Virginia Beach Personal Injury Lawyer - Medical Malpractice

Attorney Client & Patient Privacy Rights Surviving Death--Did Michael Jackson's Former Nurse or Doctor Ignore Confidentiality and Privacy Rights Under HIPAA?

Rick Shapiro — Sat, 04 Jul 2009 09:04:20 GMT

Did Michael Jackson's former nurse or doctor seek personal publicity and blatantly ignore privacy rights in violation of HIPAA? On a related note, does the attorney client privilege survive the client's death?

By Rick Shapiro, Attorney/Co-Editor of Va. Beach, Norfolk, NE NC Injuryboard Blogs

HIPAA Governs Patient Privacy As To Medical Providers-

HIPAA is the main federal law protecting patient privacy and confidentiality, which stands for the Health Insurance Portability and Accountability Act, and it protects confidential patient information. Yes, it has been an administrative headache for medical providers, but has an important overall purpose of protecting this information from the encroaching "Big Brother" syndrome of your patient information getting into the hands of employer's or prying eyes of those with no rights to this information. The Act might just protect you from your doctor or nurse volunteering to speak out on a national news program like CNN and announcing to the world that you abused drugs, or may stop your provider from saying something to harm your reputation in print! Whether nutritionist Cherilyn Lee did or did not breach confidentiality would be up to the board governing her profession, presumably in California and believe me, lots of folks have emailed the California Board of Registered Nursing (BRN) asking this question.

As to the privacy rights of patients surviving death under HIPAA the World Privacy Forum is a nonprofit, non-partisan, 501(c)(3), public interest research group and its website includes the following on this point:

Do Privacy Rights Survive Death?

Yes. Under HIPAA, a patient's privacy rights survive death and last forever. We are not sure how much sense that makes, but that is what the rule provides. A deceased patient's legally authorized executor or administrator, or a person who is otherwise legally authorized to act on the behalf of the deceased patient or patient's estate, can exercise the privacy rights of a patient.

Attorney Client Privilege Survives Death-

The attorney-client privilege would not simply evaporate when your client expired/died, and respecting a public figure like Michael Jackson any disclosures clearly could have a possible adverse interest on the client's estate.

As a matter of fact the US Supreme Court ruled in 1998 that the attorney client privilege survives death in Swidler & Berlin v. United States, 118 S. Ct. 2081 (1998).

There, the United States Supreme Court held that there is no posthumous exception to the attorney-client privilege for communications with substantial impact on criminal proceedings.
The Supreme Court stated that preservation of the privilege after death would be consistent with a clients' best interests. Survival of the privilege would encourage the kind of open and frank communication between clients and their lawyer which the privilege was intended to achieve. The court did touch on reputation, civil liability, and potential harm to friends and family, as other reasons supporting the attorney client privilege "surviving" death of the client.

Related National Injuryboard News By Jane Akre:

Exclusive - Jackson & Diprivan - FDA Issued Alert Two Years Ago

About the Editors: Shapiro, Cooper, Lewis & Appleton personal injury law firm (VA-NC law offices ) edits the injury law blogs Virginia Beach Injuryboard, Norfolk Injuryboard, as well as the Northeast North Carolina Injuryboard as a pro bono service to consumers. Lawyers licensed in: VA, NC, SC, WV, DC, KY, who handle car, truck, railroad, and medical negligence cases and more.

RNS

Originally posted at InjuryBoard by Rick Shapiro

Surgical Sponges/Towels Left Inside The Patient's Body: RFID Technology To Prevent Medical Malpractice, Improve Patient Safety

Rick Shapiro — Sat, 13 Jun 2009 19:48:00 GMT

Surgical Sponges/Towels Left Inside The Patient Body: RFID Technology To Prevent Medical Malpractice, Improve Patient Safety

[Editor’s Note: For earlier related injury prevention/medical malpractice articles relating to surgery sponges left in a patient’s body:

Retained surgical sponges: a known medical error

One More Reason Surgical Sponges/Towels Left Inside Patients Create Obvious Liability For Hospitals and Surgeons: Sponge Count Technology Can Reduce These “Never Events” ]

Update on Injury Prevention/Medical Malpractice Prevention in Hospital Operations:

I have written a series of articles focusing on simple methods of preventing injuries/medical malpractice in the hospital operating room setting, involving surgical sponges/towels left inside a patient's body. The medical field calls this “retained sponge” situations, but patients suffering this malpractice just find out that they have a major infection and need to have a second surgery-and they usually retain an injury lawyer like a member of my Virginia Beach, Virginia (VA) injury law firm.

These types of medical errors should never happen, and do not involve any “complication” of surgery. They are simple administrative matters (“mistakes”) that can be prevented and reduced and nearly eliminated, especially with the advent of new computer aided technologies.

A few weeks ago I wrote about a company that has invented a simple method of placing a bar code on each surgical sponge, and provides a barcode reader wand. The company SurgiCount has its products in a number of hospitals, and reports terrific success in reducing the number of lost surgical sponges that can cause an infection in the patient, which exposes the hospital or surgeon to medical malpractice liability. And that liability is not speculative--it is generally clear liability to the patient. Accordingly, the focus of my articles is to beam the spotlight on hospitals which can no longer rationalize failing to use these new technologies to reduce medical malpractice claims. The return on investment (in reducing medical negligence claims) is simply obvious. Even if every dime is not recouped in the hospital procedure, the ROI in eliminating medical malpractice infection or death claims makes the equation simple. Since my last article I received e-mail from other representatives of companies with technologies that can also reduce the number of patients who have surgical sponges or surgical towels left inside their body by accident.

