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.

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

11. You need to ask your doctor to explain the treatment plan you will use at home.

12. You need to make sure you and your doctor agree on exactly what will be done during an upcoming surgery.

13. You need to ask questions or voice any concerns you have.

14. You need to make sure that your primary care doctor is involved with your case.

15. You need to make sure that all health or professionals involved in your care have important health information – don’t assume they know everything they need to know.

16. You need to have a family member or friend with you if you need help speaking up for you.

17. You need to find out why a test or treatment is being recommended or are you better off without it.

18. You need to ask the results of any tests.

19. You need to learn about your condition and treatment options.

20. You need to be involved and informed in order to protect yourself from medical errors.

Medical errors are one of the Nation’s leading causes of death and injury. A recent report by the Institute of Medicine estimates that as many as 44,000 to 98,000 people die in U.S. hospitals each year as the result of medical errors. This means that more people die from medical errors than from motor vehicle accidents, breast cancer, or AIDS.

1. You need to take part in every decision about your health care.

2. You need to make sure your doctors have all medications (prescription and over-the counter, including herbal supplements) you are taking.

3. You need to make sure your doctors know about any allergies and adverse reactions to medications.

4. You need to make sure any prescription can be read by the pharmacist.

5. You need to ask questions about any medicine so you understand why they have been prescribed (side effects, safe with other medicines, how to take it and for how long).

6. You need to confirm with the pharmacist your prescription is the medicine that your doctor prescribed.

7. You need to ask if you cannot understand the instructions on the prescription label.

8. You need to ask for written information about the side effects your medicine could cause.

9. You need to choose a hospital that has a great deal of experience with the procedure or surgery you need.

10. You need to ask all healthcare workers who have direct contact with you if they have washed their hands.