In today's Baltimore Sun, reporter Tricia Bishop looks at the use of stents and the risks they bring. According to the article, until recently, use of cardiac stents to open blocked arteries has been all the rage and was seen as a relatively safe procedure when compared to open heart coronary bypass surgery. Since the 1990s, stents have been increasingly used and have generated more than $1 billion of revenue for Maryland's hospitals.

In the wake of close to 600 claims against Mark Midei, M.D.- the once preeminent interventional cardiologist at St. Joseph's Medical Center in Towson, Maryland -- for unnecessary stenting of patients with little or no artery blockage, the health care community is now taking a hard look at the risks and benefits of cardiac stents and is now trending away from using them in favor of medications or bypass surgery. According to statistics from the state Health Services Cost Review Commission, stenting procedures in Maryland will drop by 25% this year (from 14,255 to 10,650).

Some of the comments and opinions expressed by those interviewed are rather remarkable. Most striking are the comments of Dr. William O'Neill, executive dean of clinical affairs at the University of Miami's Miller School of Medicine. Dr. O'Neill, who was hired by St. Joe's to review Dr. Midei's patient charts, claims that he found "no unwarranted stents."

With all due respect to Dr. O'Neill, our firm and many others have hired top flight interventional cardiologists to review Dr. Midei's charts and in many instances, there was absolutely no blockages whatsoever. Many patients' own cardiologists have also reviewed Dr. Midei's films and reports and cannot reconcile the reported findings against the films.  The referring cardiologists have reviewed the data at the request of their patients who received the now well known yet cryptic letter from St. Joe's warning patients to consult with their physicians about possible harm.  In more than a few cases, patients report that the treating doctors have simply shrugged their shoulders in dismay and have offered apologies for referring them to Dr. Midei.

Dr. O'Neill is also quoted as suggesting that physicians who perform stenting on borderline patients, i.e., those with close to 70% blockage, will now "be afraid that some angry patient or angry attorney or disgruntled colleague or competitor is going to turn him in for doing unnecessary procedures." Once again, when the goings get tough, the defensive medicine argument rears its ugly head. Dr. O'Neill further justifies unnecessary stenting by stating that "[f]or some of these doctors, it was like, 'I'm here, so let me go ahead and put a stent in.'"

One must wonder whether Dr. O'Neill intends to offer the same opinions in court as he has in today's article in the Baltimore Sun. 

At least four studies over the last four years have found that stenting generally is not without some significant risks, even with the most recent development of the drug-alluding stent that was hailed a few years ago by Dr. Midei as the "hottest thing in cardiology in years."

The Baltimore Sun should be commended for its ongoing effort to bring to light the continuing issues related to the actions and possible harm caused by Dr. Midei. Many in the community are understandably perplexed and disappointed that a physician could invade his patients' rights and expose them to such unnecessary risks. Dr. Midei has many supporters, but he has many injured and very concerned patients as well.

Belsky, Weinberg & Horowitz continues to represent patients in medical malpractice cases, including those who have received stents unnecessarily. Please contact the firm for more information.

The Wall Street Journal reports today that five New Your City hospitals will embark on a pilot program to reduce medical malpractice insurance premiums and related costs by divulging medical mistakes promptly, by making settlement offers swiftly, and by utilizing specialized "health courts" to resolve disputes and negotiate settlements before litigation is commenced. The participating hospitals are Manhattan's Beth Israel Medical Center, Mount Sinai Medical Center, New York-Presbyterian Hospital, Brooklyn's Maimonides Medical Center and Bronx's Montefiore Medical Center. The goal of the program, funded with $3 million of federal money, is to reduce medical errors. While New York-Presbyterian Hospital will focus its error prevention on surgical errors, the four other hospitals will focus their efforts on reducing obstetric errors which have caused significant increases in malpractice insurance rates.

