Kentucky Injury Law Blog

Winters and Yonker is a personal injury law firm that practices in Florida and Kentucky. Known for their extensive advertising, the attorneys call themselves “the aggressive attorneys.” However, according to the Florida Supreme Court and the Florida Bar Association, William Winters and Marc Yonker were too aggressive when they set out to establish the firm of Winters & Yonker in 2001.

Both attorneys were employed by Richard Mulholland when they decided to open their own firm in 2001. According to charges from the Florida Bar Association, rather than attempt to build their own client base, the attorneys allegedly persuaded clients from Mulholland’s firm to switch to the new firm, even telling them a third attorney was going to be there, which never happened. According to the lawsuit, they also copied files and had a legal assistant who was dating Winters at the time change client information in Mulholland’s electronic files.

As a result of these actions, the Supreme Court has found both of the attorneys guilty of professional misconduct and has suspended Winters for 91 days and Yonker for 60 days. After their suspensions are over, Yonker can resume practicing law, but Winters must be reinstated because he was suspended for over 90 days.

What happens to their clients in the meantime? Winters and Yonker have 30 days to make arrangements for them. Their cases will most likely be taken over by other attorneys in the firm who already have a full caseload and are not familiar with their cases. Hopefully their cases will not fall through the cracks and important filing deadlines will not be missed.

Continue reading "Personal Injury Attorneys Hurt Themselves, and Potentially Their Clients, with Misconduct" »

Coal mining is a dangerous occupation for many reasons. Most people picture mine collapses when they think of miners being injured or killed because that is what they see in the movies. But a more prevalent killer of Kentucky workers is pneumoconiosis, commonly known as black lung disease. This disease is not new, but the number of cases has dramatically increased and it is appearing in younger workers now.

After the tragic explosion that killed 29 victims at the Upper Big Branch mine in West Virginia, tests were done on the lungs of 24 of the victims. About 70 percent of them had signs of black lung disease, including some that were only in their 20s when they died.

In 1969, the Federal Coal Mine Health and Safety Act was enacted to reduce the miners’ exposure to coal mine dust, which causes black lung. Miners were given free chest x-rays and compensation became available to those who suffered from the disease. Mine operators limited their workers’ exposure and the incidence of black lung decreased so greatly that some experts thought it would become obsolete.

Unfortunately, about 15 years ago, the number of cases began to increase again. Some say it is the result of increased working hours for the miners. Others say the mining machines have become more powerful recently and are able to cut through quartz and sandstone that contain silica, which is more toxic than the coal dust alone. Another reason could be the lack of reliable dust-monitoring systems and a lack of follow-up when a violation occurs. Some miners admit they did not wear their dust collecting devices the whole time they were mining because they were told to leave them somewhere with cleaner air. These devices played a role in determining the dust levels where they were working, which was key to their safety; but supervisors told them if the levels were too high, the mine might be shut down and they would be out of a job. In the last 11 years, 53,000 samples submitted to the Mine Safety and Health Administration (MSHA) showed that dust amounts were above legal limits, but less than 2,500 citations were given. Current laws allow mine owners to send additional samples to replace those that are over the limit and give companies time to fix problems before any penalty is given.

Continue reading "Higher Numbers of Kentucky Workers Contracting Black Lung" »

On August 13, 2011, high winds caused a stage to collapse at the Indiana State Fair, killing seven people and injuring dozens more. Multiple personal injury and wrongful death lawsuits have been filed as a result of this tragedy, including 100 claims filed with the State of Indiana. Although the deadline for filing with the state was November 1, 2011, a few more claims that were postmarked on that date but arrived late may be added to the total.

The state of Indiana has a cap of $5 million on what it will pay for the accident, which sounds like a large sum of money, except it has to be divided among numerous victims. The maximum payout per person is $700,000. If this amount is paid out to the seven families whose relatives were killed, that adds up to $4.9 million, leaving only $100,000 for all of the other victims to split, including those who were seriously injured. The state has not decided how the money will be split, only that families of those who were killed and those who were seriously injured will be compensated first.

One of the attorneys representing some of the victims is fighting the $5 million cap with a lawsuit and is questioning whether someone other than the state should be deciding how to divide the money. He thinks having individual cases heard by judges and juries would be fairer to the victims. Another attorney cautions victims to read the fine print if they receive part of the settlement from the state. She says accepting the money may preclude them from pursuing lawsuits against other parties.

In addition to the $5 million from the state of Indiana, a State Fair Relief Fund was established for victims of this accident. This fund is made up of money donated by the public to assist those victims that were hospitalized. Unfortunately, not all injured victims qualify for aid from this fund. An overnight hospital stay before October 2, 2011 is a requirement to receive money from this fund, which Kenneth Feinberg, a compensation specialist said is “a pretty good indicator of seriousness of injury.” Not all victims are seeing it that way. One woman who suffered a head injury and is unable to work for at least 2 ½ months does not qualify because she did not stay overnight. Another man who required knee surgery after October 2nd also does not qualify, even though he is unable to work and is only receiving two-thirds of his pay through workers compensation. The deadline to file a claim for part of the $500,000 remaining from this fund is November 14, 2011.

Continue reading "Deadline Has Passed for State Negligence and Wrongful Death Claims in Indianapolis Stage Collapse" »

Dr. Jack Allen, a Louisville family care doctor, was recently placed on probation by the Kentucky Board of Medical Licensure after multiple women came forward accusing him of sexually assaulting or sexual abusing them during office visits. Dr. Allen made inappropriate comments to female patients during office visits and pap smears and inappropriately touched women's breasts and bodies, according to a report on WHAS-11 TV.

