Tuesday, September 29, 2009

Erectile Dysfunction Malpractice Verdict--This Would Be Cut Down In Ohio

A Georgia jury returned a $9.25 million verdict against Boston Men's Health Center after its erectile dysfunction treatments caused permanent damage to a 53 year old patient's penis. Apparently the damage was caused by a series of injections of a "secret formula" that was actually a medication (Papaverine) that came under fire by The FDA:

After the initial examination, the clinic's staff diagnosed Howard with erectile dysfunction and premature ejaculation and said they would inject their medication into his penis, a process that would be "painless." Although described by the company as a "secret formula," Orr said that the primary ingredient injected into Howard was a drug called papaverine. While papaverine had once been the primary means of treating erectile dysfunction, it was discarded as a treatment after Viagra was introduced in 1998, Orr said. The Food and Drug Administration has since warned that papaverine should not be used to treat erectile dysfunction, he said.

The jury awarded compensatory damages (money damages designed to compensate for physical damage) of $750,000 and also found Boston Medical liable for $8.5 million in punitive damages( money damages designed to punish a party for outrageous conduct).

If an Ohio jury returned an identical $9.25 million medical malpractice verdict, the minute the jury left the courtroom the judge would have been required to chop the punitive damages verdict from $8.5 million to $1.5 million--a whopping $7 million discount.

Obviously this jury believed that Boston Medical's conduct in repeatedly using a medication no longer recommended by The FDA was more than just negligent conduct. So why do Ohio punitive damage laws give a $7 million discount to a party found liable for egregious conduct? And as a final insult, Ohio juries are not even told that their community decision is subject to an automatic reduction of potentially millions. In fact, the law specifically forbids judges from informing Ohio juries that there are limits or caps on punitive damage verdicts.

Another Ohio "tort reform" law that favors (and rewards) wrongdoers, and hoodwinks juries from being told the truth.

Monday, September 28, 2009

Doctors/Hospitals Leaving Sponges In Patients--Welcome To Tort Reform

Two women. Two surgeries--a tubal ligation and a hysterectomy. The common denominator? Doctors and/or the surgical team negligently left large sponges (commonly referred to as "foreign objects") inside their abdominal cavities. The women lived with the sponges inside of them for nine and eleven years, respectively. Both suffered numerous, chronic medical problems that were misdiagnosed until the foreign objects were finally discovered and removed.

Pretty straightforward medical malpractice case, right? I think we'd all agree that large sponges, towels, forceps, hemostats, clamps, and other hardware left behind in the human body after surgery are classic examples of a preventable medical mistakes. Yet, both cases are before The Texas Supreme Court. Why? Welcome, again, to tort reform.

A few years ago, state legislatures in Texas, Ohio, and other states responded to a multimillion dollar phony "malpractice crisis" PR campaign hatched by the insurance and medical industry and passed numerous laws restricting the ability of malpractice victims to bring lawsuits (I might add parenthetically that doctors were getting unfairly gouged with escalating malpractice premiums by their own insurance companies due to an "insurance crisis" but the insurance lobby blamed their gouging of doctors on "lawsuits" and they won the lobbying war with state legislatures, hence all this lawsuit or "tort" reform).

Many states shortened the statute of limitation for bringing a medical malpractice claims. They also passed what is known as a statute of repose: an absolute deadline for bringing a malpractice claim (usually 10 years). No exceptions, even if you could not discover something like a foreign object left inside of you until after the 10 year deadline.

The Texas Supreme Court is going to decide whether these strict limits bar these womens' claims even though what happened to them was inexcuseable and they had no way of knowing they were carrying eroding surgical sponges in their abdominal cavities (Ohio's "reforms" are just as punitive as Texas,' although Ohio's statute of repose did make an exception for Ohio foreign object malpractice cases).

So what's the response of Texas hospitals that have filed briefs with the Texas Supreme Court? Here's what the hospital lawyer compassionately (note sarcasm here) pointed out:

I certainly believe this court may decide that ... the Legislature may impose a strict two-year statute of limitations, and 'we're sorry that it may cause problems for a limited number of people, but we believe the legislative intent and public policy (benefits) of the two-year statute outweighs the problems that it might cause."
(I wonder if this kind soul would feel differently about the issue if it were his wife or daughter who was carrying a large sponge for eleven years, but I digress..)

