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

Believe it or not, it seems that the truth is the exact opposite of that claim. We are getting this information from a study that was published in 2006 by the American College of Emergency Physicians. While we realize that the study is five years old, what makes this study important is that it gives grades in two categories. The first would be quality and availability of care, and the second is what is called “liability environment.” “Liability environment” means the extent to which emergency room physicians are legally liable for damages. If there are caps and other restrictions in place in that particular state, the state is more likely to get an A or a B. If there are few or no restrictions, the state is likely to get a D or an F.

So here are some interesting results from the two-category grading system used by ACEP:

                                            Access to Care                          Liability Environment

District of Columbia                    A+                                                     F

Pennsylvania                               A                                                        F

Massachusetts                             A                                                        D

Maine                                          A                                                        D

Rhode Island                               A                                                        F

Ohio                                            A-                                                       D

Connecticut                                 A-                                                       F

As you can see, all of these states have a liability grade of either D or F. As far as the ACEP is concerned, these states are terrible places to practice medicine. There are either no caps on damages or the caps are on the higher end of the spectrum. There are no so-called “good Samaritan laws” or any other form of immunity for emergency room workers. Yet when you look over at the Access to Care categories, where you would expect to see equivalent bad grades, all you can see are a row of A’s. This means that there are plenty of emergency room workers, low waiting times and a high quality of care received. This goes directly against the standard argument of tort-reformers and insurance companies. There has been no exodus of emergency room physicians due to their fear of being sued.

So what do you think happens if you take a look at the other end of the spectrum? What is the quality of care like when the doctors (and insurance companies) are protected by caps and immunities?

                                            Access to Care                          Liability Environment

Texas                                          D+                                                    A+

California                                   C                                                       A+

Montana                                    C+                                                      A

Nevada                                       D+                                                     A

South Carolina                           C                                                       B+

Georgia                                      D+                                                     B

Colorado                                    C+                                                     B-

Again, we see the exact opposite of what tort reformers and insurance companies expect you to see. No fear of lawsuits, but no real spike in the amount of doctors or the quality of medical care.

Since we very much doubt that any of the tort reformers will give any sort of explanation for these findings, we would like to venture one. Medical malpractice lawsuits do not exist simply to make people money. They exist to help people who have been injured by the mistakes of doctors receive some sort of compensation. They also exist to help keep doctors on top of their game. If there are no consequences for bad medicine, bad medicine will thrive. Look at the doctors in Texas. They have no fear of being sued, so why bother going that extra mile? Why bother double checking? Why bother taking a second to make sure that the diagnosis is correct? What’s the worst that could happen?

Nothing will happen to the doctors, so the patients are on their own.

Greenberg and Bederman is a Maryland-based Medical Malpractice law firm. Our main office in Silver Spring allows us to serve the entire Washington, D.C. area, as well as Baltimore, Maryland. If you or a loved one in Washington, D.C, Virginia or Maryland has been injured due to the actions of a doctor, contact Greenberg & Bederman for a free legal consultation today.

Indiana is one of those states with “caps” in place on the amount of damages that a plaintiff can receive in a case. And in the event that someone wants to sue Indiana, the limit that they can get is $5 million. That seems like a lot, except we don’t mean $5 million per person. We mean $5 million per incident.

With seven people dead and forty-five people injured (many of them seriously,) a hard ceiling of $5 million will not be enough to cover the medical bills of the survivors, or to compensate the families of those who died. If you don’t count the seven deaths and consider just the forty-five injured, divvying up $5 million would give each injury victim around $111,111, but that’s assuming that the state will be willing to go all the way up to the limit of $5 million. And if you only count the seven deaths and not the forty-five injured, the family of each victim would get around $714,000, again assuming that the state will allow the maximum payment to be made. Or perhaps they will figure it out some other way. Maybe the people who survived but are injured will get a little bit of money, and maybe they will give more of the share to the families of the people who died, or maybe they should do it vice versa.

Do you see the sickening sort of arithmetic that has to take place once there are damage caps in place? Rather than allowing each case to be determined on its merits and centered on the needs of the victims or their loved ones, Indiana has forced all of these victims of negligence to scratch and scrape for inadequate funds. The severely injured will be left with overwhelming medical bills and will probably have to turn to Indiana for aid anyway, or they will have to apply for Social Security Disability payments or Medicaid.

To us, this appears to be the same old story. Everyone in a state is sold on the idea that there is a plague of frivolous lawsuits, they agree to caps on what plaintiffs can be awarded, and then due to an accident, negligence or simply any unforeseen event, they find out the hard way what these caps really mean. People in Indiana are learning this lesson now, and unfortunately so are the victims of the State Fair stage collapse.

Greenberg and Bederman is a personal injury law firm located in Silver Spring, Maryland. We are currently offering legal assistance to victims of car accidents, medical malpractice, negligence or defective prescription drugs. If you or a loved one in Maryland, Washington, D.C. or Virginia has been injured in an accident, contact Greenberg & Bederman for a free consultation today.

Here is the text:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

What this means is that if you feel that you have been wronged or injured due to the actions of someone else, you have the right to have your case heard in court. This is an important facet of our society. In the first place, it prevents us from deteriorating into the law of the jungle, and secondly, it keeps people from ripping you off, taking advantage of you or hurting people with no consequences whatsoever.

Many large corporations find the Seventh Amendment decidedly inconvenient, at least when it comes to people suing them. They are big fans of the Seventh Amendment as long as they are on the “plaintiff” side of the lawsuit. So many corporations have found all sorts of interesting ways to get past the hassle of the rights of Americans. For instance, one of them happens to be what is called “the mandatory arbitration clause.”

