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Friday, March 27, 2015

Case Filings in 2014

No surprise here, but overall case filings are down for 2014 (for the 5th year in a row).  And no really big surprise, two of the lowest categories of tort for cases filed are products liability and medical malpractice.

Products liability had only 48 cases filed in 2014.

Medical malpractice had 84 cases filed in 2014.

Why the continued decline in tort case filings, particularly in product liability and medical malpractice?

Tort reformers will most likely say products are safer and frivolous claims are down.

As I have stated before, that simply is not true.  The legislature has pretty much made it impossible to sue for a defective product.

And medical malpractice claims are very costly to bring, almost always require a trial and an appeals process, and jurors have a hard time finding a doctor or hospital staff member negligent, even if all the evidence is to the contrary.

There is a reason you don't see ads for medical malpractice lawyers.  No one wants them, and only a handful of attorneys in the state actually take the cases.

Just like products defense lawyers, medical malpractice defense lawyers better be careful what they wish for, otherwise they are going to have to find a new practice area in order to have a job.

But, I have discussed these issues many times in my blog posts.  I suggest you read the great writing and research in the Journal Sentinel on these issues; the Watchdog series on medical malpractice in Wisconsin has been phenomenal.

Here is the link to the most recent in the series.

Wednesday, February 25, 2015

E-Filing of Lawsuits and Legal Papers

Electronic filing of lawsuits and other court documents has existed for Federal Courts for a long time.  Other states have used it for just as long, and some counties in Wisconsin have adopted it, but it is not mandatory yet, and paper copies can still be filed in the handful of Wisconsin courts that allow e-filing.  However, it may soon be mandatory in circuit courts of Wisconsin to e-file documents with the court, including the Complaint -- the action that starts a lawsuit.

A very interesting article was recently published in the New York Times regarding e-filing and how these electronic documents are being devoured by audiences all over the country and world -- audiences that ordinarily would never care about this stuff.  It is worth a read (link below) and as I will not discuss the article verbatim or in its entirety, it is worth reading to understand my points below.

Essentially, the article discusses the fact that cases that otherwise would not get much media attention, are being sensationalized well before the defendant files an answer and actual litigation takes place.  Because defendants have a specific time period to answer a complaint (20 days, or in Wisconsin in a civil court, 45 days), this gives people the chance to read accusations against a defendant and sensationalize the story.  The article mainly deals with discrimination or gender-related suits, as these Complaints are usually very specific and contain accusations that easily draw in readers and followers.  They are Complaints that are easy to sensationalize.

It is problematic.  On the one hand, the person (plaintiff) filing the suit has the upper-hand.  They get their story out first.  They are able to generate sympathy for their case, and a presumption that the defendant did something wrong.  (It should be noted that in both civil and criminal cases, the party bringing the action has the burden to prove the other party did something wrong).

On the other hand, the accusations may ruin the defendant before the defendant actually has a chance to defend him or herself, or a corporation to defend itself.  Public e-filing also essentially allows the plaintiff to try the case to the public (assuming the story gets picked up) before any litigation even begins and facts and evidence are discovered.

It can also be problematic in that, as the article points out, in a case where there should be a settlement, or at least negotiations, the defendant will refuse because the defendant wants his or her or its name cleared by a trial.  This may make the litigation process more adverse and both sides may end up spending lots of money for no reason.

As the article notes, further negative consequences for potential plaintiffs are that they do not want to sue because of the ridicule, especially in sex discrimination cases and gender-related suits, such a plaintiff may receive by the online community.  These insults and accusations will forever remain on the internet.  Think about lurid details in a divorce lawsuit.  Whether true or not, anytime a perspective employer or perspective significant other googles that person, this information will come up and may need to be explained.