An important aspect of the program is judge-directed mediation, which has been very successful in reducing New York City's public hospital payouts on malpractice claims by hundreds of millions of dollars over a seven year period. Although the details are still being worked out, Richard C. Boothman, a University of Michigan consultant hired to assist with planning and oversight of the program, has encouraged the hospitals to "handle [claims] in a proactive, principled way . . . [and] if it's a legitimate lawsuit, step up and resolve it."

One concern is that injured patients may resolve their claims without the assistance of legal counsel and may short-sell valuable claims. Although jury trials would still be available to  individuals who participate in the program, the extent to which they are advised and guided in that direction during the claims or mediation process when they are without legal counsel is unclear.

The lawyers at Belsky, Weinberg & Horowitz have written in prior blogs on the need for specialized medical malpractice courts to resolve claims. Our attorneys frequently resolve claims through alternate dispute resolution (ADR) processes of mediation and binding arbitration. Typically, when early ADR is suggested by medical providers or their attorneys, they are, in effect, acknowledging some financial exposure and thus fault for the medical error being alleged. The New York program is an important model to watch over the next several years to determine whether other states, including Maryland, might benefit from a more formalized program of prompt error disclosure and swift settlement of medical malpractice claims.

The Maryland Health Care Malpractice Claims Act, codified at § 3-2A-01, et. seq. of the Courts & Judicial Proceedings Article of the Maryland Annotated Code sets forth onerous rules and requirements plaintiffs must comply with before filing suit against a "health care provider" for medical negligence in any state or federal court. Among other requirements, the Act requires that within 180 days after the claim is filed with the Health Claims Dispute Resolution Office--the state administrative body that receives all medical malpractice suits and which serves more like a clearinghouse than an actual arbitration tribunal-the claimant/plaintiff must file a "Certificate of Qualified Expert" wherein an expert, trained in the same or similar field as the defendant/health care provider, must certify there was a breach of care which proximately caused the claimant/plaintiff's injuries. Once that certificate and an accompanying comprehensive report are filed, the plaintiff (or the defendant) may waive out of the arbitration process and refile the action in any state or federal court where venue and jurisdiction are proper.

Not all medical providers, however, are subject to this mandatory arbitration process in Maryland. The following are "health care providers" subject to mandatory health claims arbitration: hospitals, medical day care centers, hospice care programs, assisted living programs, ambulatory care facilities, physicians, osteopaths, optometrists, chiropractors, registered or licensed practical nurses, dentists, podiatrists, psychologists, licensed certified social workers, and physical therapists. Not included on this list are pharmacists, physician's assistants, nurse practitioners, radiology and other specialized technicians, maintenance and support staff at medical institutions, and employees and staff members at a physician or health care providers' offices.  The claimant must also suffer a "medical injury" arising from the rendition of health care in order for the claim to be subject to mandatory arbitration.  Not all incidents at health care facilities arise from medical treatment or care.

Should you have a claim for medical malpractice, be aware of the strict requirements of the Maryland Health Care Malpractice Act but consult with an attorney before assuming that your claim will be subject to mandatory health claims arbitration. The attorneys at Belsky, Weinberg & Horowitz are trial lawyers skilled in handling all aspects of medical negligence claims from investigation to trial. Should you have questions or need information about the firm's services or your personal injury or health care related claim, please contact the firm.

In an interesting article in today's Maryland Daily Record, the concept of a "Shadow Jury" is discussed. One is presently being used in a multi-month trial in Baltimore City against a hotel operator where 22 plaintiffs are suing for carbon monoxide poisoning.

Shadow juries are rarely used and typically are hired by jury consultants to watch the trial as it transpires to provide daily guidance to the attorneys who hired the consultant about the day's events. The consultants choose prospective shadow jurors to mirror as closely as possible the actual jurors who are selected to sit and hear the case. To what extent those consultants are provided with the real jurors' demographic information contained on the prospective juror pool list used by attorneys in identifying jurors' occupation, level of education, age, and spouse's occupation, is unclear. It is actually questionable whether dissemination of that information to third parties is permissible. What is clear, though, is that the use of a shadow jury is both controversial and not widely accepted.

