Allen & Allen Law Blog » Medical Malpractice

THE AMERICAN WAY: A Plea for Responsibility and Accountability under the Law for All

ejk — Thu, 15 Dec 2011 14:27:47 +0000

Fight Tort Reform

Author: Attorney Malcolm P. McConnell, III

Medical Malpractice Attorney Malcolm P. McConnell, III

How important to you are traditional American values? Do you believe that America rose to greatness due to hard work, self-reliance and personal accountability? Do you believe that for America to remain great, we must preserve these values as individuals and as a nation?

Of course you do. So do I.

We teach our children, “You break it, you bought it.” We teach them to clean up their messes. We teach them to pay their debts and accept responsibility for their mistakes. We hope that by teaching them these values of personal accountability, they will grow into responsible, mature contributing members of society. We also hope that society will reinforce those values, with laws and customs that promote self-reliance and accountability. These are the values of prosperity and integrity. They are also the values of equality because they apply to all persons, rich and poor, strong and weak, human and corporate.

To exempt any class of persons from accountability would be unfair. It would be un-American. This much is obvious.

But it would also be harmful to make special exceptions. And it isn’t hard to see why.

Personal accountability is not merely an abstract virtue. It is not merely accumulating “brownie points” that we can cash in after we die for a better residence in heaven. Accountability promotes the general welfare by rewarding good behavior and discouraging bad behavior. If I am forced to pay for the harm I cause, I will try to avoid causing harm. Never mind altruism and good character; I will want to avoid causing harm for purely selfish reasons if I know I am likely to be held accountable for my actions.

When we make exceptions to accountability, we not only punish victims of bad behavior (heaping injustice on top of injustice), but we provide incentive for bad behavior, especially when that bad behavior was motivated by greed. Liability motivates people to act more safely.

Furthermore, when we see that people are held accountable for their actions by the law, we are more likely to perceive our legal system as one that works for us all. When people are not held accountable, we have less confidence in the justice system and the government in general. A system that does not appear to be fair and equitable cannot hope to maintain the support and confidence of the general public.

This is an example of why tort reform – especially medical malpractice reform – is bad public policy. Reducing the liability of health care providers – whether individual physicians or multi-billion dollar corporate mega-companies like HCA – reduces their incentive to minimize risk. Reducing their liability adds injustice to the often tragic, life-altering injustice suffered by their victims. Singling out a class of persons as “more valuable” and “above accountability” is un-American.

Fight the creation of a privileged class. Resist any attempt to reward wrongdoers. Protect innocent victims.

Fight tort reform.

About the Attorney: Mic McConnell is a Richmond medical malpractice lawyer. With over 20 years of experience, Mic has handled challenging cases all over the state of Virginia in almost every medical specialty for over twenty years.

Medical Malpractice “Reform” – Caps are Charity for Corporations

ejk — Mon, 22 Aug 2011 14:24:00 +0000

Medical Malpractice Attorney Malcolm P. McConnell, III

Author: Attorney Malcolm “Mic” P. McConnell, III

Virginia was one of the first states in America to enact special protection for negligent health care providers at the expense of their victims. In 1976, the General Assembly enacted a $750,000 “cap” on recovery in medical malpractice cases (Virginia Code Section 8.01-581.15). Since its beginning, the “cap” has been increased and currently stands at $2,000,000.00. Recent legislation will increase the cap by $50,000 per year for the next twenty years.

The “cap” does not limit meritless malpractice cases. It affects only legitimate, meritorious, proven cases. Moreover, the “cap” does not affect victims whose injuries are relatively minor. Rather, the “cap” affects only those who have been profoundly injured by health care providers who have been proven negligent. In Virginia, medical malpractice “reform” has created a privileged class of citizens who are not held accountable for the harm they cause to others. The victims of that harm and the taxpayers bear the cost that flows from the special privilege granted to health care providers..

The rationale behind Virginia’s decision to protect negligent doctors from accountability has always been that doctors were reluctant to practice medicine in Virginia for fear of being sued, or that they could not remain in practice in Virginia due to prohibitively high malpractice insurance costs. There have been accusations that doctors were withdrawing from practice, moving to other states, or scaling back on their practices (for example, obstetricians refusing to deliver babies and practicing only gynecology). All of these arguments presuppose a traditional model of private practice physicians who practice alone or in small practice groups owned by the physicians themselves. But this model is outdated. And while any unfair laws should be reconsidered, it is especially important to reconsider unfair laws which are based on circumstances which are no longer true.

A New York Times article from last year (March 25, 2010) reported that as recently as 2005, more than two-thirds of medical practices were physician owned. But by 2008, that share had dropped below 50%, and the drop has continued. On November 8, 2010, The Wall Street Journal reported that 55% of physician practices were hospital-owned in 2009. More and more practitioners are practicing in the employ of fewer and fewer entities, creating health care monopolies.

And it’s big business. Hospital Corporation of America (HCA), which owns local Richmond area hospitals including Henrico Doctors Hospitals and Chippenham/Johnston-Willis Hospitals, reported 2010 Fourth Quarter revenues of $7.736 billion and net income attributable to HCA Holdings, Inc. of $283 million, an increase of 30.8% over the same quarter the previous year. HCA, like other large corporate health care entities, owns many physician practices and is expanding that market share.

I recently represented a young child who lost an arm due to hospital negligence. That child will live a long life with only one arm. But the compensation available for that tragic loss was arbitrarily limited by an unfair law which was passed before that beautiful child was even born. Why should billion dollar corporations be insulated from liability while innocents suffer?

