Northern Virginia Personal Injury Lawyer

Virginia Board of Medicine Reprimands Doctor after Lawsuit-A Case That DID Make a Difference

Ben Glass — Sat, 07 Nov 2009 06:45:47 GMT

The Virginia Board of Medicine has issued a formal reprimand to a doctor who has now promised to refer to a specialist any patient who has complaints of rectal bleeding.

In a case handled by our office several years ago, a Virginia jury awarded $1 million to a patient whose complaints of rectal bleeding and abdominal discomfort went were diagnosed as hemmorhoids for years.

According to the Board of Medicine's order, Alan Joshua, MD has "read additional literature" about colo-rectal cancer and no longer performs flexible sigmoidoscopy or anoscopy on patients with rectal bleeding. Instead, he refers them to colo-rectal surgeons for evaluation.

At trial, specialists testified that had this patient been seen by a specialist earlier, he could have avoided massive rectal surgery that left him injured for life.

The Board of Medicine's Order Reprimanding Dr. Joshua and making Virgina safer is here.

Originally posted at InjuryBoard by Ben Glass

Virginia Tort Reform Fund Victim of Alleged Fraud

Ben Glass — Fri, 09 Oct 2009 07:24:19 GMT

About 20 years ago Virginia enacted some of the nation's worst tort reform laws for children injured at birth. This law, which protects doctors and hospitals who elect to participate in it, prevents any lawsuit from being filed on behalf of children who have suffered devastating neurological injuries at birth.

The first real horror of the fund is that neither the doctor nor the hospital are required to tell the patient they participate, so a woman's free and rational choice to choose a doctor is impaired because she doesn't have all of the information she would need.

A second horror is that the fund has been chronically underfunded so that families who do apply for benefits from the fund are constantly made to jump through enormous hoops just to get the benefits the state is providing.

Now a federal grand jury had indicted a Richmond woman for allegedly siphoning off $800,000 from the fund

This case will be interesting to watch. How, exactly, does something like this happen. Unfortunately, this is one of the problems of a government run healtcare system. Under a true tort system that allowed injured infants to recover for medical malpractice this never would have happened.

Originally posted at InjuryBoard by Ben Glass

Hulk Hogan Sues His Lawyers: What consumers need to know about car insurance

Ben Glass — Fri, 18 Sep 2009 20:44:03 GMT

Terry Bollea's (aka "Hulk Hogan") recent lawsuit against his former lawyers at Zuckerman Spaeder, has several very important teaching points for consumers.

Here's the short version of the story. Hogan's son, Nick, was involved in a very serious car crash when he was 17. In fact, his passenger was permanently injured. The Hogan family had car insurance with Progressive Insurance Company. Progressive carried $250,000 of coverage (way too low!!).

According to the a lawsuit that has recently been filed in Florida, after the accident, Hogan did not notify Progressive of the case. Instead, the family hired the Zuckerman Spaeder firm to represent young Nick in any civil claim and any criminal claim that might arise from the accident. The family agreed to pay an astonishing $550 per hour and began to deposit large amounts of money with the law firm, which worked the case to the (ultimate tune of) about $1,500,000 in fees and costs.

Now Hogan is suing is son's former firm alleging, essentially this: you never told me that Progressive would have provided me a defense that would have cost me nothing.

Teaching point #1: yes, that's true...if you cause an accident your car insurance company will pay for your defense.

Teaching point #2: if you cause an auto accident call your insurance company and report it.

What kid graduating from high school in America today doesn't know that??

This will be an interesting case because if the allegations are true these lawyers could be in a heap of trouble.

Originally posted at InjuryBoard by Ben Glass

The Reality of the High Cost of Defensive Medicine

Ben Glass — Sun, 13 Sep 2009 07:16:26 GMT

As the debate ramps up regarding health care reform/insurance reform, one of the subjects that is brought up more and more often is the notion that we need to change the medical malpractice laws, on a national level. Conservatives argue for it and even the President, in a recent address, suggested that aspects of tort reform were on the table in order to fight the high cost of medical care.

The Argument that Defensive Medicine Exists to Protect from Lawsuits

Supporters of malpractice reform argue for limiting the right to sue a doctor, nurse or hospital, either by imposing additional legal roadblocks (expert certification before suit, for example) or by creating artificial limits to monetary recovery, usually by capping compensation for pain and suffering. According to their argument in favor of reform of patient’s rights, health care providers routinely order extra, non-necessary tests, not because it is reasonable to do so but to prevent the physician from being sued later for “not performing every test.” There is a huge cost to society, the argument goes, to all of these extra medical tests being ordered. "The country could lower its cost of medicine,” proponents argue, if health care providers weren’t so afraid of being sued, and thus, didn’t have to order all of these unnecessary tests.

