Monday, November 29, 2010

Trucking Company Blames Accident Victim--And Loses

This recent case shows the depths to which trucking companies will "blame the victim" in personal injury lawsuits. Here's what happened: a commercial truck crossed the median of a major interstate and crashed directly into the path of another truck, seriously injuring the second driver. The injured truck driver sued the truck driver who crossed the median and his trucking company/employer.

One of the trucking company's major defenses at trial was that the injured driver "did not slow down to avoid the accident and that his vision was impaired due to uncontrolled diabetes." This, despite the fact that the offending driver apparently fell asleep at the wheel and falsified his log book to cover up the fact that he had driven too many hours in violation of federal safety regulations.

The jury apparently saw through this defense and returned a $3 million verdict. I'll bet the injured driver never dreamed that his case would go to court when a large truck careened across a highway median and changed his life. Unfortunately, a "blame the victim no matter what" strategy is more common than you would think, especially when the injuries are serious and the insurance company is desparate to minimize its legal responsibility.

My guess is that, in the end, their "let's throw a bunch of stuff against the wall and see if some of it sticks" strategy backfired and only angered the jury, which sent the appropriate message with their verdict. I don't know who said it, but it's true: the American jury is one of society's best "attitude adjustment" mechanisms in a democratic society.

Wednesday, November 24, 2010

Why Does Wrong Site Surgery Continue To Happen?

In "Groundhog Day" fashion, it seems as though we can't go but a few weeks and, bam, there's yet another medical malpractice lawsuit claiming that a hospital/ surgeon operated on the wrong patient or wrong body part. This time, "St. Louis University doctors mixed up their patients and did the wrong surgery on one man's spine," according to a recent lawsuit filed against the hospital.

Wrong site surgeries are on the rise, according to the National Institutes Of Health. In fact, wrong site surgery has been gained enough notoriety to be given an acronym--WSS (it's a good rule of thumb that if something has its own acronym, it's a big deal).

The vexing problem of wrong site surgeries confirms one of the ugly downsides of health care delivery: it is a volume business within a complex system.. Consequently, patients will fall through the cracks despite the best protocols, policies, and safety procedures. The best hospital safety policy is useless if the surgeon or the hospital is in a hurry to move patients, in cattle like fashion, for whatever reason.

I hear politicians squawk all the time that we have the best health care system in the world. In many respects, we do. So why do these 100% preventable medical errors continue to happen? For all the hue and cry about doctors practicing "defensive medicine," what do hundreds or thousands of wrong site surgeries each year do to health care costs? Is continued malpractice a driver in the high cost of health care? The powers that study health care policy and "reforms" continue to ignore the proverbial 800 pound gorilla standing in hospital hallways and operating rooms across the U.S: that by actually reducing incidents of malpractice, malpractice costs, and therefore health care costs, can be reduced.

Reducing malpractice lawsuits by reducing there's a novel idea...

Friday, November 19, 2010

Doctor's Artichoke Lawsuit Is One To Gag On...

Even Stymie knew how to eat an artichoke--or better yet how NOT to eat one.

Apparently, however, this life lesson was lost on a Florida doctor, who ordered an artichoke at a restaurant, and ate the entire thing.

Not suprisingly, he developed severe abdominal problems, and is now suing the restaurant for failing to warn him how to properly eat an artichoke.

This is a stupid lawsuit and one that should and will go nowhere. Although lawsuits like this are not the norm, the media loves them for their zany and headline grabbing effects. Somewhat ironic is the fact that it is a physician who's bringing this lawsuit. Physicians as a group are generally "anti-lawsuit" and groups like The AMA have spent millions lobbying for relief from medical malpractice lawsuits, and tighter sanctions for what they deem to be "frivolous lawsuits."

Which leads me to my working definition of a "frivolous lawsuit" in the eyes of the public: one other than my own. My guess is if this same physician had read about someone else choking down an entire artichoke, he would have laughed it off as frivolous. Of course, this is only my opinion. I could be wrong. What do you think?

More than anything else, I'm thrilled that I found a way to work a Little Rascals/Stymie clip into a legal blog about an artichoke lawsuit, no less! I guess this means we'll see a Petey the dog clip if I can just find a case about a dog bite...

