Articles Posted in States

Here are 5 interesting Virginia jury verdicts in 2015 that you might find interesting:

$13,000 Settlement – A 31 year-old man is driving his car on the highway at a rate of around 60 mph. He approaches an intersection where a woman driving a pickup truck is attempting to vaflagmake a turn in the middle of the intersection. She starts to travel out into the intersection but stops upon seeing another driver’s car trying to make a left turn in front of her. Contact was unavoidable at that point, and the woman clips the man’s tires. He immediately complains of neck pain and is transported to the hospital via EMS, where doctors diagnose him with soft tissue injuries. He sues both of the involved drivers, claiming that they were negligent in the operation of their vehicles. The defendants contend that plaintiffs injuries were actually from a motorcycle accident that he sustained years ago. Prior to trial, the parties settle for $13,000.

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There have been a lot of interesting personal injury and wrongful death verdicts and settlements in 2015 in Pennsylvania.  Here are five verdicts you will find of particular interest. paflagbl

$450,000 Verdict – A woman is descending the stairs at her row home when she slips on one of the middle steps. She reaches for the hand rail, but just misses it, causing her to fall down the remaining stairs. The woman calls an ambulance, which transports her to the emergency room. At the ER, she is diagnosed with a fractured shin bone and a tear of the quadriceps. She has to receive care after the fall given that her leg is immobilized. After the accident, she sues the property-owner, alleging negligent maintenance of the stairs. In her lawsuit, she brings up the fact that she had told the property-manager about how slippery the stairs were on two occasions. At trial, her stair-expert suggests that the stairs were covered with too much polyurethane. This convinces the jury, who awards her $450,000.

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I think sample settlements and verdicts are a useful tool in conjunction with other tools to help victims better understand at least the range of values in a medical malpractice case.  Clearly, no two cases are the same and you cannot summarizes a case in a paragraph.  Sometimes, I have tried or settled cases where there is no way I could summarize the case in a way that would explain why the plaintiff won or why the verdict was as high or low as it was.  Said differently, reading these is important and education in understanding the value of medical malpractice claims in Illinois but you can only learn so much from these.  If you have what appears to be an exactly identical case, the results could be very different.

All of these verdicts are from 2014.  Illinois is a big state  A lot of cases go to trial here.

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missouriAfter a divided Supreme Court of Missouri found the legislature’s $350,000 statutory cap unconstitutional 2 year ago, opponents of letting juries decide just how victims should be compensated said the sky was going to fall in Missouri. Last September, Missouri Supreme Court nixed a statutory limit on the amount of punitive damages that can be awarded against defendants.  Tort reformers screamed doctors would flee, malpractice rates would skyrocket, and no one would want to do business in Missouri.  This never happened. But now, some in the Missouri legislature want to pretend that never happened and want to take another shot at caps.

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erMany states are trying to carve out malpractice caps and different standards of care for emergency room doctors in medical malpractice cases.  The thinking starts out okay.  Emergency department doctors should be given the benefit of the doubt because things are happening so quickly.   But ER doctor are always getting the benefit of the doubt from jurors.  There is statistical evidence of this.  More importantly, the standard of care already bakes in the fact that things are sometimes happening at the speed of light in the ER.  That is why reasonableness is always based on all of the facts and circumstances.

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gavelstethescope2The first recorded opinion that I have seen in 2015 is a reminder to medical malpractice victims that there is rarely another option to hiring a lawyer in a medical malpractice case.

In Bagley v. Rochester General Hospital, a woman presented to the renal dialysis unit with complaints of abdominal pain, constipation, and complications from end-stage diabetic renal disease.  This was, regrettably, not a healthy woman.  The hospital did some tests and sent the woman to the emergency room believing that she had bacterial peritonitis as a result of being on dialysis.  The woman’s condition went downhill from there and she died of cardiac arrest.  Plaintiff contends that the real problem was a ruptured acute appendicitis, not peritonitis.