Dr. Allen was also accused by patients of prescribing painkillers to women, getting them addicted to narcotics and painkillers and then forcing women to allow Dr. Allen to touch them in exchange for more prescriptions.

If you want to contact a Louisville Kentucky Medical Malpractice Attorney, feel free to contact me. I have been retained by one of Dr. Allen's victims and am interested in talking to other victims or lawyers familiar with this horrific situation. Please feel free to contact me directly at 587-8423 or email me steve@kytriallaw.com

For more details, see the WHAS-TV report.

My partner Vanessa Cantley filed three separate bullying lawsuits on behalf of children today. In what has become a troubling pattern here in Kentucky, despite being made aware of repeated episodes of abuse, teachers and school administrators did nothing to stop the abuse.

The lawsuits were filed in three separate counties: Meade, Floyd and Oldham. These cases involve more than pushing or name calling. One Freshman at South Oldham was repeatedly assaulted by teammates on his wrestling team. The kids broke his nose, and several times choked him until he passed out. Once he regained consciousness, they would choke him again.

The families were interviewed today by WAVE3's Connie Leonard and featured on the local news cast. Read about it here.

Watch the video.

I have to admit I am outraged by this story. Guys like this make it hard for Kentucky personal injury lawyers like me to obtain justice for auto accident, medical malpractice, and other injury clients with valid claims.

New York attorney Richard Roth recently made headlines by suing Delta Airlines for ruining his vacation. Apparently Roth missed the memo that airlines do not control the weather, and feels it was the airline's duty to ensure he had the vacation of his dreams, not just that he got to his destination safely. Perhaps he could have simply enjoyed the remaining days of his vacation, spent Christmas with his family, and changed his attitude, rather than spending his vacation chasing down Delta employees and preparing to litigate.

Unfortunately for lawyers everywhere, Roth's actions further the negative stereotypes many Americans have of lawyers. By suing Delta, Roth has taken a giant leap away from the professionalism that should surround competent lawyers and made a mockery both of himself and of his profession.

Kentucky drug lawyers know that pharmaceutical companies have been slow to “self report” complications to the FDA. Today, the FDA announced that it plans to develop a computer tracking system to monitor side effects of drugs. The system is being designed to replace the self-reporting system that led to the slow responses in the Vioxx cases. See the articles on Reuters and New York Times.

Contaminated Heparin blood thinners from Baxter International Inc have led to several lawsuits in Kentucky recently. As many as 400 serious injuries and 81 deaths resulting from the partially-recalled product have been reported thus far. http://www.pharmalive.com/News/index.cfm?articleid=540566&categoryid=10

The new electronic system proposed by the FDA should drastically reduce the number of potential victims affected by contaminated drugs and serious side-effects.

Medical Malpractice News: Lawyers for the family of actor John Ritter will proceed to trial today in their claim that his death could have been prevented. Learn more about the case: LA Times NBC Today Show Interview with John Ritter's widow

Make no mistake about it, aortic dissection is a dire emergency requiring immediate medical intervention.

In the Kentucky medical malpractice cases involving failure to diagnose aortic dissection cases I have handled, one of the key issues is the time between the failure to diagnose and the death of the victim. In other words, was there enough time to make a difference? Based on conversations I have had with experts on the subject, cardiologists and thoracic surgeons, if the misdiagnosis and the death are more than an hour or two apart, it is virtually certain that there was enough time to treat the condition appropriately and prevent the patient from dying.

I assume this will be one of the key issues in the Ritter case.

Amy Yasbeck, widow of actor John Ritter, does a fantastic job in her interview on NBC's Today Show. It sickens me every time I hear a reporter talk about a "$5 Million Dollar" lawsuit, or that a victim is seeking "$70 Million Dollars". Ms. Yasbeck clearly explains what Kentucky injury lawyers know, that she is not seeking "$67 MIllion Dollars".

Watch the video.

In a fascinating change of policy, Medicare announced last week that it will not cover medical care for injuries resulting from medical errors. In other words, medical malpractice. This raises a host of serious questions for doctors, hospitals, injured patients and their lawyers. Will Kentucky medical malpractice attorneys be able to use this to their client's advantage? Or will it complicate matters?

Download the Centers for Medicare and Medicaid Services press release or visit the website for more information.

New York Times Article

Medicare Says It Won’t Cover Hospital Errors

By ROBERT PEAR
Published: August 19, 2007

WASHINGTON, Aug. 18 — In a significant policy change, Bush administration officials say that Medicare will no longer pay the extra costs of treating preventable errors, injuries and infections that occur in hospitals, a move they say could save lives and millions of dollars.
Skip to next paragraph

Eileen O’Neill-Pardo’s mother, Margaret, died after an infection developed at a hospital.

Private insurers are considering similar changes, which they said could multiply the savings and benefits for patients.

Under the new rules, to be published next week, Medicare will not pay hospitals for the costs of treating certain “conditions that could reasonably have been prevented.”

Among the conditions that will be affected are bedsores, or pressure ulcers; injuries caused by falls; and infections resulting from the prolonged use of catheters in blood vessels or the bladder.

In addition, Medicare says it will not pay for the treatment of “serious preventable events” like leaving a sponge or other object in a patient during surgery and providing a patient with incompatible blood or blood products.