Thursday, November 18, 2010

Why Vigilante Justice Is No Justice At All (And Why Tort Reformers Should Fear It)

This sad story about a molestation victim taking matters into his own hands got me thinking about vigilante justice, and how our changing legal landscape, particularly the "tort reform" movement, may be encouraging it.

In 1995, William Lynch, who was 9, and his younger brother, were sodomized by a priest. Last month, Lynch, 44, entered a nursing home where the priest resided and beat the tar out of him.

Two points of interest: first, the priest was not charged criminally because the statute of limitations had run. Second, in 1998, Lynch and his brother settled their molestation claims against the Catholic Church for $625,000. After the settlement, Lynch continued to have major psychological problems, and even contemplated suicide. Understandably still resentful over what this priest did to him, he took matters into his own hands. And now he faces criminal charges for the beating.

The first reaction to this tragic story is almost universal: to identify with Lynch. After all, who wouldn't want to maim or even kill the SOB who did this to you, or your children if they were the victims of such a despicable act? We all get that. But it's an emotional reaction; a reaction as natural as breathing, and probably as visceral as any other emotional feeling or state of being, like love, for example.

But it raises a larger question: should we condone vigilante justice in a civilized society? American society is founded in large part on the rule of law. Translated, our societal expectation is that our Constitution and criminal and civil justice system offers an orderly mechanism for punishing the guilty, resolving disputes, and holding wrongdoers accountable for the harm they cause. It is the societal glue that holds us together by deterring mob rule, and aggrieved parties from taking the law into their own hands, otherwise known as chaos. Indeed, when we read about reactionary mob rule in Third World countries, our predictable reaction is one of shock and suprise at the lack of order that leads to perceived injustices.

Where does "tort reform" fit into this picture? It is a well organized, multi- billion dollar movement, led by The Chamber Of Commerce, big business, the insurance industry, and medical groups, to restrict or even eliminate Americans' access to the court system in a wide array of mishaps. Examples abound, from financial fraud that devastates our financial freedom, to medical malpractice and medical devices or drugs that ruin our health. Because these wrongdoers and miscreants typically never see prison time for their misdeeds, our civil justice system is the usually the last resort--and the only remedy--for those harmed.

Due to a constant drumbeat of a well orchestrated, thirty year plus media campaign, the tort reformers (well heeled "organizations" and other "interested citizens groups" that are, in reality, astroturf groups funded by conglomerates) have successfully achieved most of their goals. Over 32 states have passed the crowning jewel of the tort reform movement: limitations or "caps" on what innocent victims of wrongdoing can recover in lawsuits. For example, if molestation victims sue in Ohio, their recovery as of 2005 and beyond would be limited to $250,000 for their lifetime of mental anguish and other psychological problems.

Unfortunately, within the next few years, we can expect to see more "reforms" passed in the form of national medical malpractice limits, and "loser pays" legislation. The collective weight of these legal restrictions will ultimately serve the second major goal of tort reform: to make it so difficult or so expensive for ripped off or maimed victims to sue that they say "to hell with it" and forego their diluted right to sue and hold these institutions accountable.

Bottom line: your "rule of law" is being co-opted and hijacked by muscled special interests. But there's a real toxic downside to this stench: as more individuals are left on the side of the road, unable to level the playing field with any meaningful legal recourse, I fear it will encourage an increase in vigilante justice. Is it wrong? Sure it is. And I hope I am wrong, but I see this as an unfortunate byproduct of a machine like movement that is, drip by drip, eroding our legal remedies like a thief in the middle of the night. You see, tort reform laws are spawning some other laws that are not yet officially on the "real world" books: the law of unintended consequences.

Vigilante justice makes for a good movie plot. Doesn't work so well in real life.

Wednesday, November 17, 2010

Attorney Advertising Reaching New Lows (In Fact, Going "Underground")

Just when I thought attorney advertising was scraping the bottom of the barrel, we have a new entry to be ashamed of (more on that in a minute). But let's review the sad litany of embarrasing advertising the general public has been exposed to over the years: shameless "solicitation" letters sent to accident victims (along with self laudatory DVD's, refrigerator magnets and other goodies thrown in the packet for good measure),and cheesy and/or repulsive TV, radio, and phone book ads (many with the tag that "we'll get money for you" and other nonsense).

