Posts Tagged ‘Lawsuits’

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.

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.

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

Thursday, April 14th, 2011

Recently, a CNN article titled “Harmed in the Hospital? Should You Sue?” described the story of a two-year-old baby with a septic infection who waited about five hours in the emergency department before being seen by a physician. The child ultimately needed several amputations as a result of the delay in medical treatment.

Using this tragic story as a point of reference, the article suggests a number of criteria to help patients decide when to sue and when not to sue a health care provider. For example, the article correctly suggests that a patient who has not sustained injury should not sue a health care provider even if the health care provider’s conduct might have been negligent. In medical malpractice cases, a plaintiff seeks monetary compensation for injuries. If there are no identifiable injuries, there simply isn’t a case for medical malpractice.

However, most of the remaining recommendations in the article seem to suggest that a patient can make an educated determination about pursing a medical malpractice case without the advice and counsel of a skilled medical malpractice attorney. While this may possible in some cases, a well-considered determination about the merits of a medical malpractice case is difficult, if not impossible, to make without the guidance of a skilled attorney.

The decision to sue is never an easy one. Engaging in litigation is costly, time-consuming, stressful, and emotionally draining. This is particularly true in medical malpractice cases where a plaintiff’s own physical injuries or the death of a loved one is the subject of litigation. As a consequence, the decision to sue a health care provider must always be well-considered because of the impact the lawsuit might have on the patient, the patient’s family and the defendant health care provider.

Is deciding if you really have a case a “do it yourself” project?

In this vein, the article suggests that a patient should always consider whether her injuries are the result of the alleged negligence or some other unrelated factors. This consideration is particularly important when the patient’s pre-existing medical conditions cause or contribute to the alleged injury. In such instances, however, unless the patient has sufficient medical knowledge and, perhaps some legal knowledge, it may be difficult, if not impossible, to determine the actual cause of the injury.  In most instances, these determinations should be made by a skilled health care provider in the relevant medical specialty in consultation with a skilled medical malpractice attorney. By extension, to suggest that a patient should be able to make this determination on her own is frankly impracticable in most instances.

What’s the process for determining if you have a real case

Therefore, whether or not a patient ultimately decides to pursue a lawsuit, it is prudent to seek counsel from a skilled medical malpractice attorney. Many attorneys offer free initial consultations. More importantly, most attorneys will  (or should) undertake  a thorough investigation of a potential medical malpractice case before a decision to file suit is made. This process involves an internal review of the medical records. Often times, this is done with the assistance of an in-house medical expert. If  an investigation passes the threshold in-house review, the records are then reviewed by outside experts whose sole purpose is to determine the quality of care rendered and whether any of the alleged injuries are related to the care that is being criticized.

This multi-layered review can amass a tremendous amount of information, which in turn can help a patient decide if it is worth pursuing a lawsuit. All of this detail and information is provided to a patient at no cost where contingency fee agreements are in place (generally speaking, under a contingency fee agreement, the client is not responsible for any costs, unless the attorney is able to recover a monetary sum. If recovery is made, the costs are deducted from any such recovery.).

The article further recommends that a patient consider if the injuries are of a type which would be considered within the acceptable risk for a given medical procedure. Yet, another recommendation encourages patients to evaluate if the care rendered was within the standard of care. All such recommendations, although very appropriate, are vague and ambiguous absent context. A mother whose baby was not timely delivered should not be expected to know how to interpret fetal monitoring strips. A patient who undergoes a hip replacement surgery should not be expected to know the proper surgical technique. A patient whose cancer remained undiagnosed should not be expected to know how to interpret blood tests or to read MRIs or other diagnostic tests.

Therefore, the suggestion that a patient should carefully evaluate the merits of his/her case should not be interpreted to mean that a patient should do so without the guidance of a skilled medical malpractice attorney. There is an important distinction between investigating a case and pursing a case.  Just because you decide to employ a lawyer to investigate a medical malpractice claim on your behalf does not mean that you or the lawyer have committed to filing a lawsuit. With this in mind, it is important to realize that medical a malpractice attorney can be a great resource even if the client ultimately decides not to pursue the case. If you are unsure about whether you have a case or you are uncertain about the strenght of your case, take advantage of the resources and counsel of a skilled medical malpractice attorney.

