Archive for the ‘court rulings’ Category

Legal Boot Camp (Class Three): Sean and Kristy’s Story – Wrongful Death and Survival Actions

Wednesday, June 8th, 2011

From the Editor – Please see ourdisclaimer at the end of this blog for a better understanding of the limitations of this series and our mission statement.

Last month, Sean turned 24.  He and Kristy are married. Their daughter, Kira, is 2-years old.  Sean just entered medical school. Kristy’s parents support them, while Sean is in school.  Sean has never held a job.  Kristy is a stay at home mom. A month ago, Sean was driving home when a drunk driver pushed him off the road. In the accident, Sean broke his sternum. He also sustained a number of vascular injuries, which caused internal bleeding. He was rushed to the nearest hospital. Soon after his arrival, Sean underwent surgery to stop the bleeding.

Sean was recovering beautifully. Unfortunately, on his third day in the hospital, he developed rapid breathing, shortness of breath, and his chest pain got worse. A CT scan of the chest revealed that Sean had a pulmonary embolism. He was immediately ordered anticoagulation medication. The physician ordered 100 mg of anticoagulation medication to be split into two doses a day. The nurse misread the order and mistakenly administered 1000mg all at once. The overdose caused Sean to have extensive bleeding. Sean was scheduled for discharge within the next 3 days. Instead, he died within a few hours.

Now, think about this: Sean died prematurely at the young age of 24. Kira, lost her father. Kristy lost her husband. She now has a child to support all by herself. She has no income of her own, and she can’t rely on her parents indefinitely. After careful consideration, Kristy decided to sue the nurse (and her employer, the hospital) who overdosed her husband.

In Maryland, what will she be able to recover against the nurse in a medical malpractice suit if the jury finds the nurse (and/or her employer the hospital) negligent?

Recovery in a Maryland Survival Action

The answer to that question depends on the type of action brought against the nurse and/or hospital . Kristy, as the Personal Representative of Sean’s Estate, can sue the nurse  (i.e. a survival action). In a survival action, Kristy is essentially bringing a claim on behalf of her deceased husband for damages that he would have been entitled to claim against the nurse had he lived (i.e. had he survived – thus the name “survival action”).  In such an action, the monetary award would go to Sean’s Estate, and it would be distributed according to his will or, if he died without a will, according to Maryland’s Intestate Statute. In a survival action, Kristy can recover the medical expenses incurred by Sean as a result of the nurse’s negligence. This amount would be insignificant because Sean died within a couple of hours from the time the medication was administered.

Kristy may also recover any of Sean’s lost earnings from the time of his injury to the time of his death. Well, there are no such damages here because Sean was unemployed. Kristy could recover Sean’s funeral expenses up to five thousand dollars. She could also recover non-economic damages associated with Sean’s pain and suffering from the time of his injury to the time of his death.  In Maryland, however, these damages are limited in Maryland to about  $650,000.  Therefore, the most Kristy could recover in a survival action would be limited to about $655,000.

Recovery in a Wrongful Death Action

Kristy could also bring an action for wrongful death. In this action, Kristy could recover economic damages that she personally sustained as a result of Sean’s death. She is also entitled to recover economic damages equal to the financial support that she would have had from Sean had he lived.  In this case, it is difficult, if not impossible, to make such a determination. Sean was unemployed at the time of his death. He had no employment history.  Sean was not supporting his family financially. Kristy’s parents supported both of them.

So, how does one calculate the financial support that Kristy’s could reasonably have expected to receive from Sean in the future had he lived? One could argue, pursuant to a number of Maryland cases, that Kristy is not entitled to recover any of Sean’s future lost wages because he never worked and because he never supported Kristy financially.

Theoretically, Kristy could make a claim for loss of household services (cooking, cleaning, babysitting, etc.). In this case, however, Sean was a busy medical student, and Kristy was in charge of the household.  Therefore, it is unlikely that she would recover any such damages.

Wrongful Death – Solatium (non-economic damages)

Since her case would be in Maryland, Kristy could claim damages for her mental anguish, emotional pain and suffering, loss of society, loss of companionship, comfort, protection, marital care, attention, advice and counsel associated with Sean’s death. Here again, these damages are limited to about $650,000 notwithstanding the severity of Kristy’s pain and suffering.

