Arizona Injury Victims Keep Getting Screwed

This is the first of a series of posts noting how Arizona injury victims keep getting screwed. The main culprit is the Arizona legislature, doing the dirty work of insurance companies and the health care lobby.

If someone in Arizona is the victim of an automobile crash, they will later be victimized by the health care providers that treated them. It does not matter if you have health insurance. If the insurance pays the provider the agreed upon rate for services, the provider can come after your injury award for the difference between what they billed the insurer and what the insurer paid. However, the providers don’t have to bill your insurer and can, instead, bill their entire amount against your award.

This creates further issues when you consider that certain types of insurers are also entitled to be repaid for amounts they pay out for injury-related care. It does not take an economist to realize that the injured victim will have to compensate the health care providers for every penny billed. On its face this seems reasonable; however, most Arizona drivers who cause crashes carry minimum insurance ($15,000). So, an injury victim who goes to the hospital for evaluation will have to pay the hospital providers approximately $6,000 from the $15,000, after already paying the hospital hundreds of dollars to obtain medical records to support the claim. After paying attorneys fees and costs, the victim is left with barely enough money to buy an Apple Macbook Pro.

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Understaffed Medical Facilities Amplify Medical Errors

If you have ever survived a huge RIF (reduction in force) at your company you know what comes next.  The surviving employees must pick up the slack and do extra work.  Your company is now understaffed.  Without enough employees to do a job, the job cannot be done properly.  This can lead to attitudes like, “this will have to do,” “this was not in my job description,” and “I can’t continue to do everything.”  Short cuts must be taken.  Work quality suffers.  Things get missed.  You are left hoping you do not make a mistake that cannot be corrected.

The health care profession is not immune to understaffing.  Understaffing occurs at hospitals and nursing homes for many reasons.  Owners often intentionally understaff their facilities, short-term and long-term, to boost profits.  Patients do not receive appropriate care.  In the hospital setting it could be health care providers missing signs and symptoms of a serious condition; in nursing homes, it could result in abuse or neglect.  Understaffing is associated with high urinary catheter use, poor skin care, poor feeding, malnutrition, dehydration, and starvation.  Overworked staff tend to rush around, sometimes intentionally skipping certain care needs.  Patients’ conditions are more likely to decline.

In an understaffed facility, expect the unexpected.  Medical errors already plague U.S. hospitals.  These medical errors are magnified and compounded when there are not enough employees to ensure proper patient care.  For instance, a nurse responsible for the postoperative care of a patient might miss subtle signs and symptoms of a respiratory compromise.  Rushing around and trying to accomplish too many things in a short period of time could lead the nurse to assume that her healthy patient will be okay, just like the many other patients before her, without focusing on the patient’s specific situation.  Prematurely discharging the patient under the assumption that things will be fine, without paying attention to the amount of narcotic medication administered, could result in the patient suffering a fatal respiratory failure after getting home.

Sadly, there is no easy way to find out if your hospital or nursing home is understaffed; however, certain tell-tale signs could suggest you need to be concerned.  For instance:

Is the nurse constantly rushing around and not taking the time to thoroughly answer your questions?
Does the nurse appear stressed or anxious?
Does the nurse appear to be cutting corners or not being thorough in her duties?
Is the patient’s condition deteriorating?

If you think understaffing caused injury to you or a loved one, you should call an experienced medical negligence attorney like the ones at Harris Powers & Cunningham (602.271.9344).

Where is the Justice???

Our founding fathers explicitly declared that trial by jury is essential to secure the liberty of man and enforce the principles of the Constitution.  Yet, efforts are underway to take this weapon away from you.

We have all heard the bad lawyer jokes, mistakenly epitomized by Shakespeare’s famous quote, “First thing we do, let’s kill all the lawyers.”  The ironic thing is that this statement was made because lawyers stood in the way of the scheme, hatched by Dick the Butcher, to enable Jack Cade to overthrow the king.  The champions of justice, protectors of the Constitution–lawyers–were a major impediment to rebellion.

Our jury system was designed to provide justice, deliver order, and insure safety by holding people accountable for their transgressions.  Many safety systems and procedures have been implemented in this country because of the work of trial lawyers.  Rules were not meant to be broken.  Needless endangerment is not a byproduct of living.  Greed is not allowed to prevail over safety.