So there you have the official position of the medical profession in cases of obvious medical malpractice. We screwed up, but an deadline is necessary and we're sorry there will be victims left on the side of the road, but these laws are good for the people of Texas. Or Ohio. Or wherever else tort reform has been passed.

The hue and cry of politicians and a misinformed public is that "We need to get tough on these medical malpractice lawsuits." Well, you're getting your wish. And this is the byproduct of it all. So much for accountability and "personal responsibility."

Wednesday, September 23, 2009

Ohioans Health Insurance Premuims Rise 84%--Proof That "Tort Reform" Does Not Lower Health Care Costs

In previous posts I have been practically shouting that medical liability or "tort reform" will have NO bearing on the cost of your escalating health insurance premuims. In fact, I asked:

What is also not being mentioned in this "debate" (more like people screaming rudely at town hall meetings) is that 32 states have ALREADY passed lawsuit caps or limits on lawsuit recovery. So the obvious question becomes: where is the data from The AMA or the insurance industry proving to us that health care costs are falling in these states? If the AMA, the insurance industry, and The Chamber Of Commerce are correct about medical malpractice reforms reducing health care costs, there should be ample data showing that health care costs and premuims are significantly lower in these 32 states, right?

Well, we FINALLY have some data out of Ohio. Since 2000, Ohioans health insurance premuims have risen 84%!!!! Guess what? We have had medical "tort reform in this state since 2003, or 6 out of the last 9 years! Included in these "reforms" is a one size fits all "cap" on your recovery for things like being paralyzed, losing a limb, or losing your bowel or bladder function, brain damage--at anywhere from $250,000 to a "generous" $350,000. This cap was sold by insurance companies and the Ohio State Medical Association as being collectively good for all Ohioans ("don't you know that limiting YOUR legal rights is GOOD for you?") as a way to keep spiraling health care costs under control.

Under control? Good for Ohioans? Does an 84% increase in your health insurance premuims sound like it's been good for you? Bottom line: YOUR rights have been put on the chopping block, your recovery as an innocent victim of preventable malpractice is now arbitrarily limited, and your premuims have gone up 84%. You as an Ohioan just got a double whammy. There's another term for this nonsense: bait and switch. Cracking down on "frivolous lawsuits" was the bait or impetus for these reforms, and the switch is that they have had no effect on your premuims.

Yet, we're currently mired in a national debate where insurance groups and medical groups are pushing for these caps...nationwide?????? Oh, by the way, the salaries of insurance company CEO's are not capped by any legislation. The caps only apply to you, the individual.

This madness reminds me of the poker scene in the movie Stripes, where the naive/ dim witted soldier shows fellow soldier Dewey Oxberger (played by John Candy) his poker hand, and Candy tells him: "Yeah, if I were you I'd bet it all." And then Ox wins the hand and takes all money. Very similar to what is going on now, minus the loveable Ox...

Monday, September 21, 2009

Good Samaritan Laws: This Is How Immunity Is Supposed To Work

Talk about a strange way to start the work week. Today I left a business meeting at 9:00 a.m., only to look across the street of a busy road to see...an elderly man lying in his driveway underneath the right front tire of his car. Apparently it rolled down his inclined driveway and ran over him. He was wedged dangerously underneath it and couldn't move. So I called 911 and in the time it took to make the call, 2 motorists had stopped and were trying to move him or the car out of the way.

I ran over to assist, and shortly after that 5 more people had stopped. One man grabbed a jack and was trying to jack up the car so we could move the man out of the way. Finally all 7 of us decided we would try to lift the car while another man pulled him out. It worked. The paramedics arrived and transported him to the hospital.

I've often heard that our "litigious society" deters people from being good samaritans because of a fear of being sued. This is a load of bull. This myth did not stop about 8 people from dropping everything and helping this man. I'm sure nobody even gave a thought to not stopping and helping.