Another company is using radio frequency identification (RFID) methods on surgical towels or sponges-- yes, the same technology that is being placed on some consumer products along with bar codes. RFID technology allows for tracking of a product a little bit like a global positioning system, but on a much more simple basis because it is not being tracked by satellites but can be located by a nearby computer wand in a hospital setting.

A medical doctor, Jeffrey Port, received US patent protection, and FDA approval, for applying RFID technology to a surgical sponge or surgery towel, and the company argues that its technology is better than bar code readers on surgical sponges for the simple reason that the barcode reader can tell the staff if one surgical sponge is missing but there is no way to absolutely confirm that the surgical sponge was in fact sewn up inside the patient's body. The RF Surgical Systems representatives argue that the advantage of the RFID technology is that the staff can simply run a wand over the patient's body and confirm that in fact a towel or sponge is located in the cavity of the patient eliminating any frantic search or lingering question, before the patient’s surgery is over.

Because I am an inquisitive United States inventor myself, I am intrigued at how easily hospitals can avoid medical malpractice and liability for these errors, so my intention is to publicize how inexpensive and easily most of these medical malpractice claims can be avoided. I like to say that I may be the only prolific U.S. inventor/designer who is also a personal injury/faulty product lawyer for victims.

RF Surgical Systems is headquartered in Bellevue, Washington and was founded by Dr. Jeffrey Port, a thoracic surgeon, and Mr. William Blair, an electrical engineer, and the company’s website is www.rfsurg.com . Its RFID products are being distributed by Medline headquartered in Mundelein, IL, which also distributes more than 100,000 products to hospitals, and surgery centers. RF Surgical Systems has successfully convinced 60 hospitals in various parts of the United States to implement its RFID systems in order to reduce medical errors/medical malpractice. So how does it work?

The RF surgical system uses a wand detection system that incorporates three components to eliminate the retained sponge: 1) a 4mm X 12mm hybrid RF chip/tag that is sewn/incorporated into all forms of sponges/gauze/towels and eventually will be applied to surgical instruments, 2) the second component is a 14 inch wand that is waved over the patient after a surgical procedure. The wand is married to the RF tag and has a range of 16-24 inches through blood, tissue, and bone; and 3) the final component is a small console that emits an audio/visual tone/signal to alert the surgeon that there is a sponge in the patient.

The best part of the RF system is that it can wand the table, floor, trash, etc in the operating room as well. This is particularly advantageous if there is an “incorrect count”. The RF system is designed to allow the doctor/surgeon to have the rapid ability to find the sponge/towel either inside the patient or wherever it may be in the surgical setting.

Dr. Jeffrey Port, the surgeon who invented and obtained patent protection on the system, states: “Surgical sponge miscounts have been a recurrent and troubling issue in the operating room. Sponge miscounts most frequently occur in long, complex open cavity surgeries in patients with significant blood loss or in high BMI patients. These cases are further complicated when they involve a change in nursing staff or surgical teams.” He goes on to note, “As a surgeon ready to start closing procedures, it is critical to know: “Is there a sponge left in my patient?” And, if there is a sponge count discrepancy, the question then becomes: “Where is the missing sponge?” In answering these questions, I did not want to subject my patients to additional anesthesia while the OR was searched to locate the missing sponge or to wait for an x-ray to be ordered, taken and read to determine if a sponge was indeed left inside the patient."

According to an article by Milan Korcok, (Canadian Medical Ass’n, 2009) hospitals in the US have increased their spending by more than 200% since 2005 on electronic tracking systems that can locate wandering patients and misplaced equipment, detect errant blood transfusions and prevent medication errors, as well as sound alarms when surgical sponges are left in wrong places, like inside patients.

Korcok notes that Spyglass Consulting Group, which tracks information technologies, says that 76% of US hospitals with more than 300 beds have invested in radio frequency identification, and he adds: “Unlike their bar code precursors, which require line-of-sight scanning and individual handling, radio frequency identification readers can identify hundreds of tagged objects at a time, even if piled in unruly stacks, covered by surgical sheets or hidden in crumpled bedclothes. Their use has even been recommended to store medical information under the skin of patients.”

Korcok touched on “privacy concerns” with RFID, but as for surgical sponges, such devices should never be actually inside a patient so it is hard to really understand where the privacy issue concern would come into play. On the other hand, and of more concern, is the question of whether the frequency necessities of these devices could interfere with other vital medical devices such as pacemakers or ventilators.

I posed a few questions to Greg Allen, a representative of RF Surgical Systems, touching on some of the cutting edge RF issues that were on my mind:

Shapiro: One recent study indicated that, in test settings, radio waves from radio frequency identification devices sometimes switched off ventilators, stopped syringe pumps and caused external pacemakers and dialysis machines to malfunction. How have you addressed these concerns at your company?

Allen: In the JAMA article the majority of interference occurred at high (er) frequencies with active RF technology. The decision by our company to go with a hybrid technology between radar and RF was also an economic decision. We can manufacture our unique patented technology for that has proprietary filtering that has allowed us to experience no false positives with other operating room equipment. We have no reports of any interference with life saving equipment such as dialysis machines; however, in our product training materials we address the fact that during scanning, a temporary pacemaker should be turned to the VOO/DOO mode. (this is an asynchronous mode that eliminates any propensity for inhibition of the temporary device).

Shapiro: Compare your costs per open cavity surgery, per annum, at a typical hospital vs. bar code embedded systems. Why pay more for RF?