Let me start with a blunt statement: our law firm would never take this case.   Let’s assume it is exactly as the victim’s family says.  The hospital’s doctors screwed up and misdiagnosed the patient.  Even if this is true — I would bet that, although it is just a hunch on these facts —  I don’t think it is a viable medical malpractice action.

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tuftsThere are a lot of differences between good hospitals and bad hospitals.  It is an all too common trope to claim that one thing encapsulates the differences between good and bad.  It is always more complicated than that one little thing.  That said, if you watch hospitals closely, it is amazing how often you see the best hospitals – the Mayo Clinic, Hopkins, the Cleveland Clinic – owning up to their own mistakes and trying to figure out new ways to conquer them.

Tufts Medical Center also appears to be on that list although maybe more reluctantly and with a bit more dragging of them then we might want.  Specifically, Tufts is attacking a problem that causes malpractice that last November, unleashed hospital and government inquiries that have led to widespread safety improvements in Tufts operating rooms this year and highlighted medical errors involving “cognitive bias” — an area of growing interest among researchers. Continue reading

penncourtHere are some interesting malpractice statistics in Pennsylvania for 2013:

  • Doctors won 77% of the medical malpractice cases that went to a jury trial. In fact, there is not a single jurisdiction in Pennsylvania where the plaintiff had a winning record in 2013.
  • 1,546 health care negligence lawsuits were filed in Pennsylvania in 2013.  In 2012, the number was 1,510.  Putting this in context, this is down 43% from 2000-02.  Philadelphia, long considered to be the plaintiffs’ home field in Pennsylvania, filings are down 68% from 2000-02.

Some commercial insurance policies are written so that defense costs come out of coverage limits.  It’s called declining limits (or wasting asset)  because as the case is proceeding the coverage limits are declining.  So the amount of liability coverage decreases, dollar for dollar, with every billable hour or cost in the case.   For defendants, this is a real issue.  The policy limits that protect them against a judgment are being whittled away by the very people that stand between them and a verdict that starts digging in their pockets.   In really large cases, this does not have a huge impact.  But with smaller policies,  a declining limits policy can be a real game changer. 

My first case like this was a boiler accident where I sued the designer of the boiler.  The company didn’t really have two nickels to rub together so while we might have hit them with a bad faith verdict, if they offered the policy limits there was not much we could do.   This policy had another goofy clause.  They could get out of a $15,000 deductible if the case settled in a mediation.  Their lawyer asked me for a mediation.  I said no, just offer the policy.  He told me of the language and we agreed to the mediation.  They tried to get me to bend when I got to the mediation.  I didn’t, they put up the money, and was that.  But if I had known about the declining policy limits… I have no idea what I would have done… I guess push for settlement harder earlier.  Ultimately, the difference would have been very little.   It was pretty fun to see all of the defense lawyer’s bills which we rarely never have the opportunity to see.

It is hard, under these circumstances, to even make a demand beyond “give me all of your money.”   There is not an accountant that gives an updated total on a daily basis.  So it is  impossible for plaintiffs to make a demand that they know to be within policy limits, which is critical for a bad faith claim after an excessive verdict.

Policies like this make me glad I’m not an insurance defense lawyer.   The conflict issues this kind of policy creates are through the roof.   The insurance company may want to go all out to protect against a policy hit.  But maybe the insured just wants that policy offered early and wants the lawyer to do less to make sure there is enough to satisfy a judgment.

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courtroomStatutes of limitations can be very unfair.  But as harsh as the SOL can be, a statute of repose can far more draconian, closing the courthouse steps on cases where the victims did everything they could to bring a timely action.

What is a statute of repose?  It is amazing how many tort lawyers do not know until they learn the hard way.   A statute of repose provides a date certain by which a claim must be brought.  In most states, there are no excuses.   Unlike a statute of limitations, it often cannot be tolled by the date the injury should have been discovered.

I can’t deny there is a purpose to the statute of repose.  The legislature wants to create some outer time limit where a claim is just too old to be pursued, no matter what.  But some states have these short statutes of repose, seven years in Pennsylvania and only five in Maryland for medical malpractice cases that are just unfair.

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