August 2011 Archives

Cerebral palsy is a general term used to describe a non-progressive injury to the brain of the baby which has long term consequences throughout the life of the individual.  These injuries usually occur as a result of a lack of adequate oxygen or blood flow to the brain of the baby during the labor and delivery process, and are often associated with the failure to recognize that the baby is in distress during the labor and proceed to a prompt and emergency caesarean section.  

When these kinds of problems occur during labor and delivery and when the baby is later diagnosed with cerebral palsy, these are often the primary areas to investigate in any medical malpractice case involving cerebral palsy.

Although there is often no specific clearly defined cause as the determining factor responsible for cerebral palsy, it is generally agreed that a lack of oxygen to the brain, known as hypoxia, a severe lack of oxygen to the body, known as asphyxia, central nervous system infections in the mother before birth or during birth, premature delivery, or birth trauma, are the likely causes.

Most often, the symptoms associated with cerebral palsy will present themselves by the time the child is 3 years old, although early symptoms may be noticed by the time the child reaches 6 months of age.  Symptoms of cerebral palsy include developmental delays, trembling of the arms and legs, involuntary muscle movement, low muscle tone, dragging a leg or foot when walking, abnormal posture, seizures, abnormal reflexes, abnormalities in muscles or reflexes on one side of the body.

Doctors may initially be reluctant to label these signs as cerebral palsy, as some of these symptoms may go away over time, or the body and brain of the child may even heal itself.  This presents the family of a potential cerebral palsy child a problem if medical malpractice is the case, and the family decides to file a lawsuit against the hospital or doctor, as the statute of limitations reduces the amount of time an injured party can initiate a lawsuit.  Therefore, if you suspect your child may have cerebral palsy and may be the victim of medical malpractice, you should immediately consult with a birth injury child attorney specialist such as Dr. Bruce G. Fagel, who specializes in birth injuries, including cerebral palsy. If your child has cerebral palsy, you may require a lifetime of medical care for your child.

A birth injury is one of the most devastating events that can happen to any family.  There are several types of birth injuries, the most serious of which are injuries to the brain of the baby as a result of lack of oxygen or sufficient blood flow to the brain during the labor and delivery process.  Often times these are preventable injuries, which result, because of the delay in recognizing that there is stress in the fetus, and moving promptly to a caesarean section, also known as a C-section.  

There are other types of injuries that can occur during labor and delivery as a result of trauma or infection, or sometimes the combination thereof, which can result in a more devastating injury.  All these things have to be evaluated by an experienced trial attorney during the course of any medical malpractice case involving a birth injury, in order to successfully prove that the doctors, nurses, or hospitals are responsible for the injury to the baby. A child attorney, specializing in birth injuries, is a critical line of defense for the victims of medical malpractice involving a birth injury.

Hospitals use a fetal heart rate monitor, to monitor the condition of the baby during labor and delivery.  Many birth injuries occur because the doctors or nurses fail to correctly read the information from the monitor, notify the doctors of a problem, or take action at the proper time.

Birth injuries resulting from medical malpractice may include:

Cerebral Palsy, which results from a lack of oxygen to the brain of the baby during labor and/or after delivery.  

Mental Retardation, which is the legal and medical term referring to individuals with below-normal brain function.

Erb's Palsy, also referred to as Klumke's palsy and Brachial Plexus Paralysis, which leads to paralysis, loss of muscle control or feeling in hands and arms, facial paralysis, an inability to sit up, crawl, or use the arms or hands.

High blood pressure, pregnancy-induced hypertension, or eclampsia, not properly monitored, can cause tragic outcomes to both the woman and child.

Under our federal constitution, each of the 50 states have their own laws which pertains to various subjects that are particular to that state.  These laws include all types of personal injury claims of which medical malpractice is one subset.  The purpose of the statute of limitations as enacted by the various state legislatures is to try to have claims that are brought before the court in a timely matter, because people's memories pass and evidence can get lost, so it was initially designed to speed up the process.

