Medical Malpractice

Lexis-Nexis Nominates the BILB for Top 25 Tort Blogs Competition

This blog has been nominated for inclusion in the Lexis-Nexis Litigation Community’s Top 25 Tort Blogs for 2011!

It’s certainly gratifying to see that the blog’s reputation is continuing to grow nationwide. So if you like the blog, sign up and vote!

You can do that here.
This phase of the competition ends on November 17, so don’t procrastinate.

Yet Another Tip For Cross-Examining Defense Experts

This one is courtesy of Dorothy Clay Sims. We often see expert witnesses with resumes three feet thick, full of impressive-sounding credentials like faculty appointments, society memberships, and consulting gigs. But how accurate is that expert’s C.V.?

Often, it pays to ask. Just recently, I found three inaccuracies on a defense expert’s C.V.

First, he listed himself as an instructor at a national judicial college and a guest lecturer at a local law school from “1990-present.” So I did some research. I found out that the national judicial college hadn’t even offered the course he taught in the last two years. I found out that the law school did not list him in the faculty directory (where even part-time and adjunct faculty are listed). When asked, he admitted that he hadn’t done either of these things in at least the last five years.

He listed himself as a “consultant” to the Maryland Worker’s Compensation Commission- at an address ten years out of date. His explanation was that he doesn’t go there very often. I guess they don’t send him mail much, either.

Now, is this a silver bullet that takes out an expert’s credibility with one shot? Of course not. But if you can show the expert has misrepresented his qualifications, even a little, it’s a great beginning for sowing seeds of doubt in the mind of the fact-finder. This is especially true if you can build upon this theme in the rest of the cross. How objective is the guy who embellishes (or lies) on his resume? Can you really trust his opinions? These are the questions you want in the mind of the fact-finder.

Cross-Examining Defense Experts With Their Own Ethics Rules

As I write this, I’m sitting in a hotel in Houston, Texas. I’m here for depositions of some out of town medical experts. So I thought I would share a great tip for cross-examining defense medical experts: Use their own ethics code against them.

Nearly every medical expert belongs to some sort of professional group that has an ethics code. The American Medical Association, American College of Surgeons, American Psychological Association, and American Association of Neurology all have their own ethics rules. So do most other medical professional groups. Sometimes they even have specific guidelines for giving expert testiomny. These can be great fodder for cross.

Most of their members are aware these ethics rules exist but are unfamiliar with their content. If they have ever read them at all it was usually years ago. But they really have no choice but to admit that the rules exist and that they are governed by them. I mean really, who would refuse to admit to being subject to their own professional group’s ethics rules?

Friday I cross-examined a neurologist who was rendering opinions on causation based solely on treatment he had given the plaintiff two years earlier over a three day period, out of six years of the plaintiff’s medical treatment. I knew he had not read the entire medical record- not the four years of records from before he saw my client or from the two years after.
So I asked him this set of questions:
You are here in your role as a neurologist?
Because you have knowledge and experience in the field of neurology that a layman does not, right?
You are offering opinion testimony in this court case based on your knowledge, training experience, and your treatment of Mr. Smith?
You are a member of the American Academy of Neurology?
You consider yourself bound by the AAN Code of Professional Conduct?
Please take a look at what has been marked as Exhibit 2, which is a copy of the AAN Code of Professional Conduct.
Allow me to direct your attention to §6.4- Legal Expert Testimony.
Please read the second sentence of §6.4- “Before giving testimony the neurologist should carefully review the relevant records and facts of the case and the prevailing standards of practice.”
Do you agree with that statement?
Have you “carefully reviewed the relevant records and the facts of the case?”
As of last Friday, you had never seen any medical records relating to Mr. Smith except the ones you created, correct?
And at that point, you had not even seen your own records since they were created in 2009?
Have you now seen any of those records? When did you look at them, how much time did you spend reviewing them? (He first saw them when he arrived at the deposition.)
As of today, have you reviewed any of the records other than your own?
You have never seen the records from the four years of medical treatment before you saw him?
You have never seen the medical records for the two years of medical treatment Mr. Smith has had since you last saw him?
Have you ever read the whole 1500 pages of medical records in this case?
You would agree that a physician who had reviewed the entire medical record would have more information available to him than you did?
Do you agree that having more information would be helpful in rendering an accurate opinion?
A physician who had access to more information than you would be more likely to render an accurate opinion?
If you had read the entire medical record, there could be things in there that might impact your opinions about Mr. Smith, couldn’t there?

