Accident and Injury Lawyer Blog

Former Cleveland Browns wide receiver Joe Jurevicius has filed a medical malpractice lawsuit against the Cleveland Browns and the Cleveland Clinic. Joe Jurvevicius' claim is that he contracted staph following arthroscopic surgery at the Cleveland Clinic in January 2008. His Complaint accuses his doctors, including the team doctors, of medical malpractice of negligence over a staph infection in Jurveicius' right knee.

I've been down this road with an NFL player in a case I handled against the New England Patriots. He is the motion I filed in that case to defeat the team's claim that there is no jurisdiction. But that Browns' lawyer will make the argument that unless Jurevicius' lawyer put the Browns on notice very early in the game (90 days, I believe), he has has waived his right to bring a claim against the team based on the NFL Collective Bargaining Agreement. It seems silly to break off the malpractice case into two separate cases: one against the team and one against the doctors. But at least one court that I have seen, Sherwin v. Indianapolis Colts, 752 F. Supp. 1172 (N.Y.D.C 1990), seems to think that this is the required approach under the NFL CBA. (My case gave the court an easy out: the Patriots waited 2 years to file their motion which the court relied upon to find that the Patriots and their team doctor waived their right to assert that arbitration was still a remedy.)

You cannot understate the harm caused by staph infections: CDC estimates infections - many of which are staph infections - kill 90,000 people annually. Infections result in an estimated 205,000 additional hospital days for infected patients and a whooping $2 billion in medical costs.

Still, while staph infection lawsuits are on the rise, they are tough claims. Jurevicius' lawsuit contends the training room could have been cleaner. Okay. But that is far leap from a causation link to his staph infection.

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Posted In: Medical Malpractice , Ohio

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The average personal injury verdict in Florida is $1,819,751, according to Jury Verdict Research, a company that tracks jury verdicts. Personal injury plaintiff win at trial in Florida personal injury cases approximately 61 percent of cases that go to trial.

Florida’s threshold requiring a more serious injury in auto accident case is one reason why the average jury verdict in Florida much higher than the national average. These Florida jury statistic verdicts also underscore that large case inflate average jury verdicts and settlements. The median – as opposed to the average – money damages in Florida personal injury trials in Florida is $122,674.

If you have been injured in a serious car accident (our lawyers only handle serious car accident claims), call our auto accident lawyers at 800-553-8082 or click here for free no obligation consultation.

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Posted In: Car Accidents , Florida , Medical Malpractice , Product Liability

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A Michigan jury awarded $1.8 million to the family of a woman in a medical malpractice wrongful death lawsuit against a doctor and Gratiot Medical Center in Alma.

Plaintiff, age 42, was admitted to the hospital for abdominal pain and had her gall bladder removed in a laparoscopic surgery two days later. She later died from sepsis and a perforated pouch at the beginning of the large intestine.

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Posted In: Medical Malpractice , Michigan

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A Marion County Indiana jury has ordered several doctors and health care providers in Indianapolis to pay $5 million to a woman with a ruptured diaphragm who was misdiagnosed in 2000. The misdiagnosis led to the removal of a third of her stomach and ongoing complications, an attorney for the woman said. State medical malpractice caps will limit the award to $1.25 million.

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Posted In: Indiana , Medical Malpractice

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John Day writes a blog post on the new Tennessee medical malpractice lawsuit notice requirement and the new certificate of merit requirement.

I'm not sure of the thinking as to why you have to give a doctor notice before you file a malpractice lawsuit although that has always been the law in Tennessee. As to the certificate of merit change, I also can't see the wisdom in requiring the certificate of merit to be filed with the lawsuit. Maybe there is a reason beyond just making life more difficult for the malpractice lawyer but I can't see what it is.

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Posted In: Medical Malpractice , Tennessee

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A Kentucky jury has ordered a doctor’s malpractice insurance company to pay $3.8 million for acting in bad faith by delaying payment on aclaim it knew its client was liable for, the Louisville Courier-Journal reports. The insurance company initially offered the Plaintiff $75,000 to settle her case despite the fact that the malpractice insurance company estimated the case to be worth $1 million. Typical stuff that does not surprise any malpractice lawyers. Plaintiff was left permanently disabled after her doctor botched a cosmetic procedure the doctor suggested Plaintiff had while she underwent a hysterectomy.

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Posted In: Kentucky , Medical Malpractice

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Median jury awards in motor vehicle tort trials dropped to $17,000 in 2005 from $41,000 in 1992. I don't know about you but this underscores to me that auto accident verdicts are not driving car insurance rates.

The picture is different in medical malpractice and product liability lawsuits. Product liability trials had median awards at least five times higher in 2005 than in 1992. Medical malpractice trials median awards more than doubled to $682,000 in 2005 from $280,000 in 1992.

I realize this data is a bit dated - 2005 - but that is how we typically get personal injury statistics... a little dated.

You can find the entire study here.

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Posted In: Car Accidents , Medical Malpractice , Nevada , Product Liability , South Carolina

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A jury in Lackawanna County, Pennsylvania awarded $1.88 million to a Dunmore woman in a cancer misdiagnosis medical malpractice lawsuit filed on behalf of her husband, who died of cancer in 2008. The jury found a urologist, a pathologist, and Wayne Memorial Hospital responsible for failing to diagnose the man with bladder cancer during several doctors’ visits complaining of urinary problems over a sixteen month period.

Cancer of the urinary bladder is the fourth most common malignancy among men, and the eighth most frequent among women. Urinary problems obviously do not necessarily mean a patient has cancer, but obviously this jury found that there was enough evidence where more should have been done when the patient presented with an inflamed and enlarged prostate.

This is a list of cancer misdiagnosis verdicts in Maryland.

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Posted In: Maryland , Medical Malpractice , Pennsylvania

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Physicians' Reciprocal Insurers, a Long Island medical malpractice insurance carrier than insures nearly 25% of New York state's physicians, is insolvent. It has a "negative surplus" of more than $43 million.

The problem? New York medical malpractice lawyers and their frivolous medical malpractice lawsuits? Hardly. Eliot Spitzer thought freezing medical malpractice premium hikes was a good idea. Shocker. Has Slate fired him yet?

