Massachusetts Personal Injury Blog

Charlie Weis Loses Medical Malpractice Trial

This disappointing news comes courtesy of the Boston Globe:

Former New England Patriots offensive coordinator Charlie Weis lost his lawsuit today against two surgeons who he said were negligent in treating him when he underwent gastric bypass surgery five years ago.

Michael Mone, the attorney for Weis, who is now head coach at Notre Dame, said he doubted that his client would try to appeal the decision.

“Obviously, Mr. Weis and I are disappointed. We recognize these cases are very difficult. They involve very complicated medical facts, and the jury listens to very different views on complicated medical facts. Medical malpractice cases are very difficult.

“We will consider an appeal, but we have no intention to do so. There are no issues that came up at the trial that would appear to be the basis for an appeal.”

Mone said Weis was flying back to South Bend, Ind. this afternoon and couldn't be reached for comment.

Weis contended in his lawsuit that Massachusetts General Hospital surgeons Charles Ferguson and Richard Hodin had acted negligently by allowing him to bleed internally for 30 hours after the procedure June 14, 2002.

New "Massachusetts Lawyers Weekly" Publication for Non-Lawyers

Massachusetts Lawyers Weekly, a weekly publication for lawyers on news and developments in Massachusetts law, has recently launched Exhibit A.  Exhibit A is a monthly newsletter written by lawyers and intended for non-lawyers.  It is written in a way which makes the law a little less confusing and easier to understand.  It is a FREE monthly publication you can pick up at most MBTA stations.  The newsletter covers many different legal topics which you may find useful if you have specific legal questions, or, if you are just interested in the law generally.

Boston Pediatrician Settles Malpractice Case After His Blog is Discovered

Boston pediatrician Robert P. Lindeman, MD was recently sued in connection with his alleged failure to diagnose diabetes in a young child.  A medical malpractice suit was brought against Lindeman in the Suffolk Superior Court due to the death of the child.  Remarkably, during the trial, Lindeman created a blog under the pseudonym "Flea" and during his trial posted material to the blog revealing, among other things, private conversations he had had with his defense attorneys regarding trial strategies.  "Flea" took down his blog recently and the medical malpractice case settled.

Here is the Boston Globe article published on May 31, 2007 regarding this puzzling and engrossing story:

It was a Perry Mason moment updated for the Internet age.

As Ivy League-educated pediatrician Robert P. Lindeman sat on the stand in Suffolk Superior Court this month, defending himself in a malpractice suit involving the death of a 12-year-old patient, the opposing counsel startled him with a question.

Was Lindeman Flea?

Flea, jurors in the case didn't know, was the screen name for a blogger who had written often and at length about a trial remarkably similar to the one that was going on in the courtroom that day.

In his blog, Flea had ridiculed the plaintiff's case and the plaintiff's lawyer. He had revealed the defense strategy. He had accused members of the jury of dozing.

With the jury looking on in puzzlement, Lindeman admitted that he was, in fact, Flea.

The next morning, on May 15, he agreed to pay what members of Boston's tight-knit legal community describe as a substantial settlement -- case closed.

Why Doctors Have the Advantage in Medical Malpractice Trials

I found the following post on the Atlanta Injury Law & Civil Litigation Blog which makes reference to a report published in the May issue of the Michigan Law Review about how, and why doctors have the advantate in medical malpractice trials.  Here is the post:

A report which will be published in May in the Michigan Law Review.confirms what most tort law practitioners have long recognized: the defense has a strong advantage in medical malpractice trials.

Philip Peters Jr., of the University of Missouri-Columbia School of Law, concluded that juries treat doctors favorably, "perhaps unfairly so," and are more likely than even fellow physicians to defer to a doctor's opinion. Peters found that most malpractice suits end in defense verdicts, and that the cases that go to trial tend to be the weakest ones, since those with strong evidence usually settle before trial.In an examination of win rates, Peters found that 27 percent to 30 percent of filed medical malpractice suits end in a plaintiff's verdict, the lowest success rate of any type of tort litigation.

In the study, jurors found in favor of physicians significantly more often than independent reviewing physicians would have.  The study asked independent physicians to evaluate incoming claims and rate them as defensible, indefensible or unclear. Plaintiffs won 21 percent of those cases rated as defensible, 30 percent of those rated unclear and 42 percent of those rated indefensible. Thus, plaintiff wins were in the minority even in the most meritorious cases.

Are Medical Malpractice Settlements Taxable in Massachusetts?

No.  As is the case with auto accident, slip and fall, dog bite, and all other personal injury settlements, medical malpractice settlements are not taxable in Massachusetts.  The reason such settlements are not taxable is because they are intended to put the injury victim in the position they were in before the accident.  Receiving a settlement is not a taxable event because there is no "gain" because the injury victim is "made whole" through the settlement.  However, settlements for emotional distress, as well as punitive damage awards, are in fact taxable.

