The West Virginia Supreme Court is the latest to grant review of its state's malpractice claims cap on noneconomic loss. The state legislature enacted the law in 2003 after insurance companies complained of increasing insurance rates and claims payouts. The West Virginia cap places a $250,000 cap on pain and suffering on all cases except those involving death, loss of limb or permanent injury, which are capped at $500,000. The cap applies no matter how many plaintiffs and how many defendants are involved provided the claims arise from the same nucleus of operative facts.

The West Virginia case arises from a challenge brought by James and Debbie MacDonald against City Hospital in the Eastern Panhandle and certain physicians at the facility. The suit alleges that physicians mistakenly gave James a medication to treat pneumonia which was contraindicated by his use of other medications he was required to take due to a prior kidney transplant and other chronic conditions. As a result of a reaction between the drugs, James suffered a muscle wasting disorder known as "rhabdomyolysis," which causes severe and debilitating deterioration of muscle mass and impairs most aspects of his daily living activities.

A jury awarded James $129,000 for medical expenses and lost wages (economic loss), $1 million for past, present and future pain and suffering, and awarded Mrs. MacDonald individually $500,000 for loss of consortium for loss of enjoyment of the marital relationship.  The trial judge, however, following the cap statute, reduced the noneconomic loss awards of $1 million and $500,000 to a single amount of $500,000, all of which went to James. Mrs. MacDonald's claim was effectively eviscerated by the application of the cap.

Based upon the impact of the cap on their claims, the MacDonalds engaged counsel from Washington, D.C. who have been involved in multiple challenges to state damage caps, including those in Maryland, Georgia and Illinois. The West Virginia challenge is seen as the most significant threat to the state's legislation since it was enacted, according to representatives of the West Virginia State Medical Association.

The West Virginia Supreme Court, although previously upholding a similar cap in a 1991 and 2001, has indicated within at least one opinion that any reduction of the malpractice cap below $1 million "would be so insufficient as to become a denial of justice."

The MacDonalds are challenging the law on equal protection grounds, arguing that the complete elimination of Mrs. MacDonald's consortium claim represents unequal and disparate impact up her rights to a fair trial. As mentioned in other blogs published by our firm, several courts have overturned state damage caps on the grounds that they violate the separation of powers doctrine by allowing the legislature to interfere with the judicial branch's absolute right to conduct jury trials and render verdicts. Other due process challenges are premised on a denial of equal access to the courts by those who are most severely injured and most adversely affected by the caps.

Belsky, Weinberg & Horowitz remains committed to the cause of plaintiffs and will continue to report on all developments on damages caps across the country.

Physicians and their governing boards have debated whether admitting to a patient that his or her physician made a mistake in their care and treatment will lead to an increase in medical malpractice lawsuits.  At least one study says "No."

The Annals of Internal Medicine published the findings of a study undertaken by the University of Michigan Health System which focused on determining whether the incidence of claims made and lawsuits filed would increase if physicians voluntarily disclosed their errors to their patients and made an offer to compensate those patients.  The study, which began in 2001, found that not only did the incidence of lawsuits filed per average month not increase, but they decreased, from 2.13 down to 0.75 per 100,000 patient encounters.  The study concluded that voluntarility disclosing a mistake, and making an offer to compensate that patient is not only "necessary to physician ethics and patient safety" but does not increase liability costs.

If you or a loved one have been the victim of medical malpractice, contact the lawyers at Belsky, Weinberg & Horowitz.  We will conduct a thorough evaluation of your case, find out what mistakes were made, and work tirelessly to get you the compensation you deserve.  Contact us by phone at 410-234-0100, or send us an email at www.legalteam.net

On Monday, Bradley Schwartz, a well-known Montgomery County civil litigation practitioner, received a 5 year sentence issued by Circuit Court Judge Steven G. Salant for misappropriation of more than $1 million in client funds. The sentence marks the end of a tumultuous story that involves gambling addiction, Chinese email/collection fraud well-known to the legal community, and overall poor judgment. As reported in today's Washington Post, Judge Salant called the case "a tragedy of Shakespearean proportions" and issued a sentence longer than recommended by the state guidelines. "I want to make it very clear that most of the 35,000 some-odd attorneys in the state of Maryland are very hard working men and women who are honest and ethical. . . . It hurts me to think that when the community, when the public, looks at us, they're going to be looking at what the defendant did here."

