Did you know that there is a group called the Flat Earth Society? We’re serious. They exist. They are a group who sincerely believe that the planet on which we dwell is as flat as a pancake. They believe this despite hundreds of years of evidence to the contrary. They believe this despite photographic evidence, the laws of physics, latitude and longitude and all the other facts that verify with all the certainty in the world that the world is in fact round.

Don’t bother trying to convince them otherwise. They believe that all the evidence is fake. They believe that the credentials of all of these so-called “experts” and “scientists” are overstated, and that this belief is just part of a big money making conspiracy. (We aren’t sure who would profit by making people believe the earth is round, or how they would profit, but this is the belief.) They also always manage to find the one guy with a science degree who actually agrees with them, and they trot him out as their expert.

As crazy as the Flat Earth Society sounds, there are actually a great many corporations who have found their example to be purely inspirational. Tobacco companies, for instance, were denying for decades the harmfulness of its products. They claimed nicotine was not addictive and that smoking was only a habit, and further claimed that it wasn’t really that bad for you. And they always asked questions like these: “Who are these so-called ‘experts’ who were linking tobacco to lung cancer? What is their real agenda? How can we trust them? But in the meantime, here is a scientist that we found who disputes everything all the other scientists say about nicotine. So the facts are still out on the so-called ‘harmfulness’ of tobacco.

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It has been said that the human brain is the most powerful thing on earth, and when you consider the things of which we are capable, it’s hard to argue with the premise. Jets, computers, modern cities, fast cars, the internet and pharmaceutical drugs are all man-made inventions. If you think your brain isn’t all that powerful, compare your brain to those of all the other species on the planet. There isn’t another species on the planet capable of doing what human beings have done. Squirrels will never build cars, fish will never build a subway system, and despite what current movies are saying, apes will probably never rise up and take over the world.

Unfortunately, there can be a downside to having an intellect. Consider what happens when your own brain turns against you. There are examples of this everywhere you look. Many of the homeless people that you see on the streets aren’t homeless because they are drug addicts or drunks. Many of them are homeless because they are mentally ill and can’t afford treatment. They suffer from severe schizophrenia or bipolar disorder, each of which are illnesses that can leave a victim incapable of living a normal life.

As sadly common as these examples are, more extreme consequences of untreated mental illness certainly exist. Congresswoman Gabby Gifford’s would-be assassin Jared Loughner was suffering from a severe form of schizophrenia. Convinced that Ms. Gifford was an agent of a worldwide criminal plot, Mr. Loughner shot 19 people, six of them fatally. John Hinckley, Jr. attempted to assassinate President Ronald Reagan because as a result of his mental illness, he thought that doing so would impress the actress Jodie Foster. Mark David Chapman was delusional and paranoid when he shot and killed John Lennon. These are some of the more high profile examples, but there are several other examples that don’t get nearly as much attention.

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The Department of Health and Human Services has shut down public access to the National Practitioner Data Bank. According to a story in the Kansas City Star, HHS has also removed any records of medical malpractice suits, judgments or settlements from public view.

We fail to understand the reasoning behind this. If you scour the internet for any conceivable product or service, no matter how important or inconsequential, you can get a pretty good idea as to whether this product or service is worth using. Everything from cars to movies to body washes to Blu-Ray players have ratings attached. Magazines like Consumer Reports and websites like Angie’s List exist solely to make sure that you are spending your money on something that is worth it. We would think that having information about a doctor or surgeon is certainly more important than having information about a cell phone, house painter or blender.

For those of you who don’t know, the National Practitioner Data Bank is a database that stores information about every doctor that is licensed to practice in the United States. This information includes where they went to school, what state they practice in, what their specialty is, and most importantly, if they have ever been sued by a patient or a patient’s family for medical malpractice or medical negligence. The Department of Health and Human Services has prohibited you or your family or anyone who isn’t a medical professional from having access to this information.

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For the sake of argument, let’s say that you are employed in a place where there are absolutely no consequences for doing a bad job. Let’s say that it doesn’t matter how bad you screw up. It doesn’t matter if you get everything wrong; it doesn’t matter if you deliver terrible customer service and it doesn’t matter if you show up three hours late every day or don’t show up at all. It doesn’t matter if you are incompetent. It doesn’t matter if you don’t know what you are doing. Nothing that you do or don’t do will cause you to get fired. You won’t even get reprimanded. Would those parameters affect how you did your job? Many of you would probably say that you would do your best, just out of principle. But could you say the same for all of your co-workers?

If this hypothetical place of employment was a restaurant, or an accounting firm, or even a law firm, the performance issue would most assuredly be solved by what are called “market forces.” In other words, if your business delivers a bad product, no matter what it is, then people will simply stop patronizing your business and take their dollars elsewhere. But what if your business happens to be a hospital? What if the line of business is helping the sick, injured or wounded? And what if all the businesses in the area were run under the same “no consequences” guidelines? What if there was no “elsewhere” to take your dollars to?

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What would you do if you got a check in the mail for $1 million?

We don’t mean one of those Nigerian Prince scams or one of those fake checks that turns out to be nothing more than a solicitation for one charity or another. We mean a real, genuine, and honest to goodness check worth $1 million.

Let us further suppose that there was some fine print with the check, which stated that if you cashed in that $1 million, you would be contractually obligated to seek no other form of income for the rest of your life. All of a sudden, cashing that check doesn’t seem like such a good idea, does it?

$1 million is certainly a lot of money, but if that’s about all the money you are going to get for the rest of your life, it isn’t very much at all. For many people who have been severely injured in states where there are so-called “caps” on non-economic damages, this scenario is not hypothetical at all. If a person is severely injured and needs constant care, a $1 million settlement likely won’t cover the costs for that. This problem is compounded if the injury victim happens to be young.

The Knoxville News-Sentinel recently had an article about just such an injury victim. A woman named Shauna Heath suffered a severe spinal injury when she was only 16 years old, and has since been unable to walk or feed herself. She is now in her mid-thirties. Her injury was caused by a defective seat belt, and she received a multi-million dollar settlement from the company that manufactured the car. But despite that settlement, she still is unable to afford to hire a full time nurse. When you have an injury that requires full time care, even multi-million dollar settlements have a tendency to dwindle fast.

There is the initial treatment, which is certainly expensive enough. Then there is the ongoing care and medication, and there are certainly going to be plenty of things that insurance companies will refuse to pay for. Even people who suffer from minor injuries or illnesses will have to deal with claim denial. And in the case of Ms. Heath, who received the injury in her teens and can still expect to live for quite some time, the constant needs of her condition will completely eclipse the settlement that she received, if they haven’t done so already.

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The House Subcommittee on Health had a hearing on Capitol Hill this morning. The official name of the hearing is “The Cost of the Medical Liability System Proposals for Reform, including H.R. 5, the Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011.” For those of you who don’t know, H.R. 5 is a bill that was placed into consideration early in the legislative term. The bill has quite a few ambitions, but the main thrust of this legislation is to place a cap of $250,000 on non-economic damages in medical malpractice cases.

This is nothing new. Proponents of tort reform have turned caps on damages into the cure all for any and all problems that exist in our health care system. The idea here is that if you put a limit on the amount of damages that a plaintiff can receive in a medical malpractice case, then this would allow medical malpractice insurance companies to lower their rates. Proponents of this theory also state that these caps would allow doctors and surgeons to work without the fear of being sued.

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Have you ever stopped to think about what your life is worth?

