November 18, 2010

Quote of the Day

"I don’t think medical malpractice reform is going to save any money — and even in this puzzle it’s only $13 billion over the next 25 years. But every time we start talking about health care costs there’s this shrieking about malpractice suits, and it just cuts off the conversation and gives people who don’t want to do anything an easy out."

-Gail Collins in the New York Times

June 9, 2010

Average Medical Malpractice Award in Maryland

According to Washingtonian, the average medical malpractice award in Maryland is $319,977, which is approximately $35,000 more than the national average. The average medical liability premium for specialists is $100,625, compared with the national average of $65,489. Not noted: just how much the average specialist makes in a year. (Hint: it is a lot.)

The article does not define award. I assume it means the settlement or verdict.

February 9, 2010

Darrell Issa and Malpractice Reform

The Huffington Post reports that Congressman Darrell Issa sent a statement to reporters headlined: "First Question for President Obama: Did You Lie About Moving Forward on Malpractice Reform?"

All of which begs the question: who is Darrell Issa? Honestly, he sounds made up. On a multiple choice question, I would have guessed American Idol contestant. But certainly I would get the question right now and I'll remember him as the guy who distorted what the President said on medical malpractice.

This congressman is in favor of ignoring the independence of the judiciary because he thinks malpractice reform is more important than upholding the separation of powers that I'm sure he otherwise believes is sacrosanct. I disagree for lots of reasons, but people smarter than I believe we need malpractice reform so I'm not attacking the view. But does anyone think the President of the United States actually lied because he promised to support malpractice reform? You can't change the words around of what someone says - "defensive medicine" to "malpractice reform" and then accuse them of lying. Particularly if the person you are accusing is the President of the United States.

Note for the record: I took a lot of exception to President's Bush's policy. But I never thought he was a liar and I never liked the "he just doesn't care" nonsense. The temptation to make everything personal seems to be a trap too many politicians fall into regularly.

October 7, 2009

Mediations in Catastrophic Injury Cases

An article that John Bratt and I wrote has been accepted for publication in December in Trial, the flagship publication for the American Association of Justice. The article is about mediations in catastrophic personal injury cases. We finished what I hope is the final draft today.

September 24, 2009

Medical Malpractice in Context

The American Association for Justice has an ad now that I believe properly frames the medical malpractice issue in this country: the estimated 98,000 deaths from preventable medical malpractice errors is "'like two 737s crashing every day for a whole year." As the ad asks rhetorically, "Would we blame the passengers or the airlines?"

People have disputed the 98,000 number. No one really knows. But say it is half of that. Would we tolerate one 737 a day crashing?

June 19, 2009

Frederick County Settles Wrongful Death Lawsuit

The Baltimore Sun reports that Frederick County reached a $300,000 settlement in the death of a fireman who died of heatstroke in 2002 while training for a full-time position with Frederick County. His family filed a wrongful death lawsuit against the county after the 23-year old died, contending that Frederick County was responsible for the death because identifying the man heat stroke symptoms.

March 23, 2009

Medical Malpractice Lawyers Leaving Whiteford, Taylor & Preston

A group of medical malpractice lawyers from Whiteford, Taylor & Preston LLP are heading to the ever growing Hodes, Pessin & Katz P.A. in the coming weeks, according to the Maryland Daily Record this morning. At least three lawyers are leaving: Natalie C. Magdeburger and Catherine W. Steiner and of counsel Mairi Pat Maguire. Presumably, their malpractice associates will be coming with them because that is the last of Whiteford's medical malpractice group. One huge client, Johns Hopkins, has already announced it will follow and move its malpractice work to Hodes. GBMC did not comment but you can bet they are following them as well.

The Daily Record laid out the history of the attrition of that one large medical malpractice section:

Over the last two years, Whiteford has lost several other litigation partners. Ward B. Coe III, M. Natalie McSherry, Dana Petersen Moore and Stephen B. Caplis have moved, respectively, to Gallagher, Evelius & Jones LLP, Kramon & Graham P.A., Venable LLP and Setliff & Holland P.C.

The firm has also lost litigation partners James R. Chason, James F. Rosner, Francis X. Leary and Raymond L. Marshall, who formed a boutique civil defense firm bearing their names.

In another recent departure for Whiteford, business and health care lawyer William M. Davidow Jr. moved to Gordon, Feinblatt, Rothman, Hoffberger & Hollander LLC last month.

If this were 2006, I might think that Whiteford would not mind seeing these medical malpractice lawyers leave because the billing rates for a lot of their business related clients are so much higher. But now, the malpractice stepchild with their relatively low rates but steady work with clients that pay their bills like clockwork does not look quite so bad.

Whiteford laid off an undisclosed number of full-time administrative employees earlier this year so obviously they are feeling some pain. But Whiteford is a good law firm, I bet they will adjust and be ready to thrive when the market turns around.