“If a patient goes into the hospital with pneumonia, we don’t want them to leave with a broken arm,” said Herb B. Kuhn, acting deputy administrator of the Centers for Medicare and Medicaid Services.

The new policy — one of several federal initiatives to improve care purchased by Medicare, at a cost of more than $400 billion a year — is sending ripples through the health industry.

Yet another study shows what Kentucky Malpractice Lawyers have been saying for years:  it is the insurance industry, not lawyers or lawsuits that are responsibile for the high premiums doctors pay for medical malpractice coverage.

The report, compiled and authored by Jay Angoff (former Missouri Insurance Commissioner), surveyed annual reports from 15 medical malpractice insurers.  Agnoff’s conclusion is that insurers raised MDs’ premiums without reason and have perpetrated a lie by claiming that a so-called “malpractice crisis” exists.

For a copy of the report “No Basis for High Insurance Rates: An Analysis of the 15 Largest Medical Malpractice Insurers 2006 Financial Statements”, visit www.justice.org/pressroom/angoff

Everyone makes mistakes. Even doctors. But you rarely hear a doctor admit she made a mistake. In my years representing Kentucky medical malpractice victims, I have never once heard a doctor admit their error caused a patient harm. In his new book, Dr. Atul Gawande says just that. Gawande, a surgeon whose bestselling book inspired the hit TV series Grey's Anatomy, takes a refreshingly candid look at the medical profession and the havoc medical errors can cause.

Here, he discusses a surgical error:

Six months ago, I was performing a thyroid operation on a teacher my age and damaged a nerve that led to her vocal cords. This woman can no longer talk and has had to give up work. The only way I can live with myself is to try to do all I can for her and understand what I did wrong and do better next time. Being sorry is not enough.

The Guardian has an interesting article on Gawande and the book. An interesting read.

I've handled medical malpractice wrongful death lawsuits all over Kentucky. But never one for an elective cosmetic surgery. I've always wondered how jurors would react to the obvious defense theme that the deceased put their own life at risk for vanity's sake. That would definitely be something to explore in a focus group.

New York lawyer Tom Moore apparently knows the answer to that question. I have seen Tom Moore speak at seminars on numerous occasions. I have watched trial tapes from a few of his trials. He is as passionate a lawyer as I have ever run across. Anyone who has seen him in action will agree. It comes as no surprise that he settled a case this week in excess of $3 million dollars involving a woman who died during a facelift.

But wait! There is a twist. The surviving husband is a physician. I have to wonder what his stance on tort reform was prior to this tragedy. Reminds me of Senator Robert Smith of New Hampshire and "friend of the people" Rick Santorum, whose wife filed a medical malpractice suit in 1999 for over $500,000.

Can you say Hypocrite?

Doctors Attempt 'No Sue by Steven Klearman

Citing the high cost of medical malpractice insurance, more than a dozen ob-gyns have joined Obstetricians & Gynecologists Risk Retention Group of America (OGRRGA), a new Montana-based company that is reportedly reducing their premiums by about 50 percent. As part of their participation in the group, these physicians are requiring patients to sign agreements stating that they will pursue any subsequent disputes through binding arbitration.

They also must agree that pain-and-suffering awards will be capped at $250,000.

Let there be no mistake. Joe White and Mike O'Connell are excellent personal injury lawyers. That's why I was shocked when I read Jewish Hospital's allegations in the paper the other day. I could not imagine that these two of the most experienced, principled Kentucky medical malpractice lawyers would run off and file dozens of lawsuits without basis in the form of expert opinion.

Turns out my skepticism was well-founded. White and O'Connell had numerous witnesses come forward, including former employees of Jewish Hospital, to describe the deplorable conditions at the hospital.

Lawsuits vs. Jewish Hospital defended

“And the hospital's lawyers said in interviews yesterday they were disappointed that White and O'Connell are trying to re-litigate the underlying cases, which they have already lost.”

I bet they are.

Steve Frederick

Any Kentucky Medical Malpractice Attorney knows that lawsuits are not to blame for the rapid rise of malpractice premiums. OB/GYNs want to blame cerebral palsy lawyers. Thanks to Americans for Insurance Reform, we have data to refute their claims.

 

Thanks to my good friend Hans Poppe for finding this article.  No surprise here, jury verdicts DON’T drive premiums up.

 

New study in Illinois malpractice debate
By Adam Jadhav
ST. LOUIS POST-DISPATCH
03/29/2007

An umbrella activist group calling for insurance reform released a study Wednesday in an attempt to refute the claim that out-of-control litigation prompted medical malpractice insurance rates to skyrocket in recent years.

Americans for Insurance Reform says annual insurance industry numbers show that the amount of money paid for medical malpractice settlements, verdicts and legal defense has remained relatively flat for almost two decades, when adjusted for inflation and accounting for the growing number of doctors nationally.

According to the study — which based its findings on information from A.M. Best & Co., an insurance industry analyst firm — the total amount of money paid was almost $4.9 billion in 2005 nationally. The study calculated that to be a payout of $5,400 dollars per doctor, the lowest since 1981 when adjusted for inflation.

The study's author, a former government official, said those numbers indicate that the rising insurance rates that drove doctors to leave Madison and St. Clair counties can't be the result of the active trial bars of the Metro East area. Instead, market-related forces — poor performance in investment bonds — and bad insurance company management are to blame, said J. Robert Hunter, a former federal insurance administrator during President Gerald Ford's administration. He is now with the Consumer Federation of America.

