Archive for the ‘General Law’ Category

Don’t underestimate jurors. They really do get it – most of the time!

Tuesday, June 21st, 2011

I just finished a two week trial that was probably one of the most complex medical cases of my 37 year career. Since the “resolution” of the case is the subject of a confidentiality agreement, I’m not at liberty to discuss the details of the case or its “resolution.” Nevertheless, what I am free to tell you is that having tried hundreds of jury trials over my career, it amazes me just how often jurors “get it” when it comes to doing their very best to understand the evidence thrown at them and to do “the right thing.”

The case involved about 8,000 pages of medical records. Jurors heard from 8 medical witnesses ranging from surgery, to infectious disease, to radiology to pathology. This was not a case involving “Anatomy 101″; it was an advanced course in the biomechanics of the spine, neural element compression, biofilms on hardware, pulmonary hypertension, deep vein thrombosis – well, you get the picture.

After nine grueling, long days of evidence, sitting in hard, non-cushioned chairs and having to endure seemingly endless bench conferences dealing with evidentiary issues and objections that the jury was not allowed to follow, our panel patiently waited for over two hours on their final day of service while the parties to the lawsuit worked out “a resolution” of the case. The trial was to end the next day (today). They, the jurors, would finally get to speak to us, rather than having us speak to them for over two weeks.

Once the details of the “resolution” were hammered out, the judge had the courtroom clerk bring the jury into the courtroom to take their “luxurious” wooden seats. The Court announced that the parties had “resolved” the case and that the jurors’ service was now completed. Nine plus days and countless hours of sitting and listening – and now – no chance to deliberate and tell the parties who they – the jurors - thought was right in this legal battle. The judge then advised them that they had served a most important function because many times (this being one of them) the parties could not reach agreement – uh “resolution” – without them. It was further announced by the Court that if they cared to do so, they were now free to speak with the lawyers.

Rather than gather up their belongings and hustle out the door, each and every one of them remained in the courtroom to share their thoughts and observations of the trial. Once again, as has happened so many times in my career, I was pleasantly surprised  and amazed by what they had to say. Peppered with questions by the lawyers to see if they “got it,” our jurors shared their observations about key issues in the case. The told us about their “take” on the evidence involving T1 versus T2 weighted MRI’s. They accurately recounted the evidence regarding the issues of “sub-clinical infection.” They shared their individual thoughts and reflections on what role the decedent’s underlying, complicated co-morbidities played in their analysis of causation.

We’re not talking about a panel of medical experts here. We’re talking about everyday folks, who brought their common sense and varying levels of education and life-experiences to the litigation table. They “got it”!

None of the parties will ever know what the jury’s eventual verdict would have been. Nevertheless, because of the uncertainty of that verdict, the opposing sides in this lawsuit worked their way through a morass of emotion, righteousness, principles – you name it – to get the case “resolved.”

I hear so often from “professionals” that the jury system is broken. They rant endlessly that we need “professional” finders of fact to arrive at just results. Oh really! If that’s the case, then why is it that each side can have highly qualified experts, who can’t agree on the interpretation of medical evidence? Maybe – just maybe – it takes people of plain common sense, goodwill and a sense of justice to get it right.

Have jurors arrived at verdicts in my career that make you want to retire from the practice of law? They have – but on very rare occasions. When you put aside the self-righteousness of bias and advocacy and reflect on verdicts, many lawyers – I for one – appreciate that juries really do “get it” and really try to do “the right thing.”

To all the cynics out there, don’t be so unwilling to appreciate what these citizens do to advance our system of justice. Is the system perfect? Far from it, but not as far from it as many would have you believe.

Let me end by simply saying – THANKS to our citizens who made-up our jury. Your patience, attentiveness, endurance and willingness to serve is very much appreciated. You could easily have dreamed-up a way to avoid service on the jury during the selection (voir dire) process (as so many do in so many pathetic ways), but you didn’t do that. Kudos to each and every one of you. You did advance the cause of justice. You made the parties to this lawsuit take note of the fact that maybe, just maybe, their view of the case was about to be tested in the crucible of the jury room. That knowledge and the reality of an impending verdict made them step back, take a deep breath and come to a “resolution” of their dispute. Well done, Citizens! I for one applaud you.

Confusion with Advanced Directives: Palliative Care, End-of-Life and Hospice Care

Thursday, June 16th, 2011

From the Editor:  Today, with the recent death of controversial figure Jack Kevorkian we revisit blogger Theresa Neumann’s thoughts on Palliative Care, End of Life and Hospice Care.  The ethical questions raised by end of life situations are difficult for families to deal with and this blog provides an excellent primer.

In a previous blog, I raised the issue of “Advanced Directives” and how, according to a Medscape physician survey, physicians do not always honor these legal documents.  One of the “excuses” cited the definition of futility in treating a terminal medical condition, arguing for palliative care as opposed to withdrawal of care.  Obviously, confusion exists amongst these providers as to what constitutes comfort care versus unnecessary prolongation of life and/or exposure to unnecessary procedures in a patient with a terminal condition.