However, because every state has a different statute of limitations for different types of cases, occasionally, people will have exceeded the time frame to file, because they realized too late that they may have a case.  In situations like this, it is important to be aware of the exceptions to the statute of limitations, which can be used in some states for special circumstances.  If a medical malpractice victim meets the requirements of these exceptions, they may be able to get around the statute of limitations in order to file a claim.  

Many states also have special administrator rules for county hospitals or other types of administrative agencies, which actually lowers the time available for victims of medical malpractice to file a claim.  This may require the medical malpractice victim to file the case within six months, even though the actual statute of limitations may be a year, two years, or longer in that state.  These rules are very specific.  All trial attorneys have to be aware of the statute of limitations that apply to a particular state, as the statute of limitations sets a maximum time after an event that legal proceedings based on that event may take place.

When it comes to the statute of limitations for a medical malpractice lawsuit, the law requires the injured party to file a lawsuit within a specific time period.  Failure to file a lawsuit or take the required legal action, such as filing a malpractice or negligence claim, with the proper government agency, could eliminate the injured parties' legal right to recover damages.  

An example of statute of limitations, would be the state of California, whereby the injured party must start legal action within one year from the date the patient discovers or reasonably should have discovered the injury.  There are certain circumstances where the deadline for filing may be extended.  Visit statute of limitations for more information.

How Much will it Cost to Pursue a Medical Malpractice Case?

Medical malpractice cases are often some of the most expensive types of civil damages cases, because they require the use of various experts, including physicians to review medical records, and testify in court.  This enormous financial expenditure makes it nearly impossible for the average medical malpractice victim to pursue a medical malpractice case by himself or herself.

Clients often ask us at the Law Offices of Bruce G. Fagel & Associates how much pursuing a medical malpractice case will cost them.  We do not charge the clients of our firm any money to review a medical malpractice case.  Dr. Bruce Fagel, who is both a licensed medical doctor and a medical malpractice attorney, personally reviews the medical records.  If we determine the medical malpractice case will likely settle or win through a trial, we do not charge our clients to pursue the case, and this includes representing them in court if the case does not settle.  Victims of medical malpractice have enough to worry about, therefore, removing the risk and financial burden related to pursuing a medical malpractice case, allows them to focus on what they need to do, taking care of themselves or their loved ones.

Medical malpractice is medical negligence by an act or the failure to perform an act, in which the care deviates from accepted standards of practice in the medical community and causes injury or death to the patient. Medical malpractice is a part of the civil tort law.  Medical malpractice covers claims for damages that are monetary in nature, based upon negligent care that is given by doctors or nurses in a hospital or medical facility, requiring proof that there was negligent care that caused the injury or death.  

Having practiced emergency medicine for 10 years, gives Dr. Fagel a keen understanding of the medical field.  This unique experience of being both a licensed medical doctor and a leading medical malpractice attorney, provides Dr. Fagel with the tools necessary to represent the victims of medical malpractice.  

Medical Errors Happen More Often than You May Think

Hospitals can sometimes be the most dangerous places to be if you are sick or injured.  Unfortunately, statistics show that almost every patient that goes into a hospital suffers from some type of medical error at least once during their hospitalization.  While most of the times, these errors result in little or no injury and certainly not a permanent or disabling injury.  Sometimes however, the error can be devastating and have life-long consequences.  Many of these errors occur after surgery where someone who has an uncomplicated or an elective surgical procedure is not properly monitored in the post anesthesia care unit (PACU), or on the medical surgical floor after they have recovered from anesthesia.  In many situations, we find errors in hospitals that are simple and result from communication mishaps between doctors and nurses. When these types of problems occur and someone dies or is severely injured, we need to pursue these cases to their full fruition in order to obtain the information and the results that are necessary for the victims and their families.

After practicing emergency medicine for over 10 years, Dr. Bruce G. Fagel, who is both a licensed medical doctor and a medical malpractice attorney, experienced a lot of situations over the course of 10 years that happened from the arrival of a patient in the emergency room, to being called to the floor during emergencies, consultations with other doctors, etc.  

