Question: How is negligence determined in personal injury cases?
Question: How is negligence determined in personal injury cases?
Does negligence have to be established in order to collect damages in any personal injury case?
Honesty and fairness have nothing to do with insurance defense - HONEST!
Before talking to the insurance adjuster or defense attorney or the case mismanager remember this from I Claudius, don't touch the figs.
The premise held by most clients is that this system of law is fair. They'll say they want only to be treated fairly. When representing themselves they make the assumption that when defense lawyers talk to you they will be fair. Well I'm here to tell you, you had better not trust in being treated fairly. I mean exactly that and it has nothing to do with whether or not the defense lawyer or the insurance company is dishonest. They don’t have to be “honest” and they aren’t trying to be “fair”. Fact is they are hoping you aren’t smart enough to ask the right questions so they don’t have to not answer you. You think I’m kidding? Hell no. I’m not and I can prove I’m right. Here let me prove it to you.
Defense work has nothing to do with treating people fairly. If it did you could come up with the name of at least one defense lawyer who has said in the past, "I don't think you're asking for enough, can I pay you more?" Or, "Did you know you're entitled under the law to be paid more for your damages?” Go ahead find me one insurance company representative that has said that in the entire history of insurance. Go ahead, think real hard; I can wait, go ahead and think harder.
Umnnn dee dum, dee-dum... Have you remembered one? No? I didn't think so. I've not heard anything like that in 30 years.
Should We Hire Pilots Who Get It Right 95% Of The Time?
Wrong Site Surgery Day
We’ve spent the week covering wrong-site-procedure-patient surgeries and I’m going to conclude this issue by closing out the week with a list of current news about the subject. I have friends and clients who are doctors; some do surgery and I would never want this to happen in their OR. To eliminate never-events we have to talk about what’s wrong in the OR and then act to correct it. Like the pilot who just flew the plane I was on, I’m not interested in Delta hiring a guy that gets it right 95 or even 99% of the time. I want a pilot in the cockpit who gets it right 100% of the time. So if you’re a surgeon and think this is all nonsense I want you think about the pilot analogy and how that might affect your decision to fly with an error prone pilot.
Have a good weekend and here are the articles of interest.
Someone call a lawyer, I may have just had an aneurysm.
Yesterday we covered the list of never-events in medicine. Today we cover what our parents should have taught us before we were five-years-old; which is why after a mistake you offer a sincere apology. Whoever they are, the Leapfrog Group advises doctors and hospitals about what to do when the S-H-T-F and the surgical team operates on the wrong-patient, does the wrong procedure or cuts the patient on the wrong body part. Follow my lead and read what they publish about these grossly negligent errors.
The Leapfrog Group offers four actions as industry standards following a never event:[3]
- apologize to the patient
- report the event
- perform a root cause analysis
- waive costs directly related to the event
What the heck is a "never-event"?
A never-event is a mistake that is categorized as one that should never happen. Although they are defined as mistakes that happen in medicine, they are equally applicable to other professions. Wikipedia has a pretty nice list of the never-events and the action recommended to be taken after one occurs. These events and recommendations are from the National Quality Forum. I've posted the SRE's or Serious Reportable Events on my lawfirm's website. It is a five page document that lists the never-events in categories including surgical, patient protection events, case management, environmental and criminal events. Go to the extended page to see the list.
Hospital infections seen as 'winnable battle'
Columbia Daily Tribune
The National Quality Forum, a Washington, DC-based not-for-profit group, has developed a list of “never events” — 27 incidents, such as wrong-site surgery, that should never happen in health care. The list includes surgery performed on the wrong body ...
See all stories on this topic »
Let's take a time-out for wrong-site surgery day
Like the five stages of death to begin figuring out what we are doing wrong and then to completely avoid wrong-site, wrong-patient and wrong-procedure surgery we first have to get past denial and shame about it. Do not make the mistake of thinking these "never-events" just happen, these never-events can be avoided, if we will only start talking about it when it does happen. One way to avoid these embarrassing mistakes is to read the chart and to perform a time-out before the surgery. It may seem too basic, but that’s why these mistakes are occurring; because surgeons and surgical staff need to go back to the basics. If anyone on the surgical team has a problem with doing the time-out they ought to be put in a time-out away from the surgical team.