Allen: My information shows that the Surgicount Bar Code is the least expensive (around $12-$14 per procedure) and our RF Surgical is slightly more expensive (in the $15 per procedure range) We have lowered the cost with our multi usage 24 hour wand. (our initial FDA submission was a onetime use $50 wand--now we average 3 patients per wand). The RF System finds the lost sponge, regardless of where it is. We scan the patient first, then the table, floor, and the trash cans. The RF System allows you to find the elusive sponge. A bar code counting system only counts, and remember that 88% of all retained sponge cases result in a reported correct count.

Shapiro: Explain why patient privacy concerns are unfounded (I assume the RFID embedded device is never intended to leave the hospital room at all (if inside the body, the surgeon gets it out...) Please comment as to these “privacy” concerns as to RFID devices.

Allen: The actual RF chip is integrated in the individual sponge; therefore, if there is no retained sponge in the patient, (our primary business mission) a sponge/tag/chip would never leave the OR where the surgery was performed. All RF tagged products are disposed of after usage. The RF Surgical System has no data portion to the technology; therefore, no information is transferred.

Shapiro: Thank you for taking the time to answer these questions!

My take: RF technology is certainly one wave of the technological future of the hospital operating room, and importantly is an easy method to prevent "never events" involving lost sponges or surgical towel medical malpratice, and certainly is going to be rolled out to surgical instruments and tools that could break off inside a patient's body (question: what part of the instrument do you put the RFID on?). Also, simple bar code systems that can back up the manual count of a nurse in an operating setting are also good, automated methods that will help avoid hospital errors and medical malpractice as well. The easier the solution, the more obvious the surgeon or hospital liability for careless acts!

About the Editors: Shapiro, Cooper, Lewis & Appleton personal injury law firm (VA-NC law offices ) edits the injury law blogs Virginia Beach Injuryboard, Norfolk Injuryboard, as well as the Northeast North Carolina Injuryboard as a pro bono service to consumers. Lawyers licensed in: VA, NC, SC, WV, DC, KY, who handle car, truck, railroad, and medical negligence cases and more.

RNS

Originally posted at InjuryBoard by Rick Shapiro

One More Reason Surgical Sponges/Towels Left Inside Patients Create Obvious Liability For Hospitals and Surgeons: Sponge Count Technology Can Reduce These “Never Events”

Rick Shapiro — Thu, 28 May 2009 09:51:43 GMT

Any surgical towels, sponges or medical devices left inside a patient causing infection, septic shock or even death is a good cause for concern at hospitals and surgical centers in Virginia (VA), North Carolina (NC) and nationwide. These are “never events.” It should never occur with proper procedures. According to Science Daily, an estimated 1500 surgical objects such as sponges, towels and medical tools are sewn up inside patient bodies each year. Any good hospital risk management program realizes that a surgical towel, surgical sponge, or surgical device, sewn up inside a patient is a "never event." Our law firm injury lawyers have previously published several articles covering the medical malpractice issue of surgical sponges/devices left in patients:

Retained Surgical Sponge and Subsequent Complications

A known medical error

Surgical Safety Checklist Reduces Personal Injuries That Occur During Operations

So, if a company comes along with a method to significantly reduce the chances that a surgical sponge, surgical towel or surgical device will be left inside a patient's body, any conscientious hospital should pay attention. As Virginia/Carolina medical malpractice lawyers, we know that the more simple the preventive remedy, the more likely a jury will find that a hospital or doctor was careless, especially in sponge/towel cases simply left inside a patient’s body leading to infection, increased medical expenses/care or even death. The cause is virtually always human error, where the nurses and doctors lose proper count of the sponge/towel count or fail to properly account for a medical tool. Sometimes, a medical tool breaks and is left inside the body, which may be a different cause, but the outcome can be devestating injuries.

A company called Surgicount Medical has introduced surgical towels embedded with a bar code, and an associated bar code wand, which can be mounted to a movable rack, and the system counts in and counts out the surgical sponges. This system has now been introduced at the Mayo Clinic, and the hospital is reporting that the computerized count system is definitely reducing these “never events” with little additional time or effort of the medical personnel.

Surgicount notes that studies show 88% of cases with retained foreign bodies involved a final count that was erroneously thought to be correct. The root cause of retained cases is usually not an inability to find a lost sponge, but not knowing that a sponge needed to be searched for. Surgicount’s system has three parts:

A comprehensive line of uniquely identifiable surgical sponges and towels (Safety-Sponges)
Touch-screen scanning devices (SurgiCounters)
A networked database application (Citadel) that allows for the complete review, management and analysis of the count reports generated

Essentially, the staff still keep notes of a manual count in and count out, but the bar code system serves as the double check-and a more reliable one at that.

“In about one in 5,000 operations there is some type of retained object," said Dr. Robert Cima with the Mayo Clinic Quality in Surgery Department. According to a news report, Cima said when they investigated cases of a sponge being left behind in a Mayo procedure; they found that 70 percent of the time the count was recorded as right. Apparently they had hit what he calls the "human performance barrier." "We just couldn't get any better without something new," he added. Mayo added the Surgicount system at its hospital, and the system keeps track of who did the scanning and patient IDs. It records a master tag for each bundle of sponges as they are put into service and accounts for each used sponge before they are discarded, reducing the chance of leaving any behind. "It won't let me double count a sponge," according to Mayo Surgical Nurse and safety team member Jack Clark. "The machine never gets tired, never gets distracted and it's there to reinforce our counting techniques," he said.

