Boston Personal Injury Lawyer - Medical Malpractice

Charitable Immunity is Unjust

Ken Margolin — Wed, 19 Sep 2007 07:00:00 GMT

Protecting charitable organizations from liability for the negligence of the organization or its employees, may sound noble, but is in fact, unfair. The immunity doesn't really accomplish its goals, and insures that employees of an organization involved in a personal injury lawsuit, will be sued instead of the organization. Here's the way it works in Massachusetts. By statute, M.G.L. c. 231, Â§85K, the liability of non-profit, tax-exempt corporations, for personal injury caused by their negligence, is limited to $20,000. The doctrine never made much sense, since even organizations providing noble services, should be responsible for their actions when they harm others. Now that many "charitable" organizations are economic behemoths, such as major universities and hospitals, with CEOs earning seven figure incomes, the doctrine serves only to harm legitimate plaintiffs and to provide a windfall for the insurance industry. Virtually all viable non-profit organizations carry liability insurance. There is no logical reason why that insurance can't cover the organization as well as its officials and employees, thus protecting the charitable corporation and victims of its corporate negligence.

The charitable immunity doctrine applies only to the organization, not its officials and employees, This guarantees that in a serious personal injury case, the employees will be sued, and the culpable institution will either not be sued or dropped from the case before trial. Juries don't learn of the tort cap, and the risk is too large that they will render a sympathetic defendants' verdict on behalf of the employees and nail the organization, never realizing that only $20,000 can be collected. The doctrine is at its most unjust when there is institutional negligence - for example, inadequate safety policies and procedures - but no readily identifiable, negligent employee. A risk is created that a jury hearing such a case, will let the employee off the hook, all the while wondering why the errant corporation was not made a defendant. Charitable corporations, no less than for-profit corporations, owe a duty of reasonable conduct to the public, and ought to procure sufficient insurance in case their negligence causes an innocent person serious harm. The Massachusetts legislature needs to buck the pressure from the insurance lobby, and abolish the antiquated and unfair doctrine of charitable immunity.

Originally posted at InjuryBoard by Ken Margolin

Hospital Falls

Ken Margolin — Mon, 17 Sep 2007 15:45:00 GMT

A great deal of attention has been paid lately - rightfully so - to the subject of infections contracted in hospitals. Less focus has been placed on another source of serious and preventable injuries in hospitals - falls. The result of a fall down injury in a hospital may be severe. Patients are ill and often debilitated or disoriented to begin with. If a patient's condition presents any appreciable risk of falling, the hospital has the obligation to assess and document the risk, and to take appropriate precautions.

Fall precautions may take many forms, for example, accompanying the patient, in a geri-chair, to the bathroom, prompt response to patient calls, raised side rails on the bed if no nurse is in immediate attendance, doctor's orders that the patient be accompanied by a nurse or aide whenever mobile, even restraints where appropriate. Once a fall down risk is appreciated, the patient's risk assessment must be kept up to date throughout the patient's hospital stay. Hospital falls can result in severe injuries such as broken hips, traumatic brain injury, and other harm inconsistent with the hospital's role as a place of healing.

Originally posted at InjuryBoard by Ken Margolin

Deadly Medication Errors

Ken Margolin — Fri, 14 Sep 2007 18:00:00 GMT

The problem of medication errors has by now been well-reviewed, and efforts to minimize such errors are underway in hospitals and doctors' offices across the country. Nevertheless, the problem of medication errors has proven to be a very stubborn one. In his groundbreaking book, "To Err is Human," Lucien Leape, M.D., estimated that medication errors caused approximately 98,000 deaths per year. Given that the 40,000 +/- highway deaths each year, is often described as "carnage" on the roads, 98,000 is a sobering number.

