Accident and Injury Lawyer Blog

A Minnesota neurosurgeon who won a defense verdict earlier this month just settled another malpractice claim.

The Pareto Principle (or 80-20 rule) says that 80% of the effects come from 20% of the causes. This rule applies with greater force with doctors who commit malpractice. This neurosurgeon is a clear example: he has had nine medical malpractice cases filed against him during his time at St. Luke’s Hospital in Duluth, Minnesota. He has won some jury trials - malpractice cases are tough - but most of the suits against him have settled out of court.

This doctor, who I don't name because this blog generally does not name names, does not get a break. He has another malpractice trial coming up in November.

Hello Accident Injury Lawyer Blog. I'm back.

I just got back from vacation and then a trial in Baltimore, Maryland. My partner Laura Zois and I won a $537,000 verdict for our client in a slip and fall case in a Baltimore County school. It does not match the $2.5 million verdict awarded to our clients last week in Rod Gaston's wrongful death medical malpractice case but it is still a good 10 days for Miller & Zois clients.

I'll write more about our trial later and try to put some of the samples from the trial in the help center on our website. We may even order the transcript to post on line because it includes so much of the David Ball/Don Keenan reptile themes that I have talked about on this blog.

This was a really fun case to try and it reminds me of why we do what we do. But I'm glad to be back to my usual routine which includes regularly posting to this blog.

A medical malpractice lawsuit on behalf of a Florida veteran will begin this week against the Miami Veterans’ Administration hospital. In the lawsuit, the plaintiff claims he contracted hepatitis C from an unclean medical device used in a 2007 colonoscopy. This may be the bellwether trial on this issue: there are a dozen similar lawsuits that have been filed in Florida and more have been filed in Tennessee. (Certainly, Tennessee - even with their new malpractice restrictions - is a more hospitable place than Florida for medical malpractice lawsuits.)

Every state has different statute of limitations. While the exceptions to the statute of limitations would require you to burn down a few forests, these are the general default statute of limitations that apply in the vast majority - did I make clear not all? Not all! - of personal injury accident cases in all 50 states and the District of Columbia. I have tried to find a hyperlink pinpoint site for each state's statute of limitations statute.

We have made some incredible steps forward in fighting heart disease in recent years that have done wonderful - life changing - things for cardiac patients. But to the man with a hammer, sometimes everything is a nail. Are some cardiac surgeons a hammer and stents are the nail?

Researchers looked at stents over the last few years - more than 500,000 throughout the country in thousands of hospitals. The study found emergency stents were almost invariably appropriate - 98% survived retrospective analysis. Of those classified as non-emergency - maybe "elective" is a fair word - only 50% were deemed “appropriate,” 38% “uncertain” and 12% “inappropriate,” according to the study. Most of the inappropriate procedures were done on patients with low-risk heart conditions, a la the St. Joe's Hospital debacle in Maryland.

What does this mean? It means that too many doctors are using stents as the first line of defense when there are safer and less invasive treatments available. You can't help but point out the obvious: a lot of money is being made putting in stents. The minority of doctors that are motivated by this are now on notice that people are paying attention to this issue.

In Wilson v. State Farm, a U.S. District Court in Kentucky found that an insurance carrier did not act in "bad faith" by delaying payment of the settlement in a car accident case pending plaintiff's lawyer squaring away a Medicare lien.

In Wilson, the plaintiff brought an uninsured motorist claim and the insured tendered the policy of $50,000. Plaintiff said, "Okay, we settled the case, pay me." State Farm withheld payment, worried that it would be responsible for the Plaintiff's Medicare lien. Plaintiffs' lawyers deal with this issue every day.

Plaintiff's lawyer understood State Farm's position and tried to marry the two, demanding that State Farm put the settlement in an escrow account from which Medicare's conditional payment amount would be payable. The plaintiff (and probably his lawyer, I don't know) also promised to hold the insurer harmless with respect to any potential claim asserted by Medicare.

