Maryland Injury and Disability Law : Washington DC Metro Injury & Disability Lawyer & Attorney : Greenberg & Bederman : Accidents, Falls, Medical Malpractice : Maryland, DC, Virginia

One of the more popular arguments among those who wish to either severely curtail or entirely eliminate the rights of patients is that if the states make it difficult for injured patients to sue doctors who make mistakes, then ultimately the quality of care will go up. This argument is made with particular fire when it comes to emergency medicine.

We can certainly understand how emergency medicine became the focal point. Emergency rooms are where serious cases are brought in, and the environment is usually chaotic. It can be difficult for emergency room physicians to make the right decision every time. But it is our contention that all medicine can be stressful and chaotic, and the fact that a medical professional is working in an emergency room or facility does not absolve this person of any responsibility when they make preventable errors.

Yet in Texas, emergency room workers are given immunity in all but name when it comes to liability for any mistakes that they might make. In order for someone who has been injured due to an emergency room mistake to be able to claim any damages in court, it must be proven that the emergency room worker meant to harm the patient. Since the odds are slim to none that any emergency room worker would admit to doing so, victims of emergency room medical malpractice in Texas now have no real recourse for malpractice injuries.

So if the argument that “less liability = more and better care” holds up, then Texas should be a prime example of high quality emergency care, right? For that matter, any state that has caps on damages and restrictions on how patients can sue doctors should have better emergency care facilities than states which have no restrictions, right?

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Somewhere in your house or apartment is something that was made by the DuPont chemical company. In fact, something on your desk was probably made by DuPont. Probably even something on your computer. Normally when you think of chemicals the first thing that pops into your head is big barrels of solvents or paint thinner. But DuPont does plastics, they do materials, they do fabrics and just about anything that you can name. DuPont doesn’t necessarily sell products as much as they sell what the products are made of.

It’s hard to believe that they are only the third largest chemical corporation in the world, considering how commonplace their products are. Nylon, Kevlar, the first synthetic rubber, Polyester and Teflon are all household names that were invented by DuPont. They are an absolute giant of not just American industry, but worldwide industry.

Being a titan of world industry does not come with zero responsibilities, however. It should be remembered that DuPont is a chemical company, and not a free range organic poultry concern. Chemicals can be dangerous in almost every step of the manufacturing process. Citizens of a town called Spelter in West Virginia found that out the hard way. DuPont ran a zinc smelter nearby which produced both slab zinc and zinc dust, and by 1971 there was a toxic waste pile that stood about 100 feet tall. The idea that this pile could exist without sickening nearby residents is unfathomable.

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Believe it or not, not everyone in the Washington, D.C. area is involved with politics. When this area is portrayed in the movies or on television, it seems like everyone has a security clearance, or that everyone works diligently for one government agency or another. Characters in D.C. based-dramas are all aides to a Senator, or they work at the Pentagon, or they wear suits and attend top secret meetings, or they wheel and deal in the backrooms of fancy restaurants.

For those of us who actually live here, we know that portrayal to be false. Most of us don’t work for the government. Most of us aren’t “operatives,” political or otherwise. On any given day, there might be legislation in the House or Senate that causes a big stir among those who actually work on Capitol Hill, but the rest of us who don’t work there rarely notice such things.

Much of the work that goes on at the Federal level involves minutia. We don’t mean that in a condescending manner. We are sure that it is necessary minutia that needs to be addressed. But if legislation passes that changes the regulation width of the Styrofoam tray in which ground beef is packaged, that hardly has an effect on the day to day life of Washingtonians, or the rest of the citizens of the country for that matter. The rest of us are worried about raising our kids, doing our jobs and paying the mortgage.

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Much is made of so-called “defensive medicine” by the politicians and organizations who advocate for tort reform. If you are unfamiliar with the concept, “defensive medicine” is what happens when medical professionals operate more out of a fear of being sued rather than simply doing what is necessary for the patient. In other words, if you come in with a sore ankle, rather than simply asking questions, maybe ordering an x-ray and then diagnosing you with a sprained ankle, the doctor will put you up in a room for the night, order a full MRI of your ankle and call in a specialist in order to give your ankle a thorough examination. They don’t want to take the chance of missing anything so they won’t get sued later.

