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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.

We are often asked at deposition whether the defendant physician is being offered as “an expert or a fact witness.” The distinction is important and can affect discovery, litigation, and even the outcome of the case. How do you know which one is the right choice?

Let’s take a quick look at the two roles to help you decide:

In the role of fact witness, treating physicians testify to the facts and circumstances surrounding their own treatment of the patient. Generally, they do not offer a medical opinion beyond their own treatment and personal observations of the care provided. They usually refrain from rendering opinions on causation.

On the other hand, as an expert witness, your physician can offer additional scientific opinions on liability and causation, cite to research supporting his/her position, and review and comment on additional materials that can help your case.

Use caution here. Offering your physician in litigation “as an expert” is not without risk. For example, education, training (did he fail the boards?), other lawsuits and extraneous matters may become relevant. In addition, like all experts, the evidentiary standards regarding the admissibility of testimony will apply and the scope of cross examination may become much broader.

So, how do we know when to designate the defendant doctor as an expert? Consider whether the physician is competent, qualified, and credible, with a sound understanding of the facts; beyond those observed firsthand. In these cases, the defendant physician is usually published, aware of current research and standards, and excelled academically in the field. Nevertheless, the testimony of the treating physician should always be supplemented with the testimony of a retained expert.

Bottom Line: Each case is unique, and we must weigh the benefits and risks of designating a defendant physician as an expert.

If you have any questions about whether your physician shouldbe an expert witness and how it may play out in your case, contact us.  We would be glad to help.

Post-trial motions can be costly for Defendant Health Care Providers in Medicare cases. Here’s an example:

A Circuit Court medical malpractice case involving a Medicare patient goes to trial with a small verdict for the Plaintiffs. While not happy about the outcome, the hospital has no trouble cutting a check for the judgment amount. First, however, you file a motion to reduce the medical bills awarded to “bills paid.”

Three months later, the court grants your motion and the judgment is reduced. As your hospital is preparing to pay the new reduced judgment amount, Plaintiffs file suit against the hospital in Federal Court pursuant to the Medicare Secondary Payer Act. What???

The Plaintiffs claim the hospital “failed” to reimburse timely Medicare for the conditional payments and, thus, is liable for double damages pursuant to 42 U.S.C. § 1395y(b)(3)(A).

The hospital pays the revised Circuit Court judgment against it three days after suit is filed in Federal Court, but now you have to deal with this federal matter! Do the Plaintiffs have standing (what is their “injury in fact?”)? Is the case rendered moot by payment of the judgment? What does “fail” to pay really mean? There are lots of arguments against Plaintiffs’ position, but even if you win in motions practice, it will cost you time and money.

So avoid the headache. Because the statute and case law are unclear as to precisely when “double damages” are available, and who is entitled to recover them, work with your counsel ahead of time to prepare a strategy in the event of a judgment involving a Medicare lien.

If you would like to discuss this frustrating scenario, or any other legal issues involving post-judgment issues, please contact us. We are here to help!

Wishing you a Happy Holiday from your friends at Waranch & Brown!

In sincere appreciation for all you do, we are pleased to share a copy of our annual holiday eBook: Waranch & Brown’s “Top 5 Think Pieces of the Year,” which offers strategies and insights to achieve the outcomes you want, including:

• Reducing liability
• Reducing damages
• Avoiding traps
• Conserving resources
• Staying ahead of the opponent

Click here for your copy!

Our goal in sharing this information is to provide out-of-the-box thinking to help you gain greater peace of mind and sense of control with any legal defense issues you may have.

From our family to yours, have a safe and joyful holiday season!

Physicians and hospitals in Maryland depend on “cap” limits to control costs in medical malpractice cases. But they should be aware — plaintiffs are finding creative ways to add a second cap, particularly in birth cases. And it could get expensive.

Indeed, a Maryland jury recently awarded a minor plaintiff more than $20M in non-economic damages as compensation for his birth injury. But the verdict was reduced significantly to reflect a single non-economic cap. Not surprisingly, the plaintiffs’ bar is dissatisfied with the typical “single cap” in birth injury cases.

In another recent birth injury case, suit was filed on behalf of two individual plaintiffs – the minor child claimed damages relating to his Erb’s palsy (pulled too hard), and the mother claimed damages relating to her vaginal tearing (physician should have done an episiotomy). Plaintiffs “added” a cap by asserting two separate plaintiffs, each with their own separate cap for non-economic damages.

Although there is no Maryland case law directly on point, analysis of the statute and relevant case law suggests plaintiffs may have a viable argument in some circumstances.[1] The counter to their position, however, is to argue that both claims arose from the same medical injury, in compliance with the statutory requirement that the cap “shall apply in the aggregate to all claims.” The appellate courts will need to resolve this one!

Bottom Line: We anticipate having to challenge the efforts of opposing counsel to circumvent the “single cap” limitation, particularly in alleged birth injury cases.

If you have any questions about these types of claims or caps, please feel free to contact us.

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