State Farm's answer was a solution that was offered - and rejected - to me in a case just last Friday: putting Medicare on the check. Getting them to sign that check would probably take literally an Act of Congress.

Continue reading "State Farm Holds Back Settlement Pending Medicare Lien" »

I have a five part (so far) review of portions of David Ball's book on Damages:

• Part 1 (opening statement)
• Part 2 (closing statement)
• Part 3 (cross-examination of defense experts)
• Part 4 (dealing with prejudices about your client)
• Part 5 (who do you call as your first witness?)

I've written a lot about how personal injury lawyers have to and should be dealing with medical and other liens. When I go back and look at the web traffic generated by these posts, it typically gets low page views, probably from the same 20 lawyers that read all of our nitty gritty details on handling personal injury cases stuff.

Not so with Haro v. Sebelius, a new opinion from Arizona that may dramatically alter the relationship between Medicare (and Medicaid but I lump Medicaid into Medicare for grammatical ease). I think the big difference in the impact of Haro v. Sebelius is something car accident and medical malpractice lawyers are feeling right now.

Here's the deal in a nutshell. Haro v. Sebelius is a lawsuit filed by two Medicare beneficiaries for whom Medicare benefits were paid for treatment that was ostensibly needed as the result of a car accident. Interestingly, the car accident lawyer in this underlying case is also a named plaintiff.

Continue reading "Haro v. Sebelius: Medicare Liens" »

American Medical News writes an article about an important topic: how doctors emotionally deal with malpractice lawsuits. Let's be honest, medical malpractice lawyers on both sides of the "v" largely ignore this issue.

Continue reading "Doctors and Malpractice: The Human Toll on Doctors" »

The U.S. House of Representatives Energy and Commerce Committee passed a bill yesterday 30-20 that would cap non-economic damages in medical malpractice cases at $250,000.

One Republican, Rep. Lee Terry, agreed with me that core Republican values do not support this law because the bill is not consistent with the Commerce Clause, and the Tenth Amendment, the guarantees of equal protection and due process, and the right to a jury trial. (Actually, he just kinda says "state rights" but it sounded better that way.) "This preempts probably every (law) but California's and Texas' medical liability laws, so it is very clear that it violates states' rights," Terry said in voting against the bill.

American Tort Reform Association offers this genuinely tortured rationale of why a federal malpractice cap does not infringe on the Constitution. The funny thing is this paper cites law that you know conservatives fought tooth and nail to prevent. The bill itself also makes an effort to fight constitutional attack by putting some states' rights mumbo jumbo in the bill. Painfully transparent.

The bill also has a cute little section to dramatically decrease attorneys' fees in medical malpractice cases. This would be to discourage the six remaining lawyers still handling malpractice cases after this bill was passed.

States rights is a foundational principle... unless there is a good reason to leave it on the curb. You know other Republicans agreed with Terry but did not have the guts to follow their conviction for fear of being filleted in the primaries by someone running to their right.

Why is the House doing this? Because elections have consequences. These people were elected to do just this. They ran on this "stick it to the victim" platform. No one can be surprised.

The Mississippi Supreme Court reversed a directed verdict for a hospital in a nursing medical malpractice action in which the plaintiff suffered IV infiltration - leakage of fluid from an IV into the patient's tissues from an IV line - and burn injuries.

The directed verdict from the trial court struck Plaintiffs' expert from testifying as to the standard of care even though the expert had already been accepted as an expert on the nursing care given by the hospital. Had the expert been permitted to testify, she would have testified as to the standard of care for IV infiltrations and that the hospital breached that standard.

The Mississippi high court also make a good call for plaintiffs on the question of the collateral source set off when the amount of the liens/bills have been reduced. I analyzed an Indiana case that went the other way here.

A Montana jury awarded $1.7 million in a wrongful death misdiagnosis case. Plaintiffs' medical malpractice lawsuit alleged that a Billings internal medicine doctor misdiagnosed their husband/father's heart valve condition. Plaintiffs claimed - and the jury agreed - that the doctor should have diagnosed the condition and referred the man to a specialist. The man died a year after seeing the doctor. Plaintiffs' theory of the case was that had the diagnosis been made in a timely fashion as the ordinary, prudent doctor would have done, the death could have been avoided with a heart valve transplant.

