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Earlier this year in Winter v. Gardens Regional Hospital, the 9th Circuit Court of Appeals revived a False Claims Act case filed by the Director of Care Management in a California hospital that claimed nearly $1.3 in Medicare claims that sought reimbursement for inpatient hospitalizations that were not medically necessary.

The U.S. District Court of Utah dismissed the case, without leave to amend, for failing to state a claim under the FCA. Specifically, the court believed that the qui tam plaintiff’s complaint failed to state a cause of action under the FCA because the allegations as a matter of law were “subjective medical opinions” that demonstrated a mere “difference of opinion” as to the medical necessity of inpatient hospital admissions.

Facts of Winter v. Gardens Regional Hospital

In Georges v. Ob-Gyn Servs., P.C. the defendants, a midwife, and a medical practice, unsuccessfully attempted to overturn and $1.6 million in interest that accumulated as the result of defendants’ refusal to accept an offer of compromise after a $4.2 million jury award.

Facts of Georges v. Ob-Gyn Servs.

The plaintiffs’ birth injury lawyer (James D Horwitz of Koskoff, Koskoff & Bieder) filed their original complaint alleged that the defendants committed malpractice during the mother’s pregnancy, labor, and during the delivery of her child.  The plaintiffs claimed that this malpractice caused the child to suffer severe and permanent injuries.  The lawsuit claim that result of the defendants’ medical malpractice in managing shoulder dystocia, a young girl sustained a severe, permanent injury to her right brachial plexus.

According to a Jury Verdict Research study that was published this month, the average compensation for a personal injury lawsuit in Texas over the last six years is a compensatory median award for personal injury trials in Texas is $826,892. The highest verdict was over $100 million which, obviously, inflated the average verdict. The median verdict is only $12,281. Certainly, medical malpractice reform in Texas has not helped this number in recent years.  Unless it is a birth injury case or other claim with long term catastrophic injuries and future medical care or future lost wages, a Texas medical malpractice lawyer is hard to find.

Keep in mind too Texas is not so much a state as several countries in terms of how they value personal injury cases:

Sample Recent Verdicts in Texas

Jury Verdict Research’s recent study finds that the compensatory median award for personal injury trials in New York is $287,628, dwarfing nationwide median is $34,550.

New York has favorable juries, particularly in its urban areas. But the reality is that this number is distorted by the lack of smaller and mid-sized car accident lawsuits. Under New York’s no-fault law, an insurance company is required to pay drivers, passengers, and pedestrians up to $50,000.00 for their legitimate economic and medical losses but does not provide for pain and suffering. Only permanent injuries cases can recover more than $50,000. This leads to fewer lawsuits in smaller cases – of which there are many – which increases the overall award in New York.

Jury Verdict Research published a recent study indicating that the average verdict in personal injury lawsuits in Ohio is 303,955. The median personal injury verdict in Ohio is only $13,000. Approximate three percent of Ohio personal injury verdicts exceed $1,000,000.

Recent  Settlements and Verdicts in Ohio

  • 2020, Ohio: $115,000 Settlement. A 78-year-old nursing home resident was found unresponsive in the facility’s dining room after choking on a piece of chicken. He had a medical history of swallowing difficulties and was missing several teeth. The man was brought to the hospital after being found, where he died within a few hours. His estate sued the facility for leaving him unsupervised as he ate. Their expert dietician testified that she found many standard of care violations throughout the facility. The facility contended that they found no signs of swallowing difficulties and argued that the man’s dysphagia improved before he was admitted there. This case settled for $115,000.

Under 42 Pa.C.S. §§ 8541 et seq., political subdivisions in Pennsylvania, including public schools, receive a broad degree of governmental immunity under Pennsylvania tort law. But there are specific exceptions. In the recent case of Brewington v Philadelphia School District, the state’s high court expanded the “real property exception” to governmental immunity.

Case Facts

A nine-year-old boy was engaged in a relay race during his gym class at a Philadelphia elementary school when he tripped and fell. As a result, he was propelled into the concrete gym wall where he hit and cut his head causing him to lose consciousness. Soon after, doctors diagnosed him with a concussion that prevented him from attending school for nearly two months after the incident and experienced continuing headaches and memory problems for years after. The gymnasium wall in its surrounding entirety lacked any kind of padding to cover the concrete and provide at least some degree of protection.

