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.
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He listed himself as a "consultant" to the Maryland Worker's Compensation Commission- at an address ten years out of date.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.
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!
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.
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.
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.
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.
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 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.
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.
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.
There is a man who lives in York, PA named Albert Snyder. His son was in the military, and was killed in the line of duty. When Mr. Snyder tried to bury his son in Baltimore County, MD, the funeral was picketed by members of the Westboro Baptist Church. They showed up with signs saying things like “God Hates Fags.” Apparently, they believe that U.S. military deaths are God’s revenge for our society’s tolerance of homosexuality. Mr. Snyder sued the Westboro Baptist Church and got an 11 million dollar verdict. This has been in the news recently because Mr. Snyder lost on appeal to the 4th Circuit, and was ordered to pay the church’s costs of about $16,000.
The same day, there was a $1.44 million dollar verdict in the Circuit Court for Baltimore County in a medical malpractice case. This was a death case. The defendant was an ER doctor who failed to diagnoses sepsis, leading to the death of the patient. Baltimore County is one of the most conservative jurisdictions in the state. Because of this, this verdict was also in the news.
Our local paper’s website allows comments, and I read the comments to both of these stories. The comments to the medmal story pillory the plaintiffs and their lawyers. The plaintiffs are called greedy, their case was called frivolous, and one commenter said it wasn’t fair because $1.44 million dollars won’t bring the dead man back. This is a case where a man died.
The comments to the Snyder story support him fully, and are appalled that he now has to pay costs. There is no mention of the amount of the verdict, and nobody called him greedy, or his case frivolous, even though he sued essentially because his feelings were hurt at a very emotionally sensitive time.
Why do people think one of these cases is frivolous and not the other? Death case= frivolous. Hurt feelings case= not frivolous. I guess frivolity is in the eye of the beholder.
Don’t misunderstand me. I don’t think either of these cases is frivolous. But there is an incredible amount of hypocrisy in calling one case frivolous but not the other, simply because one case is wrapped in the flag.
Maybe Georgia hates plaintiffs less than I thought.
They have a "tort reform" law that limits non-economic damages in medical malpractice cases to an unconscionable $350,000. They also have a state constitution that says that "the right to a trial by jury shall remain inviolate." The Georgia Supreme Court recently held the cap to be unconstitutional, stating that "[t]he very existence of the caps, in any amount, is violative of the right to trial by jury." It is nice to see an appellate court take its role seriously in ensuring that legislative mandates conform to constitutional requirements.
But I don't practice law in Georgia. I am stuck here in Maryland, wishing that the Court of Appeals of Maryland had shown the same courage as the Georgia Supreme Court. But alas, the Court of Appeals of Maryland considered the exact same constitutional argument, and rejected it in Murphy v. Edmonds, 325 Md. 342, 601 A.2d 102 (1990). Our court defied logic, and held that as long as the jury determines the plaintiff's damages, the right to a jury trial is not impaired when a statute arbitrarily reduces the jury's award to a predetermined amount having nothing to do with the damages in the case.
I swear, I am not making this up. This is what the Court of Appeals of Maryland said in Edmonds:
"Section 11-108 fully preserves the right of having a jury resolve the factual issues with regard to the amount of noneconomic damages. Neither the $350,000 limit on recovery nor the provision that the jury shall not be informed of the limit, interferes with the jury's proper role and its ability to resolve the factual issues which are pertinent to the cause of action."
Basically, as long as the jury determines the damages, the Court of Appeals says that it is irrelevant that the jury's verdict will be arbitrarily ignored, and it is irrelevant that they will not be told this is going to happen.
It isn't just me thinking the Maryland ruling is illogical and legally unsupported. The Georgia Supreme Court considered the Court of Appeals' holding in Edmonds and called it "unpersuasive reasoning."
But wait! The Court of Appeals of Maryland has a chance to fix its mistake. On April 2, 2010 the court will hear argument in DRD Pool Service, Inc. v. Freed. That case has a constitutional challenge to the non-economic damages cap in non-medical malpractice cases. Hopefully, the court will get it right this time and do away with a law that does a terrible injustice to the most seriously injured Marylanders.