This usually exists in the fine print of contracts, and we can almost guarantee you that you have signed one without even knowing it. Many cell phone companies have them in the small print of your service contract. What this means is that even in the event of a cell phone-related catastrophe that causes serious injury that is undeniably the fault of the cell phone company, you have signed away your Seventh Amendment rights without knowing it, and therefore cannot file a lawsuit against the company. Instead you get a hearing in front of an “arbitrator,” which is someone who makes a decision that has the full weight of the law behind it. The problem is that the arbitrator is hired by the cell phone company. There is nothing impartial about this process.

Many employers also have mandatory arbitration clauses in their employee contracts. So, again, no matter what happens, you cannot sue. You have to go through mandatory arbitration, with someone who is hired by your employer making the final decision. One particularly notorious example of this was Jamie Leigh Jones, an employee of Kellogg Brown and Root who claimed that she suffered a particularly awful case of sexual assault when she was employed in Iraq. There was some doubt as to whether rape occurred or not, but thanks to KBR’s mandatory arbitration clause, it took her three years to get her day in court, which she had to fight for every step of the way.

On top of mandatory arbitration, other methods have been used to circumvent the Seventh Amendment rights of Americans. One in particular is called “caps” on damages, which place a limit on the amount of non-economic damages that a plaintiff can win in court. Tort reform advocates would argue that they aren’t preventing Americans from going to court, but rather simply placing a limit on how much they can win. But since it often costs more to try a case in court than a plaintiff could win with many of these damage caps in place, it often amounts to the same thing.

So how did we agree to all of this? Effective public relations are certainly a big part of it. And perhaps the biggest tool that corporations use is yet another circumvention of a constitutional amendment. In this case it is the First Amendment.

There are occasions where corporations simply get caught red-handed, and in order to minimize the damage they agree to a settlement. What this means is that there isn’t a judgment involved. The defendant agrees to pay a certain amount of money to the plaintiff, and the matter is considered dropped. But quite often, these settlements come with strings attached, and the most common string that is used is called a gag order.

Gag orders prevent you from speaking publically about the terms or the amount of your settlement. And quite often, they only go one way. So while you would be unable to speak about the lawsuit or what caused you to sue in the first place, nothing prevents them from saying whatever they want.

You may have noticed that in the annual list of “frivolous lawsuits” that many tort reform organizations go into great detail about how ridiculous certain court cases are. These examples are picked up by the media, talk radio hosts, newspaper editorials and magazines, and everyone reads them and thinks it’s a crying shame, and as a result they don’t think twice about agreeing to more and more restrictions on their Seventh Amendment rights. But if you look carefully at these “frivolous” cases, you never hear from the plaintiff. You only hear one side of the story. The defendant can make things up, or the defendant can leave out crucial information and the defendant can minimize the extent of the injuries or harm done, and the plaintiff will not be able to correct the record at all, because if he or she does, they will lose the settlement.

So please, the next time you take a look at one of those “examples of ridiculous lawsuits,” please consider the source, or rather consider the source that you aren’t hearing. It might alter your thinking quite a bit.

Greenberg and Bederman is an injury law firm located in Silver Spring, Maryland. We are currently offering legal assistance to anyone who has been injured due to the actions of someone else. This includes victims of car accidents, medical malpractice or injuries due to defective drugs or products. Please call or email ourpersonal injury lawyers for an evulation of your case.If you or a loved one has been injured in an accident, contact Greenberg & Bederman for a free consultation.

Believe it or not, this is what’s happening in Texas right now.

Depending on your perspective, Texas is either a “great” or “terrifying” place in which to receive medical care. If you happen to be a doctor or insurance company, it’s great. If you happen to be a patient, it most certainly is not the best. Under the guise of “tort reform,” people in Texas who seek emergency room treatment have essentially no legal recourse if the doctor treating them makes an error. The fine print of the 2003 tort reform law in Texas states that unless an emergency room physician acted with “willful and wanton negligence,” no victim of emergency room malpractice is eligible for civil damages at all. This means that it has to be proven that an emergency room physician meant to make a mistake, which is about the biggest legal oxymoron we have ever seen. On top of that, the main thrust of the 2003 tort reform capped non-economic damages at $250,000 for medical liability, which might seem like a lot, but is actually about what it costs to get a medical malpractice case through the court system in the event that a malpractice insurance company wants to settle. (They very rarely do.) So what you have in Texas is a system where people who have been clearly injured due to medical negligence are unable to bring their cases to court, either because they were injured in the emergency room and are therefore ineligible for civil damages, or because the restrictions on compensation make it financially impossible for plaintiff’s attorneys to take the case.

This has made life great for insurance companies in Texas. It has also made life great for doctors, who have had their chances of being brought to court dramatically reduced, even if they have committed medical malpractice. By limiting the options of what victims of medical malpractice can do after they have been hurt, doctors are free to practice their profession without the fear of being sued, and malpractice insurance companies are free to insure doctors without the fear of having to pay malpractice claims.

So now that Texas has essentially no consequences for medical professionals who make mistakes, guess what happens? The standard of care drops, for starters. And doctors, nurses and administrators start taking advantage of the legal protections in new and clever ways.

From the Associated Press:

The federal government said after an inspection at Parkland Memorial Hospital found conditions that were a "serious threat" to patient safety, the public hospital will not be able to participate in the Medicare program without coming up with correction plans.

Among the reasons for this potential removal of Medicare money are violations of infection prevention protocol, as well as a practice of moving the majority of patients to the emergency room to be screened, regardless of whether their condition required urgent care or not. The reason for that is probably to cover all the bases in the event that someone screws up. Remember, emergency room equals no liability. So if you check into a hospital in Texas with a manageable and minor ailment, don’t be surprised if they make you go down to the emergency room first.

