Archive for May, 2011

Brain Injury and Proof Problems Facing the Injury Attorney

By admin

Friday, May 27th, 2011

Brain injury comes in many forms, shows up in different ways and is often very hard to detect and even harder to prove.

The most obvious brain injuries are those involving a direct trauma to the brain with evidence of bleeding or tissue damage. Even this type of brain injury can have “proof” problems when it comes to portraying the specific injury to a jury.

A brain injury that has visible interruption of brain tissue by bone or other fragments is not the problem. It is the type of brain injury where the subtleties of MRIs or CT Scans must be interpreted. This creates the potential for a dispute as to whether a portion of the brain is showing evidence of injury, or simply some shading that invites argument as to what it is, what caused it, when it started, whether it has any significance or explains any complaints.

The most difficult brain injury to portray and to prove is the one in which the radiologic evidence is scant, absent or open to interpretation. These particular injuries are described with the broad term “closed head injuries”. They cause proof problems for the injured person and the attorney when there are no tests that actually show tissue damage or blood in or around a portion of the brain. 

To put it simply, this type of brain injury can’t be seen or visualized with present medical imaging tools. That leaves the injured party having to get around the “if you can’t see it, it probably doesn’t exist” defense.

Such a brain injury is frequently interpreted through neuropsychological testing designed to show inadequate or changed brain function through the performance of psychological testing. This type of testing is designed to show abnormal brain function. These test results raise the question as to what was “normal” for this person before the accident. Often this must be determined in a person who has had no previous record of brain function or IQ testing, and requires having to rely on a subjective description of what the person could do before the injury.

The patient may complain about change in mental abilities or normal intellectual functioning. Regrettably, while very real to the injured person, these changes may not show up on any imaging study. The injured person and their attorney are left in the unenviable position of trying to convince a jury that the complaints are real.

The hurdles and prejudice of the argument that the brain injured victim and his or her attorney must overcome, revolve around the accusation that it is “only in their head”. This also implies that symptoms are “made up” and controllable by the one complaining.

The neuropsychological testing is often the only way to inject objectivity into the courtroom so that there is some form of test result “picture” to support and supply a reason for the plaintiff’s description and complaint of abnormal brain function and/or mental abilities. The battle lines will involve a dispute as to which tests are recognized or believed to confirm a change in brain function and how those test results were performed and interpreted.

Until medical technology advances, winning and losing may depend upon the credibility of the injured person, the severity of the described head trauma, and the credentials and persuasive ability of the neuropsychologist on each side.

Medical Malpractice: Misread Of Imaging Studies

By admin

Friday, May 27th, 2011

The core of many medical malpractice cases involves the misread of one of the various forms of imaging studies: X-ray, MRI, CAT scan and Mammography. As with any medical malpractice claim, the malpractice attorney must start with the ability to prove the mistaken interpretation. That is done through a review of the matter by a qualified radiologist experienced in the technique and interpretation of the image in question (the “expert”).

What cannot be forgotten is that the misinterpretation is only the starting point of the medical malpractice case analysis. The expert has to try to recreate the original radiology process, reviewing the studies with the same information in mind that the alleged malpracticing radiologist would or should have had at the time of the original interpretation. The expert’s opinion must not only support a misread or incorrect analysis, but also that there was no reasonable or supportable basis for that incorrect interpretation. A misread cannot stand alone.

This is so, because the expert has the benefit of knowing how it all turned out, and is looking at the images with hindsight – i.e. the knowledge there was something there that was eventually discovered. The expert must be able to show how the image could not and should not have been misinterpreted, given what the alleged malpracticing radiologist should have known about the reason for the imaging study and the historical factors he or she had to know about the patient.

That approach applies, no matter what type of imaging study is being analyzed from the perspective of a medical malpractice case. The problem with any medical malpractice suit, arising from a misread of an imaging study is that the alleged malpracticing doctor did not cause the diagnosed condition. The most that can be said is that he or she delayed the diagnosis.

This leads to the next hurdle in a medical malpractice case: proving the delay caused or substantially contributed to a significant change in prognosis or successful treatment options. The medical malpractice attorney must be aware that it is the disease that caused the injury or ongoing problem. He or she must be aware of the medicine, both radiological and in whatever area the missed disease or injury process is, so that proper evidence is gathered to show the radiologist’s miss triggered the significant worsening in the treatability and treatment outcome.