Having seen a lot of events that happened in the hospitals and emergency rooms and being on hospital committees, Dr. Fagel got a first-hand look at how hospital policies, procedures, and medical records could be utilized to hide information, rather than explain things the way they really occurred.  Dr. Fagel also got a first-hand look at how doctors respond to different circumstances, how the standard of care can be breached and covered over, because of the complexity of medicine.  

Dr. Fagel's unique background and experience has made him the ideal medical malpractice lawyer, as his extensive medical knowledge and hands-on experience provides him with an unparalleled advantage for protecting victims of medical malpractice, both in the courtroom and in settlement proceedings.

Dr. Bruce G. Fagel, a leading medical malpractice lawyer, who is also a licensed medical doctor, explains in today's blog, what basic requirements must be met for his law firm to take on a medical malpractice case.

The first area that must be addressed with a medical malpractice case is to prove three issues:  That negligence was caused by at least one medical professional or healthcare provider.  The next issue is the negligence caused the injury or death.  The final issue is the plaintiff must prove that the damages that were caused resulted from the negligence.

The most important decision to make with any medical malpractice case, is the initial determination whether the case can be tried in front of a jury or settled prior to trial, or if it will not meet the threshold of either scenario.  Most of the evidence that is critical to the case will be located in the medical records.  Therefore, a careful analysis of the medical records is very important.

As both a physician and an attorney, Dr. Bruce G. Fagel has the experience to analyze and interpret medical records to see if there is evidence of negligence; medical care that is below an acceptable standard of care for physicians in the community or hospitals, and is that care the cause of the injury or death.  Examining the medical records is often a determination that is made very early in the case, regardless of what the physicians are telling the patient or family.  In fact, proving negligence in a medical malpractice case will require analyzing the facts and using expert testimony to demonstrate the medical care was below an acceptable level.

Once Dr. Fagel determines if the negligent care was a cause of the injury or death, his law firm can pursue these types of cases to a successful conclusion.

Explain the mediation process to your client and keep them involved throughout the process.

Few plaintiffs have any idea how mediation works. They often think that they will have to talk to the mediator or sit in the same room with the defendants.

Before any offer is communicated by the mediator, you need to explain both the mediation process and the fact that the first offer by the defense may be far from the real value of the case or the eventual settlement value.

Many plaintiffs think that mediation is simply a method for the defense to admit their guilt and pay damages to the plaintiff, and they are often offended by the opening offer.

Some mediators prefer to discuss any offers or issues affecting liability directly with the plaintiff's attorney and then leave the attorney to talk to the plaintiff. Other mediators will discuss both offers and other issues directly with the plaintiff and attorney.

Which method works best for each case should be more dependent on the receptiveness of the plaintiff to separate discussions between the mediator and the attorney.

Be prepared to continue negotiations if the case does not settle at the first mediation.

Successful mediation of a complex medical malpractice case should be viewed as a process rather than as a onetime event. While many cases can be settled in one session, there are a variety of reasons why they cannot.

But even when a case does not settle, the mediation should be used to narrow the issues and determine what can be done to make a second session worthwhile. Where time prior to trial permits a second mediation session, it should be scheduled, if possible, before leaving the mediation.

But there should also be a specific plan that is agreed upon by both sides about the issues or discovery that must be resolved before returning to mediation.

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This an excerpt of an article written by medical malpractice attorney Dr. Bruce Fagel, which originally appeared in the March 2011 issue of Plaintiff Magazine

Use the mediator to assist, but do not expect him/her to argue your case to the defense.

There is a difference between providing a mediator with the facts and/or counter-arguments for the defense claims and asking or expecting the mediator to make your case to the defense.

While the mediator may have an opinion about the value of the case based on his review of the plaintiff and defense mediation briefs, you should not ask the mediator to place his value on the case. When a mediator gives his opinion about what amount should settle the case, it is rarely helpful to either side early in the mediation.