The circumstances have changed. The “answer” no longer makes sense, if it ever did. Time for a change. Time to restore balance.

Medical Malpractice: Wrong-Site Surgeries Increasing at an Alarming Rate

ejk — Wed, 22 Jun 2011 15:04:26 +0000

The Pain of Wrong-Site Surgeries: A Washington Post Article

“Wrong site” surgery, or surgery on the wrong body part, is an easily avoidable phenomenon, but the frequency in the United States is increasing at an alarming rate. Reported occurrences have nearly doubled since 2004, and prominent health officials believe that the number of reported cases represents only a fraction of total wrong-site surgeries. These mistakes usually have serious consequences, as in the case of a young teenager whose wrong-site surgery left him permanently and needlessly brain-damaged. Hospitals possess a simple and easily-implemented procedure for virtually eliminating the occurrence of these errors. By adhering to rudimentary pre-surgery protocol, such as a “time-out”, surgeons could prevent the majority of wrong-site errors. (A “time-out” is a scheduled pause before surgery when all personnel involved in the surgery double-check the basics, such as verifying the nature of the surgery to be performed, that all personnel and equipment are present for the surgery, and identifying the correct body part to be operated upon).[1] Despite the identification of the prevalence of wrong-site surgery as early as 1997, however, little headway has been made in removing this simple obstacle to the provision of high quality healthcare. This failure demands further exploration of the underlying causes of wrong-site surgery, their implications, and the available solutions to this sobering trend.

[1] For more information about the importance of the “time-out”, see “The Checklist Manifesto” by Atul Gawande, M.D. (Henry Holt & Co., LLC. New York, New York; 2009).

Read the following Washington Post article on Wrong-Site Surgeries here: http://www.washingtonpost.com/national/the-pain-of-wrong-site-surgery/2011/06/07/AGK3uLdH_story.html

The Pain of Wrong Site Surgery

By Sandra G. Boodman, Published: June 20

When the president of the Joint Commission, the Chicago-based group that accredits the nation’s hospitals, unveiled mandatory rules to prevent operations on the wrong patient or body part, he did not mince words.

“This is not quite ‘Dick and Jane,’ but it’s pretty close,” surgeon Dennis O’Leary declared in a 2004 interview about the “universal protocol” to prevent wrong-site surgery. These rules require preoperative verification of important details, marking of the surgical site and a timeout to confirm everything just before the procedure starts.

Mistakes such as amputating the wrong leg, performing the wrong operation or removing a kidney from the wrong patient can often be prevented by what O’Leary called “very simple stuff”: ensuring that an X-ray isn’t flipped and that the right patient is on the table, for example. Such errors are considered so egregious and avoidable that they are classified as “never events” because they should never happen.

But seven years later, some researchers and patient safety experts say the problem of wrong-site surgery has not improved and may be getting worse, although spotty reporting makes conclusions difficult. Based on state data, Joint Commission officials estimate that wrong-site surgery occurs 40 times a week in U.S. hospitals and clinics. Last year 93 cases were reported to the accrediting organization, compared with 49 in 2004. Reporting to the commission is voluntary and confidential — to encourage doctors and hospitals to come forward and to make improvements, officials say. About half the states, including Virginia, do not require reporting. In two states that track and intensively study these errors, 48 cases were reported in Minnesota last year, up from 44 in 2009; Pennsylvania has averaged about 64 cases for the past few years.

Attention to the problem comes at a time of increased focus on the broader issue of medical errors, which a recent Health Affairs study found affected one-third of hospital patients. The federal government recently rolled out its Partnership for Patients program aimed at reducing medical mistakes. Medicare requires reporting and does not pay for wrong-site surgery, and many insurers have followed suit. Medicaid has announced a similar policy, to take effect next year.

What seemed pretty straightforward in 2004 now seems more complicated. “I’d argue that this really is rocket science,” said Mark Chassin, a former New York state health commissioner and since 2008 president of the Joint Commission, which has issued refinements to the 2004 directive. Chassin said he thinks such errors are growing in part because of increased time pressures. Preventing wrong-site surgery also “turns out to be more complicated to eradicate than anybody thought,” he said, because it involves changing the culture of hospitals and getting doctors — who typically prize their autonomy, resist checklists and underestimate their propensity for error — to follow standardized procedures and work in teams.

“It’s disheartening that we haven’t moved the needle on this,” said Peter Pronovost, a prominent safety expert and medical director of the Johns Hopkins Center for Innovation in Quality Patient Care. “I think we made national policy with a relatively superficial understanding of the problem.” Pronovost suggests that doctors’ lip service to the rules, which he calls “ritualized compliance,” may be a key factor. Studies of wrong-site errors have consistently revealed a failure by physicians to participate in a timeout.

Some recent cases: In April an ophthalmologist in Portland, Ore., operated on the wrong eye of a 4-year-old boy. In December 2010, Beth Israel Deaconess Medical Center in Boston reported that neurosurgeons had performed three wrong-site spinal surgeries in a two-month period. And after five wrong-site operations in less than three years, state officials in 2009 ordered that video cameras be installed in the operating rooms of Rhode Island Hospital in Providence, which was fined $150,000.

Wrong-site mistakes have multiple causes, experts say: mixing up the left and right sides; operating on a patient who was accidentally given test results belonging to someone else; marking the incorrect vertebrae in spinal surgery; neglecting to mark the site at all. Some occur even though a member of the surgical team thinks something might be wrong but fails to speak up, fearful of slowing the process or challenging the surgeon in charge.

