Attorney Blog

More Medical Malpractice Occurs Than Previously Reported

Wed, 18 Jan 2012 08:00:00 EST

There has been widespread claims by politicians and the healthcare community that there is a medical malpractice lawsuit crisis. Some new studies prove that the crisis is that medical malpractice occurs much more often than ever believed previously. On January 9, 2012, the Inspector General of the United States Department of Health and Human Services determined that more than 80% of medical errors occuring in hospitals go unreported. Those medical errors include the wrong drug being given to patients, hospital-acquired infections, as well as deaths caused by hospital errors. So, 80% of hospital errors go unreported! Thus, 80% of the patients that are the victims hospital errors are never told. If they are never told, you can assume that most of those patients never gile a medical malpractice lawsuit. So, where is the crisis?

The Center for Disease Control reports that nearly 100,000 people die each year from hospital-acquired infections alone! That is the crisis. Those studies are not alone. In April, 2011 a study published in Health Affairs shows that as many as 1/3 of hospital visits leads to hospital-related injuries. In other words, one out of every three times a hospital is visited by a patient, a hospital-related injury will occur on a patient-- 1 in 3!!! That means that if you, your spouse and your child are involved in an automobile accident and are taken to the hospital, you can expect that at least one of you will suffer a hospital-related injury. Where is the crisis? It is clear that the crisis doesn't occur in the courthouse. The crisis is the fact that preventable injuries are occurring at an alarming rate in our hospitals. We should not be trying to change our laws to prevent innocent injured victims of hospital errors from going to court to seek compensation for those injuries. We should be looking at ways to prevent those avoidable injuries in hospitals. If that happens, there would be no lawsuit and no innocent injured victim. I think we now know where the true crisis is.

Casey Anthony & Jamie Leigh Jones Verdicts: Was Justice Served?

Thu, 14 Jul 2011 08:00:00 EST

By now, everyone is aware that Casey Anthony was acquitted of murder and child abuse charges. Casey Anthony was charged with murdering her daughter, Caylee Anthony. A Florida jury returned a verdict of not guilty on both the murder and child abuse charges.

Jamie Leigh Jones worked for Halliburton/KBR, a contractor for the federal government, when, according to Jones, she was raped and sodomized by her co-workers in Iraq. Halliburton tried to avoid going to trial by claiming a mandatory arbitration clause in her employment contract prevented her from filing a lawsuit. Eventually, the United States Court of Appeals for the Fifth Circuit held that Jones would have her day in court. Jones' case finally went to trial and resulted in a verdict for the defense.

Both of those cases resulted in outcry from the public. People just could not understand how a jury could have let Casey Anthony go free on the murder charge. People also could not understand how a jury could have ruled against Jones when she claimed she was raped and sodomized by her co-workers. What has gone wrong with the jury system, many ask. the answer is simple: the jury system WORKED in both cases. Let's analyze both cases.

Casey Anthony Case

This was a criminal case where the burden of proof was on the State of Florida to prove beyond a reasonable doubt each of the elements of the crime of murder and the crime of child abuse. The jury determined that the government had not proven each element of the crimes charged. Therefore, the jury had no choice but to acquit her. The jury did not find that she didn't kill Caylee. The jury did not find that she didn't abuse Caylee. That was not the jury's job. The jury simply found that the government had not proven its case beyond a reasonable doubt.

Jamie Leigh Jones

This was a civil case. Jones was required to prove each element of her case by a preponderance of the evidence. That is a lesser burden than the burden in a criminal case. The jury did not find that Jones was not raped. The jury did not find that Jones was not sodomized. That was not the jury's job. The jury simply found that Jones had not proven her case by a preponderance of the evidence.

Where is the justice?

We have to remember that in Casey Anthony's trial, there are only twelve people in the entire world that heard all of the evidence that the judge allowed in the case and heard none of the evidence (or news commentary) that was not allowed into evidence. Those twelve people are the only ones, therefore, that were in a position to judge the case as the law required. No other individual (with the exception of the alternate jurors who agreed with the twelve jurors) can claim that they hear all that was supposed to be heard and did not hear anything that was not supposed to be heard. Those twelve unanimously agreed that only one verdict was the correct verdict under the law. They rendered that verdict. Thus, justice was served as the rule of law was upheld.

So too in Jones' trial. We may not agree with the outcome. We may not like the outcome. But none of us can say we heard all of the evidence that was admitted and none of the evidence that was excluded and none of the news commentary that was not a part of the trial. Only Jones' jury had that unique opportunity. That jury rendered its verdict and justice was served there as well.

The system worked because the system was designed to insure that none of us, whether a defendant in a criminal trial or a defendant in a civil trial, should be judged by innuendo, rumors, news commentary, etc. We should be judged by our peers--by a jury--the only ones that get to hear all the proper evidence but don't hear what is not proper evidence. We have the best judicial system in the world. It's not perfect. But it is the best that mankind has ever devised.

Medicare Liens Are Dangerous and Automatic--Beware!

