Archive for the ‘Lawsuits’ Category

Week in Review: (July 2 – July 9, 2011) Eye Opener Health, Law and Medicine Blog

Saturday, July 9th, 2011

Eye Opener’s Week in Review

From the guest editor:         Good morning! I was hoping that you would take a break from making your “to do” list to stop by and check in with us. As usual, we have been busy blogging. And practicing law. And getting ready for trial. And in trial! Needless to say, we have been pushing it to the limits. In truth, we wouldn’t have it any other way. Before we get back to trial preparation, lets take a step back and look at the past week.

–Jason Penn, guest editor

Litigating for the Sake of Litigating: A Temptation to Be Resisted

By Jon Stefanuca

What do you do when your opposing counsel forgets that the practice of law is a profession and not a blood sport? What do you do when the phase “zealous representation” gets confused with “obnoxious obstructionist behavior?” When faced with similar frustrations, Jon Stefanuca broke out his keyboard and explained what we litigators deal with on a day to day basis. Being a lawyer is a very rewarding profession, but like any other, it has its share of frustrations. Don’t take my word for it, read more…

Can Copper Surfaces and Duct Tape Reduce Hospital Infections and Deaths?

By Sara Keogh

Germs are in your kitchen.  They are in your bathroom and your bedroom.  They are on your fingertips and even on your tongue.  And everyone knows that there are going to be germs in hospitals. Even the best hospitals have to work to keep the patients, rooms and visitors clean and safe.  Sara Keogh reported on news that may make keeping hospitals and other health care environments less germy in the future. Two simple solutions, copper and duct tape, might have a major impact on infection control.  Read more…

Sneak Peak of the Week Ahead:

The Eye Opener and its writers are excited about the week ahead too!  Here’s a sneak peak of what’s in store for you:

  • Service dogs for children:  more than just a pet
  • Legal Boot Camp is back in session and Part IV of our Cerebral Palsy tutorial.
  • And more!

Images courtesy of:

www.lifehack.org

www.mountainpulse.blogspot.org

 

Litigating for the Sake of Litigating: A Temptation to Be Resisted

Tuesday, July 5th, 2011

It really grinds my gears when attorneys start litigating for the sake of litigating without context or purpose. That’s right; I bet if you are a litigator, you know exactly what I am referring to.  I am litigator, and I am absolutely convinced that we would all be better lawyers and happier individuals if we just learned how to do our job with dignity and professionalism, while avoiding absurd tactics and unnecessary drama.

Maybe I am alone on this one (and part of me really wishes that I am), but I just don’t understand why some lawyers think it is beneficial to have one gear and one gear only during the litigation process –  to object and obstruct no matter what. Is it really necessary, for example, to resist any and all discovery requests by dreaming up objections that have no merit?  In the end, is impeding the flow of information during discovery really in the client’s best interest, and frankly, is it consistent with our ethical obligations as professionals?  It is my humble impression that this kind of obstructive behavior happens more than one might expect. So, we end up writing unnecessary motions and nasty letters and emails, we go to depositions to argue some more with the opposing attorney instead of focusing on the witness, and we create so much “bad blood” that the case becomes one about lawyers and not their clients. Is this consistent with our professional obligations? I certainly think not.

Isn’t it in the client’s best interest to share as much information as possible about the merits of the case so that the opposing party can make informed decisions about settling the case early instead of dragging the parties through litigation for years? Why would a plaintiff’s lawyer not want a defendant to know the nature of his claims, the extent of his damages, and the identity and subject matter of his experts’ testimony?  Sharing this type of information is exactly the reason why a Plaintiff is in litigation in the first place.

Similarly, doesn’t it help a defense lawyer to be a straight shooter early on in the discovery process so that the plaintiff will not go on to note 100 depositions and use every discovery tool just to make sure that defense counsel isn’t hiding something? If the defense to a case is weak, isn’t better for all parties to be on the same page (yes, even when a corporate defendant is not in the mood to hear bad news) so that a case that must be settled can be settled early without making defendant incur unnecessary defense costs? Pardon my cynicism, but since I am on my soapbox, let me say this as well: the interest in having billing time should never be a substitute for the client’s best interest.  One byproduct of being evasive in discovery is that the defendant client (especially a corporate client) might end up being misinformed about the merits of the case – not a good position to be in when the lawyer finally comes to his/her senses and recommends settlement, but the client is not on the same page.