Reported cases are “clearly the tip of the iceberg,” said Philip F. Stahel, director of orthopedic surgery at Denver Health Medical Center.

Stahel was lead author of a 2010 study of 132 wrong-site and wrong-patient cases reported by doctors to a large malpractice insurer in Colorado between 2002 and 2008, one-third of which resulted in death or serious injury. Among them were three men who underwent prostate cancer surgery although they were cancer-free. In 72 percent of cases there was no timeout.

Stahel says many doctors resent the rules, even though orthopedists have a 25 percent chance of making a wrong-site error during their career, according to the American Academy of Orthopaedic Surgeons, which launched a voluntary “Sign Your Site” campaign in 1997.

“It’s very frustrating,” said surgeon John Clarke, clinical director of the Pennsylvania Patient Safety Authority. “If you can’t solve the wrong-site-surgery problem, what can you solve?”

Ritualized compliance

The legal system typically offers little recourse: One study found that only a third of wrong-site cases result in a malpractice suit. Stahel’s team found that the average payment was less than $81,000 in cases resulting in a lawsuit and $47,000 in those resolved without legal action.

While some wrong-site errors inflict little or no injury, either because they are corrected early or did not involve major surgery, others are devastating. Last year a jury returned a $20 million negligence verdict against Arkansas Children’s Hospital for surgery on the wrong side of the brain of a 15-year-old boy who was left psychotic and severely brain-damaged. Testimony showed that the error was not disclosed to his parents for more than a year. The hospital issued a statement saying it deeply regretted the error and had “redoubled our efforts to prevent” a recurrence.

“I felt violated,” said Lexie Fincher, 39, of Fredericksburg, whose Virginia surgeon in 2008 failed to mark the site of a benign tumor, then misinterpreted her MRI scan and operated on the wrong part of her shoulder, causing continued pain and leaving a scar. “It was absolutely avoidable.”

Clarke said researchers have discovered that the way a timeout is done and where it is performed make a difference, details that the protocol initially did not specify. Doctors who verify the site and procedure with patients before they are wheeled into surgery are less likely to make a mistake, as are those who explictly ask everyone on the team to speak up if they have concerns. “There’s a big difference between hospitals that take care of patients and those that take care of doctors,” Clarke said. “The staff needs to believe the hospital will back them against even the biggest surgeon.”

‘They will all die’

Many experts say that medicine needs standardized rules similar to those in aviation, which bar takeoff until a pilot and co-pilot complete a prescribed checklist without interruption. Airlines have a vested interest in a culture of safety that Stahel says medicine lacks. In surgery “sometimes people say, ‘Well, this isn’t quite right, but someone else will address it.’ In aviation they don’t do that, because the plane will crash and they will all die,” he said.

“Health care has far too little accountability for results. . . . All the pressures are on the side of production; that’s how you get paid,” said Hopkins’s Pronovost, who adds that increased pressure to turn over operating rooms quickly has trumped patient safety, increasing the chance of error.

Kenneth W. Kizer, who coined the term “never event” nearly a decade ago when he headed the National Quality Forum, a leading patient safety organization, said he believes reducing the number of errors will require tougher reporting rules and increased transparency. Kizer, California’s former chief health officer, advocates mandatory reporting of wrong-site errors to a federal agency so cases can be investigated and the results publicly reported.

“How can you say these things should not be reported?” asked Kizer, director of the Institute for Population Health Improvement at the University of California at Davis. “These are the health-care equivalent” of plane crashes.

Shepard Hurwitz, director of the American Board of Orthopaedic Surgery, said he believes withholding payment for errors may prod hospitals fearful of offending their medical staffs to enforce safety rules and take action against recalcitrant doctors. “I think before it was thought to be the cost of doing business,” Hurwitz said. “I think the first time it happens, the person should be taken out of circulation until they understand what they did wrong. And if it happens again, they’re finished.”

One surgeon’s mea culpa

Hand surgeon David C. Ring was in his office at Massachusetts General Hospital dictating notes when the sickening realization hit him: The carpal tunnel release he had just completed was the wrong surgery.

“It was the worst feeling of my life: The ground literally falls beneath you,” Ring recalled in an interview. He returned to the operating room and informed the staff, then apologized to the 65-year-old patient, who spoke only Spanish and agreed to let him perform the correct surgery, a trigger finger release.

Several factors contributed to Ring’s mistake, which he wrote about last year in the New England Journal of Medicine; chief among them was the failure to perform a timeout because of various distractions.

The patient did not file a lawsuit, and Ring said the hospital paid her a modest amount in compensation. As a result of the case, safety monitors were assigned to the hospital’s operating rooms, and nurses were instructed not to hand the knife to the surgeon until the timeout is completed.

“I was an advocate before, but now I really believe in safety systems,” said Ring, who speaks to medical groups and says he still “tears up” when discussing the error. “I don’t want any patient or doctor to feel like I felt.”

This story was produced through a collaboration between The Post and Kaiser Health News. KHN is a news service of the Kaiser Family Foundation, a nonpartisan health-care policy research organization unaffiliated with Kaiser Permanente.

Woman wins $1.5M for negligent in vitro therapy – Virginia Lawyers Weekly Article

ejk — Tue, 10 May 2011 15:11:45 +0000

Attorney Jason W. Konvicka

Attorney Malcolm P. McConnell

Allen & Allen Medical Malpractice Team – 1.5 Million Verdict for Medical Negligence in In Vitro Therapy Case

Article By Alan Cooper
Source: Virginia Lawyers Weekly – Published: May 10, 2011

An Arlington jury has returned a $1.5 million verdict for a woman who alleged that she suffered a stroke because a physician was negligent in providing in vitro fertilization therapy.