Our system of justice places an immense amount of trust in juries. Juries decide whether people live or die, go to prison or remain free. Why do we no longer trust them to determine damages? Presumably, the right to a jury trial was pretty important since they put it in the very document that provides for our system of government. Hopefully, our courts will restore the will of the jury to its rightful place in our civil justice system.
But I'm not holding my breath.
Here is an article about a recent opinion of the Georgia Supreme Court (that state's equivalent to the Court of Appeals of Maryland) that uphold "tort reform" laws passed by the Georgia legislature. These laws were passed in 2005 as part of a package of "tort reform" laws.
The court upheld a draconian change in the standard of care for victims of medical negligence where the negligent doctor was providing care in an emergency room. In Maryland, doctors in any setting are held to a negligence standard. If the doctor failed to act as a reasonable health care provider would have under the circumstances, that is negligence.
Georgia has a different standard of care as a result of these 2005 laws. To recover for malpractice against a Georgia ER doctor, a plaintiff must prove "gross negligence" by "clear and convincing" evidence. I think Georgia is the only state in the country with a law like this. This changed the pre-existing law in two crucial ways.
First, it raises the standard of proof from a "more likely than not" standard. Essentially, this is the difference between 51% likely and 75% likely. Second, and most awfully, it raises the standard that must be violated to "gross negligence", which means a failure to exercise even a slight degree of care.
I am not a Georgia malpractice lawyer, but the way I understand this is as follows: If the doctor cuts off the wrong leg because he is drunk, there is gross negligence. If he cuts off the wrong leg because he simply misread the chart, there is not. I imagine this is small comfort for the guy who lost the wrong leg. But hey, it's all good- this law has reduced the number of medical malpractice lawsuits, and (thank god) has reduced doctor's malpractice premiums. Guess why? Because it basically means that it will always be impossible to prove the doctor breached the standard of care.
The Georgia court determined that the legislature's goal of making physicians' malpractice insurance more affordable was a "legitimate legislative purpose." This is just astonishing. I have a hard time conceiving a more unfair rule of law. Doing what is cheaper is not always the same thing as doing what is just.
This rule allows a Georgia ER doctor to to walk up to a family and say something like "I am really sorry. I messed up because I just wasn't paying attention. I am a little tired from staying up late to watch the playoffs. But I did my best, and I am sorry your mother is dead." Under Georgia's standard, that doctor is probably not liable for malpractice. If you can't tell what is wrong with that, you have my pity.
I love doctors. I have one myself. I am a huge fan of the ER docs and on-call cardiologists who helped my Dad when he had a heart attack. It is important to have these kinds of doctors available. But that should not be at the price of immunizing whatever they do as long as they try hard and don't intentionally hurt you.
Today is February 23. If you were wondering if any Maryland physicians were disciplined or sanctioned during the month of January, keep wondering. Because the Maryland Board of Physicians has not posted that information to its website even though we are four weeks into the next month.
I don't know about you, but I would like to know if my doctor was subjected to discipline in January.
I wonder if the lawyer representing Terrell Suggs’ girlfriend has much experience in plaintiffs’ tort litigation. Here’s why. First- filing a 70 million dollar lawsuit before the final protective order hearing is a bad idea simply because it offers a great financial motive cross-examination to the other side. Second- it hurts your settlement leverage, because for famous people silence is worth something. Third- running to the courthouse to file a suit for money damages isn’t going to look good to your mostly conservative, Ravens fan Baltimore County jury when the battery case goes to trial. Maybe the amount of the ad damnum won’t come into evidence, but the timeline sure will. Fourth- for a case arising after 10/01/09, your non-economic damages are capped at $725,000. So I guess you have $19,250,000 in economic damages, right? That must have been a really, really bad broken nose. I guess filing for such a large amount, so quickly, did accomplish one of the goals- it got the lawyer’s name in the paper, and he smartly declined comment. I really think the primary goals- getting a determination on custody and the protective order- could best be accomplished without all of the sensationalism and media attention caused by the 70 million dollar lawsuit. After all, there are three more years to file the tort claim.
