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Posts Tagged ‘medical malpractice reforms’

Kansas Senate Distrusts Its Citizens To Decide Medical Malpractice Cases

Sunday, February 23rd, 2014

162017_132140396847214_292624_nOn February 19, 2014, the Kansas Senate passed Senate Bill 119 that would require that Kansas medical malpractice claims be initially filed with a three-member panel that would determine if the defendant(s) breached the applicable standard of care in rendering (or failing to render) medical care to the plaintiff(s) before victims of medical malpractice could file their medical malpractice cases in a Kansas court.

One change made to the original bill would make the panel’s determination inadmissible in a subsequent court proceeding if new substantial evidence was discovered after the panel rendered its decision.

The Republican-sponsored bill was passed along party lines, 23 to 13, shortly after the Health and Welfare Committee of the Kansas Senate voted 7 to 4 to approve the bill, which was sponsored by the Chairwoman of the Committee. The Senate bill, which had died in the Kansas House where the Democrats outnumber the Republicans, had passed out of the Health and Welfare Committee once before but was sent back to the Committee by the Senate leadership after a Democratic Senator, who criticized the bill as pandering to businesses, filed amendments to the bill, which were subsequently rejected by the Committee after a contentious debate.

Source

The Kansas Bill of Rights expressly states in unambiguous language, “The right of trial by jury shall be inviolate.” How does requiring a medical malpractice victim in Kansas to file his/her claim with a three-person panel for determination of a critical legal issue ensconced in the claim not violate the inviolate right of trial by jury?

Article Three of the Kansas Constitution provides, “The judicial  power  of this state shall be vested exclusively in one court of  justice, which shall be divided into one supreme court, district  courts, and such other courts as are provided by law … The district courts shall have such jurisdiction in their respective districts as may be provided by law.” How does empowering the medical malpractice panels with judicial decision-making power (i.e., determining the parties’ respective claims regarding the alleged breach of the medical standard of care under the circumstances) not violate the exclusivity of the courts specifically set forth in the Kansas Constitution?

Why does the Republican-led Senate so desperately seek to place time-consuming and costly roadblocks in the path of Kansans who seek to exercise their right to have a jury determine their claims involving the injuries and harms they allegedly suffered as a result of medical malpractice? Is it that the supporters of Senate Bill 119 in the Kansas Senate are inherently distrustful of the very constituents who voted them into office? Do they believe that ordinary citizens are not capable of fairly and honestly examining the evidence and hearing the testimony put before them when they serve as jurors determining medical malpractice cases in Kansas? Or is the reason for supporting the creation of pre-litigation panels to determine medical malpractice claims in Kansas more sinister: to protect the financial interests of a special group of people (negligent health care providers) at the expense (literally) of those injured by medically negligent doctors and other deficient health care providers in Kansas?

If you or a loved one suffered injuries or other serious harms as a result of medical malpractice in Kansas or in another U.S. state, you should promptly seek the legal advice of a Kansas medical malpractice attorney (or a medical malpractice attorney in your state) who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

Click here to visit our website or call us toll free at 800-295-3959 to be connected with Kansas malpractice lawyers or malpractice lawyers in your state who may assist you with your medical negligence claim.

Turn to us when you don’t know where to turn.

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Kentucky Lawmakers Looking To Pass Unnecessary Medical Malpractice Laws

Thursday, January 30th, 2014

162017_132140396847214_292624_nSome Kentucky lawmakers, with the backing, support, and legislative push of a vocal and powerful coalition of financially-interested health care groups, are setting their sights on pushing forward with their agenda of imposing unnecessary medical malpractice “reforms” that will benefit negligent health care providers at the expense of their malpractice victims, making it more costly and time-consuming for those injured by medical malpractice to seek just compensation for their injuries.

The coalition of boisterous proponents of laws protecting doctors and other health care providers from being responsible for the harms they negligently cause include the Kentucky Hospital Association, the Kentucky Medical Association, and the Kentucky Chamber of Commerce. The coalition denounces “meritless” medical malpractice lawsuits, which is one of the siren calls of the health care profession when deflecting the right of victims of medical malpractice to receive fair and just compensation for the harms they and their families have suffered as a result of medical negligence.

One proposal that Kentucky lawmakers are considering is requiring that medical malpractice panels made up of “medical experts” decide the claims of medical malpractice victims before the victims are allowed to have an impartial jury decide their cases. The unspoken justification for creating such medical malpractice panels to intercede in medical malpractice cases is that juries cannot be trusted in medical malpractice cases to be capable of deciding the issues in such cases.

Our response: we trust juries to decide criminal cases in which defendants may have their freedoms revoked, their bodies imprisoned for decades or for the remainder of their lives, or their lives snuffed out by capital punishment, but lawmakers do not trust these same juries to decide cases where it is alleged that medical malpractice harmed patients?

The President and CEO of the Kentucky Chamber of Commerce has been quoted as saying, “Now is the time for Kentucky to say enough is enough to the meritless lawsuits, which are having a huge impact on health-care costs.”

Our response: What are the facts in support of such an outlandish attack on medical malpractice victims? What is a “meritless lawsuit” and what are the statistics regarding meritless medical malpractice lawsuits in Kentucky? What, specifically, is the “huge impact” that “meritless medical malpractice lawsuits” has had in Kentucky? How many victims of medical malpractice in Kentucky have not received fair and just compensation for their injuries due to unfair and unjust laws in Kentucky?