We have got to stop taking positions that have no good faith basis.  If there is no evidence of contributory negligence, don’t claim contributory negligence.  If experts are retained to testify at trial before the expert designation deadline, don’t object to their disclosure during written discovery simply because the expert designation is not due for another three months. If you can’t resist speaking objections, there are better places than a deposition to hear yourself talk.  If you have to file a motion, file one because you have to, not because you got a new crop of summer associates or first year associates doing nothing but writing motions for the sake of writing motions. I can go on, and I am sure that, if you’re a litigator, you can contribute to this list.

Life is too short and our occupations too stressful to engage in the meaningless waste of spirit. Time spent on useless litigation could be time spend with our families. What do you think? Don’t be shy, hop on the soapbox….

Related Posts:

Why early settlement is a win-win for all

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

 

 

 

Dealing with Cerebral Palsy: A Resource for Parents and Family (Part III)

Wednesday, June 22nd, 2011

In Part I of this series I provided a basic introduction to dealing with cerebral palsy.  I also provided Maryland parents with a comprehensive list of places that are able to assist parents.  In Part II I discussed educating children with cerebral palsy and provided a list of places to turn if you need help.  Today we will take a look at some of the medical treatments available for cerebral palsy.

Medical Treatment

Cerebral Palsy cannot be cured, but treatment can often improve a child’s capabilities. Progress due to medical research means that many patients can enjoy near-normal lives if their neurological problems are properly managed. There is no standard therapy that works for all patients; the physician must work with a team of other health care professionals to identify a child’s unique needs and impairments.  Typically, an individual treatment plan is created to addresses them.  As a general rule, the earlier diagnosis and treatment begins, the better chance a child has of overcoming developmental disabilities or learning new ways to accomplish difficult tasks.  The goal of treatment is to help the person be as independent as possible.

Treatment requires a team approach, including:

  • Primary care doctor
  • Dentist (dental check-ups are recommended around every 6 months)
  • Social worker
  • Nurses
  • Occupational, physical, and speech therapists
  • Other specialists, including a neurologist, rehabilitation physician, pulmonologist, and gastroenterologist

Treatment is based on the person’s symptoms and the need to prevent complications.  Self and home care include:

  • Getting enough food and nutrition
  • Keeping the home safe
  • Performing exercises recommended by the health care providers
  • Practicing proper bowel care (stool softeners, fluids, fiber, laxatives, regular bowel habits)
  • Protecting the joints from injury

Putting the child in regular schools is recommended, unless physical disabilities or mental development makes this impossible. Special education or schooling may help.

The following may help with communication and learning:

  • Glasses
  • Hearing aids
  • Muscle and bone braces
  • Walking aids
  • Wheelchairs

Physical therapy, occupational therapy, orthopedic help, or other treatments may also be needed to help with daily activities and care.

Medications may include:

  • Anticonvulsants to prevent or reduce the frequency of seizures
  • Botulinum toxin to help with spasticity and drooling
  • Muscle relaxants (baclofen) to reduce tremors and spasticity

Surgery may be needed in some cases to:

  • Control gastroesophageal reflux
  • Cut certain nerves from the spinal cord to help with pain and spasticity
  • Place feeding tubes
  • Release joint contractures

What is important, however, is that an individualized approach be taken for your child.

Query:  Does your child have cerebral palsy?  What medical treatments are you providing for your child?

 

 

Credits to http://www.nlm.nih.gov; www.nsnn.com

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.

How Do I Choose A Lawyer? A Helpful Guide

Monday, June 20th, 2011

One of the most important things you can do if you are considering a lawsuit is to spend time doing a proper search for the lawyer, who will be handling your case.

Just because a law firm or a lawyer has a fancy webpage or an eye-catching ad in your local phone directory or even a professional looking TV commercial does not mean that this lawyer has a clue what he/she is doing in the specialized areas of medical malpractice or catastrophic personal injury.

We invite you to read and consider the issues and questions raised in our White Paper – “How to Choose a Lawyer.”

If you have other ideas or questions that you believe would be helpful to our readers in their search for a lawyer, post your reply on this topic so others may benefit by your insights.

 

Image courtesy of www.quadtechint.com

 

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.