Caprice Greenberg, M.D. and Atul Gawande, M.D., of Brigham and Women's Hospital in Boston published their “The Frequency and Significance of Discrepancies in the Surgical Count” study in the Annals of Surgery (News Brief On Study). In their investigation of 148 incidents of retained sponges and tools/devices left in patients, the authors uncovered a total of 29 discrepancies involving sponges, which equated to 45 percent. The majority of discrepancies denoted a misplaced tool/device (59 percent) as opposed to a miscount (3 percent) or error in documentation (38 percent). When an tool/device was misplaced, each unique search took an average of 13 minutes to resolve the missing item. The authors concluded that 1 in 8 such surgical cases involves a discrepancy in the count, and that the majority of such problem or discrepancies detect unaccounted-for sponges and other device/tools.

The Surgicount system has now been implemented at several Veteran’s Administration Hospitals, as well as a number of other privately operated hospitals, according to Surgicount Medical’s website.

The point for medical patient safety and prevention of medical malpractice is this: hospitals and clincs doing surgeries should be adopting any and all simple steps and remedies to reduce easily preventable “never events,” or the American system of tort law will impose monetary liability on a careless hospital and its staff, its that simple. Under our system of civil justice, the injured patient (or the family of the patient suffering a wrongful death) does not extract vengeance with an eye for an eye from the hospital—we have long since adopted a system of compensation to victims who must prove-in a court of law—that a hospital/surgeon/nursing staff was careless or negligent in order to recover anything as compensation. Medical malpractice cases involving surgical sponges/towels left inside a patient’s body usually seem preventable on their face, but this available technology is one more reason hospital liability in these type cases will be overwhelming.

Originally posted at InjuryBoard by Rick Shapiro

Significant Medical Malpractice Risks Associated With Gastric Bypass Surgery

Emily Mapp Brannon — Thu, 19 Mar 2009 18:05:23 GMT

The summer sun is almost upon the North Carolina and Virginia coast and so is bathing suit season. Many of those battling with obesity and trying to get slimmer have also opted for gastric bypass surgery, also known as stomach stapling, when they have exhausted all other options. Gastric bypass is a procedure where the stomach size may be reduced by over 90%.

Success with gastric bypass surgery results in the loss of weight and requires following a healthy diet regime. However, for some, gastric bypass surgery results in major medical problems or even death. The problem has been so widespread that these problems have been commonly referred to by many nurses as a “gastric bypass gone bad”.

When the desire to lose the excess weight is so passionate that a major surgery is chosen the desired result is to live the new life with a new healthy body. When something goes wrong that result is not only lost physically bad, but emotionally bad. In 2008, two sons of a New York woman were awarded $16.8 Million in damages for the loss of their mother. The 36 year-old woman had her intestines rerouted and her stomach stapled down to where it would hold two tablespoons of food. She later died of malnutrition and liver failure. Her lawyer stated that he considered her case predatory medicine as she wasn’t even a good candidate for the surgery.

In a similar situation a woman from Virginia Beach, VA had the surgery which was done improperly and then underwent two more surgeries to correct the problems.The key in her case was to prove that the doctor had committed medical malpractice and had not met applicable medical standards. The mediation resulted in the Elizabeth City resident being awarded $500,000, in her claim against the Naval Hospital and its doctors.

Our injury law firm maintains a NE NC office in Elizabeth City, and our main law office is in Virginia Beach, Virginia. Four of our law firm's injury lawyers are licensed to practice law in North Carolina, Virginia, and beyond. For over a decade we have been helping North Carolina residents, including those suffering injuries or wrongful death in VA/NC.

Shapiro, Cooper Lewis & Appleton personal injury law firm is based in Virginia, with offices in northeast NC and Virginia Beach (VA), practicing primarily in the southeastern U.S. and handles only injury law, including car, truck, railroad, and medical negligence cases and more. The firm's website is: hsinjurylaw.com, the firm edits three injury law blogs: Virginia Beach Injuryboard & Norfolk Injuryboard, as well as the Northeast North Carolina Injuryboard and also hosts a video library covering many FAQ’s on personal injury subjects

Originally posted at InjuryBoard by Emily Mapp Brannon

One Bad Doctor Can Ruin a Medical Practice

Jim Lewis — Thu, 05 Mar 2009 21:08:12 GMT

I have been an injury lawyer and resident of Virginia Beach, Virginia (VA) for over 25 years. During that time, my family, including my two daughters, and I have been treated by some great doctors and other healthcare providers here in Hampton Roads, Virginia. We are blessed with lots of good access to medical care in Virginia Beach, particularly when compared to more rural parts of Virginia like the Eastern Shore, Southside, Virginia, and Caroline County where I grew up.

As I often say, the doctor/patient relationship is usually a good one. However, sometimes doctors do make mistakes. Over the decades that I have been doing medical malpractice cases, I have come to realize that it is rare that you have a doctor, even a terrible one, who is deliberately harming patients. It is much more common that medical malpractice results from an error, a mistake, or an accident. In a medical negligence case, it is not necessary to prove that the doctor intended to harm, but only that they were negligent and that their negligence violated the applicable standard of care in Virginia (VA). So, for example, even the very best surgeon can have a bad day where he misjudges something and cuts, punctures or perforates an internal organ during an operation. This kind of surgical complication is not necessarily grounds for a medical malpractice lawsuit. More commonly it is the failure of the surgeon to realize that something has gone wrong on the operating table and to respond accordingly. So, if a doctor does hit your bile duct or your urethra during abdominal surgery and closes you up without even realizing it, that is the kind of medical mistake that may lead to a valid claim against the doctor’s insurance company.