It is unlikely Schwartz will serve out the entire 5 year sentence as he will be eligible for early parole as a nonviolent offender within 15 months.

As Schwartz's gambling debt mounted, he began to use client funds from his escrow account, which constitutes clear misappropriation of client funds under the Maryland Rules of Professional Conduct and results in automatic disbarment.  After the Attorney Grievance Commission was notified by M&T Bank of bounced client escrow checks as Schwartz attempted to repay clients using money allegedly sent from the Chinese collection scam, Schwartz's records were audited. During the investigation, he fled to South America but kept in touch with bar counsel and cooperated with a confession, letters of apology to his affected clients, and agreed to disbarment by consent.  He returned to Maryland to face criminal prosecution.

Belsky, Weinberg & Horowitz is a litigation law firm representing plaintiffs in personal injury, medical malpractice, workers' compensation, social security disability and bankruptcy matters. With offices in Baltimore and throughout the state, Belsky, Weinberg & Horowitz is recognized as "preeminent" by Martindale-Hubbell Law Directory.© Four of its lawyers have received the prestigious SuperLawyer© designation. For more information about our firm, please visit our website.

The Maryland Board of Physicians provides a website that lists licensed providers and provides basic information about the date of licensure, renewal, specialty, and address. It also contains a section where "Malpractice Judgments and Arbitration Awards within the past ten years," and "Malpractice Settlements (3 or more of $150,000 or greater within the past 5 years)" are to be reported to the public.

Unfortunately, for reasons unknown, the public disclosure of adverse malpractice outcomes against physicians is wholly inaccurate. A cursory search conducted by our firm of physicians known to have had verdicts, awards and multiple settlements against them reveals that not single event is reported. This information is certainly of interest to patients and the general public and should be reported accurately. Physician questionnaires should be sent annually and should require full disclosure with criminal and administrative penalties for failing to do so.

Plaintiffs who have prevailed in cases of malpractice against medical providers should review their online profiles and contact the Maryland Board of Physicians should their profiles fail to mention adverse action that meets the criteria for disclosure. There is already too much information hidden from the public involving doctor discipline and peer review events involving medical mistakes. Since disclosure of adverse malpractice events is legal, the public should insist that the disclosures be accurate and timely.

The law firm of Belsky, Weinberg & Horowitz, with offices in Baltimore and across the state, practices in the areas of medical malpractice and personal injury. We represent only plaintiffs in legitimate claims for injury and offer the information on our website as informational and not as legal advice. Should you have any questions about a case or the content of our site, please contact us.

A study recently published by The Physician Insurers Association (PIA) reveals that malpractice claims arising from missed heart attack diagnoses represent the third most prevalent scenario giving rise to malpractice claims, ranking only below brain damaged infants caused by birth injuries and missed breast cancer diagnoses as the most prevalent type of claims with the highest per incident payout by insurers.

There are reasons for the high incidence for missed heart attack diagnosis. First, heart attack symptoms mimic other disease states, such as indigestion, anxiety, and musculoskelatal pain, which are frequent alternative working diagnoses. One reason why a heart attack is not first considered as a working diagnosis is that nearly 70 percent of all patients presenting to their physicians with symptoms suggestive of a cardiac event have no prior history of coronary artery disease or heart conditions. An electrocardiogram (EKG), which is the first line test for determining whether the heart is functioning properly, is frequently not ordered (28% of the time), and when ordered, is either misinterpreted or the results are not timely communicated to the provider.

