Maryland Injury Law CenterMiller & Zois lawyers Laura Zois and Rod Gaston obtained this afternoon a $1.1 million verdict for our client in a medical malpractice (lap chole) case in Baltimore City.
Articles Posted in Medical Malpractice
Should You Ask for an Amount in Opening?
Paul Luvera discusses a tough issue for Plaintiff’s lawyers: do you clue the jury in during your opening statement how much you will ask for in closing? I struggle with this and often opt for a middle ground. I lay out the foundation of what I will ask for: medical bills, wages, and the formula I think is appropriate (x per day for the rest of her life). This way, I’m getting them used to the idea without having to spit out a number with no evidence.
As Paul points out, a one size fits all rule is difficult because each case depends on different facts. One critical question has to be considered: is the cap an issue? If what you have is a cap case and minimal or no economic damages, you can dial back on the damages argument which might help you avoid the risk of losing credibility. Because every time you ask for money – which is what a plaintiffs’ lawyer does by definition – you do lose some measure of credibility with a jury.
One issue in this post – raising the damage amount in voir dire – is not of much interest to Maryland personal injury lawyers because our voir dire is so ridiculously limited.
My Mediation Article with Judge Gordy
Yesterday, the Maryland Daily Record published the first of a three-part series I wrote with retired Judge Clifton J. Gordy (now a mediator and arbitrator) on mediation in serious personal injury and wrongful death claims. The article is for both plaintiff and defense lawyers looking to make mediations as productive as possible. Look at yesterday’s article, and look in coming editions for the final two parts.
Lawyer v. Lawyer Lawsuit Decided By Maryland Court of Appeals
In a 6-1 opinion, the Maryland Court of Appeals decided Blondell v. Littlepage, affirming the Court of Special Appeals decision which rejected a tort and breach of contract lawsuit brought by a lawyer against a malpractice lawyer regarding a case he referred to her.
The lawyer referred a cancer misdiagnosis case involving an allegedly misread mammogram to a malpractice lawyer. Both lawyers agreed to a fee split. The original lawyer had already filed the malpractice lawsuit on behalf of the Plaintiff, before referring the case out. I’m not sure what the referring lawyer was 
thinking when he filed suit. Perhaps he was hoping the case would settle or maybe he later decided it would better serve the client if they were with a lawyer who focuses on malpractice cases. The court does not show the reason for the referral.
Anyway, the case settled for a lot less than the pretrial judge recommended, which upset the referring lawyer, as did the suggestion allegedly made by the malpractice lawyer to the client, that the referring lawyer’s failure to timely file the case with the court decreased the settlement value of the case. The malpractice lawyer gave the client names of legal malpractice lawyers to bring a claim against the referring lawyer. Continue reading
Medical Errors and Admitting Mistakes
The New York Times has a story about encouraging doctors to admit their own mistakes. The UCLA surgeon who wrote the article does not contend that admitting medical mistakes should take the place of civil accountability. In fact, she suggests – as some recent literature has showed – that being forthcoming about medical errors may decrease the number of medical malpractice lawsuits.
I’ll admit that while I was reading this story I was circling around ready to pounce when the author suggested that we needed to eliminate malpractice lawsuits to get doctors to freely admit mistakes. So let’s just pretend, channeling my inner Glenn Beck, the author made that contention so I can refute it. In my defense, I’m not exactly creating a straw man, something I loathe to do. We have made this argument countless times, that it is safer for patients for health care providers to treat patients in a lovely environment where there is no risk of responsibility for medical errors.
First, let’s admit that we are all loathed to admit mistakes. I don’t think to take away the risk of a malpractice lawsuit – for which the doctor has insurance in most cases – is going to substantially change the frequency of admission of medical errors.
Where is the justice in being exculpated for causing a life-altering injury because you admit you did something wrong? If a driver crosses the center line and kills someone, can we just move on if the driver admits a mistake? (Bonus argument: accidents are a “known risk” of driving a car, right?) How about if personal injury lawyers who blow a statute of limitations can avoid responsibility by making the grandiose admission that it is all their fault? Wouldn’t that help lawyers understand their mistakes? What? Lawyers should buy a calendar? Well, yeah, that would be an excellent idea too.
Federal Malpractice Cap
Let’s say Barack Obama takes a strong position on medical malpractice caps and puts his weight behind a bill to eliminate malpractice and other damage caps in all 50 states.
This would be a huge windfall for our practice. But I would oppose this legislation. Why? Because such a law would be a ridiculous intrusion into the affairs of the States by the federal government. The federal government has no business telling the states they cannot have caps on damages. (I think caps violate state constitutions because they are a legislative intrusion on the separation of powers every state has in its constitution. But that is a different blog post.)
How can tort reform advocates – who are almost to a person far more ‘States rights, get government out of our lives” than I will ever be – support this unprecedented intrusion of caps on damages in medical malpractice cases via a health reform bill? It is because most tort reformers have a world view: lawsuits are bad, caps are good. They will push for this goal by all means necessary, including shedding inconvenient authentic core values.