Total Recovery in a Survival and a Wrongful Death Action

If Kristy were to bring a survival action and a wrongful death action in Maryland, her damages for pain and suffering under both actions would be overall capped somewhere between $812,000 and $868,000 (the “cap” on such damages is determined by the year the “cause of action accrues). It is possible that this is all she would be able to reocover against the nurse if she brought claims for wrongful death and survival.

Sean’s daughter, Kira, has a wrongful death claim against the nurse as well.  She would be entitled to recover the value of the support, which Sean would have provided to her had he survived.  Again, because Sean never actually supported Kira financially and because he never worked, that may be something very difficult to prove.  Kira, just like her mother, will be able to claim damages for her pain and suffering resulting from her father’s death. However this recovery would also  be limited to about $650,000. This cap is imposed on both Kira and Kristy’s recovery. That is, if a jury were to award Kristy $650,000 for pain and suffering and another  amount  of $650,000  to Kristy for pain and suffering, both Kira and Kristy would recover an overall amount of $650,000 (not $1,300,000).

Keep in mind, these “possible recoveries” are reduced by the costs and fees associated with litigation.

Justice or Injustice?

Now, think about this for a second… Sean’s normal life expectancy was going to be approximately another 50 years. All things being equal, he would have had a normal working life expectancy. Kristy’s life expectancy is about the same. Kira has another 16 years before she reaches the age of 18. The average cost of living in Maryland is about $3400/month, and in some places it is a lot more. Generally speaking,  college tuitions can be anywhere between $8,000/year and 35,000/year. The average cost for family health insurance is about $13,300/year.

So, you do the math: How long is Kristy’s recovery going to last?  How are Kristy and Kira’s lives going to be affected by the Sean’s death? Is Kristy’s recovery sufficient compensation for her loss?  The principle of compensatory damages is to put a litigant in the same position that she/he would have been in had the loss not occurred. I, for one, think that this is hardly achieved in this case.

If in a survival action the Estate can bring an action that Sean himself could have brought had he survived, why should his Estate not recover all of his lost future income as a doctor? After all, Sean was expected to earn income as a physician for many years. Why should Kristy be precluded from recovering some of Sean’s future lost wages under the wrongful death action simply because Sean was not employed or contributing financially to his family at the time of his death? Surely, it is reasonable to assume that Sean would have contributed some or most of his income to his family. Finally, why should the State dictate what the value of Sean and Kristy’s pain and suffering is? Shouldn’t this be decided by a jury of their peers? What are your thoughts?

Related Posts:

Malpractice Wrongful Death Lawsuit by Couple Falsely Accused of Abusing Their Child Filed Against Children’s Hospital

Maryland’s Cap and a Message from the former MAJ President re the Goings-On in Annapolis

Legal Boot Camp (First Class): The Story of Pam – Maryland’s Law on Earning Capacity

“Wrongful Death and Survival Actions”

Disclaimer: As is the case with all of our blogs and the writings posted on our website, we are not offering legal advice to our readers. This information in our series,Legal Boot Camp, is being presented in the hope that we can provide some education about the law in Maryland and the District of Columbia. The law in the field of personal injury (and particularly in our sub-specialty of medical malpractice) can be complex and confusing at times. Even in these two jurisdictions where we are licensed to practice, the laws and their interpretation by the courts can vary significantly. It is simply our hope that by presenting this series – Legal Boot Camp - that we can provide a better understanding of some legal principles that can come into play when bringing a civil claim or lawsuit for damages as a result of the wrongdoing of others.
For those who do not live in either Maryland or the Washington, D.C., we hope that we can at least raise some issues for you to consider when you speak with an attorney licensed to practice in the state in which you live. Many times the basic concepts of law are similar. We hope that by raising some of these issues applicable to Maryland and the District of Columbia, you will at least have a basic understanding of some terms and principles that may apply to your situation. Don’t be afraid to raise these issues with your attorney. Education – be it in law or medicine – is our main goal.
Finally, please see our introductory blog for Legal Boot Camp for a better understanding of our mission in presenting this series.


 

 

Legal Boot Camp (First Class): The Story of Pam – Maryland’s Law on Earning Capacity

Thursday, May 26th, 2011

Image from cnbc.com

Wondering what “Legal Boot Camp” is all about? Check out our announcement, find out, come along, have some fun and learn some “law stuff” while you’re at it.   Please see our disclaimer at the end of this blog for a better understanding of the limitations of this series and our mission statement.