Isn’t it time for the Kentucky legislators to protect the little guy harmed by medical malpractice instead of seeking to shield the small but powerful health care industry by cloaking medical providers with exclusive and unjustified protection from personal responsibility for harms they negligently cause their patients to suffer? Is Section 3 of the Kentucky Constitution inapplicable to negligent health care providers: “All men, when they form a social compact, are equal; and no grant of exclusive, separate public emoluments or privileges shall be made to any man or set of men, except in consideration of public services…”

Is Section 7 of the Kentucky Constitution ambiguous as it applies to medical malpractice cases: “The ancient mode of trial by jury shall be held sacred, and the right thereof remain inviolate, subject to such modifications as may be authorized by this Constitution.”

Source

If you or a loved one in Kentucky or elsewhere in the United States may have been injured or suffered other serious harms as a result of medical malpractice, you should promptly consult with a Kentucky medical malpractice attorney or a medical malpractice attorney in your state who may investigate your medical negligence claim for you and represent you in a medical malpractice case, if appropriate.

Click here to visit our website or call us toll-free at 800-295-3959 to be connected with Kentucky medical malpractice lawyers (or medical malpractice lawyers in your state) who may assist you with your medical malpractice claim.

Turn to us when you don’t know where to turn.

You can follow us on FacebookTwitterGoogle+, and LinkedIn as well!

Wronged By Another Without The Right To Recover

Monday, January 13th, 2014

162017_132140396847214_292624_nWhen a medical professional’s negligence or carelessness leads to the suffering of another, you would think that the innocent victim would be fairly and adequately compensated for the losses and harms he suffered. Not so, demand medical malpractice tort reformers. The reformers do not wish to discuss the unrelenting pain and permanent injury caused to victims of medical malpractice; they only insist upon limiting or eliminating the personal responsibility of the wrongdoers and protecting their financial interests.

Thirty eight years ago, California imposed a cap in the amount of $250,000 on the amount of noneconomic damages, such as pain and suffering, that people injured by medical malpractice in California could recover for their injuries, no matter the extent of the harm or the length of time the victim of medical malpractice would live with the harm. The cap has not been increased since it was established in 1975, despite the fact that the inflation-adjusted value of the $250,000 cap in 1975 dollars is now $1,070,074 ($250,000 in 1975 would be worth $58,407 in 2013).

Last year, various consumer protection groups came together to initiate an effort to have the cap increased. It did not take long for the doctors’ special interest groups and other health care lobbyist groups to loudly voice opposition to an increase in the cap. The California Medical Association, through its Associate Vice President of Public Affairs, called the effort to increase the California cap on noneconomic damages “an attack on physicians.” The President of the California Medical Association boldly cried, ”It will increase meritless lawsuits, which will increase lawyer fees, increase health care costs, decrease access to care and won’t do anything to improve the quality of medical care.” (He did not mention the life-long pain and suffering experienced by many medical malpractice victims.)

But what about the rights of those severely harmed due to medical negligence? How can the opponents of the rights of injured patients justify their special privileged treatment that places their profits over the harms they caused to their patients? How are efforts to make physicians who carelessly injure their patients responsible for the full extent of the harms they unnecessarily caused “an attack on physicians”?

As Benjamin Franklin warned a long time ago, “Justice will not be served until those who are unaffected are as outraged as those who are.” It is incumbent upon all of us, whether presently a victim of medical malpractice or not, to rise up against any effort to restrict or eliminate our long-established and deeply-held right to be made whole when the wrongdoing of another needlessly causes us harm. Simply remaining silent when the rights of others are under attack because we are not now affected is not an option. Remaining silent when the rights of medical malpractice victims to be adequately and fully compensated for their injuries and losses caused by the negligence of a medical provider will soon harm all of us when government officials, bolstered by our silence on this issue, are emboldened to take away other rights that we consider important to us.

Any law that restricts the rights of innocent victims of medical malpractice to be fairly and justly compensated for their losses is an unjust and unwise law: “Law without justice is a wound without a cure” (William Scott Downey). As the renowned Justice Learned Hand warned, “If we are to keep our democracy, there must be one commandment: thou shalt not ration justice.”

If you or a loved one have been injured or suffered other harms as a result of medical malpractice in the United States, click here to visit our website to be connected with medical malpractice lawyers in your state who may be able to assist you with your medical malpractice claim.

Turn to us when you don’t know where to turn.

You can follow us on FacebookTwitterGoogle+, and LinkedIn as well!

This Is Our 1,000th Consecutive Daily Blog

Thursday, November 28th, 2013

162017_132140396847214_292624_nToday, we proudly celebrate our 1,000th consecutive daily blog – we began daily blogging on March 5, 2011. Along the way, we have attempted to provide information that educates, illustrates, and explains the varied issues involving medical malpractice and health care in the United States. We have timely reported on medical malpractice verdicts and medical malpractice settlements throughout the United States. We have discussed varying efforts by states to restrict and redefine victim rights in medical malpractice claims. We have focused on emerging issues in medical malpractice laws. We have exposed the health care industry as an enormously profitable business that engages in extreme efforts to protect its own financial interests, even when its profit-interest is detrimental to patient health and well-being.

We are constantly reminded of the duality of health care in the United States (the devils and the saints, if you will): on the one hand, medical advancements achieved by deeply devoted and dedicated researchers have contributed to relieving the pain and disability of people suffering from acute injuries and chronic diseases. Drug research has led to medications and treatments that focus on previously terminal conditions and extend how long people can remain active and productive. Advancing medical technology has resulted in surgical robots that can better perform delicate and complicated surgeries, medical marvels that can more accurately and less dangerously analyze our bodies to detect conditions that can now be treated earlier and more effectively resulting in better outcomes for patients, and the introduction, use, and expansion of telemedicine that has brought the same level of medical care to rural patients that has been available to people fortunate to live in urban areas where large academic health care systems are at the forefront of medical research.

