Articles Posted in Medical Malpractice

How many medical malpractice trials have there been in Washington D.C. this year? Ummm, let’s see, medical malpractice lawsuits are out of control. I know this because I read the Forbes article repeating the “malpractice lawsuits are running amok and medical malpractice lawyers are the problem” mantra. So how many do you guess? 150? 250? The correct answer, according to a report given by the D.C. Superior Court, is six.

The score is 3-3, three malpractice verdicts for the plaintiff and three defense verdicts. It must be that the juries are handing out whopping malpractice verdicts. We know this because we have heard it so many times before. So, back to the guessing game theme for today, how much did the juries award in these three malpractice jury verdicts? $20 million? $40 million? The answer is $366,775.24. But even that number is misleadingly high. The largest verdict – $131,775.45—was taken away by the trial judge. So the total amount of malpractice jury awards in Washington, D.C. in 2009 is $235,000.

Ladies and gentlemen, I present to you, your medical malpractice crisis.

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They wrote an opinion of interest to attorneys who receive referrals from other Maryland lawyers in malpractice cases.

This case involves a Maryland lawyer who referred a cancer misdiagnosis case involving an allegedly misread mammogram to a lawyer that handles medical malpractice cases, agreeing to a fee split. Before referring the case out, the original lawyer filed the malpractice lawsuit.

The Defendant sought summary judgment, claiming the statute of limitations had tolled because the alleged failure to diagnose cancer occurred over three years after limitations had passed. Plaintiff prevailed on summary judgment. The opinion does not say, but I assume it was a discovery rule issue—the patient did not know of the malpractice until after it had occurred.

Then things got interesting. The malpractice case settled the claim for $225,000, far less than the referring lawyer had hoped. Allegedly, the medical malpractice lawyer sold the clients on the settlement by “deliberately misle[ading] the [Plaintiffs] into settling by telling them limitations remained a ‘serious concern’”; “telling them that they had been victims of malpractice by [the referring lawyer]”; and “suggesting to them that they sue [the referring lawyer] for malpractice.” Continue reading

Maryland’s nursing homes had an “off year” according to Jay Handcock’s blog for the Baltimore Sun.

The Government Accountability Office reports that citations in Maryland for inflicting residents with “actual harm” or putting them in “immediate jeopardy” were given to 17% of Maryland’s 234 nursing homes last year. This is more than a 100% increase from last year.

There is a bill in the Maryland House of Delegates that would require Maryland nursing homes to give people the choice of installing cameras to monitor their loved ones. What would that cost these assisted care facilities? Nothing. The patients or their families would pay for the camera themselves.

Last week, I wrote about the Baltimore Sun taking a position opposing medical malpractice caps, choosing the new, innovative path of sidestepping the substance of this issue, and trying to demonize trial lawyers. The Baltimore Sun responded Sunday by printing a letter to the editor offering the opposing view on damage caps, explaining how children who lose a parent by the carelessness of someone else are woefully under-compensated.

Mark Hass Editorial

Oh, wait. Those things didn’t happen. Instead, the Sun printed a “me too” editorial from Timonium doctor Mark Hass:

At a time when the nation’s economy is slumping and the governor is proposing to mandate that Maryland hospitals and physicians provide more free care to lower-income families, it’s ironic that the state House Judiciary Committee, led by trial lawyer Joseph F. Vallario Jr., is proposing legislation to roll back the reforms in the state’s medical malpractice insurance policies enacted in 2004 (“Attack of the trial lawyers,” editorial, Feb. 17).

Such a rollback would ultimately result in higher malpractice insurance rates for doctors and hospitals, higher health care costs for consumers, higher health insurance premiums for businesses, and, of course, higher incomes for well-heeled trial lawyers.

Perhaps the “attack” of these lawyers on physicians and hospitals will only abate when enough doctors have left Maryland and enough hospitals have closed that they no longer have anyone left to sue.

Dr. Mark Haas
Timonium

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Southern Maryland News has an article about a serious problem: the shortage of doctors in Southern Maryland. This is a good issue that needs attention. I’ve written about this on the Maryland Injury Law Center in the past in a post titled “Doctor Shortage in Maryland? A Doctor in Southern Maryland Says There Is a Shortage of Doctors.”

Yet, bizarrely, the article focuses on medical malpractice insurance, profiling the ostensibly tragic story of Dr. Charlene Letchford who was forced by the “skyrocketing cost of medical malpractice insurance” to join a group of doctors at Calvert Memorial. Apparently, the bill “recently jumped from $11,000 to $16,000 a year.”

Now, is it possible – just possible – that this $5,000 was not the deal-breaker? Are there other alternatives to explain why her practice was unsuccessful other than the additional $13.70 she has to pay every day for malpractice coverage?

The article also points to the insurance company reimbursement rates, which are increasingly defeating attorneys in the battle to be the archenemy of Maryland doctors. But it is troubling the extent to which doctors seek to bundle up all of their problems and place them at the doorstep of medical malpractice lawsuits.

The article includes the following bizarre quotes from Dr. Barry Aron, an OB/GYN in La Plata (Charles County):

Even if the case is dismissed the lawsuit still counts against you with the insurance carrier. It’s a losing situation. Even if a doctor wins a case the insurance company still pays out money.

It’s all a game to the lawyers involved. It’s kind of a shame. The way the system works is that pain and suffering brings in a lot of money.

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In an awful decision this week in a wrongful death medical malpractice case, the Michigan Court of Appeals overturned a lower court’s ruling which would have prevented ex parte communications between defense counsel and a Plaintiff’s treating physician from being entered into evidence, because HIPAA privacy rules already prohibit medical malpractice defense lawyers from meeting ex parte with plaintiff’s physicians even if the Plaintiff has executed a HIPAA authorization.

This Michigan Court of Appeals opinion relies on the fact that the Plaintiff executed a HIPAA authorization for the defense counsel. In Maryland, there is no mechanism to require a Plaintiff to waive HIPAA rights before they file a lawsuit. Based on a quick review of Belote v. Strange, another Michigan Court of Appeals case, I think Michigan interprets HIPAA to protect oral interviews with doctors if there is no executed HIPAA authorization. So I extrapolate from this that plaintiffs are required to sign a HIPAA form to pursue a medical malpractice case in Michigan.

Our lawyers never allow our clients to sign HIPAA authorizations for defense counsel use in personal injury or medical malpractice cases. Many of us, as attorneys, want to be considered cooperative lawyers and feel bad denying these requests. But the lesson learned here is that if you compromise your client’s rights under HIPAA, you are leaving your client open to unforeseeable consequences.

Dr. Henry M. Learner, an instructor in Obstetrics and Gynecology at Harvard, writes an article in this month’s OBG Management called “Rebuff Those Malpractice Lawyers’ Traps and Tricks.” Dr. Learner is also the president of Shoulder Dystocia Litigation Consultants, a group that works with defense lawyers, medical malpractice insurance company case managers, and hospital risk managers in shoulder dystocia-related injuries and litigation.

I hate to give up one of my own but I’m sure Dr. Learner is a double agent. Because the advice he gives in this article is obvious (“know the specifics of your case”) or downright counterproductive. One piece of advice is to pull a Sarah Palin: “you don’t necessarily have to play by the rules for answering questions….” That cracks me up. But this one is even better:

Never allow an attorney to bully you in the courtroom or at a deposition. If the attorney begins to use such behavior, call it by its name and demand that it be stopped. Your lawyer will likely have raised the objection before you do; if she does not, protest such inappropriate behavior yourself. Never allow an attorney who is questioning you to raise his voice or speak to you sarcastically or rudely.