We aren’t talking about what your life is worth in a philosophical sense. We certainly agree with the premise that every life is precious. But if you had to put a concrete price tag on your existence, what would the number be?

As far as the United States government is concerned, this very tough question actually has several answers. The financial value of a human life depends on which federal agency you ask. For instance, the Environmental Protection Agency has placed that number at $9.1 million, while the Food and Drug Administration has placed that value at $7.9 million. The Department of Transportation views a human life as being worth around $6 million.

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If you listen to the folks who favor tort reform, it would seem that there is no such thing as medical malpractice in this country. The premise that is thrown into the public discourse again and again is that our legal and medical system is completely under siege from trivial and unnecessary lawsuits. The idea is that every time something goes either mildly or very wrong during the course of a medical procedure, then that doctor is immediately subject to a financially crippling lawsuit, which causes the malpractice insurance rates to go up, which then causes doctors everywhere to quit practicing medicine.

The main players in this supposed disaster is, of course, trial lawyers. If it weren’t for trial lawyers, so the argument goes, everyone would see reason instead of dollar signs after something bad happens at a hospital or doctors office.

This is a very convenient scenario to have out in the public, but we can tell you that this is not even remotely close to how things really work. Greenberg and Bederman does not take on the malpractice case of every single person who has had something unfortunate happen in a hospital, or any medical facility. A number of things can go wrong during a course of treatment, but having something go wrong is not necessarily malpractice. Only when a doctor or other healthcare provider deviates from the standard of care, can there be an investigation into possible medical malpractice.

The truth of the matter is this: Sometimes, doctors, nurse practitioners, nurses or pharmacists make mistakes. Sometimes they make easily preventable mistakes. And sadly, sometimes these easily preventable mistakes cost people their lives.

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Most reasonable people would not make an important decision without having all the facts. It’s one of the reasons simply getting a job is so difficult these days. Potential employers don’t just want to know your work history. They also want to know your criminal record, and in some cases they want to know your credit score. That might seem like an unnecessary intrusion, but if you happen to be applying for a job as an accountant, your perspective employers might want to know if you are thousands of dollars in debt. Or, if you happen to be applying for a job as a day care worker, the people who run the place would want to know if you happen to have a criminal history of child abuse.

If you were buying a car, you would want to know if the company making it has a history of putting out defective products. If you were entrusting a financial advisor, you would want to know if he had a history of fraud or shady dealings. If you are investing your time or money into something, or if you are entrusting your safety or your children’s safety with someone, having as much information as you can about this person is not just important; it is crucial.

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We’ve always disagreed with the reasoning for caps on damages for medical malpractice cases. It’s been our contention that they are unfair, arbitrary, and don’t accomplish much of anything except offer unnecessary protections to insurance companies.

Texas has some particularly harsh restrictions. Awhile back we wrote a piece on how caps on medical malpractice damages aren’t doing anything but pricing victims out of the courtroom. And while that aspect of the law is bad enough, there is also another element of the law down there that is keeping victims of medical malpractice from getting to court at all.

For the sake of argument, let’s say you hire a plumber to fix a leaky pipe. Let’s  say that he doesn’t do his job well, and his shoddy work causes other leaks in your house, with the end result being tens of thousands of dollars in water damage. You take this plumber to court. The plumber’s entire argument in his defense is that he “didn’t mean to” cause all of that damage. Based on this argument, the judge rules in his favor.

This sounds like a completely bizarre argument.  A drunk driver certainly “didn’t mean to” cause an accident with fatalities, but he did anyway. A teenager texting while driving “didn’t mean to” hit a pedestrian in a crosswalk, but he did anyway. There is no conceivable way that “I didn’t mean to” should be a valid excuse in court of law.

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About seven years ago, there was something that various P.R. companies and media outlets referred to as “the Medical Malpractice Crisis.” The premise was this: Due to constant onslaught of costly and pointless medical malpractice cases filed by greedy lawyers on behalf of people who weren’t really injured, medical malpractice insurance companies were all on the brink of insolvency. Going bankrupt. Completely tapped out. Could barely afford to keep the lights on.

The only way that these companies could possibly stay alive as commercial enterprises was to raise their insurance rates dramatically. They didn’t want to do that, of course, but really, what other choice did they have? So they raised their rates, and some doctors found the rates essentially unaffordable, and since they couldn’t practice medicine without medical malpractice insurance, there were some cases of doctors either leaving the states where they set up their practices or leaving medicine altogether.

The outcry was enormous, and legislatures all over the country tried to pass “damage caps,” which are arbitrary limits on the amount of money that a victim of medical malpractice could receive. And in many cases, these caps were successful. In Texas, for example, there is a cap of $250,000 for non-economic damages in lawsuits against doctors. Florida has a $500,000 cap, unless there is a death or permanent vegetative state, in which case the cap is $1,000,000.

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There are gubernatorial elections going on in quite a few states this year, but the debate between the two major candidates for Governor of Georgia caught our eye recently. The two candidates were on different sides of everything, which was not at all surprising. But we quite liked one particular quote from Democratic Party candidate Roy Barnes on the subject of tort reform:

"I find it somewhat ironic that we say that jurors - drawn from registered voter rolls - don't have enough sense to decide a case of damages. But, they do have enough sense to decide who is president, governor or even who has the very breath of life taken from them in a criminal case."

 That is a point that is not brought up very often, which is a shame because we believe it to be a good one. Medical Malpractice Damage caps (which are essentially artificial and arbitrary limits placed on the amount of financial compensation that a victim of medical malpractice can receive) completely negate the judgment and intelligence of juries, who are trusted enough to vote in officials and put people to death, yet they are not to be trusted with a fair estimate of exactly how badly a human being has suffered.

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There are gubernatorial elections going on in quite a few states this year, but the debate between the two major candidates for Governor of Georgia caught our eye recently. The two candidates were on different sides of everything, which was not at all surprising. But we quite liked one particular quote from Democratic Party candidate Roy Barnes on the subject of tort reform:

"I find it somewhat ironic that we say that jurors - drawn from registered voter rolls - don't have enough sense to decide a case of damages. But, they do have enough sense to decide who is president, governor or even who has the very breath of life taken from them in a criminal case."

 That is a point that is not brought up very often, which is a shame because we believe it to be a good one. Medical Malpractice Damage caps (which are essentially artificial and arbitrary limits placed on the amount of financial compensation that a victim of medical malpractice can receive) completely negate the judgment and intelligence of juries, who are trusted enough to vote in officials and put people to death, yet they are not to be trusted with a fair estimate of exactly how badly a human being has suffered.

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We’ve long held the opinion that so-called “damage caps” do nothing to drive down the costs of medicine. If that was the case, then surely the costs of medical care would have fallen precipitously in the states where there are caps in place. There has so far been no evidence that medical costs have gone down. The theory is that with liability caps in place, doctors will no longer be concerned about getting sued and will stop practicing “defensive medicine,” or performing unnecessary tests and procedures so that there is no chance of any diagnosis falling through the cracks. But practically speaking, doctors are still practicing medicine like they always have, regardless of whether or not they feel “protected” by damage caps.

When you think about it, the only people really “protected” by liability caps are the medical malpractice insurance companies. These insurance companies are the only ones who stand to gain by limiting the amount of non-economic damages that an injured patient can receive. After all, caps don’t prevent doctors from getting sued. They simply place a limit on the amount of money that the injured patients can receive. And the patients certainly don’t get anything positive out of the deal. Damage caps work under the erroneous assumption that any and all medical malpractice cases are the same, which means that as far as the courts are concerned, there is no difference between a patient who has to spend a few extra inconvenient days in the hospital and a patient who accidentally has the wrong limb taken off. Anything from a misdiagnosis to the death of an infant falls into a specific price range, between $0 and however much the cap is, which is usually in the neighborhood of $200,000.