Perhaps that is why I received an email from the Easter District of Wisconsin indicating that filings of civil documents can either be filed using "either a restricted to case participant" or "sealed and only available to the court designation."  Criminal filings will now be sealed documents only available to the court.  Perhaps this is an attempt by the Eastern District to keep prying eyes away from the online community -- a way to keep lawsuits not of state or national interest "private" until there are actual court hearings on matters -- which any member of the public is welcome to attend, but no one ever really does except for the really big lawsuits and prosecutions you see in the news.

(I say private because no one has much interest in the majority of cases filed with the courts, but court documents, unless ordered by the court, are available for copy and inspection by the public).

Time will tell.  Maybe it is a good thing in this digital age when people post lots of personal stuff or just stuff on the internet.  (I am no exception).

I think what the article touches upon, but does not really flush out, is the fact that when an online community finds lawsuit information out, they tend to devour it and spread it, and as they say, it "becomes viral."  Once lawsuits were a story to develop and play out before a judge and jury, if need be.  Otherwise they were more private affairs between attorneys and clients.

Essentially, e-filing can allow a lawsuit to be tried to the public before a defendant can even respond.  Kind of like Nancy Grace calling every person a criminal or a rapist or kidnapper or a murderer on her show, even before an investigation into a suspect and even before all the evidence is adduced at trial.

According to people like her, there is no "innocent until proven guilty."  Her motto, and many people who watch programming like that is "guilty, unless found innocent, but then still guilty."

Maybe increased e-filing, where no information is allowed to be protected or redacted, renders the same logic for the public, and ultimately, the possible jurors in the trial.  In the civil arena, it would be "negligent" from the minute the lawsuit is filed, including if there is a settlement, confidential or not.  That is, of course, unless there is a trial and the jury finds "not negligent."

Monday, February 23, 2015

When Bad Things Happen to Patients ... And Discouraging Lawsuits

It has been a while since my last post, so, hello again reader (or hopefully and optimistically, readers).

I would like to continue on with my posts regarding medical malpractice lawsuits.  In the most recent article I read, the publisher again contradicts itself about "exploding" medical malpractice lawsuits.  However, the article then says "fewer than 10% of those patients and families will actually file a malpractice lawsuit."  The reason:  the author hypothesizes that it is the patient's or families perception of the doctor or staff.  Essentially, if they like the doctor or staff, or have been with a particular doctor for a number of years, they will not sue no matter how negligent the doctor was or how injured the person is.  Interesting theory.  Maybe has some weight.

Though, the article then gets into, as I have touched upon before, the real reason, I believe, for the lack of lawsuits against doctors.  Simply, unless the injury is significant, it is cost prohibitive to bring a lawsuit.  As a defense attorney notes in the article, "if the case is meritorious but the recovery is likely to be small, they [injured party] don't sue because they can't find a lawyer willing to take the case."

Exactly.  Injured people have essentially been legislated out of otherwise viable claims.  Politicians case be smart, and those drafting their agendas as well.  They have not "closed" the doors to justice - an injured person's day in court.  Instead, they make it cost an incredible sum for an injured person to pursue a case, which effects a lawyer's ability to take the case, thus ensuring no lawsuit.  It is a prohibition on access to justice -- just not an overt one.

These articles from the Milwaukee Journal Sentinel are enlightening in regards to the amount of money the Wisconsin Injured Patients and Families Fund has to defend lawsuits, and to the problems faced by injured parties, along with a complete lack of access to the courts, in Wisconsin.

Or this article that show Governor Walker's attempt to essentially shape the Wisconsin Supreme Court to do his biding.

And, this is not just an access to justice for medical malpractice problem.  Legislation is coming from all angles to block as much access as possible for injured parties.  Binding, forced arbitration, more caps on damages, re-working Wisconsin's Worker's Compensation system which has been in place since the early 1900's and both parties agree does not need to be changed.

So, the question then is, as more and more laws to help injured people get changed to protect doctors, corporations, cities, etc., and not the injured person, when bad things happen to people, how is anyone going to help them?

Tuesday, April 15, 2014

How are things today with malpractice...

