Allen & Allen Law Blog » Malcolm P. McConnell

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.

Damages Cap Now on Tap – A VA Lawyers Weekly Article

ejk — Tue, 31 Mar 2009 21:12:12 +0000

Attorney Malcolm P. McConnell

Article Summary by Attorney Malcolm P. McConnell

In Virginia, there is no justice for catastrophically injured victims of medical malpractice. Since 1976, their inalienable rights as American citizens to trial by jury and to equal justice under the law have been stripped from them for no better reason than to keep insurance companies profitable. Meanwhile, insurance companies charge higher and higher premiums to doctors, blaming victims’ lawyers and American citizens who sit on juries, hear evidence, and make careful decisions. Virginia’s “cap” on the amount of money a victim of medical malpractice can recover in a lawsuit guarantees that the most horribly injured victims will never be able to pay their bills. So, to protect the insurance companies, you, the American taxpayer, wind up paying the expenses of those people (through such government programs as Medicare and Medicaid). Something must change.

Damages cap now on tap

Virginia Lawyers Weekly

By Paul Fletcher
March 30, 2009

The 2009 General Assembly session is more or less over.

Only the April 8 veto session, in which the legislature considers bills vetoed or amended by the governor, remains.

The anticipated battle over an increase in the medical malpractice damages cap didn’t materialize in 2009, as legislators told groups representing trial lawyers, insurers, doctors and hospitals that they needed to devote their time and energy this year to the state’s budget and other money concerns.

Get ready to rumble.

Key leaders in the Assembly have told the interested parties that they have the opportunity to strike a deal, perhaps not unlike the agreement in 1999 that allowed the amount of the cap to increase gradually over a number of years.

But the message is clear: The Assembly expects an agreement.

Del. David B. Albo, R-Fairfax and chair of the House Courts of Justice committee, appeared at the Virginia Trial Lawyers Association meeting in mid-March. He said that it’s clear that “we can’t have a cap that stays the same.”

He said the trial lawyers, medical and insurance groups had been told to “meet this summer and solve this or we’ll solve it for you” next winter.

And Albo acknowledged that the problem is complex. “It’s like a Rubik’s cube,” he said.

As factors to be considered, Albo noted that hospitals require insurance limits that come in certain dollar-amount blocks, doctors can’t necessarily just increase costs and Medicaid/Medicare reimbursements can be skimpy.

Albo has noted before that an agreement must take all these factors into account to be taken seriously on Capitol Hill.
Meetings planned

VTLA Executive Director Jack L. Harris said, “We hear [the message] loud and clear.”

W. Scott Johnson, counsel for the Medical Society of Virginia, said that the interested parties already are trying to schedule discussions and set up a process for negotiating an agreement.

The first meeting likely will be in late May, and Johnson added that he hopes something can be accomplished by September, before the election season shifts into high gear.

Harris said the various parties had worked together before on different proposals to produce a result acceptable to all. “None of us goes into it with a preconceived outcome,” he said, noting that he expects the “talks will be wide-ranging.”

But he added, “I’m confident that we’re serious and they’re serious to do what it takes” to reach some agreement on the cap and related issues.

Health law update

The various arguments for and against a cap may be previewed in early May.

The Virginia Bar Association, in conjunction with the Health Law Section of the Virginia State Bar, will hold the 11th Annual Virginia Health Law Legislative Update in Richmond May 7.

Malcolm “Mic” McConnell of Allen, Allen, Allen & Allen, representing the plaintiff’s side, and Johnson, advocate for the defense, will debate “the prospects for medical malpractice reform” in 2010.

Johnson said he expects that their joint appearance will “lay out the possibilities and considerations” of an increase in the med-mal damages cap.

What is Medical Malpractice?

ejk — Wed, 11 Mar 2009 13:30:47 +0000

Attorney Malcolm P. McConnell

By Malcolm P. McConnell

I am often invited to speak to physicians and other professionals and laymen about medical malpractice issues. On such occasions, I share the same information I provide to every client who seeks my advice and assistance with a potential medical malpractice claim: I define “medical malpractice” for them. However, in my 21 years of experience, I have found that the best way to tell people what medical malpractice IS, is to tell them what medical malpractice is NOT.

Medical malpractice is NOT that a doctor made a mistake. Doctors are human. They are not all-knowing, they are not all-powerful, and they are not perfect. They are “allowed” to make mistakes.