Medical or surgical mistakes which lead to catastrophic injuries or death of the patient can occur even to the top doctors with the best training. The biggest danger is where the same doctor makes a series of harmful mistakes. This often occurs not because the doctor is unskilled but because he or she has some kind of personal problem such as a drug or alcohol addiction which is impairing their functioning. When this happens, it is up to the doctor’s peers within his medical group to get him help and get him out of the operating suite. The medical profession, like the legal profession, is largely self-regulating. This means it is up to fellow doctors and the hospitals to get rid of the bad apples, the ones prone to repeated mistakes harming patients’ health. Hospitals have peer review systems where they evaluate mistakes made by doctors to try to improve care. By the way, the hospital risk managers and insurers try very hard not to ever let the injured person’s medical malpractice lawyers or the public get access to these records. However, hospital administrators and hospital staff, like the nurses and techs who work with the doctors, know very well who the problem physicians are. After enough medical malpractice leading to dead or seriously injured patients, a hospital will eventually pull the privileges of a given doctor. Sadly, this may not happen until after one or more patients have had something terrible happen to them like the loss of a husband or wife, or the amputation of a leg or even two. Because the law of Virginia makes the medical group responsible for the medical mistakes of an individual member, you would think that any group of doctors would have good reason to get rid of the bad actors among them. Sometimes however this takes longer than it should before the medical group or hospital realizes that it has a doctor on staff who is accident prone and hurting patients and needs to move on to another line of work.

Originally posted at InjuryBoard by Jim Lewis

What is Statute of Limitation for A Personal Injury, Medical Malpractice, or Wrongful Death Claim/Case/Suit in Virginia (VA) Or North Carolina (NC)?

Jim Lewis — Fri, 30 Jan 2009 09:59:52 GMT

Our Virginia/Carolina injury law firm, based in Norfolk/Virginia Beach is often called by potential clients with questions about what the personal injury statute of limitations is for personal injury/medical malpractice (and wrongful death) suits filed either in Virginia (VA) or North Carolina (NC). The answers depend on a number of circumstances and there are some fairly complicated analyses that need to be done, often by an experienced injury trial lawyer based in VirginiaCarolina

What prompted my law partner, Rick Shapiro, to write an in depth analysis was the actual case of a North Carolina resident injured in a Northern Virginia restaurant chain. The restaurant's claims adjuster told the NC resident that her injury claim was dead, because two years and a few days had passed, and she then consulted with our injury law firm. We accepted her case because North Carolina has a three year statute of limitations for general personal injuries filed in NC and we believe it applies to this client, assuming we file her injury suit in North Carolina.

Our law firm practices out of Norfolk/Virginia Beach, Virginia (the border cities of Elizabeth City, NC and Chesapeake, Suffolk, Virginia Beach and Portsmouth, VA all straddle the border) but of course Virginia and North Carolina do have completely different statutes of limitations. Folks commute into Virginia from North Carolina (and vice-versa). There are many daily commuters from the Outer Banks (Nags Head, Kill Devil Hills, Corolla, Manteo) as well as from Elizabeth City/Edenton, into Virginia and we are often asked to represent these commuters.

For the complete Virginia/Carolina personal injury, medical malpractice and wrongul death statute of limitations legal discussion article, please click here.

Shapiro, Cooper Lewis & Appleton personal injury law firm is based in Virginia practicing primarily in the southeastern U.S. and handles only injury law, including car, truck, railroad, and medical negligence cases and more. The firm's website is: hsinjurylaw.com, the firm edits two injury law blogs: Virginia Beach Injuryboard & Norfolk Injuryboard, and also hosts a video library covering many FAQ’s on personal injury subjects.

Originally posted at InjuryBoard by Jim Lewis

Can Virginia (VA) be the Best State for Business per Forbes Magazine, and Still Have A Fair Personal Injury Tort System?

Rick Shapiro — Wed, 20 Aug 2008 09:12:57 GMT

Our law firm's home office is based in Virginia (VA), and as a Virginia personal injury lawyer practicing in the South, I read with interest an article outlining that Forbes magazine recently named Virginia as the best state for business for the third consecutive year, ahead of North Carolina (NC) which placed fourth (and we also practice injury law in North Carolina (NC)).

Forbes ranked Virginia (VA) first in regulatory environment, sixth for both economic climate and quality of life, and seventh place for the labor environment.

In terms of tort law, which are the civil laws respecting personal injury, Virginia has fairly conservative statutes and laws. Because our state has always been conservative for many decades, Virginia did not enact any significant " tort reform" legislation mainly because our laws seemed fair towards business before insurance companies and large corporations began attacking the tort laws around the United States in the last 10 years.

For example, Virginia is one of the last states in the United States to still cling to an ancient concept called "contributory negligence" which bars an injured person from any recovery in a personal injury lawsuit if their own negligence contributed to causing the accident in any material way. It forces us to advise clients in Virginia accidents, that even if they were 1% at fault, a jury would be forced to not award any damages to them for their injuries. It is true that their negligence must be material (is 1% material fault?) but even if the other driver was 90 percent at fault, Virginia says the injured person 10% at fault can not recover anything. Most states have abolished this unfair concept and instead adopted some form of “comparative negligence” which usually allows the injured person to recover, if the jury or judge believes the other party was over 50 % negligent/careless. The small remaining number of states that follow the pure contributory negligence legal scheme, and the underlying authority, are as follows: Alabama, Alabama Power Co. v. Schotz, 215 So.2d 447 (Ala. 1968); Virginia, Baskett v. Banks, 45 S.E.2d 173 (Va. 1947); District of Columbia, Wingfield v. People's Drug Store, 379 A.2d 685 (D.C. 1994); Maryland, Board of County Comm'r of Garrett County v Bell Atlantic, 695 A.2d 171 (Md. 1997); and North Carolina, N.C.G.S.A § 99B-4(3).