The problem is that we have a Dick the Butcher among us–largely represented by insurance companies.  The scheme is to overthrow the justice system under the guise of “tort reform.”  People have been convinced by these insurance companies, often masked as public interest groups like the U.S. Chamber of Commerce, that our justice system is dangerous to their way of life–to the point that they are willing to give up their right to hold people accountable for their transgressions.  One way this is accomplished is by demonizing the trial lawyers (i.e., kill all the lawyers).  Our justice system is losing its power to hold people, corporations, hospitals, and insurance companies accountable for the harm they cause.  The facts of a case often take second chair to the personal attack of the injured person and their lawyer.

Through decades of well-funded mudraking, Dick the Butcher has instilled fear in the hearts and minds of Americans.  Think about it.  Why would a person be willing to limit the amount of money an injured person can receive when another has caused significant brain injuries or loss of enjoyment of life from a lost limb?  Why do judges and juries view injured persons and their lawyers with detest, but tolerate defendants and their lawyers who perjure themselves?  Rather than focus on the bad conduct of the defendant, Dick the Butcher tells Americans that the  injured person’s lawyer gets rich at the expense of our economy and health care system.  There is no evidence to support this propaganda.

As tort reformers learned from The Bronx Tale, “it is better to be feared than loved because fear lasts longer.”  Fear is a powerful tool.  By causing fear, reason and rational thought become non-existent.  Without evidence, tort reformers tell Americans that access to health care and success of the economy are threatened by greedy trial lawyers; so, juries must punish injured persons to punish trial lawyers and save America.

As my prior post demonstrates, when juries focus on the defendant’s conduct and the harm caused, they are able to ignore tort reform propaganda and return a fair verdict.  That is all trial lawyers are after–fair verdicts.  The jury system was designed to foster fair verdicts–ones not influenced by bias, prejudices, and emotion.

The dilemma is that tort reform acts primarily outside the courtroom.  Caps and limitations on actions are not enacted by well-reasoned discussion of fact-based evidence.  If you want to protect your rights, because tort reform will eventually affect you or a loved one, you need to speak up.  Contact your legislative representatives, local and federal, and tell them that enough is enough.  The only way to protect Americans is to stop pandering to insurance companies.  To ensure safety, order, and justice, we must call out Dick the Butcher and mute his efforts.

Jury Returns $5.875 Million Verdict in Medical Negligence Case

PHOENIX, ARIZONA – Shawn Cunningham, Joseph D’Aguanno, and their hard-working team at Harris, Powers & Cunningham obtained a $5.875 million verdict in a medical malpractice wrongful death case. The Maricopa County jury determined that the untimely passing of a 32-year-old wife and stay-at-home mother of two young children would not have happened but for a series of serious omissions on the part of her health care providers. The jury deliberated for six hours following a two-and-a half week trial.

The general facts are:

On the morning of March 17, 2008, the patient was rushed by ambulance to a local Emergency Department (ED) with severe abdominal pain, bloody stool, and a history of Crohn’s disease. The ED physician evaluated her and ordered a stat CT scan around 8:50 a.m. Around 11:30 a.m., the ED physician learned that the only CT tech on shift fell ill and the stat CT could not be done until the next shift, scheduled for 5 p.m. The patient’s condition continued to worsen and, around 1 p.m., the ED physician decided to have a hospitalist admit the patient to the hospital. Life-threatening surgical issues should have been high on the differential, but neither the ED physician nor the hospitalist called the on call surgeon because they believed he would not see the patient without a CT scan.

Despite receiving pain medication, the patient was in agony. Her condition continued to decline. The CT was not completed until 6:25 p.m. and the results were not communicated to the hospitalist until 7:15 p.m. With the results in hand, the hospitalist contacted the on call surgeon for an urgent, stat, surgical consult. The surgeon ordered conservative therapy and advised he would see the patient in the morning. In response, because of the grave nature of the patient’s condition, the hospitalist pleaded with the surgeon to come in. The surgeon abruptly hung up. Even a call from the hospital’s CEO failed to get the surgeon in that night. The surgeon did not come in and perform surgery until the following morning, but it was too late. The patient was in septic shock and the beginning stages of multi-organ failure. She died on March 19, 2008.