Secondly, Ohio's Good Samaritan law protects those lending assistance from liability unless their conduct is considered "reckless," which is virtually impossible to prove, and for good reason.

Good Samaritan laws serve a useful purpose in society; they are an example of "deserved immunity" for doing the right thing. Compare that to other "immunity" laws that only serve to protect entities like school districts even when they negligently allow convicted child molesters access to elementary school children. This is an example of "undeserved immunity" for doing the wrong thing--dropping the ball--and it is wrong.

So don't ever be afraid to lend assistance in a situation like this. The law will protect you for doing the right thing.

Friday, September 18, 2009

Woman Catches Fire During Surgery And Dies

In a previous post, I wrote about an Ohio woman whose head actually caught fire during a medical procedure (Patient's Head Catches Fire...And Case Gets (Wrongly) Tossed Out Of Court). Unfortunately, this has--unbelieveably--happened again. According to a recent news story, a 65 year old Illinois woman caught fire during surgery at Vanderbilt University Hospital in Tennessee and died.

This is a classic example of medical malpractice-- an unacceptable, preventable, known complication of surgery. The fact that it might be "rare" or a "known complication" is not a defense to the hospital in this case.

But, tragically, events like this illustrate a larger problem: that, despite safety systems and "policies and procedures" in place at the finest hospitals, medical negligence still occurs. Upwards of 100,000 people die each year due to preventable medical mistakes in hospitals. That's 60,000 more people than those who are killed on our nations' highways each year. A comparison of those two figures is mind boggling.

As politicians are debating "tort reform" and medical groups complain about "frivolous lawsuits," there are equally compelling cases of tragedies like this. What we really need is a culture of safety in hospitals that prevents mistakes like this from ever happening. Reducing malpractice means less patient injuries, and less lawsuits.

Currently, we are mired in a debate where medical groups and The Chamber Of Commerce are pushing for limits or caps on what malpractice victims can recover EVEN IN LEGITIMATE CASES. Punishing the victims and limiting the wrongdoers' insurance companies' liability rings hollow when you hear about needless tragedies like this one.

Beware Of The Latest Ohio Auto Accident Personal Injury Scam

Some Ohio attorneys are reporting that auto accident victims are receiving phone calls shortly after an accident from "police officers," who are asking victims detailed questions about their injuries. Apparently, these "police officers" are providing no identification as to name, badge number, police force, and after the information is provided, the "officer" hangs up.

Here's my take on this scam. Either one of two things are going on here. The first possibility is that the insurance company for the at fault driver is calling and trying to obtain information about your injuries, particularly if you have declined to speak to the adjuster and give a "recorded statement" to him or her.

ANother possibility is that the call was initiated by an unscrupulous medical provider who is gathering information in order to solicit business and eventually convince you to come in and receive medical care. Although this is uncommon, it does happen as I've written about in my book, "Your Ohio Accident" (The book is free and is available on our blog home page by clicking on the cover). My opinion: never, ever take up an offer from any medical providers or attorneys who call after an accident offering their services. These are unscrupulous people running "settlement mills" in order to make a cheap buck off of your injury claim, and they're not looking out for your best intersts. What's more, many of these providers and attorneys are well known to insurance companies because---suprise--the same providers and attorneys show up over and over again as insurance companies investigate these claims.

Here's how to quickly end this nonsense. Ask immediately for the "officer's" department, ID or badge number, and his or her supervisor's name. If an attorney or his or her office staff calls you, ask for the name of the firm/attorney and for the attorney's Supreme Court Identification Number (we all have one as we have to be registered with the Ohio Supreme Court). This will quickly end the phone call, since our Rules Of Ethics specifically prohibit telephone solicitations.

And as soon as you hang up the phone, find yourself a competent attorney of firm to represent you. And I cover that topic in the book as well.

Wednesday, September 16, 2009

Tax Relief Firm Requires Customers To Give Up Right To Sue And Arbitrate Disputes...IN CALIFORNIA!

