By Benjamin T. King – New Hampshire Medical Malpractice Attorney

The insurance industry has done a good job in selling the notion that caps should somehow be imposed in medical malpractice cases to protect doctors and hospitals from a “litigation crisis”.

The truth is that very few injured patients ever file suit, fewer still take their case to trial and only a handful win, concluded researchers for a 2011 report by the National Center for State Courts. The real crisis is one of medical negligence, not lawsuits. According to a Bellwether 1999 study by the Institute of Medicine, between 44,000 and 98,000 people die each year in hospitals due to preventable medical errors, costing society between $17 and $29 billion.

Medical malpractice caps are not only unnecessary, but one State Supreme Court recently declared them unconstitutional. A state law placing a $350,000 cap on non-economic damages in medical malpractice cases violated the constitutional rights of a parent whose child suffered catastrophic birth injuries, the Missouri Supreme Court has ruled in reversing judgment.

In that case, the plaintiff’s son suffered catastrophic brain injuries during delivery at a hospital operated by the defendant. The plaintiff sued for medical malpractice, alleging that her doctors failed to promptly detect an emergency C-section.

A jury found the hospital liable, awarding the plaintiff 1.45 million in non-economic damages and $3.371 million in future medical damages. The trial judge reduced the plaintiff’s non-economic damages to $350,000 pursuant to cap enacted by the state legislature in 2005 as part of medical malpractice reforms. But the court here concluded that the cap violated the right to trial by jury under the state constitution. “The individual right to trial by jury cannot ‘remain inviolate’ when an injured party is deprived of the jury’s constitutionally assigned role of determining damages according to the particular facts of the case,” the court said.

If you believe you may have been the victim of medical malpractice, you should contact an experienced New Hampshire medical malpractice lawyer such as one of the attorneys at Douglas, Leonard & Garvey, P.C. Call 1-800-240-1988 or fill out our online contact form.

A plaintiff in a medical malpractice case challenged the constitutionality of the State’s medical screening panels, arguing that they interfere with a party’s right to a jury trial.

Pursuing a medical malpractice or negligence case is difficult because of the emotion and cost involved but several years ago, New Hampshire created medical screening panels, which an injured party must appear before prior to going to court with a medical malpractice case. The panel consists of a retired judge, an attorney and a doctor. Under New Hampshire law, the panel’s findings may, under certain circumstances, be presented to a jury.

The Supreme court ruled that the law’s limits on introducing evidence about the screening panel’s findings was unconstitutional. The court determined that superior court judges handling a medical malpractice trial will need to determine how much information can be given to the jury.

Fighting for your rights in a New Hampshire medical malpractice case takes an experienced lawyer. If you or someone close to you has been injured by a medical professional, please call Douglas, Leonard & Garvey, P.C. at 1-800-240-1988 or fill out our online contact form.

Several states have recently enacted “medical malpractice reform” which places arbitrary caps on damages awards. Those in favor of such caps argue that doctors will no longer have to worry about “frivolous lawsuits” and “higher malpractice insurance premiums.” This is wrong because arbitrary damages caps will not accomplish either of those goals. Instead, these proposals harm victims who are left with life-changing injuries and shield negligent medical providers for the injuries they cause.

Arbitrary damages caps are easy to believe in when you or a family member have never been a victim, or worked with victims, of medical negligence. The reality is that damage recovery in medical malpractice cases hardly compensates victims for their injuries or even death. Placing limits on these victim’s ability to obtain a “full” recovery (as impossible as that is) lets off the hook the negligent medical providers.
The idea of “reform” begs the question: why focus on limiting the recovery of a victim. The real problem is the huge number of medical negligence victims in the United States each year. True “reform” should address ways to reduce or eliminate medical malpractice victims. These medical mistakes injure and kill thousands of Americans every year. Some shocking statistics reveal the following:

In 1998, the Harvard Medical Practice Study published in the New England Journal of Medicine estimated that 98,000 people die as a result of malpractice committed in hospitals each year.