It sounds like a pretty argument when spoken, in part because it is so hard to come up with facts to argue against it. It almost sounds logical. But, in fact, whenever the argument made it is always begins this way: “the estimated cost of defensive medicine is….”

Why is It That They Always Talk About the Estimated Costs of Defensive Medicine?

I suggest that when someone makes an argument that tort reform is necessary to prevent the “huge expense” of so-called defensive medicine” that that we don't let them get away with the "soft facts" they tend to use. Because the practice of defensive medicine is contrary to existing, well-established practice and law, the burden should be on the proponents of the existence of “defensive medicine” to prove that it even exists.

ByLaw, All Doctors are Required to Practice According to the Standard of Care

First, medical malpractice law does not require perfection. The law only requires that a doctor practice in accord with the “standard of care.” The “standard of care” is simply that care that would be required by a “reasonably prudent health care provider acting in the same or similar circumstances.” It is that care that a consensus of “reasonably prudent doctors” would have engaged in with the information they had at the time the decision for care occurred. When a doctor does or fails to do something required by the standard of care, then he or she is negligent.

If harm results from that negligence, then he or she is responsible to the patient for that harm.

A Doctor is Required to Talk to the Patient About Risks and Benefits

By law, doctors and patients act as a team. The doctor does an assessment of the situation, takes into account the information reasonably available at the time, maked a working diagnosis and recommends a course of action. The standard of care requires that a doctor explain to the patient both the risks and the benefits of the proposed course of treatment. This is the law of "informed consent." Ultimately, it is the patient, being fully advised, who
makes the decision as to the course of treatment.

Listen Very Carefully When They Talk About the Cost of Defensive Medicine

Those who argue that defensive medicine drives up the cost of health care in America define the practice as a medical test or procedure that is ordered that has no reasonable basis for giving the physician-patient team information that would be useful to the decision making process of the patient-doctor team. It is ordered, they say, simply to protect the doctor.
In order to believe that there is a true, measureable, cost of so-called defensive medicine, one would first have to ask: how do we know it is actually happening? Those that are “reporting” that they engage in “defensive medicine” are the doctors who have a vested interest in the argument or their medical associations or lobbyists. They “report” practicing defensive medicine but how should a rational person actually measure this or test the assertion?

Are These Doctors Admitting That They Are Violating the Standard of Care?

Think about it. Anyone who says he or she routinely engages in defensive medicine is admitting that they practice outside the standard of care. They admit that they routinely engage in conduct that is, by definition in every state, medical malpractice. Indeed, they are admitting that in their discussion with the patient about the next step to take in their health care, they are lying when they disclose the risks and benefits of the proposed treatment.This is astonishing.

Are They Also Admitting to Insurance Fraud?

Second, any doctor who admits they engage in the practice of “defensive medicine” is saying they are engaging in outright insurance fraud. A health insurance company is generally bound by contract or plan language to pay only those claims that are reasonable and necessary to treat illness or injury. The practice of “defensive medicine” is, by definition, an admission that two people are being lied to and victimized by fraud: the patient and the insurance company. (Either that or the patient and doctor are conspiring to defraud the insurance company.)

Show Us the Records

The only objective, rational way to know whether “defensive medicine” is being practiced is to look at a patient’s actual medical records and have that care reviewed by other “reasonably prudent physicians.” This is never done by tort reform proponents. A doctor who says “I practice defensive medicine (i.e. I lie to the patients and defraud the insurance company) never says “and here are my records to prove it.” How could they? They would go to prison.

The next time you hear any doctor assert that he or she engages in the fraudulent, improper practice of “defensive medicine” ask him or her if they will produce the actual medical records (patient identifiers removed) to prove the claim. Have them tell us that they had a face to face conversation with the patient (as is required under the standard of care) and told the patient “the test I want to order has no reasonable value to the decision-making process in your care.”

It simply doesn’t happen.

Every Patient Needs to Take Responsibility for Their Own Care and Ask This Question

I suggest that in truth, there is very, very little so-called “defensive medicine” actually practiced in the United States. When sent off for testing a patient should always ask and demand an answer for this question: “doctor, what is the scientific and medical basis for this test? What are the odds that something important will be missed if I don’t have this test?”