The near unanimous jury verdict made it clear that the health care providers needlessly endangered their patient by failing to comply with simple safety principles — one of which requires physicians to timely diagnose and treat a potentially life-threatening surgical condition. The inability to perform a stat CT scan did not relieve the health care providers of their obligation to protect their patient. The untimely death of this woman — who was a wife, mother, and child — could have been avoided with a simple phone call to the surgeon when the stat CT scan became unavailable or by obtaining an alternative imaging study. The culture at this hospital prevented the health care providers from considering these simple, potentially life-saving alternatives. The omissions of the health care providers put all patients at risk and the jury’s verdict made it clear that such omissions are not acceptable.

The health care providers committed medical malpractice and the jury apportioned 40% of the fault to the on call surgeon, 30% to the hospital, 25% to the hospitalist, and 5% to the ED physician.

Learn more about Harris, Powers & Cunningham at www.hpclawyers.com

IP BASICS

How should I follow a blog posting that netted record hits for this blog and ride the momentum into tomorrow?  Sadly, I don’t know.  In looking at legal news for the day, Blago does not dilate my pupils even one nanometer and I am not sure I can control my emotions over the recent executions by the Taliban.  Therefore, I will just stick with my original manifesto of providing information and answers. 

I am a little late for a Bilski discussion, so want to address some basic IP concepts. 

Copyright is an exclusive right granted to the author of “original works of authorship” including literary, dramatic, musical, artistic, and certain other intellectual works, that includes the right to copy, distribute, and adapt the work.  The copyright protects the form of expression, not the subject matter of the work.

A trademark is a distinctive word, symbol, or device used in commerce to identify the source of the goods and to distinguish them from the goods of others.  A servicemark is a trademark that identifies and distinguishes the source of a service rather than a product.  Trademark/Servicemark rights may be used to prevent others from using a confusingly similar mark.

A patent grants an inventor “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States.  Contrary to common belief, a patent does not grant the right to make, use, offer for sale, sell, or import.

The Big Picture of Litigation

Let’s start with the presumption that someone was wronged, they rightfully want to exercise their legal rights, and you have been retained to protect their rights.  Let’s even presume, as hard as it might be, that your client’s goals are reasonable and realistic. 

An attorney’s goal should be to achieve the best result under the circumstances.  Clearly the client’s interests are priority number one; however, you should also be mindful of your ethical obligations (and maybe even moral responsibilities).  For example, pushing a case through extensive discovery and trial purely because the client wants the opposing party to spend lots of money – as either leverage for settlement or commercial advantage – should not be tolerated by the profession.  The American Board of Trial Advocates published a white paper that identified the goals and objectives of the civil justice system to include “fairness, confidence of the citizenry and litigants in the outcomes, impartial judges and juries, deterrence of wrongdoing and compensation for injury caused by wrongful conduct.”  To further these competing goals, cases should move through the system expeditiously and efficiently.  Lining the firm’s coffers or running someone out of business is not part of the formula.

Tomes have been written discussing the civility, lawyer conduct, and miscreants.  I would like to impart the big picture upon my readers.  How do you maximize the results for both you and your client while furthering the goals of the civil justice system? 

First, know your enemy – this includes the party and potentially the insurer.  Are they the kind of litigants that cave in to pressure or respond more to persuasive arguments?  Are they turned off by pestering or do they require persistent reminders?  If you are unsure, strike a balance.  You should also know your legal counterpart – what are their habits and how to persuade them.  Some attorneys in my town are notorious for avoiding trial and settling lawsuits at the last minute.  If you are up against them, you know what to expect and are already ahead in the game.

Second, do your homework early.  If you are prosecuting the case, you want to be trial ready before you ever put the opposing party on notice about the potential lawsuit.  This is not always possible; but the key is that you have turned over every stone before making a demand.  Why?  Because you want to be several steps ahead of your opponent.  After you make your demand, if the other party is receptive to pre-litigation mediation, you want to be able to counter their factual and legal arguments before they ever make them.  If you are on the defense, you want nothing but asses and elbows once you get wind of the potential claim.  You have to anticipate that the other side is almost finished with the race when you start, so you have little time to catch up.