In 2000, the Institute of Medicine published an article entitled, “To Err is Human: Building a Safer Health System,” which stated that in any given year, more people die as a result of medical errors than from motor vehicle accidents (43,458) or breast cancer (42,297) or AIDS (16,516).

In 2003, the Congressional Budget Office found that there were 181,000 severe injuries attributable to medical negligence.
In 2004, HealthGrades, the nation’s leading health care rating organization, found that “The United States loses more American lives to patient safety incidents every six months than it did in the entire Vietnam War. This also equates to three fully loaded jumbo jets crashing every other day for the last five years.”

In November 2010, the U.S. Department of Health and Human Services reported, “An estimated 1.5 percent of Medicare beneficiaries experienced an event that contributed to their death, which projects to 15,000 patients in a single month.”

In January of 2011, the obstetrics department of the Cornell Weill/Columbia Presbyterian Obstetrics and Gynecology Department in New York City published a study that showed that they had reduced their malpractice premiums, and more importantly, their malpractice claims by an astounding 99 percent by simply re-examining and redoing their policies and procedures. There was no cap placed on their creativity.
(taken from http://blog.syracuse.com/opinion/2011/06/medical_profession_at_fault_fo.html)
As the Cornell Weill study demonstrates, reducing malpractice claims and insurance premiums is done most effectively by the medical industry itself. As with attorneys, it only takes a few bad doctors/hospitals/medical boards who allow repeat incidents to drive up insurance costs for everyone else. If lower malpractice claims and insurance premiums are the goal, then stricter self-policing and better medical practices by medical professionals and medical boards is the best way of making sure that costly accidents are reduced or eliminated.

Doctors who cause life-altering injuries or death must be held accountable not off the hook and shielded from their wrongdoing.
“Medical malpractice reform” such as damage caps are not the answer. Medical and insurance costs are more likely to be effectively controlled through reforms and reducing medical mistakes rather than through placing artificial caps on the recovery of the people who did nothing wrong. New Hampshire victims of medical mistakes are at risk now because the issue to impose caps on damages may be brought up in the New Hampshire legislature. The insurance companies and doctors have powerful lobbies at the State House and may try to place caps on a victim’s ability to recover in New Hampshire.

If you or a family member has been harmed by a medical mistake or negligence, please give us a call at 800-240-1988 or fill out on online contact form. We have experienced attorneys who may be able to help you and your family.

Have you experienced a spontaneously ruptured tendon, vision damage, ligament/joint damage, or other serious side effects after taking prescription Avelox® antibiotic?  Avelox® is the brand name for a fluoroquinolone antibiotic.  Other antibiotics in the fluoroquinolone family include Cipro® and Levaquine®.  The FDA has issued its most serious “black box” warnings for these antibiotics due to the severe and potentially permanent nature of some of the possible side effects.  Spontaneous tendon rupture and other forms of serious connective tissue damage are not uncommon, even in otherwise fit and healthy individuals.  These drugs are supposed to be prescribed for only the most serious, life-threatening types of infections.    Unfortunately, some doctors continue to prescribe Avelox, Cipro, and other fluoroquinolone antibiotics in situations where their use may not be warranted and may be more dangerous than the infection they are trying to cure.

If you have experienced the side effects of Avelox® or other fluoroquinolone-based antibiotics, you should be aware that you may have a right to recover for your injuries.  Douglas, Leonard & Garvey, P.C. is currently investigating Avelox® litigation, based on several reports from injured individuals in New Hampshire.  If you are a New Hampshire resident who has suffered an inexplicable connective tissue (tendon, ligament, lumbar disc) injury and have concerns, please contact the firm without delay to learn more about your options.

Several attorneys filed suit against the State recently to try to obtain proper funding for our judicial system.  It is broken and I could not sit idly by and let it be gutted by excessive legislative budget cuts so I joined in as counsel.

Each year 230,000 court cases are filed in New Hampshire.