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Easily Preventable Hospital Infections Kill 48,000 Patients a Year.

There are many things that can go wrong in a hospital. There are the obvious hazards, like a surgical error or a wrong or missed diagnosis. But there are also problems that stem from seemingly minor causes. For instance, let’s say some paperwork gets misfiled and a patient ends up being given the wrong medicine. Or someone doesn’t send the right form to the kitchen and a patient is given food to which he or she is allergic. Believe it or not, these aren’t “pie-in-the-sky” scenarios. They have actually happened to patients before. The only good thing that you can say about instances like these is that at least they took place in a hospital.

As long as hospitals are run by human beings, mistakes will be part and parcel of medical care. Whether the mistakes are life threatening or just a minor inconvenience is entirely up to the doctors, surgeons, nurses, pharmacists and administrators. But as attorneys who represent victims of these medical malpractice mistakes, what is profoundly aggravating to us is when people get severely hurt or even worse due to something that was completely preventable.

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Congratulations to John J. Sellinger, our medical malpractice attorney, on his $2,933,500.00 verdict in a medical malpractice/wrongful death case tried in Fairfax, Virginia.   On Tuesday, February 15, 2010, a jury in Fairfax County Virginia returned a verdict of $2,933,500, in a medical malpractice wrongful death case against a radiologist for failure to identify a perforated esophagus on a Chest CT scan. The patient had presented to the Emergency Department with complaints of severe chest pain after eating a piece of meat which had become stuck in his throat. A chest CT was ordered by the emergency room physician and was read as essentially normal by the radiologist. Evidence of the perforation was not identified on the scan. Because the Chest CT was misread, the perforation of the esophagus went undiagnosed and the patient received essentially no treatment of the condition for nearly 24 hours. As a result, he became extremely ill and dehydrated. After the perforation was discovered, as the patient was being prepped for surgery, he suffered an arrest which resulted in fatal anoxic brain injury. His survivors were his wife and two adult children. Deborah Alvarez vs. Association of Alexandria Radiologists, P.C., in the Circuit Court for Fairfax County, Virginia.

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Representative John Murtha (D-OH) Dies Due to Medical Malpractice

Being elected by ones constituents to serve in the United States Congress is certainly enough to deserve some recognition by the public. But John Murtha was one of the most effective, dynamic and controversial Representatives to ever serve on Capitol Hill.

Representative Murtha was Chairman of the House Defense Appropriations Subcommittee, which basically means that he was in charge of determining how taxpayer money was spent on defense. It’s no secret that the United States spends an enormous amount of money on weapons and logistics for our military, and Representative Murtha was one of the key figures in charge of the purse strings.

As a result of his position, this made Representative Murtha a very influential Congressman. The United States defense budget does more than protect our nation and its interests. It also provides jobs to hundreds of thousands of Americans. One congressional district might have a factory that makes one part of a jet or a tank, while another might have a company that provides defense analysis, while another might have a plant that manufactures rifle scopes.  Since there is not one Congressman on Capitol Hill who wanted to say no to federal defense spending occurring in his district, and since John Murtha was one of the men in charge of where defense dollars got spent, he had a great deal of pull in Washington, D.C.

By all accounts, he took a great deal of advantage of his position. He earned a reputation as an old school “Pork Barrel” politician, making sure that his district in Pennsylvania received a great deal of federal money. He received enormous criticism for this, but the interesting thing about “pork barrel” or “earmark” spending is that it is usually defined as “federal spending that occurs in every district except your own.” The spending that occurs in your district hardly ever comes under the same criticism as the spending that occurs in other districts.

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Non-economic damages in a medical malpractice case are essentially a way for you to be compensated for elements of your injury that were not directly financially detrimental to you. It’s the idea that you have been forced to go through real pain and real hardship as the result of the negligence of a medical provider, and as such you should be financially compensated. For instance, if the mistake of a doctor required you to have a lengthy and painful recuperation, having the doctor pay for the cost of that recuperation would not be enough, mainly because if it hadn’t been for the initial mistake in the first place, you wouldn’t have had to go through the painful recuperation at all. Spouses of victims of medical malpractice can also be compensated for non-economic damages, particularly if the malpractice resulted in the death of the victim.

Thanks to years of false assumptions, many people actually support caps on non-economic damages. The doctors and insurance companies have done a good job convincing many in the public that non-economic damages are driving up medical malpractice premiums and lining lawyers pockets. These same theorists will continue believing in the false public persona until they themselves become injured and realize what “caps” actually mean, especially if the injury is severe and the consequences are long lasting. What medical malpractice caps do for the injury victim in some cases is cause the severely injured to not be able to receive the money that they will need for a comparatively normal life, much less a life of “luxury.”

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Being an injury law firm based in Washington, D.C, we’ve never litigated any medical malpractice case in Tennessee. But upon reading a piece in the Memphis Daily News, we couldn’t help but notice some consistencies in the way that medical malpractice cases are both considered by the general public and reported by the media in general.

The article in question was written by a man named Scott Sheppard, who did an admirable job on presenting a balanced and fair piece. Regardless, the piece still gave the reader the sense that despite everything about the legal system being in the favor of doctors, medical malpractice insurance companies and the attorneys who represent them, somehow medical malpractice cases are still unfair.

Within the text of the article the reader learns how the majority of medical malpractice cases end:

Physicians and their insurance companies traditionally close up to 85 percent of malpractice cases without paying a penny to plaintiffs.

It is also stated in this article that one of the “problems” is the costs of defending these cases, mainly because the tactic of most medical malpractice defense attorneys is to completely outspend the plaintiff’s attorneys:

“Defendants have superior resources, usually hiring two or three times as many experts on each issue than the patient can afford; this impacts results,” said John A. Day, a personal injury and malpractice attorney at the Nashville firm of Day & Blair. “You can see defense costs are increasing – defendants and their lawyers are fighting harder.”

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Recently in New York, a group of five veteran medical malpractice defense attorneys joined a Manhattan law firm. In the press release celebrating this acquisition of talent, we read the following:

"The rising cost of damage awards and settlements in medical malpractice cases continues to take a heavy toll… With these additions to our medical malpractice defense team, LeClairRyan is now in an even stronger position to help New York-area healthcare providers fight back."

They also mentioned a report from the Physicians Insurance Association of America, in which they claim that the amount of money given by jury awards is skyrocketing. All of this is new to us. Far be it from us to go against the numbers that the malpractice insurers themselves put together, but when we checked with the Department of Justice’s Bureau of Justice Statistics, we found that most medical malpractice cases are closed without any payout to the plaintiffs at all. And those jury awards that are supposed to be so high were only awarded in cases where there was a serious medical injury or a near death experience  of the patient. It’s hard to imagine how compensation could be “excessive” when a patient almost dies or will be spending the rest of his or her life with an injury or serious medical condition.

Whenever politicians or business advocacy groups discuss tort defense and tort reform, we always seem to hear a lot about “excessive jury awards.” They always trot out the McDonald’s case, or bring up some cases that slipped through the cracks of common sense as if they were everyday occurrences rather than the legal oddities that they are.

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There are two major principles at work in any medical facility. The first is the Hippocratic Oath, which is basically an affirmation of what practicing medicine is supposed to be about. It includes statements like:

I will apply, for the benefit of the sick, all measures [that] are required, avoiding those twin traps of overtreatment and therapeutic nihilism.

