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Today’s Video Think Piece is brought to you by partners Neal Brown and Nicole Deford. Please click the image to launch the video. If you would like read the full transcript, scroll down.

Neal Brown: Welcome to another Waranch and Brown’s Video Think Piece. I’m here with my partner Nicole Deford, and we’d like to talk to you about your biggest exposure, biggest dollar cases, the birth injury cases. We understand they must be handled efficiently and aggressively. So how do we do that here at Waranch and Brown’s that’s different than others?

Nicole Deford: You know first and foremost we know the medicine. We know how to read and interpret the medical records, the fetal monitoring strips, we can tell you the difference between metabolic and respiratory acidosis. We also reach out to our stable of very qualified experts who can assess the mom’s care and conditioning and the baby’s care and condition. We handle these cases efficiently beyond average reporting by advocating for weekly phone conferences with our clients, by Skype sessions even, just to make sure that no one’s in the dark, that we can together assess our best defense strategy. We try to be creative and proactive in every way. What are some of the ways that we do that?

Neal: Well one of the ways that we do, I’m not sure everyone does this, we like to depose the treaters and the case coordinators, the REM management people. We want to know the real costs of caring for this child. We want to use that data to attack the life care planner. We also want to attack the liability experts, and we want to be able to look for opportunities for Frye Reeds, Dauberts, the 20% Rule, anything to be aggressive and attacking experts that come up with these BS opinions. Our job is to try to win this case, whether that means win at trial or win at settlement, we want you to come out on top.

Nicole: So if this approach sounds like it can help ease the pain of your birth injury case, give us a call at (410) 821-3500, or contact us. We are here to help.

Neal: Thank you.

Important news for anyone whose practice is privately insured: Recent increases in the non-economic damages cap in medical malpractice cases could put you at risk of not having enough insurance.

As we all know, the non-economic damages in Maryland medical malpractice cases are “capped” by tort reform laws. According to the statute, the limit on non-economic damages increases by $15,000 at the beginning of each year. This year, 2019, the cap for non-economic damages for medical injury increased to $815,000, and the cap for wrongful death in medical malpractice claims became $1,018,750 (for two or more beneficiaries). This marks the first time since the law was enacted in 1986 that the claimant can recover more than $1 Million in non-economic damages. This is of concern, particularly for private insureds who often have only $1M in medical malpractice insurance coverage.

While the Maryland legislature is considering changes to the cap, a prudent physician or insurer may wish to revisit and raise the limits available for medical malpractice insurance coverage. In our view, barring some legislative relief, these rates will only continue to increase.

Bottom Line: This “cap” increase can result in personal exposure to health care providers, especially private insureds who often have only $1M in coverage facing wrongful death claims. To limit their exposure, we suggest raising limits available for medical malpractice coverage.

If you have any questions about this or any other issue concerning the non-economic “cap,” please feel free to contact us.

Mr. Smith developed a decubitus ulcer while hospitalized.  The first witness plaintiff wants to depose is Nurse Brown.  Why?  Because plaintiffs’ lawyers think nurses give them the most useful/damaging testimony.

Nurses are thought to be good witnesses for plaintiffs for many reasons.  First, they are not familiar with defending their care.  Second, they learn: “if it isn’t written, it didn’t happen,” and tend to equate lack of documentation to negligence.  And third, nurses are inclined to be patient advocates above all other considerations.How can you help your nurses do well at deposition?

Preparation of nurse witnesses is very different than that of physicians.  They often require more time to establish trust and reassurance that the process can be fair.  They must understand they will not lose their licenses; they are part of the team; and will not be financially responsible.  Nurses must also be given specific suggestions on how to defend their care and documentation, and recognize that care only needs to be “reasonable,” not perfect.

Remember, nurses can help your case; they often just require a bit more time and a different approach. That’s our prescription!

A powerful strategy:

Worried about a big damage award against your high profile defendant doctor?  Do you fear a multimillion dollar verdict and a media hailstorm to boot?  How do you protect your client and eliminate those worries?

We have a powerful strategy to share with you.  In the right case, consider stipulating to the maximum non-economic cap award before you get to trial.  Why?  If you can get that stipulation on the record, you may be able to exclude evidence of pain and suffering, and inflammatory trial testimony.  And if there’s a plaintiff’s verdict, the stipulated non-economic cap is hardly newsworthy.  Most likely, it will not be reported on the front page of the paper.

With these concerns behind you, your physician can focus on defending the medicine and winning the case.  Even in the event of a plaintiff’s verdict, a stipulation to the full non-economic cap may be just “what the doctor ordered.”

Is there more we can do?

Waranch & Brown, LLC is committed to sharing strategies and tactics that can help you do what you do, better.

Bifurcate.

We’ve all had a case where Plaintiff claims catastrophic, lifetime injuries.  In a recent case, Plaintiff designated 7 damage experts to opine he was permanently disabled and required constant supervision.  The defense identified 7 experts to counter each issue – a total of 14 damage experts!

In the midst of endless discovery, it became obvious that none of this was relevant until a fact-finder first determined our client breached the standard of care, allegedly causing these tragic injuries.  So why should a jury hear any disputed damage testimony until liability is decided?  They shouldn’t.

It used to be that motions to bifurcate were denied as a matter of course.  Now, we believe the “times are a changin’.”  Here’s why:

1)      The judicial efficiency argument is now considered more seriously by our overburdened court system; and,

2)      Bifurcation can be in Plaintiff’s financial interest, in order to avoid, or at least defer, expensive discovery (i.e., 14 experts testifying at deposition and trial).

So consider your case.  Does it have severable damage issues?  Separate witnesses?  Emotional testimony on damages wholly unrelated to liability?  Can the damage portion cut the trial in half or more?

Fight back.  Bifurcate.  Don’t let the jury hear the damage cart before the liability horse.