March 3, 2009

Medical Malpractice and the Baltimore Sun: My Last Thought

I've written twice in the last week on The Baltimore Sun's position on the medical malpractice cap and the efforts in the Maryland legislature to return the malpractice cap in Maryland back to that of 2005, before MedChi - in my view - snookered the Maryland General Assembly by creating a crisis when clearly one did not exist.

The Baltimore Sun - a paper I love and continue to think is underrated - continues to interject its opinion on this issue throughout its paper. My first complaint is that they are focusing their attention on Maryland medical malpractice lawyers instead of weighing the pros and the cons of the issue.

Yesterday, The Sun continued its assault with an article on a legitimate concern about the availability of doctors in rural areas, a serious problem that rural areas have been dealing with pretty much since the advent of doctors. The story includes this passage:

Rural doctors are saddled with more than school debt. They must also deal with the same high medical malpractice insurance rates and the lower-than-average reimbursements for services that all doctors in Maryland face.

Really? The same medical malpractice premiums? Are you sure?

Southern Maryland News has a similar article about the shortage of rural doctors, profiling the ostensibly tragic story of one rural doctor forced by the “skyrocketing cost of medical malpractice insurance” to abandon her own practice and join a group practice. The reason? Her malpractice premium “recently jumped from $11,000 to $16,000 a year.” For anyone who has spent 6 minutes with a doctor and gotten a $188 bill, it is unfathomable that this additional $13.70 a day was a deal killer. But that is the nature of the medical malpractice cap argument: malpractice lawyers are the root of everything that ails the medical community. (Unless we are talking insurance reimbursements, in which case short changing insurance companies are the root of all evil.)

Continue reading "Medical Malpractice and the Baltimore Sun: My Last Thought" »

November 20, 2008

Maryland Mediators and Arbitrators in Personal Injury Cases

We added on the Miller & Zois website the internal list that our lawyers keep of arbitrators and mediators in Maryland who we believe mediate or arbitrate personal injury cases.

As we make clear, this is not a list our our recommended mediators or arbitrators, just a collection of those that are doing the work. We refer to the list if arbitrating or mediating a case so it occured to me that others might want to have the same option, be it another personal injury lawyer or even an insurance company.

September 30, 2008

Zero Offer in Maryland Malpractice Case Results in Defense Verdict

A West Virginia man sued a Frederick, Maryland doctor, alleging that he stapled his rectum shut during an operation leaving the 64 year-old man with permanent bowel problems. The Plaintiff now experiences rectal discharge and needs to wipe himself between 12 and 15 times a day. This is a damages case with real appeal for a jury because obviously this is a life altering injury.

The doctor’s medical malpractice lawyer’s argument: his bowels were swollen shut because he was a smoker. No, really, that was the argument.

Okay, this is a case that should just settle, right? Well, the doctor makes no offer and the jury validates their offer with a defense verdict.

Plaintiff’s medical malpractice lawyer Julia A. Lodowski told the Maryland Daily Record that she was shocked at the verdict.

Granted, we did not sit on the jury so we do not have all of the evidence and we do not know the details of the defense laid out by the Defendant’s malpractice lawyers. But we do know that it sounds like a very strong case for the Plaintiff.

The moral of the story – at least the Maryland Lawyer Blog’s moral of the story – is that there is still enough of a halo effect that Maryland malpractice lawyers see and will continue to see that leads many juries to err on the side of doctors even in rather extreme cases. So malpractice victims are facing a stacked deck: a presumption the doctor did the right thing coupled with laws that slant this system in favor of doctors. There is nothing we can do about the former but we can begin to roll back the latter by fighting in our state legislatures to allow juries to award what they believe is appropriate (subject to, as always, the trial judge’s right to modify the verdict if appropriate).

Continue reading "Zero Offer in Maryland Malpractice Case Results in Defense Verdict" »

August 13, 2008

Medicare Fraud

Senate Republicans have begun “a crusade" against Medicare fraud, estimating that fraud accounts for 20%, or about $60 billion, of the annual Medicare budget.

I’m always a little wary of the notion that solving fraud problems is going to have a real impact on the budget. It is not that I don’t believe it is a problem but I really don’t trust government’s ability to root out the fraud on a level that will make a significant fiscal impact. The basis for my opinion is history, not withstanding the bold use of the word “crusade.”

My hopes for eliminating some Medicare fraud are much less ambitious. It is clear right now that Medicare is not where it should be on reimbursement rates. Increasingly, Maryland doctors are refusing to take Medicare. In fact, it seems that Maryland doctors are taking their gun sites off Maryland medical malpractice lawyers and are focusing more on health insurers and Medicare. If we could eliminate some of the fraud, maybe we could lift reimbursement rates enough to satisfy Maryland doctors who are working at arguably discount rates.