I will remember that I do not treat a fever chart, a cancerous growth, but a sick human being, whose illness may affect the person's family and economic stability. My responsibility includes these related problems, if I am to care adequately for the sick.

Despite having to battle through the economic realities of modern medicine in America, where the insurance companies wield influence in equal measure with the doctors, most medical professionals do their best to abide by this oath.

But the second major principle at work in most hospitals is Murphy’s Law, which states that anything that can go wrong will go wrong. And the number of medical or surgical errors that take place in this country every year seems to back that up.

The Institute of Medicine released a landmark report back in 1999, in which it was claimed that as many as 98,000 people per year die due to preventable medical errors.  Even with that report having been written a decade ago, both the numbers of errors and practices that lead to them have remained quite solidly in place. In 2008, The Washington Postreported that within a two year period, medical errors led to 238,337 preventable medical errors, and that was only among Medicare recipients. 

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Doctors and nurses do not have x-ray vision. They can’t tell exactly what is wrong with you simply by looking.

What they do have at their disposal is the next best thing: actual X-ray machines, MRI’s, CAT-scans, and years of intensive training, during which they are taught to recognize telltale symptoms of illnesses and conditions in their patients.

But none of these will do a patient any good whatsoever if the doctor can’t be bothered to getting around to seeing them.

Death or permanent injury due to unnecessary delay of proper treatment can be medical malpractice, or also known as medical negligence. The idea that someone died or is condemned to spend the rest of his or her life with a severe and debilitating condition when they didn’t have to does not sit well with us, and it shouldn’t sit well with you either.

A delay in treatment occurs when a doctor or hospital does not treat a sick or injured person in a timely manner that is consistent with his or her injuries. Quite often, delays are the result of a failure to complete a necessary test, such as an X-ray or CAT scan, or it is a failure to initiate these tests at all. There have also been occasions where doctors or nurses misdiagnose symptoms and work under the assumption that the patient is suffering from a malady that isn’t dangerous or life-threatening. (We have a recent medical malpractice case under these circumstances. In this case, a young intern formed the correct diagnoses quickly, but because she was young and inexperienced, no one would listen to her. This refusal to investigate caused our client to be paralyzed).

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Tort Reform - Loser Pays

Since President Obama began moving forward on health care, there have been several attempts to either stop or dilute his ideas on health care reform to the point where they will be completely ineffective if they are put into practice. Some of the ideas that have been put forward are geared towards removing “restrictions” that are apparently removing any incentives for insurance companies to lower their rates. Among these ideas are removing the restrictions that force people to buy insurance only in the state in which they are living, which would (in theory) keep insurance rates low by allowing people to hunt for the lowest prices.

Another idea that has been a prominent part of the Republican platform is that of “tort reform,” or, putting limitations on the rights of Americans to have their grievances decided in a court or law:

“Ending junk lawsuits: The GOP plan would help end costly junk lawsuits and curb defensive medicine by enacting medical liability reforms modeled after the successful state laws of California and Texas.”

We’ve actually seen how liability reforms in Texas have worked, and to call these new laws “successful” is a stretch. All these caps have done in Texas is made it financially impossible for many medical malpractice injury victims to bring their cases to court. And they have also done comparatively little to lower medical malpractice insurance rates, which is what the supposed purpose of these laws was in the first place.

It has been our experience that most “tort reform” initiatives don’t do much except price victims out of the courtroom, and the new proposal by Senators Saxby Chambliss and Lindsay Graham is a perfect example of that premise.

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 Birth Injury Lawyer

A few years ago, former talk show host Ricki Lake released a surprisingly good and informative documentary called The Business of Being Born. The premise of the film was that pregnant women in the United States are put through what is essentially an assembly line process when it comes to giving birth. Profit driven hospitals give drugs that induce contractions and encourage women to get caesarean sections at the slightest provocation, and they do this simply because of the speed and convenience of it. What matters to these hospitals is not necessarily what is best for the health of the mother and the infant, but rather the amount of women they can get in and out as quickly as possible.

Ms. Lake brings up some very good points. If the birthing procedure is now riddled with chemically induced shortcuts and uses surgical delivery as an easy way out, it is not much of a surprise that the United States has the second worst newborn death rate in the developed world.

You can also consider that since the emphasis is placed on getting women in and out quickly rather than safely, the amount of birth injuries that take place in America shouldn’t come as much of a shock either. According to the Department of Health and Human Services, there are 6.68 birth trauma incidents per 1,000 live births. That includes injuries to the shoulders, chest, arms, lungs and head, any of which could seriously harm the development of the newborn child and could cause a permanent injury, such as erbs palsy, or brachial plexus.

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The President Speaks Wisely on Medical Malpractice

Many tort reform advocates (in other words, insurance companies and the politicians that they help fund) had reason for optimism during President Obama’s speech to Congress on September 9^th. There was what appeared to be a concession towards malpractice reform in the text of the speech:

“Finally, many in this chamber – particularly on the Republican side of the aisle – have long insisted that reforming our medical malpractice laws can help bring down the cost of health care. I don't believe malpractice reform is a silver bullet, but I have talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs. So I am proposing that we move forward on a range of ideas about how to put patient safety first and let doctors focus on practicing medicine. I know that the Bush Administration considered authorizing demonstration projects in individual states to test these issues. It's a good idea, and I am directing my Secretary of Health and Human Services to move forward on this initiative today.”

This might have made ears perk up over in the tort reform section of Congress and K Street, but the holy grail of tort reform (that is, caps on all sorts of damages from punitive to non-economic to even economic damages) is actually not something that the Obama administration thinks is a good idea. This was re-iterated in an interview on 60 Minutes on Sunday.

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When you get injured due to the negligence of a doctor or other medical professional, it is often difficult for people to know exactly what the next step should be. The vast majority of us did not go to medical school after all.

While your primary concern after an incident of medical malpractice should be getting better, your secondary response should be to contact an experienced medical malpractice attorney as soon as possible. Because once you have been injured, the clock starts ticking.

As attorneys in the D.C. metropolitan area, we are in the unique position of practicing law in three separate jurisdictions. Maryland has a different way of doing things, as does Virginia, as does the District of Columbia. And this means that each jurisdiction has differing standards for medical malpractice, and that includes the statute of limitations.

A statute of limitations is the maximum period of time in which legal proceedings can be initiated. For instance, if at the age of 38 you admit to having shoplifted a candy bar from a store when you were 10, the owner of the store cannot order you to be arrested and the state in which you stole the candy bar cannot prosecute you. A statute of limitations exists for every legal scenario except murder. So if you get injured due to the actions of a doctor, surgeon or nurse, you have a limited window of opportunity in which to act.

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John J. Sellinger a Super Lawyer

Super Lawyers, an independent magazine adhering to a selection process that is objective and independent of any advertising or payments to nominate its candidate, has named John J. Sellinger a Super Lawyer in its Maryland and Washington DC 2008, and 2009 editions. Lawyers were asked to nominate the best lawyers they've personally observed, were not allowed to nominate an internal lawyer without nominating an external lawyer, and lawyers were not allowed to vote for themselves. This evaluation led to a final selection of our medical malpractice attorney, John J. Sellinger. Congratulations on a job well done!

To learn more about our medical malpractice attorney, John J. Sellinger, read about John or watch his medical malpractice video on Utube.  To learn more about medical malpractice law in Maryland, read our Medical Malpractice FAQ, or contact Greenberg & Bederman for a free medical malpractice case evaluation.