Week in Review (April 16 – 20, 2011) The Eye Opener Health, Law and Medicine Blog

Saturday, May 21st, 2011

From the Editor (Brian Nash)

Another week of great posts (IMHO) by our blawgers. Apparently, I’m not the only one who thinks so since we have now surpassed 21,000 page views in the last 30 days. The number keeps rising. Our sincere gratitude to all our readers!

Our topics were once again quite varied. They spanned the law, health, science and medicine. We even had a piece on a local event – Marathon Kids. This piece is part of our new program to promote charities and civic organizations in our own backyard – Baltimore and Washington.

We try week in and week out to find topics of interest for you, our readers. If you ever have any suggestions for topics of interest to you, please leave a comment or send us an email or fill-out the contact form with your thoughts and suggestions. We’d love to hear from you.

Let’s get to it then. What did we cover this past week that you might be interested in reading? Take a look -

Why early settlement is a win-win for all

By: Michael Sanders

There is an old adage in the law that cases settle on the courthouse steps. There is a reason for that. When the parties are actually walking into court to try their case, they seem to suddenly recognize that there are significant risks to going to trial, and that there is serious money at stake. When you go to trial, only one side can win. The other side goes home a loser. Faced with such a stark outcome, both sides tend to become more reasonable in their assessment of their case and more willing to talk settlement. After all, despite all the years of experience that trial attorneys amass, no one can ever predict what a jury is going to do in any specific case. As one mediator I know likes to tell the litigants, going to court is like going to Vegas:  you roll the dice and you take your chances. Read more….

Milk from Mom: Effective in preventing common infant complication (NEC)

By: Jason Penn

The debate among parents regarding the use of human milk vs. formula wages on, but according to a recent study, you can chalk one up for the human body.  That study, headed by the Johns Hopkins University in Baltimore, concluded that premature babies fed human donor milk were less likely to develop the intestinal condition necrotizing enterocolitis (NEC).  Both sides has its advocates, willing to do battle at any time. When it comes to NEC, Mom’s milk has the decided advantage. Read more….

H.I.V. treatment advances, but what are the implications of terminating research early?

By: Sarah Keogh

Last week, I read some exciting news about H.I.V. treatment and transmission. A New York Times article reported that a large clinical trial found that “[p]eople infected with the virus that causes AIDS are far less likely to infect their sexual partners if they are put on treatment immediately instead of waiting until their immune systems begin to deteriorate…” The study found that “[p]atients with H.I.V. were 96 percent less likely to pass on the infection if they were taking antiretroviral drugs…” These findings are overwhelmingly positive and the implication for public health is huge. Read more….

A Windy, Rainy but Fabulous Day in Baltimore: Marathon Kids Final Mile Celebration

By: Rachel Leyko

Despite the wind and rain, this past Saturday I volunteered at the Marathon Kids Final Mile Celebration Event at Western Polytechnic High School in Northwest Baltimore.  I learned of the event through the Junior League of Baltimore and to be honest, prior to Saturday, I did not know much about the organization, its purpose or effect on the children it sought to serve.  However, after Saturday’s event, not only was I impressed with the purpose of Marathon Kids, but I saw firsthand the positive effect this program has had on the children who have participated. Read more….

Acquired Brain Injuries: Causes and Impact

By: Theresa Neumann

On the heels of Jason Penn’s blogregarding calling “911″ for signs of a possible stroke, I decided to introduce a variety of acquired brain injuries for further discussion in future blogs since damage to the brain results in some of the most catastrophic injuries possibly sustained by the human body with significant “collateral damage” for all of the friends and family involved in the individual’s life. Read more….


Sneak Peak of the Week Ahead

Some topics we’ll be covering next week…and then some…

  • You or someone you know has been diagnosed with cancer, now you have to deal with the horror. Jon Stefanuca will be writing a piece based on our experiences with a number of clients “living with cancer.”
  • Mike Sanders and I have both recently resolved cases involving families who have lost a child. Mike’s involved the death of a fetus very near term. He’ll share that story and the experience of the case with you.
  • Maybe those of you who have children with special needs are familiar with the local (Maryland and Washington, D.C.) resources to help you and your child. For those who may not be or just want to learn more, Jason Penn will be providing information on this next week.
  • You may have heard the recent news about labeling of certain medications for children. Sarah Keogh will report on this and also delve into some practical problems and issues that parents face every day in terms of medicating their children.
  • We’re going to begin a new series on exactly what is recoverable in our jurisdictions (Washington, D.C and Maryland) under what is known as the Survival Act and the Wrongful Death Act. We’ll be paying particular attention to issues involving what’s known as pecuniary benefits, loss wages and diminished earning capacity. Should be educational. We hope you enjoy it.