At the time of the stroke in November 2008, the plaintiff, Maimunah Jafer, was relatively young for IVF therapy at age 30. She also had a hormonal disorder and low body mass. Those factors put her at risk for ovarian hyperstimulation syndrome, according to her attorneys, Malcolm P. McConnell III and Jason W. Konvicka of Richmond.

Despite the indications that Jafer was at risk, McConnell said, Dr. Michael DiMattina continued with the therapy, including the injection of a hormone to stimulate the ovaries to produce eggs so they could be taken from Jafer’s body and fertilized outside of it.

The hormone caused Jafer’s ovaries to become enlarged and fluid to leak from blood vessels and collect in her abdomen.

The loss of fluid thickened the viscosity of Jafer’s blood, which increased the risk of a stroke caused by a blood clot in the brain, and her physicians responded by injecting fluids into her bloodstream.

Her attorneys contended that DiMattina was negligent in two respects: he should have managed the treatment cycle differently or abandoned it altogether in light of the risk factors, and he should have administered anticoagulants in addition to injecting fluids.

Defense experts testified that administration of the hormone was appropriate. They said DiMattina had addressed the concern about a stroke from a blood clot by injecting fluids

Jafer initially lost most of the use of the left side of her body from the stroke, McConnell said. She has recovered somewhat but still walks with a limp and continues to have weakness and lack of dexterity in her left hand.

She claimed $368,943 in lost wages and medical expenses. A life care plan projected expenses for medication, ongoing physical therapy and devices to assist Jafer’s mobility around her home.

After the stroke, Jafer returned to part-time work as a speech pathologist but stopped working after she became pregnant without medical intervention and delivered a baby girl.

Judge Joanne F. Alper presided over the weeklong trial that concluded on May 2. Post-trial motions are pending.

Fairfax attorneys Richard L. Nagle and Paul T. Walkinshaw represented DiMattina. Nagle could not be reached for comment.

About the Attorneys: Malcolm “Mic” P. McConnell, III is a Richmond medical malpractice attorney. With over 20 years of experience, Mic has handled challenging cases all over the state of Virginia in almost every medical specialty for over twenty years. Richmond, VA personal injury attorney Jason W. Konvicka has a career spanning over 15 years and is experienced in handling medical malpractice cases, product liability cases and catastrophic injury cases.

General Assembly Overrides Medical Malpractice Veto to Raise the State Cap on Med Mal Awards

ejk — Fri, 08 Apr 2011 19:58:13 +0000

Medical Malpractice Attorney Malcolm P. McConnell

Introduction by Attorney of Malcolm P. “Mic” McConnell, III

Virginia is the cradle of American democracy. That proud heritage was exemplified on April 6, 2011 when the General Assembly overrode Governor McDonnell’s veto of HB 1459. HB 1459 represented lawmaking at its best: people governing themselves. For years now, lawyers who speak for the victims of medical malpractice have been at odds with the Medical Society of Virginia and the Virginia Hospital Association regarding the rights of victims and the protection of wrongdoers. Yet, over the past two years, these three groups have been working and cooperating to reach a compromise that will continue to offer protection to health care providers while protecting medical malpractice victims from suffering further harm as inflation shrinks their arbitrarily “capped” recoveries. This year the trial lawyers and the health care providers reached a compromise which they presented to the General Assembly. The General Assembly, in turn, voted overwhelmingly in favor of that compromise: HB 1459. After Governor McDonnell vetoed the bill, the General Assembly kept democracy and self-governance on track by overriding that veto. Democracy works.

Assembly overrides med mal veto

Source: http://valawyersweekly.com/vlwblog/2011/04/06/house-overrides-med-mal-veto/

April 6th, 2011

The House of Delegates made quick work of Gov. Bob McDonnell’s veto of legislation that would raise the state’s cap on medical malpractice awards from $2 million to $3 million over 20 years.

After barely 10 minutes of discussion, the House overrode the veto this afternoon on a 93-7 vote, even more one-sided than the 89-7 vote by which the House adopted House Bill 1459.

The vote was closer on the Senate’s version of the measure, Senate Bill 771. The Senate overrode the veto by 29-11 on its bill. Both houses then had to vote on the bill from the other house, and the Senate overrode the veto on the House version by the same vote. The House vote on the Senate measure was 92-6 to override the veto.

The Medical Society of Virginia, the Virginia Hospital and Healthcare Association and the Virginia Trial Lawyers Association reached a compromise on the cap after two years of negotiation. They did so under a threat from the chairmen of the House and Senate Courts of Justice committees that the legislature might take action neither side would like.

Once they reached the compromise, the organizations lobbied forcefully for its passage, before and after the governor’s veto.

McDonnell said he vetoed the legislation because had campaigned against it in his race for governor.

Two budget amendments that also affect the legal system were killed. The House rejected on a 50-50 vote an amendment that the Virginia State Bar viewed as an effort to micromanage its budget. The amendment would have required the VSB to develop a plan to ensure that revenues are within 10 percent of expenditures and limit working capital balances to an amount that would cover three months of operations.

Read literally, VSB Executive Director Karen A. Gould said, the amendment didn’t take into account that most of the bar’s annual revenue is collected at one time so that its revenues far exceed three months of operating costs for part of the year but get spent down over the budget cycle.