On the seedier and greedier side of health care in the United States, we continue to read on a weekly basis about large pharmaceutical companies, both here in the United States and abroad, that have been investigated by federal agencies and have been found to have negligently, and sometimes intentionally, lied about the effectiveness of their products or maliciously hidden the known risks and serious complications and harms caused by their products solely to line their corporate pockets with ill-gotten profits. Examples include large, international pharmaceutical companies that have settled fraud claims “without admitting liability to avoid the uncertainties of litigation” by paying millions of dollars in fines and restitution payments without having to face the consumers of their defective products who suffered sometimes fatal consequences from using their dangerous drugs.

We also learned about large health care corporations that marketed their artificial hip and knee implants that were defective and harmful to the patients who relied on their promises of a better quality of life once they received the life-changing devices, only to learn later that the implants they received were known at the time they received them to be defective in some serious manner  – now, they live in greater pain and with greater disability than before they were implanted with the harmful medical products.

We also read about physicians, other health care providers, and so-called durable medical equipment providers (those who sell wheelchairs, walkers, bedside commodes, and home medical supplies) who have been fraudulently billing Medicare and Medicaid for medical goods not provided, poor quality medical goods, or they have illegally paid Medicare recipients so that they can bill Medicare under their names and Medicare numbers for unnecessary medical resources that end up costing taxpayers billions in unnecessary health care costs annually and prevent the limited supply of medical resources from reaching those who deserve and need them the most.

Other examples of health care fraud include cardiac surgeons who attempt to justify implanting stents in people who do not need them by intentionally misrepresenting the extent of blockages in coronary arteries, surgeons who cause unintended injuries during surgery (such as damaging or removing a healthy organ) but fail to mention or outright lie about the event in the medical records or in face-to-face conversations with the patient or the patient’s family, medical providers who “upcode” the services they provided so that they undeservedly get paid at a higher rate by Medicare or the patient’s health insurance company, and health care providers who alter medical records to cover up their wrongdoings and shortcomings (we have blogged about criminally incompetent physicians and surgeons who have been allowed to continue to harm their patients despite their employers or supervisors knowing that patients were suffering or dying unnecessarily).

In our blogs we have tried to shed light on the ever-expanding and increasingly powerful health care industry in the United States and its well-paid and influential lobbyists on the federal, state, and local levels, who have obfuscated the medical malpractice issues in the United States. The health care industry has led a laser-sharp effort to blind people from awareness and understanding of the causes and cures for medical malpractice by attempting to focus the ire of the public on the innocent victims of medical malpractice. For example, the mantra of the health care industry’s attack on the rights of medical malpractice victims to be fairly compensated for their injuries caused solely by the medical negligence committed by their medical providers focuses on the visceral, unsupported charge that ”frivolous lawsuits,” “runaway juries,” and “greedy plaintiff’s attorneys” are causing medical malpractice insurance rates to skyrocket, which studies have shown to be false.

When was the last time you read a press release from the health care industry disclosing its efforts to weed out incompetent or dangerous medical providers, its efforts to protect patients from medical malpractice, or even an acknowledgement that there are bad doctors making bad decisions causing patients to suffer bad injuries or death and who are substantially contributing to an increase in medical malpractice insurance premiums paid by competent and diligent medical providers?

Perhaps the most serious issue faced by patients whose lives (and the lives of their families) have been devastated by the consequences of medical malpractice is so-called “tort reform” (also referred to as “medical malpractice reform”) that is viciously championed by the health care industry as necessary to protect medical care in the United States. The term “reform” is employed because “reform” implies improvement; however, medical malpractice tort reforms such as caps (limits) on compensation that can be recovered by those who are most seriously injured as a result of medical malpractice (such as a newborn who suffers permanent brain damage because of medical negligence or the teenager who will be unable to walk and will remain in a wheelchair for the rest of his life because a medical provider negligently failed to timely diagnose his serious medical condition), unnecessary legal obstacles imposed on medical malpractice victims’ rights to obtain adequate, fair, and timely compensation for their losses caused by medical malpractice, and overly-restrictive limits on who may testify as medical experts in medical malpractice claims have spread like a cancer to harm those whom the judicial system was historically intended to protect.

Reform laws designed to protect the financial interests of physicians who provide incompetent care that destroy patient lives cause those who have been severely injured by medical malpractice to be victimized twice — first, by the incompetent medical provider who had the sole ability to avoid the unnecessary harm caused to the patient, and then a second time, by the laws that protect and promote bad medical care. Why should a small group of influential, powerful, and wealthy individuals be provided special protection by laws that benefit them  but harm the rest of us?

Too often we get calls from the victims of medical malpractice or their families who are shocked to learn that the medical malpractice laws in their state unfairly restrict their rights to obtain fair and reasonable compensation for the serious and life-shortening injuries they suffered as a result of the clear medical negligence committed by their medical providers. Many are shocked to learn that incompetent doctors and bad hospitals can hide behind bad laws that subverted their rights so that the health care industry in their state could further profit and prosper. Many question out loud who will pay for their future medical care that will be required solely because of medical negligence (as a public policy consideration, should Medicare or Medicaid, which are funded by taxpayer dollars, be responsible to pay for future medical expenses related to medical malpractice or should the negligent medical provider (or his/her insurance company) be saddled with that responsibility?).