Another interesting article.  For starters, the author(s) note that "claims and rates [of medical malpractice suits] are declining[.]"  To me, that completely contradicts the prior article from Medscape that I previously wrote about.  They then go on to back this up with data, showing that a drop in claims "continues a 6 year trend."  The author(s) then note that "65% of malpractice claims are dropped, dismissed, or withdrawn; 24% of cases are settled; and only 7% result in a verdict.  Of the cases that reach a verdict, the defendant (doctor, hospital, nurse, PA) is favored 88% of the time."

Well, now I am just plain old confused.  Their prior article claims that there is an explosion of litigation in medical malpractice and we need more caps on damages and more tort reform to prevent this.  Now, this article says, well, there is not much litigation, the trend is less, and heck, when we do get sued, we usually win.  See, confused.

The article examines why there is less litigation, and nails it on the head.  "It's expensive for plaintiff attorneys; they have to invest a lot and may not be able to make a profit."  Yes, the institution of caps, the expense to get medical records and bills for our clients and the expense of the suit in general has essentially forced plaintiffs lawyers out of these types of cases completely, or made it so that only the gravely injured have any sort of shot at being compensated for the malpractice.  In fact, the author specifically notes this: "Supporters of tort reform have been very successful over the past couple of years.. and now it's very difficult to being a claim to trial."  Yes! Exactly.  You tort reformers have managed to make it nearly impossible for injured people to receive compensation.  Good work!

The author is quick to point out that "we still win 82% of all claims, so most of the claims the plaintiff's bar is filing are fruitless."  Ok, first, I have no idea how that person came up with that number, because that does not make any sense given the numbers above that are in the article prior to this comment.  Second, is settling a case, in which the defendant pays money, winning?  Third, how are these claims "fruitless?"  Just because you win an arbitrary percentage of cases, the claims are automatically fruitless?  I think this ignores the fact that lawyers file claims that are not fruitless or frivolous, but that cases go to trial, and at trial the decision of whether the doctor was negligent or not goes to the jury; a jury comprised of mainly lay people who bring their own biases and prejudices into the case, even though they are instructed not to.  So, it could be that they do not find the doctor negligent (because they don't want to; believe me, I have seen this happen) despite the overwhelming evidence that the doctor committed malpractice.

At any rate, there are other reasons claims are going down.  The article notes that there is more emphasis on risk management and having doctors attend seminars.  Yes, it is a very good idea to focus on how to prevent malpractice.  Finally, someone showing that people actually care about the patients.  Hospitals are working on the evolution of electronic records because in their current form it is easy to miss something given the volume of information provided in an electronic record.

The author discusses what else is working in the USA to "curb rising" malpractice claims.  None really did anything because the main thing that helps curb suits is the arbitrary cap on damages.  The author notes the next best thing is caps on what a lawyer can charge on a contingent basis for a medical malpractice claim.  These would be helpful because "these combat the plaintiff's bar's parasitic form of venture capitalism."  Wow!  Yes, being paid to help an individual who was injured by malpractice is parasitic.  Clearly, the right thing to do is deny to the injured person that malpractice occurred, deny compensation, and make it extremely difficult for that person to hire a lawyer and pursue a medical malpractice case.  Geez, us plaintiff's lawyers truly are the bad guys.

I wonder when the author will write an article about the ever increasing costs of health care and the negative impact that is having on people's wallet and the car people receive.

For next time, "Patients Who Won't Sue Their Doctors -- Even When They Could."

Friday, January 17, 2014

"Lottery Mentality"

It has been a while since I have had time to write a post.  However, I received interesting literature lately and this will be the first of, I think, a four part series of posts.

Today I will examine a Medscape article entitled, "Plaintiff's Attorneys Get Choosier; Lottery Mentality."  Essentially the article expresses the need for tort reform in order to limit awards and take a huge burden of the court system.