Unlike some other areas of medical malpractice litigation, there are always at least two [2] areas of medicine involved in establishing the radiological malpractice: radiology and those other areas having to do with the resulting injury or disease and the impact of delayed diagnosis and treatment.

Mistakes by Medical Professionals During Labor and the Birthing Process Causing Catastrophic Injury to the Baby

By admin

Friday, May 27th, 2011

There are few events in life that can approach the wrenching hurt of watching a baby or child try to live in the world with brain damage or severe physical injury or disability. Fortunately we live in a time where knowledge and equipment exists that help medical professionals to anticipate, predict and plan for the potential of an abnormal birth. When a doctor pays close attention and remains plugged in to the labor and birthing process, available and prepared to act and react, tragedy can often be avoided.

In terms of medical malpractice litigation, the defense of a doctor most often revolves around determining whether the apparent abnormality has a benign or easy explanation. When it does not, the defense often argues that there was a sudden emergency that could not be anticipated or planned for. The medical malpractice attorney representing the family of the injured baby must know (a) the questions that need asking; (b) the answers that demonstrate that the failure to respond was excusable under the law and (c) how to separate the excusable failure to respond from defense manipulations of what was happening that seek to excuse wrongful inaction and the resulting tragic injury.

The investigation by the medical malpractice attorney for the family must look to prove that the unanticipated and unprepared for emergency should have been both anticipated and prepared for, and should not have been allowed to degenerate into a predictable crisis. Some of the relevant investigation questions are: Do fetal monitor tracings that appear temporarily abnormal have a ready and reoccurring explanation? Do they return to normal in time so that there is a firm reason to accept they were the result of temporary positioning of the fetus? Is there something in the mother’s history or in the labor itself, that raised the risk of fetal compromise or danger that required anticipation and preparation by the doctor?

If labor is not progressing, is there an increasing risk of compromise of the cord that nourishes the fetus until birth and the baby’s ability to live separately from the mother? Has there been meconium staining, sometimes a sign of fetal distress and an indication that an earlier birth is necessary?

Was there some practical reason that would interfere with the need for a quick or emergent delivery? Did the doctor and hospital arrange to be ready for that potential, so that precious time was not wasted if a quick or emergency delivery in fact became necessary?

Did the delivery professionals properly anticipate and plan for the potential of a problem birth for the patient who had a problem labor?

The above are only a few questions that arise in brain damaged baby situations or with babies born with cerebral palsy. Investigation frequently boils down to figuring out what the delivery staff should have known and when could they and should they have known, appreciated and reacted, to avoid or minimize that developing risk to the baby.

The medical malpractice attorney for the family must ascertain whether the excuses of the doctor, after the fact, are simply the product of after the injury research found in a textbook or a witness hired to provide excuses.

The medical malpractice attorney for the family must determine whether or not the birthing professionals actually looked for and connected the dots prior to and at the time of the birth or did they, rather, bend over backwards after the injury to the baby to come up with benign, excusing explanations, because they failed to appreciate the pattern or collection of events that evidenced the baby’s increased need for protective action and caution. Further, it must be ascertained whether the doctor made primary the avoidance of unnecessary risk to the baby, that a more prompt delivery, recognizing the risk potential, would have provided.

The battle in this kind of a medical malpractice case is one between what the doctor knew or should have appreciated versus the many excuses and experts who are available to give excessive weight to the existence of after the fact possible excuses and explanations for delayed reaction, rather than timely anticipation and action.

What is Wrong with our Medical Malpractice Dispute Resolution System?

By admin

Friday, May 27th, 2011

A recent article in the Wall Street Journal underlines the risk we face when opinions are based upon misstatement of fact supplied under the guise of unbiased opinion, in what has become a highly polarized and jaundiced media that seeks to sell its product, opinion and proselytizing, as if it were news.

In the article, a professor of law supposedly reports on what is wrong with our medical malpractice dispute resolution system. Startlingly inaccurate generalizations are offered as if they provide wise justification for the criticisms being leveled.