Misdiagnosis and How it Leads to Medical Malpractice Claims in Massachusetts

Here is an excellent op-ed article from yesterday's (March 19, 2007) Boston Globe written by Massachusetts doctor Jerome Groopman, M.D.  The article provides explanations as to why doctors make mistakes in Massachusetts.  Unfortunately, these mistakes often lead to medical malpractice claims against these doctors.  Here is the article:

Five years ago, a woman named Leslie developed indigestion, abdominal discomfort , and, occasionally, diarrhea. She has just given birth to her third child, and life was understandably hectic at home. Her primary-care physician gave her antacids, but this afforded only slight relief.

Some Alarming Facts About Medical Malpractice

Massachusetts medical malpractice causes harm and even death to many innocent Massachusetts residents each year.  Also, on a national level, medical malpractice occurs with alarming frequency.  Here is some information I found at personalinjuryfyi.com regarding the prevalence of medical malpractice across the country each year:

"Medical malpractice is now considered between the fifth and eighth leading cause of death in the United States, according to the Henry J. Kaiser Family Foundation. Researchers report that roughly 5 to 10 percent of all patients admitted to hospitals this year will fall victim to medical negligence, whether in the form of a surgical mistake, wrong prescription, birth injury, or other type of error. Based on these hospitals' track records, this sounds about right: annually, up to 98,00 0 people die from preventable medical errors, 2 million patients contract infections in hospitals, and approximately 90,000 die from infections caused by inadequate sanitation methods (such as infrequent hand washing)."

The site also goes on to list some common medical malpractice scenarios:

• Pediatric malpractice
• Radiation malpractice
• Breast cancer malpractice
• Plastic surgery malpractice
• Dental malpractice
• Cancer misdiagnosis
• Amputation of the wrong limb
• Prescription errors
• Emergency room negligence
• Anesthesia accidents
• Uterine rupture
• Birth complications
• C-section complications
• Misread X-rays/mammograms
• Faulty blood transfusions
• Hospital/ Medical Negligence
• Failure to provide appropriate treatment
• Treatment delays

How Much is My Medical Malpractice Case Worth?

That is a very difficult question which often cannot be answered with real accuracy.  Here is a good article provided by freeadvice.com on common factors used to determine the relative value of a medical malpractice case:

Jurisdiction: Where the injury occurred can sometimes have as much to do with the amount of damages or settlement you can collect as the injury itself. The rules about unprofessional conduct and doctor liability vary from state to state. Your attorney will help you establish the venue and jurisdiction of your case and advise you on what, if any, limitations the state places on your potential medical malpractice settlement or damage award.

Potential state caps: Since states are generally responsible for issues of medical malpractice, many have instituted caps on malpractice damages as a deterrent to frivolous claims. These include taking the amount available to an injured person through “collateral sources” such as health insurance out of the settlement, limiting the payment of damages to installment plans instead of lump-sum payments, and capping damages altogether. Check with a medical malpractice lawyer within the jurisdiction in which you were injured to figure out if there are caps on what you can claim in your medical malpractice case.

Severity: Lately, insurance companies are increasingly attributing rising premiums to increases in claims of injury severity. Severity is the degree to which you were injured. For example, a cleanly broken bone that requires a cast is considered a less severe injury than the same bone that was shattered in several places and which required surgery and extensive rehabilitation. It’s a common-sense guideline for how much your case is worth – the more severe the injury, the greater your likely damages or settlement.

Pre-existing conditions: As in workers’ compensation law and other areas of law, it will be harder to get a large settlement or award for an injury on top of a pre-existing injury. For example, if you had knee surgery years ago, it may be more difficult to get a large settlement for a case resulting in damage to an already problematic knee. Be honest about your pre-existing conditions, if any, when you consult with your medical malpractice lawyer – the opposing side will be asking for a detailed medical history including medical records and can capitalize on any pre-existing condition or injury related to your medical malpractice case.

Massachusetts Medical Malpractice Statutes of Limitations

All medical malpractice cases in Massachusetts have a statute of limitations of three years.  But, sometimes the malpractice is hard or impossible to detect.  Therefore, in such cases, the statute of limitations begins, or accrues when the victim learns or reasonably should have learned of the malpractice.  But, no Massachusetts medical malpractice case can begin more than seven years from the date of the actual malpractice.  The exception to this rule is when a foreign object is left inside the victim's body.   

Caps On Attorneys' Fees in Massachusetts Medical Malpractice Cases

Massachusetts medical malpractice cases are taken on a contingency fee basis.  What that means is that your attorney(s) will take a percentage of any settlement or verdict amount that is recovered in your case.  In Massachusetts, there are caps on the amount of these contingency fees in medical malpractice cases.  They are the following: 40% of the first $150,000.00 recovered, 33% of the next $150,000.00, 30% of the next $200,000.00, and 25% of any recovery greater than $500,000.00.