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Ryan Dineen has cerebral palsy, and it’s possible that he didn’t have to get it.

On May 7, 2000, Ryan’s mother Suzette was brought into Frederick Memorial Hospital. She was suffering from abdominal pain and was vomiting. She was also pregnant.

Frederick Memorial Hospital is not a small hospital, but it is not an overcrowded and understaffed one either. And while Frederick, Maryland is by no means a small town, it certainly isn’t Baltimore or Washington, D.C.

So the fact that Suzette Dineen was made to wait for three hours before receiving medical care defies all logic and reason. It also defied hospital policy.

According to a piece in The Frederick News:

“She arrived shortly after 5 a.m., complaining of pain, vomiting and diarrhea, Bekman said.

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The state of Nevada came awfully close to getting back to normal this month. Well, as “normal” as Nevada gets, anyway.

Back in April, the Nevada State Assembly passed a bill that would have removed the current limits on non-economic damages for medical malpractice cases. As it stands now, the limit is $350,000. What this means is that the most that you can collect for any damages that don’t actually cost you money in the long run is $350,000. And thanks to the Nevada Senate, it looks like it’s going to stay that way for the foreseeable future:

An Assembly-approved bill to lift the $350,000 voter-approved caps on the "pain and suffering" damages patients can secure from their doctors in medical malpractice cases was killed in the Senate. The higher limit would have applied only in cases where patients could prove they were injured by the "gross negligence" of their doctors. The bill had been introduced in response to complaints from hepatitis C patients in Las Vegas.

We’ve discussed what we think about such caps before, so in the interest of saving time we’ll simply refer you to an article that we wrote about how a $250,000 malpractice cap in Texas is working down there.

What we found interesting was a few of the comments about the bill from some of the Nevada politicians who were in opposition.

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Physician, Heal Thyself

As attorneys who represent the injured, we often find ourselves in direct opposition to insurance companies, tort reform organizations, and HMO’s.

There aren’t many subjects on which we agree. We believe that those who have been injured due to the incompetence or negligence of others deserve full compensation, and they believe that there should be strict limits on what sort of damages the injured can recover. We believe that the rights of Americans to access the court system should not be limited in any way, while some believe that sort of freedom is bad for business. We believe that the primary goal of an insurance company should be to honor the needs of their policyholders, while they treat the ill as though their needs come a distant second to honoring the needs of their stockholders.

There is, however, one subject upon which we do agree. Insurance companies, tort reform organizations and medical professionals believe that there is a real problem in this country involving medical malpractice. We believe that as well. But their contention is that the problem centers on the victims, while our position is that the problem comes from the doctors, nurses and medical professionals who don’t do their jobs properly.

If you take a look at your average tort reform web site, you will find page after page of reports and statistics that tell you about high insurance premiums, so-called “frivolous lawsuits,” and trial lawyers who are inevitably described as “greedy.” But you won’t find much about the actual doctors who are being sued.

Medical malpractice lawsuits happen for a reason. Perfectly healthy people don’t walk into our office and announce that they would like to sue their doctor. A medical malpractice lawsuit happens when there are real damages that come from real professional negligence by medical providers. So we find it strange that these organizations rarely acknowledge that doctors make preventable mistakes, that people suffer as a result, and that the medical system as currently designed by self enforcement allows some doctors with extremely shoddy records to keep practicing medicine. As far as we are concerned, that’s the heart of the medical malpractice “crisis.”

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The Patient’s Bill of Rights

You are not simply a set of problems that need to be solved. You are a human being with rights.

This is the basic premise behind the Patient’s Bill of Rights, which was created in 1998 by the U.S. Advisory Commission on Consumer Protection and Quality in the Health Care Industry.

This was an incredibly important development for patients (meaning ALL OF US,) in America. Prior to the creation of the Bill, there were no real rules in place for how the sick or injured should be treated, and the standard of care absolutely reflected that.

Patients were routinely chewed up and spit out by the HMO system, who to this day value profit margins over patient care. Patients weren’t adequately informed about their treatment and options, confidential patient information was guarded loosely if it was guarded at all, and patients requiring emergency services were financially penalized for not PRE-APPROVING them. And these were only some of the problems.

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Wrongful Birth

What if you went to the doctor and he didn’t give you all the facts? What if that lack of information resulted in you having to face a situation that affects you for the rest of your life?

This is the center of the argument in a so-called “wrongful birth” case, despite what others might say.

For those of you who are unaware of the circumstances that make up one of these cases, it involves a mother who has not been properly informed of a genetic deficiency or other detectable physical condition that exists in the fetus. When the fetus comes to term and is born, the genetic condition manifests itself into a severe handicap, which the mother was neither mentally nor financially prepared for because she was not properly informed.

A case like this is obviously a hot button issue, mainly because it spills over to the question of abortion, which is an ideological minefield on the best of days. But we have to look at this as an issue of the competence of the doctor rather than anything else, no matter what our feelings are on the moral end of reproductive issues.

The strides that medicine has made in terms of childbirth over the last century have been enormous. If you need concrete proof of that, you only need to visit an old cemetery, where if you examine a family plot you will see that as little as 150 years ago, many families had more dead children than live ones.

Nowadays childbirth is a much safer process, and thanks to advancements in testing we can tell if there are going to be any abnormalities in the child before it is even born. Through examining a sample of the amniotic fluid in the placenta (which is a process called amniocentesis,) doctors can easily determine whether or not the fetus is developing normally. And amniocentesis is only one of the tests.

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  Medical Malpraqctice Expert Witness Maryland

An attorney could have every word of the law books memorized, a high percentage of won cases and favorable settlements, and a thriving practice and satisfied client base, but what the vast majority of lawyers don’t have is a medical degree. So how does alawyer, with no background in medicine, successfully try a medical malpractice case? How can a lawyer who never spent a day in medical school cross-examine a doctor or surgeon who did pre-med in college, then medical school, then between three to eight years of residency depending on the medical specialty, and then any number of years in practice?

The answer is that the attorney talks to someone else who did pre-med in college, then medical school, then between three to eight years of residency depending on the specialty, and then any number of years in practice. In other words, the attorney gets his own doctor as an expert medical witness.

But not just any doctor will do. The attorney has to find someone with impeccable credentials in medicine and a specialty in the area in which the doctor named in the law suit has made the medical error. In other words, if the malpractice law suit is about a medical surgical error, it would do no good at all to consult a psychiatrist or an oncologist. This isn’t just smart legal practice, but is also a part of Maryland law.

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Medical Malpractice – Informed Consent

There isn’t one reputable mechanic in the world that would just go ahead and make a bunch of unasked for repairs to your car without telling you that they were needed in the first place. How would you like it if you brought your car in for an oil change only to be told that they replaced the whole fueling system without asking you? Or how would you like it if the mechanic told you that he was in the middle of making repairs that you didn’t ask for and accidentally caused more damage? The easy answer is that you wouldn’t like it at all.

Although the stakes are much higher than they would be with your car, these same principles are behind Maryland’s laws regarding what is called “informed consent” between you and your doctor or surgeon. What this means is that if you are going to have any medical or surgical procedure, no matter how major or minor, the medical professionals in charge of your care need to tell you everything about your medical procedure, and they need to have your permission before they can carry on.  

There are exceptions to this, of course. For instance, if you get into a car accident and surgery is necessary to save your life, the medical staff involved can rightfully assume that permission is given. But if the surgery is elective, or something that is planned in advance, it is the duty of the medical staff to tell you everything that they can.

