This weekend is my annual bicycle trek across Massachusetts. 192 miles of riding over two days. Generally, weather permitting, it is a lovely ride with lots of fit and motivated people. Plus, there are fluffernutter sandwiches at every rest stop and it is generally a fun experience raising money for cancer research.
I am in my tenth year of riding the Pan Mass Challenge. It is a 192 mile ride from Sturbridge, MA to Provincetown, MA, which is the very tip of Cape Cod. It is a fun group ride with about 5,000 people. Last year we raised $60 Million for Dana Farber Cancer Institute in Boston. I think PMC is the third largest fundraising event in the country. All donations go to Dana Farber, as all costs are covered by the riders or donated services. Tito’s Vodka and Harpoon Beer are dedicated sponsors as are the Bruins and other Boston related teams. If you want to support my ride, the link is below.
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PAN MASS CHALLENGE 2023: DONATE!
DON’T CRY FOR ME GEICO/PROGRESSIVE/STATE FARM
Caricature of original Broadway cast of Evita! by Al Hirschfeld. Used momentarily.
Recently, a lot of articles in the business news have caught my eye on this tearjerker subject. Apparently, the insurers have been getting far more automobile crash claims than they expected and have been taking underwriting losses. That means that State Farm for example lost $3.5 billion dollars in 2021 because they paid out more claim dollars than they received in premiums. So, how do they fix this problem? They increase your auto insurance rates. This also comes after they had hugely profitable years during the pandemic years when miles driven were far lower and hence crashes were fewer.
So, you were a safe driver and your rates doubled or went up a lot. The reason is that State Farm screwed up their underwriting and needs to make their money back. A possible subtle finding within these results is that the more technology focused cars become, the harder and more expensive they are to repair. Extended repair times mean more rental car costs and more customers becoming annoyed and switching carriers and more expense as the auto body shops are no longer a guy with a wrench. If you are driving a Tesla Model Y and you waited 7 months to take ownership of the car and it has 1000 sensors and you hit a concrete post, it is no longer a question of banging out the dent. Now you need new sensors, a new sensor pad, and a whole bunch of other calibration. So, what was a $3,000 repair is now a $13,000 repair.
Door to balloon time?
In medical malpractice cases, there are a lot of guidelines or standards of practice to sort through.
So, what is door to balloon time? In treating heart attacks, the first surgical treatment is in the catheterization lab and involves placing a balloon into your artery to expand the blockage and place a stent or metal tube in the artery to hold it open. The most recent guidelines hold that less than 120 minutes should elapse from the minute you walk in to an Emergency Department with chest pain to not only being in the operating theatre, but actually having a catheter opening up your occluded artery. Cardiologists have determined that the 120 minute mark is generally too long and the goal is to reduce that, but that number applies particularly if you have to be transferred to a hospital with a catheterization lab for stent placement.
The standard of care is the only real question that matters in med mal cases. The standard is generally not written down anywhere, except for these guideline and even then the guidelines are subject to discussion. In those areas in which guidelines exist, they are helpful for setting the table or the playing field for the lawyers involved. ACOG (the American College of Gynecology), the American Heart Association or the ACC or other similar organizations often try to standardize what they expect of their providers. It allows for some uniformity across what is a very large country geographically with a variety of hospitals and many rural or poorer cities in the mix.
So, theoretically, you should receive the same level of care wherever you are in the United States, but that is rarely true. More rural hospitals will not necessarily have a fully staffed cath lab waiting for you to come in with your heart attack so you will need to be transferred.
It is a little unusual in medical malpractice cases to see a firm number like 120 minutes but not unheard of. Jury instructions in medical malpractice cases and defense lawyers take pains to point out that every patient is different and that medicine is part science and part art or practice. So, it is very hard sometimes to pin down what exactly the standard of care is and what was done right or wrong. What I can tell you is that you will not see a lot of malpractice cases brought unless there was what appears to be clear error.
The Bear: The Struggle
I have been watching the Bear on Hulu for a few weeks now. It is about the struggle, both personal and professional, of a chef in Chicago who is a reluctant business owner. It’s a really nicely done series with about 16 episodes. I like it because it shows the struggle inherent in small business.
Most law firm owners are small business owners like I am, running a successful operation over decades. But, the challenges depicted in the Bear resonate with me for a bunch of reasons. First, the lead characters always feel like the unexpected is upon them. That is a not infrequent occurrence in my practice. Pandemic shutdowns? I did not see that coming. Work from home? Did not see that coming. Global warming reducing slip and fall cases in winter? Did not see that coming. On the positive side for the business at least, people are driving like morons and the whole notion of texting and driving seems very very hard to get rid of.
I have my own bulwarks against future uncertainties, but the beauty of small business is that you can tweak it while the plane is in mid-air. You can make mistakes and recover or make changes to what you do or how you do it. Sometimes you have no choice. Other times you do.
Is every case adversarial?
German Soldier gives English soldier a light
Oftentimes, as a personal injury lawyer, a case comes in where negligence is clear, injuries are clear, and it is just a question of insurance and the valuation of the claim. For example, you are a pedestrian hit by a car in a crosswalk and break your hip. Or, you are rear ended in your car and pushed into oncoming traffic and hit by a car breaking your collarbone and wrist. These are both real life cases, but also straightforward ones. In these situations, my goal is to collect the evidence as quickly as possible, get a medical record showing the fractures, and obtain a picture of what the potential insurance is. Then, hopefully, the case can settle without the delay and expense of litigation. Why is this important to the client? Well, usually health insurance bills that reduce a client’s settlement will increase over time so it is important to cut these off. Plus, litigation costs money. The average case expenses will be $5,000 if the case goes through discovery. Not every case can benefit from the rapid settlement situations described above. Plus, in cases like these where everyone knows what happened and what the injury was, there is really nothing to fight about except for how much the insurer will pay for the case.