We've all seen those ads for tax relief firms which promise to take on the IRS to eliminate or reduce your tax lien. CONSUMER WARNING: Be careful what you sign when you hire one of those firms. Recently, an Ohio customer hired Tax Inc., a nationwide tax relief firm, to handle an IRS matter. The customer signed an agreement which provided at the end:

Finally, any dispute in connection with any service performed by Tax, Inc. (a "Dispute") will be resolved by binding arbitration, pursuant to the rules of the American Arbitration Association ("AAA"), as the sole and exclusive manner in which such dispute may be resolved. I hereby waive my right to a trial by jury and consent to the County of Los Angeles, State of California as the sole and exclusive jurisdiction and venue for the arbitration. I hereby irrevocably waive, to the fullest extent permitted by law, any objection I may have now or hereafter have to such venue as being on inconvenient forum. Each party will bear its own attorneys' fees in connection with any proceedings regarding a Dispute. Any and all Disputes shall be governed by, and construed and enforced in accordance with, the laws of the State of California.

Apparently dissatisfied with Tax Inc.'s services, the customer sued for breach of contract in Ohio. Based upon this clause, Tax Inc is now claiming that the customer has no right to sue in Ohio, and the case must be arbitrated in Los Angeles, California!!!

I have no idea about the merits of this customer's complaints against Tax Inc. But if this one sided clause is upheld by an Ohio court, it means that dissatisfied customers are stuck with traveling to California for an "arbitration" of their complaints. How inconvenient is that? And that's the whole point of a clause like this: to make it so impractical and burdensome that many disgruntled customers will throw up their hands and cave in. It's yet another example of the unfairness of one sided, involuntary arbitration clauses, which are fully supported by the U.S. Chamber Of Commerce as "good for business." Not so good for the consumer. And as to the "fairness" of this clause, did you notice that it was only the CUSTOMER who waived the right to sue in Ohio or a right to a jury trial? The tax service waived nothing!

So if you're considering hiring one of these services, do the following:
1. Ask to see a sample contract BEFORE you sign anything;
2. If the agreement/contract contains an arbitration clause or other waivers of your rights, ask if these clauses are mandatory, meaning "take it or leave it;"
3. If waiving your rights is a "take it or leave it" proposition, leave it! Walk away from the deal, tell them why, and consider hiring a local service that won't send a potential dispute thousands of miles away.
4. If the service says "Just sign it as is and we'll take it out" or "don't worry, we won't honor that portion of the agreement," NEVER EVER agree to this.

Tuesday, September 8, 2009

Tort Reform Won't Lower Health Care Costs...And... It's Socialism!

A recent article in the Orlando Sentinal summed up this whole health care debate quite succinctly: that the people screaming for medical liability reform are really screaming to have their own rights limited if they are maimed by a preventable medical mistake. And they really don't even realize it.

The reason is quite simple: people think that these "reforms" are simply cracking down on those "frivolous lawsuits" they hear about. What they don't realize is that what is being proposed is an arbitrary, one size fits all "cap" or limit on what malpractice victims can recover even when it's proven that the physician or hospital was negligent!!! This, of course, has nothing to do with getting tough on "frivolous lawsuits."

What is also not being mentioned in this "debate" (more like people screaming rudely at town hall meetings) is that 32 states have ALREADY passed lawsuit caps or limits on lawsuit recovery. So the obvious question becomes: where is the data from The AMA or the insurance industry proving to us that health care costs are falling in these states? If the AMA, the insurance industry, and The Chamber Of Commerce are correct about medical malpractice reforms reducing health care costs, there should be ample data showing that health care costs and premuims are significantly lower in these 32 states, right?

So where is the data? Why is nobody shouting at town hall meetings for this proof? (Could it be that some of these "concerned citizens" were sent by industry groups with bullet points about "death panels" and "socialism," or am I just a tad cynical here???)

And while we're on the topic of "socialism," those opposing health care reform have recently begun to argue that the federal govenmnent has no constitutional right to even pass federal health care reforms; rather this whole issue should be left to the states, they chirp. Yet, out of the other corner of their mouths, these same interest groups are DEMANDING intervention of the federal government in passing federal "tort reform" with the principal argument that your individual rights to hold wrongdoers accountable should be limited "for the good of the whole" so that insurance companies can save money and (certainly) pass all those savings on to all of us. Gee, this sounds like...socialism? Government stay out of health care reform, yet pass federal legislation that limits the rights of all Americans? Perhaps the medical interest groups lobbying for these mixed messages should look up the definition of schizophrenia: "a state characterized by the coexistence of contradictory or incompatible elements."

