Posts Tagged ‘lawyers’

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.

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!

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

 

 

 


 

 

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.

 

Social Media Platforms: Are they really for Lawyers or just People who are Lawyers?

Tuesday, October 26th, 2010

Lawyers and social networking platforms really don’t seem to fit together very well – do they? Many lawyers stumble into social networking simply because they attended some seminar or read some article or blog that told them they are behind the eight ball if their firm is not engaging in social network marketing. “Print media advertising is a thing of the past – get on board with the new marketing of the 21st Century – the internet and social media channels!”

It’s exactly this concept of using social media channels only as a marketing tool that leads to what we see today in places like Twitter and Facebook. Just type in #lawyer, #legal or #attorney in your Twitter search bar and see what you get. Here are some really socially-driven and engaging tweets:

  • If you need a lawyer to handle your messy divorce situation, connect with … then the link to the firm’s website’s contact page.
  • Looking for the right lawyer?
  • Have you been in an accident and need a lawyer?
  • Need a bankruptcy lawyer who has over 20 years of experience….?
  • Have you been arrested for drunk driving? We’re here to help!

You get the idea. Is there anything wrong with this? No…but is it really using the concept of social networking properly or just using social network platforms for advertising or marketing? Me thinks the latter.

Why would anyone want to “connect” with a lawyer?

When I was mulling over this topic with my wife, she astutely likened lawyers to undertakers on social networks. Do you really want to have a “conversation” with an undertaker? Sure – if you need one I guess. Maybe that’s where the internet has replaced Yellow Pages or Yellow Book. But would you really go to Facebook or Twitter to find such a “service provider” or would you probably use a search engine like Google, Bing, Yahoo or whatever.

As lawyers, especially in our firm’s fields of medical malpractice and catastrophic personal injury, what do we offer our “communities” by way of product, entertainment, conversation – or just plain fun? Not a whole lot! Let’s face it, we deal with injury, death – catastrophe – plain and simple. We don’t sell a product like a car, cool T-shirts, a new song or any other “fun commodity.” We are a service industry that is laced with ethical restrictions on what we can say and do on Facebook, Twitter or LinkedIn. We really aren’t a fun group in general or at least our professional lives don’t evoke warm and fuzzy feelings with the public.

Lessons learned and a long time for the awakening:

At my age (just check out the profile picture and take a guess – no, I’m not in my 40′s or 50′s), I was not into this whole social networking gig about a year ago. I was one of those who heard that if you were going to compete in the marketplace, you better have a Twitter account and a Facebook page. So in I ventured, not having a clue what I was doing. I used a logo, did my blog, posted it through Twitter and Facebook, and it pretty much ended there. I couldn’t figure out why all this great content was not spurring constant, passionate conversations with my Fans and Followers. I watched what was happening on others pages and tweets. Why weren’t my peeps engaging me on Twitter nor my fans filling my Facebook page with zesty comments?

It took a long, long time – but the light finally went on. People have enough bad news in their everyday lives. They want to have fun, engage, meet and communicate with other people, who may have something to bring to the table. They don’t need lawyers in their everyday lives – or at least hopefully they don’t.

When and how did this epiphany occur? I was sitting at my computer on father’s day and just had the urge to write a blog in honor of my father, who died over 18 years ago. It had zero to do with the law, but it had everything to do with just wanting people to know something about him and my relationship with him. I wrestled with the concept of putting this on the firm’s blog. Was this a place to post such a piece? Well – since I didn’t have any other forum, it just hit the “publish” button on my WordPress screen. Away it went – and the comments came pouring in. Wow – there really were people out there reading what I wrote!

Don’t get me wrong, our blog is not devoted to personal pieces. What this experience taught me, however, is that if I was ever going to have any communication with my fans and tweeps, I should try being a person who’s a lawyer, not a lawyer trying to engage or market my friends and followers.

So what have I learned and where do I go from here?

There’s no doubt that if I just want to meet new people (network) and engage in conversations with many people I would never in this lifetime have met were it not for communities such as Facebook and Twitter, I could use my personal profile page and a Twitter name other than NashLawFirm. Do I have personal connections and engagements on my personal Facebook page? I sure do. A lot of what takes place there is not meant for my Fan Page (interesting choice of words, Mark Zuckerberg).

So the question remains – why should our firm be on Facebook or Twitter? As they say, “the jury’s still out” for the full answer to that one. Does anyone really understand how this phenomenon called social media developed, exploded or where it’s going? I don’t think so. Businesses simply know they better be there, or they’ll be left in the dust in this competitive world. So – here we are – Facebook-posting and tweeting with the best of them.

But what’s different now? What has time and experience taught me? Answer: I’m still learning and figuring it out. That being said, since we are lawyers with a niche practice, since being on social media platforms really is a method for marketing who we are and what we do, since it is a method to publish content to the world, since it is a way to share some knowledge and information with our followers and friends, and since consistently adding new content to our website is apparently good for search engine optimization, here we are!

All that being said, Facebook, Twitter and LinkedIn (yes, I hyperlinked them in case you want to become part of our family- a word I purposely chose), I have really learned that there’s a world of fascinating, friendly, engaging people out there whom I never would have met were it not for such social media platforms. So many people have knowledge, information and advice that they are willing to freely share, it’s simply amazing. So many people just like to connect, banter and chat- it’s been eye-opening and – quite frankly – fun!

Do we have fun with our Facebook and Twitter communities of fans and friends? We do now, and I love it. Do we share information about the law, medicine, product safety, important trends in law and medicine, and the like? We sure do – that’s what we offer our communities on Facebook and Twitter. Do I engage in some personal fun and banter with my more “vocal“ friends and fans? You bet I do – and those, quite frankly, are some of the more fun-filled times I spend on Facebook and Twitter.

So – here’s to my new friends and tweeps – thanks! You’ve made my life richer. I will try to figure out how to best give back to you what you give to me and the other folks in our firm. Sorry it took so long to figure it out…but I believe we’re on the right path now. Let’s continue to have fun, learn some things from each other and just have an interesting place to meet. Yes, meet! That’s what social networking really provides – an interesting and fun place to meet new friends, share some thoughts and sometimes laughs and get to know each other a little better.