So what do the patients in Texas get out of all of these protections for doctors and insurance companies? Not much. Rather than focusing on actual instances of malpractice, Texas decided to focus on restricting or removing the legal options of people after they have been hurt, which will do nothing to lower the rate of medical malpractice, wrong diagnoses, surgical errors, prescription errors or hospital infections. If anything, it would allow doctors, surgeons and nurses to practice with less care and concern, mainly because the consequences for negligent or sloppy medical care have been removed.

The next study that needs to be performed is to learn whether the cap on medical damages has resulted in lower medical malpractice premiums for Texas doctors and healthcare providers.

This is something to keep in mind in the event that any legislators in Virginia or Maryland point to Texas as an example of the “good” that tort reform can do.

Greenberg and Bederman is a medical malpractice injury firm located in the Washington, D.C. area. We are currently offering legal assistance to those who have been injured due to surgical errors, wrong diagnoses, hospital infections or other preventable forms of medical malpractice. If you or a loved one in Maryland, Virginia or D.C. has been injured due to the negligence of a doctor or medical professional, contact Greenberg & Bederman for a free consultation today. 

We’re pretty sure that the ATRA and the Chamber of Commerce have plenty of lawyers themselves, and we are willing to bet that they understand the definitions of “plaintiff” and “defendant.” The reassignment of the word “victim” is a clever juxtaposition of roles in a legal case, and if it gets hammered into the heads of the general public long enough, they will probably start to believe it.

We also have a problem with the idea that lawsuits are epidemic. They simply do not occur very often.  According to the Center for Justice and Democracy, only about ten percent of injury victims file a compensation claim, and only two percent of those that file a compensation claim go on to file a lawsuit. The National Center for State Courts states that tort lawsuits have declined 21 percent over a ten year period in 30 states, and they further mention that contract lawsuits (corporations suing corporations) have increased 25 percent in 13 states over that same period of time. Oddly enough, you never hear from tort reformers and the Chamber of Commerce complaining about the explosion in contract lawsuits. It appears those sorts of lawsuits are just fine and dandy.

What about the contention that lawsuits are the bane of the small businessman’s existence? The Chamber of Commerce claims to be the official spokesmen for businesses everywhere, both small and not so small. As far as the Chamber is concerned, every small business out there is terrified of lawsuits. But a recent poll suggests that they maybe they should ask the small businessmen themselves; mainly because it seems that fear of lawsuits is pretty far down on the list.

The National Federation of Independent Businesses surveyed a large group of small business owners in order to get an overall sense of their worries and concerns. The various problems faced by small businesses were ranked in order of concern, and to be sure, fear of lawsuits was on the list. However, it was listed at number 65 out of 75, with 36.7 percent of respondents claiming that it “was not a problem.” Above the “fear of lawsuits” was listed such concerns as “traffic,” “delinquent accounts,” “getting information on government assistance programs” and, “cost of health insurance,” which was solidly in first place.

Small businesses seem to be the watchword of the day over at the Chamber, along with “job-killing,” which is the term they hang in front of anything that they don’t like. As they push forward with more and more legislation on state and national levels, the rationale is that “caps” on damages and restrictions on who can go to court will “help small businesses”, but if the small businesses aren’t particularly worried about lawsuits, who benefits the most from these caps?

We suspect it would be the “non-small businesses.” Large corporations, chemical manufacturers, pharmaceutical companies and insurance companies, who interact with a much wider percentage of the populace, and therefore have more of a tendency to do more damage if they are negligent. If anything, these caps and restrictions could actually help prevent small businesses from receiving fair compensation if they are forced to go to court against a large corporation, to say nothing of the restrictions they already place on individual citizens.

Greenberg and Bederman is a personal injury law firm located in the Washington, D.C. area. We offer experienced and dedicated legal counsel to those who have been hurt due to no fault of their own. If you have suffered from a medical malpractice, been injured in a car accident, suffered an adverse effect from a pharmaceutical drug or medical device, or been hurt due to the negligence of someone else, contact Greenberg & Bederman for a free consultation.

For instance, let’s say you are a public school teacher and get severely injured due to the actions of an enormous corporation. Would you like to run the risk of paying the law firm that this corporation hires to defend itself in the event that you end up losing your case? Aside from the fact that there is no such thing as a “slam dunk” lawsuit, corporations often drag cases out in order to make lowball settlement offers more appealing. Do you have any idea how much that would cost? Probably a lot more than it would cost to make you whole after your injury.

It is already difficult enough for people in Texas to access the courts in the first place. Tort reform laws for medical malpractice have essentially made it impossible for low income individuals to enter the courtroom. With strict damage limits on non-economic damages, malpractice lawyers (most of whom operate on a contingency fee basis) can’t afford to bring these cases to court. After court costs, hiring expert witnesses, and the general labor of bringing a case to trial, most attorneys would end up losing money on the case. And a cap on non-economic damages might not bother you if you happen to play first base for the Washington Nationals, but if you are like the vast majority of the rest of us, non-economic damages are a crucial part of an injury case. Plus, if you happen to get injured due to the actions of emergency room personnel, the only way they can be found guilty in Texas is if they admit that they meant to hurt you. And who in their right minds would do that?

So now that doctors (and their insurance companies) are squared away and protected in ways that don’t extend to their patients, Governor Perry has decided to make sure that the rest of the folks who need the least protection get the most of it. The code word is “small businesses,” which is actually just short hand for “large businesses.” Basically, it doesn’t matter how much damage they do. There are now a series of safety nets in Texas that allows businesses to do whatever they want, regardless of the consequences. I mean, what are you going to do if you get hurt? Sue them? Are you sure you want to do that? What if you lose? And if you win? You might be able to maybe keep your house with the winnings. But it will be back to business as usual for them.

