We can hold hands and agree with the Drug and Device Law Blog on few things related to drug and medical device litigation but this is one: we hate Medicare liens and the government is making life even more difficult for parties on both sides of the v. As usual, they have a very complete post laying out this issue, focused on the defense lawyers’ perspective but much of it applies to plaintiffs’ lawyers.
New Tort Against Medical Malpractice Doctors : Should Courts Force Doctors to Confess Their Own Negligence to Their Patients
University of Baltimore law professor Richard W. Bourne wrote an article published this year in the Arkansas Law Review articulating the theory that there should be an independent tort claim when a doctor destroys evidence or when a doctor fails to disclose to the patient that there has been a breach of the appropriate standard of care that causes injury. Professor Bourne would limit this tort to cases where (1) the wrong is serious, and (2) failing to reveal is intentional.
Professor Bourne also quotes Harvard evidence professor Charles R. Nesson on the inherent problem in making the punishment for spoliation of evidence “assuming that the spoliators … destroy the evidence because it [is] damaging to their case, none of these sanctions puts the spoliator in a worse position than he would have been in had he produced the evidence.”
If the document or evidence shows the worst scenario, the defendant has nothing to lose, except possibly inflaming the jury by destroying the evidence. In Maryland medical malpractice cases, there are ostensibly ramifications with the Maryland Board of Physicians for doctors destroying medical records. But as this blog recently underscored, the Maryland Board of Physicians does not appear to be an effective enforcer of medical ethics.
Hydroxycut Recall
The FDA has warned users of weight loss drug Hydroxycut to stop taking the popular weight-loss product because of risk of severe liver damage. The Hydroxycut recall focuses us all for the zillionth time on FDA’s inability to sufficiently police so much as a high school prom. But they never do anything about it.
The FDA is officially in the “Britney Spears Zone” for just about everyone. If they accidentally approved heroin capsules tomorrow, the New York Times and the Washington Post’s editorial sections would light up for a week. Then it would be back to business as usual and nothing would change.
Botox Black Box Warning
The FDA announced that it will now require Botox and its progeny to provide a black-box warning. The FDA said the labeling is necessary to warn doctors and patients that Botox has potentially fatal complications, including problems with swallowing or breathing. The FDA has identified at least 225 reports of medical problems among patients treated with Botox and similar drugs.
If there was a stock available in 2004 called “The FDA Will Eventually Require Black Box Warnings for Botox But It Will Take Awhile”, I would have bought a ton. Unbelievably predictable.
The Difference Between Moral and Civil Responsibility
The New York Daily News reports that the family of a high school student in New York, who was killed in a stolen vehicle hit-and-run drunken driving accident, has filed a wrongful death lawsuit against the driver of the car, the owner, and the family that hosted an underage drinking party.
It is an easy decision case against the adult hit-and-run drunk driver who also will face criminal liability. The merits of the case against both the owner of the vehicle and the family that hosted an underage drinking party where they gave the victim—not the driver—alcohol, is more problematic, even from a personal injury lawyer with an admittedly pro-plaintiff world view.
About half of the states have enacted Dram Shop statutes, which permitted the imposition of civil liability on suppliers of intoxicating beverages in certain circumstances. Only a few states take the position that there was no civil liability for serving alcohol.
But Maryland is one of those few states [Still, in 2013.]. Maryland courts will not distinguish a case where the alcohol was served to minors in the home with the parents’ consent (Maryland Court of Special Appeals opinion in Hebb v. Walker.
This is another bad and outdated Maryland law. Almost every state goes the other way on this. But this New York case is trickier than “the adults give kids alcohol, and then the kids go out and hurt someone in an accident” scenario. Both the pedestrian victim and the driver were drunk. The wrongful death lawsuit names the parents who allowed the pedestrian/victim to drink alcohol at a party.
Honestly, and the New York Daily News has a picture of this handsome boy and his parents that is downright heartbreaking, I have a hard time placing civil liability on the parents that allowed him to drink alcohol in their home. There are cases where someone is morally responsible—which I think is hard to deny in this case—but should not be civilly responsible.
I think this is one of them. A sixteen-year-old boy is blameless in the enormous picture in this case in every way that matters now. But his own behavior should—I think at least—negate the liability of the parents that allowed him the have alcohol. I realize this opinion is not out of the plaintiffs’ personal injury lawyer manifesto. But I didn’t check my own views at the door when I became a plaintiffs’ lawyer. Continue reading
U.S News and World Report Rankings and the University of Baltimore Law School
U.S. News and World Report ranks the University of Baltimore Law School in the Fourth Tier again in its annual rankings of law schools. I incorrectly reported that UB was in the Third Tier yesterday. I must have been looking at last year’s results.