Class is now in session….

A 41-year-old woman, Pam, who was laid off from her job as a swimming instructor and swim coach in December of 2009, has been struggling to find a new position for the last few years. Even though Pam had been working as a swimming instructor full-time for the past 18 years, she felt that she needed to jump into a new career while waiting to find a new position as a swimming instructor and coach. Starting in October of 2010, her father died leaving her a rundown home that he had recently purchased with the intent of renovating it. Pam felt that she could put her physical fitness and knowledge of home aesthetics to work, not to mention the ideas she picked up watching renovations shows while unemployed, by renovating the home her father left and selling it for a profit. Since Pam thought that this could be her new vocation along with being a swim instructor, she formed a company for her new real estate and renovation business. She also bought a few additional run-down properties at auction. She started the renovations on the first house and completed a stunning new kitchen and had begun the demolition for a new bath by January of 2011. While still unemployed as a swimming instructor and before making any profit on her real estate business, Pam underwent a routine medical procedure at a local area hospital. Unfortunately, while still in the hospital following the procedure, she was severely injured and has been left paraplegic.

Now, Pam is considering filing a lawsuit as a result of the negligent care she received while hospitalized. Given the extent of her injuries, she will not be able to return to her job as a swimming instructor and she will have to hire workers if she is going to complete any additional renovations in the homes that she purchased. She may be able to work again, but not without significant assistance and not in either of her prior capacities. The question for today is what damages might she be able to claim in terms of a lost wages claim or a diminished earning capacity claim in Maryland.

Unemployment Not a Bar to Recovery for Loss of Earnings

In personal injury actions in Maryland, unemployment or self-employment without earning a profit at the time of injury are not a bar to recovery for loss of earning or loss of earning capability. In Ihrie v. Anthony, to Use of Gov’t Emp. Ins. Co., 205 Md. 296,107 A.2d 104 (1954), a woman was injured in a car accident while unemployed. She had previously worked in several jobs, both office positions and real estate work. Ihrie, 205 Md. at 303-304,107 A.2d at 107. After her injury, she was unable to continue to work in these types of positions, though there is some dispute about that. Id. at 304, 107 A.2d at 107. What is important to consider for Pam is that in the Ihrie case, the injured woman was allowed to recover. Id. at 309, 107 A.2d at 110.

The court held that “[t]he fact that the plaintiff was unemployed at the time of the accident and for several years prior thereto is not fatal to her right to recover.” Id. at 305, 107 A.2d at 107. In that case, like the one we are considering today, the woman who was injured had worked in the past and had a history of employment and wages to consider. The judges took the woman’s injuries and her past earning history into account in making their decision:

We are of the opinion that there was sufficient evidence of the permanence of the plaintiff’s injuries and of their impairing her earning power to warrant the submission of those issues to the jury and that there was sufficient evidence to serve the jury as a guide in measuring the extent of her loss of earnings.

Id. at 306-307, 107 A.2d 104, 108. Pam’s injuries and her past history of employment as a swim instructor should be presented at trial in her claim for loss of earnings. The past year and a half of unemployment should not bar her recovery since she has an eighteen-year history of employment to measure her loss of earnings for the future.

Can She Recover for Her Business?

What about Pam’s fledgling real estate business? She was working herself on the houses, which she will not be able to do moving forward. In order to complete the renovations and sell the homes, she will have to hire renovators at a significant expense. Since her business did not yet have a profit, she does not have the same sort of earnings history as she does for her past job as a swim instructor. However, she may still be able to recover for a loss of earning capacity.

In Anderson v. Litzenberg, 115 Md. App. 549, 694 A.2d 150 (1997), the court found that if someone is self-employed in a not yet profitable business at the time of their injury, they may still be able to recover for their loss of earning capacity. The case examined the situation of a man who was injured in an accident while he was partially self-employed in a real estate business that was not making a profit. Id. The court examined the question of loss of earning capacity. Id. The court defined impairment of earning capacity as the “lost capacity to earn, rather than what a plaintiff would have earned.” Id. at 572, 694 A.2d at 161 (internal citations omitted). The court explains that:

It is generally recognized that impairment of earning capacity seeks to compensate the plaintiff for a reduction in his ability to earn through his personal services. Once the fact of impaired earning capacity is established, the plaintiff must submit evidence so that the extent of the impairment can reasonably be determined. The prevailing proper measure of lost earning capacity is the difference between the amount that the plaintiff was capable of earning before his injury and that which he is capable of earning thereafter. Essentially, the plaintiff must establish the disparity between the market value of his services before and after the injury.

