In late October, the Kansas Supreme Court heard oral argument in a case challenging the state's $250,000 cap on noneconomic damages. The Kansas cap has been in place since its enactment in 1988. The case giving rise to the challenge involves a woman whose right ovary was removed by mistake instead of her left. Thr jury awarded $250,000 for noneconomic losses, $150,000 for future noneconomic losses, $84,680 for medical expenses, $100,000 for future medical expenses, and $175,000 for loss or impairment of services as a spouse.

On posttrial motions, however, the trial judge remitted the damages award striking the $150,000 for future noneconomic losses and the $100,000 for future medical expenses. The plaintiff challenged the judge's reduction of the $150,000 on the basis that the cap unconstitutionally infringes on the rights of the most injured invididuals and violates the separation of powers between the judicial and legislative branches of state government.

The attorneys at Belsky, Weinberg and Horowitz will continue to monitor this important case. In prior blog posts, we have discussed the unfairness of noneconomic caps. There is no reliable data supporting the connection between non-economic damage caps and decreases in medical malpractice insurance premiums. The American Bar Association (ABA) has spoken out against a national cap, basing its position on the lack of empirical data showing caps have resulted in lower insurance premiums for physicians and other health care providers. We believe, as do many other law firms and organizations, that non-economic damage caps protect those responsible for committing the wrong and disproportionately impact those who have suffered the worst injuries.

The U.S. Food and Drug Adminstration (FDA) has issued a warning to users of Plavix (clopidogrel) in combination with another class of popular antacid drugs known as proton pump inhibitors like Prilosec (omeprazole) and Nexium (esomeprazole) can become weakened in their effectiveness at preventing clots and heart attacks.  According to study information, the anti-clotting benefits of Plavix are cut almost in half when taken with over-the-counter or prescription Prilosec, according to a notice posted today on the Food and Drug Administration's website,  The FDA has ordered Paris-based Sanofil and New York-based Bristol-Myers to update the prescribing information for Plavix and study the potential for other drug interactions.  In the meantime the FDA has issued the following information statement which is quoted below:

Patients who use clopidogrel and need a medication to reduce stomach acid can use antacids (such as Maalox or Mylanta) and most acid reducers, such as Zantac (ranitidine), Pepcid (famotidine), or Axid (nizatidine) because the FDA does not believe that these medicines will interfere with the anti-clotting activity of clopidogrel. However, Tagamet and Tagamet HB (cimetidine) should not be used. Ranitidine and famotidine are available by prescription and OTC and antacids are available OTC.

Please contact the attorneys at Belsky, Weinberg and Horowitz should you have questions or concerns over prescription medication side-effects or other errors in the dispensing of pharmaceuticals. 

Plaintiff presented to the defendant OB/GYN for outpatient laparoscopic surgery to remove an ovary. During the surgery, the defendant discovered extensive adhesions, which made the surgery much more complicated and difficult. The surgeon ultimately perforated her colon during the procedure. Plaintiff argued that given her medical condition, the removal of the ovary should not have been attempted laparoscopically and, once the surgeon encountered the adhesions, he should have converted to an "open"procedure. Further, the plaintiff maintained that defendant failed to timely recognize that he perforated her colon, resulting in severe infection.

The jury found the defendant to be negligent in his care and treatment of plaintiff, and awarded her $437,438.00 in compensation for past medical bills, lost wages, and pain and suffering.

If you or a loved one have been a victim of medical malpractice, call or email the attorneys at Belsky, Weinberg & Horowitz. We have the experience to handle these types of complex cases and will work to ensure the best possible outcome for you.

The Court of Appeals of Maryland has reissued its decision in University of Maryland Medical System v. Waldt, which was recalled several weeks ago after it was initially issued.  In a cursory review of the reissued opinion, it appears that Chief Judge Bell has now joined the majority on the issue of whether a retired physician who was designated as plaintiffs' expert was properly prohibited from testifying because his involvement in litigation-related matters exceeded the 20% ceiling established by Maryland statutory law. 

The majority held that the neuroradiology expert's endeavors in matters such as reading medical periodicals, observing surgeries, and consulting with other physicians could not be considered "professional activities" as defined by the statute and, therefore, his litigation-related activities when compared against his legitimate "professional activities" were higher than allowed by law.  Chief Judge Bell, who originally dissented as to this portion of the decision, has now joined the majority, changing the decision from 4-3 to 5-2 on this issue.

The Waldt opinion remains a disappointment for medical malpractice attorneys representing plaintiffs.  The disqualified expert was nationally renowned in the area of neuroradiology.  His disqualification occurred in part due to his retirement from the active practice of medicine in 2001.  He was, however, extremely knowledgeable despite his retirement and despite having never performed the coiling procedure at issue. 

The reissued opinion highlighted the expert's credentials as follows:  "Dr. Debrun was educated in France and practiced inteventional neuroradiology for 45 years before retiring in July of 2001.  He has held many positions in that field, including Chief of Neuroradiology at the University Hospital of Paris, Director of Neuroradiology at the University of London in Canada, Chairman of the Department of Radiology at Massachusetts General Hospital, Visiting Professor at Harvard Medical School, and Director of Interventional Neuroradiology at The Johns Hopkins Hospital in Baltimore. Dr. Debrun has lectured extensively and written hundreds of articles on the subject of neuroradiology. He has in the past performed over 30 coiling procedures to treat wide-neck aneurysms.  Between 10 and 15 of those aneurysms were similar in size to Mrs. Waldt''s aneurysm. Because Dr. Debrun's retirement preceded the market release of the neuroform stent, he never performed a coiling procedure using that stent."