How to tell if a lawyer is really a specialist

Throughout this post, I have emphasized skilled medical malpractice lawyer. Admittedly, sometimes it’s simply not that easy to tell from advertising or websites which attorneys are really specialists in medical malpractice investigations and litigation. If you have doubts, ask questions! Most people are pretty savvy and should be able to tell if the lawyer they are considering has a real grasp of the medicine and the law – both of which are required to be a skilled medical malpractice lawyer. Remember, you are entrusting your case to someone you really don’t know.

You ask questions in your daily life’s affairs and form judgments on whether or not you would entrust your childcare to some, which mechanic you’ll let fix your car, which home repair specialist you’ll permit to enter your home and do needed repairs. You get a sixth sense feeling sometimes as to whether or not the one your talking to (i.e. interviewing) will be a good fit for the task at hand. Why should it be any different with a lawyer, who claims he or she is a medical malpractice specialist. Just as we constantly preach about choosing a doctor, make informed decisions after asking the right questions.

If you need some guidance on what questions to ask, take a look at the White Paper we posted on our website – “Choosing a Lawyer – a Primer.” Hopefully, this will help you make an informed decision before you sign that fee agreement.

Related Posts:

The Reality of Medical Malpractice Lawsuits: Demystifying and Dismantling the Medical Profession’s Arguments

Every bad outcome and injury does not a malpractice case make! Some practical advice.

 

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

Sunday, December 5th, 2010

I recently came across a posting on the internet, which reminded me of a number of the type of calls we receive from people throughout the year. I thought it might be useful to share this post and some comments for you to consider about “whether you have a lawsuit” worth pursuing.

The post read:

I recently had to undergo epidural injections at a local pain management clinic. I was told the stats about the procedure and what signs to look for regarding problems. I had lower lumber injections, and the doctor that did the procedure told me that he punctured the spinal cord, thus releasing fluid. My problem was that I was sent home, to drive myself, and had made repeated calls to them regarding a monstrous headache that made even getting out of bed difficult. After almost 14 days, I finally called the local ER and was given totally different advice from the on-call doctor. I then finally recieved the blood patch….is there any liability here?

The balance of the post consisted of a lawyer responding to the question and some back and forth between the two, which ended – properly so – with the lawyer learning that the potential client had fully recovered, had gone through two weeks of hell and had incurred medical expenses for follow-up care to the tune of $3,750. The lawyer then told the person –

would that $3750 have to be spent regardless of the delayed treatment?

If so, you really don’t have a claim for much of anything. Even if it wouldn’t, to have a valid claim, you would also have to prove their actions were substandard in regards to the established standards of care. Generally, for little or no damages, you are not going to get an attorney to take on a case that will easily cost 10′s of thousands of dollars.

A Basic Problem – Pure Economics

Putting aside the issues of whether the original care giver violated a standard of reasonable care and whether that care caused injury, the pure economics of this situation does not justify the bringing of a medical malpractice case – “little or no damages…[for] a case that will easily cost 10′s of thousands of dollars.”

This type of injury, while clearly serious to the patient, luckily was not permanent in nature. Ask yourself, if you were on a jury hearing this case (assuming you found in favor of the patient-plaintiff by deciding that the doctor’s care was substandard and caused injury) - what amount would you award someone for two weeks of pain and suffering and no permanent injury?

Next, take your answer and do the following math:

  • The “10′s of thousands of dollars” the lawyer mentioned are real numbers that would be spent in a case like this. Expert witness fees (which can be enormous), deposition costs, costs to obtain the records, filing fees, etc. would easily be in excess of $50,000 by the time this case was concluded. Trust me – this is a conservative figure!
  • Legal fees – as many of you are aware, these cases are often taken on a contingency fee basis. The lawyer will charge a percentage (varying from as low as one-third to perhaps a high of forty percent).

Unfortunately, the economics of the case are a practical reality that must be and are addressed with these type of potential case inquiries. That doesn’t mean is easy to explain this to someone who is very upset (many times rightfully so) with the care they received or the attitude of the care giver.