Palliative, End-of-Life and Hospice Care

Palliative care is essentially comfort care.  To “palliate” means to “ease” or “make less severe” – therefore, medical care that is designed to palliate symptoms of a particular disease is care designed to ease or lessen the severity of symptoms associated with that disease.  It can be in an acute condition, a chronic condition or even a terminal condition depending on the stage of the illness.  Some of the symptoms often palliated are nausea and vomiting (chemotherapy, cirrhosis), anorexia (cancers, AIDS), pain (rheumatoid arthritis, cancers), shortness of breath (COPD/emphysema, interstitial lung disease), dizziness (Meniere’s disease, multiple sclerosis), incontinence (spinal cord injuries, stroke), constipation (inflammatory bowel disease, chronic pain syndromes), and many others.  There are various treatments available for the treatment and/or management of these symptoms, but they are not necessarily curative of the underlying condition.  Some chronic conditions, like Rheumatoid Arthritis, are manageable but not necessarily curable, so the treatment rendered is to palliate/lessen the symptoms and hopefully put the auto-immune disorder into remission for a period of time.  Rheumatoid Arthritis, however, is NOTterminal condition; patients usually die of complications or other co-morbidities.  Palliative care can also incorporate a variety of specialties with overall coordination of care that involves communication with the family, spirituality and emotional support.  Palliative care is a critical component of end-of-life and Hospice care.

End-of-Life care is a well-coordinated approach to end-of-life issues when a condition is deemed terminal, such as incurable metastatic cancer, end-stage multiple sclerosis or even liver cirrhosis when organ transplant is not an option.  Life expectancy can vary widely, with physician guestimates being greater than 6 months (as much as one year or more).  End-of-life care typically incorporates palliative care to ease the symptoms of the disease process as well as counseling services, emotional support and even spiritual support.

Hospice care is end-of-life care, incorporating palliative care, reserved for the last 6 months of life or less.  Care is shifted from curative therapies to pain management and ease of other symptoms of illness.  There are many Hospice programs that offer services in a variety of locations, all of which is dependent on the patient’s and the patients’ family’s wishes. They can be rendered at home, in a nursing home, in the hospital or in a dedicated Hospice facility.  Services provided by these organizations can even include basic housekeeping, personal hygiene care, grocery shopping, and even companionship in addition to the palliative medical therapies.

Where do advanced directives come into play?

Advanced directives can affect every one of these aspects of care.  They reflect the patient’s or the patient’s medical power of attorney’s wishes regarding palliative care modalities, end-of-life care and Hospice care.

About.com’s website on palliative care offers a great example of palliative care that transitions to end-of-life and at-home Hospice care for “Aunt Tilly”.

A patriarch of the family has essentially been healthy his entire life, shoveling  snow and cutting grass into his 85th year of life.  Things shift during the 86th year, and he develops congestive heart failure which has triggered multiple falls and syncopal episodes, presumably from hypoxemia.  There are several hospitalizations to evaluate his condition with institution of multiple medical therapies/drugs to stabilize his condition.  Unfortunately, his heart is weak, and ultimately his kidneys begin to fail.  No advanced directives had ever been discussed, as with many people of his generation; fortunately, he remained of sound mind.  At first, everything was a whirlwind……medication infusions to prevent irregular heart rhythms, blood transfusions to address his anemia since the kidneys were no longer working properly to stimulate the bone marrow to make more red blood cells, and finally, dialysis???  Well, if the kidneys are not working very well, not filtering the blood to produce urine and not stimulating the bone marrow to produce RBCs, we have to fix this, right?  What was not mentioned was that blood transfusions have to be given with intravenous fluids, which then worsen the fluid overload and congestive heart failure making it even more difficult for the poor man to breathe.  Higher and higher amounts of oxygen are needed to keep him comfortable, while his body is swelling up with fluids.  So, STOP THE MADNESS!  This family patriarch, after being informed of the complicated nature of his essentially end-stage condition, opted to forego hemodialysis; he did not want to be hooked-up to a machine for 3 hours a day, 3 days a week, just to filter his blood in an attempt to garner perhaps 6 more months of life; that kind of life had no quality to it in his mind.  In addition, since the blood transfusions would only worsen his breathing, he refused any more blood.  He wanted to be kept comfortable with pain medications and oxygen which was done in the hospital; he did not want to be shocked (defibrillated) or resuscitated in any way.  Comfort measures were provided in the hospital where he was given a large, private room, and he passed away peacefully within 3 days; there were no restrictions on family visitation, and he was surrounded by those dearest to him.  A chaplain was available within minutes of his death to comfort the family and offer prayer to ease everyone else’s suffering and loss; this patriarch was already at peace and without pain.

In this particular example, it was beneficial that my family member was of sound mind to make his own decisions at the end of life with regard to blood transfusions and hemodialysis.  It would have otherwise been very difficult for the family to come to some kind of consensus.  It was also better, in this case, that he remain in the hospital since his wife was still living and would have to return to their home alone following his death; having her live in the house in which her husband of 67 years had died would have been too much for her to bear.  This emphasizes the importance decision-making while one is of sound mind.  Cancers can spread to the brain; toxic metabolites that accumulate when vital organs fail can render a patient confused or even comatose; acute strokes can also affect one’s cognitive capabilities, not to mention other organ systems (breathing, toileting, swallowing, etc.).

Advanced directives can be as precise or as vague as one desires.  It seems to me that the more detailed the directive, the less chance one encounters of a physician or care provider ignoring the directive or “interpreting” the directive in a way that confuses loved ones, exposing the patient to unnecessary procedures and/or life-extending treatments.

Have you ever had to deal with any of these issues – advanced directives, palliative care, end-of-life care or hospice care? What has your experience been? Do you have any suggestions that might be helpful to others, who may be faced with similar issues?

More on this topic soon: What constitutes a terminal condition?

