Maryland Injury Law Center

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.

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.

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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.

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.

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This doctor I deposed last week makes $1,700 an hour. (Or maybe she is just a stock photography model.)

The Kentucky Injury Lawyer Blog reports that a federal judge in New Jersey held the line on rampant expert fees last week, holding that while neurosurgeons should be able to demand steep prices for their time, $7,000 for two hours is “near to being extortionate.” I like when courts spare us the euphemisms and start throwing around words like extortionate. That’s fun!

The expert, a neurosurgeon in Philadelphia, charges $5,000 for the first hour of deposition and $2,000 for every hour thereafter. Please don’t extrapolate that over the course of a year. Your head will explode.

I have mixed feelings about this issue. I really think we should allow experts to largely charge what they want. If they want to price themselves out of the market because they don’t like to testify all that much, I’m fine with that.

I hate interference with what someone wants to charge if there is a willing buyer on the other side. Alex Rodriguez is not overpaid. He is worth exactly what the Yankees were willing to pay him. For better (usually) or for worse (sometimes), that is your free market economy.  Sure it would be a better world if we valued our firefighters and school teachers more than A-Rod’s tip money for his steroid dealer.   But the free market economy comes with these byproducts.  We knew this when we signed up for this economic system.   Continue reading