March 24, 2008

Some Wisdom from West Virginia: The Death of Ad Damnum Clauses

Legislation is pending in West Virginia that would prohibit lawyers from seeking damages in personal injury and wrongful death cases in plaintiffs’ complaint. This bill is receiving universal support from everyone in West Virginia. The legislation passed unanimously in both the West Virginia House and Senate. West Virginia Governor Joe Manchin received the bill last week and it has received support of plaintiffs’ lawyers and defense lawyers alike. West Virginia already has a similar law in medical malpractice cases.

In the Maryland Daily Record last week, I read an article about a police brutality or false arrest case (I can’t remember which) in Baltimore. Plaintiffs sued the state of Maryland for $115 million. So, of course, the $115 million was in the title of the article. This is the exact problem that would be eliminated.

February 8, 2008

Emergency Room Doctor Making Up Outrageous Medical Malpractice Claims

I found a new blog called ER Stories - Shocking, Hilarious, Bizarre, and Sad Tales from the ER. It is an anonymously written blog by an emergency room doctor.

I have a bit of a problem assessing the credibility of someone who refuses to identify themselves. Does the American Medical Association take a position on this? I also notice the site has a lot of prominently placed Google ads. To borrow the old Seinfeld line, “Not that there is anything wrong with it.” But it is worth noting.

Anyway, one of his leitmotifs is frivolous medical malpractice cases, as evidenced by his post called “What a Wonderful Legal System We Have.” He tells an incredible story of a patient who came in with a fractured ankle but ran out of the hospital to flee police. After getting arrested a few days later, he gets treatment and then brought a medical malpractice claim against the hospital, which the hospital settled for $10,000.

Doc… I’m not quite sure how to… say this. Wait, I got it. You are a liar. This story you are telling? This never happened, at least not with these material facts. I guarantee it. This is right up there with the guy who put his Winnebago on cruise control and went back and made himself a sandwich and then sued for millions.

Doc, instead of making $1 a click on Google Ad words I have a way for you to make more money faster. Prove this happened and I’ll send you a check for $1,000.

January 8, 2008

Hillary Clinton and Barack Obama on Tort Reform

With all due respect to fellow trial lawyer John Edwards, the Democratic race seems to be all about Hillary Clinton and Barack Obama. With respect to tort reform, both seem to be on the side of allowing juries to make the call with respect to whether and how much compensation should be awarded. In fact, back in their civil days (as in civil to each other) they co-authored an article in the New England Journal of Medicine, entitled "Making Patient Safety the Centerpiece of Medical Liability Reform."

Still, I suspect Hillary Clinton is the safer play for trial lawyers. Obama has taken a mild shot at trial lawyers in the past. Campaigning for the Senate in 2004, he was quoted as saying, "Anyone who denies there's a crisis with medical malpractice is probably a trial lawyer." But, obviously, taking a shot at medical malpractice lawyers is just smart politics and I don't think this changes his position that juries should have the authority to determine who gets what without intervention from statutes or anything else.

Perhaps more tellign when comparing the two candidates, Senator Obama was among the 18 of 44 democratic senators voting for the Class Action Reform Act. In contrast, Senator Clinton (and Senator Edwards), voted against the Act, believing that it would deny a remedies for many in their local state courts.

Who am I voting for? While I think Hillary Clinton may be a marginally safer choice for trial lawyers, the promise - and that is all it is, just hope - that Obama might be a bridge to end the partisan divide that makes progress so difficult.

I used the phrase "tort reform" in the title which I hate because it presumes the need for a change. I try fighting these things. For example, I always say "defense medical exam" instead of the oxymoron "defense medical exam." But with "tort reform", everyone and their mother is using it. I can't fight it anymore. Tort reform it is.

November 5, 2007

Medical Malpractice Verdict in West Virginia

The Charleston Daily Mail reports that the West Virginia Supreme Court declined to hear an appeal of a $1.7 million medical malpractice verdict against a West Virginia physician who blinded a patient during an elective surgical procedure.

This is the second article I have seen on this case. The first article was after the jury rendered its verdict. The interesting thing about the case is that the doctor’s lawyers essentially alleged that the plaintiff was faking his injury. All of the articles I have seen have said the same thing. The defendants presented 50 hours of surveillance video from a construction site, but the trial judge found the video showed, “Heckel was disabled, even though the defense omitted footage showing him struggling at such tasks as walking down steps.”

You can Google that sentence and you will find it in a number of different articles. But it makes no sense. Did the jury consider the evidence or was it inadmissible? What happened to the omitted footage? Was it destroyed? What was the practical effect of the judge’s ruling? (If anyone knows, let me know.) But the interesting thing is that that doctor’s lawyers apparently wanted to use the snippets from 50 hours of surveillance that would lead the jury to believe that he might not be blind, but wanted to omit (or delete) the evidence that showed he was blind.