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Is A Monetary Cap In Medical Malpractice Fair?

It’s impossible to put a price tag on a crippling emotional loss. If someone walked up to you and offered you a sum of money in exchange for your infant son’s life, how much would be enough?

That’s an impossible question. The idea of putting a price tag on the life of a loved one is simply ridiculous.

But that didn’t stop Texas from doing so. Thanks to a ballot initiative that was voted into law back in 2003, the life of an infant is worth no more than $250,000. If a doctor prescribes a drug that puts a loved one in a coma, again, that’s worth no more than $250,000. If your wife dies on the operating table due to a preventable surgical error, that’s only worth $250,000.

$250,000 is the monetary cap that was placed on non-economic damages in medical malpractice verdicts. What that means is that the only thing you can be made whole for in Texas is something that would cost you money in the long run. For instance, if you make your living as a pilot and a surgeon makes a mistake that costs you your sight, you would be justified in suing the doctor for all the lost income that you would have made during the remainder of your career. But the emotional scarring and pain that you would have to go through in order to adjust to life without sight is, according to Texas law, only $250,000.

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Perils of Anesthesia.

Occasionally we read about medical errors and malpractice cases brought as a result of anesthesia errors. Despite the overall healthcare improvements and technical innovations, anesthesia errors still pervade our medical system.
Anesthesiology is a branch of medicine specializing in the use of drugs or other agents that cause insensibility to pain. While anesthetics are essential to conducting many medical procedures with little to no discomfort, they carry the risk of unwanted post-effects. Anesthesiology is also defined as a continuity of patient care involving preoperative evaluation, intraoperative and postoperative care. Most people think of anesthesia-related malpractice as it relates to surgery; however it can happen during pre-operative preparation, post-operatively in the recovery room, and in any procedure room in a medical facility or doctor’s office. Anesthesia mistakes can take place during childbirth and even before routine dental procedures. Anesthesia mistakes are not limited to anesthesiologists.

According to the American Society of Anesthesiologists , it is estimated that nearly 40 million anesthetics are administered each year in this country. Anesthesiologists provide or participate in more than 90 percent of these anesthetics. In the operating room, they are responsible for the medical management and anesthetic care of the patient throughout the duration of the surgery. The anesthesiologist must carefully match the anesthetic needs of each patient to that patient’s medical condition, responses to anesthesia and the requirements of the surgery. In many surgical settings, anesthesiologists work in the “anesthesia care team” mode, medically supervising the work of non-physician anesthetists such as nurse anesthetists and anesthesiologist assistants, who, although are not physicians, have been trained in the technical administration of anesthetics. Anesthesiologists have important functions outside of operating rooms, such as evaluating patients prior to surgery or conducting postoperative visits. However, the majority of their activities, which are performed inside the operating room, are seen by few people outside of the surgical and nursing team. Usually the patients are unable to remember the anesthesiologist’s involvement because much of the critical work may be done while the patient is anesthetized. The role of the anesthesiologist in the operating room is to: 1) provide continual medical assessment of the patient; 2) monitor and control the patient’s vital life functions; and 3) control the patient’s pain and level of consciousness to make conditions ideal for a safe and successful surgery.
 

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Breast Cancer Awareness: Is it Possible to be Over-aware?

Breast cancer awareness month has just passed. The importance of regular mammograms for cancer prevention is one of the mottos of this battle for cancer screening. Most cancer is treatable if it is caught early enough in the process. The stories related to this terrible disease are very tragic, and stress the importance of early detection. We've all heard or known about someone who was too afraid to go to the doctor until it was too late. This illustration has been talked about many times in cancer prevention month.  A woman too afraid to go to the doctor delays getting treatment, thinking she could walk-off the lump in her breast until she fell so sick that she finally had to see her health professional. Once at her doctor’s office the woman learns that she has breast cancer, which by now has spread throughout her body. Her chance of survival is low now, and it is dependent upon the success of a rigorous course of surgeries and chemotherapy treatments. The worst part of this story is that the woman would have had a 100% chance of survival if she had come in when she first noticed a problem.

And that story is only the beginning. There are a plethora of tragic stories related to this disastrous illness, such as the woman from Sydney, Australia who recently was awarded a mere $400,000 after a breast cancer misdiagnosis. The woman went to her doctor for an annual mammogram. A lump showed up in the mammogram, but she was reassured by her doctors that it was benign and nothing to worry about, only to later find out that the lump had been cancer, which by that point, had metastasized to her lungs and her brain. These stories are incredibly tragic, and hopefully, breast cancer awareness campaigns, such as breast cancer awareness month, will reduce the incidence of such horrible occurrences in the future.
Regular mammograms are widely heralded as the key in breast cancer awareness. But how reliable is this technology?
 

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Hospital Acquired Infections

                The Center’s for Disease Control and Prevention estimates that 5 -10% of hospitalized patients develop an infection related to healthcare association (HAI).  This corresponds to approximately 2 million HAI’s associated with nearly 100,000 deaths each year in US Hospital.  Studies have shown that patients requiring intensive care are at much higher risk. Most infections that become clinically evident after 48 hours of admission are considered hospital acquired.  Sadly, many of these could have been prevented by implementing practices that would have prevented the infections.  Recent measures put into effect in some hospitals focused on HAI prevention into regulatory and financial reimbursement systems, which reflect the growing belief that many HAIs are preventable, possibly thru the implementation of evidence based “best practices.”

                There are three different risk factors for the invasion of bacteria, which can be categorized into three different areas: 

·         Iatrogenic – These include bacteria transmitted from the hands of hospital personnel, antibiotic use, prophylaxis and invasive procedures sure as tube intubation, vascular lines, extended ventilation and urine catheterization.

·         Organizational - This includes environmental situations such as contaminated ventilation systems and water systems and staffing and physical layout of facilities, for example bed to patient ratio and nurse to patient ratio.

·         Prophylaxis – This includes issues such as length of stay, underlying immune-compromised state and severity of illness.

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Surgical Errors, Medical Malpractice
 

Undergoing surgery is never a pleasant experience. Each surgery has its risks and rewards, or we would not consider getting surgery as a form of health care. It is vitally important that the surgeon operate with precision, as even the most seemingly insignificant mistake can result in grave consequences for the patient. According to the Centers for Disease Control and Prevention, there were over fifty million surgical procedures performed in the United States in 2007 alone, and sadly, a number of surgical mistakes did take place.

Some of the most common surgical errors include post operative and pre-operative infections, performing surgery on the wrong part of the body, or even on the wrong patient. Although it is difficult to believe that such a mistake as performing surgery on the wrong body part could occur in modern medicine, hundreds of people each year have the wrong leg, arm, side of the body, or even hemisphere of the brain operated on. Many surgical mistakes stem from oversights in pre-operative care, such as a false positive or a false negative report from a lab, or the surgeon fails to collect a complete medical history of the patient before the surgical procedure. Other surgical mistakes result from allergic or other adverse effects of medication. Perforations of internal organs by a scalpel or a laser can cause severe harm to a delicate organ. Severing a nerve is quite common, since the nervous system runs throughout the entire body and is extremely vulnerable. Some of the most common types of surgeries where surgical errors are likely to occur include gastric bypass, childbirth, cardiothoracic, thoracic surgery, laparoscopic intestinal surgery and plastic/cosmetic surgery. Finally, anesthesia errors can happen during surgery, with even a small error in dosage causing grave and potentially life-threatening consequences.
 