You get the idea. This is just one example of how to use a medical expert’s own ethical obligations against him. There are a million things you can pull out of these various ethical codes that can be helpful in cross. It just takes a little research, and luckily most of these ethics rules are available for free on the internet.
So be creative, and have fun!

Reading Medical Records is Boring. Too Bad, Do it Anyway.

There is really no way to be a competent personal injury lawyer without spending an awful lot of time reading medical records. Poring through stacks of records is boring, time consuming, and we are all faced with an ever-increasing list of seemingly more important things to get done.

Many lawyers have a paralegal read and summarize these records (if anyone reads them at all)because a) they don’t want to do it; b) they think their time is too valuable to spend on it; and c) they don’t want to do it. Did I mention they don’t want to do it? I did? Good.

I am not one of them, although I have an excellent paralegal who usually does a run-through of the records and attaches a cover memo pointing out entries of interest. This is very helpful, but I read them all myself every single time, and create my own contemporaneous notes. Not just the records generated as a result of treating the injury my case is about, but also any prior medical records I can get my hands on.

Why? Lots of reasons. Two sets of eyes are better than one. Maybe something got missed. Or, presumably I have a broader knowledge base, so sometimes I catch something significant that the paralegal didn’t have reason to question.

But the real reason is for my own preparation. I need to be familiar with the records to give my client advice about case strategy, to confer with my expert witnesses, and to prepare my trial presentation. Ultimately, it’s me standing in front of a jury, not my paralegal.

And for me, the best way to assimilate a large volume of material is to summarize it. It all goes back to Ms. Shuler’s 9th grade French class. I wasn’t a big note taker, because I thought I was smart enough to remember it all. I was wrong, and my grade was less than outstanding. My teacher noticed, and she started requiring me to copy down notes on the lessons and turn them in. Her theory was that “if you write it, you remember it.” Well, at least for me, she turned out to be right. My grade got better, and I still use the same method today to learn important material.
It works, but I can’t say I enjoy doing it.

Useful Links for Personal Injury Cases

Yesterday I spent some time doing a little year-end trimming of my internet favorites list.

Like most people, I keep a fairly extensive favorites list of websites that I use (or think I will). Some sites turn out to be extremely valuable, and I use them all the time. others seem promising, but end up only being sporadically useful. I make cuts at the end of the year, taking sites that are rarely used off the list.

Here are some sites that made it onto my keeper list:
Maryland Board of Physicians: This is an excellent resource for checking the license history of treating physicians and potential experts on both sides. If a doctor you are relying on has a history of licensure issues, you need to know.

Maryland Judiciary: One of the best things about this site is that new appellate opinions are posted the day they are issued. Invaluable for staying abreast of developing areas of the law.

Maryland Judiciary Case Search: Free searching of electronic court records covering all of Maryland’s district and circuit courts. I use this as a quick and dirty background check. I run literally every person who will potentially take the stand in every one of my cases. If a witness has convictions that may be admissible for impeachment under Md. Rule 5-609, it is almost malpractice to not know ahead of time. You’d be amazed at how often I find good stuff on here.

Mapquest: I use the directions feature to compute approximate travel times. This can be very useful in trucking cases, where it may matter how far a driver traveled, in what amount of time, and whether driving time and break regulations were followed.

Vinelink and the Federal Bureau of Prisons: Both of these sites can be useful for attempting service of process. You can use them to determine if an individual is an inmate in a state or federal correctional facility.

Service Members Civil Relief Act: This site allows you to determine whether an individual is serving on active duty in the armed forces. Very useful for service of process, or for execution of a “non-military affidavit” in cases involving a request for default.
Maryland SDAT and DC Registered Organization Search: Great for finding the Resident Agent of Corporate entities.

Federal Motor Carrier Safety Adminsitration Rules & Regulations: This is great for trucking accident cases. This site features an indexed, searchable database of all of the safety regulations that commercial drivers and motor carriers are required to follow (and often don’t). An outstanding source of cross-examination material for drivers and corporate representatives.