This would all be fine and dandy except for the fact that health care is incredibly expensive. And since somebody has to pay for all of these extra tests, that burden will fall on the insurance company. So, as the premise goes, health insurance companies end up getting billed for wildly expensive procedures, which forces them to drive up the costs for everybody, which then makes the insurance companies raise their rates, and all of this is based on trial lawyers waiting to sue at the drop of a hat.

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Tort reform advocates have many bones to pick with our judicial system. By now we have all heard about “lawsuit lotteries,”“judicial hellholes,” and the miracles that non-economic damage caps are supposed to provide.  We have plenty of evidence (both anecdotal and concrete) that lawsuits are not lotteries, most of the “judicial hellholes” are simply places where corporations are not given special treatment, and that non-economic damage caps don’t help doctors or patients as much as they help medical malpractice insurance companies, who actually don’t need much help at all.

Obviously, medical malpractice insurance companies are big fans of these legal protections, and regular insurance companies and huge corporations everywhere are clamoring for protections of their own. These protections would limit the amount of punitive damages that a corporation would be forced to pay in the event that they are found guilty of gross negligence.

For those of you who don’t know, punitive damages are financial penalties assessed by the court that don’t have anything to do with the financial losses that the plaintiff suffered. In civil court cases, these damages are levied by the court when a corporation or commercial enterprise acts when the defendants’ harmful actions were considered either grossly negligent or intentional. Obviously, insurance companies and corporations do not like them, neither does the tort reform organizations. So they are working diligently, both through legislation and litigation, to have the same sort of caps put on punitive damages as there already are on non-economic damages in medical malpractice cases.

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A word on frivolous lawsuits: They exist.

Nobody in their right mind could claim that they don’t. Does everybody remember Roy Pearson, the D.C. judge who sued a dry cleaner for $54 million over a pair of lost pants? Or what about Jonathan Lee Riches? This inmate in Lexington, Kentucky who has filed over 3,800 lawsuits over the past few years. He has sued New England Patriots Coach Bill Bellichik, American Idol judge Simon Cowell (and his fiancé,) Somalian pirates, Plato, Bernie Madoff, and basically everyone who happens to garner any bit of media attention, no matter how big or small. The charges against this diverse group of defendants include “hurting my feelings” and “offending me.”

As you probably know by now, Judge Pearson’s lawsuit was not successful, and all of Mr. Riches’ suits get dismissed out of hand, as well they should have. Those suits are supremely ridiculous and a waste of time. But inevitably, these two folks serve as the poster children for tort reform groups. Their absurd (and ultimately unsuccessful) lawsuits are trotted out and given much more airtime and column inches than they deserve, mainly because corporate interests want you to believe that the vast majority of lawsuits belong in the same category as Mr. Riches or Judge Pearson’s. They are most assuredly not.

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On Wednesday night, President Obama gave a speech to a joint session of Congress in which he discussed the importance of overhauling our health care system. The timing of the speech couldn’t have been better, especially considering how contentious the debate has been over the previous month. August has been loaded with screaming at town hall meetings, protests where people are carrying guns, violent and frightening rhetoric and some pretty wild claims.

The President’s speech was a fairly concise one, at least in terms of outlining what he expected this plan to do and how much he expected it to cost. There are a few details that need to be hammered out, but the President made it clear that he is open to suggestions and negotiations.

As is the custom, the opposing party was given the opportunity to deliver a response to the President’s speech, and to deliver their side of things they chose Louisiana Congressman Charles Boustany, who offered a speech that was fairly measured in comparison to some of the protestors out there this summer, or even in comparison to some of his compatriots who were in the audience during Obama’s speech.

But what we found indicative of the Republican’s stance on health care reform was that the man they chose to deliver their rebuttal is a heart surgeon who has been sued for malpractice three times. After all, who better to articulate the Republican platform of “tort reform, tort reform and more tort reform” more than someone who would benefit greatly from it?

Dr. Boustany said during his response, “We’re grateful the president mentioned medical liability reform and we hope he’s serious,” adding: “we need to establish tough liability reform standards” and discourage “junk lawsuits.”