In his 2011-12 budget, McDonnell had proposed taking $5 million from the bar’s operating reserve, but the legislature rejected the proposal.

The House approved the second amendment, which requires circuit judges to report to the Virginia Criminal Sentencing Commission when they defer judgment in the first instance and again at the conclusion of the case, on a 79-20 vote, but the Senate rejected it, 26-14. The amendment did not apply to laws, such as those involving first-time drug offenders or domestic assault, for which the legislature has already allowed deferred judgment.

Vetoes can be overridden only a two-thirds vote of each house. Budget amendments can be defeated by a majority vote in either house.

The amendment is a response to Hernandez v. Commonwealth, a decision by the Supreme Court of Virginia earlier this year that says judges have the authority to defer disposition of a criminal case and ultimately dismiss it. An effort to overturn the decision legislatively passed the House but failed in the Senate with a recommendation that the Virginia Crime Commission study the issue.

About the attorney Malcolm P. “Mic” McConnell: Mic McConnell is a Richmond medical malpractice attorney. With over 20 years of experience, Mic has handled challenging cases all over the state of Virginia in almost every medical specialty for over twenty years.

The Myth of “Frivolous Medical Malpractice Lawsuits”

ejk — Mon, 21 Mar 2011 14:52:38 +0000

Medical Malpractice Attorney Malcolm P. McConnell

Authors: Attorneys Malcolm P. McConnell, III and R. Clayton Allen

A recurring theme in the call to “reform” medical malpractice litigation is finding a way to curb “frivolous”[1] claims. In his recent State of the Union address, President Obama said: “ . . .I’m willing to look at other ideas to bring down costs, including one that Republicans suggested last year: medical malpractice reform to rein in frivolous lawsuits.”

That’s fine. And harmless enough, I suppose. I say “harmless,” because of this simple fact: there is no crisis caused by frivolous medical malpractice lawsuits. I know this for an indisputable fact. I know this because I have been a medical malpractice trial lawyer for well over twenty years. During that time I have represented patients and their families, but I have also defended nurses, hospitals, physical therapists and doctors from most medical specialties. And while I certainly won’t claim that no one has ever filed a frivolous medical malpractice case, I still know that frivolous claims are not a significant problem for our country. I know this because filing a frivolous medical malpractice case would cost a fortune for the person bringing the suit. Any lawyer who files frivolous medical malpractice cases will go bankrupt long before he has the time or opportunity to affect the system.

We lawyers, like everyone else, have bills to pay, and we need to provide for our families. Any medical malpractice claim I look at which lacks merit – which is to say, is frivolous – is a claim I decline to pursue. I know I will spend an enormous amount of time and energy without making a penny. Moreover, I know that I will have to spend money to bring the claim to trial, and there is NO chance I will ever get that money back.

Frivolous medical malpractice claims do not make money. They LOSE money. Big time.

Obtaining medical records takes time and costs money. Organizing them, reading them, understanding them and researching them costs time and money. And sometimes after spending this money, I realize the case nost likely cannot be pursued successfully. So we withdraw from the case before suit is even filed.

Finding expert witnesses takes time and costs money. Expert reviews cost money – LOTS of it. Filing lawsuits costs money. Taking depositions costs money. Traveling to the locations of the other side’s expert witnesses costs money. Bringing my witnesses to trial costs money. And then, if it was a frivolous medical malpractice case, I LOSE. Since I, like virtually all attorneys who handles medical malpractice cases, take cases on a contingency fee – which means a percentage of the recovery– I get paid NOTHING for all my time and work if there is no recovery because it’s a frivolous case. . Furthermore, the thousands and thousands of dollars I spent to bring the case to trial I will never recoup.

Accusing lawyers of filing frivolous medical malpractice cases is like accusing them of flushing massive amounts of money down the toilet, because the results are exactly the same.

I defy anyone to show me a lawyer who makes a living filing frivolous medical malpractice cases. It cannot be done.

That’s my personal experience. And it makes logical sense. But what does the empirical research show? The most comprehensive review of the academic literature to date is contained in a book entitled “The Medical Malpractice Myth” by Tom Baker, a University of Connecticut professor who specializes in insurance issues. His conclusion? “If anything, there are fewer lawsuits than would be expected, and far more injuries than we usually imagine.” He cites an extensive Harvard study – where over 31,000 cases were analyzed by doctors and nurses, who would be expected to be sympathetic to the position of the health care providers – that concluded doctors were injuring one out of every 25 patients, but only 4% of those ever brought a claim or sued.

But maybe badly injured patients don’t sue, while the reflexively litigious clog up the legal system, so that frivolous medical malpractice cases are still a significant problem. But another Harvard study[2], released in May 2006, in reviewing 1,452 cases, found only six cases which might deemed frivolous. A much larger problem the researchers found were 236 cases where there appeared to be clear evidence of both injury and negligence by a physician, but the cases were thrown out of court. As one commentator noted, this study “demolishes” the possibility that cracking down on frivolous medical malpractice cases could be any solution at all.[3]

About the Authors: Mic McConnell is a Richmond medical malpractice attorney and partner with the Allen Law Firm. Mic has handled challenging cases all over the state of Virginia in almost every medical specialty for over twenty years. Clayton Allen is a Richmond car accident attorney and partner with with the Allen Law Firm. Both attorneys have over 20 years of experience helping injured Virginians.