That said, here are this week’s news items about wrong-side surgery.
SPECIAL REPORT: Wrong-Site Surgery
ABC6OnYourSide.com
Insiders tell ABC6 News that this isn't the first time a "wrong-site surgery" has been performed at the Adena Medical Center in Chillicothe. This, despite Ohio being one of the first states to develop a universal protocol of pre-surgcial procedures to ...
See all stories on this topic »
The Apology Shield - Who came up with this idea?
I received a call from a reporter wanting to discuss the series I wrote on the medical apology shield. Like Participation Trophies the Apology Shield is society acting as if a lie is somehow the truth because enough people wish the lie were the truth. To prepare for the interview I read my old posts and once again I'm reminded of the Bush Era and its glorification of dishonest living coupled with its evil cousin greed. It makes me wonder aloud; who the brainless twit is that came up with the idea of the apology shield in professional negligence cases. They should be hung, drawn and quartered.
I do appreciate that good professionals make honest mistakes and that some professionals really are sorry for the hurt and inconvenience they have caused the client and patient. So trust me when I say I'm not picking on anyone.
When we talk about justice in America we're really talking about justice brought about by the people, not by judges who are tools of the establishment or prosecutors who are are equally tools of the establishment or the wardens or the police officers.
William Kunstler
Oops! Did you say left or right kidney?
Interesting paper on wrong-site surgery in ARCH
In today’s blog we have an interesting reference paper on wrong-site, wrong-patient and wrong-procedure surgeries. The Renal & Urology News site has an interesting article dated January 5, 2011 titled, Wrong-Site, Wrong-Patient Surgeries Found to Persist, By Ann w. Latner, JD. In the article Ms. Latner discussed a study that considered the insurance losses for 6,000 patient errors in Colorado between 2002 and 2008. Imagine this is only Colorado. The causes might surprise you. They seem to be confinded mostly to diagnosis errors and communication issues. Errors of judgment accounted for 85% and a failure to use the “time-out” process accounted for 72% of the cases. It’s a good read and it would be nice if during 2011 the U.S. health care system would have no wrong-site, wrong-patient and wrong-procedure mistakes.
The Archives of Surgery site is here. Wrong-Site and Wrong-Patient Procedures in the Universal Protocol Era and can be found in volume 145, no. 10 from October 2010 issue of ARCH. Here is the abstract to the article.
It is what it is... but why?
Okay today is bitch and moan day at the Edict and I’m choosing wrong-site, wrong-procedure and wrong-patient surgeries to B&M about, but in a constructive way. This is how to keep the lawyers at bay and away. It's pretty simple really.
All you need to do is a time-out, sort of like you expect a pilot to do the run-up before takeoff and you’ll avoid most mistakes. Now it's becoming pretty well known that some doctors are tacitly refusing to be told what to do and aren't doing the time-out. I’m guessing the resistance has much to do with the fact most patients don’t die from a wrong-whatever surgery so there isn’t the same emphasis or shame as there is with a plane crash due to pilot error. Or maybe pilots are more willing to do the run-up check list because an error will probably kill them as well as the passengers. Whatever the reason it’s foolishness in the worst way.
Do voters and corporate America play on a level field?
Is the legal system rigged against people; and in favor of big business or does it just seem that way?
People believe the law has the ability to go whichever way the judge wants to decide the case. It’s what people refer to as result-oriented reasoning. If you want a certain result you pick these legal principles and the result is possible. That’s how people view the law and frankly its how most lawyers and judges do, except we don’t admit it publicly. Today’s case has a result that most people will find offensive in that the proof required to prove a fact seems watered down in favor of an insurance company winning. If we asked the court to believe what this insurance company did, we'd lose ten out of ten times.
Judge says John Kline home’s former insurer doesn’t have to pay bank, Register, January 7, 2011
Where public policy collides with the practice of medicine and libel law
Today the question presented would be something like this:
Should the medical examiner be reporting physicians to the Iowa Board of Medicine concerning standard of care issues? Or, if an Iowa ME sees questionable deaths is it his/her duty to report it to the Iowa Board?