The article begins by noting that most states limit awards, such as "California's $250,000.00 lid on non-economic damages -- still the GOLD STANDARD for tort reform advocates."  The common denominator between states with limits is "an attempt by lawmakers to hold down the severity, or actual cost, of resolving malpractice claims."

Ah yes, the gold standard.  Nothing says justice for the injured more than limiting what an individual can get for his or her injuries.  And of course, the smaller the amount the better, hence the gold standard.  Nothing says "we are sorry and we do care about your injuries" than the smallest cap lawmakers can pass.  The gold standard.

Of course lawmakers, doctors and hospitals are concerned with the severity- the actual cost- of resolving malpractice claims.  Who cares about the severity of the injured individual.  That is of no concern to these lawmakers, the doctors or hospitals, or most importantly, the insurance companies.  The severity of how much they may have to pay for their malpractice is of the greatest, and only, concern.

The article goes on to discuss 2 key developments for the rise of monetary awards to injured people since 2006.  First is plaintiffs' attorneys pushing courts to award severely injured patients "outsized life-care plans" which of course provide these severely injured patients money to pay for their care they need for the malpractice.

Heaven forbid we plaintiffs' attorneys request money, a damage we can ask for, to help these injured individuals pay for the enormous cost of medical care the individual will need for the rest of their life.  Please, lawmakers, pass a law that no one can become a plaintiffs attorney as a profession.

Trust me, depending on the age of the injured individual, life care plans are expensive because a lot of care is required, and SHOCKER, health care costs in USA are ridiculously expensive, even though it does not need to be.

Second, the article states, is that "plaintiffs' attorneys now concentrate on high-severity cases driven by catastrophic injuries and the potential for large awards."  Yes, this is true.  However, that is only because lawmakers have imposed caps on noneconomic damages, and sometimes total damages, in order to prevent plaintiffs' attorneys from pursuing cases that are legitimate cases because the damages are not enough.  Meaning, it would cost a firm more to pursue a claim in expenses than the case is actually worth.  That way, doctors can feel free to screw up and commit malpractice, but as long as they don't injure an individual too bad, they will get away with it because it will cost a firm more money to pursue the claim than the actual claim is worth.  Way to go lawmakers!

The article also notes that 43% of claim above $5 million dollars are obstetric in nature.  The article is very concerned about this and exclaims there is a need to stop such outrageous awards.

Want to know why those claims/ damages are so high?  Because a child is injured at birth and needs to be cared for for the rest of the child's life.  Considering mortality tables now have people living into their 70's, 70 years is a lot of time for a child, most of whom are severely injured at birth, to have to pay for health care costs the child is only incurring because of a doctor's malpractice.  Think about all the costs a child with a brachial plexus (shoulder/arm injury caused by a physician during a vaginal delivery) or cerebral palsy (due to lack of oxygen that could have been avoided if C-section done when it should have been or improper diagnosis of a fetal hear strip which shows baby not getting enough oxygen in utero) will have to expend during a lifetime?  It is staggering.  However, of course, the article exclaims these "outrageous" awards need to be diminished, and lawmakers should actively pursue tort reform on these issues.

Lastly, the article, predictably, expresses the need for more tort reform.  One way is to introduce caps or more stringent caps on damages, noneconomic or total caps.  If there are not caps, according to Rep. Eric Burlison of Missouri, injured patients will see it as a lottery and lawsuits will explode!  This ignores the facts that (1) lawyers will not file frivolous lawsuits for a number of reasons, and (2) getting injured through malpractice does not equal the lottery.  No individual goes into surgery, or for that matter is born in which the child has absolutely no choice about, thinking "I hope I get severely injured so I can get money.  I don't want to walk again.  I don't need that left arm anymore.  I don't mind being paralyzed, unable to see or unable to ever have sex with my wife or partner again.  I don't care about having a quality of life.  Please injure me doctor so I can get some money!"  This though/ reasoning by lawmakers promoting tort reform is absolutely ridiculous and insulting to injured individuals.