Related Posts:

Advanced Directives: The Right to Die With Dignity. Does the Medical Profession Honor Them?

Making Your Wishes Known at the End of Life (NY Times article by Dr. Pauline W. Chen )

Image from mylocalhealthguide.com


 

Legal Boot Camp Class Four. Sean and Kristy’s Story: How a Jury Award is Conformed to the Cap.

Wednesday, June 15th, 2011

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

Last week, we published a blog about Sean and Kristy. You will recall that Sean died from excessive bleeding when the nurse overdosed him with anticoagulation medication after a major surgery. You will also recall that after careful consideration Kristy decided to file a medical malpractice claim against the nurse and her employer, the hospital.

Now, let’s skip forward.  Kristy’s Complaint stated two causes of action: survival and wrongful death. Under the survival claim, Kristy was the only named Plaintiff because she was named Personal Representative of Sean’s Estate. Only a personal representative can bring a survival action on behalf of a decedent. Kristy and Kira (Sean’ daughter) were both named Plaintiffs under the wrongful death count. Generally speaking, only a parent, spouse, or child (with some exceptions) can bring claims for wrongful death.

At the conclusion of the trial, the jury returned a verdict of 2.5 million with 1 million awarded in the survival action and 1.5 million awarded in the wrongful death action. Furthermore, in the wrongful death action, the jury awarded Kristy 1 million dollars and Kira 500,000 dollars.  All of these damages were for pain and suffering.  You will recall that Maryland has a cap on non-economic damages. The cap imposes a limitation of about 812,000 dollars when the jury’s award is for wrongful death and survival (this is regardless of the number of claims or claimants).

How will the Court reduce the verdict so that it conforms to the statutory cap? The answer is mandated by statute: the Court must make proportionate reductions in order to reduce the jury award to the statutory cap.  Here is how it works:  The total recovery in this case is 2.5 million (1 million under the survival action, 1.5 million under the wrongful death action). 1.5 million represents 60% of the total recovery of 2.5 million.  1 million represents 40% of the total recovery.

Now, 40% of the 812,000 cap is 320,800 dollars. 60% of the 812,000 cap is 487,200 dollars. Therefore, the monetary award under the survival action will be reduced by the Court to 324,800 dollars. The overall award under the wrongful death action will be reduced by the Court proportionately to 487,200 dollars.

Furthermore, proportionate reductions are necessary to conform the wrongful death award to the cap.  An overall amount of 1.5 million was awarded in the wrongful death action.  From that award, the jury gave Kira 500,000 dollars and Kristy 1 million dollars.  One million represents about 67% of the total recovery in the wrongful death action. Kira’s award of 500,000 dollars represent 33.3%. Applying these percentages to the capped wrongful death recovery of 487,200 dollars, Kira’s award will be reduced from 500,000 dollars to 160,776 (33% of 487,200) dollars. Kristy’s award of 1 million dollars will be reduced to 326,424 dollars (67% of 487,200). This is all Maryland law will permit them to recover. Justice or injustice, what do you think?

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.

 

How Much is Your Marriage Worth?

Friday, June 10th, 2011

When you’re injured as a result of someone else’s negligence, it’s easy to see why you have a legal claim. You are entitled to recover for the injuries that you suffered, including economic damages (lost wages, medical bills, etc.) and non-economic damages (pain and suffering). However, if you’re married, there is another category of damages that you may be able to recover – damage to your marriage. It’s called Loss of Consortium and is an important element of damages in the right circumstances. It is a legal recognition that the marital relationship itself – separate and apart from the injury to the individual – is a protected interest that is deserving of compensation if it has been harmed by the negligence of another person.

Loss of consortium has an interesting history. Under Common Law (which roughly translates to “the olden days” in this circumstance) a woman had no right to sue for loss of consortium. It was only the man who had the right. That was because the woman was essentially seen as the man’s property. If she was injured and unable to provide her usual domestic or bedroom duties as a result of someone else’s negligence, the man could recover for the loss of such services. He had basically lost some of the value of his property so he was entitled to compensation. Eventually, the courts (most courts, at least) recognized the unfairness of such a one-sided system and ruled that women could also make such a claim if their husband suffered an injury. However, there are still some states (Virginia, for example) that do not recognize loss of consortium at all, no matter who tries to bring it.

Back to the present day. A loss of consortium claim arises when one spouse suffers a serious injury that impairs the marital relationship. An easy example is if a husband suffers a traumatic brain injury as a result of a doctor’s negligence. In that circumstance, the man would be able to file a claim for his own damages, of course, but he and his wife could also allege loss of consortium because the brain injury impacts the marriage. The couple will now find it more difficult to do the things they use to do together as man and wife – going out together, caring for their children, taking vacations, intimacy, and the day-to-day marital difficulties that arise because the husband now has a brain injury. In Maryland, a jury can award monetary damages for the couples’ loss of companionship, affection, assistance and yes, sexual relations. It is notoriously difficult to put a dollar figure on such injuries, but the law recognizes the right of a husband and wife to recover financially if their marriage has been damaged. How much money to award for such injury is for the jury to decide. Like other damages, it is always the plaintiffs’ burden to prove that the marriage has been injured, which is usually done through the testimony of the husband and wife.