The objective is to place [the victim] in the same economic position as would have been … had the injury not occurred. We seek to accomplish this goal by a formula which … consists of determining what [plaintiff's] annual earning power would have been but for the injury, deducting what it will be thereafter, multiplying the result by [plaintiff's] expectancy, and discounting the product to present value.”

Id. at 572-73, 694 A.2d at 161-62 (internal citations omitted). This would be the formula that would need to be considered in Pam’s case. The necessary proof would need to be provided of Pam’s former earning capacity before her injury and whatever earning capacity she has with her injury. However, Anderson makes clear that the specificity of earning capacity need not be as great as that of lost earnings – as it would be nearly impossible to know for certain what sort of profit Pam might make in the future. See id.

There are many factors to consider when deciding whether to file a personal injury action for medical malpractice. One of the considerations is certainly whether the potential damages award makes it worthwhile to undertake the costs of litigating for the wrong inflicted upon the injured party. Have you ever been involved in a case involving lost earnings or loss of earning capacity in a personal injury case? Was there unemployment involved? This seems likely to be a more frequent question with the current economic realities in our country.

Related Posts:

Every bad outcome or injury does NOT a malpractice case make! Some practical advice.

Should you sue a healthcare provider? Some guidelines to help you decide.

 

Disclaimer: As is the case with all of our blogs and the writings posted on our website, we are not offering legal advice to our readers. This information in our series,Legal Boot Camp, is being presented in the hope that we can provide some education about the law in Maryland and the District of Columbia. The law in the field of personal injury (and particularly in our sub-specialty of medical malpractice) can be complex and confusing at times. Even in these two jurisdictions where we are licensed to practice, the laws and their interpretation by the courts can vary significantly. It is simply our hope that by presenting this series – Legal Boot Camp - that we can provide a better understanding of some legal principles that can come into play when bringing a civil claim or lawsuit for damages as a result of the wrongdoing of others.

For those who do not live in either Maryland or the Washington, D.C., we hope that we can at least raise some issues for you to consider when you speak with an attorney licensed to practice in the state in which you live. Many times the basic concepts of law are similar. We hope that by raising some of these issues applicable to Maryland and the District of Columbia, you will at least have a basic understanding of some terms and principles that may apply to your situation. Don’t be afraid to raise these issues with your attorney. Education – be it in law or medicine – is our main goal.

 

Baltimore Abortion Ordinance Declared Unconstitutional – How Did We Get Here and Why?

Saturday, February 5th, 2011

Pro-Life and Pro-Choice Advocates

Last April, we posted a blog regarding a Baltimore City ordinance, which required local crisis pregnancy centers to post signs in their clinics disclosing that they did not offer abortion or birth control services if, they in fact, did not offer such services. Because of this requirement, many clinics chose to post separate notices informing the public about clinics that offered abortion services. Consequently, the Archdiocese of Baltimore, filed a lawsuit in the Federal District Court, seeking to have the ordinance declared unconstitutional.  One of its arguments was that the City should be prohibited from compelling speech by requiring the clinics to post signs.

On January 28th, 2011, District Court Judge, Marvin Garbis, ruled that the ordinance violates the First Amendment of the U.S. Constitution and, as such, is unenforceable. In his opinion, Judge Garbis wrote: “Whether a provider of pregnancy-related services is ‘pro-life’ or ‘prochoice,’ it is for the provider — not the Government — to decide when and how to discuss abortion and birth-control methods.” According to the opinion, “[t]he Government cannot, consistent with the First Amendment, require a ‘pro-life’ pregnancy-related service center to post a sign as would be required by the Ordinance.”

The dynamic of this litigation is fascinating, revealing nonsensical and unpredictable aspects of the abortion debate.  One could argue that the original passing of the ordinance was fueled by an underlying “pro-life” attitude.  After all, why would the City require clinics that don’t offer abortion services to publically state that they don’t offer abortion services? My personal opinion is two-fold: 1) to discourage individuals in need of abortion services from seeking abortion services, and 2) to reveal to the public the number of clinics that don’t offer abortion services in order to paint a picture that the public is generally pro-life (this is particularly true because the ordinance did not require clinics offering abortion services to post notices that they offered such services).