It’s worth mentioning that in the press release, there is plenty of talk of judges and defendants, and how this new legislation will make everything easier for them. But there is not one mention of the rights of plaintiffs, injury victims or victims of medical malpractice. Mentioning injury victims wouldn’t be very popular with this bill.

Greenberg and Bederman is a personal injury law firm located in Silver Spring, Maryland. We are currently offering legal assistance to victims of medical malpractice in Maryland, Virginia and Washington, D.C. If you or a loved one has been a victim of a surgical error, wrong diagnosis, prescription error or any other form of medical malpractice, contact Greenberg & Bederman for a free consultation. 

The overall premise of the article in the News-Sentinel is that even though Ms. Heath received a multi-million dollar settlement, she is still struggling to make ends meet. Tort reform organizations like to refer to multi-million dollar settlements like Ms. Heath’s as “jackpot justice” or “winning the lawsuit lottery,” but from our perspective (and certainly Ms. Heath’s,) it doesn’t seem like she could consider herself a “winner” of much of anything. What she received for her injuries was enough to cover some of her medical issues, but certainly not all of them, and this will last only as long as the money from the settlement does. There are no mansions, sports cars or trips to Bermuda in the equation here.

Also mentioned in the article is a piece of legislation that passed the State Judiciary Committee in Tennessee last week:

“Last week the House Judiciary Committee approved a bill proposed by Gov. Bill Haslam that would cap damages at $1 million in cases involving serious spinal cord injuries, severe burns or the death of a parent of minor children.”

If Ms. Heath is barely able to keep her head above water after a multi-million dollar settlement, how do you think those who have suffered severe spinal cord injuries are going to do on $1 million or less? You can also consider that many settlements don’t come all at once. They come in payments often spread out over ten or twenty years. If it’s a million dollars spread out over twenty years, that’s $50,000 a year before taxes, and significantly less after. This would be manageable if you happen to be a healthy person, but what if you happen to be confined to a wheelchair and are in a more or less constant precarious state of health? How does your financial picture look now?

For that matter, how do you think things are going for injury victims who live in states where the damage cap is $250,000? How do you think those “justice jackpot winners” are able to pay for their needed care with $250,000? We would guess that they aren’t doing so well.

On the other side of the coin, all of those insurance companies that benefit from damage caps are doing quite well. So what we are seeing put into place all over the country is help for those who don’t need it and punishment for those who do need it. To us, that makes absolutely no sense at all.

Greenberg and Bederman is apersonal injury law firm located in Silver Spring, Maryland. We are currently offering legal assistance to people who have been injured due to no fault of their own. This includes people who have been injured in car accidents, injuries due to medical malpractice or surgical errors, pedestrian and bicycle accidents and injuries on public transit. If you or a loved one has been injured due to the negligence of others, contact Greenberg & Bederman for a free legal consultation today.

There are quite a few things wrong with these assumptions. In the first place, we have yet to see medical malpractice insurance companies dramatically lower their rates in states where these caps have been put in place. Nor have patients who have been injured by their doctors suddenly stopped filing lawsuits. It seems to us that the only people who are helped by caps on damages in medical malpractice cases are the medical malpractice insurance companies, and considering that malpractice insurers are more profitable than 99% of all Fortune 500 companies, it doesn’t seem like they need much help at all.

Another troubling element about these caps is that they seem to favor those who are financially well off but completely disregards the suffering of those who are not. Economic damages basically compensate you for the amount of money that you lost due to the negligent actions of your doctor or surgeon. This can be a significant amount if you happen to be a stock broker, airline pilot, or if you happen to be a doctor yourself. That amount can be even more if the actions of the doctor or surgeon prevent you from returning to your job. But if you happen to be a retail worker or if you happen to work in a restaurant, the amount of compensation won’t amount to much, particularly once your insurance company goes through its usual round of claim rejections. So for those of us who don’t make millions of dollars a year, non-economic compensation is particularly important. Ultimately, what these caps do is make it incredibly hard for malpractice injury victims to collect for damages suffered as a result of negligence. Plaintiffs have to hire attorneys if they’ve been wrongfully injured, and these attorneys work on a contingency basis. Often expensive expert witnesses have to be hired. If there is a strict cap on non-economic damages, quite often the process of bringing a malpractice case to court becomes financially impossible. So while this legislation would not specifically make it illegal to file a medical malpractice case, it might certainly make it impossible financially. A malpractice suit would become the equivalent of buying a Lamborghini. Theoretically, anyone is able to buy one. But there are very few of us who can actually afford to do so.

The memorandum for today’s hearing gives us the inevitable mention of “frivolous lawsuits,” which to us is simply corporate-speak for “lawsuits that do not benefit us directly.” Coincidentally, today we also read a story from Northern Virginia Daily which gives a little more perspective on the sort of cases that would essentially no longer exist in America if H.R. 5 were to become law.

A 29 year old woman in Winchester, Virginia was suffering from persistent diarrhea and went to see a doctor. The doctor decided to perform a colonoscopy. When she was given a preparation medication before the colonoscopy took place, she had a great deal of difficulty handling it. She was suffering from nausea, abdominal pain and cramping. Rather than ascertain the cause of this pain, the doctor simply gave her Demoral and went ahead with the colonoscopy. The end result of this was that the woman had her colon perforated, which only added to her already existing medical problems. The woman came very close to dying.

If the allegations in the official complaint are correct, the doctor failed the patient in a number of ways, and her injuries are extensive. But let’s say that these medical malpractice caps are put into place. What are her options? She could still sue the doctor, of course. But what does she do for a living? Does she manage a bank? Is she an executive with Lockheed Martin? Is she a housewife? Is she a waitress? With H.R. 5 as established law of the land, that could matter more than the extent of her injuries,whether or not the doctor was guilty of negligence.