[1] A “frivolous” claim is defined as follows: “In law, frivolous litigation is the practice of starting or carrying on law suits that, due to their lack of legal merit, have little to no chance of being won. The term does not include cases that may be lost due to other matters not related legal merit. While colloquially, a person may term a law suit to be frivolous if he or she personally finds a claim to be absurd, in legal usage “frivolous litigation” consists of a claim or defense that is presented where the party (or the party’s legal counsel) had reason to know that the claim or defense was manifestly insufficient or futile. The fact that a claim is lost does not imply that it was frivolous.” http://en.wikipedia.org/wiki/Frivolous_lawsuits.

[2] See Harvard School of Health, “Study Casts Doubt on Claims That the Medical Malpractice System Is Plagued By Frivolous Lawsuits”, at http://www.hsph.harvard.edu/news/press-releases/2006-releases/press05102006.html.

[3] See “The Medical Malpractice Myth“, in Slate magazine, at http://www.slate.com/id/2145400/#Return3.

Medical malpractice reform could exact huge costs – Reposted from Stltoday.com

ejk — Mon, 07 Mar 2011 13:25:54 +0000

Tort reform • We can’t afford to sacrifice the right to a trial by jury because of misguided political pressure.

By Christopher K. Yarbro | Posted: Thursday, February 24, 2011 12:05 am

Source: http://www.stltoday.com/news/opinion/article_2bbe527c-1d91-5714-9c09-0b70ee307f61.html

Reposted from Stltoday.com

Politicians, pundits and physicians are casting stones against individuals who seek help from the court system for substandard medical treatment. Campaigns for tort reform are re-emerging on the heels of the recent midterm elections and the controversial federal health care law. Proponents again are championing limitations on medical malpractice cases to protect against increasing health care costs and a failing health care system.

Medical malpractice is a legal cause of action that affords individuals compensation to offset the harm from substandard medical care. The harms typically include serious injuries that forever alter a victim’s life or cause death. Medical malpractice cases seek to offset these harms through compensating the victim and provide an incentive for medical providers to meet accepted standards of science.

At first glance, limiting this compensation in an attempt to save a failing health care system may seem sound, but it comes with unbearable costs. The foremost cost is the stripping away of the individual’s constitutional right to a trial by jury.

Every Missourian has a constitutionally protected right to have a jury of their peers determine the merits of a medical malpractice case. This includes the ability to have the jury determine the extent of the harms caused by substandard medical care and the amount necessary to fully compensate for the harms. This right is guaranteed by Missouri’s Constitution of 1820. The drafters believed the right to a trial by jury was of such importance, they guaranteed the right “inviolate,” or free from change. This restriction was designed to place the right to a trial by jury beyond the reach of hostile legislation.

The right to a trial by jury also was of the highest importance to the United States’ founding fathers. In a recent Missouri Supreme Court case, Judge Michael Wolff called attention to the remarks by founding father Alexander Hamilton. In describing the drafters of the U.S. Constitution in Federalist Papers, No. 83, Hamilton stated “if they agree in nothing else, concur at least in the value they set upon the trial by jury.” In evaluating the necessity of the right to a jury trial, Hamilton noted that some drafters regarded the right as “a valuable safeguard to liberty,” while others considered it “as the very palladium of free government.”

This renewed call for tort reform casts in jeopardy the very safeguards of liberty and free government our founding fathers sought. It is too great of a cost to exchange our constitutional freedoms for the popular rhetoric of tort reform and the economic gain of those championing the cause.

But, even if we were willing to sacrifice constitutional freedoms, medical malpractice reform is not the answer. There are not too many “frivolous” malpractice lawsuits. A Harvard School of Public Health study that analyzed more than 1,400 closed malpractice claims concluded that more than 97 percent of filed medical malpractice claims were meritorious. And of those, 80 percent involved death or serious injury.

Malpractice claims do not drive up health care costs. According to the National Association of Insurance Commissioners most recent analysis in 2007, the total spent defending claims and compensating victims of substandard care was $7.1 billion, just 0.3 percent of total $2.2 trillion health care costs. In 2008, that number fell to $6.2 billion.

Doctors are not fleeing the practice of medicine. According to American Medical Association’s statistics, the number of physicians has grown twice as fast as the U.S. population since 1960. Advocates of medical malpractice reform often argue that Illinois is the leading example of doctors fleeing because of an unfavorable litigation climate. However, the number of licensed physicians engaged in “patient care” in Illinois never has declined. Instead, Illinois has more doctors per capita than California, Ohio and Texas, states that have limited malpractice compensation.

Malpractice claims do not drive up doctors’ insurance premiums. Researcher at the National Bureau of Economic Research reported that “increases in malpractice payments made on behalf of physicians do not seem to be the driving force behind increases in premiums.” Similarly, Americans for Insurance Reform conducted an analysis of the relationship between insurance payouts and premiums charged and found that, “[n]ot only was there no ‘explosion’ in lawsuits, jury awards or any tort system costs to justify the astronomical premium increases that doctors have been charged in recent years. These rate increases were rather driven by the economic cycle of the insurance industry, driven by declining interest rates and investment.”

Additionally, an American Association of Justice analysis in 2008 of financial statements filed by the 10 largest malpractice insurers found that the average profits of these companies are higher than 99 percent of all Fortune 500 companies.

Medical malpractice reform will not lower insurance rates. Medical malpractice reforms often are passed under the guise they will lower physicians’ liability premiums. In 2009, the average liability premium in states without compensation limits were lower than the average premium in states with such limitations. In Texas, a state with very restrictive limits, the opposite has occurred. Following the Texas’s enactment of limits, GE Medical Protective, one of the nation’s largest medical malpractice insurers, announced a 19 percent increase in premiums.