Interestingly, the ordinance backfired. Some of the clinics required to disclose that they did not offer abortion services chose to inform the public about other clinics where abortion services are available. There is nothing wrong with that, right? Well, apparently the Archdiocese did not think so, and, in my personal opinion, here is the real reason why: As soon as it became apparent that many of the clinics could simply choose to post notices about other clinics, which offered abortion services, it also became apparent that the ordinance was de facto prompting free advertising for abortion services all over the city.

I can’t imagine that the Archdiocese was too thrilled about that. Hence, the litigation ensued and the opponents of the ordinance prevailed on an argument, which is commonly and usually made by the “pro-choice” side of the abortion debate. At the heart of Judge Garbis’ opinion is the notion that the government should not legislate morality or religion. On January 28th, the Archdiocese and other “pro-life” groups prevailed on an argument, which has undermined and discredited the “pro-life” position for decades. How ironic!

Have you have been following this litigation in Baltimore City? What are your thoughts? Was Baltimore’s ordinance misguided or spot-on? Will Judge Garbis’ decision be reversed or upheld on appeal?

Photo from foxnews.com

Family Feud – Where's Your Sense of Humor?

Wednesday, May 12th, 2010

Everyone has, at one time or another, been offended by a relative’s hurtful comments. In the case of Sunda Croonquist’s family, however, the offended relatives were not content to let the offending comments pass without notice.  As reported by ABA Journal and other outlets, the family members actually sued her. Turns out that Ms. Croonquist is a comedienne, who takes advantage of her mixed ethnicity – she is half-black and half-Swedish and is married to a Jewish man – to poke fun at her family. Apparently, the family was not laughing, especially when Ms. Croonquist publicly joked that some of them were racist. Several of Ms. Croonquist’s in-laws, including her mother-in-law, filed suit in New Jersey alleging, among other counts, defamation and infliction of emotional distress.

Ms. Croonquist, however, got the last laugh. After Ms. Croonquist’s lawyers filed a motion to dismiss (to add to the familial complexity, Ms. Croonquist was represented by her husband’s law firm), the trial court ruled that Ms. Croonquist’s comments, while perhaps hurtful, were protected by the First Amendment because they were merely her personal opinions. In order to prove a case of defamation, one has to prove that the speaker made a false statement. An opinion, being a subjective belief of the speaker, cannot be considered true or false, so it cannot support a claim for defamation. So Ms. Croonquist is free to continue insulting her relatives, and comedians around the country can continue making mother-in-law jokes.

No word yet on when the next family reunion is going to be held.

Supreme Court closes its front doors to the public

Saturday, May 8th, 2010

Earlier this week, news broke from various media sources around the country, including The Washington Post, that the front doors of the United States Supreme Court would no longer be open to the public.  The Court, citing security concerns, stated that effective immediately, visitors will enter the historic building on the plaza level, which includes security checkpoints.

This decision,  like so many other decisions from the Court, includes dissenting opinions from more than one Justice.  A Washington Post article states:

The changes have been debated for years and came with a dissent from two justices who expressed  concern about altering the symbolic experience of visiting the 75-year-old building, designed by architect Cass Gilbert.

“The significance of the court’s front entrance extends beyond its design and function,” Justice Stephen G. Breyer wrote in a statement joined by Justice Ruth Bader Ginsburg. “Writers and artists regularly use the steps to represent the ideal that anyone in this country may obtain meaningful justice through application to this Court. And the steps appear in countless photographs commemorating famous arguments or other moments of historical importance.

“In short, time has proven the success of Gilbert’s vision: To many members of the public, this court’s main entrance and front steps are not only a means to, but also a metaphor for, access to the court itself.”

Justice Breyer noted that he “knows of no other supreme court in the world that has closed its main entrance.”

I leave you with this to ponder….

Is it troubling to you that we are now barred from walking through the majestic doors of the highest court of this great country, where the above inscription reads “Equal Justice Under Law”?

Parental Pre-Injury Releases: A Victory for the Children of Florida!