Speaking of intimacy, some pundits say that loss of consortium is just a code-word for damage to the couples’ sex life. This is not entirely true as the marital relationship entails far more than just sex, but these pundits have a point. A loss of consortium claim usually does include an allegation that the couples’ sex life has been impacted. If you are bringing a lawsuit, you have to understand that when you allege loss of consortium, you are opening up the door on the most intimate parts of your life. Defense attorneys will often ask highly personal questions – how often did you have sex before the injury, how often do you have sex now, how exactly does the injury make sex more difficult, have either of you ever strayed from the marriage, etc. Some couples are understandably reluctant to discuss such things. Thankfully, most defense attorneys are just as uncomfortable asking these questions as the plaintiffs are answering them, so the questions tend to be over with relatively quickly. Be aware, though, that if you do file a loss of consortium claim, your sex life may become an issue in open court.

In the District of Columbia, a loss of consortium claim is for similar damages, but with a slight difference. While in Maryland the claim belongs to both the husband and the wife and is brought by them jointly, in the District of Columbia the claim belongs solely to the non-injured spouse. Any money awarded by the jury for loss of consortium goes to the non-injured spouse rather than to the couple jointly.

Lastly, Maryland’s cap on non-economic damages applies to claims for loss of consortium. There is no separate cap for this claim. In other words, there is a single cap that applies to all allegations of injuries, whether it’s an injury to the individual or an injury to the marriage.  The Maryland Legislature does not allow a couple to receive more money for injury to the marriage above and beyond the cap, even if a jury decides that that money should be given. Just another example of how Maryland’s cap punishes plaintiffs.

Have you ever suffered an injury that impacted your marriage? Did you file a loss of consortium claim? What was the result?

Related Nash and Associates Links

Maryland’s alleged healthcare “crisis”

Insurance and Traumatic Brain Injury

Acquired Brain Injuries

 

 

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.

 

New Blog Series:Legal Boot Camp

Thursday, May 26th, 2011

I’m really pleased to announce a new series we’re starting today. If you’re a reader of our blog, you know that we post numerous times a week on health, safety, medicine and related law topics. That’s what we do in our firm – we represent people who are injured by the negligence of health care providers and those who suffer catastrophic injuries in non-medical settings as well. So, sharing what we believe is some good information about medical, health and safety issues is our mission. We strongly believe that our social networking should be about giving good information, engaging in dialogue about relevant issues – just plain good, old sharing.

For well over a year now, we’ve been blogging away on these topics. No, we’re not doctors; we just happen to deal with medical, safety and health issues in our daily law practice. Our experience, which is a combined one of many decades (roughly over 75 years) of litigating personal injury and our sub-specialty of medical malpractice cases has given us some pretty good insights into how law and medicine intertwine.

What’s new then…?

We’ve said this so many times that I’ve lost any realistic count – an informed patient is one who can better serve their own health care and medical needs. Our “tips and tricks” have been designed to make our readers more educated in health and safety issues so that when they have a medical condition or need medical care or suffer serious injuries along the way, they are hopefully better equipped to get involved in dealing with their issues.

Well, now the time has come, we feel, to make our readers more educated in the laws that potentially affect their lives as well. Love lawyers or hate lawyers (or somewhere in between), there’s no escaping the reality that every one of us lives within a social framework of laws – some created by the common law and some by legislation. We want to offer you, our readers, some insights into what some of the laws are that can possibly affect you in the field of personal injury and medical malpractice. A better educated client is our goal and our new add-on mission. We’ll keep trying to put good, new content out there for you about health, medicine and safety. It’s our bread and butter of social networking. Since we’re lawyers, however, we figured – hey, why not share some information and insights about the law with you as well. You won’t even get a tuition bill in the mail – what a deal!

What will be discussing that might interest you?

First I need to be clear on the scope of what we’ll be discussing. Our lawyers are admitted in Maryland and Washington, D.C. Sure, we occasionally will seek permission from courts in other states to appear before them through a procedure known as pro hac vice – (okay – check out the link if you want – you just had your first mini-law-lesson).Those cases are, of necessity, few and far between. We’re pretty darn busy helping people in our own backyard(s)- D.C. and Maryland. So, with that in mind, we’re going to gear our posts for the Legal Boot Camp to legal issues in Maryland and Washington, D.C. If you don’t live in one of these beautiful places, you might want to have a “read” anyway. Needless to say, laws can vary tremendously from one jurisdiction to another. The legal issues, however, are many times common to all. The answers are often what vary. Central to any civil lawsuit for personal injury or medical malpractice case might be issues such as what is a statute of limitations?, or what is a statute of repose?, or what’s the difference between them?, or what damages are recoverable in a personal injury lawsuit, or what is meant by “the standard of care” in a medical malpractice case? or what really is a common law marriage? and on and on and on.

The Disclaimer

Yeah, you had to know one was coming. Hey, we are lawyers!

If you didn’t know, we can’t offer you legal advice in a blog, tweet or Facebook post. We can, however, share some of our knowledge of issues that just might impact you. No, just by reading our posts we do not have an attorney-client relationship. OK…got it? I suspect you do, so let’s move on.

Our “Legal Boot Camp” Format

For those of you who haven’t been to law school, let me start by sharing the typical way a class in law school would go – at least when I was there a few years ago. Yes, we had real, electric lights way back then and were not limited to studying by the glow of a fireplace or candle.

The assignments in whatever class you were taking were pretty much the same. Read a case or two (in torts, contracts, corporations, etc.). When you came to class, be prepared to “present” the following: (a) the facts of the case, (b) the issues of the case and (c) the holding(s) of the case. From there the discussion would take off. Well, since this style of legal education seems to have worked for quite a few of my fellow lawyers, that’s what we’re typically going to do.