Should Contracts Limiting Malpractice Liability Be Allowed?

Picture this: You need a medical procedure, for example, having your gall bladder removed. You arrive at one of the area’s fine local hospitals, where you are seen by a doctor and told “Sure, we can help you, as long as you sign this form giving up your right to sue us for damages if you are injured by malpractice.”

Sounds like a great deal for them and a terrible deal for you, right? The Cato Institute has issued a paper advocating that agreements like this, in one form or another, should be allowed and upheld by the courts. Surely they can’t be serious? Yes, they are, and no, I won’t stop calling you Shirley. RIP, Leslie Nielsen.

Contracts like this are generally unenforceable. They are called “contracts of adhesion”, and are not allowed because of the extreme inequality in the bargaining positions of the patient and doctor, among other reasons.

Should patients be forced into unconscionable, one-sided agreements in the name of “freedom to contract”? The Cato Institute says it advocates “Individual Liberty, Free Markets, and Peace” but I think this idea pushes the freedom to contract and the free market a little too far. Obviously, I’m on one side of this debate. But I’m glad there are smart people on the other side pushing the issue, even though I don’t agree with them.

Know Your Expert Witnesses

One thing I do every month is read the list of sanctioned physicians published each month by the Maryland Board of Physicians. It can be found online here, and usually comes out in the middle of the month, covering the preceding month. Every personal injury lawyer should do this. It’s not schadenfreude. There is a very good reason.

In the last year alone, I have discovered that two of my clients’ treating physicians have had significant licensure problems during the period of treatment. In one case, the doctor’s license was suspended the whole time she treated my client. If you are planning to rely on a treating doctor as a witness, it is best to know about these kinds of problems. In my case, I was able to name a different doctor as my expert witness. I run any doctor I am considering naming as a witness through the “Practitioner Profiles” database to avoid these kinds of problems. If you start looking, you will be surprised at how often this happens.

It is definitely worth the effort, unless you’d rather find out your expert was unlicensed during the defense attorney’s cross-examination.

More “Tort Reform” Propaganda from the U.S. Chamber of Commerce

Hot of the presses is a new “study” on “Tort Liability Costs for Small Business” from the U.S. Chamber of Commerce’s tort reform propaganda ministry, the dubiously named “Institute for Legal Reform.”
I found this through the efforts of Walter Olson at Overlawyered. I’m ambivalent about reading, and linking to, Walter’s site. It’s not that his site is no good. In fact, just the opposite. The site is outstanding, and is a fantastic resource for news about the legal system. Its just that Overlawyered is a wholly owned subsidiary of The Man, Inc. And you know how I feel about The Man. Nonetheless, I will continue giving credit where it is due.

The report itself is more of what I have come to expect from this source. It wears the sheep’s clothing of objectivity, but an examination of the sources and methods it uses reveals the wolf beneath. Consider this:
“In a separate survey of small business executives in Maryland, 91% indicated that lawsuits filed against corporations are hurting Maryland’s business climate. Nearly six in 10 respondents to that survey said they have increased their costs, reduced services, or changed products they offer. Fourteen percent said they even considered closing their business as a result of a lawsuit.”

The source? A survey commissioned by Maryland Citizens Against Lawsuit Abuse and the National Federation of Independent Businesses.
Seriously? That is as credible as citing a survey of cows to support the conclusion that steak is a threat. A biased report from the U.S. Chamber trying to appear objective by citing “independent” sources like a poll by MDCALA. Luckily for the Chamber, in an era defined by the 30-second sound bite most consumers will never read the footnotes or ask if the sources used are credible.

I haven’t gotten through the whole “report” yet. I am sure I will have more comments.

I try to be pretty upfront about the fact that I obviously have my own biases that I bring to the table on these isssues. Otherwise, nothing I say about it could be taken credibly. That is a big part of the problem I have with “studies” like this. There is never any acknowledgment of the inherent bias presented by the source.

So if you haven’t been following me closely, I am not surprised that a report sponsored by the largest business group in the United States concludes that lawsuits against businesses are bad. Considering the source, no other conclusion was possible.