STLtoday - News - Illinois News.

Senator Arlen Spector has introduced two pieces of legislation which evidence his understanding of potentially unreasonable tax consequences involved in personal injury litigation.

The first would prevent lawyers from paying tax on the money they receive as reimbursement of expenses, the second alleviates a plaintiff’s potential tax liability for income he never receives.

Read more about these pieces of legislation here.

(credit John Day of www.dayontorts.com for posting this on his blog)

State inspections on 'honor system'
By R. G. Dunlopand, Peter Smith
The Courier-Journal

Gaps in federal and state regulations could be putting bus passengers at risk.

Although buses are required by state and federal law to undergo annual inspections, for instance, no proof of inspection is required at registration, The Courier-Journal has found.

And it was a Louisville church bus with no record of ever being inspected that was responsible for sickening half a dozen children earlier this month. Emergency workers said the children suffered symptoms consistent with carbon-monoxide poisoning.

In addition, neither the state nor the federal government tracks the number of privately owned buses in Kentucky that need inspections or whether they are being inspected, the paper found.

The result is that a bus that does not undergo an inspection or fails is unlikely to be caught unless it has a chance roadside encounter with law enforcement, a random safety audit or a complaint.

"As far as state inspection is concerned, it's basically an honor system," said Maj. Glynn Powers of the Kentucky Department of Vehicle Enforcement. "We can't go behind these vehicles to make sure they got the inspection done. There's a whole lot more buses than there are of us."

READ THE REST OF THIS ARTICLE

Additional resources:

• Judge orders church not to alter bus until investigators check it [7.20.06]
• Church's use of bus investigated [7.19.06]
• Lax again on bus safety [7.16.06]
• 1st on bus to fall ill just start of woes [7.16.06]
• Church's bus fleet overdue for inspection [7.14.06]
• Bus with sick kids had safety violations [7.13.06]
• 7 children on church bus fall ill during trip [7.11.06]

Following is an outstanding synopsis of the truth about medical malpractice.  If you have not read “The Medical Malpractice Myth” and the studies referenced in this article, I highly recommend you do so soon.

The Medical Malpractice Myth
Forget tort reform. The Democrats have a better diagnosis.
By Ezra Klein

The Republican answer to runaway health-care spending is to cap jury awards in medical malpractice suits. For the fifth time in four years, Senate Majority Leader Bill Frist tried and failed to cap awards at $250,000 during his self-proclaimed "Health Care Week" in May. But this time, the Democrats put a better idea on the table.

Sens. Hillary Clinton and Barack Obama also want to save on health care. But rather than capping jury awards, they hope to cut the number of medical malpractice cases by reducing medical errors, as they explain in an article in the New England Journal of Medicine. In other words, to the Republicans, suits and payouts are the ill. To the Democrats, the problem is a slew of medical injuries of which the suits are a symptom. The latest evidence shows the Democrats' diagnosis to be right.

The best attempt to synthesize the academic literature on medical malpractice is Tom Baker's The Medical Malpractice Myth, published last November. Baker, a law professor at the University of Connecticut who studies insurance, argues that the hype about medical malpractice suits is "urban legend mixed with the occasional true story, supported by selective references to academic studies." After all, including legal fees, insurance costs, and payouts, the cost of the suits comes to less than one-half of 1 percent of health-care spending. If anything, there are fewer lawsuits than would be expected, and far more injuries than we usually imagine.
Click Here!

As proof, Baker marshals an overwhelming array of research. The most impressive and comprehensive study is by the Harvard Medical Practice released in 1990. The Harvard researchers took a huge sample of 31,000 medical records, dating from the mid-1980s, and had them evaluated by practicing doctors and nurses, the professionals most likely to be sympathetic to the demands of the doctor's office and operating room. The records went through multiple rounds of evaluation, and a finding of negligence was made only if two doctors, working independently, separately reached that conclusion. Even with this conservative methodology, the study found that doctors were injuring one out of every 25 patients—and that only 4 percent of these injured patients sued.

READ THE ENTIRE ARTICLE:

The Medical Malpractice Myth - Forget tort reform. The Democrats have a better diagnosis. By Ezra Klein.

Today, the Tennessee Supreme Court ruled that ex parte communications between defense counsel and a plaintiff's non-party physician are not allowed.

Click here to read the entire opinion.

The Court ruled that these sort of communications violate the implied covenant of confidentiality between physicians and patients. This only makes sense because this is some of the most sensitive information about a person. Moreover, the information can be obtained through formal discovery.

Thanks to The Duncan Law Firm for bringing this to our attention.

Wow. Kentucky malpractice lawyers, what do you think of this unique concept?

Who knew?

Rapid response team activation by patients can mitigate errors
Many hospitals are familiar with the concept of rapid response teams (RRT), one of six initiatives that comprise the 18-month-long Institute for Healthcare Improvement's 100,000 Lives Campaign. The idea is simple: any healthcare worker can bypass the typical chain-of-command and call what is essentially a medical "SWAT team" to quickly assess the patient and intervene when life-saving care may be needed (1). Unlike the traditional "code" team, the RRT intervenes before the patient experiences a respiratory or cardiac arrest. The results have been impressive, with reductions in cardiac arrests, deaths, and length-of-stay (2).