The facts….and only the facts…

We’ll be giving you a fact pattern so you can see the issue and the law in a factual context. Politicians now like to give you a story first for their message. Why not us? The facts for our posts will sometimes be from cases we’ve handled or are currently working on (all identifying information will be deleted or modified for a host of reasons). Sometimes we’ll make our fact pattern as a composite from various cases we’ve handled. We hope you’ll find that they’re done in such a way as to make the issues and the legal holdings more understandable.

So, hand in your class attendance card; let’s have some fun!

We’re starting off this series with a post by Sarah Keogh, which I’ll post right after I hit “publish” on this announcement piece. Sarah tells the story of Pam, who was a swimming instructor before she was injured during a simple surgical procedure at a local Maryland hospital. What rights and claims does Pam have for her lost wages – even if she wasn’t making a whole lot, if anything – at the time of her surgery? Does she have any or is she flat out of luck for the rest of her days? Read the facts, figure out the “issue,” and learn some law.

Before you head over to your first class on Maryland law, here’s a tip. If you want to follow the course and would like easy access to our lessons, you can go to our search bar on the main blog page and just type in “Legal Boot Camp.” We’re also going to tag our Twitter posts in this series with the designation #LBC. Ok…now hand in your card and get your free legal education.

School’s Duty to Parents: Is Your Child at Risk?

Wednesday, May 11th, 2011

Image from tutoringmontana.com

Recently, I have been thinking quite a bit about schools. My son is going to start kindergarten in the fall and my daughter just started preschool last week. While both of my kids are still little, over the years children end up spending many of their waking hours each week at school. The school becomes as much a part of their lives as home for most kids. As parents, we put trust in the school that they will be keeping our children safe and healthy while we are not around to supervise. But do the schools recognize that trust and live up to it?

I was recently made aware of a situation involving a teenager who was having some health concerns. Her parents had first noticed that their daughter seemed to be altering her eating patterns. Since they were not certain if there was a problem forming and what was going on during the school day, they called the school and asked if the school thought that there was any reason to be concerned. This seemed to be a prudent action for any concerned parent. But what, if anything, is the school required to tell the parents? What if the parents had not noticed a problem, but the school knew that something was not right, would they have needed to call it to the parents’ attention?

Legally, it turns out that a school is considered to stand in loco parentis over the children in its care. This fancy legalese just means that the school stands in as substitute parents during the school day.  This is true of both public and private schools. The school holds a duty to protect and supervise students in its care. The courts have determined that this includes taking care to protect children from foreseeable harm, the way a reasonable parent would do if they were there.

So what does this all mean? Some of this is pretty straightforward. A school needs to protect your children from harm they could foresee. A school has to take reasonable precautions to protect children from getting hurt on the playground or from cars driving around the campus – to the same extent that a prudent parent would do so.  For public policy reasons, schools are often a place where the government often takes an even more active role in monitoring children’s health – for example in doing hearing and vision screenings.

But what about other types of harms? Most parents would want to know if their child was being bullied, was showing signs of developing an eating disorder or was considering hurting him or herself. Does a school have a duty to inform parents anytime there might be a chance of one of these harms?

The law does not seem to be settled in on this point.  Generally speaking, the school would need to take reasonable steps to protect a child if the school could foresee that the child was at risk of being harmed by another child in the school.  The law is not explicit about whether that includes informing the parents. When the risk is not of another child hurting your child but of your child hurting him or herself, the law is much less clear. In Maryland, it seems possible that a school might have a duty to warn a parent if they believe a child is suicidal. The school counselor may have a duty to warn the parent as part of a duty to take reasonable means to prevent the child’s suicide. However, the law is not explicit about when that duty arises.

What do you think? Does a school have a duty to inform parents if there is a reasonable chance that a child might be a danger to him or herself? What if your child is engaging in behaviors that might cause harm over time? Is this the role of a school?

Mediation of Lawsuits: The Top 5 Things that Tick Me Off!

Monday, April 25th, 2011

Having practiced law now for almost four decades, I’ve been involved in the resolution/settlement of thousands of cases. When I was a much younger lawyer, we didn’t have formal mediation sessions. We would  just talk with the other lawyer, pick-up a phone or sit down with the claims adjuster and just worked it out. Now the in-thing is formal mediation.

For those who may not be familiar with the mediation process, in the context of our firm’s areas of practice, it is basically a formal meeting involving all parties to a legal dispute, who hire an independent person called a mediator, to try to resolve the dispute between the parties through settlement. The intent is to avoid the risk, uncertainty and expense associated with taking the dispute to trial.

There’s no doubt in my mind that a good mediation session settles some cases that might otherwise be difficult to work out. That being said, I seem to be running into some trends over the last couple of years that are – quite frankly – starting to really p**s me off!

Normally, I would keep my lawyer-rants to discussions with those in my law firm or with some lawyer pals, who share the same frustrations. Recently, however, I read a post by a legal blogger – a blawger (a lawyer who blogs), Scott H. Greenfield, who took to task legal bloggers for not taking a stand on issues. His blawg is titled Dead Lawyers Have No Enemies. I decided I would do the Lazarus thing and take a stand on an issue that’s been bugging me for some time – modern day mediation and mediators.

In no particular order, here is my list of the top 5 things about mediation that just tick me off:

1. No meaningful discussions before the mediation session

How many times now have I heard the mantra -”No, we don’t want to engage in any settlement discussions (interpretation – no first offer) until we get to mediation.” Far too many times I’m afraid. Why is this? Can’t people get the process started before mediation so that we all can make an intelligent decision as to whether formal mediation has a chance of working or whether the upcoming mediation has all the ear-markings of a waste of time and money?