Certain types of court cases have specific time frames in which to act and those are set by the legislature.  For example, domestic violence cases and criminal cases require certain scheduling dates by law.  Thus, work on such cases means other cases must be delayed if judge time is lacking due to vacancies.  For instance, in 2009, there were 5,300 cases of domestic violence with hearings required between five or thirty days of filing, depending on the request.

Stalking cases were 1,470 in number, with the same time requirements.  9,600 landlord/tenant cases must be heard ten days from service of process.  Involuntary emergency admissions to the N.H. Hospital were filed 1,700 times last year and they must be heard within three days of hospitalization.

Families are also heavily affected by the lack of a judge to help decide their disputes.  7,200 juvenile cases, 10,000 new divorce or family petitions and 7,000 closed cases reopened for parenting or lack of child support issues were heard last year alone.

Judges cannot decide cases without someone processing them, scheduling them, getting orders out, and otherwise processing paperwork.  Each month thousands of orders have to go to the office of child support enforcement, various criminal law agencies, and to parties involved in marital and civil cases.

In the non-criminal area our State Constitution’s Bill of Rights (Part I, Article 14), says that everyone is entitled to a certain remedy for all injuries they may receive and that they are to obtain it “completely, and without any denial; promptly, and without delay.”

The purpose of that provision is to make civil remedies readily available and to guard against arbitrary denial of access to the courts.  It is an equal protection clause because, whether you are suing someone or being sued, you want to have your case resolved as soon as possible.

Last year there were $3.1 million of cuts out of a judicial branch budget of about $65 million, with another $2.2 million hit in May.  Concord District Court, which is a three-judge court, is now operating with one full-time judge.  Due to the reduction in personnel a form letter went out this summer canceling all civil trials.

Small claims cases were all cancelled in the Manchester District Court this summer for an indefinite period.

On July 22, Merrimack County Superior Court began closing to the public daily from 1:00 p.m. to 4:00 p.m.  As of June 30, it had nearly 500 case files with pieces of mail that had yet to be docketed in the court record, with some documents dating back to March.  Another 150 trial and hearing notices had not been sent out and more than 350 files contained court orders that had not been issued.

And Hillsborough County just announced:

HILLSBOROUGH SUPERIOR COURT CLERKS TO CLOSE OFFICES

TUESDAY AND THURSDAY AFTERNOONS

Staff shortages prompt move to focus on reduction of case backlog

CONCORD, October 1 – The clerk’s office in Nashua for Hillsborough County Superior Court North and Hillsborough County Superior Court South will close at 1 p.m. on Tuesday and Thursday beginning October 5 to allow uninterrupted time for processing cases and related materials.

Both clerk’s offices, which had been closed from 8 a.m. to 9 a.m., will reopen at 8 a.m. daily, beginning Oct. 5 with implementation of the new Tuesday/Thursday afternoon closings.

After 1 p.m. on Tuesday and Thursday, no telephone or counter service will be available to lawyers, litigants or the public in the clerk’s office during those hours; the automated telephone system will be monitored so that emergency requests are addressed promptly. A “drop box” will be set up inside the courthouse at 30 Spring Street in Nashua for filing documents during the hours when the clerk’s office is closed.

As of today, the Merrimack County Superior Court, which had been closed down since last August on weekday afternoons to work on reducing the case backlog, will be open for a full day on Fridays. The clerk’s office in Concord remains closed to lawyers, litigants and the public Monday through Thursday from 1 p.m. to 4 p.m. to allow for uninterrupted case processing.

Several other court locations statewide, faced with backlogs and staff shortages, also have limited public operating hours to allow uninterrupted time for employees to process cases.

Superior Court Chief Justice Robert J. Lynn said the schedule will be reviewed every 30 days to determine when the clerk’s office can return to routine office hours. Reductions in the court system budget have required administrators to maintain 71 full-time non-judicial vacancies, which means court locations have fewer employees on staff to carry out day to day clerical responsibilities.