Illinois Malpractice Cap Ruled Unconstitutional
The Illinois Supreme Court made big news nationally when it issued its much-awaited opinion in Lebron v. Gottlieb Memorial Hospital> yesterday, The court overturned in a 4-2 ruling the Illinois five-year-old medical malpractice cap on damages because limiting compensation for injured malpractice victims for pain and suffering violated the Illinois constitution.
Specifically, the court found that the Illinois malpractice cap violated the “separation of powers” clause because imposing a cap imposes on a decision that juries should make rather than legislatures.
The underlying lawsuit involves a catastrophic birth injury. Plaintiff’s lawyers alleged that the negligence of the hospital, her obstetrician, and a nurse caused the infant Plaintiff’s cerebral palsy.
The appellate path taken in this case was atypical. Plaintiff sought summary judgment on whether the cap applied, which the trial court granted before they tried the case. Procedurally, this is odd, and the dissenting opinion took exception to decide this case without a verdict. I understand the dissent’s thinking on this. But the parties at least are best served to take this path because they both know how the law will be applied. This makes the case much easier to settle and settle fairly whichever direction the court takes. After the trial court’s ruling, the Defendants appealed directly to the Illinois Supreme Court.
Essentially, the court found that a cap on damages is a legislative remittitur and the failure to leave the issue of remittitur to the court which decides the issue on a case-by-case basis represents a legislative intrusion on the powers vested in the court by the Illinois constitution.
One favorite part of the opinion for me was the way the court responded to the defendant’s argument that other states had damage caps: “That ‘everybody is doing it’ is hardly a litmus test for the constitutionality of the statute.” Continue reading
Defense Verdict in Medical Malpractice Lawsuit in Baltimore
A federal court jury in Baltimore found that an Elkton obstetrician was not liable in a medical malpractice lawsuit. The core of the case is bound to raise moral concerns with at least some jurors. Plaintiff claimed she would have ended her pregnancy if they had advised her that her child had Down syndrome, claiming the child’s expected future medical care was projected to be as much as $16.4 million.
The plaintiff claimed that her triple screen blood test found that she had a 2.6% chance her daughter would be born with Down syndrome. The case was a classic case of he said/she said. The doctor claimed the patient was told three times of her test results and that she rejected the doctor’s suggestion that she get the more invasive amniocentesis test. So really, what this case came down to was a battle of credibility between the doctors and patients.
Most likely, the jury believed the doctor’s notes were accurate and made contemporaneously with his discussions with the patient regarding the results. Only the doctor, the Plaintiff, and God know exactly what information they conveyed. But I also wonder the extent to which this federal jury had a problem with the “I would have had an abortion” claim from Plaintiff. Statistically, someone on that jury strongly believed that abortions are immoral.
But even more to the point, does anyone have a problem with aborting a child because of a 2.6% risk of Down Syndrome? That was nearly the exact risk that we have with our last child. I was worried about it. Then again, have you ever seen a child with Down Syndrome who seemed miserable? I’ve seen a lot of children without this disease who seem miserable. But most children who have it seem like happy campers. I’m not minimizing the pain of having a child who is not normal and the challenges you are forced to face. Again, I was worried about Down Syndrome with all of my children and I’m sure that “happy camper” talk would have faded and I would have been extremely upset. But, big picture, these kids often do really well and are a lot happier than “normal kids” most times. I have no idea why I’m giving this speech today.
St. Joseph’s Scandal
St. Joseph Medical Center in Towson, a hospital known and respected in no small measure for its cardiology department, is being accused of conduct that goes well beyond medical malpractice.
The Stent Allegations
The allegations are beyond stunning: at least 369 of St. Joseph’s heart patients have received coronary stents that were not medically necessary, putting these patients at greater risk of complication or further injury. People with minimal blockages allegedly received stents and were told they had near-complete heart blockages.
Maryland Medical Malpractice Cap Opinion: Plaintiffs Lose. Big.
In a 7-0 decision, the Maryland Court of Appeals overturned a Montgomery County trial judge’s ruling in Lockshin v. Semsker that Maryland’s medical malpractice cap applies to all malpractice lawsuits, including those where one party waived health claims arbitration.
But that is not the only blow the opinion gives to Maryland malpractice lawyers and their clients. The court also ruled that because the cap applies, any pro rata reduction—in this case, $1 million—applies after they have applied the cap. The practical difference in this ruling for the Plaintiffs, in this case, is that it reduced their already reduced jury award from $2,172,936 to $1,766,686, a difference of more than $400,000.
The practical impact of this rule? The exact opposite of what the Maryland legislature wants: more malpractice trials. Applying a “cap first” approach will encourage defendants not to settle because if the non-settling defendants believe that the plaintiff has negotiated a good settlement (which is often the case when one party settles and the other does not), remaining defendants will be more willing to roll the dice to get the full benefit of plaintiff’s good settlement.
Finally, in a non-cap related issue, the court also ruled that if medical bills have been waived, Defendant can seek, via a post-trial motion for remitter, to reduce the verdict by the amount of the waived or reduced bills after the verdict.