Taking this intervention to a whole new level, The University of Pittsburgh Medical Center (UPMC) Shadyside, is perhaps the first hospital in the nation to invite patients and families to call for a RRT to address unresolved concerns about their safety and health (3,4,5). Upon admission, patients and family members are encouraged to pick up any phone in the hospital to report a Condition H (for "help") if they:

IV vincristine survey shows safety improvements needed.

N.Y. Judge Denies Disclosure of Surgeon's Records

Daniel Wise
New York Law Journal
June 21, 2006

A medical malpractice plaintiff, who claims her doctor was suffering from a physical condition that caused him to botch her face-lift, may not compel the doctor to disclose his medical records, a New York judge has ruled.

The defendant doctor's medical records remain privileged, unless he has taken some affirmative step to put his medical condition in issue, Manhattan Supreme Court Justice Eileen Bransten ruled in Brower v. Beraka, 109514/03.

Although Bransten refused to require Dr. George J. Beraka, a plastic surgeon, to disclose his medical records, she did order him to submit to a deposition where he could be asked questions about the facts and circumstances of his condition during the 40 days following the plaintiff's surgery.

Law.com - N.Y. Judge Denies Disclosure of Surgeon's Records.

An interesting read from the Joint Commission Website on the Sorry Works! Coalition.

The Sorry Works! Coalition, an organization of doctors, lawyers, insurers, and patient advocates, is dedicated to promoting full disclosure and apologies for medical errors as a “middle-ground solution” in the medical liability crisis. If a standard of care was not met (as shown by a root cause analysis) in a bad outcome or adverse event, the providers (and their insurer) should apologize to the patient/family, admit fault, provide an explanation of what happened and how the hospital will ensure that the error is not repeated, and offer compensation. The Sorry Works! protocol is based on the disclosure program developed at the Department of Veterans Affairs Hospital in Lexington, Kentucky.

Kentucky accident attorneys take note: Ahlborn may extend to Medicare

In a significant victory for injured plaintiffs, the Supreme Court ruled unanimously on May 1st that state Medicaid agencies’ claims for reimbursement out of tort settlements are limited to that portion of any settlement attributable to past medical expenses. The ruling means that the agencies may not lay claim to any portion of a plaintiff’s recovery for lost wages, pain and suffering, permanent disability or other future damages. Arkansas Dept. of Health and Human Services v. Ahlborn, 126 S.Ct. 1752 (2006).

Medicaid is not the only federal health care program that has asserted a right to priority repayment out of tort settlements; ATLA members report similar claims by Medicare.

We believe that Ahlborn’s logic should control repayment claims by other federal programs, such as those asserted under the Medical Care Recovery Act (“MCRA”) and the Medicare Secondary Payer Act (“MSPA”), despite differences in the language of each statute, because the basic structure of the repayment obligation is the same under all three federal statutes and because all three acts share a common congressional purpose.

In our view, plaintiffs’ counsel should begin to treat the decision in Ahlborn as controlling in cases involving Medicare and other federally-funded health care programs and should be on the lookout for an appropriate case to seek to extend the holding in Ahlborn.

TO READ THE ENTIRE OPINION LETTER, CLICK HERE: Download Opinion Letter from CCL

We have visited doctors and hospitals throughout the country and heard firsthand from those who face ever-escalating insurance costs. Indeed, in some specialties, high premiums are forcing physicians to give up performing certain high-risk procedures, leaving patients without access to a full range of medical services. But we have also talked with families who have experienced errors in their care, and it has become clear to us that if we are to find a fair and equitable solution to this complex problem, all parties — physicians, hospitals, insurers, and patients — must work together. Instead of focusing on the few areas of intense disagreement, such as the possibility of mandating caps on the financial damages awarded to patients, we believe that the discussion should center on a more fundamental issue: the need to improve patient safety.

We all know the statistic from the landmark 1999 Institute of Medicine (IOM) report that as many as 98,000 deaths in the United States each year result from medical errors. But the IOM also found that more than 90 percent of these deaths are the result of failed systems and procedures, not the negligence of physicians. Given this finding, we need to shift our response from placing blame on individual providers or health care organizations to developing systems for improving the quality of our patient-safety practices.

To improve both patient safety and the medical liability climate, the tort system must achieve four goals: reduce the rates of preventable patient injuries, promote open communication between physicians and patients, ensure patients access to fair compensation for legitimate medical injuries, and reduce liability insurance premiums for health care providers. Addressing just one of these issues is not sufficient. Capping malpractice payments may ameliorate rising premium rates, but it would do nothing to prevent unsafe practices or ensure the provision of fair compensation to patients.

SUPPLEMENT: Interview with Richard Boothman on a medical-error disclosure program in Michigan.

READ THE ENTIRE ARTICLE: NEJM -- Making Patient Safety the Centerpiece of Medical Liability Reform.

2006 KATA Annual Convention and Seminar

Sept. 6-8, 2006 at the

Seelbach Hilton Hotel Louisville, Ky.
 

David Ball’s frankly delivered, out-of-the-box, “unlawyerly” lessons will revolutionize the way you present a damage case to a jury. Whether you have tried dozens of cases or have yet to try even one, this presentation will have a profound impact on your ability to connect with a jury.

David Ball, PhD., a nationally known jury consultant and trial skills trainer, is a leading authority on adapting audience persuasion techniques from theater and film to in-court use. Trained in communications, theater, and film, his credits as a director, producer, and playwright include the Guthrie Theater, Broadway and off-Broadway, Carnegie Mellon University, and Duke University, where he chaired Drama.