Thursday, April 29th, 2010

Two years ago, when I was practicing law in Florida, the Florida Supreme Court decided the case of Kirton v. Fields.  As a consumer justice attorney, I was proud to be able to stand behind such a law and give it my support.  In Kirton, the Court held that public policy concerns negated the enforcement of pre-injury releases executed by parents on behalf of their minor children regarding participation in commercial activities.  Last week, the Florida House unanimously passed a Bill that supports the Florida High Court’s decision and limits the type of activities that may be included in such a release.  Senate Bill 2440 is the Bill that will help protect Florida’s children in this regard.

The Bill language relates to releasing parties of liability as it relates to “inherent risks” ONLY.  This risk is defined as:
[T]he dangers or conditions that are characteristic of, intrinsic to, or an integral part of the activity; the failure of the activity provider to warn of the inherent risks; and the risk that the minor child or another participant may act negligently or intentionally and contribute to the injury of the minor child.
Yesterday, the governor of Florida, Governor Crist, signed this pro-consumer piece of legislation into law.  KUDOS to the Florida Justice Association for their hard work and effort in helping to make sure this Bill got to the governor’s desk.

Guidant's Guilty Plea for Failure to Notify FDA of Defective Defibrillators Takes New Twist – Will Plea Agreement be Accepted by the Court?

Saturday, April 24th, 2010

Just over two weeks ago, the newswires were advising the public that Guidant LLC, a unit of Boston Scientific Corp, had been implicated in short circuiting failures of three models of their implantable cardioverter defibrillators (ICD’s). At issue in the charges brought last November by the Department of Justice were 20,146 devices identified as the Ventak Prizm 2 and Contak Renewal 1 and 2 defibrillators. It was also reported that Guidant pleaded guilty to the criminal charges. Guidant’s defibrillators became available to the public in 2005.

Dr. Ananya Mandal, the author of one of the lead articles relating to the case at that time, provided the following information about the devices:

The implantable cardioverter defibrillator (ICD) is a life saving battery operated device much like a pacemaker that is placed near the heart in a minor surgical procedure. This device detects abnormal heart rates and rhythms in the patient and delivers an electric shock to make the heart beat normally again. These save millions of people in the US and all over the world from sudden death.

As a result of the proposed plea agreement, Guidant has agreed to pay a combined criminal penalty of more than $296 million, which, according to a report in Reuters, is “the largest criminal penalty against a medical device company.”  In essence, the charges stemmed from Guidant’s withholding information from the U.S. Food and Drug Administration regarding catastrophic failures in some of the devices. According to this same Reuters report, “Boston Scientific reached a settlement with defibrillator patients in 2007 covering the 2005 product issues and additional issues the following year. It agreed to pay up to $240 million to cover up to 8,550 claims, including ones collected in a multi-district litigation case.”

This plea agreement is currently being considered by U.S. District Court Judge Donovan Frank, who announced at a hearing on April 5, 2010, that he would make his decision as to whether or not to approve the plea agreement within three weeks of that last hearing.  If he stays within the self-imposed time limit, his decision should be announced this coming week.

Photo of Ventak Prizm 2 by mindfully.org

Last week, however, a new twist to the case was reported by several news sources, including one posted by Reuters this past Thursday, April 22, 2010 – “two cardiologists who cared for a 21-year-old college student who died when his implantable defibrillator made by Guidant failed to deliver a life-saving shock are urging a federal judge to reject a plea agreement with the company.” These physicians are identified as Dr. Robert Hauser and Dr. Barry Maron.

The doctors’ comments in a letter to Judge Frank bear quoting:

“We are extremely dismayed by the U.S. Attorney General’s decision to enter into a plea agreement with Guidant LLC, rather than prosecute the company and the individuals responsible for this egregious act.

“On behalf of the patients who died or suffered pain and mental anguish as the direct result of Guidant’s illegal and unethical behavior, we urge you not to accept the plea agreement.

“To allow a repeat offender, like Guidant, to escape with a fine (that is entirely borne by the shareholders of Boston Scientific) does not hold the guilty parties fully accountable and inevitably undermines patient safety.”

