Over the course of the past week, all four members of my family have been stricken with some permutation of fever, coughing, vomiting, chills and runny nose.

As a parent, there are few things that I enjoy less than checking my baby’s temperature rectally.  We’ve tried our best to quarantine everyone as much as possible, and today everyone is finally back to work/day care except me.  I’m doing the telecommuting thing, and I might catch one of my afternoon appointments and just call it a day while the antibiotics continue to do their thing.

So, here’s some good Monday reading:

• Avoid becoming a medication error statistic:  Virginia lawyer Ben Glass gives six tips for all of us to prevent medication errors.
• Cloud computing:  Noted tech lawyer Bob Ambrogi discusses the California bar’s recent opinion on the ethics of cloud computing (essentially, storing confidential client information in some form on the Internet).  Every firm should evaluate what they are putting out there.
• Model jury instructions for “plugged in” jurors:  One lawyer took a stab at some proposed jury instructions to instruct jurors on conflating their trial responsibilities and social networking opportunities.
• Typography:  This is what passes for fashionable lately among us nerd lawyers.  There are a whole host of articles and books being written about the use the type, white space, margins and everything related to typography, as a complement to the persuasion of our actual words. Click the link and click “One-Click Download” to get a recent paper on typography by the University of Colorado’s legal writing professor, Derek Kiernan-Johnson.

Stay healthy, everyone.

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Today is March 9, 2010. If my calculations are correct, the Maryland General Assembly has 35 days left in this year’s legislative session. March madness indeed. (I apologize if you were expecting this blog post to be about the NCAA tournament. I tried. I really did. Despite my best efforts, I could not reasonably connect young lawyering to the NCAA tournament. I suppose I could have written about work distractions caused by the tournament. But I think that holds true for all lawyers – young and not-so-young).

Of particular interest to me are two bills, one in the House (HB 622), and one in the Senate (SB 769), that seek to increase the maximum amount of noneconomic damages allowable for personal injury actions and wrongful death actions arising out of medical malpractice. Currently, noneconomic damages are generally capped at around $650,000.00, depending on when the cause of action arose. While the House bill and the Senate bill are slightly different, both bills would effectively increase that limit to $740,000.00 for causes of action arising in October or November 2010.

I do think Sen. Gladden and Del. Waldstreicher are putting their best feet forward on this issue, but I am forever amused at the arbitrary amounts our legislators seem to come up with as it relates to capping awards in medical malpractice cases. In all honesty, arbitrary does not even begin to describe it – it’s downright random.

So, why $740,000.00? Read the rest of this entry »

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Last week, in the case of Lebron v. Gottlieb Memorial Hospital, the Illinois Supreme Court overturned its state’s cap on non-economic damages in medical malpractice cases.  Interestingly, the cap was overturned on separation of powers grounds, with the Court holding that the judiciary’s power of remittitur had been usurped by the legislative cap.  This is interesting because most constitutional challenges to medical malpractice caps or non-economic damage caps are rooted in equal protection.  Indeed, I think this is the first cap to be overturned on separation of powers grounds.

The timing of the decision is also quite interesting.  Our leaders in Washington are in the midst of trying to overhaul our nation’s health care system.  And conservatives are desperately trying to make tort reform part of any health care reform package.  The LeBron decision may just compromise that agenda to a certain extent.

On a more local level, LeBron may also impact an important case set to be heard by the Maryland Court of Appeals in March. Read the rest of this entry »

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On Friday, January 22, 2010, my law firm was the first in the area to file suit against Dr. Mark Midei and St. Joseph Medical Center for improperly placing stents in patients when it was not medically necessary.  As most of you know, the story itself, as well as the cases that have been filed, have made local and national headlines.

In case you live under a rock somewhere, I’ll summarize the situation as quickly as possible:  for reasons that are not entirely known at this point, the federal government began a probe into the stent procedures being performed at St. Joseph Medical Center.  The federal probe apparently sparked an internal investigation.  As part of the internal investigation, St. Joseph Medical Center identified 369 patients from 2008 to 2009 who may have had stents placed when it was not medically necessary.  The common denominator in all the cases was Dr. Mark Midei, a cardiologist at St. Joseph Medical Center, and the director of St. Joseph’s cardiac catheterization laboratory.   In response, St. Joseph’s began notifying the 369 patients, as well as each patient’s primary cardiologist, via letter.

Even though I have only been doing this work (i.e., medical malpractice) for three years, I can say with great conviction that these cases are unlike anything I’ve seen before.  The senior partners in the firm have echoed a similar sentiment.  What makes these cases so different is that it appears as though the acts of this particular physician may have been deliberate.

Not surprisingly, every single client that has walked through our doors with a St. Joseph stent letter in hand has been full of emotion.  They generally feel as though they have been violated in the worst way.

One of our clients, who professed to be an avid supporter of tort reform, broke down in tears when we began discussing her case.  She did not want to believe that a doctor was capable of the acts alleged.  But she strongly believes the allegations are true.  Sadly, her faith in the medical system has been shattered.  Both St. Joseph and her treating cardiologist confirmed that the single stent she had placed in her heart was not medically necessary.  Dr. Midei had told her that her artery was 80 percent blocked, when in fact it was only 20 percent blocked.  She’ll now have to be on medication for the rest of her life.

These cases have brought out some pretty unique emotions in me as well.  My job is to sue doctors, hospitals and other health care providers.  As a result, I see horrible cases of medical negligence every single day of my life.  Yet, no case before these stent cases has shaken my faith in our medical system.

Unfortunately, I’m seeing things a little differently now.  Only time will tell…

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This past year was quite a memorable year for me.  One of the most significant events was that I went from being a med mal defense lawyer back to being a Plaintiffs’ med mal lawyer.

Because the whole defense lawyer vs. Plaintiffs’ lawyer thing can be so polarizing when it comes to medical malpractice work (i.e., once you’re on one side you stay on that side), I cherish that I have now actively participated on both sides of the table.  Below you will find some commentary about how the two sides really differ: Read the rest of this entry »

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As a plaintiffs’ attorney, I consider most of my work to be that of the underdog. I read a statistic yesterday (unconfirmed) that trials are twice as likely to have a defense verdict as a plaintiff’s verdict; I recall other statistics saying that MedMal cases are something like 75% defense verdicts. From my side of the aisle, this is an uphill battle. Add to this the well-funded corporations and insurance companies (and the huge workload of day-to-day plaintiff practice), and you have the makings of a good underdog story.

I remember my first solo hearing. It was a MedMal case in Virginia, we represented the family of a woman whose lung cancer was missed twice by her physicians. By the time they caught it over two years later, it had advanced to the point where she only had about four months to live. The hearing focused on whether the defendants could obtain the psychiatric records of our plaintiff, the daughter of the decedent. Our client did not want to provide the information — there was a lot of very personal material there. Defendants pressed for the information, alleging that it was relevant to how much her mother’s condition and dying affected her (we had, of course, claimed emotional damages). We argued back that we were not going to mention to the jury that the daughter was seeing a psychiatrist, and that plaintiff was allowed to dictate the extent of her emotional distress claim. To be honest, I did not believe it was great argument, but there weren’t many options. In fact, the entire firm believed we would lose on this argument (probably why I was saddled with arguing the hearing).

Read the rest of this entry »

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