Finally, the true solution lies not in tort reform, but rather in insurance industry reform. In March 2010, an AMA report “Competition in Health Insurance: A Comprehensive Study of U.S. Markets,” stated that “[a]n absence of competition in health insurance markets is clearly not in the best economic interest of patients. The [American Medical Association] has urged the Department of Justice and state agencies to more aggressively enforce antitrust laws that prohibit harmful [insurance] mergers.”

The campaign for medical malpractice reform uses simplistic rhetoric not supported by facts. We cannot afford to sacrifice the right to a trial by jury to accommodate misguided political pressure.

Christopher K. Yarbro is a lawyer in private practice in Popular Bluff, Mo.

Virginia Accident Law: What Damages Can You Recover?

ejk — Wed, 26 Jan 2011 13:49:41 +0000

Virginia Personal Injury Attorney Jason W. Konvicka

Author: Attorney Jason W. Konvicka

In Virginia, the person, company, or other organization at fault for causing an accident is financially responsible for certain damages that may result, including:

any bodily injuries that the injured person sustains,
any physical pain and mental anguish that the injured person suffers in the past or future,
any disfigurement (such as scarring) and any related humiliation and embarrassment,
any inconvenience caused in the past or likely to occur in the future,
any medical bills incurred in the past or likely to occur in the future,
any lost wages in the past or likely to occur in the future,
any loss of the capacity to earn a living, and
any damage to property.[1]

But what does it mean to be “at fault” for causing an accident?

In Virginia, negligence is defined as the failure to use ordinary care. Ordinary care is the care a reasonable person would have used under similar circumstances. In other words, if the actions of a person or organization are unreasonable, then the actions likely amount to negligence. If that negligence causes another person to suffer injuries or damages, then the responsible party may be required to compensate the injured person.

Sometimes negligence is defined by specific statutes or laws. If Driver A follows Driver B too closely and crashes into the back of Driver B’s car, then Driver A is negligent. The law in Virginia states that it is negligent to follow another motorist too closely.

Similarly, under Virginia law, certain real property is required to be built and maintained in accordance with applicable building and maintenance codes. If a dangerous condition on the property violates such a code, then the owner of the property may be considered negligent.

On other occasions, expert testimony may be required. In medical malpractice cases, for example, an expert is often required to testify that the defendant physician violated the “standard of care” in order to establish negligence. Violating the “standard of care” simply means that the defendant physician failed to act as a reasonably prudent physician would have acted under similar circumstances.

Many times, however, no expert or statute is required. A jury is asked to determine whether the defendant’s conduct was reasonable under the circumstances. If the jury finds that the defendant’s conduct was negligent and also finds that the injured person’s damages were caused by the defendant’s negligent actions, then the jury is required to award compensation to the injured person.

This article is only a short summary of accident law in Virginia. If you or someone you know is injured as a result of an accident, contact the attorneys at personal injury law firm of Allen & Allen for a free consultation where your rights under Virginia law can be more thoroughly explained.

About the Author: Richmond, VA personal injury attorney Jason Konvicka has handled complex car accident cases, medical malpractice cases and product liability cases during his career spanning over 15 years.

[1] Form jury instructions are often used by attorneys and judges in courts in Virginia, although attorneys can compose their own if properly supported by Virginia law. The best known collection of jury instructions of law for civil cases in Virginia is the “Virginia Model Jury Instructions – Civil”, published by Michie Publishing Company (see http://www.lexisnexis.com/store/catalog/booktemplate/productdetail.jsp?pageName=relatedProducts&prodId=7357). These items of damage are taken from “No. 9.000 General Personal Injury and Property Damage Instruction.”

Tort Reform is Un-American

ejk — Mon, 25 Oct 2010 13:00:52 +0000

Medical Malpractice Attorney Malcolm P. McConnell

Author: Attorney Malcolm “Mic” P. McConnell, III

A common theme in American political rhetoric has always been the wisdom of the common man. The Declaration of Independence states that a just government derives its powers from the consent of the governed.[1] Abraham Lincoln referred to our government as “OF the people, BY the people, and FOR the people.”[2] We regularly hear politicians insist that power remain with individuals, because individuals can always do things better and smarter than Washington. The worthiness of individual Americans to govern themselves is a sacred tenet and it is our patriotic duty to resist the expansion of government power at the expense of individual liberty and responsibility. Indeed, the founding fathers were so suspicious of a tyrannical government that they created a list of basic freedoms which they considered essential to individual liberty, intending that future generations always preserve and never infringe on those liberties. We know that list as the Bill of Rights, and in the Seventh Amendment, our founders guaranteed: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

Yet, even though we revere our Constitution, even though we strive to honor the original intent of the founders, even though we claim that self-government is the best, highest form of government, some of our politicians are turning their backs on the Constitution, on the Bill of Rights and on the obvious intent of the founders. These politicians are plotting to take power away from the people. Calling it “tort reform,” they wish to strip American citizens of our right – and our duty — to administer justice. They think Washington politicians will do a better job than the American people.

When we think of self-government, we most often think of our right to elect our representatives. But the direct election of public officials is not the most direct, not the most frequent, and not the most effective way in which we govern ourselves. The most direct, frequent and effective means of self-governance takes place every day in virtually every city and county in this country in . . . courtrooms.

