Philadelphia Trial Lawyer Max Kennerly : Business and Commercial Litigation : Civil Attorney : The Beasley Firm : Philadelphia Pennsylvania

John Edwards' political career might be over, but he's still a punching-bag for the "tort reform" crowd.

He shouldn't be. Here's an example.

Stephen Bainbridge leaves his expertise and reveals himself at least a careless speaker, if not an outright fool. After Eric Johnson at PrawfsBlog discusses teaching a Torts class via John Edwards' Four Trials, Bainbridge criticizes Johnson for failing to note Edwards' "junk science," which Bainbridge 'proves' by block-quoting two spurious conservative articles, one from the Wall Street Journal and the other from the National Review, both decrying Edwards' prosecution of birth trauma cases alleging celebral palsy due to medical malpractice.

I've represented plaintiffs in birth injury cases alleging obstetrical malpractice caused celebral palsy. They're not junk science; they're common sense and good science, accepted and supported by every major medical organization.

I don't care that "delivery problems [are] not to blame for cerebral palsy in the 'vast majority' of cases." I don't sue obstetricians just because a child has CP. I sue obstetricians because the medical record and the testimony reveal malpractice resulting in extended hypoxia and acidosis of such a magnitude that it caused moderate or severe neonatal encephalopathy.

And why do I look for that? Because the American College of Obstetricians and Gynecologists (ACOG) Task Force on Neonatal Encephalopathy and Cerebral Palsy says that can cause cerebral palsy. In fact, this organization comprised solely of physicians, funded and supported by hospitals and insurance companies, even established criteria for such birth injury:

The criteria to define an acute intrapartum event sufficient to cause cerebral palsy, as modified by this Task Force from the template provided by the International Cerebral Palsy Task Force, are listed as follows:*

Essential criteria (must meet all four)

1. Evidence of a metabolic acidosis in fetal umbilical cord arterial blood obtained at delivery (pH <7 and base deficit =12 mmol/L)
2. Early onset of severe or moderate neonatal encephalopathy in infants born at 34 or more weeks of gestation
3. Cerebral palsy of the spastic quadriplegic or dyskinetic type†
4. Exclusion of other identifiable etiologies such as trauma, coagulation disorders, infectious conditions, or genetic disorders 

The fourth is often the most important in these cases. It doesn't matter how many hours a fetus spent in distress before being delivered, I can guarantee you the defense lawyer and insurance adjuster will find an smooth-talking local expert with a strong CV to say, in their fair and unbiased opinion, to a reasonable degree of medical certainty, that the baby's injuries were due to a stroke some undetermined number of days in advance, and thus the child's problems are definitely not the fault of the doctor or hospital.

It won't matter that, until smooth-talking Dr. Expert, not a single health care provider noticed or considered this "stroke." It won't matter that the opinion is based on pure speculation, and that it contradicts the placental pathology done at the time and the admitting diagnosis / discharge summary of the neonatologist. It'll come into the trial and will require you fight hard to rebut it, to prove it was hypoxic ischemic encephalopathy.

Sure, I think that's junk, but I'm a lawyer who gets paid to prove otherwise. So, again, ACOG:

Criteria that collectively suggest an intrapartum timing (within close proximity to labor and delivery, eg, 0-48 hours) but are nonspecific to asphyxial insults

1. A sentinel (signal) hypoxic event occurring immediately before or during labor
2. A sudden and sustained fetal bradycardia or the absence of fetal heart rate variability in the presence of persistent, late, or variable decelerations, usually after a hypoxic sentinel event when the pattern was previously normal
3. Apgar scores of 0-3 beyond 5 minutes
4. Onset of multisystem involvement within 72 hours of birth
5. Early imaging study showing evidence of acute nonfocal cerebral abnormality

There you go, my "junk science." That's what I'm looking for and that's often how I prove the causal element of my OB/CP cases.

That is, with ACOG guidelines. Are they junk, too? Is it all junk except for what some political hack writes to criticize John Edwards?

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Sometimes I read Kevin, M.D. out of what I can only assume is a hidden desire to gnash my teeth thinking about medical malpractice:

Massachusetts is allowing a new form of malpractice lawsuit to go forward:

A woman wrecked her car, killing an innocent bystander. Now the bystander’s widow is suing the woman’s doctors, arguing that they should have warned her not to drive while taking the pain medicines they prescribed.

The problem is, a majority of medications can lead to lightheadedness and dizziness, which in theory, can impair the ability to drive. Blood pressure and diabetes drugs for instance. Should patients taking these medications be warned not to drive?

At the very least, I would be very wary of prescribing any form of narcotic medications if these types lawsuits were to succeed. Patients lose again.

I'll put aside the assertion that "a majority of medications" are at issue; I imagine he wrote that as a throw-away line.