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Posted In: Medical Malpractice , New York

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A six person jury in Providence, Rhode Island awarded a former truck driver $4 million, agreeing with Plaintiff's lawsuit claiming medical malpractice by his orthopedic surgeon caused him injury. The award was $1.5 million for physical pain, $1.5 million for mental suffering, $500,000 for disfigurement and $500,000 for lost wages, according to Plaintiff's Rhode Island medical malpractice lawyer.

Plaintiff worked as a truck driver for The Providence Journal for nearly twenty years when began experiencing intense pain in his arm in 1999. His doctor operated to improve his movement and in the process removed a benign tumor. But Plaintiff shortly began having problems with his hand, changing color, temperature and sweating. Another doctor diagnosed him as having Reflex Sympathetic Dystrophy Syndrome, a chronic neurological disorder that causes severe pain. During the operation to resolve that condition, the subsequent doctor found that another nerve had been sliced. According to his lawyer, Plaintiff's hand has been in a claw ever since and he has nonstop pain to this day.

You can read more about the Rhode Island medical malpractice verdict here.

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Posted In: Medical Malpractice , Rhode Island

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The Maryland Malpractice Attorney Blog has a post about medical malpractice rates in Oregon. They are falling all over the country. Yet, trust me, there will still be some sort of "crisis" of malpractice premiums that require more controls.

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Posted In: Medical Malpractice , Oregon

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Obviously, it impossible to consider a few variables - even a multitude of variables - and come to a calculation of winning a medical malpractice lawsuit in Maryland. But the Maryland Malpractice Lawyer Blog provides some analysis as to the percentage of malpractice lawsuits that are successful and the types of malpractice lawsuits that are most frequently seen.

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Posted In: Maryland , Medical Malpractice

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The Maryland Malpractice Lawyer Blog has a post about a doctor's lawsuit claiming that he was wrongful terminated from an OB/GYN practice. The doctor who fired him claims, among other things, that the OB/GYN doctor failed to come clean about a medical malpractice lawsuit that had been filed against him in Pennsylvania.

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Posted In: Maryland , Medical Malpractice , Pennsylvania

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Pennsylvania malpractice lawsuits dropped about 11 from 2004 to 2007. In Lackawanna County, medical malpractice lawsuits plummeted 58 percent between 2000 and 2007. There were 30 Lackawanna County malpractice lawsuits were filed in 2007, compared with 35 in 2006 and 71 in 2000. In Lackawanna, Luzerne, Monroe, Pike, Sullivan, Wyoming, Susquehanna and Wayne counties, medical malpractice lawsuits dropped from 125 in 2000 to 88 last year.

Many attribute the decline to new Pennsylvania malpractice law that requires that "independent doctors" certify medical malpractice lawsuits before they can proceed. I don't disagree with the premise of requiring a "certificate of merit" or other like mechanism before the filing of a medical malpractice lawsuit in Pennsylvania because I think it does what it should do in most cases: weed out malpractice lawsuits that should not be brought.

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Posted In: Medical Malpractice , Pennsylvania

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Nevada's medical malpractice reform in 2004 is leading to another problem: Nevada medical malpractice cases with doctors who are refusing to settle cases. The Nevada Supreme Court in Las Vegas is looking to take matters into their own hands to avoid the backlog of medical malpractice lawsuits: a "settlement marathon."

Two judges will be assigned to conduct 18 malpractice settlement conferences per week on malpractice cases currently pending in Clark County District Court, to try to reduce the 400 pending medical malpractice lawsuits.

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Posted In: Medical Malpractice , Nevada

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A Fulton County jury in Georgia ordered an obstetrician and a pediatrician to pay a combined $2.3 million for their treatment of an infant in a botched circumcision The malpractice lawsuit in this case alleged that the obstetrician and the pediatrician were negligently failed to provide care when part of the boy’s penis was severed during the procedure at South Fulton Medical Center.

The frustrating thing about this case is that it appears to have been negligence that could have been largely fixed. The doctor who circumcised him removed too much tissue. That was mistake number one. If the tip of the penis was placed in a biohazard bag, it could have been reattached if a urologist had attended to the boy within eight hours. But the jury found that the boy's pediatrician failed to respond when a nurse made him aware of excessive bleeding.

You can find an article on the story here.

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Posted In: Georgia , Medical Malpractice

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New York has an awful law that limits the recovery of New York medical malpractice lawyers. As I have written before it is the kind of law I hate the most. No, not because it cuts into malpractice lawyers' pocketbooks. I hate this cap rule because it is the worst kind of consumer protection: it looks like it helps consumers but actually hurts their ability to retain a lawyer. (While this is not a popular view in 2009, the same is true I believe with CEO salaries.) So while it looks like it helps victims - and it may help some individual victims who might have paid more who have great malpractice claims - the practical impact is that less medical malpractice victims who have claims are able to get New York malpractice lawyers. The related problem that comes from this is that many malpractice lawyers will, as a result, refuse to front the expense of a case, which also transfers the risk and the cost of the case from the malpractice lawyer - where it should be - to the client.

The New York Post has an article critical of efforts in the New York legislature of efforts to finally fix this awful malpractice law.

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Posted In: Medical Malpractice , New York

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A doctor won a defense verdict in a failure to diagnose prostate cancer case in Delaware, according to Personal Injury Verdict Reviews. Plaintiff's malpractice case was essentially that he developed prostate cancer and his doctor failed to properly and timely diagnose and treat the Plaintiff's condition.

As is often the case, the defendant doctor fought the malpractice claim arguing that the real problem was that plaintiff did not follow-up as instructed. Not most but some juries in medical malpractice case look - consciously on subconsciously - for ways to blame splaintiffs for their own injuries. Patients who file medical malpractice claims leave themselves exposed if they do not follow their doctor's instructions to the letter.