As stated in an earlier blog on the case, very few physicians would have ever performed the subject procedure since it was contraindicated and not otherwise approved by the Food and Drug Administration.  The trial court's rationale precluding the testimony of Dr. Debrun on the issue of whether proper informed consent was given, although not "clearly erroneous" in the appellate court's view, was in some respects, in this author's opinion, unjustified despite his lack of experience with the particular coiling procedure at issue.

The attorneys at Belsky, Weinberg & Horowitz are experienced medical malpractice attorneys who are keenly aware of the hurdles that must be cleared in order to obtain justice for our clients.  Those hurdles continue to be erected by decisions like Waldt.  We understand the odds and the burdens that come with handling malpractice claims successfully.   We fight to protect the rights of all clients and other individuals injured at the hands of negligent medical providers.  Please contact us if you wish to discuss a particular case or issue with one of our attorneys.

Oral Argument was held before the Court of Appeals on November 5th on the critically important case of Lockskin v Semsker, where the trial judge in a medical malpractice case ruled that the cap on noneconomic damages added by the General Assembly in its 2005 amendments to the Health Claims Malpractice Act does not apply to cases where health claims arbitration is waived and the case is transferred to the circuit court for trial. The trial court's decision came as a surprise to the medical malpractice bar and has generated a great deal of controversy and uncertainty as to the value of claims and cases since the ruling came down.

Of the seven judges on the Court of Appeals hearing this case, many of the questions were asked by four judges-- Murphy, Barbera, Adkins and Harrell. Judge Murphy made the first remark by questioning not whether the General Assembly intended to create a cap on malpractice claims, but whether it in fact did so based on the statutory language it enacted into law. The issue which appeared most problematic for the judges was the fact that the legislature during its emergency session clearly intended to create restrictions on malpractice claims but yet the trial court's interpretation effectively eliminated the cap in nearly every such case. The judges took interest in statistics supplied by the parties that revealed that nearly all litigants waive out of arbitration before a merits hearing is held before an arbitration panel.

Counsel for the defendants who are seeking a reversal of the trial court's rejection of the cap argued that the statute on its face is ambiguous and thus the court must look to the legislative intent and history in determining whether the General Assembly intended to impose the cap in medical malpractice cases of all types no matter where they are heard. The legislature, according to defense counsel, was very clear in its intent to "tamp down" malpractice claims and awards. He also argued under the "absurdity doctrine" that it would be absurd for the legislature to have created a section on caps within the Health Claims Malpractice Act specific to malpractice claims only for it not to apply to the vast majority of malpractice cases which are not arbitrated to conclusion.

According to the defendants, based on the rarity of an arbitration award (which was and remains a well known phenomenon), the legislature clearly could not have intended for the cap to apply only to the very small subset of arbitrated cases. Otherwise, every person with a malpractice claim would waive out of arbitration to avoid the cap and the arbitration process would effectively be abrogated by judicial interpretation.

Counsel for the plaintiff who prevailed at the trial level in convincing the judge to reject the cap argued that the language of the statute was plain and that, even if a mistake in drafting was made, it was for the legislature and not the Court to correct. He noted that this kind of drafting problem had arisen in other cases involving the cap in wrongful death cases, and also arose in connection with criminal cases, where the Court refused to rewrite the legislation that was plain on its face, but yet resulted in an unintended application of the statutes.  In both cases, the legislature amended the statutes after the Court of Appeals' rulings.

Plaintiff's counsel faced a barrage of questions about the extent that cases are arbitrated to completion, which he conceded, albeit reluctantly, was very few, and was asked whether he agreed that if the legislative history and intent was considered, that his position was untenable.  He disagreed that the legislative history would change the outcome since earlier drafts of the law would reveal that the legislature once had the proper language to make the cap applicable to all medical malpractice cases, but chose to use other language instead.

The lawyers at Belsky, Weinberg & Horowitz will continue to monitor the outcome of this case and report on all events as they arise.

The American Association of Justice (AAJ) today released a new report entitled "Five Myths about Medical Negligence" that challenges what it claims are the myths about medical malpractice reform including 1) there are too many frivolous suits; 2) medical malpractice lawsuits drive up healthcare costs; 3) doctors are fleeing because of medical malpractice lawsuits; 4) medical malpractice claims drive up premiums; and 5) tort reform will lower insurance rates. You can view AAJ President Anthony Tarricone's article on the Huffington Post.  It is enlightening and on the mark as to the fallacy of those arguments asserted by large industries and the Republicans seeking to amend the health care legislation to include various limits on malpractice claims.  

The attorneys at Belsky, Weinberg & Horowitz are opposed to further caps on malpractice claims.  As has been explained in other posts, the current scheme of caps on malpractice claims in Maryland is unfair and uniquely deprives malpractice victims of the damages other personal injury victims are entitled to collect.