On to the merits, it's interesting that Kevin does not attack the nominal "problem" with the ruling, in that it creates the right of third parties to sue physicians where the physician was negligent in their treatment of a patient and that negligence injured the third party. That's what all the doctors in Massachusetts were freaking out about. So we'll leave that to another day.

Instead, he apparently frets that physicians should not be held liable where they failed to warn patients about the risks of the medications they are prescribing.

Why not? Is it really so hard to hand a patient a brochure or to talk over the risks on the package with them? Is it really so terrible if the standard of care requires a physician listen to their patient and, upon hearing an elderly woman say she feels faint while driving, suggest she stop driving?

The practical answer most physicians would give is that of course they want to take the time to discuss every detail of the medication they are prescribing to their patients, but they simply can't. If they did that, they wouldn't make nearly enough money to support their practice.

That's not a complaint about medical malpractice, trial lawyers, or torts. It's a complaint about insurance reimbursements, which encourage doctors to treat patient visits like speed dating.

So stop blaming us.

* gnashes teeth *

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If you haven't been following, Victoria Pynchon at the Settle It Now Negotiation Blog and I have been having a running discussion about The Settlement Unicorn, which I originally defined as follows:

I've heard of a mythical beast, which I'll call The Unicorn Settlement, where two hostile parties on the verge of a lawsuit get lawyers, almost file suit, and then, through deft representation, settle their differences peacefully and move on.

Let me exclude from The Unicorn a particular class of dispute, where two businesses with an ongoing relationship have a big dispute. I exclude that because, while I've seen many such disputes resolved pre-litigation, it has always been in the context of an ongoing relationship the value of which exceeds the value of the dispute. So I don't call that a "settlement of a case," I call it a "continuation of a business relationship."

Victoria most recently gave an example in a medical malpractice case, which caused me to move the goal posts:

Thus, when the parties agreed to mediate, there was likely $40-60,000 "on the table," which could either be used to help settle the case or could be thrown away on experts. As noted above, that sum alone -- putting aside attorneys' fees and all the other costs and issues -- likely represented between one quarter and one half of the eventual settlement value, and the lawyers, whom I am guessing were experienced in medical malpractice, both deserve credit for recognizing this economic waste.

But that's why I just can't verify this as an actual sighting of the mighty unicorn. To me, it's analytically similar to my initial example of two businesses who resolve their dispute not because they really reach an agreement, but because the cost of the dispute is less than the value of their continuing relationship. The equation above doesn't work in a wrongful death or birth injury case. It frequently doesn't apply in cases worth more than $250,000 and virtually never applies to cases worth more than $500,000.

So Victoria commented:

On to the main point, isn't there ALWAYS some "external" factor that brings litigating parties to the table?

Which external factors do you want to rule out for our poor unicorn?

I deftly didn't answer for several days [sorry, Vickie]. Let me clarify: my biggest issue with her example was my suspicion that the final settlement didn't substantially exceed the cost of continued litigation. As such, it doesn't really look like a genuine desire to settle, it looks like a cost-avoidance measure with a little bit of personal understanding (the scar) involved.

That's all well and good, and covers a lot of cases, but it's not what I'm looking for and what I think needs more consideration. What I'm looking for is a settlement reached, for substantial money, because the lawyers sat down, considered the case, and came to an agreement on its value.

The frustratingly inefficient process that nags at me is this: after my investigation of a case, I have a good idea of three different numbers:

1. the highest reasonable verdict value of the case;
2. the likely settlement / verdict value;
3. the lowest reasonable successful resolution.

Unspoken there is #4, a defense verdict / abandoning the case, which I guess you could say is a consideration, except that, given how I'm largely in the business of contingent fee cases, I'm not in the business of taking cases I think can't win. It's always a concern, but not for settlement: if I settle a case, I settle it at a "win" amount. Otherwise I go for #1 and don't look back.

Here's the frustrating part. Every insurer is different, as is every defense attorney, and certainly every defendant, and there are disincentives for all of them (respectively bureaucratic, financial, and emotional disincentives) not to settle early. And even though I've done defense work, I know I just don't get how this adjuster works, how this case is evaluated, how my client is lying, blah, blah blah.

But at some point the adjuster, lawyer and/or client will start throwing numbers around in their head. At least along the lawyers, the #2 numbers usually aren't that far apart, and will be within half (plus or minus) of what a judge / mediator would put on it for settlement purposes.

Time after time, I litigate a case for months / years, for which I've known #2, and after all that time and money, no one knows any more than when they started. Some defense lawyers will, after the close of discovery, start talking settlement. Others refuse to discuss until jury selection.

Now, in some circumstances, such litigation is inevitable. Take a birth injury (hypoxia) / medical malpractice case. The potential damages are enormous, and heavily dependent upon developmental / life care / economic assumptions. There's always a thrombophilia defense, there's always some Chair-of-Whatever who can describe how a fetal strip says the opposite of what it actually does. So we'll need to litigate, depose the doctors, find the experts, wave to the insurance surveillance, and get the whole thing ready for trial before appropriate numbers are offered.