Greenberg and Bederman is a medical malpractice law firm located in Silver Spring, Maryland. We are currently offering legal assistance to those who have been injured due to the negligence or incompetence of a medical professional. We have helped hundreds of medical malpractice victims in Maryland, D.C. and Virginia receive fair treatment from the court system. If you or a loved one has been injured due to an instance of medical malpractice,  contact Greenberg & Bederman for a free medical malpractice legal consultation.

All of these numbers were put together in a very interesting New York Timesarticle, which can be somewhat uncomfortable to read. The article outlines what is essentially a cost/benefit analysis where they determine whether or not new regulations on industry would be financially feasible. For instance, let’s say that there is a new technology that would prevent a certain type of accident, but it is an accident that happens relatively rarely. Federal agencies would then take their version of monetary value of a human life, multiply it by the amount of times that particular accident happens, and then compare that number to the cost of forcing industries to implement that technology. This is not to say that this formula is the arbiter of whether regulation gets put into place, but if the cost of implementing regulation is much cheaper than the cost of lost human life, it certainly makes a clear argument for enacting that regulation. The howls of protest that come from businesses and industries of all types are quite interesting, particularly because they are placed in the awkward position of having to haggle over what they truly believe a human life is worth. After all, the more human life is valued financially, the more likely they are to have to obey regulations that could cost them money.

As mentioned in the article, one group that is very much against increasing the value of human life is the Chamber of Commerce, who are doing everything they can to encourage more Congressional control over regulations in general. If you wish to know exactly how much they think a human life is worth, all you have to do is take a look at the non-economic damage caps that are in place in quite a few states. These caps are in place largely because of the legislative influence of the Chamber of Commerce.

Alabama, for instance, believes that a human life is worth a maximum of $400,000. Alaska believes a human life is worth $250,000. Maryland is a bit more generous, with a current cap of $680,000. Virginia believes human life is worth $2 million. And there are several other states that have determined that if you subtract what you are worth financially, then your life in general is worth significantly less than what the federal government has determined it is worth.

We have a hard time accepting caps of any sort, regardless of whether they are on the high or low ends of the spectrum. We have a problem with caps primarily because we have a serious problem with the idea of a predetermined monetary value placed on human life. But we would at least admit that the amounts that the federal agencies use for their arithmetic seem reasonable, even if the industries that fight against regulation do not. And if you are going to place a strict monetary value on a human life, wouldn’t it seem decent to have it on the higher side rather the lower? In many of the states where these caps are in place, the compensation levels can barely be called compensation, and actually price many injury victims directly out of the courtroom. That’s fine for the insurance companies, and its fine for the businesses, but for people who get injured due to the negligence of someone else, “equal justice under the law” is a theory rather than a fact.

Greenberg and Bederman is a personal injury law firm located in Silver Spring, Maryland. We are currently offering legal assistance to those who have been injured in car or truck accidents, pedestrian or bicycle accidents, medical malpractice, product liability or premises liability. If you or a loved one in Virginia, Maryland or D.C. has been injured in an accident due the actions of someone else,  contact Greenberg & Bederman for a free legal consultation.

It is a rare day indeed where natives of this city can point to a recommendation by a committee or a piece of legislation and say with great certainty that they will immediately feel the effects of it if it becomes a reality. But recently, we heard something in President Obama’s State of the Union that caused us a great deal of concern. As injury lawyers, we have seen firsthand how “caps” on medical malpractice damages have benefited insurance companies, but have left the actual victims of surgical errors and medical negligence with far less than they should have received in compensation for their injuries.

Here is the actual line in the speech, as reported in the Los Angeles Times:

"I'm willing to look at other ideas to bring down costs," besides repeal of his health care bill, Obama said, including "medical malpractice reform to rein in frivolous lawsuits."

We have a real problem with the term “frivolous lawsuits,” particularly when it is coupled with “medical malpractice reform.” In the first place, it advances the fiction that anyone who brings legal action against a doctor or other medical professional is “faking it,” or is looking to be rewarded for nothing. This is absolutely not the case. Victims of medical malpractice are people who have placed their health and trust in the hands of doctors, surgeons, nurses, pharmacists and other medical professionals, and have had that trust violated. And we aren’t talking about mere inconveniences. When we say “medical malpractice,” we mean severe and often life-threatening injuries. We mean limbs that have been mistakenly amputated. We mean patients who have been given the wrong blood type. We mean pharmacists who have misread the prescription. We mean doctors who gave a rushed and thoroughly disinterested diagnosis that resulted in real harm being done to the patient. The idea that the people who get seriously hurt due to instances like this are engaged in frivolity of any kind is disingenuous and insulting.

The solution that almost always accompanies talk of medical malpractice reform comes in the form of “caps” on non-economic damages. This means that an arbitrary and unrealistic ceiling is placed on the amount of money that victims of medical malpractice can receive for pain and suffering. In other words, there is a strict limit on the amount of compensation that they can receive for anything about the injury that did not directly cost them money.

While this might seem reasonable, consider what the end effects of these caps have done to the rights of victims. In Texas, for example, cases involving birth injuries or instances where the baby died due to the mistakes of doctors have virtually disappeared. They have not disappeared because mistakes by the doctors have suddenly stopped. They have disappeared because since infants aren’t money-makers, the only real compensation that a grieving family can receive is around $200,000. With this being the limit to the compensation, it becomes very easy for malpractice insurance companies to price plaintiffs out of the courtroom. All they have to do is file for delays and hire more expert witnesses than the plaintiff can afford to match, and all of a sudden the whole court case would end up costing more than the victims could possibly win in damages. When victims and their attorneys are facing this economic reality, often the cases are never even filed.