The Client’s Perspective

Clearly no one wants to hear that the injury, inconvenience, medical expenses or pain they endured simply isn’t worth the lawyer taking. Some will read this and no doubt scream out – “You see, it is all about the money after all!” Well, I guess in a way it is – in part. Put yourself back in the shoes of the patient-caller. Let’s say their case is similar to the example (above) case: bills of $3,750, pain for two weeks, no permanency, no future care costs. Whatever number you came up with as our “juror in the box” for a verdict, now go ahead and subtract one-third to forty percent for the fee and – let’s say – $30,000 of costs. Why do I know that the resulting number is a negative one?

Hate to say it – but that’s the cold, hard reality of these situations. Imagine the lawyer trying to explain how the lawyer made some money but the client netted absolutely nothing! Not a place I’ve been or ever want to be.

So What Can This Person Do?

Well there are choices.

  • Try the old-fashioned method – try to work it out with the doctor or health care provider
  • If that doesn’t work, in most jurisdictions, you can always file a small claims action by yourself. The rules of evidence are relaxed in most jurisdictions and the judges tend to be quite liberal in their interpretation of the applicable laws – letting you have your day in court.
  • File a grievance with the local licensing board – they really do care and will take virtually all complaints seriously – at least that has been my experience in Maryland and the District of Columbia.

I strongly urge that you try option #1 – just see if you can sit down and discuss it with the doctor. If you are asked to sign some waiver form or agreement, before you sign it, see if you can have a lawyer take a look at what you’re signing first. You don’t want to waive any rights you might otherwise have. All that being said – try to work it out. It sure is a lot less stress and way less time-consuming. It also may go a long way in making the system work. Many doctors and health care providers are willing to at least listen. Watch your tone; don’t accuse them of being incompetent, uncaring or the like – just have a meaningful discussion and see if you can’t just work it out. If it doesn’t work, and you still believe you have been wronged, there are always options #2 and #3.

The “Suggestion Box”

I’m sure our readers would appreciate any useful suggestions by those who have found themselves in this situation. What approach(es) did YOU take? Did they work? I for one am always interested in hearing our reader’s suggestions – especially in for a topic like this. If they make sense, I assure you we’ll share them in a another post on a related topic. Take a moment and give us your thoughts.

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Malpractice System Doesn’t Improve Patient Safety – Oh, Really?

Tuesday, November 30th, 2010

When I woke this morning, I was trying to think of some good subjects for a blog. Writer’s block – or topic block – struck. With some draft posts sitting in my WordPress queue, I gave thought to putting the final touches on one, but it was just not ready. Still stuck, I headed for Google Reader, and there it was – a posting by KevinMD.com on MedPageToday entitled “The malpractice system doesn’t improve patient safety.” Problem solved. Topic served on a platter. Thanks, Dr. Kevin!

Dr. Kevin (Kevin Pho, M.D.) has been a source of inspiration on more than one occasion. I’ll give it to him – he writes on matters that are “controversial” and many times has the “call to action” concept of blogging down to a science. So here’s my return “call to action.”

Dr. Kevin’s Argument

In his blog, Dr. Kevin acknowledges that in the “world of medical error, truth is often clouded in secrecy.” He then points out that “…taking the bold step of publicly describing your mistake is a brave one. Some would say it’s long overdue.” Well so far, Dr. K, we’re on the same track!

He then poses the question:

There have been studies that show an apology and admission of error lead to a lower rate of being sued. Beyond the malpractice implications, it’s simply the right thing to do. So, why isn’t it happening more often?

Dr. Kevin then provides a commentary by Hillary Clinton and Barack Obama in a perspective they “penned” in 2006 in The New England Journal of Medicine to the effect that “many errors in medicine are not due to bad doctors intentionally trying to hurt patients, but on system-wide errors…”

I’m wondering if Dr. Kevin appreciates the difference between the concepts of negligence and intentional tort? If there are physicians intentionally trying to hurt patients, we have a bigger problem on our hands than I ever realized. Whose conduct leads to “system-wide errors”? Answer: the health care providers and administrators of health care facilities whose acts of omission or commission create such system-wide errors and/or permit them to exist.