We will continue to participate in the efforts to protect the interests of the innocent victims of medical malpractice and their families by continuing to blog about important medical malpractice and health care issues that may now or in the future affect you, your family, and your community.

If you or a loved one may have been injured or suffered other harms as a result of medical malpractice in the United States, you should promptly seek the legal advice of a medical malpractice attorney in your state who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

Click here to visit our website or call us toll-free at 800-295-3959 to be connected with medical malpractice lawyers in your state who may assist you with your malpractice claim.

Turn to us when you don’t know where to turn.

You can follow us on FacebookTwitterGoogle+, and LinkedIn as well!

New Hampshire Effort To Modify Unfair Medical Malpractice Tort Reforms

Wednesday, October 30th, 2013

162017_132140396847214_292624_nThe New Hampshire House Judiciary Committee recently voted 9 to 7 to support changing New Hampshire’s ”early offer” law in medical malpractice claims that health care lobbyists pushed through the New Hampshire Legislature in 2012. Despite the New Hampshire Governor’s veto of the early offer legislation, the New Hampshire House of Representatives and Senate overrode the veto and the law was enacted, effective January 1, 2013.

Source

The part of the early offer law that most concerns victims of medical malpractice in New Hampshire is the very real risk that the innocent victim of malpractice will be responsible for the medical malpractice defendant’s attorney’s fees and costs if the victim invokes the early-offer process but then rejects the offer received as inadequate.

The current New Hampshire early-offer law provides:

519-C:2 XII. A claimant who rejects an early offer and who does not prevail in an action for medical injury against the medical care provider by being awarded at least 125 percent of the early offer amount, shall be responsible for paying the medical care provider’s reasonable attorney’s fees and costs incurred in the proceedings under this chapter. The claimant shall certify to the court that bond or other suitable security for payment of the medical care provider’s reasonable attorney’s fees and costs has been posted before the court shall consider the case.

Source

The proposed changes to New Hampshire’s early-offer law are contained in amended HB 582 that would remove the provision that medical malpractice victims would be responsible for the medical malpractice defendant’s attorney’s fees and costs, it would remove references to any waiver of the right to sue that is signed within 60 days of the medical malpractice incident, and it would provide medical malpractice victims with 45 days (instead of the current 5 business days) to decide whether to accept the early offer, reject the early offer, or request that a hearing officer examine the offer and determine whether it meets all of the legal requirements. (The original HB 582 would have repealed the early offer provisions in medical malpractice claims in their entirety, effective January 1, 2014.)

Source

From the inception of the United States and throughout its storied history (until recently), it was a universally-held, basic premise of tort law that individuals who negligently caused injuries to others were held responsible for the resulting harms (that responsibility would be satisfied by paying monetary compensation in an amount that was agreed upon by the parties or, if the parties could not agree to an amount of fair and adequate compensation, the amount awarded by juries whose unbiased and disinterested members were selected from the communities in which the parties resided or where the wrong-doing occurred).

Then, within the last several decades, the vast and powerful health care industry with its substantial financial resources and the open-door political access enjoyed by its well-placed and highly-paid lobbyists, engaged in coordinated but deceptive efforts to convince the public and their state representatives that physicians, hospitals, and other health care providers required special and unique protection from the foreseeable results of their negligent acts and omissions that caused catastrophic and life-long debilitating injuries to their victims. They argued that they should not be fully responsible for the consequences of their incompetence or negligence that was solely in their power to avoid or prevent because fairly and adequately compensating their medical malpractice victims would cost them money (their arguments initially focused on their increasing cost of medical malpractice insurance that resulted, only in part, from the harms they caused).

The public did not question or object to the health care industry’s scorched-earth tactics (warning that “the sky is falling” because the public will not be able to obtain medical care “when” their doctors flee their practices because of increasing medical malpractice insurance premiums) and misrepresentations regarding “frivolous lawsuits” (medical malpractice plaintiff lawyers do not engage in frivolous medical malpractice representation because their attorneys’ fees are typically contingent on a recovery) and “defensive medicine” costing Americans unnecessary millions in health care costs (we doubt that many patients complain that medical tests ordered by their physicians come back as “negative”).

What is the result of the public’s inaction when their rights are being trampled? When they or their family members are severely and permanently injured as a result of the medical negligence of their medical providers, they must encounter more hurdles, higher hurdles, and a brick wall when seeking the compensation that they should be entitled to receive. So-called medical malpractice reforms include such draconian and harmful measures such as caps (limits) on the amount of damages that the most seriously injured medical malpractice victims may recover (some states limit noneconomic damages in medical malpractice claims to $250,000: is $250,000 sufficient to compensation a young, formerly healthy and active child who will be in a wheelchair for the rest of his life and needs assistance to get into and out of bed, to feed himself, to dress himself, to clean himself, and to go to the bathroom, solely because his doctor or other medical provider was careless?) and unnecessary and costly procedural hurdles that must be overcome before a jury can hear and decide their medical malpractice claims.

If you or loved one were injured or suffered other harms as a result of medical malpractice in New Hampshire or in another U.S. state, you should promptly contact a New Hampshire malpractice attorney or a malpractice attorney in your state who may investigate your malpractice claim for you and represent you in a medical malpractice case, if appropriate.

Click here to visit our website or call us toll-free (800-295-3959) to be connected with New Hampshire medical malpractice lawyers (or medical malpractice lawyers in your state) who may assist you with your malpractice claim.