He has taught law students at Duke, the universities of North Carolina, Minnesota, and Pittsburgh, and Campbell University as Adjunct Professor of Law. He writes for a variety of law publications, and his NITA book Theater Tips and Strategies for Jury Trials is a national best-seller.

Fantastic article on Sereboff and the future of ERISA remedies from the Workplace Prof Blog.

Sereboff and the Future of ERISA Remedies (click to read the entire article)

By Guest Blogger: Prof. Colleen Medill, University of Nebraska College of Law

This is the first of what I hope will be a regular addition to the Workplace Prof Blog - comments and observations on legal and regulatory developments in employee benefits law. Chief Justice Roberts spoke at the American Law Institute meeting about 30 minutes after the decision in Mid-Atlantic Medical Services v. Sereboff was announced. In his remarks to the ALI members, Chief Justice Roberts characterized Sereboff as one of four decisions announced that morning by the Court that were "9-0" decisions that "simplified" the law. The audience was, of course, duly impressed with the new Chief Justice. Justice Roberts (who wrote Sereboff) could "simplify" ERISA. Wow!

Having had a few days to reflect on the opinion in Sereboff, and its future implications for ERISA remedies, I think "subtle change," rather than "simple," is a more accurate adjective. Although only 11 pages long, with only two footnotes (a true breath of fresh air after Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002)), this decision marks a turning point in the Court's philosophical approach to determining the scope of "appropriate equitable relief" under ERISA Section 502(a)(3). This change looks to be at three levels, described below, starting from most narrow to the most far reaching:

Lloyd Knotts and Jackie Knotts v. Zurich Insurance Company, et al.

Reversing the Court of Appeals, Justice Roach wrote the majority opinion which holds that the insurer's obligation to comply with the Unfair Claims Settlement Practices Act, and duty to act in good faith, continues throughout litigation. However, the court did hold that conduct by the defense lawyer cannot be used to support allegations of bad faith and is strictly inadmissible.

Kudos to Lee Sitlinger and Larry Franklin for this very important opinion!

To read the entire opinion, click here: Lloyd Knotts and Jackie Knotts v. Zurich Insurance Company, et al.

No surprie to us .... A recent study by Health Affairs, the industry's leading policy periodical, comes to the conclusion that there is no malpractice crisis.

from Malpractice Premiums And Physicians’ Income: Perceptions Of A Crisis Conflict With Empirical Evidence

"Conclusion
To paraphrase Mark Twain's comment on reading his obituary in a newspaper, the reported recent demise of medical practice as a result of rising malpractice premiums has been greatly exaggerated. The perception that
increased malpractice premiums cause a crisis is at odds with evidence from the AMA surveys. These surveys indicate that premiums have consistently been a small percentage of total practice expenses except within anesthesiology, which is a result of its having much lower than average nonpremium expenses. When premium increases occurred between 1970 and 1986, and from 1996 to 2000, they had only a small effect on net income."

Look at this chart which shows medical malpractice premiums in relation to total expenses and net income.

Self-Employed Physicians: Mean Malpractice Premiums, Total Expenses, And Net Income, Selected Years 1970-2000

Reid: Bush Republicans Keep Insurance Companies Healthy
WASHINGTON, May 8 /U.S. Newswire/ -— With Bush Republicans in the Senate seeking to use their "health" week to push Medical Malpractice legislation that will do nothing to fix the health care crisis in America today, Senate Democratic Leader Harry Reid delivered the following remarks on the Floor of the U.S. Senate.

The text of Senator Reid's speech, as prepared, is below.

Mr. President, I rise to object to the Republican medical malpractice bills before the Senate today. These measures do not represent a serious attempt to improve health care or civil justice in the United States. Moving to these bills is a tired political exercise, and the Senate should reject it out of hand.

To think with American consumers paying over 3 dollars for gas, with college tuition moving beyond the reach of many in the middle-class, with the Iraq war dead approaching 2,500, with immigration a security crisis unresolved, with our country's deficit standing at 9 trillion dollars, with 46 million Americans lacking health care coverage, we are moving to bills that are unnecessary and go nowhere. It is wrong.

We could more profitably use the scarce time remaining in the 109th Congress tackling the urgent challenges facing America's families: energy, the war, immigration, and the real health care crisis.

Here's a good article about the lies we are told by the pharmaceutical companies:

Don't Be Deceived By Drug Company Tactics
Marcia Angell, MD
Harvard Medical School

reprinted from Bottom Line/Health, March 1, 2005

In light of the recent revelations about the harmfulness of the prescription drug rofecoxib (Vioxx) and other painkillers, drug companies have come under increased scrutiny.

Fact: Between 1997 and 2001, drug companies tripled the amount of money they spent on direct-to-consumer advertising for prescription drugs -- the ads now seen so frequently on television and in newspapers.* The number of retail prescriptions rose from 2.4 billion in 1997 to 3.1 billion in 2001. Those prescriptions carry a total yearly price tag of at least $200 billion, with the cost rising about 12% per year, approximately six times the rate of inflation.

But doesn't the increased use of medications signal better health for Americans? Not necessarily.

To learn more about the claims made by drug companies, Bottom Line/Health spoke to Marcia Angell, MD, former editor-in-chief of the prestigious New England Journal of Medicine...

Kentucky insurance bad faith decision.

In Janet Foster v. Kentucky Farm Bureau, the Kentucky Supreme Court reached two important decisions.