Medical malpractice is NOT that the patient had a bad result — even if that bad result was unexpected. Every day in every hospital, patients suffer complications, setbacks, even death. Such things may occur without any negligence by physicians.

Medical malpractice is NOT that another doctor would have done things differently. On many occasions, doctors may disagree about the best approach to a patient problem. This does not mean one of the doctors is negligent. It does not even mean one of the doctors is wrong. If we expect medical science to advance and improve, we have to encourage doctors to disagree and to develop new approaches.

Rather than a mistake, a bad result, or a difference of opinion, medical malpractice (negligence) occurs when a doctor does something that is UNREASONABLE; something no reasonable doctor would have done under the circumstances. It may be either an action or an omission, but there will be no case of medical malpractice unless the doctor has behaved unreasonably.

If we can prove that the doctor’s behavior was unreasonable, we must also prove that the injury or death would not have occurred if the doctor had acted reasonably. This can be difficult to prove, especially since there is almost always an underlying disease or injury for which the doctor is not responsible.

Proof that the behavior was unreasonable and proof that the unreasonable behavior caused the injury or death is made through expert witnesses. Neither the patient nor the patient’s family may testify that a doctor has been negligent. At The Allen Law Firm, we strive to get the very best experts available, who are leaders in their field, to explain proper medical standards to a jury and to demonstrate how deviating from those standards has damaged our clients. We are proud of reputation of turning down frivolous and questionable cases and limiting our practice to cases of merit, supported by qualified and respected experts. We are proud of service to our clients and our results.

About the Author: Malcolm “Mic” McConnell heads the medical malpractice team at the personal injury law firm of Allen, Allen, Allen & Allen.

Why I Became a Trial Attorney

ejk — Thu, 19 Feb 2009 13:35:49 +0000

Attorney Malcolm P. McConnell

By Malcolm “Mic” McConnell

I am a Richmond, Virginia native. I am a product of Henrico County Public Schools, having attended Skipwith Elementary, Tuckahoe Middle, and graduating from J. R. Tucker High. My father taught handicapped children for Henrico County Schools and supervised the County’s programs for those students. My mother was a surgical nurse. I grew up attending and serving as a youth leader of Monument Heights Baptist Church (corner of Monument and Libbie Avenues), which my grandfather, a Baptist minister, founded in 1950.

How did the son of a teacher and a nurse and the grandson of a preacher become a medical malpractice trial lawyer?

It all seems quite natural to me, especially when you add the endless superhero comic books and heroic biographies that I read as a youth. The common feature of my father’s, mother’s and grandfather’s professions was helping people; usually helping people who were unable to help themselves. Influences become even clearer when you consider the role of the minister delivering his sermon from the pulpit: speaking to his congregation, he cites scripture and common experience in order to persuade his audience to take action and to do the right thing.

Now consider the role of the trial lawyer. The trial lawyer is there to help his clients. At The Allen Law Firm, we understand that lawyers have a unique ability and responsibility to help people in ways they cannot help themselves. It is a helping profession. The influence becomes even clearer when you consider the role of the lawyer in the courtroom: speaking to the jury, he cites the law and common experience in order to persuade the jury to take action and to do the right thing.

As you can see, the influences of my childhood certainly made me a candidate for a career in the law. But there was more.

I witnessed a great many “bullying” incidents when I was growing up. Some of them were minor, involving name-calling, threats, and the occasional shoving. Some of them were actually quite brutal and cruel, including much older children physically beating and terrorizing elementary school children. As a young boy, such events were “real life” examples of the “strong preying upon the weak” themes I had read so much about. But those same stories which I read also offered the solution: the strong have a duty to protect the weak. In other words, the strong have a duty to help those who are unable to help themselves.

To be a trial lawyer, like being a teacher or a nurse or a preacher, is to possess a kind of “strength.” The strength of the trial lawyer is the knowledge and understanding of the rules which govern our society, and the ability to employ those rules to bring justice to the victims of others. In short, to be a trial lawyer, is to possess the strength – and, therefore, the duty – to help those who are unable to help themselves.

At The Allen Law Firm we take pride in our strength – our education, our firm resources, our experience, our results, our talent and our skill. But more than that, we take pride in how we use our strength: obtaining justice for our clients, who are unable to help themselves.

About the Author: Malcolm “Mic” McConnell heads the medical malpractice team at the personal injury law firm of Allen, Allen, Allen & Allen.