Totally without proof or substantiation, the law professor offers as fact that jury trials contribute to the driving up of medical malpractice costs, since they “can veer out of control”. Reality is that he is wrong and speaks from ignorance and failure to analyze verdicts on their merits rather than news headlines and the opinions of the uninformed. More to the point, medical malpractice verdicts are subject to judicial scrutiny for determining if they are supported by the evidence.

What gets lost is the protection the jury system provides to the financially compromised victims and their ability to have their cases heard on the merits, by fellow citizens, as opposed to judges. Conversations with experienced judges will most often reveal their belief that justice is better served by a jury, rather than a judge who has developed a bias through over exposure, or is under administrative pressure to “move” cases even when it may be contrary to the interests of the parties.

The suggestion of jury replacement with specialized commissions is easy to put out without any consideration of the makeup, structure and protection against error. It also disregards that the doctors, through their insurance carriers, have shown no willingness to be deprived of the protection of a jury trial.

A doctor within geographical reach of members of his or her profession in a locale is simply not likely ever to blow the whistle of truthful criticism against a fellow practitioner, at minimum for fear of retribution, like treatment, or loss of referrals. That is an historic problem faced by all injured patients.

Decisions by committee are fraught with danger for the litigants, as the composition of that committee is pivotal to the integrity of such a system. As with any decision making body, the litigants must be protected from erroneous or unfounded decision making, by availability of appeal. The professor asks, naively, for the parties to voluntarily give up the right to a jury trial. Interesting coming from a supposed student of the law, our judicial system, and historic rights to a jury of fellow citizens.

It is not the medical profession and its insurance carriers who lack for representation, defenses, and ways to press their views of what medicine should have required of them rather than what it actually required. It is the injured plaintiff that faces all the proof and evidentiary hurdles that the ill informed and seemingly biased professor ignores.

The law professor slams the contingency fee system and “well healed” lawyers who “self finance” litigation, as the creators of the problems facing the system. He neglects to point out that the defense in any malpractice dispute is comprised of the corporate insurance carriers and the doctors, far better healed and able to finance litigation in a way no lawyer or injured plaintiff can match. But that seems not to trouble the professor. What troubles him is the mythical availability of numerous wealthy attorneys to finance frivolous litigation their injured patient/client cannot.

The reality that is unspoken is that it is a fool who risks his own resources in contingency fee litigation, where he/she is not paid and not reimbursed unless and until he /she wins for his/her injured client. There is no pot of gold. There is a pot of risk. Our system has developed out of the wise recognition that the injured ought to have access to effective counsel, just as the wealthy insurance carrier does. That attorney then has the task of deciding if the merits of the case against the doctor, justify a willingness to help the injured plaintiff by advancing finances and time to enable the injured patient the opportunity to have his or her case heard in a climate that overwhelmingly results in defense verdicts.

Since the individual can in not finance litigation in a way that can compete with the ability of the insurance company to finance the defense, the good, wise and unbiased professor would remove the individual’s ability to obtain redress, when a medical professional has been proven to have wronged and injured him or her.

Then the professor criticizes the rule that requires each side to self finance the litigation. All businesses have costs, but it is only the individual injured patient who would be bullied with the threat of paying both sides costs if the patient /client loses. This is nothing less than a scare tactic, threatening the injured individual if he or she dares legally question the propriety of the care provided. It totally disregards any concept of good faith disagreements that are to be resolved with intervention of the judicial system. His position also ignores the concept of frivolous lawsuits that already exists as a tool when the system is misused.

Then the professor scoffs at the availability of extensive pretrial discovery. His position is arrogant and disingenuous. The doctor has untrammeled access to the facts and the experts. He or she was the one who committed the medical malpractice and has access to witnesses, control over records that describe conduct and events and untrammeled access to the participants in the negligent care. The injured patient? He or she has his injury, or the death or injury to a loved one, but little else, other than what the wisdom of a discovery system allows him or her to uncover what happened.