According to the PIA study, in the majority of cases, the provider misread the EKG results. Of 304 providers sued for cardiac malpractice, 277 did not correctly diagnosis a heart attack in the face of compelling medical data.  220 of those providers did not refer the patient to a cardiologist or other specialist.

Other areas of malpractice involve a failure to treat heart attack symptoms appropriately. 154 cases reported by the study involved allegations of treatment errors, and of those, 109 involved allegations of treatment and diagnosis errors. The most frequent errors in treatment involved a failure to admit the patient to the hospital for observation and additional testing, including certain blood tests that can tell a physician whether a heart attack is in progress. Premature discharge from the emergency room is, not surprisingly, another frequent event of malpractice in the cardiac setting.

As part of its risk management suggestions, which physicians would be well advised to adhere to strictly, PIA recommends the following protocols:

(1) Document the results of previous cardiac studies and compare the results with present studies;

(2) Document all patient complaints relative to pain and pressure in the sternum and area of the heart;

(3) Take a thorough personal and family history for cardiac related illnesses;

(4) Do not ignore or automatically rule out heart attack in younger patients;

(5) Run all available tests to rule out an actual or impending heart attack;

(6) Do not discount a patient's clinical presentation even in light of negative test results and continue to investigate;

(7) Treat all patients the same whether in an emergency or nonemergency setting;

(8) Report promptly any positive findings and refer the patient to specialists immediately.

Although the foregoing actions would seem self evident, unfortunately they do not occur at rates that are acceptable to avoid catastrophic heart attacks. The lawyers at Belsky, Weinberg & Horowitz, LLC have vast experience with cardiac-related malpractice claims and have succeeded in obtaining excellent results for our unfortunate clients whose conditions could have been timely diagnosed and treated with the proposed protocol recommended above.

Our job as lawyers is not only to obtain recovery for clients after an injury occurs, but is to serve as a deterrent against future negligent care by sending a message that an avoidable medical error will come at a heavy legal and professional price. The goal of the law is to promote better medical care and we hope our efforts in the courtroom and in publishing our informational articles will serve that ultimate goal.  We encourage all of our clients and readers to be their own best medical advocates, to ask as many questions as necessary to understand how and why the physicians are doing (and not doing) what they are to treat the illness or condition, and to realize that the patient knows his or her body better than any health provider looking from the outside. 

Do not take for granted that the medical community has your best interests at stake and that they are correct in their diagnoses, particularly in the face of inexplicable physical symptoms.  If you must return home without a solid differential diagnosis or suitable follow up plan, get on the internet and see what you can figure out on your own.  If you learn something important, return to the medical provider immediately with research, ideas and questions in hand.   An educated patient is the best patient, and many physicians, recognizing that a patient has access to internet data, will ask the patient what they think is wrong and will incorporate the patient's ideas into their evaluative process. 

Should you need assistance with a case or would like to ask questions related to a possible claim, please contact our office.

In a survey taken and reported in the July 14, 2010 issue of the Journal of the American Medical Association (JAMA), one-third of U.S. physicians surveyed reported that they do not a feel a responsiblity to report a colleague who they believed to be incompetent or impaired by substance abuse or a mental disorder.

Speculation as to the reason why so many physicians fail to report their fellow physicians include a belief that these colleagues will lose their licenses and ability to earn an income, the belief that reporting will not be effective, a fear of retribution, or a belief that someone else was already dealing with the problem.  21% of those surveyed believed they were unprepared to deal with incompetent or impaired physician colleagues.

The lead investigator, Dr. Catherine DesRoches, said "Since physicians themselves are the primary mechanism for detecting such colleagues, understanding their beliefs and experiences surrounding this issue is essential.  This is clearly an area where the profession of medicine needs to be concerned."

If you or a loved one have been the victim of medical malpractice, call the lawyers at Belsky, Weinberg & Horowitz at 410-234-0100 for a free consultation, or visit our website at www.legalteam.net.