More recent entries into this swamp have included cookie cutter, canned websites and blogs horribly ghostwritten for the sole purpose of increasing Google rankings through repeated use of familiar phrases or "keywords."

But, alas, some genius has thought of a new way of sinking our reputation even further: attorney advertising on funeral home websites.

As attorney Eric Turkewitz aptly pointed out:

[it] made me think of the washed up lawyer played by Paul Newman in The Verdict, going to funeral homes to pass around his card, pretending to have known the deceased as he chased cases. But instead of standing in their parlors handing out cards, this company wants lawyers to hang advertising on their site where the bereaved might go in time of need.

Eric hit the nail on the head in concluding that "The bar for attorney advertising has been lowered to new depths. It now appears to rest six feet under."

It's a safe assumption that the overwhelming majority of us personal injury attorneys are appalled by this latest "marketing" scheme. Unfortunately, most of us are a "silent majority" on the seemingly endless and shameful ways some firms go about attracting new clients. But don't expect the "faux blogger" law firms to expose this idea for what it is. They're probably too busy signing up to put their "Questions about how your loved one died/call us today" patch on funeral home websites...

Monday, November 15, 2010

Insurance Companies That Want Your Social Security Number After An Accident--An Update

Recently I wrote about insurance company attempts to obtain injury victims' Social Security numbers after an accident and why they want them.

The reason? To submit accident victims' Social Security numbers to a bunch of databases, including credit histories/ratings among other things (you might ask yourself: why would insurance companies want your credit scores as part or their investigation of your auto accident injury claim?)

A recent Ohio car collision case I handled shows how one sided and hypocritical insurance companies are on this issue. I recently represented a driver injured in an intersection collision. The at fault driver had low liability limits. Fortunately, my client carried ample underinsured motorists coverage, which permit injured persons to make a claim against their own insurance company if their injuries/claim exceed the at fault driver's liability limits.

A lawsuit was filed against the at fault driver, and also my client's insurance company, for underinsured motorists' benefits. When a lawsuit is filed, all parties have the right to send written questions, known as interrogatories, to each other.

So here's what happened. The at fault driver's insurance company sent my client interrogatories, one of which asked for her Social Security Number (which I objected to and refused to answer, because of privacy concerns and a lack of relevance to the crash or my client's injuries).

Now here's where it got fun: my client's insurance company sent similar interrogatories to the at fault driver's insurance company, and asked for her Social Security Number as well. What did the insurance company for the at fault driver do? They refused to divulge her Social Security number, claiming that it was irrelevant!!

See how it works in the insurance world? Demand the injured victim's Social Security number, but refuse to divulge the at fault driver's/their insured's Social Security number.

If they wanted to be fair and above board, one would think that insurance companies would divulge the same information on their negligent driver that they are seeking from the auto accident injury victim. That simple logic assumes, however, that the insurance claims process is a two way street and an even exchange of information. It is not, and insurance companies' hypocrisy on this issue proves the point.

The lesson? "Fair and above board insurance company" ='s "jumbo shrimp," "hot water heater" and other oxymorons.

Wednesday, November 10, 2010

Wrong Hand, Wrong Site Surgery--And The RIGHT Way To Handle This Medical Error

Unfortunately, wrong site surgery is more common than we would like to believe. Approximately two years ago, surgeon David Ring operated on the wrong hand of a patient. Apparently, for reasons unexplained in the article, Dr. Ring recently went public with this medical mistake. Why is this so newsworthy now? Sadly,

Ring’s public admission is rare in a field that typically cloaks doctors’ errors in anonymity, if not secrecy. Patient safety advocates praised Ring’s seven-page mea culpa as a necessary step to reversing rising numbers of wrong-site surgeries and other errors.

How pervasive is the vexing problem of wrong site surgery?