Third, be reasonable.  This ties in with the next item – integrity.  Demanding a $1 million in a medical malpractice claim based on your client requiring a second surgery to correct something that went wrong the first time, leaving no permanent injury, is patently unreasonable.  Yes, there are some jurisdictions where juries will tolerate such deviance, but the juries here will punish you.  Your demands need to be reasonable.  Your counters should be reasonable.  Your legal and factual arguments should be reasonable.  Once you step off the curb of reasonableness, you enter the highway of fraud.

Nothing is more valuable than your integrity.  I recently read a blog post that suggested filing more motions in litigation will make settlement more likely.  Granted, demonstrating to your counterparts that you are not afraid of the trenches shows you have resilience and passion, but it also suggests you will throw pasta at the wall to see what sticks; in other words, you will file motions regardless of the likelihood of success.  For what purpose?  In my eyes, you lost your integrity.   Edward R. Murrow wrote, “To be persuasive we must be believable; to be believable we must be credible; credible we must be truthful.” 

Let’s start with the presumption that someone was wronged, they rightfully want to exercise their legal rights, and you have been retained to protect their rights.  Let’s even presume, as hard as it might be, that your client’s goals are reasonable and realistic. 

An attorney’s goal should be to achieve the best result under the circumstances.  Clearly the client’s interests are priority number one; however, you should also be mindful of your ethical obligations (and maybe even moral responsibilities).  For example, pushing a case through extensive discovery and trial purely because the client wants the opposing party to spend lots of money – as either leverage for settlement or commercial advantage – should not be tolerated by the profession.  The American Board of Trial Advocates published a white paper that identified the goals and objectives of the civil justice system to include “fairness, confidence of the citizenry and litigants in the outcomes, impartial judges and juries, deterrence of wrongdoing and compensation for injury caused by wrongful conduct.”  To further these competing goals, cases should move through the system expeditiously and efficiently.  Lining the firm’s coffers or running someone out of business is not part of the formula.

Tomes have been written discussing the civility, lawyer conduct, and miscreants.  I would like to impart the big picture upon my readers.  How do you maximize the results for both you and your client while furthering the goals of the civil justice system? 

First, know your enemy – this includes the party and potentially the insurer.  Are they the kind of litigants that cave in to pressure or respond more to persuasive arguments?  Are they turned off by pestering or do they require persistent reminders?  If you are unsure, strike a balance.  You should also know your legal counterpart – what are their habits and how to persuade them.  Some attorneys in my town are notorious for avoiding trial and settling lawsuits at the last minute.  If you are up against them, you know what to expect and are already ahead in the game.

Second, do your homework early.  If you are prosecuting the case, you want to be trial ready before you ever put the opposing party on notice about the potential lawsuit.  This is not always possible; but the key is that you have turned over every stone before making a demand.  Why?  Because you want to be several steps ahead of your opponent.  After you make your demand, if the other party is receptive to pre-litigation mediation, you want to be able to counter their factual and legal arguments before they ever make them.  If you are on the defense, you want nothing but asses and elbows once you get wind of the potential claim.  You have to anticipate that the other side is almost finished with the race when you start, so you have little time to catch up.

Third, be reasonable.  This ties in with the next item – integrity.  Demanding a $1 million in a medical malpractice claim based on your client requiring a second surgery to correct something that went wrong the first time, leaving no permanent injury, is patently unreasonable.  Yes, there are some jurisdictions where juries will tolerate such deviance, but the juries here will punish you.  Your demands need to be reasonable.  Your counters should be reasonable.  Your legal and factual arguments should be reasonable.  Once you step off the curb of reasonableness, you enter the highway of fraud.

Nothing is more valuable than your integrity.  I recently read a blog post that suggested filing more motions in litigation will make settlement more likely.  Granted, demonstrating to your counterparts that you are not afraid of the trenches shows you have resilience and passion, but it also suggests you will throw pasta at the wall to see what sticks; in other words, you will file motions regardless of the likelihood of success.  For what purpose?  In my eyes, you lost your integrity.   Edward R. Murrow wrote, “To be persuasive we must be believable; to be believable we must be credible; credible we must be truthful.”

www.daguannolaw.com