A study reported earlier this year reviewed medication errors made on patients undergoing surgery. Astoundingly, the study estimated that 5% of adults and 12% of children suffered harm in surgery-related medication errors. Painkilling medications and antibiotics were responsible for a significant share of serious harm. As is the case in other areas of medical negligence, failures of communication caused many of the problems. The danger was particularly acute when various medical teams not working on the patient at the same time, were required to communicate effectively. Examples given were hand offs of patients from the preoperative team to the operating room team, and from the operating room to nurses in the recovery room or on the ward. These failures of medical communication will continue until the notion of patient treatment as a true team effort, is taken seriously and implemented across disciplines and hospital staffs and departments.

For more information on this subject matter, please refer to our section on Medical Malpractice and Negligent Care.

Originally posted at InjuryBoard by Ken Margolin

A Medical Malpractice Claim Lost

Ken Margolin — Tue, 21 Aug 2007 15:15:00 GMT

A couple of weeks ago, a Suffolk County Superior Court jury in Boston, rejected the claim of former New England Patriots offensive coordinator, Charlie Weis, that doctors botched his gastric bypass surgery. The defense verdict came at the end of the second trial of the case. The first jury hearing the case was deadlocked, leading to a mistrial. Weis had claimed that his surgeons allowed internal bleeding to continue for many hours, causing nerve damage. The loss by a popular, former local sports figure, illuminates some hard truths about medical malpractice cases.

The number one reality of medical malpractice cases for plaintiffs and their lawyers, is that they are difficult to win. Many jurors begin with a pro-doctor bias and suspicion of plaintiffs' motives. Bias aside, most jurors will respect the judge's "burden of persuasion" instruction, and weigh any doubts against the plaintiff. Given the complexity of many medical malpractice cases, a good defense lawyer can often create doubt. Another factor may have hurt Mr. Weis. Although he testified to ongoing pain and mobility problems (the operation took place in 2002), his injuries were not catastrophic. Any medical malpractice case that goes to trial is somewhat of a production. Some jurors will ask themselves why the plaintiff is going to the trouble if he has largely recovered from the alleged malpractice.

I wondered if there may have been an anti-obesity factor; i.e., people shouldn't become so fat that they need bypass surgery. That may have been present, but as a blog by Fayetteville Injury Board member, Attorney Brent Adams, illustrates, juries can return sizeable plaintiff's verdicts in gastric bypass cases. I never like reading about defense verdicts in medical malpractice cases. They are constant reminders, though, that plaintiffs' attorneys must be rigorous in their selection of medmal cases.

For more information on this subject matter, please refer to the section on Medical Malpractice and Negligent Care.

Originally posted at InjuryBoard by Ken Margolin

The Power of Exhibits

Ken Margolin — Mon, 20 Aug 2007 11:15:00 GMT

I wonder if anyone has ever calculated the number of words per hour spoken during the average jury trial. The right words, used the right way, can evoke the most powerful of images, associations, and emotions. Words can also drone on and become little more than background noise to the listener. The lawyer trying a case involving catastrophic personal injury, has a challenge. He may need to educate the jury on a scientific topic, for example accident reconstruction. He may need to make sure they understand the scope of the plaintiff's economic loss.

Accomplishing the necessary jury education and persuasion in a complex personal injury trial, is not possible with words alone. On the other hand, too much use of exhibits could turn a trial into a circus, detracting from the seriousness of the matter at hand. The plaintiff's lawyer needs to balance words with exhibits, simple exhibits with more elaborate displays. Basic blowups of pages of medical records can be very useful, as can enlarged color photographs. In a medical malpractice case in which a timeline is important, the attorney can hire companies that will create a visually engaging horizontal chronology, based on medical records entries. In a construction accident case, an attorney may have a detailed model built, replicating the scene where his client was hurt. Tangible things can work better in some cases, than photographs.

Sometimes, nothing but the actual item in question, or an exact duplicate, will do. As I write this piece, a colleague of mine is trying a case on behalf of a restaurant worker severely burned when a heavy cauldron tipped over too far, emptying its load of scalding water on the man. At considerable expense and effort, my colleague purchased a duplicate of the cauldron in question and had it delivered, bolted to planks, to the 5th floor courtroom. I don't know yet if he'll win, but if he does, you can bet that the kettle will have played a major role. Computer animations of events can be useful, provided the judge is convinced that they are sufficiently accurate to be allowed into evidence, and the jury believes they are fair representations of events. The use of exhibits is vital and their variety is as limitless as an attorney's imagination.