I don't know about the nuance of facts. That's a tough claim, the "could have gotten a heart valve transplant" case. But plaintiffs' malpractice lawyers made the claim stick.

Medical malpractice is a hot issue in Montana as its legislature considers various malpractice related bills.

What struck me in this article is this quote:

Robert Stears, a diagnostic radiologist from Billings, said he gets calls from doctors far too often that end with "Bob I'm sorry I had to order this test. I know it's going to be normal, but you know how it is."
Stears said covering bases in his line of work often means exposing patients to undue radiation for tests that have a one-in-a-thousand probability of finding an illness.

So our friend Bob agrees to expose patients to undue radiation because he wants to help the referring doctor cover himself to avoid a medical malpractice lawsuit.

Bob, do you realize what you are admitting here? Other than me, does anybody?

The Minnesota Court of Appeals decided an interesting medical malpractice case addressing the bar plaintiffs’ malpractice lawyers must clear when presenting a certificate of merit that will survive summary judgment.

Continue reading "Certificate of Merit Requirements in Malpractice Cases" »

Medical malpractice cases in Ohio are on the rise. A little. The Ohio Department of Insurance released its 2009 data (ah, guys, it is 2011) indicating that after four years of decline, medical malpractice lawsuits are up from 2008 in Ohio.

The data is really interesting and can be summarized as follows: most Ohio medical malpractice cases go nowhere. More than three fourths of cases result in no settlement or verdict. Most cases that get dismissed really go nowhere: they are dismissed and/or abandoned by plaintiffs.

Of cases that did proceed, more than 90% ended in settlement. Ohio malpractice insurers are apparently largely willing to settle good cases. When the cases did go to trial, defendant doctors won more than 1 in 5 of the trials.

Only 24% of the malpractice cases resulted in an indemnity payment; the majority of the payments (almost 22%) were the result of the parties reaching a settlement. A mere 5% of the cases went to trial and ended in a verdict, and less than 1% of the cases (0.84%) resulted in a verdict for the plaintiff.

More interesting Ohio malpractice statistics:

• 7% of settlements/verdicts were over $1 million
• The physician specialties that had the most claims filed against them were (in order): internal general surgery, emergency medicine, obstetrics/gynecology, family physicians/general practitioners, radiology, orthopedic surgery, anesthesiology, cardiovascular disease specialists, neurology, and pediatrics
• Neurologists had the highest average payment: $1,530,218.
• The average wrongful death case where payment was made was $406,329.
• The highest paid average indemnity ($1,266,637) was for “permanent grave” injuries such as quadriplegia and brain damage – injuries requiring life-long care.

West Virginia medical malpractice lawyers are chasing the path set by Illinois malpractice lawyers (and trying to avoid the path of Maryland malpractice lawyers) in contesting the cap on noneconomic damages in West Virginia malpractice lawsuits.

In 1986, West Virginia enacted a cap on pain and suffering awards in malpractice cases. The cap was originally set at $1 million, but has been knocked back to $250,000 for most malpractice lawsuits and $500,000 for the most severe claims. Additionally, the cap applies no matter how many plaintiffs there are, so multiple plaintiffs have to split the award, which can be no more than $500,000.

After their $1.5 million verdict was reduced in a malpractice claim involving rhabdomyolysis, a West Virginia couple is making the same case that was argued successfully in Illinois and unsuccessfully in Maryland: the cap is unconstitutional because it deprives plaintiffs of their right to a jury trial.

The Washington Post reports that medical malpractice lawyers and doctors have agreed to support legislation that would raise the cap in medical malpractice lawsuits $50,000 each year. Virginia has a hard cap in medical malpractice cases of $2 million.