These cutbacks affect all citizens who seek justice.  I will do all I can to fight for fair funding.  If you have a delay horror story, email me at info@nojustice.org

If you are contemplating a lawsuit, or perhaps just filed one, you have probably heard that the court requires the parties to “mediate” the case.  What is mediation, and is it something you want to take part in?

Mediation is a type of “alternative dispute resolution.”  Simply put, it is a formalized method by which you attempt to settle your lawsuit before going to trial.  It is often confused by lawpersons with arbitration, which is an alternative form of trial judges rather than an actual judge and jury.

How does a mediation work?  Typically the parties agree on a mediator as the first step.  The mediator is typically an attorney or retired judge.  The choice of mediator is very important.  An inexperienced or unmotivated mediator will not be effective in driving the mediation process to a successful resolution.  Experienced trial attorneys will know the right mediator for the case, and will insist on using the right mediator in your case.

Once the mediator is selected, the mediator process typically begins by having all the parties meet and their representatives meet in one room.  The lawyers for the parties typically give a presentation of what they believe the evidence will demonstrate at trial, and try to highlight the strengths of their case, and the weaknesses of the other side’s case.  It is not uncommon for the plaintiff to explain how the defendant’s conduct has personally impacted him or her, and also not uncommon for the mediator to ask questions of both sides to help clarify certain points and potentially to highlight key issues in the case which parties may not have fully appreciated before the medication begins.

At that point, the parties typically separate and go into different rooms.  It is at this point that the plaintiff makes a demand for a certain amount of money (which is typically much higher than what their attorney ahs told them to expect as an end result) and the defendant makes an offer to pay the plaintiff a certain amount (almost always much lower than what they actually expect to pay) of money to dismiss the case.  The mediator then goes back and forth between the rooms in a process of “shuttle diplomacy.”

During each visit with the mediator, the parties discuss the amount of their demand or offer the settle, and the strengths and weaknesses highlighted by the other side.  The goal is to keep reducing the plaintiff’s demand, and increasing the defendant’s offer, until they meet at some point.  If they meet, then the case is settled.  If the defendant is unwilling to pay the lowest amount the plaintiff is willing to accept to settle the case, then the mediation will end and the parties effectively pretend it never happened.

In a successful mediation, the parties decide the outcomes of the case, rather than allowing a third party to do it for them.  If the mediation fails, then the parties simply proceed to trial, and treat the mediation as if it never happened.  The jury never hears about what happened at the mediation.  Everything that happens at the mediation is kept strictly confidential, to encourage the parties to be open and honest about their case and make the best effort possible to resolve it.

Successful mediations depend tremendously on the skill and experience of the parties’ counsel and the mediator.  Picking the right mediator is crucial, but having the right attorney is even more important.  An experienced trial attorney will have the experience to value your case, and to make the most effective use of the mediation process to get the other side to pay the most money they are willing to offer, and not take the risk of undervaluing your case.

Considering that most cases settle before trial, and many of those settle in mediations, it is important to choose the right attorney to handle your case in order to ensure your case is worked to get you the full compensation you deserve.

As a result of a new state law, New Hampshire released its first report on hospital infections occurring during 2009.  The report examines infections that were developed after heart, colon and knee surgeries.

The good news is that the report showed patients developed 134 infections last year while being treated for another condition, which is a number lower than state officials expected based on national data.  On the cautionary side, the report noted a few hospitals did have higher rates for certain procedures that would warrant changes to their current infection prevention practices.

The report was prepared based upon a state law that required disclosure of infection rates.  New Hampshire is among 27 states that require public disclosure of hospital infection rates by each hospital.

This law is an important step in helping protect patients.  There are many stories of patients going into the hospital to be treated for one condition but then develop an infection.  Such infections and complications therefrom can require lengthy and expensive hospitalizations and even can cause death from these unrelated problems.

To view a copy of the link go to New Hampshire Department of Health and Human Services, http://www.dhhs.state.nh.us