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The Reddest Herring in the Health Care Debate

It’s impossible to turn on the news without coming across the angry crowds at these town meetings. The national temper is certainly hot. And while we can certainly concede that there are some valid arguments to be made, we have noticed that quite a few of the arguments are based on deliberate half truths and misinformation, many of which seem to be pandering to the worst in us.

The most obvious of these would be the “death panels” argument, which essentially accuses the government of wanting to establish a policy of enforced euthanasia for the elderly and the terminally ill. There is also the rumor that health care reform will offer free medical care to illegal aliens, which is both untrue and a very convenient way to turn health care reform into a matter of race.

In comparison to these delusional rantings, some of the other arguments seem to be based on Planet Earth, but that doesn’t make them any more accurate. For instance, we are seeing more and more “Tort Reform Now!” placards showing up at these town hall meetings, and while we prefer those vastly to the signs that show President Obama with a Hitler mustache, we can say with great certainty that, as it pertains to health care, tort reform is as much of a red herring as death panels or free care to illegal aliens.

What the tort reform people are demanding is caps on medical malpractice damages, which has about as much to do with your health insurance as fire insurance has to do with drowning. Medical malpractice insurance companies have absolutely nothing to do with Aetna, Blue Cross/Blue Shield or United Healthcare. The premiums that malpractice insurers charge doctors have absolutely nothing to do with the amount that you are paying for your health care premiums, and everything to do with the malpractice insurers maintaining healthy profit margins.

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The odds are that you have never heard of a woman named Janine Sugawara. And the odds are that after a few months, her name will completely slip your mind.

But it is entirely probable that her recent lawsuit will put her in a somewhat notorious pantheon of “frivolous lawsuits,” which means that she will be given a title rather than a name by tort reform organizations. And she can expect this title to be bandied about for the rest of time.

As a bit of background, Ms. Sugawara recently filed a class action lawsuit against the Quaker Oats Company. Her gripe was that after four years of purchasing and eating Crunch Berries brand cereal, she discovered that there was no actual fruit involved.

Through the law firm that took her case, Ms. Sugawara’s intention was to collect damages not just for herself, but for everyone else who was bamboozled at the breakfast table. It should be noted the law firm that she was working with had previously filed an unsuccessful suit against the Kellogg’s corporation over the lack of actual fruit in Fruit Loops.

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Million Dollar Pants and Coffee: Two Common and Misguiding Tort Reform Examples

There is a popular misunderstanding about how our court system works.

Many people are laboring under the idea that anyone can, at any time, walk into a courthouse, sue somebody, and walk out with millions of dollars.  Any injury or slight, real or imagined, is a golden ticket that will lead to a huge payday, and all you have to do is go to court and sue.

Did you get into a fender bender? Jackpot.

Did you stub your toe on a curb when you were talking on the cell phone? Free money!

Did a waiter accidentally spill ice water on to your lap? Goodbye mortgage!

Of course, it doesn’t work like that at all, but this is the myth that tort reform organizations like to present to the general public. What they want you to believe is that every personal injury lawsuit is a bad lawsuit, all the damages are overblown, and that “greedy trial lawyers” are soaking innocent citizens, hardworking doctors and blameless businesses everywhere.

There are, of course, some lawsuits that are overblown and ridiculous which manage to actually get to the courtroom. The case about the $54 million pair of pants springs to mind.

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Barack Obama on Tort Reform
   The new government is poised to take over in a little more than a month. Hence, I thought it would be a good time to take stock of where our President-Elect stands on the tort reform debate, and what we can expect to see in the next four years on the personal injury front. As discussed in the previous article on tort reform, the term tort reform stands for legislative measures designed to limit plaintiffs’ recovery and to make it harder for individuals to bring claims against businesses in general. So, does Barack Obama support limiting recovery for personal injury claimants or does he advocate increase in the discretionary decision making power for juries and state courts?