In 2008, the most recent year with complete records, 116 wrong-site surgeries, up from 93 in 2007, were recorded by the Joint Commission, a national hospital accrediting agency. Preliminary reports logged 137 wrong-site surgeries from March 2009 through June 2010. That’s despite more than a decade of attention to the issue following the landmark 1999 Institute of Medicine report titled “To Err is Human.”

Dr. Ring is praised in the article for bringing this medical mistake to light, as he should be. This is the way totally preventable medical mistakes should be handled--with transparency. But I would disagree with any assertion that his going public with what happened is considered some sort of act of courage.

Admitting an obvious and indefensible medical mistake is not courageous; it is, simply, the right thing to do. As to the medical profession it may be considered courageous, but only because mistakes like this are often explained away, mitigated, or even justified as "system errors" or other euphamistic nonsense. A medical culture that discourages admitting error is the true root cause for the lack of coming forward and the transparency and honesty showed by Dr. Ring in this instance.

So give him a lot of credit for doing the right thing here. But the publicity this incident has garnered, and labelling it as an act of courage, says more about the current culture of the medical profession than anything else.

Bottom line: if a doctor makes a preventable medical mistake, just admit it and move on. That's why doctors and hospitals have malpractice insurance. When we get to the point that something like this is NOT newsworthy, the medical profession will have caught up to the rest of how society views personal responsibility and accountability.

Thursday, November 4, 2010

The Real Effects Of Medical "Tort Reform"

One of my favorite legal bloggers is Justinian Lane, who passionately writes about our civil justice system. One of his blogs is "TortDeform," which exposes the folly of the tort reform movement, and its true goal: to make it so hard to bring legitimate lawsuits against big business, insurance companies, and the medical industry, that ordinary individuals say "to hell with it," and give up. All to the benefit of these well heeled interest groups.

There's lots of data to support the idea that legal tort reform will do nothing to help our economy and create jobs (a tirelessly repeated canard of that movement) or bring down the cost of health care in America. But largely this falls on deaf ears. The tort reform movement is not about "data" or "facts." It is, at the end of the day, an orchestrated, well crafted perception: that we are awash in "frivolous lawsuits" that exact increased costs on all of us. It is a perception fueled by a multibillion dollar propaganda machine that parades random, goofball lawsuits as "Exhibit A" for what's wrong with our legal system.

Frequently lost in the tug and pull of perception versus facts/data is the human side of this debate, and how tort reform actually affects real people with legitimate, non-frivolous cases. These are the folks left on the side of the road (or better yet the ditch) in this one sided debate. Sometimes their words are more illuminating than "position papers" or the latest cooked data from The Chamber Of Commerce or the insurance industry. Recently, TortDeform posted a testimonial from a Texas malpractice victim. Ohio has passed similar "malpractice reform" laws, so the writer/victim's observations are particularly salient to what is currently happening in Ohio. The testimonial was so moving that I am reposting it here:

I have read some of the things on Tortdeform and would like to share our medical malpractice experience. My hope is that others will share their experiences. Perhaps, if enough experiences are shared, we can change public perception. Currently, that perception is that many are getting rich making frivolous medical malpractice claims, that juries give away huge amounts of money for the slightest thing, that this has a big impact on our medical insurance cost, and that it drives medical malpractice insurance so high that doctors go out of business. This perception fuels a cry for tort reform and is taken up by our politicians. The most common “fix” is to limit damages awarded. While this sounds good in theory, did you ever think what happens to someone who is actually a medical victim in this “reform” environment? The following is our “story”.

We live in Texas, which is touted as the "model" of tort reform for medical malpractice. My wife and I had planned our “dream” vacation. Before we left, she wanted to get a procedure (which she has had several times before) done on her spine to alleviate pain. Unfortunately the doctor messed up and she was left paralyzed on one side. She had additional complications which left her in constant pain, unable to walk without a walker, and then only a minimal amount. It is difficult for her to function and I prepare her food, bathe her, dress her, fix her hair, etc. Our life has totally changed.