Have a great weekend, Everyone!

Why early settlement is a win-win for all

Friday, May 20th, 2011

There is an old adage in the law that cases settle on the courthouse steps. There is a reason for that. When the parties are actually walking into court to try their case, they seem to suddenly recognize that there are significant risks to going to trial, and that there is serious money at stake. When you go to trial, only one side can win. The other side goes home a loser. Faced with such a stark outcome, both sides tend to become more reasonable in their assessment of their case and more willing to talk settlement. After all, despite all the years of experience that trial attorneys amass, no one can ever predict what a jury is going to do in any specific case. As one mediator I know likes to tell the litigants, going to court is like going to Vegas:  you roll the dice and you take your chances. So often times, the closer a case gets to the trial date the more motivated the two sides are to talk settlement. But is there a better way?

A couple of recent cases made me start to think about settlements and how they come about. (If you missed it, Brian Nash wrote an excellent piece on the frustrations of mediation and trying to settle cases). I’ve recently handled two cases that illustrate how settlements work and how two cases can go down dramatically different routes to ultimately get to the same place. Both of these cases are subject to confidentiality agreements so I can’t divulge the names of the parties or the settlement amounts, but they were both seven-figure cases with significant injury.

In the first case, the patient alleged that her doctor failed to timely diagnose stomach cancer over a period of several years. By the time the patient was properly evaluated by another physician, the cancer had progressed to the point that there was virtually no chance of a cure, and the young woman was likely going to die in the next few years. In the second case, the patient alleged that he suffered serious neurological complications (motor and nerve dysfunction in his arms and legs) as a result of post-operative complications that were not treated quickly enough. In both cases, a lawsuit was filed in court.  At that point, the two cases diverged.

Case Example #1 – Getting it done early

In the cancer case, before any depositions had taken place, the defense attorney called and asked if we might be able to talk about resolving the case. That’s always a great call to get as a plaintiff’s lawyer because it means there is a good chance that you will be able to get a nice result for your client, which is always the ultimate goal. Within a matter of weeks, we had reached an agreeable number and the case was over.

Case Example #2 – Grinding it out to the courthouse steps

In the second case, there was no early talk of resolution. The case proceeded through the normal course of litigation, which in the District of Columbia usually means about eighteen months of discovery, depositions, expert meetings, etc. Twenty-five experts were hired to review records and testify. Twenty-seven depositions ended up being taken. The case got all the way up to the Thursday before trial was scheduled to start on the following Monday morning. At that point, the parties finally reached agreement on a number and the case was settled.

Why the difference in approach?

So we have two cases, both with significant injury and both with questionable care. One case settled right away, and one dragged on for almost two years before settling. Is there a simple reason why? Not that I’ve been able to figure out. After years of doing this, I, like every other attorney, get a gut feeling as to what cases are worth, which ones will likely settle, which ones will go to trial. But it’s still a gut feeling; there’s no science involved.

It’s usually a combination of factors – the quality of the medical care, the severity of the injury, the likeability of the plaintiff and the defendant (more important than most people realize), the specific jurisdiction you’re in, etc. On top of these factors you have a myriad of psychological reactions that pop-up in lawsuits and there is no predicting those. Sometimes people get entrenched in fighting for no other reason than to fight. Some people get a number in their head for what a case is worth and don’t want to budge. So even though I can’t sit here and explain why certain cases settle early and some settle late, I do want to talk about the value of early settlements to all sides.

Common Sense and good economics say “get it done early”

It is easy to see why early resolution of cases benefits everyone, and it comes down to the costs of litigation. In today’s world, it can easily cost $75,000 to $100,000 (if not more in many instances) just in expenses to take a case to trial; it can easily be much higher in complex cases. (I know of one attorney who spent $300,000 on a case that he took to trial; he lost the case). These expenses consist primarily of expert fees paid to doctors to review records and testify. Expert doctors routinely charge at least $400 per hour and oftentimes more for their time. For trial testimony, doctors usually charge around $5,000 per day (some substantially more). If it runs into two days, that’s $10,000 just for one witness. It’s not unusual to spend tens of thousands of dollars for expert fees alone.