The only time a mediator should give a value on the case is if the two sides make sufficient progress but are still separated by a significant but negotiable amount. In these circumstances, a mediator's proposal for an amount between the two sides may be required as a final step, and often requires the defense to obtain more money than the authority they brought to the mediation.

However, in such circumstances, a mediator's proposal allows the defense to focus on an amount that they know will settle the case without further negotiation.

Be prepared to present and discuss your case directly to the defense attorneys and claims representatives.

While most mediators prefer to not have the parties or counsel meet with each other or to have any open session discussions, if the mediation appears to be at an impasse for any reason, it may be helpful for the defense to see and hear your direct presentation of the case and honest assessment of how the case will play out in front of a jury.

When such occurs, the defense attorneys and insurance claims representatives, or hospital risk managers will rarely directly respond or engage in any open discussion, but such a presentation may provide an additional opportunity for the mediator to give his interpretation of your case after you have made such a direction presentation to the defense.

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This an excerpt of an article written by medical malpractice attorney Dr. Bruce Fagel, which originally appeared in the March 2011 issue of Plaintiff Magazine

Make a reasonable demand, either as a CCP Section 998 demand or a demand based on the reasonable value of the case.

While the definition of reasonable is highly case specific, the demand should take into account multiple factors, not just the damages that can be "placed on the blackboard" by the plaintiff's economist.

Factors including the venue, how the plaintiffs will play out in court versus the defendants, the specific medical complexities of the case, and other factors that may affect the jury verdict. It is much easier for a defense insurance carrier to ignore an unreasonable demand rather than a demand that is reasonable. Since non-economic damages are limited to $250,000, the spread between plaintiff's economic damages and the defense calculations usually depend more on the liability issues in the case, rather than the cost for medical care or interest and inflation rates.

However, in major injury cases, the largest component of damages depends on the hours of care needed and the level of such care. An eight-hour CNA is less than 20 percent of the cost of a 24-hour LVN. In such cases, the mediation should focus on the reasonable level of care before discussing specific monetary offers.

The other issue that is critical in any significant damage case is the probable life expectancy. Even though plaintiff's experts may be prepared to testify to a significantly longer life expectancy than the defense experts, the defendants can by law have any judgment reduced to periodic payments, hence the annuity cost is the true measure of the defendant's liability exposure.

The cost of the least expensive annuity from an A or A+ rated annuity company is usually more than what the defense economist would calculate based on the defense expert's opinion on life expectancy. Even though the defense can claim to have expert testimony on life expectancy that would justify a very low offer, when the factor that is based on life expectancy is changed to the annuity age-rating equivalent, the value of the case based on the defense life-care plan can become more realistic.

Acknowledge the weaknesses of your case to the mediator.

In any medical malpractice case, there are both strengths and weaknesses. If the mediation focuses on the weaknesses of plaintiff's case, there will never be a reasonable offer. If you acknowledge the weaknesses of your case to the mediator early in the mediation and offer reasonable refutations and counter-arguments, it will be easier to then focus the mediation on the strengths of the case.

It is also important that your client understand the potential weaknesses of the case, so that any offer by the defense can be placed into the proper context of what may be considered as reasonable.

While few plaintiffs want to proceed to trial and would prefer a settlement prior to trial, they need to understand that a trial may be necessary if the case does not settle, and they need to be willing to continue the case if the defense does not provide a reasonable settlement offer.

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This an excerpt of an article written by medical malpractice attorney Dr. Bruce Fagel, which originally appeared in the March 2011 issue of Plaintiff Magazine

Decide on your mediation strategy before the mediation and share this strategy with the mediator at the start of the mediation.

In cases involving multiple defendants, the dynamics between the various defendants can be as, or even more, important than the facts and expert opinions in the case. Not infrequently, the mediation becomes the first opportunity for the different defense counsel and their claims representatives to actually meet and talk about the case.

While the mediator probably knows the defense attorneys personally and from prior cases, he or she will still know less about the specific dynamics of the case than you will from your participating in discovery with defense counsel.