Originally posted at InjuryBoard by Ben Glass

Virginia Supreme Court upholds grant of Charitable Immunity to local business

Ben Glass — Mon, 31 Aug 2009 20:26:29 GMT

The Supreme Court of Virginia has upheld a challenge to Virginia's charitable immunity law in a case involving a 25 year old severely mentally and physically disabled man.

Juan Jimenez, through his court appointed guardians, had alleged that employees of Didlake, Inc. a Virginia corporation were negligent in there handling of him and that as a result, he suffered a severely fractured leg.

In the trial court Didlake asserted that dispite the fact that it generates over $32 million per year in revenues, that because it was not for profit and benefitted disabled workers it should be immune from Jiminez's lawsuit. A Prince William County judge agreed and dismissed the case.

Jimenez appeale but the Supreme Court of Virginia agreed, finding that there was no error.

The common law doctrine of charitable immunity protects a company such as Didlake from a suit filed by anyone who has 'benefited' from the charityable work. The law has been abolished or strictly limited in most states. If the law is ever to be changed that change will likely have to come from the Virginia General Assembly.

Virginia lawyer's weekly has more on the charitable immunity story here.

Originally posted at InjuryBoard by Ben Glass

Dish Network Virginia Child Molestation Case--Every Parent's Nightmare

Ben Glass — Mon, 20 Jul 2009 06:57:09 GMT

Every parent's nightmare.

You call the cable or satellite installer and you let them into your house. You don't know it but the installer is a convicted child molester. Easy to check that out these days..you would think.

A case is brewing in Virginia where the allegations are that this Dish Network installer, complete with (as the judge put it) pornography, sex toys and "cheap children's bracelets" arrived at the house to do his work.

The child was in a room different from the room the installer was working in. In a very short time, however, he assaulted her. He is now serving 20 years for that crime.

The family sued for damages the child sustained. When sued, Dish Network tried to have the case removed from state court to federal court, alleging that the family and the offender were citizens of two different states. Judge Henry Hudson, of the Eastern District of Virginia, rejected the removal petition as he found that the evidence was overwhelming that the child molester lived in Virginia. You can see Judge Hudson's full opinion in the Dish Network child molestation case here.

Ultimately this case will revolve around whether Dish Network knew or should have know (by checking more carefully, the family will contend) that this guy was a child molester and that it might not be a good idea to give him a job where he travels alone to houses where children live. Hopefully for the family they wont' be traumatized again by a long litigation process.

Originally posted at InjuryBoard by Ben Glass

Payee Notification--Why Do Some Oppose this Simple Measure

Ben Glass — Thu, 02 Jul 2009 06:30:09 GMT

Unfortunately, every so often a lawyer who is hell bent on stealing client settlement funds comes along. It's not often but its devastating to clients.

Here's how it typically works. The lawyer represents a client and, without the client's permission or knowledge, settles the car accident case with the insurance company. The insurance company issues a check, payable to lawyer and to client and mails it to lawyer.

Lawyer forges clients name and cashes check. Lawyer (until ultimately discovered) tells client "your case is not settled."

By and large, courts give no relief to the defrauded client. These lawyers end up in jail--thei insurance policies typically don't cover fraud--and judges tell clients who try to "undo" the settelments--"tough luck," the insurance company didn't do anything wrong.

There is a simple law that would virtually prevent this type of fraud from happening and its called payee notification. It would require the insurance company, when mailing a check to the lawyer, to also mail a notice to the accident victim to "notify" the victim that the check has been mailed.

What could possibly be bad about this rule? Nothing that I can think of. Yet some lawyers oppose it, mainly because "plaintiff's lawyers are singled out" and, I guess, this hurts their feelings.

This debate over payee notification is raging in Virginia. The public ought to be aware of the debate and join in the conversation.

Here's what one recetly defrauded victim said about the whole issue, speaking specifically about attorney-now felon, Stephen Conrad:

Conrad represented us, too. He stole $50K from us. Conrad did the same thing to everbody-no return phone calls, no paperwork, didn’t tell us he settled our case (for 2 yrs.),forged my husband’s name on both check and the release & even forged the witness names. Went to his sentencing on 11/14/2008. The bum wasn’t even remorseful. In court he said he was sorry for the shame and embarrassment he caused his wife and kids. A very selfish, greedy man. Hope the bum gets his up the “bum.” Disgusted, too, with the VA State Bar’s Victim’s Protection. What a joke! All the victim’s will get a BIG $.06 on the dollar Conrad stole. The Bar won’t pass legislation that will allow ins. companies to notify clients that their case is going to settle either. What does that tell everybody! There must be quite a few more crooks in the legal system. Seems they make laws to protect themselves. We’ll think twice before hiring a lawyer again.