Medicare Liens

Medicare liens are a topic of concern for most competent personal injury lawyers. It looks like Medicare is set to begin enforcing a federal law requiring reporting on injury claims made by individuals receiving Medicare.

The key thing about this law for injury lawyers is that if you fail to protect Medicare’s interest, Medicare can go after anyone in the process to recover the payments made: the Medicare recipient, their personal injury lawyer, the defendant, the defense lawyer, or the the defendant’s liability insurer. And lets face it- we all know that the client and the defendant won’t have the money by the time Medicare comes looking. The feds are good at protecting themselves, and here they are doing it by putting a target on lawyers and insurers, which should not be a big problem as long as we are doing our jobs the right way.

Related Information

Our practice at Miller & Zois is to discern early on in the client intake process whether the client is a Medicare recipient (or Medicaid,or state Medical Assistance). This lets us contact Medicare to put it on notice of the injury claim, and to request an itemization of the payments made by Medicare and a statement of Medicare’s claimed interest.

Most of this ultimately operates for the protection of the client. First, the billing for the treatment is at the lower, Medicare rate. Once we have Medicare’s itemization, we can make sure that the treatment listed is actually related to the case. It is not uncommon for a client who is in a car wreck and then suffers an unrelated injury a short time later, to have treatment for the second injury show up on a Medicare lien if the CPT codes for the treatment are similar. We also then have the opportunity to negotiate with Medicare to compromise the lien. Plus, if you don’t do this stuff, not only is the client looking at Medicare coming after them to get the money back, they may find themselves with no coverage, or their Social Security benefits could be docked to recover the payment.

As part of serving on the board of the Maryland Association for Justice, I plan and speak at a fair amount of CLE seminars. These sorts of lien issues are always a concern because of the broad reach of Medicare’s right to repayment. They are also a hot topic on our email listserve. I recommend that all lawyers do what they need to educate themselves on this issue, so they know the proper steps to take to protect their clients’ interest and avoid committing malpractice. It looks like Maryland is heading towards implementing a mandatory CLE requirement, which should help raise awareness in this area.

Media Relations For Personal Injury Lawyers

Today I saw (via Overlawyered) a blog post by WhiteCoat where WC is critical of a poorly framed law firm press release.

He criticizes a press prelease issued by a medical malpractice law firm. It reads: “Prominent Beverly Hills Law Firm Awarded $16.5 Million Medical Malpractice Jury Verdict.” The basis for WC’s criticism is that it does not mention the client, thereby making it appear as if the award was made directly to the firm.

I don’t think he believes anyone would be misled. I think he is really pointing out that it smacks of arrogance to leave the client totally out of the equation. As he says, “Screw the client.”
I don’t really see any functional difference between that press release and one that says something like: “Renowned Neurosurgeon Ben Carson Successfully Separates Conjoined Twins.”

But I agree that it is a bad press release, and and for the same reason as WC: It’s focused on the lawyers, not the client. As personal injury lawyers, we must constantly battle public perceptions that we are all greedy and arrogant and that our clients are all liars and fakers who are seeking “lottery justice.”

What this release should have said is something like: “Jury Awards 41 Year Old Man $16.5 Million Compensation For Medical Negligence Causing Permanent Paralysis.” It is more accurate, puts the award in context, and most importantly, shows that the money was given to compensate an innocent victim for a horrific injury that happened because somebody did something wrong.

At Miller & Zois, we keep this in mind whenever whenever one of our cases gets media attention. It is always about the client. Because the case itself is always about the client.

Every media inquiry is a chance to show that big awards or groundbreaking precedents happen because deserving victims secured the justice the law demands, with our assistance. Making it about the law firm or particular lawyer plays into the hands of the enemy, namely those who foster the perception that out-of-control juries give away huge sums of other peoples’ money for every bump, bruise, or hangnail. Anybody who has ever stood before a jury in an injury case knows this isn’t true. It is stupid and counterproductive to act in a way that fosters that perception.

Is this one release a huge deal? No. Somebody’s PR people did a poor job. But cumulatively, this stuff matters. Its a subtle difference of perception that all personal injury lawyers and law firms should keep in mind in terms of media relations.