Giving the mediator a heads-up review of the players and some suggestions about how to get the discussions moving in the direction of a meaningful offer will help the mediator get the trust and confidence of the defense attorneys, which is critical to the mediation process.

Decide which defendants are the major liable defendants and which are minor players and give this analysis to the mediator. This will allow the mediator to concentrate on the major player and leave the minor players to "close a gap" if necessary.

While the mediator will usually want each defendant in a separate room, there may be reason to have some of the defendants share a room "to talk to each other." This may be especially important in those cases where the defense attorneys have not agreed upon either the value of the case or the relative liability of their clients.

It is not unusual for a defense attorney to agree to mediation and even agree that the case should be settled, only to arrive at the mediation and claim that some other defendant should pay the money.

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This an excerpt of an article written by medical malpractice attorney Dr. Bruce Fagel, which originally appeared in the March 2011 issue of Plaintiff Magazine

If there are economic damages in the case, provide documentation prior to the mediation.

In any case with significant future loss of earnings and/or future medical care expenses, the defendants' insurance carrier will usually require sufficient documentation well in advance of the mediation so that they can obtain adequate authority for any offer to settle.

If the plaintiff is alive, an "IME" must be conducted at least 45 to 60 days before the mediation, so that the defendant can use this report to evaluate their damages exposure. Most IME exams usually do not include a defense life-care planner, or if they do, the defense may not prepare an LCP report prior to the mediation.

Therefore, a plaintiff 's life care plan will usually be the only damages report that the defense will have for their own evaluation prior to the mediation. In a wrongful death case, the defense will require an economist's report for any claim for loss of earnings and/or the economic value of home services.

These reports, including any life care plan should be marked "for mediation purposes only," in case the mediation is not successful and you need to change the report for trial and still use the same damages expert.

Prepare a detailed mediation brief and send it to the defendants, and the mediator, at least one week prior to the mediation.

This brief should start with a description of the essential facts and liability issues in the case that is one page or less. By focusing the case into a mini-brief, you can demonstrate the simplicity of the case which will make it easier for a jury to understand at trial. Ultimately, any medical malpractice defendant and their insurance carrier are most concerned that a jury will actually understand the facts of the case if it goes to trial.

The brief needs to be sent to the defense in sufficient time for them to file their own brief prior to the mediation, and many defense attorneys will wait until they receive plaintiff 's brief and then use their brief to refute the facts or liability issues of the case. This will help focus the issues at the mediation and allow time for you to prepare the mediator with appropriate counter-arguments.

Oftentimes, the defense will quickly retreat from the positions stated in their brief or agree that those are no longer issues in the case.

Although many defense attorneys submit confidential briefs for mediation, unless they are willing to get past liability and discuss damages with an offer, you should ask the mediator to request that the defendant submitting a confidential brief remove the confidentiality so that the issues can be addressed and countered; otherwise, the mediation will never progress to any meaningful offer.

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This an excerpt of an article written by medical malpractice attorney Dr. Bruce Fagel, which originally appeared in the March 2011 issue of Plaintiff Magazine

Successful mediation of a complex medical negligence case requires a thorough understanding about both the facts of the case and the mediation process.

The following 10 suggestions will help improve the probability of a successful resolution of a case at mediation.

If liability is a significant issue in the case, offer plaintiff's liability experts for deposition prior to the mediation.

Since the circumstances that lead to mediation are so varied, the fact that any defendant in a medical negligence case agrees to come to mediation is not enough to lead to a settlement offer.

Nothing will end a mediation session more quickly than a defendant who does not recognize any liability risk at trial. Since there are often several months between an agreement, or Court order, to mediate a case and the date of the mediation, providing plaintiff 's main liability experts for deposition by the defense will help focus the liability issues and provide a basis for the defense counsel to seek some level of authority from the insurance carrier.

It will also provide a basis for obtaining consent to settle from the physician, if such consent becomes an issue prior to mediation. At the time a mediation session is scheduled, you should specifically inquire if the defendants will be prepared to engage in a good faith effort to settle the case without expert depositions.