Turn to us when you don’t know where to turn.

You can follow us on FacebookTwitterGoogle+, and LinkedIn as well!

“We Have Nothing To Fear But …. Ourselves”

Sunday, June 23rd, 2013

162017_132140396847214_292624_nOne of the most memorable of all of the Presidential Inaugural Addresses is from President Franklin D. Roosevelt’s Inaugural Address that was broadcast on March 4, 1933, when the Great Depression had reached its greatest depth, at which time President-elect Roosevelt pronounced the biggest challenge facing our nation: ”Our greatest primary task is to put people to work.”

The most memorable quote from President Roosevelt’s 1933 Inaugural Address was “… let me assert my firm belief that the only thing we have to fear is fear itself …” President Roosevelt realized that fear can paralyze a nation – at a time when our nation was facing so many problems that seemed insurmountable, it was President Roosevelt who was spurring the country out of inaction and dispelling a collective spectre of doom.

Now, 80 years later, we face a similar crisis, but this time it is with regard to the important right granted to each of us to seek and obtain redress for wrongs we suffer as a result of the negligence of others. In particular, a well-financed but misguided effort by the powerful and wealthy healthcare industry over the past two decades in many U.S. states has resulted in so-called “tort reforms” being implemented that have placed arbitrary and harmful caps (limits) on the amount of non-economic damages (pain, suffering, mental anguish, disfigurement) that innocent victims of medical malpractice may recover from medical malpractice wrongdoers.

Medical malpractice victims in those states that have implemented medical malpractice tort reforms have been harmed twice: first, by their careless healthcare providers and then by their state laws that prevent them from being fully compensated for their losses.

Instead of identifying, addressing, and solving the causes of medical malpractice, such as poorly trained medical providers, medical errors, medical mistakes, failures to follow policies and procedures designed to eliminate medical mistakes, etc., the healthcare industry in the United States instead has focused on the other side of the medical malpractice equation: medical malpractice victims – those who suffer harms at the hands of medically negligent health care providers.

The healthcare industry’s efforts aimed at medical malpractice tort reform remind us of the case from several years ago when a morbidly obese man sued fast-food purveyor, McDonald’s, for selling him unhealthy high-fat foods in quantities that were well-above the recommended serving size, over the period of many years. Instead of accepting full responsibility for his own actions that were the cause of his obesity, he sought to place blame on another that had no control over his eating habits.

Isn’t that what the healthcare industry in the United States has been doing with regard to medical malpractice? The health care providers who commit medical malpractice are exclusively and solely in control of their actions and omissions and they can avoid harming their patients by simply providing that level of care and treatment that their medical peers have established as the standard of care under the circumstances. By attacking the victims of medical malpractice by preventing them from being fully compensated for their losses due to medical malpractice, the healthcare industry is like the obese man, trying to deflect accepting full responsibility for its own shortcomings.

Nonetheless, until each and every one of us stands up to and opposes the efforts of the healthcare industry to implant the fear into the minds of our citizens that fully and fairly compensating medical malpractice victims for their actual injuries and harms will cause the rest of us to be harmed (such as doctors leaving their medical practices because of their irrational fear of medical malpractice lawsuits leading to the unavailability of medical services), we will blindly accept this fear that harms our families and neighbors.

We do have a legitimate fear, though - a fear that people will not wake up to the erosion of their right to be made whole when others cause them permanent and severe injuries due to medical malpractice. Once tort reform measures eviscerate our right to hold medically negligent doctors fully responsible for their actions and omissions that injure their patients, our fear will be realized.

If you or a family member are the victim of medical malpractice in the United States, you should promptly contact a local medical malpractice attorney in your state before it may be too late.

Click here to visit our website or call us toll-free at 800-295-3959 to be connected with medical malpractice lawyers in your state who may agree to investigate your medical malpractice claim for you and represent you in a medical malpractice lawsuit, if appropriate.

Turn to us when you don’t know where to turn.

You can follow us on FacebookTwitterGoogle+, and LinkedIn as well!

Oklahoma Supreme Court Finds Medical Malpractice Expert Affidavit Requirement Unconstitutional

Wednesday, June 5th, 2013

162017_132140396847214_292624_nOn June 4, 2013, the Supreme Court of the State of Oklahoma (“Oklahoma Supreme Court”) held that the Oklahoma statutory requirement that an affidavit of merit be filed in actions for professional negligence (medical malpractice) is a “special law” that regulates the practice of law that violates the Oklahoma Constitution’s prohibition regarding special laws (Okla. Const. art. 5, Section 46) and is also an unconstitutional financial burden on access to the courts, in violation of the Oklahoma Constitution (Okla. Const. art. 2, Section 6).

Oklahoma’s Prohibition Against “Special Laws”

Title 12 O.S. 2011 Section 19 provides that in civil actions for professional negligence (medical malpractice), the plaintiff must attach an affidavit from an expert, thereby creating two classes of litigants – those who file civil actions for professional negligence and those who file civil actions for negligence generally. The Oklahoma Constitution specifically prohibits the Oklahoma Legislature from enacting special laws dealing with twenty-eight subject areas, including special laws “Regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts…”

A special law confers some right or imposes some duty on some but not all of the class of those who stand upon the same footing and same relation to the subject law. A special law does not embrace all the classes that it should naturally embrace and creates preference and establishes inequality.