The Good: An individual who is unemployed at the time of an automobile accident may collect work loss benefits from a job that she is later offered but cannot fulfill because of a physician's advice, and such conduct is covered by the Kentucky MVRA statutes

The Bad: An insurers failure to pay no-fault benefits does not support a seperate claim for bad faith. The Kentucky Motor Vehicle Reparations Act is the exclusive remedy for no-fault claims, and the Unfair Claims Settlement Practices Act does not apply. There is no bad faith claim available for PIP claims, the attorney fee provision of the MVRA is the exclusive remedy.

ARKANSAS DEPARTMENT OF HEALTH AND HUMAN SERVICES ET AL. v. AHLBORN

“[t]here is no question that the State can require an assignment of the right, or chose in action, to receive payments for medical care. So much is expressly provided for by §§1396a(a)(25) and 1396k(a). And we assume, as do the parties, that the State can also demand as a condition of Medicaid eligibility that the recipient “assign” in advance any payments that may constitute reimbursement for medical costs. To the extent that the forced assignment is expressly authorized by the terms of §§1396a(a)(25) and 1396k(a), it is an exception to the anti-lien provision. See Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffeler, 537 U. S. 371, 383–385, and n. 7 (2003). But that does not mean that the State can force an assignment of, or place a lien on, any other portion of Ahlborn’s property. As explained above, the exception carved out by §§1396a(a)(25) and 1396k(a) is limited to payments for medical care. Beyond that, the anti-lien provision applies.” (Emphasis added).

A recent ruling in the 1st circuit held Daubert objections raised at trial are not timely. Feliciano-Hill v. Principi, No. 04-1072 (1st Cir. Feb 22, 2006).

Dr. Feliciano-Hill argues that, pursuant to Daubert and Rule 702, the district court should have refused to admit Dr. Sierra-Zorita's testimony as evidence. The district court denied Dr. Feliciano-Hill's motion both because it was untimely -- Dr. Feliciano-Hill waited until the moments before Dr. Sierra-Zorita's testimony to object, even though she had received the doctor's report five months earlier -- and because Dr. Sierra-Zorita's report and proposed testimony met the applicable standard. The district court was correct on both grounds.

Parties have an obligation to object to an expert's testimony in a timely fashion, so that the expert's proposed testimony can be evaluated with care. Dr. Feliciano-Hill did not make a timely motion here and has not offered any reason for her delay. The district court was on firm ground in refusing her motion as untimely. See Alfred v. Caterpillar, Inc., 262 F.3d 1083, 1087 (10th Cir. 2003) (explaining that "because Daubert generally contemplates a 'gatekeeping' function, not a 'gotcha' junction," untimely Daubert motions should be considered "only in rare circumstances"); see also Club Car, Inc. v. Club Car (Quebec) Import, Inc. 362 F.3d 775, 780 (11th Cir. 2004) ("A Daubert objection not raised before trial may be rejected as untimely.").

Each year, over a hundred thousand people are killed by preventable medical errors, due to negligence or wrongdoing. Many more are seriously or permanently injured, disfigured or disabled.

Congress has done little to address this serious problem. Instead, the Congressional leadership is working to pass legislation that would limit the right of those injured through no fault of their own to hold wrongdoers accountable and eliminate a key incentive for health care providers to act responsibly in the future.

For those who are injured or family members of those who have died as a result of medical negligence, the civil justice system is the last resort and the court room is the only place where they can seek justice against powerful interests on a level playing field.

Next week, as part of a so-called “Health Week,” the US Senate will vote on medical malpractice legislation which would dramatically restrict your ability to hold wrongdoers accountable.

Please help fight this attack on our rights.

Learn the facts about the bill.

Read about victims of medical malpractice.

Contact Congress and tell your Senators to protect the health and safety of Americans, not corporate profits.

At a time when so many people have been harmed due to preventable mistakes, Congress should be talking about protecting the health and safety of patients, rather than protecting the profits of negligent wrongdoers.

Safety Issues Surround Prescription Sleep Aids

Experts are concerned about the side effects of drugs used to treat insomnia. There have been many reports of patients eating, cooking and even driving in their sleep after taking Ambien. Research has also found that Ambien is one of the top 20 drugs found in drivers arrested by WI police and has been linked to about a hundred traffic accidents between 1988 and 2005. Liz Szabo, USA Today 04/25/2006

Read Article: USA Today

Lung Disease Caused by Food Flavoring Could be Widespread

The chemical diacetyl is a substance that is found in many foods naturally but is also used to make food flavorings. NIOSH has linked the substance to bronchiolitis obliterans, a potentially fatal disease that has made at least 200 workers at popcorn plants sick. Scientists at NIOSH and OSHA would like to see more investigations but agency leaders believe they are doing enough. Associated Press, Seattle Post-Intelligencer 04/25/2006