What do you think?

Originally posted at InjuryBoard by Ben Glass

Beware of any Group Disability Policy

Ben Glass — Mon, 15 Jun 2009 13:57:00 GMT

Many professional athletes find themselves doing battle with their sports group disability plan insurance carrier.

In 2006, an appeals court awarded the estate of former Pittsburgh Steelers center Mike Webster more than $1.5 million in disability pay from the plan. It was the first successful challenge of the plan's rules and it has given hope to many of the players who feel left out.

While this is a victory for the players, I can tell you that any athlete seeking disability pay from these plans faces an uphill battle.

Most group long term disability polices (those offered by employers) stink. If you can afford to, and you want real disability insurance, you should be talking to a broker about a private/individual policy.

Most group policies aren't worth the paper they are written on because:

1. The protect you if you can't work in your own occupation for only 2 years.

2. If any part of your disability is caused by a mental or nervous disorder, the limit is generally 2 years. (And the disability insurance companies will do their best to lump your disability into the mental and nervous box.

3. Group policies are governed by ERISA. This means, generally, that the insurance company's decision on your claim is entitled to the benefit of the doubt and can only be reversed by a court for an abuse of discretion. This means you have to show that they are really, really wrong.

Originally posted at InjuryBoard by Ben Glass

Government Jobs Causing more Workplace Injuries and Illnesses

Ben Glass — Mon, 15 Jun 2009 00:21:00 GMT

According to new numbers, more workplace personal injuries and illnesses reported in Virginia were from people involved in government jobs than those in the private sector in 2007.

According to a report released on January 8 by the Virginia Department of Labor and Industry, in 2007 104,200 workers sustained personal injuries or suffered illnesses while working.

Of those 104,200, 5.2 out of every 100 full-time state and local government employees reported sustaining an injury or suffering an illness, in comparison to 3.2 of every 100 private employees.

The 37th annual survey of job-related injuries and illnesses was done with the cooperation of the Bureau of Labor Statistics and the U.S. Department of Labor.

Originally posted at InjuryBoard by Ben Glass

Cautious Charting Skews Medical Error Statistics

Ben Glass — Sun, 14 Jun 2009 12:20:00 GMT

Medical error statistics are skewed because of underreporting and cautious charting by medical personnel who have been taught to chart “defensively,” meaning that they chart with litigation in mind. Countless medication and other errors are made, and some have been charted as if they were administered or performed correctly. Many serious errors have been minimized in the charted account, or written in a manner that shamelessly places the blame on the patient or others.

A common example of making the patient a scapegoat is to label him/her as having “anxiety,” which effectively discredits both his/her judgment and recount of what was said or done while he/she was receiving medical care. This “diagnosis” will typically be added to a patient’s file if he/she displays annoyance or anger while dealing with a physician.

There are laws in place that protect “Incident Reports,” which document every detail of errors and accidents, from discovery. The intent of such laws was to encourage the person that made the error to give a complete and truthful account of what took place in order to learn how the incident came about.

This knowledge is intended to aid in decisions regarding how to make improvements or other changes to the appropriate systems or behaviors and reduce the chances of the error taking place again.

Incident reports have been barred from discovery in Virginia due to their potential value in elimination of errors if protected, and the potential for falsification of facts if they were available for use in litigation.

Identifying knowledgeable parties who are able to reveal this protected information through deposition could indicate which people, equipment, or supplies could have played a part in the victim’s injury.

Your right to receive compensation for medical malpractice, as well as the amount, is determined by a number of laws and factors, including:

• Statutes of limitations. You are required to file your claim within a specific time limit. The statute of limitations depends upon the type of claim and the claimant’s age, among other factors. An attorney can inform you of which factors apply in your particular claim.

• Plaintiff’s degree of fault. Did the injured party share any of the responsibility for his/her injury (for example, giving an inaccurate medical history)? Your contribution to the injury must be 50 percent or less to be eligible to file a claim for medical malpractice.

• Joint and several liability. These liabilities are taken into consideration when multiple defendants are involved and make all parties responsible for the full amount in the event of any or all of the others being unable to satisfy the judgment. Identifying any possible contributors to the malpractice event is critical to increasing your chances of being compensated.

• Limits on claim. There is no cap on the amount of a malpractice claim. However, some states may have factors that carry an additional impact.

• Other legal considerations. These can include periodic payments from other sources (such as insurance), immunity, and other laws and contributing factors.

With so many variables determining whether or not you are qualified to file a claim, you should consult an attorney early for evaluation.

Originally posted at InjuryBoard by Ben Glass