The Oklahoma Supreme Court held that Section 19 “creates a new subclass of tort victims and tortfeasors known as professional tort victims and tortfeasors. In doing so, it places an out of the ordinary enhanced burden of these subgroups to access the courts by requiring victims of professional misconduct to obtain expert review in the form of an affidavit of merit prior to proceeding, and it requires the victims of professional misconduct to pay the cost of expert review. It does establish an impermissible special law regulating the practice of judicial proceedings before the courts.”

Unconstitutional Burden On Access To The Courts

The Oklahoma Constitution states in article 2, Section 6, “The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice.”

The Oklahoma Supreme Court noted that “while reasonable fees to defray the cost of litigation are not a violation of the right of citizens to access the courts [such as the $349.00 jury fee imposed by Oklahoma statute, which the Oklahoma Supreme Court previously found to be "very close to crossing the line of being an unconstitutional burden on accessing the courts"], the costs associated with obtaining affidavits of merit go beyond the bounds of reasonableness [the Oklahoma Supreme Court noted that the cost of obtaining a professional's opinion to support the affidavit of merit requirement could range between $500.00 and $5,000.00]” and as such “they create an impermissible hurdle unconstitutionally restricting the right of citizens to access the courts in violation of art. 2, Section 6 of the Oklahoma Constitution.”

Source Timothy Wall v. John S. Marouk, D.O., No. 109,005.

If you, a family member, a friend, or someone you know may have suffered serious injuries or other harms as a result of medical malpractice in Oklahoma or in another U.S. state, you should promptly seek the advice of an Oklahoma medical malpractice attorney or a medical malpractice attorney in your state who may be willing to investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

Click here to visit our website to be connected with Oklahoma medical malpractice lawyers or medical malpractice lawyers in your state who may be able to assist you with your medical malpractice claim, or call us toll free at 800-295-3959.

Turn to us when you don’t know where to turn.

You can follow us on FacebookTwitterGoogle+, and LinkedIn as well!

Federal Effort Aimed At Reducing Medical Malpractice Incidents In The U.S.

Monday, June 3rd, 2013

162017_132140396847214_292624_nOn September 9, 2009, President Obama directed the Secretary of the U.S. Department of Health and Human Services (“DHHS”) to establish an initiative to help U.S. states and health care systems test models to meet the goals of putting patient safety first and working to reduce preventable injuries, fostering better communication between doctors and their patients, ensuring that patients are compensated in a fair and timely manner for medical injuries (while also reducing the incidence of “frivolous” lawsuits), and reducing medical malpractice liability premiums.

In response, the Agency for Healthcare Research and Quality (“AHRQ”) announced in June 2010 the Medical Liability Reform and Patient Safety Initiative with funding in the amount of $23.2 million for seven, three-year demonstration grants, thirteen one-year planning grants, and a contract to evaluate the initiative and its projects.

The AHRQ recently provided a progress report regarding the efforts that focus on one or more of the following categories of patient safety and medical liability reform innovations: Preventing Harm Through Best Practices (through projects that seek to improve care in clinical areas that frequently are the subject of a large number of medical malpractice claims); Improving Communication With Patients (through projects that seek to understand how health care providers can best communicate medical errors and incidents of medical negligence to patients and their families so that all involved understand the situation and their options for prompt and fair resolution); and, Alternative Methods of Dispute Resolution (through projects that seek to improve dispute resolution after a malpractice claim has been filed and by investigating new methods for negotiating settlements that may prevent protracted legal battles that delay resolutions for patients and their families).

Examples Of  Some Of The Projects

One of the projects that received $2,982,690 in grants in the category Preventing Harm Through Best Practices that runs from July 1, 2010 to June 30, 2013 has as its stated objective to improve perinatal (the period prior to and just after birth) patient safety and demonstrate the relationship between improved patient safety and a reduction in the number of malpractice claims by extending a national collaborative that aims to reduce preventable birth-related injuries by implementing and evaluating the use of perinatal best practices in 16 hospitals in 12 States. The best practices are designed to significantly lower the incidence of certain infrequent but serious injuries that could result in a wide range of harmful outcomes, including birth asphyxia or permanent neurologic disability. So far, the preliminary results from this project show that all participating hospitals have demonstrated high compliance with the improvement interventions, resulting in a significant reduction in the number of adverse events.

One of the projects that received $2,998,083 in grants in the category Improving Communication With Patients that runs from July 1, 2010 to June 30, 2013 has as its stated objective to obtain evidence regarding the impact on patient safety and litigation rates of programs that feature improved communication with patients, disclosure of adverse events, early offers of compensation to patients that have been harmed, and learning from mistakes. The process involves the so-called “Seven Pillars” program, which consists of improved event reporting, event investigation, communication with patients, an apology and correction of the problem, investigation of findings, data collection, and education and training of staff.

One of the projects that received $2,999,787 in grants in the category Alternative Methods of Dispute Resolution that runs from July 1, 2010 to June 30, 2013 has as its stated objective to protect surgery patients from injuries caused by providers’ mistakes and reduce the cost of medical malpractice through the use of an expanded and enhanced “judge-directed negotiation” program currently used in New York’s courts, coupled with a new hospital early disclosure and settlement model. Under this model, a judge with expertise in medical malpractice matters becomes the point person when a plaintiff files a medical malpractice lawsuit, supervising the entire process and convening the parties to discuss the case and help broker a settlement. The judge facilitates the negotiations but does not impose a settlement amount; the plaintiff may move ahead with a medical malpractice lawsuit if the parties do not agree on a settlement. So far, the preliminary results from this project show that judge-led conferences have not encountered any major obstacles, and far more judges signed up for training than initially expected. Attorneys have been receptive to a more hands-on approach to discovery and are very open to early settlement negotiations. Defense attorneys have demonstrated improved communication with hospitals and carriers regarding early case conferences.