Originally posted at InjuryBoard by Ken Margolin

Wrong Site Surgeries

Ken Margolin — Mon, 06 Aug 2007 16:10:00 GMT

An article in Saturday's Boston Globe illustrated the gap that sometimes exists between written procedures and implementation. The article also highlighted the ongoing danger from surgeries on the wrong part of a patient's body. Five hundred fifty-two cases of wrong-site surgery have been reported by American hospitals since 1995; there are undoubtedly many unreported cases.

The incident covered in the Globe story happened at Rhode Island Hospital. An 86 year old man was rushed into the operating room for emergency surgery to relieve a bleed on the left side of his brain. The surgeon operated on the right side, before correcting his mistake and addressing the left side bleed. The article did not reveal how much time was lost due to the doctor's error, or whether the patient, who is hospitalized in stable condition, was permanently harmed. According to the Globe, this was the second time this year alone, that a neurosurgeon at Rhode Island Hospital has operated on the wrong side of the patient's head.

The Joint Commission on Accreditation of Healthcare Organizations (JCAHO) has promulgated staightforward guidelines to prevent wrong-site surgeries. Even the best of guidelines are ineffective, however, if they are not followed. Patients with sufficient capability should be very insistent that protective steps have been taken to insure that once they are under anesthesia, the correct surgical procedure at the intended location, will take place.

Originally posted at InjuryBoard by Ken Margolin

Failure to Communicate can be Deadly

Ken Margolin — Thu, 12 Jul 2007 09:00:00 GMT

Imagine a plane crash in which the co-pilot knew of another plane on a collision course, but decided not to tell the pilot, figuring he'd get the information on his own. Imagine a firefighter knowing a roof is about to collapse, but failing to warn his colleagues because he thought his colleagues were highly skilled and the signs of impending collapse were obvious. Unthinkable? Of course. Yet, doctors treating the same patient for the same condition often fail to communicate and claim to be justified in their intentional withholding of vital information from their colleagues.

The internist refers a patient with deteriorating neurological symptoms to a neurologist, but neglects to convey the information of his patient's decline because - hey - she's the expert. When the expert fails to obtain the information that the internist possessed, on her own, the patient suffers. An anesthesiologist and surgeon fail to communicate prior to surgery, resulting in an operating room disaster because neither know exactly what the other one was doing. There is no excuse for such medical failures of communication. Too many doctors see their roles as reflecting the line from Tom Lehrer's song Wernher Von Braun, "... it's not my department ...." Communication of vital patient information to other treating physicians is every doctor's department. The cost in time and money is near zero. The risk of neglect is the patient's life and health.

Originally posted at InjuryBoard by Ken Margolin

Victims of Medical Malpractice Face a Hard Fight

Ken Margolin — Wed, 11 Jul 2007 11:45:00 GMT

This week's Massachusetts Lawyers Weekly newspaper reported a defendant's verdict in a sad case. The plaintiff had suffered a massive stroke leaving him paralyzed on half of his body and with other terrible deficits. The allegation was that the stroke was caused due to mismanagement of lung surgery following pneumonia. The case was tried by an attorney considered to be a very fine plaintiff's lawyer, and yet despite excellent representation and horrific damages, the jury awarded the plaintiff nothing.

The case highlights a difficult reality - doctors in Massachusetts win approximately 90% of cases that go to trial - and if the insurer thinks that they will win, there will be no pre-trial settlement. I don't know all the details of the reported case, so can't say whether the jury's decision was a fair one. In general, though, plaintiffs must have more than catastrophic injuries to prevail in a medical malpractice case. The liability facts must be strong. Cases involving lack of communication between concurrent caregivers, admitted medication errors, failure to respond to disturbing symptoms, and alteration of records, often give plaintiffs the best chance for adequate settlements or verdicts.