A Jury Verdict Research study found that the median award in Minnesota in personal injury cases is an even $30,000. Minnesota personal injury plaintiffs receive an award in 67 percent of cases that go to trial.

The median compensation in Minnesota is somewhat below the national median of $38,179 and I suspect Minneapolis, St. Paul, and Rochester verdicts inflate that average a bit. But because Minnesota has no-fault coverage (or PIP) in motor vehicle wreck claims up to $40,000 ($20,000 for medical bills and $20,000 for economic loss) that is subject to the collateral source rule, Minnesota personal injury lawyers tend to have few small cases in Minnesota. In other words, Minnesota law provides that awards are offset by collateral source payments (if the source of reimbursement does not have a subrogation right). So the gap between Minnesota’s median and the national median verdict is probably wider than the numbers reflect. Not surprisingly, the U.S. Chamber of Commerce found Minnesota juries to be the “15th best” which means the 15th worst for personal injury victims.

Interestingly, recovery probability in Minnesota tort suits is 67% compared to the national average of 53%. I would think that the fewer amount of smaller claims would lead to a lower recovery probability because there are less small cases which rarely involve a liability dispute (which you would think would actually lower the recovery probability). Accordingly, it is fair to infer from the data that Minnesota juries are inclined to believe Minnesota plaintiff’s claims as to how/why the crash/malpractice/injury occurred.

new york statute limitations child abuseIn February 2019, New York Governor Andrew Cuomo signed Child Victims Act into law. It extends the statute of limitations for victims of child abuse.  Child sex abuse victims are now allowed to file criminal charges against their abuser before they turn 28. Victims are allowed to file civil charges against their abuser before they turn 55. Previously, victims had to file both civil and criminal charges before they turned 23. The law also allows a one-year period for individuals to file cases that happened longer than what the statute of limitations would have allowed. It also requires judges to have some training on how to handle child sex abuse cases.

What are statutes of limitations, and why do we have them?

Statutes of limitations (SOL) are a predetermined period that the state is allowed to charge someone with a crime. Different crimes have different extended periods of time when one can file charges against someone. However, the same crime may have a different SOL depending on the state. There are SOL laws because of concerns that witness testimony might be unreliable. A victim may not necessarily remember enough about their abuse that the jury may not find them credible. Physical evidence may also deteriorate over time, which further questions credibility.

Why extend the statute of limitations if someone might not remember what happened to them?

DNA, audio or video recordings, emails, and texts do not disintegrate over time, making them more credible forms of evidence over a longer period. Society has also improved their understanding of the trauma that victims of child sexual abuse experience. People now understand that it can take many years or even decades before someone finally comes forward. While laws on statutes of limitations are put in place to ensure credibility, there are exceptional cases such as child sexual abuse which necessitates lengthened the statute of limitations.

In October, a birth injury malpractice verdict was awarded against a Minnesota midwife, which demonstrates the very real dangers of failing to accurately estimate the fetal size and weight before delivery. The plaintiff, a mother from a small town in Eastern Minnesota, sued the certified nurse-midwife from Allina Health negligently mishandling the delivery of her son in January 2016.

This was the plaintiff’s second child and throughout her pregnancy, she repeatedly told her midwife at Allina Health that the baby felt considerably larger with this pregnancy. The midwife reassured her that the baby was normal sized and estimated that he would be around 6 pounds at birth. Unfortunately for the midwife, this weight estimate turned out to be disastrously wrong.

Fetal Macrosomia

In Oakland County, Michigan, a jury awarded a $130 million settlement on behalf of a boy suffering from cerebral palsy. The jury found two medical technicians liable for causing the child’s severe and permanent brain damage that resulted in cerebral palsy. The $130 million incident was one of the largest jury settlements in Michigan history.

The Facts of the Case

The lawsuit was filed on behalf of the boy and his mother in 2016. The child was 2 months old when the injury occurred in 2006. According to the plaintiff’s attorney, the child requires help getting in and out of the bathtub. The boy’s mother is a full-time caregiver for her son.  These are tough cases.  You can hear about 1,000 of them but every time it is like you are hearing the facts for the first time.  It is heartbreaking.

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