On top of that there is the cost of court reporters for each deposition, copying charges, obtaining medical records, long-distance calls, travel expenses, etc. Going through litigation is an expensive undertaking, and the longer the case goes on the more expensive it is. On the plaintiff side, all of those expenses are usually advanced by the attorney (in jurisdictions where this is permitted), but they all get paid back by the client at the end of the case (assuming the plaintiff wins; if there is no recovery, the plaintiff’s attorney “eats” those costs). So every dollar spent on litigation comes straight out of the client’s portion of the recovery.

On the defense side, insurers and self-insured institutions (like hospitals) have those same expenses, but on top of that, they also have to pay legal fees to their attorneys. Defense attorneys charge by the hour for everything they do on a file from reviewing records to meeting with clients to talking to experts to taking depositions. The complexity of medical negligence cases means long hours of work on each file, generating substantial legal fees. Those fees get paid to the defense lawyer whether the case is won, lost or settled at the last minute. The longer the litigation lasts, the higher the legal fees.

Of course it always costs money to investigate a case. There is no avoiding that.  Records need to be obtained and reviewed. Experts need to be retained for an initial opinion. But instead of spending $75,000 or $100,000 (or more) on a case, it may cost only several thousand dollars to work-up a case to get it ready to file – that is, to be in a position where early resolution can be discussed with the defendant. If a case can be settled early on, all of those thousands of dollars that would have gone to litigation costs go straight to the client. That is a huge benefit to the client.

The defendant benefits too. No hospital or insurance company wants to spend money needlessly. Early resolution means that the defendant doesn’t have to spend tens of thousands of dollars in expenses and tens of thousands more in legal fees. The only way it makes sense to spend that money is if, at the end of the day, the “defendant” (read insurer/hospital) believes it can either win the case or settle it for less down the road. But here’s the thing – a case can usually settle early on for less than the case would be worth had the case gotten closer to trial. This isn’t always true, of course, but as a general rule, a good case does not become less valuable over time.

Plaintiffs’ attorneys don’t undersell their cases to get an early settlement, but in practical terms, attorneys and clients are usually willing to consider some discount because they know that an early settlement is to their mutual benefit.The plaintiff gets a guaranteed financial payment now rather than waiting eighteen months for a trial and then a possible appeal that may drag the case out another two years. In that circumstance, the plaintiff is usually willing to take a little less money now because it is certain. It’s the age-old question: would you rather have X amount of money now, or wait eighteen months for the chance of getting more? For most plaintiffs, it’s an easy answer. Also the defense can pay less on a case than it would have ended up paying anyway and save thousands in expenses and legal fees by doing so. It’s a win-win for all parties.

Just do the math!

The big secret with early settlements (and which can sometimes be difficult to explain to a client) is that even though an early settlement might be for less than what a jury might award, the client can actually put more money in his or her pocket with a lower settlement amount. Again, we’re back to the issue of litigation costs. If a firm spends $10,000 to investigate a case and get it ready to file rather than $100,000 to take a case to trial, that is an extra $90,000 that goes straight to the client. Also, some law firms will have a contingent fee agreement in which the fee is higher (usually from 1/3 to 40%) when the case goes to trial, which serves to compensate for the additional time,  risk and expense of going to trial. When you consider the higher legal fees and the increased costs of litigation that have to be paid back, it can actually take a substantially larger jury verdict to put the same amount of money in the client’s pocket as he or she would get with a smaller early resolution.

Some cases may just need to be tried

I don’t mean to imply that every case that gets filed should be settled early. Far from it. Some lawyers undoubtedly file cases that are simply without merit and should be defended vigorously. Other cases – while they may be defensible – fall into a middle category where the care may not be the best but the plaintiff has problems with his/her case too. Some cases can be difficult to evaluate without further investigation and discovery to gauge the strength of the case. In those cases, it is entirely appropriate to proceed with litigation – even on a somewhat limited scale through discovery. No doubt there are instances where insurance companies do need to protect the interest of their doctors, and sometimes that means vigorously defending a case all the way through trial.

Some cases, however, – the cases where the medical care is truly egregious and the damages are clear – need to be looked at early on to see if the two sides can be reasonable and find some middle ground. If a case is going to ultimately settle (and believe me, experienced attorneys and claims adjusters can usually identify those cases early on), it makes sense to talk sooner rather than later. It requires compromise on everyone’s part, but the value to both sides is so great that it makes sense to talk early and get it done.

