States

September 27, 2008

Medical Malpractice Informed Consent Lawsuit in Kentucky: Are Punitive Damages Warranted?

Medical malpractice lawyers filed an informed consent lawsuit last week accusing a doctor of amputating a man’s penis without his consent. In the lawsuit, a Kentucky man alleges that the doctor was only authorized to perform a circumcision. What happened—right or wrong – was the doctor did what he thought he should, to save the patient’s life when he found cancer during the operation.

I won’t prejudge this lawsuit without hearing the evidence. I can certainly imagine a scenario where a doctor finds cancer during a routine operation and does what the doctor believes he must do to save the patient. The Plaintiff affirmed the doctor’s prerogative in this regard by signing a consent form acknowledging that unforeseen conditions discovered during the circumcision “may necessitate additional or different procedures.” But I would reserve judgment on the merits of the case because it really depends on whether reasonable minds could differ as to what was the appropriate course.

But I find disturbing that the lawsuit seeks punitive damages. Unless facts in the case exist that were not included in the Courier-Journal article I read, there is no malice or even recklessness in a doctor – right or wrong – deciding to save a patient’s life.

August 20, 2008

First Bad Faith Car Accident Insurance Claims in Maryland

by Ronald V. Miller, Jr.

Bob Zarbin and Jim MacAlister write a telling article in this month’s journal of the Maryland Trial Lawyers Association about Maryland’s new bad faith law. The authors note that the avalanche of bad faith claims the insurance companies said were coming down the pike with Maryland’s new bad faith law was actually only 12 in the first quarter of the 2008 and only 12 all last year.

Similarly, on the medical malpractice front, Maryland malpractice insurers claimed the sky was falling one minute and the next they are declaring $74 million profit to their doctor shareholders and lowering malpractice insurance rates. The legislative process requires that the viewpoints of all stakeholders. But can we at least make sure we put the proper discounted value on “the sky is falling” on the next go around? I’m hoping the next go around includes a revised bad faith law with more teeth than mere costs and expenses.

In the same issue, Kevin Goldberg, who is with Goldberg, Finnegan & Mester in Silver Spring, Maryland, writes a great article laying out a great checklist of avenues to explore when you have a catastrophic accident and what appears to be limited coverage.

August 12, 2008

Res Ipsa in Medical Malpractice Case in Missouri: A New Rule

by Ronald V. Miller, Jr.

The Missouri Supreme Court ruled in Sides v. St. Anthony’s Medical Center, that plaintiffs in a medical malpractice case in Missouri may rely on an expert’s opinion that the injury would not have happened in the absence of the defendant’s negligence even without a specific proof of a negligent act.

Facts of Sides v. St. Anthony’s

The patient underwent a lumbar laminectomy with spinal fusion and was discharged three days later. Later on, she filed a lawsuit against both the surgeon and the hospital, alleging that she contracted an E. coli infection during the surgery.

August 1, 2008

North Dakota Wrongful Death Settlements and Verdicts

by Ronald V. Miller, Jr.

This page will explain North Dakota wrongful death lawsuits and their settlement value. We will explain how the North Dakota wrongful death statute works and who is eligible to bring a wrongful death lawsuit and get settlement compensation. We also explain the second cause of action in death cases, a survival action which provides a second path of compensation for the victim’s family

North Dakota Wrongful Death Law

Like all states, North Dakota has statutory laws that govern wrongful death claims. Wrongful death claims are civil actions that are filed when one party’s negligence, misconduct, or criminal action results in the death of another. Understanding North Dakota’s wrongful death laws can help survivors make informed decisions when seeking justice.

May 14, 2008

New York Medical Malpractice Lawyer Cap on Fees

by Ronald V. Miller, Jr.

New York limits an attorneys medical malpractice contingent fee in a medical, dental or podiatric malpractice case to 30 percent of the first $ 250,000 of the sum recovered; 25 percent of the next $ 250,000 recovered; 20 percent of the next $ 500,000 recovered; 15 percent of the next $ 250,000 of the sum recovered; 10 percent of any amount recovered over $ 1,250,000.

While contingency fees vary from malpractice lawyer to malpractice lawyer, 40% is a common fee in medical malpractice cases. So if a case settles, or the plaintiff gets a verdict for $1,000,000, the attorneys’ fees, in many cases, is $400,000. In New York, when a malpractice case recovers $1,000,000, the malpractice lawyer’s fee is limited to $225,000.

If you are not a malpractice lawyer, you might think that this is not a bad payday for a single case. You are right. But the problem is that plaintiffs’ medical malpractice lawyers lose most cases. When a lawyer loses a case, he might lose $100,000 or more in out-of-pocket costs. This discourages many good lawyers from handling medical malpractice cases.

March 13, 2008

Delaware Law on Admissibility of Photographs in Car Accident Cases

by Ronald V. Miller, Jr.

Most jurisdictions leave the judge’s discretion whether to admit photographs from a car accident for the purpose of demonstrating the extent of the injuries of the occupants of the car. In Davis v. Maute, 770 A.2d. 36 (Del. 2001), the Supreme Court of Delaware took a minority view, holding that a party in a car accident may not directly argue that the seriousness of the injuries from an auto accident correlates to the extent of the damage to the cars, unless there is testimony from an expert witness that makes a correlation.