These caps do not benefit anyone except the people who need it least. Medical malpractice insurance is a multi-billion dollar business, and profits are soaring. We have no idea why President Obama seems to think that protecting these astronomical profits is more important than protecting the rights of medical malpractice injury victims. Perhaps it is a concession of some sort. But if these caps become a built-in part of Obama’s health care reform, “tough luck” will be the only advice available for most malpractice victims.

Greenberg and Bederman is a medical malpractice law firm located in Silver Spring, Maryland. We are currently offering legal assistance to those in Maryland, Virginia and Washington, D.C. who have been injured due to instances of medical malpractice. This includes surgical errors, wrong diagnosis, pharmaceutical errors, and unnecessary delay of treatment. If you or a loved one has been injured due to the actions of a doctor, surgeon or other medical professional, contact Greenberg and Bederman for a free legal consultation today.

But it absolutely is in Texas. If you get treated by an emergency room doctor down there, and he makes a critical mistake, essentially all he has to do is say “I didn’t mean to,” and that keeps the victim of that mistake from collecting any damages, regardless of how bad the damage is.

The fine print in the law that capped non-economic damages at $250,000 had special protections for emergency room doctors, each of whom are now protected from penalties in court unless it can be proven that their negligence was “willful and wanton.” That phrase essentially means that whatever you did, you did so knowing that it would harm other people. And you are more likely to find Bigfoot riding a unicorn than any doctor anywhere who will admit to that.

Here is a real life example as to how this protection has further victimized people who have been injured by doctor’s mistakes. A woman with a history of blood clotting went to the emergency room of a San Antonio hospital because of leg pain. The ER doctor there sent her home with a diagnosis of “bilateral leg pain,” and advised her to follow up with her primary care physician. Three days later, she was in a different hospital, this time with tissue death in her legs and kidney failure. A filter that she had had placed in one of the veins in her heart was clogged up, which led to incredibly bad clotting.  Doctors had to amputate both of her legs.

Ultimately, the doctor who initially saw her and told her to follow up with her primary care physician must bear some responsibility. He didn’t ask the right questions, or he didn’t take the time to look into her case as thoroughly as he should have, and as a result this woman is a double amputee. But since he didn’t do any of these things on purpose, he gets a pass.

When you read about this case and others like it in Texas, you almost want to scream to the heavens. “Of COURSE he didn’t do it on purpose! He’s not a monster! He’s simplynegligent!” Medical malpractice suits aren’t filed because lawyers hate doctors. Medical malpractice suits are filed because sometimes doctors make easily preventable mistakes, and these mistakes have serious consequences. No lawyer would make the argument that a doctor gave the wrong diagnosis just to be mean. The argument is not “Did he mean to do it?” The argument is “Could have this been prevented if reasonable standards and practices had been used?” But the fine print in the laws of Texas essentially shifts all of the arguments into unwinnable territory for anyone who walks into an emergency room and is the victim of a doctor’s mistake.

These laws were not put into place to make things better for doctors or patients. They were put into place so malpractice insurance companies could continue to have profitable years. Call us crazy, but we think the financial health of an insurer should be the last thing on the list of priorities when you walk into a hospital.

Greenberg and Bederman is a medical malpractice law firm located in Silver Spring, Maryland. We are currently offering legal assistance to people in Maryland, Virginia and Washington, D.C. who have been injured due to the negligence or incompetence of doctors or surgeons. If you have been injured due to the actions of a doctor, contact a medical malpractice attorney for a free malpractice legal consultation today.

The way that these corporations are going about it is essentially the same way that malpractice insurance companies went about getting their protections. In 8 easy steps, here is the process:

1.       Drastically raise rates or prices on your products or services with the cooperation of your direct competitiors. “We’re sorry, but we have to charge you twice as much this month.”

2.       Blame the price hike on lawyers. “We get sued so much that the only way we can stay solvent as a business is to increase our rates!”

3.       Find overblown examples of lawsuits and present them as an everyday occurrence. “Remember that Judge who sued the dry cleaner for $50 million? That happens every single day.”

4.       Focus on an aspect of the judicial system that is not advantageous to you and pretend that this aspect affects everyone much more than it actually does. “Innocent, hardworking Americans all live under the threat of runaway, out of control punitive damages.”

5.        Claim that our judicial system is “in crisis,” utilize public relations, media outlets and lobbyists to hammer home the idea that something has to be done. “The National Lawsuit Crisis is making it impossible for hard working Americans to do anything. You can’t go get the newspaper without somebody suing you for punitive damages these days.”

6.       Lobby pro-business politicians for a legislative fix: “America cannot survive unless we enact strict limits on punitive damages.”

7.       Get caps on damages legislation pushed through sympathetic state assemblies. “The Americans for Liberty, Justice and Freedom Act has saved the country from utter ruin.”

8.        Celebrate the protections this legislation has provided your business by reducing your rates by about half of the amount you increased them initially. “See? Our rates have dropped! The system works!”

This is not an exaggeration. Medical malpractice companies pulled this stunt in the early 2000’s almost to perfection, and to this day there are still non-economic damage caps in multiple states. And while the rates have gone down, in many cases they haven’t dropped down to pre-“crisis” levels.

Before you start believing the tales of woe and horror of innocent, hard working businessmen driven to ruin due to punitive damages, here are a few things you should know.

In the first place, punitive damages are a fairly rare occurrence. It is very difficult to prove that a corporation (or even a person) did something grossly negligent on purpose. For instance, in the current Toyota recall cases, Toyota’s defense will be that they had absolutely no idea that so many of their cars were defective, and the burden of proving that will be on the prosecution. Secondly, in tort cases (injury cases,) only 3% of the tens of thousands of cases that happen every year involve punitive damages.

Nor is every punitive damage verdict an automatic seven figures in the bank account of the plaintiff. Most punitive damages are significantly less. In fact, the median punitive damage award is around $55,000. To be sure, that is a great deal of money if the defendant is a small business owner or private citizen, but when the plaintiff is a multi-billion dollar corporation, it is difficult to muster the sort of sympathy that the tort reform organizations seem to require of you.