Originally posted at InjuryBoard by Ken Margolin

The Video Settlement Brochure

Ken Margolin — Fri, 22 Jun 2007 12:20:00 GMT

In a previous blog, I wrote about day-in-the-life videos. These are videos that film a severely injured plaintiff and capture vignettes of a typical day, in a 20 - 30 minute movie. If done properly, they can be shown to a jury at trial. Another tool that any lawyer representing a client with catastrophic injuries may consider, is a video settlement brochure. In the video settlement brochure, the company producing the video interviews the client, and key people in the client's life, to gain an understanding of the client's life before and after his injuries.

The video settlement brochure may interweave pictures of the client before his injuries, with interviews of loved ones, and day-in-the-life type vignettes of the client's struggles to perform simple, daily tasks, as a result of the injury. Some attorneys may worry that the video settlement brochure gives the defense too realistic a view of what the plaintiff's case at trial would be like if the video brochure does not result in a settlement. That shouldn't be a major concern if the witnesses to be interviewed have already been deposed. The video settlement brochure may convince the insurance company adjustor assigned to the case, that allowing the case to go before a jury is too risky, and that a reasonable settlement is the company's, as well as the plaintiff's, interest.

Originally posted at InjuryBoard by Ken Margolin

Mediation of Personal Injury Cases

Ken Margolin — Thu, 31 May 2007 07:00:00 GMT

Clients often ask me if "my case will have to go to court?" By that question, they mean, will it have to be tried before a jury, or will it settle "out of court." Most clients, even those who appreciate that they could get significantly more money with a verdict than through settlement, prefer the surety of a settlement over the high stakes gamble of a big score vs. nothing. Sometimes a case that appears inevitably headed for trial, can be resolved with the help of a professional mediator.

Many courts now require counsel to file a certificate, attesting that they have discussed with their clients, the possibility of alternate dispute resolution ("ADR"). Some clients are eager to mediate a case, thinking it a quick road to compensation. I explain to my clients that mediation can result in a fair settlement, but only if used properly, and in the right case. The most important point I make to clients is that mediation cannot be seriously considered too early, lest the defendant's insurer take it as an opportunity to offer short money. In a case of serious personal injury, there is usually no alternative to completing discovery before mediation is proposed.

Mediations in wrongful death cases or other serious injury cases, can never be approached casually. I generally prepare a mediation book to be distributed to defense counsel, the insurance adjustor, and the mediator. The book - a large 3-ring notebook, will contain a bullet point summary of plaintiff's position, and key deposition pages and exhibits advancing plaintiff's case. In appropriate cases, I will be prepared with blowups or other demonstrative evidence, including day-in-the life or other persuasive videos. In one case, involving a little girl who died when an improperly protected construction trench collapsed on her, I used a CD of the mother's chilling "911" call.

The purpose of a mediation is to persuade the defense that they face significant exposure at trial. Even though there are no rules of evidence at mediations, I use exhibits and demonstrative evidence that I know will be admissible at trial. Although I may make an exception, for example, a narrated day-in-the life, I want to avoid using evidence that is dismissed because defense counsel advises the insurance adjustor that a jury will never see it.

I always caution my client not to go into a mediation believing that they must come out of it with a settlement at any cost. Every experienced plaintiff's counsel has seen the mediation process abused, with the defense proffering a trivial offer, and using the mediation for discovery purposes. Other times, if the defense sees a strong plaintiff's case and is unable to extract excessive concessions at mediation, a case that fails to settle by the end of the day, may still settle before trial. The mediation will not have been wasted, because it set the stage for settlement.

I will write a piece on the subtleties of the mediation process in another blog. Mediations can be useful tools, if prepared for thoroughly, and attended with the attitude that trial is the answer if the defense is too stingy by mediation's end.

Originally posted at InjuryBoard by Ken Margolin