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Posted In: Delaware , Medical Malpractice

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Medical personnel responding to a 8 year-old's injuries by an exploding cannon at a Fourth of July celebration in Washington were negligent in his death, according to a Complaint filed by his family's malpractice lawyers. The lawsuit alleges that the responders were improperly trained and should not have canceled a previously requested medical airlift. The boy died after being struck by shrapnel from an 18-inch cannon fired by his grandfather.

These are tough cases because the laws in most jurisdictions are set up to give medical personnel responding to an emergency more discretion. I don't agree with this - like emergency room doctors, the law takes into account the exigency of the moment. In Washington, gross negligence is required to bring a claim against emergency personnel.

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Article on Case From Seattle Times (story on lawsuit)

Maryland Lawsuits Regarding Emergency Vehicles (immunity from liability provided in Maryland accident and medical malpractice cases)

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Posted In: Maryland , Medical Malpractice , Washington

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The Hawaii House of Represenatives approved a bill to put one of the most restrictive medical malpractice cap on noneconomic awards in medical malpractice lawsuits against some types of doctors.

Hawaii House Bill limits non-economic damages to $250,000 in malpractice lawsuits against doctors who practice in areas such as emergency medicine, neurological surgery, obstetrics and gynecology, orthopedic surgery and general surgery. Adding insult it injury, the bill also caps at $3 million the award for gross negligence.

Incredibly, all of this is necessary even with Hawaii's cap on of $375,000 the award for pain and suffering. One goal of all of is this is dissuade Hawaii medical malpractice lawyers from taking on malpractice cases because the economics do not support bring a claim even with merit.

If you need a medical malpractice lawyer in Hawaii, call 800-553-8082 or click here for a free Hawaii malpractice claim review.

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Posted In: Hawaii , Medical Malpractice

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Some in the Oklahoma Legislature want to leap into the abyss of unreasonable caps on non-economic damages in Oklahoma medical malpractice case. Oklahoma House Bill 1603 would provide a maximum of $300,000 for pain and suffering damages in medical malpractice cases in Oklahoma.

You can find the story here.

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Posted In: Medical Malpractice , Oklahoma

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The Register-Herald in Berkeley, West Virginia writes an article about the efforts of pharmacists in West Virginia to add themselves to the list of health care providers under West Virginia law entitled to protection under West Virginia’s medical malpractice cap.

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Posted In: Medical Malpractice , West Virginia

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An Allegheny County jury in Pennsylvania has ordered the University of Pittsburgh Medical Center to pay $5 million to a woman left brain-damaged after she was given eight times the appropriate amount of sodium she required to correct a chemical imbalance.

Plaintiff was diagnosed with an electrolyte deficiency and low sodium after an emergency room, according to her medical malpractice lawyers. The hospital planned to slowly correct her low sodium but accidently gave her a dose of eight times the amount she should have received.
The sodium overload caused permanent brain damage that has prevented plaintiff from returning to work, impaired her speech and made walking difficult, according to her malpractice attorneys.

You can read the full story on this case here.

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Posted In: Medical Malpractice , Pennsylvania

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A number of mostly medical malpractice related links from around the web today

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Posted In: Maryland , Medical Malpractice , Texas

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The San Jose Mercury News reports on a medical malpractice lawsuit filed against the San Mateo Medical Center. Plaintiff alleges that his heart was permanently damaged after the center left a broken catheter in his heart and, even more seriously, that the hospital covered up the mistake. Although Plaintiff did not know about the catheter's break -which is the size of a drinking straw - until July 2008, it was clearly visible on x-rays and scans more than two years before. The first operation to remove the catheter was unsuccessful. Open heart surgery was required during which a heart valve was destroyed and had to be replaced with a valve from a pig’s heart. To make matters worse, the plaintiff has cancer.

I do not know what happened here and I think medical malpractice cover-ups do happen. But this is actually a rare sighting for medical malpractice lawyers. The vast majority of doctors and hospitals accused of medical malpractice were trying to do the right thing... but didn't.

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Posted In: California , Medical Malpractice

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Interesting article on what sounds like an insane medical malpractice trial in Jefferson County in a breast cancer misdiagnosis lawsuit.

It is crazy easy for lawyers to complain about judges, complaining that judges take too much or too little control of a courtroom. I'm sure it is easy to say when you don't have to actually preside over a case yourself. But listening to the facts of this medical malpractice case, I think there is no question the judge needs to get a tighter grip on the medical malpractice lawyers in his courtroom.

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Posted In: Medical Malpractice , Texas

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Louisiana Medical News provides an article on the discussions in Louisiana about medical malpractice caps.

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Posted In: Louisiana , Medical Malpractice

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The Chicago Tribute reports that Provena Mercy Medical Center in Illinois has agreed to pay $6.5 million to settle a medical malpractice lawsuit filed on behalf of a boy who allegedly suffered brain injury during birth. In the malpractice lawsuit, Plaintiffs' attorneys argued that doctors and staff at failed to respond to the child's reaction to the drug Pitocin.

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Posted In: Illinois , Medical Malpractice

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A new hot topic in medical malpractice is infection cases. A Pennsylvania woman who allegedly contracted a staph infection which that resulted in facial scarring while she was working as a prison guard at Graterford Prison in 2003 settled her claim or $226,000. Alas, this was a not a medical malpractice claim but a workers' compensation claim against the prison.

You can read the full article here which includes a picture of the scarring. Obviously, a successful medical malpractice claim would have resulted in a larger recovery 90% of the time. Proving a workers comp claim - that the staph came from the prison - will generally not be that difficult for an evidentiary standpoint. The hard part of a hospital staph infection case is proving negligence.

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Posted In: Medical Malpractice , Pennsylvania

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USA Today reports on a new New England Journal of Medicine study finding that a third of newborns may be at risk for respiratory distress and other health consequences C-section that were performed too early. According to the study, 36% of 13,258 elective repeat C-sections from 1999 to 2002 were performed sooner than the 39 full weeks of gestation recommended by the American College of Obstetricians and Gynecologists. The authors of the study noted that babies delivered by C-section prior to 39 weeks are about twice as likely to have at least one birth-related problem.