Whether the judge heeds the words of these physicians or not remains to be seen. What is absolutely laudatory is the fact that these physicians have expressed their outrage as to this manufacturer’s conduct.  Are they not correct – the money paid both through civil settlements and, if approved, by virtue of the criminal charges will be “entirely borne” by the company’s shareholders? Where is the personal accountability for this outrageous conduct?  Our system of justice is one not only of compensation to the victims of such heinous conduct but also should serve to deter other individuals from taking the same life-threatening conduct in the future.  There is nothing like a good long jail sentence for those involved in this horrible scheme to deter other corporate executives from going down the same path of profit at all costs – even to human life.

Time nearly up on malpractice suit against missing doctor -Texas style

Tuesday, March 30th, 2010

In an article recently published online through the Austin-American Statesman website, one of the many harsh realities of our legal system is exposed.  The significance of procedural deadlines, and what may ultimately happen if such a deadline is not met (despite best efforts) is highlighted in this tragic story.  The following is a very brief summary, as taken from the article:

Debbie Stockton didn’t know her obstetrician was a drug addict when her son William was born in 1989 with extensive nerve damage to his left arm.

But when the boy grew into a teenager and his atrophied arm didn’t improve, Stockton sought legal advice and learned that Dr. Howard Offenbach had checked himself into a drug treatment center within a week of William’s birth to kick a years-long Valium and hydrocodone habit.

So in 2007, Stockton sued for an unspecified amount, claiming that Offenbach caused William’s injury by failing to order emergency surgery when the boy’s shoulder became pinned beneath his mother’s pubic bone during a difficult delivery.    

The Stocktons, however, ran into a legal roadblock that derailed their lawsuit before it went to trial.

Texas malpractice law gave them 120 days after filing suit to serve Offenbach with their medical expert’s report and résumé, but Offenbach couldn’t be found. After losing his medical license in 2000 for drug abuse, Offenbach had moved from his Dallas house, been evicted from two apartments and disappeared from public records.

Even Offenbach’s lawyers — acting on behalf of the former doctor’s insurance company — have been unable to locate their client and say that Offenbach is “not findable.” Still, they asked the trial court to throw out the Stocktons’ lawsuit for blowing the 120-day deadline.

The case has traveled its way up through the Texas court system over the past several years, before ending up at oral argument last week before the Texas Supreme Court.  The article also details the extent to which the Stocktons’ lawyer went to attempt to serve Dr. Offenbach with the lawsuit.

Sadly, Debbie Stockton passed away last fall from cancer.  The injured victim, William Stockton, is fighting for his cause, as the case has been continued under his name.  The Court now has the case under review.  We do not know what the Court will hold.  The article leaves us with this:

Justice Dale Wainwright mused aloud about the court’s dilemma.

The language of the law clearly directs judges to dismiss any lawsuit that exceeds the 120-day deadline, he noted: “On one hand, we don’t want defendants dodging or hiding to let the 120 days lapse. On the other hand, we don’t want claimants to be lax in any way when the Legislature used this kind of strict rule.”

Georgia Supreme Court Overturns Malpractice Cap

Monday, March 22nd, 2010

In a unanimous decision, the Georgia Supreme Court has just declared non-economic damages caps unconstitutional in medical malpractice cases.  CBSAtlanta.com reports the following:  

Monday, the Georgia Supreme Court ruled that a controversial law capping the amount of money an injured patient could recover from a negligent medical provider is unconstitutional. The 7-0 decision was written by Justice Hunstein. Senate Bill 3, enacted in 2005, stated that a victim of medical malpractice could be limited in the amount of damages they can receive from a jury verdict, even if the harm caused was catastrophic in nature.

Nestlehutt v. Atlanta Oculoplastic Surgery, P.C, from Fulton County State Court, highlighted how caps on damages fundamentally restrict the constitutional rights of those who have been harmed by a healthcare provider. The malpractice case was brought by plaintiff Betty Nestlehutt, who is represented by attorneys Adam Malone and Frank Ilardi.

This case is one of horrific physical injuries and pain and suffering.  The tragic story of the victim, Betty Nestelhutt, is recounted in the article:

Betty Nestlehutt and her husband of more than 50 years worked together in their real estate business. Betty handled most of the client interaction for the firm, and she eventually noticed that many potential customers were going to younger agents. Concerned with the bags under her eyes and lines around her mouth, Betty Nestlehutt eventually decided to schedule a consultation with Dr. Harvey P. Cole of Atlanta Oculoplastic Surgery, P.C. Even though Betty was 71 at the time, Dr. Cole recommended a full facelift as well as a battery of other surgical procedures.