On others, it's just plain silly. Here's a hypothetical: industrial product failed, 54yo male client spent 16 days in the hospital, lost $80,000 in wages while recovering in physical therapy for months, now earns $15,000 less per year at a crummier job, has a recurring severe pain in legs, and can't engage in normal physical recreation anymore. He'll need continuing care plus a couple surgeries.

There are thousands of cases like that every year, more than enough to get a contemporary sense of "what they're worth."

Months of discovery will create dozens of copies of his medical records, find out he had three workplace safety violations in the past 15 years (none related to the machine), and reveal the company has had two other incidents with this same product, but no smoking guns.

Just before trial, we're exactly where we started, except the insurance company is poorer $50,000-$150,000 in legal fees and experts, I've put out $20,000-50,000 in costs and experts, and my client has gone more than a year since filing suit living off loans from family to pay off the massive credit card debt and home equity loans they took on immediately after the accident.

Why did we mess around all that time? The defense lawyers would have known proving liability wouldn't be that hard for me, and that neither me nor my firm ever shows up to trial unprepared. All of their discovery was, at best, a half-hearted fishing expedition. The bulk of what they did was force me to "prove" things that should have been beyond any genuine dispute. Why couldn't we get this done sooner?

Victoria, do you have any examples of two parties sitting down, before largely completing litigation, and wrapping up a case for substantially more than nuisance / cost of suit? If so, what brought them to the table?

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From the Middle District of Pennsylvania:

In Pennsylvania, an individual who sustains injury in a motor vehicle collision that is aggravated by subsequent medical negligence may recover damages for both injuries either from the driver exclusively or from the driver and the negligent medical practitioner in tandem. See RESTATEMENT (SECOND) TORTS § 457 (s1965) [hereinafter "RESTATEMENT"]; Smialek v. Chrysler Motors Corp., 290 Pa. Super. 496, 434 A.2d 1253, 1258 (Pa. Super. Ct. 1981) (stating that "the original tortfeasor[ in an automobile collision] is . . . fully responsible . . . for the negligent manner in which a physician or surgeon treats the case"). The plaintiff may recover all damages solely from the negligent driver because subsequent faulty treatment is deemed to be a foreseeable consequence of the automobile accidence. See RESTATEMENT § 457 cmt. a ("[D]amages assessable against [a negligent driver] include not only the injury originally caused by the [driver's] negligence but also the harm resulting from the manner in which the medical, surgical, or hospital services are rendered"); Boggavarapu v. Ponist, 518 Pa. 162, 542 A.2d 516, 517 (Pa. 1988).

However, if the plaintiff sues both the driver and the physician, liability should be allocated according to each tortfeasor's separate negligence. 1 See Frazier v. Harley Davidson Motor Co., 109 F.R.D. 293, 295-96 (W.D. Pa. 1985) (stating that negligent motorists and subsequently negligent physicians commit separately identifiable acts of negligent); Smith v. Pulcinella, 440 Pa. Super. 525, 656 A.2d 494, 497 (Pa. Super Ct. 1995); Harka v. Nabati, 337 Pa. Super. 617, 487 A.2d 432, 434 (Pa. Super Ct. 1985) (quoting Voyles v. Corwin, 295 Pa. Super. 126, 441 A.2d 381, 383 (Pa. Super. Ct. 1982)) ("[T]o the extent that the acts of the original tortfeasor and those of the physician are capable of separation, the damages should be apportioned accordingly."). The court determines as a matter of law whether injuries are capable of apportionment; however, the jury determines the value of the claim against each defendant. Voyles, 441 A.2d at 383.

Trout v. Milton S. Hershey Med. Ctr., 2008 U.S. Dist. LEXIS 65553 (emphasis added).

If the medical malpractice causes a catastrophic injury, there are very few situations in which you would want to proceed only against the car driver, not least because they likely have far less available insurance than the medical provider. Indeed, in this case the plaintiff's leg became necrotic and had to be amputated allegedly due to medical malpractice, an injury that, when combined with the accident itself, likely exceeds the insurance coverage of most drivers.

Then again, if neither the auto accident nor the medical malpractice was catastrophic, and the damages are within the coverage limits, the action can be substantially simplified by proceeding only against the car driver. You will still need expert medical testimony, but you might not get nearly the same fight as you would going against the medical provider directly. You might also have more settlement leverage against the car driver's insurance company because they run the risk of eating all of the damages at trial.

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This time through special interest legislation:

Thanks to an obsolete formula embedded in the current law, doctors who see Medicare patients had their fees cut by 10% on July 1. The House has passed a bill to restore the cut, but the Senate has yet to follow suit. Robert Pear explains why:

[President] Bush and many Republicans oppose the bill because it would finance an increase in doctors' fees by reducing federal payments to insurance companies that offer private Medicare Advantage plans as an alternative to the traditional government-run Medicare program.