Virginia enacted a medical malpractice “cap” or ceiling long ago as well, long before tort law reformers attacked tort laws around the country. The Virginia cap/ceiling is currently $2 million for acts or omissions after July 1, 2008, but it limits all sources of recovery in a medical malpractice action for a single incident to that total sum of recovery. Virginia’s legislature should raise this cap considerably in the near future, especially with escalating medical costs and expenses.

As personal injury lawyers actively practicing injury law in Virginia for 20 years or more, we realize it is not one of the most favorable states for injury victims, but we are forced to work within the system and obtain maximum compensation for our clients—as is allowable under Virginia law.

Should Virginia reform any of the laws? Absolutely. Virginia, by the state Supreme Court, can by legal decision abandon the ancient concept of contributory fault (as a bar to any personal injury recovery) and adopt a more modern version of "comparative negligence" which allows an injured victim to still recover, but reduces the total recovery by the percentage of the negligence of the plaintiff/injury victim. The concept exists in Virginia by court decision, not a state statute.

One other unfair law Virginia did enact is a total ceiling or cap on punitive damages recoveries. Virginia limits punitive damages to $350,000. (Va. Code Ann. § 8.01-38.1) At least one federal appeals decision declared the cap constitutional. In most circumstances punitive/punishment damages cannot be more than three times the amount of actual or compensatory damages for injuries suffered in Virginia. Historically, the entire idea of punitive damages was to allow a jury to punish a corporation or defendant which had caused civil injury by conscious disregard of a person or the public's rights. If the damages are capped at an unreasonably low figure, a jury is not going to be able to punish a large or financially successful corporation with multiple million dollars in annual revenue by an award of several hundred thousand dollars in punitive damages. A drop in the bucket is not much punishment, especially if a corporate shortcut (or a dangerous product) causes wrongful deaths of citizens. This punitive damages cap is probably the most glaringly pro-business tort law in Virginia and should be radically reformed.

As lawyers very active in the civil justice system, we are delighted that Virginia is regarded as a good business environment, but at the same time we want to be sure that the laws are balanced in our state of Virginia: we want a level playing field. If a plaintiff can prove carelessness or negligence, the plaintiff should be entitled to recover full and fair compensation. If the defendant can show that it was not careless or negligent, then the defendant should not have to pay any damages at all. That is a level playing field. It is the periphery and around the fringes that typical consumers do not pay close attention to the manner in which insurance companies and large corporations are trying to tilt the table in their favor before an injured person every will walk into a Virginia courtroom. For over 10 years, these insurance interests have convinced the public that many persons hurt are trying to commit a fraud and this is a burden we as personal injury lawyers must overcome every time we go to trial.

We are active in the American Association for Justice, an organization that is essentially a watchdog against insurance companies and large corporations that do not want to pay money damages for injured people's personal injuries. We are also active in the Virginia Trial Lawyers Association which also serves the same purpose at the Virginia state level-a watchdog against unfair injury and tort laws that the insurance companies keep pushing for—to the detriment of every resident that may be a victim one unforeseen day in the future.

My take on Forbes and Virginia being number 1:

It proves that good business and the tort/injury system can both co-exist, whether in Virginia, or elsewhere, and that our civil justice system is not broken, despite how the insurance industry cries wolf time and time again.

Originally posted at InjuryBoard by Rick Shapiro

CHOOSE YOUR PERSONAL INJURY ATTORNEY WISELY

Rick Shapiro — Fri, 18 Jan 2008 14:41:53 GMT

Authored By: Richard N. Shapiro

If you are involved in an accident in Norfolk, Virginia Beach, Chesapeake or anywhere else, choose your lawyer wisely.

A lawsuit is a stressful experience by anyone's account. As the client, you should find comfort in knowing that your case is in good hands. Far too often, clients tell me that they meet with an attorney originally and then never see that attorney again until it becomes time for trial or depositions. This won't happen at our firm. We want you to put a face with a name. We feel it is very important to be available to our clients any time they need us.
In choosing a lawyer, take the time to compare law firms and attorneys in your area. Websites such as the International Society Of Primerus Law Firms and Martindale-Hubbell are great resources to use to research attorneys and their areas of practice. Generally speaking, you want someone with enough experience under their belt to overcome any issues that might arise while handling your case.
If you choose our firm, you will meet with the attorney handling your case as soon as you are available. We will discuss, in detail, how you came to be injured. We will also discuss the areas of concern you might have about your case. You should always ask questions. After all, this is your case and these are your injuries. We will do all we can to make sure you are justly compensated for your injuries or loss. At our firm, all we handle is injury law, and this includes every staff person and investigator.

Originally posted at InjuryBoard by Rick Shapiro

Dirty, Dastardly Deeds of Injury Defense Attorneys (Not Done Dirt Cheap)

Rick Shapiro — Sat, 05 Jan 2008 09:51:04 GMT

There is a famous classic rock song entitled "Dirty Deeds Done Dirt Cheap" and in my practice as a personal injury lawyer for victims we deal every week with dirty, dastardly deeds (not done dirt cheap) by defense lawyers fighting our personal injury clients' cases. We deal with several large corporations or railroads that find themselves sued for personal injury often. They usually don't rely on what's in legitimate doctor or hospital records about the personal injuries. They routinely hire private investigators to stake out and shadow our clients. Yes, just like a movie, depending upon their orders, investigators will sit inside a van with tinted windows with a hidden video camera. Examples of dastardly defense lawyer deeds in personal injury cases are meaningful because sometimes a potential injury client looking to retain a personal injury lawyer simply has no exposure or real understanding of how evil and downright nasty (some) personal injury defense lawyers behave once cases are in court.