I was hoping to see the Law School jump to the second tier or remain in the third tier. But a new state-of-the-art building for the law school is coming and lots of other changes. I was telling my insurance law class at UB this morning that I can feel the quality of students dramatically improving. This means more to me than what U.S. News and World Report has to say, particularly with the recent building less than two years.
One thing you cannot help but notice in looking at the ranking of the school is that the University of Baltimore has a large law school. Contrast the University of Louisville’s 323 students with the University of Baltimore’s 657 full-time law students. This makes the competition a little unfair. If Louisville took 657 law students, the quality of its enrolled class would look very different. I think we would fare better if they only considered the top 300 students in the rankings.
GEICO
Warren Buffett’s Berkshire Hathaway took a bath this year. But in Buffett’s annual letter to shareholders, he seems pumped about how GEICO is faring in the car insurance market. Buffett noted that under GEICO chief executive Tony Nicely, GEICO did its part to keep Berkshire Hathaway profitable, increasing GEICO’s market share to 7.7% of the auto insurance market last year (over 19% in Maryland). Buffett makes clear in his report that he is bullish on GEICO:
As we view GEICO’s current opportunities, Tony and I feel like two hungry mosquitoes in a nudist camp. Juicy targets are everywhere.
This is a funny quote but, then again, everything sounds a little funnier when coming from a billionaire.
First Year Lawyers Starting Salaries
Mega law firm McKenna Long & Aldridge announced yesterday it has cut the starting salaries of its first-year lawyers by $20,000. (The original version of this post said: “to $20,000.” Now that really would have been news!)
There has been a delay in reducing starting associate salaries even while these large firms are laying off scores of lawyers. Why? Well, let’s say you’re a muscle head who works out at the gym 7 days a week. Then disaster strikes. You get a job or, worse still, a family. Now you can only work out 4 days a week. What do you cut out of your workout? The bench press? No, how much you can bench is the muscle head signature statement of strength.
Starting associate salaries is like the bench press for major law firms. Bizarrely, you seem to lose more street cred firing lawyers and staff than you do lowering the salaries of your first-year lawyers. That’s my take on it anyway, which is, thankfully, from a distance.
Value of Wrongful Death Cases in Maryland Where Victim Is 65 or Older
Lawyers handling wrongful death cases encounter an awful argument from defense lawyers in cases where the victim is 65 years-old and older: you have to discount the value of your claim because the victim was old, anyway. The argument is so callous no lawyer would directly make this argument to a jury, especially in a jurisdiction like Maryland where there is a meaningful cap on wrongful death and survival action damages.
The “victim was old anyway” argument is offensive and cold… but not entirely untrue when you look at jury verdicts. There is some measure of truth to it. Once you get past how awful it sounds, the differences make sense. The money damages awarded in a wrongful death claim with a young victim having 70 more years of expected life should be higher than with an older victim having only 20 more years of expected life because the victim’s family will be without them longer and the victim missed out on a lot more life.
The reason the argument is so offensive is not the underlying premise—older victims get less—but the “How big was the loss, really?” way in which they pitch it. Juries still place actual values on these losses. According to Metro Verdicts Monthly, juries have over the last 22 years awarded an average verdict in Maryland wrongful death cases of $1,337,824 involving victims 65 and older. Washington, D.C.’s average is slightly higher, $1,443,818. Incredibly, and this really underscores jurisdictional differences, Virginia’s average verdict in wrongful death cases involving victims 65 and over is an abysmal $685,535, less than half that of the District of Columbia. Continue reading
IME Doctors Caught on Tape
The New York Times has a good article today on Independent Medical Examination doctors, including a doctor referred to by New York injury lawyers as “Doctor Says-No.” We have several IME doctors in Maryland that must be related to him because they have the same last name.
The New York Times would not have written this story if it did not have examples of patients possessing the great weapon of the modern age: “I’ve got it on tape.” The article has examples of doctors who told the patient one thing in the evaluation – which the patient’s taped with their phones – and put the opposite conclusion in the report.
In Maryland, our lawyers are seeing a recent wave of IME doctors replacing the old guard of discredited doctors that juries stopped believing long ago. Below are a few tools to fight for your clients to get fair defense medical exams.
My colleague John Bratt is in the middle of a battle in a Montgomery County case where the expert is refusing to meet the same conditions imposed against this same expert by a judge in another case we had with him in Montgomery County. In another accident case, my colleague Rod Gaston has with the same doctor, they ordered the doctor to produce his financial records. Bizarrely, the insurance company withdrew the doctor, but he still filed an interlocutory appeal. I’m looking forward to finding out who has been paying his legal fees for all of this. My bet: the insurance company.
(Note: I have fixed the New York Times link, as requested. Thanks to all for bringing it to my attention.) Continue reading