Read Article: Seattle Post-Intelligencer

Medical Errors Leading Cause Of Death In Hospitals, Study Says
07 Apr 2006

Medical errors remain a leading cause of death and injury at hospitals nationwide, and the effort to improve patient safety at the facilities "is too slow and should be a cause for great alarm," according to a study released on Monday by HealthGrades, the Syracuse Post-Standard reports. For the study, researchers examined the records of Medicare beneficiaries treated at about 5,000 hospitals nationwide between 2002 and 2004 and used 13 patient safety indicators developed by the federal government to evaluate admissions (Mulder, Syracuse Post-Standard, 4/3). The study finds that about 1.24 million patient safety incidents occurred between 2002 and 2004, compared with 1.14 million between 2000 and 2002, at a cost of $9.3 billion. According to the study, failure to save the lives of Medicare beneficiaries who developed complications, bloodstream infections and bedsores accounted for almost 63% of the patient safety incidents (Nelson, Knoxville News-Sentinel, 4/3). Almost 25% of Medicare beneficiaries who experienced patient safety incidents died between 2002 and 2004, and 82% of those deaths likely were preventable, according to the study. The study finds that hospitals in Minnesota, Wisconsin, Iowa, Michigan and Kansas ranked highest on patient safety and that facilities in New York, New Jersey, Nevada, Tennessee and the District of Columbia ranked lowest (Syracuse Post-Standard, 4/3). Samantha Collier, vice president of medical affairs for HealthGrades, said, "Overall, we see the number of patient safety incidents in American hospitals continuing to increase, at an enormous cost, and we still see a large gap between the incidence rates at the nation's top-performing and worst-performing hospitals" (Knoxville News-Sentinel, 4/3).

New York — Americans for Insurance Reform (AIR) released a new study today confirming the wholesale decline of medical malpractice insurance rates nationwide. The AIR study also shows that this phenomenon is occurring whether or not states enacted restrictions on patients’ legal rights, such as “caps” on compensation. The medical malpractice insurance “crisis” is over, according to the study.

AIR’s study is based on the most recent Council of Insurance Agents and Brokers survey of market conditions, showing that the average rate hike for doctors over the past six months has been 0 percent. This is following similar results for the last quarter of 2004, which saw rates rising only 3 percent at the end of that year. By comparison, rates jumped 63 percent during the same quarter of 2002.

According to Joanne Doroshow, AIR spokesperson and Executive Director of the Center for Justice & Democracy, “Consumer rights organizations have long maintained that the ‘crisis’ of skyrocketing insurance rates for doctors and other policyholders would end when the insurance investment cycle stabilized, and that this would occur whether or not so-called tort ‘reform’ laws were enacted. Insurance industry data now unmistakably confirms this prediction.”

“We are now witnessing the wholesale collapse of insurance rates, including medical malpractice rates,” said J. Robert Hunter, AIR spokesperson, Director of Insurance for the Consumer Federation of America, former Federal Insurance Administrator and Texas Insurance Commissioner. “The end of the ‘hard market’ of sharp rate increases, less competition and cutbacks in coverage has occurred and a ‘soft market’ is now fully in place.”

A “hard” insurance market is characterized by higher rates, less competition and limited coverage. This is the result of the cyclical nature of the insurance business. Prior to the “hard market” of the last few years, the last such “hard market” occurred in the mid-1980s. But like today, the insurance cycle turned after a few years and prices began to fall. This had nothing to do with tort law restrictions enacted in particular states, but rather to modulations in the insurance cycle everywhere.

“The hard phase of the insurance cycle clobbers American businesses and professions every ten to fifteen years,” said Hunter. “Although these hard markets last only about two to three years, they can no longer be tolerated. State regulators must enforce the rating laws in order to end the boom and bust swing from illegal overpricing, such as the rates some policyholders have been asked to pay today, to illegal and inadequate underpricing, which will be seen when the market softens too much later in the cycle. Fortunately, the hard market price jump is behind us and we are now entering the softer market so legislators have a decade or so to grapple with how best to do this before the next hard market hits the nation. And there is now clearly no need to rush into quick legislative fixes, such as legal limits on patients’ rights.”

To read the entire article, click here.

BLACK LAW STUDENTS ASSOCIATION VICTORS ADVANCE TO NATIONALS

LEXINGTON, Ky. (February 13, 2006) - Four students from the UK College of Law Black Law Student Association (BLSA) won the Thurgood Marshall Mock Trial Southern Regional Competition this weekend in Durham, N.C. They will be one of only 12 teams to advance to compete in the Thurgood Marshall Mock Trial National Competition held March 22-26 in Washington, D.C.

The UK team of Viola Forbin, Anthony Gray, Valorie Smith and Brandi Stewart defeated a competitive field of 28 teams representing prestigious law schools such as Vanderbilt University to clinch the title.

Mock trial tests a law students' ability to try a case alternately as both the prosecutor and defense counsel. To succeed in competition, participants must be articulate, persuasive and think well on their feet, as well as being skilled in making opening statements, witness examinations, cross examinations and closing arguments.

Local attorney and UK College of Law graduate Robert Houlihan coached the team to victory. Houlihan mentored mock trial team member Valorie Smith as a first-year law student as part of the Kentucky Legal Education Opportunities program, and Smith asked him to work with the team.

“Our team had some tough fights but they were more adept in basic trial court skills. They gave better opening statements, direct examinations, cross examinations and closing arguments. They dribbled the ball better,” said Houlihan, a partner with Savage Elliott Houlihan Moore Mullins & Erdmann.

Posted by Michael Stevens on Monday, March 13, 2006

Hon. Thomas Russell was awarded the 2005 "Judge of the Year" at this years Bench and Bar Dinner of the Louisville Bar Association.

Judge Thomas Russell graduated from the University of Kentucky College of Law in 1970. He was appointed to the U.S. District Court for the Western District of Kentucky in 1994 and has served as a Federal Judge for 11 years.

He was defined by his nominators as illustrating the “best of our profession.” In a recent editorial, The Courier Journal praised him for his courage in ruling in a manner that protected “constitutional safeguards” provided by the Fourth Amendment.