What has been your experience?

I’d be curious to know the experience of our readers. Has anyone been involved in a lawsuit that settled? Did it resolve early on or did it stretch out for years? Do you think the time involved had any impact on the amount of the settlement? Any tips or tricks you might suggest? Let’s hear from you – maybe we can all learn how to get these cases resolved earlier and stop wasting time, resources and money.

You may also want to read these related posts:

Frequently Asked Questions (FAQ’s)

A View from the Shady Side – The Defense Perspective

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

 

Week in Review (April 23 – 29, 2011): The Eye Opener Health and Law Blog

Saturday, April 30th, 2011

From the Editor:

Last week was a busy but productive week for our firm’s blawgers – 6 posts – and we actually practiced law a lot! My personal thanks to our writers for taking the time to post some important pieces on health, safety, medicine and law. To our readers, my continued and sincere thanks as well. While it’s great to pull-out our soapbox and write about stuff we do and are passionate about, it’s incredibly rewarding to have you, our readers, take the time to read what we write. To those who left comments, a special thanks. We really enjoy interacting with you!

Now on to the business at hand. What did we write about that you may find interesting? Here you go.

My Pet Peeves About the New Age Mediation Process

Having been inspired by a fellow blawger from New York, Scott Greenfield, who chided legal bloggers (thus the name “blawgers”) for simply rehashing news and not taking a stand on issues, I wrote a piece called Mediation of Lawsuits: The 5 Top Things that Tick Me Off!

Having recently been through a number of mediations that were enough to pull your hair out because of the silliness that people engage in when they claim they are mediating to get cases resolved, I decided that it was time to take a stand and post a personal rant. While perhaps best understood by lawyers, claims adjusters and mediators, this blawg was not intended just for them. I’ve seen what impact foolish approaches and conduct by the participants to mediation can have on my clients, the injured parties. It was time to sound-off; so that’s what I did. I once again invite anyone who has been a party to a lawsuit mediation to do your own personal sound-off and tell us what it was like for you. It’s your turn to tell us just how much you enjoyed the process and what can be done to make it better. Read the horror story told in our Comments section by one of our Canada readers when she went through a domestic mediation process. Share your thoughts and stories as well.

Health Care: Who’s “Voiceless” When It Comes to Being Heard on Capitol Hill

Guess I had too much time on my hands at the beginning of this week (not really!). I couldn’t help but be inspired by a piece Jason Penn had done last week about how families were so adversely affected by the budget cuts that were made when the government shutdown was looming a few weeks ago. As I was going through my Google Reader early this past week, I came across an Op Ed by a doctor, who was complaining or at least suggesting that the president and congress need to hear more what doctors had to say about health care reform. Having read that, Jason’s piece jumped into my mind and the result was my blawg entitled Health Reform: What voice does the patient have in the debate.

The post brings to light the amount of money being spent by the healthcare industry in its lobbying efforts on health care reform. ObamaCare‘s raison d’etre is explored as well since it is ironic, if not sad, how the story behind all this money, lobbying and legislation seems to have been lost in the rhetoric. More affordable, better and available health care for our citizens? Then why were the most needy among us the victims of back room wheeling and dealing when the time came for budget cuts to save the federal government from closing its doors? I ask the question – who’s voice is being heard – but more important – who’s is not?

FDA approves use of “meningitis drug,” Menactra, for younger children

Hopefully you’ll never need to use this information, but if you do, Jason Penn reported on a condition – meningitis – that can affect not only adults and older children, but infants and toddlers as well. Meningitis is generally defined as an inflammation of the protective membranes covering the brain and spinal cord. Prior to a recent change in position by the FDA, there wasn’t a vaccine available for children under the age of 2. Now, with the FDA’s recent approval, Menactra can be used to vaccinate children from the age of 9 months to age 2.

In addition to this news release, Jason tells parents about the signs and symptoms they should be aware of to spot this condition.

The classic symptoms of meningitis are a high fever, headache and stiff neck. Detection of these symptoms, particularly headache and stiff neck are certainly difficult to detect in infants and toddlers. According to the Centers for Disease Control and Prevention, infants with meningitis may appear slow or inactive, have vomiting, be irritable, or be feeding poorly. Seizures are also a possibility.