In the courtroom, “we the people” are directly engaged in self-government. Dutiful citizens appear at courthouses, take an oath, listen to meticulously gathered evidence, hear argument and receive instructions of law. Afterward, with careful deliberation and discussion, our government (i.e, us) dispenses justice. The justice is delivered to citizens by citizens, and it is justice based on conscience, wisdom, appropriate application of the law and the unique evidence of the individual case.

And though the right to trial by jury was fought and died for in the American Revolution and considered essential to liberty and “equal justice under the law” by our founders, that right is threatened today. Some politicians claim that they can do a better job of dispensing justice than “We, the People.” Moreover, they think they can do so without the benefit of the facts, without the benefit of the evidence, without the benefit of legal argument, without the benefit of instruction from a learned judge who has also heard the evidence. They advocate a “one size fits all” approach that substitutes their judgment for that of a jury, with limits on recovery, restricted access to the courts, and unprecedented protection for wealthy corporations — all at the expense of ordinary Americans, and all without regard to the individual facts of a specific case.

What kind of arrogance is it that promotes that kind of thinking? What kind of disregard for the wisdom of the founders is it? What kind of contempt for the American people does it demonstrate when a politician claims to be wiser and more capable in his ignorance than an American citizen who has heard the facts? Where will our citizens go for justice when the courtrooms are taken away from the People and reserved for the politicians and the corporations?

The government and, specifically, the courts, exist for you. Through the Seventh Amendment, you have a Constitutional right (and a duty) as a citizen of Virginia and the United States to “own” your government and, when called upon, to appear and administer justice to and for your neighbors. Through the Seventh Amendment, you have a Constitutional right to have your neighbors – your community – hear your grievances and decide your disputes with others. Do not let politicians strip your power from you. Do not let them make government bigger at your expense. Stand by the Seventh Amendment. Stand by government of the people, by the people and for the people. Stand against tort reform.

About the Author: Mic McConnell is a Richmond medical malpractice attorney. With over 20 years of experience, Mic has handled challenging cases all over the state of Virginia in almost every medical specialty for over twenty years.

[1] “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, …” See http://www.ushistory.org/declaration/document/.

[2] From the Gettysburg address. See http://en.wikipedia.org/wiki/Gettysburg_Address.

Determining the Statute of Limitation for Children in Medical Malpractice Cases

ejk — Tue, 06 Jul 2010 16:36:23 +0000

Virginia Medical Malpractice Attorney Malcolm P. McConnell

Author: Attorney Malcolm “Mic” McConnell, III

It has been said that you can tell a lot about a society by how it treats its children. Generally speaking, the United States and the Commonwealth of Virginia take good care of their children. There are, however, exceptions to that rule. In Virginia, the legal rights of children – our must vulnerable class – have been sacrificed to give extra legal rights to physicians – perhaps our most privileged class. Specifically, I am referring to the rights of children who are victims of medical malpractice, and the amount of time they are given by law to seek compensation for their injuries.

You may recall from earlier blog entries that a statute of limitations is the time limit on filing a lawsuit. In Virginia, the statute of limitations in most personal injury cases is usually two years from the date of the injury. 1 However, in medical malpractice cases, Virginia statutes of limitations are often complicated and the rules are often different.

This article will discuss statutes of limitations for medical malpractice victims in Virginia who are under the age of 18. Again, though every case is different and sometimes there are exceptions 2, the statute of limitations in injury cases is usually two years. However, Virginia law considers children under the age of 18 to be under a legal disability – they do not have the same full legal rights as adults. Because children do not have the same legal rights as adults, the Commonwealth gives them special protection: In most types of personal injury cases, while the two year statute of limitations applies, the two year period does not begin to run until the child has reached the age of 18.3 Thus, in most instances, a child under the age of 18 who has been injured by the negligence of another will have until the child’s 20th birthday to file a lawsuit. The reason for this extension is that a child cannot file a lawsuit, but must file through an adult; this extended period prevents the child from being punished just because an adult did not pursue a claim for the child.

Not so in medical malpractice cases.

In Virginia, negligent physicians receive special protection from accountability that the rest of us would not. In every instance, the price of that special protection is paid by their victims. When it comes to statutes of limitations, injured children pay the price: their protected status is stripped from them to shield negligent physicians. In Virginia, when a child under the age of 18 is negligently injured by anyone other than a physician, the child has more than two years to file a lawsuit. If the child is 9 years old, he has over ten years to file a lawsuit. However, if that same child were injured by a negligent doctor, the interests of the child victim are sacrificed for the protection of the negligent doctor, and that child will have only two years to file his lawsuit, just as if he were a full grown adult (even though he is too young to file that lawsuit himself).

Very small children still have some extra protection, however. Virginia law provides that the statute of limitations in medical malpractice cases is two years, but in no event will a statute lapse before the child’s 10th birthday. 4 Thus, any child who has reached his 8th birthday will be treated as an adult regarding the statute of limitations. If an adult does not pursue the claim for the child, then the child’s claim is barred.

About the Author: Mic McConnell is a Richmond medical malpractice attorney. With over 20 years of experience, Mic has handled challenging cases in almost every medical specialty for over twenty years.

1 - See Va. Code §8.01-243 (at http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+8.01-243).
2 - For instance, lawsuits against a city, county, state or federal government may require certain “notice” be given. Although not technically a statute of limitation, these requirements may bar you from pursuing a recovery just as effectively as a statute of limitation. You should consult an attorney promptly after injury in order to protect your rights.
3 - See Va. Code §8.01-229 (at http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+8.01-229).
4 - See Va. Code §8.01-243.1 (at http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+8.01-243.1).