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Posted In: Medical Malpractice

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Pennsylvania's highest court last week in Fitzpatrick v. Natter that circumstantial evidence provided by a plaintiff's spouse in a medical malpractice lawsuit is sufficient to get past summary judgment in an informed consent malpractice claim. The court found that a Pennsylvania Superior Courty had erred in concluding that Pennsylvania's informed consent law required the Plaintiff to testify herself about information that was not provided by her doctor.

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Posted In: Medical Malpractice , Pennsylvania

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The Maryland Medical Malpractice Lawyer Blog has a post on how health courts are working out in New Hampshire.

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Posted In: Medical Malpractice , New Hampshire

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An Oahu Circuit Court awarded a 45-year-old rancher $6 million this week in a medical malpractice lawsuit against a Wahiawa physician.

Plaintiff went to see his doctor when testing revealed signs of kidney disease. For two years, the defendant doctor treated the Plaintiff for high blood pressure, ignoring test results indicating kidney disease, according to Plaintiff's medical malpractice lawsuit. By the time the Plaintiff was referred to a specialist, his kidneys were already dead. Plaintiff's expert testified to a reasonable degree of medical certainty that had the Plaintiff been referred to a kidney specialist at the appropriate time, the damages likely would have been different.

It is good for medical malpractice lawyers to keep track of successful verdicts because it underscores what fact patterns can make successful medical malpractice lawsuits.

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Posted In: Hawaii , Medical Malpractice

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An Illinois appellate court has upheld about $9 million award in the wrongful death a 12 year-old boy who died during a 1999 surgical procedure. The boy died after receiving an antibiotic that triggered an allergic reaction and breathing problems. Jurors two years ago found that the doctor who ordered the antibiotic and the attending anesthesiologist were negligent in the death.

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Posted In: Illinois , Medical Malpractice

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Medical malpractice lawyers for a Dartmouth-Hitchcock Clinic emergency-room surgeon who was ordered by Merrimack County Superior Court jurors to pay $1.95 million in a medical malpractice case say they will appeal the jury's decision.

The Plaintiff has been blind since the emergency surgery to repaired his broken leg after a car crash on Interstate 89 in 2003. Plaintiff’s medical malpractice attorney argued at trial that the Plaintiff should have been given blood to stabilize his condition. Because of the blood loss, the nerves in Plaintiff’s brain controlling sight were oxygen-deprived and died, resulting in his blindness.

You can read more about this story here.

If you have been injured by medical malpractice or in an auto accident in New Hampshire, call 1-800-553-8082 or click here for a free consultation.

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Posted In: Medical Malpractice , New Hampshire

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In a 2-1 decision, the 1st District Court of Appeal denied a medical malpractice lawyer’s request in a Jacksonville malpractice case to exhume the decedent, a Jacksonville philanthropist, who was buried four years ago. Central to the Florida court’s opinion is that plastic surgeon defendant has conceded medical malpractice caused the victim’s death.

Given the stipulation that medical malpractice caused the patient's death, I think this is a good decision. I think we should be relucant to exhume bodies unless it is absolutely necessary.

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Posted In: Florida , Medical Malpractice

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A report released last week by the Manhattan Institute -- "Greater Justice, Lower Cost: How a 'Loser Pays' Rule Would Improve the American Legal System" -- says making personal injury lawsuit losers pay the winner's legal expenses would improve the fairness of our legal system.

"The integrity of our legal system is under assault. Establishing loser-pays rules and other tort reforms can help restore citizens' faith in the bedrock of society -- justice, fairness and the rule of law," former New York Mayor Rudy Giuliani write in the preface to the report. (With the election over, Giuliani is apparently capable of complete sentences that do not contain 9/11. I am a little surprised.)

I have not given the issue any thought. I think the problem is that it presents an intimidating bar for Plaintiff's who have been the victim of the neglignece of someone else in a case that is not clear cut. Do we want to discourage those suits?

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Posted In: Medical Malpractice , Montana , New York , Product Liability , Wisconsin

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The Chicago Times reports on a $9.8 medical malpractice settment on behalf of the family of a 27-year-old mother of nine who died in Stroger Hospital three years ago after bleeding during a pregnancy. According to the medical malpractice lawsuit filed by the family's lawyer, doctors at the hospital failed to give Dickerson blood-clotting products in a timely fashion after she began bleeding and collapsed in August 2005 while 31 weeks' pregnant. Thankfully, her baby survived.

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Posted In: Illinois , Medical Malpractice

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The Los Angeles Times writes this morning about a tragic case in Los Angeles at Martin Luther King Jr.-Harbor Medical Center where an official Los Angeles County assessment has acknowledged for the first time that a woman who died shortly after writhing in pain for nearly an hour on the hospital's waiting room floor would not have died if she had received proper medical care.

The vast majority of medical malpractice cases in Los Angeles occur when doctors who are largely good doctors and good people had good intentions but medical mistakes were made. This is something very different. The only reason this woman's family has a potential wrongful death medical malpractice case is that a security camera videotaped a janitor mopped around the victim while a triage nurse dismissed her complaints.

Sad but true: video cameras and phones are helping make more and more medical malpractice and nursing home claims.

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Posted In: California , Medical Malpractice , Nursing Home Abuse

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The Maryland Medical Malpractice Attorney Blog has a post on a New York Times about how arrogant doctors are causing medical malpractice. While this is certainly true, the problem is that it is hard to create systems that stop mean people. It would be a better world if we could. But arrogance and abusive people cause medical malpractice, legal malpractice, farmer malpractice, salesman malpractice and on and on.

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Posted In: Maryland , Medical Malpractice

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The Iowa Supreme Court reversed Scott County District Court Judge David H. Sivright, Jr.'s summary judgment ruling in a failure to diagnose breast cancer case, rejecting malpractice defense lawyer claims that Plaintiff should have known of her injury, for purposes of the statute of limitations, just because a doctor made her aware that her breast was not normal.

Although she knew something may be amiss, the Plaintiff - according to the facts alleged in her medical malpractice lawsuit - was assured that she did not have to worry about the lump. According to the lawsuit, the Plaintiff, Ms. Rock, noticed a lump in her left breast in May 2002 and called her doctor to have it examined. She was referred to the Center for Breast Health for a bilateral mammogram. During a follow-up appointment, Ms. Rock said Dr. Warhank told her the mammogram was normal and “not to worry about the lump.”