   So far Obama has manifested mixed signs pointing in both directions. As a Senator, Obama was one of the few Democrats who voted for the Class Action Reform Act (CAFA). The Act was criticized by the Plaintiffs’ bar as hurting personal injury claimants. Perhaps this was a chance for Obama to show that he can transcend party lines. Critics claim that his votes on legal issues have been carefully designed to create an image of evenhandedness that may disappear when he is in office. They claim he voted for CAFA only after it was clear it would pass, and did so after voting for several Democratic amendments that would have gutted the bill. The Act made the requirement of “complete diversity” of citizenship inapplicable to class actions, and provided federal jurisdiction when some class members and some defendants are from different states. It also eliminated the principle that the claims of class members cannot be aggregated to meet the amount-in-controversy requirement, and provided for federal jurisdiction when the total amount in controversy in a class action exceeds $5 million. The effect was to allow most class actions with classes or defendants including citizens of more than one state to be filed in or removed to federal courts known for their tougher stance on granting injury awards.
 

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Tort Reform II

Tort reform ranges from legislation that directly affects certain areas of tort law, such as medical malpractice, to changes in various rules, defenses and limits applicable to cases that can impact how much an individual or a group receives in damages.  Some of the tort reform proposals to date and laws based on the idea of tort reform have involved limits on punitive damages or non-economic damages in personal injury cases, moving class action lawsuits from state to federal court, or limiting frivolous lawsuits. In February, President Bush signed a sweeping overhaul of the class-action lawsuit process (Senator Obama was one of the 18 Democratic senators who voted in favor of the bill when it was in the Senate). Only a minority of tort cases will be affected by these laws, but the people affected really need the compensation and/or have been done an egregious wrong. Reform opponents argue that the current legal system produce safer products and drugs. They claim that if the right to sue is restricted, it may result in people not having the resources to get into the courts and businesses will have much less incentive to provide safe products.In the area of medical malpractice, tort reform advocates claim that insurance premiums will decrease, making medical care more affordable and eliminating a disincentive for doctors to practice medicine. In contrast, tort reform critics contend that high medical malpractice insurance rates are a result of the cyclical nature of the insurance industry, lack of competition, mismanagement of reserves, and a decline in investment income. Here are some of the tort reform issues:

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Tort Reform I

Before we can understand tort reform, we must first understand what tort law is. Tort law seeks out those responsible for harm to others, usually on the basis of fault. Tort law, or personal injury law, requires those who are responsible to compensate, usually with money. Medical bills, lost time from work, diminished ability to perform every day chores, and the incapacity to enjoy recreational or daily life all are considered for compensation. It is especially difficult to put a price tag on a wrongful death case, as no amount of money can ever make the family completely whole again.

Typically American courts expect a jury to ascertain the damages in a tort case. Juries are comprised of ordinary citizens who are expected to fairly determine fault, and to place a monetary value on the compensation to the tort victim. Juries can arrive at different verdicts when hearing a similar case under the same circumstances. Just as we all do, jurors often bring their own biases that may hurt or help your case. This unpredictability can bring a wide range of results to your tort case.

One of the main determinations a good plaintiff’s attorney will make is choosing a good venue. Some plaintiff friendly venues include West Virginia, Cook County, Illinois, South Florida, and Atlantic County, New Jersey. Sometimes juries award high monetary awards in punitive damages. Punitive damages are different than compensatory damages. Punitive damages are designed, as the name implies, to punish the offender. Remember the famous “pants case’ where an administrative law judge sued his dry cleaners for $54 million for misplacing his pants? He cited the District of Columbia’s consumer protection law to justify his outrageous demand. This case went on for two years and took a two-day trial before it was rightly dismissed. Ah, the Tort system at work.

 

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As a plaintiffs’ lawyer, one of the most frustrating aspects of this vocation is the public perception of trial lawyers as “ambulance chasers” filing frivolous lawsuits at the expense of hard-working people. In social gatherings, when new acquaintances learn in what area of law I practice, there are occasionally comments or questions about allegedly frivolous lawsuits. When this happens, I make sure to provide a reasonable theory for liability and justice in these cases. Certainly, these anecdotes and stories are propaganda of the insurance industry and others so aligned.  A common trial technique is to discredit the opposition by making their theory of the case seem ridiculous.  In formal logic, this practice is called “creating a straw man.”  In this blog, I am going to be practicing my cocktail-party-debunking-skills.  Namely, every so often I’m going to examine a so-called “frivolous” lawsuit and explain a theory of liability that the insurance industry does not want you to know.

The First Entry is called “Case of the Flying Shrimp of Death”

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