It seems like this doctor’s medical malpractice lawyers had a pretty difficult time showing the doctor did not commit medical malpractice, so they took a shot at attacking the plaintiff. This usually backfires, just as it did in this medical malpractice case.

October 30, 2007

Doctor Accused of Medical Malpractice Disappears

The Arizona Republic reports that an Arizona doctor whose license was recently revoked after three people died during or after liposuction procedures has disappeared. The doctor is facing not only wrongful deathad medical malpractice cases, but is also wanted for questioning by the police.

This might spell yet another disaster for the families bringing wrongful death medical malpractice claims because the insurer may well disclaim coverage because the doctor is not cooperating with the defense. The plaintiffs' medical malpractice lawyer will argue that his absence does not practically prejudice the case because the malpractice was so clear. But this is a tough argument.

This does not happen often but there should be a means of obtaining compensation in the rare cases where this does happen.

September 5, 2007

Medical Malpractice Caps in Illinois and Maryland

Later this month, the Illinois cap on non-economic damages ($500,000 for a doctor and $1 million for a hospital) in medical malpractice cases will receive state constitutional review by a judge in infamous Cook County, Illinois.

Just like in Maryland, the political climate has changed since the medical malpractice "reform" in 2005. Medical malpractice payouts in 2006 fell even though the new law impacted only a small handful of cases that resolved in 2006. Medical malpractice insurance premiums have fallen. In Maryland, Med Mutual reportedly cut premiums by 8% in 2007. Medical malpractice lawyers told the legislatures that the insurance companies had essentially cooked the books, creating a crisis that was mostly created by low interest rates. History is bearing out this warning as premiums are falling and insurance companies’ profits are skyrocketing. I don't think anyone should begrudge the insurance companies profits (or their CEOs large salaries for that matter as many plaintiffs' lawyers wrongfully do, in my opinion). But those facts do not square up with their "sky is falling" warnings of doom.

The case on review in Cook County involves a baby with severe brain damage. Proponents of a cap argue that $500,000 (or $680,000 in Maryland) is an appropriate cap on non-economic damages for a child to go through life with a brain injury. Plaintiffs' medical malpractice lawyers and their clients, to put it mildly, strongly disagree.

August 22, 2007

Ranking Doctors

Some companies and organizations have begun using lawyer rating systems to rank lawyers. Now, doctors are being faced with the same scrutiny as some insurance companies have launched rating systems to 'assist' consumers in choosing a doctor. However, these rating systems appear to be inherently misleading since they take into account factors such as cost, which are usually not part of the criteria that the average patient uses to pick their physician. Doctors, and rightfully so I think, are enraged that cost is being used to rank their quality when cost is something that can easily be manipulated with billing codes and slightly different diagnosis classifications.

In Connecticut, a group of doctors have filed a lawsuit claiming that such rankings constitute libel, unfair trade practices and breach of contract. The lawsuit, which is seeking class-action status, asks that the rankings programs be terminated.

A similar lawsuit in Washington last year against Regence Blue Shield, which alleged defamation and deceptive business practices, was settled. As part of the settlement, the ranking system was shut down and the insurance company had to be a contribution to the state's medical association's education fund. Interestingly, the settlement did not prohibit Regence from having a ranking system, but merely made them agree that any future system would have the input of doctors and give them a system in which appeal their ranking.

I have mixed feelings on such ranking systems. While I would find it useful, on both a personal and professional level, to have a way to find out more information about physicians (whether it be as a patient or father or as a personal injury lawyer), such systems to date merely give the doctors an artifical classification such as 'elicit' or 'two stars'. If insurance companies are going to do this sort of thing, it has got to give the consumer some hard data in order to be useful.

July 17, 2007

What Are Hospital's Obligations to Weed Out Bad Doctors?

A West Virginia jury this week will consider whether a hospital negligently performed a background check on a orthopedic doctor who is the defendant in an incredible 120 medical malpractice lawsuits. Plaintiffs'medical malpractice lawyers contend that the hospital was not reasonable in failing to properly verify the doctor was fit to practice medicine.

I do not have a strong opinion on this issue. Obviously, 120 defendants need a deep pocket. This hospital is owned by Charleston Area Medical Center, which is a deep pocket. The defendant has stopped practicing medicine, has changed his name and moved out of the state. I doubt that he has insurance although the article I read did not speak to this issue.

Clearly, this doctor was not fit to practice medicine. But he was licensed by the state of West Virginia. Is it negligent to have doctor with a valid medical license working in your hospital even if a full investigation in his background would have discovered he is unfit to practice medicine? I really do not know and I would not want to be juror in that case.

I'll report back on how the jury verdict in this case.