Insurance companies and the White House argue that the bill would hurt beneficiaries who rely on private Medicare plans. America's Health Insurance Plans, a trade group, ran television advertisements last week, urging Congress to "stop cuts to Medicare Advantage."

... Forcing private insurers to operate as efficiently as the federal government is apparently asking too much of the GOP's free market acolytes. Better to cut doctors' fees instead.

See previously: Doctors Spend More Money On Insurance Billing Than Malpractice

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The Nevada Accident & Injury Law Blog describes how a Nevada Jury Awards Las Vegas Man $60 Million:

A federal jury in Nevada last week awarded $60 million to a Las Vegas man who alleged Paul Revere Life Insurance Co. and the Unum Group denied in bad faith his claim for disability benefits.

This is one of those “be careful what you wish for” cases. In a previous trial, a jury awarded Plaintiff $11.6 million but it was overturned on appeal. So the case was tried again and the second jury awards five times what the first jury awarded.

I see that a lot, particularly in tort cases with verdicts over $1 million, and I don't think it's a coincidence.

At a tort (negligence, malpractice, breach of fiduciary duty, wrongful death, etc.) trial, the defendant usually holds most of the cards. They generally know which stones you overturned on discovery and which ones you did not, and they know which evidence that you have his most embarrassing and which evidence you do not have is most absolving.

More importantly, they were there. They really know what they did and did not do, and what they were thinking when they did it, and they certainly know what they intend to say.

It does not matter how many depositions you took -- you could have had people testifying for days -- and how much written discovery you collected, trial will still be full of surprises. Even if no new facts are revealed, you will see facts presented in a new light, often at odds with the light they were presented in pleadings and during discovery. (And you will have to quickly react to this new version of the truth: don't even try to argue to the jury that a fact was "presented in a different light during discovery.")

Trial makes the defendant show their cards, clearing away their natural advantage in a tort suit. You will see the strongest defense arguments and the most favorable defense evidence. More importantly, while you can always run a mock jury and see how neutral non-lawyers react to your evidence, you will never get a chance, pre-trial, to practice cross examining a defendant to see what evidence makes them squirm, babble, or obviously lie. A deposition will give you hints, but it will never show you what will really make a defendant fold or what they'll do when the chips are down.

My view is that these big cases aren't 50-50 or longshots, they're slam dunks if you have all the evidence, know where the defendant wants to go, and know where the defendant doesn't want to go. That's how a "big" verdict becomes a "blockbuster" verdict the second time around.

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43(B)log  refers us to a NYT feature on doctors who give consumers incentives to post doctor-created ads as their own contributions to YouTube:

Trouble is, most marketing videos don’t announce that patients are compensated. Take Jiffy Reed, who posed for a video tribute on YouTube about Dr. Daniel Noor, a New York-based cosmetic dentist who straightened her smile with invisible braces. “I was so happy, I would have done anything,” Ms. Reed said. What the video doesn’t mention is that her physician whitened her teeth at no charge; it usually costs about $700.

Exactly right. Although the article quotes a couple physicians who generally object to unseemly nature of such advertisements, the core problem here is not a medical issue, it's a consumer issue. Paid endorsements used for advertising that aren't identified as such are generally illegal, and there is no medical exception to that.

My own view is that this problem, like a number of problems in the medical profession, are the result of lackadaisical enforcement by most state Boards of Medicine. If even just a handful of physicians were reprimanded for using paid endorsements that were made to appear spontaneous, there likely would not be much of a problem anymore.

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From the "no surprise" department, via TortDeform:

The American Medical Association issued its first health insurance report card at the group's annual meeting Monday. The primary focus is on how quickly and accurately doctors get paid.

"Physicians are spending 14 percent of their total revenue to simply obtain what they've earned," said Dr. William Dolan, an AMA board member.  (Emphasis added.)

The report card is an effort to reduce the cost of claims processing to doctors and help them as they negotiate contracts with insurance companies, he said. The report card will help patients if it reduces wasteful administrative costs, Dolan added.

The report card compares Medicare and seven national commercial health insurers on the timeliness and accuracy of claims processing. It is based on a random sample drawn from 3 million claims.

There are no grades like A, B and C, and many of the technical measures may not mean much to most patients. But business leaders and health policy makers are interested in cutting an estimated annual $210 billion in wasted administrative claims processing costs, AMA leaders said.  (Emphasis added.) Source: AMA issues first report card on health insurers - Yahoo! News

At least as of 2003, the Congressional Budget Office estimated malpractice costs as a whole at $24 billion, less than 2 percent of overall costs.

Don't blame the victims. Blame the culprits.

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