Here’s the mediation scenario: The clients have to miss work or otherwise be inconvenienced to be at mediation. Many times we have to travel some distance to attend. We sit through the mandatory (but necessary for the clients) introduction by the mediator advising those new to this process who the mediator is, what his/her background is, what the process is all about, how it’s confidential and nothing said can ever be used outside the mediation session. The confidentiality form is signed and the parties go to their separate rooms.

On behalf of my clients (the party bringing the lawsuit), we make a demand. After some time passes (which varies greatly depending on the mediator), the first offer is made. Lately, more often than not, the offer is some ridiculously low-ball amount. The mediator tells you and your clients: “Don’t take it personally. They’re just trying to send a message” You fight every instinct welling-up inside you to send your own message by just walking out. After getting control of your own emotions, you try to calm your clients down. Not easy to do sometimes – for instance when (by way of a real life example) my clients just been told their dead child is worth $25,000. Of course that’s not what’s being said by the defendant’s insurer, but that’s exactly how it resonates – in this example – with the plaintiffs, who do take it personally.

There’s no doubt that when as a plaintiff’s lawyer you make a demand that’s simply ridiculous, you somewhat deserve to get low-balled in Round 1. However, when you purposely try to put a reasonable number on the table – albeit giving yourself room to negotiate, it is enraging and detrimental to the process on many levels when you get low-balled by the defense. Apparently, the defense doesn’t believe you actually tried to make a reasonable initial demand. They take a reasonable demand as a sign of weakness in the plaintiff’s case. Yet, if I were to take the other approach and start with an equally outrageous demand in Round 1, I would never hear the end of it from the other side. Sure – “reasonable” is in the eye of the beholder, but skilled advocates generally have a sense of the range it takes to be in at the end of the day to settle any given case.

My free advice: If mediators were doing their job, they would get the negotiations underway before the first formal mediation session. My suggestion: let’s get all the foreplay out of the way before the formal mediation session. If it’s going to be a waste of everyone’s time, then let’s put our efforts and money to better use and not mediate in the first place.

2. The Defense not understanding the impact of their conduct

Having been a defense lawyer before switching sides (referred to by insurance adjusters as “going to the dark side“), for years, I didn’t sit in the room with the injured party when we sent the first offer (and the second and the third and….) into the plaintiff’s room. Had I been a fly on that room’s wall, maybe I would have realized a lot earlier just what impact our “message” was going to have on that injured party, whose case we claimed we were trying to settle.

As the years went by and I saw some plaintiff lawyers packing-up their bags and heading-out with their clients as a response to our message offer, I started to get it. Call me a “slow learner,” but at least I had my epiphany.

Now that I am sitting with the injured person who brought the lawsuit, let me share a bit of advice with my colleagues on the other side. Don’t p**s off the plaintiff and in turn his/her lawyer by sending the wrong message. Does any defense lawyer or risk management person really believe the plaintiff wants to hear: “Your dead child (or replace with – your injured child, your missing leg, your paralyzed son – and every other injury that has befallen a plaintiff) is worth $25,000 or $50,000.”

Now that I’ve been sitting with these injured or grieving people for years, I get to see firsthand  just what kind of impact a low ball, “message offer” has on people. It starts the process out on the wrong foot. You – as the lawyer representing the injured person – have to try to remain calm in order to calm your client down. You try to convince them that this is just a game being played and they shouldn’t read anything into it. Well, Dear Defense Lawyer and Claims Person, it is not a game to the person who’s been injured!

Apparently many defense lawyers are relying on their bible, Mediation 101, which ostensibly tells them that when they are in the initial general session, the defense should tell the plaintiffs just how sorry they, the defense, are for the injuries and losses the plaintiffs have suffered.

Well here’s some free advice from the dark side: With the first chance you have to show that this empathy was really sincere, don’t slap the plaintiffs in the face with a low ball, message offer. It’s not a good technique!

If you, the defense, take this approach, you have completely lost all credibility, the war is on and now it will take hours of worthless and unnecessary haggling to get to where this all could have started if the parties had started out in good faith efforts to negotiate. Hopefully, Advanced Mediation Technique – 201 will be coming out soon!

3. Mediators who are nothing but high-priced messenger services

Finding a qualified mediator seems to be getting harder and harder. The good ones seem to be booked-up for months to come. Maybe that’s because they are good. Why does it seem to me that every retired judge now thinks that he or she is a qualified mediator? Sorry, Former Member of the Judiciary, but you are not all qualified. Some are; some are not.

How many times have the litigants experienced a mediator who simply walks from room to room and delivers the latest offer or the latest demand? My answer: way too many times! If I need a courier, I’ll hire a courier. They are a heck of a lot less expensive and could be equally effective.

Since so many of us “in the trenches” are searching for skilled, qualified and effective mediators, who don’t cost an arm and a leg (and dramatically increase the costs of the case), a lot of newbie mediators are among the selection pool. Well, I for one am not interested in a mediator getting his or her training-wheels on my client’s case. Can’t there be some universally accessible databank or message board or listserv in today’s digital age where litigators can freely express their views, comments and criticisms of mediators so that litigants can have a real choice of qualified, reasonably priced and effective mediators? Maybe I’ll make that my next project – in my spare time.