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Wrongful death in a medical malpractice.

Medical malpractice is a serious issue in our hospitals and is a leading cause of wrongful death. Over 225,000 people die from medical malpractice related injuries in a single year. A US Department of Justice report in 2007 noted that the number of payouts stemming from medical malpractice cases increased 40%. According to a new study by the Department of Health and Human Services (DHHS) Agency for Healthcare Research and Quality (AHRQ) one of every ten patients nationwide who died within 90 days of surgery did so because of a preventable medical error. The study also found that those same errors cost nearly $1.5 billion annually. We are taught to trust doctors and follow their advice as it pertains to our health. After all, doctors go through an extensive course of training, pass a medical board exam and complete several years of residency, which thoroughly prepare them to treat and protect our health. Unfortunately, despite all of these safeguards, medical errors are all too common.

Medical error may turn a routine medical procedure into a tragedy. Generally, a medical error is not necessarily medical malpractice. A deviation from the standard of care is what makes a medical mistake a potential malpractice claim. This is known as medical negligence. Some medical errors include surgical malpractice, medication errors, bacterial infections, birth injuries, dental malpractice and diagnosis errors. Often, preventable medical mistakes result from staff failure to follow standard policies and procedures. Some suggest that medical errors occur due to lack of sleep. Others believe that the doctors service too many patients in too short a time. After being on duty for many hours, physicians, nurses and other medical workers may not communicate well due to fatigue, or time constraints with the numerous patients.

Many states have enacted “apology laws” for healthcare workers. These laws provide for open expression of regret, sympathy or compassion by physicians and other healthcare providers without fear of such apology being used against them in a malpractice suit. These laws are purportedly designed to diminish the number of lawsuits against medical workers by providing families and friends of victims with a sense that the medical provider regrets the unfortunate or tragic outcome of the medical error. The apology laws are designed to encourage healthcare providers to speak candidly with the victims. These laws conflict with the advice given to medical providers by their malpractice insurance carriers who advise doctors not to admit any errors unless they are protected by legislation. Moreover, many hospitals waive costs of medical bills when involving medical errors with the patient.
 

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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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Medical Malpractice – Cerebral Palsy

Cerebral Palsy is a term used to describe a group of disorders caused by brain damage that affect body movement and muscle coordination. It is a non-progressive disorder which means it will not worsen over time, nor will it be cured. Brain damage that causes Cerebral Palsy can happen during pregnancy, the birth, or shortly after birth; and can be attributed to illness during pregnancy, pre-term birth, or a lack of oxygen to the baby during birth. In the early childhood years it can develop due to certain types of infection, a lack of oxygen to the brain, severe jaundice and other factors. Over 750,000 children and adults in the US suffer from some form or show one or more symptoms of Cerebral Palsy. About 8,000 babies are diagnosed with Cerebral Palsy every year. Cerebral Palsy patients are often diagnosed with the disorder before 18 months of age, usually after  parents notice infants have not reached certain developmental milestones such as crawling or rolling over.

Effects/Symptoms

Some of the effects of Cerebral Palsy are involuntary muscle spasms, awkward gait, poor balance, difficulty swallowing, sight or speech impairment, seizures, abnormal sensation and perception, or mental retardation. Additionally patients with Cerebral Palsy may experience difficulty with bladder and bowel control, difficulty eating, skin disorders, breathing problems because of poor posture, or learning disabilities.

Types of Cerebral Palsy

There are three main types of Cerebral Palsy: spastic, athetoid, or ataxic. Spastic cases, the most common, affect 70 to 80 percent of Cerebral Palsy patients, and are further broken down into three categories. Patients whose lower extremities are affected more so than upper are classified as spastic diplegia;  patients who experience difficulty with only one side of the body are classified as spastic hemiplegia; and patients whose whole body is affected are classified as spastic quadriplegia. Cases of athetoid Cerebral Palsy affect roughly 20 percent of Cerebral Palsy patients. Its characterized by involuntary motions, trouble holding a steady position, or slow, writhing movements. Such patients often have difficulty getting their hands to a certain spot or holding on to objects. Ataxic cases are far less common, affecting less than 10 percent of Cerebral Palsy patients. Affecting balance and depth perception, ataxic Cerebral Palsy patients have difficulty walking steadily or when trying to execute a swift movement. Basic motor skills may also present difficulty.

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 an estimated 1,000,000 injuries per year versus 85,000 lawsuits). This statistical gap leads to two conclusions. Most injured patients do not pursue a claim against the responsible doctor(s). Also, the system filters claims – preventing the frivolous from coming to court.

No doubt the greatest signal barrier to reducing the number of frivolous claims is the plaintiffs’ lawyer. Because plaintiffs’ lawyers frequently work under a contingency fee arrangement, there is a strong economic incentive to pursue only those claims that have a high likelihood of recovery and a high potential recovery value. Professor Herbert Kritzer of the University of Wisconsin surveyed plaintiffs’ attorneys in Wisconsin regarding acceptance rates of medical malpractice cases. Professor Kritzer found that 80% of all medical malpractice cases were declined at the initial contact with attorneys. Another study looked at how particular attorneys handled such inquiries. The lawyers’ office received calls from 730 people over 10 randomly selected days. Only 1 in 30 calls resulted in litigation – lawyers rejected 97% of potential plaintiffs. Greenberg & Bederman has accepted only 5% of medical malpractice inquiries in 2007. Additionally, cases that are initially accepted by lawyers are dropped because they turn out to be weak. In short, lawyers must screen potential cases because:

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Another study has been published about doctors failing to self-report mistakes, despite consensus that doctors should. The new study by the University of Iowa (Go Hawks!) surveyed 338 doctors at three unidentified teaching hospitals. 17% of respondents admitted failing to report “minor” errors (defined as mistakes that prolonge treatment or cause discomfort). 4% of respondents admitted failing to report mistakes that caused disability or death. Lead researcher Lauris Kaldjian was troubled that fewer than half of the respondents stated that they would report hypothetical errors. He said that doctors and other medical professionals should follow the airline industry, which encourages pilots to report every error to check for systemic flaws.

One continues to wonder why doctors would not report errors considering the favorable treatment they receive from politicians and legislatures. The Commonwealth of Virginia’s medical board has reprimanded 2 doctors for their handling of births that resulted in devastating, lifelong injuries to infants during delivery. Both of the affected families were blocked from suing the doctor and hospital because of the commonwealth's 20-year-old, no-fault Birth-related Neurological Injury Compensation Act. In addition, the public reprimands neither fine nor limit the doctors ability to practice medicine. There will, however, be a notation in their permanent records.

The doctors are: Dr. Evelyn Anna Ruelaz of Fairfax County and Dr. Regina Burton of Woodbridge.

To learn more about medical malpractice issues, please see our website at medical malpractice law.  To learn more about our medical malpractice lawyer, John Sellinger, please click medical malpractice lawyer maryland, or watch his medical malpractice video.

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Nearly $1M awarded in wrongful death
Originally published April 04, 2006
By Kate Leckie
News-Post Staff

FREDERICK -- A Frederick County Circuit Court jury has awarded $935,000 to the family of a Thurmont man who died about two weeks after having his gallbladder removed at Frederick Memorial Hospital on Aug. 7, 2002.

Deliberating about eight hours following a nine-day medical malpractice trial, the jury of four men and two women found that nurse Abu Kamara and Dr. Steven Nagel violated adequate standards of care for Lester Moser. They reached their verdict about 10 p.m. Friday.

