability , Truck Accidents , West Virginia

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The family of Chelmsford woman who died a day after thyroid surgery at Brockton Hospital was awarded $14.5 million by Middlesex County, Massachusetts jury in a medical malpractice case this week after five hours of deliberation. Pursuant to favorable provision of Massachusetts law, the award included more than $5 million in interest.

Plaintiff’s decedent was a 30 year-old woman who went to the doctor because of a lump on her thyroid gland. Her surgeons did a biopsy on the benign lump but in recovery someone noticed that her abdomen was swollen and her stomach and legs had turned blue. She apparently developed abdominal compartment syndrome from air that had gotten into her stomach.

The doctors did what they should have done initially. The operated again and released the air. Unfortunately, the surgeons immediately closed the wound immediately without letter all of the air escape. She was flown to Boston Medical Center for surgery but died later that day.

I cannot imagine how this case went to trial. Often the doctor’s medical malpractice lawyers defend these cases on the basis of the difficulty of diagnosis of abdominal compartment because it often occurs in patients with other causes of circulatory or respiratory failure. So the plaintiff’s medical malpractice claim is usually defended on the basis that the doctor did not diagnose abdominal compartment syndrome because the patient’s symptomology was consistent with other problems and the patient died or suffered severe injury before the condition was uncovered. In this Boston medical malpractice case, diagnosis was not the problem. Instead, it was the conduct after of the doctors after they knew of the condition that led to the medical malpractice.

One more comment about the case: when the woman was in trouble, they transported her by helicopter to another Boston hosptial. If I'm getting elective surgery, I much rather do it at the hosptial where they are going to be sending me if a problem does occur.

You can find the Boston Globe story on this case here.

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Posted In: Massachusetts , Medical Malpractice

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A woman with terminal breast cancer was awarded $12 million a failure to diagnose cancer medical malpractice case on Wednesday.

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Posted In: Medical Malpractice , Pennsylvania

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The TortsProf Blog reports that state legislatures in Colorado and Oregon are considering increases to their caps on noneconomic damages. Colorado is currently debating a bill that would raise the cap on noneconomic damages in medical malpractice cases from a measly $300,000 to a less measly, but still ridiculously low, $450,000. The bill was voted out of committee on Monday and will now be sent to the Senate floor for debate. The details are here.

Oregon is wrestling with a last year’s Oregon Supreme Court ruling that caps on damages payable by the state was unconstitutional as applied. The task force has been set up in Oregon to study the issue of raising the cap on noneconomic damages.

In the history of caps on noneconomic damages, the door has swung only one way - toward adding caps or decreasing the amount of the cap. Hopefully, this news for the clients of personal injury lawyers, that the door will begin to swing in the other direction.

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Posted In: Car Accidents , Colorado , Medical Malpractice , Nursing Home Abuse , Oregon , Product Liability , Truck Accidents

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Eleven plaintiffs, including former Dallas Cowboy Ron Springs, filed a class action lawsuit yesterday challenging the Texas Medical Malpractice and Tort Reform Act as unconstitutional.

I suspect this argument will fail miserably. I think the effort to solve the medical malpractice cap problem in Texas is through the Texas Legislature. Hopefully, the Texas Trial Lawyers Association are marshaling a quality effort to convince the Texas Legislature that they have gone down a path that has seriously compromised the basis rights of people who have been seriously injured as the result of medical malpractice in Texas.

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Posted In: Medical Malpractice , Texas

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A Lehigh County, Pennsylvania jury awarded a Monroe County woman almost $4 million in medical malpractice case for failure to diagnose her cancer.

Because the jury found that Plaintiff was also 35 percent negligent, the total award against the defendant under Pennsylvania’s comparative negligence scheme in personal injury cases is reduced to $2.6 million.

The doctor accused of malpractice had diagnosed the lump as a sebaceous cyst of the chest wall. He told the Plaintiff that is was not cancer but that she could have it drained if it became a problem. Accordingly, the Plaintiff’s medical malpractice lawyers argued at trial that the doctor was negligent in failing to recommend follow up testing that would have uncovered her breast cancer before it spread to her bones.

While $2.6 million dollars is a lot of money, you never walk away from medical malpractice cases like this thinking the Plaintiff has won because she has already lost so much more than $2.4 million.

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Posted In: Medical Malpractice , Pennsylvania

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