The Iowa Supreme Court held that the plaintiff could not have known and would not have known of her cancer or that her breast cancer was misdiagnosed until she was actually diagnosed with cancer.

Congratulations to Plaintiff's medical malpractice lawyers Robert Gallagher and David Millage in Davenport, Iowa, who stayed with this case through adverse rulings both at trial and before the Iowa Court of Appeals.

You can find the Iowa Supreme Court's opinion here.

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Posted In: Iowa , Medical Malpractice

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A Broward County, Florida jury has awarded $3.5 million to the family of a man who died 17 days after being implanted with a pacemaker. According to the family's wrongful death lawyer, the jury found that doctors committed medical malpractice by not delaying the procedure because the man developed lung problems prior to the surgery.

You can find the story here.

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Posted In: Florida , Medical Malpractice

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Oklahoma Governor Brad Henry signed into law a medical malpractice tort reform law in Oklahoma. Called the "Affordable Access to Health Care Act" (“Let’s Stop Victims from Getting Fair Compensation” was already taken), the law requires a certificate of merit by a medical expert before a nursing home or medical malpractice lawyer in Oklahoma can file a claim.

As I’ve written before, I’m fine with this new Oklahoma rule. I’m also okay – I guess – with the rule that attorney fees are no longer awarded to plaintiffs in nursing home liability lawsuits (although that rule seemed fair). My problem with this bill is that it puts a $300,000 cap on non-economic damages in medical malpractice cases involving birth injuries and emergency care. In other words, they are putting a cap on what are usually the most serious medical malpractice cases where the victims have suffered the most.
Bad law but it received large support in Oklahoma City.

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Posted In: Medical Malpractice , Oklahoma

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Personal injury verdict reviews reports on $3,990,000 settlement in a cerebral palsy case in New York. Plaintiff alleged hospital malpractice in failing to train and supervise its medical team who administered an excessive amount of fluid to the infant, causing the child to become waterlogged and develop life-threatening hyponatrenia. Plaintiff’s medical malpractice lawyer’s theory of the case was that the hospital should have used (1) a more concentrated solution in a peripheral line and (2) the hospital should have installed a central line, causing them to use too much fluid to deliver adequate amounts of sugar to the child.

Plaintiff’s medical malpractice lawyer was Richard A. Gurfein. The case was defended by Lake Success lawyer Henry Zee. Plaintiff’s expert witnesses included Edmund H. Mantell, Ph.D. (economist in White Plains, New York) Daniel Adler, M.D. (pediatric neurologist) and Joseph Carfi, M.D.(rehab expert).

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Posted In: Medical Malpractice , New York

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The New York Medical Malpractice Law Blog - which I found via the New York Personal Injury Attorney Blog - reports on something I did not know: electronic medical records are now being widely utilized in Great Britian. For one, York Hospital is now using electronic medical records in an effort to improve communication among doctors in treating patients.

The reality is that this is a public safety issue but it's also a "it is 2008 and we have no money left in the budget" issue. The federal government pays for nearly 40% of the over $1.3 trillion spent on medical care in this country and spends millions more providing disability benefits to medical malpractice victims. Accordingly, besides saving potentially thousands of lives, electronic medical records will reduce the costs associated with medical malpractice and the government and our health care system will see signifcant savings in the long run. This will, in turn, decrease medical malpractice lawsuits which will lower medical malpractice premiums.

All good. What is the problem? The problem is the cost. While a national system of computerized medical records is on Obama's wish list, that list is getting cutback as we look at the economic realities of our federal budget in light of our country's financial crisis. Ironically, this is the perfect kind of project for deficit spending because it is not a money pit - electroic medical records are going to save us more in the long run than the 3% interest the government would pay for the investment. But while I'd love to be wrong about this, I do not see a great push for electronic medical records in Obama's first term.

By the way, bravo to the Eric Turkewitz and his New York Personal Injury Lawyer Blog for publishing a link of a fellow New York medical malpractice attorney. Eric's mentality is that he is writing with a focused eye on what would be interesting to his readers, which is one of the reasons why his blog has been so successful.

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Posted In: Medical Malpractice , New York

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Malpractice tort reform in Arkansas enacted in 2003 seems to be accomplishing the goal of less medical malpractice lawsuits.

2001: 383 Malpractice Lawsuits
2002: 383 Malpractice Lawsuits
2003: 385 Malpractice Lawsuits
2004: 305 Malpractice Lawsuits
2005: 282 Malpractice Lawsuits
2006: 255 Malpractice Lawsuits
2007: 285 Malpractice Lawsuits

The problem is that Arkansas' medical malpractice reform is not eliminating weaker cases but eliminating cases where the economic damages are not high enough to entice Arkansas medical malpractice lawyers to file malpractice lawsuits.

Related Posts
Valuing Medical Malpractice Cases in Arkansas (malpractice verdicts around the country)

Article on Arkansas Malpractice Reform (Arkansas Times article on impact of medical malpractice tort reform in Arkansas)

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Posted In: Arkansas , Medical Malpractice

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The Los Vegas Sun reports that a unanimous Nevada Supreme Court ruled that a Las Vegas woman whose child suffered brain damage allegedly from medical malpractice during the child's birth may continue her malpractice lawsuit against a doctor who delivered her child. The Nevada court found that a 10-year statute of limitations instead of the four-year statute should be applied in cases where a child suffers brain damage or a birth defect.

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Posted In: Medical Malpractice , Nevada

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The South Dakota Supreme Court has upheld South Dakota Circuit Judge Jon Erickson’s decision to grant a new trial in a medical malpractice lawsuit against a Huron doctor. The medical malpractice lawsuit arose out of complications from gall bladder surgery in 2001. The jury instruction stated:

A doctor is not necessarily negligent because the physician errs in judgment or because efforts prove unsuccessful.

The physician is negligent if the error in judgment or lack of success is due to a failure to perform any of the duties defined in these instructions.