Accordingly, lawyers in Delaware may not argue by implication what the lawyer could not argue indirectly and attempt to suggest that the lack of property damage reflects the minor injuries.

This is great for Delaware plaintiffs’ lawyers in car accident cases who have minor property damage and claim injuries. Still, our lawyers prefer the majority rule because if you have a serious injury/serious impact case, you want to get the pictures to the jury to show the severity of the injuries and the Davis v. Maute holding can backfire on plaintiffs.

January 9, 2008

Cost of Obtaining Medical Records in Florida

by Ronald V. Miller, Jr.

The Orlando Sentinel reports that Florida Medical Association is asking the Florida legislature to change the law to increase what doctors may charge to get copies of medical records. Currently, Florida doctors can charge $1 per page for the first 25 pages and 25 after that.

Believe me, I realize the retrieval costs are such that doctors are not making money producing medical records at this price. But should they be? Patients are entitled to their medical records. You need medical records for a lawsuit. Personal injury lawyers in Florida have characterized the Florida doctors’ request as a backdoor strategy to avoid medical malpractice claims. I’m not sure that an increase in the cost of medical records will do that. But I also don’t see why the current prices don’t adequately give reimburse doctors for their costs of producing medical records.

This is an older post, obviously. But this is the 2022 Florida statute on the cost of collecting medical records. The key language: “The exclusive charge for copies of patient records may include sales tax and actual postage, and, except for nonpaper records that are subject to a charge not to exceed $2, may not exceed $1 per page. A fee of up to $1 may be charged for each year of records requested…However, a patient whose records are copied or searched for the purpose of continuing to receive medical care is not required to pay a charge for copying or for the search. “

January 5, 2008

New Jersey May Join the Civilized World in Compensating Wrongful Death Claims

by Ronald V. Miller, Jr.

The New Jersey state legislature is considering a bill allowing wrongful death beneficiaries to recover damages for emotional harm. The bill, approved Thursday by the New Jersey State Senate Judiciary Committee by a 7-4 vote, would allow the families of those killed in auto accident, by medical malpractice, or other negligence to recover non-economic damages. Family members can only recover economic damages resulting from the death of a loved one.

Retired New Jersey Supreme Court Justice Alan Handler reportedly testified to this Senate committee that New Jersey’s Wrongful Death Act did not fairly and adequately compensate the families in wrongful death cases.

The New Jersey law may reflect common law traditions, but it does not reflect anything resembling the modern view on appropriate compensation for the greatest pain in a wrongful death case–the loss of someone you deeply loved.

January 4, 2008

Team Liability for Injury from Foul Ball

by Ronald V. Miller, Jr.

The San Diego Union-Tribune reported yesterday on a case pending in the Nevada Supreme Court, which may have a major impact on the extent to which stadium owners can be held liable when fans are injured during sporting events.

Baseball-related lawsuits settlements and verdicts

The Turner Case

Five years ago, plaintiff Kathleen Turner (not the actress) was struck by a foul ball while she was sitting in a mezzanine seating area at Les Vegas’ Cashman Stadium. Turner’s attorney claims that the beer garden area, where fans can not see the baseball game being played on the field below, created a false sense of security for the spectators. Ms. Turner was struck in the face by a foul ball and lost consciousness. She suffered a broken nose and had to undergo reconstructive surgery.

Trial Court Ruling

The trial judge found that the Defendant did not breach any duty of care to Plaintiffs to protect them from harm. The court further found there was no duty in this case for the Defendant to protect Plaintiff Kathleen Turner from the foul ball. Moreover, the trial court found that even if there were any such duty, the foul ball is a known and obvious risk. Plaintiff appealed.

The Defense Argument

Thomas Dillard, the lawyer representing the park’s owner, argues that this case involves an implied assumption of risk. He states that although Ms. Turner could not see the game, she was repeatedly made aware of the risk of stray balls in the stadium. The stadium posts warning signs at the entrance to the park, screens, and plexiglass are installed in certain areas to protect fans, every ticket bears a notice of liability, and there are even warnings issued over the park’s public address system. He failed to add that common sense also tells you of the risk of a foul ball when you go to a baseball game.

The Nevada Supreme Court will decide whether or not implied assumption of risk can apply to Ms. Turner’s case, and in doing so, Nevada may become one of the many states that abide by the “baseball rule.”

The article seems to think the ruling is relevant to whether Major League Baseball comes to Nevada. I think it overstates the economic implications of the outcome in this case. This issue of baseball in Nevada involves one thing: gambling.

My Hypothetical

Generally speaking, we presume fans to have assumed the risk of getting hit by a baseball at a baseball game. In the Sports Law class that I teach, I argue that the best scenario for a plaintiff’s verdict would be if you came to the game and specifically requested a ticket safe from a potential foul ball and you still get hit by one. Like many of my best law school hypotheticals, this has probably never happened and could never be proved even if it did.