There has been a 61% decrease in medical malpractice insurance payouts in Pennsylvania over the last 7 years, according to Pennsylvania Governor Ed Rendell.

According to the governor, this has lead to an 18% decrease in malpractice premiums. I'm trying to figure out why a 61% drop in payouts leads to an 18% decrease in premiums. Where is all of the money going? In any event, we still have a doctor shortage in much of Pennsylvania.

Why aren't doctors fleeing to Pennsylvania? If they are not going to Pennsylvania, where do they go? The top 5 highest paying jobs in the United States are doctors? Are they quitting medicine and becoming real estate agents? Have you ever met a doctor that just stopped practicing medicine and took up something else?

Look, doctors can retire early and work less hours. I'm oversimplifying a bit. But the "doctors are fleeing because of malpractice premiums" proponents seem to me to be the man with a hammer. Everything is a nail.

Ted Frank at Point of Law, an interesting blog I read regularly, suggested in a recent post that doctors are fleeing Illinois because the Illinois high court struck down caps on noneconomic damages in Illinois malpractice cases.

The link Mr. Frank provides underscores this point:

One way to retain new doctors is to help them find jobs in Illinois. The state has a healthy physician job market, but many new graduates don’t know where to look.

Oops. That is saying that they don't know how to find jobs. This is a little different than fleeing to avoid uncapped noneconomic damages. "A healthy physician job market." It sounds like the better answer to this crisis is Monster.com.

There is zero evidence in the article summarizing the study (the link to the study itself is broken) that malpractice premiums caused by the removal of caps on noneconomic damages has caused a single doctor to leave Illinois. I can't even find anything to indicate the premiums have risen.

Moreover, who exactly are these doctors who are packing their bags to leave because of a theoretical possibility that malpractice premiums may increase? How much do they earn now? I have to tell you, I'm not so sure I want a doctor that came to Maryland because he is fleeing another jurisdiction because he does not like the litigation environment. This is probably not a doctor who is swimming with prior client referrals.

There is no question that medical malpractice premiums in Illinois are higher than in other states. I bet you will also find that doctors in Illinois make more money than doctors in surrounding states. Some states are going to have higher insurance premiums than other states. Illinois is a relatively densely populated state. What city in the country do you think has the most family physicians, for example? Chicago, Illinois. If doctors start fleeing Chicago to go somewhere else, this might not be all together a bad thing for the country.

A Virginia woman's family has filed a wrongful death lawsuit against the surgeon who caused the woman to abruptly suffer "massive blood loss" as a result of having her intestine and a blood vessel cut during gallbladder surgery. Reportedly, the doctor admitted to the family that he cut the woman's intestine and blood vessel during the lap chole surgery.

Two of our malpractice attorneys, Laura Zois and Rod Gaston, tried a lap chole (gallbladder surgery) case earlier this summer and won a $1.1 million verdict for our client. Our case involved injury to the common bile duct as opposed to the blood vessel and intestine in this case, but it is the same idea. Look where you are cutting before you cut. One potential complication in this case: the woman was on heavy anti-coagulant therapy, making her more vulnerable to bleeds.

• Article on the case
• Lap chole cases generally
• >News article on our recent lap chole verdict
• Malpractice cases generally
• Medical Malpractice Attorney Blog

If you Google "unnecessary heart stents" most of the searches come up discussing the stent debacle at St. Joseph's Hospital in Maryland. But Maryland might just be the tipping point. The same health care system with the same financial incentives for doctors for using heart stents exists throughout the country. I suspect unnecessary stent medical malpractice lawsuits are going to be the next wave of malpractice lawsuits. In many jurisdictions, although I suspect not in Maryland when all is said and done, there is going to be a great case for punitive damages.

Stent lawsuits in jurisdictions with punitive damages involving a hospital systematically providing unnecessary heart stents may be big cases. Punitive damage claims against individual doctors are typically of limited utility because the doctors have limited assets - relatively speaking - and the insurance policies do not cover intentional torts. Obviously, hospitals have more insurance and deeper pockets.