If this woman had come to me for legal representation, the first thing I would have done would be to find the most expert family lawyer I could to handle the custody and protective order case. I have handled protective order hearings before, but there are people who do that for a living, more expertly than I could. I wonder if the family lawyer representing her will associate with experienced co-counsel for the tort case? I’m curious to see how this turns out, but based on what I have seen so far, I hope Ms. Williams has some pretty compelling evidence or she could have a tough fight on her hands. Too bad there's no grounds to transfer venue to Pittsburgh.
WhiteCoat advocates a loser-pays system in medical malpractice cases. Sure. I’ll go along with that, if it comes with automatic liability for the physician if the patient is not cured. After all, it’s fair for he who does not succeed to pay, right? Why don’t we all agree that doctors know more about medicine than lawyers, and lawyers know more about the law than doctors?
Paul Luvera has some tips for cross-examining Defense Medical Exam doctors. Paul calls this a basic outline, which it is. Miller & Zois lawyers use a much more detailed approach, but Paul provides an outstanding basic foundation for the cross.
I had never heard of Moe Levine until I got an ad for a book about him from the American Association for Justice. Then I found a closing he gave in a case about a young woman who broke her arm in a car accident. This is an outstanding effort in a case all of us have tried at least once. He truly does a wonderful job of personalizing his client’s non-economic damages in a case where there is a real, but not catastrophic, injury. Thanks to Howard Nations for providing this wonderful resource.
Today is October 14. Each month the Maryland Board of Physicians posts on its website a report of sanction proceedings against the physicians and other medical professionals it regulates. The sanctions for September, 2009 were just posted today.
This is a big deal. That list of sanction proceedings is pretty much the only way for Marylanders to know if there has been a proceeding against their doctor’s license. Here is a great example to show why this is important, and why the Board of Physicians gives mere lip service to the safety of Maryland patients.
I have a client who was injured in an accident on January 1, 2007. She did what most people would do. She had a visit at the ER, and then followed up for treatment with her regular doctor. She was treated by her primary care doctor from January 20, 2007 to December 12, 2007. The doctor prescribed medications, physical therapy and chiropractic treatment. That all sounds great, right? Perfectly appropriate.
Until I tell you that this doctor had her license suspended effective September 30, 2006 for failing to resolve a state tax lien. On January 22, 2008, the Board finally realized that the doctor had been practicing without a license since October 1, 2006. They only found out because someone made a complaint. In February, 2009, the Board finally got around to sanctioning the doctor, with a $25,000 fine and imposing conditions for reinstatement.
So, all of the treatment my client got was done by a doctor with no license.
I wrote some time ago about some doctors conditioning treatment on patients promising not to post online reviews of the doctor. This is directed at websites like Angie's List, RateMD's.com, and the like. They way this works is that the physician will not see the patient unless the patient executes an agreement not to post reviews of this type. Today the Washington Post writes about these kinds of requirements becoming more prevalent in the Washington, D.C. metro area.
These kinds of sites exist for lawyers too. I understand that most professionals don't want to be at the mercy of a layperson who may not understand the realities we work under. Plus, most of these services have no filter, so there may be content posted that is inflammatory, defamatory, or outright false. The crackpot with an axe to grind has the same ability to post that a legitimate consumer does.
The problem here is that all professionals, including doctors and lawyers, are in a customer service industry. It's true that a layperson may not really have the knowledge to asses the quality of medical or legal services. On the other hand, it is easy for the average person to judge whether the staff is friendly or rude, wait times are unreasonable, if phone calls are returned promptly, or if facilities are clean and well-kept.
I would think professionals who excel at these kinds of service issues would have as much to gain from positive reviews as others have to lose from negative reviews. I think it is ridiculous to conditon medical treatment on the execution of a silence agreement. The best way to address the concerns these physicians have is to provide good customer service. One bad review may be a crackpot. Fifty bad reviews is likely a sign of a problem.