Some lawyers believe hearing the shadow jury's perspective of the day's events is helpful in readjusting the next day's case presentation, while others find it distracting. What an attorney believes is a smooth, effective presentation or examination of a witness may well turn out to be a useless endeavor in the eyes of shadow jurors. Some attorneys find merit in such real time feedback, while others find it unnerving and potentially harmful.

Some lawyers are very instinctive about the look and feel of the evidence and the jurors' reactions and attentiveness. It is very possible to lose sight of the courtroom dynamic by micro managing the case through the eyes of people who, although paid hundreds of dollars a day to sit and listen, will not be the ultimate decision makers and do not have the vested interest in the outcome of the case as do real jurors.

The size of the shadow jury may vary from one or more hired individuals to a mirror image of the size and "shape" of the jury actually sitting. Many more lawyers use jury consultants to arrange for "mock trials" where a mock jury comprised of paid individuals with similar demographics to the jury likely to sit at an upcoming trial hear the full case presentation in advance and render a verdict. The lawyers can then take their ques from what they hear from the mock jurors about the effectiveness of witnesses, evidence, lawyer demeanor and tactics and readjust their case in advance of opening statements.

This writer is in the camp of lawyers who would not use a shadow jury, as the instinctiveness factors is of paramount importance in understanding how the evidence is being received by the jury. Not only would it be a distraction likely to result in more second-guessing than is already inherent in the trial process, but it may also create a distraction for the real jury who will realize very quickly that they are being watched by a similar group of people whose true role and purpose of being in the courtroom everyday they will not understand until the case is over. 

The attorneys at Belsky, Weinberg & Horowitz regularly litigate large medical malpractice and catastrophic personal injury cases.  Please contact the firm for more information about its lawyers and services.

As with most other business and investment decisions, attorneys are forced to evaluate the merits of malpractice claims and perform a cost-benefit analysis to ensure, to the extent possible, that the time and money invested will bring a return of that investment and adequate compensation to the victim after case expenses and attorneys' fees are paid. Many potential clients contact our office with legitimate negligence claims that we must reject because the cost of pursuing those claims will exceed the likely recovery. Thus, there is a group of small malpractice claims that fall into the proverbial "black hole" where the claim is legitimate but simply cannot be pursued economically.

It's very unfortunate that the costs of litigation are so high. There is essentially no limit at the trial level on the number of expert witnesses a given party may call to support their position. Costs of litigation, including expert fees, trial exhibits, medical records, PowerPoint presentations and the like, can easily rise above $100,000.

Although in Maryland the General Assembly created the Health Claims Dispute Resolution Office as an administrative prerequisite to state court litigation, where the concept in its creation was to streamline malpractice litigation by limiting the number of experts who can be called in a particular field, creating a "fast track" for "trial" of the case, and formulating helpful procedural rules not present in the Maryland Rules of Civil Procedure, the sad reality is that health claims arbitration in Maryland is never used, i.e., the parties waive out of the process at a very early stage, primarily because the findings of the three member arbitration panel who would decide the case have no binding effect in the sense that the losing party can appeal the decision de novo, which means the appeal results in a second trial with more witnesses and lots of wasted time and resources at the arbitration level.

The Maryland General Assembly should consider creating specialized trial courts to deal with medical malpractice claims, where the judges and staff are trained in the nuances of medical malpractice litigation, and who can assist litigants by promptly and efficiently dealing with issues the arise consistently in such cases, such as expert qualifications, compliance with conditions precedent to litigation such as certificates of qualified experts, discovery disputes, and issues related to the scientific, medical and factual validity of the evidence proposed for admission at trial. Specialized malpractice tribunals could also formulate specific procedural rules that limit the length of trial depending on the complexities of the medicine, and restrict parties from indulging in expert "overkill" or spending the opposing party "into the ground." These courts could provide a forum for expedient and efficient resolution of the smaller claims that are presently rejected for the above-stated reasons by most malpractice law firms in the state.