Closer to home, in 2003, Ohio passed lawsuit caps/limits on what malpractice victims can recover. So, my fellow Ohioans, six years later, are your health care premuims going down, or are they continuing to rise every year? I think we all know the answer to this. And who's laughing all the way to the bank in states where "reforms" were passed? The insurance companies. They're spending roughly a million a day to lobby for laws that will take away a lot of your rights even in legitimate cases of preventable medical mistakes. And many of you are buying it.

So shout away at your town hall meetings. Just don't shout at me when you call and tell me after all these "reforms" are passed: "I'm not one of those sue happy people but I was legitimately harmed and my life will never be the same and it's not fair that my rights have to suffer because of these laws." My response will be: "You're right, but it's too late. Money, lobbying, misinformation, and public ignorance won---again."

You never know how sweet the water is until the well runs dry...

Wednesday, September 2, 2009

New Ohio Supreme Court Decision May Mean Chaos For Nurses And Other Health Care Professionals

Nurses, physical therapists, nurses aides and anyone else who works in a hospital or nursing home setting: look out. Courtesy of two recent Ohio Supreme Court decisions, the liklihood of you being sued and dragged into a lawsuit just went up big time.

Here's the deal. Before these two recent decisions, if nurses or other health care professionals made a medical mistake in the scope of their employment and a patient was injured, the nurse's employer was liable for that mistake. Example: a nurse administers a wrong medication to a patient, or doesn't follow specific orders for a patient's plan of care, and the patient is injured. There was no need, and no legal requirement, to sue that nurse individually. Rather, the employer (typically the hospital or the nursing home) would be sued and liable for any damages if negligence was proven. End of story.

However, the Ohio Supreme Court has recently ruled that in order to hold the employer liable for the employee's negligent mistake, it is now necessary to also sue the employee, in certain situations. This decision has thrown almost 200 years of established legal precedent out the window. Here's the result of these decisions: MANY HOSPITALS AND NURSING HOMES ARE NOW ARGUING THAT UNLESS THE INJURED PLAINTIFF NOW SUES EVERY NURSE POTENTIALLY INVOLVED IN A NEGLIGENT MEDICAL MISTAKE, THERE IS NO CASE AGAINST THE HOSPITAL/NURSING HOME.

This reasoning potentially invites chaos for two reasons. First, in over twenty years of handling medical negligence cases, I have NEVER sued an individual nurse even if that nurse made a negligent mistake. There was no need to scare nurses or techicians by naming them personally in a lawsuit, having them worry about whatever effect it may have on their credit rating, and all the other emotional baggage that came with personally naming them in a lawsuit. And I can speak for my colleagues that NOT suing individual health care providers was standard practice. Now, we personal injury attorneys may have to comb through and decipher medical records to identify what staff may have had a role in a patient injury, and include those individuals in a lawsuit.

The second fallout of these decisions is that hospitals are now advocating that their employees must be sued. This has already happened and I have proof that a local hospital in Canton is taking this position. How twisted is it that, consequently, we medical malpractice attorneys who bring lawsuits are advocating suing fewer people, and hospitals and nursing homes are now demanding that their employees be sued? This is nonsense--nonsense on stilts!

So, nurses and other health care professionals, please take note: I never wanted to, and still don't want, to sue you! But now, I may have no choice to do so to protect my clients' rights because YOUR hospital or nursing home will now claim that, unless I don't sue you, the lawsuit must be dismissed.

No doubt if some poor nurses find themselves on the receiving end of a lawsuit, they'll be angry. Their immediate reaction will be to be angry with us "trial lawyers.". While I understand this, your anger is misplaced. If you're served with any lawsuit papers, you might want to ask your employer: why are you taking a legal position that demands that I be sued?

It remains to be seen whether courts will apply these new decisions to hospitals and nursing homes. But remember one thing: we are on your side on this issue. We DO NOT want to sue you.