To learn more about this important topic, read his piece Meningitis & Your Baby: Three Things to Think About.

Why are children still dying because of venetian blinds?

Sarah Keogh wrote what I believe is a very important piece for parents, grandparents or anyone who has a baby in the house. Years ago we all heard about the horror of parents finding their babies dead from strangulation when their necks became entangled in venetian blinds. Years have passed since those stories made the front page. Well, an update on just how well manufacturers and parents have been doing to avoid such tragedies was recently posted in The New York Times.

In her blawg entitled Window Blinds: Why are Children Still Dying, Sarah tells us the sad truth that these deaths and injuries still continue in our country. Find out what you as a caregiver of a young child need to realize about this product. Maybe you’ve put the cords up high and out-of-reach for your baby. Maybe you’ve taken other steps to avoid such a nightmarish event ever happening in your home and in your life. Unfortunately, many who have done so have still suffered this tragedy. Why? What is being done by manufacturers and the government to prevent these injuries and deaths ? Read Sarah’s piece for the answers and some practical advice you can take to make your home safer for your child.

Hospitals Reporting Methods for “Adverse Events”

We all know by now that if you want to look good to the public, all you have to do is “play with the numbers.” Well, it seems like hospitals have a penchant for doing just that. One of the key “numbers” that advocates of patient health and safety look at is how many “adverse events” take place in any given hospital. An “adverse event,” as you may already know, is – simply put – any harm to a patient as a result of medical care.

In his post this past week, Jason Penn compares some interesting adverse event bookkeeping by hospitals throughout our country. His blawg, The New Enron? Are Hospitals Cooking the Books?, brings to light serious flaws in the way that our medical institutions “count” the number of so-called adverse events taking place within their walls. His research for this piece reveals…

[M]edical errors occur 10 times more than previously thought.Maybe that wasn’t hard hitting enough. Let me try again. How about this: mistakes occur in one out of every three hospital admissions!

Frankly, that strikes me as an astounding and very concerning number. Are the numbers being reported reflecting this? The simple answer is no. Why not? Read Jason’s post and see what reporting systems are in place – or not in place as the case may be. We all remember Enron. Is this the medical version of “making the numbers look good” when they simply are not!

Surgeons and Booze – an Obvious Bad Combination – Who’s Protecting Us?

It doesn’t take a genius to realize that surgeons should not be under the influence when we as patients are “under the knife” What’s not so obvious is just how prevalent this may be in the operating rooms of our country (and throughout the world).

Wondering what the studies have been done by the medical profession to examine this problem? Have any idea what regulations are in place by hospitals to guard against the problem of “hungover surgeons”?

Wonder no more. Jon Stefanuca’s blog this past week, Hungover Surgeons: Watch Out! There’s Nothing Between You and Their Scalpel!,will tell you all you need to know. Jon queries: “Should hospitals regulate for patient safety?” What do you think? Share your comments.

A “Sneak Peak” of the week ahead

Some more good advice is on the way for parents of special needs children. We all know about what a wonderful aide dogs are for the blind. Mike Sanders will share what he’s learned how these canine wonders are being used for kids in need. Suffering from asthma or know someone who is? Jon Stefanuca will be sharing with  you some valuable information on this topic next week. A number of our clients or their now-deceased family members have suffered from this condition. Jon will share a story or two (without revealing protected confidential information) to bring to light just how this medical condition needs to be better recognized and treated by our health care providers before its too late. We all know what a difficult job nursing can be. That being said, Sarah Keogh will be telling us about some very concerning “trends” that are coming to light in this wonderful profession. Stay tuned for this important piece.

We’ll start next week off with a new blawg by our in-house medical specialist, Theresa Neumann. Her post on how important it can be to get a second opinion before you sign-up for a surgery, procedure or test is sitting in the queue just waiting to hit the pages of The Eye Opener – Views and Opinions from the Nash Community.

One Final Note: I wrote in last weekend’s Week In Review that we intended to post a new White Paper by Marian Hogan on a very important topic relating to Patient Controlled Analgesia (PCA). It didn’t happen – because of “my Bad.” I fouled-up and sent the wrong draft of Marian’ s piece to our graphic designer. He did a wonderful job – as usual – of getting it ready – it just wasn’t the right version. The problem is fixed, but my mistake will delay the posting of this important White Paper for another week. Public apology: Sorry, Marian! We’ll make it right soon.