So if the average monetary amount of punitive damages is so low, and punitive damages happen so rarely, why is it that corporations and insurers and tort reform organizations are trying to put lids on them? Probably because they know all too well that occasionally, there will be an Exxon Valdez. There will be a BP oil well leak. There will be a Dalkon Shield, or a Vioxx, or a Phen Fen. All of these corporations know that there will inevitably be a faulty product or an easily preventable disaster, but they don’t know when it will happen. So rather than face the music eventually, it’s better to fix the system now.

To understand the nature of punitive damages, you simply have to look at the word. “Punitive” means “to punish.” The most effective way to hurt a corporation is by attacking its wallets. A massive chemical conglomerate may come to the realization that there is a right way and a wrong way to do business if their actions cost them millions of dollars. If there is a “cap” on punitive damages, that cap can simply be factored in to whatever they choose to do. Punitive damages should not be written off as simply a cost of doing business. The amount should not be capped, nor should it be predictable. They exist to remind companies and corporations that their actions have consequences.

Greenberg and Bederman is a Maryland injury law firm. We are currently offering legal help to people who have been injured due to no fault of their own. That includes people in Virginia, Maryland and Washington, D.C. who have been injured in car accidents, injured due to medical malpractice, injured due to environmental or groundwater pollution, or injured due to dangerous and defective pharmaceutical drugs. If you or a loved one has been injured in an accident, contact Greenberg & Bederman for a free legal consultation today.

The reasons that were given for the so-called “medical malpractice crisis” were (and still are) completely debatable. For instance, there was never any sudden onslaught of medical malpractice cases. The level of malpractice cases between 1991 and 2005 either dropped or remained relatively constant, while the amount of money paid out to medical malpractice claimants dropped significantly.

If that was the case, then why were so many medical malpractice insurance companies crying poverty and raising their rates? One study claims that it wasn’t a sudden avalanche of medical malpractice lawsuits or enormous verdicts that caused the rates as much as it was the fact that the medical malpractice insurers’ investments took a beating shortly before the medical malpractice “crisis” began. A poorly performing bond market does not make a very good villain from a PR standpoint, but the idea of “greedy trial lawyers” or the fiction of people winning millions of dollars over a stubbed toe works perfectly. And it worked quite well. There is now a limit on the amount of compensation that a medical malpractice victim can receive in many states, even though there is no such limitations on the amount of damage that a careless or incompetent doctor or surgeon can do. So in some states, it truly does not matter how badly a doctor messes up, or how much that mistake alters or even ends the victims’ life. Medical malpractice insurers have had their interests and profits protected.

The market reflects that change in the fortunes of insurance companies. Most medical malpractice insurance companies are seen as a smart investment, particularly if they only do business in states where there are legal limits to the amount of money that they are responsible for paying out. For instance, Warren Buffett’s investment group Berkshire Hathaway purchased malpractice insurer Medical Protective for $825 million. Mr. Buffett has a long history of making smart investments, and it appears that this purchase was a continuation of that trend. And FPIC purchased Advocate MD for $33 million, despite the fact that Advocate MD was only the fourth largest malpractice insurer in Texas. Since the purchase, FPIC’s shares have done nothing but increase in value. Exactly one year ago, FPIC was trading at $22 a share. Today it’s valued at $36.

The bottom line is that malpractice insurance remains extremely profitable, so much so to the point that the average profit for medical malpractice insurance companies is 31.2%, which is a ridiculously high margin for any business.

Despite these consistent profits and despite the legal system being essentially rigged to ensure that they remain vibrant, you would think that from public statements and lobbying efforts, those medical malpractice insurance companies are a beleaguered minority with wolves at the door. In practically every state legislature and in every session of Congress there are several bills where representatives are demanding more and more restrictions on the liability of medical malpractice companies. In every press release malpractice insurers make it seem like they are just barely hanging on as a business, even as their quarterly reports prove otherwise.

Greenberg and Bederman is a personal injury law firm located in Silver Spring, Maryland. We are currently offering legal assistance to people in the Washington, D.C. area who have been injured due to no fault of their own. That includes injury victims in Maryland and Virginia. Our practice areas include car accidents, motorcycle accidents, pedestrian and bicycle accidents, premises liability, defective product injuries, injuries due to pollution and groundwater contamination, and injuries due to surgical errors and other medical malpractice errors, bad diagnoses, delay of treatment and other forms of medical malpractice. If you or a loved one has been injured due to no fault of your own, contact Greenberg and Bederman for a free legal consultation today.

These caps also tie the hands of judges, who might otherwise decide that a victim of medical malpractice has suffered so much that he or she certainly deserves more than the $200,000 or $300,000 that is the limit in states that have these caps.

There are similar policies in place that have also negated the opinions of judges and juries. Many drug cases in this country are decided based on what are called mandatory minimum sentences, which means a uniform standard of punishment for drug related offences. What this means is that a person who is caught with a certain amount of drugs gets a standard prison sentence, regardless of what the circumstances are. If a person who has no criminal record is caught with three ounces of cocaine, he or she would get the exact same prison sentence as a person with multiple prior convictions. Even if the judge or jury thinks that the person convicted deserves a much lighter sentence, the juries’ opinion is meaningless and the judge’s hands are tied. Even if the defendant pleads guilty and co-operates with the police, the sentence would be the same if the defendant clammed up and forced the state to go through a trial that lasted months.  It is justice by rubber stamp, or justice by conversion chart.