The comment that judges “frequently let juries decide whether honest mistakes are negligent” is absurd, coming from a law professor. Clearly, medical malpractice can stem from the honest but incorrect belief as to how or when to try a procedure or order a test. It is the standard of care controlling the delivery of acceptable and appropriate medicine that determines whether the mistake, honest or otherwise, constituted medical malpractice, outside or below the recognized parameters or standards the doctor is expected to know and follow.

It is when the doctor goes through a medical “red light” and causes injury, that he or she is responsible. “Honest mistake” is a loaded phrase used by a person with either an agenda or ignorance about the subject, to induce the supportive reaction he is seeking.

The professor disregards the charge or description of the law given to every malpractice jury: the specific mandate that they must not and cannot infer negligence from the mere occurrence of an injury.

The law professor’s carelessness in research, understanding and reportage calls into question our ability to accept opinions and “facts” from “learned “sources. It is what leads countries and people down the wrong path and away from fairness, understanding and just results.

Where the professor got the idea that medical malpractice plaintiffs are spared the burden of identifying particular negligent acts or of showing the causal connection between a negligent act and the actual injury, is puzzling. It does not come from the law or actuality. It raises the question as to whether he has been in a courtroom or spoken to experienced trial attorneys or judges. This allegation of a lack of the need to prove causal connection is a fiction whose intent is to mislead and misinform.

Arbitration and waiving of jury trials has the sound of wisdom, but it is the carriers that most often reject that approach. Arbitrary limits to damage recoveries takes honest evaluation of the impact of what is often catastrophic, life changing injury away from those our system has long recognized are best to evaluate it.

Carriers are a business designed to make profits from accepting risk and premiums, investing them, and minimizing or eradicating their responsibility to deliver their product: payment of damages determined to be caused by the doctor client who paid them to do so.

Those who represent the injured individual are most often rebuffed in their efforts at simpler dispute resolution. It is the insurance industry that so often avoids early discussion and settlement, doing what they can to prolong avoidance of responsibility, make the process more expensive and risky for the already injured, and settlement too large an impact on the premiums the doctors must pay for the product the carrier is selling.

Medical malpractice litigation is anything but a giveaway to the injured patient. It is most often an expensive hurdle race, where the plaintiff must jump over every hurdle, from finding effective counsel, willing to accept the financial risks of a process that only the defendants can afford, to the myriad financial and evidential hurdles the injured faces in arguing a case in the medical language of the medical defendant, in a forum where so many risks to victory are in play, regardless of the clarity of the medical issues.

It is not the injured plaintiffs who resist simplification through arbitration, mediation or early settlement, based on good faith recognition of obvious medical mistakes. The medical industry has to recognize and accept those clear cases of medical error that deserve early recognition and resolution, rather than hunting and hoping for excuses and mistakes that might lead to the defeat of a meritorious claim. This would contribute greatly to cost savings, certainty, and quicker resolution in cases where the standards of care and causation are truly in dispute.

Nursing Home Litigation

By admin

Friday, May 27th, 2011

Given the changes in life span, nursing homes and assisted living are an ever increasing home address for our population as it ages. This has also raised the need to look at the adequacy and reasonableness of the care they deliver to a population with very specific needs and repeating vulnerabilities.

The relative reduced mobility of nursing home residents increases the risk for bed sores, lung problems and orthopedic [muscle and bone} injuries. The nursing homes seeking and accepting these patients do it with knowledge of the needs of those they take in, with the representation they are designed for and expert in the needs of the elderly and bedridden.

When they choose to operate this type of facility, they assume the responsibility to do it correctly, in terms of staffing, facilities and medical coverage. They are no longer places where the infirm go to pass away. They go with the understanding that it is a place of expertise, staffing, and facilities, geared to the specific needs of the population it invites and accepts money to house and provide acceptable levels of care.

Bed sores [decubitus ulcers] lung problems [pneumonia], bone and muscle problems, and infection are all known to occur increasingly in an older, immobile population. Unfortunately, an increasing level of litigation has developed around the failures of these facilities to deliver on their representations of competence and expertise.

When this happens, the medical records and facility practices, procedures, and adequacy of staffing and staff conduct, must be evaluated by both nurse, doctor and nursing home experts as to what was done versus what was required to be done.

This is what the experienced medical malpractice or nursing home malpractice attorney brings to the table: Know the questions that need answering and where to get the answers.