Source

If you or someone you know may have suffered injuries as a result of medical malpractice in the U.S., you should promptly seek the advice of a local medical malpractice attorney in your state who may be willing to investigate your possible medical malpractice claim for you and file a medical malpractice claim on your behalf, if appropriate.

Click here to visit our website to be connected with medical malpractice lawyers in your U.S. state who may be able to assist you with your medical malpractice claim, or telephone us toll free at 800-295-3959.

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Doctors Wrongfully Punished Their Own: Medical Society Is Successfully Sued By Its Member

Wednesday, April 3rd, 2013

162017_132140396847214_292624_nOn March 28, 2013, a federal judge for the United States District Court for the District of Pennsylvania denied the motion of the American Academy of Orthopaedic Surgeons/American Association of Orthopaedic Surgeons  (“AAOS”) to set aside the $196,000 jury verdict against it that was in favor of one of its members. The jury’s April 12, 2011 verdict determined that AAOS engaged in tortious conduct by portraying one of its members in a false light when it published an article in which it gave the impression that its member wrote a misleading report, implying that the member had information that he intentionally omitted at the time he prepared a draft report for lawyers representing a medical malpractice plaintiff. The federal judge concluded that a reasonable jury could find that the AAOS article gives the false impression through manipulation of facts that the member was dishonest, reckless, or an inaccurate expert, which would be highly offensive to a reasonable person.

The member (“expert”) is a board certified orthopaedic surgeon who maintains an active orthopaedic clinical practice, has provided forensic orthopaedic consulting services, and has served as an orthopaedic expert witness since 1985. He had been retained by the lawyers representing a medical malpractice plaintiff in a medical malpractice claim against another member of AAOS (“Defendant member”). The expert submitted a report that he explicitly marked as “DRAFT REPORT” to the plaintiff’s medical malpractice lawyers that summarized his preliminary opinions based on the records he had been provided regarding the care that the Defendant member had provided to the medical malpractice plaintiff. The expert was never asked to provide a final report, he was not provided with additional records or information, and he was unaware that the plaintiff’s lawyers had removed the words “DRAFT REPORT” from his preliminary report and that the draft report was used by them during settlement negotiations.

Some AAOS History And Its Procedures

In 2002, the AAOS Board of Directors created the AAOS Expert Witness Program under the direction of the Expert Witness Project Team in response to what the orthopedic community perceived to be a “medical malpractice crisis.” A member of the Expert Witness Project Team identified the crisis as high jury awards in medical malpractice cases resulting in high premiums for medical malpractice insurance. One goal of the Expert Witness Project Team was “[t]o be responsive” to the desire of members to effectively address “the ‘Expert Witness Problem’ through various methods and strategies.”

When a complaint is made by one of its members that another member has violated the AAOS Standards of Professionalism, the AAOS Committee on Professionalism reviews the materials submitted by the grievant and may further investigate to determine whether the grievance is appropriate for committee review. If determined to be so, the Chair of the AAOS Committee on Professionalism creates a hearing panel consisting of Committee on Professionalism members to conduct a hearing and make a recommendation regarding discipline, which can be appealed to the AAOS Judiciary Committee, which will then hold a hearing and make a recommendation. The two recommendations are reviewed by the AAOS Board, which makes the final determination regarding discipline, for which there are three levels of discipline: censure, suspension, and expulsion.

The Chair of the AAOS Committee on Professionalism is an orthopaedic surgeon who stopped performing surgery in order to focus on treating patients and serving as an expert in workers compensation cases on behalf of insurance companies. Since February or March 2009, he has served as the Chair of the AAOS Council on Advocacy that handles lobbying in Washington D.C. for medical liability reform. He is also involved in the AAOS Political Action Committee, which makes political contributions to members of Congress. He also served as a member of the AAOS Expert Witness Project Team.

The AAOS Proceedings Against The Expert

On April 21, 2008, the expert received notice from AAOS that a Grievance was filed against him by the Defendant member for alleged violations of AAOS Standards of Professionalism on Orthopaedic Expert Witness Testimony in connection with his expert report. The AAOS Committee on Professionalism conducted an evaluation of the grievance and found sufficient grounds to hold a hearing. The expert was provided a copy of his report with the words “DRAFT REPORT” deleted and brought that to the attention of the Committee. Nonetheless, the Committee determined that the expert “gave false testimony, was not fair and impartial, failed to evaluate the care at issue in light of generally accepted standards, and did not exhibit knowledge about the standard of care for the condition at issue.”

The Committee recommended that the expert be suspended from AAOS membership for two years, which punishment was upheld by the AAOS Judiciary Committee and the AAOS Board of Directors. Thereafter, the AAOS published an article about the expert’s suspension in the September 2009 issue of AAOS Now, an AAOS publication available to members in hard copy and to the public and members electronically on the AAOS website.

The Harm Caused By The Suspension And The AAOS Now Article

Before his two-year suspension, the expert did forensic work in medical malpractice cases for law firms located in Alaska, Hawaii, Nevada, New Mexico, New York, Pennsylvania, Puerto Rico, Texas, and Utah. His name was widely disseminated in the legal community because he was one of few experts willing to testify on behalf of plaintiffs against other orthopaedic surgeons. He was also retained by insurance carriers as a defense expert in personal injury actions.