If the defendants are aware of their liability, plaintiff 's experts' depositions are usually not needed prior to mediation. But if the defense attorney needs more information to obtain consent or authority to settle, then you should schedule the appropriate plaintiff expert depositions prior to the mediation.

Continue following our medical malpractice blog for other suggestions in mediating medical malpractice cases.

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This an excerpt of an article written by medical malpractice attorney Dr. Bruce Fagel, which originally appeared in the April 2011 issue of Plaintiff Magazine.

Unfortunately, the jury instructions play into the defense use of experts to defend their case. CACI 505 - Success not required, and CACI 506 - Alternative Methods of Care allow the defense to argue that nothing that the defendants did or did not do mattered much in relation to the outcome.

But, in reality, these and other jury instructions simply allow a jury that has reached a conclusion to justify their decision if they find for the defense. Just as the unofficial standard on appeal involves some consideration about who should have won the case, the standard for the jury involves who they think should win, and then they fill in the details.

In any case where the jury finds for the defense, the jury will agree with the defense experts on negligence and/or causation. But in any case where the jury finds for the plaintiff, the jury will find the plaintiff 's experts more credible.

In such a situation, the plaintiff 's attorney need only explain why the jury instructions allow the jury to find for the plaintiff. In every medical malpractice case, the jury will try to determine the facts for themselves, and only then will they consider the expert testimony that coincides or agrees with their interpretation of the facts.

If the plaintiff 's attorney can keep the case focused on the facts of the case, especially factual disputes, and allow the medicine to follow the facts rather than the other way around, then much of the defense mantra that "the medicine controls the case," can be blunted or even reversed.

At trial, most jurors believe that paid experts will say anything because they are being paid for their opinions, especially in cases where the experts' opinions are diametrically opposed to each other. It makes no sense to a juror or anyone that science can lead to two opposite opinions from the same facts.

As the jury is told by the Court, the value of any expert's opinion depends on the facts upon which the opinion is based. If the plaintiff can control the facts of the case, the only expert opinion that will matter is the one that is based on the plaintiff 's facts.

This an excerpt of an article written by medical malpractice attorney Dr. Bruce Fagel, which originally appeared in the March 2011 issue of Plaintiff Magazine

Trial is perhaps the most difficult time for a plaintiffs' attorney in dealing with experts in medical-malpractice cases. Starting with jury selection, the defense will emphasize that medicine is as much art as science, which implies that there is no scientific standard of care, just medical judgment.

At the same time, the defense will emphasize the scientific literature (through their experts) that supports their theory on causation. From the outset of the trial, the jury needs to understand that medicine is very much science and that there are recognized standards of care, and that the facts of the case determine whether care is within such standards.

With regard to causation, most jurors will draw their own logical conclusions about the relationship between negligent care and injury or death, since they will not be able to comprehend the often obtuse defense theories on causation.

A plaintiff will never be able to succeed on the issue of causation without first showing more than sufficient evidence of negligence, which flows from the facts of the case, not the medicine.

For the presentation of evidence, most plaintiffs' attorneys use either the defendants or their experts to present the facts of the case. Few cases and fewer plaintiffs are appropriate to present the facts to the jury. But in almost any medical malpractice case that involves either hospital negligence or physician negligence that occurred in a hospital setting, one often overlooked group of witnesses can be very effective at trial.

These are charge nurses, supervisors, or even hospital administrators who are rarely involved in the actual case. These witnesses are in the best position to place care into context and will often be forced to admit that care did not comply with hospital policies.

While such witnesses cannot provide causation testimony, their testimony on hospital policies and procedures in relation to the facts of the case will often trump medical expert testimony on the standard of care, in the eyes of the jurors.

These witnesses should be deposed during discovery and then listed as non-retained experts so that their testimony can be presented at trial.

This an excerpt of an article written by medical malpractice attorney Dr. Bruce Fagel, which originally appeared in the March 2011 issue of Plaintiff Magazine