After citing the now famous statistics of the 1999 Institute of Medicine (IOM) report that told the public that “as many as 98,000 deaths in the United States result of failed system and procedures,” Dr. Kevin then gets to the root cause analysis of his polemic:

The malpractice system does a lousy job to improve patient safety (along with poorly compensating injured patients). * * * Every error should be discussed in the open, used to improve the care of our patients, and reduce the risk of future mistakes.

The fact that that’s not happening can be chalked up to the adversarial nature of our flawed malpractice system, which encourages secrecy, suppresses apologies, and does little to improve patient safety.

Well, Dr. Kevin, you and I now go different paths.

Open Discussion To Improve Patient Safety

So exactly what is this system in place to have an “open discussion to improve patient safety,” Dr. Kevin? Physicians have had a system of policing themselves for a long, long time. I believe you call it peer review. If this system is so effective, why, after decades of having an “open discussion” (that is done in secrecy, by the way) do 98,000 deaths occur in this country annually. The IOM report was ostensibly designed to create a reporting system of errors to identify, analyze and correct these so-called “system-wide errors.” Interestingly, I haven’t seen an update on just how the death rate has decreased in the last eleven  years! It’s a great concept but only as good as its implementation. Are deaths, catastrophic injuries, life-altering errors still occurring at an alarming rate? Oh, I suspect so – based on the number of calls our firm gets from people whose lives have been turned upside down after suffering from bad medical care.

The indisputable theme of Dr. Kevin’s post is that the reasons  patient safety has not improved at an acceptable rate is because of the media (e.g. in its unfair and hyped coverage of “Dr. Ring’s story” ) and “to the adversarial nature of a flawed malpractice system, which encourages secrecy, suppresses apologies, and does little to improve patient safety.”

Really? Let’s take a look at the reasons Dr. Kevin espouses.

Encourages Secrecy

The last time I checked, which was yesterday unless something happened after I left work last night, lawsuits are played out in public forums. Where do you conduct peer review, Dr. Kevin? What laws do you have that make the investigations of those peer review sessions not discoverable in lawsuits? In a lawsuit, both sides get to put it out there in public. Seems to me that a bit more of an “open discussion” than your self-policing, which, by the way, doesn’t seem to have done a great job of improving patient safety.

I fully understand the concept behind the protections of peer review. In essence, the protections are premised on the belief that if peer review is not protected from disclosure, an honest, open assessment of care rendered (for improvement in care) will not take place. What I don’t understand is why, when one’s peers find fault, a health care provider and/or the insurer simply fight to the bitter costly end of litigation in order to prove their peers wrong. Have you done an analysis on the costs associated with defending medical malpractice cases where the care is outright poor? I’ll bet that’s an astounding figure. Maybe correction on that score would improve the cost of medical care.

Suppresses Apologies

I suspect what the good doctor is referring to is the concept that if a physician apologizes for his/her malpractice, this might be used against him/her in a court of law as an admission against interest. Well, Dr. Kevin, have you been keeping track of the legislative proposals that would make such “admissions” – inadmissible? I might suggest that the medical profession spend time advocating for that legislative change rather than condemning the “flawed malpractice system” I would also invite attention to the programs that are apparently still in their infant stages whereby hospitals and health care systems do admit fault and seek early case resolution. Query: just how well have these taken off? Seems like this is a good idea – in theory. Any particular reason the medical profession hasn’t embraced the concept nationwide? While cogitating on that issue, perhaps some can also share their thoughts on why it is that the care givers think about the legal implications first when they are meeting with a family whose lives have been devastated by outright negligence. I believe it is you, Dr. Kevin, who writes blogs about physicians being patient advocates. Is this just another theoretical concept that your colleagues have a hard time putting into action? Just a tip – there are ways to apologize and have such apologies remain inadmissible in a court of law. Perhaps you ought to check those out and share them with your colleagues who are standing in line to apologize for their malpractice. Just a hint: confidential, early intervention proceedings. They would go a long way with the families whose lives have been ruined. But…does the medical community really need protection to just admit malpractice has occurred – when it has? Apparently so… Oh, I forgot, it’s the flawed malpractice system and the press, not the basic integrity of the health care provider, that are the root causes of the problem.