After the expert was suspended from the AAOS and the AAOS Now article was published, a significant change in the expert’s business occurred. His client base diminished and not one of his 500 attorney and insurance carrier clients has retained him since the publication of the article. Prior to the publication, he did work for Allstate Insurance, USAA Insurance, and Travelers Insurance. After the publication, these insurers refused to retain him. His annual loss associated with these three insurance companies is approximately $500,000. Furthermore, since the AAOS Now article was released, every time the expert testifies as an expert witness, he is questioned about his suspension from the AAOS.

The law applicable to the expert’s false light claim is as follows: One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy if (a) the false light claim in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

The federal judge in the expert’s case against the AAOS determined that “[v]iewing all this evidence in the light most favorable to Plaintiff, a reasonable jury could conclude that Defendant [member] acted with knowledge or with reckless disregard of the fact that the article created a false impression of [the expert]. Accordingly, the evidence was sufficient to prove the false light claim, and there is no basis to set aside the jury’s verdict.”

Steven R. Graboff, M.D. v. The Colleran Firm, et al., Civil Action No. 10-1710.

If you or a loved one were injured by an orthopedic surgeon or other medical provider, you should promptly seek the advice of a local medical malpractice attorney regarding your rights and responsibilities in bringing a medical malpractice claim for the injuries and harms that you suffered.

Click here to visit our website or telephone us toll-free at 800-295-3959 to be connected with medical malpractice lawyers in your U.S. state who may be able to assist you with your medical malpractice claim.

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Today’s Blog Celebrates Two Years Of Consecutive Daily Blogging

Monday, March 4th, 2013

162017_132140396847214_292624_nToday we have reached the milestone of two years of consecutive daily blog postings. Tomorrow, we start our third year and we look forward to keeping our readers current with regard to medical malpractice issues and interesting relevant medical news. We have learned a lot while researching the topics that have appeared in our 731 consecutive daily blogs (2012 was a leap year) and we have never been at a loss for finding interesting and relevant topics to blog about.

Nonetheless, we are constantly amazed how the negligence, incompetence, recklessness, and, in some cases, intentional acts of health care providers have led to terrible and permanent injuries that have affected not only the victims of medical malpractice whose lives have been changed forever through no fault of their own, but have also devastated victims’ families that are now overburdened with past and future medical expenses related to the medical malpractice injuries, the loss of the emotional and financial support from the victims of medical malpractice that they had previously provided to the family, and the forever-altered family life where the daily and long-term heartaches and suffering now overwhelm the family’s happiness, security, comfort, and connectedness that pre-dated the medical malpractice incident.

We continue to be amazed at the extent to which many states have arbitrarily, unfairly, unjustly, and unconscionably limited the right of innocent medical malpractice victims to be fully compensated for their losses, including their life-long pain, suffering, and emotional injuries resulting from medical malpractice. Many states have placed artificial limits on so-called non-economic damages that further injure medical malpractice victims and at the same time protect health care providers who failed to provide their victims with the minimum level of care that their professional colleagues determined to be required to comply with the standard of care under the circumstances.

For example, California limits the amount of non-economic damages (pain, suffering, inconvenience, physical impairment, disfigurement, and other nonpecuniary damages) to $250,000, no matter the age of the medical malpractice victim (it does not matter if the victim was nine or ninety when the malpractice occurred), the extent of the injuries (it does not matter if the victim suffered a broken bone or suffered quadriplegia as a result of medical malpractice), or the amount of the pain and suffering (it does not matter if the victim suffered limited pain and suffering for a limited period of time or will live with constant pain, at a pain level of ten-out-of-ten, for years or even decades into the future). California Civil Code Section 3333.2.

Many of the states that have implemented so-called “tort reforms” that solely benefit negligent medical providers at the expense of medical malpractice victims expressly preclude jurors who judge medical malpractice cases from being told about the limits on the amount of damages that medical malpractice victims will receive no matter the extent of their injuries and suffering and no matter the amount of damages that the juries may determine to be fair compensation. We are amazed that ordinary citizens remain silent when health care lobbyists spend vast amounts of money to influence legislative efforts to impose further and more draconian tort reform laws that harm people and their families. Why are citizens not outraged when their lawmakers tell them that they cannot be trusted to be told about the laws that affect their lives and their decisions?

For instance, Maryland’s medical malpractice law specifically states that juries are precluded from being told about the Maryland limit (cap) on non-economic damages in medical malpractice cases: “In a jury trial, the jury may not be informed of the limitation…”   Annotated Code of Maryland, Courts and Judicial Proceedings Article, Section 3-2A-09(c)(1).

Laws are supposed to protect those whose rights may otherwise be trampled by more-powerful and influential individuals and entities. Laws are onerous when they subvert the rights of the many to protect the purely financial interests of the few. The importance of the law’s intent to treat people equally and justly can be gleaned from the Preamble to the U.S. Constitution: “We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

Justice for everyone and the general welfare of all cannot possibly be achieved when medical malpractice laws are imposed that unjustly and arbitrarily target the innocent victims of medical malpractice while providing medical malpractice wrongdoers with imputiny and granting them immunity from being held fully responsible for the harms they caused others through their negligent acts and/or negligent omissions.

If you or a loved one may be the victim of medical malpractice within the United States, you should promptly consult with a local medical malpractice attorney to learn about your rights and responsibilities.

Click here to visit our website or call us toll-free at 800-295-3959 to be connected with medical malpractice lawyers in your state who may be willing to investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

Turn to us when you don’t know where to turn.

You can follow us on FacebookTwitterGoogle+, and LinkedIn as well!