The jury only placed damages against Mr. Kamara and his employer, OMV Medical Inc., ruling that it was the nurse's failure to keep Dr. Nagel informed of the patient's worsening condition that led to Mr. Moser's fatal injuries, according to documents filed at the Frederick County Courthouse.

Mr. Kamara failed to contact Dr. Nagel about three key factors: that Mr. Moser was complaining of severe pain Aug. 9, 2002; that a tube needed for suctioning was not inserted in a timely fashion; and that the patient had vomited.

Transferred to Johns Hopkins Hospital on Aug. 21, 2002, Mr. Moser died two days later of sepsis and organ failure, court documents state.

Mr. Moser, a lifelong Frederick County resident, was 79 when he died.

Virginia Moser filed the wrongful death suit Sept. 16, 2003, about a year after her husband's death from complications arising from the elective surgery.

Citing her husband's conscious pain and suffering, funeral and burial expenses, the suit sought more than $100,000 in damages for the death of her husband of 56 years and the father of her three grown children.

The jury awarded $55,000 for past expenses related to Mr. Moser's medical care; $500,000 in noneconomic damages to his estate; $250,000 in damages to his wife; and $130,000 total in damages to his children.

Contacted Monday by telephone, Ms. Moser had little to say about the trial that ended years of legal maneuvering. "It was hard," she said.

Son Wayne Moser said the family was satisfied with the verdict.

"We're not the type to sue, but we were upset with the way my father's care at the hospital was handled," Mr. Moser said. "You put your family member in the hospital, and something horrible like this happens.

"This has been a great loss for our family," he said.

John J. Sellinger, the lawyer representing the Mosers, said the family was gratified that the jury found in their favor.

"It's been difficult emotionally for them to relive such a painful event. I never met him, but Lester Moser sounds like he was a wonderful man," said Mr. Sellinger of the Silver Spring office of Greenburg & Bederman. "They're really good people."

Mr. Moser's obituary referred to an upbringing on the family's farm and time spent in the orchard.

He also worked as a school bus driver and rural letter carrier.

Mr. Kamara and OMV Medical Inc. of Takoma Park were represented by Stephen J. Cullen of Miles & Stockbridge in Towson. A phone call seeking comment Monday was not returned.

Before the case went to trial, Dr. Kevin Hurtt, who performed Mr. Moser's surgery, and Frederick Memorial Hospital were dropped as defendants.

Judge G. Edward Dwyer Jr. presided over the civil trial.

To learn more about medical malpractice issues please see medical malpractice law.  To learn more about our medical malpractice lawyer, John Sellinger, please click on medical malpractice lawyers maryland, and read the frim bio on John Sellinger.

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The American College of Physicians published a new report in its publication The Annals of Internal Medicine. The report was a survey of over 1,600 physicians during the period of November 2003 to June 2004 regarding whether or not they reported violations of professional codes by other physicians. Although 96% of responding physicians stated that physicians should report impaired or incompetent colleagues, only 45% of respondents who had encountered impaired or incompetent physicians actually reported them. Cardiologists were the least likely of all medical specialists to report a serious medical error of which they had direct knowledge. Family practitioners were the least likely to report an impaired or incompetent colleague (Cardiologists were second by only 0.8%). Jack Lewin, CEO of the American College of Cardiology, says that cardiologists are more likely to handle such problems within their practice groups as opposed to, presumably, reporting such instances to the appropriate authorities.

First, can we please have the names of the doctors in the 4% who do not think mistakes, incompetency and impairment should be reported?

Second, this study only gives further proof of an important argument. As convenient as it is for doctors, insurance companies and politicians to scream about the rising costs of medical malpractice litigation and plaintiffs’ lawyers, the real problem cannot be ignored. Doctors are simply not well regulated. Bad doctors continue to practice without discipline. Doctors fail to report mistakes and incompetency in their colleagues. This type of behavior is not only in direct opposition to the requirements of the Hippocratic Oath but it’s also morally reprehensible. Eric Campbell, the lead author of the study and an assistant professor at Massachusetts General Hospital's Institute for Health Policy, said that "failing to report incompetent physicians and allowing them to practice will have an impact on the welfare of patients...It's clearly something that people should be aware of."

In comparison, lawyers have an ethical duty to report such errors or incompetency in their lawyers. Failure to do can result in discipline for the non-reporting lawyer. Doctors should be held so accountable.

Other notable results from the survey:

• a majority of responding doctors said they would refer patients to an imaging facility (e.g., for an MRI) in which they had a financial interest, but only 24% would actually tell theirpatients of that financial interest. 
• while 93% said doctors should provide necessary medical care regardless of a patient's ability to pay, only 69% currently accept uninsured patients who are unable to pay

To learn more about medical malpractice issues, please see medical malpractice law.  To learn more about our medical malpractice lawyer, John Sellinger, please click on medical malpractice lawyer maryland, and read the firm bio.

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In the last few days, Republican politicians have once again been arguing for reform and regulation of lawsuits. During this same period, the national news wire agencies have seen several articles detailing with medical horror stories:

Man dies of heart attack after waiting three hours in hospital waiting room complaining of chest pains

Rhode Island Hospital operates on wrong side of patient’s brain for third time THIS YEAR 

Remember that these stories are more common than one might think. The medical profession is not sufficiently regulated. Remember egregious mistakes like these the next time politicians begin waxing poetic about the tort reform.

In better news, trial lawyers are actually making legislative headway protecting the rights of the injured and unprotected. The article, however, makes it a point to mention how much money trial lawyers donate to the Democratic party and its candidates. It does not, however, mention how much money insurance companies donate to Republicans.

To learn more about medical malpractice issues, please visit medical malpractice law.  To learn more about our medical malpractice lawyer, please click on medical malpractice lawyer maryland, and read about John Sellinger.

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According to the L.A. Times, an investigation has been launched into the doctor and the death of rap and music star Kayne West's mother, Donna West. The Los Angeles County coroner completed the preliminary autopsy and ruled Ms. West's death to be "as a result of surgery or anesthesia."

The doctor, Jan Adams, is not a stranger to complaints. Earlier this year, he was served with a complaint seeking to revoke or susend his license to practice medicine due to three convictions for alcohol-related offenses. Dr. Adams paid out $467,337 in settlements for medical malpractice claims in 2001. In 2005, Dr. Adams was sued for medical malpractice and sexual battery by a patient. That complaint alleged that Dr. Adams had sex with an incapcitated patient. That case was settled out of court with a confidentiality agreement.

 To learn more about medical malpractice issues, please see medical malpractice.  To learn more about our medical malpractice lawyer, John Sellinger, please click on maryland medical malpractice lawyer, and read our firm bio.

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As the 2008 election cycle nears, the American public will undoubtedly begin hearing about the legal boogeyman – frivolous medical malpractice lawsuits. Texas Republicans famously (and deceitfully) distributed a press release in 2002 that claimed that 86% of all medical malpractice claims were frivolous. President Bush has declared the need for tort reform regarding medical malpractice claims in his State of the Union address. There is no reason to believe that in the current political climate, candidates will not again try to score points with voters by trumpeting reforms of the tort system. But, should voters listen to that tired old song?

The argument goes that frivolous lawsuits are increasing medical malpractice insurance premiums, which in turn makes the practice of medicine prohibitively high. This argument has two main parts: (1) that there are a lot of frivolous lawsuits; (2) increased pay-outs for claims (by settlement or court judgment) increase insurance premiums. Research has shown that both of these claims are false.

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