I think it is normal for professionals in any field to become accustomed to the processes and procedures we deal with every day. I think that phenomenon is particularly pronounced in the legal field. Most people have extremely limited experience with the workings of the court system in general, and with civil litigation in particular. The average citizen’s legal experience is most likely limited to serving jury duty, or appearing as a defendant in traffic court.
For example, I have often had clients seem surprised that I am usually quite friendly with the attorney representing the defendant in their personal injury case. To me, most of these lawyers are colleagues, law school classmates, or simply fellow professionals that I have gotten to know across the aisle at trials. They seem to believe that adversarial equates to hostile. This issue often arises in clients’ frustration with the pace (extremely slow) of litigation. People also seem to believe that the insurance company or defense attorney has a particular axe to grind against them, where I see that as business as usual.
This is an overly long intro to a blog that I have found to be great reading. There is an emergency department doctor who was sued for medical malpractice and is blogging about the course of his own trial (after the fact).
Continue reading "What Is It Like To get Sued?" »
Today the Maryland Daily Record reports that the consumer watchdog group Public Citizen has rated Maryland's physician discipline system as one of the worst in the country.
Public Citizen's spokesman (who is also an M.D.) states that this "is troubling because it indicates many states are not living up to their obligations to protect patients from bad doctors." Maryland is ranked 45th and has been one of the ten worst states for the past six rankings.
In rebuttal, Irving Pinder (Executive Director of the Maryland Board of Physicians) called Public Citizen's findings flawed.
"I've always argued that Public Citizen's statistics are very misleading because ... they assume the pool of doctors is the same in every state," Pinder said. "Maryland has some of the best doctors ... in the country. If you need to go in for major surgery, would you want to be in Alaska or Maryland?"
Gee, Irv, I don't know. Is taking out a kidney major surgery? Let me find out if Alaska lets doctors remove the wrong kidney, lie about it, and then keep practicing medicine. I'll get back to you.
In Maryland, the conduct of licensed physicians is governed by the Maryland Board of Physicians. This entity essentially determines who is licensed to practice medicine in Maryland, and is responsible for disciplining doctors when they don’t follow the rules.
The conduct of licensed attorneys is governed by the Court of Appeals of Maryland. The Court sets the standards for admission to the Maryland bar, and handles disciplinary issues regarding attorney misconduct. The Attorney Grievance Commission acts as “prosecutor” of attorneys accused of misconduct.
I would like to contrast two cases to illustrate how this process works.
First: the case of attorney Jill Johnson Pennington. This lawyer was hired to handle a personal injury case. She failed to competently represent her clients by missing the statute of limitations. This effectively ended any chance the clients had to recover in court. OK. That isn’t good. It only gets worse. Compounding the problem, the lawyer lied to the clients about whether their case had been filed. Then she presented them with false settlement paperwork making it look like the party responsible was settling. In reality, the lawyer was paying her own funds to make the faux “settlement”. She never told the clients what had happened or about the possible malpractice claim they had against her.
It is black-letter law that attorney discipline proceedings are conducted for the protection of the public. The lawyer was disbarred. It’s a no-brainer.
If you lie to clients to cover up your own malpractice, and fail to advise them of their rights as a result of your misconduct, you deserve to be disbarred. Clients need to know that their attorney has a duty to them that will be enforced. The system cannot work if there is no trust that attorneys are acting in clients’ best interest, or if they may fail to do so without any threat of repercussions.
Second: The case of a urologistwho was treating a patient with a cancerous tumor on the left kidney. The doctor mistakenly removed the (healthy, except for a benign growth) right kidney instead. Then, he never told the patient he took out the wrong kidney, even when the patient and other doctors called him about the mistake. He never informed the hospital of his mistake or documented it in the operative note.
The Maryland Board of Physicians found the doctor violated the standard of adequate care, engaged in unprofessional conduct, made a false report in the practice of medicine, and made a willful misrepresentation in treatment. Now, for the sanction imposed- a public REPRIMAND. Dr. Levin also had to write a letter of apology, undergo counseling, monitoring, and continuing education.
Lawyer commits malpractice and lies to cover it up. Sanction- Disbarment.
Doctor commits malpractice and lies to cover it up. Sanction- told not to do it again and must say he is sorry.
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