According to a Des Moines Register article wirtten about a libel suit between the Woodbury County Medical Examiner [ME] and a surgeon this ME did just that; he reported to the Iowa Board of Medical Examiners something he questioned and the lawsuit was ‘tossed’ by Judge Reade. But I don’t think that’s completely accurate. I believe the suit is still alive although portions of it have been ruled upon in a way that is adverse to the plaintiff, but favorable to the defendant. The ME reported a doctor for what he thought were standard of care issues. I’ve not completely read the decision but will guess the main issues were immunity from suit.
Okay, I’ve located the opinion and I’ll add this link and add the decision to my site under defamation. The Order is 40 pages long. I can see both sides of this argument. On the one side you have the ME’s role as a government official and medical doctor protecting citizen patients. On the other side you have a doctor spending a considerable amount of money, $200,000, defending himself against the charges. No one will be happy with this controversy.
Here is the Judge's conclusion from page 39 by the Court.
Medical Malpractice Insurance Myths and Other Distortions of Truth
The title of Reuters news item (September 7, 2010) as reported by Maggie Fox, “Malpractice Liability Costs U.S. $55.6 Billion: Study” is to focus of today's blog. Simply put it's not accurate. There are three things wrong about this report.
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The title is inaccurate.
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The assumptions the reporter expects readers to make are erroneous.
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The conclusions she reaches are absurd and I challenge her to prove just one.
The Title
The title implies that a study finds malpractice costs alone amount to $55.6 Billion. That’s not even close to being true. She made the mistake of not reading enough about the study and what it does show. The actual study reports these “costs” include: defensive medical practices such as extra tests and scans, in addition to administrative costs, payments to patients harmed by practice outside the standard of care, and attorney’s fees for these patients; all account for 2.4 percent of the annual U.S. healthcare expenditure, as reported by Michelle Mello of the Harvard School of Public Health.
Listen... Here that? "Ka-Ching" What is it?
That's the sound of your $$ in the insurance adjuster's pocket. To the insurance industry it's called promoting the float. The float is the money they keep while you wait. It's insurance wealth that belongs to you, but insurance uses it during the delay that they create. Ka-chingggggggggggg!!! Thanks!
Insurance Lullaby: Ka-ching, ka-ching, ka-ching! Insurance Executives: Thank you juries! We fooled you again. Remember we're not to blame, it's those trial lawyers! The ones trying to help you! Oops sorry I wasn't supposed to remind you. We're your good neighbor; you know the one's you're in good hands with! Smile! Bigger ka-ching!
Sorry, when it comes to the insurance industry I love being sarcastic. A lady wrote asking me if the insurance adjuster can unilaterally assign her 50% fault for the accident even though she was not ticketed and the other driver received a citation for failing to yield the right-of-way. The adjuster believes a driver is automatically at fault, no matter what, and he deducts 50% from the property damage. My advice is pretty straightforward and simple. He's trying to delay paying you. Can you say ka-ching?
Today let's talk about the American styled insurance that protects the float by promoting delay. When you're in an accident you need to know how to protect your claim. Because if you don't protect your claim by keeping the facts straight, you allow the adjuster to promote the float through their delaying a fair resolution. You may be honest, but don't be dumb and allow the adjuster to maladjust your case.
Who in Iowa goes to a parade to be stampeded by horses?
The Fourth of July parade in Iowa’s Bellevue was upended when runaway horses trampled 24 people, killing one and injuring the other 23. It is said to have to do with the bridle of one horse rubbing another. The driver lost control and the rest is history.
Related media coverage:
- Caught on Tape: Horses' Rampage at Parade Kills 1, Injures Others - Chicago Tribune
- July 4th Horse Stampede Saddens Iowa - Injury Board Blog Network: St. Cloud, MN
They will loudly proclaim that no one should sue! No way, no how; after all that would be un-American! Wouldn't it?
Well that’s exactly what I’m going to suggest. After all who considers going to a parade to get killed or maimed by a stampede of horses? Hell, no one does. To those who say horses do unexpected things I say, so what, who cares and what difference does it make that a horse acts without reason? The object that acted without control was entered into a parade and within a few feet of people sitting in lawn chairs. And, it was predictable.
Think this is the first time horses have stampeded the crowd at a parade?