The combination of procedures was risky for someone of Betty’s age. The surgery severely impacted the blood flow to her face. After several weeks, the skin on Betty Nestlehutt’s face began to die and fall off.

“Betty Nestlehutt was the face of her real estate business,” Malone said. “Her face was so horrifically disfigured that she was no longer able to even leave her house. The pain she experienced over a long period of time is difficult to comprehend. Photographs of her disfigurement are too gruesome for public distribution. The damage is permanent.”

The case outcome has also just been announced on the website for GeorgiaWatch, a consumer advocacy organization:

The case was heard in Fulton State Court before a jury of 12 citizens. After hearing the testimony and seeing the evidence, they returned a verdict in favor of the Nestlehutts. The jury granted recovery for past and future medical expenses and concluded that the severe impact to Betty Nestlehutt’s quality of life warranted $900,000 in “non-economic” damages. However, this was more than the $350,000 cap on noneconomic damages in the 2005 law, which overrides the judgment of a jury that has been presented with the facts.

Judge Diane Bessen ruled that the statute capping a jury’s verdict was unconstitutional. The decision was appealed by the defendants to the Georgia Supreme Court. After hearing arguments in the fall of 2009, the Supreme Court agreed with Judge Bessen and ruled the statute unconstitutional.

We applaud Mr. Malone and Mr. Ilardi’s efforts in this case as well as the Court’s ruling.

UPDATE: In response to this ruling, Dr. J. James Rohack, AMA President, posted his reaction on the AMA’s website.

“The action puts Georgia’s patients at risk for the severe access problems suffered prior to 2005 when the state’s unrestrained legal system pushed premiums to record highs and forced physicians to limit services, retire early, or move to other states where liability premiums were more stable.”

“The AMA continues to vigorously support strong, proven medical liability reforms at the state and federal levels to keep physicians caring for patients, while still allowing patients their day in court.”

Who is he kidding?  By putting unreasonable ‘caps’ on damages and creating standards such as “gross negligence” for cases against emergency room healthcare providers, this goes to “allowing patients their day in court”?  I’m sure the AMA is driven by altruistic motives to make such a ridiculous statement.

Ga. Supreme Court Upholds Key Medical Malpractice Law Requiring Proof of Gross Negligence for Emergency Room Physicians

Wednesday, March 17th, 2010

Another legal ruling in the ongoing debate over tort reform – this one from the State of Georgia. MSNBC is reporting (citing Associated Press) that the Georgia Supreme Court, in a divided 4-3 opinion, has upheld a 2005 state law that requires patients to prove “gross negligence,” rather than ordinary negligence, in order to prevail in a medical malpractice case against emergency room physicians.

A Georgia woman, who suffered a stroke after receiving allegedly negligent treatment at an emergency room, challenged the constitutionality of the 2005 law, claiming that it created an insurmountable hurdle at trial.  The Georgia Supreme Court disagreed.

The court’s majority opinion, penned by Justice George Carley, found that it was “entirely logical” for lawmakers to approve the legislation in hopes of stemming the rising cost of medical malpractice insurance.

Usually, the focus of tort reform legislation has been in either instituting a cap on damages, or restricting attorneys’ fees, or both. In 2005, however, the Georgia legislature implemented an additional mechanism that was designed not to limit the amount of recovery in successful lawsuits but was instead specifically designed to make it more difficult for injured patients to prove their case at trial.

Prior to the law enacted in 2005, in order for a patient to prevail in a medical malpractice action, the patient had to be able to prove that the defendant doctor was negligent – i.e. violated the standard of care, which has usually been held to mean that the doctor failed to do what a reasonably competent doctor would have done in the same or similar circumstances. Under the new law in 2005, however, patients were required to prove that the defendant doctor (at least in the emergency room setting) committed “gross negligence,” which is a much higher level of negligence, generally defined as near-total disregard for the rights of others, reckless disregard, or willful or wanton indifference to the consequences of one’s actions.

Clearly, forcing patients to meet this higher burden will make it more difficult for injured patients to sue emergency room physicians, which was the very intent of the Georgia legislature. The ruling also means that negligent doctors who would have been found liable under traditional law will now get off scot-free, leaving injured patients with no recovery.

The same court is expected to rule later this month on the constitutionality of Georgia’s cap of $350,000 on damages for pain and suffering.