I don't know how the change of heart came about but, to his credit, Judge Erickson acknowledged the error and ordered a new trial. The doctor's malpractice lawyer appealed, arguing that is was an abuse of discretion to grant a new trial. Specifically, the defendant's lawyer relied on Veith v. O'Brien where the court found that the plaintiff did not prove that this "error in judgment" instruction "in all probability" had an impact on the jury's verdict.

The South Dakota Supreme Court agreed with Judge Erickson that the instruction was inappropriate and found that it was not an abuse of discretion to find that the instruction prejudiced the Plaintiff's case. Interesting, the court stated in a footnote that "concededly, there may be little to distinguish our holding in Veith." I just thought this was a remarkable candid admission from the South Dakota Supreme Court.

The decision was unanimous and I think it is hard to argue with the result because every medical malpractice plaintiff has the right to have a jury consider what the malpractice law actually is. That said, I feel for the doctor who received a verdict and now must go through the entire process all over again. Finding for the plaintiff is the lesser injustice but it is intellectually dishonest to think that the jury in this case likely would have found medical malpractice but for this incorrect jury instruction.

You can read the entire opinion here.

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Posted In: Medical Malpractice , South Dakota

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The San Jose Mercury News has an article on tort reform in Nevada. The story profiles the a man who cannot find a lawyer because of Nevada's cap of $350,000 in pain and suffering (noneconomic) damages in medical malpractice lawsuits in Nevada.

What is almost as bad is Nevada's statute of limitations in medical malpractice cases which has been reduced to 1 year.

The Mercury News points out that the median salaries for general surgeons in this area of the country are $292,000, according to Salary.Com, compared with $235,000 for OB-GYNs and $158,000 for family practitioners. Which indirectly states the obvious: why are we sacrificing justice so doctors can pay less in medical malpractice insurance premiums?

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Posted In: Medical Malpractice , Nevada

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Max Myers' Washington Injury Lawyer Blog report on a $4.2 million verdict in King County jury in a birth injury case.

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Posted In: Medical Malpractice , Washington

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The Mississippi Supreme Court last week affirmed a $4 million in compensatory damage award in the case of Carthage woman who died from a lethal dose of painkillers after being misdiagnosed with pancreatic cancer. Plaintiff's decedent had been given large volumes of the painkiller Dilaudid while she was at a hospice. Incredibly, the woman's autopsy showed that the woman never had cancer in the first place. The court also dismissed $500,000 punitive damages against the medical director of the hospice at the time of the incident.

The hospice in this case tendered their $1 million policy before trial. The medical malpractice case proceeded against the doctor who ordered the medication. The doctor's defense at the malpractice trial was that patients at hospices often need high dosages of medication because they build up tolerance to the drug that takes away their pain. I appreciate this argument but there has to be a balance between giving people the medication they need and not killing them. Did the doctor in this case really try to find that balance? Certainly, this Mississippi jury in this medical malpractice lawsuit did not believe that the doctor sought that balance.

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Posted In: Medical Malpractice , Mississippi

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A Crawford County, Wisconsin jury awared a brain damaged child and his family $11.4 million last week after a three-week medcial malpractice trial.

The article I have read did not break down the economic versus non-economic damages of the award. Wisconsin has a cap on pain and suffering damages in medical malpractice cases of $750,000.

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Posted In: Medical Malpractice , Wisconsin

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Newsday reports that a New York jury awarded a woman $10.7 million in a medical malpractice case against a hospital in Queens. The woman became partially paralyzed after waiting two hours for a brain scan at a Queens hospital. The jury found the woman was cleared for a brain scan two hours before she got one. The purpose of the test was intended to check for bleeding.
The Plaintiff lapsed into a coma in the emergency room less than an hour after the scan. The Plaintiff is now in a wheelchair.

New York's brand of tort reform caps the fees of New York medical malpractice lawyers as opposed to the award to the malpractice victim. In the end, the real loser is medical malpractice victims because lawyers will not take their case because the risking potentially hundreds of thousands of dollars is not worth the risk (most medical malpractice lawyers front the costs and the victim is not obligated to pay the monies back if there is no recovery). But this case certainly did not fall into that category and is one of the few that actually meets the goals of this otherwise warped New York medical malpractice statute.

Jurors found New York Hospital Medical Center of Queens was negligent in caring for Candida Diego after she fractured her skull in a fall in September 2004. A spokeswoman says the hospital doesn't believe it is liable for the 71-year-old's condition and is appealing the Oct. 3 decision awarding her $10.7 million.

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Posted In: Medical Malpractice , New York

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A Kentucky jury awarded $3 million to a woman in a medical malpractice case against a doctor who it found improperly attaching a hose that helps pump blood and oxygen during relatively routine heart surgery. A hospital co-defendant had already settled with the Plaintiff.

The total verdict was The total verdict was $9,864,175.78 but the jury found the doctor to 31% responsible.

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Posted In: Kentucky , Medical Malpractice

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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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Posted In: Medical Malpractice , Oregon

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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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Posted In: Kentucky , Medical Malpractice

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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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Posted In: Medical Malpractice , Minnesota

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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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Posted In: Illinois , Medical Malpractice

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Piedmont Medical Center, the hosptial of choice for many South Carolina residents living in York County, Chester County and Lancaster County settled a wrongful death medical malpractice lawsuit that was set to go to trial next month. According to Rock Hill Herald, a woman had ear surgery and went to the emergency room at Piedmont Medical Center two days laster complaining of numbness in her left leg. The lawsuit contends that a doctor failed to order a blood test that would have properly diagnosed her condition (I'm not sure exactly what the condition was). Unfortunately, the woman slipped into a coma and died. Her family broght a wrongful death medical malpractice lawsuit against the doctor, the emergency room group at the hosptial, and Piedmont. The bulk settlement, which was in excess of $1.2 million, was paid by the hosptial.

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Posted In: Medical Malpractice , South Carolina

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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."

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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.

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Posted In: Medical Malpractice , Ohio

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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.

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Posted In: Medical Malpractice , West Virginia

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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.

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Posted In: Medical Malpractice , Utah

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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.