When we explain what happened to our friends, one of their first responses is, “I guess you’ve sued and gotten a big award”? It seems so obvious to them. However, it’s not so easy. Our first issue was to find a lawyer. Expenses will be $50,000 - $250,000 to try the case. If the lawyer loses, this money comes out of his pocket. In 75% of the cases that go to trial, the doctor wins. So the lawyer’s not taking the case, unless he is very confident of winning. Second, there must be written expert opinion, from doctors in the same field as the plaintiff, who will testify to the malpractice – before the case can even get on the docket. So much for “frivolous” lawsuits!

We have already spent $45,000 out of our pocket (beyond what medical insurance covers). I estimate that over my wife’s lifetime we will need $1,000,000 to $1,250,000 to cover extra expenses. Experts in our case tell me that my estimate is low – it could well be double this. The lawyer’s fee is 40% of gross recovery plus expenses (and interest on those expenses).

As we proceed with the case, we are confronted with additional sobering facts. Today, doctors attend classes to learn how to shelter their assets (trusts, etc). Even if we do go to trial and win that two-million dollar award, the doctor’s assets are sheltered, he will declare bankruptcy, and the most we will get is the limit on his malpractice insurance - $750,000. In addition, medical insurance companies (and Medicare) have a little clause in their policy called subrogation. This means that if you recover money in a case, they will expect you to pay back (out of your recovery) all the money they paid for hospital bills, rehab, etc. Their first requests to us were for upwards of $300,000.

We are told we are pretty lucky. Following negotiation with the medical insurance company, and after lawyer fees and expenses, we stand to recover about $250,000. Still the feeling is bittersweet. This totally ignores the constant pain and suffering my wife experiences, her inability to function normally, and the likelihood that she will spend her last years in a nursing home when I am too old to care for her. Nor does it deal with the change in quality of life I have as a caretaker. I have no idea how we will meet the mounting financial strain - $250,000 is 12-25% of what we will need.

We feel we have been victimized twice - the first as a medical victim, the second by the judicial “tort reform” system. My lawyer says that our story is common place – in fact there are many worse than ours. To add injury to insult, I am told that we will be required to sign an agreement that we will not reveal facts of our case to the media. Again, an attempt to keep the real truth hidden from the public. While I have not yet signed such an agreement, I have kept names and details out of our story to protect everyone involved.

Again, I implore others to share their story in Tortdeform (without violating any legal agreements). If sufficient “stories” are revealed, perhaps public opinion will side with the victim, and more appropriate “tort reform” can occur.

Keep up the good work, Justinian...

Tuesday, November 2, 2010

Hospital And Doctors Who Removed Non Cancerous Testicle Not Liable Due To Legal Immunity

Now here's some Texas justice for y'all. A Texas court recently ruled that a hospital is not liable for removing a patient's wrong testicle.
Here's what happened:

Safwat Kamel complained of an enlarged testicle in 2005, and Drs. Run Wang and Tiffany Sotelo performed surgery to remove the fluid around the testicle.
During surgery, Wang diagnosed the testicle as cancerous, given Kamel's history of colon cancer. Wang removed the testicle, and later tests proved it was not cancerous.

(Apparently they do not do pre-operative biopsies in Texas, which may have detected the lack of testicular much for all the talk about doctors practicing "defensive medicine," like a biopsy, out of fear of endless lawsuits... just sayin...)

So, Mr. Kamel is absent one testicle and his lawsuit was dismissed despite the seemingly preventable malpractice here. Why? Legal immunity for state run hospitals in Texas. For those unfamiliar, legal immunity means that institutions like schools and cities are not liable for negligence. Like Texas, Ohio has loads of immunity for cities and schools (you can read all about it here), but has not adopted immunity for medical providers...yet. Last year, The Ohio Legislature considered a bill giving emergency room doctors immunity for negligence. The bill failed, but given yesterday's election, and the fact that one party now dominates both branches of the Legislature, the Governor's office, and The Ohio Supreme Court, one word comes to mind: lookout.

Expect an onslaught of physician and hospital immunity bills to be proposed in Ohio within the next few years. Lose your testicle or breast or other vital organ due to preventable negligence? Tough luck. Sorry for your loss. Get over it.

Apparently, now, everything's smaller in Texas. Including legal responsibility for medical malpractice.