These sentencing guidelines and damage caps essentially work under the idea that all of the cases are exactly alike, and therefore any sentences or judgments should be exactly alike. But we can tell you from  experience that no medical malpractice case is identical. There is no set limit of ways for doctors to make mistakes, and there is no set limit of the amount of suffering that a victim of medical malpractice has to go through. It only makes sense that there should be no set amount of compensation for which a medical malpractice victim is eligible.

It is also important to realize that these caps don’t change anything about the practices of doctors. A good and conscientious doctor who  makes an effort not to deviate from the standard of care, or immediately fixes the mistakes that he makes will not alter his habits because his insurance company has less of a financial liability. Doctors do not benefit from damage caps, and patients certainly don’t either. Insurance companies are the only people in this equation with anything to gain here, and why we as a nation have decided to essentially remove the function of juries and judges in order to benefit malpractice insurance companies is beyond us.

Greenberg and Bederman is a medical malpractice injury firm located in Silver Spring, Maryland. We serve the entire Washington, D.C. and Baltimore area, and that includes Fairfax, Arlington, Alexandria, Prince William County and all of Northern Virginia. If you or a loved one has been injured due to medical malpractice, contact Greenberg and Bederman for a free legal consultation today.

To learn more about our medical malpractice attorney, John Sellinger, please read hisbio, or watch his Youtube video.

These caps also tie the hands of judges, who might otherwise decide that a victim of medical malpractice has suffered so much that he or she certainly deserves more than the $200,000 or $300,000 that is the limit in states that have these caps.

There are similar policies in place that have also negated the opinions of judges and juries. Many drug cases in this country are decided based on what are called mandatory minimum sentences, which means a uniform standard of punishment for drug related offences. What this means is that a person who is caught with a certain amount of drugs gets a standard prison sentence, regardless of what the circumstances are. If a person who has no criminal record is caught with three ounces of cocaine, he or she would get the exact same prison sentence as a person with multiple prior convictions. Even if the judge or jury thinks that the person convicted deserves a much lighter sentence, the juries’ opinion is meaningless and the judge’s hands are tied. Even if the defendant pleads guilty and co-operates with the police, the sentence would be the same if the defendant clammed up and forced the state to go through a trial that lasted months.  It is justice by rubber stamp, or justice by conversion chart.

These sentencing guidelines and damage caps essentially work under the idea that all of the cases are exactly alike, and therefore any sentences or judgments should be exactly alike. But we can tell you from  experience that no medical malpractice case is identical. There is no set limit of ways for doctors to make mistakes, and there is no set limit of the amount of suffering that a victim of medical malpractice has to go through. It only makes sense that there should be no set amount of compensation for which a medical malpractice victim is eligible.

It is also important to realize that these caps don’t change anything about the practices of doctors. A good and conscientious doctor who  makes an effort not to deviate from the standard of care, or immediately fixes the mistakes that he makes will not alter his habits because his insurance company has less of a financial liability. Doctors do not benefit from damage caps, and patients certainly don’t either. Insurance companies are the only people in this equation with anything to gain here, and why we as a nation have decided to essentially remove the function of juries and judges in order to benefit malpractice insurance companies is beyond us.

Greenberg and Bederman is a medical malpractice injury firm located in Silver Spring, Maryland. We serve the entire Washington, D.C. and Baltimore area, and that includes Fairfax, Arlington, Alexandria, Prince William County and all of Northern Virginia. If you or a loved one has been injured due to medical malpractice, contact Greenberg and Bederman for a free legal consultation today.

To learn more about our medical malpractice attorney, John Sellinger, please read hisbio, or watch his Youtube video.

Morally speaking, there are many things wrong with this concept. And there are more than a few examples as to how these caps exist for no other reason than the financial convenience of the insurance companies.

One example in particular is happening in Nevada right now. A doctor named Depak Disal runs an endoscopy clinic there, and it is alleged that his clinic caused a hepatitis outbreak which affected thousands of people all over Nevada. At issue is this question: Does the damage cap cover “people,” or “incidents?”

In other words, if it can be proven that Dr. Disal was responsible for “one” hepatitis outbreak, would this mean that his insurance company would be obliged to pay out the limit of the $350,000 damage cap only once? Would everyone who allegedly got hepatitis from Dr. Disal’s clinic be forced to share one capped judgment? Or would the cap apply to each individual person who contracted hepatitis? Would any of you like to take a guess as to which side of the argument Dr. Disal’s insurance company is on?

As strange as this argument seems, one court in Nevada actually agreed with the premise, but another judge ruled the exact opposite. So we expect the case to be ruled upon by the Nevada Supreme Court fairly soon. And if rulings in other states are any indication, it could be that damage caps in Nevada might be a thing of the past altogether.

Illinois and Georgia are two states where their respective Supreme Courts have ruled that caps on damages are unconstitutional, based on the grounds that they ignore the separation of powers that was written into the Constitution. In other words, damage caps lessen the ability of a judge or jury to rule effectively on a case. With damage caps, a judgment on a supposedly independent court case is essentially pre-determined by members of another branch, and that is absolutely against the premises laid out in Articles I, II and III.

While we most certainly agree with that on legal grounds, we also find it outrageous that state or federal legislators are allowed to assign market value to pain, suffering and emotional loss. We also can’t imagine that a hepatitis victim being eligible only for a “share” of a judgment rather than a separate judgment is in any way fair. Hopefully, the Nevada Supreme Court will do away with damage caps entirely, and the question of whether it was “one” incident or a few thousands separate incidents will be rendered moot.

Greenberg and Bederman is a medical malpractice injury law firm located in Silver Spring, Maryland. We are currently offering legal assistance to people in Maryland, Virginia and Washington, D.C. who have been injured due to medical negligence, misdiagnosis, violation of standard of care, or surgical errors. If you or a loved one has been hurt due to a doctor’s mistake, contact Greenberg and Bederman for a free medical malpractice legal consultation today.