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Posted In: Alabama , Alaska , Arizona , Arkansas , California , Colorado , Connecticut , Delaware , Florida , Georgia , Hawaii , Idaho , Illinois , Indiana , Iowa , Kansas , Kentucky , Louisiana , Maine , Maryland , Massachusetts , Medical Malpractice , Michigan , Minnesota , Mississippi , Missouri , Montana , Nebraska , Nevada , New Hampshire , New Jersey , New Mexico , New York , North Carolina , North Dakota , Ohio , Oklahoma , Oregon , Pennsylvania , Product Liability , Puerto Rico , Rhode Island , South Carolina , South Dakota , Tennessee , Texas , Utah , Vermont , Virginia , Washington , Washington DC , West Virginia , Wisconsin , Wyoming

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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.

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Posted In: Kentucky , Medical Malpractice , Missouri , Nebraska , New York

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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.

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Posted In: Car Accidents , Medical Malpractice , New York , Product Liability , Truck Accidents

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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.

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Posted In: Medical Malpractice , North Dakota

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Medical malpractice lawyers in Tennessee will, as of October 1, 2008, need to get a medical expert to certify that the doctor committed medical malpractice to a reasonable degree of medcial probability.

I cannot imagne why Tennessee medical malpractice lawyers would mind this new rule. Good malpractice lawyers get a doctor on board from the beginning anyway. This rule does what it claims to do: eliminate - albeit a small number - of medical malpractice claims without merit.

Interestingly, Senate Republican Leader Mark Norris who sponsored the legislation.claims that four out of five malpractice suits in Tennessee are frivolous. This claim is frivolous and defies any understanding of the economic realities facing medical malpractice lawyer in Tennessee or anywhere in the country and any meaningful study that has been done on the subject.

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Posted In: Medical Malpractice , Tennessee

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Washington medical malpractice lawyers filed a lawsuit against the University of Washington medical center alleging that staff doctors committed malpractice by failing to releasing a suicidal patient. Plaintiff's medical malpractice complaint, according to the Seattle Post, states that the hospital staff negligently released the student in spite of the fact that he was hospitalized for cutting his own wrists and said that he had thoughts of committing suicide by jumping from a bridge or building. The student died two days later after jumping from 16th floor of an office.

From the medical malpractice lawyers' perspective, these are, on their face, pretty good facts for a suicide/keep hospitalized case. But suicide malpractice cases are very complicated and a full reading of the plaintiff’s decedent's medical records would be required to know if this is a viable medical malpractice case. One this we know already: it is an awful tragedy that could have been avoided. Whether that rises to negligence to the hospital is an entirely different question.

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Posted In: Medical Malpractice , Washington

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The new Maryland Medical Malpractice Attorney Blog has a post on medical doctors in Florida not having medical malpractice insurance. This is considered to be a concern because patients do not have protection if their doctor commits medical malpractice. Of course, in states like Texas, where caps on economic damages discourage 95% of meritorious claims, it seems ironic that the state is putting risks on patients that are almost universally decried as risky to patients. It is a bad thing for doctors to risk medical malpractice victims' ability to recover but okay if the state does the very same thing?

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Posted In: Florida , Maryland , Medical Malpractice , Texas

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The Maryland Injury Lawyer Blog reports that the Massachusetts Supreme Judicial Court - Massachusetts' highest court - ruled last week that doctors can be held liable for medical malpractice that reduces a patient's chance of survival even if the patient's chances of recovery were already below 50 percent.

Huge ruling for malpractice victims that recognizes that people are making great sacrifices just to add a few percentage points to their chances of living and living well (working out, eating right, taking medications, etc.) and the law should recognized that a 49% increased chance of dying is a harm by any measure.

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Posted In: Massachusetts , Medical Malpractice

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The North Carolina Medical Board voted on Wednesday to modify its grand proposal for posting medical malpractice settlement data online according to the Triangle Business Journal reports.
Now, the North Carolina medical board will post only malpractice settlements of more than $25,000 and will post verdicts only since 2007.

I have more of a problem with the latter change than the former. Doctors in North Carolina protest that many medical malpractice settlements of more than $25,000 are "nuisance cases" and could give health care consumers the false impression that they were settled because of substandard care.

I don't entirely agree because some doctors only deal with smaller injury issues but it is still something a patient is going to want to know about a doctor. Moreover, smart medical malpractice insurance companies don't settle nuisance cases. All of that said, there are reasonable arguments in response to my "reasonable medical malpractice insurers shouldn't settle claims that are not strong" argument.

With respect the latter change, I can't see the point if the end game is disclosure.

So personal injury lawyers in North Carolina and elsewhere are not accused of being hypocrites, we should push for state local bar associations to provide the same information to the public about lawyers.

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Posted In: Medical Malpractice , North Carolina

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The Florida Palm Beach Post writes an article on the risks for current and future doctors associated with posting revealing information on social networking sites such as Facebook and MySpace.

The article states that there is “something unsettling when you learn your doctor was a hero at ‘keg stands’ or a member of ‘Physicians looking for trophy wives in training.’"
I don’t really agree. I don’t think people are appalled to learn that someone drank alcohol in graduate school or are unnerved by membership in Physicians looking for trophy wives in training.” (As to the latter, this is why many nerdy guys go to medical school in the first place. If they can earn these spoils, more power to them.)

Bizarrely, the University of Florida actually did a study that – more bizarrely – that was published in Journal of General Internal Medicine. The authors examined the Facebook pages of 362 medical students and found information that some faculty members believe is inappropriate for future doctors.

Sports fans know that this time a year is slow for interesting sports development which is why helicopters are flying over Green Bay Packers’ quarterback Brett Farve’s house monitoring his every move as he considers a comeback. Does medicine have slow months in the summer as well? Couldn’t the Journal of General Internal Medicine, a heavyweight in medical literature, find something a little more important to publish about this month?

But the most troubling part of the article I think was a comment attributed to co-author Lindsay Acheson Thompson, an assistant professor of general pediatrics at the University of Florida College of Medicine that if a doctor gets sued for medical malpractice, a drunken Facebook photo from a college frat party could be used as evidence of a drinking problem, even if there is none.