Tort reform is also necessary, apparently, because medical malpractice cases take too much of a judges time while on the bench.  Really?  Judges spend too much time doing their job?  For shame.  Also, the reason medical malpractice cases take a lot of time is the need for experts and their testimony.  A case cannot be proved without expert testimony in a medical malpractice claim.  A lot goes into expert testimony, not to mention having the expert find time to be deposed or be at trial considering that experts also have their own medical practice to attend to.

The article concludes by saying that tort reform is needed in medical malpractice claims because it is a "burden" on the judicial system.  This is absolutely insulting to those that are injured through malpractice.  How is an individual seeking justice, the whole point of our judicial system, a burden on the courts? The only burden is on those poor insurance companies who may have to do what the exist to do- pay a claim.  God forbid an insurance company have to pay a claim, instead of just taking money from those who pay for insurance, which by they way, includes doctors and hospitals.

Tune in for more on these and other issues.  Up next time… Medscape's "Malpractice in America: Is Anything Getting Better?"

Thursday, August 1, 2013

Lawsuits. More specifically, medical malpractice...

Lawsuits are a necessity.  Someone reading this would probably say "I bet you think that because you are an attorney."  But, that is not at all the case.  Lawsuits are another form of checks and balances.  It keeps individuals and corporations alike in line.  It also keeps lawyers in line.  And, most importantly, it keeps people safe.

Contrary to what corporate funded commercials would have you believe, the filing of frivolous suits is a complete rarity.  A filing of a frivolous suit can subject the lawyer who signed the Complaint to severe penalties.  Simply put, it is not worth the risk- both financial and to the lawyer's reputation.

But more to the point, there should never be a risk because why would a lawyer who swore to uphold ethical considerations ever file a frivolous suit?  (I know, I know, people choose to do wrong things).

Me personally, the risk of being sanctioned for filing a frivolous suit is 0% because I simply do not accept those cases from the beginning.  I tell those callers to take a hike and do not bother calling any other attorney to help you.  I value my reputation in the community and among other lawyers.

(Funny side note- I did have a potential call and say he found a bone in his soda.  He wanted to sue.  I asked if he had any injuries and how he knew a bone had been in his soda.  He told me he could see it through the bottle and it was still in there.  I said, no injuries, no case, see you later.  He called back a day later saying he swallowed a bone while drinking a soda and he was injured.  Wonder what ever happened to that guy).

Which brings me to medical malpractice lawsuits.  These suits get labeled frivolous the most and are often used as an example of why every state needs "tort reform."  (I think I wrote about tort reform in early postings, but I do not need to re-hash things now.  The very idea of tort reform makes me sick and gives me enough material to write about that subject whenever I feel like it).

Why is this so?  Well, doctors and medical care is a huge business in America.  Doctors, pharma companies that sell medicines through doctors and medical centers have a lot at stake, and a lot of money to lobby with for protections from lawsuits.

They are also able to create a lot of "junk science" reports, studies, etc., when they need to create some sort of defense to injured peoples' claims.  (For example, it is clear that brachial plexus injuries (which can leave the arm anywhere from somewhat functional to paralysis) are caused by a physicians force during labor.  So, a study was complied, "Lerner Study," to "show" that a mother's own contraction can be enough force during labor, absent force from a doctor, to cause a brachial plexus injury.  Now, defense doctors use this "study" to defend when a doctor has used to much forced and injured an infant.  Funny enough, while the doctor which the study is based on said baby was delivered without physician force and a brachial plexus injury occurred anyway, doctor's own notes indicate she used force during delivery.  The medical malpractice lawsuit against her settled just before trial).

But this all gets me to something interesting I came across on Medscape.  They conducted a study/poll of 3,480 U.S. physicians across 25 areas of practice on what the experience of being sued for medical malpractice is like.  40% of those surveyed, or 1,392 doctors, had been sued.