The time has come for specialized malpractice tribunals whether or not health claims arbitration remains a prerequisite to full blown litigation in state court. Please feel free to post your opinions on this subject on the Belsky, Weinberg & Horowitz medical malpractice blog or contact our attorneys for more information.

Some medical malpractice cases are resolved by settlements reached before, during or after trial. A common quid pro quo for settlement of these claims is a confidentiality agreement with terms and conditions which are typically incorporated into the "Release" the settling medical provider requires the plaintiff to sign before payment is made. There are pros and cons to agreeing to confidentiality.

Certainly, health care defendants desire that claims and settlements remain confidential for obvious reason. Likewise, some plaintiffs prefer that their affairs remain confidential. In such a case, the parties are in agreement that the confidentiality is beneficial by protecting their personal affairs from public scrutiny. Other plaintiffs, however, wish the world to know that the provider settled the claim, whether or not he or she admitted fault in the process. Public disclosure and perhaps an apology are frequently motivating factors for bringing claims. When public disclosure is desired, confidentiality provisions should not be agreed to as they will prevent dissemination of information that the plaintiff desires be made public.

In addition to preventing disclosure of the amount of the settlement, confidentiality agreements frequently prohibit the disclosure that a settlement of any amount was reached, or that discussions were undertaken to resolve the claim. Reference to "John Doe" and "Anonymous" in substitution for the parties' true names is usually prohibited as well.

Although many state medical boards are suppose to keep track of malpractice claims resolved against medical providers, many do not learn of the results of settlements due to confidentiality agreements. There are exceptions in some states where governmental agencies are permitted to learn and disclose generic results of confidential settlements, but this writer is aware of more than a few cases where settlements that meet the threshold criteria for public disclosure by state licensing boards do not appear under the settling medical provider's licensure listing. 

Sometimes lawyers will negotiate confidentiality agreements for a price, i.e., they will require the settling health care provider pay for confidentiality in addition to payment for the underlying claim. In many cases, however, confidentiality is presumed and is built in to the settlement offer extended during negotiations.

If you have a case where settlement is being discussed, be sure to ask your attorney about whether confidentiality will be made a part of the ultimate agreement and consider carefully whether this is something you truly desire. Contact the attorneys at Belsky, Weinberg & Horowitz for further information on confidentiality agreements.

We receive a fair number of calls from prospective clients inquiring about whether an internal injury to an organ, nerve or vessel during a surgery on an unrelated area constitutes malpractice. The issue is typically not whether the injury occurred, since insult to "adjacent structures" is a known risk or complication of any surgery and is covered by the typical informed consent form signed by the patient before surgery.

Although the injury itself is a known and assumed complication, the failure to recognize the injury when it occurs typically does amount to malpractice. Therefore, if a bowel or bile duct is cut, or a nerve or blood vessel is severed or compressed, the failure of the surgeon to recognize that the injury occurred, and the failure to act promptly to correct or "mitigate" the injury to reduce the likelihood of worsening or permanent harm, is cause for a claim notwithstanding any informed consent form where the patient otherwise acknowledges the risk and waives a claim.

Injuries to adjacent structures can occur for a variety of reasons. A surgeon's hand can slip while using sharp instruments to dissect tissue. Electrocautery used to cut tissue can arch and burn other areas not within the immediate field of the surgery. A patient may be mispositioned during the surgery causing compression of nerves and vessels. Or a patient's body or extremity may be manipulated in such a way to cause injury during joint replacement surgeries. Unfortunately, a patient under anesthesia cannot react to pain and therefore cannot provide verbal ques to the surgeon that something is wrong or that they are in pain.

The attorneys at Belsky, Weinberg & Horowitz have vast experience with surgical injuries of all types, including those to adjacent structures. Should you wish to discuss a possible claim with our attorneys, please contact our office.