There is a famous classic rock song entitled "Dirty Deeds Done Dirt Cheap" and in my practice as a personal injury lawyer for victims we deal every week with dirty, dastardly deeds (not done dirt cheap) by defense lawyers fighting our personal injury clients' cases. What do I mean, when I say dastardly? What "dirty deeds"? In the last few months I have been busy prosecuting several major personal injury cases. In at least one of them, on our motion well before the trial, the judge ruled that the jury is only to decide the amount of compensation to my client because the corporation is "legally liable" for violations of law to our injury victim. So the defense lawyer representing the big corporation realizes it's just a matter of how much personal injury compensation the jury will award.

You would imagine that this corporation would now direct its lawyers to sit down and try to settle the case. Wrong! In this circumstance, rather than work seriously toward settling the case, the big corporations often give the defense lawyer a green light to spend any amount of money necessary to smear, attack, confuse or delay. I have had claim representatives actually state that they would rather pay the money to their defense lawyers than pursue more serious settlement discussions. Often they say "your client is in the ozone on what she wants." Many times, we don't think so. Because our lawyers handle personal injury cases well beyond Virginia Beach and Norfolk, Virginia, such as in North Carolina, West Virginia and throughout the entire Eastern U.S., we get exposure to not only Va. injury defense lawyers, but many from the other southern states.

Examples of dastardly defense lawyer deeds in personal injury cases are meaningful because sometimes a potential client looking to retain a personal injury lawyer simply has no exposure or real understanding of how evil and downright nasty (some) personal injury defense lawyers behave once cases are in court:

1. Subpoena everything: when cases go into court, it is very customary for lawyers representing insurance companies and corporations to subpoena not only every medical record of a personal injury victim, but medical records before the day of the actual accident or collision, even going back for years. They do not stop with medical records-they often subpoena employment records, high school or college transcripts, psychological consultation records, everything under the sun depending upon how significant the injury victim is injured. Some of these lawyers routinely subpoena the state criminal records available, unless we as the injury victim lawyer object! If we object, the insurance defense lawyer thinks we are trying to hide something, when in fact, what we are trying to protect is a basic level of privacy. Insurance and railroad defense lawyers argue that there is no privacy whatsoever, because of the filing of an injury suit, and it is often up to a judge to decide on the validity of invasive criminal background checks and other privacy issues. One injury defense law firm routinely sends out a list of every medical provider, health insurance company, prior employer, criminal records, and I would not be surprised to see a subpoena for elementary school transcripts from this law firm!

2. Private investigators: we deal with several large corporations and railroads that find themselves sued for personal injury often. They don't believe what's in legitimate doctor or hospital records. They hire private investigators routinely to stake out and shadow our clients. Yes, just like a movie, depending upon their orders, they will sit inside a van with tinted windows with a hidden video camera. Better yet, we have been involved in cases where private investigators dressed in camouflage suits, climbed trees, and shot videotape with a telephoto lens from long distances through open fields or woods. We've had cases where female private investigators actually walk a dog through our client's neighborhood, and using false pretenses actually ask a neighbor to walk to their backyard to take pictures of the pretty lake behind it. In actuality, the investigator was trying to get a better view of the backyard of our client's home next door. Oh, and there are scams that the investigators will pull. Our personal injury clients walk outside in the morning to find one of their car tires has gone completely flat overnight. The personal injury client might not realize that parked down the street is the van with the tinted windows and the investigator with the hidden video camera inside. The investigator is hoping to report back to their superiors that the personal injury victim was able to stoop and bend to change the tire. During this type of personal injury surveillance, the investigator will also follow the injured person to or from medical or physical therapy appointments checking out the physical capacities of the injury victim. They pull simple scams to learn of appointment dates, at times calling the office and pretending they are the client. We simply tell our clients do not attempt physical activities beyond the physical duties or capacities that they are given by their treating doctors. We have to be alert to the existence of this type of surveillance and to videotape to prevent it being edited falsely or used in any improper way by the defendant. We had one case where the defense claimed it was our client, and was his cousin instead in a few of the images. Amazingly, court procedures sometimes protect a defense lawyer from producing these videos or photos, and we must request that the judge order them produced. Each state and federal court has different rulings on when or whether the materials must be coughed up. The rules should be crystal clear and hopefully the Court rules will be modified in the future.

3. Harassment of the doctor-none of our clients had any idea how evil and paranoid lawyers for corporations and insurance companies can behave simply because your treating doctor or surgeon believes you are disabled or that your serious injuries are caused by an accident or collision. The flavor of the year is that these lawyers argue that the doctor is simply a pawn of the victim's lawyer, and that the doctors are just a mouthpiece for a lawyer. The conspiracy theories of the defense lawyers know no boundaries. In other words, you would think that the court process and conducting a deposition of a treating doctor or surgeon allows the defense lawyer to fully probe the basis of the doctor or physician opinion about impairment, disability, and a personal injury client's ability to return to a prior job. Wrong! Lately, what the defense lawyer (for an insurer or company) will do is try to harass the doctor is issue a ridiculously long and cumbersome subpoena to the treating doctor or surgeon asking them to produce financial information, going back several years relating to their medical practice. So, the dispute isn't about producing the medical file on the patient, it's about financial data. The subpoena will try to force the doctor to engage in some major analysis, administratively, of the number of referrals the doctor had from a personal injury lawyer or from the personal injury victim's lawyer or law firm. The insurance defense lawyer or corporation's defense lawyer has a secret agenda: try to harass every doctor who was willing to treat a personal injury victim so that they will hate the legal system and every personal injury lawyer due to the harassment. This is a serious issue that requires protection by judges due to the improper motives of defense lawyers, as they can get this basic information in a standard deposition. Often, we go into a court hearing, and ask judges to quash or prohibit this type of harassing subpoena, which of course is barely relevant to any main issue which is really the extent of a person's injuries. The subpoena only goes to the side issue of whether a doctor is accommodating to personal injury victims or their lawyers as opposed to insurance defense lawyers or their agenda. What gets lost in this harassing subpoena strategy is the real issue is simply whether the person is injured from the accident, the permanency and prognosis.