Tue, 17 May 2011 08:00:00 EST

Medicare liens may automatically attach to your auto accident insurance claim without your knowing it! If your medical bills are being paid by Medicare, the government has an automatic lien on your settlement. But what if you are not on Medicare? Even if you are not on Medicare, the government may have an automatic lien on your claim. There are various ways that a federal government automatic Medicare lien can attach to you claim even when you are not currently on Medicare and even though none of your medical bills have been paid by Medicare.

Neither Medicare, nor any agency of the federal government, is required to notify you of a Medicare lien. It is automatic. The law says that you are expected to know when a Medicare lien applies. As they say, "Ignorance is no excuse!" Therefore, if you settle your automobile accident case and do not satisfy a Medicare lien, the federal government can come after your assets to not only collect the lien amount, but to also collect penalties!

In addition, if a Medicare lien attaches to your case, it not only requires you to reimburse Medicare for the bills it paid, but also may require you to create a set aside account to pay for your future medical bills. Failure to create a required set aside account could result in your loosing Medicare benefits.

Therefore, you should always verify whether a Medicare lien applies to your case. An experienced Oklahoma personal injury attorney should be able to explain whether a Medicare lien attaches to your case.

U.S. Senators introduce bill to protect consumers from binding arbitration!

Tue, 17 May 2011 08:00:00 EST

United States Senators have introduced a bill that will help protect consumers from abusive mandatory arbitration clauses. These horrible clauses are put in fine print on contracts dealing with new and used car sales (as well as a number of other consumer transactions such as credit cards).

What follows is the press release issued by the National Association of Consumer Advocates. It explains what some legislators want to do to protect you from getting ripped off. Please read it and then write your senator or representative and tell them that you want them to vote FOR the Arbitration Fairness Act so your legal rights can still be protected:

Sens. Franken, Blumenthal, Rep. Hank Johnson Introduce Legislation to Protect Legal Rights of Consumers

Bill Would Remedy Supreme Court Ruling, Restore Consumers’ Rights to Justice Through Courts

WASHINGTON, D.C. [05/17/11]—Today during a press conference, U.S. Sens. Al Franken (D-Minn.) and Richard Blumenthal (D-Conn.), and U.S. Rep. Hank Johnson (D-Ga.) announced the introduction of legislation that would restoreconsumers’ rights to seek justice through the courts. The Arbitration Fairness Act would eliminate forced arbitration clauses in employment, consumer, and civil rights cases, and would allow consumers and workers to choose arbitration after a dispute occurred.

“Workers and consumers should never be forced to give up their rights to get hired for a job, or to get a cell phone,” said Sen. Franken. “I’ve introduced the Arbitration Fairness Act to ensure that workers and consumers have the right to choose arbitration over litigation, instead of being forced into it by corporations.”

"Consumers fighting for fundamental rights against giant corporations deserve their day in court," said Sen. Blumenthal. "This new law would protect countless consumers in Connecticut and around the country from powerful companies that take advantage of them. When individuals have legitimate claims against big corporate interests, they have the right to a level playing field. "

“Forced arbitration clauses undermine our indelible Constitutional right to take our disputes to Court,” said Rep. Johnson. “They benefit powerful business interests at the expense of American consumers and workers. These bills are designed to defend our rights and to re-empower consumers.”

In AT&T v. Concepcion, consumers brought a claim against AT&T for false advertising. However, because the value of their case was only $30, their case was consolidated into a class action. AT&T sought to block the lawsuit by pointing to the mandatory arbitration clause in the service contract but lower courts applying state law rightly invalidated the arbitration clause because it banned class actions entirely.

In its 5-4 decision, the Supreme Court overturned these lower court decisions which sought to protect consumers. The majority of the Court held that theFederal Arbitration Act (FAA) barred state courts from protecting consumers from these arbitration clauses. However, the FAA was originally passed to ensure that the courts enforced commercial arbitration agreements between two companies, not between companies and consumers. The Supreme Court’s expanded interpretation of the FAA allows companies to insulate themselves from liability when they defraud a large number of customers of a relatively small amount of money.

What the Arbitration Fairness Act Does:

Restores the original intent of the FAA by clarifying the scope of its application.
Amends the FAA by adding a new chapter invalidating agreements that require the arbitration of employment, consumer, or civil rights disputes made before the dispute arises.
Restores the rights of workers and consumers to seek justice in our courts.
Ensures transparency in civil litigation.
Protects the integrity of the Civil Rights Act, the Equal Pay Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act, among others.

A longtime advocate for consumers and workers in cases of forced arbitration, in 2009 Sen. Franken passed legislation with bipartisan support that restricts funding to defense contractors who commit employees to mandatory binding arbitration in the case of sexual assault and other civil rights violations. Rep. Johnson, a longtime champion of workers and consumer rights, first introduced the Arbitration Fairness Act in 2007.

At today’s press conference, Sens. Franken and Blumenthal and Rep. Johnson were joined by Deepak Gupta, an attorney with Public Citizen who argued on behalf of consumers in the AT&T v. Concepcion case before the Supreme Court,Hassan Zavareei, an attorney with Tycko & Zavareei LLP, and Nancy Zirkin, the Executive Vice President for Policy at the Leadership Conference on Civil and Human Rights.

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Contact your Senator and Representative today and tell them to vote FOR the Arbitration Fairness Act!!!