4. Using mediation as a “feeling out” session

I cannot tell you how many times I have gone to a mediation session where the goal seems to be that one side – usually the defense – wants to get a feel for just how much it’s going to take to get the case settled or to get a feel for the plaintiff and how they will come across to a jury if the case doesn’t settle.

Sorry, but mediation is not discovery! If the defendant’s insurer or claims person wants to gain these insights, then they should take the time, in serious cases, to attend the plaintiff’s deposition. If they can’t be there, maybe they will be interested to learn that there’s new technology called a video deposition. It’s only been around for years!

In this same vein, it fascinates me when I hear a messenger mediator tell me some of the justifications for why a low-ball offer being made is well-founded. The mediator (particularly those in the messenger class) takes as gospel so-called facts about the case from the defense and conclude they are being reasonable – or even magnanimous – when these facts are nowhere to be found in the evidence of the case being mediated!

Recently, I had a defendant and its settlement team of lawyers and adjusters, totally enamored with their causation defense (admitting in essence the caregivers had totally failed to follow acceptable standards of good medical care but claiming – “our conduct, which we recognize was awful, didn’t cause your client’s injuries”) that drove the entire negotiations toward abject failure. After hours of meaningless back-and-forth, small, incremental offers and demands, the whole mediation session fell apart.  If the mediator had truly known the real facts of the case, he would have realized that this so-called defense was in large part predicated on a defense expert’s unfounded opinion. Truth be known, that “expert” had totally failed to read our client’s subsequent care records, which disprove his baseless opinions.

Should I have told the defense where they were wrong? Or – should I save this information for cross-examination if I honestly believe the case is not going to settle and I will have to try it? Tough call – but I opted for the latter course since the negotiations were going nowhere fast anyway. I made a judgment call that the reserve put on the case by the healthcare was so low that this case would not settle no matter what they learned that day.

Mediation sessions are intended to resolve cases, not act as a session for the claim’s representative to figure out what the case is about! Just how many serious cases do these claims people have that they can’t come prepared for mediation? How in the world do they set a reserve on a case not understanding the medicine (in a medical malpractice case) of the case?

A free, albeit unsolicited message for our claims brethren: If you don’t or can’t understand the medicine before you put a value on it, learn the medicine from your defense lawyer. Isn’t that what you are in part paying for when you pay their hourly fees? Really know your file and question your defense counsel about their recommendations. Simply put – come to mediation understanding the facts and the law as best you can. Don’t see mediation as just another opportunity to spend a day out of the office.

5. Mediators who don’t, can’t or won’t challenge the positions of each side

Maybe this is a corollary to my “don’t be just a messenger,” but it holds a special place in my heart– so it makes the list. I can’t tell you how many mediators announce during the initial, joint session (where all parties and counsel are present) that they are not advocates for one side or the other. Well that’s fine; however, there comes a time when the position of one party or the other needs to be challenged by the mediator.

Messenger Mediators just listen and are often blindly impressed by the arguments of the lawyers for each side. Here’s the problem – a good mediator needs to be able to understand the validity – or lack thereof – of those arguments to be effective. If a mediator doesn’t understand the law or the facts of a case well enough to challenge either side’s position, then what purpose do they serve?

Admittedly, a mediator cannot possibly know the “facts” of a case as well as the litigants. That does not mean, however, that they should simply show-up and facilitate a settlement by trying to act as a middleman in reaching the “sweet spot” of dollars that both sides are willing to accept to reach a settlement. While this approach may work in some smaller cases, it simply does not work in more complex and higher value cases.

Some of the best mediators I have had the pleasure to work with listen to the arguments, analyze the relative strengths and weaknesses of those positions and then challenge the parties and lawyers by questioning the validity of their arguments and position. When that’s done, it is amazing how progress is made toward a resolution of the case. Simply put, good mediators cut through the posturing and puffery and expose the weaknesses of each side’s case. The only way that can happen is if the mediator has taken the time to really learn the case. In my field of medical malpractice, that may mean taking the time to read the key medical records, key depositions or whatever other “evidence” each side believes supports their respective position and using that knowledge to cut to the heart of the issues.

Sure – it may mean paying a mediator a bit more for their time, but if it gets a settlement done, isn’t it worth it? I for one would rather spend money for a mediator who can perform this type of service than one who spends hours in the mediation session just listening to a party’s specious arguments, getting a new offer or demand and then doing the shuttle diplomacy gig. Way too often, this time-consuming shuttling from one room to the other doesn’t work. The mediator’s time “in the room” would be much better spent by questioning, probing and dissecting the relative positions of each side. That – in my experience – works more often than not and gets the case settled. Every case has weaknesses for all parties involved. So – Mediators – find the weaknesses, expose them and use them to bring reality to the mediation process in order to get it done. You don’t have to be an advocate, but you do need to be pro-active.

What are your pet peeves?

This blawg rant is not intended just for lawyers or mediators. I’d love to hear from people – like clients/parties to a lawsuit, who have participated in today’s modern marvel – formal mediation sessions.

Lawyers and litigants – plaintiff and defense – what is it about mediation that you think needs to be fixed? Maybe if we all put our heads together, we can make this a more meaningful process for everyone.

Related Posts:

One More Mediation Pet Peeve, John Bratt, Miller & Zois

 

 

 


 

 

Week in Review: Miss our posts this past week? Catch-up now!