Most striking to me was the outcome to the question "Was the lawsuit result fair?"  62% of those doctors sued (835.2 doctors) believed that the lawsuit result was FAIR.  (I presume in my analysis that only doctors who have been sued answered all the survey questions.  The study was not explicitly clear on this, but it would only make sense).  Only 38% thought the result was unfair.

One doctor was quoted as saying that it was "my responsibility.  Parents had to sue to get financial relief for the burden of caring for their infant.  I understood that."

Now, the poll did relate that only 47% of malpractice cases ended with the plaintiff being awarded money compensation, whether through jury or settlement and that 35% of cases settled before trial, with only 2% of cases resulting in a jury awarding money to a plaintiff, but poll does not state what portion of the 62% that said result was fair was an award or settlement for the plaintiff.  However, I would presume that since 37% of the cases resulted in compensation for the plaintiff, that more than half of those doctors who thought it was a fair result had an award or settlement against them.

But for me, the biggest point is that even if a doctor settled or had a jury decide the doctor was negligent, some doctors still accepted that as a fair result.  One doctor went so far as to be quoted that he understood why he was being sued and accepted that.  He may not have agreed with the suit, but he understood why it was occurring and why it was necessary for the plaintiff to bring a lawsuit.

I am happy to see these numbers.  A decision to sue a doctor is never taken lightly and never done without a thorough review of the records.  In my practice, I decline medical malpractice cases way more than accept them, almost exclusively based on the fact that no doctor or nurse did anything wrong.  If we accept such a case, it is with a 100% belief, and knowledge, that medical malpractice occurred.

Also interesting were the results of the "Long-term Emotional and Financial Effects of the lawsuit."  63% had none.  The next biggest category is that 29% of doctors no longer trust their patients and treat them differently.  Only 6% left the practice setting.  However, if "Emotional" was not part of this poll, I firmly believe 94% (thus excluding the 6% that left the practice setting) would have answered "none" to long-term financial effects.

Why is that?  One, doctors have insurance, and insurance providers foot the bill and pay any award or settlement. (Same as if you had car insurance and caused an accident and injured someone).  No money out of the doctor's pocket.  Second, patients rarely look or rarely know that a doctor they are seeing has been or is being sued.  It is rarely reported in the news, as it is not that interesting.  Also, unless there is a jury trial (very rare) and the plaintiff wins (even more rare), the record simply shows that the matter was dismissed, regardless of whether the plaintiff was paid something or not.  So, a lawsuit has no effect on the doctor's business.

What I take from all of this is that even doctors recognize that most medical malpractice lawsuits are not frivolous and are a necessity for injured people to obtain compensation they need to care for themselves for the injuries they sustained.

Just like counting to make sure all instruments are accounted for before sewing someone back up after surgery, lawsuits act as a system of checks and balances to help keep patients safer.

Wednesday, June 19, 2013

Things to Know After an Accident...

This list is not all inclusive, but if you have been involved in accident while riding your bike (whether bike v. bike, car v. bike or defect in road/path), you should make sure to do the following, if you are able to do so...

- if physically injured at the scene, call 911 and seek immediate medical attention

- get the name, phone number, address and insurance information for the other vehicle operator

- locate any potential witnesses and get their contact information

- if you can, take pictures of the scene, the other vehicle, your vehicle (bike/car) and possibly your injuries at the time

- look around and see if any outdoor security cameras may have recorded the accident, a make a note of this information.  May need to contact these places to preserve the tape.  Usually tapes are kept for a short period of time before they are recorded over

- if there was a roadway defect, make note of the defect and take pictures of the defect

An accident can take many forms: bike v. bike, car v. bike, dooring (car door v. bike) or defects in the roadway and/or signage. Be sure to gather information as this may assist you in proving the fault of the other party involved in any accident.  Seek legal counsel soon after the accident to ensure your rights are preserved.