4. Motion to exclude the personal injury victim's doctors-the defense lawyer looks for any way to try to convince a court to prevent a personal injury victim's treating doctor or surgeon from giving a deposition or from even providing testimony in support of the patient's injuries. How? The defense lawyers try to dream up anything that can be presented with a straight face. Sometimes they claim a personal injury victim's doctor is trying to testify about something that was not in their records or office notes, or they argue that some part of a doctor's opinion had to be disclosed under a court rule or deadline, and wasn't disclosed adequately or with enough detail. We as personal injury victim lawyers have the burden of proof and must be careful to set forth opinions of doctors and other experts by a deadline. The defense lawyers will look for any angle available that has nothing to do with the legitimate opinions of the doctor. As a matter of fact, we routinely must attend depositions of doctors and experts where the defense lawyer does not ask the doctor or expert one single question relating to their opinions about the patient for up to an hour to two hours into the deposition. Most states, amazingly, have no time limit the deposition of a doctor or expert. If a lawyer feels that the insurance or corporate defense lawyer is abusing the process, it's usually too late or creates more work, because it requires a personal injury lawyer to simply terminate a deposition and argue in a later hearing before the judge that the defense lawyer is taking too long or is abusing the process. This court hearing route can actually take more time away from the case for the personal injury lawyer and let's remember that virtually all defense lawyers are paid by the hour and the more hours they bill, the more they earn.

5. Filing numerous meritless court motions-another strategy of insurance or corporate defense lawyers is to file a whole bunch of motions in court requiring hearings. Many times, the motions are virtually frivolous, but these lawyers are careful to allege just enough in the motion so that we as personal injury lawyers cannot convince a judge to sanction or penalize them for filing such motions. It is very unusual for a judge to award court costs or attorneys fees to the personal injury victim's lawyer for having to battle what we believe is a frivolous motion. It is rare to obtain costs to fight such a frivolous motion. Often, the defense lawyer thinks that anything that is tying up a personal injury lawyer in court on a side issue is good because it is distracting the personal injury lawyer from concentrating on damages and how to argue to a jury for a fair award for the victim. We know that this happens, and we will not take our eye off the ball: presenting evidence that supports the maximum compensation for our personal injury victim/client. We will continue to fight and follow the high road for our clients.

We will not stoop to the level of filing harassing motions, unnecessary court pleadings, or presenting evidence that is not properly supported by medical or expert opinions. These examples did not come up in every case, because many cases actually do get settled without the filing of a lawsuit, and in those situations, only the private investigator surveillance outlined above would apply because the corporation being sued can order surveillance even if no suit is pending.

Originally posted at InjuryBoard by Rick Shapiro

Medical Errors Continue Even in the Best Hospitals

Rick Shapiro — Wed, 26 Dec 2007 11:41:19 GMT

Authored By: James C. Lewis

It has long been known that medical mistakes that occur in our hospitals resulting in personal injuries frequently go unreported. In a recent investigation by the Joint Commission on the Accreditation of Hospitals (JCAHO) this continued problem with medical mistakes was highlighted in a prominent and well know hospital in the northeastern United States with a reputation for excellent neurosurgery and brain surgery, it was determined that in less than one year three patients had the wrong side of their heads operated on.

One of these mistakes was due to a nurse being too bashful to tell the neurosurgeon that he was cutting into the wrong side of the patient's head. The second related to the fact that the operating room nurse marked the wrong side of the patient's head prior to surgery. The third was the result of the surgeon failing to note on the preoperative consent form which side of the head he was going to operate on and then forgetting which side was the target of the blood clot surgery.
All of these errors happened despite an explicit set of required operating room precautions adopted by the medical profession a few years ago to prevent this very type of mistake.
"The problem is not going away," said Peter Angood, Vice President and Chief Patient Safety Officer at the Joint Commission. The mistakes at this hospital suggest that the precautions can still be nullified by the human element-ego and over confidence on the part of surgeons and timidity on the part of nurses too afraid to speak up when they see medical malpractice about to occur.
"There is a big cultural issue in most operating rooms where there is a hierarchical culture there. A surgeon is used to being the captain of the ship and his or her word goes," said Dianne Rydrych, Assistant Director of the Division of Health Policy at a northeastern health department.
The Joint Commission on the Accreditation on Hospitals (JCAHO) receives about eight reports a months of wrong side surgery, but hospitals are not required to report such mistakes, and Angood said the real number is probably ten times higher.
All of this goes to show that medical mistakes, medical malpractice and errors by doctors, surgeons and nurses continue to be a problem across the country and medical malpractice victims who suffer serious personal injury must continue to seek compensation and redress in our courts.

Originally posted at InjuryBoard by Rick Shapiro