Building a Malpractice Case and Knowing the Pitfalls

By admin

Friday, May 27th, 2011

Medical malpractice claims have always created anxiety and some fear in the minds of many attorneys, often with good reason. If properly selected, they are claims usually involving medically sophisticated issues, steps that are necessary to insure the client’s story can be told in Court, significant expense, a strong defense bar, and substantial time and financial responsibility for the attorney who is willing to accept them.

The cases involve knowing how to identify both medical and legal questions, that often differ from the more typical personal injury claim, and where to go for answers to the medical issues raised. These questions will involve those your own experience reveal, as well as those raised by the sources you must use to discover the questions that need answering. In addition, there will be defense formulated issues and questions your malpractice experience should compel you to anticipate.  These will need early answering, to make sure you have properly identified what your case, client and experts will face, should you decide to go ahead.

This is best done early, even before suit, if possible, to avoid the money pit/trap any poorly selected or poorly prepared medical malpractice case can become.  Unlike the more common personal injury claim, experts are needed to prove both liability, damages and the connection between the two. The major investment and hurdle to winning is often in doing what is necessary to clear the liability hurdle and to connect it to the damage obstacle. Since the patient usually comes to medical attention with an injury or illness,  the causal connection to the end result is something your client may not easily appreciate as the problem it can often become. It is a hurdle that must be understood and cleared early.

If there is no appreciation for the need to differentiate for the jury the end result from proper treatment versus the malpractice caused outcome, you can find yourself, along with your client, well into the responsibilities, obligations, and financial commitment of the suit, finding out that the clearing the liability/fault hurdle might just have led you to  the far more difficult damage causation “jump” you had not anticipated to be so high and wide.

Medical Malpractice Related to Birth Injury or Birth Defects

By admin

Tuesday, May 17th, 2011

Becoming a parent of a newborn child is one of the most rewarding experiences you can have. However, that joy can turn to immeasurable pain if you learn your child is born with a birth defect that will change his or her ability to participate fully in what life can offer. The question facing the parent involves how to deal with and minimize the impact of what happened and how to help finance what needs to be done to protect the child, the mother or the family.

If that disability or injury has resulted from improper or unacceptable medical conduct or practices, the family may ask whether those that caused the problem, unnecessarily, by failing to practice or perform within known standards of medical care, should be required to lessen the economic impact of what happened. 

Simply because some birth defects or injuries could be the result of the conduct of a doctor or other healthcare professional during pregnancy or during or after birth, does not mean there was provable malpractice. If the mother or baby are harmed due to the negligence of another, it must be proven by a Medical Malpractice Attorney who knows what is needed to discover and present that proof. Under the law you may be entitled to monetary compensation, but only if that malpractice or medical negligence can be proven.

The majority of pregnancies and child births occur without incident. However, when they go wrong, the results can be catastrophic. There are various reasons for births to be difficult or create problems, either from events during pregnancy or at the birth itself. The questions often surround whether the doctor or medical staff properly anticipated or reacted to either early warnings or the late development of problems with pregnancy or labor. The review of that care will center around whether the medical providers reacted or acted within the known standards of care required of them, given the circumstances and the knowledge they were required to have.

That decision must be made from a full review of the records, circumstances and evidence, by a qualified physician, expert in pregnancy and births or in newborn or pediatric medicine. Cerebral Palsy and Erb’s palsy or an injury to the baby’s brachial plexus, among many other injuries, may raise questions as to how the steps up to birth and the birth itself were conducted, but they do not prove malpractice simply by their occurrence. A detailed review must be performed to find out if what happened could and should have been anticipated and/or avoided. The medical malpractice attorney needs to know what questions to ask and where to ask them.

If any of the unfortunate occurrences above have occurred to you or someone you love, please take the opportunity to contact us to see if we can help.   Our medical malpractice attorneys have the resources, experience and pride necessary to find the questions and answers and to represent you from and through the beginning to the end. Our mission is to give you the best chance for success, whether through a settlement or a jury verdict. We know and have experienced the complexity presented by malpractice cases and what is needed to get to the proper outcome.

Please do not hesitate to give us a call at 1-800-432-LAWS.