Articles Posted in Medical Malpractice

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 a 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.

Senate Republicans have begun “a crusade” against Medicare fraud. They estimate 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 will have a real impact on the budget. Not that I don’t believe it is a problem, but I really don’t trust the 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, notwithstanding 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.

The 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. It passed unanimously in both the West Virginia House and Senate. West Virginia Governor Joe Manchin received the bill last week, and it has received the support from both 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 police brutality or false arrest case (I can’t remember which) in Baltimore. The plaintiffs sued the state of Maryland for $115 million. So, of course, the $115 million was in the article’s title. This is the exact problem that would be eliminated.

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 the 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.

With all due respect to fellow trial lawyer John Edwards, the Democratic race seems to be all about Hillary Clinton and Barack Obama. Regarding tort reform, both seem to be on the side of allowing juries to make the call regarding 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 telling 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 remedies for many in their local state courts.

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 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 several 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.  

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.

Some companies and organizations have used lawyer rating systems to rank lawyers. Now, doctors are facing 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, rightfully so, are enraged that cost is being used to rank their quality when the 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.

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

I do not have a strong opinion on this issue. Obviously, 120 defendants need a deep pocket. Charleston Area Medical Center owns this hospital and has deep pockets. The defendant stopped practicing medicine, 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 a 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 a juror in that case.