FTCA UPDATE: Andrew Neuwirth at the Supreme Court? I hope not
US Supreme Court, Washington DC
I think that among the long list of things that I do not want to do as a lawyer is be involved in a US Supreme Court case. While many lawyers would relish the opportunity to argue there, I think that it is not a good place for personal injury cases and I could see wasting a tremendous amount of time writing briefs, researching other circuits law etc. Plus, while I like to write in general, I really don’t like legal writing. Overall, I don’t see a lot of upside.
I wrote some time ago about my case involving a slip and fall at a TSA checkpoint at PHL and how the Federal Tort Claims Act and the Discretionary Function Exception (DFE) figured into it. Yesterday, there was an article in the Legal Intelligencer, our legal paper, describing the case of Xiaoxing Xi v. United States. It just so happens that the headline was that the FTCA and the Discretionary Function Exception are at the center of that lawsuit and the Third Circuit Court of Appeals heard the case and implored the US Supreme Court to address the FTCA and the DFE. Xi was a Temple Professor, who was arrested and charged as a spy for China. He filed suit for wrongful arrest and alleged a Constitutional violation. The Government responded that it was immune under the DFE. The Government won its claim at Summary Judgment and Xi appealed. The Third Circuit reversed the District Court and said that the Government was not immune and that the DFE did not apply. My case is worlds away from the Xi case but they both involve the DFA. How would I end up in the Supreme Court? Well, when there is a clear split in how different Circuits around the USA treat the FTCA, the Supreme Court will often step in to set a clear line about what the immunity is and how to apply it. Often, multiple similar cases will be lumped together to address all of the disparate issues at once.
MEDICAL MALPRACTICE CASES AND PLASTIC SURGERY
From the movie Brazil, directed by Terry Gilliam
I think it is probably a good idea to avoid having plastic surgery with a surgeon whose spouse is on the Real Housewives series. Several of these docs are getting pummeled with malpractice lawsuit filings. While the filing of your typical case has no bearing on whether the case will ultimately prevail, I think the opposite is true in medical malpractice. No lawyer would file a med mal case unless there was clear malpractice and a clear path to success. This is because you need a Certificate of Merit in PA and similar letters in other states that essentially reveals that your case has merit in the eyes of a doctor with the same specialty. This sort of substantial proof of merit is not required in many lawsuits. Further, these cases demand a really close evaluation of costs and benefits. We do not take cases that do not have six figure or seven figure potential. A doctor doing something wrong or below the standard of care is simply not enough to make a case. Even the raft of allegations in the lawsuits against the real housewife spouses who are doctors are often not about the actual performance technique.
Would a Trump Conviction Matter to a Trial Lawyer?
Originally published April 4, 2023
Apart from the angry politics on both sides of Trump being indicted and going to trial at some point in the future, there is an interesting issue to appears to my lawyer brain. There has been a lot of bellyaching about why would you bring this case first of all the cases against him? The general sense seems to be that this is the weakest of the cases against Trump and why not start with a stronger one.
One interesting issue is how prior convictions are used in actual trials in Court. Let’s start with assumption #1, which is that Trump will not ever plead guilty to anything. I think that is a given. A guilty plea and a jury verdict have the exact same effect so that does not matter too much assuming he is not aquitted. They both act as convictions. A guilty plea will usually get you a lighter sentence than a jury verdict, at least in Federal Court.
If Trump is convicted of a misdemeanor or felony before another case goes to trial, the fact of the conviction for a crime involving dishonesty could be used in future trials in Georgia or in the federal system to show that he is someone who has already been convicted and to show that he is someone who is willing to put his interests over those of society. Now, that may come as a surprise to nobody on either side. Nevertheless, the evidence of a conviction has the added effect of telling a jury that they too can convict him as a jury elsewhere already did that job once. It makes it a little easier to convict.
Happy Bastille Day!
Nothing celebrates radical democracy in action quite like Broadway schmaltz, so here is the cast of Les Mis @ The 1986 Tony Awards
BELIEVE ME, YOU DON’T WANT TO HAVE A MEDICAL MALPRACTICE CASE
Successful medical malpractice cases are ones where people die following routine surgery or where their cancer spreads and will kill the patient because it was not caught sooner or where people are permanently blinded by accident or where patients simply are so poorly managed in a nursing home that they are dropped repeatedly suffering fractured hips, internal bleeding etc. Like I said, you don’t want to have a case. It means something terrible happened. Usually the best med mal cases begin with a patient’s spouse or survivor calling to tell me what happened to their loved one. If you are too unwell to make the call yourself, you may have a case.
A lot of people call me to see if they have a malpractice case. Most people believe that they were wronged by a doctor or ER or hospital and really want someone to acknowledge that there was a wrong done. Some people are looking for a quick buck, which doesn’t happen in med mal cases. Regardless, the test for medical malpractice cases comes down to this: did someone fall below the minimum standard of care, did that cause harm, and what are your damages. A lot of people feel that they were wronged. Sometimes I agree with them. Sometimes I don’t. Regardless, there is a lot of frustration with the medical system these days.
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