Does Little to Improve Patient Safety

I respectfully disagree, Dr. Kevin. Are you suggesting that when a meritorious lawsuit is brought that it doesn’t make at least those involved more aware? Do you accept the proposition that such health care providers might make better decisions/judgments when faced with a similar clinical situation?

Having previously represented physicians and health care institutions for decades before representing the victims of medical malpractice, let me assure you that the message does resonate with many, if not most, defendants in a medical malpractice case.

Interestingly, it has also affected those who are not directly involved. Do you really think that verdicts in cases aren’t discussed by other health care providers? Do you really believe that when bad care has occurred and has seriously injured someone that colleagues haven’t paused and self-examined their own practices – hopefully not repeating the same mistake(s)? I refuse to believe that so-called physician hubris is really that bad? In fact, my extensive experience with physicians has led me to believe that there lives are dedicated to doing the right thing for their patients, which could well include self-analysis of prior conduct.

There are so many excellent, dedicated health care providers who do take stock of the practices of others played out in litigation and change their own practices. I have personally witnessed dedicated, caring health care administrators and risk managers undertaking “root cause analyses” to correct system failures. Many, many times the genesis of these analyses are medical malpractice cases they have had to confront.

I am constantly being told by expert witnesses on both sides of litigation that they have learned so much about practice issues and patterns that it has helped them improve their own practices for the betterment of patient safety. Maybe they were all just making this up, but I think not!

Permit me to share another piece of information. One of the primary motivations – at least for our clients – for bringing a lawsuit is not about money – it’s about the client’s hope that some other patient won’t suffer the same fate they did. Others just want to know what happened. Maybe if the medical profession were to adopt a policy of honesty, open discussion and willingness to admit fault when it occurs, there would be fewer lawsuits and improvement in patient safety.

That really is what it’s all about, Dr. Kevin. Believe what  you want; however, practice what you preach: be a patient advocate.

An Invitation for an “Open Discussion”

Dr. Kevin, your posts and those of  your guest bloggers have been applauded by me and many others for a long time. They are thought-provoking, well written and – yes – many times controversial. As you know, one of the hallmarks of a good blog post is a call to action. Well – here’s my call to action.

Perhaps a public airing of some of the key issues relating to the malpractice system (which is flawed in a number of respects) and the health care system (which is not free of its own flaws) would lead to improvement in patient safety and the betterment of both systems. You and your readers just might be surprised as to how many things there are about which we might agree. There is no doubt that we may have to agree to disagree, but maybe – just maybe – a public airing of these issues will have the same result – true improvement in both systems.

Incomplete Walking Directions: Is Google really responsible?

Wednesday, June 16th, 2010

In Park City, Utah, a woman has filed suit against Google for providing incomplete walking directions. The California native, Laura Rosenberg, had been attempting to navigate from Daly Street to Prospector Street, which Google Maps indicated was approximately a half an hour walk. Ms. Rosenberg did not expect her half hour walk to turn into a hospital admission.  

Directions provided to Ms. Rosenberg, via Google Maps for Blackberry, directed her to walk along Deer Valley Drive, also known as Utah State Route 224. She says she was not warned that by taking this path, she would have no sidewalks to navigate her way safely.

Ms. Rosenberg is suing Google for both medical expenses and punitive damages. Ms. Rosenberg is also filing suit against Patrick Hardwood, the driver of the vehicle that hit her. Her claim against Google states:

Plaintiff Lauren Rosenberg was led onto a dangerous highway, and was thereby stricken by a motor vehicle, causing her to suffer severe permanent physical, emotional and mental injuries, including pain and suffering…

Google Maps is utilized by people world wide; the website clearly states:

Walking directions are in beta.
Use caution – This route may be missing sidewalks or pedestrian paths.

Although the disclaimer appears on the website, it hadn’t yet made it to the mobile world. Viewing directions via her Blackberry, Ms. Rosenberg claims she was led onto a highway with no warning shown on her Blackberry that her safety might be in danger.

It is expected to be argued that the disclaimer should appear on mobile applications because many users may be on foot and without access to a computer. However, some might well argue whether you really need your Blackberry to warn you that you are walking near or across a highway.

We’ll wait for the verdict on this one – if it gets that far!