Saturday, April 16th, 2011

From Eye Opener’s Editor, Brian Nash: Another week gone by – where does the time go? Our bloggers this past week, Theresa Neumann, Jon Stefanuca, Jason Penn, Mike Sanders and Sarah Keogh, were – in addition to practicing law – busy on the keyboard blogging away. In case you missed any posts during the week of April 10th through the 15th, here’s your opportunity to catch-up.

The “Medical Home” – find out what it is and why you should have one!

This past week, Sarah wrote two blogs on a concept that frankly I had not heard of before – the Medical Home. Her follow-up piece on how parents in particular are using emergency departments and clinics was posted yesterday, Friday, April 15th.

In her first piece, Sarah discussed a key issue about continuity of medical care for all of us but particularly our children. While there’s no doubt that there are times when taking your child to an emergency room is the only way to go in a true emergency, is it really the right place for a child to receive primary care? You see a physician or a medical specialist such as a physician’s assistant on a one-time basis. What do they really know about your child’s complete medical history? Do they really address key issues of general health care that is essential to your child’s overall health?

Her second post addresses specifically the topic of how many in this country are using facilities such as in-store clinics and emergency rooms for minor, non-emergency care. While there is no doubt that ED’s and clinics serve a vital role in the providing of healthcare in the United States, are they being used the right way? Are clinics often the only place where many in our country can obtain care for their children? Read Sarah’s posts on What is a medical home? Do your children have one? and her follow-up piece Clinics and Emergency Rooms: Helpful or Barriers to Good Pediatric Care.

A Disturbing Report on Some Area Hospitals and their Complication Rates

Earlier in the week, the new member of our legal team, Jason Penn, wrote about a recent report from the Maryland Health Services Cost Review Commission regarding a continuing failure of several local Maryland and DC hospitals to lessen the number of patients who suffer from complications while in these institutions. P.G. Hospital Center won the dubious distinction of being first in class. Jason reports that this institution, which services many of the area’s population, was fined by the state of Maryland for the number of “complications that are unlikely to be a consequence of the natural progression of an underlying disease.” The “list” includes specified complications such as “bed sores, infections, accidental punctures or cuts during medical procedures, strokes, falls, delivery with placental complications, obstetrical hemorrhage without transfusion, septicemia, collapsed lungs and kidney failure.” For information as to how the local jurisdictions deal with these hospitals in the pocketbook and who made the list, read Jason’s blog post entitled Report Card on Failing Hospitals: Prince George’s Hospital Center Tops “Complications” List.

Learn More about Medicine and Your Health

Theresa Neumann, an in-house medical specialist in our firm, posted Spinal Stroke: An atypical cause of back pain this past week. It’s one thing to have lawyers who live and breath medicine and the law write about medical conditions; it’s quite another to have real medical specialists like Theresa educate all of us on medical matters that affect the lives of so many. Theresa brings to the public’s awareness the signs, symptoms, risks and potential treatment alternatives to a catastrophically disabling condition that many just don’t know about – until it’s too late for them.

We’ve all – unfortunately – heard about or know someone who has suffered a stroke in their brain. Well, as Theresa reports, there’s an equally devastating form of stroke that can hit our spinal cord, which can render the victim paralyzed, without control of bowel or bladder, incapable of feeling sensation and a host of other life-altering consequences. We’re always appreciative of the wonderful, educational pieces Theresa brings to our blog. This piece is no exception.

The War against Super Bugs – MRSA and CRKP – are we losing the fight?

There was a time many months ago where we all became aware of the super bug infection known as MRSA. It was in the news over and over again. Have you heard much about it lately? Silence by news media might make one think that our medical institutions have won the war and the threat of this deadly infection is over. As Mike Sanders tells us – not so quick! In his blog of this past week, Deadly Super Bugs on the rise, Mike tells us who’s winning the MRSA war to and about a newcomer in the Super Bug family – CRKP.

The news is simply not good! See what seems to be working against MRSA and don’t miss the update at the end of Mike’s post about a new prevention method using honey.

Law and Medicine

Well we are lawyers – so why not a piece about our specialty area – representing patients and families of patients against healthcare providers? This past week, Jon Stefanuca wrote what we consider to be a very important piece entitled Should you sue a healthcare provider? Some guidelines to help you decide.

Some may just be surprised about the advice Jon gives in this posting. It is not a call to arms against the medical profession or even a call to our law firm so you can sue the b*****ds! Jon offers some very important advice to those who have been through an experience with a healthcare provider and are considering whether or not they have a potential lawsuit for the injuries they have suffered.

We believe this post encapsulates in large part some principles we have been advocating for a long time. Not every bad outcome means malpractice has occurred. However, how would you – as a lay person – be able to make the distinction between what is and what is not a real medical malpractice case? In addition to Jon’s sage advice, this post links to a White Paper we did on Choosing a Lawyer – a Primer. We hope if you have unfortunately found yourself faced with this issue of whether you should sue or not that you will find this blog by Jon informative and helpful in making your decision.

A Sneak Peak of the Week Ahead

As you can see, our bloggers were quite busy last week. Well, this coming week will be no different. The days ahead will be consumed with representing our clients in depositions, investigations, filing pleadings and court appearances….and writing and posting some interesting, important blogs on aneurysms (did you know they can present as back pain?), laughing gas coming back for moms in labor, sleep deprivation for nurses (and how well that plays out in your healthcare) and some other good stuff our writers are busy working on this weekend and during the week ahead.

Stay tuned – stay informed! Read the Eye Opener and tell your friends about us too! …and don’t forget to join our social networking communities on Facebook and Twitter.