There is not a court in the country that would admit such evidence. And the suggestion that this is a risk makes a mockery of civil justice in medical malpractice cases.

In an unrelated article on social networking sites, Karen Barth Menzies, a very well respected California lawyer who has had a lot of success in pharmaceutical cases, write an interesting article in Trial, the AAJ journal, about the perils and possibilities of online social networks.

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Posted In: Florida , Medical Malpractice

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The Alabama Supreme Court has decided three medical malpractice cases in the last few months: Giles v. Brookwood Health Services, Weber v. Freeman, and Panayiotou v. Johnson. All three were decided in favor of the defendant doctor. All three take the decision as to who was at fault for the plaintiffs’ injuries/death out of the hands of the jury. I thought the Alabama medical malpractice lawyers in all three cases made quality arguments that the cases should go to a jury.

Giles was a complicated case involving three defendants. What I found frustrating about the opinion is that the court essentially told the Plaintiff’s expert that “you really say what you think you said” about the standard of care. Why take this kind of medical malpractice case out of a jury's hands?

Weber involved a nice Alabama rule to allow medical malpractice lawyers to name fictional defendants when the lawyer does not know who the real defendants are. Alabama Rule 9(h), Ala. R. Civ. P., provides:

"When a party is ignorant of the name of an opposing party and so alleges in the party's pleading, the opposing party may be designated by any name, and when that party's true name is discovered, the process and all pleadings and proceedings in the action may be amended by substituting the true name."

Great rule. So the question in the case hinged on whether Plaintiff’s medical malpractice lawyer was “ignorant" of the identity of two of the defendants.

The Plaintiff’s lawyer argued that the substitution should be permitted, because she says when she filed her original complaint, she was unaware of the hospitals’ protocol requiring radiologists to notify emergency-room personnel if they discovered a life-threatening condition in a patient who had left the emergency room. But the court said the lawyers were not "ignorant" of a relationship that gave rise to a duty and that they knew that the identity of the health care providers. Accordingly, given the facts of this case, there was a reasonable, good-faith basis for counsel to have named the doctor in the original complaint and the lawyer’s failure to do so fatally bars the medical malpractice claim.

That’s cutting it real thin, particularly when the Alabama court went in a different direction one year before in Ex parte Bowman which arguably was factually similar. These lawyers did the right thing not suing everyone in sight and this is the thanks that they get.

In Panayiotou, the Alabama court overruled the Mobile Circuit Court in finding that a doctor did not have the necessary subspecialty to offer expert opinions. This is an awful ruling for two reasons. First, as the dissent points out, the plaintiff’s expert had experience similar to or greater than the defendant doctor. Doesn’t this count for something? Even more unfairly, the Alabama court is clearly making new Alabama law. Fine. But is it fair to spring a new rule on the Plaintiff in this case? Wouldn’t justice remand to the trial court with instructions to allow Plaintiff’s lawyer to find a new expert who meets this new standard?

Alabama, famously called a “judicial hellhole,” has taken a lot of heat by tort reform advocates Are these judges, elected by the voters, responding to this pressure and the pressure from campaign contributors who support insurance companies? Who knows? But I can tell you I think they made unjust calls in all three of these cases.

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Posted In: Alabama , Medical Malpractice

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In Brockington v. Grimstead, 176 Md. App. 327 (2007), the Maryland Court of Special Appeals considers a bizarre set of facts involving juror deliberations. The underlying action is a Maryland medical malpractice case in Baltimore tried before now retired Judge Thomas E. Noel for failure to diagnose cancer. The jury awarded $4,414,195, including $ 3,000,000 for non-economic damages, or $1,959,195 once the award was reduced consistent with the cap on non-economic damages.

The issue on appeal involved the judge’s decision to include alternates in the jury room. Judge Noel, over strenuous objection from the plaintiff’s medical malpractice lawyer, but with approval from the doctor’s lawyer, seated for deliberations six regular jurors and two alternates who were instructed to remain silent during deliberations. Later, when two ostensibly pro-defendant jurors backed off the jury, the defendant’s malpractice lawyer flip flopped and withdrew his consent to the substitution, an objection he apparently repeated about 5 million times over the course of the deliberations.

The issue was whether the defendant’s malpractice lawyer waived his right to complain when he agreed to let the alternate jurors sit in on the deliberations. The Plaintiff argued that the substitution of an alternate juror for a regular juror is forbidden once the regular jurors have retired to deliberate. In other words, defendant’s malpractice lawyer cannot un-ring the bell by withdrawing his consent when the logical conclusion of his agreement did not go his way. Plaintiff’s attorney further contended that because there was consent to the alternate process, the trial court's rulings should be evaluated for abuse of discretion, not the obvious legal error.

The Maryland Court of Appeals will be hearing the appeal of this case later this year. I find it difficult to believe that this lawyer did not waive his right to complaint when he consented to this procedure that admittedly violated the Maryland Rules. We will see what the Court of Appeals does with it.

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Posted In: Maryland , Medical Malpractice

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The Maryland Injury Lawyer Blog offers one view of a recent Kentucky Supreme Court medical malpractice opinion. The Kentucky Tort and Insuarnce Journal takes a different view.

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Posted In: Kentucky , Medical Malpractice

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The Pennsylvania plan to help doctors pay their medical malpractice insurance premiums is on hold in the Pennsylvania legislature. The five-year, $1 billion subsidy lapsed this year when Republicans opposed a Democratic initiative to use the surplus from the malpractice subsidy to expand health care insurance for uninsured adults. The delay in renewing the malpractice subsidy is Governor Rendell refusal to renew the medical malpractice subsidy absent a global deal on the health care plan.

The subsidy works in Pennsylvania largely because the revenue source is a 25 cent tax on cigarettes. Accordingly, most people are not bitter that they are subsidizing rich doctors’ malpractice insurance because most people do not smoke. Of course, that money could also be going to education, tax breaks, and a host of other worthy causes. I’m not opposing the subsidy, I’m just pointing out its slick political package.

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

Posted In: Medical Malpractice , Pennsylvania

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