The Nevada Supreme Court is the latest appellate court of last resort to review its state's legislatively created cap on noneconomic damages in malpractice claims. Many health providers and business organizations are worried that the court will overturn the $350,000 cap and will follow the lead of several other state supreme courts who have deemed similar caps unconstitutional, including Illinois and Georgia. Their worries are partly due to the facts of the cases where the cap is being applied, and the inequities in the award of damages to severely injured plaintiffs.

In one case, a physician, Dipak Desal, M.D., allegedly caused a hepatitis C outbreak that affected thousands of Nevadans. Another case involves claims by seven family members whose mother was misdiagnosed and then left untreated at a local hospital here she died.

The rub involves the interpretation of the cap as either applying to an "event" of malpractice or to each "claim" for malpractice. The difference in interpretation could mean the difference between $350,000 divided amongst all the plaintiffs or multimillion dollar awards for the same claims.

The trial court in one of the cases consolidated for appeal ruled that the cap provides a single cap of $350,000 per event of malpractice no matter how many claims arise out of that event.  In another case, a state trial judge went in the opposite direction, ruling that each plaintiff had a separate claim for a single event of malpractice.  Such an irreconcilable split of opinion within a state or federal judicial system is a typical reason a state or the federal supreme Court agrees to hear a case  by granting certiorari.

Should the Nevada statute be interpreted as applying to an "event" of malpractice and not to individual claims, the attorneys representing the plaintiffs and their families intend to challenge the constitutionality of the cap, by claiming it violates federal and state equal protection guarantees.

Several state supreme courts have concluded that their states' damages caps violate state equal protection guarantees by allowing the legislature to strip the judiciary of its exclusive right to decide cases brought before the courts. Some courts have found that the caps violate state constitutional separation of powers guarantees, while others have found the caps violate the constitutional guarantee of equal access to the courts.

Advocacy groups on both sides of the debate in Nevada are gearing up for a battle of epic proportion in an otherwise conservative state. A vast number of business friendly organizations and medical associations have asked for permission to file "amicus" (friend of the court) briefs to voice their constituents' positions relative to the application and constitutionality of the cap.

Nevada's discreationary appeals process is different than in many other states. The Court has agreed to review briefs from the parties and will likely allow the amicus filings.  It has not yet agreed, however, that it will hear oral argument from the parties or interested third parties. It appears certain, however, that it will issue a written opinion whether or not oral argument is received.  Most state supreme courts require oral argument before a decision is handed down, although many jurists and appellate advocates believe oral argument rarely changes the ultimate direction of the case.

The lawyers at Belsky, Weinberg & Horowitz  have extensive experience with medical malpractice cases in Maryland and have obtained multimillion dollar verdicts and settlements in a wide array of cases.  We have written extensively about the unfairness and illogic of damages caps and continue to advocate against application of caps in favor of a "free market" jury deliberation process where the "people" ultimately decide what damages should be awarded. Judges continue to retain remittitur powers to reduce jury awards that they consider unfair or unconscionable. A challenge to Maryland's damages cap in pending before the Court of Appeals of Maryland, and we will continue to monitor that case and developments nationwide.  Please contact the firm for more information.

As announced last week by the U.S. Department of Health and Human Services, Rite Aid Corporation entered into a consent order with the Federal Trade Commission (FTC) to pay $1 million in fines to teh FTC for its' failure to protect the privacy of pharmacy customers as is required by the Health Insurance and Portability Accountability Act (HIPAA).  Rite Aid was accused of disposing of prescription bottles which contained patient's names and other identifying personal information into trash recepticles accessible to the public, rather than destroying or otherwise taking sufficient steps to safeguard their customers' privacy.

As part of the agreement, Rite Aid agreed to review and revise their policies for disposing of sensitive, private information, to adequately train their employees in these policies, and to hire an independent third party to ensure compliance with the provisions of the consent order.  The corrective plan instituted by Rite Aid will remain in place for 3 years.  The FTC consent order will remain in effect for 20 years